STANDARD TERMS AND CONDITIONS OF SALE
SESTO Robotics Pte. Ltd. (“SESTO“) and the individual or corporate entity identified on the price list or quotation or sales confirmation or delivery order or invoice to which these Standard Term and Conditions of Sale are attached (“Buyer“) hereby agree to the following terms and conditions (these “Conditions“):
1.1. In these Conditions, the terms shall have the following definitions:
“Affiliates” means in relation to any person or entity, any other person or entity that directly or indirectly through one or more intermediaries controls or is controlled by, or is under common control with, that first-mentioned person and where such person is an individual, the expression “Affiliate” shall include the spouse, children, siblings and parents of such individual.
“Agreed Delivery Date” means the mutually agreed date of delivery of Deliverables and/or Services.
“Applicable Law” means the relevant applicable Singapore laws governing the Contract.
“Background IP” means all knowledge and expertise including but not limited to calculation procedures, data, models, software, know-how, inventions, operation and design know-how or other Intellectual Property rights existing prior to the date of this Contract which SESTO and/or its Affiliates bring to bear or provide in the course of carrying out or supplying the Services, whether or not contained in Documents or other materials, and whether or not in the public domain but not including common knowledge in the field in which the Services are provided at the time the Contract is executed.
“Business Days” means a day on which commercial banks are open for business in Singapore (excluding Saturdays, Sundays and public holidays).
“Buyer” means the individual or corporate entity who accepts a price list, quotation or sales confirmation from SESTO for the sale of Deliverables and/or provision of Services, or whose order for purchase of Deliverables and/or Services is accepted by SESTO by way of an invoice, sales confirmation or delivery order.
“Condition” means a term or condition of these Conditions.
“Confidentiality Agreement” means the confidentiality and/or non-disclosure agreement (if any) entered into between the parties;
“Confidential Information” means any technical or commercial information, drawings, technology, designs, manuals, photographs, reports, documentation, customer lists, marketing studies, notes, memoranda and the information contained therein, any information therein in respect of trade secrets, technology and technical or other information relation to the development, manufacture, testing, analysis, sale or supply of the Deliverables and/or Services, and any correspondence pertaining to the Deliverables and/or Services which are proprietary and/or confidential either marked or indicated to be confidential or by its nature intended to be confidential) to SESTO and the Buyer, whether communicated orally, in writing or through electronic transmission means.
“Contract” means the contract entered into between the Buyer and SESTO, pursuant to a price list, quotation, sales confirmation, delivery order and/or invoice, upon the terms of these Conditions and the Confidentiality Agreement (if any).
“Contract Price” means the final price of the Deliverables and/or Services (inclusive of Taxes, custom duties, taxes, withholding taxes and other government assessments payable, where applicable) pursuant to the Contract entered into between the Buyer and Seller.
“Default Interest Rate” means the prevailing average prime lending rate from time to time quoted by DBS Bank Ltd, United Overseas Bank Ltd and Overseas-Chinese Banking Corporation Ltd.
“Deliverable” means any Document, product, good, parts, material, facility, machinery or accessory which SESTO is to supply and/or perform the Services on (as the case may be), in accordance with the quotation, sales confirmation, delivery order or invoice, pursuant to these Conditions.
“Duly Authorised Officer” means the Chief Executive Officer and the Chief Operating Officer or such other officer as may be determined by SESTO from time to time.
“Document” includes, in addition to a document in writing, any map, plan, graph, drawing or photograph, any film, negative, tape, software, CAD data, CAD software, electronic transmission, algorithm, model or other device embodying visual images and any disc, tape or other device embodying any other data;
“Ex Works” means “Ex Works (… named place)” as defined in the Incoterms.
“Force Majeure” means, in relation to either Party, any acts, events, omissions, accidents or circumstances beyond the reasonable control of that Party (“Force Majeure Event“) including, without limitation, any of the following: acts of God, including fire, flood, earthquake, windstorm or other natural disaster; war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions; terrorist attack, civil war, civil commotion or riots, nuclear, chemical or biological contamination or sonic boom; fire, explosion or accidental damage; loss at sea; collapse of building structures, failure of plant machinery, machinery, computers or vehicles strikes, lockouts or other form of industrial action, national emergency or governmental restrictions.
“SESTO’s Premises” means SESTO’s registered office at 6 Penjuru Close, Singapore 608614 or such other premises as SESTO may indicate to the Buyer in writing.
“Incoterms” means the set of pre-defined commercial terms published by the International Chamber of Commerce to assist with the interpretation of trading terms as in force at the time of contract.
“Input Material” means any Documents or other materials, any data or other information to be provided by or required to be provided by the Buyer in order for SESTO to perform the Services under the Contract.
“Intellectual Property” means all existing, contingent and future intellectual property rights of whatever nature throughout the world including all rights conferred under any law, whether registered or unregistered and whether registrable or not, including but not limited to patents, trademarks, service marks, design rights, database rights, know how rights, goodwill, get up, logos, devices, plans, models, data, diagrams, specifications, source and object code materials, data and processes, design rights, trade or business name rights, rights in confidential information, copyright, rights to sue for passing off, and applications or rights to apply for, or renew the registration of, any of the foregoing.
“Payment Schedule” has the meaning ascribed to it in Condition 8.1.
“Services” means the services provided by SESTO pursuant to the Contract for the preparation of the Documents, the delivery, installation, maintenance and/or upkeep (as the case may be) of the Deliverables, or such other services which the Buyer agrees to take from SESTO
“SGD” and the symbol “S$” mean the lawful currency of Singapore.
“Tax” and “Taxes” mean all forms of taxation, including without limitation, income tax, stamp duty, custom and other import or export duties, value-added tax (including goods and services tax), withholding tax, corporate tax and levies and all penalties, charges, costs and interest relating to any such taxation.
“Terms and Conditions” means these Standard Terms and Conditions herein attached to a quotation, price list, confirmation, delivery order or invoice.
1.2. Any reference in these Conditions to “writing” or cognate expression includes a reference to telex, cable, facsimile transmission or comparable means of communication and includes any means of visible reproduction.
1.3. Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as
amended, re-enacted or extended at the relevant time.
1.4. References to a statutory provision include any subsidiary legislation made from time to time under that provision.
1.5. The headings in these Conditions are for convenience only and shall not affect its interpretation.
1.6. Unless the context otherwise requires or permits, references to the singular number shall include references to the plural number and vice versa; references to natural persons shall include bodies corporate and vice versa; and words denoting any gender shall include all genders.
1.7. Any words following the terms “including”, “include”, “in particular” or any similar expression shall not be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms. And “otherwise” shall not be construed as limited by words with which it is associated.
1.8. A reference to the Contract, Confidentiality Agreement or to any other Agreement or document referred to in these Conditions Agreement is a reference to these Conditions or such other Agreement or document as varied or novated (in each case, other than in breach of the provisions of this Agreement) from time to time.
1.9. Any reference to a time of day is a reference to Singapore time. Any reference to a day, month or year is a reference to a calendar day, month and year respectively.
1.10. In the event of any inconsistency between the various documents forming the Contract, these Conditions shall prevail except in the case of any express terms stated by a Duly Authorised Officer of SESTO in a price list, quotation, sales confirmation, delivery order or invoice.
1.11. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions but, if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
1.12. SESTO may correct any typographical, clerical or other error or omission in any price list, quotation, sales confirmation, delivery order, invoice or other document or information issued by SESTO without incurring any liability on its part.
2. CONDITIONS APPLICABLE
2.1. THESE CONDITIONS SHALL APPLY TO ALL CONTRACTS FOR PROVISION OF ANY DELIVERABLES AND/OR PROVISION OF SERVICES BY SESTO TO THE BUYER TO THE EXCLUSION OF ALL OTHER TERMS AND CONDITIONS INCLUDING ANY TERMS AND CONDITIONS WHICH THE BUYER MAY PURPORT TO APPLY UNDER ANY PURCHASE ORDER, CONFIRMATION OR OTHER DOCUMENT.
2.2. ALL ORDERS FOR DELIVERABLES AND/OR SERVICES SHALL BE DEEMED TO BE AN OFFER BY THE BUYER TO PURCHASE THE DELIVERABLES AND/OR THE SERVICES PURSUANT TO THESE CONDITIONS.
2.3. ACCEPTANCE OF DELIVERY OF THE DELIVERABLES SHALL BE DEEMED EXCLUSIVE EVIDENCE OF THE BUYER’S ACCEPTANCE OF THESE CONDITIONS.
2.4. ANY VARIATION TO THESE CONDITIONS (INCLUDING ANY SPECIAL TERMS AND CONDITIONS AGREED BETWEEN THE BUYER AND SELLER) SHALL BE INAPPLICABLE UNLESS AGREED IN WRITING BY A DULY AUTHORISED OFFICER OF SESTO. NO OTHER ACTION ON PART OF SESTO SHALL BE CONSTRUED AS AN ACCEPTANCE OF ANY OF THE BUYER’S CONDITIONS.
2.5. NO OTHER EMPLOYEE, REPRESENTATIVE OR AGENT OF SESTO HAS ANY AUTHORITY TO AMEND, MODIFY OR VARY THESE CONDITIONS OR TO MAKE ANY REPRESENTATIONS CONCERNING ANY OF THESE CONDITIONS.
2.6. ALL ORDERS FOR DELIVERABLES AND/OR SERVICES SHALL BE NOT DEEMED ACCEPTED UNLESS CONFIRMED IN WRITING BY A DULY AUTHORISED OFFICER OF SESTO.
3.1. The quantity, quality and description of and any specification for the Deliverables and/or the scope of work in relation to the Services shall be those set out in SESTO’s price list, quotation, sales confirmation, delivery order or invoice (as the case may be).
3.2. The Buyer shall submit to SESTO, within such reasonable time as SESTO may require, such arrangement for, and details regarding, the Deliverables and/or the Services (including but not limited to the Input Material) as the Buyer may require prior to the commencement of the engineering of the Deliverables or the provision of the Services (as the case may be, and at such time to be mutually agreed between the Parties).
3.3. If the Deliverables are to be manufactured or any process is to be applied to the Deliverables or if any form of the Services is to be performed by SESTO in accordance with a specification submitted by the Buyer, the Buyer shall indemnify SESTO against all losses, damages, costs and expenses awarded against or incurred by SESTO in connection with any claim for infringement of any Intellectual Property rights of any other person which results from SESTO’s manufacture or application of Deliverables and/or performance of such Services in accordance with the Buyer’s specification.
3.4. Unless otherwise specified in writing, any orders submitted by the Buyer to SESTO pursuant to this Contract, shall be open for acceptance for a period of thirty (30) days from the date of the Contract. SESTO may withdraw the Contract at any time
prior to acceptance without giving any reason whatsoever. Should the Buyer request to vary any of the terms of the Contract, SESTO shall be entitled to vary the terms of the Contract in accordance with Condition 4.
4. CHANGES TO ORDERS PLACED
4.1. Any changes requested and required by the Buyer affecting the Deliverables and/or Services may be accepted by SESTO at SESTO’s sole discretion and resulting adjustments to affected provisions including but not limited to, price, delivery, scope of work, work schedule or guarantees are to be mutually agreed in writing prior to the implementation of the change. SESTO shall effect any change described in detail on a written change order issued by the Buyer and accepted by SESTO.
4.2. SESTO may, at its own expense and in its sole discretion, make such changes to the Deliverables and/or Services as it deems necessary in order to meet any performance guarantees provided for in the price list, quotation, sales confirmation, delivery order or invoice. Should the Buyer refuse to accept any such changes, SESTO shall be relieved of its obligations to meet such guarantees to the extent to which SESTO may be affected by such refusal.
4.3. SESTO may at any time make changes to the Deliverables and/or Services which are necessary to comply with applicable safety requirements and the Applicable Law.
5.1. SESTO will perform the Services under the Contract subject to these Conditions using reasonable skill and care and in accordance with good consulting and/or engineering practice.
5.2. The extent and scope of the Services and any assumptions on which the Services are to be provided by SESTO to the Buyer shall be as detailed in the Contract. The Buyer acknowledges and agrees that it is its sole responsibility to ensure that the assumptions as set out in the Contract relating to the Services are accurate as of the date of the Contract and is to advise SESTO of any incorrect assumptions as set out in the Contract, prior to the commencement of the Services. In the event that any of the assumptions are incorrect, SESTO reserves the right to make such amendments to the Contract, in accordance with Condition 4 as it deems appropriate.
6. PRICE OF THE DELIVERABLES AND SERVICES
6.1. Unless otherwise stated, all prices quoted by SESTO on a quotation or price list, in respect of the Deliverables and/or Services are in Singapore Dollars (SGD or S$) and are valid for thirty (30) days only. SESTO reserves the right to amend the prices after thirty (30) days.
6.2. The quoted prices are exclusive of any present or future Taxes, customs duties, taxes, withholding taxes and other government assessments payable by any reason of the purchase of Deliverables. The Buyer shall be fully responsible for paying any and all such duties, taxes and assessments.
6.3. All prices quoted or proposed are exclusive of all expenses relating to special packaging or procedures required for the unique circumstances of storage and/or delivery and the Buyer shall be liable to pay all expenses related to the same, unless otherwise agreed in writing.
6.4. Except as otherwise stated under the terms of any quotation or in any price list of SESTO, and unless otherwise agreed in writing between the Buyer and SESTO, all prices are given by SESTO on an Ex Works basis and, where SESTO agrees to deliver the Deliverables and/or perform the Services otherwise than at SESTO’s Premises, the Buyer shall be liable to pay SESTO’s charges for administration, transport, packaging and insurance.
7. SESTO’S OBLIGATIONS
7.1. SESTO shall not be obliged to commence work in respect of the Deliverables and/or Services (as the case may be) until:
(a) the Contract has been entered into in written form between SESTO and the Buyer;
(b) SESTO has received the down-payment payable by the Buyer pursuant to the Contract (where applicable);
(c) in respect of Deliverables, the Buyer has submitted to SESTO, all details and Input Material required for the performance of its obligations under the Contract in accordance with Condition 3.2; or
(d) in respect of Services, the Buyer has submitted to SESTO, the Input Material as required for by SESTO in order to fulfil its performance obligations under the Contract.
8. PAYMENT TERMS
8.1. The Buyer shall pay the Contract Price in accordance with the following payment schedule, unless otherwise provided in the quotation, price list, sales confirmation, delivery order or invoice (“Payment Schedule“):
(a) Within 10 days upon confirmation of order by SESTO, 15% of the Contract Price;
(b) Within 10 days upon completion of main engineering phase, 20% of the Contract Price;
(c) Within 10 days of upon placement of procurement order for material, 30% of the Contract Price;
(d) Within 10 days upon completion of Deliverables, 25% of the Contract Price; and
(e) Within 10 days in advance of the Agreed Delivery Date, 10% of the Contract Price.
(a) Within 10 days upon confirmation of order by SESTO, 15% of the Contract Price;
(b) Within 10 days upon completion of main engineering phase, 20% of the Contract Price;
(c) Within 10 days of upon placement of procurement order for prototype material, 30% of the Contract Price;
(d) Within 10 days upon completion of working prototype, 25% of the Contract Price; and
(e) Within 10 days in advance of the Agreed Delivery Date, 10% of the Contract Price.
The Buyer shall pay the total proportion of the Contract Price at each stage within thirty (30) days from date of invoice issued and the time of payment of the Contract Price shall be of essence to the Contract.
8.2. Should the Buyer fail to comply with the payment schedule as set out in Condition 8.1, SESTO shall, without prejudice to any other right or remedy available to it, be entitled to:
(a) terminate the Contract;
(b) suspend the delivery or any further deliveries to the Buyer or the performance of the Services (whichever is applicable); and/or
(c) charge the Buyer interest (both before and after any judgment, order or award made by a Singapore court or any arbitral tribunal) on the amount unpaid, at the Default Interest Rate plus 8% per annum, charged on a daily basis (based on a 365-day year) until payment in full has been made.
8.3. The Contract Price quoted shall be exclusive of all taxes (where applicable), including but not limited to, import and export Taxes and duties including export and/or import duties which shall be solely borne by the Buyer.
8.4. The Contract Price shall include all disbursements including administrative charges including inter alia postage, telephone, fax and similar expenses together with all travel, accommodation and subsistence costs of SESTO’s personnel specifically identified as being part of the Contract Price in the Contract. All other costs and expenses not expressly identified in the Contract or these Conditions, including inter alia shipping, freight, packaging, transport, spare and replacement parts, equipment and materials, shall be invoiced separately by SESTO to the Buyer and shall include a handling charge of 10% on the aggregate of such costs and expenses. All travel and subsistence costs of the Buyer’s personnel are to be solely borne by the Buyer.
8.5. Payment shall be made direct to the SESTO’s bank account, the details of which shall be provided by SESTO.
8.6. If, by reason of any rise in costs beyond SESTO’s reasonable control (including, without limitation, the cost of materials, fuel, transport, shipping, insurance or the cost of complying with any statutory provision or order, regulation or bylaws) resulting in the cost of providing the Deliverables and/or Services by SESTO to increase, SESTO shall, in its sole discretion, be entitled to pass a fair and reasonable element of such increased costs on to the Buyer to be paid by the Buyer in addition to and with the Contract Price in accordance with this Condition 8.
9. INSPECTION, TESTING AND ACCEPTANCE
9.1. Prior to the Agreed Delivery Date, the Buyer shall conduct inspection and testing of Deliverables at SESTO’s Premises or at such other place as the parties may mutually agree. The Buyer shall schedule such inspection and testing of the Deliverables at least 10 days in advance and during normal office hours which shall be from 9 am to 5 pm, Mondays to Fridays, except Public Holidays.
9.2. Should the Buyer schedule the inspection and testing of Deliverables to take place after normal office hours, additional charges (which shall be as determined by SESTO) shall be imposed on the Buyer.
9.3. The Buyer shall be responsible for providing access to SESTO to the Buyer’s premises for the purposes of testing of Deliverables at the relevant site and for procuring all necessary resources (including but not limited to power, water, space, licences and permits) in order for such testing to be carried out at the relevant site.
9.4. Unless the Buyer objects in writing within 10 days of the inspection, testing and/or verification of the Deliverables, specifying the nature of his objections, successful completion of the testing at SESTO’s Premises prior to the Agreed Delivery Date constitutes the Buyer’s acceptance of the Deliverables and/or the Services.
9.5. In the event the Buyer does not carry out testing of the Deliverables within 10 days of the Agreed Delivery Date, the Buyer shall be deemed to have accepted the Deliverables and shall be liable to take delivery of the Deliverables on the Agreed Delivery Date or to have accepted the full and complete performance of the Services (as the case may be).
10. DELIVERY AND PERFORMANCE
10.1. In respect of the sale of Deliverables, any delivery dates quoted by SESTO in the quotation, sales confirmation, delivery order or invoice are approximate only and based upon information available to SESTO at the time of quotation.
10.2. In respect of the delivery of Services, SESTO shall use reasonable endeavours to meet the project milestones as mutually agreed between the parties in the Contract.
10.3. Notwithstanding Conditions 10.1 and 10.2, any delivery dates and project milestones shall be estimates only, the failure of which shall not constitute a breach of the Contract and/or these Conditions.
10.4. The delivery of the Deliverables to the Buyer shall be Ex Works at SESTO’s Premises or at such other place as the parties may mutually agree. SESTO shall inform the Buyer of the delivery date at least one (1) week in advance, and the Buyer shall arrange for the Deliverables to be collected on the Agreed Delivery Date.
10.5. If the Buyer fails to take delivery of the Deliverables on the Agreed Delivery Date, the Buyer shall nevertheless make payment to SESTO for the Deliverables as if the delivery had been made by SESTO on the Agreed Delivery Date or pay to SESTO interest on the portion of the Contract Price due on delivery at the aggregate rate of the Default Interest Rate plus 8% per annum, charged on a daily basis (based on a 365-day year) from the Agreed Delivery Date until payment is made in full. Without prejudice to any other rights or remedies available to SESTO, SESTO may:
(a) store the Deliverables until actual delivery and charge the Buyer for the costs (including insurance) of storage. The Buyer will be informed of these costs prior to storage of such Deliverables; and/or
(b) sell the Deliverables and (after deducting all reasonable storage and selling expenses) either account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract, as the case may be.
10.6. This Condition 10 shall also apply to the delivery of Deliverables after the performance of the Services on the Deliverables at SESTO’s Premises.
10.7. Any tests, designs, analysis, results, reports, prototypes, demonstration vehicles, parts or models delivered to the Buyer or issued to the Buyer in the provision of the Deliverables and/or performance of the Services are provided as-is, and do not constitute complete designs or production validation of any other process, procedure, method, tool, component, part, system or product. Unless expressly provided for under the Contract, SESTO assumes no liability or responsibility arising in connection with the incorporation of the Deliverables and/or the product of the Services into any other design, or the production validation of any other process, procedure, method, tool, component, part, system or product. The onus is on the Buyer to inspect the Deliverables or the product of the Service (as the case may be) as to whether the Deliverables or the product of the Service are fit for the Buyer’s use or purpose.
10.8. For the avoidance of doubt, time of delivery and time for performance by SESTO shall not be of the essence to the Contract.
11. BUYER’S OBLIGATIONS
11.1. The Buyer must co-operate with SESTO in all matters relating to the Services, including but not limited to:
(a) providing to SESTO, its agents, sub-contractors, consultants and employees, in a timely manner and at no charge, access to the Buyer’s premises, office accommodation, data, technical specifications, operating manuals, safety information in English and other facilities and training in the Buyer’s systems (including without limitation software, procedures, working methods and product introduction processes) as required by SESTO or its agents, sub-contractors, consultants and employees. Any training materials shall be given in English;
(b) where any of the Services are provided at the Buyer’s premises, informing SESTO of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Buyer’s premises;
(c) obtaining and maintaining all necessary licences and consents and comply with all relevant legislation in relation to the installation or use of the Buyer’s own Deliverables, in all cases before the date on which the Services are to start;
(d) providing to SESTO, at its own expense, all Input Material necessary for the provision of the Services by SESTO, in a timely manner, and such other information and/or material as may be requested by SESTO, which shall be accurate, in working order and free from defects of any kind;
(e) supplying and/or delivering spares and service replacements for any Input Material as required by SESTO free of all charges throughout the Services in a timely manner;
(f) ensuring that any Input Material supplied to SESTO for the performance of the Services complies with the requirements of Singapore Customs and Excise and any costs suffered or incurred by SESTO resulting from any non-compliance shall be borne by the Buyer accordingly;
(g) providing or procuring the provision of technical support in respect of any Input Material or components thereof from time to time as may be required in order for SESTO to provide the Services;
(h) ensuring the health and safety of SESTO’s agents, sub-contractors, consultants and employees during the performance of the Services on the Buyer’s premises, including but not limited to the use of the Buyer’s systems, equipment or Input Materials, regardless of whether the Services are performed at the Buyer’s premises; and
(i) promptly notifying SESTO of any risk, safety issues or incidents arising in respect of the Input Material or in any processes or systems used at the Buyer’s premises.
11.2. If SESTO’s performance of its obligations is prevented or delayed by any act or omission of the Buyer, its agents, sub-contractors, consultants or employees, SESTO shall not be liable for any costs, charges or losses sustained or incurred by the Buyer that arise directly or indirectly from such prevention or delay.
11.3. The Buyer shall be liable to pay to SESTO, on demand, all reasonable costs, charges or losses sustained or incurred by SESTO (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from the Buyer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to SESTO confirming such costs, charges and losses to the Buyer in writing.
11.4. The Buyer shall not, without the prior written consent of SESTO, at any time from the date of the Contract to the expiry of twelve (12) months after the last date of supply of the Services, solicit or entice away from SESTO or employ or attempt to employ any person who is, or has been, engaged as an employee of SESTO in the provision of the Services.
11.5. The Buyer hereby warrants that it is the owner of all the Intellectual Property rights arising from the Input Material, and SESTO’s use of the Input Material shall not be in infringement of any Intellectual Property rights belonging to third parties.
11.6. In the event of a breach of the warranty at Condition 11.5, SESTO shall be entitled, at its sole and absolute discretion and without prejudice to any other right or remedy it may have under the Contract and/or these Conditions or to suspend the provision of the Services without any further liability to the Buyer, to allow the Buyer a maximum of fourteen (14) days to:
(a) procure the right for SESTO to continue using the Input Material; or
(b) make such alterations, modifications, adjustments or substitution of such Input Material such that it does not infringe the Intellectual Property rights of third parties, without incurring a material diminution in performance or function of such Input Material which may affect the Buyer’s ability to perform the Services.
11.7. Should the performance of SESTO’s obligations be suspended or disrupted by Condition 11.6, the milestones as set out in the Contract shall be amended by mutual agreement accordingly, and the Buyer shall be additionally liable for any costs incurred by SESTO during such suspension and/or disruption. Should the Buyer be unable to rectify the infringement of any third parties’ Intellectual Property rights pursuant to Condition 11.6, SESTO shall be entitled to terminate the Contract in accordance with Condition 19.2.
12. PROJECT MANAGEMENT
12.1. SESTO shall appoint a Project Manager to manage the design, prototyping and/or manufacture of the Deliverables and/or provision of the Services (as the case may be) and liaise with the Buyer as necessary by appropriate means. The Buyer shall identify a representative to liaise with the Project Manager in respect of the foregoing. Any instruction given by the Buyer’s representative shall be deemed binding.
13. RISK AND PROPERTY
13.1. SESTO shall bear all risks of loss of or damage to the Deliverables before the delivery of the Deliverables on the Agreed Delivery Date.
13.2. Unless otherwise specified in the agreed delivery terms, risk of damage to or loss of the Deliverables shall pass to the Buyer in the case of the Deliverables to be delivered at SESTO’s Premises, at the time when the Deliverables are handed to the Buyer or its carrier.
13.3. Notwithstanding delivery and the passing of risk in the Deliverables, or any other provision of these Conditions, the title to and property in the Deliverables shall not pass to the Buyer until SESTO has received, in cash or cleared funds, payment in full of all amounts then due and owing from the Buyer to SESTO (including any interest payable under Condition 8.2.
13.4. Until title to the Deliverables has passed to the Buyer, the Buyer shall:
(a) hold the Deliverables on a fiduciary basis as SESTO’s bailee;
(b) store the Deliverables separately from all other goods held by the Buyer so that they remain readily identifiable as SESTO’s property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Deliverables;
(d) maintain the Deliverables in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(e) notify SESTO immediately if it becomes subject to any of the events listed in Condition 19.1; and
(f) give SESTO such information relating to Deliverables as SESTO may require from time to time, but the Buyer may resell or use the Deliverables in the ordinary course of its business.
13.5. If before title to the Deliverables passes to the Buyer the Buyer becomes subject to any of the events listed in Condition 19.1, or SESTO reasonably believes that any such event is about to happen and notifies the Buyer accordingly, then, provided that the Deliverables has not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy SESTO may have, SESTO may at any time require the Buyer to deliver up the Deliverables and, if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.
14. INTELLECTUAL PROPERTY RIGHTS
14.1. The Buyer acknowledges that SESTO is the sole owner throughout the world of any and all Intellectual Property in the Deliverables and/or Services provided under the Contract. SESTO and its Affiliates reserve all rights in all Intellectual Property, proprietary materials and Confidential Information supplied to the Buyer in connection with the Deliverables and/or Services under the Contract and no rights, title or interest therein are granted by or under, or to be implied from, the Contract. Without limitation to the generality of the foregoing, no licence is granted directly or indirectly under any Intellectual Property right now or in the future held, made, obtained or licensable by SESTO or its Affiliates, except as expressly provided by SESTO in the Contract or in these Conditions.
14.2. The Buyer hereby acknowledges that, during the performance of the Services, SESTO may use and/or apply the Buyer’s Intellectual Property. The Buyer shall not obtain or have any rights to Background IP or any development, modification, improvement or variation of the Buyer’s Intellectual Property thereafter developed or made by SESTO or on SESTO’s behalf or any representation of the same whether developed or made by SESTO or on its behalf in connection with the performance of the Services or otherwise. All title and rights to the Background IP and any development, modification, improvement or variation of the Buyer’s Intellectual Property made by SESTO or on its behalf, is the sole and exclusive property of SESTO.
14.3. The Buyer undertakes not to use any Intellectual Property rights that may be licensed to it by SESTO, other than within the scope and limits of these Conditions.
14.4. Any Input Material provided by the Buyer shall belong to the Buyer subject to SESTO’s right to use such Input Material as required for the performance of the Services and as otherwise provided for in the Contract and/or these Conditions.
14.5. In accordance with Condition 14.2 any inventions, designs and similar which SESTO may develop or create in connection with the Services shall belong to SESTO.
14.6. SESTO shall be entitled to use all Intellectual Property rights (including without limitation any patents) belonging to the Buyer for its own internal research and development work and for other work for the Buyer.
15.1. Unless otherwise specified in writing, all warranties in respect of the Deliverables shall be mutually agreed on a case-by-case basis in respect of each Contract.
15.2. The foregoing warranties shall not include costs of labour or travel time and expenses incurred for the performance of any warranty and any and all such costs shall be borne by the Buyer.
15.3. All warranties, conditions or other terms implied by statute or common law, including but not limited to, the implied warranties of merchantability and/or fitness for a particular purpose or arising from course of dealing or usage of trade are excluded.
15.4. SESTO shall not be held liable for any Deliverables damaged as a result of negligence, misuse, unauthorised tampering or modification to the Deliverables on the part of the Buyer or any person for whom the Buyer is responsible or to whom the Deliverables is ultimately delivered, or as a result of accidental damage after the acceptance of delivery by the Buyer.
16.1. The parties hereto undertake that it shall not at any time during the subsistence of the Contract and for a period of five (5) years after termination or expiration of the Contract, disclose to any person any Confidential Information (as herein defined), except as provided by Condition 16.2.
16.2. Condition 16.1 shall not prohibit disclosure or use of any Confidential Information if and to the extent:
(a) such disclosure is to that of a party’s employees, officers, representatives or advisers who need to know such information for the purpose of carrying out such party’s obligations under the Contract. Each party hereto shall ensure that each of its employees, officers, representatives or advisers to whom it discloses the other party’s Confidential Information complies with this Condition 16;
(b) as may be required by law, court order, any governmental or regulatory authority or the rules and regulations of any recognised stock exchange;
(c) such information is, at the time of disclosure hereunder, available from public sources;
(d) such information becomes, after the time of disclosure hereunder, available to the general public without the breach of the Contract, these Conditions and the Confidentiality Agreement (if any) or any other confidentiality or license agreement;
(e) such information is independently developed by the receiving party, without reference to any Confidential Information; or
(f) such information is legally obtained from a third party by the receiving party either before or after disclosure hereunder.
16.3. The Parties under these Conditions undertake:
(a) to use such Confidential Information provided to it by the other party only for the purposes contemplated in these Conditions;
(b) to keep confidential and not to reproduce, distribute or disclose any or all such Confidential Information provided to it by the other party as is not freely available to the public (including without limiting the generality thereof such information as either party may from time to time specifically designate as confidential) except to the extent that disclosure is required by law or by the rules of any stock exchange on which the shares of a party or its holding company are listed; and
(c) to return to the other party on termination of these Conditions all material embodying information designated by the other party as confidential and all copies thereof.
16.4. In the event of disclosure under Condition 16.2(b), the receiving party will provide the disclosing party with prior notice so that the disclosing party may seek a protective order or other appropriate remedy, and the receiving party shall exercise reasonable efforts to assist the disclosing party in obtaining such order or remedy (at the disclosing party’s cost).
16.5. All of the Confidential Information prepared by or belonging to each party in connection with these Conditions, shall be the exclusive property of such party, who shall own all Intellectual Property inherent in such Confidential Information and a
party’s Confidential Information may only be reviewed or used by the other party solely in connection with these Conditions and its obligations hereunder and for no other or extraneous purpose.
16.6. The parties hereto shall not make or issue any press release or other announcement or any other disclosure of any kind relating to these Conditions or the activities or transactions contemplated under the Contract to the public or to any third party without the written consent of the disclosing party.
16.7. Upon termination or expiration of the Contract, the Buyer shall cease all use of the Confidential Information and return all the relevant notes and materials pertaining to such Confidential Information to SESTO immediately.
16.8. This Condition 16 shall survive the termination or expiration of the Contract.
17. LIMITATION OF LIABILITY
17.1. Neither party shall be liable to the other party, whether in contract, under statute, tort (including negligence or breach of statutory duty) or howsoever otherwise arising and whatever the cause thereof, for any indirect, special or consequential loss or damage of any nature or kind, or for loss of profit, loss of revenue, loss of use, loss of data, loss of power, loss of production, costs of capital, costs of replacement power, or any economic or financial loss.
17.2. Notwithstanding anything contained in these Conditions or in the Contract, SESTO’s aggregate liability to the Buyer for all matters arising under or in connection with the Contract and/or the Deliverables, whether in contract, tort (including negligence), indemnity, warranty (except only warranty as to title) or representation shall be limited to (50%) of the Contract Price.
17.3. No officer or employee of SESTO shall be liable to the Buyer in any circumstances for any loss, expense or damage of any kind (direct, indirect, financial or consequential and whether arising from negligence or otherwise) arising from any act or omission of his during the performance of his employment or other duties.
17.4. For the avoidance of doubt, SESTO shall not be liable to the Buyer for any loss, expense or damage of any kind arising from (a) the Buyer’s use of the Deliverables outside of the scope contemplated under the Contract; and (b) the performance of any equipment or product in which the Deliverables is a component to or an ancillary part of such an equipment or product.
18. DELAYS AND FORCE MAJEURE
18.1. If either party is affected by a Force Majeure Event, the defaulting party shall not be in breach of these Conditions in respect of, or liable for, any failure or delay in performance of its obligations under these Conditions arising from or attributable to the Force Majeure Event.
18.2. A party that is subject to a Force Majeure Event shall not be in breach of these Conditions provided that:
(a) it promptly notifies the other party in writing of the nature and extent of the Force Majeure Event causing its failure or delay in performance;
(b) it could not have avoided the effect of the Force Majeure Event by taking precautions which, having regard to all the matters known to it before the Force Majeure Event, it ought reasonably to have taken, but did not; and
(c) it has used all reasonable endeavours to mitigate the effect of the Force Majeure Event to carry out its obligations under these Conditions in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.
18.3. If the Force Majeure Event continues for a continuous period in excess of six (6) months, the parties shall enter into bona fide discussions with a view to alleviating the effects of the Force Majeure Event, or alternatively either party may terminate the Contract and these Conditions by giving fourteen (14) days’ notice in writing to the other party. On the expiry of this notice period, the Contract and these Conditions shall terminate. This termination shall not affect the rights of the parties in respect of any breach of the Contract and these Conditions occurring before termination.
18.4. Nothing in this Condition 18 shall relieve the Buyer of its obligation to make payments when due.
19.1. Without prejudice to any rights or remedies available to it under the Contract or otherwise, SESTO shall be entitled, in its absolute discretion and upon giving to the Buyer written notice of its intention to do so, to terminate the Contract wholly or in part or to withhold or vary performance of all or any of its obligations under the Contract and, if any Deliverables has been delivered but not paid for, the price for such Deliverables shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary, if any one or more of the following events occur:
(a) the Buyer fails to observe or perform any of its obligations under this Contract and fails to remedy such breach (if remediable) within five (5) Business Days’ of SESTO’s notice to do so;
(b) the Buyer refuses to take delivery or collect any of the Deliverables in accordance with the terms of the Contract; or
(c) an encumbrancer takes possession of, or a trustee or administrative or other receiver or similar officer is appointed in respect of, all or any material part of the business or assets of the Buyer, or distress or any form of execution is levied or enforced upon or sued out against any such assets and is not discharged within seven days of being levied, enforced or sued out; or
(d) the Buyer makes any voluntary arrangement with its creditors or becomes subject to a judicial management order or goes into liquidation (otherwise than for the purposes or amalgamation or reconstruction); or
(e) the Buyer ceases, or threatens to cease, to carry on business; or
(f) SESTO reasonably determines that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
The Buyer shall notify SESTO forthwith of the happening of any of the events referred to in sub-paragraphs (a) to (e) (inclusive).
19.2. SESTO shall be entitled to exercise its rights of termination or suspension under Condition 19.1 at any time during which the event or default giving rise thereto shall not have ceased or been remedied. In the event of any such termination or suspension, SESTO shall be entitled to require, as a condition of resuming performance under the Contract, the prepayment by the Buyer of, or the provision by the Buyer of such security as it may stipulate for, the payment of any sum or sums due or to become due to it.
19.3. Upon termination of the Contract pursuant to Condition 19.1, the Buyer shall pay to SESTO the Contract Price in accordance with the following schedule unless otherwise stated in the quotation, sales confirmation, delivery order or invoice:
(a) Costs and expenses incurred by SESTO which are commensurate with the engineering stage of the Deliverables as at the date of termination;
(b) Committed costs incurred by SESTO as at the date of termination; and
(c) An estimation of the close-down expenses by SESTO.
100% of the Contract Price.
19.4. On termination of the Contract for any reason:
(a) SESTO shall be discharged from any further liability to perform under the Contract; and
(b) all Intellectual Property in any tests, designs, analysis, results, reports, prototypes, demonstration vehicles, parts or models delivered to the Buyer shall remain vested in SESTO and/or its Affiliates at all times. The Buyer shall immediately return all documents and materials containing the same or, if so required at SESTO’s request, to erase and destroy any and all material in any media containing the same (including any copies, analysis, memoranda or other notes made by the Buyer, its officers, employees, representatives, agents and/or consultants) and shall, in addition erase and remove any of the same stored within any computer or electronic information retrieval system whether or not in machine-readable form and certify in writing to SESTO that all such material has been erased, removed and destroyed.
19.5. The rights to terminate this Contract given by this Condition 19 shall not prejudice any other right or remedy of either party in respect of the breach concerned (if any) or any other breach.
19.6. Upon the termination of this Contract for any reason, subject as otherwise provided in this Contract and to any rights or obligations which have accrued prior to termination, neither party shall have any further obligation to the other under this Contract.
20. TAX LIABILITIES
20.1. The parties declare and confirm that it is the intention of the parties that each shall be responsible for all of its own income tax liabilities and insurance or similar contributions in respect of their profit and loss ledgers, and accordingly the parties hereby agree to indemnify each other in respect of any claims that may be made by the relevant authorities against the Buyer or SESTO, as the case may be, in respect of income tax, withholding tax, goods and services tax and/or any other similar contributions, taxes or levies, insurance and possible liabilities that may arise due to inadequate insurance by any party of its personnel, equipment, etc. under the Contract. Such tax liabilities, if any, shall be investigated by the respective parties.
21. GOVERNING LAW
21.1. The Contract and/or these Conditions shall be construed and interpreted in accordance with the laws of the Republic of Singapore.
22.1. For disputes involving Intellectual Property ownership and infringement, the Parties shall resolve such dispute by arbitration in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC”) for the time being in force, which rules are deemed to be incorporated by reference in this Condition. The seat of the arbitration shall be Singapore. The arbitration tribunal shall consist of one (1) arbitrator to be appointed by the President of the Court of Arbitration for the time being of the SIAC. The language of the arbitration shall be English.
22.2. For disputes which do not involve Intellectual Property ownership and infringement issues, the Parties shall first endeavour to resolve all disputes, controversies and/or any claims arising in connection with the Agreement within thirty (30) days upon receipt of any notice of dispute. Only in the event that the Parties fail to resolve any such disputes, controversies or claims, may they proceed to finally resolve such dispute by arbitration in accordance with Condition 22.1
23. ENTIRE AGREEMENT
23.1. The Contract and these Conditions constitutes the entire agreement between the parties and supersedes any prior agreement whether written or not made or contemplated between them.
24.1. Neither party hereto shall assign or transfer any of its rights and obligations under the Contract and/or these Conditions to any third party without the prior written consent of the other party.
25.1. The Contract and these Conditions may be modified or amended only by a written document signed by the respective authorised representatives of SESTO and the Buyer respectively.
26.1. No failure or delay by a party to exercise any right or remedy provided under the Contract and these Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
27.1. It is expressly agreed by the parties that they are entering into the Contract and these Conditions solely on their own behalf and not on behalf of any other person or entity.
27.2. A person who is not a party to the Contract and these Conditions shall have no rights under the Contracts (Rights of Third Parties) Act (Chapter 53B) of Singapore to enforce any of its terms.
27.3. If any of the provisions of the Contract and these Conditions is found by a court or other authority of competent jurisdiction to be void or unenforceable, it shall be deemed to be deleted from the Contract and/or these Conditions, as the case may be, and the remaining provisions shall continue to apply.
27.4. All notices, demands or other communications required or permitted to be given or made hereunder shall be in writing and delivered by hand, by courier or prepaid registered post, or by facsimile transmission or electronic mail addressed to the intended recipient thereof at its address, facsimile number or electronic mail address, and marked for the attention of such person (if any), designated by it to the other party for the purposes of the Contract and/or these Conditions or to such other address, facsimile number or electronic mail address, and marked for the attention of such person, as a Party may from time to time duly notify the other in writing. The initial addresses, facsimile numbers and electronic mail addresses of the parties for the purpose of the Contract and these Conditions shall be as specified in the Contract.
27.5. Any notice, demand or communication so served shall be deemed to have been duly given:
(a) in the case of delivery by hand or by courier, when delivered;
(b) in the case of facsimile transmission, immediately upon confirmation by a transmission report;
(c) in the case of electronic mail, at the time of its actual transmission provided that the sender does not receive any indication that the electronic mail message has not been successfully transmitted to the intended recipient or has been delayed; and
(d) in the case of post, on the second Business Day after the date of posting (if sent by local mail) and on the seventh Business Day after the date of posting (if sent by air mail),
provided that in each case where delivery occurs on a day which is not a Business Day or after 6pm on a Business Day, service shall be deemed to occur at 9am on the next following Business Day and in proving service, it shall be sufficient to show that personal delivery was made or that the envelope containing such notice was properly addressed, and duly stamped and posted or that the facsimile transmission or electronic mail message was properly addressed and despatched. References to time in these Conditions are to local time in the country of the addressee.
27.6. The Contract and/or these Conditions may be signed in any number of counterparts, all of which taken together shall constitute one and the same instrument. Either party may enter into the Contract and these Conditions by signing any such counterpart. Each counterpart may be executed by the parties and transmitted by facsimile or electronic mail transmission (with originals to follow), and shall be valid and effectual as if executed as an original.
Updated on 4 August 2017