This Purchase Order, together with any Schedules and other documents herein identified, constitutes the complete agreement of the parties (the “PO”) and shall constitute the entire and exclusive agreement between Fuji SMBE and the supplier identified herein (“Supplier”) with respect to the Products and/or Services (each as set forth in this PO and collectively, the “Work”) to be provided to Fuji SMBE by Supplier hereunder. Fuji SMBE objects to any additional or different terms Supplier’s subsequent documents, and such terms shall not be binding. This PO may only be modified by a written in amendment, identified as such, signed by both parties.
1.1 In this Purchase Order:
1.2 The clause and headings in these Terms and Conditions are for ease of reference only and shall not affect the construction or interpretation of these Terms and Conditions.
1.3 Words in these Terms and Conditions importing the singular meaning shall, where the context so admits, include the plural meaning and vice versa.
1.4 References in these Terms and Conditions to any statutes or statutory instruments shall include and refer to any statute or statutory instrument amending, consolidating, or replacing them respectively from time to time and for the time being in force.
1.5 Words in these Terms and Conditions for the masculine gender shall include the feminine and neuter genders and vice versa. Words denoting natural persons shall include corporations and firms, and all such words shall be construed interchangeably in that manner.
2.1 This PO constitutes an offer by Fuji SMBE to purchase the Goods and/or acquire the Services subject to these Terms and Conditions. The Parties acknowledge that these Terms and Conditions shall apply to both Goods and Services to the extent appropriate as the case may be.
2.2 These Terms and Conditions shall apply to the PO to the exclusion of any other terms and conditions including any terms and conditions which the Vendor may purport to apply under any quotation or similar document.
2.3 This PO will lapse unless unconditionally accepted by the Seller in writing within 5 days from the date of the PO. Upon acceptance, there shall be a binding contract formed between Fuji SMBE and the Vendor.
2.4 Dispatch or delivery of the Goods and/or performance of the Services shall be deemed to be conclusive evidence of the Vendor’s acceptance of this PO and these Terms and Conditions.
3.1 This PO shall constitute the entire agreement between Fuji SMBE and the Vendor and supersedes all prior or contemporaneous proposals, quotations, agreements, negotiations, representations, warranties, understandings, correspondence and all other communications or arrangements between Parties in respect of the subject matter of this PO.
3.2 No failure on the part of Fuji SMBE at any time to enforce or require the strict adherence and performance of any of the Terms and Conditions shall constitute a waiver of such terms or conditions or affect or impair the effect of such terms and conditions or prejudice the rights or remedies of Fuji SMBE at any time to avail itself of such rights or remedies as it may have for any breach of such terms or conditions.
3.3 Any variation, change, amendment or modification of any of the Terms and Conditions of this PO shall be made in writing and executed by the authorised representatives of the Parties.
4.1 Unless otherwise stated in this PO or agreed by Parties in writing, all prices for Goods and Services are firm and are not subject to any price escalation for any reason whatsoever.
4.2 The Vendor shall be entitled to invoice Fuji SMBE on or at any time after delivery of the Goods or performance of the Services and each invoice shall quote the number of this PO.
4.3 Unless otherwise stated in this PO, the due date for payment of all invoices issued by the Vendor shall be calculated based on parties’ agreed payment terms from the date of acknowledgement of receipt of the Goods or Services by Fuji SMBE or date of receipt of invoice from the Vendor, whichever is the later. For the purposes of this clause 4.3:
4.3.1 “agreed payment terms” include staggered and/or periodic payment terms as may be agreed in writing from time to time between Fuji SMBE and the Vendor;
4.3.2 Fuji SMBE shall acknowledge receipt of the Goods or Services by signing off on the Vendor’s delivery order, but the same shall not be taken to mean that Fuji SMBE has accepted any of the terms and conditions stated in the Vendor’s delivery order; and
4.3.3 For the avoidance of doubt, the acknowledgement of receipt of the Goods and/or Services by Fuji SMBE is not to be taken as a waiver of any of Fuji SMBE’s rights under this PO including (but not limited to) its right to inspect or test any of the Goods and to reject the Goods or any portion of the Goods which do not conform to this PO.
4.4 Fuji SMBE shall be entitled to set off against the Price any sums owed to Fuji SMBE by the Vendor.
5.1 Time of delivery shall be of the essence in this PO.
5.2 The Vendor shall immediately notify Fuji SMBE in writing if it is unable to deliver the Goods or perform the Services in accordance with the delivery schedule, stating the reasons for such non-delivery or non-performance. In such event, Fuji SMBE may either, at its sole discretion:
5.2.1 approve in writing any revised delivery schedule; or
5.2.2 terminate the PO and cancel the existing order with the Vendor (whether in whole or in part) without any liability to Fuji SMBE.
For the avoidance of doubt, the Vendor shall be solely liable for any loss or damage Fuji SMBE may suffer as a result of the Vendor’s non-compliance with the delivery schedule.
5.3 If the Goods are not delivered or the Services are not performed in accordance with the delivery schedule, Fuji SMBE shall (without prejudice to any other rights or remedies Fuji SMBE may have under this PO or at law) have the right to deduct from the Price or (if Fuji SMBE has already paid the Price) to claim from the Vendor liquidated damages for delay at one percent (1%) of the Price per day, calculated up to 30 days from the date of expected delivery as per the delivery schedule.
5.4 Fuji SMBE shall have the right to inspect or test any of the Goods to ascertain that they are in accordance with this PO. Any inspection or failure to inspect by Fuji SMBE shall not relieve the Vendor from its responsibilities or liabilities under this PO or at law, nor be interpreted in any way as implying acceptance of the Goods.
5.5 Fuji SMBE reserves the right to reject the Goods or any portion of the Goods which do not conform to this PO either at the time of delivery or at any reasonable time thereafter. In such event, the Vendor shall be deemed to be in breach of this PO and Fuji SMBE shall be entitled, at its sole election, to either:
5.5.1 require the Vendor to replace the non-conforming Goods; or
5.5.2 terminate this PO in respect of the non-conforming Goods and/or Goods which remain undelivered. In such event, the Vendor shall be solely liable for any loss or damage Fuji SMBE may suffer as a result of having to effect such termination.
5.6 If the Goods are damaged on delivery or have been lost in transit, the Vendor shall repair or replace free of charge such Goods damaged or lost in transit. In such event, due delivery of the Goods shall not be deemed to have taken place until the replacement or repaired Goods have been delivered by the Vendor to Fuji SMBE. Fuji SMBE reserves the right to hold such damaged Goods at the Vendor’s risk or to return them at the risk of the Vendor.
6.1 The property in the Goods shall only pass to Fuji SMBE upon delivery and after payment has been made in accordance with clause 4.3 or alternatively, on a date as may be mutually agreed between Fuji SMBE and the Vendor in accordance with any applicable international shipping terms.
6.2 All specifications (inclusive of patterns, drawings, photographs, samples and information) provided by Fuji SMBE to the Vendor shall remain the exclusive property of Fuji SMBE and shall not be disclosed by the Vendor to any third party without Fuji SMBE’s written consent.
6.3 All molds, tools, dies, fixtures, plant or other equipment provided by Fuji SMBE to the Vendor shall remain the exclusive property of Fuji SMBE and shall be maintained in good order and condition while in the Vendor’s possession or control and shall be insured by the Vendor in the name of Fuji SMBE on an “all risks” basis for their full replacement on cost.
6.4 The Vendor shall not use Fuji SMBE’s property referred to in clauses 6.2 and 6.3 above nor allow it to be used for any purpose other than the supply of Goods and/or Services in accordance with this PO.
7.1 The Vendor warrants to Fuji SMBE that the Goods and/or Services:
7.1.1 will be of merchantable quality and fit for the purpose made known to the Vendor in writing at the time the order for the Goods and/or Services is placed;
7.1.2 will be free from defects in design, material and workmanship for a period of no less than 2 years from the date of delivery of the Goods supplied and/or Services provided; and
7.1.3 will comply with all statutory requirements and regulations relating to the sale of the Goods and/or provision of Services for the time being in force.
7.2 The Vendor warrants to Fuji SMBE that the Services will be performed with due care and reasonable diligence by persons who are appropriately qualified and trained to carry out the Services.
7.3 Without prejudice to Fuji SMBE’s rights and remedies under statute and/or at common law relating to the provision of goods and services, if the Goods and/or Services are not supplied or performed in accordance with this PO, then Fuji SMBE shall be entitled:
7.3.1 to require the Vendor to repair the Goods or to supply a suitable replacement for the Goods and/or Services in accordance with this PO within 24 hours upon notice provided by Fuji SMBE or alternatively, within a period as may be agreed between the Vendor and Fuji SMBE. Such notice may be provided either in written or oral form. If oral notice is provided, Fuji SMBE will follow up with a written confirmation at a later date notwithstanding that the Vendor’s obligation under this clause 7.3.1 takes effect as at the date of the oral notice provided; or
7.3.2 at Fuji SMBE’s absolute sole discretion, to treat the PO as discharged by the Vendor’s repudiatory breach of this PO and require the repayment of any part of the Price that has been paid.
8.1 Fuji SMBE shall be entitled to terminate this PO in respect of any or part only of the Goods and/or Services by giving notice to the Vendor at any time prior to the delivery or performance, in which event Fuji SMBE’s sole liability shall be to pay to the Vendor the Price for the Goods and/or Services supplied to and accepted by Fuji SMBE prior to such termination.
8.2 The occurrence of any one or more of the following matters, and the continuation of the same for seven (7) days after written notice has been provided by Fuji SMBE, shall constitute a default under this PO (a “Default”):
8.2.1 A failure by the Vendor to observe and perform any covenant, condition or agreement on its part to be observed or performed hereunder;
8.2.2 The insolvency, dissolution or liquidation of the Vendor, or the filing of a petition in bankruptcy by or against the Vendor or the adjudication of the Vendor as bankrupt, or the Vendor makes an arrangement with its creditors, or any general assignment by the Vendor for the benefit of its creditors, or the application for, or consent to, the appointment of any receiver, trustee, custodian, or similar officer by the Vendor; and/or
8.2.3 The failure (or admission in writing of inability or unwillingness) by the Vendor to pay amounts due and payable to Fuji SMBE hereunder.
8.3 In such event of a Default:
8.3.1 Fuji SMBE may avail itself of any and all rights or remedies available at law or in equity including (but not limited to) its right to terminate this PO without liability to Fuji SMBE;
8.3.2 The Vendor shall immediately pay to Fuji SMBE all of Fuji SMBE’s outstanding unpaid invoices and interest; and
8.3.3 In respect of the Services provided but for which no invoice has been submitted, Fuji SMBE may submit an invoice which shall be payable immediately on receipt.
9.1 Unless expressly authorized by Fuji SMBE, the Vendor shall not be entitled to use any IP owned or used by Fuji SMBE.
9.2 Rights, title and interests in IP which results from or generated pursuant to or created for the purposes of this PO (including all concepts, drawings and specifications prepared by Fuji SMBE) shall vest in Fuji SMBE. For the avoidance of doubt, any IP in any results, report, data or information generated or produced by Fuji SMBE or another person on behalf of Fuji SMBE shall be owned by Fuji SMBE.
10.1 The Vendor agrees to fully indemnify on demand Fuji SMBE and its affiliates, subcontractors, vendors, officers, directors, agents, consultants and representatives from and against any and all claims, losses, demands, suits, liabilities, injuries (personal or bodily), costs and expenses (including but not limited to all expenses of investigation and enforcement of this indemnity and all legal and other advisers’ fees and expenses) that Fuji SMBE may incur, or be liable for, arising out of and/or in connection with the use of the Goods and/or Services.
10.2 Without prejudice to clause 10.1, the Vendor shall indemnify Fuji SMBE against all liability, losses, damages, costs and expenses (including legal costs) on a full indemnity basis upon the occurrence of any of the following:
10.2.1 breach of any of the Terms and Conditions by the Vendor set out in this PO including any other special terms and conditions agreed in writing between Fuji SMBE and the Vendor; and/or
10.2.2 breach of any warranty given by the Vendor in relation to the Goods and/or the Services.
11.1 In the event that the Goods are damaged on delivery or have been lost in transit arising from the manner of operation carried out by the Vendor and/or its agents, third party handlers or transporters, Fuji SMBE shall be entitled to rights of recovery from the Vendor for all losses thereby incurred. For the avoidance of doubt, such rights include (but are not limited to) the rights of subrogation that may be invoked by Fuji SMBE’s insurers, all of which have not been waived.
12.1 Fuji SMBE shall not in any event be liable for any failure or delay in the performance of its obligations hereunder if it is prevented from so performing its obligations by a Force Majeure Event.
12.2 A “Force Majeure Event” means any cause which is not reasonable foreseeable and is beyond the reasonable control and not due to the fault or negligence of the Party affected and which could not have been avoided by due diligence and the use of reasonable efforts.
12.3 A “Force Majeure Event” includes, without limitation, acts of God, drought, flood, earthquakes, storm, fire, lightning, epidemics, pandemics, riot, civil disturbances, sabotage, explosions, strikes or labour disputes, actions or inactions of government authorities, wars, embargoes or other catastrophes
13.1 The prior written approval of Fuji SMBE shall be required to allow a delegation or assignment of duty to perform any obligation owed to Fuji SMBE by the Vendor, its agents, employees, contractors or affiliates.
14.1 If any or more of the provisions contained in this PO is held invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions contained shall not in any way be affected or impaired, and the Parties shall promptly amend the PO so that such invalidity, illegality or unenforceability is cured in a manner which is legal, valid and enforceable and which, to the fullest extent possible, gives effect to the intended objective of such invalid, illegal or unenforceable provision.
15.1 Mediation – Any dispute arising out of or in connection with this PO, including any question regarding the existence, validity or termination of this PO, shall first be submitted for resolution by the Singapore Mediation Centre in accordance with the Mediation Procedure for the time being in force. If Parties are unable to settle the dispute within sixty (60) days from the date of submission of the dispute to mediation, then each Party shall be entitled to commence arbitration as set out in clause 15.2 below.
15.2 Arbitration – Any dispute arising out of or in connection with this PO, including any question regarding the existence, validity or termination of this PO, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the SIAC (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this clause.
A. The seat of arbitration shall be Singapore.
B. The Tribunal shall consist of one (1) arbitrator.
C. The language of the arbitration shall be the English language.
16.1 This PO shall be governed by and construed by the laws of Singapore.
17.1 The provisions hereof shall be binding upon and shall inure to the benefit of each Party, their respective successors and permitted assigns.
18.1 Nothing in this PO confers or purports to confer on any third party any benefit or any right to enforce any terms of this PO pursuant to the Contracts (Rights of Third Parties) Act (Cap. 53B).
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