In this agreement, unless the contrary intention appears:
Authorised Person means a person authorised by Company to submit and executed a proposed Purchase as specified in the Schedule, or to provide directions to Consultancy under a Purchase Order as specified in the relevant Purchase Order (as varied by Company by notice from time to time).
Company Materials means the materials and resources (if any) to be supplied by Company to Consultancy under clause 7.1 as specified in the relevant Purchase Order.
Business Day means a day that is not a Saturday, Sunday nor a public holiday in Singapore or for the supply of Services, at the place of delivery.
Commencement Date means the commencement date of this agreement specified in the schedule.
Fees means the fees for the Services payable by Company to Consultancy as specified in the Schedule.
GST has the same meaning as in the Singapore Tax Code
Insolvency Event means circumstances in which a party is unable to pay its debts as they fall due or otherwise takes any corporate action or any steps are taken or legal proceedings are started for: (a) its winding-up, dissolution, liquidation, or re-organisation, other than to reconstruct or amalgamate while solvent on terms approved by the other party; (b) the appointment of a controller, receiver, administrator, official manager, trustee or similar officer of it or of any of its revenues and assets; or (c) seeks protection or is granted protection from its creditors, under any applicable legislation.
Purchase Order means a purchase order provided by Company to the Consultancy pursuant to clause 2.2 [in the form of the Annexure or] in such form as Company specifies from time to time.
Services means the services to be supplied to Company by Consultancy specified in the Schedule as amended, added to or deleted from by written agreement of the parties from time to time.
Term means the term of this agreement specified the Schedule.
Terms and Conditions means these terms and conditions.
2.1 Company appoints Consultancy as its Consultancy of the Services for the Term.
2.2 Company may from time to time request the supply of the Services from the Consultancy by providing a Purchase Order from an Authorised Person to the Consultancy. Any such Purchase Order shall be signed by an Authorised Person.
2.3 For the avoidance of doubt, no terms or conditions of the Consultancy, including any terms or conditions printed on or referred to in any product or service list or other documentation will be binding on Company or have any legal effect unless expressly agreed in writing by Company.
3.1 Consultancy must supply the Services in accordance with each relevant Purchase Order, including any delivery dates specified in the Purchase Order.
3.2 The Purchase Order will specify whether Consultancy is acting as principal or as Company’s agent for any acquisition or, if not specified, Consultancy will be deemed to be acting as principal.
3.3 Company may require delivery up of any deliverables arising from the Services in accordance with the relevant Purchase Order, and from time to time upon request.
3.4 Risk in and title to any deliverables forming part of the Services passes to Company on delivery.
4.1 All Fees for the provision of the Services will be calculated in accordance with the Schedule and where applicable, as set out in the Purchase Order.
4.2 Consultancy will provide Company with an invoice for the Fees [from time to time].
4.3 Company must pay the Fees specified in each invoice according to the payment terms as specified in the invoice.
4.4 Each invoice must separately identify Fees, and authorised third party charges or other authorised changes, and otherwise be in a form reasonably required by Company.
4.5 Unless other specified in the Purchase Order, Company must approve all third party charges or other charges prior to them being incurred by the Consultancy. Consultancy must provide to Company copies of third-party vendor’s terms and conditions in advance.
4.6 Company may withhold payment of the Fees for Services which do not comply with the relevant Purchase Order or Consultancy’s warranties under this agreement or are otherwise defective, and may set-off any amounts owed by Consultancy to Company under this agreement against the Fees payable by Company.
4.7 The Fees and any other payments by Company to Consultancy under this agreement are to be made in Singaporean currency. Where conversion from foreign currency is required the conversion is to be made at the average day’s buying rate of Company’s bank prevailing two Business Days before the remittance of the payment.
4.8 The Fees and any other payments made by Company to Consultancy under this agreement will be made by bank draft made payable to Consultancy or, at Consultancy’s option, direct deposit into an Singaporean bank account notified by Consultancy in writing at least two Business Days prior to the due date.
4.9 Unless GST is expressly included, the consideration payable under this agreement for any supply made under or in connection with this agreement does not include GST (if any is payable) which must be paid as an additional amount.
4.10 Each party agrees to do all things that may be necessary to enable or assist the other party to claim any input tax credit, adjustment or refund in relation to GST paid or payable in respect of any supply made under or in connection with this agreement. A party is not obliged to make a payment under this agreement if the other party does not provide a valid tax invoice.
4.11 If a payment to a party under this agreement is a payment by way of reimbursement or indemnity and is calculated by reference to the GST inclusive amount of a loss, cost or expense incurred by that party, then the payment is to be reduced by the amount of any input tax credit to which that party is entitled in respect of that loss, cost or expense before any adjustment is made for GST.
5.1 Company may from time to time request a variation to any existing Purchase Orders (including to any document referred to in the Purchase Order) by providing written notice to Consultancy enclosing the updated Purchase Order and updated documents referred to in the updated Purchase Order.
5.2 Upon receipt of a notice from Company seeking a revised Purchase Order, the parties must consult with each other to agree on and execute the revised Purchase Order in an agreed form. The revised Purchase Order will take effect from the date it is signed by both parties or such later date as is expressly agreed by the parties in writing.
5.3 Consultancy must consider all revised Purchase Orders promptly and in good faith, and must not unreasonably refuse to agree to a revised Purchase Order.
6.1 Consultancy must act in good faith in its dealings with Company.
6.2 Consultancy must take out and maintain at its cost adequate insurance, including professional indemnity, public and product liability and workers compensation insurance, with a reputable insurer in respect of its obligations under this agreement with a limit of liability for each and every event of not less than the amounts specified in the Schedule or, if not specified, commercially reasonable amounts to cover risk arising from its supply of the Services.
6.3 Consultancy must comply with the Additional Obligation set out in the Schedule (if any).
6.4 Consultancy must comply with all applicable laws, regulations, industry standards and codes of conduct in Singapore and any other relevant jurisdiction including but not limited to the nature, method of manufacture, acquisition, testing, packaging, labelling, release for supply and delivery of the Products or Services.
6.5 To the extent that Consultancy collects, holds or deals with personal information of any nature including but not limited to Company, Company Customer or Company Affiliates, Consultancy must comply with all relevant local law
6.6 Consultancy has not made or provided, and will not make or provide, any payment or benefit, directly or indirectly, to government officials, customers, business partners, healthcare professionals or any other person in order to secure an improper benefit or unfair business advantage, affect private or official decision making, affect prescription behaviour or induce someone to breach professional duties or standards.
6.7 Consultancy will immediately report to Company in writing any potential breach of the principles contained in this clause in connection with Company’s business and, in such cases, will cooperate fully with Company in reviewing the matter. In the event that Company believes, in good faith, that Consultancy has breached any of the principles, Company shall have the right to terminate this Agreement.
6.8 During the term of this Agreement and for one year following the termination or expiry of the Agreement, Company or its duly authorised third party auditor, upon reasonable advance notice and at Company’s expense, shall have the right during normal business hours to examine and copy such books, records and other documents and materials, except individual salary information, with respect to the subject matter and terms of this Agreement.
7.1 Company must provide to Consultancy the Company Materials (if any) specified in the relevant Purchase Order as soon as reasonably practicable after the execution of the Purchase Order or as otherwise specified in the Purchase Order.
7.2 All Company Materials remain the property of Company and must be returned by Consultancy to Company immediately upon request. Consultancy must not modify the Company Materials without the prior written consent of Company other than as expressly permitted in the relevant Purchase Order. All intellectual property in any modified Company Materials will be the property of Company.
7.3 Consultancy must comply with all directions, instructions and guidelines provided by Company regarding the use, handling, storage and transportation of the Company Materials.
7.4 Company grants to Consultancy a non-exclusive, non-transferable, royalty-free licence during the Term to use any Company trade marks set out in [the Schedule] [the relevant Purchase Order] solely in connection with the supply of the relevant Services by Consultancy to Company in accordance with this agreement.
7.5 Company is entitled to control the manner in which Consultancy uses the trade marks and if Company objects to the manner in which Consultancy is using or allowing the Trade Marks to be used, Consultancy agrees promptly to remedy the situation to Company’s satisfaction at the Consultancy’s cost. All goodwill arising from use of any trade mark ensures to the benefit of Company.
8.1 Except with respect to intellectual property owned by third parties, Consultancy agrees and acknowledges that, provided that Company has paid all invoices due and owing to Consultancy pursuant to this Agreement, all rights, title and interest in any material created in relation to the Services will be the property of Company.
8.2 In the case of material prepared by third parties, other than Consultancy employees, Consultancy shall use its reasonable commercial endeavours to obtain specific or general assignments of copyright in that material from the author as part of the agreement between Consultancy and the author for preparation of that material.
8.3 Where the material referred to in clause 8.1 has not been created by Consultancy, Consultancy will inform Company of any restrictions and limitations affecting the use of the material and obtain either:
(a) prior written approval from Company prior to any work being performed by Consultancy in respect of this material; or
(b) full assignment from the owner of copyright in the material.
8.4 Consultancy will use its reasonable endeavours to obtain waivers or consents in relation to any moral rights which may exist in any of the works or other materials or matters referred to in clauses 8.1 and 8.2 above. Company acknowledges that complete or comprehensive waivers or consents may not be obtainable or enforceable and that use of such works, materials or matters may accordingly be subject to certain relevant restrictions or limitations, and Company will comply with and observe these.
9.1 Each party warrants that as at the Commencement Date:
(a) it has the power and authority to enter into and perform its obligations under this agreement and that the execution of this agreement by it has been duly and validly authorised by all necessary corporate action;
(b) its obligations under this agreement are valid and binding and enforceable against it in accordance with their terms;
(c) this agreement and its performance do not contravene its constituent documents or any law, or any of its obligations or undertakings by which it is bound, or cause a limitation on the powers of its corporate officers to be exceeded; and
(d) it has the resources, skills, knowledge and abilities necessary to perform its obligations under this agreement.
9.2 Consultancy warrants that:
(a) in entering into and performing its obligations under this agreement it is not, and will not be, in breach of any relevant law or any obligation owed to another person;
(b) there is no current, pending or threatened litigation, arbitration, investigation, inquiry or proceeding in which it is involved that will or may have an adverse effect on Consultancy’s ability to provide the Services and deliverables in accordance with this agreement;
(c) it has the necessary skills, experience, qualifications, resources, technology and know-how to supply the Services and deliverables in accordance with this agreement;
(d) it has all necessary licences, approvals, permits and consents to enter into this agreement and to provide the Services and deliverables;
(e) it will supply the Services and deliverables with all due care and skill, in a good and workmanlike manner and in accordance with all applicable laws, regulations, industry standards and codes of conduct;
(f) the deliverables will comply with any specifications set out in the relevant Purchase Order or otherwise agreed by the parties, and will be of merchantable quality and fit for their intended purpose; and
(g) to Consultancy’s knowledge, the supply or use of the Services and deliverables will not infringe, directly or indirectly, the Intellectual Property rights of any other person.
10.1 Consultancy releases and indemnifies Company, its related bodies corporate, and their respective officers, employees, consultants and agents from and against all actions, claims, proceedings and demands (including those brought by third parties) which may be brought against it or them, whether on their own or jointly with Consultancy, and whether at common law, in equity, pursuant to statute or otherwise, in respect of any loss, death, injury, illness or damage (whether personal or property, and whether direct or consequential, including consequential financial loss) arising out of:
(a) a breach of Consultancy’s warranties or obligations contained in this agreement, including a failure to comply with laws relating to the production or supply of Services or deliverables; or
(b) any negligent or wrongful act or omission by or on behalf of Consultancy,
and from and against all damages, reasonable costs and expenses incurred in satisfying, defending or settling any such claim, proceeding or demand.
11.1 This agreement commences on the Commencement Date and continues for the Term, unless it is terminated earlier in accordance with its terms.
11.2 Either party may terminate this agreement immediately by giving written notice to the other party if the other party commits a breach (other than a trivial breach causing no material harm) of any provision of this agreement and, where the breach is capable of remedy, fails to remedy the breach within 30 days of receipt of written notice from the first party describing the breach and calling for it to be remedied.
11.3 Either party may terminate this agreement immediately by giving written notice to the other party if an Insolvency Event occurs in relation to the other party.
11.4 Company may terminate this agreement at any time by written notice:
(a) upon 120 days’ notice to Consultancy; or
(b) where Consultancy ceases its business or the majority legal or beneficial ownership of Consultancy is transferred to a third party without the prior written consent of Company.
11.5 Upon expiry or termination of this agreement for any reason Consultancy must:
(a) immediately cease all use of and deliver up to Company or destroy, as required by Company all Company Materials and all copies of specifications, designs, artwork, copy, samples and other information and materials relating to the Services or deliverables;
(b) not use or in any way exploit any Confidential Information of Company and deliver up to Company or destroy (as required by Company) all documents and other materials in any medium in Consultancy’s possession, power or control which contain or refer to any Confidential Information of Company; and
(c) cease to hold itself out as being associated in any way with Company, the Services or deliverables.
11.6 Clauses 7.2, 7.5, 8, 10, 11.5, 12 and 13 survive termination or expiry of this agreement for any reason. Any right that has accrued prior to termination or expiry will not be affected.
12.1 Each party may only use Confidential Information of the other party for the purpose of complying with or exercising its rights and obligations under this agreement.
12.2 Each party must treat as confidential all Confidential Information of the other party, and unless required by government, law or regulation, must not disclose or publish any such Confidential Information to a third party without the prior written permission of the other party. Where disclosure is required by government, law or regulation, the other party must be notified prior to disclosure and given the opportunity to limit or prevent the disclosure of its Confidential Information.
12.3 The obligations of the parties in clause 12.1 and 12.2 do not apply if a party can show that the Confidential Information of the other party:
(a) is now in the public domain or, after the date of disclosure of the information, has entered the public domain through no fault of the party;
(b) was known to the party at the time the information was received by the party pursuant to this agreement (by reference to contemporaneous records);
(c) was provided to the party by a third party after the date of this agreement, lawfully and without violating any restriction on its disclosure; or
(d) was independently developed by the party without reference to the Confidential Information (by reference to contemporaneous records).
12.4 In this agreement, Confidential Information means:
(a) all business, financial, technical and other commercially valuable or sensitive information in whatever form, including Intellectual Property, inventions (whether or not reduced to practice), trade secrets, methodologies, formulae, graphs, drawings, biological materials, samples, devices, models, and any other materials or information which a party regards as confidential, proprietary or of a commercially sensitive nature in the possession of that party or its employees or management, and in the case of Company including all information in or relating to the Products or Improvements or any Marketing Authorisation;
(b) all information created, ascertained, discovered or derived by or on behalf of the other party, directly or indirectly, from any Confidential Information of the other party; and
(c) all information relating to this agreement including its terms and negotiation,
in each case whether disclosed visually, orally, in writing or by electronic means, directly or indirectly by the party, and whether disclosed or created before or after the date of this agreement.
13.1 If a dispute arises out of or related to this agreement no party may commence court or arbitration proceedings (other than proceedings for urgent interlocutory relief) unless it has complied with this clause 13.
13.2 A party to this agreement claiming that a dispute has arisen under or in relation to this agreement must give written notice to the other party specifying the nature of the dispute. On receipt of that notice by the other party the parties’ representatives must endeavour in good faith to resolve the dispute expeditiously and in any event within 10 Business Days, failing which either party may bring such proceedings as it sees fit.
14.1 Any notice in connection with this agreement will be deemed to have been duly given when made in writing and delivered or sent by facsimile or post to the party to whom such notice is intended to be given at the address or facsimile number of that party at the front of this agreement or to such other address or facsimile number as may from time to time be notified in writing to the other party. Any notice that is delivered or sent by facsimile will be deemed to have been received on the date of delivery or transmission and a notice that is sent by post will be deemed to have been received at the expiration of 2 Business Days after the date of posting (5 Business Days if sent to or from a place outside of Singapore).
14.2 Any failure by a party to insist upon strict performance of any provision of this agreement will not be a waiver of any existing or future rights of that party in relation to the provision.
14.3 A party must not assign or otherwise deal with its rights or obligations under this agreement (except to a related body corporate) without the prior written consent of the other party (which must not be withheld unreasonably).
14.4 This agreement is governed by the laws of Singapore. The parties agree to submit to the non-exclusive jurisdiction of the courts of Singapore.
14.5 This agreement contains the entire agreement of the parties with respect to its subject matter and may only be amended in writing.
14.6 This agreement does not create a relationship of Consultancy, partnership, joint venture or employment between the parties. Neither party has any authority to act for or incur any liability or obligation on behalf of the other party in any manner.
14.7 Each party agrees to do everything reasonably necessary to give effect to this agreement.
14.8 This agreement may be executed in any number of counterparts. All counterparts taken together will constitute an agreement.
15.1 In this the following rules of interpretation apply unless the context requires otherwise.
(a) Headings are for convenience only and do not affect interpretation.
(b) This agreement includes the Schedules and annexures.
(c) A reference to conduct includes any omission and any statement or undertaking, whether or not in writing.
(d) “Including” and similar expressions are not words of limitation.
(e) This document or any part of it is not to be construed against a party because that party drafted or proposed it.
(f) Where an act is to be performed on a day that is not a Business Day, the act will be required to be performed on the following Business Day.
(g) A person includes a corporation, unincorporated association, partnership, joint venture or public, statutory or governmental association or Consultancy.
(h) A reference to dollars is to Singapore Dollars.
15.2 If any provision of this agreement is invalid, illegal or unenforceable, this agreement takes effect (where possible) as if it did not include that provision.
Cadenza Communications Pte. Ltd
38B Circular Road