Application for Outward Bill Collection (DA/DP) - Terms and Conditions

Please take a moment to read through the Terms and Conditions.

1. It is understood and agreed that, having exercised due care in the selection of any correspondent bank (including a foreign branch or subsidiary of DBS Bank Ltd.) to whom the abovementioned documents may be sent for collection you shall not be responsible for any act, omission (including any failure to endorse, or re-endorse bills of lading), default, suspension, insolvency or bankruptcy of any such correspondent bank or agent thereof, or for any delay in remittance, loss in exchange or loss of any documents, item or their proceeds during transmission or in the course of collection. We further agree that any correspondent bank instructed to act on this Collection shall be our agent.
2. It is further understood and agreed that we will not hold you liable for the loss or destruction of the documents presented under this Collection during transit.
3. The Bill(s) of Exchange which we enclose in this Application (“Bill(s) of Exchange”) for financing and / or collection together with invoices, carriage documents, documents of title or other documents presenting or relating to the Goods (as defined below), and all other documents enclosed with this Application and the Goods represented thereby or to which the documents relate shall be pledged to you as continuing security for all sums in which we may from time to time be actually or contingently indebted or liable to you on any account. We agree to do such acts as may be necessary to perfect your security in the Goods. Without prejudice to your other rights herein, in the event that we are in default of payment of any amount due from us arising from this Collection or otherwise, you shall be entitled, without notice to ourselves, to sell the Goods or any part thereof by public auction or private contract (at your sole discretion) and apply the proceeds of sale in or towards payment of the amount(s) for which we are liable to you and if the proceeds are insufficient to settle an amount(s) due to you, we shall pay the amount of the deficiency forthwith upon your demand. The pledge conferred herein shall be in addition to and shall not be in any way prejudiced or affected by any collateral or other security now or hereafter held by you nor shall such collateral or other security or any lien to which you may be otherwise entitled or the liability of any person or persons nor parties hereto for all or any part of this indemnity be in any way prejudiced or affected by the pledge.
   
   For the purposes of these Terms and Conditions, “Goods” means any and all goods and any right, title or interest which we hold or acquire in such goods, in each case which are being sold, purchased and/or transferred pursuant to the documents presented under this Collection.
4. Unless otherwise agreed to in writing, we agree that (a) all financing is provided to us on a “with recourse” basis and (b) you will have full recourse to us, and we hereby undertake to provide you with funds:
   1. To meet on demand all Bills of Exchange negotiated or indorsed by you at our request which may be dishonoured on presentation for acceptance or which may not be paid on sight or on the due date thereof according to the original tenor.
   2. To reimburse you for all financing made against documents of title or other documents presenting or relating to the Goods which may not have been accepted and / or paid in accordance with the tenor of the collection bill.
   3. To meet re-exchange expenses and interest at the current prevailing rate for the respective currency as determined at your sole discretion from the date of the financing to us till the date you receive reimbursement.
   4. If collection charges are to be paid by:
      1. the Buyer/Drawee; or
      2. the collecting bank or any person(s) or entity(ies) that is or is deemed by applicable law to be subject to an obligation to pay the Bill of Exchange or against documents of title or other documents presenting or relating to the Goods whether as drawee and/or acceptor or otherwise, from time to time (collectively, the “Obligors” and each an “Obligor”),
      we undertake to pay you the same if the Buyer/Drawee or any Obligor fails to do so.
   5. (in the case only where the Financing Currency is different from the Bill Currency) to indemnify you in the event the Bill Currency proceeds received from the Buyer/Drawee and/or any Obligor under the Bill of Exchange at maturity cannot be converted and/or transferred, for any reason whatsoever (including, without limitation, due to law, regulation, governmental decree, administrative rule, guideline or directive), into the Financing Currency to repay the financing, discounting or negotiation of the Bill of Exchange effected by you together with interest thereon; or
   6. (in the case only where the Financing Currency is different from the Bill Currency) to indemnify you for any loss suffered by you as a result of foreign exchange rate movements between the Financing Currency and the Bill Currency from the time of your financing, discounting or negotiation of the Bill of Exchange to the maturity of the Bill of Exchange.
   Notwithstanding that you may agree in writing to provide financing to us on a “without recourse” basis pursuant to this Application, we agree that you will have recourse to us in accordance with the terms of this Application, including without limitation as provided under paragraph 15 below.
5. In the event:
   1. the Financing Currency is different from the Bill Currency; and
   2. we enter with you into any non-deliverable foreign exchange or foreign exchange derivative transaction to hedge against fluctuations in the relevant foreign exchange rate, currency convertibility and/or transferability risks in respect of the Bill of Exchange (a “Hedging Transaction”),
   we agree to indemnify you against, and pay you on demand any short-fall if the proceeds in the Bill Currency received from the Buyer/Drawee and/or any Obligor under the Bill of Exchange, after conversion into the Financing Currency at the exchange rate determined by you (if any), are less than the amount in the Financing Currency you would expect to receive to repay the financing, discounting or negotiation of the Bill of Exchange effected by you together with interest thereon, and we authorise you to debit any of our accounts with you for such short-fall.
6. Without prejudice to your rights conferred in the terms of this Application and in the event (i) the Financing Currency is different from the Bill Currency and (ii) you do not manage the relevant foreign exchange rate, currency convertibility and/or transferability risks on our behalf and (iii) you do not receive full repayment in the Financing Currency for your financing, discounting, or negotiation or any payment from the Buyer/Drawee and/or any Obligor due to the occurrence of any of the events in paragraph 4(e) above, then regardless of whether we have entered into a Hedging Transaction with you, we agree to pay you an amount in the Financing Currency you would expect to receive to repay the financing, discounting or negotiation of the Bill of Exchange effected by you together with interest thereon, and we authorise you to debit any of our accounts with you for such amount.
7. In case of dishonour of the Bill of Exchange or non-payment by the Buyer/Drawee or any Obligor under this Collection, the Goods may in your discretion (but not as part of your obligations including the obligation to procure the return of the Bill of Exchange and documents) or that of your correspondent or agent be landed cleared through the customs, warehouse and insured at our expense.
8. You are authorised at your absolute discretion:
   1. To insure the Goods in respect of which you hold documents against all risks and to add the premiums and expenses of such insurance to the amount chargeable to us.
   2. To exercise your right of recourse upon the Goods in priority to any other claims thereon and to sell such goods or part thereof as may be necessary for payment of freight, insurance, warehouse, dock and other charges, without prejudice to our duty to repay any outstanding amount due to you from such proceeds of sale.
   3. To land and store the Goods at any wharf or warehouse selected by you and/or reship the same to any other port.
   4. To accept full or proportionate payment before maturity from the Buyers/Drawees or any Obligor of any Bill of Exchange or otherwise, or the Consignees of the Goods, against delivery of the Goods (or a proportionate part thereof) and/or documents of title or other documents presenting or relating to the Goods.
   5. To debit our account with:
      1. all money due from us hereunder and/or under any Hedging Transaction;
      2. the amount of unaccepted or unpaid Bills of Exchange; or
      3. the amount of financing against documents of title or other documents presenting or relating to the Goods or any deficiency arising after realisation of any Goods for which we are liable to you.
9. Without prejudice to the other provisions of this Application, you may sell all or part of the Goods represented by the abovementioned documents or to which they relate in such manner (whether by public auction, private treaty or otherwise) as you think fit if any one of the following events occurs:
   1. (in the event that you have financed or agreed to finance this Collection) on default of acceptance on presentation or of payment on due date or at sight of any Bill of Exchange (depending on its tenor) or on default of payment of any other sums due hereunder on due date.
   2. (in the event that you have financed or agreed to finance this Collection) on the Buyer/Drawee, an Obligor, or Consignee of the Goods suspending payment, becoming bankrupt or insolvent, being put under receivership or taking any steps for liquidation or arrangement with creditors.
   3. (in the event that you have financed or agreed to finance this Collection) if and whenever you consider it desirable having regard to the market value of the Goods that the Goods should be sold whether or not any contingent or other liability of ours to you shall have actually matured.
   4. on our failure to repay on demand any payment made by you or other indebtedness of ours to you (whether or not connected with or arising from this Application) together with all interest, commissions and other charges in respect thereof.
   After deduction of any commission to which you are entitled and expenses incurred by the sale, you may apply the net proceeds in payment of such advances and/or Bills of Exchange and/or indebtedness or liability of ours to you, with interest, and re-exchange expenses. The balance, if any, is to be used at your option to discharge any other outstanding liability which we may have against you and subject thereto to be accounted for to us.
10. Should any claim arise under any insurance you are authorised to recover the full amount thereof and we agree to assign to you the policy or policies for that purpose. You may charge the same commission on the proceeds payable under such insurance as upon a sale of Goods and apply the proceeds in the manner provided above and/or to satisfy all sums, indebtedness, interest, charges, commissions and other sums due to you in connection with the abovementioned Collection.
11. Your holding additional securities and/or the receipt of Goods and/or documents by you shall not prejudice your rights on any Bill of Exchange or in respect of any payment obligation of the Buyer/Drawee or any Obligor in case of dishonour or non-payment nor shall any recourse or proceedings taken thereon. It is also agreed that your rights against us shall not be prejudiced owing to any such Bills of Exchange not having been noted and/or protested in the event of dishonour by non-acceptance and/or non-payment.
12. If there occurs in relation to the Collection an Extraordinary Event (as defined below), you shall have the sole discretion to receive payment under the Collection in any alternative currency at such exchange rate as you may determine in your discretion. Provided you undertake such action in good faith, any such action shall be binding on us who shall be liable for any additional loss, damages, costs, charges and/or expenses incurred by you. An “Extraordinary Event” shall mean any event which you believe to have a material adverse effect, including any form of exchange control restriction or requirement of whatsoever nature affecting the availability, convertibility, credit or transfers of currencies or funds, any form of debt or other moratorium on jurisdictions, individuals or entities, any devaluation, re-denomination or de-monetisation and/or any form of restriction or requirement which in your good faith opinion adversely alters or changes the rights or obligations which you undertook when you make an advance pursuant to our Application under this Collection.
13. We represent and warrant the following to you, on a continuing daily basis, with reference to the facts and circumstances then existing, that:
    1. we have not received any form of financing, discounting, negotiation or other accommodation in respect of this Collection from any other party;
    2. we have sole beneficial title to:
       1. the proceeds under the Collection and/or the Bills of Exchange; and
       2. the Bills of Exchange, invoices, carriage documents, documents of title or other documents presenting or relating to the Goods enclosed in this Application; and
    3. each of:
       1. the proceeds under the Collection and/or the Bills of Exchange; and
       2. the Bills of Exchange, invoices, carriage documents, documents of title or other documents presenting or relating to the Goods enclosed in this Application,
       are free from any security interest or encumbrance of any kind and we shall not at any time assign, transfer or create any security interest or encumbrance over it; and
    4. there is no dispute or potential dispute arising or which may arise under or in connection with the Bill of Exchange, documents of title or other documents presenting or relating to the Goods and/or the underlying contract of sale between us and the Buyer/Drawee that may compromise, reduce or extinguish our rights thereunder (including, the amount of receivables payable to us).
14. We further agree to and undertake the following:
    1. to indorse such Bills of Exchange enclosed in this Application in favour to you as you may direct or request;
    2. to meet all charges incurred by you or your correspondent or agent;
    3. to reimburse you for all interest incurred from the date of any payment by you to the date of the receipt of proceeds by you sufficient to cover the credit extended to us;
    4. not to hold you or your correspondent bank or agents liable in the event that the documents or some of the documents are lost, destroyed or delivered wrongly by the courier service company selected by you or wrongly delivered by the postal office;
    5. not to create any charge, mortgage, pledge, lien, encumbrance or any other security interest over all rights, interests, benefits, entitlements, debts, suits and choses in action as are due under or in connection with the underlying contract of sale between us and the Buyer/Drawee and/or Bill of Exchange, documents of title or other documents presenting or relating to the Goods;
    6. unless otherwise agreed to in writing, the financing is with recourse to us and we irrevocably and unconditionally undertake and agree to indemnify you, your successors and assigns in full and at all times to keep you, your successors and assigns fully and completely indemnified for any shortfall in the amount received by you under all circumstances (notwithstanding that all the terms and conditions may not have been complied with by you, or that you may not have complied with our instruction).
15. Where any financing is agreed to in writing to be provided on a "without recourse" basis:
    1. unless otherwise provided for in the terms of this Application, the financing remains with recourse to us and we irrevocably and unconditionally undertake and agree to indemnify you, your successors and assigns in full and at all times to keep you, your successors and assigns fully and completely indemnified for any shortfall in amount received by you, including (without limitation) where (I) there are disputes arising out of the underlying contract between the Buyer/Drawee and us or between us and any other related parties; (II) the Bills of Exchange, invoices, carriage documents, documents of title or other documents presenting or relating to the Goods enclosed in this Application (including any drafts) presented to you are subsequently found to be forged, antedated, falsified, irregular, amended without due authorisation (whether by you or some other party) or to contain fraudulent misrepresentation (whether or not to your knowledge) or if (III) an allegation (whether substantiated or otherwise) is made to such an effect and the Buyer/Drawee or an Obligor has refused to accept or pay the Bills of Exchange or otherwise in respect of its payment obligations, BUT PROVIDED THAT you will have no recourse to us in the event that you do not receive full payment in the event of dishonour by non-acceptance and/or non-payment of the Bill of Exchange or non- payment by any Obligor solely on one or more of the following grounds:
       1. the bankruptcy, insolvency, receivership or liquidation of the Buyer/Drawee or an Obligor, or the seizure of the whole or substantially the whole of the assets of the Buyer/Drawee or an Obligor;
       2. war, strikes, revolts, change of government or local government, riots, terrorist activity or civil unrest in the country where the Buyer/Drawee or an Obligor has its place of business; or
       3. (in the case only where the Bill Currency is the same as the Financing Currency) any form of exchange control restriction or requirement of whatsoever nature affecting the availability, convertibility, credit or transfers of currencies or funds, any form of debt or other moratorium on jurisdictions, individuals or entities, any devaluation, re- denomination or de-monetisation and/or any form of restriction or requirement to which the Buyer/Drawee or an Obligor is subject to, prohibiting the transfer, conversion or exchange by the Buyer/Drawee or an Obligor of the currency for the payment of the Bill of Exchange or otherwise in respect of its payment obligations,
          
          ((i) to (iii) collectively, the Non-Recourse Events and each a Non-Recourse Event) and the existence of an Non-Recourse Event shall be determined by you in your sole discretion; and
    2. for the avoidance of doubt, notwithstanding any other term of this Application, you shall always have full recourse to us where we have breached any term of this Application or any of the representations given under paragraph 13 herein were untrue at the time of such representation.
16. Unless otherwise expressly agreed in writing or unless otherwise provided herein this Collection is subject to the Uniforms Rules for Collections, ICC Publication No. 522 or any replacement thereof as may be in force at the time of this Application.
17. We agree to supply to you immediately upon your request all notices, documents, information and materials as may be reasonably requested by you from time to time, including without limitation such information under or in connection with the underlying contract of sale between us and the Buyer/Drawee, the Bill of Exchange, the documents of title or other documents presenting or relating to the Goods, an Extraordinary Event and/or a Non-Recourse Event.
18. We hereby irrevocably and unconditionally undertake and agree to indemnify you, your successors and assigns in full and at all times to keep you, your successors and assigns fully and completely indemnified from and against all liability, claims, demands, actions, proceedings, payments, losses and expenses whatsoever including but not limited to legal costs as between solicitor and own client which may be made or taken or incurred or suffered by you in connection with our Application herein, including (without limitation) any losses incurred as a result of any breach of our obligations or any misrepresentation.
19. Where there is any reference in this Application or any form, agreement and correspondence relating to this Application or any handling or processing of documents by you to finance this Collection and documents presented thereunder and/or any Bills of Exchange “subject to final receipt of fund” from the Buyer/Drawee or his banker or any Obligor, it is hereby agreed that such financing shall be conditional upon and subject to payment under the Collection/ documents presented thereunder/ Bills of Exchange from the Buyer/Drawee or his banker or any Obligor (as the case may be) and receipt by you of such payment. Without prejudice to the foregoing, where, for any reason whatsoever, whether with or without legal basis, payment of the proceeds under the Collection or Bills of Exchange is not received by you from or not made by the Buyer/Drawee or his banker or any Obligor as and when such payment is due or if one or more of the documents presented under the Collection is forged or contains any misrepresentation or false factual information known to us, any amount paid by you to us pursuant to such advance shall become immediately repayable to you by us and you shall have full recourse against us in respect of such payment as has been made to us earlier.
20. Without prejudice to the generality of the other terms and conditions herein, where financing is provided to us pursuant to this Application, we shall and do hereby assign unconditionally and irrevocably to you all rights, interests, benefits, entitlements, debts, suits and choses in action as are due under or in connection with the underlying contract of sale between us and the Buyer/Drawee and/or the Bill of Exchange, the documents of title or other documents presenting or relating to the Goods and we irrevocably authorise you to give notice of such assignment to the Buyer/Drawee and his banker, and such other relevant Obligor or counterparty.
21. We agree that you may commence any legal action or proceedings in our name if necessary and that we would provide you our full and diligent co-operation, including the execution of any documents, affidavits and powers of attorney, in any action or proceedings commenced (whether in our name or not) to enforce your rights against or obtain payment from the Buyer/Drawer, any Obligor or any other party.
22. For avoidance of doubt and subject to the proviso appearing below, it is the intention of the parties that any terms, interests, rights, benefits, defences, exemptions or limitations in this Application shall not be enforceable by a third party (save and except for a “third party” as defined below) pursuant to the Contracts (Rights of Third Parties) Act 2001 of Singapore (“the Act”), provided always that nothing herein operates to prevent or limit your right to assign, novate, otherwise confer any benefit or interest in favour of any other party, apart from the Act. The terms, interests, rights and benefits referred to above shall include but are not confined to any banking facilities, advances, loans, financing or any other form of financial accommodation that you provide or may provide under this Application.
    
    Provided always that it shall be the intention of the parties that all defences and limitations in this Application shall be enforceable by all of your subsidiaries (whether wholly or partly owned), parents, branches, any other bank within DBS Group Holdings Ltd, whether carrying on business in Singapore or not, your successors in title or assigns , entities into or with which you may merge or consolidate, any entities formed as a result of acquisition, involving you as well as your employees, sub-contractors and agents, all of whom or which shall be deemed as “third parties” for the purposes of the Contracts (Rights of Third Parties) Act 2001 of Singapore. For the purposes of this Act, consent of any of these third parties is not required for any variation, rescission or termination the terms of this Application.
23. We authorise you to debit any or all of our accounts with you by way of payment in advance of all costs, charges, commissions, expenses and liabilities which you, your agents or your correspondents may incur in relation to or in respect of the Collection. The aforesaid advance payment is an absolute and unconditional payment and you shall not be obliged, under any circumstances whatsoever, to refund the same to us. You shall be at liberty to utilize or otherwise deal with the advance payment in any manner as you deem fit and we confirm that we have no further title, interests, rights or benefits to the moneys comprising the advance payment. The abovementioned advance payment shall not discharge or otherwise affect any other claims for reimbursement, repayment, interest, expenses and/or costs that you have or will have against us in respect of any instrument which you have issued or will issue at our request, or in respect of any credit or banking facilities or other accommodation which you have granted or will grant to us.
24. Each indemnity contained herein shall: (a) constitute a separate and independent obligation and give rise to a separate and independent cause of action; (b) apply irrespective of any indulgence granted by you; (c) continue in full force and effect despite any judgment, order, claim or proof for a liquidated amount in respect of any loss or liability or any other judgment or order; and (d) apply whether or not any claim under it relates to any matter disclosed by us or otherwise known to you.
25. This Application shall be governed by and construed in accordance with the laws of Singapore. In the event of any proceedings or suits commenced against us arising out of or in connection with this Collection, we agree to submit to the non-exclusive jurisdiction of the Courts in Singapore, at your option, in respect of any disputes arising out of or in connection with the Collection. Without prejudice to the foregoing, we undertake not to commence proceedings or suits against you in the courts of any other jurisdiction. In the event of any proceedings or suits commenced by us against you, we agree that Singapore Courts shall have exclusive jurisdiction in respect of any disputes arising out of or in connection with the Collection. We agree to waive and do so waive any right vested on us by the laws of the jurisdiction in which we carry on business to challenge the validity or legality of any part of this provision.

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