“Etricom” means Etricom Solutions Pte Ltd. having its registered office at No. 420 North Bridge Road #06-40 North Bridge Centre Singapore 188727.
“Etricom Warranty”, if applicable, means any warranty which Etricom may from time to time provide to a Purchaser in respect of Products or Services.
“Delivery Date” means the date on which Products leave Etricom or its suppliers’ premises for delivery to the Purchaser.
“Loss” means any loss, liability, damage, expense or cost whatsoever and includes (without limitation) indirect or consequential loss or damage or loss of profits.
“Order” means an order placed with Etricom for the supply of Products or Services.
“Products” means the Products (including software forming part of the Products) supplied or to be supplied by Etricom and any part supplied by Etricom in connection with the provision of Services.
“Purchaser” means any person which enters into a contract with Etricom for the purchase of Products or the provision of Services including its executors, administrators, successors and permitted assigns.
“Services” means any services supplied or to be supplied by Etricom.
2. FORMATION OF CONTRACT
Each Order constitutes an offer by the Purchaser to acquire the Products or Services subject to these Terms and Conditions. A contract shall be made between Etricom and the Purchaser for the supply of Products or Services only if an Order has been accepted by Etricom. Any price lists or quotations given by Etricom to a Purchaser do not constitute an offer to provide Products or Services to the Purchaser.
These Terms and Conditions supersede all previous terms and conditions and may only be varied with the written consent of Etricom. No employee or agent of Etricom has any authority to vary these Terms and Conditions unless authorised in writing by the Managing Director of Etricom.
3. PRICES QUOTED
(a) The prices quoted are based on the quantities referred to in the quotation. Etricom reserves the right to amend the prices quoted should there be any variation in the total quantity of Products and/or Services ultimately supplied. All quotations are valid for 30 days from the date of issuance unless otherwise specified.
(b) The prices quoted are C.I.F. Singapore unless otherwise specified. The Purchaser acknowledges and agrees that the prices for Products or Services are subject to change without notice due to changes in exchange rates, tariffs or other government charges.
Unless otherwise stated, the price quoted includes commercial packaging in accordance with recognised standards. It is agreed that special packaging required by the Purchaser or deemed necessary by Etricom is to the Purchaser’s account.
If the Purchaser desires to inspect the Products before delivery, such an inspection must be made at Etricom’s premises. If Etricom is required to provide assistance in the Purchaser’s inspection of the Products prior to delivery in excess of 15 minutes per unit, such assistance will be provided at Etricom’s standard rates current at the time of the inspection. The Purchaser shall be deemed to have accepted the Products as soon as the inspection shall have been completed unless the Purchaser forthwith makes an objection to Etricom regarding the quality or otherwise of the Products. If no such inspection is made, the Purchaser shall be deemed to have accepted the Products when they are delivered.
Risk of loss of, or damage to, the Products will pass to the Purchaser on and from the Delivery Date. The Purchaser appoints Etricom its agent to forward, deliver, carry, install and store the Products. If after the Delivery Date the Products remain in the possession of Etricom, the Purchaser must pay such storage and handling charges as Etricom may charge. Any terms as to quantity of Products to be delivered or time of delivery of Products or Services agreed between Etricom and the Purchaser are not of the essence. Etricom may make partial deliveries and invoice each partial delivery separately and the Purchaser cannot reject Products or Services on the basis of partial or late delivery.
The Purchaser must maintain adequate insurance cover with a reputable insurer to cover any insurable Loss in respect of Products however caused between the Delivery Date and the time that title in the Products passes to the Purchaser. The Purchaser must produce certificates of currency relating to such insurance to Etricom upon request.
8. RESERVATION OF TITLE
Notwithstanding delivery or anything contained in these Terms and Conditions, the title in the Products sold hereunder shall not pass to the Purchaser until receipt in full by Etricom of the price for all Products sold to the Purchaser by Etricom hereunder or under any other contract. Etricom' title shall subsist notwithstanding such Products shall be incorporated in or become components or constituents of other Products or that such Products or such other Products shall be sold or transferred to third parties by the Purchaser. Any such sale by the Purchaser shall be subject to Etricom' title in the Products and the Purchaser shall, if required by Etricom, account to Etricom for all the proceeds of sale attributable to such Products. The Purchaser grants to Etricom an irrevocable licence to enter the Purchaser’s premises, exercisable upon the happening of any event listed in clause 13 or upon any breach of the provisions of clause 16, which licence to enter permits Etricom at its sole option, to enter the Purchaser’s premises and repossess and remove all or any Product.
Etricom shall install the Products in the premises of the Purchaser upon request by the Purchaser and subject to payment of charges as imposed by Etricom. Etricom shall have no liability under the warranty or otherwise for losses sustained as a result of faulty installation not performed by Etricom.
10. FORCE MAJEURE
Etricom shall not be liable for delay in delivery nor for any failure to perform this contract or for loss or damage to Products directly or indirectly caused by force majeure, which term is to include acts of God, fire, theft, riot, war, terrorism, embargo, strikes, shortage of labour, delays in delivery of products or materials by sub-suppliers, prohibition of export or import, confiscation, action of any government and any other occurrence (whether or not similar in nature to those specified) beyond the control of Etricom. Etricom agrees to make and the Purchaser agrees to accept delivery whenever such causes of delay have been remedied. During the continuance of an event of force majeure each party’s obligations hereunder (other than to pay money) shall be suspended and will resume as soon as possible after the cause or circumstance has ceased to have effect.
The Purchaser must pay the full amount of Etricom’ invoice without deduction or set-off within 30 days of the date of Etricom’ invoice or such other date as may be agreed in writing.
Etricom may charge, and the Purchaser agrees to pay, interest on all amounts overdue at the prevailing overdraft interest rate , from the day of default until the day on which the payment is received by Etricom.
The Purchaser may by notice in writing to Etricom, cancel an Order before the scheduled date of the delivery of the Products or Services provided that the Purchaser shall be liable to pay the following charges:
(a) If Etricom receives cancellation less than 30 days before the scheduled date of delivery, 100% of the contract value of Products or Services.
(b) If Etricom receives the cancellation not less than 30 days before the scheduled date of delivery, 50% of the contract value of Product or Services.
(c) If Etricom receives the cancellation not less than 45 days before the scheduled date of delivery, 25% of the contract value of Products or Services.
(d) If Etricom receives the cancellation not less than 60 days before the scheduled date of delivery, 10% of the contract value of Products or Services or S$500.00 whichever is the greater.
Etricom shall have the right to terminate this contract if the Purchaser:
(a) Commits a breach of any provision of this contract and fails to remedy that breach within seven days after notice in writing to do so;
(b) Commits an act bankruptcy or enters into voluntary or compulsory liquidation or suffers any receiver or manager to be appointed in respect of its assets or any portion thereof;
(c) Negotiates or makes any agreement of composition amongst its creditors; or
(d) Has execution levied on its assets or any portion thereof.
The Purchaser may, by notice in writing to Etricom, terminate this contract. In this event, fees paid in advance for Products or Services are non-refundable.
14. RETURN OF PRODUCTS
The Purchaser is required to give Etricom written notice of any claim of defects no later than 15 days after the Delivery Date. No Products are to be returned without prior written authorisation and shipping instructions first having been obtained from Etricom. Freight, boarding and other charges will be for the Purchaser’s account.
15.1 Subject to any Etricom Warranty and unless otherwise expressly provided in these Terms and Conditions:
(a) all terms, conditions, warranties, undertakings or representations whether express, implied or otherwise, relating in any way to Products or Services supplied or to these Terms and Conditions are excluded or limited to the fullest extent permissible by law; and
(b) Etricom makes no warranty that the Products or Services have any particular quality, are fit for any particular purpose.
15.2 The Purchaser warrants, acknowledges and agrees that it has not relied on any representation made by Etricom not stated expressly in these Terms and Conditions or upon any descriptions or illustrations or specifications contained in any document of any nature, including any catalogue, list, brochure or publicity material, produced by Etricom or supplied to the Purchaser in relation to the supply of any Products or Services. To the extent that the United Nations Convention on Contracts for the international Sale of Goods would otherwise apply to the supply of any Products or Services it is agreed that such Convention does not apply.
16. LIMITATION OF LIABILITY
Etricom' maximum liability for any single or a number of claims whatsoever arising out of or in connection with the performance of these Terms and Conditions will be limited to an amount not exceeding 50% of the amount of fees and charges paid by the Purchaser to Etricom under the relevant Order.
Etricom is not liable to the Purchaser in contract, in tort, in equity, by operation of statute (to the extent liability may be excluded by law) or otherwise for any kind of indirect or consequential loss or damage, loss of opportunity, loss of revenue, loss of profit or anticipated profit, loss of contracts, loss of goodwill, loss arising from business interruption or liability arising out of or in connection with pollution or contamination arising out of or in connection with this agreement incurred or suffered by the Customer or any other person.
17. DESIGN / INTELLECTUAL PROPERTY
Etricom may at any time change the specification, method of construction or design of the Products and the Purchaser must accept those Products, provided they still meet the Purchaser’s requirements. The Purchaser agrees that Etricom or its supplier is and remains the owner of all copyright, designs, patents and trade marks and other intellectual property rights (and all adaptations and reproductions thereof) used on or in relation to the Products or Services or any related software and documentation supplied therewith.
The Purchaser must not reproduce or adapt any documentation supplied with the Products or Services without the prior written consent of Etricom. The Purchaser shall not alter, obscure or obliterate any copyright notice or other notice of proprietorship printed or affixed to or included in any Products, the software included in any Product, or any documentation supplied with the Products or Services. All software forming part of a Product is provided on a license basis for the use of the Purchaser only. No proprietary rights of any nature in any aspect of the software whatsoever shall be created in the Purchaser.
The license to use the software shall be non-exclusive and personal to the Purchaser and the software may only be used in connection with the Products or such other equipment agreed in writing with Etricom.
The Purchaser’s right to use the software may not be assigned or sub-licensed without the consent of Etricom. The Purchaser agrees on the request of Etricom, to execute a software licence agreement with Etricom or with a supplier to Etricom.
Neither party may publicise or disclose the contents of this Agreement or its existence without the prior written consent of the other party first having been received; except that Etricom shall be entitled to include Purchaser in its published Purchaser reference list, to issue a press release and to develop and publish a case study, detailing the services provided by Etricom to Purchaser, and Purchaser expressly consents thereto. Notwithstanding the above, Etricom shall first obtain Purchaser's approval of the press release or case study before publishing same, which approval shall not be unreasonably withheld or delayed.
A party shall not be in breach of this obligation where it is legally compelled to disclose the other party's confidential information. Each party shall take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this Agreement, do not make public or disclose the other party's confidential information. Notwithstanding any other provision of this clause, Etricom may disclose the terms of this Agreement (other than confidential information of a technical nature) as part of its press and media releases and disclosures to any relevant Stock Exchange. This clause shall survive the termination of this Agreement.
19. EXPORT CONTROL
Some of the Products sold hereunder are licensed by the United States Government for an ultimate destination within Singapore, and may not be exported by the Purchaser or any third party without prior written authorisation of Etricom.
20. COMPLETENESS AND PERFORMANCE OF AGREEMENT
Clerical errors may be corrected by Etricom but special terms and conditions not contained herein and variations of these Terms and Conditions of any resultant contract may only be agreed between the parties in writing. Any terms or conditions inconsistent with or in addition to these terms and conditions shall be void and of no effect, unless specifically agreed to by Etricom in writing. No waiver or omission by either party to require the performance or observance by the other of any of the terms and conditions of the contract or any indulgence granted or shown by one party to the other shall release discharge or in any manner effect or prejudice the right of a party on any other occasion without notice to require strict and full performance and observance by the other of his obligations thereunder.
If all or part of these Terms and Conditions infringes any law in Singapore it must be read down so that it does not infringe that law, otherwise it will be deemed void and serverable.
The Purchaser may only assign an Order and any rights under the resulting contract with the prior written consent of Etricom, which Etricom may refuse or grant in its absolute discretion.
Etricom may assign an Order or any of its rights and obligations hereunder to any related corporation of Etricom, provided that Etricom guarantees in advance the contractual obligations of the related corporation in question.
All notices to be given under these Terms and Conditions shall be in English and in writing and may be given to the other party by hand delivery, prepaid post, or facsimile addressed to the other party at its last known address.
24. GOVERNING LAW
The Order and these Terms and Conditions will be governed by the laws of Singapore.