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General Terms & Conditions

GENERAL TERMS AND CONDITIONS 

1         SCOPE

1.1   The terms and conditions hereunder (“Terms”) shall form part of the terms and conditions of the Agreement entered into between Astoria and another Party (“Customer”) in relation to the provision of Products and Services by Astoria to any such Customer and shall have full legal effect and be binding to the extent relevant on the Parties.

2         PROVISION OF PRODUCTS AND SERVICES

2.1   The Products and Services to be provided by Astoria under this Agreement are in consideration of payments made by the Customer (including the purchase price and or the maintenance and or the lease price) to Astoria in respect of such Products and Services as agreed to be provided by Astoria between the Parties.

3         PRICE AND PAYMENT

3.1   Notwithstanding any provision found herein, the Price for the Products and Services shall be paid by the Customer as agreed between the Parties in writing in accordance with the Agreement.

3.2   Astoria shall be entitled at any time before the period of seven (7) days immediately preceding the Delivery Date to vary the Price and any additional charges payable under any such Agreement to accord with any changes in Astoria’s standard scale of charges and to give written notice of such variation to the Customer. Such Agreement shall be deemed to be varied accordingly by such notice of variation unless the Customer shall within four (4) days of the receipt of such notice terminate any such Agreement by giving written notice to Astoria in which event neither party shall have any liability to the other in respect of such termination.

3.3   Notwithstanding the foregoing, in the event of other additional charges necessary for Astoria to perform its obligations hereunder and where provision for has been made pursuant to these Terms or any subsequent agreement between the Parties made in writing, such additional charge shall be paid by the Customer to Astoria upon a written notice being given by Astoria to the Customer providing the details of such charges.

3.4   All charges payable from the Customer to Astoria shall be exclusive of any Government Service Tax which shall be paid by the Customer at the rate and in the manner for the time being prescribed by law.

3.5   If any sum payable under any Agreement is not paid within fourteen (14) days after the due date then (without prejudice to Astoria’s other rights and remedies) Astoria reserves the right to charge interest on such sum on a day to day basis (as well after as before any judgment) from the date or last date for payment thereof to the date of actual payment (both dates inclusive) at the rate of 2% per month from time to time. Such interest shall be paid on demand by Astoria.  In addition or in the alternative (at the option of Astoria), Astoria may suspend the provision of any such Products and Services for which the sum payable relates to until such time as the payment is made, and demand that all equipment are returned forthwith.

4         OWNERSHIP

4.1   The Customer acknowledges and agrees that, unless otherwise stated:

(a)    all Software and Documentation (“Software”) provided by Astoria under this Agreement are protected by copyright laws and treaties, as well as laws and treaties related to all other forms of intellectual property;

(b)    all Software are trade secrets of Astoria, and is their confidential information; and

(c)    all ownership, license, intellectual property, and other rights and interests in the Software shall remain the sole and exclusive property of Astoria.

4.2   The provision and continued provision and use thereof of any Software provided by Astoria and their use thereof by the Customer shall at all times be subject to the Customer’s continued compliance of its obligations of these Terms.

5      PERMISSIONS

5.1   Astoria grants to the Customer a limited, non-exclusive, non-transferable right to access and use and permit Authorized Users to access and use the Software for a term specified under this Agreement solely for the Customer’s internal business operations

5.2   The Customer acknowledges that its right to use the Software is pursuant to these Terms and the Software shall not be installed on any medium whatsoever owned or controlled by the Customer or otherwise provided to the Customer without Astoria’s prior written approval, except such medium as may be approved or provided by Astoria for use with the Software under this Agreement.

5.3   The following restrictions shall apply in addition to any other restrictions as may be found in these Terms:

(a)    Software may only be used and accessed by employees, agents and independent contractors of the Customer (“Authorised Users”);

(b)    At special request of Astoria and only when applicable the Customer shall maintain a written, up to date list of current Authorised Users and provide such list Astoria within five (5) working days of Astoria’s written request at any time or times;

(c)    at no point may the Customer permit access or use of the Software other than by Authorized Users;

(d)   the Customer shall not allow or suffer any User Subscription or License to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Software;

(e)    the maximum number of Authorised Users that the Customer authorises to access and use the Software shall not exceed the number of User Subscriptions and or Licenses it has purchased from time to time;

(f)     the Customer shall permit Astoria to perform compliance audits, such audits which may be conducted no more than once per quarter, at Astoria’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;

(g)   if any of the compliance audits reveal that there has been use of the Software other than by Authorized Users, then without prejudice to Astoria’s other rights, the Customer shall promptly disable access to the Software by such unauthorized users; and

(h)   if any of the compliance audits reveal that the Customer has underpaid Subscription or License Fees to Astoria, the Customer shall pay to Astoria an amount equal to such underpayment as calculated in accordance with the then-current list price of Astoria for that Subscription or License Fee within fourteen (14) working days of the date of the relevant audit.

5.4   Nothing contained in these Terms shall be construed as an assignment or transfer of any copyright, design right or other intellectual property rights in any Software provided to the Customer under this Agreement, all of which rights are reserved by Astoria.

5.5   Except as expressly permitted in writing between the Parties or under these Terms, the Customer shall not, and shall not permit any other party to (i) assign, transfer, sell, rent, lease, sublicense, redistribute or otherwise transfer the Software to any party in whole or in part; (ii) charge a fee to any party for access to or use of the Software; or (iii) rent, lease, sub-license, loan, copy, modify, adapt, merge, translate, reverse engineer, decompile, disassemble or otherwise attempt to discover the confidential information or trade secrets (including the source code) in the Software.

5.6   The Customer is further prohibited from creating any derivative works of the Software whether from any (i) modification, change, translation, addition, enhancement, extension, upgrade, update or improve the Software; (ii) work resulting from the porting of the Software to a different operating environment or platform; (iii) new software program based on the Software or any identifiable portion of the Software (whether or not combined with any other new or pre-existing works); or (iv) other work constituting a derivative of the Software under applicable copyright laws without the prior written approval of Astoria.

5.7   The Customer acknowledges and agrees that Astoria shall own all such derivative works created by the Customer pursuant to Clause 5.6 whether or not Astoria’s prior written approval was sought and granted pursuant to their creation.

6      ACCESSIBILITY

6.1   Where Software is hosted by Astoria between a third-party host and Astoria, Astoria shall use commercially reasonable endeavours to make the Software accessible on a 24×7 (twenty-four hours per day, seven days per week) basis during the term of this Agreement, except for:

(a)    scheduled system back-up or other on-going maintenance as required and scheduled in advance by Astoria; or

(b)    any unforeseen cause beyond Astoria’s reasonable control, including but not limited to internet service provider or communications network failures, denial of service attacks or similar attacks, or any force majeure events set forth in this Agreement.

6.2   In the situation where third-party hosting services provided by Astoria is used by the Customer pursuant to this Agreement, Astoria will monitor performance indicators on the systems and network infrastructure in order to gauge the overall performance of such third-party hosting services, and will take reasonable steps to address systems and network infrastructure as required to maintain satisfactory performance of the Software.

6.3   Astoria will, at no additional cost to the Customer, provide the Customer with Astoria’s standard customer support services during Normal Business Hours in accordance with Astoria’s Support Services Policy as may be in effect from time to time.  Astoria may amend the Support Services Policy in its sole and absolute discretion from time to time.  The Customer may purchase enhanced support services separately at Astoria’s then current rates.

7      THIRD PARTY SOFTWARE AND HOSTING SERVICES

7.1   The Customer acknowledges that the Software may operate or interface with software or other technology which is not proprietary to Astoria and is licensed to Astoria by third parties (“Third Party Licensors”), but which Astoria have the necessary rights to license to you (“Third Party Software”). The Customer agrees that (i) it will use such Third Party Software in accordance with this Agreement, (ii) no Third Party Licensor makes any warranties, conditions, undertakings or representations of any kind, either express or implied, to the Customer concerning such Third Party Software, (iii) no Third Party Licensor will have any obligation or liability to you as a result of this Agreement or your use of such Third Party Software, (iv) such Third Party Software may be licensed under license terms which grant you additional rights or contain additional restrictions in relation to such materials, beyond those set forth in this Agreement, and such additional license rights and restrictions as may be described or linked to within the applicable Software.

7.2   The Customer is prohibited from causing any Third Party Software not owned or licensed by Astoria to interface or interact with Software licensed hereunder, except where such interfacing or interaction is accomplished through the use of application program interfaces provided by or approved in writing by Astoria.

7.3   Notwithstanding the above, the Customer acknowledges that it uses solely at its own risk, any Third Party Software or third-party hosting services not provided by Astoria to the Customer and used by the Customer in relation to the Software. The Customer further agrees that Astoria shall have no obligation or liability howsoever arising under this Agreement in relation to any such Third Party Software or third-party hosting services used by the Customer in relation to the Software.

8      LIMITED SOFTWARE WARRANTY

8.1   Astoria warrants to the Customer that for a period of ninety (90) days from the date of first delivery of the Software to the Customer that the Software will perform substantially in accordance with its accompanying Documentation. Astoria’s entire liability, and the Customer’s sole remedy against Astoria for each breach by Astoria of the warranty contained in this provision shall be limited to requiring Astoria to correct or work around the portion of the Software giving rise to such breach within a commercially reasonable period of time, failing which the Customer may elect to be refunded fees paid to Astoria in relation to the Software hereunder attributable to the portion of the Software giving rise to the breach.

8.2   This warranty shall not apply to any breach caused by: (a) any change to the Software, except where such changes were made by Astoria in relation to the provision of maintenance or support services; (b) the Customer’s failure to provide a suitable installation or operating environment for the Software; (c) use of the Software on a software or hardware platform not approved by Astoria in writing; (d) software, hardware, firmware, data or technology not licensed or approved by Astoria in writing; (e) any telecommunications medium used by the Customer; (f) the Customer’s own computer system or hosting system; or (g) the failure of the Customer and/or user to comply with Documentation provided by Astoria.

8.3   Notwithstanding the foregoing, Astoria (i) does not warrant that the Customer’s use of the Software uninterrupted or error-free; nor that the Software, Documentation and/or the information obtained by the Customer through the Software will meet the Customer’s requirements; (ii) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and (iii) the Customer acknowledges that the Software and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities. For the avoidance of doubt, the foregoing warranties shall not cover (i) deficiencies or damages relating to any third party components not furnished or provided by Astoria; or (ii) any third party provided connectivity necessary for the provision or use of the Software.

8.4   Except as provided above, Astoria and any Third Party Licensors disclaim, to the fullest extent as allowed under applicable law, any and all express or implied warranties and conditions of every kind pertaining in any way to the Software provided under this Agreement, whether express or implied by statute, common law, usage of  trade, course of dealing, custom or otherwise. Neither Astoria nor any Third Party Licensors make any representation, nor provide any warranty or condition, regarding the adequacy of the Software for any particular purpose, or the adequacy of the Software to produce any particular result.

9      EQUIPMENT PROVIDED BY ASTORIA

9.1   Astoria may sell or lease any form of hardware including computer, IT hardware or any other form of technology hardware for use with any Software under this Agreement (“Equipment”). For the avoidance of doubt, these Terms shall continue to govern the purchase, sale, lease and use of such Equipment as well as any such Software provided under this Agreement, whether or not for provided for use with such Equipment.

10    TITLE AND RISK

10.1 In the case of a sale of Equipment, the legal and beneficial ownership of and title in the Equipment shall pass to the Customer on payment in full and in cleared funds of the Price and any other sums which may then be due under this Agreement.

10.2 In the case of a lease, Astoria shall at all times retain title to the Equipment unless otherwise agreed to in writing. The Customer shall have no right, title or interest therein or thereto except as expressly set forth in any Agreement between the Parties and under these Terms. The Customer shall not directly or indirectly create, incur, assume or suffer to exist any mortgage, pledge, lien, charge, encumbrance, or claim on or with respect to the Equipment, or any interest therein, except the respective rights of Astoria and the Customer as provided in any Agreement and under these Terms. The Customer shall promptly, and at its own expense, take such action as may be necessary to duly discharge any such mortgage, pledge, lien, charge, encumbrance, or claim not excepted above if the same shall arise at any time.

10.3 Risk in the Equipment shall pass to the Customer on delivery of the Equipment to the Location and accordingly the Customer shall be responsible for insuring the Equipment against all normal risks with effect from the time risk passes.

11    LOCATION PREPARATION, INFORMATION AND ACCESS

11.1 Astoria shall supply to the Customer in reasonable time before delivery of the Equipment such information as may be reasonably necessary to enable the Customer to prepare the Location for the installation of the Equipment and to provide proper environmental and operational conditions for the efficient working and maintenance of the Equipment. The Customer shall at its own expense prepare the Location prior to delivery.

11.2 The Customer undertakes to provide Astoria promptly with any information and assistance which Astoria may reasonably require from time to time to enable Astoria to proceed with the performance of its obligations under these Terms without undue delay or impediment, including (i) the giving to the authorised personnel of Astoria during normal working hours, reasonable access to the Location and providing adequate free working space and such other facilities as may be reasonably necessary for the delivery of the Equipment, and (ii) making available necessary manpower to assist in the delivery and or installation of the Equipment as may be requested by Astoria.

12    DELIVERY AND INSTALLATION

12.1 On the Delivery Date, Astoria shall deliver the Equipment to the Location and supervise its installation by the representatives of the Customer.

12.2 Astoria reserves the right prior to delivery of the Equipment to substitute an alternative item of equipment for any item of equipment agreed to be supplied hereunder provided that such substitution will not materially affect the performance of such equipment and will not result in any increase in the Price.

13    TIME NOT OF THE ESSENCE

13.1 The time of delivery and installation of the Equipment shall not be of the essence under these Terms, provided always that, Astoria shall use all reasonable endeavours to complete the delivery and installation as soon as reasonably possible thereafter.

14    INSTALLATION TESTS

14.1 Astoria shall, within seven (7) days after the Equipment has been installed, submit the Equipment to Astoria’s standard installation tests (“the Installation Tests’) to ensure that the Equipment and every part thereof is in full working order. Astoria shall supply to the Customer copies of the Installation Tests’ scripts applicable to the Equipment and results of the Installation Tests.

14.2 Astoria reserves the right to take rectification action, including repeating any tests, in the event that any Equipment or for such part or parts of the Equipment fails to pass the Installation Test or Tests, which shall include the right to substitute such Equipment or such part or parts thereof if necessary and to have the Equipment resubmitted for Installation Tests one further time for the Equipment as a whole or for any one part of the Equipment.

14.3 The Customer or its authorised representative may attend the Installation Tests. In the event of any delay or failure by the Customer or its authorised representative in attending the Installation Tests at such time Astoria reserves the right to proceed with the Installation Tests which will then be deemed to have been carried out in the presence of the Customer and the results thereof accepted by the Customer.

15    ACCEPTANCE

15.1 Once the Equipment and every part thereof has successfully passed the Installation Tests the Equipment shall be accepted by the Customer and the Customer shall, if required by Astoria, sign a commissioning certificate in the form to be determined by Astoria to Astoria’s satisfaction acknowledging such acceptance.

16    TELECOMMUNICATIONS

16.1 To the extent that the Equipment need to be be connected to any telecommunication system which is, or is to be connected to, a public telecommunication system (“Relevant Equipment”), Astoria warrants to the Customer that at the date hereof the Relevant Equipment is approved under the relevant applicable laws relating to the Relevant Equipment’s connection to the telecommunication systems specified in the instructions for use of the Relevant Equipment subject to the conditions set out therein but does not warrant the continuance of any such approval.

16.2 If after the date hereof, any relevant applicable laws at the time in force require modification to the Relevant Equipment or any part thereof as a condition of its continued use, Astoria reserves the right to make such modification at the Customer’s expense.

16.3 If the Customer connects the Relevant Equipment to any telecommunication system the Customer shall be responsible for obtaining the consent of the owner of that system (if necessary) to such connection and for complying with all conditions relating thereto.

16.4 Where any data transmission speeds are given by Astoria in relation to the Equipment, such speeds are at all times an estimate only and subject to any conditions attached to the use of the relevant modem, cabling or telecommunication equipment at the speeds indicated and to the capability of such modem, cabling or other telecommunication equipment to achieve such speeds.

17    MAINTENANCE AND SUPPORT SERVICES

17.1 Astoria shall maintain the Software and may from time to time provide patches and fixes to the Software during the term of the Agreement at no additional cost. This shall not include the provision of any major releases of new versions of the Software, additional functionality, or custom programming, which Astoria, at its discretion, may provide at an additional cost as otherwise agreed between the Parties.

17.2 Notwithstanding any other provision in these Terms, the Customer shall not be entitled to the provision of any additional maintenance and support services by Astoria for any Equipment or Software unless the Customer (i) has opted for and paid for such additional maintenance and support services in accordance with this Agreement, or (ii) agrees to pay for such additional maintenance and support services at Astoria’s current rates for such services; in respect of such Equipment or Software.

17.3 Where Astoria has agreed to provide maintenance and support services, the following provisions shall have full legal effect and be binding on the Parties (“Maintenance Terms”):

(a)   The Maintenance Terms shall have effect beginning from the Commencement Date and shall continue for until such time that the provision of maintenance and support services by Astoria is terminated by either Party as provided for and in accordance with the provisions this Agreement.

(b)   Astoria shall provide maintenance services in respect of the Equipment to the Customer in accordance with the following:

(i)    Preventative Maintenance – Astoria shall make visits to the Location to test the functions of the Equipment and make such adjustments as shall be necessary to keep the Equipment in working order in accordance with its specification as may be mutually agreed between the Parties.

(ii)   Corrective Maintenance – Upon receipt of notification from the Customer Representative that the Equipment has failed or is malfunctioning, Astoria shall undertake as reasonable any repairs, adjustments to and replacement of the Equipment or such parts of the Equipment as may be necessary to restore the Equipment to its proper operating condition following Astoria’s assessment.

17.4 The Maintenance Services exclude any maintenance of the Equipment which is necessitated as a result of any cause other than fair wear and tear or the Customer’s neglect or fault, including without limitation:

(a)    failure or fluctuation of electric power, air conditioning, humidity control or other environmental conditions;

(b)    accident, transportation, neglect, misuse, or default of the Customer, its employees or agents or any third party;

(c)    any fault in any attachments or associated equipment to the extent that such attachments or equipment are not supplied or maintained by Astoria or which do not form part of the Equipment;

(d)   act of God, fire, flood, war, act of violence, or any other similar occurrence;

(e)    any attempt by any person other than Astoria personnel to adjust, repair or maintain the Equipment; or

(f)     any head crash or failure of fixed or removable storage media.

17.5 Astoria will, to the extent that it is reasonably able to do so, at the request and expense of the Customer repair or replace any part of the Equipment which has failed due to a cause other than fair wear and tear or due to the Customer’s neglect or fault subject to the Customer accepting Astoria’s written quotation prior to the commencement of such repair or replacement.

17.6 The Maintenance Services provided by Astoria under these Maintenance Terms shall exclude:

(a)    the provision of services other than at the Location (or such other location as Astoria shall have approved in writing);

(b)    repair or renewal of consumable supplies associated with the Equipment;

(c)    maintenance or support of the operating system of any computer or software not provided by Astoria for use with the Equipment;

(d)   electrical or other environmental work external to the Equipment;

(e)    maintenance of any attachments or associated equipment that are not supplied or maintained by Astoria or which do not form part of the Equipment;

(f)     recovery or reconstruction of any data or programs lost or spoiled as a result of any breakdown of or fault in the Equipment or Software.

17.7 Astoria reserves the right to replace the whole of the Equipment or any part or parts thereof which may be found to be faulty or in need of investigation as to whether faults may exist in their operation throughout the duration in which Astoria continues to provide maintenance and support services to the Customer.

17.8 Astoria shall be entitled to additionally charge, in accordance with its standard scale of charges from time to time in force, for service visits:

(a)    made at the request of the Customer by reason of any fault in the Equipment due to causes not covered by the Maintenance Services; or

(b)    made at the request of the Customer but which Astoria finds are frivolous or not necessary.

17.9 Throughout the duration in which Astoria continues to provide maintenance and support services to the Customer, the Customer shall ensure that it takes proper care of the Equipment and uses it in a proper manner, without making any modifications thereto.

18    TERMINATION

18.1 Notwithstanding any other provision herein, termination may be effected forthwith in any of the following manners:

(a)    by Astoria on giving notice in writing to the Customer if the Customer fails to pay any sum due under the terms of any Agreement (otherwise than as a consequence of any default on the part of Astoria) and such sum remains unpaid for fourteen (14) days after written notice from Astoria requiring such sum to be paid;

(b)    by either Party on giving notice in writing to the other if the other Party is in material breach of these Terms or this Agreement (other than any failure by the Customer to make any payment hereunder in which event the provisions of paragraph (a) above shall apply) and (in the case of a breach capable of being remedied) shall have failed to have remedied, within ten (10) days of receiving a written notice from the non-breaching Party requiring the other Party to do so;

(c)    by either Party on giving notice in writing to the other if the other Party shall have a receiver or administrative receiver appointed or assets or shall pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the other Party shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business; or

(d)   by either Party on giving three (3) months notice in writing to the other Party after an initial agreed upon term.

18.2 Any termination under Clauses 17.1(b) or (c) shall discharge the Parties from any liability for further performance of such Agreement and in the case of a termination by Astoria shall entitle Astoria to enter any of the Customer’s premises and recover any equipment and materials the property of Astoria (and so that the Customer hereby irrevocably licenses Astoria, its employees and agents to enter any such premises for that purpose) and also to be paid a reasonable sum for any work carried out by it prior to and in consequence of such termination, and in the case of a termination by the Customer shall entitle the Customer to be repaid forthwith any sums previously paid under this Agreement (whether paid by way of a deposit or otherwise) and to recover from Astoria the amount of any direct loss or damage sustained or incurred by the Customer as a consequence of such termination.

18.3 Any termination of such Agreement howsoever occasioned shall not affect any accrued rights or liabilities of either Party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.

19    USE AND RETURN OF EQUIPMENT AND SOFTWARE

19.1 In the case of a lease, the Customer shall cause the Equipment and Software to be operated by competent and qualified personnel in accordance with any operating instructions or documentation furnished by Astoria. The Customer shall maintain the Equipment in good operating condition and protect it from deterioration, normal wear and tear excepted.

19.2 The Customer shall not permit any physical alteration or modification of the Equipment or Software, or change the installation site, Location, or move the Equipment without Astoria’s prior written consent.

19.3 The Customer shall comply with all governmental laws, rules and regulations relating to the use of the Equipment and Software and shall be responsible for obtaining all permits required to operate the Equipment at such Location.

19.4 Astoria reserves the right to, at any time, enter any of the Customer’s premises or Locations for the purposes of inspecting, examining or repairing the Equipment and Software.

19.5 The Customer shall bear the responsibility of ensuring and keeping the Equipment adequately insured against loss by fire, theft, and all other hazards.

19.6 Astoria shall, at its absolute discretion, require the Customer to provide proof of insurance. The loss, destruction, theft, or damage of or to the Equipment shall in no way relieve the Customer from the obligation to pay any sum due (including the full purchase price of or total monthly lease charges) hereunder.

19.7 Upon the completion of the lease term or any renewal, extension, or otherwise prolongation thereof, the Customer shall return the Equipment and Software to Astoria within seven (7) days and shall bear any and all costs associated with such return (including any expenses incurred in the delivery, de-installation and insurance of the said Equipment and Software). In the absence of any affirmative election by the Customer to effect such return and the actual receipt of all Equipment and Software so leased to the Customer by Astoria, Astoria shall deem the lease to continue and subsist on a month to month basis at the then existing list prices of Astoria.

19.8 Notwithstanding any other provisions in this Agreement and the Master Agreement, in the event of termination by Astoria due to the Customer’s default, the Customer shall immediately return the Equipment to Astoria no later than seven (7) days after such termination.

20    LIMITED PRODUCT WARRANTY

20.1 Astoria warrants that the Equipment will be free from defects in materials, workmanship and installation for a period of 12 months after the Installation Date (“Warranty Period”).

20.2 If Astoria receives written notice from the Customer of any breach of the said warranty then Astoria shall at its own expense and within a reasonable time after receiving such notice, repair or, at its option, replace the Equipment or such parts of it as are defective or otherwise remedy such defect, provided that Astoria shall have no liability or obligations under the said warranty unless it shall have received written notice of the defect in question no later than the expiry of the Warranty Period. The legal and beneficial ownership of the Equipment or any defective parts shall revert to Astoria upon the replacement of the Equipment or such defective parts (as the case may be), whereupon the legal and beneficial ownership of the replacement Equipment or parts shall vest in either Astoria or the Customer, depending on whether the individual Agreement is a sale or a lease, as the case may be.

20.3 Astoria shall have no liability or obligations under the said warranty other than to remedy breaches thereof by the provision of materials and services within a reasonable time and without charge to the Customer, save that if Astoria shall fail to comply with such obligations within a reasonable time, it shall be liable in damages to the Customer provided that its liability for such failure shall be limited to a sum equal to the Price of such Equipment found to be in breach of the warranty. The foregoing states the entire liability of Astoria, whether in contract or tort, for defects in the Equipment notified to it other than liability assumed under Clause 22.

20.4 The said warranty is contingent upon the proper use of the Equipment by the Customer and does not cover any part of the Equipment which has been modified without Astoria’s prior written consent or which has been subjected to unusual physical or electrical stress or on which the original identification marks have been removed or altered. Nor will such warranty apply if repair or parts replacement is required as a result of causes other than ordinary use including without limitation accident, hazard, misuse or failure or fluctuation of electric power, air conditioning, humidity control or other environmental conditions.

20.5 Astoria does not give any warranty that the Equipment is fit for any particular purpose unless that purpose is specifically advised to Astoria in writing by the Customer and Astoria confirms in writing that the Equipment can fulfil that particular purpose.

20.6 The express terms stated herein shall apply to all Agreements entered into by Astoria with the Customer and are in lieu of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise, all of which are hereby excluded to the fullest extent permitted by law.

21    FORCE MAJEURE

21.1 No Party shall be regarded as being in default of this Agreement nor be liable to the any other Party in connection with any delay or failure on the part of that Party to perform any of its obligations hereunder where such performance of its obligations or attempts to cure any breach is delayed, hindered or prevented by reason or result of an act of God (including fire, flood, earthquake, storm, hurricane or other natural disasters), pandemic, epidemic, war, invasion, act of foreign enemies, hostilities (regardless of whether war is declared), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalisation, government sanction, blockage, embargo, labor dispute, strike, lockout or interruption or failure of electricity or telephone or other telecommunication service or any other cause beyond the reasonable control of that Party.

21.2 Upon the occurrence of any condition described in the foregoing, the Party whose performance is affected shall give written notice to the other Party describing such condition, and the Parties shall promptly confer, in good faith, to agree upon equitable, reasonable action to minimize the impact on both parties of such condition, including, without limitation, implementing disaster recovery procedures. The Parties agree that the Party whose performance is affected shall use commercially reasonable efforts to minimize the delay caused by the force majeure events and recommence performance of its obligations. If the delay caused by the force majeure event lasts for more than one (1) month, the Parties shall negotiate an equitable modification of the obligations of that Party which due to be performed but so delayed by the force majeure event. If the Parties are unable to agree upon an equitable modification within fourteen (14) days after such one (1) month has expired, either Party may elect to terminate this Agreement forthwith on giving notice in writing to the other party in which event neither party shall be liable to the other by reason of such termination, save that the Customer shall pay Astoria a reasonable sum in respect of any work carried out by it prior to such termination and for that purpose Astoria may deduct such sum from any amounts previously paid by the Customer pursuant to any Products and Services provided by Astoria to the Customer (the balance (if any) of which shall be refunded to the Customer whether paid by way of deposit or otherwise).

22    LIMITATION OF LIABILITY

22.1 Except in respect of injury to or death of any person or any other liability which cannot be limited or excluded by law, the entire financial liability of Astoria to the Customer in respect of any (i) breach of this Agreement; (ii) the provision of such Products and Services and use thereof of the same or any part by the Customer; and (iii) any representation, statement or tortuous act or omission arising under or in connection with this Agreement, shall not exceed the value of this Agreement.

22.2 If Astoria is prevented or delayed from performing its obligations under this Agreement by reason of any act or omission of the Customer (other than a delay by the Customer for which the Customer is excused under Clause 21) then the Customer will pay to Astoria all reasonable costs, charges and losses sustained or incurred by Astoria as a result (including without limitation the cost of storage and insurance of the Equipment), subject to the same limit of liability under Clause 22.1. Astoria shall promptly notify the Customer in writing of any claim which it may have under this Clause giving such particulars thereof as it is then able to provide.

22.3 The Customer shall indemnify Astoria and in addition hold Astoria harmless against any and all losses, liabilities, damages and expenses (including legal fees) resulting from the (a) operation, use, condition, liens against, or return of the Equipment and (b) any breach by the Customer of any of its obligations hereunder.

22.4 Astoria shall not be liable to the Customer (or those claiming through the Customer) for any direct or indirect loss, damage, expense of any kind or nature howsoever caused (including any indirect, incidental, special or consequential damages) by the provision of any Products and Services by Astoria to the Customer, including any loss of profits, loss of contracts, business interruptions or otherwise, whether arising from negligence, breach of contract or otherwise.

22.5 The Customer acknowledges and agrees that (i) Astoria shall not be liable or responsible for the use or maintenance of any Products and Services, its failure to operate, any repairs or service to it, any interruption of service or loss of use of the Products and Services, or of any loss and or corruption of any of the Customer’s data or information in connection with the use of the Products and Services, and (ii) the remedies available to the Customer herein provided for under this Agreement are the Customer’s sole and exclusive remedies.

23    INTELLECTUAL PROPERTY

23.1 The Customer acknowledges that the ownership of all Intellectual Property Rights in the Products and Services or any information, materials or assets supplied to the Customer by Astoria whether or not such information, materials or assets are supplied pursuant to either Party’s obligations hereunder shall remain vested in Astoria (“Intellectual Property”).  To the extent, if any, that the Customer may be deemed the owner or author of such Intellectual Property or any portion thereof, the Customer hereby fully and irrevocably assigns, transfers, conveys and relinquishes all rights, title and interest therein to Astoria. Further, the Customer agrees that it shall have no right to attach its name or trademarks, logos or trade names to any such Intellectual Property so provided.

23.2 Without prejudice to the generality of the foregoing, Astoria shall indemnify the Customer and keep the Customer fully and effectively indemnified on demand against all costs, claims, demands, expenses and liabilities of whatsoever nature arising out of or in connection with any claim that the normal use or possession of the Intellectual Property infringes the Intellectual Property Rights (including without limitation any patent, copyright, registered design, design right or trademark) of any unaffiliated third party, subject to the following conditions:

(a)    the Customer shall promptly notify Astoria in writing of any allegations of infringement of which it has notice and will not make any admissions without Astoria’s prior written consent nor take any step (or omit to take any step) which would prejudice Astoria’s defence of the claim;

(b)    the Customer, at the Astoria’s request and expense, shall allow the Astoria to conduct and/or settle all negotiations and litigation resulting from any such claim;

(c)    the Customer shall, at the request of Astoria, afford all reasonable assistance with such negotiations or litigation, and shall be reimbursed by Astoria for any reasonable out of pocket expenses incurred in so doing.

23.3 The indemnity given under foregoing provision above will not apply to infringement arising out of the use of the Intellectual Property or any part thereof in combination with any equipment and/or software or programs not supplied or approved by Astoria for use with the Intellectual Property or by reason of any modification or alteration made to the equipment other than by Astoria or with Astoria’s prior written consent.

23.4 If the Customer’s normal use or possession of the Intellectual Property is held by a court of competent jurisdiction to constitute an infringement of a third party’s intellectual property rights or if Astoria is advised by legal counsel that such use or possession is likely to constitute such an infringement then Astoria shall promptly and at its own expense:

(a)    procure for the Customer the right to continue using and possessing the Intellectual Property; or

(b)    modify or replace the Intellectual Property (without detracting from its overall performance) so as to avoid the infringement (in which event Astoria shall compensate the Customer for the amount of any direct loss and/or damage sustained or incurred by the Customer by reason of such modification or replacement); or

(c)    if (a) or (b) cannot be accomplished on reasonable terms, remove the Intellectual Property from the Location and refund the Price to the Customer on a pro-rata basis.

23.5 The foregoing states Astoria’s entire liability to the Customer in respect of the infringement of the intellectual property rights of any third party.

24    CONFIDENTIALITY

24.1 Each Party undertakes with the other Party that it shall not, and shall procure that its officers, employees, agents or representatives or otherwise shall not, during the continuance of this Agreement or after its termination, disclose, divulge, impart or reveal to any person or company any Confidential Information which may come to its or their knowledge during the continuance of this Agreement, and shall not use or attempt to use any such information in any manner which may injure or cause loss either directly to the other Party’s business or may be likely to do so, unless the express written consent of the other party has been obtained.

24.2 In this Agreement, ‘Confidential Information’ shall mean any and all information which:

(a)   is marked ‘confidential’ or by its nature intended to be exclusively for the knowledge of the recipient alone;

(b)   relates to or concerns the business systems and techniques, know-how, customer lists, supplier lists, client lists, trade and business records, manuals, software, data files or materials and other confidential, privileged or proprietary information, including without limitation, information and materials relating to the financial condition, financial arrangements, business, business transactions, operations or prospects;

(c)   any information which may be or may have been acquired or obtained as a result of entering into or performing any obligations under this Agreement or may at any time after the date of this Agreement acquire or obtain in relation to the clients, business or affairs; and

(d)   all other information which the other Party considers confidential or proprietary, including but not limited to, products, intellectual property, business plans, employee non-public private data, and information concerning a third party.

25    WAIVERS

25.1 No failure or delay by any Party in exercising any right, power or discretion hereunder shall impair such right, power or discretion or operate as a waiver thereof, nor shall any single or partial exercise of any right, power or discretion preclude any further exercise thereof of the exercise of any such right, power or discretion or the exercise of any other right power or discretion. The rights, powers and remedies provided herein are cumulative and do not exclude any other rights, powers or remedies provided by law.

26    ENTIRE AGREEMENT AND AMENDMENTS

26.1 This Agreement embodies all the terms and conditions agreed upon amongst the Parties as to the subject matter of this Agreement and superseded and cancels in all respects all previous agreements and undertakings, representations, warranties, assurances and arrangements of any nature, if any, amongst the Parties with respect to the subject matter hereof, whether such be written or oral. None of the provisions herein may be varied or amended except by the written agreement of the Parties signed by or on behalf of each of the Parties.

27    ASSIGNMENT

27.1 The Customer shall not throughout the term of this Agreement assign, delegate, sub-contract, mortgage, charge or otherwise deal with or transfer any or all of its rights and obligations under this Agreement in any way without the consent and approval of Astoria.

27.2 The Customer hereby acknowledges and consents that Astoria may, at any time or from time to time, assign, charge, transfer or otherwise deal in any or all of its rights and obligations under this Agreement.

28    SEVERABILITY

28.1 If any provision of this Agreement is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of this Agreement and the remainder of the provision in question (if any) shall not be affected.

29    THIRD PARTIES

29.1 This Agreement is entered into by the Parties hereto exclusively for the benefit of the Parties hereto. Nothing in this Agreement shall confer or be deemed to confer any right or benefit on any third party (including any third party identified or introduced by the Parties for the purposes of this Agreement) and nothing in this Agreement shall be enforceable or relied upon in any way by any third party against any Party hereto. Notwithstanding any provision herein, the Parties hereto may at any time and from time to time, by mutual agreement, vary or rescind this Agreement without the consent of any third party.

30    GOVERNING LAW AND JURISDICTION

30.1 This Agreement shall be governed by and construed in accordance with the laws of Singapore, and the parties hereby submit to the non-exclusive jurisdiction of the courts of the Republic of Singapore.

31    INDEPENDENT CONTRACTOR

31.1 The relationship between Astoria and the Customer is that of two independent contractors and not that of principal and agent. Neither the Customer nor any employee or agent of the Customer is an employee or agent of Astoria for any purposes whatsoever nor do they have any right or authority to assume or create on behalf of Astoria any commitment, expense or liability whatsoever and nothing herein shall constitute any partnership between the parties hereto.

32    NOTICES

32.1 Any notices, requests, demands or other communications required or permitted to be given or made hereunder shall be in writing and delivered personally or sent by prepaid registered post, telefax addressed to the intended recipient thereof at its address or telefax number set out below (or such other address ore telefax number as any Party may from time to time notify the other).

Astoria

 

 
Mailing Address: 30 Toh Guan Road #08-02,   Singapore 608840
 

Fax Number

 

+65 6234 4671

 

[Customer]

 
 

Mailing Address:

 

[●]

 

Fax Number

 

[●]

32.2 Deemed Delivery

Any notices, requests, demands or other communications shall be deemed to have been duly given or served if:

(a)    by prepaid registered post:

(i)    in the case of domestic mail, two (2) Business Days after posting; and

(ii)    in the case of international mail, four (4) Business Days after posting;

in proving the same it shall be sufficient to show that the envelope containing the same was duly addressed, stamped and posted;

(b)   by telefax, immediately if transmitted error-free, provided that a confirming copy thereof is sent by prepaid registered post to the other Party at the address referred to this Clause within forty-eight (48) hours after transmission.

33    PRESS RELEASE

33.1 The Customer agrees that Astoria may use and disclose the Customer’s name and the nature of any such Agreement entered into between the parties in any of Astoria marketing materials including a public press release.

34    REMEDIES

34.1 No remedy conferred by any of the provisions under this Master Agreement is intended to be exclusive of any other remedy which is otherwise available at law, in equity, by statute or otherwise, and each and every other remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law, in equity, by statute or otherwise. The election of any one or more such remedies by any of the parties hereto shall not constitute a waiver by such party of the right to pursue any other available remedies.