SHIMANO (SINGAPORE) PTE. LTD.
PURCHASE ORDER GENERAL TERMS AND CONDITIONS
This Purchase Order General Terms and Conditions (hereinafter defined as the “GTC”), including the terms and conditions on the face of the Purchase Order delivered by Shimano (Singapore) Pte. Ltd. (“Shimano”) and all proposals, designs, plans and other documents specified by Shimano in such Purchase Order (hereinafter collectively defined as the “Contract”) shall govern all purchases made by Shimano from Supplier (as this party is defined or otherwise identified on the Purchase Order) of goods, products, or other equipment, including any software imbedded therein (the “Products”) and/or services (the “Services”) as such are more further described in the Contract. (Shimano and Supplier are together the “Parties,” and each a “Party” hereto.)
If there is any conflict or inconsistency between any provisions of this GTC, the applicable Specific Agreement/Contract and any other terms & conditions agreed between both Parties in writing, these documents shall be construed in the following order of precedence:
I. Purchase Order General Terms & Conditions.
II. The applicable Specific Agreement/Contract; and
III. Any other terms and conditions agreed between the parties in writing.
The supply of goods and services shall not be invoiced at a higher price than set out in the Purchase Order without the prior written consent of Shimano. The price is all inclusive which includes applicable taxes, freight, all packaging and handling, transportation and insurance unless explicitly indicated on the face of the Purchase Order or agreed to in writing by Shimano.
Supplier shall be responsible for any such taxes, fees, royalties, commissions and other accessory disbursements, other than applicable sales taxes, which shall be paid by Shimano. If Shimano is required to pay any taxes, fees, royalties, commissions and other accessory disbursements for which Supplier is responsible hereunder, Shimano shall be entitled to deduct such amounts from any amount payable to Supplier under the Contract. Supplier shall, at Shimano’s request, cooperate with Shimano and the appropriate tax authorities in obtaining any tax refunds for the account of Shimano.
3. Packing/Packaging and Transportation
All Goods delivered to Shimano shall be packed/packaged in accordance with applicable laws, rules and regulations and with instructions or specifications in this Contract or referred to the drawings or specifications for the Goods. In the absence of any such instructions or specifications on packing/ packaging, Supplier shall
I. Comply with the best commercial practice to ensure safe arrival of Goods to destination,
II. Comply with carrier regulations and
III. Secure the lowest possible transportation costs.
Where Shimano is responsible for transportation, any extra transportation cost resulting from failure to comply with this section shall be charged to Supplier.
Products Warranty: Supplier warrants that all Products shall be:
I. Of merchantable quality;
II. New, unless otherwise provided for in the Purchase Order;
III. Free from defects in design, material and workmanships;
IV. Produced in accordance with the terms of the Contract and fit for the intended purposes;
V. Strictly conform to the specifications, drawings, samples, or other descriptions furnished; and
VI. Comply with all applicable laws, ordinances and governmental rules, regulations and requirements.
where the materials to be used are not specified, the materials used must meet the highest standard of quality.
Services Warranty: Supplier shall perform all Services:
I. Complying with all applicable laws, ordinances and governmental rules, regulations and requirements;
II. In a professional, workmanlike and timely manner, consistent with industry standards and qualifications necessary to carry out the Services; and
III. Exercising the degree of professionalism, skill, diligence, care, prudence, judgment and integrity which would be expected from a skilled and experienced supplier that provides similar Services.
All Products will be subject to inspection and approval by Shimano. Final inspection is performed when the Products are delivered to Shimano’s specified destination. If the Products are rejected, they will be held for disposition at Supplier’s risk and expense and any payment on account thereof shall be promptly refunded by Supplier.
Supplier may be given a reasonable opportunity to correct defects after the receipt of such Products by Shimano, but only in the case that remediation can be made within a reasonable period of time. If such remediation (repair, replacement or re-performance) is insufficient in Shimano’s sole discretion, any cost incurred by Shimano shall be refunded to Shimano. Such remedies are without prejudice to any other remedy that may be available to Shimano under this Contract or applicable laws.
5. Delivery Schedule
Supplier shall meet the delivery date stated in the Purchase Order. In the event that Supplier reasonably believes that the delivery of Products or performance of Services pursuant to this Contract may be delayed, Supplier shall immediately inform Shimano of any such delay and shall submit recovery plans to meet Shimano’s requirements. Supplier shall bear any loss, damages, expenses incurred as a result of delay in delivery.
Delivery shall be in strict accordance with contract terms. Unless specifically agreed to and stated in writing, Supplier shall not withhold delivery of whole or part of products or services pending payment by Shimano. Such actions shall be deemed a breach of Supplier's duty to deliver. For the avoidance of doubt, ownership of and title to the products passes to Shimano upon delivery.
6. Changes to Quantity or Scope
Supplier should provide the quantity of Products ordered or the scope of Services required pursuant to this Contract. No change in quantity or scope is allowed without Shimano’s prior written permission.
Shimano reserves the right to cancel or change (modified or revised) the Purchase Order by written notice to Supplier and Supplier should use its best endeavours to accommodate Shimano’s requests.
Change(s) can be of any one or more of the following:
I. Specifications, drawings and incorporated data (including the scope of Services to be provided),
II. Quantity desired,
III. Methods of transportation or requirements for packing/packaging,
IV. Place of delivery of the Products or performance of the Services,
V. Date of delivery of the Products or performance of the Services,
VI. Or any other matters affecting this Contract.
7. Payment Terms
Payment terms shall be made at the end of the following month in which the Goods are received or Services are rendered, and the invoice is received.
Supplier must accept the abovementioned payment terms, or the payment terms mutually agreed in writing by both parties upon the acceptance of Purchase Order.
8. Intellectual Property
All intellectual property rights, including trade secrets and other unregistered intellectual property rights, in the Products delivered or Services performed will become the property of Shimano upon delivery, subject only to full and final payment of the undisputed amounts owed in accordance with the terms of this Contract.
To the extent that the performance of the obligations by Supplier under this Contract requires the use of or reliance on:
I. Concepts, know-how, ideas, knowledge, methodologies, pro forma documents, templates and techniques developed by Supplier, other than the Products or other deliverables relating to the performance of the Services; or
II. The intellectual property rights of Supplier in products, equipment, software and documentation used by Supplier to perform its obligations hereunder (collectively, the “Pre-Existing IP”),
then as part of the consideration payable under this Contract to Supplier, Supplier hereby provides Shimano with a royalty-free, perpetual, non-exclusive, assignable license to use Supplier’s Pre-Existing IP for the purpose of Shimano’s use, amendment, improvement, upgrade or maintenance of the Products or of the deliverables relating to the performance of the Services.
9. Intellectual Property Indemnity
Supplier shall notify Shimano if Supplier has or acquires knowledge of any Intellectual Property rights pursuant to which a suit for alleged infringement thereof can reasonably be brought in connection with the Services rendered or the Products delivered pursuant to this Contract.
Supplier shall defend, indemnify and hold Shimano harmless at Supplier's expense against all actions, claims, demands, damages, losses, liabilities, costs (including legal costs on an indemnity basis) and expenses, suffered or incurred by Shimano, its related corporations, subsidiaries, affiliates, successors, assigns and their respective employees, officers and directors, or other Suppliers as a result of or in connection with an infringement claim of any third party intellectual property rights. Supplier shall also pay and save Shimano free and harmless from damages or other sums awarded or assessed in any such action or suit. No compromise or settlement directly or indirectly affecting Shimano’s operations may be agreed to without Shimano’s prior written consent, which will not be unreasonably withheld.
If the Products, or any component part furnished hereunder, are held to infringe, or their use is enjoined, Supplier shall, promptly at Supplier’s expense: procure for the benefit of Shimano and its successors and assigns, the right to continue using the Products; replace the Products with a substantially equivalent non-infringing product; or modify the Products so they become non-infringing with substantially equivalent performance. Supplier's obligations must be performed in such a manner so as not to interfere with Shimano’s operations as determined in Shimano’s sole discretion. Should Supplier fail to comply with the above within the time period set out by Shimano, Shimano reserves its right to return the infringing Products to Supplier at Supplier’s expense, in which case Supplier shall refund the purchase price to Shimano within fourteen (14) days from the delivery of the infringing Products.
10. Force Majeure
Neither Party shall be liable to the other for any failure in the fulfilment of any of its obligations under this Agreement due to Force Majeure event that is beyond reasonable control. Failure or inability to make payment shall never be Force Majeure.
11. Independent Contractor and Non-Exclusivity
Supplier is an independent contractor, and Supplier’s employees and any approved subcontractors shall at all times be under Supplier’s supervision, direction and control. Supplier and Supplier’s supervisors, may receive instructions from Shimano and Shimano’s representative as to the end results to be accomplished, and Supplier shall be responsible for directing Supplier’s employees as to the means, manner and methods of performing its obligations hereunder. Compliance by Supplier or Supplier’s employees with engineering instructions, safety practices, maintenance instructions, or change orders issued by Shimano or Shimano’s representative shall not affect Supplier’s status as an independent contractor, and shall not relieve Supplier from Supplier’s obligations under this Contract. Supplier’s employees are not entitled to workers’ compensation benefits from Shimano.
This is a non-exclusive relationship and Shimano has the right to purchase similar Products or Services from other suppliers.
12. Compliance with Applicable Laws and Shimano’s Policies
Supplier warrants that the Products sold or Services furnished hereunder have been and will be produced and furnished in full and complete compliance with all applicable laws and regulations, including but not limited to, environmental, health and safety laws and regulations, as well as requirements that chemical substances furnished hereunder be reported. Supplier will furnish to Shimano, upon Shimano’s request, all certificates and forms necessary in Shimano’s judgment to certify compliance with all such applicable environmental laws and regulations.
Supplier shall not disclose or leak to any person (other than to Supplier's employee who have reasonable need to know in connection with the performance of this Contract) or use directly or indirectly for its own or any other person's benefit other than for the due performance by it of its obligations under this Agreement, unless with Shimano's prior written consent.
Supplier shall safeguard and keep confidential any and all information relating to Shimano obtained by it or provided to it by Shimano in connection with this Contract, and shall use such information only for the purposes of carrying out its obligations under this Contract.
14. Governing Law
This Contract shall be construed in accordance with and be governed by the law of Republic of Singapore and both Parties submit to the exclusive jurisdiction of the Courts of the Republic of Singapore.
Notwithstanding the matters stated in item 14 hereinabove, the Supplier consents and submits to the jurisdiction of any court in which it has assets.
No waiver, amendments, changes or modifications of the provisions of this GTC shall be binding on either party unless in writing and signed by the Parties.
In contracts for multiple or recurring purchases, the waiver of Shimano's rights in any 1 purchase shall not be deemed to be a continuing waiver for all subsequent purchases unless expressly agreed to in writing by Shimano.
16. Term and Termination
This Contract shall continue for the time period stated on the Purchase Order, and if no term is stated, the Contract shall continue until the Products are delivered and accepted, or the Services are performed.
If Supplier violates any provisions of the Contract, Shimano have the right to terminate the Contract or any part thereof at any time, and shall not bear any liability or compensation for the termination of Contract.
In the event that the Supplier is involved in or subject to its own insolvency proceeding (by whatever name called), Shimano shall have the right to terminate the Contract or any part thereof.
Without Shimano’s prior written consent, Supplier shall not:
I. Advertise, promote, or publish the fact that Shimano has contracted to purchase, or requested the performance of Services, from Supplier;
II. Disclose information relating to the Contract (including the existence thereof);
III. Use the name or mark(s) of Shimano or any of its affiliates in advertising, press releases or any other publications or media.
The Parties hereto acknowledge and confirm that they have requested that this Contract and all notices and communications contemplated hereby be drafted in the English language.
In the event of any dispute, controversy or claim arising out of or relating to this Contract or the breach, termination or invalidity thereof ('the dispute"), arising between the two parties in connection with this Contract, the parties agree to meet in good faith to resolve the dispute before commencing any arbitration proceedings.
In the event of arbitration, there will be the appointment of a single arbitrator to be agreed between the parties, or failing agreement within fourteen (14) days, after either party has given to the other a written request to concur in the appointment of an arbitrator, by an arbitrator to be appointed by the Singapore International Arbitration Centre.
20. Limitation Period
The limitation period shall not begin to run until after Shimano has had a reasonable opportunity to inspect the goods Supplied which shall be deemed to be not earlier than 2 weeks after delivery of the goods to Shimano.