1. General. Unless otherwise agreed in writing, the following terms and conditions of sale and delivery (“T&C”) shall apply to all services and deliveries of products (“Products”) from Akay Natural Ingredients Private Limited and/or any of its affiliated companies (“AKAY”) to the buyer (“Buyer”).
All terms and conditions of purchase or other terms and conditions which the Buyer seeks to impose or incorporate, and which are in conflict with these T&C, are superseded by these T&C, even if AKAY fails to object to said terms and conditions. AKAY reserves the right to change these T&C at any time for future orders of Products without notice to the Buyer.
2. Orders. No final agreement of sale and delivery between AKAY and the Buyer exists until AKAY has confirmed in writing the Buyer’s written or oral purchase order (“AKAY ’s Order Confirmation”). If any discrepancies occur in AKAY ’s Order Confirmation, the Buyer shall immediately notify AKAY hereof. Otherwise, AKAY ’s Order Confirmation shall be deemed accepted by the Buyer.
Purchase orders confirmed by AKAY cannot be cancelled or altered without the prior written consent of AKAY, and the Buyer shall indemnify AKAY for any loss in connection with any cancellation or alteration of confirmed purchase orders.
3. Delivery/Passing of Risk. Unless expressly stated otherwise in AKAY ’S Order Confirmation, delivery and passing of risk shall take place FCA (Incoterms 2020) upon delivery to first carrier. Buyer shall pay all costs related to the delivery including without limita-tion freight related costs such as postage, packaging, carriage, freight, and handling charges, any customs, import or other duties charged and an administration fee unless otherwise specified in a separate writing from AKAY ’s authorized representative.
AKAY ’s Order Confirmation includes an expected delivery date which is an estimated delivery date only and non-binding on AKAY. AKAY may make partial deliveries at AKAY’s sole discretion; all such deliveries shall be paid separately when due. Delay in delivery of any instalment shall not relieve Buyer of its obligations to accept remaining deliveries.
Buyer's exclusive remedy for delays, and for AKAY 's delay or inability to deliver shall be rescission of the Order Confirmation. Claims for shortages or other errors in delivery must be made in writing to AKAY within five (5) calendar days after Buyer’s receipt of delivery; failure to give such notice shall constitute acceptance and a waiver of all such claims by Buyer. Claims for damage in transit shall be made only against the carrier.
Except as set out above, AKAY shall not incur any liability for any losses or damages resulting from any delay in delivery irrespective of the cause hereof.
4. Prices. All prices are quoted FCA Incoterms 2020 and exclusive of any duties, insurance, VAT, transportation, taxes and any other costs. The Buyer shall pay all invoices without any deductions or withholdings.
The price indicated on AKAY ’s Order confirmation shall be considered to be the price agreed between the parties for that specific order. In case of multiple or future deliveries, prices are subject to revision at AKAY’s sole discretion at any time.
5. Payment. Terms of payment shall be fifteen (15) calendar days from invoice date. If the Buyer fails to make payment by the due date, interest at the rate of 2% per month shall be charged on the overdue amount from the due date. The Buyer shall pay the interest together with the overdue amount. Buyer shall pay all legal costs and expenses, including attorneys’ fees incurred by AKAY in connection with AKAY ’s collection of Buyer’s account.
The Buyer shall not be entitled to withhold any payment in relation to any amount claimed from AKAY.
AKAY is entitled to suspend its performance and withhold any future deliveries until all debts due to AKAY are settled in full. AKAY reserves the proprietary rights to the Products until AKAY has received payment in full.
6. Use of the Products. Buyer is responsible and liable for (i) determining whether the Products are suitable for Buyer’s intended use, (ii) correct storage, treatment, use and/or resale of Products for any purpose after AKAY’s delivery, (iii) obtaining any neces-sary governmental registrations and approvals for Buyer’s production, marketing, sale, use and/or transportation of Products or of finished goods using or incorporating the Products, and (iv) compliance with all applicable laws, statutes and regulations of any relevant governmental or other authority related to the use of the Products.
If AKAY becomes aware that the Buyer’s use of the Products – in the sole discretion of AKAY – is contrary to precautions and other information provided by AKAY or is otherwise potentially hazardous, unsafe or contrary to applicable laws and regulations, AKAY may, in addition to any other available remedies, immediately discontinue delivery of the Products.
As to any advice or assistance provided by AKAY to Buyer AKAY makes no warranty, express or implied, as to its accuracy or com-pleteness, or the results to be obtained from such advice or assistance.
7. Specifications and claims. At the time of delivery and subject to clause 6 above, the Products will comply in all material aspects with AKAY’s specifications for the Products applicable at the time of shipment.
Immediately upon receipt of delivery, the Buyer shall examine the Products in order to make sure that the delivered Products are free from any visual external defects or shortcomings in quantity, and make sure that the Products comply with the specifications for the Products. Any claims as to any visual external defect, non-conformity or shortcomings in quantity shall be made in writing to AKAY within five (5) days after delivery. In the absence of any such notice, the Buyer shall be deemed to have accepted the deliv-ery. Any claims as to latent defects or non-conformity of the delivered Products shall be made in writing to AKAY immediately after the Buyer has discovered or ought to have discovered the defect or non-conformity.
Claims concerning defects that could not be discovered within the above time limit despite accurate inspection of the goods must be made in writing and received by AKAY within the earlier of (i) expiration of the Products’ shelf life as defined by AKAY, or (ii) six (6) months after delivery of the Products to the Buyer. Failure of Buyer to give notice of any claim within the applicable time period specified above shall be deemed an absolute and unconditional waiver for such claim. In case of duly proven defective Products, AKAY shall, at its choice, either replace or repair at its own cost such defective goods or refund the Buyer the price paid.
8. Limited warranties. AKAY solely warrants that at the time of shipment (i) AKAY has the title to the Products, (ii) the Products are free from any third party liens or encumbrances, and (iii) to the knowledge AKAY the Products sold do not infringe third party intellectual property rights at the time of delivery.
AKAY PROVIDES NO ADDITIONAL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WHICH EXTEND BEYOND THE WARRANTIES SET FORTH IN THIS CLAUSE 8. WITHOUT LIMITING THE FOREGOING, THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE.
9. Limitation of liability. In addition to the limitations set out elsewhere in these T&C, AKAY’s liability with respect to the delivered Products is further limited as outlined below in this clause 9.
AKAY’S AGGREGATE LIABILITY FOR ALL LOSSES, CLAIMS, DAMAGES, PENALTIES, COSTS AND OTHER LIABILITIES ARISING FROM OR RELATED IN ANY WAY TO THE PRODUCTS AND/OR THESE T&C IS EXPRESSLY LIMITED TO THE PURCHASE PRICE OF THE QUANTITY OF PRODUCTS IN RESPECT OF WHICH ANY CLAIM IS MADE.
IN NO EVENT SHALL AKAY BE LIABLE FOR ANY LOSS OF TIME, LOSS OF PRODUCTION, LOSS OF REVENUE OR PROFITS (PROJECTED OR ACTUAL), LOSS OF COST SAVINGS, LOSS OF GOODWILL, BRAND VALUE OR REPUTATION, OR ANY LOSS RESULTING FROM THE BUYER INCURRING ANY COSTS AND EXPENSES RELATED TO A RECALL NOT ORDERED BY A GOVERNMENTAL AUTHORITY OR DUE TO SAFETY REASONS. IN ADDITION, AKAY SHALL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAM-AGE, IRRESPECTIVE OF WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR IN CONTEMPLATION OF THE PARTIES, AND WHETH-ER ARISING IN OR CAUSED BY BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, INDEMNITY OR OTHERWISE.
The limitation of AKAY’s liability shall not apply where AKAY has acted fraudulently, or in the event of AKAY’s willful misconduct or gross negligence. Further, to the extent that limitation of AKAY’s liability is prohibited by applicable law, in particular according to mandatory liability under product liability acts, the liability shall only be limited to the extent legally permitted under applicable law.
As far as AKAY's liability is excluded or limited, this shall also apply to the personal liability of AKAY's staff, employees, officers, directors, associates, agents, contractors, subcontractors, affiliated companies and other persons assigned by AKAY to perform its obligations.
10. Indemnification. To the maximum extent allowed by law, Buyer shall defend and indemnify AKAY, its successors, assigns, offic-ers, employees and agents against all sums, costs, liabilities, losses, obligations, suits, actions, damages, penalties, fines, interest and other expenses (including attorneys’ fees) that AKAY may incur or be obligated to pay as a result of (i) Buyer’s negligence or Buyer’s use, ownership, maintenance, transfer, resale, transportation or disposal of any Products, including without limiting by listing, third party claims arising from Buyer’s negligence or use, ownership, maintenance, transfer, resale, transportation or disposal of such Products; (ii) any infringement or alleged infringement of the industrial or intellectual property rights of others arising from AKAY’s use of any trademarks or brand names specified or approved by Buyer or AKAY’s manufacture of Products in accordance with Buyer’s specifications; (iii) Buyer’s violation or alleged violation of any laws or regulations, including without limitation, the laws and regulations governing product safety, labelling, packaging and labor practices; and (iv) Buyer’s breach of its obligations under these T&C’s. AKAY’s remedies hereunder are cumulative and in addition to those provided by law.
Should any third party raise a claim against one of the parties in relation to the Products, the party against whom the claim is raised shall immediately inform the other party of such claim.
11. Force Majeure. AKAY shall not be liable for any non-performance if (i) the non-performance is due to circumstances beyond AKAY’s reasonable control, and (ii) AKAY cannot reasonably be expected to have taken these circumstances into consideration at the time of AKAY’s Order Confirmation or have prevented the consequences thereof. Furthermore, AKAY shall not be liable for any non-performance if AKAY’s suppliers cannot perform due to circumstances described in this clause 11. Such circumstances include, but are not limited to, labor disputes, explosions, fire, natural disasters such as drought and flooding, epidemics, shortage in availa-ble raw materials or other production materials, pandemics, government interventions, armed conflict, cyberattacks and re-strictions imposed by authorities such as imposition of sanctions, export controls or embargo and theft. AKAY shall notify the Buyer in writing of the cause of the non-performance and the expected duration of the circumstances.
12. Confidentiality. For a period of 5 years from disclosure, Buyer shall keep strictly secret and not disclose to any third party any individual purchase order or AKAY’s Order Confirmation hereof, and all related commercial and technical information, including but not limited to Product prices (“Confidential Information”) received in the course of purchases from AKAY, nor make use of this Confidential Information to the Buyer's own advantage.
13. Assignment. Neither party may assign any rights and obligations under these T&C’s in whole or in part without the prior written consent of the other party. However, AKAY may assign the rights and obligations under these T&C’s to a present or future company belonging to the group of companies of which AKAY is a part or in the event of a sale of all or substantially all of the assets of the AKAY business to which these T&C’s are directed without the prior notice to and consent of the Buyer.
14. Severability. If any of the provisions, or parts thereof, in these T&C’s are held to be invalid, illegal or unenforceable, such provi-sions, or parts thereof, shall be deemed not to form part of these T&C’s and shall not affect the remaining provisions. In the event of any material part of these T&C’s should be held invalid, illegal or unenforceable, the parties shall in good faith negotiate a solution by which the original intentions of the parties are honored to the largest extent legally possible.
15. Law and arbitration. All services and deliveries of Products by AKAY under these T&C’s shall be governed by the laws of Singa-pore without reference to any choice of law provisions thereof. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these T&C’s and the parties’ related rights and obligations.
Any disputes between AKAY and Buyer shall be referred to and finally resolved by arbitration in Singapore in accordance with Arbitration Rules of the Singapore International Arbitration Centre (SIAC Rules) in force at the time of the notice for Arbitration, which Rules are deemed to be incorporated by reference in this clause. The Tribunal shall consist of three members unless other-wise agreed by the Parties. The proceedings shall be conducted in English and all documents shall be in the English language. Not-withstanding the above, AKAY reserves the right to refer any matter regarding payment for the Products to a relevant court having jurisdiction of such cases in the country where the Buyer is domiciled or registered.