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This Agreement commences on the Agreement Date and, subject to earlier termination in accordance with the terms of this Agreement, will continue for twelve months (the “Initial Term”). Upon the expiry of the Initial Term or any then-current Renewal Term (as the case may be), this Agreement shall automatically renew for a period of twelve (12) months (the “Renewal Term”) unless either Party gives written notice to the other Party of its intention to terminate this Agreement no later than thirty (30) days prior to the expiry of the Initial Term or any then-current Renewal Term (as the case may be). The Initial Term and the Renewal Term (where applicable) shall together be the “Term”.

 

 

2.1    Company may place orders (“Orders”) with Supplier for Services, the form of which is to be determined by Company from time to time.

 

2.2    Each such Order shall form part of this Agreement and the terms of this Agreement shall apply to each Order. If there is a conflict between: (i) the Cover Agreement and the different parts of this Agreement (together, the “Master Terms”); and (ii) any Order, then such conflict will be resolved by giving precedence to the Master Terms unless expressly stipulated otherwise in the Order.

 

 

3.1    When requested by Company (whether through Orders or otherwise communicated in writing, whichever is applicable), the Supplier shall provide the services set forth in the Schedules, as well as such other services requested by Company from time to time, in accordance with the terms of this Agreement (collectively, the “Services”). The Services shall: (i) include: (A) the services, tasks, functions and responsibilities set forth in this Agreement; and (B) such other tasks, services, functions, activities and obligations which are not specified in this Agreement but which are reasonably required for Supplier’s performance of the Services; and (ii) (without prejudice to any specific performance standards set out in this Agreement), be performed: (X) to at least the same degree of accuracy, completeness and quality provided by, and with the same level of care, skill and diligence used by, skilled and experienced suppliers of international repute engaged in the same or similar type of undertaking as that of Supplier; (Y) using skilled, experienced and qualified staff; and (Z) in accordance with the terms of this Agreement and Applicable Law.

 

 
4.1    Where relevant, Company shall be entitled to receive a Service Credit on the occurrence of Credit Events, each as set out in the Schedules, provided that the receipt of a Service Credit shall be without prejudice to Company exercising its other rights under this Agreement and Applicable Law.

 

4.2    A Service Credit received by Company for a particular calendar month shall be applied against the first invoice submitted following that month, provided that Company shall have the right to review and confirm each Service Credit prior to issuance of the relevant invoice.

 

The Parties acknowledge and agree that Service Credits are: (A) a price adjustment to reflect the reduced level of Services performed by Supplier; (B) are not penalties, liquidated damages or an estimate of the loss or damage that may be suffered by Company as a result of non-performance and are proportional and reasonable in the circumstances and are not penal in nature; and (C) shall be without prejudice to, and will not limit, any right Company may have to other remedies at law or to terminate this Agreement for cause. 

 

 

5.1    Fees.

 

(a)    In consideration for the Services rendered by the Supplier, the Company shall pay to the Supplier the fees (“Fees”) calculated in accordance with the rates table set forth in the Schedules.

 

(b)    The Company shall be notified in writing at least thirty (30) Business Days prior to any modification to the Fees, and any such modifications shall only become effective upon Company’s approval in writing.

 

(c)    Supplier acknowledges and agrees that, other than the Fees, no other fees, royalties, handling fees, payments, amounts, charges or consideration of any kind will be due to the Supplier or any third party for Company’s receipt of the Services.

 

5.2    Invoicing / payment.

 

(a)    Within five (5) Business Days of the beginning of each calendar month, Supplier shall invoice Company for the Fees for the Services provided by Supplier in the preceding calendar month, minus any Service Credits received by Company. Supplier shall ensure that each invoice is complete, accurate and conforms to Company’s requirements (as set out in this Agreement and notified to Supplier from time to time).

 

(b)    Company shall pay undisputed Fees to Supplier within thirty (30) Business Days of receipt of a valid invoice.

 

(c)    Company may withhold payment of Fees that Company disputes in good faith (or, if the disputed Fees have already been paid, then Company may withhold an equal amount from a later payment), including disputes in respect of an error in an invoice or an amount paid. If Company withholds any such amount, Company will promptly notify Supplier, in writing, that it is disputing such Fees (and in the case of withheld payments, prior to the due date of payment) and Parties will promptly address such dispute. For the purposes of resolving any disputes between the Parties pertaining to the payment of Fees (including the calculation of Service Credits), the records of Company shall be the definitive records.

 

(d)    If the dispute relates to only part of the Fees on an invoice, Company will promptly notify Supplier, in writing, of such disputed amount, and provided that Supplier reissues the invoice with the disputed amount removed, Company will pay the undisputed amount in accordance with Clause 5.2(b).

 

(e)    The payment of Fees shall be paid to Supplier’s Bank Account (as detailed in the Cover Agreement) via wire transfer. For the avoidance of doubt, Supplier shall ensure that the Supplier’s Bank Account details are accurate and valid for the purposes of the Company making payment for the Fees to the Supplier. In the event of any bank related penalties due to inaccurate and/or invalid Supplier’s Bank Account details, such penalties shall be solely borne by the Supplier.

 

(f)    The Parties acknowledge and agree that Company shall have the right to set off and apply any other sum due or owing by Company or its Affiliates to Supplier or its Affiliates under this Agreement against any amounts of debts, outstanding claims, demands, loss or damages, and/or any amounts due and owing by Supplier and/or its Affiliates (as the case may be) to Company and/or its Affiliates under this Agreement or any other dealings, agreements, contracts or debit notes.

 

(g)    All Fees shall be invoiced and paid in Singapore Dollars (SGD).

 

(h)    In the event where currency conversion is applicable, the settlement exchange rate that shall

apply to all invoices shall be the average mid-market rate published by Oanda on the last working day of the month that the Service Fees and/or any applicable charges are incurred under this Agreement. For example, if the last working day of January 2024 is 31st of January 2024, the average mid-market rate published on 31st January 2024 will be applied to such Services Fees and/or charges for January 2024. 

 

5.3    Tax.

 

(a)    For the purpose of this Agreement, “Tax” means any taxes, including but not limited to service tax, consumption tax, value-added, goods-and-services tax, business tax and any similar local sales tax, withholding tax, indirect tax or corporate income tax.

 

(b)    All Fees and other amounts due under this Agreement are inclusive of Taxes except Goods and Services Tax (“GST”). Company may deduct any applicable Taxes through a reverse-charge or similar mechanism, to the extent required or allowed by Applicable Law. Company shall timely remit any deducted Taxes to the relevant government authority and shall provide Supplier with documentary evidence of such remittance acceptable to Supplier.

 

(c)    Each Party shall be responsible for the payment of its own Taxes arising from this Agreement as required under Applicable Law. Notwithstanding any other provision in this Agreement, should Company have any withholding obligation with respect to any payment due pursuant to this Agreement, such payments are considered to be inclusive of all Taxes and Company shall be entitled to deduct and withhold from such payment any Taxes required to be deducted and withheld with respect to the making of such payment under any provision of Applicable Law. To the extent that amounts are so withheld and deducted pursuant to this Clause, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to such authority in respect of which such deduction and withholding was made and Company shall have no further obligation to pay the equivalent of such withheld amounts, or any part thereof, to Supplier. Company will furnish to Supplier copies of receipts or other government certifications evidencing all taxes withheld from such payment promptly after such receipts are available. The Parties shall cooperate and endeavour to comply with all applicable documentation and registration requirements so as to minimize the amount of withholding Tax imposed, if any. Without prejudice to the generality of the foregoing, Supplier shall provide Company with a valid Certificate of Residence or equivalent document issued by the relevant authority certifying the country in which Supplier is a tax resident within a reasonable time upon Company’s request, failing which Company is entitled to deduct and withhold the full amount of any Taxes it deems necessary to be deducted and withheld from any payment.

 

(d)    To the extent that the Supplier is required to register for GST and charges GST on the Services based on prevailing Applicable Law, Supplier must provide Company with a valid tax invoice detailing the Services, the relevant portion of the Fees and the GST component.

 

 

6.1    The Supplier acknowledges and agrees that: (i) Company owns all rights, title and interests,

including all Intellectual Property Rights, in and to all materials and content provided by Company to the Supplier for the purposes of this Agreement, including any software or applications provided by Company and its Affiliates (including any customisations, enhancements, changes or derivatives thereof) (collectively, “Company IP”); (ii) it shall not at any time acquire any right, title or interest in or to the Company IP, or any part thereof; and (iii) it shall not at any time seek to register, assert or claim any right, title or interest in or to the Company IP, or any part thereof. 

 

6.2    Supplier hereby grants to Company a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable and royalty-free licence to use any materials (including any documentation or other written materials in whatever form) provided by Supplier to Company in connection with the performance of the Services.

 

6.3    Neither Party will use the other Party's name, trademarks, logos or Intellectual Property Rights for any promotional, marketing or advertising purposes. Any and all advertisements, marketing materials and similar as well as press releases displaying or referencing the name or logo of the Parties need to be mutually approved by the Parties in writing prior to release.

 

 

Supplier shall perform the Services for Company and its Affiliates, and in this Agreement, unless the context requires otherwise, references to Company will include, to the extent that they are receiving the Services, the Company’s Affiliates. 

 

 

8.1    If Supplier subcontracts any of its obligations under this Agreement to a third party (“Subcontractor”), then:

 

(a)    Supplier will remain liable to Company for the acts and omissions of any Subcontractor as if they were the acts or omissions of Supplier, and such subcontracting will not relieve Supplier of its obligation to perform the Services under this Agreement;

 

(b)    Supplier will remain the single point of contact for Company with respect to the Subcontractors, provided that Company shall have the right to establish direct technical and operational contact with the Subcontractor;

 

(c)    upon Company’s request, Supplier shall provide Company with a list of all Subcontractors, and Company shall have the right to request for a Subcontractor to be replaced or removed from time to time (at Company’s sole discretion and at Supplier’s sole cost and expense);

 

(d)    in this Agreement, unless the context requires otherwise, references to Supplier will be deemed to include the Subcontractors where such reference relates to an obligation of Supplier which has been delegated in whole or in part to the Subcontractor; and

 

(e)    a Subcontractor shall not be entitled to further subcontract the performance of the Services without Company’s prior written approval.

 

 

9.1    The Supplier represents and warrants that none of the Supplier nor (to the actual knowledge of the Supplier (having made enquiries, if any, that are reasonably expected of it)) any of the Supplier's directors nor any persons acting on their behalf:

 

(a)    is a Restricted Party; or

 

(b)    has received notice of or is aware of any claim, action, suit, proceeding or investigation against it with respect to Sanctions by any Sanctions Authority; or

 

(c)    has been engaged in (in the past five (5) years), and is not now engaged in, any dealings or transactions with any Restricted Party.

 

9.2    The Supplier undertakes that it shall not, either by itself or through any other person authorised by it:

 

(a)    fund any trade, business or other activities of any Restricted Party; or

 

(b)    cause Company to be in breach of any Sanctions or becoming a Restricted Party; or

 

(c)    engage in any dealings or transactions with any Restricted Party.

 

9.3    For the purposes of this Agreement, the following words shall have the meanings assigned to them in this Clause 9.3, except where inconsistent with the context:

 

(a)    “Restricted Party” means a person that is:

 

(i)    listed on, or owned or controlled by a person listed on, or acting on behalf of a person listed on, any Sanctions List;

 

(ii)    located in, incorporated under the laws of, or owned or (directly or indirectly) controlled by, or acting on behalf of, a person located in or organised under the laws of a country or territory that is the target of country-wide or territory-wide Sanctions; or

 

(iii)    otherwise a target of Sanctions (“target of Sanctions” signifying a person with whom a US person or other national of a Sanctions Authority would be prohibited or restricted by law from engaging in trade, business or other activities);

 

(b)    “Sanctions” means the economic sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by the Sanctions Authority (or any of them);

 

(c)    “Sanctions Authorities” means:

 

(i)    the United States government;

 

(ii)    the United Nations;

 

(iii)    the European Union;

 

(iv)    the United Kingdom;

 

(v)    the Commonwealth of Australia; or

 

(vi)    the respective governmental institutions and agencies of any of the foregoing or any other countries, including, without limitation, the Office of Foreign Assets Control of the US Department of Treasury (“OFAC”), the United States Department of State, and Her Majesty's Treasury (“HMT”); and

 

(d)    “Sanctions List” means the “Specially Designated Nationals and Blocked Persons” list maintained by OFAC, the “Consolidated List of Financial Sanctions Targets” and the “Investment Ban List” maintained by HMT, or such other page as may replace it), or any similar list maintained by, or public announcement of Sanctions designation made by, any of the Sanctions Authorities.

 

 

10.1    Either Party may, without prejudice to its other rights and obligations under this Agreement, terminate this Agreement at any time with immediate effect upon sending a written termination notice to the other Party if:

 

(a)    the other Party commits a material breach of any of its obligations, representations or warranties under this Agreement and fails to remedy that breach within fourteen (14) Business Days after being notified in writing by the terminating Party to do so;

 

(b)    the other Party commits a series of breaches that: (i) by themselves may not be material; (ii) are notified to the other Party; and (iii) are not remedied within fourteen (14) Business Days of being notified to do so, if, in the aggregate, such uncured breaches would amount to a material breach;

 

(c)    an Insolvency Event occurs with respect to the other Party; or

 

(d)    any Force Majeure Event fulfilling the provisions of Clause 10 continues for a period of thirty (30) consecutive days or more.

 

10.2    Company may terminate this Agreement or any Order (where applicable) at any time and without cause by providing the Supplier with prior written notice of thirty (30) days.

 

10.3    Termination or expiration of this Agreement shall be without prejudice to the Parties’ rights and liabilities that may have accrued prior to such expiration or termination, unless waived in writing by the Party enjoying the right.

 

10.4    Upon termination by the Company pursuant to Clause 10.1 or Clause 10.2, and unless otherwise agreed in writing between the Parties, Supplier shall immediately refund the Company any Fees that the Company has prepaid under this Agreement and for which the Services have not been provided by Supplier to the absolute satisfaction of the Company at the termination date.

 

10.5    The expiry or termination of this Agreement shall not affect the coming into force or the continuance in force of any provision of this Agreement which is expressly or by implication intended to come into force or continue in force on or after expiry or termination (including, but not limited to, Clauses 6, 10, 12, 13, 14, 15, 18 and 19).

 

 

11.1        Each Party represents, warrants and undertakes to the other Party that:

 

(a)    it is duly organised, validly existing and in good standing under the laws of the jurisdiction where it is organised, with full power and authority to carry on its business as now being conducted;

 

(b)    it is not the subject of an Insolvency Event and is not aware of any such risk;

 

(c)    it has the full capacity, power and authority to enter into and perform its obligations under this Agreement, and this Agreement, when executed and delivered, will constitute its valid and binding obligations enforceable in accordance with its terms;

 

(d)    the execution and delivery of, and the performance by its of its obligations under, this Agreement will not result in any breach of any: (i) any provision of its memorandum and articles of association, certificate of incorporation, bylaws or similar organisational documents; (iii) any contract to which it is a party or by which it is bound; or (iv) judgement or court order to which it is bound; and

 

(e)    as far as it is aware, there is no undisclosed proceeding, pending or threatened event, matter, occurrence or circumstance which challenges or may have a material adverse impact on this Agreement or its ability to perform its obligations pursuant to this Agreement.

 

11.2    Supplier further represents, warrants and undertakes to Company that:

 

(a)    (i) it has all rights to enter into this Agreement and to grant to Company all rights and assignments granted under this Agreement, free of any encumbrances that may conflict with Company’s full enjoyment thereof; and (ii) its performance of its obligations under this Agreement and Company’s receipt and use of the Services will not infringe on the rights (including Intellectual Property Rights) of any third party;

 

(b)    it will not violate any Applicable Law (including any applicable data privacy legislation) in its performance of this Agreement;

 

(c)    it shall obtain and retain throughout the Term all third party and regulatory approvals, licences, consents and rights necessary to perform its obligations under this Agreement;

 

(d)    Company has delivered or made available to Supplier all information and documents which Supplier deems necessary to enter into this Agreement and perform its obligations under this Agreement;

 

(e)    it has the necessary experience, expertise and technical and operational resources and abilities to perform its obligations under this Agreement;

 

(f)    it is financially sound and fiscally capable of performing its obligations under this Agreement;

 

(g)    it will inform Company promptly of the existence of any event, matter, occurrence or circumstance which may have an adverse effect upon Supplier’s ability to fulfil its obligations under this Agreement;

 

(h)    all information provided to Company are true, accurate and not misleading; and

 

(i)    none of the Supplier or its Representatives: (a) is currently the subject or the target of any economic sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by any governmental authority (including the Office of Foreign Assets Control of the US Department of Treasury (“OFAC”), the United States Department of State, Her Majesty's Treasury (“HMT”), the United Nations and the European Union), whether through ownership or control or being on any Sanctions lists (including the “Specially Designated Nationals and Blocked Persons” list maintained by OFAC, the “Consolidated List of Financial Sanctions Targets” and the “Investment Ban List” maintained by HMT) or otherwise (“Sanctions”); (b) is located, organized or resident in a country or territory that is the subject or target of Sanctions, including, without limitation, Crimea, Cuba, Iran, North Korea, and Syria; (c) is the subject of any claim, action, suit, proceeding or investigation with respect to Sanctions; (d) has been engaged (or will engage) in any trade, business, activities, dealings or transactions with any person subject to Sanctions; and (e) will cause Company or its Representatives to be in breach of any Sanctions.

 

 

12.1    Supplier (“Indemnifying Party”) will defend, indemnify and hold harmless Company (“Indemnified Party”) and its Affiliates, and its and their respective officers, directors, employees, subcontractors and agents (collectively, the “Indemnitees”) from and against any and all losses, liabilities, damages, fines, judgments, settlements, costs, expenses, and fees (including reasonable and justified attorney’s fees), whether foreseeable or not, (“Losses”) directly resulting from any third party claims, investigations, legal or administrative action, litigation or arbitrations or demands (collectively, “Third Party Claims”) to the extent arising out of or relating to:

 

(a)    any actual breach of any of Supplier’s representations, warranties, covenants, or obligations under this Agreement;

 

(b)    any wilful or negligent act or omission of Supplier, or, where applicable, any of its officers, employees or, agents in relation to the performance of Supplier’s obligations under this Agreement; and

 

(c)    any breach of Applicable Law by Supplier in connection with this Agreement.

 

12.2    Indemnified Party will notify Indemnifying Party in a timely manner in writing that it seeks indemnification with specific reference to the Third-Party Claim for which such indemnification is sought. A failure by Indemnified Party to provide such notice or information will not impair its right to indemnification hereunder except to the extent that such failure has materially prejudiced or materially delayed Indemnifying Party in the defence of the Third-Party Claim. Indemnifying Party will have the sole right to control the investigation, defence and settlement of each such Third Party Claim, provided that Indemnifying Party must obtain Indemnified Party’s prior written approval for the settlement of any such Third Party Claim (unless such settlement provides for the full and final release of Indemnified Party, does not involve the payment of any monies or admission of any wrongdoing by Indemnified Party, and does not require any action or inaction by Indemnified Party). Indemnified Party will have the right to participate in the defence and settlement of such Third-Party Claim being defended by the Indemnifying Party through separate counsel, at Indemnified Party’s sole expense.

 

 

13.1    Nothing in this Agreement (including this Clause 13) shall exclude or restrict either Party's liability: (a) for death or personal injury resulting from the negligence of that Party or of its employees; (b) for fraud or fraudulent misrepresentation; (c) under its obligations to provide an indemnity under this Agreement; (d) for breach of Clause 14; (e) or for any other matter that may not otherwise be limited or excluded under Applicable Law.

 

13.2    Subject to Clause 13.1, under no circumstances shall either Party be liable to the other Party for any: (a) indirect, incidental, consequential, punitive or special damages whatsoever; or (b) loss of profits, loss of business, loss of opportunity or loss of goodwill, arising out of or in connection with this Agreement, whether based on breach of contract, tort (including, without limitation, negligence), misrepresentation, under statute or otherwise, and whether or not such Party has been advised of the possibility of such damage.

 

13.3    Subject to Clauses 13.1 and 13.2, under no circumstances shall Company’s total liability towards Supplier in respect of all claims arising out of or related to this Agreement, regardless of the forum and regardless of whether any action or claim is based on contract, tort (including, without limitation, negligence), misrepresentation, under statute or otherwise, exceed the total Fees under this Agreement for the twelve (12) months prior to the event giving rise to the liability.

 

 

14.1    The provisions of this Clause 14 shall supersede and replace any non-disclosure agreements relating to the same subject matter previously entered into between the Parties.

 

14.2    The Party receiving Confidential Information (“Receiving Party”) from the other Party (the “Disclosing Party”) shall: (a) keep the Confidential Information strictly confidential and shall not, without the Disclosing Party’s prior written consent, disclose any Confidential Information, in whole or in part, except as permitted by this Clause 14; (b) employ all reasonable measures to protect the Confidential Information from unauthorized or inadvertent disclosure, including measures no less protective than those measures that the Receiving Party employs to protect its own information; (c) not use or copy, or authorise anyone to use or copy, the Confidential Information for any purpose other than the performance of the Receiving Party’s obligations or the exercise of its rights under this Agreement; and (d) promptly notify the Disclosing Party of any suspected or actual unauthorised use or disclosure of the Confidential Information.

 

14.3    The Receiving Party may disclose the Confidential Information to its Representatives only to the extent and provided that such persons: (a) have a need to know the Confidential Information in connection with this Agreement; (b) are obligated to maintain the confidentiality of the Confidential Information on terms that are substantially similar to this Clause 14. The Receiving Party shall be responsible for any breach of this Clause 14 by any of its Representatives.

 

14.4    Upon the expiry or termination of this Agreement, or earlier upon the Disclosing Party’s written request, the Receiving Party shall: (a) (and shall ensure that its Representatives shall) promptly return to Disclosing Party or destroy or expunge all copies of Confidential Information; and (b) certify to the Disclosing Party in writing signed by an authorized representative of its compliance with sub-clause (a), provided that the Receiving Party shall be entitled to retain such copies of the Confidential Information as is required by Applicable Law or its bona fide internal compliance or document retention policies on the basis that the confidentiality obligations in this Clause 14 shall continue to apply.

 

14.5    In the event that Receiving Party or any of its Representatives becomes legally compelled by or is requested by any competent authority, regulatory agency, stock exchange or Applicable Law to disclose any of the Confidential Information, the Receiving Party shall: (a) first provide written notice to the Disclosing Party and assist the Disclosing Party in seeking a protective order or other appropriate remedy; or (b) to the extent it is legally prevented from satisfying sub-paragraph (a), use Commercially Reasonable Efforts to limit the disclosure and obtain assurances from the disclosee as to the confidentiality and use of the Confidential Information, and provide written notice to the Disclosing Party when it is legally permitted to do so.

 

14.6    Supplier: (a) shall not make any public announcements relating to this Agreement or the relationship between the Parties under this Agreement without the prior written consent of the Company; (b) shall not publish, authorise or otherwise make any statement or representation or other communication, or otherwise take any action or engage in any business practice, that defames, denigrates, disparages or is otherwise damaging to the Company, its Affiliates or causes damage to the Company’s and/or its Affiliates’ goodwill or reputation; and (c) acknowledges and agrees that this Clause 14 shall be enforceable by the Company and its Affiliates.

 

14.7    The Receiving Party acknowledges and agrees that damages alone would not be an adequate remedy for a breach of this Clause 14 and that the Disclosing Party shall be entitled to seek the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach.

 

 

15.1    Governing Law. This Agreement and any non-contractual rights or obligations arising out of or in connection with it shall be governed by and construed in accordance with the laws of Singapore.

 

15.2    Dispute Resolution. In the event of any dispute, controversy, difference or claim arising under or relating to this Agreement (including, without limitation: (1) any contractual or non-contractual rights, obligations or liabilities; and (2) any issue as to the existence, validity or termination of this Agreement) (a “Dispute”), a Party shall promptly notify the other Party in writing (the “Dispute Notice”) and the Parties shall conduct discussions and negotiations in good faith. Any resolution of such Dispute is to be set forth in writing signed by the Parties. If such Dispute cannot be satisfactorily resolved by the Parties through good faith negotiations within thirty (30) calendar days after the Dispute Notice, it shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this Clause. The seat of the arbitration shall be Singapore. This arbitration agreement shall be governed by Singapore law. The Tribunal shall consist of three (3) arbitrators and the language of the arbitration shall be English.

 

15.3    In any action or suit between the Parties to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party shall be entitled to recover its costs, including reasonable and justified legal costs.

 

 

Neither Party shall be liable for any failure or delay in performance of any obligation under this Agreement to the extent such failure or delay is due to a Force Majeure Event and the Party affected by the Force Majeure Event: (a) could not have prevented the delay or failure by using reasonable precautions; (b) as soon as reasonably practicable following becoming aware gives notice of the occurrence of the Force Majeure Event to the other Party in writing; and (c) uses Commercially Reasonable Efforts to commence performing such obligations as soon as possible or otherwise mitigate the effects of the Force Majeure Event. 

 

 
Supplier acknowledges and agrees that Company (and its Representatives) shall have the right to visit the facilities of Supplier for the purpose of performing audits or inspections to ensure Supplier's compliance with the terms of this Agreement (including, but not limited to, Suppliers undertakings and responsibilities in respect of Personnel (where applicable)), and Supplier shall provide all reasonable assistance, support and cooperation and shall provide information reasonably requested by Company (and its Representatives) as necessary for the aforementioned purpose.

 
18.    GENERAL PROVISIONS

 
18.1    Relationship of the Parties. The relationship between the Parties shall be at all times that of independent contractors. Nothing contained herein or done pursuant hereto shall constitute either Party (or its agents or employees) as an agent, legal representative, partner, trust, joint venturer or employee of the other Party for any purpose whatsoever, and each Party and its Representatives shall have no right, power, or authority to assume, create, or incur, in writing or otherwise, any expense, liability, or obligation in the name or on behalf of the other Party.

 

18.2    Third Party Rights. Except as expressly stated in this Agreement, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act of Singapore to enforce any term of this Agreement, but this does not affect any right or remedy of a third party which exists or is available apart from the aforementioned Act. The rights of the Parties to rescind or vary this Agreement are not subject to the consent of any other person.

 

18.3    Further assurance. Each Party shall do all things necessary, including executing all documents necessary, to give effect to the intention of the Parties in relation to this Agreement.

 

18.4    Costs. Unless otherwise stated herein, each Party shall bear all of its costs and expenses incurred in the performance of its own undertakings, duties, and obligations under this Agreement.

 

18.5    Entire Agreement. This Agreement sets forth the entire agreement between the Parties with respect to the subject matter hereof, merges all discussions between them, and supersedes and replaces any and every other prior or contemporaneous agreement, understanding or negotiation, whether written or oral, that may have existed among the Parties to the extent that any such agreement relates to the subject matter hereof.

 

18.6    Severability. Where any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under the laws of any jurisdiction, then such provision shall be deemed to be severed from this Agreement and, if possible, replaced with a lawful provision which, as closely as possible, gives effect to the intention of the Parties under this Agreement and, where permissible, that shall not affect or impair the legality, validity or enforceability in that, or any other, jurisdiction of any other provision of this Agreement.

 

18.7    Transfers. Neither Party may or shall assign, transfer (by way of novation or otherwise), or create any trust or purport to do the same, in respect of a right or obligation in, this Agreement without the prior written consent of the other Party hereto (not to be unreasonably withheld or delayed), provided that the Company may assign or transfer (by way of novation or otherwise) its right or obligation in this Agreement to: (a) its Affiliates, or (b) a third party as part of a corporate restructuring. The terms and conditions of this Agreement will inure to the benefit of and bind each Party’s respective successors and permitted assigns.

 

18.8    Conflict of Interest. Supplier shall declare to Company all relationships, connections, association or dealings (whether direct or indirect) with any of Company’s personnel, and further undertakes that such declaration is true, accurate and complete. Save as declared to and approved by Company, the Supplier represents and warrants that Supplier and its Affiliates and their respective directors or shareholders do not have any relationship, connection, association or dealings with any Company personnel in such a manner which may give rise to related party transactions or a conflict of interest (or potential conflict of interest) between the Parties. Supplier acknowledges that Company has relied on the representation and warranty in this Clause to enter into this Agreement.

 

18.9    Waiver. The failure of a Party to enforce at any time or for any period of time any of the provisions hereof shall not be construed to be a waiver of such provision or of the right of such Party thereafter to enforce each such provision. No waiver of any term or condition of this Agreement shall be valid or binding on a Party unless the same is set forth in a written document, specifically referring to this Agreement and duly signed by the waiving Party.

 

18.10    Remedies. Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by Applicable Law.

 

18.11    Notices. Any notice or other communication to be given in connection with this Agreement shall be in writing, and will be (as elected by the Party giving such notice): (a) personally delivered; (b) transmitted by registered or certified mail, return receipt requested; (c) deposited prepaid with a nationally recognized overnight courier service; or (d) sent by confirmed e-mail. Unless otherwise provided herein, all notices shall be deemed to have been duly given on: (x) the date of receipt if delivered personally or by courier; (y) ten (10) Business Days (for the recipient) after the date of posting if transmitted by mail; or (z) if transmitted by e-mail, the date a confirmation of transmission is received. Each Party may change its address for purposes hereof on not less than five (5) Business Days (for the other Party) prior notice to the other Party. All notices hereunder to Company or Supplier shall be delivered, transmitted, or sent to the relevant addresses set out in the Cover Form. For any data protection-related queries, please contact Company’s Data Protection Officer at the email address set out in the Cover Form.    

 

18.12    Governing Language. This Agreement is written and executed in the English language only, and it shall be the binding and controlling agreement for all respects, and all versions hereof in any other language shall be for accommodation only and shall not be binding upon the Parties.

 

18.13    Modification. This Agreement may be modified only in writing, signed by the authorised signatories of each Party.

 

18.14    Counterparts. This Agreement may be executed in any number of counterparts, and may be delivered by electronic PDF or facsimile transmission, all of which shall be considered one and the same agreement and each of which shall be deemed an original instrument.

 

 

19.1    In this Agreement the following words will have the meanings assigned to them in this Clause, except where inconsistent with the context:

 

"Affiliate" means, with respect to an entity, any entity that Controls, is Controlled by, or is under common Control with, that entity, where "Control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management, operating policies, or assets of that entity, whether by way of ownership of more than 50% of its voting or equity securities or assets, or by way of contract, management agreement, voting trust, or otherwise; provided that the term "Affiliates" shall include any variable interest entity regardless of whether any variable interest entity may be, or required to be, consolidated with that entity under generally accepted accounting principles; 

 

"Applicable Law" means, with respect to any person, any and all: (a) laws, ordinances, or regulations, (b) codes, standards, rules, requirements, orders and criteria issued under any laws, ordinances or regulations, (c) rules of any securities exchange or equivalent and (d) any and all judgments, orders, writs, directives, authorisations, rulings, decisions, injunctions, decrees, assessments, settlement agreements, or awards of any governmental authority, in each case applicable to such person or its business or properties; 

 

“Best Industry Practice” means the degree of skill, diligence, prudence and foresight which would ordinarily be expected to be observed by a highly skilled and experienced professional of international repute engaged in the same or similar type of undertaking as that of Supplier under the same or similar circumstances; 

 

"Commercially Reasonable Efforts" means taking such steps and performing in such a manner as a well-managed company would undertake where such company was acting in a determined, prudent and reasonable manner to achieve the particular result for its own benefit; 

 

“Confidential Information” means all confidential, non-public information and data, of any nature and in any (whether written, visual, electronic or oral), that the Receiving Party and its Representatives receive from the Disclosing Party and its Representatives under this Agreement (whether on or before the Agreement Date), including without limitation: (a) information relating to the Disclosing Party's and its Affiliates' business and business strategies, markets, customers, products (including new products and plans for new products, as well as marketing plans and materials), pricing and cost information, condition (financial or otherwise), operations, assets, liabilities, results of operations, cash flow and prospects, or employees, officers, contractors and agents, including, without limitation, technical, commercial, financial, accounting, legal and administrative information; (b) the existence of and the terms of this Agreement, as well as the Disclosing Party's position in any dispute in relation to this Agreement; and (c) any copies of Confidential Information and all information created or derived by the Receiving Party or its Representatives from the Confidential Information, provided that Confidential Information shall not include information that: (a) is already in the Receiving Party’s or its Representatives’ possession at the time of disclosure by the Disclosing Party or its Representatives; (b) is or becomes part of public knowledge other than as a result of any action or inaction of the Receiving Party or its Representatives in breach of the confidentiality provisions of this Agreement; (c) is obtained by the Receiving Party or its Representatives from a third party who did not obtain such information, directly or indirectly, from the Disclosing Party subject to any confidentiality obligation; or (d) is independently developed by the Receiving Party its Representatives without the use of or reference to the Confidential Information of the Disclosing Party; 

 

“Force Majeure Event” means any action, event or occurrence outside the reasonable control of the Party in questions, including but not limited to, disease outbreak, epidemic, pandemic (including, without limitation, COVID-19 (Coronavirus)), war, the threat of imminent war, riots or other acts of civil disobedience, insurrection, acts of God, travel ban or restraints imposed by governments or any other supranational legal authority, or any other industrial and trade dispute, fire explosions, storms, floods, lightening, earthquakes, other natural calamities or the action of any governmental authority (other than any action of a governmental authority directed specifically to the affected party); 

 

“Insolvency Event” means, in relation to a specified person, any of the following events: (i) a receiver or similar officer being appointed over all or a material part of that person’s assets or undertaking; (ii) the passing of a resolution for winding-up (other than a winding-up for the purpose of, or in connection with, any solvent amalgamation or reconstruction) or a court making an order to that effect or a court making an order for administration (or any equivalent order in any jurisdiction); (iii) entry into any composition or arrangement with that person’s creditors (other than relating to a solvent restructuring); (iv) ceasing to carry on business; (v) being unable to pay that person’s debts as they become due in the ordinary course of business; or (vi) the person causing or being subject to any event with respect to it which, under Applicable Law, has an analogues effect to any of the events specified in sub-paragraphs (i) – (v) above; 

 

“Intellectual Property Rights” means all copyright, patents, utility innovations, trade marks and service marks, geographical indications, domain names, layout design rights, registered designs, design rights, database rights, trade or business names, rights protecting trade secrets and confidential information, rights protecting goodwill and reputation, and all other similar or corresponding proprietary rights and all applications for the same, whether presently existing or created in the future, anywhere in the world, whether registered or not, and all benefits, privileges, rights to sue, recover damages and obtain relief or other remedies for any past, current or future infringement, misappropriation or violation of any of the foregoing rights; and 

 

“Representatives” means a Party’s Affiliates, and its and its Affiliates’ respective officers, directors, employees, advisers, agents and subcontractors. 

 

19.2    In this Agreement, unless the context otherwise requires: (a) any reference to a "Part” or “Schedule”, unless the context otherwise requires, is a reference to the relevant part or schedule of or to this Agreement, any reference to a "Clause", unless the context otherwise requires, is a reference to a clause in this Agreement, any reference to a “Paragraph” or “Section”, unless the context otherwise requires, is a reference to a paragraph or section in this Agreement, and any reference to this “Agreement” is a reference to the Cover Form, all Parts and all Schedules; (b) a reference to any document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time; (c) any reference to a statute, statutory provision or subordinate legislation shall, except where the context otherwise requires, be construed as referring to such legislation as amended and in force from time to time and to any legislation which re-enacts or consolidates (with or without modification) any such legislation; (d) any reference to one gender includes the other gender and the neuter; (e) any reference to day, month and year means a calendar day, a calendar month and a calendar year, respectively; (f) words in the singular include the plural and vice versa and words in one gender include any other gender; (g) a reference to any Party includes its successors in title and permitted assigns, a reference to a "person" includes any individual firm, body corporate, association or partnership, government or state (whether or not having a separate legal personality); (h) any undertaking under this Agreement not to do any act or thing will be deemed to include an undertaking not to permit or suffer the doing of that act or things; (i) the heading of clauses is for convenience only and will not affect the interpretation of this Agreement; and (j) the word "includes" in any form is not a word of limitation.

 

19.3    Structure of Agreement. If there is a conflict between the different parts of this Agreement, then such conflict shall be resolved by giving precedence to such in the following order of precedence (unless expressly agreed otherwise by the Parties in any document incorporated by reference): (a) first, the Cover Agreement; (b) second, the Standard Terms and Conditions; (c) any Orders; and (d) fourth, any documents incorporated by reference.