STANDARD TERMS AND CONDITIONS FOR PURCHASE
Sesto Robotics Pte. Ltd. (“SESTO“) and the person or company (the “Supplier”) identified on the purchase order to which these Terms and Agreement of Purchase (these “Conditions”) are attached (such purchase order together with these Terms and Agreements of Purchase, collectively, the “Contract“) hereby agree as follows:
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 or entity, and where such person is an individual, the expression “Affiliate” shall include the spouse, children, siblings and parents of such individual.
“Applicable Law” means the relevant applicable Singapore laws governing the Contract.
“Agreed Delivery Date” has the meaning ascribed to it in Conditions 11.2 and 11.4 respectively (as the case may be).
“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 the Contract which SESTO and/or its Affiliates bring to bear or provide in the course of the Supplier 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).
“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 Supplier, whether communicated orally, in writing or through electronic transmission means.
“Contract” means a contract entered into between the Supplier and SESTO, pursuant to a purchase order or order confirmation from SESTO, 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 Supplier and SESTO.
“Deliverable” means any Document, product, good, parts, material, facility, machinery or accessory which the Supplier is to supply and/or perform the Services on (as the case may be), in accordance with the Contract, pursuant to these Conditions.
“Delivered Duty Paid” or “DDP” means “Delivered Duty Paid (… named place of destination)” as defined in the Incoterms (2010).
“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;
“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 Supplier in writing.
“SESTO Materials” has the meaning ascribed to it in Condition 20.1.
“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 by the Supplier in order 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.
“Purchase Order” means the purchase order issued by the Supplier and accepted by a Duly Authorised Officer of SESTO.
“Services” means the services provided to SESTO pursuant to a Contract from time to time, or such other services which the Supplier shall supply to SESTO at SESTO’s request.
“SGD” and the symbol “S$” mean the lawful currency of Singapore.
“Statement of Work” means the detailed plan describing the Services that the Supplier is to provide in accordance with a work schedule setting out the milestones for the provision of the Services agreed in accordance with Condition 11.4.
“Supplier” means the individual or corporate entity which provides a price list, quotation, sales order or sales confirmation to SESTO for the provision of Deliverables and/or provision of Services, or whose order for supply of Deliverables and/or Services is accepted by SESTO.
“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, as may be attached to a purchaser order or other written communication from SESTO.
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 Purchase Order or other written communication issued by SESTO.
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 Purchase Order or order confirmation 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 THE SELLER TO SESTO TO THE EXCLUSION OF ALL OTHER TERMS AND CONDITIONS INCLUDING ANY TERMS AND CONDITIONS WHICH THE SELLER MAY PURPORT TO APPLY UNDER ANY PRICE LIST, QUOTATION, SALES ORDER, SALES CONFIRMATION OR OTHER DOCUMENT.
2.2. ALL SALES CONFIRMATIONS ISSUED BY THE SELLER FOR DELIVERABLES AND/OR SERVICES SHALL BE DEEMED TO BE A BINDING OBLIGATION BY THE SELLER TO PROVIDE THE DELIVERABLES AND/OR THE SERVICES PURSUANT TO THESE CONDITIONS.
2.3. DELIVERY OF THE DELIVERABLES OR PROVISION OF THE SERVICES BY THE SELLER SHALL BE DEEMED EXCLUSIVE EVIDENCE OF THE SELLER’S ACCEPTANCE OF THESE CONDITIONS.
2.4. ANY VARIATION TO THESE CONDITIONS (INCLUDING ANY SPECIAL TERMS AND CONDITIONS AGREED BETWEEN THE SELLER AND SESTO) SHALL BE INAPPLICABLE UNLESS AGREED IN WRITING BY A DULY AUTHORISED OFFICER OF SESTO. NO OTHER ACTION ON THE PART OF SESTO SHALL BE CONSTRUED AS AN ACCEPTANCE OF ANY OF THE SELLER’S CONDITIONS. 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.
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 the Contract.
3.2. All specifications, drawings and other data referred to in the Contract or as submitted by the Supplier to SESTO prior to the date of the Contract in connection with the Deliverables or Services, are hereby made a part of the Contract as if fully set forth herein. By acceptance of the Contract, the Supplier acknowledges that the Deliverables and Services covered by the Contract are intended for the manufacture or processing of goods for resale and further manufacturing and processing and resale and defects in the provision of any such services or in any such goods may occasion special damages to SESTO.
3.3. Unless otherwise specified in writing, any price lists or quotations submitted by the Supplier to SESTO pursuant to the 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 Supplier 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 Supplier affecting the Deliverables and/or Services may be accepted by SESTO at SESTO‘s sole discretion and resulting adjustments to any 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. The Supplier shall effect any change described in detail on a written change order issued by the Supplier and accepted by SESTO. Such adjustments, if accepted by SESTO, shall be final and binding on the Supplier.
5.1. By delivery of the Deliverables or providing the Services pursuant to the Contract or by otherwise acknowledging its agreement with the Contract (whether verbally or in writing), the Supplier agrees to the terms and conditions set forth in the Contract and these Conditions.
5.2. Any proposals to vary the terms or conditions hereof or which proposes additional terms or conditions of the Contract shall not be effective, unless expressly agreed to in writing by SESTO. No waiver by SESTO of any breach of the terms of the Contract shall operate to relieve the Supplier of responsibility of any prior or subsequent breach pursuant to the Contract and/or these Conditions.
6.1. Prior to the delivery, the Supplier shall ensure that the Deliverables:
(a) correspond with their description and specifications as provided to SESTO pursuant to Condition 3;
(b) are of satisfactory (within the meaning of the Sale of Goods Act (Cap. 393) and fit for any purpose held out by the Supplier or made known to the Supplier by SESTO either expressly or by implication;
(c) are free from defects in design, material and workmanship and remain so for at least 12 months after the date of delivery of such Deliverables;
(d) complies with all applicable statutory and regulatory requirements relating to manufacture, labelling, packaging, storage, handling and delivery of the Deliverables.
6.2. The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Contract.
6.3. Prior to acceptance of Delivery, SESTO shall have the right to inspect and test the Deliverables at any time before delivery. If following such inspection or testing SESTO considers that the Deliverables do not conform or are unlikely to comply with
the specifications in Condition 3, SESTO shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
6.4. Notwithstanding any such inspection or testing, the Supplier shall remain fully responsible for the Deliverables and any such inspection or testing shall not reduce or otherwise affect the Supplier’s obligations under the Contract, and SESTO shall have the right to conduct further inspections and tests after the Supplier has carried out its remedial actions.
6.5. The specific type and quantity of Deliverables and Services to be provided by the Supplier shall be as detailed in the Contract and shall not be amended by the Supplier unless otherwise agreed to in writing by SESTO. Any additional quantities of Deliverables or Services provided in excess of the specifications as detailed on the Contract shall be returned or rejected at SESTO‘s sole discretion.
7.1. Prior to commencement of the Services, the Supplier shall (if requested by SESTO) provide to SESTO a Statement of Work, which shall be agreed to in the following manner:
(a) SESTO shall provide the Supplier with a request for a Statement of Work, setting out the requirements and specifications of the Services which it is requesting from the Supplier, including a description of what work is to be done, dates by which each stage of the work is to be started and finished, Deliverables, In-put Materials and any additional information requested by the Supplier from SESTO to determine the works to be provided under the Statement of Work;
(b) the Supplier shall, within seven (7) days of receipt of a SESTO‘s request, provide SESTO (at no cost), with a draft Statement of Work; and
(c) the Supplier and SESTO shall discuss and agree on the draft Statement of Work. When it has been agreed, they shall both sign a copy of it and the agreed version shall be binding unless varied in accordance with Condition 4.
7.2. The Supplier will perform the Services under the Contract according to the agreed Statement of Work (if any) and subject to these Conditions using reasonable skill and care and in accordance with good consulting and/or technical expertise.
8. PRICE OF THE DELIVERABLES
8.1. The price of the Deliverables shall be the price agreed under the Contract, or, if no price is quoted, the price set out in the Supplier’s published price list provided to SESTO as at the time the Contract came into existence. Unless otherwise agreed, all prices shall be DDP basis, including packaging. All costs relating to setup or installation shall be as set out in Condition 11.1(b).
8.2. The Supplier warrants that the prices applicable to the Deliverables are as favorable as any currently offered by the Supplier to any other customer with respect to the same or substantially similar goods or services. If the Supplier prior to delivery or performance hereunder offers to any of its other customers more favorable prices, allowances or other terms and conditions, the Supplier shall immediately notify SESTO and at SESTO‘s option such prices, allowances and other terms and conditions shall apply to the Contract.
8.3. The price of the Deliverables is exclusive of amounts in respect of the goods and services tax (“GST”), but includes the costs of packaging, insurance and carriage of the Deliverables. No extra charges shall be effective unless agreed in writing and signed by SESTO.
8.4. SESTO shall, on receipt of a valid GST invoice from the Supplier, pay to the Supplier such additional amounts in respect of GST as are chargeable on the supply of the Deliverables.
8.5. The Supplier may invoice SESTO for the Deliverables on or at any time after the completion of delivery.
8.6. SESTO shall pay correctly rendered invoices within 60 days of receipt of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier.
8.7. SESTO may, without limiting any other rights or remedies it may have, set off any amount owed to it by the Supplier under the Contract against any amounts payable by it to the Supplier under the Contract.
9. PRICE OF THE SERVICES
9.1. The price of the Services shall be the price set out in the Contract, or, if no price is quoted, the price set out in the Supplier’s published price list provided to SESTO as at the time the Contract came into existence. Payment for the Services shall be on a time and material basis, a fixed price basis or a combination of both (as the case may be).
9.2. Where the Services are provided on a time and materials basis:
(a) the charges payable for the Services shall be calculated in accordance with the Supplier’s daily fee rates for the Supplier’s team, details of which shall be set out in the Contract;
(b) the Supplier’s daily fee rates for each individual person are calculated on the basis of an eight-hour day, worked between business hours on a Business Day;
(c) the Supplier shall not be entitled to charge on a pro-rata basis for part-days worked by the Supplier’s team unless it has SESTO‘s prior written consent to do so;
(d) the Supplier shall ensure that the members of the Supplier’s team complete time sheets recording time spent on the Services, and, subject to the written approval of them by SESTO‘s Duly Authorised Officer, the Supplier shall use such time sheets to calculate the charges covered by each monthly invoice referred to in Condition 9.2(e); and
(e) the Supplier shall invoice SESTO monthly in arrears for its charges for time, expenses and materials (together with GST where appropriate) for the month concerned, calculated as provided in this Condition 9.2.
9.3. Where the Services are provided for a fixed price:
(a) the total price for the Services shall be the amount as specified in the Contract; and
(b) At the end of a period specified in the Contract in respect of which an instalment is due, the Supplier shall invoice SESTO for the charges that are then payable, together with expenses, the costs of materials (and GST, where applicable).
9.4. The Supplier shall provide to SESTO at the completion of provision of such Services or at the end of each milestone (as the case may be) and SESTO shall pay correctly rendered invoices within 60 days of receipt of the invoice. Payment
shall be made to the bank account nominated in writing by the Supplier.
9.5. The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services in such form as SESTO shall approve. The Supplier shall allow SESTO to inspect such records at all reasonable times on request.
10. PAYMENT ISSUES
10.1. SESTO may withhold payment of any charge if it genuinely believes that the charge is not payable, provided that it:
(a) notifies the Supplier of the disputed charge within thirty (30) days after the date the disputed charge is due; and
(b) pays any undisputed charges.
10.2. Any dispute regarding the charges shall be resolved in accordance with Condition 27. If the resolution of any dispute regarding the charges requires a party to pay an amount to the other party, that party shall make the payment within five (5) Business Days after the date of resolution of the dispute.
10.3. If it shall be found at any time that SESTO has been overcharged or undercharged in any amount whatsoever under the provisions of this Agreement and SESTO shall have actually paid the statement or statements containing such overcharge or undercharge, then within thirty (30) days after the determination thereof, the Supplier shall refund the amount of such overcharge or in the case of any undercharge, SESTO shall pay the amount of such undercharge.
10.4. Without any liability to the Supplier, SESTO shall be entitled to withhold any portion of the payments due to the Supplier under this Agreement to the extent that such withholding is required by any applicable laws. Payment by SESTO to the appropriate governmental authority of the sum so withheld will be deemed to have been made on behalf of the Supplier as if the payment had been made by the Supplier.
10.5. Each party may, without limiting any other rights or remedies it may have, set off any amounts owed to it by the other party under this Agreement against any amounts payable by it to the other party under this Agreement.
11. DELIVERY AND PERFORMANCE FOR DELIVERABLES
11.1. The Supplier shall ensure that:
(a) the Deliverables are properly packed and secured in such manner as to enable them to reach the destination as specified by SESTO in Condition 11.2 in good condition;
(b) Unless otherwise agreed, where the Supplier is responsible for setup or installation of the Deliverables, the Supplier shall bear all the necessary incidental costs such as travel expenses, provision of tools and daily allowances, unless prohibited by applicable law.
(c) each delivery of the Deliverables is accompanied by a delivery note which shows the date of the Contract, the Contract number (if any), the type and quantity of the Deliverables and special storage instructions (if any); and
(d) if the Supplier requires SESTO to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall be returned to the Supplier at the cost of the Supplier.
11.2. The Supplier shall deliver the Deliverables on the date specified in the Contract, or, if no such date is specified, within ten (10) days of the date of the Contract (“Agreed Delivery Date“). If the mode or terms of delivery are not otherwise agreed in writing between the parties, the Deliverables shall be delivered DDP at SESTO‘s Premises or at such other place as mutually agreed to between parties, during SESTO normal business hours, or as instructed by SESTO.
11.3. If the Supplier:
(a) delivers less than 98% of the quantity of Deliverables ordered, SESTO may reject the Deliverables; or
(b) delivers more than 102% of the quantity of Deliverables ordered, SESTO may at its discretion reject the Deliverables or the excess Deliverables;
and any rejected Deliverables shall be returnable at the Supplier’s risk and expense. If the Supplier delivers more or less than the quantity of Deliverables ordered, and SESTO accepts the delivery, a pro rata adjustment shall be made to the invoice for the Deliverables.
11.4. The Supplier shall ensure that the delivery and performance of the Services are in accordance with the milestones as set out in the Statement of Work (each milestone an “Agreed Delivery Date“).
11.5. For the avoidance of doubt, time of delivery and time for performance by the Supplier shall be of the essence to the Contract.
11.6. SESTO may, at its option and without limitation of any of its other rights, cancel all or any unfulfilled part of the Contract if the Deliverables or Services are not delivered within the time specified in the Contract.
11.7. SESTO reserves the right to reject or return at the Supplier’s risk and expense all Deliverables delivered in advance of the specified delivery date, or to accept and make payment for advance deliveries as though the Deliverables were received on the specified delivery date.
12.1. If the Deliverables are not delivered on the Agreed Delivery Date (as set out in Condition 11.2), or do not comply with the undertakings set out in Condition 6.1, then, without limitation to any of its other rights or remedies, SESTO shall have the right to any one or more of the following remedies, whether or not it has accepted the Deliverables:
(a) to terminate the Contract;
(b) to reject the Deliverables (in whole or in part) and return them to the Supplier at the Supplier’s own risk and expense;
(c) to require the Supplier to repair or replace the rejected Deliverables, or to provide a full refund of the price of the rejected Deliverables (if paid);
(d) to refuse to accept any subsequent delivery of the Deliverables which the Supplier attempts to make;
(e) to recover from the Supplier any costs incurred by SESTO in obtaining substitute goods from a third party; and
(f) to claim damages for any other costs, loss or expenses incurred by SESTO which are in any way attributable to the Supplier’s failure to carry out its obligations under the Contract.
12.2. If the Deliverables are not delivered on the Agreed Delivery Date, SESTO may at its option claim or deduct five (5) per cent of the price of the Deliverables for each week’s delay in delivery by way of liquidated damages, up to a maximum of 100% per cent of the total price of the Deliverables. If SESTO exercises it rights under this Condition 12.2, it shall not be entitled to any of the remedies set out in Condition 12.1 in respect of the late delivery (but such remedies shall be available in respect of the condition of the Deliverables).
12.3. This Condition 12 shall apply to any repaired or replacement Deliverables supplied by the Supplier.
12.4. The Supplier shall keep SESTO indemnified in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, penalties, and legal and other professional fees and expenses awarded against or incurred or paid by SESTO as a result of or in connection with:
(a) any claim made against SESTO for actual or alleged infringement of a third party’s intellectual property rights arising out of, or in connection with, the supply or use of the Deliverables, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;
(b) any claim made against SESTO by a third party arising out of, or in connection with, the supply of the Deliverables, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors; and
(c) any claim made against SESTO by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in Deliverables, to the extent that the defect in the Deliverables is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors.
12.5. Condition 12.4 shall survive the termination or expiry of the Contract.
12.6. If any of the Services to be provided by the Supplier are not supplied in accordance with, or the Supplier fails to comply with, any terms of the Contract and/or these Conditions, SESTO shall be entitled (without prejudice to any other right or remedy) to exercise any one or more of the following rights or remedies:
(a) to terminate the Contract; or
(b) to refuse to accept the provision of any further Services by the Supplier and to require the immediate repayment by the Supplier of all sums previously paid by SESTO to the Supplier under the Contract; or
(c) to require the Supplier, without charge to SESTO, to carry out such additional work as is necessary to correct the Supplier’s failure; and
in any case, to claim such damages as it may have sustained in connection with the Supplier’s breach (or breaches) of the Contract and/or these Conditions not otherwise covered by the provisions of this Condition 12.
12.7. The Supplier shall keep SESTO indemnified in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, penalties, and legal and other professional fees and expenses awarded against or incurred or paid by SESTO as a result of or in connection with:
(a) any claim made against SESTO for actual or alleged infringement of a third party’s intellectual property rights arising out of, or in connection with, the supply of the Services, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;
(b) any claim made against SESTO by a third party arising out of, or in connection with, the supply of the Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors; and
(c) any claim made against SESTO by its employees, to the extent that the accidents and workplace injuries suffered by SESTO‘s employees is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors.
12.8. Condition 12.7 shall survive the termination or expiry of the Contract.
12.9. SESTO‘s rights and remedies under this Condition 12 are in addition to its rights and remedies implied by statute and common law.
13.1. The Supplier warrants that all Deliverables supplied to SESTO under this Contract shall conform to specifications, drawings, samples or other descriptions furnished or otherwise made available by, or adopted by, SESTO and shall be fit and serviceable for the purpose intended, shall be of good material and workmanship, merchantable and free from defects.
13.2. SESTO shall have reasonable time after receipt of the Deliverables within which to inspect them before it shall be deemed to have accepted the Deliverables. Any payment for Deliverables pursuant to the Contract, prior to inspection, shall not constitute acceptance thereof and is without prejudice to any inspection or count by SESTO and all claims that SESTO may have against the Supplier. Acceptance of merchandise by SESTO, after inspection, shall not release or discharge the Supplier’s liability, in damages or other legal remedy, for breach of promise or warranty, expressed or implied, with respect to merchandise ordered hereunder.
13.3. SESTO may also revoke its acceptance if use of the Deliverables reveals defects not apparent upon receipt or inspection under Condition 13.2. If SESTO refuses to accept or revokes acceptance because of their defective condition or because of the Supplier’s delay in performance, SESTO shall have the following remedies with respect to all or part of the Deliverables:
(a) SESTO may hold the Deliverables at the Supplier’s risk and expense subject to the Supplier’s order;
(b) SESTO may return the Deliverables to the Supplier at the Supplier’s risk and expense, for repair, replacement or credit at SESTO‘s option;
(c) SESTO may retain the Deliverables subject to the Supplier’s granting an equitable reduction in price; and/or
(d) the Supplier may repair the Deliverables at the Supplier’s own expense.
Neither receipt of the Deliverables nor payment therefore shall constitute a waiver of this Condition 13. The warranties provided for in this Condition 13 shall be in addition to those implied by or available at law and shall exist notwithstanding the acceptance by SESTO of all or a part of the Deliverables and Services to which such warranties are applicable.
13.4. The Supplier additionally represents, warrants and covenants that the manufacture, sale and use of the Deliverables and services provided under the Contract do not and will not infringe or contribute to the infringement of any patent or other intellectual property right of a third party.
13.5. The Supplier warrants to SESTO that:
(a) the Services will be performed with reasonable care and skill and in accordance with best commercial practices and standards;
(b) the Services will be performed in accordance with all health and safety rules and regulations and any other reasonable security requirements that apply at SESTO‘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 Deliverables, in all cases before the date on which the Services are to start; and
(d) the Services performed will conform with all descriptions and specifications as set out in the Contract.
13.6. 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 included as part of the Contract.
13.7. The warranties stated in this Condition 13 are hereby extended to, and shall inure to the benefit of, SESTO and SESTO‘s Affiliates.
14. COMPLIANCE WITH LAW
14.1. In connection with the manufacture and provision of the Deliverables and Services provided under this Contract, the Supplier shall comply with all applicable laws and regulations, including without limitation safety regulations on restricted, toxic and hazardous material; as well as general workplace safety, environmental, electrical and electromagnetic considerations.
14.2. For the avoidance of doubt, this Contract is solely for the purchase of Deliverables and/or Services and the Supplier is not an agent or subcontractor of SESTO for any purpose.
15.1. At SESTO‘s request, the Supplier agrees to furnish, in a form satisfactory to SESTO, a certificate evidencing adequate coverage for the benefit of both the Supplier and SESTO as to workmen or work injury compensation, fire and extended coverage and public liability. The Supplier shall provide at least ten (10) days’ prior written notice to SESTO in the event of alternation or cancellation of such benefits and liability coverage. The Supplier shall not enter the SESTO‘s premises and shall not perform any work or services for SESTO unless and until the Supplier obtains the required insurance described above.
16.1. The Supplier shall not, without obtaining the prior written consent of SESTO, in any manner advertise or publish the fact that the Supplier has furnished or contracted to furnish to SESTO the Deliverables or Services under the Contract.
17.1. 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 prior written consent of the other party.
18. SELLER’S OBLIGATIONS
18.1. The Supplier 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 Supplier’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 Supplier in writing.
18.2. The Supplier 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.
18.3. In the event of a breach of the warranty at Condition 18.2, 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 by the Supplier without any further liability to the Supplier, to allow the Supplier 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 Supplier’s ability to perform the Services.
19. RISK AND PROPERTY
19.1. The Supplier shall bear all risks of loss of or damage to the Deliverables before the delivery of the Deliverables on the Agreed Delivery Date.
19.2. Unless otherwise specified in the agreed delivery terms, risk of damage to or loss of the Deliverables shall pass to SESTO in the case of the Deliverables to be delivered at SESTO‘s Premises, at the time when the Deliverables are handed to SESTO or its carrier.
20. INTELLECTUAL PROPERTY RIGHTS
20.1. The Supplier acknowledges that all materials, equipment and tools, drawings, specifications, and data supplied by SESTO to the Supplier (“SESTO Materials”) and all rights in the SESTO Materials are and shall remain the exclusive property of SESTO. The Supplier shall keep the SESTO Materials in safe custody at its own risk, maintain them in good condition until returned to SESTO, and not dispose or use the same other than in accordance with SESTO‘s written instructions or authorisation.
21.1. 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 21.2.
21.2. Condition 21.1 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 21;
(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.
21.3. 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.
21.4. In the event of disclosure under Condition 21.2(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).
21.5. 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.
21.6. 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.
21.7. Upon termination or expiration of the Contract, the Supplier shall cease all use of the Confidential Information and return all the relevant notes and materials pertaining to such Confidential Information to SESTO immediately.
21.8. This Condition 21 shall survive the termination or expiry of the Contract.
22. LIMITATION OF LIABILITY
22.1. 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.
22.2. No officer or employee of SESTO shall be liable to the Supplier 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.
23. DELAYS AND FORCE MAJEURE
23.1. 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.
23.2. 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.
23.3. 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.
23.4. Nothing in this Condition 23 shall relieve the Supplier of using all reasonable endeavours to cure any such events or circumstances and resume performance under the Contract.
24.1. 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 Supplier 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 SESTO if any one or more of the following events occur:
(a) production of the Deliverables or performance of the Services has not commenced within the time specified on the face of the Contract, or if no time is specified, then within a reasonable time in order for the Deliverables to be delivered or the milestones to be fulfilled by the date specified under the Contract. SESTO‘s liability, in the event of such termination, shall be limited to actual and reasonable expenditures incurred by the Supplier under the Contract. If production of the Deliverables or performance of the Services has commenced, SESTO‘s liability shall be limited to acceptance of and payment for Deliverables or Services the manufacture or performance of which has been completed in accordance with the Contract and to the payment for actual expenditures incurred the by Supplier on the balance of the Contract;
(b) the Supplier assigns any of its rights or obligations under the Contract and/or these Conditions without the prior written consent of SESTO;
(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 Supplier, 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;
(d) the Supplier 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);
(e) the Supplier 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 Supplier and notifies the Supplier accordingly.
The Supplier shall notify SESTO forthwith of the happening of any of the events referred to in sub-paragraphs (a) to (e) (inclusive).
24.2. SESTO shall be entitled to exercise its rights of termination or suspension under Condition 24.1 at any time during which the event or default giving rise thereto shall not have ceased or been remedied.
24.3. SESTO shall not be liable under the Contract and/or these Conditions to pay for Deliverables completed more than thirty (30) days in advance of the scheduled delivery date.
24.4. On termination of the Contract for any reason, SESTO shall be discharged from any further liability to perform its obligations under the Contract.
24.5. The rights to terminate this Contract given by this Condition 24 shall not prejudice any other right or remedy of either party in respect of the breach concerned (if any) or any other breach.
24.6. 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.
25. TAX LIABILITIES
25.1. 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 Supplier 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 liabilities, if any, shall be borne and/or investigated by the respective parties.
26. GOVERNING LAW
26.1. The Contract and/or these Conditions shall be construed and interpreted in accordance with the laws of the Republic of Singapore.
27.1. If a dispute arises out of or in connection with this Contract or the performance, validity and enforceability of any provision under the Contract and/or these Conditions, parties shall first endeavour to resolve all disputes, controversies and/or any claims arising in connection with the Contract 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 27.2.
27.2. The parties shall resolve any disputes arising in connection with this Contract 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.
28. ENTIRE AGREEMENT
28.1. The Contract and these Conditions constitute the entire agreement between the parties and supersedes any prior agreement whether written or not made or contemplated between them.
29.1. 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.
30.1. 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 Supplier respectively.
31.1. 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.
32.1. It is expressly agreed by the Supplier that it is entering into the Contract and these Conditions solely for its own account and not on behalf of any other person or entity.
32.2. A person who is not a party to a Contract governed by these Conditions shall have no rights under the Contracts (Rights of Third Parties) Act (Chapter 53B) of Singapore to enforce any of these terms and conditions.
32.3. If any of the provisions of the Contract or 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.
32.4. 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.
32.5. 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.
32.6. 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.
33. COMPLIANCE WITH DATA PROTECTION LAW
33.1. The Supplier shall comply with Singapore’s Personal Data Protection Act 2012 (“PDPA“) and all subsidiary legislation related thereto (collectively “Data Protection Legislation“) with regard to any and all personal data (as defined in the PDPA) (“Personal Data“) that:
(a) the Supplier (and/or the Supplier’s employees and/or agents) may collect on the Supplier’s behalf; and/or
(b) the Supplier may receive from SESTO (including Personal Data received from the SESTO’s employees and/or agents).
33.2. If the Supplier, its employees and/or its agents provide any Personal Data to SESTO or if the Supplier and its employees and/or agents collect any Personal Data on the Supplier’s behalf, SESTO represents and warrants that it and its employees and/or agents have, prior to providing such Personal Data to the Supplier:
(a) notified the individual to whom the Personal Data relates that his/her Personal Data will be disclosed to the Supplier, and of the purposes for which the Supplierwill be collecting, using or disclosing that individual’s Personal Data; and
(b) obtained the consent of the individual to whom the Personal Data relates to: (i) permit SESTO and its employees and/or agents to disclose his/her Personal Data to the Supplier; and/or (ii) permit the Supplier to collect, use or disclose the Personal Data (whether within Singapore or outside of Singapore) for the purposes for which the individual was previously notified.