Legal : Terms and Conditions for Design Services

Terms and Conditions for Design Services

AZTECH GLOBAL LTD’S STANDARD TERMS AND CONDITIONS FOR DESIGN SERVICES

All design services (the “Design Services”) provided by Aztech Global Ltd including its associated companies (hereinafter collectively referred to as “Service Provider”) to the “Customer” shall be governed exclusively by these terms and conditions of Design Services (the “Contract”). The terms and conditions in this Contract shall apply to and are automatically incorporated in all quotations, orders, agreements and contracts for goods.

No addition to or modification of this Contract will be accepted by or binding upon the Service Provider unless consented to in writing and signed by an authorised representative of the Service Provider (such consent may be withheld by the Service Provider at its sole and absolute discretion). Any terms and conditions that may be proposed by the Customer (or which are contained in any document or instrument from the Customer) shall automatically be deemed to be objected to and rejected by the Service Provider unless so consented to by the Service Provider as stated above. This Contract shall take precedence, prevail, control and solely govern in all instances of any inconsistency between this Contract and any terms and conditions proposed by the Customer (or which are contained in any document or instrument from the Customer).

  1. Payment. The time within which the Customer is to pay for the said Design Services shall be the essence of this Contract. Under no circumstances shall the Customer be entitled to make any deduction or to withhold payment for any reason whatsoever. If the Customer fails to make payment when due or defaults in any way, the Service Provider (i) reserves the right to withdraw credit and thereby suspend or cancel performance under any or all of the Customer’s purchase order(s) to which the Design Services relate and/or (ii) reschedule such order(s) at the Service Provider’s sole discretion. Each fulfilment of such order(s) shall be separately invoiced and paid for without regard to other fulfilments.

  2. Service Fees. Service fees in respect of the Design Services (the “Service Fees”) are exclusive of all applicable taxes and all country, provincial, state or local import and export fees, custom duties, tariffs or other charges related to exporting and importing the products to which the Design Services relate. The Customer shall be fully responsible for presenting all related documentation to the relevant authorities and to the accuracy of the said documents.

    The Service Provider reserves the right to adjust the Service Fees as a result of any changes by the Customer to the requirements, specifications, or assumptions in relation to the Design Services and the Customer shall pay such increased Service Fees in accordance with the timelines stipulated on the Service Provider’s invoices.

  3. Delivery. Any timeline provided by the Service Provider is an estimate only but reasonable effort will be made to provide the Design Services according to schedule. The Customer agrees that delivery times may vary and that the Service Provider shall not be responsible or liable for any damages arising out of or related to any failure to deliver the Design Services within the timeline provided.

  1. Cancellation / Rescheduling. No order which has been accepted by the Service Provider may be cancelled or rescheduled by the Customer except with the agreement in writing of the Service Provider. If an order is cancelled or rescheduled after it has been accepted by the Service Provider, the Customer shall: (i) in the case of cancellation, pay the Service Provider a cancellation charge equivalent to [•]% of the Service Fees; and (ii) indemnify the Service Provider in full against all losses incurred by the Service Provider in relation to such cancellation or rescheduling, including but not limited to loss of profit, back charges from the Service Provider’s vendors, labour expended and all other expenses incurred by the Service Provider in relation to the Design Services.

    In the case of partial completion of an order, the Service Provider shall also be entitled to a quantum merit in respect of Design Services delivered without prejudice to any claim or right the Service Provider might otherwise make or exercise should non-completion be occasioned by the Customer.

  2. Insurance. At all times during the term of this Contract, the Customer shall be responsible for maintaining appropriate insurance coverage including, but not limited to, the following insurance coverages of appropriate amounts: (i) worker’s compensation and disability insurance coverage; (ii) commercial general liability insurance with coverage for bodily injury, property damage and personal and advertising injury; (iii) employers’ liability insurance; (iv) commercial automobile liability insurance.

    The Customer shall deliver duly issued certificates of insurance evidencing such coverage to the Service Provider upon request in writing from the Service Provider. The amount and coverage of such insurance will not limit the Customer’s liability nor relieve the Customer of any other obligation under this Contract.

    If the Customer fails to obtain or maintain any of the foregoing insurance coverages, it will assume and hereby assumes liability and risk for, and indemnifies the Service Provider against, any and all damages, demands, claims, losses, actions, liabilities, lawsuits, judgments, and expenses (including without limitation, reasonable attorney’s fees and expenses) to the extent that same would have been covered as if the foregoing insurance coverage had been obtained and maintained.

  3. Warranty. No condition, representation or warranty is given or to be implied in relation to the provision of the Design Services.

    In particular, the Service Provider makes no representation or warranty in relation to: (i) any Intellectual Property Rights, as defined in Clause 9 below, (whether with respect to such Intellectual Property Rights’ validity, enforceability, non- infringement of third party rights, quality, merchantability or fitness for a particular use or purpose, or any other aspect); and (ii) any agency certifications, or approval (which, for the avoidance of doubt, remain the sole and exclusive responsibility and obligation of the Customer), and no provision of this Contract should be interpreted as reflecting such an intention.

  1. Software. Any software delivered pursuant to the Design Services (the “Software”) and documentation in respect of such Software (the “Software Documentation”) is furnished on an “As Is” basis. The entire risk as to the quality and performance of the Software and Software Documentation describing such software is with the Customer. The Customer shall not:

    1. (i)  attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit or distribute all or any portion of the Software and the Software Documentation in any form or media or by any means;

    2. (ii)  attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software and the Software Documentation;

    3. (iii)  access all or any part of the Software and the Software Documentation in order to build a product or service which competes with the business of the Service Provider;

    4. (iv)  use the Software and the Software Documentation to provide services to third parties;

    5. (v)  licence, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software and the Software Documentation available to any third party;

    6. (vi)  attempt to obtain, or assist third parties in obtaining, access to the Software and the Software Documentation; and

    7. (vii)  introduce or permit the introduction of any virus or vulnerability into the Service Provider’s network and information systems.

    The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and the Software Documentation and, in the event of any such unauthorised access or use, promptly notify the Service Provider.

  2. Interest on Late Payment. The Service Provider shall be entitled to charge interest at 2% per month on a day to day basis in respect of any amount of money due and owing to the Service Provider by the Customer for the period of default.

  3. Intellectual Property Rights

    All intellectual property rights: (i) existing prior to the date of this Contract which the Service Provider brings to bear or provide in the course of carrying out or supplying the Design Services, whether or not contained in any Software, any Software Documentation or any other materials, and whether or not in the public domain; and (ii) arising from or in connection with the provision of the Design Services (including any Software and Software Documentation) (the “Intellectual Property Rights”), shall remain the property of the Service Provider and the Service Provider reserves the right to grant a licence to use the Intellectual Property Rights to any other party or parties.

    Without limiting the generality of the foregoing, the Service Provider shall retain all rights to the underlying engineering knowledge, design practices, technology,

processes and other information that were utilized by the Service Provider in providing the Design Services per the specifications of Customer.

The Customer shall do, and execute or arrange for the doing and executing of, each necessary act, document and thing that the Service Provider may consider necessary or desirable to perfect the right, title and interest of the Service Provider in and to the Intellectual Property Rights.

The Customer shall prevent any infringement of the Intellectual Property Rights and shall promptly report to the Service Provider any such infringement that comes to its attention. In particular, the Customer shall not permit third parties to have access to any of the Intellectual Property Rights without the prior written consent of the Service Provider, who may require that such third party executes a written confidentiality agreement before being given access to such Intellectual Property Rights.

  1. Disclaimer.

    To the maximum extent permissible by law, the Service Provider shall not under any circumstances whatsoever be liable for any loss, injury, damage or delay arising out of or in connection with the provision of the Design Services.

    The Service Provider shall not be liable for and the Customer shall indemnify and hold the Service Provider harmless against any claim by or loss or damage to any person or property directly or indirectly caused by the Customer.

    Without limiting the generality of the foregoing, the Customer acknowledges and agrees that the Design Services are not intended to be used in relation to any of the following purposes: (i) high-risk applications such as safety, life-support, surgical implant, nuclear or aircraft applications; (ii) any use or application in which the failure of a single component could cause substantial harm to persons or catastrophic property loss; and (iii) any military or weaponry use. The Customer assumes all risk and liability for use of the Design Services in relation to any such restricted purposes and agrees to defend the Service Provider against all damages, demands, claims, losses, actions, liabilities, lawsuits, judgments, and expenses (including without limitation, reasonable attorney’s fees and expenses) in connection with the use of the Design Services in relation to any of such restricted purposes.

  2. Limitation of Liability.

    Notwithstanding anything to the contrary elsewhere herein, the Service Provider shall not be liable for any incidental, special, remote or consequential damages (including but not limited to the loss of revenue or profits) arising from or caused, directly or indirectly in relation to the provision of the Design Services to the Customer, or by the performance or failure of the Service Provider to perform under this Contract or by any other act or omission of Service Provider, or by any other cause. In no event will the Service Provider’s total liability to Customer for any

cause exceed the Service Fees sum paid to the Service Provider in respect of the Design Services in question.

  1. Breach of Contract. If the Customer shall make any default in or commit a breach of this Contract or any other obligation to Service Provider, or if any distress or execution shall be levied upon the Customer’s property or assets, or if the Customer shall make or offer to make any arrangements or composition with creditors, or commit any act of bankruptcy, or if any petition or receiving order in bankruptcy shall be presented or made against him, or if the Customer is a limited company resolution or petition to wind up such company’s business (other than for the purpose of amalgamation or reconstruction) shall be passed or presented, or if a receiver of such company’s undertaking, property or assets or any part thereof shall be appointed, the Service Provider shall have the right forthwith to terminate any subsisting Contracts without liability, and upon written notice of such termination being posted to the Buyer’s last known address, any subsisting Contracts shall be deemed to have been determined without waiving any other remedies Service Provider may have against Customer.

  2. Service Provider’s Rights. If: (1) the Customer does not pay on time or (2) the Customer’s financial situation becomes unsatisfactory, then the Service Provider may:-

    1. (i)  defer the provision of the Design Services;

    2. (ii)  accelerate the due date on all amounts owed to Service Provider;

    3. (iii)  require cash payments or other security; and/or

    4. (iv)  terminate any subsisting Contracts without liability and without waiving any

      other remedies Service Provider may have against Customer.

    The Customer agrees to pay all of the Service Provider’s collection costs, including reasonable legal fees.

  3. Legal Fees. In the event that any action is brought by the Service Provider to enforce any provision of this Contract, the Service Provider shall be entitled to recover from the Customer, in addition to the amount of any judgement, its lawyer’s fees and other related expenses.

  4. Prohibition by the law. Any provision of this Contract prohibited by applicable law or by any court decree shall be ineffective to the extent of such prohibition, but such provision shall not in any way invalidate or affect the remaining provisions of this Contract.

  5. Waiver. Failure or neglect by the Service Provider to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of the Service Provider’s rights hereunder nor in any way affect the validity of the whole or any part of this Contract nor prejudice the Service Provider’s rights to take subsequent action.

  1. Force Majeure. The Service Provider shall not be liable to the Customer for any delay or breach caused or arising out of war, rebellion, civil commotion, strikes, industrial disputes, fire, earthquakes, the unavailability of goods or supplies or the requisitioning or other act or order by any government department, council or other constituted body or other acts of God or other happenings that are beyond the Service Provider’s control.

  2. No Assignment of Contract. This Contract shall not be assignable by either party save that the Service Provider shall be permitted to assign this Contract to any of its subsidiaries, related or associated companies.

  3. Applicable Law. The validity, construction and performance of this Contract and any other contract between the Customer and Service Provider shall be governed by the law of Singapore. All claim or suit with respect to this Contract and other contracts shall be brought in the jurisdiction of the courts of the Republic of Singapore.

  4. Entire Agreement. This Contract embodies the entire agreement between the parties hereto, supercedes all other prior agreements between the parties in connection with the provision of Design Services described herein.

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