Table of Contents
1 – Interpretation
2 – Scope of the Agreement, Included Documents and Order of Precedence
3 – Service Scope
4 – Access to the Customer Site(s)
5 – Service Delivery and Acceptance
6 – Passing of Property and Risk
7 – Nominated Representatives
8 – Service Level Guarantees
9 – Quoting and Pricing
10 – Ordering Process
11 – Order Amendment and Cancellation prior to Acceptance
12 – Invoicing and Payment
13 – Insurance
14 – Warranties, Limitations of Liability and Indemnities
15 – Term, Renewal and Termination of the Service Order
16 – Term, Renewal and Termination of the Agreement
17 – Confidentiality
18 – Data Protection
19 – Non-Solicitation
20 – Sub-contracting and Assignment
21 – Force Majeure
22 – Intellectual Property Rights
23 – Agreement
24 – Variations and Amendments
25 – Waiver
26 – Severability
27 – Governing Law
28 – Dispute Resolution
29 – Notices
30 – Third Party Rights
31 – Relationship
32 – Foreign Corrupt Practices Act and Anti-Bribery Laws
33 – Publicity
34 – Miscellaneous
35 – Counterparts
1 – Interpretation
1.1 “Acceptance” means the acceptance of the Services by the Customer or deemed acceptance as per the provisions stipulated in Clauses 5.4 to 5.6 of these General Terms and Conditions.
1.2 “Affiliate” means with respect to any Party, any legal entity controlling, controlled by or under the same control as such Party; where control (including, with correlative meanings, the terms “controlled by” and “controlling”) means the possession of the power to direct the management and policies of such person, whether through ownership interests, by contract or otherwise.
1.3 “Agreement” means this agreement between the Customer and UTECH Global consisting of the Purchase Order accepted by both Parties, the Specific Terms and Conditions for the Services ordered, these General Terms and Conditions and any other relevant document accepted by both Parties in writing.
1.4 “Artefacts” means analyses, designs, documentation, reports, recommendations, quotes, software, as well as preparatory materials.
1.5 “UTECH Global” or “utech global” or “Utech Global” means UTECH GLOBAL SERVICES PTE. LTD (trading as any of the aforementioned, a company registered in Singapore (Business No. 202022522W) whose office is at 160 Robinson Road, #14-04 Singapore Business Federation Center, Singapore, 068914
1.6 “Business Day” means any day on which commercial and financial markets are open for trading where the Services are being carried out. In Singapore, a Business Day is any day other than a Saturday or Sunday or a public or bank holiday.
1.7 “Business Hours” means 08:30 and 17:30 on any Business Day.
1.8 “Change Order” means a written change to a Purchase Order issued in accordance with Clause 11.
1.9 “Charge” means a fee for an act, service or labour rendered by UTECH Global.
1.10 “Commencement Date” means the date referred to as such in the relevant Purchase Order.
1.11 “Confidential Information” means all information obtained in connection with the discussions leading up to or the performance of this Agreement in whatever form or media obtained (and whether verbal, electronic or written) which is marked or notified to the recipient as being confidential, or which in the normal course of business would be considered to be of a confidential nature.
1.12 “Contract Price” means the sum stated in the Purchase Order together with such additions or deductions as may be allowed under these General Terms and Conditions.
1.13 “CSM” means the Customer Services Manual agreed between the Parties, provided to the Customer prior to service commencement and updated from time to time.
1.14 “Customer” means «Account» a company registered in «ACCOUNT_COUNTRY_OF_REGISTRATION» (Company Registration Number «ACCOUNT_REGISTRATION_NUMBER» whose office is at «ACCOUNT_REGISTERED_ADDRESS».
1.15 “Customer Equipment” means the Customer’s Equipment and the Equipment of the Customer’s customers installed by the Customer, its agents and sub-contractors (or by the Customer’s customers and their agents and sub-contractors) on the Site(s) from time to time pursuant to this Agreement and excluding, for the avoidance of doubt, UTECH Global’s property.
1.16 “Effective Date” means the date of the later of the signatures of the parties to the Agreement below.
1.17 “Equipment” means any hardware (including multiplexers, routers, batteries, cabling, cabinets, patch panels and containment) and documentation relating thereto for the delivery of the Services.
1.18 “Force Majeure” has the meaning set out in Clause 21
1.19 “Goods” means any good which UTECH Global supplies to the Customer (including any of them or any part of them) under the Agreement
1.20 “Initial Term” means the minimum term of the Agreement as stated in the relevant Purchase Order.
1.21 “Intellectual Property Rights” means all intellectual and industrial property rights including patents, know-how, registered trademarks, registered designs, utility models, applications for and rights to apply for any of the foregoing, unregistered design rights, unregistered trademarks, copyright, database rights, domain names and any other rights in any invention, discovery or process, in each case in any country in the world and together with all renewals and extensions.
1.22 “Materials” means all items such as raw materials, standard and specialised parts, and sub-assemblies used by UTECH Global to provide Services and Projects. This excludes tools and test sets.
1.23 “Party” means a party to the Agreement, UTECH Global or the Customer, together referred to as the “Parties”.
1.24 “Payment Liability” means the Charges already invoiced to the Customer for Services provided by UTECH Global and Charges which shall be due for Services already provided by UTECH Global but yet to be invoiced (in both cases including any disputed amounts).
1.25 “Project” means a set of tasks undertaken by UTECH Global under the terms of the Agreement, the objective of which is to achieve the result as specified in the project scope outlined in the Proposal.
1.26 “Proposal” means the document sent by UTECH Global to describe the Services to be provided to the Customer and the pricing thereof.
1.27 “Purchase Order” means either (i) the order issued by the Customer based on a Proposal, signed by the Customer and accepted by UTECH Global, or (ii) the document describing the Services to be provided and the price, signed and therefore accepted by the Parties, whichever is relevant.
1.28 “Required Insurance Policy” means a public liability insurance policy providing indemnity in respect of any legal liability of the Customer to third parties arising out of or in connection with the Agreement, including in respect of any liability to UTECH Global (under a contractual liability extension if appropriate).
1.29 “Service” or “Services” means the service or services provided or to be provided by UTECH Global under this Agreement.
1.30 “Service Credits” means the amounts to be credited against the Services Charge in accordance with the provisions set out in the Specific Terms and Conditions attached hereto for the relevant Service.
1.31 “Service Order” means each contract, comprising a Purchase Order issued by the Customer and confirmation notice provided to the Customer by UTECH Global, for the supply of a Service, Project or Goods under the Agreement.
1.32 “Service Levels” means the levels of performance to which the Services are to be provided by UTECH Global and below which Service Credits become payable in accordance with the provisions set out in the Specific Terms and Conditions for the relevant Service attached hereto.
1.33 “Site” means any land, office, building, factory or other place where UTECH Global is to execute the Services in whole or in part.
1.34 “Tangible Property” means any Equipment (excluding all or any data or programme installed or stored on such Equipment at any time), furniture, fixtures, tools, signs, machinery or supplies installed, stored or used by the Customer on the Site(s).
1.35 “Term” means the term of the Agreement or of a Service Order, as the context requires
1.36 “Terms and Conditions” means the general terms and conditions set out in this document together with any specific terms and conditions agreed in writing between the Customer and UTECH Global.
1.37 “Trouble Ticket” means the fault log relating to the Services that is raised by the Customer via a call to the UTECH Global helpdesk. Each fault is promptly logged and given a system-generated unique identification number and an open and close time and date stamp.
1.38 “VAT” means Value Added Tax.
1.39 The expressions “in writing” and “written” include facsimile transmission and e-mail.
2 Scope of the Agreement, Included Documents and Order of Precedence
2.1 These General Terms and Conditions as well as the relevant Specific Terms and Conditions and any other relevant document mentioned below constitute the Agreement between the Parties.
2.2 The Agreement describes the terms by which the Customer may purchase Services and Goods from UTECH Global. In the case that the Customer wishes to acquire Goods from UTECH Global the provisions of these General Terms and Conditions will apply except those specifically excluded in the Specific Terms and Conditions for Sales of Goods (Appendix 1).
2.3 In the event of inconsistency or ambiguity between any of the components of the Agreement the following document hierarchy shall apply, listed in declining order of precedence:
3 – Service Scope
3.1 UTECH Global shall provide all supervision, labour, materials, transport, plant, tools, equipment and facilities necessary to perform the Services, except for any items which are to be provided by the Customer, in accordance with the Agreement.
3.2 UTECH Global shall provide the Services detailed in the Purchase Order in a professional manner consistent with industry standards, in compliance with the Service Levels set out in the Service Level Guarantees as described in Clause 8 and with the relevant Specific Terms and Conditions and the procedures set out in the CSM, in accordance with applicable legislation in the relevant jurisdiction(s), and with any of the Customer’s specifications and other specifications detailed in the Service Order. UTECH Global shall use first class quality materials and workmanship and undertakes that the design, workmanship and materials used will be fit to achieve the purpose for which the Services are required, either as specified expressly in the Agreement or as may be reasonably implied from the Agreement.
4 – Access to the Customer Site(s)
4.1 The Customer shall give UTECH Global access to the Site(s) for the purpose of carrying out the Services at such reasonable and mutually agreed times as may be specified in the Agreement or, if not so specified, as may reasonably be required by UTECH Global to carry out the Services in accordance with the Agreement.
4.2 While on a Customer Site UTECH Global shall comply strictly with all applicable statutory enactments and regulations, by-laws or other regulations of local authorities, instructions from any Safety Officer and any of the Customer’s procedures which have been communicated to UTECH Global.
4.3 The Customer shall have the right to require UTECH Global to remove immediately from the Site any employee or sub-contractor who has failed to comply with any of the above enactments, regulations, rules, or instructions.
4.4 UTECH Global shall be solely responsible for the suitability and safety of any equipment or tool used by it and shall not use any equipment or tools which may be unsuitable, unsafe or likely to cause damage.
5 – Service Delivery and Acceptance
5.1 The description of the Services will be as set out in UTECH Global Proposal. All drawings, descriptive matter, specifications and advertising issued by UTECH Global and any descriptions or illustrations contained in UTECH Global catalogues, brochures or any other promotional materials are illustrative only. They form no part of any contract between UTECH Global and the Customer and the Customer should not rely on them in entering into any contract with UTECH Global. This is not a sale by sample.
5.2 UTECH Global may make any change to the technical parameters, specifications and design of, or materials used for, the Services which:
5.2.1 are required to conform with any applicable safety, statutory or regulatory requirement; or
5.2.2 do not materially affect their quality or performance.
5.3 Where the Purchase Order provides for the Services to be carried out to any specified standard or performance requirement, the Customer shall be given five (5) Business Days to carry out such examination or tests of the Services performed by UTECH Global as may be specified in the Purchase Order in order to satisfy itself that the Services have been performed to the standards or performance requirements specified in the Agreement.
5.4 If the Services satisfy such tests or examination, the Customer will accept them by signing UTECH Global “Job Completion Form” form which will provided on or before the Effective Date.
5.5 If the Services do not satisfy such tests or examination, then the Customer may reject such Services and require that UTECH Global carry out such further work as may be necessary so that the Services do reach the required standard or performance requirements. Once UTECH Global has carried out such work and advised the Customer accordingly, the Customer will then repeat the tests or examination, and if the Services then satisfy the tests or examination, the Customer will accept them.
5.6 Should the Customer neither accept nor reject the Services within five (5) Business Days of the Customer being advised by UTECH Global that the Services are compliant with the standard or performance requirement specified in the relevant Purchase Order, the Services shall be considered Accepted
6 – Passing of Property and Risk
6.1 All Materials will remain the property of UTECH Global until UTECH Global has received in full (in cash or cleared funds) all sums due to it in respect of the Services and all other sums which are due to UTECH Global from the Customer. Risk in the Materials will pass to the Customer on the date of delivery.
6.2 Until such payment has been cleared, the Customer shall be in possession of the Materials solely as bailee for UTECH Global and in a fiduciary capacity, and the Customer shall store the Materials in such a way as to enable them to be identified as the property of UTECH Global. Until ownership of the Materials has passed to the Customer, the Customer must not destroy, deface or obscure any identifying mark or packaging on or relating to the Materials and must maintain the Materials in satisfactory condition insured on UTECH Global’s behalf for their full value against all risks.
6.3 The Customer’s right to possession of Materials will terminate immediately upon the occurrence of any event which would allow UTECH Global to terminate a Service Order or the Agreement for breach by the Customer under Clauses 15 or 16.
6.4 UTECH Global reserves the right of inspection or re-possession of any Materials to which it has retained title as aforesaid and thereafter to re-sell the same and for this purpose the Customer hereby grants an irrevocable right and licence to UTECH Global’s employees and agents to enter, with or without vehicles, during Business Hours, any premises where the Materials are or may be stored. This right shall continue to subsist notwithstanding the termination of the Agreement for any reason and is without prejudice to any accrued right of UTECH Global.
6.5 Notwithstanding the foregoing provisions of this Clause 6, the Customer shall be entitled to use the Materials in the ordinary course of its business.
7 – Nominated Representatives
7.1 UTECH Global and the Customer shall each appoint Nominated Representatives, each having specific areas of responsibilities. Each Nominated Representative shall be the first point of contact for all matters relating to his/her area of responsibilities, and he/she shall be authorised to make decisions relating to his/her respective areas on behalf of the Party he/she represents.
7.2 Each Party shall notify the other of any change in the identity of its Nominated Representatives named in the Customer Services Manual which will be provided before on or before the Effective Date, within twenty four (24) hours of the change becoming effective.
8 – Service Level Guarantees
Provided that the Customer is complying with each and every obligation of the General Terms and Conditions and relevant Specific Terms and Conditions under which UTECH Global supplies the Customer with the Service(s), UTECH Global shall use commercially reasonable endeavours to ensure that the Service(s) it provides meet the Service Levels described in the Specific Terms and Conditions for the relevant Service(s).
8.1 In the event that UTECH Global fails to meet the Service Levels, the Customer’s sole and exclusive remedy in respect of such failure shall be its entitlement to the Service Credits detailed in the Specific Terms and Conditions attached hereto for the relevant Services. Service Credits do not apply to interruptions (i) caused by the Customer; (ii) due to failure of power or equipment provided by the Customer or
8.2 others; (iii) during any period in which UTECH Global is not given access to the Site; and (iv) due to scheduled maintenance and repair.
8.3 UTECH Global shall not be considered in breach of the Agreement in the event of Service interruptions or failure to meet the Service Levels set out the Agreement.
8.4 All personnel employed by UTECH Global for the purpose of performing the Services shall be fully trained, suitably qualified and experienced, and shall fulfil their duties in a professional, ethical manner, consistent with UTECH Global’s commitment to high standards of behaviour.
8.5 The Customer acknowledges that UTECH Global cannot (and does not) guarantee, represent or warrant that the Services will be uninterrupted.
9 – Quoting and Pricing
9.1 The Contract Price is based on the information supplied by the Customer at the time of issuance of the Proposal.
9.2 Unless otherwise indicated in the Proposal, the Contract Price is valid for one month from the issue date, provided that UTECH Global has not previously withdrawn it, and does not constitute an obligation of any kind unless otherwise agreed with the Customer in writing.
9.3 Unless otherwise stated all Charges payable by the Customer under the Agreement shall be exclusive of VAT or any other applicable tax. UTECH Global shall add any such applicable tax to its invoices which shall be paid by the Customer.
9.4 The Charges payable by the Customer shall be the Contract Price less any Service Credit.
9.5 All Charges shall be stated, invoiced and paid in US Dollars ($USD), unless otherwise agreed by the Parties.
10 – Ordering Process
10.1 If the Customer wishes to place an order then the Customer shall complete a Purchase Order for the required Service and submit it to UTECH Global.
10.2 By way of acceptance of the Purchase Order, UTECH Global shall issue an acceptance notification together with the Terms and Conditions set out in the Agreement.
11 – Order Amendment and Cancellation prior to Acceptance
11.1 UTECH Global’s representatives and operatives have strict instructions not to carry out any additional or variation work unless in receipt of written instructions from the Customer.
11.2 The Customer may by notice in writing to UTECH Global propose to vary the ordered Goods or Services in any respect. Upon receipt of any such notice UTECH Global shall advise the Customer in writing of any alteration to the Contract Price or other of UTECH Global’s obligations which would result from the variation. The Customer shall then either:
(a) sign a Change Order issued by UTECH Global for the requested variation; or
(b) withdraw the variation request.
11.3 In the event that any task is expected to take longer than the estimated man-days specified in the Proposal, UTECH Global shall issue a Change Order specifying the additional man-days required to complete the task. Upon receipt of the Change Order signed by a Nominated Representative of the Customer, UTECH Global shall continue to perform the task.
11.4 The Customer may not cancel a Service Order or Change Order prior to Acceptance unless expressly agreed in writing by an authorised representative of UTECH Global.
11.5 In the event that the Customer instructs UTECH Global to provide the Services specified in the Proposal, through the issuance of a Purchase Order, and subsequently cancels the applicable Service Order or any Change Order following agreement by UTECH Global in accordance with Clause 11.4 due to no fault of UTECH Global and prior to Acceptance of the Goods or Services, the Customer shall reimburse UTECH Global for all costs incurred by UTECH Global in the provision of Services prior to cancellation.
12 – Invoicing and Payment
12.1 Unless otherwise agreed in writing by the Parties, UTECH Global may invoice the Customer as follows:
12.1.1 non-recurring charges will be invoiced in arrears;
12.1.2 recurring charges are payable in advance and may be invoiced one (1) month prior to the beginning of the service period they relate to.
12.2 Time for payments shall be of the essence.
12.3 All payments by the Customer shall be either collected by UTECH Global by direct debit or made in cleared funds, at UTECH Global’s discretion, within thirty (30) days of the invoice date.
12.4 The Customer shall pay all sums payable by it under the Agreement free and clear of any deduction (except for credit notes issued by UTECH Global) or withholding unless the law requires a deduction or withholding to be made, and without any restriction or condition for or on account of any counterclaim. If a deduction or withholding is so required, the Customer shall pay such additional amount as shall ensure that the net amount UTECH Global receives equals the full amount which it would have received had the deduction or withholding not been required.
12.5 In the event that any amount due under the Agreement is not paid within thirty (30) calendar days of the invoice date, the Customer shall be considered in breach of a material obligation of the Agreement, and UTECH Global may without prejudice to any of its other rights under the Agreement:
12.5.1 send a notice to the Customer by email requesting immediate payment of the outstanding amount. If within five (5) Business Days the outstanding amount due has still not been received in full, UTECH Global shall be entitled to forthwith suspend or terminate the execution of the Agreement and/or the relevant Service without further liability by sending a written notice to that effect to the Customer. If the outstanding amount relates to Installation Services, and
12.5.2 Materials have been provided as part of the Service, UTECH Global shall be entitled to access the Site(s) where the Materials are located, de-install and re-possess them. The Customer shall then also become liable for the payment of de-installation and transport charges to UTECH Global; and
12.5.3 charge the Customer, who will then become liable for the payment of interest on the outstanding amount at the HSBC Singapore rate + five percent (5%), calculated on a monthly basis without notice of default being required, and until the full outstanding amount has been received by UTECH Global, both before and after any judgement.
12.6 The provisions of Clause 12.5 shall not prevent UTECH Global from taking legal action to recover the amounts due under the Agreement.
12.7 The Customer shall indemnify UTECH Global against all costs and expenses (including any legal costs and expenses on a full indemnity basis) incurred by UTECH Global in recovering sums due from the Customer or in exercising its rights pursuant to Clauses 12.5 and 12.6, with a minimum charge of five hundred and eighty five US Dollars ($585).
12.8 If payments received from the Customer are not stated to refer to a particular invoice UTECH Global may apply such payments to any outstanding invoice.
12.9 Notwithstanding the provisions described above in this Clause 12, the Customer will have thirty (30) calendar days to dispute any invoice from the invoice date. If UTECH Global validates the dispute, it will provide a credit note to the Customer.
12.10 Should the Customer wish to dispute the Charges, it shall notify UTECH Global in writing within fifteen (15) days of the invoice date identifying clearly the disputed part of an invoice and the reasons why it is challenged.
12.11 No interest shall be payable on any disputed amounts that are ultimately found (by a final court of competent jurisdiction) not to be payable.
12.12 UTECH Global’s failure to hold the Customer strictly to the terms of Clause 12.5.3 shall not diminish UTECH Global’s right to enforce this same clause at a later date if it so desires.
13 – Insurance
13.1 Each Party shall, prior to the Commencement Date, at its own cost, take out and maintain in force throughout the duration of the Agreement, an insurance policy (“the Required Insurance Policy”) compliant with the provisions of this Clause 13 and any other insurances as may be required by law.
13.2 Without prejudice to their liabilities under the Agreement each Party shall insure with a reputable insurance company against death or injury to persons and loss or damage to physical property, including the Goods the subject matter of the Agreement, arising out of their obligations under the Agreement, and shall if so requested by the other, provide proof of such insurance. Such insurance shall include the insured Party having adequate professional indemnity insurance.
13.3 The Customer shall ensure that the Required Insurance Policy contains provisions:
13.3.1 providing for coverage in force with a limit of indemnity of not less than Sixteen Million HK Dollars (HK $16,000,000) in any one occurrence/unlimited in the number of occurrences in a policy period; and
13.3.2 that it operates, save for the limit of indemnity (as defined in Clause 13.3.1), in the same manner as if there was a separate policy with and covering each insured party without right of contribution from any other insurance which is carried by an insured party.
13.4 The failure of a Party to take out and maintain in force the Required Insurance Policy will be considered a breach of a material obligation of the Agreement.
13.5 Neither the Customer nor its servants or agents shall take, or fail to take, any action, or (insofar as it is reasonably within its power) permit anything to occur which will entitle any insurer to refuse to pay any claim under the Required Insurance Policy or which might otherwise prejudice the Required Insurance Policy.
13.6 The Customer shall not bring any claim or action against UTECH Global (or any of its agents, servants, employees or subcontractors) in respect of any loss or damage which the Customer could recover under the Required Insurance Policy or any insurance required by law (whether or not such insurance has in fact been effected or, if effected, has been vitiated as a result of any act or omission of the Customer or any of its employees, servants, agents or sub-contractors).
13.7 The Customer shall:
13.7.1 give UTECH Global immediate notification of any claim concerning the Agreement which could be brought under the Required Insurance Policy accompanied by full details of the incident giving rise to the claim; and
13.7.2 diligently deal with all claims relating to the Required Insurance Policy and in accordance with the insurer’s requirements.
13.8 All insurance premiums and deductible payments in relation to each Party’s Required Insurance Policy shall at all times be the responsibility of such Party.
13.9 Neither failure to comply nor full compliance with the insurance provisions of the Agreement shall limit or relieve a Party of its liabilities and obligations under the Agreement.
14 – Warranties, Limitations of Liability and Indemnities
14.1 The Customer warrants and represents to UTECH Global as follows:
14.1.1 that it has all requisite consents, licences and authorities (whether statutory or otherwise) that are applicable or required in connection with the performance of its obligations under the Agreement and shall fully comply with its obligations under the same and under all relevant law
14.1.2 the use and possession of the Customer Equipment by UTECH Global and the provision of any Services in the proper discharge of UTECH Global’s obligations under the Agreement will not infringe any Intellectual Property Rights of any third party in any country;
14.1.3 the information provided to UTECH Global in respect of the Customer Equipment is complete and accurate;
14.1.4 the execution and performance of the Agreement is within the Customer’s power and authority.
14.2 Subject to Clause 15.6 the Customer shall indemnify UTECH Global against any and all costs, expenses, liabilities, losses, damages, claims, demands and judgments which UTECH Global incurs or suffers as a result of:
14.2.1 any claim that the presence of the Customer Equipment on the Site or the provision of the Services in respect of the Customer Equipment infringes the Intellectual Property Rights of any third party in any country;
14.2.2 any claim arising from the content or data stored on or transmitted through the Customer Equipment; and
14.2.3 any claim arising out of the accidental, intentional or negligent acts or omissions of the Customer and customers of the Customer and its and their employees, agents and sub-contractors or any defects in the Customer Equipment.
14.3 UTECH Global warrants and represents to the Customer as follows:
14.3.1 that it will, and will use all reasonable endeavours to procure that its agents and sub-contractors will, provide the Services with reasonable care and skill and in accordance with industry standards and the Service Levels; and
14.3.2 the provision and use of the Services in accordance with the Agreement will not infringe any Intellectual Property Rights of any third party in any country; and
14.3.3 that it has all requisite consents, licences and authorities (whether statutory or otherwise) that are applicable or required in connection with the Agreement and shall fully comply with its obligations under the same and under all relevant laws; and
14.3.4 the execution and performance of the Agreement is within UTECH Global’s power and authority.
14.4 Subject to Clause 14.5 below UTECH Global shall indemnify the Customer against all losses, costs, damages and expenses arising out of the death or injury to any person, or the loss or damage to any physical property, other than the Goods the subject of work under the Agreement, to the extent that the same is due to or arises out of any act, default, negligence or breach of statutory duty of UTECH Global, its employees, agents or subcontractors.
The Customer shall indemnify UTECH Global against all losses, costs, damages and expenses arising out of the death or injury to any person, or subject to Clause 14.5 below, the loss or damage to any physical property to the extent that the same is due to or arises out of any act, default, negligence or breach of
statutory duty of the Customer, its employees, agents or subcontractors (other than UTECH Global, its employees, agents or subcontractors).
14.5 The following provisions set out the entire liability of each Party (including, without limitation, any liability for negligence and for the acts and omissions of their respective employees, agents or subcontractors) to the other in respect of any act or omission, including:
14.5.1 any breach by that Party of its contractual obligations under the Agreement;
14.5.2 any of the Goods, or the manufacture or sale or supply, or failure or delay in supply of the Goods or provision of the Services or failure or delay in the provision of the Services or Projects by UTECH Global, or any negligence in connection with the Goods, Services or Projects;
14.5.3 any breach of statutory duty or restitution; and
14.5.4 any representation, statement or tortious act or omission including (without limitation) negligence, wilful default and/or negligent misrepresentation, arising from or in connection with the Agreement.
14.6 Save as expressly provided to the contrary in this Clause 14, the Customer is responsible for the consequences of any use of the Equipment, the uses to which it puts the Services and any loss of or damage to the Equipment save where such loss or damage arises from UTECH Global’s defaults.
14.7 Except as set out in this Clause 14.5, UTECH Global hereby excludes to the fullest extent permissible in law, all conditions, warranties and stipulations, whether express (other than those set out in the Agreement) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favour of the Customer.
14.8 The limits of liability of each Party to the other in respect of the above indemnities for any one event shall be equal to three million Singapore Dollars (SGD $3,000,000).
14.9 UTECH Global’s aggregate liability for all defaults causing damage to the Tangible Property of the Customer under the Agreement will be limited to the sum of HK Dollars HK$40,000 or 10%, whichever is greater in respect of each and every occurrence to Third Party property damage.
14.10 Subject to this Clause 15, UTECH Global’s liability for breach of the Agreement will be limited to the Charges paid by the Customer in respect of the Goods or Services supplied by UTECH Global to the Customer in the twelve (12) months preceding the event(s) giving rise to such liability.
14.11 UTECH Global does not exclude or limit its liability to the Customer for damage suffered by the Customer as a result of any breach by UTECH Global of its obligations arising under section 12, Sale of Goods Act 1979 or section 2, Supply of Goods and Services Act 1982.
14.12 Neither Party excludes or limits its liability to the other:
14.12.1 for death or personal injury caused by its negligence or the negligence of its employees, agents or subcontractors;
14.12.2 under section 2(3) Consumer Protection Act 1987;
14.12.3 for any matter which it would be illegal for it to exclude or to attempt to exclude its liability; or
14.12.4 for its fraud (including, without limitation, fraudulent misrepresentation).
14.13 In no event will either Party be liable to the other for any consequential or indirect loss or damage or any loss of profits, loss of business, loss of or corruption of data or depletion of goodwill or any like loss howsoever caused (including as a result of negligence) arising out of its performance of or failure to perform any of its obligations under the Agreement.
14.14 UTECH Global will use reasonable endeavours to deliver or perform each of the Customer’s orders for the Goods or Services within the time specified in the applicable Service Order and, if no time is agreed,
then within a reasonable time. If, despite those endeavours, UTECH Global is unable for any reason to fulfil any delivery or performance on the specified date, UTECH Global will not be deemed to be in breach of the Agreement, nor (for the avoidance of doubt) will UTECH Global have any liability to the Customer whatsoever due to any delay or failure in delivery or performance.
14.15 The Customer acknowledges that the above provisions of Clauses 13 and 14 are reasonable given: (i) the sums payable to UTECH Global under the Agreement and the disproportionate size of claims that might otherwise be brought against UTECH Global; and (ii) the cost and availability of insurance and the obligations on the Customer under the Agreement to take out the Required Insurance Policy, and the Customer agrees to accept such provisions and to insure accordingly.
14.16 A claim shall be deemed to have been made against either Party on the date that such Party receives written particulars of a claim setting out the specific default in respect of which the claim is made or indemnity relied upon with all relevant details including an estimate by the Party making the claim of the amount of the other Party’s liability.
14.17 Each of UTECH Global’s employees, agents and subcontractors may rely upon and enforce the exclusions and restrictions of liability in this Clause 14.14 in that person’s own name and for that person’s own benefit, as if the words “its employees, agents and subcontractors” followed the word “UTECH Global” wherever it appears in this clause.
15 – Term, Renewal and Termination of the Service Order
15.1 Each individual Service Order shall come into force on the Acceptance Date and shall continue in force for the Initial Term as defined in the Purchase Order unless terminated early in accordance with Clauses 15.3, 15.4, 15.5 or 15.6. At the end of the Initial Term, and any subsequent period of Service, the individual Service Order will, unless terminated in accordance with Clause 15.2, automatically renew and continue in force for successive one (1) year periods, unless otherwise agreed by the Parties in writing.
15.2 Either Party may terminate a Service Order without further liability at the end of the respective Initial Term or any subsequent Term by giving to the other prior written notice of at least sixty (60) days in advance of the expiry of the Initial Term or subsequent Term, as applicable.
15.3 A Party shall have the right (without prejudice to its other rights) to terminate or suspend a Service Order by notice in writing to the other in the event that the other Party defaults in due performance or observance of any material obligation relating to the Service Order under the Agreement and (in the case of a remediable breach) fails to remedy the breach within thirty (30) days of the date of the written notification sent by the non-defaulting Party, save for non-payment, where the time given to remedy the breach is five (5) Business Days from the written notification date.
15.4 Either party may terminate the Service Order by sending a written notice to the other if UTECH Global’s legal authorisation to provide the Service is withdrawn by a regulator or other competent authority.
15.5 If a Force Majeure event occurs, the party not invoking Force Majeure as relieving it of performance shall be entitled (but not required) to terminate the affected Service Order provided that the conditions stated in Clause 21.3 are fully met.
15.6 If the Customer terminates a Service Order within the Term without UTECH Global being in breach of a material obligation, the Customer shall pay to UTECH Global as follows:
15.6.1 If the Service Order is terminated in the first year of the Initial Term:
15.6.2 If the Service Order is terminated in the second or subsequent years of the Initial Term:
15.7 Early termination fees will be due immediately and payable within thirty (30) days.
15.8 Where the Term of a Service Order exceeds the Term of the Agreement the Terms and Conditions of the Agreement will continue to apply to the Service Order until termination of the Service Order.
15.9 On termination of the Service Order, howsoever arising, UTECH Global shall cease the provision of the Services to the Customer and shall disconnect the power supply to the Equipment if relevant.
15.10 In the event UTECH Global terminates a Service Order prior to expiry of its Term pursuant to Clause 16.3, notwithstanding such termination the Customer shall pay UTECH Global:
15.11 Upon termination for whatever reason each Party shall within fourteen (14) days of the date of termination pay all outstanding amounts due to the other and all outstanding amounts not yet invoiced shall become due immediately and payable within thirty (30) days.
16 – Term, Renewal and Termination of the Agreement
16.1 The Agreement shall come into force on the Effective Date, and shall, subject to the terms hereof, and unless terminated in accordance with Clause 16.3, 16.4, 16.5 or 16.6, continue in force for an Initial Term of three (3) years, unless otherwise agreed by the Parties in writing. At the end of the Initial Term, and any subsequent Term, the Agreement will, unless terminated in accordance with Clause 16.2, be automatically renewed for successive one-year periods unless and until terminated by one Party giving to the other not less than three (3) months’ written notice prior to the end of the then current Term.
16.2 Either Party may terminate the Agreement by written notice to the other upon expiry or termination of the last related Service Order.
16.3 Either Party shall have the right (without prejudice to its other rights) to terminate or suspend the Agreement by notice in writing to the other in the event that:
16.4 Additionally, the failure by the Customer to comply with the requirements detailed in Clause 13.2 above will entitle UTECH Global to suspend or terminate the Agreement forthwith without further liabilities by sending a written notice to the Customer or to any person in whom the Agreement may become vested.
16.5 In the event the Agreement shall be terminated by UTECH Global prior to expiry of the Term for one of the reasons stated in Clauses 17.3 and 17.4 above the Customer shall pay:
16.6 Termination or expiry of the Agreement shall not affect any accrued rights or obligations of either Party or those intended to be of a continuing nature or to come into force upon termination or expiry.
17 – Confidentiality
17.1 UTECH Global shall keep confidential and not disclose to any other person or publish any information relating to the Customer’s business, the Customer Site(s), the Agreement or the work being performed by UTECH Global except in so far as such disclosure to any subcontractor may be necessary for the performance by the subcontractor of his obligations and then only under like conditions of confidentiality.
17.2 Subject to the provisions of this Clause 17 each Party will keep confidential:
17.2.1 the terms of the Agreement; and
17.2.2 any and all Confidential Information it may acquire in relation to the other Party.
17.3 The obligations of a Party set out in Clause 17.1 will not apply to any information which:
17.3.1 is publicly available or becomes publicly available through no act or omission of that Party; or
17.3.2 a Party is required to disclose by law, regulation or pursuant to an order of a competent authority.
17.4 UTECH Global shall be entitled to:
17.4.1 disclose to other customers of UTECH Global the identity of the Customer in the event of interference to the Equipment of other customers caused by the Customer Equipment pursuant to Clause 3.10 of the Specific Terms and Conditions for Managed Colocation Services if relevant
17.4.2 disclose the identity and contact details of the Customer to selected third parties who may provide services of interest to the Customer unless and until the Customer informs UTECH Global in writing of any objection, either on signature of the Agreement or subsequently; and
17.4.3 disclose any Confidential Information to its Affiliates, provided that UTECH Global shall ensure that its Affiliates are bound by similar obligations of confidentiality to those set out in this Clause 17.
17.5 Either Party shall be entitled to disclose any Confidential Information to its professional advisers for legitimate purposes, including, without limitation, its insurers, accountants, lawyers, financial advisers and/or lenders, provided that each Party shall ensure that such persons are bound by similar obligations of confidentiality to those set out in this Clause 17.
17.6 The provisions of this Clause 17 will survive any termination of the Agreement.
17.7 A Party failing to comply with the provisions of this Clause 17 will be considered in breach of a material obligation of the Agreement.
17.8 On termination of the Agreement for whatever reason the recipient Party shall return to the disclosing Party (or, at the discretion of the disclosing Party, destroy) all copies of Confidential Information of the disclosing Party which it has in its possession.
18 – Data Protection
18.1 The Customer acknowledges that UTECH Global may, in the course of performing its obligations under the Agreement, process “personal data” (as defined in Directive 95/46/EC on the protection of individuals with regard to the processing of personal data (the “DPD”)) in accordance with UTECH Global’s Privacy Policy (available on UTECH Global’s web site). Insofar as such personal data is obtained from the Customer, the Customer consents, and undertakes to procure that any relevant data subjects (as defined in the DPD) consent, to such processing by UTECH Global, including, without limitation, to the transfer of such personal data for processing outside the European Union and/or disclosing it to third parties.
18.2 Each Party shall comply with applicable laws and regulations relating to the protection of personal data including (i) those deriving from the DPD and (ii) guidelines and guidance notes issued from time to time by any relevant governmental authority and maintain all necessary registrations as required under such applicable laws and regulations, guidelines and guidance note.
19 – Non Solicitation
19.1 During the term of the Agreement and for a period of one year thereafter, neither Party shall (except with the prior written consent of the other Party) directly solicit the services of any of the other Party’s personnel, staff or subcontractors who have been engaged in the provision of the Services or the management of the Agreement. In the event that a Party does, in breach of the preceding sentence, employ any staff member of the other Party then a payment equal to six (6) months’ gross salary of the employee so employed shall be due by such Party to the other Party.
19.2 A Party failing to comply with this Clause 19 will be considered in breach of a material obligation of the Agreement
20 – Sub-contracting and Assignment
20.1 UTECH Global may assign, delegate, license, hold on trust or sub-contract all or any part of its rights or obligations under the Agreement. However, UTECH Global shall remain liable to the Customer for the fulfilment of its obligations under the Agreement.
20.2 The Agreement is personal to the Customer who may not assign, delegate, license, hold on trust or sub-contract all or any of its rights or obligations under the Agreement without UTECH Global’s prior written consent, which shall not be unreasonably withheld. If UTECH Global provides such consent, the Customer shall remain liable to UTECH Global for the fulfilment of its obligations under the Agreement.
21 – Force Majeure
21.1 If a Party is prevented from or delayed in the performance of its obligations (other than a payment obligation) by an event arising after the conclusion of the Agreement which was beyond its reasonable control, that Party shall notify the other of the existence of an event of Force Majeure and the contractual obligations affected by such event shall be suspended. Force Majeure events may include, but are not limited to, acts of God, war, industrial disputes, protests, fire, flood, storm, tempest, explosion, compliance with statutory obligation, failure or shortage of power supplies, supplier failure, acts or omissions of government or regulators, highways authorities, third party telecommunications operators and/or suppliers or other competent authorities, acts of terrorism and national emergencies.
21.2 If the event of Force Majeure continues for a period less than ninety (90) days, then on the ending of the Force Majeure event the contractual obligations of the parties shall be reinstated with such reasonable modifications to take account of the consequences of the Force Majeure event as may be agreed between the parties, or in default of agreement, as may be determined by Arbitration.
21.3 If a Party is prevented or delayed in performing one or more material obligation(s) due to a Force Majeure event for ninety (90) days or more, the other Party shall have the right to terminate the affected Service Order without further liabilities by providing thirty (30) days’ written notice to that effect.
21.4 Upon the occurrence of an event of Force Majeure and provided that the Customer has not exercised its right to terminate under Clause 21.3, the time for performance shall be extended for the period of delay or inability to perform due to such occurrence.
21.5 The right for a Party to terminate an affected Service Order due to a Force Majeure event will cease to exist if it has not been exercised before the other Party has been able to perform the affected obligation(s).
21.6 If a Service Order is so terminated the Customer shall pay to UTECH Global the amount of the Contract Price outstanding in respect of the Services performed up to the date of the notice of Force Majeure together with such reasonable sum as may be agreed between the parties, or in default of agreement, as may be determined by Arbitration in respect of the commitments already entered into by UTECH Global at the date of the Force Majeure notice.
21.7 Neither party shall be deemed in breach of any of its obligations under this Agreement if, and to the extent that, performance of such obligation is prevented or delayed by any event of Force Majeure, provided that such event of Force Majeure is not caused by the negligence of the affected party, and such party has notified the non-affected party in writing of the event of Force Majeure. The affected party shall use all reasonable endeavours to avoid or minimise the effects of an event of Force Majeure.
22 – Intellectual Property Rights
22.1 Title in all Intellectual Property Rights existing prior to the Effective Date shall be the absolute property of and shall remain vested in the Party that owned such rights immediately prior to that date. Each Party acknowledges that it shall not acquire title or any rights or interest (except as expressly set out herein) in the other Party’s Intellectual Property Rights by virtue of the operation of the Agreement.
22.2 All Intellectual Property Rights created or developed in connection with the Agreement shall, unless otherwise agreed in writing by the parties, vest with the originating party of such Intellectual Property Rights. Subject to certain statutory exceptions, no part of the Artefacts produced by UTECH Global may be duplicated and/or published by means of the Internet, print, photocopy, microfilm or otherwise, which also applies to full or partial processing, without written consent from UTECH Global.
22.3 In consideration of the payment of the Charges, UTECH Global hereby grants to the Customer (and to any of the Customer’s customers who use or shall use the Services) for the duration of the Agreement and any Service Order that continues after the date of termination or expiry of the Agreement, with effect from the date of the Agreement, a non-exclusive, non-transferable, royalty-free licence to use the Intellectual Property Rights of UTECH Global required by the Customer to use the Services in accordance with the Agreement.
22.4 The Customer guarantees that no rights of third parties prevent provision by the Customer to UTECH Global of Artefacts for the purpose of use or treatment and the Customer shall indemnify UTECH Global against any action based on the allegation that any such provision, use or treatment infringes any right of third parties.
23 – Agreement
23.1 Subject to any variation under Clause 24, the Agreement contains all the terms and conditions which UTECH Global and the Customer have agreed in relation to the Goods and/or Services and supersede any prior written or oral agreements, representations or understandings between the Parties relating to such Goods and/or Services. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of UTECH Global which is not set out in the Agreement.
23.2 The terms of any Purchase Order or other correspondence and documents of the Customer issued in connection with the Agreement shall not apply unless expressly accepted in writing by UTECH Global.
23.3 Any order, acceptance of a quotation for a Service, Project and/or Goods, acceptance of delivery of Goods or commencement of the performance of a Service will be deemed to be conclusive evidence of the Customer’s acceptance of the terms of the Agreement.
23.4 The Agreement is formed when the order is accepted by UTECH Global by way of a written acknowledgement of order. No Agreement will come into existence until a written acknowledgement of order is issued by UTECH Global
24 – Variations and Amendments
24.1 Save as set out in the Agreement, no variation or amendment of the Agreement shall be valid unless in writing and signed by authorised representatives of the Parties
25 – Waiver
25.1 No failure to exercise and no delay in exercising on the part of either Party any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any right, power or privilege preclude the enforcement of any other right, power or privilege nor shall the waiver of any breach of any provision herein be taken or held to be a waiver of the provision itself. Any waiver to be effective must be in writing.
26 – Severability
26.1 Each provision of the Agreement is to be construed as a separate provision applying and surviving even if one or more of the other provisions of the Agreement is held by a court of competent jurisdiction to be inapplicable or unenforceable.
27 – Governing Law
27.1 The formation, existence, construction, performance, validity and all aspects whatsoever of the Agreement or of any of its terms shall be governed by the laws of Singapore.
27.2 The parties agree to submit to the exclusive jurisdiction of the courts of Singapore to settle any disputes which may arise out of or in connection with the Agreement, provided that UTECH Global may commence proceedings in any jurisdiction in which the Customer is incorporated, domiciled or resident.
28 – Dispute Resolution
28.1 Any dispute between the Parties in relation to the fulfilment of their obligations under the Agreement shall in the first instance be referred to the Parties’ Nominated Representatives for discussion and resolution.
28.2 If the dispute is not resolved by the Nominated Representatives within a period of fourteen (14) days pursuant to Clause 28.1 the dispute shall be referred to the Managing Directors (or their equivalents) of the Parties who shall consider, meet and use their reasonable endeavours to resolve the dispute.
28.3 If the dispute is not resolved within sixty (60) days of the commencement of mediation pursuant to Clause 28.1, or if a Party refuses at any time to participate in the mediation procedure as described in Clauses 28.1 and 28.2, then the other Party may commence legal proceedings.
29 – Notices
29.1 All notices required under the Agreement shall be in the English language, in writing and delivered to the person(s) or department(s) and business address(es) indicated below or to such other address as the recipient may designate by notice given in accordance with this Clause:
If to UTECH Global:
UTECH GLOBAL SERVICES PTE. LTD
Attn: Gus Osborne
160 Robinson Road, #14-04 Singapore Business Federation Center, Singapore, 068914
Ph: +85266855183
Email: Gus.Osborne@telesolgroup.com
29.2 Any such notice may be delivered by pre-paid first class post (airmail if overseas), by a reputable courier service, electronically, or by facsimile, and shall be deemed to have been received:
29.2.1 By pre-paid first class post or by reputable courier service, two (2) Business Days after being posted (or three (3) Business Days if overseas); and
29.2.2 By facsimile or electronic mail, immediately upon transmission provided that the sender does not receive any indication that the facsimile transmission or electronic mail message has not been successfully transmitted to the intended recipient and a confirmatory copy is sent by first class pre-paid post, overnight courier, by electronic mail by the end of the next Business Day in the country of the sender.
29.3 Addresses for service of legal notices may be changed by valid notification of the other party of the new address.
30 – Third Party Rights
30.1 The terms, representations, warranties and agreements of the Parties set forth in the Agreement are not intended for, nor shall they be for the benefit of or enforceable by, any third party (including, without limitation, the Customer’s end users).
30.2 For the avoidance of doubt, any right conferred on third parties pursuant to the Contracts (Rights of Third Parties) Act 1999 or any other legislation is hereby expressly excluded.
31 – Relationship
31.1 Nothing in this Agreement shall operate to create a partnership or joint-venture between the parties or is to be construed as appointing either party as the agent of the other.
32 – Foreign Corrupt Practices Act and Anti-Bribery Laws
32.1 The Parties shall neither directly nor indirectly pay, offer, promise, give, or authorise to pay money or anything of value to any employee or official of a government or department thereof, to a political party or candidate for political office, to any employees or officials of public international organisations, or to any other person with the knowledge or belief that such money or item of value will be passed onto one of the above to influence any act or decision by such person or by any governmental body for the purpose of obtaining, retaining, or directing business or to otherwise obtain an improper advantage. Each Party hereby represents and warrants that, in the performance of its obligations hereunder, it has not made, and will not make, any such proscribed payment. A Party will not undertake any action that may cause the other Party to be in breach of the rules and regulations of the U.S. Foreign Corrupt Practices Act (“FCPA”) or of anti-bribery and anti-corruption laws of other nations. Each party further warrants and certifies that it has, and will continue to, comply with all applicable anti-bribery and anti-corruption laws, including but not limited to the FCPA and UK Bribery Act.
33 – Publicity
33.1 UTECH Global shall be entitled to use the Customer’s name in connection with any advertising or marketing of the Services unless and until the Customer informs UTECH Global in writing of any objection, either on signature of the Agreement or subsequently.
33.2 Save for the provisions of Clause 33.1, neither party shall publish or use any advertising, sales promotions, press releases or other publicity which uses the name, logo, trademarks or service marks of the other without prior written approval of the other.
34 - Miscellaneous
34.1 Each right or remedy of a Party under the Agreement is without prejudice to any other right or remedy of such Party whether under the Agreement or not.
34.2 The descriptive headings of the clauses of the Agreement are for convenience only and do not constitute a part of the Agreement.
35 - Counterparts
35.1 The Agreement may be executed in any number of counterparts, each of which so executed will constitute one and the same instrument.