Comprehensive range of ironcore, ironless, rotary, voice coil, and ARC proprietary motor technologies.
TERMS AND CONDITIONS OF PURCHASE
These Terms and Conditions of Purchase (the “Terms”) shall govern the worldwide purchasing transactions by PBA Systems Pte Ltd and its affiliates (the “PBA”) and sale by Supplier of goods and services (the “Company”) unless there is a separately executed agreement. These Terms apply to the exclusion of any terms and conditions of the Company conflicting or deviating from our Terms unless it was expressly agreed in writing by PBA. Acceptance of or payment for the Company’s goods and services (“Goods”) shall not constitute an agreement of any such terms and conditions even if the acceptance or payment is made with knowledge of conflicting or supplementary terms and conditions of the supplier. Any terms and conditions of the Company previously agreed that conflict with or supplement these Terms shall no longer be deemed agreed.
1. SERVICES AND DELIVERABLES
The Company agrees to supply the Products as described in the Purchase Order in accordance with the terms and conditions in this Agreement, unless otherwise amended in accordance with Clause 20.
2. SUPPLY OF THE PRODUCTS
2.1 The Company shall:
(a) act in good faith and supply the Products with reasonable care, skill and diligence;
(b) perform the Services in a timely and professional workmanlike manner and in conformance of such Services prevailing at the time; and
(c) at all times ensure that it has sufficient resources dedicated to providing the Products to the Company in order to discharge its obligations under this Agreement.
2.2 The Company must deliver the Products in accordance with the written specifications found in the Purchase Order, unless otherwise amended in accordance with Clause 20 of this Agreement. Part number(s) and Purchase Order number(s) must be indicated on the invoice(s) from the Company, with the part number(s) labelled on the parts supplied.
2.3 PBA will have sole discretion to elect whether to accept or reject the delivery of the Products delivered by the Company do not comply with the specifications (including quantity and unit) found in the Purchase Order.
2.4 The Company acknowledges and agrees that PBA will have no obligation to pay the Company until the Company has fulfilled all its obligations under this Agreement.
3. PRICING, PAYMENT, AND DELIVERY
3.1 In consideration of the Products to be provided by the Company, PBA shall pay to the Company the Total Price of the Products as stated in the Purchase Order. Unless otherwise agreed in writing and in accordance with Clause 20 herein, the Total Price of the Products will be all inclusive such as including all of the Company’s Services (e.g., assembly, installation) and all additional expenses (e.g., proper packaging, transport costs including transport insurance and third-party liability insurance).
3.2 The Company shall issue invoices to PBA containing the Total Price of the Products or any parts thereof.
3.3 A valid invoice or delivery order under this agreement must at least include:
(a) the consignment note number;
(b) the order number;
(c) the part number; and
(d) the order item required for processing. (“Valid Delivery Order”)
3.4 Company acknowledges that PBA will only process Valid Delivery Order and PBA will have no obligation to pay the Company until PBA has received a Valid Delivery Order from the Company.
3.5 PBA shall pay the Total Price of the Products or any parts thereof to the Company by electronic transfer to the Company’s bank account as set out in the Purchase Order if the invoices have been validly received by PBA, and in accordance with the terms of the invoices.
3.6 PBA shall make payment for the Products, provided always that such Products are accepted by PBA without complaints and/or dispute, to the Company within sixty (60) days of acceptance of delivery or upon the receipt of a Valid Delivery Order, whichever is later. For bank transfers, payment shall be deemed to have been made in time if PBA’s bank receives PBA’s transfer order on or before the payment deadline expires. The Company acknowledges and agrees that PBA will not be liable or responsible for delays caused by the banks involved in the payment transaction.
3.7 Any amendment to the Purchase Order must be done in accordance with Clause 20.
3.8 The delivery date specified in the Purchase Order issued by PBA shall be binding. If no delivery date is specified in the Purchase Order issued by PBA, and no other date has been agreed to, then the default delivery date will be six (6) weeks from the Effective Date.
3.9 If the Company is unable to meet the delivery date for any portion of the Products as stipulated in Clause 3.8, the Company shall notify PBA immediately in writing, advising the reasons for the delay, as well as the estimated duration of delivery of the respective portion of the Products, and in accordance with Clause 20. The Company acknowledges and agrees that PBA has the right to reject delivery from the Company at or before the point of receipt, and cancel the Purchase Order or terminate this Agreement without any liability to the Company. Further, the Company will indemnify PBA for any loss suffered by PBA due to the Company’s delay in delivering the Products, or part thereof, in accordance with the provisions in this Agreement, and this Clause will not limit the applicability of any provisions under Clause 12.
3.10 The delivery method (e.g. EXW, DDP, etc) must be explicitly agreed in writing between the Parties such as being stated in Purchase Order or in accordance with Clause 20 herein.
3.11 Unless otherwise agreed in accordance with Clause 20 herein or stipulated in the Purchase Order, deliveries shall be accepted only as delivery duty paid (“DDP”) to the address stated on the Purchase Order. Risk shall not transfer until the Goods are delivered at the place of fulfilment stated in the Purchase Order or as agreed in accordance with Clause 20 herein.
3.12 Each delivery must be accompanied by a consignment note stating the order number, part number, and ordered Goods and/or Services. (“Proper Consignment Note”) A Valid Delivery Order ought to be sent to PBA simultaneously with dispatch of the Goods and/or Services. PBA will not be liable for any delay due to the absence of a Proper Consignment Note. Without limiting the applicability of any provisions under Clause 12, the Company will indemnify PBA for any loss suffered by PBA due to the Company’s delay or omission in providing a Proper Consignment Note to PBA in accordance with the provisions in this Agreement.
3.13 In the event where the Company provides defective Goods and/or Services to PBA, PBA will be entitled to withhold payment due to the Company until all such defects have been corrected by the Company and to the satisfaction of PBA. Without limiting the applicability of any provisions under Clause 12, the Company will indemnify PBA against any loss suffered by PBA in relations to such defects in accordance with the provisions of this Agreement.
3.14 There is no interest applicable for late payment. If the Parties agree otherwise in writing, the annual default interest is two and a half (2.5) percentage points above the prime rate.
3.15 The Company acknowledges and agrees that in the event of a delay in delivery or defect, PBA may at its sole discretion determine whether offset monies is due to the Company, or whether to withhold payment due to the Company until such delay or defect has been addressed, is appropriate.
4. OBLIGATIONS OF THE COMPANY
4.1 The Company must actively inform PBA in written form of any mandatorily applicable requirements for (re)exports of all of the Company’s Products according to the laws of jurisdictions such as the Republic of Singapore, Europe, the United States, and the country of origin of all of the Company’s Products (the “Applicable Jurisdictions”), in particular the export and customs regulations, before the date of delivery of the Products under this Agreement.
4.2 For the Products which are subject to export licensing, the Company must provide PBA a written declaration, in particular for the Products, concerned with all necessary information as required by the laws of the Applicable Jurisdictions.
4.3 The Company must comply with all applicable export regulations.
4.4 PBA’s Stipulated Third Party may order Company’s Products through PBA, and the Company must deliver the Products directly to PBA’s Stipulated Third Party’s preferred address as indicated in the Purchase Order. In such a scenario, the following provisions will apply alongside all other provisions of this Agreement:
(a) The Company acknowledges and undertakes to carry out all duties and obligations under this Agreement, and the Company will deliver the Products to the delivery address indicated in the Purchase Order and in favour of the Stipulated Third Party.
(b) Should the Stipulated Third Party be unable and unwilling to take possession of the Products for any reason (including due to defects in the Products), PBA will have the sole discretion to elect whether PBA shall own the beneficiary and actual interest over the Products or terminate this Agreement and return the Product to the Company at the Company’s costs. PBA will be able to exercise its right to receive a refund from the Company and terminate this Agreement. Moreover, the Company will bear the costs of rectifying the Products and/or processing the refund in favour of PBA, and PBA will not be subject to any obligation to pay any fees.
5. OBLIGATIONS OF PBA
5.1 PBA shall notify the Company of any defects in the Products and/or of any damage incurred during transport or packing as soon as commercially practicable.
5.2 The Company undertakes to deliver the Products PBA and/or the Stipulated Third Party with no defect. PBA may at its own discretion elect to examine the Products in accordance with market practice standards, unless otherwise agreed in accordance with Clause 20 herein, for quality control and damages.
5.3 The Company acknowledges and agrees that PBA may provide the Company notice of defects (“Defect Notice”) discovered at a later point at any time post-delivery. Any Defect Notice provided by PBA shall be deemed valid, provided always that the Defect Notice is served upon the Company within fourteen (14) days from the date of discovery of the defect. The Company will undertake to rectify the defects stated in the Defect Notice at the Company’s costs within thirty (30) days upon the receipt of a Defect Notice from PBA.
6. SUB-CONTRACTORS
The Company must not, without the prior written approval of PBA, procure or engage any third parties, such as sub-contractors, to carry out Services or delivery of the Products, in whole or parts, under this Agreement. The Company will indemnify PBA for any loss suffered by PBA due to the Company’s use of any third parties to fulfil the Company’s obligations under this Agreement in accordance with the provisions in this Agreement.
7. THIRD PARTY COSTS
PBA will have the sole discretion in deciding whether to authorise the Company to enter into contracts with third party service providers (including delivery service providers, freight forwarders) for the provision of those aspects of the Products that have to be outsourced to third party service providers. The Company must seek PBA’s prior written approval, as prescribed by Clause 19 of this Agreement, on the third-party service provider to be appointed and any estimates or quotations for any third-party costs to be paid by the Company. PBA agrees to only pay all third-party costs that have been approved in accordance with Clause 19 of this Agreement.
8. TERMINATION
8.1 Either Party may terminate this Agreement at any time:
(a) upon giving 1 month’s prior written notice to the other Party; or
(b) with immediate effect upon giving written notice to the other Party if:
(i) the other Party commits a material breach of any term of this Agreement, including Clause 11.3, 11.4, and Clause 12.4, which breach is irremediable or (if such breach is remediable) fails to remedy that breach within ten (10) days after being notified in writing to do so;
(ii) the other Party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
(iii) the other Party becomes subject to an Insolvency Event;
(iv) the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
(v) PBA exercises its right to terminate this Agreement under Clause 3.9 or Clause 4.4(b); or
(vi) a breach in respect of the confidentiality or security of any information or data relating to any of the PBA’s customers.
8.2 Upon termination or expiry of this Agreement for any reason:
(a) each Party shall return the Confidential Information and all documents and materials (and any copies) containing, reflecting, incorporating, or based on the Confidential Information to the other Party and/or delete, destroy or render unusable the same, and erase the Confidential Information from all retrieval systems, databases, computers, word processors or other devices in its or its Representatives’ possession, custody and control; and
(b) the Company shall cooperate with PBA to ensure that PBA will be able to continue business operations after termination or expiry of this Agreement, including facilitating the transferability of the Services or Goods to any third party.
8.3 The termination of this Agreement shall be without prejudice to:
(a) the continuation of the Surviving Provisions; and
(b) any rights, remedies or liabilities of either Party which has accrued prior to the termination or expiry of this Agreement.
9. CONSEQUENCES OF TERMINATION OF THIS AGREEMENT
9.1 The Company must, however, expressly offer the Products to PBA in writing in accordance with Clause 19.1 regardless of whether the termination arose due to the failure to meet an obligation by a stipulated deadline because of the Company’s fault or PBA’s fault.
9.2 If PBA declines the delivery of the Products after accepting the aforesaid offer in Clause 9.1, the Company has the right to demand compensation for the extra delivery costs incurred.
10. RESCHEDULING AND CANCELLATION
10.1 PBA may reschedule the delivery of any goods at any time up to the time of shipment for a period of up to Twelve (12) months beyond the delivery date, and PBA shall not have any liability for any costs associated with such rescheduling. PBA may cancel this Purchase Order in whole or in part upon notice at any time and notwithstanding the fact such Purchase Order contains orders for non-cancellable/non-returnable (“NCNR”) or custom goods. Upon PBA’s cancellation, the Company shall (a) stop work on such cancelled goods and deliver to PBA such work in process or completed goods as may be requested by PBA, (b) cancel orders for components or raw materials for such cancelled goods, and (c) return any unneeded components or raw materials for such cancelled goods. Unless otherwise stated on the face of this Purchase Order, all goods ordered hereunder are one hundred percent (100%) cancellable and one hundred percent (100%) returnable with no restocking or other such charges. Except for cancellation due to default or delay by the Company, the Company shall be entitled to commercially reasonable compensation for NCNR goods and custom components to the extent such liability is indicated on the face of this Purchase Order, which were properly ordered by PBA and which the Company cannot return, cancel or broker using diligent efforts within ninety (90) days after notice of cancellation by PBA. The total compensation paid by PBA for any NCNR or custom goods subject to cancellation shall not exceed the price on this Purchase Order for such cancelled goods. PBA shall have no liability to the Company beyond payment of any balance owing for goods or services delivered to and accepted by PBA prior to the Company’s receipt of the notice of termination, and for work in process and completed goods requested by, delivered to, and accepted by PBA after the Company’s receipt of notice of termination in accordance with Clause 19.
11. LIMITATION OF LIABILITY
11.1 Nothing in this Agreement shall limit or exclude the Company’s liability for:
(a) death or personal injury caused by its or any of its Representatives’ negligence;
(b) infringement of Intellectual Property Rights of any third party; or
(c) fraud or fraudulent misrepresentation.
11.2 Further:
(a) the Company agrees that PBA’s liability to the Company for any claim arising out of or in connection with this Agreement, whether in contract, tort, breach of statutory duty or otherwise, shall in no event exceed 10% of the aggregate amount of the Total Price of the Products payable; and
(b) PBA shall not have any liability to the Company, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any indirect or consequential loss including loss of profits, revenue, goodwill or anticipated savings arising out of or in connection with this Agreement.
11.3 PBA shall, to the extent possible and reasonable, notify the Company of the content and extent of recall measures and give the Company an opportunity to comment.
11.4 The Company must work in good faith with PBA and PBA’s crisis management team, and the Company must not make any comments in the public domain relating to such recall measures without PBA’s prior written approval.
11.5 Along with adhering to the existing legal duties as well as those stipulated in the contract, the Company is obligated to continuously (including for the duration of the warranty) maintain all of the following liability insurance protection:
(a) Business and product liability insurance with a minimum insured amount of ten million Singapore Dollars (S$10,000,000) for damage or injury caused to property or persons.
(b) Co-insurance including at least the following topics:
(i) consequential losses caused by a defect of a guaranteed characteristics;
(ii) losses due to combining, blending, mixing faulty products with third party products;
(iii) losses due to further processing or treatment of faulty products;
(iv) removal and reinstallation costs;
(v) sorting and inspection costs;
(vi) losses due to defective machinery, must be expanded to include at least “machine parts moulds, and tools as well as measuring, control and feedback systems” (the “Machine Clause”); and
(vii) must be agreed to and their territorial scope is not restricted.
(c) The insurance coverage must also apply to exchange of individual components as well as to repairs while installed.
(d) Testing costs and sorting costs are to be fully insured both by business and product liability as well as by the required recall cost insurance.
(e) The Company must ensure that risks concerning the delivered products are fully covered by the business and product liability.
(f) The Company must arrange for an appropriate insurance such as product liability and recall insurance in such amount as determined by PBA in its sole discretion and the Company will furnish PBA with documentary evidence of the same upon PBA’s request or within sixty (60) days from the Effective Date, whichever earlier.
(g) Any existing claims for damages from PBA on the grounds of product liability shall remain unaffected by this, and are independent of the existence or validity of the required insurances.
11.6 The Company shall carry out quality controls of an appropriate kind and scope based on state-of-the-art technical standards and on request shall furnish PBA with evidence of the same. The Company shall conclude a quality-control agreement to this effect with PBA to the extent that such agreement is considered necessary by PBA.
12. INDEMNITY
12.1 Should PBA be liable to third parties, and should claims arising therefrom be transferrable, then the Company shall indemnify PBA against any third-party claims and shall bear all associated costs incurred by PBA in connection therewith.
12.2 The Company shall indemnify, defend and hold harmless PBA (including its Representatives) against any and all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by PBA arising out of or in connection with any claim made against PBA arising out of or in connection with the Products provided by the Company, including any claim, suit or proceeding made or brought against PBA pertaining to:
(a) libel, slander, defamation;
(b) infringement of rights of third party, including Intellectual Property Rights;
(c) infringing safety regulations or pursuant to the Republic of Singapore or any other applicable laws due to defects in PBA products resulting from faulty Goods and/or Services delivered by the Company;
(d) right of publicity, invasion of privacy;
(e) any materials or information furnished by the Company to PBA;
(f) any use by PBA of any materials created or produced by the Company, which use is unlawful;
(g) any subpoena received by PBA or any of its Representatives in connection with a litigation, arbitration or other dispute in which the Company is a plaintiff or a defendant and where PBA is not a party to such litigation, arbitration or other dispute provided PBA immediately sends the Company a copy of the subpoena; and/or
(h) any claim or action in so far as the possession, use, development, modification, or maintenance of the Intellectual Property (or any thereof) infringes the Intellectual Property Rights of a third party.
12.3 The Company shall indemnify PBA against any third-party claims, including claims from PBA’s customers on the grounds of infringement of proprietary rights or Intellectual Property Rights and shall bear any and all costs incurred by PBA in connection therewith.
12.4 In the event that claims are brought against PBA on the grounds of infringing safety regulations or pursuant to the Republic of Singapore or any other applicable laws due to defects in PBA’s products resulting from faulty Goods and/or Services supplied by the Company, the Company shall indemnify PBA and PBA shall be entitled to demand compensation or subsequent performance from the Company for such damages insofar as these were caused by the Goods and/or Services supplied by the Company. To the extent that the Company is responsible, the Company shall reimburse PBA after accounting for its contributory negligence for the costs of any replacement or recall of the Product.
12.5 The Company remains liable for the Products having the agreed quality at the time when the risk passes to PBA. In any case, those product descriptions that are particulars describing the Products are incorporated in this Agreement — in particular due to identification or reference in the Purchase Order from PBA — shall form part of this Agreement as long as the product descriptions do not contradict any description of the Products in the Purchase Order. It shall be immaterial whether the product description originates from PBA, from the Company or from a third party.
12.6 The costs incurred by the Company and/or PBA for the purposes of rectifying the defects of the Product (including any necessary disassembly and installation costs) shall be borne by the Company even if it transpires that there was in fact no defect, and PBA shall be not liable to pay any costs. Without prejudice to the foregoing, PBA shall only be liable to pay costs to the Company if PBA was actually aware that there was no defect at the time of reporting the defect of the Product.
12.7 If, after two (2) rounds of rectification, the Product is unable to work according to the Intended Use, PBA shall be entitled to exercise an option to commission a testing of the Product. The Company will bear all the costs relating to such a testing and ultimately provide a replacement of the Product (or the Product’s parts) which allows the Product to work according to the Intended Use.
12.8 Should the Company fail to honour the obligation to subsequent performance pursuant to Clause 12.4, by either failing to rectify the defect (i.e. making a subsequent improvement to the defective Product) or failing to supply a non-defective Product (i.e. making a replacement shipment of the defective Product), to enable the Intended Use within a reasonable period of time stipulated by PBA, PBA can remedy the defect itself and demand reimbursement of the costs required to do this or an appropriate advance payment from the Company.
12.9 For the avoidance of doubt, PBA shall be entitled to elect for a reduction of the Total Price of the Products or the termination of this Agreement in the case of defects of quality and/or defects of title of the Products. In the event where PBA incurs expenditure to rectify the aforesaid defects of quality and/or defects of title of the Products to ensure the Products work in accordance with the Intended Use, the Company agrees to compensate this additional expenditure incurred.
13. INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS
13.1 The Company agrees to grant PBA an irrevocable, non-exclusive, with no restriction as to time and territory, transferrable and sublicensable right to use software and associated documentation of the Product(s) for the Intended Use, and to each and all components of software that is adapted to the operational processes of PBA.
13.2 The Company shall inform PBA as early as practicable whether the software contains open-source software, in particular before the date of installation or initial operation of that software in any of PBA’s goods or services. The granting of the relevant Intellectual Property Rights pertaining to software is entirely compensated upon payment of the Total Price of the Products.
13.3 PBA will be the sole owner of all Intellectual Property Rights in any Foreground Intellectual Property. The PBA has no obligation to implement, use, or license the Foreground Intellectual Property at any time. PBA is entitled to submit, at its own cost, applications for the registration of intellectual property rights for all Foreground Intellectual Property. Upon request by PBA, the Company shall provide all information and documents necessary for such applications. The granting of rights is entirely compensated upon payment of the Total Price of the Products.
13.4 Unless expressly assigned to the other Party, whether in this Agreement or in some other documents made between Parties, all of the Intellectual Property Rights in the Background Intellectual Property shall remain vested in the respective owner of the Background Intellectual Property.
13.5 The Company agrees and acknowledges that the goodwill, Intellectual Property and other rights associated with the Products, and any documentation provided by PBA, vests in PBA and that it is the intention of the Parties that all such rights will at all times hereafter and for all purposes remain vested in PBA. In the event that any such rights at any time accrue to the Company by operation of law or howsoever arising otherwise, the Company will at PBA’s own expense forthwith on PBA’s demand do all such acts and things and execute all such documents as PBA shall deem necessary to assign such rights solely and absolutely to PBA, as such all costs and applicable fees and accruals will be borne by PBA.
13.6 The Company hereby grants PBA all Background Intellectual Property, which is vested in the Company and which is relevant for the delivery of any Products and the use of any Products in PBA’s product, a royalty-free, irrevocable, worldwide, perpetual, non-exclusive license to use, modify and reproduce the relevant parts of the Background Intellectual Property to the extent required to enable PBA or another person on behalf of PBA to reproduce, use, modify, repair, maintain, refurbish, adapt, integrate and dispose of (except for licensed software) the Products provided by the Company pursuant to this Agreement and to do anything necessary or incidental for those purposes including, in the event of termination of this Agreement for any reason, to complete the performance of all of PBA’s obligations outside this Agreement whether on its own or with the assistance of an alternative service provider.
13.7 If the Background Intellectual Property is owned by a third party, the Company shall enter into the necessary arrangements such that the third party grants PBA a license to the acts stated in Clause 13.6 and on terms no less favourable than those granted by the Company to PBA under Clause 13.6.
13.8 All modifications, additions, alterations, enhancements, improvements, or upgrades to the Products, or new versions of the tests conducted by PBA or any third party in a lawful manner in connection with the Products, shall be owned by PBA.
13.9 The Company shall endeavour to obtain from any persons a waiver of all Intellectual Property Rights (except Intellectual Property Rights owned by PBA) including the author’s moral rights in a copyright work and a waiver of the right to be attributed as the author of the copyright work in connection with the Products and/or the Background Intellectual Property.
13.10 The Company shall, at the request of PBA, enter into such agreements with PBA (including without limitation licence and registered user agreements) and shall execute such documents and carry out such actions as may be necessary to protect and register any Intellectual Property of PBA at PBA’s costs.
14. REPRESENTATIONS AND WARRANTIES
14.1 Each Party represents and warrants to the other Party that:
(a) it has full legal right and power, or corporate power and authority (as may be applicable), to execute and deliver this Agreement and to fully perform its obligations hereunder;
(b) this Agreement will, when executed, constitute legal, valid and binding obligations on it, enforceable against it in accordance with its terms;
(c) it has obtained all governmental, statutory, regulatory or other consents, licences, authorisations, approvals, waivers or exemptions required to empower it to enter into and perform its obligations under this Agreement;
(d) the entry into and performance by it of its obligations under this Agreement will not:
(i) conflict with or result in a breach of any agreement or instrument to which it is a party;
(ii) result in a breach of any applicable laws or regulations, or of any order, judgment or decree of any court or governmental or regulatory body; or
(iii) cause it to be in breach of any obligations to a third party or give rise to any rights of third parties against it, including Intellectual Property Rights and any other proprietary rights;
(e) it is not at the time of entering into this Agreement insolvent or subject to an Insolvency Event;
(f) the performance and implementation of this Agreement as contemplated by the terms herein does not infringe upon any applicable laws, or its constitutional documents, or any agreement, judgment, award or administrative decision by which the Company or its assets may be bound or subject; and
(g) there are no actions, suits, proceedings or investigations pending or threatened in any court or before any governmental agency or instrumentality, or any basis for any claims, action, suit, proceeding or investigation, which affects or could affect, directly or indirectly, any of the assets, properties, rights or business of it, or the right of it to operate and use its assets, properties or rights and carry on its business.
14.2 Further, the Company represents and warrants that all Products conform to state-of-the-art technology, be capable of satisfying the requirements of the Intended Use, conform to the relevant legal provisions and the rules and regulations issued by authorities, industrial and trade associations. If, in individual cases, it is necessary to deviate from such regulations, the Company shall obtain the prior written consent of PBA in accordance with Clause 20. Such consent shall in no way diminish obligations under the warranty.
14.3 Each warranty shall be separate and independent, and no warranty shall be limited by reference to any other warranty or by any other provision in this Agreement.
15. RELATIONSHIP OF PARTIES
15.1 The Company is not and shall not be deemed to be a legal representative, dealer, agent, joint venturer, or partner of PBA for any purpose.
15.2 The Company acknowledges that PBA has not given it any authority to incur any obligations (expressed or implied) or enter into contracts on behalf of PBA or otherwise bind PBA in any transaction with customers, government agencies or third parties.
16. FORCE MAJEURE
16.1 In the event that either Party to this Agreement is affected by Force Majeure (the “Relevant Party”), the Relevant Party shall:
(a) forthwith notify the other Party in writing;
(b) within seven (7) days thereof provide detailed information of the event and explaining the reasons for its inability to perform this Agreement; and
(c) use and continue diligently to use all reasonable efforts to remove the cause of the Force Majeure,
whereupon the Relevant Party shall be excused performance or the punctual performance, as the case may be, as from the date of such notice for so long as the event of Force Majeure shall continue.
16.2 Each Party undertakes, notwithstanding that it is not the Party whose performance is affected, to cooperate and use its best endeavours to assist in removing the cause of the Force Majeure.
16.3 Neither Party shall be deemed to be in breach of this Agreement, nor otherwise liable to the other, for any delay in performance or the non-performance of any of its obligations under this Agreement, to the extent that the delay in performance or non-performance is due to Force Majeure of which it has notified the other Party.
17. ASSIGNMENT
The Company shall not assign, transfer, mortgage, charge, subcontract or otherwise deal in any other manner with any or all of its respective rights or obligations hereunder to any party, or grant, declare, create or dispose of any right or interest in it, unless with the prior written consent of PBA.
18. COSTS
Each Party shall bear its own costs and expenses incurred in connection with the preparation, negotiation and entry into of this Agreement, including any legal costs.
19. NOTICES
19.1 All notices, demands or other communications required or permitted to be given or made hereunder shall be in writing and delivered personally or sent by prepaid registered post or by e-mail addressed to the intended recipient thereof at its address or e-mail set out in the Purchase Order.
19.2 A Party may change its details given in the Purchase Order by giving written notice to the other Party, the change taking effect for the Party five (5) days after the deemed receipt of the notice.
19.3 A notice or other communication made or given by one Party to the other Party in accordance with this Clause 25 shall be effected and deemed to have been duly given, served or made:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice or other communication is left at the relevant address;
(b) if sent by any delivery service providing proof of delivery, at the time recorded by the delivery service; and
(c) if sent by email, on the date and at the time recorded on the face of the email as having been sent by the sending Party,
provided that in each case where service occurs after 6:00pm on a Business Day or on a day which is not a Business Day, service shall be deemed to occur at 9:00am on the next following Business Day.
19.4 In proving such email service, it shall be sufficient to prove that an email was delivered to any Party where an email confirmation note indicates that the transmission was successful and has been
20. AMENDMENTS AND VARIATION
20.1 No amendment, modification of, or addition to any terms of this Agreement (including those in the form of directions or guidance) shall be valid and/or effective unless:
(a) Made in written documents (the “Documentation”);
(b) Mutually agreed by the Parties and signed by all Parties or their duly authorised Representatives (where applicable).
20.2 If the Documentation mentioned in Clause 20.1 are taken to form the terms of this Agreement, all terms in the Documentation and this Agreement are to be taken as mutually explanatory of one another.
20.3 No performance based on the amendment, modification of, or addition to any terms of this Agreement shall be valid and/or effective unless all requirements in Clause 20.1 have been made.
20.4 In the case of ambiguities or discrepancies of any terms (including prices) between this Agreement and any of the documentation mentioned in Clause 20.1, the same shall be explained and adjusted by reading the terms of the Documentation in the following order of priority (highest to lowest):
(a) This Agreement;
(b) The terms (including applicable rates or prices) of invoices, purchase orders, or any other document issued by PBA which have been acknowledged and signed off by the respective Representatives of the Parties; and
(c) The terms (including applicable rates or prices) of invoices, purchase orders, or any other document issued by the Company which have been acknowledged and signed off by the respective Representatives of the Parties.
20.5 Should it become evident at any point in time before PBA receives the Products that deviations from the original terms of this Agreement as of the Effective Date, including the specifications of the Product, are necessary or expedient, (“Necessary Deviations”) the Company must notify PBA in writing within three (3) days from the date of discovery of such Necessary Deviations. PBA shall then advise the Company whether PBA agrees with and accepts the proposed modifications in writing.
20.6 The Company acknowledges and agrees that PBA shall have the right to request changes in the terms of this Agreement following execution of this Agreement, provided that such amendments or variation may reasonably be expected of the Company or are usual in the trade. In the event that PBA requests amendments or variation to this Agreement, it shall make reasonable allowance for any implications this may have, particularly with regard to increases or reductions in costs, and delivery dates.
20.7 For any amendment or variation of terms (including prices) arising from Clause 20.5 and Clause 20.6, PBA shall, as soon as practicable, price the variation after consulting some or all the following documents in the following order of priority (highest to lowest):
(a) This Agreement;
(b) Invoices, purchase orders, or any other document issued by PBA which have been acknowledged and signed off by the respective Representatives of the Parties;
(c) Invoices, purchase orders, or any other document issued by the Company which have been acknowledged and signed off by the respective Representatives of the Parties; and
(d) Any other bills, schedule of rates or prices, or other documents to the extent that it is reasonable to use them.
21. SEVERABILITY
If any term of this Agreement or the application of any such term is held by a court of competent jurisdiction to be wholly or partly illegal, invalid or unenforceable, the same shall be deemed to be deleted from this Agreement and be of no force and effect, whereas the other terms hereof shall remain in full force and effect as if such term had not originally been contained in this Agreement. In the event of such deletion, and if the commercial basis of this Agreement is, whether by reason of any illegality or change in circumstances, substantially altered, the Parties shall review and agree on revisions mutually acceptable to them which shall most closely reflect their original intent and purposes in place of the terms so deleted.
22. ILLEGALITY
The illegality, invalidity or unenforceability of any provision of this Agreement under the law of any jurisdiction shall not affect its legality, validity or enforceability under the law of any other jurisdiction.
23. GOVERNING LAW AND JURISDICTION
23.1 This Agreement, and any dispute arising out of or in connection with this Agreement (including any question regarding its validity, the enforceability and performance of any of its provisions and any non-contractual claims) (a “Dispute”), shall be governed by and construed in accordance with the laws of Singapore, irrespective of its conflict of laws rules, with the exclusion of international uniform law, particularly the UN Convention on the International Sale of Goods.
23.2 In the event of any Dispute, the Parties each agree to follow the procedure set out in this Clause 35.2:
(a) The Parties shall first seek to resolve the Dispute amicably by negotiation in good faith through face-to-face meetings or telephone conference calls.
(b) If the Parties are not able to resolve the Dispute through negotiation in accordance with Clause 23.2(a) within thirty (30) days of the commencement of the negotiation (or such other period as the Parties may agree in writing), the Dispute shall be referred to and finally resolved by arbitration in Singapore in accordance with the Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, in accordance with the following terms:
(i) the arbitral tribunal shall consist of a sole arbitrator to be agreed between the Parties or failing such agreement, then as may be appointed in accordance with the SIAC rules;
(ii) the place of arbitration shall be Singapore;
(iii) the language to be used in the arbitral proceedings shall be English; and
(iv) the arbitrator’s award shall be final and binding and the Parties hereby waive all rights of appeal or objection in any jurisdiction.
23.3 Regardless of the nature of the Dispute occurs, except for the matters in the Dispute, the Parties shall continue to exercise their remaining respective rights and fulfil their remaining respective obligations under this Agreement.
