TERMS AND CONDITIONS MS MOTORSERVICE TRADING ( ASIA) PTE LTD

1. Scope of Application
• 1.1 These terms and conditions ("Terms") for the sale and delivery of automotive components (the "Goods") by MS Motorservice Trading (Asia) Pte Ltd ("Seller") shall apply exclusively to all present and future business transactions with the customer/ buyer ("Buyer") for the sale and delivery of Goods by the Seller, and shall constitute the sole and only terms between the parties in respect of the Contract (as defined below).
• 1.2 All other terms and conditions of contract imposed or sought to be imposed by the Buyer or implied by trade, custom, practice or course of dealing insofar as such terms and conditions are inconsistent therewith or additional thereto, shall not apply unless otherwise express agreed to in writing by the Seller.
• 1.3 Save for clause 1.2, the parties hereto acknowledge that any representations, inducements, promises, or agreements, orally or otherwise, which have been made by any party (or by anyone acting on behalf of any party) which are not embodied in these Terms, are not valid or binding for the purposes of the Contract.1.3 Diese Verkaufs- und Lieferbedingungen gelten nur gegenüber Unternehmern.
• 1.4 No alteration, exclusion or waiver of any of these Terms shall be effective or binding unless made in writing by the Seller. The Seller may from time to time, with fourteen (14) days' notice, amend, consolidate, modify, extend or replace the provisions of these Terms set out herein.
• 1.5 These Terms shall only apply in contracts/agreements entered into between the Seller and other corporate entities.
2. Offer and Order Confirmation
• 2.1 Any quotation made by the Seller shall in all cases not be regarded as binding on the parties and may be revised or withdrawn by the Seller at any time prior to the Seller's acceptance of the Buyer's order ("Order"), which acceptance shall be conditional upon approval of the Buyer's credit.
• 2.2 When the Buyer places an Order, he shall be regarded as having accepted these Terms, which order shall constitute an offer ("Offer"). All Orders placed must be made in writing and shall not be deemed to have been accepted by the Seller until written acceptance has been issued by the Seller. Accepted Orders shall be regarded as a valid contract of sale entered into between the Buyer and Seller, and are binding and may not be amended without the Seller's consent ("Contract").
• 2.3 In the event that the Buyer cancels his Order at any time after twenty-four (24) hours of having made such Order, the Seller shall be entitled to, at its discretion, charge the Buyer a cancellation fee of up to one per cent (1%) of the sum total of the Buyer's Order.
3. Intellectual Property Rights
• 3.1 The Seller and/or its affiliate companies, holding companies, subsidiaries (the "Group") (where applicable) shall retain all rights on all patents, copyright, registered and unregistered designs, trademarks and other intellectual property rights ("Intellectual Property Rights") which subsist in any Goods, inventions, drawings/designs created or made by the Seller and/or the Group ( including any employee, agent or representative of the Seller and/or the Group), and any other materials provided to the Buyer in relation with the Goods.
• 3.2 All materials provided to the Buyer by the Seller for the purposes of the Contract shall, unless otherwise agreed by the Seller in writing, belong to the Seller and/or the Group subject only to a licence in favour of the Buyer to use such materials for the purposes of the Contract. Further, the Buyer undertakes to procure that all materials provided to third parties by the Buyer shall similarly belong to the Seller and/or the Group subject only to a licence in favour of the third party to use such materials for the purposes of the contract entered into between the Buyer and the third party.
• 3.3 Where the Buyer prints off copies or downloads parts of any page(s) from the Seller's website for its personal reference, the Buyer shall not alter any materials printed or downloaded, nor shall the Buyer use any illustrations or graphics downloaded separately from any associated text.
• 3.4 The Seller and/or the Group assume no liability for any infringement of Intellectual Property Rights covering any combination of any Goods supplied hereunder with any product, whether or not such product was supplied by the Seller, or any method or process in which any Goods supplied hereunder may be used.
• 3.5 The Seller and/or the Group shall not be liable for infringement of any Intellectual Property Right arising from compliance with the Buyer's design(s), specification(s) or instruction(s). The Buyer shall indemnify the Seller and/or the Group against any final award of damages and costs for such infringement and shall reimburse all costs incurred by the Seller and/or the Group in defending any suit for such infringement.
4. Prices
• 4.1 Prices payable for the Goods shall be the amount shown on the Seller's invoice ("Invoice"). All amounts shown shall be quoted "ex-works" (as defined by the Incoterms 2010) ("EXW"), unless otherwise mutually agreed upon in writing, and shall exclude such other taxes, charges or duties which may be imposed for by the relevant governmental authorities, including all goods and services tax ("GST") and value-added tax (where applicable).
• 4.2 The Seller may at any time revise prices to take into account any increase in the Seller's costs (including but not limited to the cost of raw materials, labour, transport or other overheads, any tax, duty or other levy and variation in exchange rates, where applicable).
5. Conditions of Payment
• 5.1 Payment of Invoices shall be made in full without deductions within fourteen (14) days from the date stated on the Invoice, unless otherwise agreed upon by the parties in writing. Discounts shall only apply where expressly agreed to by the Seller in writing.
• 5.2 The Buyer shall have the right to off-set any sums payable in the Invoice insofar as its counterclaims are legally binding, uncontested and has been acknowledged in writing by the Seller. For the avoidance of doubt, the Buyer's right to set-off shall be limited to claims arising pursuant to this Contract.
• 5.3 If the Buyer defaults in payment by the due date, interests shall be payable at the discretion of the Seller on any overdue amounts at a monthly rate of five per cent (5%) on the total amount outstanding, until such time as the outstanding amount has been paid off by the Buyer.
6. Delivery/Lead Time/Delay
• 6.1 While the Seller shall use all reasonable efforts to meet the delivery dates stated in its quotation or acceptance of order, the date specified in respect of all deliveries are given in good faith and are intended to be estimation only, and shall not be the essence of the Contract.
• 6.2 Aside from delays which result from the Seller's gross negligence, the Seller shall not have any liability for the failure to deliver on a particular date/dates. In particular, this shall apply to delivery delays caused by force majeure, labor disputes, unrest, official measures, failure to deliver by suppliers, and any other unforeseen, unavoidable, and serious events. In such cases, the delivery date or delivery period agreed shall be extended according to the duration of the delivery impediment.
• 6.3 Partial deliveries shall be permitted to a reasonable extent. Where Goods are to be delivered in batches, each delivery shall constitute a separate contract so that failure to deliver or defects on one or more batches shall not entitle the Buyer to reject other batches
• 6.4 Unless otherwise agreed in writing by the Seller, collection/delivery of the Goods shall take place at the address indicated in the Seller's quotation or such other address as the Seller may agree and the Goods shall be delivered by such mode of transport and on such terms as may be decided by the Seller.
• 6.5 Notwithstanding any provisions in these Terms, the Seller shall not be liable for any loss including loss of profit, damages, charges or expenses caused directly or indirectly by any delay of the delivery of the Goods.
7. Description and Suitability of Goods
• 7.1 Unless specified in the quotation to the Buyer by the Seller, all other descriptions, illustrations and/or particulars of the weights, dimensions and performance criteria of the Goods issued by the Seller through catalogues, price lists and/or advertising material (as the case may be) are by way of general descriptions and are approximations only, and shall not form part of the Contract or give rise to any liability on the part of the Seller.
• 7.2 It shall be the responsibility of the Buyer to ensure that the Goods shall be suitable for the particular application and for use under the particular conditions for which they are purchased. Any product information supplied by the Seller (or such representative of the Seller) which indicates the suitability of the Goods for particular applications is intended for general guidance only. Suitability may be dependent upon operating and other conditions over which the Seller has no control.
8. Transfer of Title
• 8.1 The Seller shall retain title of all Goods delivered until the Seller receives payment in full (including all prevailing tax and governmental charges) for the Goods, in accordance with the terms of the Contract.
• 8.2 Until such time where property in the Goods passes to the Buyer, the Buyer shall have possession of the delivered Goods as a bailee for the Seller and shall ensure that the Goods are stored in such a way as to enable the Goods to be identified as the property of the Seller.
• 8.3 The Buyer further agrees to fully insure the Goods, at the its own expense, at an amount not less than the price of sale price of the Goods with the Seller's interest to be noted on the insurance policy. The Seller may, at its discretion, additionally elect to insure the Goods itself at the expense of the Buyer.
• 8.4 Until such time where title in the Goods passes to the Buyer, the Buyer shall be under an obligation to redeliver the Goods to the Seller if the Seller so requires, and the Seller reserves the right to repossess any Goods in respect of which payment is overdue and thereafter to resell the same, and for this purpose the Buyer hereby grants an irrevocable right and licence to the Seller to enter upon all or any of its premises with or without vehicles during normal business hours. Where the Goods have been fixed or attached to any other product, the Seller reserves the right to detach the Goods in order to recover possession of them. Such redelivery or retaking of possession shall be without prejudice to the obligation of the Buyer to purchase the Goods. This right shall continue to subsist notwithstanding the termination of the contract for any reason and is without prejudice to the Seller's other rights.
9. Packing, Shipment, transfer of Risk
• 9.1 Goods will be packed without additional charge. Upon delivery, the Seller may, at its discretion, either elect to keep any pallets used, or request that the pallets be disposed of by the Buyer at its own expense. For the avoidance of doubt, the Buyer shall be obliged to dispose of all other packaging used at its own expense.
• 9.2 Unless expressly agreed upon by the Seller, the risk in the Goods shall pass immediately to the Buyer upon the Seller making the Goods available for collection by the Buyer, regardless of whether the Seller assists to arrange for delivery to be made on behalf of the Buyer.
• 9.3 If for any reason the Buyer refuses/fails to accept delivery or collect of any of the Goods, or the Seller is unable to deliver the Goods on time because of reasons set out in Clause 16 (Force Majeure) below, including but not limited to, the Buyer not providing appropriate instructions, documents, licences or authorisations, the risk in the Goods shall pass immediately to the Buyer upon the Seller making the Goods available for collection by the Buyer and the Goods will be deemed to have been delivered on the date the Seller notifies the Buyer that the Goods are ready for collection. The Seller may store the Goods until the Buyer collects the Goods, with the Buyer agreeing to be liable for all related costs and expenses (including without limitation storage and insurance).
• 9.4 Any costs incurred by the Seller with respect to Clause 9.3 shall be additional to any administrative charges that the Seller may at its discretion determine from time to time.
10. Loss or Damage in Transit
• 10.1 Unless the Seller expressly agrees otherwise in writing, the Buyer must insure at its own costs all the Goods against any risk and/or damage that the Goods may be exposed to in transit. The Seller shall not be liable for nor consider claims by the Buyer for the non-delivery of Goods or any damage which may arise in transit.
11. Warranty
• 11.1 The Seller warrants that the Goods purchased by and delivered to the Buyer will conform to the applicable technical specifications stated in the Contract.
• 11.2 Unless otherwise specified in the quotation, the warranty in favour of the Buyer shall only be valid for a continuous period of six (6) months from the date of delivery of the Goods to the Buyer.
• 11.3 Subject to Clause 12 below, during the warranty period, the Seller agrees at its option to either repair or replace (with goods of the same essential characteristics) defective goods ("Defective Goods") proved to the Seller's reasonable satisfaction to have failed by reason of defects arising from faulty workmanship or materials, provided that: a. the Buyer has followed all instructions issued by the Seller in relation to the use, installation, storage and/or maintenance of the Goods. For the avoidance of doubt, the Buyer undertakes that under no circumstances shall it use/ permit the Goods be used in connection with aerospace manufacturing / engineering; b. the Goods have not been altered, used or repaired outside the permitted scope as may be specified in the issued quotation, and/or otherwise authorised/ provided by the Seller in writing; c. the Buyer has installed the Goods in conformity with the requisite safety standards; d. in the case of defects which would have been apparent to the Buyer on reasonable examination of the Goods upon collection/ delivery, the Buyer notified the Seller of the defects in writing within three (3) days of collection/ delivery of the Goods; and e. in the case of any other defects, the Buyer notified the Seller of the defects in writing within three (3) days from the date when the defect became apparent.
• 11.4 Notwithstanding anything set out in this warranty, the Seller's obligation under this warranty shall be limited only to the replacement or repair of the Defective Goods (as the Seller may decide). For the avoidance of doubt, any other costs incurred including but not limited to the dismantling and installing of replacement goods, shall be borne by the Buyer.
• 11.5 The warranties set out in these Terms are the only warranties provided by the Seller. All warranties, whether implied or incorporated by law, including but not limited to the merchantability of the Goods or their suitability or fitness for a particular purpose, are hereby expressly excluded to the extent that is allowed by law.
• 11.6 The warranty set out herein extends only between the Buyer and the Seller, save for circumstances where the Buyer has been authorised by the Seller in writing to re-sell the Goods to third parties. In such circumstances, the Buyer shall continue to be responsible for examining the Goods upon receipt, and this warranty shall extend to such third-parties, subject to and in accordance with this Clause 11.
12. Return of Defetive Goods
• 12.1 Where the Buyer alleges that the Goods are defective, the Buyer shall submit to the Seller a claim return form ("Claim Form"), setting out, inter alia, the scope of the claim and attaching all relevant documents, as necessary, to substantiate and evidence the claim. The full conditions for effecting a claim is set out in the Claim Form, which will be provided to the Buyer upon request. The Seller reserves the right to disregard all claims made by the Buyer that are not in accordance with the conditions provided in the Claim Form.
• 12.2 The Seller shall review all Claim Forms received from the Buyer at its earliest convenience, and the Seller shall not be liable for any cost or damages that may be incurred by the Buyer due to any delay caused by the Seller in reviewing the Claim Form.
• 12.3 Following its review, the Seller may at its discretion request the Buyer to return such allegedly defective components/parts for further inspection ("Return Request"). Any Goods returned will only be accepted if the Buyer complies with all delivery instructions as may be provided by the Seller. For the avoidance of doubt, the Buyer agrees that it will bear all costs and risk of delivering the allegedly defective Goods to the Seller.
• 12.4 All Return Requests from the Seller shall only be valid for thirty (30) days from the date of issue. Where the Buyer fails to return the allegedly defective Goods within the specified time frame, the Buyer is deemed to have forgone its right to return the Goods.
• 12.5 Upon receipt of the allegedly defective Goods, the Seller will review the alleged defect at its earliest convenience. The Seller shall not be liable for any cost or damages that may be incurred by the Buyer due to any delay caused by the Seller in reviewing the alleged defect.
• 12.6 The Buyer shall upon notification by the Seller collect any unauthorised Goods returned within such period specified by the Seller. If the Buyer fails to collect such unauthorised Goods, the Seller shall be entitled to dispose of such unauthorised Goods. Any costs incurred in disposing of the unauthorised Goods will be borne by the Buyer. Any balance proceeds from the disposal of such unauthorised Goods shall be for the account of the Seller.
13. Liability
• 13.1 The following provisions of this Clause 13 sets out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents and subcontractors) in respect of any breach of the Contract and any representation, statement or omission including negligence arising under or in connection with the Contract, SAVE THAT the Seller shall accept liability for death or personal injury caused by the negligence of the Seller.
• 13.2 The Seller's total liability in contract, tort, misrepresentation or otherwise arising in connection with its performance or contemplated performance of this Contract shall be limited to the price of the Goods paid by the Buyer under the Contract.
• 13.3 The Seller shall not be liable to the Buyer for any direct or indirect loss (including, loss of profit, loss of business and/or depletion of goodwill), damages, costs, expenses, or any other claims for consequential compensation, howsoever arising out of or in connection with the Goods. In particular, the Seller shall not be liable to the Buyer for: (a) any shortages in quantity delivered unless the Buyer notifies the Seller of any claim for short delivery within three (3) days of receipt of the Goods; (b) any damage to or loss of the Goods or any part thereof in transit, where the Goods are carried by the Seller's own transport or by a carrier on behalf of the Seller; and (c) for any other damages in the Goods unless notified to the Seller within three (3) days of the Buyer’s receipt of the Goods.
14. Assignment
• 14.1 All claims by the Buyer against the Seller shall be non-assignable.
15. Product Use and Thrird Parties
• 15.1 The Buyer shall only use the Goods in accordance with such purpose as provided by the Seller and shall ensure that the Goods are only resold to persons with the requisite understanding and familiarity with the hazards and risks associated with the Goods. For the avoidance of doubt, the Buyer undertakes that under no circumstances shall it use/ permit the Goods be used in connection with aerospace manufacturing / engineering.
• 15.2 Where the Buyer, upon the written approval by the Seller, resells the Goods to a third party, the Buyer undertakes that it shall issue written instructions and warnings to the third party in respect of the Goods resold.
• 15.3 In the event that the Buyer does not comply with any of the provisions in this Clause 15, the Seller's warranties under Clause 11 above shall not apply to any Goods resold, and the Buyer agrees that it shall be wholly liable for any damages, costs or claims arising/ made by the third party in connection with the Goods.
16. Force Majeure
• 16.1 The Seller shall be entitled without liability on its part and without prejudice to its other rights, to terminate the Contract or any unfulfilled part thereof, or at its option to suspend or make partial deliveries or to extend the time or times for delivery, where the manufacture of the Goods by the Seller, or the delivery of the Goods or the performance by the Seller of any of its obligations under the Contract is hindered or delayed whether directly or indirectly by reason of:- (a) the Buyer failing to furnish necessary instructions or information to the Seller; (b) circumstances arising beyond the reasonable control of the Seller, including without limitation to acts of God, acts of civil or military authority, fires, strikes, lockouts or labour disputes, epidemics, government restrictions, wars, terrorism, riots or civil disturbances, earthquakes, storms, typhoons or floods; and/or c) restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials by reason of any industrial dispute or any cause specified in Clause 16(b) above, whether or not such cause existed at the date of the Contract.
17. Confidentialtity
• 17.1 The Buyer shall treat as trade and company secret all business and technical information received from the Seller to the extent that this information is not public knowledge. Information of this nature may only be forwarded for the purposes of the contract to third parties who are bound by an appropriate non-disclosure agreement.
18. Buyer's Breach
• 18.1 If the Buyer commits a breach of the Contract, becomes an adjudged bankrupt or any petition for bankruptcy is presented against him, or if, being a corporate body, the Buyer is wound up or a resolution is proposed to wind up the Buyer, or if the Buyer shall be deemed to be unable to pay its debts, the Seller shall be entitled, without prejudice to any other claim or right or remedy which it may have, forthwith suspend any or all deliveries or determine the Contract or any unfulfilled part thereof, or until the Buyer's default has been made good.
19. Miscellaneous
• 19.1 Reference to writing or any form of communication between the parties shall include facsimile and all communication by electronic means.
• 19.2 These Terms shall be governed by and construed in accordance with the laws of the Republic of Singapore. Any dispute arising out of or in connection with these Terms, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in Singapore administered by the Singapore International Arbitration Centre ("SIAC") in accordance with the Arbitration Rules of the Singapore International Arbitration Centre ("SIAC Rules") for the time being in force, which rules are deemed to be incorporated by reference in this clause. The Tribunal shall consist of one (1) arbitrator and the language of the arbitration shall be English.
• 19.3 If any provision of these Terms is interpreted to be illegal or invalid under applicable law, that provision will be fully severable and these Terms shall be construed as if that provision had never been part of these Terms. The remaining provisions of these Terms will remain in full force and effect and will not be affected by the illegal or invalid provision or its severance.