MASTER SUPPLY AGREEMENT | GOODS & SERVICES

THIS AGREEMENT is BETWEEN:

(1) PARTY A, a company registered in [●] with company number [●] and whose registered office is at [●] (“Customer”); and

(2) ESEVEL PTE. LTD, a company registered in Singapore with company number 202011247Z and whose registered office is at 101 Upper Cross Street #05-16 Singapore 058357 (“Supplier”)

(collectively, the “Parties” and each, a “Party”).

RECITALS

A. The Supplier is a leading supplier of the Approved Supply, being Goods and Services that the Customer and its Affiliates require from time to time for its business.

B. The Customer wishes to create an arrangement under which it may purchase Approved Supply from the Supplier upon pre-agreed terms.

C. The Customer may also, from time to time, procure items of Approved Supply with the intention of allowing one or more of its Affiliates to benefit from such supply, including through receiving and/or using such Approved Supply.

D. The Parties recognise the importance of matters being locked down in this Agreement and the corresponding operational efficiency, certainty and value it will bring to the Customer, its Affiliates and to the Supplier.

IT IS HEREBY AGREED as follows:

PART A | DEFINITIONS & INTERPRETATIONS

1. DEFINITIONS & INTERPRETATION

1.1 The defined terms in this Agreement shall have the meaning ascribed to them in Schedule 1 (Definitions).

1.2 In this Agreement the rules of interpretation set out in Schedule 1 (Definitions) shall apply.

PART B | TERM & PRECEDENCE

2. TERM

2.1 This Agreement shall commence on the Agreement Date and, unless terminated earlier in accordance with Clauses 24, 25 or 26, shall remain in full force and effect for the Term.

2.2 Subject to Clause 2.1, at the end of the Initial Term, or the then current Extended Term, as applicable, this Agreement shall automatically extend for an Extended Term.

3. PRECEDENCE

3.1 If there is any conflict, ambiguity or inconsistency between any parts of this Agreement, then the following order of precedence shall apply:

  • 3.1.1 the Product Specific Terms;
  • 3.1.2 the other terms and conditions of this Agreement; and
  • 3.1.3 the Purchase Order.

PART C | PURCHASE ORDERS 

4. PURCHASE ORDER PROCESS

  • 4.1 The Customer, or the Customer’s Personnel, may raise a Purchase Order request at any time during the Term upon which this Clause 4 shall apply. 
  • 4.2 Acceptance by the Supplier of a Purchase Order shall create a binding Supply Agreement by and between the Customer and the Supplier for the supply and delivery of the specified Deliverables, effective from the date of Purchase Order acceptance.
  • 4.3 Each Purchase Order (and subsequent Supply Agreement) shall be deemed to have incorporated the terms and conditions of this Agreement. 
  • 4.4 Each Supply Agreement shall constitute a separate and binding agreement between the parties to it and shall be interpreted strictly in accordance with its own terms.

PART D | APPROVED SUPPLY MATTERS

5. SCOPE OF APPROVED SUPPLY

  • 5.1 The Goods and Services comprising the Approved Supply and that may be the subject of a Purchase Order request under Clause 4 are detailed in on the Esevel Website.
  • 5.2 The Supplier may from time to time, expand the Approved Supply and/or update any information relating to the Approved Supply to keep it up to date and accurate.

PART E | DELIVERABLES

6. DELIVERABLES

  • 6.1 Subject to the Customer complying with Clause 7, the Supplier shall do all things necessary so that the Deliverables are provided and/or performed in accordance with, and fully meet and comply with:
    • 6.1.1 the Purchase Order;
    • 6.1.2 the Specifications;
    • 6.1.3 the Delivery Schedule (if any);
    • 6.1.4 the Service Levels (if any);
    • 6.1.5 Good Industry Practice;
    • 6.1.6 all Applicable Law; and
    • 6.1.7 the terms of this Agreement (which shall include the applicable Product Specific Terms).

7. CUSTOMER RESPONSIBILITIES

  • 7.1 The Customer undertakes to perform the Customer Responsibilities promptly in accordance with this Agreement and all Applicable Law.
  • 7.2 The Customer acknowledges and agrees that the Supplier’s performance and/or delivery of the Deliverables is subject to Customer’s performance of the Customer Responsibilities.
  • 7.3 The Customer acknowledges and agrees that its use of the Esevel Platform will at all times be subject to the Esevel Acceptable Use Policy.

PART F | PAYMENT, INVOICES AND TAXES

8. PAYMENTS GENERALLY

  • 8.1 Unless otherwise agreed in a Supply Agreement, the Charges shall be invoiced and paid in accordance with the Schedule 2 (Payment Terms).
  • 8.2 Where requested by the Customer, and subject to the Supplier’s sole discretion:
    • 8.2.1 the Supplier shall invoice an Affiliate of the Customer for the Charges; and
    • 8.2.2 the Supplier shall procure that its Affiliate pays the Charges were themselves a Party.

9. DISPUTED INVOICES

  • 9.1 The Customer will notify the Supplier within 15 calendar days of the receipt of an invoice if the Customer:
    • 9.1.1 disputes (in good faith) any part of or all of the Charges stated in the invoice; and/or
    • 9.1.2 considers such invoice to be incorrect or incorrectly issued for any reason.
  • 9.1 The Customer shall not be required to pay any disputed amount until the Dispute has been resolved and the Parties agree that the amount is valid and properly due to the Supplier.
  • 9.1 If the Parties are unable to resolve Disputes related to invoices by reference to the procedures in this Clause 9 within 15 calendar day, then (and only then) it shall be considered a Dispute which is subject to the procedure at Clause 34.13.

10. TAXES

  • 10.1 All amounts specified in this Agreement shall be exclusive of all Taxes including GST/VAT.
  • 10.2 The Supplier shall give all notices and pay all Taxes (including Withholding Tax), duties and fees that are required of it by Applicable Laws in connection with its provision and/or performance of the Deliverables.
  • 10.3 The Supplier shall Indemnify the Customer in connection with any Claim it receives in connection with the Supplier’s failure to perform its obligations under this Clause 10.

PART G | DELAY

11. EXTENSION OF TIME

  • 11.1 The Supplier shall be entitled to an Extension of Time in accordance with this Clause 11 if and to the extent the performance of its obligations under this Agreement has been directly delayed by:
    • 11.1.1 a Force Majeure Event; or
    • 11.1.1 any act or omission solely attributable to the Customer that directly or indirectly prevents the Supplier from performing the relevant obligation, (each a “Relief Event”).
  • 11.2 The Parties acknowledge and agree that an Extension of Time shall be the sole and exclusive remedy in connection with the Relief Event.

PART H | PERFORMANCE ASSURANCES

12. DEFECTS LIABILITY PERIOD

  • 12.1 The Supplier warrants and represents to the Customer that each item of the Deliverables, other than the Hardware Products, shall be free from any Defect during the Defect Liability Period.
  • 12.2 Upon receipt of a Defects Notice from the Customer, the Supplier shall perform the Warranty Obligation at its sole cost and expense.
  • 12.3 The Supplier shall process each Defect Notice without delay, however, where the Supplier can show that there is no Defect, the Parties shall discuss the Supplier’s reasonable costs in good faith.
  • 12.4 The Customer acknowledges and agrees that in relation to the Hardware Products:
    • 12.4.1 the Supplier shall obtain and pass on to the Customer the benefit of any Manufacturer Warranties not later than the date of delivery for the relevant Deliverable;
    • 12.4.1 in the event of a Defect the Customer shall bring any Claim it may have solely against the manufacturer of the Deliverable and under the Manufacturer Warranties; and
    • 12.4.1 where requested, the Supplier shall use its reasonable commercial efforts to assist the Customer to bring its Claim against the applicable manufacturer.

13. MUTUAL WARRANTIES

  • 13.1 Each Party warrants and represents to the other that:
    • 13.1.1 this Agreement shall constitute valid and binding obligations on it;
    • 13.1.2 it is duly incorporated and has the legal capacity to enter into this Agreement; and
    • 13.1.3 it will during the Term comply with all Applicable Law.
  • 13.2 UNLESS EXPRESSLY STATED IN THIS AGREEMENT, ALL OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS AND ALL OTHER TERMS OF ANY KIND WHATSOEVER IMPLIED BY STATUTE OR COMMON LAW (INCLUDING BUT NOT LIMITED TO, ANY WARRANTY REGARDING FITNESS FOR PURPOSE, QUALITY, MERCHANTABILITY OR NONINFRINGEMENT) ARE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCLUDED.

14. SUPPLIER WARRANTIES

  • 14.1 The Supplier further warrants and represents to the Customer that:
    • 14.1.1 the Deliverables shall be provided and/or performed in accordance with Good Industry Practice;
    • 14.1.2 the Deliverables shall at all times be rendered by appropriately experienced, qualified and trained Personnel with all due skill, care and diligence;
    • 14.1.3 if applicable, each Storage Facility shall have an environment suitable for the storage of electronic devices and have reasonable security precautions for the storage of the Deliverables; and
    • 14.1.4 the Customer’s receipt, utilisation (including that of its Affiliates), and/or exploitation of any Deliverable shall not breach any Third Party IPR.
  • 14.2 UNLESS OTHERWISE SPECIFIED IN WRITING, ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR SERVICES MADE AVAILABLE TO THE CUSTOMER BY THE SUPPLIER ARE ON AN “AS IS” AND “AS AVAILABLE” BASIS.

15. CUSTOMER WARRANTIES

  • 15.1 The Customer warrants and represents to the Supplier that:
    • 15.1.1 the Supplier may rely on all information supplied by the Customer as being true and accurate and without need for further verification;
    • 15.1.2 the Customer shall procure that the Customer Responsibilities are performed promptly and by appropriately experienced, qualified and trained Personnel with all due skill, care and diligence;
    • 15.1.3 the Customer shall, and shall procure that its Personnel, comply at all times with the Esevel Acceptable Use Policy;
    • 15.1.4 the Customer will at all times comply with all Applicable Law, particularly in relation to the shipment or storage of any Deliverables; and
    • 15.1.5 it shall, in a prompt and timely manner, comply with all instructions provided by the Supplier or its Personnel in connection with each shipment of the Deliverables.

PART J | TITLE AND RISK

17. TITLE & RISK

  • 17.1 Without prejudice to its other rights under this Agreement:
    • 17.1.1 Title to each item of Hardware (Products) shall pass and Title shall vest in and become the absolute unencumbered property of the Customer upon the Supplier’s receipt in full of the applicable Charges from the Customer; and
    • 17.1.2 Title to each item of Hardware (Loaner) shall remain vested with and be the absolute unencumbered property of the Supplier at all times.
  • 17.2 The Customer acknowledges and agrees that it bears all risk of loss and/or damage to the Goods (or any part thereof) as soon as the Supplier passes the goods to its carrier.
  • 17.3 Where the Customer is returning Goods to the Supplier:
    • 17.3.1 it bears all risk of loss and/or damage to the Goods (or any part thereof) until the Supplier confirms, in writing, its safe receipt of the Goods; and
    • 17.3.1 the Supplier is under no liability to insure the Goods prior to the Goods passing to it.

PART K | INDEMNITIES

18. PART K | INDEMNITIES

  • 18.1 Subject to Clause 18.2 the Supplier shall fully Indemnify the Customer from and against any and all Losses of whatever nature suffered, sustained or incurred, arising out of a Third Party Claim relating to:
    • 18.1.1 any grossly negligent act, or omission, or wilful misconduct by the Supplier or its Personnel in connection with this Agreement; or
    • 18.1.2 any Claim brought by a Third Party for a breach of that Third Party’s IPR as a result of its provision and/or use under or in connection with this Agreement.
  • 18.2 The Supplier shall not be liable under Clause 18.1 to the extent that the indemnified event occurred as a result of the Customer’s negligent acts or omissions or wilful misconduct.

19. CUSTOMER INDEMNITIES

  • 19.1 The Customer shall fully Indemnify the Supplier from and against any and all Losses of whatever nature suffered, sustained or incurred, arising out of or in connection with:
    • 19.1.1 any physical loss or damage to the Hardware (Loaner) caused by the Customer or its Personnel;
    • 19.1.2 any unauthorized or illegal use of the Deliverables by the Customer or its Personnel any other Person using the Customer’s Login Details; and
    • 19.1.3 any grossly negligent act, or omission, or wilful misconduct by the Customer or its Personnel.

PART L | LIABILITY

20. LIABILITY

  • 20.1 Nothing in this Agreement shall exclude or limit either Party’s liability to the other in connection with:
    • 20.1.1 any fraud or fraudulent misrepresentation of that Party;
    • 20.1.2 any liability which cannot be lawfully excluded by that Party; and/or
    • 20.1.3 a breach of Clause 34.3 (Confidentiality).
  • 20.2 Except for actions for non-payment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either Party more than 1 year after the cause of action has accrued.
  • 20.3 Subject to Clauses 20.1 and 20.2, the Supplier’s total liability for Loss under this Agreement shall be limited to 100% percent of the Charges paid in the 12 months prior to the event giving rise to the Claim.
  • 20.4 Subject to Clause 20.1, neither Party shall be liable for Indirect Loss under this Agreement.

21. PHYSICAL DAMAGE

  • 21.1 The Customer acknowledges and agrees that it will be solely liable to the Supplier for:
    • 21.1.1 any damage or loss to any Hardware (Loaner) caused by it or its Personnel;
    • 21.1.2 any damage or loss to any Deliverables in the Customer’s possession or which reasonably should have been in the Customer’s or its Personnel’s possession; and
    • 21.1.3 any damage of loss to any Deliverables resulting from a Deliverables being delivered to an incorrect address due to an error by the Customer or its Personnel;
    • 21.1.4 any damage of loss to any Deliverables resulting from improper packing by the Customer or its Personnel.
  • 21.2 Any damage or loss claimed by the Supplier under this Clause 21 shall be calculated on a ‘replace as new’ basis.

22. INSURANCE

  • 22.1 The Supplier shall at all times during the Term obtain and maintain such insurance policies as may be required to comply with Applicable Law and/or Good Industry Practice, including but not limited to commercial general liability insurance.
  • 21.2 Where requested, the Supplier shall provide the Customer with such certificates or proofs of insurance as the Customer may reasonably require.
  • 21.3 The Customer is strongly encouraged to purchase their own insurance for the full value of any Deliverables being shipped to them.

PART M | TERMINATION & FORCE MAJEURE SCENARIOS

23. SUSPENSION

  • 23.1 The Supplier may (at its option) suspend the Customer’s access to the Deliverables, either partially or wholly, without liability:
    • 23.1.1 if any of the Deliverables are being used in a way that violates Applicable Law, the terms of this Agreement or any Esevel Policies;
    • 23.1.2 if an amount due under this Agreement has not been received in full by the Supplier on its due date, unless such amount is being disputed in good faith in accordance with Clause 9;
    • 23.1.3 to address of manage a security vulnerability or reputational risk of the Supplier or a Third Party;
    • 23.1.4 if the Customer’s use of the Deliverables is consuming excessive bandwidth or storage or causing harm to the Supplier or a Third Party; or
    • 23.1.5 if the Supplier reasonably apprehends that any of the events mentioned above are about to occur.
  • 23.2 The Supplier may suspend, limit, or terminate any Free Services for any reason at any time without notice or liability.
  • 23.3 In the event that the Supplier suspends the Customer’s access under Clause 23.1:
    • 23.3.1 the Supplier will make commercially reasonable efforts to limit the suspension to the affected portion of the Subscription Service; and
    • 23.3.2 each Party will make commercially reasonable efforts to promptly resolve the issues as soon as possible.

24. MUTUAL TERMINATION RIGHTS

  • 24.1 Either Party may serve a written termination notice to terminate this Agreement with immediate effect if the other Party:
    • 24.1.1 commits a Material Breach; or
    • 24.1.2 experiences, or is reasonably likely to experience, an Insolvency Event.

25. CUSTOMER SPECIFIC TERMINATION RIGHTS

  • 25.1 Unless otherwise specified in the applicable Supply Agreement, the Customer may prevent renewal of any subscription Deliverable by delivering written notice of non-renewal at least 30 calendar days prior to the renewal date to: customersupport@esevel.com.

26. SUPPLIER SPECIFIC TERMINATION RIGHTS

  • 26.1 The Customer may terminate this Agreement at any time and without cause by issuing a written termination notice to the Supplier giving not less than 30 calendar days’ notice of such termination.
  • 26.1 The Supplier may issue a written termination notice to the Customer terminating the whole or part of this Agreement at its sole discretion with immediate effect if:
    • 26.2.1 the Customer has breached any applicable Esevel Policy;
    • 26.2.2 the Supplier determines, in its sole discretion, that the Customer’s ongoing use of the Deliverables risks the Supplier’s reputation, business and/or operations;
    • 26.2.3 the Customer fails to pay any amount due under this Agreement to the Supplier within 14 calendar days of its due date, unless such amount is being disputed in good faith in accordance with Clause 9; or
    • 26.2.4 the Customer reasonably apprehends that any of the events mentioned above are about to occur in relation to the Customer.

27. CONSEQUENCES OF TERMINATION

  • 27.1 Upon receipt of a termination notice:
    • 27.1.1 the Parties shall promptly:
      • a) return all Confidential Information (including any applicable Personal Data) to the Party that disclosed it, or destroy such Confidential Information and provide evidence of destruction where requested;
      • b) take all possible action at its own cost and expense to ensure the safety of all Personnel and the protection of all Goods; and
    • 27.1.2 the Customer shall immediately:
      • a) cease using the Deliverables;
      • b) pay all unpaid fees due through the end of the Subscription Term;
      • c) return all Hardware (Loaner) to the Supplier in good working condition and their original packaging; and
      • d) take any other action relating to the termination of this Agreement as the Supplier may reasonably require.
  • 27.2 The termination or expiry of this Agreement shall be without prejudice to the rights and remedies of either Party which may have accrued under this Agreement or Applicable Law up to the date of termination or expiry thereof.
  • 27.3 The termination or expiry of this Agreement or any one Supply Agreement shall not terminate any other Supply Agreement then in force unless otherwise agreed by the Parties in writing.
  • 27.4 The provisions of Clauses 10, 16, 18, 19, 20, 27 and 34 shall survive the termination and/or expiry of this Agreement.
  • 27.5 Clause 27.4 does not limit the survivability of other provisions, which by their nature, are likewise intended to survive the termination and/or expiry of this Agreement.

28. FORCE MAJEURE

  • 28.1 Except for payment obligations, no Party shall be liable to the other for any delay or non-performance of its obligations under this Agreement arising as a result of a Force Majeure Event.
  • 28.2 Each Party will use reasonable efforts to mitigate the impact of the Force Majeure Event and enable the resumption of the performance of those obligations that were impacted as soon as reasonably practicable.

PART N | INTELLECTUAL PROPERTY RIGHTS

29. EXISTING IPR

  • 29.1 The IPR owned by a Party prior to the Agreement Date and made available to the other Party under this Agreement shall remain the absolute property of the granting Party or their licensors as applicable.
  • 29.2 The Supplier shall grant to the Customer a non-exclusive, perpetual royalty-free licence to use its IPR for the Term of this Agreement, to the extent required to receive the full benefit of this Agreement.
  • 29.3 The Customer acknowledges and agrees that:
    • 29.3.1 ownership of all rights in and to the Supplier’s IPR shall at all times remain vested in and belong to the Supplier;
    • 29.3.2 the Customer shall not copy, rent, lease, sell, distribute, reverse engineer or create derivative works based on the Deliverables or any part of the Deliverables, except with the express prior written consent of the Supplier; and
    • 29.3.3 the Customer may not use the Supplier’s trademarks, except with the express prior written consent of the Supplier.

30. NEW IPR

  • 30.1 All IPR created by a Party during the Term of this Agreement shall vest unconditionally and immediately upon its creation with that Party.
  • 30.2 The Customer acknowledges and agrees that all Customer Feedback and Pattern Data shall vest unconditionally and immediately upon its creation with the Supplier.

PART O | PRIVACY

31. PUBLICITY

  • 31.1 The Customer grants to Esevel a revocable, royalty free, license to use the Customer’s name and logo on the Esevel Website and/or customer lists, and in press releases announcing the relationship and the type of Deliverables purchased by the Customer.
  • 31.2 Any use of the Customer’s name or logo shall be subject to the Supplier complying with any written guidelines that the Customer may deliver in writing to the Supplier from time to time.

32. DATA PROTECTION

  • 32.1 In addition to its general obligations to comply with Applicable Law, the Supplier shall:
    • 32.1.1 comply at all times with all applicable data protection and privacy legislation;
    • 32.1.2 comply with the Esevel Privacy Policy;
    • 32.1.3 process Personal Data strictly in accordance with the Customer’s Instructions; and
    • 32.1.4 utilise adequate organisational and technical measures so as to safeguard Personal Data from loss, destruction and/or unauthorised access.
    • 32.1.5 where required, enter into a data transfer agreement and/or data processor agreement (or equivalent) in the form required under Applicable Law.
  • 32.2 The Customer warrants and represents to the Supplier that:
    • 32.2.1 unless otherwise agreed in writing with the Supplier, it will not transfer any Personal Data to the Supplier; and
    • 32.2.2 to the extent that the Customer ever does transfer Personal Data to the Supplier, it will provide all notices and obtain all consents from the applicable data subjects, as may be required for the Supplier to receive, collect, use, process, transfer, store and disclosure the Personal Data as required by Applicable Law.
  • 32.3 The Customer acknowledges and agrees that the Supplier may
    • 32.3.1 collect and use Pattern Data in accordance with Applicable Law; and
    • 32.3.1 use Pattern Data in an anonymized manner for machine learning to support product development, and product features and functionality.

PART P | MISCELLANEOUS

33. MODIFICATIONS

  • 33.1 Esevel may modify the Deliverables or this Agreement from time to time, including by adding or deleting features and functions, by posting a written notice of the update on the Esevel Website.
  • 33.2 Any amendments made under Clause 33.1 will become effective and binding the Business Day after it is posted. We will provide you notice of this revision by email or in-app notification.

34. GENERAL PROVISIONS

  • 34.1 Language: This Agreement is drawn up in the English language and the English language version of this Agreement shall always prevail over any translation. This Agreement shall be construed, interpreted and administered in English.
  • 34.2 Cumulative Rights: Unless otherwise stated, the rights and remedies of a Party under this Agreement are cumulative and do not exclude any other right or remedy provided by Applicable Law.
  • 34.3 Confidential Information: Neither Party will divulge or disclose any of the other Party’s Confidential Information to any Third Party without prior express consent in writing from the disclosing Party.
  • 34.4 Entire Agreement: This Agreement constitutes the entire agreement of the Parties relating to the provision of the Deliverables, to the exclusion of all other terms and conditions, and any prior written or oral agreement between them.
  • 34.5 Novation & Assignment: Neither Party may assign, novate, or otherwise transfer all or any of its rights, benefits or obligations under this Agreement without the prior written approval of the other Party.
  • 34.6 Sub-contracting: The Supplier may subcontract the performance of any of its obligations under this Agreement without the prior written approval of the Customer.
  • 34.7 Specific Performance: Nothing in this Agreement prevents a Party from seeking interim or interlocutory relief to prevent a breach of, and to compel specific performance by the other Party of, this Agreement.
  • 34.8 Waiver: No failure to exercise, nor any delay in exercising, any right, power or remedy under this Agreement shall operate or be deemed a waiver of the same. Waivers must always be given in writing.
  • 34.9 Illegality: If any provision of this Agreement is determined to be invalid, illegal or void by any court or administrative body of competent jurisdiction then the rest of this Agreement shall still remain in full force and effect.
  • 34.10 Relationship: Nothing in this Agreement shall be construed to make either Party an agent, employee, franchisee, joint venturer or legal representative of the other Party.
  • 34.11 Third Party Rights: Except where expressly contemplated, this Agreement does not create any rights which are enforceable by any person who is not a Party to this Agreement.
  • 34.12 Notices: Any notice or other communication given under or in connection with this Agreement shall be in writing and shall be delivered by:
    • 34.12.1 hand to the Party due to receive it at the Party’s address; or
    • 34.12.1email to the Party due to receive it at the Party’s email address.
    • The Parties’ physical addresses for the purpose of this Agreement are as may be notified in writing from time to time.
  • 34.13 Governing Law: This Agreement is governed by, and shall be construed in accordance with, the laws of Singapore. The Parties irrevocably submit to the exclusive jurisdiction of the courts of Singapore in relation to any Disputes.

EXECUTION

EXECUTED as an Agreement on the date and year first above written.

Signed for and on behalf of

[CUSTOMER NAME]

as its duly authorised representative:

Signature of duly authorised representative

Name of duly authorised representative (print)

Date of Signature

Signed for and on behalf of

ESEVEL PTE. LTD

as its duly authorised representative:

Signature of duly authorised representative

Name of duly authorised representative (print)

Date of Signature

SCHEDULE 1 | DEFINITIONS

1. DEFINITIONS

1.1 In this Agreement (unless the context otherwise requires), the defined terms shall have the meaning set out below:

Administration Event means an order that is made for the appointment of an administrator (or equivalent) to manage the affairs, business and property of a Party; or documents are filed with a court of competent jurisdiction for the appointment of an administrator (or equivalent) of a Party; or notice of intention to appoint an administrator is given by a Party or its legal representative;
Affiliate means any entity that is Controlled by a Party or under common Control of that Party;
Agreement means the terms and conditions of this agreement and the Schedules hereto;
Applicable Law means all national, state, local and municipal legislation, regulations, statutes, by-laws, including Approvals relating to or connected with the activities contemplated under this Agreement wherever so located and/or provided;
Approvals means any licenses, permits, consents, approvals and authorisations that a Party may require (whether to comply with Applicable Law or otherwise) to perform its obligations under this Agreement;
Approved Supply means the approved Goods and Services that are set out on the Esevel Platform from time to time;
Authorized Payment Method means a current, valid, payment method accepted by us, as may be updated from time to time and which may include payment through your account with a third party.
Authorised Recipient means any Third Party to whom a Party may disclose Confidential Information under this Agreement (including, without limitation, its Personnel and any external advisors engaged for the purposes of performing its obligations under this Agreement) and/or as may be required by Applicable Law;
Billing Period means the period agreed by the Parties in the applicable Supply Agreement, this may be the same length as the Subscription Term or shorter. For example, if you subscribe to the Subscription Service for a one (1) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months;
Business Day means a day other than a weekend, official public holiday or a day upon which banks are otherwise generally closed for business in Singapore;
Charges means the amount payable by the Customer to the Supplier for the provision and/or performance of the Deliverables under this Agreement, such amounts being as set out in the applicable Supply Agreement;
Claim means any allegation, debt, judgment, cause of action, action, claim, proceeding, suit or demand of any nature howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, under statute or otherwise asserted by any Person at any time;
Confidential Information means this Agreement and all information of any nature which a Party may have or acquire before or after the Agreement Date, however conveyed (whether in writing, verbally, in a machine- readable format or by any other means and whether directly or indirectly), which relates to the business, products, price lists, developments, Personnel, suppliers and customers of a Party and its Affiliates (whether or not designated as Confidential Information by the disclosing Party), and all information designated as confidential or which ought reasonably to be considered confidential;
Control means the:
  • ownership or control (whether directly or indirectly) of more than 50% of the voting share capital of the relevant entity;
  • ability to direct the casting of more than 50% of the votes exercisable at general meetings of the relevant entity on all, or substantially all, matters; or
  • right to appoint or remove directors of the relevant entity holding a majority of the voting rights at meetings of the board on all, or substantially all, matters,
  • and the terms “Controls”, “Controlled” and “Controlling” shall have the equivalent grammatical meaning;
Creditor Event means where a Party makes any arrangement or composition with its creditors or makes an application to a court of competent jurisdiction for protection from its creditors in any way;
Customer Feedback means any comments and feedback given by the Customer to the Supplier in relation to any of the Deliverables;
Customer Responsibilities means those obligations and undertakings that the Customer must perform in order for the Supplier to comply with its obligations under this Agreement, as set out in Schedule 3 (Customer Responsibilities) or as may otherwise be agreed from time to time;
Defect means, any defective design, materials, workmanship, un-merchantable quality, or unfitness for intended purpose in any Deliverable, and/or any Deliverable which does not conform to the requirements of this Agreement, and shall include both Latent Defects and Patent Defects;
Defect Liability Period means the period as set out on the Esevel Website or, where no such period is stated therein, then a period of 90 calendar days from the date of delivery of the applicable Deliverable
Defect Notice means a notice issued by the Customer to the Supplier indicating that a Deliverable has a Defect and requiring correction with Clause 12;
Deliverables means those items of Approved Supply specified and which are the subject matter of a Supply Agreement, being those goods and services as described on the Esevel Platform from time to time, and shall include:
  1. LAST MILE IT SERVICES
  2. HARDWARE SUPPORT SERVICES
  3. REMOTE IT SERVICE DESK
  4. MOBILE DEVICE MANAGEMENT SERVICES
  5. IDENTITY ACCESS MANAGEMENT SERVICES
Delivery Schedule means the schedule for provision and/or performance of the Deliverables as set out in the applicable Supply Agreement or, where no such dates are specified, then as soon as reasonably practicable;
Device means the device/hardware in which a Services is being performed in relation to;
Device Provisioning means the setup and distribution of Devices for use by the Customer;
Disclosing Party means the Party that is disclosing Confidential Information to the other Party under or in connection with this Agreement;
Dispute means any dispute between the Parties under or in connection with this Agreement
Esevel Platform means the centralized IT management platform operated by the Supplier, and is available through the Esevel Website
Esevel Policies means any and all policies maintained by the Supplier in connection with its business as Esevel may notify or publish on through the Esevel Platform, including each of the following as may be updated from time to time;
  • Esevel Acceptable Use Policy available at [URL]
  • Esevel Cookie Policy available at [URL]
  • Esevel Privacy Policy available at [URL]
  • Esevel Shipping & Returns Policy available at [URL]
Esevel Website means https://esevel.com/ and such other websites as the Supplier may operate from time to time;
Extension of Time means an extension of time that is granted to the Supplier for the performance of certain of its obligations in accordance with Clause 11 due to the occurrence of a Relief Event;
Extended Term means the period of [●] months from the end of the Initial Term or the then current Extended Term;
Force Majeure Event means any of the following events or occurrences: acts of God, governmental act, war, fire, flood, explosion, pandemic, epidemic, civil commotion, or delay caused by suppliers or shipping service providers, but only insofar as the event or occurrence prevents a Party from performing its obligations under this Agreement, and was unforeseeable and beyond the reasonable control of the Party so prevented or affected;
Free Services means any goods or services provided by the Supplier to the Customer without cost and/or for the sake of marketing purposes;
Good Industry Practice means the exercise of that degree of skill, diligence and prudence which would reasonably and ordinarily be expected from time to time from a skilled and experienced Person carrying out the same type of activity, and applying the reasonably accepted industry practices under the same or equivalent circumstances, acting generally in accordance with all Applicable Laws;
Goods means the Hardware (Products) and Hardware (Loaner) (including Documentation) to be provided by the Supplier under or in connection with a Supply Agreement, being as described on the Esevel Platform from time to time;
Hardware (Products) means the hardware sold by the Supplier to the Customer under or in connection with a Supply Agreement, being as described on the Esevel Platform from time to time;
Hardware (Loaner) means the hardware temporarily lent by the Supplier to the Customer under or in connection with a Supply Agreement, being as described on the Esevel Platform from time to time;
Indirect Loss means in relation to a breach of this Agreement any loss of production, loss of use, loss of revenue, loss of profit, loss of contract, loss of goodwill, or any indirect, consequential or special loss;
Initial Term means a period of [●] months from the Agreement Date;
Insolvency Event means a Creditor Event, Receivership Event, Administration Event or a Winding-up Event;
Instruction means any reasonable instruction given under or in connection with this Agreement, and the terms “Instruct” and “Instructed” shall have the equivalent grammatical meaning;
Intellectual Property Rights or IPR means patents, inventions (whether patentable or not), copyrights, moral rights, design rights, trade-marks, trade names, business names, service marks, brands, logos, service names, trade secrets, know-how, domain names, database rights and any other intellectual property or proprietary rights (whether registered or unregistered, and whether in electronic form or otherwise) including rights in computer software, and all registrations and applications to register any of the aforesaid items, rights in the nature of the aforesaid items in any country or jurisdiction, any rights in the nature of unfair competition rights, and rights to sue for passing off;
Invoice Schedule means the authorised schedule for invoicing for the Deliverables, which shall be monthly during the Term or such other times as the Supplier may reasonably determine from time to time;
Login Details means the Customer’s or its User’s usernames and passwords for any of the Deliverables and/or the Esevel Platform;
Loss or Losses means any loss, expense, claim, penalty expenses or equivalent which the Customer suffers directly as a result of the Supplier’s actions or inactions in respect of this Agreement or otherwise as a result of the Supplier’s performance under or in connection with this Agreement, but excluding any consequential losses.
Mandatory Disclosure means any announcement or disclosure of Confidential Information that a Party is required to make under Applicable Law or as otherwise required by any order of a court of competent jurisdiction;
Material Breach means a breach of this Agreement that is not remedied by the breaching Party within 30 calendar days of being notified of the breach;
Manufacturer Warranties means any warranty provided by the manufacturer and/or the Supplier’s suppliers of any Goods and/or any other item(s) comprising part of the Deliverables;
New IPR means IPR developed by a Party after the Agreement Date;
Pattern Data means all non-personally identifiable information, data and/or reports derived from or compiled through a Deliverable, including, but not limited to, aggregated and/or anonymized data and/or statistics indicating frequency of use, popularity of and/or other characteristics of the Deliverables. For clarity, Pattern Data is not data that is i) the Customer’s Confidential Information, or ii) Personal Data;
Person means any natural person, corporate or unincorporated body (whether or not having separate legal personality), individual, corporation, partnership, limited liability company or similar entity;
Personal Data means data relating to a living individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the data controller;
Personnel means all employees, agents and Subcontractors of a Party who are assigned, engaged or otherwise employed from time to time to work in connection with the performance or discharge of a Party’s obligations under this Agreement;
Product Specific Terms means the additional terms and conditions that are applicable to a specific Deliverable, being the following, each as may be updated from time to time:
  1. LAST MILE IT SERVICES T&C available at [URL]
  2. HARDWARE SUPPORT SERVICES T&C available at [URL]
  3. REMOTE IT SERVICE DESK T&C available at [URL]
  4. FREE TRIALS T&C available at [URL]
  5. MOBILE DEVICE MANAGEMENT available at [URL]
  6. IDENTITY ACCESS MANAGEMENT available at [URL]
Purchase Order means the official procurement order submitted by the Customer to the Supplier, either in paper form or through the booking process facilitated by the Esevel Platform;
Receivership Event means where a receiver (or equivalent) is appointed over any of a Party’s assets or undertaking or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager (or equivalent) of a Party, or if any other Person takes possession of or sells a Party’s assets;
Receiving Party means the Party receiving Confidential Information from the other Party under or in connection with this Agreement;
Relief Event means an event recognised under Clause 11 which may potentially give rise to a right for the Supplier to be granted an Extension of Time by the Customer;
Remote IT Service Desk means the Supplier’s service desk that is available through the Esevel Platform and is to be used by the Customer in relation to Hardware Support Services and/or Remote IT Support Services;
Service Centre means the site determined by the Supplier where the Goods are to be serviced; and
Service Levels means any performance service level(s) associated with any Deliverables as set out in the applicable Product Specific Terms;
Services means the services to be provided by the Supplier under or in connection with a Supply Agreement, being as described on the Esevel Platform from time to time;
Specifications means any technical and functional specifications for the Deliverables as set out in on the Esevel Platform and includes any plans, drawings, data, specifications, quantities, description and other information relating to the Deliverables;
Storage Facility means a facility operated for or on behalf of the Supplier in which any Deliverables are stored on behalf of the Customer;
Subscription Term means the initial term of the Customer’s subscription to Subscription Service, as specified in the applicable Supply Agreement and each subsequent renewal term (if any). For Free Services, the Subscription Term will be the period during which you have an account to access the Free Services.
Supply Agreement means a Purchase Order that has been accepted by the Supplier pursuant to Clause 4 and which constitutes a valid and binding agreement between the Customer and Supplier for the supply and delivery of Deliverables by the Supplier subject to and in accordance with the terms and conditions of this Agreement;
Tax means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of them);
Term means the Initial Term and each Extended Term, unless terminated earlier in accordance with Clauses 24, 25 or 26;
Third Party means a Person who is not a Party;
Third-Party Products means and good or services supplied by at Third Party that the Customer accesses through or in relation to the Deliverables;
Title means ownership of real property or personal property;
Warranty Obligation means the replacing the Deliverable or refunding the Charges paid in relation t that Deliverable, during the Defect Liability Period; and
Winding-up Event means where an order is made or a resolution is passed for the winding-up of a Party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of a Party.

2. INTERPRETATION

2.1 In this Agreement, the following rules of interpretation shall apply:

  • 2.1.1 a reference to “including” and its other grammatical forms shall be construed without limitation;
  • 2.1.2 obligations undertaken by a Party which comprises more than one Person shall be deemed to be made on a joint and several liability basis;
  • 2.1.3 any obligation on a Party not to do something includes an obligation not to allow that thing to be done; and

unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

SCHEDULE 2 | PAYMENT TERMS

1. DEFINITIONS

1.1 The defined terms of the Agreement shall apply to this Schedule.

1.1 The following additional defined terms shall apply to this Schedule.

Esevel Credits means pre-purchased credits, that can be purchased in groups of 50, 100 or 200, for such fees as the Supplier may define from time to time, that can be exchanged within the Esevel Website for Approved Supply.
Logistics Charges means all shipping costs and expenses incurred by the Supplier to deliver the Deliverables to the Customer in accordance with a Supply Agreement (including insurance costs);

2. INVOICING TERMS

2.1 The Supplier shall invoice the Customer for the Charges in accordance with the Invoice Schedule.

2.2 Each invoice shall be payable by the Customer within a period of 7 calendar days from receipt, either by way of bank transfer to the Supplier or by the Customer utilising its Esevel Credits.

3. CREDITS

3.1 Where the Customer has purchased Esevel Credits, the Customer may utilise those Esevel Credits to procure Deliverables.

3.2 The Customer’s Esevel Credits balance shall be as detailed on its Business Account.

3.3 The Customer acknowledges and agrees that any Esevel Credits that are not utilised within 12 months of being purchased will expire and the Customer will not be entitled to any refund.

4. GENERAL PAYMENT TERMS

  • 4.1 The Supplier may set-off any rights and Claims it may have against any rights or Claims of the Customer under this Agreement.
  • 4.2 The Customer acknowledges and agrees that:
    • 4.2.1 the Customer is solely responsible for paying its own bank charges;
    • 4.2.1 payment obligations may not be cancelled or terminated and all amounts paid are non-refundable, except as specifically provided for in this Agreement;
    • 4.2.1 to the extent required, the Supplier may use a Third Party to process the Customer’s payments, and may disclose the Customer’s payment information to such Third Party; and
    • 4.2.1 subject to Paragraph 3.1, it shall not be entitled to set-off any rights and Claims it may have against any rights or Claims of the Supplier under this Agreement.
  • 4.3 Any outstanding payments owed by the Customer to the Supplier shall attract late payment, monthly interest of 1.5% above the prime lending rate in Singapore at the time, until full payment is received.

5. LOGISTICS CHARGES

5.1 Where Logistic Charges apply, you acknowledge and agree that:

  • 5.1.2 whilst we may provide estimates of the Logistics Charges in the applicable Supply Agreement, the Customer is liable to reimburse the Supplier for the Logistics Charges incurred by the Supplier on the Customer’s behalf; and
  • 5.1.3 the Customer hereby authorises the Supplier to incur the Logistics Charges on the Customer’s behalf to the extent necessary or desirable for the performance of the Deliverables.

6. SUBSCRIPTION PAYMENT TERMS

  • 6.1 The Customer hereby authorise the Supplier to make a debit on the debit or credit card associated with the Customer’s Business Account or provided to us when the Supply Agreement was agreed.
  • 6.2 The Customer acknowledge and agree that if, for whatever reason, a payment is reversed or declined, where recurring payments are required, then the Customer’s liability to the Supplier will automatically be deemed a debt immediately due and payable.
  • 6.3 If a Subscription Service is suspended for non-payment, the Supplier may charge a re-activation fee to reinstate the Subscription Service

7. CHARGE VARIATIONS

  • 7.1 Unless otherwise agreed in a Supply Agreement, the Charges for any Subscription Services will remain fixed during the Initial Term unless the Customer procures:
    • 7.1.1 additional device tiers
    • 7.1.2 upgrade products or base packages;
    • 7.1.3 additional features or products.
  • 7.2 Subject to Paragraph 7.3, at the commencement of each Extended Term, the Supplier may increase the Charges up to the Supplier’s then-current list price by giving the Customer at least thirty 30 calendar days’ notice.
  • 7.3 The Customer shall be deemed to have accepted a Charge variation under Paragraph 7.2, unless it terminates the applicable Supply Agreement at least 30 days prior to the end of the then current Term by written notice to customersupport@esevel.com

SCHEDULE 3 | CUSTOMER RESPONSIBILITIES

1. DEFINITIONS

1.1 The defined terms of the Agreement shall apply to this Schedule.

The following additional defined terms shall apply to this Schedule.

Business Account means the Customer’s administrator account registered on the Esevel Platform;
User Account means a User account created by the Customer on the Esevel Platform for one of its Personnel.
User means the Customer’s Personnel that is authorised to any of the Deliverables and/or the Esevel Platform on behalf of the Customer;

2. CUSTOMER RESPONSIBILITIES

2.1 The Customer acknowledges and agrees that the Supplier’s supply and/or performance of the Deliverables is reliant upon the Customer’s prompt and full performance of the following:

  • Payment Information:

    2.1.2 Customer will keep its Authorized Payment Method, contact information, and billing information up to date throughout the Term and shall promptly notify the Supplier in writing of any changes thereto;

  • Site Access:

    2.1.3 Customer shall provide the Supplier with such access to Sites as may be reasonably requested and required to facilitate the Supplier full performance of the Supplier’s obligations in this Agreement.

    2.1.4 Customer shall ensure that only its authorised Personnel submit Purchase Orders to the Supplier on its behalf, and acknowledges and agrees that the Supplier can assume that any order submitted by the Customer’s Personnel are authorised.

  • Deliverables:

    2.1.5 Customer shall ensure that its Personnel only use the Deliverables strictly for their intended purpose and in accordance with all Applicable Law and such guidelines and instructions as the Supplier may provide.

  • Esevel Policies:

    2.1.6 Customer shall ensure that all of its Users strictly comply with the Esevel Policies when utilising the Deliverables.

  • Security:

    2.1.7 Customer is solely liable for any activity undertaken with its Business Account or any of its User Accounts.

    2.1.8 Customer shall ensure that only its Authorised Representatives have access to its Login Details, its Business Account or the User Accounts.

    2.1.9 Customer shall immediately notify the Supplier in writing in the event that the Customer believes there has been any unauthorized access to its Login Details, Business Account or User Accounts.

  • Third Party Services:

    2.1.10 To the extent the Customer accesses or utilises any Third Party services through the Deliverables, the Customer shall ensure that it strictly complies with all terms and conditions applicable to those Third Party services.

  • Other:

    2.1.11 Customer shall ensure that it and its Personnel promptly, accurately and in good faith:

    • comply with all guidelines and Instructions provided by the Supplier;
    • respond to communications and requests for information made by the Supplier;
    • report any issues and Defects to the Supplier to enable the Supplier to address the issue in question;
    • keep the Hardware (Loan) safe and in good condition; and
    • are available during normal office hours and at such times as may be agreed with the Supplier for the collection or receipt of the Deliverables.

SCHEDULE 4 | NOTICES

1. ADDRESSES

1.1 The Parties addresses for the purpose of receiving notices under this Agreement are as follows:

  • For the Customer:

    Physical address: [●]

    Email address: [●]

  • For the Supplier:

    Physical address: cc to Yuying Deng, Esevel Legal Department, 101 Upper Cross Street, #05-16, Singapore, 058357

    Email address: hello@esevel.com (cc to yuying@esevel.com)