1. OVERVIEW OF TERMS
When Customer issues a purchase order (“PO”) to MTM Industrial Limited (from now on called NiTHO) and/or any of its affiliates (“NiTHO affiliates”) for goods/services at the price stated in the PO, Customer agrees that NiTHO will deliver the goods/services on the terms set out herein (“Terms”). A binding contract is formed between Customer and NiTHO when NiTHO acknowledges receipt of the PO in writing to Customer.
Terms of Payment. Prices specified in the PO shall be construed in accordance with the Incoterms® 2010 as set out in Clause 3. NiTHO will issue a separate invoice for each PO when the goods/services have been delivered. Payment for each invoice shall be made no later than the due date set out in the applicable invoice. All payments are not subject to deduction for or on account of any GST or VAT, levies, and surcharges. Where Customer is required by law to make any such deduction.
Packing. All shipments shall be packed in a manner that, in NiTHO’s sole discretion, will provide efficient handling and reduce the possibility of damage. Delivery. Unless otherwise agreed between NiTHO and Customer, NiTHO shall deliver all goods to Customer on an FCA basis under Incoterms® 2010. The title and all risks of loss of or damage to the goods shall be borne by Customer upon delivery to Customer or the freight forwarder at the relevant location. Warranty. All goods/services of NiTHO are provided “as-is” and NiTHO disclaims any and all warranties, express, implied or statutory, including, without limitation, any warranty of fitness for any particular purpose or non-infringement. Inspection. The customer is advised to inspect the delivered goods immediately upon receipt.
NiTHO reserves the right to cancel any PO or any part thereof (even after such PO has been confirmed by NiTHO) without liability or compensation to Customer: (a) for breach by Customer of any provision of these Terms (as may be amended or revised); (b) on bankruptcy or insolvency of Customer; or (c) where any Force Majeure Event continues for more than 30 consecutive days. Customer shall not be entitled to cancel or amend any PO once the PO has been confirmed by NiTHO. In the event of cancellation (howsoever occasioned), NiTHO shall be entitled to receive payment for services that have been performed as at the date of cancellation.
Customer agrees that all drawings, technical information, reports, and all documentation created by NiTHO pursuant to the work done under the PO shall be NiTHO’s sole property, and Customer further agrees that all information provided by NiTHO to Customer, and all information becoming known to Customer concerning NiTHO’s intellectual property and any other information affecting the business operations of NiTHO (collectively, “NiTHO’s Proprietary Information”) shall be maintained in confidence by Customer and shall not be revealed in any manner to any party, or used by Customer without first obtaining NiTHO’s written consent, thereto, except for the internal business purposes of Customer that are being addressed by the goods/services of NiTHO being provided under the PO; provided however, that the provisions of this clause as they relate to the confidentiality shall not apply to information which was known to Customer at the time NiTHO’s information was obtained directly or indirectly from the NiTHO or which is lawfully acquired by Customer from a third party or which becomes published or otherwise in the public domain other than by Customer’s breach of these Terms. Customer shall be fully responsible for all NiTHO’s Proprietary Information in Customer’s possession and Customer shall promptly upon completion of the fulfillment of the PO, or on demand, return or destroy all documents including all copies thereof containing such NiTHO’s Proprietary Information to NiTHO.
6. LIMITATION OF LIABILITY AND INDEMNITY
Limitation of Liability. NiTHO’s liability whether in contract, tort or otherwise for any loss, damage or injury arising directly or indirectly from any defect or error in the goods/services or any breach of NiTHO’s obligations herein shall not exceed the amount equivalent to the price at which the goods/services are supplied to Customer. Indemnity. Customer will indemnify, defend, and hold harmless NiTHO, its directors, officers, employees, suppliers, and sub-contractors against all claims, costs, and damages (including legal fees and costs) arising directly or indirectly out of any claim of product liability, personal injury, or death associated with the goods/services of NiTHO, notwithstanding any claim that NiTHO, its directors, officers, employees, suppliers, and sub-contractors were negligent regarding the provision of the goods/services.
Assignment. Customer may not assign its rights or obligations under the PO and the Terms unless the written approval of NiTHO has been obtained, such approval not to be unreasonably withheld or denied. NiTHO shall be entitled to assign its right or obligations under the PO to any of its affiliates upon providing Customer with prior written notice of such assignment. Compliance with Laws. The parties shall abide with all applicable law in performing their obligations under the PO and the Terms. Entire Agreement. If a sales agreement or any other definitive agreement has been put in place between NiTHO and the Customer, the same shall prevail over the Terms in the event of any inconsistency. In the absence of the same, the PO constitutes the entire agreement between the parties as to its subject matter and supersedes all prior representations and agreements in connection with that subject matter. The Terms may be amended or varied by NiTHO at any time in writing. Force Majeure. A “Force Majeure Event” means any event out NiTHO’s reasonable control (including but not limited to acts or omissions of another party, natural disasters, war, or strikes). If a Force Majeure Event prevents NiTHO from partially or wholly complying with its obligations under the PO then as soon as reasonably practicable after such event arises, NiTHO must notify the Customer of the event and NiTHO’s obligations shall be suspended for the duration of such event. Governing Law and Jurisdiction. The PO and the Terms are governed by the laws of the Popular Republic of China. All disputes arising out of or in connection with the PO and the Terms shall be referred to arbitration in China, in Chinese, in accordance with the rules of the Chinese International Arbitration Centre for the time being in force, which rules are deemed to be incorporated by reference into the Terms. All legal costs of the winning party shall be borne by the losing party on a full indemnity basis. The parties agree to the arbitration proceedings, and the terms of any ensuing arbitral award shall be kept confidential. The parties may only commence legal action in the Courts of Singapore (which shall have non-exclusive jurisdiction) if the dispute cannot be resolved through arbitration. Set-off. Customer shall not apply any set-off to any sums payable to NiTHO without the prior written agreement of NiTHO. Severability. If any clause herein is determined as void or unenforceable, such clause shall be deemed to be deleted from the Terms and the remaining clauses shall continue in full force and effect. Third Party Rights. Unless otherwise stated herein, the Terms do not create or confer any rights or benefits enforceable by a person not a party to the Terms. Waiver. The failure of a party to insist on the exercise of its right, power, or privilege under the PO is not a waiver thereof and shall not preclude any future or further exercise thereof.
This Terms and Conditions policy was last updated on 30 January 2019.