The Supply Agreement between you (“Supplier”) and SCommerce Private Limited (“SCommerce”) (each a “Party” and collectively the “Parties”) comprises these SCommerce Supply Terms & Conditions (“T&Cs”), the cover agreement between Supplier and SCommerce (“Cover Agreement”), and all relevant purchase orders requesting or specifying a supply of Products.
1.1 In these T&Cs the following words will have the meanings assigned to them in this clause, except where inconsistent with the context:
“Business Day” means a standard business day in Singapore;
“Commencement Date” means the date specified in the Cover Agreement;
“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;
“Losses” means all losses, settlement sums, costs, charges, expenses, actions, penalties, proceedings, claims, demands and other liabilities, whether foreseeable or not.
“Order” means an order placed by SCommerce with the Supplier for the Products;
“Price” means the latest price list for the Products provided by the Supplier to SCommerce; and
“Products” means the products as agreed between the Parties in writing from time to time;
“Restricted Party” means a person that is:
(a) listed on, or owned or controlled by a person listed on, or acting on behalf of a person listed on, any Sanctions List;
(b) 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
(c) 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);
“Return Period” means the return period specified in the Cover Agreement;
“Sanctions” means the economic sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by the Sanctions Authority (or any of them);
"Sanctions Authorities” means:
(a) the United States government;
(b) the United Nations;
(c) the European Union;
(d) the United Kingdom;
(e) the Commonwealth of Australia; or
(f) 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”);
“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.
1.2 In these T&Cs, unless the context otherwise requires:
(a) a reference to any document (including these T&Cs) is to that document as varied, novated, ratified or replaced from time to time;
(b) words in the singular include the plural and vice versa and words in one gender include any other gender;
(c) 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), and a reference to a clause is to a clause of these T&Cs;
(d) the heading of clauses is for convenience only and will not affect the interpretation of these T&Cs;
(e) any undertaking under these T&Cs 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;
(f) a reference to “$” or “dollar” is to the lawful currency of Singapore; and
(g) the word “includes” in any form is not a word of limitation.
2. TERM AND DURATION
2.1 The Supply Agreement commences on the Commencement Date and will continue for a period of twelve (12) months, and shall be renewed for continuous term periods of twelve (12) months unless either Party gives written notice to the other Party, at least thirty (30) days prior to the expiration of such term that the Supply Agreement shall not be renewed.
3. PRODUCT DEVELOPMENT, ORDERS AND SUPPLY OF PRODUCTS
3.1 SCommerce may from time to time place Orders with the Supplier setting out the requirements for the Order, including the quantity of Products ordered, date for delivery and delivery address. No minimum order quantity shall apply unless agreed between the parties.
3.2 Following receipt of each Order, the Supplier will:
(a) supply the Orders;
(b) secure all customs clearances for Products prior to delivery (if applicable);
(c) abide by all laws, rules and regulations that apply to the performance of its obligations under these T&Cs; and
(d) use all reasonable skill and diligence to deliver the Products in accordance with best industry practices.
3.3 For the avoidance of doubt, SCommerce is under no obligation or requirement to place any Orders during the term of the Supply Agreement.
3.4 Customised Products. SCommerce may place orders for customised Products (“Customised Products”), and the provisions of this Clause 3.4 shall apply to Supplier’s supply of such Customised Products:
(a) SCommerce and Supplier shall jointly agree on the product list, product specifications, product standards and quality standards for the Customised Products in writing from time to time;
(b) SCommerce shall have the right to approve the final design to be used for the Customised Products (including applicable packaging of such Customised Products) prior to Supplier proceeding with production of the Customised Products. Following SCommerce’s written approval of the final design of the Customised Products, any subsequent amendments shall be subject to Company’s prior written approval;
(c) SCommerce shall provide rolling purchase forecasts to Supplier from time to time for such Customised Products, provided that any such forecasts are non-binding and to be considered as estimates only; and
(d) SCommerce hereby grants to Supplier during the Term a limited, non-exclusive, revocable, non-transferable, and non-sublicensable licence to use the names, images, logos and/or trademarks provided and expressly approved for use by SCommerce from time to time solely for the purpose of producing the Customised Products strictly in accordance with the terms of the Supply Agreement and other instructions from SCommerce.
4. RISK, TITLE AND DELIVERY
4.1 Title to and risk in the Products will pass to SCommerce only after SCommerce has accepted the Products.
4.2 Products purchased are subject to SCommerce’s reasonable inspection and approval at the delivery point nominated in an Order.
4.3 As soon as the Supplier is aware that it will be unable to fulfil an Order or meet the delivery date set out in an Order, the Supplier must notify SCommerce in writing of the date that it will be able to fulfil the Order or deliver the Order for the Product. Except where the delay in delivery is caused or contributed to by SCommerce, if the new date for delivery is unacceptable to SCommerce, SCommerce may in its sole discretion terminate the Order and in the event SCommerce has made payment for such Order, Supplier shall refund such payment for such Order to SCommerce, in full within fourteen (14) days from the date SCommerce terminates such Order.
4.4 SCommerce will not be liable to the Supplier for any cost, loss or expense incurred by the Supplier due to SCommerce exercising its rights under clause 4.3.
4.5 SCommerce may reject the Products, even after they have been accepted, if they are defective or are not in accordance with SCommerce’s specifications, do not meet the requirements under the Order or are reasonably believed to be counterfeit (“Rejected Products”).
4.6 Rejected Products:
(a) will be held by SCommerce:
(b) must be removed by, and at the expense of, the Supplier on the next delivery date, and in any event within ten (10) Business Days of the Supplier being notified of the rejection; and
(c) may be removed by SCommerce at the Supplier’s cost if the Supplier fails to remove the Products in the relevant time frame as stipulated per clause 4.6(b).
4.7 When a Product is rejected pursuant to Clause 4.5 and SCommerce has already remitted the Price for such Product to the Supplier, SCommerce shall be entitled to a refund of such amount (“Refund Amount”) in cash or a payment mode as determined at SCommerce’s sole discretion. For the avoidance of doubt, if the Rejected Product is removed pursuant to Clause 4.6(c), SCommerce shall still be entitled to the Refund Amount.
4.8 Where a Return Period has been specified in the Cover Agreement, SCommerce may, at its sole discretion, return Products to the Supplier within the Return Period (“Returned Products”) by providing written notice to the Supplier (“Return Notice”).
4.9 For the avoidance of doubt, the Supplier shall acknowledge the Return Notice in writing within three (3) days from the date such Return Notice is sent by SCommerce to the Supplier (“Return Notice Acknowledgment Period”) and such Return Notice shall be deemed acknowledged by the Supplier in the event SCommerce does not receive the Supplier’s acknowledgement of such Return Notice within the Return Notice Acknowledgment Period.
4.10 Title to and risk in the Returned Products will pass to the Supplier on the date of Supplier’s written acknowledgement of the Return Notice or the expiry of the Return Notice Acknowledgement Period whichever is earlier. Supplier shall within five (5) Business Days issue a credit note inclusive of GST (where credit amount and corresponding GST are to be clearly indicated in such credit note) to SCommerce making reference to the original tax invoice issued for such Returned Products and as determined at SCommerce’s sole discretion, Supplier shall (i) make a cash refund to SCommerce in an amount equal to such credit note (inclusive of GST) or (ii) entitle SCommerce to set-off the credit note (inclusive of GST) against any amounts owed by SCommerce to Supplier.
4.11 Returned Products:
(a) will be held by SCommerce;
(b) must be removed by, and at the expense of, the Supplier on the next delivery date, and in any event within ten (10) Business Days from the date of Supplier’s written acknowledgement of the Return Notice or the expiry of the Return Notice Acknowledgement Period whichever is earlier; and
(c) may be removed by SCommerce at the Supplier’s cost if the Supplier fails to remove the Products in the relevant time frame stipulated per clause 4.11(b).
4.12 Supplier may reject the Returned Products, even after the title to and risk in the Returned Products has passed to Supplier, if the Returned Products are not in the condition as when the Returned Products were first delivered to SCommerce, in which case no refund under Clause 4.10 for the aforesaid Returned Products is required to be issued by Supplier.
5. PRICE AND PAYMENT
5.1 To the extent that the Supplier is required to register for GST and charge GST on the Products supplied based on the prevailing tax laws, the Supplier must provide SCommerce with a valid tax invoice for each Order detailing the Products supplied, the Price and the GST component in accordance with clause 6.1.
5.2 Following acceptance of the Order, SCommerce will pay the Supplier within thirty (30) business days from the date it receives a valid tax invoice.
5.3 SCommerce will notify the Supplier if there is an error in the tax invoice, or if it disputes any of the charges. Notwithstanding this, SCommerce may withhold payment of any disputed portion of the invoice pending resolution of the dispute, but remains obligated to pay the remaining undisputed balance of the tax invoice on time in accordance with clause 5.2.
5.4 Supplier shall notify SCommerce at least ninety (90) days in advance of any variation of the Prices taking effect.
5.5 All other costs, charges, fees and expenses for or arising out of or in connection with the supply of Products under these T&Cs must be paid by the Supplier, including all costs involved in the packaging, handling, storage insurances and any other expenses unless otherwise stated and mutually agreed. The cost of freight and delivery is included in the Price.
5.6 SCommerce and Supplier acknowledge and agree that certain rebate and promotion support ("Support") may be provided by the Supplier to SCommerce under these T&Cs on such terms as may be mutually agreed in writing between the parties. SCommerce shall invoice Supplier for the Support and Supplier shall pay such invoices within thirty (30) days from invoice date.
5.7 SCommerce, at its sole discretion, is entitled to set off any amount the Supplier owes SCommerce and/or its affiliates under these T&Cs against any amount that SCommerce owes the Supplier under it.
6.1 The Supplier warrants that it is registered for GST purposes at each time a taxable supply is made and indemnifies SCommerce for any loss it suffers as a result of the Supplier not being registered for GST purposes. On request by SCommerce the Supplier must produce evidence that it is so registered.
6.2 As of the effective date of the Supply Agreement, both parties agree that the payments under the Supply Agreement are not subject to withholding tax under the applicable laws of Singapore. Notwithstanding, in the event of any changes resulting in the applicability of withholding taxes, the payment of such taxes and/or any issues thereon shall be subject to mutual agreement in writing between the parties.
7.1 The Supplier warrants that:
(a) all Products supplied to SCommerce:
(i) are new, of merchantable quality, free from defects and fit for their intended purpose;
(ii) conform to any product warranties; and
(iii) are not counterfeit;
(b) it has clear title to the Products and that the Products are delivered free of liens and encumbrances;
(c) it has the full right and authority to sell all Products to SCommerce;
(d) there are no restrictions on the re-sale of the Products, and such re-sale will not contravene any applicable laws or regulations of any country or violate or infringe upon any proprietary rights, including intellectual property rights, of any third party;
(e) it has all rights and ownership, or is a licensed user, of all Intellectual Property Rights in relation to the Products and their supply;
(f) it is not aware of any claims made by any third party with regards to any alleged or actual infringement of Intellectual Property Rights or any other claim, demand or action in connection with the manufacture, sale, distribution or use of the Products;
(g) the entry into the Supply Agreement and the performance thereof by the Supplier has been duly authorised and constitutes a valid and binding agreement of the Supplier, enforceable against it in accordance with the terms thereof;
(h) all information furnished to SCommerce with regards to the Products are true, accurate and not misleading;
(i) all formal consents, waivers, approvals, authorisations, exemptions, registrations, licenses or declarations of or by or filing with, any authority or contracting party which are required to be made or obtained by the Supplier in connection with the entry into the Supply Agreement and the performance of the same, have been duly obtained; and
(j) the entry, delivery and performance of the Supply Agreement by the Supplier will not violate or conflict in any material respect with any law, rule, regulation, code, ordinance, judgment, order, writ, injunction, decree or other requirement of any court/tribunal or of any governmental body or agency thereof applicable to the Supplier and/or the sale of the Products.
8.1 The Supplier must effect and maintain appropriate and adequate insurance for (i) public and product liability, and (ii) loss or destruction (at full replacement cost) of the Product relating to these T&Cs and retained in the Supplier's possession, or whilst in transit.
8.2 The Supplier must provide to SCommerce a copy of a certificate of currency in respect of any of the above insurances within 7 days of a request by SCommerce.
9.1 In no event shall either Party be liable for indirect, incidental, special, punitive or consequential damages, including loss of use, loss of profits or interruption of business, however caused or on any theory of liability.
9.2 SCommerce’s liability to the Supplier for any and all Losses arising out of or in connection with the Supply Agreement, shall in no event exceed the payments made to the Supplier in the three (3) months prior to the event giving rise to such liability.
10.1 The Supplier indemnifies and releases SCommerce against any claims, loss, damage, cost (including legal costs), expense or liability arising out of:
(a) any breach of any warranty or obligation under the Supply Agreement;
(b) any wilful or negligent act or omission of the Supplier or any of its officers, employees or, agents in relation to the performance of its obligations under the Supply Agreement; and
(c) any breach of any third party's rights, including in respect of any claim that the Product infringe, or their importation infringes the patent, copyright, design right, trade mark or other intellectual property rights of any other person anywhere in the world, except, to the extent caused or contributed to by any negligent act or omission of SCommerce, its officers, employees and agents.
11. FORCE MAJEURE
11.1 Neither Party shall be liable to the other for loss or damage resulting from delay or failure to perform these T&Cs, or any terms hereunder, either in whole or in part, when the same is due to causes beyond its reasonable control, including but not limited to civil war, insurrections, strikes, riots, fires, floods, explosions, earthquakes, serious accidents or any acts of God, government regulations, epidemics, quarantine or labour trouble resulting in cessation, slowdown or interruption of work. In the event of the same, the Parties' obligations herein and the delivery dates shall be extended for the periods of such circumstances only so far as they affect the performance of the Supply Agreement.
11.2 The Party affected shall as soon as possible notify the other Party in writing of the commencement and (if applicable) end of said circumstances.
12.1 SCommerce may terminate the Supply Agreement:
(a) without cause with 60 days’ written notice; and
(b) immediately with written notice to the Supplier if:
(i) the Supplier commits a fundamental breach of any of its obligations under these T&Cs, and such breach is not remedied (if capable of remedy) within seven (7) days of notice in writing from SCommerce requiring that such breach be remedied;
(ii) the Supplier is in breach of any of its obligations under these T&Cs, which breach is not a fundamental breach and such breach is capable of being remedied and has not been remedied within thirty (30) days of notice in writing from SCommerce requiring that such breach be remedied;
(iii) SCommerce reasonably believes for any reason that the Supplier is no longer able to perform its obligations under these T&Cs; or
(iv) the Supplier ceases or threatens to cease carrying on business, becomes insolvent or goes into administration, receivership or liquidation or enters into any arrangement or composition with its creditors or any action is taken for the appointment of an administrator or official manager or receiver of the assets of the Supplier.
12.2 The Supplier may terminate the Supply Agreement upon written notice to SCommerce:
(a) without cause with 120 days’ written notice; and
(b) immediately with written notice to SCommerce if:
(i) SCommerce fails to pay or dispute any tax invoice in accordance with clause 5 and fails to remedy such breach within sixty (60) days of a notice from the Supplier requiring SCommerce to remedy the same and stipulating that SCommerce is in breach of these T&Cs; or
(ii) SCommerce becomes insolvent or goes into administration, receivership or liquidation or enters into any arrangement or composition with its creditors or any action is taken for the appointment of an administrator or official manager or receiver of the assets of SCommerce.
12.3 Termination of the Supply Agreement is without prejudice to any accrued rights of either Party as at the date of termination.
13. INTELLECTUAL PROPERTY RIGHTS
13.1 The Supplier grants to SCommerce a non-exclusive and royalty-free right and licence to use the Supplier’s trademarks, logos, brand names, service marks, photographs, graphical elements, wordings, forms, diagrams, information, text, film footage, computer animation, music, lyrics, sound effects, visual effects and/or other materials, including digital equivalents of all the above (the “Materials”), which are provided or authorised by the Supplier in connection with these T&Cs in the marketing, promotion, selling and distribution of the Products, including the right and licence to use the Supplier’s Materials with any marketing and/or promotional activities relating to the Products.
14. CONFIDENTIAL INFORMATION
14.1 Neither Party will use information contained in the Supply Agreement, exchanged in prior negotiations or any tender process for any purpose not contemplated by the Supply Agreement. Each Party must, and must ensure that its employees, agents and subcontractors who need such access in order to perform their duties, receive this information under obligations of confidentiality.
14.2 Clause 14.1 does not apply to the extent that:
(a) either Party is required by law, regulation or the rules of any applicable stock exchange to disclose the information;
(b) the information is public knowledge (and has not become public knowledge as a result of either Party’s breach of confidentiality); or
(c) the information was independently created by a Party (and that Party has evidence in writing that the information falls within this exception).
15.1 The Parties are independent contracting parties, and nothing in these T&Cs will make any Party the employee, partner, agent, legal representative, trust or joint venturer of the other for any purpose whatsoever, nor does it grant either Party any authority to assume or to create any obligation on behalf of or in the name of the other.
16.1 SCommerce may assign the Supply Agreement or any of its rights or obligations under the Supply Agreement without the prior written consent of the other Party. For the purpose of this clause, assignment will include any assignment by operation of law and change in control of a Party.
17.1 Each Party will bear their own respective legal costs (as between solicitor and client) of and incidental to the negotiation, any variation and execution of these T&Cs, and the enforcement or attempted enforcement of respective rights, remedies and powers under the Supply Agreement, including referral of any issue under the Supply Agreement to arbitration.
18.1 The Supplier represents and warrants that:-
(a) 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:
(i) is a Restricted Party; or
(ii) 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
(iii) has been engaged in (in the past five (5) years), and is not now engaged in, any dealings or transactions with any Restricted Party.
18.2 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 SCommerce to be in breach of any Sanctions or becoming a Restricted Party; or
(c) engage in any dealings or transactions with any Restricted Party.
19. ENTIRE AGREEMENT
19.1 The Supply Agreement constitutes the entire agreement between the Parties concerning the subject matter of the Supply Agreement and supersedes all prior negotiations, arrangements, agreements and understandings, either oral or written, between the Parties.
20.1 These T&Cs may be modified by SCommerce from time to time without notice to Supplier.
21. GOVERNING LAWS
21.1 The Supply Agreement shall be governed by and construed under the laws of Singapore. In the event of any dispute, controversy, claim or difference of any kind whatsoever arising between the Parties in connection with the Supply Agreement, including the breach, termination or validity of the Supply Agreement, or in connection with the determination of any matters which are subject to objective determination pursuant to the Supply Agreement (“Dispute”), which Dispute has been subject of a written notice by one Party to the other (“Dispute Notice”), the Parties shall attempt, for a period of thirty (30) days after the receipt by one (1) Party of a Dispute Notice from the other Party of the existence of a Dispute, to settle such Dispute in the first instance by mutual discussions between the senior management of each of the Parties. If the Dispute cannot be settled by mutual discussions within the thirty (30) day period, 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. There will be three (3) arbitrators and the language of the arbitration shall be English.
22. PARTIAL INVALIDITY
22.1 In the event of the invalidity of any part or provision of the Supply Agreement such invalidity must not affect the enforceability of any other part or provision of the Supply Agreement.
23.1 Clauses 7 (Warranties), 8 (Insurance), 9 (Liability), 10 (Indemnity), 13 (Intellectual Property Rights), 14 (Confidential Information), 21 (Governing Laws), 23 (Survival) and 25 (Notices) shall survive the expiration and termination of the Supply Agreement.
24.1 A Party’s failure to exercise or delay in exercising a right or power does not operate as a waiver of that right or power and does not preclude the future exercise of that right or power.
25.1 Any notice, request, demand or other communications required by these T&Cs to be given by either Party to the other shall be delivered by hand or facsimile or electronic mail (e-mail) or sent by registered post to such other Party at their respective address given herein. Any notice sent by hand shall be deemed to have been received on the day on which it was delivered, any notice sent by facsimile shall be subsequently confirmed by letter posted or delivered as soon as practicable thereafter provided and any e-mail sent shall be deemed to have been received by the other Party at the time of transmission. However, that any such notice, demand, request or other communication shall be deemed effective on the date of transmission thereof by facsimile or email and any notice sent by registered post shall be deemed have been served and received on the fifth (5th) day following the date of posting. If the day on which any notice deemed delivered falls on a Sunday or a public holiday, such notice shall only be deemed to have received on the next day which is not a Sunday or a public holiday.
25.2 Address for services for the respective Parties shall be as follows:-
If to SCommerce:
1 Fusionopolis Place,
#17-10, Galaxis Singapore 138522
Attention: Group General Counsel
If to Supplier:
As specified in the Cover Agreement
26.1 The Supply Agreement may be executed in counterparts.