These General Terms and Conditions (“GTC”) apply to any quote, order and order confirmation, and any sale or delivery of equipment, spare parts, consumables, services or other products by NexGen Wafer Systems Pte Ltd (“Supplier”) to any customer (“Customer”). The Supplier does not accept, expressly or impliedly, any additional or different terms or conditions that Customer presents, except where expressly and unambiguously agreed upon by the Supplier in writing. By ordering, receiving, accepting or using products or services or otherwise proceeding with any transaction after receipt of these GTC or after otherwise being notified that such transactions are subject to these GTC, Customer agrees to these GTC.
In these GTC: “Confidential Information” means (a) any technical or other information related to the Products or Services (including, but not limited to, any documentation, services offerings, class materials, promotional items, samples and written, visual and oral instructions); (b) any intellectual property owned, or provided to the Customer, by the Supplier; and (c) any information concerning the business and affairs of one party (“Disclosing Party”) and other information that is marked or otherwise expressly identified as confidential in writing or that should have been reasonably understood as such due to its nature, regardless of whether in tangible, electronic, verbal, graphic, visual or other form, that is disclosed to the other party (“Receiving Party”).
“Consumables” means any standard consumable goods which may be used up, non-durable, and subject to replacement regularly, that the Supplier agrees to deliver to Customer as described in the Quotation or Order Confirmation. Examples are chuck pins, O-ring, seal, filter, chuck belt, bearing, fuse, lamp, suck-back valve, spring, etc.
“Delivery Date” means (i) in the case of a Product to be delivered at the Supplier’s premises, the date on which the Supplier notifies the Customer the Product is ready for collection; and (ii) in the case of a Product to be delivered to a different place, the date on which the Supplier puts a Product into the possession of a carrier for shipment.
“Equipment” means any device or machinery that the Supplier agrees to deliver to Customer as described in the Quotation or Order Confirmation, including any equipment modifications or replacement that the Supplier may deliver under the GTC.
“Force Majeure” means any event beyond the control of the Customer or the Supplier, which could not have been reasonably expected at the time of the Contract, and whose effects cannot be avoided by appropriate measures and which prevents the performance of the Customer’s or the Supplier’s obligations, including but not limited to war, riot, fire, strikes, flooding, breakdown, pandemic, total or partial prohibition by national or international administrative authorities, the restriction of production, the impossibility to obtain supplies, etc.
“Order” means the purchase order issued by the Customer, including any written amendments thereto, for the delivery of Products and/or the provision of Services by the Supplier.
“Price” means the price of the Products and/or Services as set out in the Quotation or Order Confirmation.
“Product” means any Equipment, Spare Part and/or Consumable.
“Quotation” means the seller’s quotation issued by the Supplier, including any written amendments thereto, for the delivery of Products and/or the provision of Services by the Supplier.
“Services” means the services related to any Product as set out in the Quotation or Order.
“Spare Parts” means any standard parts of the Equipment which can be replaced in the field that the Supplier agrees to deliver to Customer as described in the Order.
“Specifications” means the quantities, qualities, descriptions and spe¬cifications of Products and/or Services as set out in the Order and/or Quotation.
“Third Party Products” means any products that are supplied by third parties, not by Supplier, and may include, without limitation, components installed in the Products.
3. Quotations, Orders and Specifications
3.1. No Order submitted by the Customer which constitutes an offer shall be accepted, or deemed to be accepted, by the Supplier, unless the Price is confirmed in writing via an order confirmation (“Order Confirmation”) by the Supplier within 14 days after submittal, and provided that the Customer has not waived its Order or raised any objection in writing within 14 days from the date of the Order Confirmation.
3.2. Upon issuance of an Order Confirmation by the Supplier, a binding contract between the Supplier and the Customer (“Contract”) shall be formed and these GTC shall apply.
3.3. The Customer shall be responsible to the Supplier for ensuring the accuracy of an Order submitted, and for giving the Supplier all necessary information and sufficient time to perform the Contract.
3.4. The Specifications and scope of services shall be those set out in the Quotation (if accepted by the Customer) or the Order (if accepted by the Supplier with Order Confirmation). Any Specifications shall be confidential and must not be made available to third parties.
3.5. The Supplier reserves the right to make any chan¬ges to Specifications which are required to comply with any applicable legal requirement or, where Products and/or Services are to be supplied according to the Supplier’s specifications which do not ma¬terially affect their quality or performance.
3.6. The Supplier does not agree to any proposed amendment, alteration, or addition of the Contract by the Customer. Amendments to the binding Contract are only valid if they are in writing and duly signed by a duly authorised representative of the Supplier, and the Customer acknowledges that such amendments may lead to a modification of the estimated delivery times and/or Price. Any other statement or writing of the Customer shall not amend, add to, or otherwise affect the Contract. Any general conditions of the Customer that could apply to transactions with the Supplier are hereby expressly rejected and shall apply only if and insofar as these have been expressly accepted in writing by the Supplier. In case of conflict between these GTC and the Quotation or Order Confirmation (as the case may be), the order of precedence of the document that prevails shall be: (a) Order Confirmation, (b) Quotation and (c) these GTC.
4.1. The Price of Products and/or Services shall be the Supplier’s quoted price in the Quotation or Order Confirmation or, where no price has been quoted, the price listed in the Supplier’s published price list as at the date of acceptance of the Quotation or the Order Confirmation.
4.2. The Supplier reserves the right, by giving noti¬ce to the Customer at any time before delivery, to increase the price of Products or Services to reflect an increase in the costs to the Supplier which is due to external factors beyond the control of the Supplier (such as foreign exchange fluctuation, currency regulation, alteration of duties, signi¬ficant increase in material cost or other costs of manufacture), or any change in delivery dates, quantities or specifications for the Products or Services which is requested by the Customer or any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate information or instructions. The Supplier further reserves the right to impose an administrative surcharge in respect of very small orders.
4.3. Unless the Supplier expressly states otherwise, all fees and prices quoted or invoiced exclude Singapore Goods and Services Tax (“GST”), sales taxes, service taxes, withholding taxes, customs duties, and other taxes and charges, insurance, bank charges, and costs related to transportation, if any. Any such charges and costs shall be paid or reimbursed by Customer. If any withholding taxes apply, Customer shall gross up the invoiced amount to ensure that, after such withholding, the Supplier receives the full amount invoiced.
5.1. If the Products and/or Services have been accepted by the Customer in accordance with the Quotation or the Order Confirmation, the Customer shall, unless otherwise shown in the Quotation or the Order Confirmation, pay the invoiced amount within the payment term receipt by the Customer of an invoice related to the Quotation or the Order Confirmation. Payment must be made in full, with all bank charges and fees borne by the Customer.
5.2. Without prejudice to any other right or remedy available to the Supplier, if the Supplier does not receive all amounts (with no deduction of any tax, duty, and bank charges and fees to Supplier) when due (i) any due and unpaid portion of the invoiced amount shall bear interest in the amount of up to 12% per year or the maximum rate allowed by law, whichever is less, until full payment is made, and (ii) the Supplier may at its discretion immediately cancel the Contract in accordance with Section 21 or suspend deliveries of Products and performance of any Services.
5.3. At the Supplier’s request, the Customer shall provide an irrevocable letter of credit from a financial institute or such other security and with terms reasonably acceptable to the Supplier. 5.4. The Customer shall be entitled to set off any monies due or becoming due to the Supplier against any monies due from the Supplier to the Customer, only insofar as the Customer’s counterclaim is acknowledged, undisputed or assessed in a legally binding judgement or award.
6. Delivery of Products
6.1. Delivery of Products shall be conditional upon timely and proper performance of all duties of the Customer.
6.2. The scheduled date and place of delivery of the Products are as specified in the Quotation or the Order Confirmation. Delivery time are estimate only and non-binding upon the Supplier, unless a duly authorised representative of the Supplier expressly agrees in a duly signed writing that a certain date shall be legally binding. The Supplier shall be authorised to make partial or early deliveries without any compensation to the Customer for any additional costs as a result thereof.
6.3. The Supplier will notify the Customer that the Products are ready for collection and deliver all Products Ex-Works (Incoterms 2020), the Supplier’s named premises, unless otherwise which is explicitly stated in Supplier’s Quotation or Order Confirmation. The Customer is solely responsible for obtaining, and arranging for, export and import arrangement, appropriate insurance coverage and transportation arrangements and packaging with respect to the Products and to file any claims with the carrier. Where the Supplier agrees to deliver the Products otherwise than at the Supplier’s named premises, the Customer shall be liable to pay the Supplier’s charges for insurance coverage and transportation arrangements and packaging, and the Supplier shall be under no obligation pursuant to Section 32(2) of the Sale of Goods Act 1979 nor shall the Supplier be bound to give the Customer notice specified in Section 32(3) of the Sale of Goods Act 1979.
6.4. The Customer shall meet the cost of any special packaging which it may request or which may be necessitated by delivery by any means other than the Supplier’s normal means of delivery. The Customer shall unless otherwise agreed be solely responsible for the disposal of all packaging in accordance with all regulations whether statutory or otherwise relating to protection over the environment at its own cost.
6.5. Immediately upon receipt of the Products and in any event within 7 days from the date of receipt of the Products, the Customer shall (i) uncrate and visually inspect the Products; and (ii) notify the Supplier in writing of receipt of the Products and any abnormalities that the Customer notes, including any defects in material and workmanship, non-conformity with Specifications and, to the extent detailed designs have been furnished by the Customer, design defects. With respect to Equipment, The Customer shall ensure that a representative of the Supplier is present and is permitted to supervise the uncrating and inspection of the Products. If the Customer fails to comply with this Section 6.5, the Customer shall be deemed to have waived its rights to claim incorrect or incomplete delivery or packaging and any warranty rights.
6.6. If the Products are agreed to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Supplier to deliver any one or more of the instalments in accordance with these GTC or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
6.7. With respect to Spare Parts or Consumables, the Customer agrees that it may be provided with one or more Spare Parts or Consumables different from those ordered, provided that they are interchangeable. No penalty or damages for late delivery will apply for Spare Parts or Consumables sales.
6.8. If the Customer fails to take delivery of the Products or fails to give the Supplier adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of the Supplier’s fault), then the Customer shall accordingly be liable to pay the Price for the Products delivered as if the Products had been delivered, and without prejudice to any other right or remedy available to the Supplier, the Supplier may:
6.8.1. store the Products until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or
6.8.2. sell the Products at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract provided the price has been paid in cash or cleared funds in full or charge the Customer for any shortfall below the price under the Contract.
6.9. The Supplier shall not be liable for cost, loss, dama¬ges, claims or liabilities incurred by the Customer due to non-delivery of Products by reason of any Force Majeure or by reason of the Customer’s fault, in which case the Supplier may, at its sole option (as applicable):
6.9.1. suspend deliveries of Products while such event or circumstance continues;
6.9.2. apportion available stock to its customers as it decides; or 6.9.3. terminate any Contract so affected with immediate effect by written notice to the Customer, and the Supplier shall not be liable for any loss or damage suffered by the Customer as a result thereof.
7. Performance of Services
7.1. Performance of Services shall be conditional upon timely and proper performance of all duties of the Customer.
7.2. The scheduled date and place of performance of the Services are as specified in the Quotation or the Order Confirmation.
7.3. The Supplier shall not be liable for cost, loss, dama¬ges, claims or liabilities incurred by the Customer due to non-performance of Services by reason of any Force Majeure or by reason of the Customer’s fault, in which case the Supplier may, at its sole option (as applicable):
7.3.1. suspend performance of Services while such event or circumstance continues; or
7.3.2. terminate any Contract so affected with immediate effect by written notice to the Customer, and the Supplier shall not be liable for any loss or damage suffered by the Customer as a result thereof.
8. Title and Risk
8.1. Risk of loss to the Products passes to the Customer on the Delivery Date, save that if the Customer wrongfully fails to take delivery of the Products under Section 6.8, the risk of loss to the Products passes to the Customer at the time of such default or breach.
8.2. Notwithstanding delivery and the passing of risk in the Products or any other provision of these GTC, the ownership and title to the Products shall not pass to the Customer until the Supplier has received in cash or cleared funds payment in full of the price of the Products and all other goods agreed to be sold by the Supplier to the Customer for which payment is then due. The Customer acknowledges and agrees that the Supplier does not transfer ownership or title to any Services.
8.3. In case of breach of Contract by the Customer inclu¬ding default in payment, the Supplier shall have (i) a lien on the Products or right to retain them for the price while the Supplier is in possession of them; (ii) a right of stopping the Products in transit after the Supplier has parted with the possession of them; (iii) a right of re-sale as limited by the Sale of Goods Act; (iv) a right of withholding delivery similar to and co-ex¬tensive with the Supplier’s rights of lien or retention and stoppage in transit under the Sale of Goods Act where the property has passed to the Customer.
8.4. Until such time as the title to the Products passes to the Customer, the Customer shall hold the Products as the Supplier’s fiduciary agent and bailee and shall keep the Products separate from those of the Customer and third parties, and properly stored, protected, insured and identified as the Supplier’s property, but shall be entitled to resell or use the Products in the ordinary course of its business but shall account to the Supplier for the proceeds of sale or otherwise of the Products, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Customer and third parties, and in the case of tangible proceeds properly stored, protected and insured.
8.5. The Customer agrees with the Supplier that the Customer shall immediately notify the Supplier of any matter from time to time affecting the Supplier’s title to the Products and the Customer shall provide the Supplier with any information relating to the Products as the Supplier may require from time to time.
8.6. Until such time as the ownership and title to the Products passes to the Customer (and provided the Products are still in existence and have not been resold), the Supplier shall be entitled at any time to require the Customer to deliver up the Products to the Supplier and if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Products are stored and repossess the Products.
8.7. The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Products which remain the property of the Supplier, but if the Customer does so, all moneys owing by the Customer to the Supplier shall (without prejudice to any other right or remedy of the Supplier) forthwith become due and payable.
8.8. The Customer herein irrevocably appoints the Supplier and its representatives as its duly authorised agent for the purpose of entering upon any premises where the Products are stored for the purpose of examination and/or recovery of the same at any time without notice.
8.9. The Customer shall indemnify the Supplier against all loss, damages, costs, expenses and legal fees incurred by the Customer in connection with the assertion and enforcement of the Supplier’s rights under this Section 8.
9.1. Upon issuance of an Order Confirmation by the Supplier pursuant to Section 3.1, if the Customer does not raise any objection of the Order Confirmation sent from the Supplier within 14 days, the Contract is from then on not cancellable. The Supplier is entitled to charge the Customer the full amount under the Contract, and the Customer is liable to make full payment.
The Customer may request once in writing that the Supplier postpones delivery of the Products or Services up to 60 days prior to the scheduled delivery date, provided that (i) the Customer compensates the Supplier for any costs arising from the rescheduling (including but not limited to storage and insurance costs); and (ii) the Supplier receives the Customer’s written request at least 60 days prior to the scheduled delivery date.
11. Warranty on Products
11.1. Conditional Warranty: Any warranty for Products by the Supplier shall be conditional upon timely and pro¬per performance of all duties of the Customer and be limited in scope as set out in this Section 11.
11.2. Limited Warranty: The Supplier warrants that for the relevant warranty period under Section 11.6 (“Warranty Period”), the Products (including the software inside the Products (“Software”) (i) will be free of defects in material and workmanship, and, to the extent detailed designs have been furnished by the Customer, design defects; (ii) will be fit for all purposes for which goods of the kind in question are commonly supplied; and (iii) will substantially conform to the Specifications, subject to the following limitations and exclusions in Section 11.3 to Section 11.5.
11.3. Exclusions: The Customer has no warranty rights with respect to defects or non-conformities caused, in whole or in part, by:
11.3.1. use of the Products with other products or items that were not expressly specified in writing by the Supplier as suited for use with the Products;
11.3.2. the Customer’s failure to follow the Supplier’s operating instructions; 11.3.3. changes to the Customer’s environment, in which Products were installed or used;
11.3.4. acts, omissions, fault, intent or negligence of persons other than the Supplier or its authorised representatives;
11.3.5. improper or unauthorised installation or maintenance of Products by someone other than the Supplier or its authorised representatives or not in accordance with the Supplier’s specifications and instructions, or lack of maintenance thereof;
11.3.6. improper or unauthorised installation or replacement of any other programs not directly associated with the Software, including but not limited to anti-virus programs, or not in accordance with the Supplier’s specified operating procedures, and does not cover the deliberate or negligent contamination and corruption of data or files;
11.3.7. misuse, neglect, abuse, use or storage at an unsafe or not suitable site, unusual physical or electrical stress, or any cause other than ordinary commercial application;
11.3.8. normal wear and tear;
11.3.9. modifications of Products, including the Software inside the Products, by someone other than the Supplier or its authorised representatives without, or not in accordance with, a prior written authorisation by the Supplier, or against Specifications;
11.3.10. modification of Products, including the Software inside the Products, by the Supplier or its authorised representatives in accordance with the Customer’s request, specifications or instructions, unless the Supplier agrees in a duly signed writing that the modified Products shall be covered by the warranty;
11.3.11. any relocation of Products without, or not in accordance with, a prior written authorisation by the Supplier;
11.3.12. insufficient or inaccurate information provided by the Customer when the Order is placed; or
11.3.13. Force Majeure conditions.
11.4. No Warranty for Third Party Products: The Supplier does not extend any warranties and the Supplier disclaims all responsibilities for Third Party Products not supplied by the Supplier. The Supplier is not liable for damage to other parts, machine, subsystem interfacing with any Product such as equipment, wafers, robot, power supplies, etc. The Customer undertakes to do its due diligence with datasheets & specification provided before installing or using any Product. Sufficient testing and qualification should also be done when using any Product to interface with the Customer’s or other Third Party Products. Under no circumstances shall the Customer claim any damages from the Supplier other than with respect to the Product sold.
11.5. No Other Warranties: except as specified in this Section 11, the supplier makes no express representations, conditions or warranties with regard to any Products. To the maximum extent permitted by applicable law, the supplier disclaims all implied warranties, conditions and representations including, but not limited to, any warranties and conditions of merchantability, satisfactory quality, fitness for a particular purpose, and non-infringement and, without limiting the foregoing, makes no warranty that any of the Products will be error-free or that their performance or operation will be uninterrupted.
11.6. Warranty Periods:
11.6.1. Any claim for breach of any warranty relating to Equipment must be made to the Supplier within 12 months, starting from 90 days after the Delivery Date, which period shall not be extended by any act of the Customer.
11.6.2. Any claim for breach of any warranty relating to Repair, Refurbish of Equipment or its sub-system must be made to the Supplier within 6 months from the Delivery Date, which period shall not be extended by an act of the Customer.
11.6.3. Any claim for replacement of Spare Parts must be made to the Supplier within 90 days from the Delivery Date, which period shall not be extended by any act of the Customer.
11.6.4. The Customer has no warranty rights with regard to any Consumables or consumable parts of Products except for any claim for replacement of Consumables made on the Delivery Date before the corresponding Customer’s acceptance is signed or otherwise as permitted under applicable laws. 11.6.5. There is no obligation for the Supplier to repair, re-install, refurbish or replace (as the case may be) any Equipment (including the Software), Spare Parts or Consumables after expiry of the relevant Warranty Period.
11.7. Product Warranty Claim:
11.7.1. The Customer shall have no product warranty claims, unless the Supplier receives from the Customer, during the relevant Warranty Period under Section 11.6 (i) a written notice describing the warranty breach in reasonable detail (a “Product Warranty Claim”); and (ii) remote and physical access to the affected Products as well as information in sufficient detail to enable the Supplier to reproduce and analyse the failure.
11.7.2. However, in no event shall the Customer be entitled to reject the Products on the basis of any defect or failure which is so slight that it would be unreasonable for it to reject them. A Failure Analysis (“FA”) will be conducted by the Supplier for the affected Products, and the FA report will be provided upon the Customer’s request.
11.8. Exclusive Remedies:
11.8.1. Where any valid Product Warranty Claim in respect of any Product is made in accordance with these GTC, the Customer shall be entitled to the remedies in this Section 11.8.
11.8.2. If an Equipment or its sub-system (including the Software) materially fails to conform to the limited warranty set forth in Section 11.1, the Supplier shall, at its sole discretion repair, re-install or refurbish in accordance with Section 11.8.4 or replace in accordance with Section 11.8.5 the defective or non-conforming Equipment or its sub-system (including the Software) to remedy the defect or non-conformity identified by the Customer in accordance with the Warranty Period under Section 11.6;
11.8.3. If a Spare Part or Consumable materially fails to conform to the limited warranty set forth in Section 11.1, the Customer’s sole recourse to remedy the defect or non-conformity identified by the Customer in accordance with the Warranty Period under Section 11.6.2 or Section 11.6.3 (as applicable) is expressly limited to the free replacement of the defective or non-conforming Spare Part or Consumable in accordance with Section 11.8.5.
11.8.4. In the event that the Supplier repairs, re-install or refurbish the defective or non-conforming Product, the Customer must make the relevant Product available for correction at the Customer’s premises, or return the Product after ob¬taining prior written authorisation from the Supplier which shall issue a Return Merchandise Authorisation number (“RMA#”) with shipment instructions. The Customer shall bear the risk of loss or damage during transit and all expenses incurred by the Supplier for unauthorised shipment. Unless otherwi¬se agreed in writing, the Customer’s return of the Product constitutes the Customer’s authorisation for the Supplier to repair, re-install or refurbish the Product and to invoice the Customer for any reasonable cost of repair, refurbishment, re-installation, labour, handling charges, parts, transport and shipping on the Product not covered by the warranty, including if pursuant to the FA report, the Supplier determines that the affected Product is not defective or non-conforming as described in the Product Warranty Claim.
11.8.5. In the event that the Supplier replaces the defective or non-conforming Product, the Customer must return the Product after ob¬taining prior written authorisation from the Supplier which shall issue a RMA# with shipment instructions. The Customer must return the original Product in the exact condition when the problem was reported to the Supplier. The replacement Product shall be (i) of the same model as the returned Product; (ii) of a replacement model if the returned Product is obsolete or production thereof has ceased; or (iii) of a compatible model as mutually agreed upon by the Supplier and the Customer. The Supplier shall reserve the right to decide if the returned Product must be received by the Supplier before shipment of the replacement Product. The Customer shall bear the risk of loss or damage during transit and all expenses incurred by the Supplier for unauthorised shipment. Unless otherwi¬se agreed in writing, the Customer’s return of the Product constitutes the Customer’s authorisation for the Supplier to replace the Product and to invoice the Customer for any reasonable cost of disassembly, reassembly, labour, handling charges, parts, transport and shipping on the Product not covered by the warranty, including if pursuant to the FA report, the Supplier determines that the returned Product is not defective or non-conforming as described in the Product Warranty Claim. The Customer hereby transfers to the Supplier title and ownership of any returned Product or parts thereof that the Supplier replaces at the Customer’s request.
11.8.6. The remedies expressly provided in this Section 11.8 will be Customer’s sole and exclusive remedies and shall be in lieu of any other rights or remedies Customer may have against the Supplier with respect to any non-conformance of Products.
12. Warranty on Services
12.1. In carrying out the Services, the Supplier warrants that it shall provide the Services to the Customer (i) in a timely and workmanlike manner using reasonable care, skill and diligence; (ii) using suitably trained, qualified and skilled personnel; (iii) in accordance with any Specifications and instructions of the Customer; and (iv) in compliance with all applicable laws governing the provision and use of the Services.
12.2. The Customer has no right to claim for a breach of warranty with respect to any Services which the Supplier has performed after the corresponding Customer’s acceptance is signed on the Delivery Date or otherwise as permitted under applicable laws.
13. Limitation of Liability
13.1. The following provisions in this Section 13 set out the Supplier’s entire liability (including any liability for breach, omission, default or any other act of its employees, agents, representatives and sub-contractors) to the Customer in respect of: 13.1.1. any breach of its contractual obligations arising under the Contract, including any Product Warranty Claim; and
13.1.2. any representation or tortuous act or omission, including negligence, or any other claims based on tort or any other grounds pursuant to applicable law arising under or in connection with the Contract (collectively, “Tort Claims”). And the Customer’s attention is in particular drawn to the provisions of this Section 13.
13.2. Any breach, omission, default or any other act on the part of the Supplier or its employees, agents, representatives or sub-contractors falling within Section 13.1 above for the purposes of this Section be known as an “Event of Default”.
13.3. Any liability for Tort Claims shall be limited to wilful misconduct or acts of gross negligence.
13.4. In no event shall the Supplier have any liability for any incidental, special, indirect, or consequential damages, loss of profits or revenue.
13.5. The liability of the Supplier for any claim arising out of or in connection with any Event of Default shall not exceed a total amount equal to the price paid or payable by Customer for the Products or Services principally responsible for such damages. Notwithstanding the foregoing, in no event shall the liability of the Supplier exceed a total amount equal to US$1,000,000.00.
13.6. The limitations of liability in Section 13 shall apply to any losses and damages, however caused and regardless of whether liability was derived from contract, tort (including, but not limited to, negligence), breach of warranty or otherwise.
13.7. For the avoidance of doubt, nothing in these GTC shall exclude or limit the Supplier’s liability for death or personal injury resulting from negligence, for fraud or wilful misconduct.
13.8. If several Events of Default give rise substantially to the same loss they shall be regarded as giving rise to only one claim under these GTC.
13.9. The Customer hereby agrees to afford the Supplier a reasonably opportunity, and in any event not less than 30 days, to remedy an Event of Default hereunder to the extent that it is capable of remedy.
14. Safety and Environmental Protection
The Customer must ensure, that when using the Products supplied by the Supplier, they shall comply with all applicable safety and environmental protection regulations, including regulations, instructions and directions relating to order, safety, environmental protection and control that apply locally where the Products are used.
15. Indemnity by Customer
15.1. If Products are to be manufactured, Services are to be performed or any process is to be applied to Products or Services by the Supplier in accor¬dance with Specifications submitted by the Customer, the Customer shall be liable for and indemnify the Supplier from all loss, damages, costs and expenses awarded against or incurred by the Supplier in connection with or paid or agreed to be paid by the Supplier in settlement of any third party claim for infrin¬gement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Supplier’s use of the Customer’s Specifications.
15.2. The Customer shall comply with and indemnify the Supplier from all liability arising from corrupt activity, otherwise unethical practices or bre¬ach of export control or foreign trade laws (including Trade Control Laws) applicable to the Contract or to Products or Services the Customer obtains under the Con¬tract by the Customer or its employees, agents, representatives or sub-contractors.
16. Intellectual Property Rights
16.1. All intellectual property rights of any kind, attached to the Products, Services and/or the related documentation (including patents, rights to inventions, copyright and related rights, moral rights, trade marks, trade secrets, know-how, business names and domain names, rights in designs, rights in computer software, database rights, and all other intellectual property rights of which the Supplier is either the owner or licensee, in each case whether registered or unregistered and including all applications for, registration of, and rights to apply for, any such rights) (“Supplier IP”) shall remain the exclusive property of the Supplier.
16.2. To the extent that the said Supplier IP are used or incorporated into the Services or any part of the Products, the parties acknowledge and agree that the Customer is licensed to use the same upon the terms set out as follows: the Supplier hereby grants to the Customer a non-exclusive, royal¬ty-free, site (place of initial equipment installation) licence, revocable only for breach by the Customer of the terms of the Contract, to use the Supplier IP solely to the extent necessary to use the Products and Services for its business purposes. In no event shall the licensing of Supplier IP be considered as a transfer of the Supplier IP to the Customer. The Customer will not use the Supplier IP for any other purpose.
16.3. Any reproduction, access to the source code, decomplication, modification, reverse-engineering, copying (other than a backup copy), error correction, transmission or distribution of any software embedded in or related to the Products or Services is strictly prohibited.
16.4. The Customer may sub-licence its affiliates to use the Supplier IP on the terms of this Section and pro¬vided that the Customer is liable for any breaches by them of such terms, but will not otherwise assign, sub-licence or deal with the Supplier IP.
16.5. The Customer hereby assigns to the Supplier on their creation, all intellectual property rights in or related to the Products or Services or the designs for or related to those Products or Services which arise or are created as a result of the performance of the Contract, any use by the Customer of, or work done by the Customer on, the Supplier IP, and the Supplier’s ownership shall not be affected by any contribution and/or payment towards the costs of the samples and/or tools by the Customer whether in full or in part.
17. Confidential Information
17.1. The Receiving Party will keep confidential and protect the Disclosing Party’s Confidential Information with the same degree of care as it uses to protect its own confidential information, but in no event with less than due care. The Receiving Party will not (i) disclose the Disclosing Party’s Confidential Information to anyone, except to persons in its own organisation who have a need to know in order to fulfill the Receiving Party’s obligations under the Contract and who are bound by non-disclosure obligations requesting them to treat the Confidential Information as confidential; and (ii) use the Disclosing Party’s Confidential Information except as necessary for the performance of the Receiving Party’s obligations or the exercise of the Receiving Party’s express rights under the Contract.
17.2. Confidential Information does not include material or information that (i) is generally known by third parties as a result of no act or omission of the Receiving Party; (ii) subsequent to disclosure hereunder was lawfully received without restriction on disclosure from a third party having the right to disseminate the information; (iii) was already known by the Receiving Party prior to receiving it from the Disclosing Party and was not received from a third party in breach of that third party’s obligations of confidentiality; or (iv) was independently developed by the Receiving Party without use of Confidential Information of the Disclosing Party.
17.3. The Receiving Party hereto undertakes with the Disclosing Party to take all such steps as shall be necessary from time to time to ensure compliance with the provisions of this Section 17 by its employees, agents, representatives or sub-contractors, or any of its associated or connected company or subsidiary or holding company.
17.4. If and when Confidential Information is no longer needed for the performance of obligations or exercise of rights under a Contract, the Receiving Party must promptly destroy or return all Confidential Information and any copies thereof upon the Disclosing Party’s written request. The Receiving Party agrees to provide written certification of compliance with this Section 17.4 within 30 days after the receipt of the request.
18. Data Protection
18.1. In this Section 18:
18.1.1. “Personal Data” means any information relating to an identified or identifiable individual;
18.1.2. “Processing” means any operation that is performed on Personal Data, whether or not by automated means, such as collection, recording, storage, organisation, alteration, use, disclosure, transmission or deletion of Personal Data. “Process” and “Processed” are to be construed accordingly.
18.2. The parties undertake to comply with the applicable regulations related to the protection of Personal Data under the Personal Data Protection Act 2012 of Singapore (“PDPA”) and applicable data protection laws. Each party shall Process in accordance with the PDPA and applicable data protection laws, as data controller vis-à-vis the other party, the Personal Data collected for the purposes of performing obligations under the Contract, customer account management, the continuation of the contractual relationship, promotional operation activities, satisfaction surveys, litigation, the production of statistics, or the sending of newsletters or marketing or technical information.
18.3. Each party and/or its respective affiliates are recipients of the collected Personal Data. The parties undertake to inform each other of any updates hereof relating to the Personal Data of their respective employees, agents, representatives or sub-contractors concerned and to inform and ensure that consent of their respective employees, agents, representatives or sub-contractors has been obtained before the Processing of their Personal Data to the other party. The parties undertake to implement appropriate measures to ensure the security and confidentiality of the Personal Data. The parties undertake not to transfer Personal Data outside Singapore. In case of transfer outside Singapore, each party shall ensure compliance with the applicable regulations, and the relevant party shall take all appropriate steps to ensure that any third party in a country or territory outside Singapore to whom it transfers Personal Data is bound by legally enforceable obligations to provide to the transferred Personal Data a standard of protection, which is comparable to the protection under the PDPA.
18.4. The parties undertake to keep the Personal Data collected for a period not exceeding that necessary to accomplish the purposes for which such Personal Data were collected or processed, and in any case within a maximum period of 3 years as of the last order for Products or Services.
19. Licences and Consents
If a licence or consent of any third party (including without limitation any governmental or other authority) is required in connection with the Customer’s purchase or use of the Products or Services, the Customer shall obtain the licence or consent at its own expense and produce evidence of it to the Supplier on demand. Failure to obtain any licence or consent does not entitle the Customer to withhold or delay payment of the Price. Any additional expenses or charges incurred by the Supplier resulting from such failure shall be paid by the Customer.
20. Export Regulation
20.1. The Products are subject to foreign trade restrictions, including dual-use trade controls. Both parties will comply with all applicable Sanction and Trade Control Laws in connection with these GTC. “Sanctions and Trade Control Laws” include any applicable laws, regulations, administrative or regulatory decisions or guidelines (including any future amendments to these provisions), or any other laws, regulations, administrative or regulatory decisions, or guidelines adopted, maintained, or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control, the United Nations Security Council, the European Union or other relevant sanctions authority where the parties operate (“Sanctions Agency”) on or after the date of the Order Confirmation that sanction, prohibit or restrict certain activities including, but not limited to: (i) import, export, re-export, transfer, or trans-shipment of goods, services, technology, or software; or (ii) financing of, investment in, or direct or indirect transactions or dealings with certain countries, territories, regions, governments, projects, or specifically designated persons or entities (collectively, “Trade Control Laws”).
20.2. Both parties confirm that they have not violated, shall not violate, and shall not cause the other party to violate, any applicable Trade Control Laws. Each party represents and warrants that, to the best of its knowledge, at the date of the Order Confirmation neither it, nor any of their respective directors or officers are a Restricted Person. Each party agrees that it shall promptly notify the other party if it becomes a Restricted Person. “Restricted Person” means a person that is, directly or indirectly owned or controlled by, or acting on behalf of, one or more restricted persons on any list (including any future amendments to such list) published by a Sanctions Agency.
20.3. If, as a result of (i) Trade Control Laws are issued or amended after the date of the Order Confirmation, (ii) the Customer or the end-user is/becomes a Restricted Person, or (iii) any necessary export license or authorization from a Sanctions Agency is not granted, the performance by Supplier or by any affiliates becomes illegal or impracticable, Supplier shall, as soon as reasonably practicable, give written notice to the Customer of its inability to perform or fulfil such obligations. Supplier shall be entitled to either immediately suspend the performance of the affected obligation under the Order Confirmation until such time as Supplier may lawfully discharge such obligation or unilaterally terminate the Contract in whole or in part from the date specified in the said written notice or from any subsequent date thereafter. Supplier will not be liable to the Customer for any costs, expenses or damages associated with such suspension or termination of the Contract.
20.4. The Supplier and Customer undertake to obtain all the necessary licenses and/or permits from the competent authorities for the import or export of Products. In particular, Products that are subject to the U.S. Export Administration Regulations (“EAR”) must not be exported without obtaining the valid licenses/authorizations of the competent US authorities, including non-US items with controlled US content above the permitted de-minimis level and non-US items with controlled US content for which there is no de-minimis level.
20.5. The Customer represents and warrants that it will not directly or indirectly sell, export, re-export, release, transmit or otherwise transfer any Products received from Suppler to any third party or country in violation of Trade Control Laws.
20.6. If the Customer notices that it has acted in infringement of applicable Trade Control Laws in connection with the Contract, Customer must notify Supplier thereof within 14 days. In the event of infringement of applicable Trade Control Laws in connection with the Contract or breach of the obligation to notify, Supplier shall have the right to terminate the Contract for cause. Customer will be liable for any costs, expenses or damages associated with such termination of the Contract.
21.1. On or at any time after the occurrence of any event in Section 21.2., the Supplier may, at its sole option:
21.1.1. stop any Products in transit;
21.1.2. suspend further deliveries of Products to the Customer and/or performance of Services;
21.1.3. exercise its rights under Section 8; and/or
21.1.4. terminate any Contract so affected with immediate effect by written notice to the Customer, and the Supplier shall not be liable for any loss or damage suffered by the Customer as a result thereof.
21.2. The events are:-
21.2.1. the Customer being in breach of an obligation under the Contract;
21.2.2. the Customer passing a resolution for its winding up or a court of competent jurisdiction making an order for the Customer’s winding up or dissolution;
21.2.3. the making of an administration order in relation to the Customer or the appointment of a receiver over or an encumbrancer taking possession of or selling any of the Customer’s assets;
21.2.4. the Customer making an arrangement or composition with its creditors generally or applying to a Court of competent jurisdiction for protection from its creditors;
21.2.5. as permitted under these GTC, including but not limited to Section 5.2, Section 6.9 or Section 7.3; or
21.2.6. the Customer breaches the Trade Control Laws, becomes a Restricted Person and/or otherwise as permitted under Section 20.
22.1. Entire Agreement. The Quotation (if accepted by the Customer) or the Order (if accepted by the Supplier) together with these GTC constitu¬te the entire agreement between the par-ties in relation to its subject matter.
22.2. Compliance. Each party shall comply with all applicable laws including, but not limited to applicable export control laws. Customer shall not export or re-export any Products without the appropriate licenses, and Customer shall defend, indemnify, and hold the Supplier and all of its suppliers harmless from any claims arising out of Customer’s violation of applicable export control laws.
22.3. Written Form. Any notices and/or any modifications of, or amendments to, the Contract shall be invalid, unless (i) notices are in writing and sent by email or by registered mail, postage prepaid; and (ii) modifications and amendments are in writing and signed by duly authorised officers of both parties. Representations made by sales or technical personnel of the Supplier shall have no legal effect, unless confirmed by a duly authorised officer of the Supplier in writing. Furthermore, notices to the Supplier are invalid, unless and until received at the registered office or principal place of business or such other address specified by the Supplier to Customer in writing as the appropriate address for notices.
22.4. No Waiver. The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and shall in no way affect that party’s right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorised representative. No single or partial exercise of a right or remedy provided by these GTC or by law by a party prevents further exercise of the right or remedy or the exercise of another right or remedy.
22.5. Assignment. Customer may not assign any of its rights under the Contract unless the Supplier has given its prior written consent. Any warranties extended by the Supplier (i) are non-transferable and for Customer’s benefit only; and (ii) shall expire effective immediately if Customer resells or otherwise transfers the warranted Product or Services to any third party. The Supplier has the right at any time to assign all or any of its rights under the Contract or sub-contract all or any of its obligations for the sale of the Products and/or Services to any other associated or connected company or subsidiary or holding company as it may from time to time decide without giving notice of the same to the Customer.
22.6. Severability. If and to the extent any provision of the Contract in writing is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction shall not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
22.7. Governing Law and Jurisdiction. These GTC shall be governed by and construed in accordance with Singapore law (excluding the United Nations Convention on Contracts for the International Sale of Goods). Any dispute arising out of or in connection with these GTC, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC”) for the time being in force, which rules are deemed to be incorporated by reference in this Section. The Tribunal shall consist of a sole arbitrator, who shall be appointed by the Chairman of the SIAC. The language of the arbitration shall be English. The award of the arbitrator shalt be final and binding upon the Parties.