Terms and Conditions

General Conditions for the supply by Supplier of Goods and/or Services

General Conditions for the supply by Supplier of Goods and/or Services

 

1.             Definitions and Interpretation

1.1          Unless the context otherwise requires, the following terms shall have the following meanings:

                Agreement” means the agreement between Buyer and Supplier for the supply by Supplier of the Goods and/or Services mentioned in the PO

                "Associate" means in relation to any person (i) a Relative or partner of that person; or (ii) a company one or more of whose Directors is in common                      with one or more of the Directors of that person.

              “Associated Person” means in relation to another person: (i) any person who has Control, directly or indirectly, over the other; (ii) any person who is                   Controlled, directly or indirectly, by the other; or (iii) any person who is Controlled by, or has Control over, a person set out in (i) or (ii) above.

              “Approved Invoice” means in relation to an Invoice Approved by the buyer as confirmation and evidence of delivery of goods as specified in the PO

             “BUYER” means issuer of Purchase Order.

             “Control” means in relation to another person the power of a person to secure: (i) by means of the holding of shares or interests or the possession of                   voting power in or in relation to that or any other person; (ii) by virtue of powers conferred by any constitution, articles of association, partnership,                         agreement or arrangement (whether legally enforceable or not) affecting that or any other person; or (iii) by virtue of holding office as a Director in that                or any other person; that the affairs of the first-mentioned person are conducted in accordance with the wishes of that other person.

             “Delivery Site” means the delivery site as specified by Buyer, whether in the PO or otherwise, for the delivery of the Goods.

             "Digital Collateral Receipt” means in relation to a consolidated electronic record of details related to the supply chain including PO, details of supplier,               details of buyer, approved invoice, credit rating of buyer among others.

             “Director” means any person occupying the position of a director by whatever name called and includes a de facto or shadow director.

             “Force Majeure Event” means, with respect to a Party, any supervening event outside of such Party’s reasonable control which substantially prevents                  such Party from performing its obligations under this Agreement, including any flood, fire, lightning, earthquake, storm, explosion, meteor, accident,                      embargo, blockade, riot, any kind of war, acts of terrorism (which has direct impact on the performance of the duties and obligations of a Party) or of                   the public enemy, power outage, or acts of God; provided that for the avoidance of doubt, the Force Majeure Event shall not include: (i) any inability to                 pay amounts due; and (ii) any Force Majeure Event caused or contributed to by a Party, its employees, agents and subcontractors.  

              “Goods” means both tangible and intangible goods (including software and related documentation) as specified by the buyer to be supplied by                Supplier  in accordance with this Agreement.

Government Authority” means any government or governmental department, a governmental, semi-government or judicial person or a person charged with the administration of any applicable law.

Intellectual Property Rights” means patents, inventions (whether patentable or not), trademarks, service marks, logos, trade names, domain names, design rights, rights in know-how, confidential information, trade secrets, copyrights, moral rights and any other intellectual property or proprietary rights (including rights in computer software), in each case whether registered or unregistered and including applications for the registration or grant of any such rights and any and all forms of protection having equivalent or similar effect anywhere in the world and any rights under licences in relation to any such right.

                “Party” means either Buyer or Supplier and “Parties” means Buyer and Supplier.

                “PO” means the purchase order in writing issued by BUYER to Supplier. 

                “Price” means the price payable by BUYER to Supplier for the Approved Invoice related to provision of the Goods and/or Services under this Agreement and as specified by Buyer in the PO (as amended by the Parties from to time).

Relative” means the spouse, parent, child, brother or sister of the relevant person, and, in deducing such as relationship, an adopted child shall be deemed to be a child both of the natural parents and the adopting parent and a step child to be a child of both the natural parents and the step parent.

                “Requirements” means, in relation to the Goods and/or Services, Buyers’ requirements as set out in the PO (as amended by Buyer from time to time).

                “Services” means the services specified by Buyer in the PO to be provided by Supplier in accordance with this Agreement.              

              “SCF” means Supply Chain Finance Platform.

             “Special Conditions” means the special conditions specified by Buyer which are applicable to this Agreement.

                “Supplier” means the supplier to whom the PO is issued, whose name and registered office address is set out in the PO. 

              “Notice of Assignment” means documentary proof of sale of the Approved Invoice by the supplier/vender to the SCF Platform.

1.2          In this Agreement, unless the context otherwise requires: (i) the singular includes the plural and vice versa; (ii) the word person includes a body corporate, an unincorporated association or an authority; (iii) a reference to a Party includes its successors and permitted assigns; (iv) a reference to a document, includes any amendment, replacement or novation of it; (v) a reference to a Clause or Schedule is a reference to a Clause of and Schedule to this Agreement and a reference to this Agreement includes the Schedule; (vi) a reference to any statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws varying, consolidating or replacing it and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute; (vii) if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day; (viii)  the headings are for convenience only and do not affect the interpretation of this Agreement; and (ix) the words “includes” and “including” are to be construed without limitation.

1.3        If there is any inconsistency between the Special Conditions, General Conditions and the PO, the inconsistency will be resolved in the following descending order of precedence: (i) the Special Conditions (if any); (ii) the General Conditions; and (iii) the PO.

2.           Acceptance of PO

2.1.         These General Conditions, the Special Conditions (if any) and the relevant PO issued by Buyer set forth the terms of Buyers offer to Supplier.

2.2          When Supplier accepts Buyers offer, either by acknowledgement in writing, delivery of any Goods and/or commencement of performance of any Services, a binding Agreement comprising the Special Conditions (if applicable), the General Conditions and the terms and conditions of the PO will be formed. Any unilateral amendment or variation of the Special Conditions, General Conditions and the PO by Supplier shall have no legal effect.

2.3          Buyer is not bound by and hereby expressly rejects Supplier’s general conditions of sale and any additional or different terms or provisions that appear on any proposal, quotation, price list, acknowledgment, invoice, packing slip or any other documents used by Supplier. Any course of performance or dealing between the Parties and trade custom shall not apply to this Agreement.

3.             Price

3.1          Unless otherwise agreed by Buyer, the Price agreed by the Parties is a fixed price which includes all fees, charges, costs, fees, expenses of Supplier (including all the expenses for insurance, packaging, transportation and delivery of the Goods) and all applicable tax for the provision of the Goods and/or Services by Supplier under this Agreement.

3.2          Supplier will be responsible for all new or additional taxes, duties, imposts, levies, deductions, withholdings and government charges arising out of or in connection with this Agreement.

4.             Delivery of Goods

4.1          Unless otherwise agreed in writing, all Goods shall be delivered in accordance with the delivery Requirements to the Delivery Site.

4.2          Delivery of the Goods shall be deemed completed at the moment receipt has been acknowledged by Buyer in writing but this shall not constitute acceptance of the Goods.

4.3          Supplier shall, concurrently with the delivery of the Goods, provide Buyer with copies of all applicable licenses (if applicable and required by Buyer). Each delivery of Goods to Buyer shall include a packing list which contains at least the applicable PO number, the description and quantity of the Goods shipped and the date of shipment. Each package of Goods shipped shall be externally labelled to indicate the description and quantity of the Goods contained therein.

4.4          Supplier shall make no partial delivery or any delivery before the agreed delivery date(s). Buyer reserves the right to: (i) reject the delivery of Goods and return the same at Supplier’s risk and expense if Supplier defaults in the manner and/or time of delivery; and (ii) purchase the Goods elsewhere and claim Supplier for all losses and damages arising therefrom.

4.5          BUYER shall not be liable for any costs and expenses incurred by Supplier related to production, installation, assembly or any other work related to the Goods, prior to the delivery in accordance with this Agreement.

4.6          Supplier is responsible, at its own cost and expense, for the insurance, packaging, transportation and delivery of the Goods to the Delivery Site. Supplier shall ensure that the Goods delivered at the Delivery Site shall be in good working condition without any loss, damage and defect.  Supplier shall pack, mark and ship the Goods in accordance with sound commercial practices and Buyers Requirements to facilitate efficient unloading, handling and storage, and all Goods shall be clearly marked as destined for Buyer.

4.7          Supplier shall be responsible for any loss and damage due to its failure to properly preserve, package, handle, pack and deliver the Goods. BUYER shall not be required to assert any claims for such loss or damage against the common carrier involved.

5.             Requirements for Goods and/Services

5.1          The Goods and/or Services shall be provided by Supplier in accordance with all applicable law and shall conform in all respects to buyers Requirements.

5.2          Upon request by buyer, Supplier shall furnish buyer with written evidence or certificate to the satisfaction of buyer indicating that the ordered Goods have been subjected to tests normally carried out for the type of the Goods ordered or such other tests as buyer may specify or require.

5.3          Supplier shall perform the Services in a timely and professional manner to the highest level of skill and care generally observed in the industry for similar services, using the proper materials and employing sufficiently qualified staff.

5.4          Supplier shall be fully liable for any and all third parties (including its agents and subcontractors) with which it has contracted in connection with the Services.

5.5          Only “Approved Invoice” by buyer shall constitute the acceptance of the Goods/Services performed.

6.             Inspection and Rejection

6.1          Inspection of or payment for the Goods by buyer shall not constitute acceptance. Inspection or acceptance of or payment for the Goods by buyer shall not release Supplier from any of its obligations, representations or warranties under this Agreement.

6.2          Buyer may, at any time, inspect the Goods or the manufacturing process for the Goods. If any inspection or test by buyer is made on the premises of Supplier, Supplier shall provide reasonable facilities and assistance for the safety and convenience of buyer’s inspection personnel.

6.3         If buyer does not accept any of the Goods and/or Services, buyer shall promptly notify Supplier and BUYER of such rejection, and Clauses 6.5 to 6.7 shall apply. Within two (2) weeks from such notification, Supplier shall collect the Goods from buyer at its own cost and expense or shall promptly re-perform the Services in accordance with BUYER’s instructions. If Supplier does not collect the Goods within such two (2) week period, buyer is entitled to have the Goods delivered to Supplier at Supplier's cost and expense, or with the Supplier’s prior consent destroy the Goods, without prejudice to any other rights or remedies buyer may have under this Agreement, at law or in equity.

6.4          If, as a result of sampling inspection, any part of a lot or shipment of like or similar items is found not to be in conformity with this Agreement, buyer is entitled to: (i) reject and return the entire shipment or lot without further inspection; or (ii) at its option, complete inspection of all items in the shipment or lot, reject and return any or all nonconforming units (or accept them at a reduced price) and charge Supplier the cost and expense of such inspection.

6.5          If any Goods and/or Services provided by Supplier are defective or otherwise not in conformity with the requirements of this Agreement, buyer shall notify Supplier and is entitled to, without prejudice to any other right or remedy available to it under this Agreement, at law or in equity, at its sole discretion:

(i)            claim a full refund of the Price paid by buyer for the Goods and/or Services under this Agreement;

(ii)          require Supplier promptly to: (a) remedy the non-conformance; (b) replace the nonconforming Goods with Goods meeting the Requirements as soon as possible; and (c) re-perform the Services that meet the Requirements as soon as possible; or

(iii)          purchase the non-confirming, defective, lost or damaged Goods elsewhere and claim Supplier for the loss and damage resulting therefrom; and/or

(iv)          engage any third party to provide the Services (in whole or in part) and claim Supplier for the loss and damage resulting therefrom.

6.6          Supplier shall bear all the cost and expense of: (i) repair, replacement, transportation and delivery of the nonconforming Goods; and (ii) re-performing the Services to the satisfaction of buyer. Supplier shall reimburse buyer in respect of all costs and expenses (including inspection, handling and storage costs and expenses) reasonably incurred by BUYER in connection therewith.

6.7          Risk in relation to the nonconforming Goods shall pass to Supplier upon the date of notification thereof by buyer to Supplier in accordance with this Clause.

7.             Title and Risk

7.1          Title in the Goods shall pass to buyer on payment by buyer for the Goods.

7.2          Supplier will be responsible for all loss or damage of the Goods arising prior to the delivery in accordance with this Agreement and will, subject as otherwise agreed with buyer, be liable to replace all lost or damaged Goods or any short shipment without delay.

7.3          Buyer will, in its sole discretion, arrange for the Goods to be surveyed in their packaged condition as soon as practicable after receipt and due note will be made of all loss, damage or short shipment or possible any loss, damage or short shipment.

7.4          Buyer shall be allowed a reasonable period of time after receipt of the Goods to open up packaging and to conduct a thorough inspection in respect of damage, loss or short shipment.

7.5          In the event that the Goods and/or any item is not accepted by buyer in accordance with the acceptance procedures, buyer shall, without prejudice to any other rights or remedies buyer may have, at its option reassign to Supplier, and Supplier shall reacquire from buyer, title to and risk in any items specified by buyer which has not been accepted.

8.     Supplier’s Warranties

8.1          Supplier warrants and represents to buyer that:

(i)            the Goods sold by Supplier shall conform in all respects to the quantity, quality, description of the Goods as detailed in the PO;

(ii)           the Goods shall conform in all respects to the Requirements (including the description, quantity and the standards of quality and performance). If no such standards are stipulated in the Requirements, Supplier warrants that the Goods shall conform to such standards as are generally accepted to be of the highest standard for similar goods;

(iii)          it has good title to the Goods and the Goods are free from encumbrances;

(iv)          the Goods shall be manufactured using only the best quality materials suitable for the intended use coupled with good quality workmanship under supervision of competent technical and other personnel;

(v)           the Goods shall comply with the standards requirement (if any) issued by any Government Authority;

(vi)          for Goods which are electrical products, they shall comply with the Electrical Products (Safety) Regulations as applicable and the Supplier shall before the dispatch of the Goods for shipment and for each model of electrical products under this Agreement, a certified true copy of valid certificate(s) of safety compliance in accordance with the said regulation;

(vii)         the provision of the Goods and/or Services and performance of any other obligations by Supplier under this Agreement do not and shall not violate any applicable law, any third party Intellectual Property Rights, or any contracts which Supplier has entered into with any third parties; and

(viii)        where ownership, copyright or other Intellectual Property Rights in the software, software documentation, release or upgrade belong to any third party, it has obtained and procured all necessary consents, approvals and licences for the use of the same contemplated under this Agreement in respect of the same throughout the world.

8.2          The Supplier’s warranties under Clause 8.1 shall not be deemed to exclude Supplier’s standard warranties or other rights or warranties which buyer may have or obtain, and such warranties shall survive any delivery, inspection, acceptance, payment or resale of the Goods and/or provision of the Services and shall extend to buyer and its customers. Acceptance of, or payment for, all or any part of the Goods or Services furnished under this Agreement shall not be deemed to be a waiver of buyers right to cancel or return or reject all or any part thereof because of failure to conform to PO or Requirements or by reason of defects, latent or otherwise, or other breach of this Agreement or warranties, or to make any claim for losses and damages (including manufacturing costs and loss of profits or other special damages occasioned to buyer).

8.3          The cost to Supplier arising out of its compliance with this Clause shall be included in the Price payable by buyer to Supplier under this Agreement.

9.            Payment

9.1          Supplier shall send to buyer invoices and such other documentation requested by buyer (including bills of lading, shipping documents, customs forms, export licences and permits, country of original statements, packing lists, delivery acknowledgement and any other documentation reasonably required by buyer for payment).

9.2          Unless expressly specified in the PO, all payment made by BUYER for the Goods and/or Services to Supplier shall be in approved currency and shall, subject to Clauses 9.3 and 9.4, be paid within ninety (90) days of the receipt by buyer of the relevant invoice.

9.3          If buyer disputes any invoices, it shall notify Supplier in writing of such dispute and shall be entitled to withhold payment to Supplier regarding the disputed amount. Upon receipt of the dispute notice sent by buyer, the Parties shall use all reasonable endeavours to resolve the dispute as soon as reasonably practicable.

9.4          Without prejudice to any other rights, powers and remedies buyer may have under this Agreement, at law, in equity or otherwise, buyer is entitled to withhold payment, set off and deduct any amount from the Price that Supplier owes buyer whether under this Agreement or otherwise.

10.          Suspension and Termination

10.1        Without prejudice to any rights and remedies buyer may have under this Agreement, buyer shall have the right to suspend (in whole or in part) or terminate this Agreement (in whole or in part) and/or any PO with immediate effect by serving Supplier notice in writing if:

(i)            Supplier commits any material breach of any term of this Agreement (in the case of a breach capable of being remedied) and that breach is not remedied within fourteen (14) days after notice to do so has been served on Supplier;

(ii)           Supplier shall have a receiver or an administrative receiver appointed or shall pass a resolution for winding-up (other than for the purposes of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if Supplier shall become subject to an administrative order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business.

10.2        The suspension or termination of this Agreement shall not prejudice or affect any right or remedy which will have accrued or will thereafter accrue to either Party before the date of suspension or termination.

11.          Limitation of Liability and Indemnity

11.1        Nothing in this Agreement shall limit or exclude:

(i)            a Party’s liability for death or personal injury resulting from the negligence of a Party, its employees, agents or contractors while acting in the course of their employment or engagement (as the case may be); or

(ii)          a Party’s fraud or any other liabilities to the extent that it cannot be limited or excluded by law.

11.2        Notwithstanding any other provisions of this Agreement and to the extent permitted by law, buyer and SCF shall not be liable to Supplier for any indirect, special, consequential, collateral, incidental or punitive losses or damages including loss of business, revenue, profit, contracts, anticipated savings or goodwill, loss of use or value of any equipment including software, claims of third parties and all associated and incidental costs and expenses.

11.3        Subject to Clauses 11.1 and 11.2 and to such extent permissible by law, the aggregate liability of buyer to Supplier for all liabilities arising by reason of or in connection with this Agreement and regardless of the form in which any legal or equitable action may be brought (whether in tort, contract, strict liability or otherwise) is limited to the aggregate of the Price paid by buyer to Supplier under this Agreement.

11.4        Supplier shall indemnify and hold harmless buyer and SCF, its agents, employees and anyone using the Goods and/or Services from and against all suits, actions, proceedings, claims (including any claim of any third party’s Intellectual Property Rights), demands, losses, damages, judgments, interest, attorneys’ fees, fines, costs and expenses of whatsoever kind or nature and any other liabilities, whether arising before or after completion of the delivery of the Goods or performance of the Services under this Agreement, in any manner caused or claimed to be caused by the acts, omissions, faults, breach of express or implied warranty, breach of any of the provisions of this Agreement, or negligence of Supplier, or of anyone acting under its direction or control or on its behalf, in connection with Goods and/or Services provided by Supplier to buyer and SCF under this Agreement.

12.          Force Majeure

12.1        Notwithstanding any other provision of this Agreement, a Party will not be liable for any failure to fulfil an obligation under this Agreement if such a fulfilment is delayed, prevented, restricted or interfered with for any reason as a result of a Force Majeure Event provided that:

(i)            the Party has promptly notified the other Party of the Force Majeure Event setting out the details of the Force Majeure Event and an estimate of the extent and duration of its inability to perform; and

(ii)           the Party has used its reasonable endeavors to mitigate the effect of the Force Majeure Event and to carry out its obligations under this Agreement in any other way practicable.

12.2        If a delay or failure to perform a Party's obligations due to a Force Majeure Event continues consecutively for ninety (90) days or more, the other Party may immediately terminate this Agreement on notice to the first Party, but only if it has otherwise complied with the provisions of this Agreement.

 

13           Confidentiality

13.1.       Supplier shall treat all information provided by or on behalf of buyer and SCF under this Agreement as confidential. All such information shall be used by Supplier only for the purposes of this Agreement. Supplier shall protect buyers and SCF’s information using not less than the same degree of care with which it treats its own confidential information, but at all times shall use at least reasonable care. All such information shall remain the property of buyer or SCF and Supplier shall, upon buyer or SCF’s demand, promptly destroy or return to buyer or SCF all such information and shall not retain any copy thereof.

13.2.       The existence and the contents of this Agreement shall be treated as confidential by Supplier.

14.          Assignment

14.1        Supplier shall not assign, sub-contract, transfer or otherwise dispose of any or all of its rights, duties and obligations under this Agreement, without the prior written consent of buyer, which consent shall not be unreasonably delayed or withheld.

The supplier has however received express permission in this agreement to assign his receivables using a “Notice of Assignment” for early payments based on the SCF Platform terms and conditions.

14.2        Buyer shall have the rights to assign, novate, transfer, convey, license or otherwise dispose of any or all of its rights, duties or obligations under this Agreement.

15.          Governing Law

                This Agreement shall be governed by and construed in accordance with the laws of England. The Parties shall submit to the non-exclusive jurisdiction of English court system.

16.          Probity

16.1       Supplier shall prohibit its Directors, employees, agents and sub-contractors who are involved in this Agreement from offering, soliciting or accepting any advantage as defined in the Prevention of Bribery Laws.

16.2     Supplier shall caution its Directors, employees, agents and sub-contractors against soliciting or accepting any excessive hospitality, entertainment or inducements which would impair their impartiality in relation to this Agreement.

16.3     Supplier shall take all necessary measures (including by way of contractual provisions and/or providing training workshops where appropriate) to ensure that its Directors, employees, agents and sub-contractors are aware of the aforesaid prohibition and will not solicit or accept any advantages or excessive hospitality when conducting business in connection with this Agreement.

16.4      Without prejudice to any other rights and remedies of buyer under this Agreement or otherwise, buyer is entitled to terminate this Agreement and any other contracts or agreements between Supplier and BUYER immediately without compensation to Supplier if Supplier or any of its Directors, employees, agents and sub-contractors is convicted of an offence under the Prevention of Bribery or Money Laundering Laws in connection with this Agreement and Supplier shall indemnify buyer  fully against any losses, damages, costs and expenses suffered or incurred by buyer arising therefrom.

 

17.          Conflict of Interest

17.1        Supplier shall during the term of this Agreement and for three (3) months thereafter:

(i)            ensure that it (including each and every employee of Supplier) and each of its sub-contractors and each of their respective employees, officers and agents engaged in the discharge of the obligations hereunder, and each of their respective Associates and Associated Persons, shall not undertake any service, task, or job or do anything whatsoever for or on behalf of any third party (other than in the proper performance of the Agreement) which conflicts or which may be seen to conflict with Supplier’s duties or obligations under this Agreement without the prior written approval of BUYER (which approval shall not be unreasonably refused or delayed); and

(ii)           forthwith notify BUYER in writing of all or any facts which may reasonably be considered to give rise to a situation where the financial, professional, commercial, personal or other interests of Supplier or any of Supplier’s sub-contractors or any of their respective employees, officers and agents deployed for the performance of Supplier’s obligations hereunder or their respective Associates or Associated Persons, conflict or compete, or may be seen to conflict or compete, with Supplier’s duties or obligations under this Agreement.

17.2        Supplier shall ensure that each of its Associates and Associated Persons, each of its sub-contractors and each of their respective employees, officers and agents deployed in the performance of Supplier’s obligations hereunder and their respective Associates and Associated Persons shall keep themselves informed and inform Supplier and keep it informed regularly of all facts which may reasonably be considered to give rise to a situation in which the financial, professional, commercial, personal or other interests of such persons, conflict or compete, or may be seen to conflict or compete, with Supplier’s obligations under this Agreement.

 

18.          Notice

                Any notices, waivers, consents and other communications (collectively, “Communication”) in connection with this Agreement shall be in writing and shall be sent to the registered office address of the other Party. The Communication is deemed given and received: (i) if delivered by hand, when it is delivered; (ii) when given or made by letter, three (3) days after posting from a place within the country (or seven (7) days after posting from a place outside of the country), if properly addressed with postage prepaid, in each case to the address of the applicable Party as follows.  Each Party may change its address for this purpose by giving written notice to the other Party in accordance with this Clause.

 

19.          Miscellaneous Provisions

19.1        This Agreement shall be amended or varied only upon the execution of a written agreement between the Parties which makes specific reference to this Agreement.

19.2        Failure or delay of any Party at any time to take action against the other Party as provided in this Agreement will not affect such first-mentioned Party’s right to require full performance of this Agreement at any time thereafter. Waiver by any Party of a breach of any provision of this Agreement will not constitute a waiver of any subsequent breach nor in any way affect any right, power or remedy of that Party under this Agreement.

19.3        If any provisions of this Agreement are construed to be illegal, invalid or unenforceable, they shall not affect the legality, validity and enforceability of the other provisions of this Agreement. The illegal, invalid or unenforceable provisions shall be deemed to be deleted from this Agreement and no longer incorporated but all other provisions of this Agreement will continue to be binding on the Parties. If, as a consequence of that deemed deletion, any Party becomes liable for loss or damage which would otherwise have been excluded, that liability is also subject to the other limitations and provisions of this Agreement in so far it continues to apply.

19.4        This Agreement constitutes the entire agreement and understanding between the Parties relating to the subject matter of this Agreement hereof and shall supersede and cancel in all respects all previous negotiations, proposal, arrangements, understandings or agreements, of any nature between the Parties on this subject matter.

19.5        The rights, powers and remedies of a Party under this Agreement are cumulative with the rights, powers or remedies provided by law independent of this Agreement.

19.6        A Party may exercise a right, power or remedy at its discretion, and separately or concurrently with any another right, power or remedy. A single or partial exercise of a right, power or remedy by a Party does not prevent a further exercise of that or of any other right, power or remedy.

19.7        A Party may give or withhold its approval or consent conditionally or unconditionally in its discretion unless this Agreement states otherwise.

19.8        Nothing in this Agreement is to be construed as creating a partnership, association, trust or joint venture between the Parties. Neither Party nor any of its employee, agent, representative or contractor is deemed an employee, agent, representation or contractor of the other Party. Neither Party has the authority to bind or incur any liability on behalf of the other Party and no such authority is to be implied.

19.9        Time shall be of the essence in all respects for Supplier to undertake and perform its duties and obligations under this Agreement.

19.10      Clauses which are intended to survive termination or expiration shall survive the termination or expiration of this Agreement and shall continue in full force and effect thereafter.

19.11      Supplier shall not at any time during the continuance of this Agreement make reference to buyer or this Agreement in any of its promotional materials or other publications, public statement or media releases, press release or other announcement without the prior written approval of buyer, such approval shall not be unreasonably withheld or delayed.

19.12      Neither Party shall use the other Party’s trade names, trademarks, service marks or logos without the prior written approval of the other Party and in accordance with the usage guidelines specified by the other Party.

19.13      Unless otherwise expressly provided for in this Agreement, a person who is not a Party to this Agreement has no rights to enforce any term of this Agreement.

19.14      Except where this Agreement expressly provides otherwise, each Party will pay its own costs and expenses (including legal fees) arising from the negotiation, preparation and implementation of this Agreement.

General Conditions for the supply by Supplier of Goods and/or Services

 

1.             Definitions and Interpretation

1.1          Unless the context otherwise requires, the following terms shall have the following meanings:

                Agreement” means the agreement between Buyer and Supplier for the supply by Supplier of the Goods and/or Services mentioned in the PO.           

                Associate” means in relation to any person: (i) a Relative or partner of that person; or (ii) a company one or more of whose Directors is in common with one or more of the Directors of that person.

Associated Person” means in relation to another person: (i) any person who has Control, directly or indirectly, over the other; (ii) any person who is Controlled, directly or indirectly, by the other; or (iii) any person who is Controlled by, or has Control over, a person set out in (i) or (ii) above.

              “Approved Invoice” means in relation to an Invoice Approved by the buyer as confirmation and evidence of delivery of goods as specified in the PO

 “BUYER” means issuer of Purchase Order.

Control” means in relation to another person the power of a person to secure: (i) by means of the holding of shares or interests or the possession of voting power in or in relation to that or any other person; (ii) by virtue of powers conferred by any constitution, articles of association, partnership, agreement or arrangement (whether legally enforceable or not) affecting that or any other person; or (iii) by virtue of holding office as a Director in that or any other person; that the affairs of the first-mentioned person are conducted in accordance with the wishes of that other person.

                “Delivery Site” means the delivery site as specified by Buyer, whether in the PO or otherwise, for the delivery of the Goods.

              “Digital Collateral Receipt” means in relation to a consolidated electronic record of details related to the supply chain including PO, details of supplier, details of buyer, approved invoice, credit rating of buyer among others.

Director” means any person occupying the position of a director by whatever name called and includes a de facto or shadow director.

                “Force Majeure Event” means, with respect to a Party, any supervening event outside of such Party’s reasonable control which substantially prevents such Party from performing its obligations under this Agreement, including any flood, fire, lightning, earthquake, storm, explosion, meteor, accident, embargo, blockade, riot, any kind of war, acts of terrorism (which has direct impact on the performance of the duties and obligations of a Party) or of the public enemy, power outage, or acts of God; provided that for the avoidance of doubt, the Force Majeure Event shall not include: (i) any inability to pay amounts due; and (ii) any Force Majeure Event caused or contributed to by a Party, its employees, agents and subcontractors.  

                “Goods” means both tangible and intangible goods (including software and related documentation) as specified by the buyer to be supplied by Supplier in accordance with this Agreement.

Government Authority” means any government or governmental department, a governmental, semi-government or judicial person or a person charged with the administration of any applicable law.

Intellectual Property Rights” means patents, inventions (whether patentable or not), trademarks, service marks, logos, trade names, domain names, design rights, rights in know-how, confidential information, trade secrets, copyrights, moral rights and any other intellectual property or proprietary rights (including rights in computer software), in each case whether registered or unregistered and including applications for the registration or grant of any such rights and any and all forms of protection having equivalent or similar effect anywhere in the world and any rights under licences in relation to any such right.

                “Party” means either Buyer or Supplier and “Parties” means Buyer and Supplier.

                “PO” means the purchase order in writing issued by BUYER to Supplier. 

                “Price” means the price payable by BUYER to Supplier for the Approved Invoice related to provision of the Goods and/or Services under this Agreement and as specified by Buyer in the PO (as amended by the Parties from to time).

Relative” means the spouse, parent, child, brother or sister of the relevant person, and, in deducing such as relationship, an adopted child shall be deemed to be a child both of the natural parents and the adopting parent and a step child to be a child of both the natural parents and the step parent.

                “Requirements” means, in relation to the Goods and/or Services, Buyers’ requirements as set out in the PO (as amended by Buyer from time to time).

                “Services” means the services specified by Buyer in the PO to be provided by Supplier in accordance with this Agreement.              

              “SCF” means Supply Chain Finance Platform.

             “Special Conditions” means the special conditions specified by Buyer which are applicable to this Agreement.

                “Supplier” means the supplier to whom the PO is issued, whose name and registered office address is set out in the PO. 

              “Notice of Assignment” means documentary proof of sale of the Approved Invoice by the supplier/vender to the SCF Platform.

1.2          In this Agreement, unless the context otherwise requires: (i) the singular includes the plural and vice versa; (ii) the word person includes a body corporate, an unincorporated association or an authority; (iii) a reference to a Party includes its successors and permitted assigns; (iv) a reference to a document, includes any amendment, replacement or novation of it; (v) a reference to a Clause or Schedule is a reference to a Clause of and Schedule to this Agreement and a reference to this Agreement includes the Schedule; (vi) a reference to any statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws varying, consolidating or replacing it and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute; (vii) if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day; (viii)  the headings are for convenience only and do not affect the interpretation of this Agreement; and (ix) the words “includes” and “including” are to be construed without limitation.

1.3        If there is any inconsistency between the Special Conditions, General Conditions and the PO, the inconsistency will be resolved in the following descending order of precedence: (i) the Special Conditions (if any); (ii) the General Conditions; and (iii) the PO.

2.           Acceptance of PO

2.1.         These General Conditions, the Special Conditions (if any) and the relevant PO issued by Buyer set forth the terms of Buyers offer to Supplier.

2.2          When Supplier accepts Buyers offer, either by acknowledgement in writing, delivery of any Goods and/or commencement of performance of any Services, a binding Agreement comprising the Special Conditions (if applicable), the General Conditions and the terms and conditions of the PO will be formed. Any unilateral amendment or variation of the Special Conditions, General Conditions and the PO by Supplier shall have no legal effect.

2.3          Buyer is not bound by and hereby expressly rejects Supplier’s general conditions of sale and any additional or different terms or provisions that appear on any proposal, quotation, price list, acknowledgment, invoice, packing slip or any other documents used by Supplier. Any course of performance or dealing between the Parties and trade custom shall not apply to this Agreement.

3.             Price

3.1          Unless otherwise agreed by Buyer, the Price agreed by the Parties is a fixed price which includes all fees, charges, costs, fees, expenses of Supplier (including all the expenses for insurance, packaging, transportation and delivery of the Goods) and all applicable tax for the provision of the Goods and/or Services by Supplier under this Agreement.

3.2          Supplier will be responsible for all new or additional taxes, duties, imposts, levies, deductions, withholdings and government charges arising out of or in connection with this Agreement.

4.             Delivery of Goods

4.1          Unless otherwise agreed in writing, all Goods shall be delivered in accordance with the delivery Requirements to the Delivery Site.

4.2          Delivery of the Goods shall be deemed completed at the moment receipt has been acknowledged by Buyer in writing but this shall not constitute acceptance of the Goods.

4.3          Supplier shall, concurrently with the delivery of the Goods, provide Buyer with copies of all applicable licenses (if applicable and required by Buyer). Each delivery of Goods to Buyer shall include a packing list which contains at least the applicable PO number, the description and quantity of the Goods shipped and the date of shipment. Each package of Goods shipped shall be externally labelled to indicate the description and quantity of the Goods contained therein.

4.4          Supplier shall make no partial delivery or any delivery before the agreed delivery date(s). Buyer reserves the right to: (i) reject the delivery of Goods and return the same at Supplier’s risk and expense if Supplier defaults in the manner and/or time of delivery; and (ii) purchase the Goods elsewhere and claim Supplier for all losses and damages arising therefrom.

4.5          BUYER shall not be liable for any costs and expenses incurred by Supplier related to production, installation, assembly or any other work related to the Goods, prior to the delivery in accordance with this Agreement.

4.6          Supplier is responsible, at its own cost and expense, for the insurance, packaging, transportation and delivery of the Goods to the Delivery Site. Supplier shall ensure that the Goods delivered at the Delivery Site shall be in good working condition without any loss, damage and defect.  Supplier shall pack, mark and ship the Goods in accordance with sound commercial practices and Buyers Requirements to facilitate efficient unloading, handling and storage, and all Goods shall be clearly marked as destined for Buyer.

4.7          Supplier shall be responsible for any loss and damage due to its failure to properly preserve, package, handle, pack and deliver the Goods. BUYER shall not be required to assert any claims for such loss or damage against the common carrier involved.

5.             Requirements for Goods and/Services

5.1          The Goods and/or Services shall be provided by Supplier in accordance with all applicable law and shall conform in all respects to buyers Requirements.

5.2          Upon request by buyer, Supplier shall furnish buyer with written evidence or certificate to the satisfaction of buyer indicating that the ordered Goods have been subjected to tests normally carried out for the type of the Goods ordered or such other tests as buyer may specify or require.

5.3          Supplier shall perform the Services in a timely and professional manner to the highest level of skill and care generally observed in the industry for similar services, using the proper materials and employing sufficiently qualified staff.

5.4          Supplier shall be fully liable for any and all third parties (including its agents and subcontractors) with which it has contracted in connection with the Services.

5.5          Only “Approved Invoice” by buyer shall constitute the acceptance of the Goods/Services performed.

6.             Inspection and Rejection

6.1          Inspection of or payment for the Goods by buyer shall not constitute acceptance. Inspection or acceptance of or payment for the Goods by buyer shall not release Supplier from any of its obligations, representations or warranties under this Agreement.

6.2          Buyer may, at any time, inspect the Goods or the manufacturing process for the Goods. If any inspection or test by buyer is made on the premises of Supplier, Supplier shall provide reasonable facilities and assistance for the safety and convenience of buyer’s inspection personnel.

6.3         If buyer does not accept any of the Goods and/or Services, buyer shall promptly notify Supplier and BUYER of such rejection, and Clauses 6.5 to 6.7 shall apply. Within two (2) weeks from such notification, Supplier shall collect the Goods from buyer at its own cost and expense or shall promptly re-perform the Services in accordance with BUYER’s instructions. If Supplier does not collect the Goods within such two (2) week period, buyer is entitled to have the Goods delivered to Supplier at Supplier's cost and expense, or with the Supplier’s prior consent destroy the Goods, without prejudice to any other rights or remedies buyer may have under this Agreement, at law or in equity.

6.4          If, as a result of sampling inspection, any part of a lot or shipment of like or similar items is found not to be in conformity with this Agreement, buyer is entitled to: (i) reject and return the entire shipment or lot without further inspection; or (ii) at its option, complete inspection of all items in the shipment or lot, reject and return any or all nonconforming units (or accept them at a reduced price) and charge Supplier the cost and expense of such inspection.

6.5          If any Goods and/or Services provided by Supplier are defective or otherwise not in conformity with the requirements of this Agreement, buyer shall notify Supplier and is entitled to, without prejudice to any other right or remedy available to it under this Agreement, at law or in equity, at its sole discretion:

(i)            claim a full refund of the Price paid by buyer for the Goods and/or Services under this Agreement;

(ii)          require Supplier promptly to: (a) remedy the non-conformance; (b) replace the nonconforming Goods with Goods meeting the Requirements as soon as possible; and (c) re-perform the Services that meet the Requirements as soon as possible; or

(iii)          purchase the non-confirming, defective, lost or damaged Goods elsewhere and claim Supplier for the loss and damage resulting therefrom; and/or

(iv)          engage any third party to provide the Services (in whole or in part) and claim Supplier for the loss and damage resulting therefrom.

6.6          Supplier shall bear all the cost and expense of: (i) repair, replacement, transportation and delivery of the nonconforming Goods; and (ii) re-performing the Services to the satisfaction of buyer. Supplier shall reimburse buyer in respect of all costs and expenses (including inspection, handling and storage costs and expenses) reasonably incurred by BUYER in connection therewith.

6.7          Risk in relation to the nonconforming Goods shall pass to Supplier upon the date of notification thereof by buyer to Supplier in accordance with this Clause.

7.             Title and Risk

7.1          Title in the Goods shall pass to buyer on payment by buyer for the Goods.

7.2          Supplier will be responsible for all loss or damage of the Goods arising prior to the delivery in accordance with this Agreement and will, subject as otherwise agreed with buyer, be liable to replace all lost or damaged Goods or any short shipment without delay.

7.3          Buyer will, in its sole discretion, arrange for the Goods to be surveyed in their packaged condition as soon as practicable after receipt and due note will be made of all loss, damage or short shipment or possible any loss, damage or short shipment.

7.4          Buyer shall be allowed a reasonable period of time after receipt of the Goods to open up packaging and to conduct a thorough inspection in respect of damage, loss or short shipment.

7.5          In the event that the Goods and/or any item is not accepted by buyer in accordance with the acceptance procedures, buyer shall, without prejudice to any other rights or remedies buyer may have, at its option reassign to Supplier, and Supplier shall reacquire from buyer, title to and risk in any items specified by buyer which has not been accepted.

8.     Supplier’s Warranties

8.1          Supplier warrants and represents to buyer that:

(i)            the Goods sold by Supplier shall conform in all respects to the quantity, quality, description of the Goods as detailed in the PO;

(ii)           the Goods shall conform in all respects to the Requirements (including the description, quantity and the standards of quality and performance). If no such standards are stipulated in the Requirements, Supplier warrants that the Goods shall conform to such standards as are generally accepted to be of the highest standard for similar goods;

(iii)          it has good title to the Goods and the Goods are free from encumbrances;

(iv)          the Goods shall be manufactured using only the best quality materials suitable for the intended use coupled with good quality workmanship under supervision of competent technical and other personnel;

(v)           the Goods shall comply with the standards requirement (if any) issued by any Government Authority;

(vi)          for Goods which are electrical products, they shall comply with the Electrical Products (Safety) Regulations as applicable and the Supplier shall before the dispatch of the Goods for shipment and for each model of electrical products under this Agreement, a certified true copy of valid certificate(s) of safety compliance in accordance with the said regulation;

(vii)         the provision of the Goods and/or Services and performance of any other obligations by Supplier under this Agreement do not and shall not violate any applicable law, any third party Intellectual Property Rights, or any contracts which Supplier has entered into with any third parties; and

(viii)        where ownership, copyright or other Intellectual Property Rights in the software, software documentation, release or upgrade belong to any third party, it has obtained and procured all necessary consents, approvals and licences for the use of the same contemplated under this Agreement in respect of the same throughout the world.

8.2          The Supplier’s warranties under Clause 8.1 shall not be deemed to exclude Supplier’s standard warranties or other rights or warranties which buyer may have or obtain, and such warranties shall survive any delivery, inspection, acceptance, payment or resale of the Goods and/or provision of the Services and shall extend to buyer and its customers. Acceptance of, or payment for, all or any part of the Goods or Services furnished under this Agreement shall not be deemed to be a waiver of buyers right to cancel or return or reject all or any part thereof because of failure to conform to PO or Requirements or by reason of defects, latent or otherwise, or other breach of this Agreement or warranties, or to make any claim for losses and damages (including manufacturing costs and loss of profits or other special damages occasioned to buyer).

8.3          The cost to Supplier arising out of its compliance with this Clause shall be included in the Price payable by buyer to Supplier under this Agreement.

9.            Payment

9.1          Supplier shall send to buyer invoices and such other documentation requested by buyer (including bills of lading, shipping documents, customs forms, export licences and permits, country of original statements, packing lists, delivery acknowledgement and any other documentation reasonably required by buyer for payment).

9.2          Unless expressly specified in the PO, all payment made by BUYER for the Goods and/or Services to Supplier shall be in approved currency and shall, subject to Clauses 9.3 and 9.4, be paid within ninety (90) days of the receipt by buyer of the relevant invoice.

9.3          If buyer disputes any invoices, it shall notify Supplier in writing of such dispute and shall be entitled to withhold payment to Supplier regarding the disputed amount. Upon receipt of the dispute notice sent by buyer, the Parties shall use all reasonable endeavours to resolve the dispute as soon as reasonably practicable.

9.4          Without prejudice to any other rights, powers and remedies buyer may have under this Agreement, at law, in equity or otherwise, buyer is entitled to withhold payment, set off and deduct any amount from the Price that Supplier owes buyer whether under this Agreement or otherwise.

10.          Suspension and Termination

10.1        Without prejudice to any rights and remedies buyer may have under this Agreement, buyer shall have the right to suspend (in whole or in part) or terminate this Agreement (in whole or in part) and/or any PO with immediate effect by serving Supplier notice in writing if:

(i)            Supplier commits any material breach of any term of this Agreement (in the case of a breach capable of being remedied) and that breach is not remedied within fourteen (14) days after notice to do so has been served on Supplier;

(ii)           Supplier shall have a receiver or an administrative receiver appointed or shall pass a resolution for winding-up (other than for the purposes of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if Supplier shall become subject to an administrative order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business.

10.2        The suspension or termination of this Agreement shall not prejudice or affect any right or remedy which will have accrued or will thereafter accrue to either Party before the date of suspension or termination.

11.          Limitation of Liability and Indemnity

11.1        Nothing in this Agreement shall limit or exclude:

(i)            a Party’s liability for death or personal injury resulting from the negligence of a Party, its employees, agents or contractors while acting in the course of their employment or engagement (as the case may be); or

(ii)          a Party’s fraud or any other liabilities to the extent that it cannot be limited or excluded by law.

11.2        Notwithstanding any other provisions of this Agreement and to the extent permitted by law, buyer and SCF shall not be liable to Supplier for any indirect, special, consequential, collateral, incidental or punitive losses or damages including loss of business, revenue, profit, contracts, anticipated savings or goodwill, loss of use or value of any equipment including software, claims of third parties and all associated and incidental costs and expenses.

11.3        Subject to Clauses 11.1 and 11.2 and to such extent permissible by law, the aggregate liability of buyer to Supplier for all liabilities arising by reason of or in connection with this Agreement and regardless of the form in which any legal or equitable action may be brought (whether in tort, contract, strict liability or otherwise) is limited to the aggregate of the Price paid by buyer to Supplier under this Agreement.

11.4        Supplier shall indemnify and hold harmless buyer and SCF, its agents, employees and anyone using the Goods and/or Services from and against all suits, actions, proceedings, claims (including any claim of any third party’s Intellectual Property Rights), demands, losses, damages, judgments, interest, attorneys’ fees, fines, costs and expenses of whatsoever kind or nature and any other liabilities, whether arising before or after completion of the delivery of the Goods or performance of the Services under this Agreement, in any manner caused or claimed to be caused by the acts, omissions, faults, breach of express or implied warranty, breach of any of the provisions of this Agreement, or negligence of Supplier, or of anyone acting under its direction or control or on its behalf, in connection with Goods and/or Services provided by Supplier to buyer and SCF under this Agreement.

12.          Force Majeure

12.1        Notwithstanding any other provision of this Agreement, a Party will not be liable for any failure to fulfil an obligation under this Agreement if such a fulfilment is delayed, prevented, restricted or interfered with for any reason as a result of a Force Majeure Event provided that:

(i)            the Party has promptly notified the other Party of the Force Majeure Event setting out the details of the Force Majeure Event and an estimate of the extent and duration of its inability to perform; and

(ii)           the Party has used its reasonable endeavors to mitigate the effect of the Force Majeure Event and to carry out its obligations under this Agreement in any other way practicable.

12.2        If a delay or failure to perform a Party's obligations due to a Force Majeure Event continues consecutively for ninety (90) days or more, the other Party may immediately terminate this Agreement on notice to the first Party, but only if it has otherwise complied with the provisions of this Agreement.

 

13           Confidentiality

13.1.       Supplier shall treat all information provided by or on behalf of buyer and SCF under this Agreement as confidential. All such information shall be used by Supplier only for the purposes of this Agreement. Supplier shall protect buyers and SCF’s information using not less than the same degree of care with which it treats its own confidential information, but at all times shall use at least reasonable care. All such information shall remain the property of buyer or SCF and Supplier shall, upon buyer or SCF’s demand, promptly destroy or return to buyer or SCF all such information and shall not retain any copy thereof.

13.2.       The existence and the contents of this Agreement shall be treated as confidential by Supplier.

14.          Assignment

14.1        Supplier shall not assign, sub-contract, transfer or otherwise dispose of any or all of its rights, duties and obligations under this Agreement, without the prior written consent of buyer, which consent shall not be unreasonably delayed or withheld.

The supplier has however received express permission in this agreement to assign his receivables using a “Notice of Assignment” for early payments based on the SCF Platform terms and conditions.

14.2        Buyer shall have the rights to assign, novate, transfer, convey, license or otherwise dispose of any or all of its rights, duties or obligations under this Agreement.

15.          Governing Law

                This Agreement shall be governed by and construed in accordance with the laws of England. The Parties shall submit to the non-exclusive jurisdiction of English court system.

16.          Probity

16.1       Supplier shall prohibit its Directors, employees, agents and sub-contractors who are involved in this Agreement from offering, soliciting or accepting any advantage as defined in the Prevention of Bribery Laws.

16.2     Supplier shall caution its Directors, employees, agents and sub-contractors against soliciting or accepting any excessive hospitality, entertainment or inducements which would impair their impartiality in relation to this Agreement.

16.3     Supplier shall take all necessary measures (including by way of contractual provisions and/or providing training workshops where appropriate) to ensure that its Directors, employees, agents and sub-contractors are aware of the aforesaid prohibition and will not solicit or accept any advantages or excessive hospitality when conducting business in connection with this Agreement.

16.4      Without prejudice to any other rights and remedies of buyer under this Agreement or otherwise, buyer is entitled to terminate this Agreement and any other contracts or agreements between Supplier and BUYER immediately without compensation to Supplier if Supplier or any of its Directors, employees, agents and sub-contractors is convicted of an offence under the Prevention of Bribery or Money Laundering Laws in connection with this Agreement and Supplier shall indemnify buyer  fully against any losses, damages, costs and expenses suffered or incurred by buyer arising therefrom.

 

17.          Conflict of Interest

17.1        Supplier shall during the term of this Agreement and for three (3) months thereafter:

(i)            ensure that it (including each and every employee of Supplier) and each of its sub-contractors and each of their respective employees, officers and agents engaged in the discharge of the obligations hereunder, and each of their respective Associates and Associated Persons, shall not undertake any service, task, or job or do anything whatsoever for or on behalf of any third party (other than in the proper performance of the Agreement) which conflicts or which may be seen to conflict with Supplier’s duties or obligations under this Agreement without the prior written approval of BUYER (which approval shall not be unreasonably refused or delayed); and

(ii)           forthwith notify BUYER in writing of all or any facts which may reasonably be considered to give rise to a situation where the financial, professional, commercial, personal or other interests of Supplier or any of Supplier’s sub-contractors or any of their respective employees, officers and agents deployed for the performance of Supplier’s obligations hereunder or their respective Associates or Associated Persons, conflict or compete, or may be seen to conflict or compete, with Supplier’s duties or obligations under this Agreement.

17.2        Supplier shall ensure that each of its Associates and Associated Persons, each of its sub-contractors and each of their respective employees, officers and agents deployed in the performance of Supplier’s obligations hereunder and their respective Associates and Associated Persons shall keep themselves informed and inform Supplier and keep it informed regularly of all facts which may reasonably be considered to give rise to a situation in which the financial, professional, commercial, personal or other interests of such persons, conflict or compete, or may be seen to conflict or compete, with Supplier’s obligations under this Agreement.

 

18.          Notice

                Any notices, waivers, consents and other communications (collectively, “Communication”) in connection with this Agreement shall be in writing and shall be sent to the registered office address of the other Party. The Communication is deemed given and received: (i) if delivered by hand, when it is delivered; (ii) when given or made by letter, three (3) days after posting from a place within the country (or seven (7) days after posting from a place outside of the country), if properly addressed with postage prepaid, in each case to the address of the applicable Party as follows.  Each Party may change its address for this purpose by giving written notice to the other Party in accordance with this Clause.

 

19.          Miscellaneous Provisions

19.1        This Agreement shall be amended or varied only upon the execution of a written agreement between the Parties which makes specific reference to this Agreement.

19.2        Failure or delay of any Party at any time to take action against the other Party as provided in this Agreement will not affect such first-mentioned Party’s right to require full performance of this Agreement at any time thereafter. Waiver by any Party of a breach of any provision of this Agreement will not constitute a waiver of any subsequent breach nor in any way affect any right, power or remedy of that Party under this Agreement.

19.3        If any provisions of this Agreement are construed to be illegal, invalid or unenforceable, they shall not affect the legality, validity and enforceability of the other provisions of this Agreement. The illegal, invalid or unenforceable provisions shall be deemed to be deleted from this Agreement and no longer incorporated but all other provisions of this Agreement will continue to be binding on the Parties. If, as a consequence of that deemed deletion, any Party becomes liable for loss or damage which would otherwise have been excluded, that liability is also subject to the other limitations and provisions of this Agreement in so far it continues to apply.

19.4        This Agreement constitutes the entire agreement and understanding between the Parties relating to the subject matter of this Agreement hereof and shall supersede and cancel in all respects all previous negotiations, proposal, arrangements, understandings or agreements, of any nature between the Parties on this subject matter.

19.5        The rights, powers and remedies of a Party under this Agreement are cumulative with the rights, powers or remedies provided by law independent of this Agreement.

19.6        A Party may exercise a right, power or remedy at its discretion, and separately or concurrently with any another right, power or remedy. A single or partial exercise of a right, power or remedy by a Party does not prevent a further exercise of that or of any other right, power or remedy.

19.7        A Party may give or withhold its approval or consent conditionally or unconditionally in its discretion unless this Agreement states otherwise.

19.8        Nothing in this Agreement is to be construed as creating a partnership, association, trust or joint venture between the Parties. Neither Party nor any of its employee, agent, representative or contractor is deemed an employee, agent, representation or contractor of the other Party. Neither Party has the authority to bind or incur any liability on behalf of the other Party and no such authority is to be implied.

19.9        Time shall be of the essence in all respects for Supplier to undertake and perform its duties and obligations under this Agreement.

19.10      Clauses which are intended to survive termination or expiration shall survive the termination or expiration of this Agreement and shall continue in full force and effect thereafter.

19.11      Supplier shall not at any time during the continuance of this Agreement make reference to buyer or this Agreement in any of its promotional materials or other publications, public statement or media releases, press release or other announcement without the prior written approval of buyer, such approval shall not be unreasonably withheld or delayed.

19.12      Neither Party shall use the other Party’s trade names, trademarks, service marks or logos without the prior written approval of the other Party and in accordance with the usage guidelines specified by the other Party.

19.13      Unless otherwise expressly provided for in this Agreement, a person who is not a Party to this Agreement has no rights to enforce any term of this Agreement.

19.14      Except where this Agreement expressly provides otherwise, each Party will pay its own costs and expenses (including legal fees) arising from the negotiation, preparation and implementation of this Agreement.

General Conditions for the supply by Supplier of Goods and/or Services

 

1.             Definitions and Interpretation

1.1          Unless the context otherwise requires, the following terms shall have the following meanings:

                Agreement” means the agreement between Buyer and Supplier for the supply by Supplier of the Goods and/or Services mentioned in the PO.           

                Associate” means in relation to any person: (i) a Relative or partner of that person; or (ii) a company one or more of whose Directors is in common with one or more of the Directors of that person.

Associated Person” means in relation to another person: (i) any person who has Control, directly or indirectly, over the other; (ii) any person who is Controlled, directly or indirectly, by the other; or (iii) any person who is Controlled by, or has Control over, a person set out in (i) or (ii) above.

              “Approved Invoice” means in relation to an Invoice Approved by the buyer as confirmation and evidence of delivery of goods as specified in the PO

 “BUYER” means issuer of Purchase Order.

Control” means in relation to another person the power of a person to secure: (i) by means of the holding of shares or interests or the possession of voting power in or in relation to that or any other person; (ii) by virtue of powers conferred by any constitution, articles of association, partnership, agreement or arrangement (whether legally enforceable or not) affecting that or any other person; or (iii) by virtue of holding office as a Director in that or any other person; that the affairs of the first-mentioned person are conducted in accordance with the wishes of that other person.

                “Delivery Site” means the delivery site as specified by Buyer, whether in the PO or otherwise, for the delivery of the Goods.

              “Digital Collateral Receipt” means in relation to a consolidated electronic record of details related to the supply chain including PO, details of supplier, details of buyer, approved invoice, credit rating of buyer among others.

Director” means any person occupying the position of a director by whatever name called and includes a de facto or shadow director.

                “Force Majeure Event” means, with respect to a Party, any supervening event outside of such Party’s reasonable control which substantially prevents such Party from performing its obligations under this Agreement, including any flood, fire, lightning, earthquake, storm, explosion, meteor, accident, embargo, blockade, riot, any kind of war, acts of terrorism (which has direct impact on the performance of the duties and obligations of a Party) or of the public enemy, power outage, or acts of God; provided that for the avoidance of doubt, the Force Majeure Event shall not include: (i) any inability to pay amounts due; and (ii) any Force Majeure Event caused or contributed to by a Party, its employees, agents and subcontractors.  

                “Goods” means both tangible and intangible goods (including software and related documentation) as specified by the buyer to be supplied by Supplier in accordance with this Agreement.

Government Authority” means any government or governmental department, a governmental, semi-government or judicial person or a person charged with the administration of any applicable law.

Intellectual Property Rights” means patents, inventions (whether patentable or not), trademarks, service marks, logos, trade names, domain names, design rights, rights in know-how, confidential information, trade secrets, copyrights, moral rights and any other intellectual property or proprietary rights (including rights in computer software), in each case whether registered or unregistered and including applications for the registration or grant of any such rights and any and all forms of protection having equivalent or similar effect anywhere in the world and any rights under licences in relation to any such right.

                “Party” means either Buyer or Supplier and “Parties” means Buyer and Supplier.

                “PO” means the purchase order in writing issued by BUYER to Supplier. 

                “Price” means the price payable by BUYER to Supplier for the Approved Invoice related to provision of the Goods and/or Services under this Agreement and as specified by Buyer in the PO (as amended by the Parties from to time).

Relative” means the spouse, parent, child, brother or sister of the relevant person, and, in deducing such as relationship, an adopted child shall be deemed to be a child both of the natural parents and the adopting parent and a step child to be a child of both the natural parents and the step parent.

                “Requirements” means, in relation to the Goods and/or Services, Buyers’ requirements as set out in the PO (as amended by Buyer from time to time).

                “Services” means the services specified by Buyer in the PO to be provided by Supplier in accordance with this Agreement.              

              “SCF” means Supply Chain Finance Platform.

             “Special Conditions” means the special conditions specified by Buyer which are applicable to this Agreement.

                “Supplier” means the supplier to whom the PO is issued, whose name and registered office address is set out in the PO. 

              “Notice of Assignment” means documentary proof of sale of the Approved Invoice by the supplier/vender to the SCF Platform.

1.2          In this Agreement, unless the context otherwise requires: (i) the singular includes the plural and vice versa; (ii) the word person includes a body corporate, an unincorporated association or an authority; (iii) a reference to a Party includes its successors and permitted assigns; (iv) a reference to a document, includes any amendment, replacement or novation of it; (v) a reference to a Clause or Schedule is a reference to a Clause of and Schedule to this Agreement and a reference to this Agreement includes the Schedule; (vi) a reference to any statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws varying, consolidating or replacing it and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute; (vii) if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day; (viii)  the headings are for convenience only and do not affect the interpretation of this Agreement; and (ix) the words “includes” and “including” are to be construed without limitation.

1.3        If there is any inconsistency between the Special Conditions, General Conditions and the PO, the inconsistency will be resolved in the following descending order of precedence: (i) the Special Conditions (if any); (ii) the General Conditions; and (iii) the PO.

2.           Acceptance of PO

2.1.         These General Conditions, the Special Conditions (if any) and the relevant PO issued by Buyer set forth the terms of Buyers offer to Supplier.

2.2          When Supplier accepts Buyers offer, either by acknowledgement in writing, delivery of any Goods and/or commencement of performance of any Services, a binding Agreement comprising the Special Conditions (if applicable), the General Conditions and the terms and conditions of the PO will be formed. Any unilateral amendment or variation of the Special Conditions, General Conditions and the PO by Supplier shall have no legal effect.

2.3          Buyer is not bound by and hereby expressly rejects Supplier’s general conditions of sale and any additional or different terms or provisions that appear on any proposal, quotation, price list, acknowledgment, invoice, packing slip or any other documents used by Supplier. Any course of performance or dealing between the Parties and trade custom shall not apply to this Agreement.

3.             Price

3.1          Unless otherwise agreed by Buyer, the Price agreed by the Parties is a fixed price which includes all fees, charges, costs, fees, expenses of Supplier (including all the expenses for insurance, packaging, transportation and delivery of the Goods) and all applicable tax for the provision of the Goods and/or Services by Supplier under this Agreement.

3.2          Supplier will be responsible for all new or additional taxes, duties, imposts, levies, deductions, withholdings and government charges arising out of or in connection with this Agreement.

4.             Delivery of Goods

4.1          Unless otherwise agreed in writing, all Goods shall be delivered in accordance with the delivery Requirements to the Delivery Site.

4.2          Delivery of the Goods shall be deemed completed at the moment receipt has been acknowledged by Buyer in writing but this shall not constitute acceptance of the Goods.

4.3          Supplier shall, concurrently with the delivery of the Goods, provide Buyer with copies of all applicable licenses (if applicable and required by Buyer). Each delivery of Goods to Buyer shall include a packing list which contains at least the applicable PO number, the description and quantity of the Goods shipped and the date of shipment. Each package of Goods shipped shall be externally labelled to indicate the description and quantity of the Goods contained therein.

4.4          Supplier shall make no partial delivery or any delivery before the agreed delivery date(s). Buyer reserves the right to: (i) reject the delivery of Goods and return the same at Supplier’s risk and expense if Supplier defaults in the manner and/or time of delivery; and (ii) purchase the Goods elsewhere and claim Supplier for all losses and damages arising therefrom.

4.5          BUYER shall not be liable for any costs and expenses incurred by Supplier related to production, installation, assembly or any other work related to the Goods, prior to the delivery in accordance with this Agreement.

4.6          Supplier is responsible, at its own cost and expense, for the insurance, packaging, transportation and delivery of the Goods to the Delivery Site. Supplier shall ensure that the Goods delivered at the Delivery Site shall be in good working condition without any loss, damage and defect.  Supplier shall pack, mark and ship the Goods in accordance with sound commercial practices and Buyers Requirements to facilitate efficient unloading, handling and storage, and all Goods shall be clearly marked as destined for Buyer.

4.7          Supplier shall be responsible for any loss and damage due to its failure to properly preserve, package, handle, pack and deliver the Goods. BUYER shall not be required to assert any claims for such loss or damage against the common carrier involved.

5.             Requirements for Goods and/Services

5.1          The Goods and/or Services shall be provided by Supplier in accordance with all applicable law and shall conform in all respects to buyers Requirements.

5.2          Upon request by buyer, Supplier shall furnish buyer with written evidence or certificate to the satisfaction of buyer indicating that the ordered Goods have been subjected to tests normally carried out for the type of the Goods ordered or such other tests as buyer may specify or require.

5.3          Supplier shall perform the Services in a timely and professional manner to the highest level of skill and care generally observed in the industry for similar services, using the proper materials and employing sufficiently qualified staff.

5.4          Supplier shall be fully liable for any and all third parties (including its agents and subcontractors) with which it has contracted in connection with the Services.

5.5          Only “Approved Invoice” by buyer shall constitute the acceptance of the Goods/Services performed.

6.             Inspection and Rejection

6.1          Inspection of or payment for the Goods by buyer shall not constitute acceptance. Inspection or acceptance of or payment for the Goods by buyer shall not release Supplier from any of its obligations, representations or warranties under this Agreement.

6.2          Buyer may, at any time, inspect the Goods or the manufacturing process for the Goods. If any inspection or test by buyer is made on the premises of Supplier, Supplier shall provide reasonable facilities and assistance for the safety and convenience of buyer’s inspection personnel.

6.3         If buyer does not accept any of the Goods and/or Services, buyer shall promptly notify Supplier and BUYER of such rejection, and Clauses 6.5 to 6.7 shall apply. Within two (2) weeks from such notification, Supplier shall collect the Goods from buyer at its own cost and expense or shall promptly re-perform the Services in accordance with BUYER’s instructions. If Supplier does not collect the Goods within such two (2) week period, buyer is entitled to have the Goods delivered to Supplier at Supplier's cost and expense, or with the Supplier’s prior consent destroy the Goods, without prejudice to any other rights or remedies buyer may have under this Agreement, at law or in equity.

6.4          If, as a result of sampling inspection, any part of a lot or shipment of like or similar items is found not to be in conformity with this Agreement, buyer is entitled to: (i) reject and return the entire shipment or lot without further inspection; or (ii) at its option, complete inspection of all items in the shipment or lot, reject and return any or all nonconforming units (or accept them at a reduced price) and charge Supplier the cost and expense of such inspection.

6.5          If any Goods and/or Services provided by Supplier are defective or otherwise not in conformity with the requirements of this Agreement, buyer shall notify Supplier and is entitled to, without prejudice to any other right or remedy available to it under this Agreement, at law or in equity, at its sole discretion:

(i)            claim a full refund of the Price paid by buyer for the Goods and/or Services under this Agreement;

(ii)          require Supplier promptly to: (a) remedy the non-conformance; (b) replace the nonconforming Goods with Goods meeting the Requirements as soon as possible; and (c) re-perform the Services that meet the Requirements as soon as possible; or

(iii)          purchase the non-confirming, defective, lost or damaged Goods elsewhere and claim Supplier for the loss and damage resulting therefrom; and/or

(iv)          engage any third party to provide the Services (in whole or in part) and claim Supplier for the loss and damage resulting therefrom.

6.6          Supplier shall bear all the cost and expense of: (i) repair, replacement, transportation and delivery of the nonconforming Goods; and (ii) re-performing the Services to the satisfaction of buyer. Supplier shall reimburse buyer in respect of all costs and expenses (including inspection, handling and storage costs and expenses) reasonably incurred by BUYER in connection therewith.

6.7          Risk in relation to the nonconforming Goods shall pass to Supplier upon the date of notification thereof by buyer to Supplier in accordance with this Clause.

7.             Title and Risk

7.1          Title in the Goods shall pass to buyer on payment by buyer for the Goods.

7.2          Supplier will be responsible for all loss or damage of the Goods arising prior to the delivery in accordance with this Agreement and will, subject as otherwise agreed with buyer, be liable to replace all lost or damaged Goods or any short shipment without delay.

7.3          Buyer will, in its sole discretion, arrange for the Goods to be surveyed in their packaged condition as soon as practicable after receipt and due note will be made of all loss, damage or short shipment or possible any loss, damage or short shipment.

7.4          Buyer shall be allowed a reasonable period of time after receipt of the Goods to open up packaging and to conduct a thorough inspection in respect of damage, loss or short shipment.

7.5          In the event that the Goods and/or any item is not accepted by buyer in accordance with the acceptance procedures, buyer shall, without prejudice to any other rights or remedies buyer may have, at its option reassign to Supplier, and Supplier shall reacquire from buyer, title to and risk in any items specified by buyer which has not been accepted.

8.     Supplier’s Warranties

8.1          Supplier warrants and represents to buyer that:

(i)            the Goods sold by Supplier shall conform in all respects to the quantity, quality, description of the Goods as detailed in the PO;

(ii)           the Goods shall conform in all respects to the Requirements (including the description, quantity and the standards of quality and performance). If no such standards are stipulated in the Requirements, Supplier warrants that the Goods shall conform to such standards as are generally accepted to be of the highest standard for similar goods;

(iii)          it has good title to the Goods and the Goods are free from encumbrances;

(iv)          the Goods shall be manufactured using only the best quality materials suitable for the intended use coupled with good quality workmanship under supervision of competent technical and other personnel;

(v)           the Goods shall comply with the standards requirement (if any) issued by any Government Authority;

(vi)          for Goods which are electrical products, they shall comply with the Electrical Products (Safety) Regulations as applicable and the Supplier shall before the dispatch of the Goods for shipment and for each model of electrical products under this Agreement, a certified true copy of valid certificate(s) of safety compliance in accordance with the said regulation;

(vii)         the provision of the Goods and/or Services and performance of any other obligations by Supplier under this Agreement do not and shall not violate any applicable law, any third party Intellectual Property Rights, or any contracts which Supplier has entered into with any third parties; and

(viii)        where ownership, copyright or other Intellectual Property Rights in the software, software documentation, release or upgrade belong to any third party, it has obtained and procured all necessary consents, approvals and licences for the use of the same contemplated under this Agreement in respect of the same throughout the world.

8.2          The Supplier’s warranties under Clause 8.1 shall not be deemed to exclude Supplier’s standard warranties or other rights or warranties which buyer may have or obtain, and such warranties shall survive any delivery, inspection, acceptance, payment or resale of the Goods and/or provision of the Services and shall extend to buyer and its customers. Acceptance of, or payment for, all or any part of the Goods or Services furnished under this Agreement shall not be deemed to be a waiver of buyers right to cancel or return or reject all or any part thereof because of failure to conform to PO or Requirements or by reason of defects, latent or otherwise, or other breach of this Agreement or warranties, or to make any claim for losses and damages (including manufacturing costs and loss of profits or other special damages occasioned to buyer).

8.3          The cost to Supplier arising out of its compliance with this Clause shall be included in the Price payable by buyer to Supplier under this Agreement.

9.            Payment

9.1          Supplier shall send to buyer invoices and such other documentation requested by buyer (including bills of lading, shipping documents, customs forms, export licences and permits, country of original statements, packing lists, delivery acknowledgement and any other documentation reasonably required by buyer for payment).

9.2          Unless expressly specified in the PO, all payment made by BUYER for the Goods and/or Services to Supplier shall be in approved currency and shall, subject to Clauses 9.3 and 9.4, be paid within ninety (90) days of the receipt by buyer of the relevant invoice.

9.3          If buyer disputes any invoices, it shall notify Supplier in writing of such dispute and shall be entitled to withhold payment to Supplier regarding the disputed amount. Upon receipt of the dispute notice sent by buyer, the Parties shall use all reasonable endeavours to resolve the dispute as soon as reasonably practicable.

9.4          Without prejudice to any other rights, powers and remedies buyer may have under this Agreement, at law, in equity or otherwise, buyer is entitled to withhold payment, set off and deduct any amount from the Price that Supplier owes buyer whether under this Agreement or otherwise.

10.          Suspension and Termination

10.1        Without prejudice to any rights and remedies buyer may have under this Agreement, buyer shall have the right to suspend (in whole or in part) or terminate this Agreement (in whole or in part) and/or any PO with immediate effect by serving Supplier notice in writing if:

(i)            Supplier commits any material breach of any term of this Agreement (in the case of a breach capable of being remedied) and that breach is not remedied within fourteen (14) days after notice to do so has been served on Supplier;

(ii)           Supplier shall have a receiver or an administrative receiver appointed or shall pass a resolution for winding-up (other than for the purposes of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if Supplier shall become subject to an administrative order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business.

10.2        The suspension or termination of this Agreement shall not prejudice or affect any right or remedy which will have accrued or will thereafter accrue to either Party before the date of suspension or termination.

11.          Limitation of Liability and Indemnity

11.1        Nothing in this Agreement shall limit or exclude:

(i)            a Party’s liability for death or personal injury resulting from the negligence of a Party, its employees, agents or contractors while acting in the course of their employment or engagement (as the case may be); or

(ii)          a Party’s fraud or any other liabilities to the extent that it cannot be limited or excluded by law.

11.2        Notwithstanding any other provisions of this Agreement and to the extent permitted by law, buyer and SCF shall not be liable to Supplier for any indirect, special, consequential, collateral, incidental or punitive losses or damages including loss of business, revenue, profit, contracts, anticipated savings or goodwill, loss of use or value of any equipment including software, claims of third parties and all associated and incidental costs and expenses.

11.3        Subject to Clauses 11.1 and 11.2 and to such extent permissible by law, the aggregate liability of buyer to Supplier for all liabilities arising by reason of or in connection with this Agreement and regardless of the form in which any legal or equitable action may be brought (whether in tort, contract, strict liability or otherwise) is limited to the aggregate of the Price paid by buyer to Supplier under this Agreement.

11.4        Supplier shall indemnify and hold harmless buyer and SCF, its agents, employees and anyone using the Goods and/or Services from and against all suits, actions, proceedings, claims (including any claim of any third party’s Intellectual Property Rights), demands, losses, damages, judgments, interest, attorneys’ fees, fines, costs and expenses of whatsoever kind or nature and any other liabilities, whether arising before or after completion of the delivery of the Goods or performance of the Services under this Agreement, in any manner caused or claimed to be caused by the acts, omissions, faults, breach of express or implied warranty, breach of any of the provisions of this Agreement, or negligence of Supplier, or of anyone acting under its direction or control or on its behalf, in connection with Goods and/or Services provided by Supplier to buyer and SCF under this Agreement.

12.          Force Majeure

12.1        Notwithstanding any other provision of this Agreement, a Party will not be liable for any failure to fulfil an obligation under this Agreement if such a fulfilment is delayed, prevented, restricted or interfered with for any reason as a result of a Force Majeure Event provided that:

(i)            the Party has promptly notified the other Party of the Force Majeure Event setting out the details of the Force Majeure Event and an estimate of the extent and duration of its inability to perform; and

(ii)           the Party has used its reasonable endeavors to mitigate the effect of the Force Majeure Event and to carry out its obligations under this Agreement in any other way practicable.

12.2        If a delay or failure to perform a Party's obligations due to a Force Majeure Event continues consecutively for ninety (90) days or more, the other Party may immediately terminate this Agreement on notice to the first Party, but only if it has otherwise complied with the provisions of this Agreement.

 

13           Confidentiality

13.1.       Supplier shall treat all information provided by or on behalf of buyer and SCF under this Agreement as confidential. All such information shall be used by Supplier only for the purposes of this Agreement. Supplier shall protect buyers and SCF’s information using not less than the same degree of care with which it treats its own confidential information, but at all times shall use at least reasonable care. All such information shall remain the property of buyer or SCF and Supplier shall, upon buyer or SCF’s demand, promptly destroy or return to buyer or SCF all such information and shall not retain any copy thereof.

13.2.       The existence and the contents of this Agreement shall be treated as confidential by Supplier.

14.          Assignment

14.1        Supplier shall not assign, sub-contract, transfer or otherwise dispose of any or all of its rights, duties and obligations under this Agreement, without the prior written consent of buyer, which consent shall not be unreasonably delayed or withheld.

The supplier has however received express permission in this agreement to assign his receivables using a “Notice of Assignment” for early payments based on the SCF Platform terms and conditions.

14.2        Buyer shall have the rights to assign, novate, transfer, convey, license or otherwise dispose of any or all of its rights, duties or obligations under this Agreement.

15.          Governing Law

                This Agreement shall be governed by and construed in accordance with the laws of England. The Parties shall submit to the non-exclusive jurisdiction of English court system.

16.          Probity

16.1       Supplier shall prohibit its Directors, employees, agents and sub-contractors who are involved in this Agreement from offering, soliciting or accepting any advantage as defined in the Prevention of Bribery Laws.

16.2     Supplier shall caution its Directors, employees, agents and sub-contractors against soliciting or accepting any excessive hospitality, entertainment or inducements which would impair their impartiality in relation to this Agreement.

16.3     Supplier shall take all necessary measures (including by way of contractual provisions and/or providing training workshops where appropriate) to ensure that its Directors, employees, agents and sub-contractors are aware of the aforesaid prohibition and will not solicit or accept any advantages or excessive hospitality when conducting business in connection with this Agreement.

16.4      Without prejudice to any other rights and remedies of buyer under this Agreement or otherwise, buyer is entitled to terminate this Agreement and any other contracts or agreements between Supplier and BUYER immediately without compensation to Supplier if Supplier or any of its Directors, employees, agents and sub-contractors is convicted of an offence under the Prevention of Bribery or Money Laundering Laws in connection with this Agreement and Supplier shall indemnify buyer  fully against any losses, damages, costs and expenses suffered or incurred by buyer arising therefrom.

 

17.          Conflict of Interest

17.1        Supplier shall during the term of this Agreement and for three (3) months thereafter:

(i)            ensure that it (including each and every employee of Supplier) and each of its sub-contractors and each of their respective employees, officers and agents engaged in the discharge of the obligations hereunder, and each of their respective Associates and Associated Persons, shall not undertake any service, task, or job or do anything whatsoever for or on behalf of any third party (other than in the proper performance of the Agreement) which conflicts or which may be seen to conflict with Supplier’s duties or obligations under this Agreement without the prior written approval of BUYER (which approval shall not be unreasonably refused or delayed); and

(ii)           forthwith notify BUYER in writing of all or any facts which may reasonably be considered to give rise to a situation where the financial, professional, commercial, personal or other interests of Supplier or any of Supplier’s sub-contractors or any of their respective employees, officers and agents deployed for the performance of Supplier’s obligations hereunder or their respective Associates or Associated Persons, conflict or compete, or may be seen to conflict or compete, with Supplier’s duties or obligations under this Agreement.

17.2        Supplier shall ensure that each of its Associates and Associated Persons, each of its sub-contractors and each of their respective employees, officers and agents deployed in the performance of Supplier’s obligations hereunder and their respective Associates and Associated Persons shall keep themselves informed and inform Supplier and keep it informed regularly of all facts which may reasonably be considered to give rise to a situation in which the financial, professional, commercial, personal or other interests of such persons, conflict or compete, or may be seen to conflict or compete, with Supplier’s obligations under this Agreement.

18.          Notice

                Any notices, waivers, consents and other communications (collectively, “Communication”) in connection with this Agreement shall be in writing and shall be sent to the registered office address of the other Party. The Communication is deemed given and received: (i) if delivered by hand, when it is delivered; (ii) when given or made by letter, three (3) days after posting from a place within the country (or seven (7) days after posting from a place outside of the country), if properly addressed with postage prepaid, in each case to the address of the applicable Party as follows.  Each Party may change its address for this purpose by giving written notice to the other Party in accordance with this Clause.

19.          Miscellaneous Provisions

19.1        This Agreement shall be amended or varied only upon the execution of a written agreement between the Parties which makes specific reference to this Agreement.

19.2        Failure or delay of any Party at any time to take action against the other Party as provided in this Agreement will not affect such first-mentioned Party’s right to require full performance of this Agreement at any time thereafter. Waiver by any Party of a breach of any provision of this Agreement will not constitute a waiver of any subsequent breach nor in any way affect any right, power or remedy of that Party under this Agreement.

19.3        If any provisions of this Agreement are construed to be illegal, invalid or unenforceable, they shall not affect the legality, validity and enforceability of the other provisions of this Agreement. The illegal, invalid or unenforceable provisions shall be deemed to be deleted from this Agreement and no longer incorporated but all other provisions of this Agreement will continue to be binding on the Parties. If, as a consequence of that deemed deletion, any Party becomes liable for loss or damage which would otherwise have been excluded, that liability is also subject to the other limitations and provisions of this Agreement in so far it continues to apply.

19.4        This Agreement constitutes the entire agreement and understanding between the Parties relating to the subject matter of this Agreement hereof and shall supersede and cancel in all respects all previous negotiations, proposal, arrangements, understandings or agreements, of any nature between the Parties on this subject matter.

19.5        The rights, powers and remedies of a Party under this Agreement are cumulative with the rights, powers or remedies provided by law independent of this Agreement.

19.6        A Party may exercise a right, power or remedy at its discretion, and separately or concurrently with any another right, power or remedy. A single or partial exercise of a right, power or remedy by a Party does not prevent a further exercise of that or of any other right, power or remedy.

19.7        A Party may give or withhold its approval or consent conditionally or unconditionally in its discretion unless this Agreement states otherwise.

19.8        Nothing in this Agreement is to be construed as creating a partnership, association, trust or joint venture between the Parties. Neither Party nor any of its employee, agent, representative or contractor is deemed an employee, agent, representation or contractor of the other Party. Neither Party has the authority to bind or incur any liability on behalf of the other Party and no such authority is to be implied.

19.9        Time shall be of the essence in all respects for Supplier to undertake and perform its duties and obligations under this Agreement.

19.10      Clauses which are intended to survive termination or expiration shall survive the termination or expiration of this Agreement and shall continue in full force and effect thereafter.

19.11      Supplier shall not at any time during the continuance of this Agreement make reference to buyer or this Agreement in any of its promotional materials or other publications, public statement or media releases, press release or other announcement without the prior written approval of buyer, such approval shall not be unreasonably withheld or delayed.

19.12      Neither Party shall use the other Party’s trade names, trademarks, service marks or logos without the prior written approval of the other Party and in accordance with the usage guidelines specified by the other Party.

19.13      Unless otherwise expressly provided for in this Agreement, a person who is not a Party to this Agreement has no rights to enforce any term of this Agreement.

19.14      Except where this Agreement expressly provides otherwise, each Party will pay its own costs and expenses (including legal fees) arising from the negotiation, preparation and implementation of this Agreement.

General Conditions for the supply by Supplier of Goods and/or Services

 

1.             Definitions and Interpretation

1.1          Unless the context otherwise requires, the following terms shall have the following meanings:

                Agreement” means the agreement between Buyer and Supplier for the supply by Supplier of the Goods and/or Services mentioned in the PO.

          "Associate: means in relation to any person: (i) a Relative or partner of that person; or (ii) a company one or more of whose Directors is in common with one or more of the Directors of that person.

Associated Person” means in relation to another person: (i) any person who has Control, directly or indirectly, over the other; (ii) any person who is Controlled, directly or indirectly, by the other; or (iii) any person who is Controlled by, or has Control over, a person set out in (i) or (ii) above.

              “Approved Invoice” means in relation to an Invoice Approved by the buyer as confirmation and evidence of delivery of goods as specified in the PO

 “BUYER” means issuer of Purchase Order.

Control” means in relation to another person the power of a person to secure: (i) by means of the holding of shares or interests or the possession of voting power in or in relation to that or any other person; (ii) by virtue of powers conferred by any constitution, articles of association, partnership, agreement or arrangement (whether legally enforceable or not) affecting that or any other person; or (iii) by virtue of holding office as a Director in that or any other person; that the affairs of the first-mentioned person are conducted in accordance with the wishes of that other person.

                “Delivery Site” means the delivery site as specified by Buyer, whether in the PO or otherwise, for the delivery of the Goods.

              “Digital Collateral Receipt” means in relation to a consolidated electronic record of details related to the supply chain including PO, details of supplier, details of buyer, approved invoice, credit rating of buyer among others.

Director” means any person occupying the position of a director by whatever name called and includes a de facto or shadow director.

                “Force Majeure Event” means, with respect to a Party, any supervening event outside of such Party’s reasonable control which substantially prevents such Party from performing its obligations under this Agreement, including any flood, fire, lightning, earthquake, storm, explosion, meteor, accident, embargo, blockade, riot, any kind of war, acts of terrorism (which has direct impact on the performance of the duties and obligations of a Party) or of the public enemy, power outage, or acts of God; provided that for the avoidance of doubt, the Force Majeure Event shall not include: (i) any inability to pay amounts due; and (ii) any Force Majeure Event caused or contributed to by a Party, its employees, agents and subcontractors.  

                “Goods” means both tangible and intangible goods (including software and related documentation) as specified by the buyer to be supplied by Supplier in accordance with this Agreement.

Government Authority” means any government or governmental department, a governmental, semi-government or judicial person or a person charged with the administration of any applicable law.

Intellectual Property Rights” means patents, inventions (whether patentable or not), trademarks, service marks, logos, trade names, domain names, design rights, rights in know-how, confidential information, trade secrets, copyrights, moral rights and any other intellectual property or proprietary rights (including rights in computer software), in each case whether registered or unregistered and including applications for the registration or grant of any such rights and any and all forms of protection having equivalent or similar effect anywhere in the world and any rights under licences in relation to any such right.

                “Party” means either Buyer or Supplier and “Parties” means Buyer and Supplier.

                “PO” means the purchase order in writing issued by BUYER to Supplier. 

                “Price” means the price payable by BUYER to Supplier for the Approved Invoice related to provision of the Goods and/or Services under this Agreement and as specified by Buyer in the PO (as amended by the Parties from to time).

Relative” means the spouse, parent, child, brother or sister of the relevant person, and, in deducing such as relationship, an adopted child shall be deemed to be a child both of the natural parents and the adopting parent and a step child to be a child of both the natural parents and the step parent.

                “Requirements” means, in relation to the Goods and/or Services, Buyers’ requirements as set out in the PO (as amended by Buyer from time to time).

                “Services” means the services specified by Buyer in the PO to be provided by Supplier in accordance with this Agreement.              

              “SCF” means Supply Chain Finance Platform.

             “Special Conditions” means the special conditions specified by Buyer which are applicable to this Agreement.

                “Supplier” means the supplier to whom the PO is issued, whose name and registered office address is set out in the PO. 

              “Notice of Assignment” means documentary proof of sale of the Approved Invoice by the supplier/vender to the SCF Platform.

1.2          In this Agreement, unless the context otherwise requires: (i) the singular includes the plural and vice versa; (ii) the word person includes a body corporate, an unincorporated association or an authority; (iii) a reference to a Party includes its successors and permitted assigns; (iv) a reference to a document, includes any amendment, replacement or novation of it; (v) a reference to a Clause or Schedule is a reference to a Clause of and Schedule to this Agreement and a reference to this Agreement includes the Schedule; (vi) a reference to any statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws varying, consolidating or replacing it and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute; (vii) if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day; (viii)  the headings are for convenience only and do not affect the interpretation of this Agreement; and (ix) the words “includes” and “including” are to be construed without limitation.

1.3        If there is any inconsistency between the Special Conditions, General Conditions and the PO, the inconsistency will be resolved in the following descending order of precedence: (i) the Special Conditions (if any); (ii) the General Conditions; and (iii) the PO.

2.           Acceptance of PO

2.1.         These General Conditions, the Special Conditions (if any) and the relevant PO issued by Buyer set forth the terms of Buyers offer to Supplier.

2.2          When Supplier accepts Buyers offer, either by acknowledgement in writing, delivery of any Goods and/or commencement of performance of any Services, a binding Agreement comprising the Special Conditions (if applicable), the General Conditions and the terms and conditions of the PO will be formed. Any unilateral amendment or variation of the Special Conditions, General Conditions and the PO by Supplier shall have no legal effect.

2.3          Buyer is not bound by and hereby expressly rejects Supplier’s general conditions of sale and any additional or different terms or provisions that appear on any proposal, quotation, price list, acknowledgment, invoice, packing slip or any other documents used by Supplier. Any course of performance or dealing between the Parties and trade custom shall not apply to this Agreement.

3.             Price

3.1          Unless otherwise agreed by Buyer, the Price agreed by the Parties is a fixed price which includes all fees, charges, costs, fees, expenses of Supplier (including all the expenses for insurance, packaging, transportation and delivery of the Goods) and all applicable tax for the provision of the Goods and/or Services by Supplier under this Agreement.

3.2          Supplier will be responsible for all new or additional taxes, duties, imposts, levies, deductions, withholdings and government charges arising out of or in connection with this Agreement.

4.             Delivery of Goods

4.1          Unless otherwise agreed in writing, all Goods shall be delivered in accordance with the delivery Requirements to the Delivery Site.

4.2          Delivery of the Goods shall be deemed completed at the moment receipt has been acknowledged by Buyer in writing but this shall not constitute acceptance of the Goods.

4.3          Supplier shall, concurrently with the delivery of the Goods, provide Buyer with copies of all applicable licenses (if applicable and required by Buyer). Each delivery of Goods to Buyer shall include a packing list which contains at least the applicable PO number, the description and quantity of the Goods shipped and the date of shipment. Each package of Goods shipped shall be externally labelled to indicate the description and quantity of the Goods contained therein.

4.4          Supplier shall make no partial delivery or any delivery before the agreed delivery date(s). Buyer reserves the right to: (i) reject the delivery of Goods and return the same at Supplier’s risk and expense if Supplier defaults in the manner and/or time of delivery; and (ii) purchase the Goods elsewhere and claim Supplier for all losses and damages arising therefrom.

4.5          BUYER shall not be liable for any costs and expenses incurred by Supplier related to production, installation, assembly or any other work related to the Goods, prior to the delivery in accordance with this Agreement.

4.6          Supplier is responsible, at its own cost and expense, for the insurance, packaging, transportation and delivery of the Goods to the Delivery Site. Supplier shall ensure that the Goods delivered at the Delivery Site shall be in good working condition without any loss, damage and defect.  Supplier shall pack, mark and ship the Goods in accordance with sound commercial practices and Buyers Requirements to facilitate efficient unloading, handling and storage, and all Goods shall be clearly marked as destined for Buyer.

4.7          Supplier shall be responsible for any loss and damage due to its failure to properly preserve, package, handle, pack and deliver the Goods. BUYER shall not be required to assert any claims for such loss or damage against the common carrier involved.

5.             Requirements for Goods and/Services

5.1          The Goods and/or Services shall be provided by Supplier in accordance with all applicable law and shall conform in all respects to buyers Requirements.

5.2          Upon request by buyer, Supplier shall furnish buyer with written evidence or certificate to the satisfaction of buyer indicating that the ordered Goods have been subjected to tests normally carried out for the type of the Goods ordered or such other tests as buyer may specify or require.

5.3          Supplier shall perform the Services in a timely and professional manner to the highest level of skill and care generally observed in the industry for similar services, using the proper materials and employing sufficiently qualified staff.

5.4          Supplier shall be fully liable for any and all third parties (including its agents and subcontractors) with which it has contracted in connection with the Services.

5.5          Only “Approved Invoice” by buyer shall constitute the acceptance of the Goods/Services performed.

6.             Inspection and Rejection

6.1          Inspection of or payment for the Goods by buyer shall not constitute acceptance. Inspection or acceptance of or payment for the Goods by buyer shall not release Supplier from any of its obligations, representations or warranties under this Agreement.

6.2          Buyer may, at any time, inspect the Goods or the manufacturing process for the Goods. If any inspection or test by buyer is made on the premises of Supplier, Supplier shall provide reasonable facilities and assistance for the safety and convenience of buyer’s inspection personnel.

6.3         If buyer does not accept any of the Goods and/or Services, buyer shall promptly notify Supplier and BUYER of such rejection, and Clauses 6.5 to 6.7 shall apply. Within two (2) weeks from such notification, Supplier shall collect the Goods from buyer at its own cost and expense or shall promptly re-perform the Services in accordance with BUYER’s instructions. If Supplier does not collect the Goods within such two (2) week period, buyer is entitled to have the Goods delivered to Supplier at Supplier's cost and expense, or with the Supplier’s prior consent destroy the Goods, without prejudice to any other rights or remedies buyer may have under this Agreement, at law or in equity.

6.4          If, as a result of sampling inspection, any part of a lot or shipment of like or similar items is found not to be in conformity with this Agreement, buyer is entitled to: (i) reject and return the entire shipment or lot without further inspection; or (ii) at its option, complete inspection of all items in the shipment or lot, reject and return any or all nonconforming units (or accept them at a reduced price) and charge Supplier the cost and expense of such inspection.

6.5          If any Goods and/or Services provided by Supplier are defective or otherwise not in conformity with the requirements of this Agreement, buyer shall notify Supplier and is entitled to, without prejudice to any other right or remedy available to it under this Agreement, at law or in equity, at its sole discretion:

(i)            claim a full refund of the Price paid by buyer for the Goods and/or Services under this Agreement;

(ii)          require Supplier promptly to: (a) remedy the non-conformance; (b) replace the nonconforming Goods with Goods meeting the Requirements as soon as possible; and (c) re-perform the Services that meet the Requirements as soon as possible; or

(iii)          purchase the non-confirming, defective, lost or damaged Goods elsewhere and claim Supplier for the loss and damage resulting therefrom; and/or

(iv)          engage any third party to provide the Services (in whole or in part) and claim Supplier for the loss and damage resulting therefrom.

6.6          Supplier shall bear all the cost and expense of: (i) repair, replacement, transportation and delivery of the nonconforming Goods; and (ii) re-performing the Services to the satisfaction of buyer. Supplier shall reimburse buyer in respect of all costs and expenses (including inspection, handling and storage costs and expenses) reasonably incurred by BUYER in connection therewith.

6.7          Risk in relation to the nonconforming Goods shall pass to Supplier upon the date of notification thereof by buyer to Supplier in accordance with this Clause.

7.             Title and Risk

7.1          Title in the Goods shall pass to buyer on payment by buyer for the Goods.

7.2          Supplier will be responsible for all loss or damage of the Goods arising prior to the delivery in accordance with this Agreement and will, subject as otherwise agreed with buyer, be liable to replace all lost or damaged Goods or any short shipment without delay.

7.3          Buyer will, in its sole discretion, arrange for the Goods to be surveyed in their packaged condition as soon as practicable after receipt and due note will be made of all loss, damage or short shipment or possible any loss, damage or short shipment.

7.4          Buyer shall be allowed a reasonable period of time after receipt of the Goods to open up packaging and to conduct a thorough inspection in respect of damage, loss or short shipment.

7.5          In the event that the Goods and/or any item is not accepted by buyer in accordance with the acceptance procedures, buyer shall, without prejudice to any other rights or remedies buyer may have, at its option reassign to Supplier, and Supplier shall reacquire from buyer, title to and risk in any items specified by buyer which has not been accepted.

8.     Supplier’s Warranties

8.1          Supplier warrants and represents to buyer that:

(i)            the Goods sold by Supplier shall conform in all respects to the quantity, quality, description of the Goods as detailed in the PO;

(ii)           the Goods shall conform in all respects to the Requirements (including the description, quantity and the standards of quality and performance). If no such standards are stipulated in the Requirements, Supplier warrants that the Goods shall conform to such standards as are generally accepted to be of the highest standard for similar goods;

(iii)          it has good title to the Goods and the Goods are free from encumbrances;

(iv)          the Goods shall be manufactured using only the best quality materials suitable for the intended use coupled with good quality workmanship under supervision of competent technical and other personnel;

(v)           the Goods shall comply with the standards requirement (if any) issued by any Government Authority;

(vi)          for Goods which are electrical products, they shall comply with the Electrical Products (Safety) Regulations as applicable and the Supplier shall before the dispatch of the Goods for shipment and for each model of electrical products under this Agreement, a certified true copy of valid certificate(s) of safety compliance in accordance with the said regulation;

(vii)         the provision of the Goods and/or Services and performance of any other obligations by Supplier under this Agreement do not and shall not violate any applicable law, any third party Intellectual Property Rights, or any contracts which Supplier has entered into with any third parties; and

(viii)        where ownership, copyright or other Intellectual Property Rights in the software, software documentation, release or upgrade belong to any third party, it has obtained and procured all necessary consents, approvals and licences for the use of the same contemplated under this Agreement in respect of the same throughout the world.

8.2          The Supplier’s warranties under Clause 8.1 shall not be deemed to exclude Supplier’s standard warranties or other rights or warranties which buyer may have or obtain, and such warranties shall survive any delivery, inspection, acceptance, payment or resale of the Goods and/or provision of the Services and shall extend to buyer and its customers. Acceptance of, or payment for, all or any part of the Goods or Services furnished under this Agreement shall not be deemed to be a waiver of buyers right to cancel or return or reject all or any part thereof because of failure to conform to PO or Requirements or by reason of defects, latent or otherwise, or other breach of this Agreement or warranties, or to make any claim for losses and damages (including manufacturing costs and loss of profits or other special damages occasioned to buyer).

8.3          The cost to Supplier arising out of its compliance with this Clause shall be included in the Price payable by buyer to Supplier under this Agreement.

9.            Payment

9.1          Supplier shall send to buyer invoices and such other documentation requested by buyer (including bills of lading, shipping documents, customs forms, export licences and permits, country of original statements, packing lists, delivery acknowledgement and any other documentation reasonably required by buyer for payment).

9.2          Unless expressly specified in the PO, all payment made by BUYER for the Goods and/or Services to Supplier shall be in approved currency and shall, subject to Clauses 9.3 and 9.4, be paid within ninety (90) days of the receipt by buyer of the relevant invoice.

9.3          If buyer disputes any invoices, it shall notify Supplier in writing of such dispute and shall be entitled to withhold payment to Supplier regarding the disputed amount. Upon receipt of the dispute notice sent by buyer, the Parties shall use all reasonable endeavours to resolve the dispute as soon as reasonably practicable.

9.4          Without prejudice to any other rights, powers and remedies buyer may have under this Agreement, at law, in equity or otherwise, buyer is entitled to withhold payment, set off and deduct any amount from the Price that Supplier owes buyer whether under this Agreement or otherwise.

10.          Suspension and Termination

10.1        Without prejudice to any rights and remedies buyer may have under this Agreement, buyer shall have the right to suspend (in whole or in part) or terminate this Agreement (in whole or in part) and/or any PO with immediate effect by serving Supplier notice in writing if:

(i)            Supplier commits any material breach of any term of this Agreement (in the case of a breach capable of being remedied) and that breach is not remedied within fourteen (14) days after notice to do so has been served on Supplier;

(ii)           Supplier shall have a receiver or an administrative receiver appointed or shall pass a resolution for winding-up (other than for the purposes of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if Supplier shall become subject to an administrative order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business.

10.2        The suspension or termination of this Agreement shall not prejudice or affect any right or remedy which will have accrued or will thereafter accrue to either Party before the date of suspension or termination.

11.          Limitation of Liability and Indemnity

11.1        Nothing in this Agreement shall limit or exclude:

(i)            a Party’s liability for death or personal injury resulting from the negligence of a Party, its employees, agents or contractors while acting in the course of their employment or engagement (as the case may be); or

(ii)          a Party’s fraud or any other liabilities to the extent that it cannot be limited or excluded by law.

11.2        Notwithstanding any other provisions of this Agreement and to the extent permitted by law, buyer and SCF shall not be liable to Supplier for any indirect, special, consequential, collateral, incidental or punitive losses or damages including loss of business, revenue, profit, contracts, anticipated savings or goodwill, loss of use or value of any equipment including software, claims of third parties and all associated and incidental costs and expenses.

11.3        Subject to Clauses 11.1 and 11.2 and to such extent permissible by law, the aggregate liability of buyer to Supplier for all liabilities arising by reason of or in connection with this Agreement and regardless of the form in which any legal or equitable action may be brought (whether in tort, contract, strict liability or otherwise) is limited to the aggregate of the Price paid by buyer to Supplier under this Agreement.

11.4        Supplier shall indemnify and hold harmless buyer and SCF, its agents, employees and anyone using the Goods and/or Services from and against all suits, actions, proceedings, claims (including any claim of any third party’s Intellectual Property Rights), demands, losses, damages, judgments, interest, attorneys’ fees, fines, costs and expenses of whatsoever kind or nature and any other liabilities, whether arising before or after completion of the delivery of the Goods or performance of the Services under this Agreement, in any manner caused or claimed to be caused by the acts, omissions, faults, breach of express or implied warranty, breach of any of the provisions of this Agreement, or negligence of Supplier, or of anyone acting under its direction or control or on its behalf, in connection with Goods and/or Services provided by Supplier to buyer and SCF under this Agreement.

12.          Force Majeure

12.1        Notwithstanding any other provision of this Agreement, a Party will not be liable for any failure to fulfil an obligation under this Agreement if such a fulfilment is delayed, prevented, restricted or interfered with for any reason as a result of a Force Majeure Event provided that:

(i)            the Party has promptly notified the other Party of the Force Majeure Event setting out the details of the Force Majeure Event and an estimate of the extent and duration of its inability to perform; and

(ii)           the Party has used its reasonable endeavors to mitigate the effect of the Force Majeure Event and to carry out its obligations under this Agreement in any other way practicable.

12.2 If a delay or failure to perform a Partys obligations due to a Force Majeure Event continues consecutively for ninety (90) days or more, the other Party may immediately terminate this Agreement on notice to the first Party, but only if it has otherwise complied with the provisions of this Agreement.

13           Confidentiality

13.1.       Supplier shall treat all information provided by or on behalf of buyer and SCF under this Agreement as confidential. All such information shall be used by Supplier only for the purposes of this Agreement. Supplier shall protect buyers and SCF’s information using not less than the same degree of care with which it treats its own confidential information, but at all times shall use at least reasonable care. All such information shall remain the property of buyer or SCF and Supplier shall, upon buyer or SCF’s demand, promptly destroy or return to buyer or SCF all such information and shall not retain any copy thereof.

13.2.       The existence and the contents of this Agreement shall be treated as confidential by Supplier.

14.          Assignment

14.1        Supplier shall not assign, sub-contract, transfer or otherwise dispose of any or all of its rights, duties and obligations under this Agreement, without the prior written consent of buyer, which consent shall not be unreasonably delayed or withheld.

The supplier has however received express permission in this agreement to assign his receivables using a “Notice of Assignment” for early payments based on the SCF Platform terms and conditions.

14.2        Buyer shall have the rights to assign, novate, transfer, convey, license or otherwise dispose of any or all of its rights, duties or obligations under this Agreement.

15.          Governing Law

                This Agreement shall be governed by and construed in accordance with the laws of England. The Parties shall submit to the non-exclusive jurisdiction of English court system.

16.          Probity

16.1       Supplier shall prohibit its Directors, employees, agents and sub-contractors who are involved in this Agreement from offering, soliciting or accepting any advantage as defined in the Prevention of Bribery Laws.

16.2     Supplier shall caution its Directors, employees, agents and sub-contractors against soliciting or accepting any excessive hospitality, entertainment or inducements which would impair their impartiality in relation to this Agreement.

16.3     Supplier shall take all necessary measures (including by way of contractual provisions and/or providing training workshops where appropriate) to ensure that its Directors, employees, agents and sub-contractors are aware of the aforesaid prohibition and will not solicit or accept any advantages or excessive hospitality when conducting business in connection with this Agreement.

16.4      Without prejudice to any other rights and remedies of buyer under this Agreement or otherwise, buyer is entitled to terminate this Agreement and any other contracts or agreements between Supplier and BUYER immediately without compensation to Supplier if Supplier or any of its Directors, employees, agents and sub-contractors is convicted of an offence under the Prevention of Bribery or Money Laundering Laws in connection with this Agreement and Supplier shall indemnify buyer  fully against any losses, damages, costs and expenses suffered or incurred by buyer arising therefrom.

17.          Conflict of Interest

17.1        Supplier shall during the term of this Agreement and for three (3) months thereafter:

(i)            ensure that it (including each and every employee of Supplier) and each of its sub-contractors and each of their respective employees, officers and agents engaged in the discharge of the obligations hereunder, and each of their respective Associates and Associated Persons, shall not undertake any service, task, or job or do anything whatsoever for or on behalf of any third party (other than in the proper performance of the Agreement) which conflicts or which may be seen to conflict with Supplier’s duties or obligations under this Agreement without the prior written approval of BUYER (which approval shall not be unreasonably refused or delayed); and

(ii)           forthwith notify BUYER in writing of all or any facts which may reasonably be considered to give rise to a situation where the financial, professional, commercial, personal or other interests of Supplier or any of Supplier’s sub-contractors or any of their respective employees, officers and agents deployed for the performance of Supplier’s obligations hereunder or their respective Associates or Associated Persons, conflict or compete, or may be seen to conflict or compete, with Supplier’s duties or obligations under this Agreement.

17.2        Supplier shall ensure that each of its Associates and Associated Persons, each of its sub-contractors and each of their respective employees, officers and agents deployed in the performance of Supplier’s obligations hereunder and their respective Associates and Associated Persons shall keep themselves informed and inform Supplier and keep it informed regularly of all facts which may reasonably be considered to give rise to a situation in which the financial, professional, commercial, personal or other interests of such persons, conflict or compete, or may be seen to conflict or compete, with Supplier’s obligations under this Agreement.

18.          Notice

                Any notices, waivers, consents and other communications (collectively, “Communication”) in connection with this Agreement shall be in writing and shall be sent to the registered office address of the other Party. The Communication is deemed given and received: (i) if delivered by hand, when it is delivered; (ii) when given or made by letter, three (3) days after posting from a place within the country (or seven (7) days after posting from a place outside of the country), if properly addressed with postage prepaid, in each case to the address of the applicable Party as follows.  Each Party may change its address for this purpose by giving written notice to the other Party in accordance with this Clause.

19.          Miscellaneous Provisions

19.1        This Agreement shall be amended or varied only upon the execution of a written agreement between the Parties which makes specific reference to this Agreement.

19.2        Failure or delay of any Party at any time to take action against the other Party as provided in this Agreement will not affect such first-mentioned Party’s right to require full performance of this Agreement at any time thereafter. Waiver by any Party of a breach of any provision of this Agreement will not constitute a waiver of any subsequent breach nor in any way affect any right, power or remedy of that Party under this Agreement.

19.3        If any provisions of this Agreement are construed to be illegal, invalid or unenforceable, they shall not affect the legality, validity and enforceability of the other provisions of this Agreement. The illegal, invalid or unenforceable provisions shall be deemed to be deleted from this Agreement and no longer incorporated but all other provisions of this Agreement will continue to be binding on the Parties. If, as a consequence of that deemed deletion, any Party becomes liable for loss or damage which would otherwise have been excluded, that liability is also subject to the other limitations and provisions of this Agreement in so far it continues to apply.

19.4        This Agreement constitutes the entire agreement and understanding between the Parties relating to the subject matter of this Agreement hereof and shall supersede and cancel in all respects all previous negotiations, proposal, arrangements, understandings or agreements, of any nature between the Parties on this subject matter.

19.5        The rights, powers and remedies of a Party under this Agreement are cumulative with the rights, powers or remedies provided by law independent of this Agreement.

19.6        A Party may exercise a right, power or remedy at its discretion, and separately or concurrently with any another right, power or remedy. A single or partial exercise of a right, power or remedy by a Party does not prevent a further exercise of that or of any other right, power or remedy.

19.7        A Party may give or withhold its approval or consent conditionally or unconditionally in its discretion unless this Agreement states otherwise.

19.8        Nothing in this Agreement is to be construed as creating a partnership, association, trust or joint venture between the Parties. Neither Party nor any of its employee, agent, representative or contractor is deemed an employee, agent, representation or contractor of the other Party. Neither Party has the authority to bind or incur any liability on behalf of the other Party and no such authority is to be implied.

19.9        Time shall be of the essence in all respects for Supplier to undertake and perform its duties and obligations under this Agreement.

19.10      Clauses which are intended to survive termination or expiration shall survive the termination or expiration of this Agreement and shall continue in full force and effect thereafter.

19.11      Supplier shall not at any time during the continuance of this Agreement make reference to buyer or this Agreement in any of its promotional materials or other publications, public statement or media releases, press release or other announcement without the prior written approval of buyer, such approval shall not be unreasonably withheld or delayed.

19.12      Neither Party shall use the other Party’s trade names, trademarks, service marks or logos without the prior written approval of the other Party and in accordance with the usage guidelines specified by the other Party.

19.13      Unless otherwise expressly provided for in this Agreement, a person who is not a Party to this Agreement has no rights to enforce any term of this Agreement.

19.14      Except where this Agreement expressly provides otherwise, each Party will pay its own costs and expenses (including legal fees) arising from the negotiation, preparation and implementation of this Agreement.