1. General

1.1 All orders for products (“Products”) accepted by Franklin Baker Company (“FBC”) shall be subject to these terms and conditions of sale (“Conditions”). Once an order has been submitted, the person submitting it (“Customer”) agrees to the Conditions stated here.

1.2 No other terms of sale will apply to the supply of Products by FBC unless agreed upon in writing by an authorized signatory of FBC.

1.3 FBC reserves the right to amend these Conditions at any time. FBC will give notice of any such amendments by posting it on FBC’s website. The amended Conditions will take effect on the date of posting on the website. The amended Conditions shall apply to all transactions concluded between Customer and FBC after the date of such notification.

1.4 These Conditions, as may be amended from time to time by FBC, constitute the entire agreement of the parties. All prior communications, representations, understandings, agreements shall be deemed cancelled and superseded.

2. Ordering

2.1 Unless stated otherwise by FBC, quotations made by FBC in whatever form are not binding and merely constitute an invitation to Customer to place an order. All quotations issued by FBC are subject to change without notice.

2.2 Purchase Orders issued by the Customer are not binding on FBC until accepted by the latter in writing. FBC reserves the right to proceed or not to proceed with the transaction depending on the status of Customer’s credit check.

2.3 All information submitted to FBC or its agent must be accurate and up to date. Customer must inform FBC of any changes relevant to it.

2.4 The Customer may not cancel orders once accepted by FBC. FBC may allow an order to be cancelled at its discretion, without prejudice to its right to recover the costs it incurred.

2.5 If any mistakes have been made on Customer’s order, it must inform FBC immediately. However, FBC cannot guarantee that it will be able to amend Customer’s order in accordance with its instructions.

2.6 A sales contract may consist of several deliveries. Any failure on the part of FBC to complete any deliver within the stipulated time shall have no consequences on other deliveries within the same contract or on any other contract.

3. Prices

3.1 Prices of FBC’s Products shall be in accordance with the internationally accepted INCOTERMS standard definitions as shall be agreed upon by both parties. Any amount of any taxes levied in connection with the sale of Products to Customer shall be for Customer’s account. Unless otherwise stated by FBC, all charges for sales to customers outside the Philippines are payable in US Dollars unless indicated otherwise.

4. Payment and Customer’s Credit

4.1 In the absence of any written agreement to the contrary, payment shall be made by:

a. telegraphic transfer with all bank charges borne by the Customer and within the period specified in the invoice; or

b. letter of credit  issued or a confirmed letter of credit from a first class international reputable bank  acceptable to FBC in currency stated in FBC’s sales contract or sales confirmation; or

c. For sales to Philippine customers, a check drawn from a reputable bank in the Philippines.

d. or any other payment instrument accepted by FBC.

4.2 FBC has full discretion to grant and rescind credit lines to its customers.   If FBC has not been granted credit to the Customer, payment must be made in advance and received by FBC prior to delivery.

4.3 If credit has been granted, the credit term shall be stated in the invoice.   FBC has full discretionary to rescind credit terms to its customers at any time.

4.4 All payments must be made without any set-off, deduction or counterclaim. If any withholding tax is to be deducted from the payment, the Customer must issue a creditable withholding tax certificate to FBC together with the payment.

4.5 If any sum is not paid on the due date for payment:

a. FBC may charge the Customer interest calculated on the unpaid amount and accrued during the period from the due date until payment is made in full (whether before or after judgment) at the interbank offered rate as issued by a commercial bank to FBC + 1% per month;

b. FBC may charge the Customer any legal fees, costs, charges and expenses incurred if FBC is unable to retrieve the unpaid amount and is forced to file a case in court;

c. suspend delivery of the Products under the order and any other contract for as long as the default continues; and

d. terminate the current contract and any other contract pursuant to clause 11.

5. Delivery

5.1 FBC aims to deliver the order at the place of delivery given by the Customer and within the time agreed upon in writing.

5.2 FBC shall not be liable to Customer for any losses, liabilities, costs, damages, charges or expenses arising out of late delivery.

5.3 Where the Products are to be delivered by installments over a period, the installments will be reasonably apportioned at FBC’s sole discretion taking into account, so far as is reasonably practicable, delivery dates requested by the Customer. Each installment shall constitute a separate contract. In any event FBC may at its option elect to effect partial delivery of any Products unless otherwise specifically agreed upon with the Customer.

5.4 If the Customer refuses to accept the delivery of the Products or give FBC adequate delivery instructions, FBC may at its own discretion and without prejudice to any of its other rights or remedies:

a. effect delivery of the Products by whatever means it thinks most appropriate at the Customer’s risk and expense; or

b. arrange storage of the Products at the Customer’s risk and expense; or

c. treat the contract as repudiated after notifying the Customer in writing.

5.5 Upon receiving the order/s, Customer will be required to sign for its delivery. Once signed, Customer is deemed to have inspected the package for any faults, defects, or damages.

6. Transfer of Risk and Property

6.1 Unless otherwise stated herein or as may otherwise be agreed upon with the Customer, risk of loss of or damage to the Products shall pass to the Customer at the agreed upon delivery point. Title over the Products shall not pass to the Customer until all sums due from the Customer for the Products ordered have been received by FBC. FBC shall be entitled to the immediate return of all Products if the Customer is in delay in payment. The Customer authorizes FBC and its agents to enter its premises and to recover the Products for that purpose.

7. Warranty

7.1 FBC warrants that the Products shall conform to the specifications as stated in its quotation. If the Products are in breach of such warranty, FBC may at its own option and within a reasonable time either replace the Products at no charge to Customer, or issue a credit for any such Products in the amount of the original invoice price. FBC’s obligation shall be limited solely to replace the Products, or to provide credit therefor.

7.2 FBC’s obligation to replace, or give credit shall be contingent upon receipt by FBC of timely notice of any alleged defect in the Product or upon timely return of the Products, and in each case after FBC has determined the defect is attributable to the fault or gross negligence of FBC. The disposition of defective products will be undertaken by the Customer in accordance with the instructions of FBC.

7.3 The remedies set out above shall be the Customer’s sole remedy for any breach of warranty. Save as expressly provided in these terms and conditions, all implied warranties, terms and conditions concerning the supply of Products are excluded to the fullest extent permitted by law (including, without limitation, the implied terms of satisfactory quality, merchantable quality, and fitness for purpose). FBC will not be liable to the Customer for any loss, damage or liability which arise out of the breach of implied warranties, terms or conditions or breach of any other duty of any kind imposed on FBC by operation of law or for any negligence.

8. Limited liability

8.1 FBC’s liability for any and all claims arising out of or in connection with the Products shall be limited to direct damages to the Customer and shall not exceed the sales value of the defective batch of the Product supplied to Customer.

9. Force Majeure

9.1 Force majeure is any event beyond the reasonable control of FBC (including without limitation strikes, traffic congestion, the downtime of any external line, or FBC’s inability to procure services, materials or articles required for the performance of the contract except at enhanced prices). If FBC is prevented or restricted from carrying out all or any of its obligations by reason of any force majeure, then FBC shall be relieved of its obligations during the period that such event continues, and shall not be liable for any delay and/or failure in the performance of its obligations during such period. If the force majeure continues for a period longer than thirty (30) days, FBC may cancel the affected order or cancel the whole or any part of these terms and conditions, without any liability to the Customer.

10. Independent Contractors

10.1 Customer shall not have authority to act as agent of FBC. It cannot act on behalf of, represent, or bind FBC in any manner.

11. Suspension and Termination

11.1 If Customer defaults in the performance of its obligations towards FBC whether under the subject Purchase Order or under any other contract or Purchase Order between FBC and the Customer, or if Customer becomes insolvent or otherwise unable to pay its debts as they mature, FBC may, by notice in writing:

a. demand the return of any delivered Products which have not been paid, with all costs relating to the recovery of the Products shall be for the account of the Customer; and/or

b. suspend the performance of its obligation until Customer makes such payment for the Products on a cash advance basis, or provides adequate guaranty for such payment; and/or

c. terminate any, some or all outstanding contracts which may be effected, at FBC’s option, by written notice to the Customer.

11.2 In any event, all outstanding claims of FBC against the Customer shall become immediately due without need for demand.

12. Waiver

12.1 Failure of FBC to enforce any of the provisions of the Conditions shall not be construed as a waiver of FBC’s right to enforce any of its rights hereunder. No waiver by FBC of any breach of Customer’s obligations shall constitute a waiver of any other prior or subsequent breach.

13. Severability

13.1 If any term or other provision of these Conditions is determined to be invalid, illegal or incapable of being enforced by any rule or law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party.

14. Governing Law

14.1 The parties’ rights and obligations arising out of or in connection with the Purchase Order, contracts and/or Conditions shall be governed, construed, interpreted and enforced according to the laws of the Philippines.

14.2 In the event of any dispute concerning these Conditions or the Products sold hereunder, suit may be brought only in a court of competent jurisdiction in Makati City, Philippines to the exclusion of all other courts and venue.

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