Purchase Order Terms and Conditions

Purchase Order Terms and Conditions

 1. General

1.1   This document is called the PO Terms. The agreement between the Seller and the Buyer is made up of (a) the Purchase Order and (b) these PO Terms. References to “Purchase Agreement” are to these documents. The Purchase Order prevails to the extent of any inconsistency between it and the PO Terms.

1.2   References in the Purchase Agreement to (a) “Buyer” is to the Helix or Embed company; (b) “Seller” is to the seller or supplier; (c) “Goods” are to goods; and (d) “Services” are to services, each as indicated in the Purchase Order.

1.3   A Purchase Order will be deemed accepted by Seller upon provision by Seller of acknowledgement of the front page of the Purchase Order via fax/email to Buyer within three (3) business days after Buyer’s issuance of the Purchase Order or instructions without amendment by Seller. Buyer may revoke or make any changes to the Purchase Order until accepted by Seller.

1.4   Capitalised terms have the meaning given to them in clause 19 of these PO Terms. The rules of interpretation in clause 20 of these PO Terms apply.

2. Prices & Payment

2.1   The Purchase Price for the Goods or Services is that stated on the acknowledged Purchase Order or last quoted by the Seller, whichever is lower. The Purchase Price must not be increased without Buyer’s specific written authorization.

2.2   Where the Purchase Price for Goods is expressed to be based on Incoterms®, the price of such Goods shall be based on the Incoterms® Rules 2010 and Seller must not charge for boxing, packing, cartage or other extras unless specifically agreed to in writing in advance by Buyer.

2.3   Unless otherwise stated in the Purchase Order, (a) Buyer must pay Seller within 60 days of receipt of an invoice for the Purchase Price, except to the extent Buyer has a bona fide claim against Seller in which case Buyer must pay the amount that is not in dispute; and Seller must not issue an invoice for the Purchase Price until all Goods and Services are delivered.

2.4   Unless otherwise stated in the Purchase Order, all references to $ and all prices are stated (a) in the lawful currency of the jurisdiction set out in the Purchase Order or otherwise that in which Buyer is based; and (b) inclusive of any goods & services tax, value added tax, local, import, custom taxes or other taxes, duties or charges applicable to the transaction, which must be paid by Seller.

2.5   Buyer may set-off and deduct from any amount it must pay Seller under the Purchase Agreement, any amount payable by Seller to Buyer. Seller must not set-off against or deduct from any amount it must pay to Buyer under the Purchase Agreement.

2.6   Buyer is entitled to make all payments to Seller by electronic funds transfer to the account Buyer reasonably believes is Sellers’ bank account unless provided otherwise in the Purchase Order. Each party shall bear all bank fees and charges arising from the electronic funds transfer.

3. Packaging & Documentation

3.1   Seller must ensure that Goods are packaged securely and safe for any mode of transportation and each shipment includes documentation stating the exact quantities and description of the Goods shipped. In any case, Buyer may conduct its own count and verification and such count and verification will be deemed final in the absence of any conflicting statement provided by Seller with the Goods. Seller must ensure that applicable quality certifications and material safety data sheet(s) accompany each Goods shipment if needed, unless otherwise specified by Buyer on the front page of the Purchase Order. Seller must ensure that the order number must be labelled on the exterior of all shipping packages, invoices and shipping documents and a packing list is included and contains information on number and dimensions of packages, net weight and gross weight. Seller must provide all required documentation to Buyer at least three (3) business days before the shipment of Goods is scheduled to leave Seller’s premises for Ex-works (Incoterms) terms and one (1) business day after the shipment of Goods leaves Seller’s premises for all other terms.

3.2   Title to and risk in the Goods passes from Seller to Buyer on delivery of such Goods.

3.3   Buyer will not be responsible for any damage to or destruction of Goods before delivery of the Goods regardless of the cause of damage or destruction.

3.4   Buyer obtains all right, title and interest in Goods (including Intellectual Property Rights) and is entitled to install, use and sell Goods in any manner it chooses.

4. Intellectual Property

4.1   Seller represents and warrants to Buyer that (a) Seller has all Intellectual Property Rights in the Goods and Services delivered to Buyer and Buyer may use such Goods and Services without restriction; and (b) Seller has not received any claim from a third party that Seller does not have Intellectual Property Rights in the Goods or Services and the Seller is not aware of any circumstances that might lead to such a claim.

4.2   Without prejudice to any other provision in the Purchase Agreement, Buyer is entitled to (a) all Intellectual Property Rights which arise out of the Services including deliverables, documentation and configuration and (b) use the Goods and Services as part of or with any other goods and services and Buyer is entitled to all Intellectual Property Rights arising from such combination, use or modification.

5. Delivery and Delay

5.1   Seller must deliver Goods and Services within the period indicated in the Purchase Order and if there is no such period within 3 months of acceptance of the Purchase Order (Delivery Period).

5.2   Seller must report any suspected delay in delivery or shipment immediately to Buyer. Buyer reserves the right to terminate the relevant Purchase Agreement in whole or in part, with no liability to Buyer, should Seller fail or be reasonably likely to fail to deliver in accordance with this Purchase Agreement.

6.  Confidentiality

6.1   Subject to clause 6.2 of these PO Terms, the Seller must not disclose the Confidential Information, must keep the Confidential Information secure from disclosure and must only use the Confidential Information to directly further the purposes of the Purchase Agreement or to enforce its rights under the Purchase Agreement.

6.2   The restrictions in clause 6.1 of these PO Terms do not apply if:

(a)     the Seller is required by law, rules, regulations or binding guidelines to disclose the information and has given Buyer reasonable notice of that obligation and a reasonable opportunity to ensure that only what is required to be disclosed is disclosed;

(b)     the information is in or enters the public domain other than as a result of a breach of the Purchase Agreement by Seller;

(c)     the information is provided to Seller by a third party which is under no obligation of confidence in respect of that information; or

(d)     the information is disclosed to directors, officers, employees, agents and contractors of Seller and such disclosure is strictly necessary for the performance or exercise of rights under the Purchase Agreement or to a legal, accounting or other advisor in the ordinary course of conducting its business.

7. Cancellation and termination

7.1   Buyer reserves the right to cancel all or any part of the undelivered portion of any order without any liability for Buyer within five (5) business days of receipt of some but not all of the Goods to be delivered.

7.2   Notwithstanding any provision to the contrary and in addition to any other right under this Purchase Agreement, Buyer may terminate this Purchase Agreement immediately by written notice to Seller upon the occurrence of any of the following events:

a)       Seller is in material breach of the Purchase Agreement and has not remedied such breach to the reasonable satisfaction of Buyer within a reasonable period of notice of the breach;

b)      if Seller has breached, or Buyer reasonably believes that Seller has breached, any provision pertaining to clause 6, including the release, disclosure or misuse of confidential information;

c)       Seller (1) is dissolved or otherwise ceases to exist, (2) is unable to pay all or a substantial portion of its debts as and when these fall due, (3) unless part of a bona fide solvent reconstruction, has an administrator, liquidator, receiver or other similar person appointed in respect of it or its affairs or enters into any composition or arrangement with all or a substantial number of its creditors in respect of all or a substantial portion of its debts, or puts a formal proposal to such creditors for such a composition or arrangement;

d)      Seller transfers, assigns or novates any interest in this Purchase Agreement (or attempts to do so) without the prior written consent of Buyer;

e)       if Seller sells its business, either through a stock or equity ownership transfer or through a sale of substantially all its assets, to a third party, or the Seller is the subject of a Change in Control.

7.3   Termination of the Purchase Agreement shall not affect the rights and liabilities of either party accruing prior to the date of termination.

7.4   On termination of the Purchase Agreement, Seller must return all Confidential Information to Buyer.

7.5   If Buyer terminates any other agreement with Seller, Buyer may also terminate this Purchase Agreement by notice to Seller.

7.6   Clauses 4, 6, 7, 8, 12, 13, 14, 19 and 20 of these PO Terms (and such other clauses as are necessary to give effect to those clauses) shall survive termination of the Purchase Agreement.

8. Liability

Seller indemnifies Buyer, its Affiliates, each of their respective directors, officers, employees, agents and contractors against any loss or damage suffered or incurred by any of them in relation to:

(a)     a material breach of the Purchase Agreement by Seller;

(b)     any claim by a third party that the Goods or Services infringe Intellectual Property Rights or the Seller otherwise does not have any right, title or interest as required to deliver the Goods or Services under this Purchase Agreement;

(c)     any negligence, wilful default, fraud or dishonesty of Seller, its Affiliates or any of their respective directors, officers, employees, agents or contractors,

except to the extent such loss or damage arises as a result of Buyer’s breach of the Purchase Agreement or the Buyer’s negligence, wilful default, fraud or dishonesty.

9. Services

9.1   Where there is any ambiguity in the scope of Services, Buyer is entitled to direct Seller as to the performance of Services.

9.2   Seller must provide all resources required for the proper performance of Services and Buyer is not obliged to provide any resources unless specifically agreed in the Purchase Order or thereafter.

10. Inspection, Testing & Acceptance

10.1 All Goods and Services shall be received subject to Buyer’s right of inspection and rejection within one month of delivery of the relevant Goods or Services in respect of non-latent defects. Defective or non-conforming Goods will be held on Seller’s instruction at Seller’s risk and, if Buyer so directs, will be returned at Seller’s expense. Payment for Goods or Services on orders prior to such inspection shall not constitute acceptance thereof and is without prejudice to any claim that Buyer may have against Seller.

10.2 Seller agrees to respond to all quality-related issues within two (2) business days of receipt of notification of a quality issue with suggestions on the course of action and next steps to resolve the issue.

10.3 Buyer may reject Goods or Services even after the one month period where there are latent defects in such Goods or Services and risk in such Goods or Services remains with Seller at all times.

11. Change of manufacturing process or discontinuation

Seller agrees to provide:

(a)     reasonable prior written notice to Buyer of any changes to the manufacturing process or manufacturing location of the Goods that materially affects the fit, form or function of the Goods; and

(b)     at least three (3) months prior written notice to Buyer before Seller discontinues production of any Goods, and Buyer is entitled to make a “final buy” of up to one year’s supply of such Goods within that period.

12.  Warranty & Return

12.1 Seller must replace defective or non-conforming Goods within the same period as the Delivery Period from the date of notice by Buyer requiring such replacement. If Seller is unable to complete replacement within such a period, Seller must give notice to Buyer immediately and Buyer may elect to require Seller to refund the Purchase Price instead within three (3) business days of notice by Buyer.

12.2 Unless otherwise stated in the Purchase Order, Seller warrants that:

(a)    Goods and the results of Services will be free from defects for a period of at least one (1) year from the date of delivery of the Goods or performance of the Services;

(b)   Goods are new and merchantable;

(c)    Good and the result of Services are fit for their fundamental purpose and any other purpose Buyer has communicated to Seller, produced with reasonable care and skill to the standard and quality communicated as requirements by the Buyer or otherwise reasonably required by Buyer;

(d)   Goods and the result of or materials used in Services, are of good quality, design, construction and workmanship, and conform strictly to the specifications, approved samples, industry standards and all other requirements communicated by the Buyer or otherwise reasonably required by Buyer.

13. Use of trademarks and trade names

13.1 Where Goods are purchased for resale, Seller grants to Buyer and its Affiliates a worldwide, royalty-free, non-exclusive and irrevocable license to use the Seller’s marks in connection with resale of such Goods.

13.2 Where Goods or Services are to be used as part of or with other goods or services manufactured or provided by Buyer, Buyer is not obliged to acknowledge Seller’s marks or Seller’s contribution.

14. Governing law and dispute resolution

14.1 These PO Terms shall be governed exclusively by the laws of the following jurisdiction depending on the Buyer’s address:

14.2 Any claim or dispute under the Purchase Agreement shall be resolved in the following way:

(a)     A party may make a claim by notice in writing to the other party setting out reasonable details of the claim or dispute;

(b)     On receipt of such notice, both parties must consult in good faith with a view to settling the claim or dispute;

(c)     If after good faith consultations for a period of at least sixty (60) business days, the parties have not reached an agreement on the settlement of such claim or dispute, each party may submit the dispute to the following dispute resolution forum depending on the Buyer’s address:

14.3 If parties elect to arbitrate, the arbitration shall be conducted in English and if the claim is for an amount of (i) more than US$5 million, three arbitrators shall be appointed, one appointed by Buyer, another by Seller and the last by the President of the arbitration Centre; or (ii) less than US$5 million, one arbitrator shall be appointed after nomination by Buyer and consultation with Seller, each party acting reasonably. Any award issued by the arbitrators shall be final and non-appealable for both parties and may be enforced in any court of competent jurisdiction, and each party agrees and consents to the exercise of jurisdiction over it by any such court. The parties shall bear the costs of such arbitration equally, and the prevailing party (as determined by the arbitrators) in any such arbitration or any judicial enforcement shall be entitled to its reasonable attorneys’ fees and costs in addition to any award ordered by the arbitrators.

14.4 The official text of the PO Terms and any notices given or accounts or statements required hereby shall be in English. In the event of any dispute concerning the construction or meaning of the Purchase Agreement, reference shall be made only to the Purchase Agreement as written in English and not to any other translation into any other language.

15. Severability

In the event that any provision(s) of the Purchase Agreement is held invalid or unenforceable by a court of competent jurisdiction or by any future legislative or administrative action, such holding or action shall not negate the validity or enforceability of any other provision in the Purchase Agreement.

16. Waiver

The failure to exercise or delay in exercising a right or remedy provided by the Purchase Agreement or by law does not impair or constitute a waiver of the right or remedy. No single or partial exercise of a right or remedy provided by the Purchase Agreement or by law prevents further exercise of the right or remedy or the exercise of another right or remedy.

17.  Notices

17.1 All notices and communications given by either party to the other must be in writing and in the English language, and must be either: (i) delivered personally, or (ii) sent by prepaid mail (and air mail if overseas)

17.2 A notice is deemed given if: (i) delivered personally, when left at the address referred to in the Purchase Order; (ii) sent by prepaid mail, except air mail, 2 business days after posting it; (iii) sent by air mail, 6 business days after posting it.

17.3 Seller agrees to receive electronic notices from Buyer, which will be sent by email to Seller at the email address specified in the Purchase Order or Buyer reasonably believes it may use to contact Seller or any other email provided to Buyer. An electronic notice is deemed given if delivery has been recorded by the sender’s email system (provided that the sender does not receive a delivery failure report).

18. General

18.1 Each party to the Purchase Agreement shall pay its own costs (including legal costs) relating to the negotiation, preparation and execution of the Purchase Agreement and each related document.

18.2 The Purchase Agreement constitutes the entire agreement between the parties to the Purchase Agreement in relation to the subject matter of the Purchase Order to which the Purchase Agreement relates and supersedes any previous agreements relating to it. To be clear, if Seller has supplied other goods and services to Buyer, this clause does not negate the agreement in relation those goods and services.

18.3 Seller may not transfer, assign or novate any of its rights or obligations under the Purchase Agreement without the prior written consent of Buyer. Buyer may transfer, assign or novate any of its rights or obligations under the Purchase Agreement to an Affiliate or to the purchaser of its business at any time by notice to Seller and Seller must sign all documents reasonably required by Buyer to perfect such transfer, assignment or novation

18.4 There are no third-party beneficiaries to the Purchase Agreement.

18.5 These PO Terms may be executed in any number of counterparts.

18.6 The Purchase Agreement is drawn up in the English language. If this Agreement is translated into another language, the English language text prevails.

18.7 A person signing the Purchase Agreement on behalf of a party warrants that he or she has authority to bind that party for that purpose.

19. Definitions

Unless the context provides otherwise, capitalized terms in these PO Terms have the following meaning:

Affiliate of a party means any person Controlling that party, Controlled by that party or under common Control with that party.

Buyer has the meaning given to the term in clause 1 and if the Purchase Order does not state a Helix or Embed entity, means Helix Leisure Pte. Ltd., a company incorporated in Singapore under company registration number 201412276M issued by the Singapore Accounting and Corporate Regulatory Authority with registered address at 1 Lorong 2 Toa Payoh, #02-03 Yellow Pages Building, Singapore 319637.

Business day means a day on which banks are open for business in the jurisdiction in which the Buyer is incorporated.

Change of Control means in relation to the Seller, a change in the direct or indirect Control of the Seller.

Confidential Information means: (a) the terms of the Purchase Agreement, (b) Buyer’s use of the Goods and Services and (c) any information provided by or on behalf of Buyer in relation to it, its business, customers, suppliers, employees or contractors, including its plans, in whatever form including information stored electronically, physically or extracted or referred to in reports, analyses or notes.

Control of a person means directly or indirectly (a) holding or having the power to direct the exercise of more than 50% of the voting securities of that person or (b) having the power to direct the management of that person.

Delivery Period has the meaning given to the term in clause 5.1.

Intellectual Property Rights means all intellectual property rights including business names, copyrights, patents, trademarks, service marks, trade names, designs, and similar industrial, commercial and intellectual property (whether registered or not and whether protected by statute or not and including formulae, recipes and know-how) and the right to have information kept confidential and all rights to use any of the foregoing.

Goods has the meaning given to the term in clause 1.

PO Terms has the meaning given to the term in clause 1.

Purchase Agreement has the meaning given to the term in clause 1.

Purchase Order means the document labelled as such and provided to the Seller by the Buyer other than draft or indicative purchase orders, and includes all documents or materials attached to it.

Purchase Price has the meaning given to the term in clause 2.1.

Seller has the meaning given to the term in clause 1.

Services has the meaning given to the term in clause 1.

20. Interpretation

Unless the context requires otherwise, the following rules of interpretation apply in these PO Terms:

a)       words importing the singular include the plural and vice versa;

b)      if a word or phrase is defined, cognate words and phrases have corresponding definitions;

c)       reference to any document includes the document as varied, amended or replaced and notwithstanding any change in the identity of the parties;

d)      headings are for convenience only and shall not affect the interpretation of a provision and reference to a Schedule is a reference to a Schedule of the Purchase Order;

e)       reference to ‘including’ and similar expressions are not words of limitation;

f)        reference to a person includes individuals, corporations, trusts, partnerships and any other entities;

g)      if Seller comprises more than one person, then each of them is jointly and severally liable for any obligations of Seller and may only exercise rights of Seller jointly.