Terms & Conditions

1. DEFINITIONS

1.1 Unless expressly agreed otherwise or unless the context requires otherwise, the expressions used in the Agreement have the following meaning:

in relation to a Party, means which are directly or indirectly Controlling, are Controlled by or are under common Control with that Party;
1. “the Agreed Use”
means a use of the Product which is permitted under the Agreement by the Agreement;
1. “the Agreement”
means the agreement made between the Parties whereby AUK agreed to sell or supply, as the case may be, the Product to the Counterparty, which agreement and all ancillary agreements and these GTCs shall be taken as mutually explanatory;
1. “AUK”
means AUK Industries Pte Ltd and/or its Affiliates, as the case may be;
1. “Business Day”
means any day other than a Saturday, Sunday or a public holiday in Singapore and if anything is to be done under the Agreement on a day which is not a Business Day, such thing shall be done on the immediately succeeding day which is a Business Day;
1. “the Commencement Date”
means the date of commencement of effect of the Agreement;
1. “Confidential Information”
means information relating to AUK or the Counterparty, including Intellectual Property Rights, Know-how and information relating to ideas, business methods, pricing information, financial data, marketing, development or manpower plans, actual or potential customer or supplier lists or details, computer systems and software or other matters connected with the Product provided by AUK or the Counterparty for the purposes of the Agreement;
“Control” and its grammatical variations
means having the power to direct or cause the direction of the management and policies of another person (whether through the ownership of voting shares, by contract or otherwise);
1. “the Counterparty”
means the Party or Parties to the Agreement (other than AUK) and/or its or their Affiliates who are permitted by the Agreement to use the Product;
1. “Force Majeure”
means an actual or threatened event which is beyond the reasonable control (and whether foreseen or unforeseen) of a Party claiming to be affected such event and which prevents or interferes with, or which renders illegal, dangerous or unsafe, that Party’s performance of any of its relevant obligations under the Agreement, including acts of God, exceptional weather conditions, floods, droughts, storms, lightning, high winds, typhoons, earthquakes, natural disasters, power failures, telephone or land-line connection failures, impacts with or by air crafts or aerial objects, explosions, fires, wars, war-like operations, hostilities, insurgencies, invasions, terrorism or threats of terrorism, epidemics, quarantines, public health threats, acts of foreign or public enemies, hi-jacking or unlawful seizure or wrongful exercise of control of vehicles, curtailment of transportation facilities, civil commotion, riots, strikes or lock-outs on a city or industrial scale, industrial disputes, industrial actions by workmen, shortage of labour, goods and materials, unintended, improper, acts or regulations of government and acts of third parties outside the control of that Party provided that that Party has taken reasonable measures to avoid or to mitigate the effect of such event;
“Intellectual Property Rights”
means patents, trademarks, service marks, copyright, moral rights, designs, design rights, business names, trade names, utility models, inventions, drawings, computer programs, improvements, know-how and all or any other intellectual or industrial proprietary rights whether or not registered or capable of registration and whether subsisting in any part of the world, together with all or any goodwill relating thereto;
1. “Parties”
Means two or more of the parties (as may be relevant) to the Agreement, and “Party” means any one of the Parties;
1. “person”
means a legal entity, including an individual, company or corporation, firm, partnership, authority, government or governmental agency;
1. “the Price”
means the sum payable by the Counterparty to AUK under the Agreement for the supply and the Agreed Use of the Product (subject to revision by AUK from time to time), which sum shall be exclusive of delivery costs, insurance, taxes which the Counterparty shall pay in addition to such sum;
1. “Product”
means goods, services or facilities to be supplied by AUK to any person under the Agreement;
1. “Purchase Order”
means a request by a person to AUK made in accordance with the Agreement for the supply of the Product; and
“writing” or “written”
means a mode of representing or reproducing words or figures in visible form.

2. INTERPRETATION

2.1 These GTCs are an integral part of the Agreement. In case of any conflict or inconsistency between these GTCs and any other provision of the Agreement, such conflict or inconsistency shall be resolved by AUK. A reference to any agreement forming part of the Agreement includes a reference to that agreement as renewed, extended, novated, varied or substituted from time to time.

2.2 Words importing the singular include the plural and vice versa. Any gender includes the other genders.

2.3 A reference to legislation or to a legislative provision includes all regulations, orders, proclamations, notices or other requirements under that legislation or legislative provision and any amendments, modifications or re-enactments of that legislation or legislative provision and any legislation or legislative provision substituted for, and any statutory instrument issued under, that legislation or legislative provision.

2.4 The clause headings in the Agreement are for reference purposes only and do not in any way influence or affect the meaning of the Agreement, unless the context otherwise requires.

3. PURCHASE ORDERS AND SUPPLY OF PRODUCT

3.1 If AUK requires that the Counterparty submits a Purchase Order to AUK, the Counterparty shall do so in the manner at the time and in the form with such supporting information and documents as AUK may require.

3.2 If AUK approves the Purchase Order and if AUK then informs the Counterparty of the estimated delivery date for the Product, such estimate shall be based on prompt provision by the Counterparty to AUK of complete, accurate and material information from the Counterparty.

3.3 Products supplied pursuant to an approved Purchase Order shall be shipped by AUK Ex-Works (EXW) or Delivered at Place (DAP) based on and the risk and liability for loss or damage of the Product in transit or thereafter shall pass to the Counterparty upon delivery of the Product by AUK to a carrier for shipment.

3.4 Nothing in the Agreement entitles the Counterparty to any priority of supply of the Product as against other persons.

3.5 The Counterparty shall inspect the Product immediately upon its receipt of the same and shall notify AUK within 7 days after delivery of the same with specification of the alleged defect, damage or deficiency and such other information as may be required by AUK. Time shall be of the essence of this provision. In the absence of such notice, the Product shall be deemed as accepted by the Counterparty in accordance with the Agreement and as being free from any defect, damage or deficiency.

4. PRICE AND PAYMENT

4.1 The Counterparty shall pay the Price and all other sums payable by it under the Agreement to AUK in the manner and form required by AUK, within 30 days from the date of AUK’s invoice therefor or within such other period as may be decided by AUK. Time is of the essence of this provision.

4.2 The Price shall be exclusive of delivery or shipment costs, insurance, taxes and bank charges, all of which shall be borne by the Counterparty. Unless otherwise agreed between the Parties, all payment to be made by the Counterparty to AUK shall be made without any demand, set-off, counterclaim, deduction or withholding of any taxes.

4.3 In the event of any failure of the Counterparty to make payment to AUK in accordance with this Clause, AUK shall be entitled, without excluding or limiting any other rights it may have under the Agreement, to also charge interest on the outstanding sum at the rate of 1.5% per month from the due date until the outstanding amount is paid in full.

5. OBLIGATIONS OF COUNTERPARTY

5.1 The Counterparty shall ensure the security of the account, passwords (including administrative and user passwords) and files and for all users of accounts assigned by AUK for their use for the purposes of the Agreement.

5.2 The Counterparty shall ensure that it and its Affiliates and their respective employees, agents and contractors are and shall continue to be qualified to use the Product in compliance with applicable laws including the availability of the appropriate certifications, laboratory equipment and qualified personnel with the appropriate training to use the Product.

5.3 The Counterparty shall not and shall not procure, assist, permit or suffer any third party to (and shall ensure that its Affiliates and their respective employees, agents and contractors shall not) directly or indirectly:
    (1) use the Product for any purpose other than the Agreed Use or in any manner not
permitted under the Agreement or in connection with other goods or services without the
prior express approval of AUK;
    (2) decompile or otherwise reverse engineer the Product or otherwise attempt to learn the
configurations, compositions, ingredients, algorithms or ideas underlying the Product;
    (3) copy or modify the Product;
    (4) manufacture, re-sell or re-supply or re-distribute the Product to any third party;
    (5) do or omit to do any other thing which is or may be prejudicial to the interests of AUK.

6. LIABILITY

6.1 In the event of any alleged defect, damage or deficiency of the Product, the Counterparty shall permit AUK to investigate such allegation and if requested by AUK, the Counterparty shall extend and procure full co-operation with and assistance to AUK in such investigation without any claim of legal privilege or other restriction. If AUK shall so choose after such investigation, the Counterparty shall accept from AUK a replacement of that Product or a credit note for the Price in full and final settlement of all claims which the Counterparty may make in respect thereof.

6.2 AUK shall not be liable for any claim by the Counterparty or its Affiliate or their respective employee, agent or contractor or any third party:
(1) for any loss, damage or deficiency of the Product not caused by the proven gross
negligence or wilful default of AUK or for any loss, corruption or damage to their data or
software howsoever caused;
(2) for their indirect, incidental, special, consequential damages or lost profits; or
(3) for any sum or sums exceeding in aggregate the Price hitherto paid by the
Counterparty; or
(4) in respect of the Product supplied by AUK to the Counterparty more than 12 months prior
to such claim; or
(5) submitted by the Counterparty to AUK (with all supporting documents and information
required by AUK) more than 3 months after the claim arose.
Time shall be of the essence in respect of paragraphs (4) and (5) above.

6.3 For the avoidance of doubt, AUK shall not be liable to the Counterparty or its Affiliates or their respective employees, agents or contractors or be deemed to be in breach of the Agreement for any adverse effect, injury or damage arising from the supply, storage, or use of the Product outside the scope of the Intended Use of the Product, non-adherence to the instructions for use or where contrary to the instructions and recommendations of AUK.

7. INDEMNITY

The Counterparty shall indemnify and at all times hereafter keep indemnified AUK and its Affiliates and their respective shareholders, officers, employees, agents and contractors against all and any losses, damages, actions, proceedings, costs (including legal costs), claims, demands, liabilities which may be suffered or incurred by them or made against them by any third party (including the Counterparty’s Affiliate and their respective employees, agents or contractors) arising from personal injury or death or damage or loss to property or any matter or event whatsoever arising out of, in the course of, by reason of or in respect of:
      (1) any breach of the Agreement by the Counterparty or its Affiliate or their respective
employees, agents or contractors;
      (2) any act or omission of the Counterparty or its Affiliate or their respective employees,
agents or contractors; and
      (3) any other matter arising out of the implementation of the Agreement or the duties and
obligations of the Counterparty under the Agreement.
The provisions of this Clause shall continue in effect notwithstanding the expiration or termination of the Agreement.

8. INTELLECTUAL PROPERTY

8.1 Nothing in the Agreement shall operate to transfer, grant or vest any Intellectual Property Right of a Party to any other, and if notwithstanding the foregoing any Intellectual Property Right is so transferred, granted or vests in the other Party (by agreement, by operation of law or otherwise), such other Party shall immediately and at its own expense do all such acts, execute all documents and carry out all actions necessary to ensure that such Intellectual Property Rights vests absolutely in the original Party.

8.2 The Counterparty shall not cause, or where preventable, permit anything to be done which may damage or endanger any of the Intellectual Property Rights of AUK, including altering, removing or in any way tampering with the trademarks or trade dress, or affix any other trademark, logo or other marks on the Product or on the packaging of the Product.

8.3 The Counterparty shall not use or suffer or permit such use by or assist and shall ensure that its Affiliate and their respective employees, agents and contractors shall not use or suffer or permit such use by or assist any third party to use the Intellectual Property Rights of AUK in a manner that could potentially devalue, injure, demean or dilute the goodwill or reputation of AUK or the Product.

9. SUSPENSION AND TERMINATION

9.1 In the event of any failure of the Counterparty to make any payment due under the Agreement, AUK shall be entitled to suspend the supply of the Product or any part thereof for such period as AUK considers reasonable, without prejudice to AUK’s right of termination under Clause 9.2(1) after or in place of such suspension.

9.2 AUK shall be entitled to terminate the Agreement immediately by notice to the Counterparty:
     (1) if the Counterparty commits a breach of the Agreement that is capable of remedy but fails
to remedy or correct such breach within 30 days after receipt of notice of such breach
from AUK;
     (2) if the Counterparty commits a breach of the Agreement and AUK considers such breach to
be material or incapable of remedy; or
     (3) if AUK is prevented from performing its obligations under the Agreement due to a Force
Majeure which continues for longer than a period which AUK considers to be reasonable.

9.3 Any termination of the Agreement shall be without prejudice to accrued rights of each Party (including any right to receive any payments due but unpaid) before expiration or termination and to provisions which are expressly or by implication intended by the Parties to survive the termination of the Agreement.

10. CONFIDENTIALITY

10.1 Each Party shall at all times keep confidential the other Party’s Confidential Information and shall not use or disclose such Confidential Information except with the prior consent of the Party affected by such use or disclosure (which consent shall not be unreasonably withheld).

10.2 Nothing contained in this Clause shall prevent either Party from disclosing any Confidential Information to its Affiliate or their respective shareholders, officers, employees, agents and contractors provided that such disclosure shall be made in confidence and only to the extent necessary to enable the discharge of duties and responsibilities owed by such Party to the other Party and further provided that such Affiliate, shareholders, officers, employees, agents and contractors are first bound in writing to observe similar obligations of confidentiality. Nothing contained in this Clause shall prevent either Party from disclosing any information to the extent required in connection with legal proceedings against the other Party in relation to the Agreement, or as required pursuant to law or an order of court, or the requirements of any governmental, statutory or regulatory authority. Further, any information described in this Clause shall not be deemed confidential:
(1) if it is or becomes publicly known through no wrongful act by any third party or by the
Party disclosing or seeking to disclose;
(2) if it is already known to the Party disclosing through lawful means; or
(3) if it is rightfully received by the Party disclosing or seeking to disclose from a third party
having the right to disclose and to permit further disclosure.

10.3 Where in the course of the Counterparty’s dealings with AUK under the Agreement, the Counterparty shall provide the AUK with data (“Personal Data”) about itself or any other person which the AUK or its Affiliates or their respective employees, agents, contractors, clients or suppliers may require or wish to use from time to time to identify, contact or locate any of them, including their name, identification card number, birth certificate number, passport number, nationality, address, telephone number, credit or debit card details, race, gender, date of birth, email address and any other information about them or their requirements, as well as sensitive personal data such as data relating to health, religious or other similar beliefs, the Counterparty shall ensure:
(1) that such Personal Data are up to date data at all times; and
(2) that it has obtained the prior consent of such other persons for the provision of their
Personal Data to the AUK upon the relevant terms of the Agreement. The Counterparty shall
notify the AUK if any of such third parties does not consent to the AUK or its affiliates or their
respective employees, agents, contractors or clients using their Personal Data for the
purposes required or permitted under the Agreement.

10.4 The Counterparty agrees and consents on its own behalf and on behalf of such other persons to the AUK and its Affiliates and their respective, employees, agents and contractors collecting, processing and using their Personal Data for the purposes of the AUK’s dealings with third parties and for the business and activities of the AUK and its Affiliates (including for marketing, business or any other purposes) or to fulfil any legal obligation of the AUK.
10.5 The obligations of each Party under this Clause shall continue in effect for a period of 5 years notwithstanding the expiration or termination of the Agreement.

11. REPRESENTATIONS AND WARRANTIES

The Counterparty represents and warrants to AUK for the term of the Agreement that:
      (1) it has all necessary power and authority to execute, deliver, consummate and perform the
Agreement, and it shall be a binding agreement upon the Counterparty and its successors and
assigns when executed;
      (2) it has obtained all governmental approvals necessary (if any) for the execution and due
performance of its obligations pursuant to the Agreement;
      (3) the entry into and performance of the Agreement by the Counterparty shall not breach any
contractual or other obligation owed by the Counterparty to any other person, any rights
of any
other person or any other legal provision; and
      (4) it is not at the time of entering into the Agreement insolvent and knows of no circumstance
which would entitle any creditor to appoint a receiver or to petition for winding-up or to
exercise any other rights over or against its assets.

12. FORCE MAJEURE

12.1 In the event that either Party (“the Affected Party”) to the Agreement is affected by Force Majeure, the Affected Party shall:
      (1) immediately notify the other Party in writing;
      (2) within 7 days thereof provide detailed information of the event and explaining the reasons
for its inability to perform the Agreement; and
      (3) use and continue diligently to use all reasonable efforts to remove the cause of the
Force Majeure
whereupon the Affected Party shall be excused performance or the punctual performance, as the case may be, as from the date of such notice for so long as the event of Force Majeure shall continue.

12.2 Each Party undertakes, notwithstanding that it is not the Affected Party, to cooperate and use its best endeavours to assist in removing the cause of the Force Majeure.

13. NOTICES

All acceptances, withdrawals, modifications, notices, consent, demands or other communications required or permitted to be given or made hereunder shall be in writing and delivered personally or sent by prepaid registered post or by e-mail addressed to the intended recipient thereof at its address as either Party may from time to time notify to the other Party. Any such notice, demand or communication shall be deemed to have been duly served (if given or made by e-mail) immediately or (if given or made by post) 3 days after posting and in proving the same it shall be sufficient to show that the envelope containing the same was duly addressed, stamped and posted.

14. GOVERNING LAW AND DISPUTE RESOLUTION

14.1 The Agreement will be governed by, and construed in accordance with, the laws of the Republic of Singapore.

14.2 The Parties shall use their best endeavours to resolve amicably any dispute arising out of or in connection with the Agreement, including without limitation any question regarding its existence, validity or termination. Where any dispute cannot be resolved by good faith negotiation between the Parties, it shall be referred to and finally resolved by arbitration in Singapore in accordance with the Rules of the Singapore International Arbitration Centre (“SIAC Rules“) for the time being in force, which Rules are deemed to be incorporated into this Clause. The language of arbitration shall be English. The foregoing shall not, however, restrict either Party’s right to apply to the courts for injunctive relief.

14.3 When any dispute occurs, except for the matters under dispute, the Parties shall continue to exercise their remaining respective rights and fulfil their remaining respective obligations under the Agreement.

14.4 In the event of an arbitration, the Parties agree that one and the same arbitral tribunal shall have the power and jurisdiction to adjudicate all claims existing or alleged between the Parties at that time, whether arising under the Agreement or under any other agreements (or amendments) where the Parties are involved.

15. OTHERS

15.1 Except as otherwise set forth in the Agreement, the Counterparty shall not be entitled to assign any rights or benefits granted or any obligations imposed by the Agreement, except with the prior written consent of AUK but AUK shall be entitled to do so.

15.2 The invalidity or unenforceability for any reason of any part of the Agreement shall not prejudice or affect the validity or enforceability of the remainder. If any provision of the Agreement is held to be invalid or unenforceable in whole or in part, the validity of the other provisions of the Agreement and the remainder of the provision in question shall not be affected.

15.3 No waiver of any term or condition of the Agreement, or any breach of the Agreement or any part thereof, shall be deemed a waiver of any other term or condition of the Agreement or of any later breach of the Agreement or any part thereof, and no waiver shall be valid unless in writing.

15.4 No failure or delay on the part of a Party in exercising any right, power or privilege under the Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

15.5 The rights and remedies in the Agreement are cumulative and not exclusive of, and without prejudice to, any other rights or remedies (whether provided by law or otherwise). No failure to exercise or any delay in exercising on the part of either Party of any right or remedy hereunder or by law shall prevent any further or other exercise of any other right or remedy.

15.6 The Agreement contains the entire agreement between the Parties and supersedes any previous understandings, commitments, agreements or representations, whatsoever, whether oral or written, expressed or implied in relation to contents hereof. Amendments or supplements to the Agreement shall be invalid unless made in writing and signed by or on behalf of the Parties.

15.7 A person who is not a party to the Agreement shall not have any right under the Contracts (Right of Third Parties) Act (Cap. 53B), statutes of the Republic of Singapore, to enforce any provision of the Agreement.