General Conditions of Sale of Software, Services and Equipment
1.1 In these Conditions:
“Agreement” means the contract between Astoria and the Customer (subject to the provisions of Clause 3) for the purchase and sale of any Equipment, Software and/or Service Offering, comprising Astoria’s quotation / proposal / order form / statement of work or other document which describes Astoria’s offering (including any documents incorporated by express reference thereon, and any superceding written agreement pursuant to Clause 3.3(a)) signed by both Astoria and the Customer.
“Astoria” means Astoria Solutions Pte Ltd and/or any of its branch, subsidiary or group company as may be appropriate.
“Authorised User” means an employee, agent or independent contractor of the Customer, or of a person to whom the Customer has outsourced services, who is authorised to access any Software or Subscription Service as either a named or concurrent user.
“Business Day” means a working day other than a customary weekend day or public holiday during which commercial banks are open for non-automated business in the relevant country.
“Conditions” means these terms and conditions for the sale and purchase of any Equipment, Software and/or Service Offering which shall be incorporated into and form part of any Agreement.
“Confidential Information” means 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 those relating to the financial condition, financial arrangements, business, transactions, operations or prospects of a Party; (c) was acquired or obtained as a result of entering into or performing any obligations under the Agreement or was at any time after the date of the Agreement acquired or obtained, including Customer Data; and (d) all other information which the other Party considers confidential or proprietary, including product information, intellectual property, business plans, employee data, and information concerning any third parties.
“Customer” means the person, firm or company who accepts and signs off on any Agreement.
“Customer Data” means any and all data, information and materials that are uploaded by or for the Customer or that are accessed by Astoria in connection with the use or Astoria’s provision of any Equipment, Software or Service Offering, including personal information, photographs, illustrations, designs, icons, articles, audio clips, trademarks, logos, and video clips, but excluding any non-personally identifying information.
“Customer’s Default” means a default of the Customer in the manner described in Clause 7.11.
“Delivery Date” means the date as stated in the Agreement, on which delivery, performance or instalments of the Equipment, Software and/or Service Offering is to take place, or any extended date for the same.
“Documentation” means user documentation provided by Astoria (whether in electronic or physical form) for use with any Equipment, Software or Subscription Service, as may be periodically updated.
“Equipment” means computers, IT hardware or any other form of technology hardware (including any instalment of the Equipment or any parts of them) which Astoria is to supply (whether through a sale or lease) in accordance with the Agreement.
“Ex Works” means that the Equipment and/or Software is placed at the disposal of the Customer at Astoria’s premises or another agreed named place, not cleared for export and not loaded on any collecting vehicle.
“Party” means Astoria or the Customer and “Parties” means both of them.
“Professional Service” means the provision of work or other professional services (including installation, maintenance support, training, consulting and development) in relation to any Equipment, Software or Subscription Service which are developed and/or supplied by Astoria or for which Astoria is an authorised partner (does not include the Subscription Services).
“Service Offering” means any Subscription Service and/or Professional Service (which may also include any ancillary Equipment or Software) to be provided by Astoria as per the Agreement.
“Site” means the address for delivery, that part of the address for delivery where any Equipment, Software is to be installed and operated, or where any Service Offering is to be performed.
“Software” means any Astoria or Astoria-distributed software items, database structures and communication protocols which are comprised or included in or related to the provision of any Equipment and/or Subscription Service.
“Subscription Services” means the hosted customer experience solutions identified in an Agreement, and any modifications to it periodically made by Astoria (does not include the Professional Services).
“Work Product” means the object code, source code, flow charts, documentation, information, reports, test results, findings, ideas and any works and other materials developed by Astoria in providing any Professional Services to the Customer.
2.1 Astoria and/or its licensors own all intellectual property rights in the Equipment, Software, Subscription Services, Documentation and Work Products. Subject to the terms and conditions of any Agreement with the Customer, Astoria shall grant to the Customer a limited, non-exclusive, non-transferable and revocable licence to install and use the Equipment, Software, Documentation and Work Product, and to access any Subscription Services for the term specified and solely for the Customer’s own internal use. All Equipment, Software, Subscription Services, Documentation and Work Products are the property of Astoria or its licensors and are protected by law.
3.1 Astoria shall sell and the Customer shall purchase any Equipment, Software and/or Service Offering in accordance with the Agreement.
3.2 These Conditions are deemed to be incorporated into and form part of the Agreement and shall be binding between Astoria and the Customer.
3.3 In the event of any inconsistency between these Conditions and other documents forming part of the Agreement, the following order of priority shall apply:
(a). Any supplemental written agreement between the Parties where the Parties agree that any of the provisions in these Conditions should be superceded;
(b). Astoria’s quotation / proposal / order form / statement of works or other document which describes Astoria’s offering (including any documents incorporated by express reference thereon);
(b). these Conditions.
3.4 No variation to these Conditions shall be binding unless agreed in writing and signed by the authorised representatives of the Parties. Any varying terms proposed by the Customer in any quotation / proposal / order form / statement of works or other document which describes Astoria’s offering shall not become part of the Agreement unless agreed to in writing by Astoria.
4.1 No quotation / proposal / order form / statement of works or other document which describes Astoria’s offering shall be deemed to be accepted by Astoria unless confirmed in writing.
4.2 The Customer is responsible for ensuring the accuracy of the terms of any Agreement (including any applicable specifications).
4.3 The quantity, quality and description of and any specification for any Equipment, Software and/or Service Offering shall be those set out in the Agreement. Astoria reserves the right to make any changes in the specifications of any Equipment, Software and/or Service Offering which are required to conform to any applicable statutory requirements or, where the Equipment, Software and/or Service Offering is to be supplied to the Customer’s specification, which do not materially affect their quality or performance, subject to notifying and obtaining the Customer’s consent at least 7 Business Days days prior to Delivery Date.
4.4 An Agreement may not be cancelled, varied or suspended by the Customer unless with the agreement in writing of Astoria and on terms that the Customer shall indemnify Astoria in full against all cost and expenses incurred by Astoria as a result of the cancellation, variation or suspension.
5.1 The Equipment, Software and/or Service Offering to be provided by Astoria under the Agreement are in consideration of payments made by the Customer to Astoria.
5.2 The price of the Equipment, Software and/or Service Offering shall be as stated in the Agreement. Unless there is any variation, all prices quoted are valid for the period stated (and if no period is stated, for up to 30 calendar days from the date of the Agreement).
5.3 Astoria may vary the prices if there is any variation to the Agreement, subject to giving written notice of such variation to the Customer at least 7 Business Days prior to Delivery Date. The Agreement shall be deemed to be varied accordingly by such notice of variation unless the Customer shall within 4 Business Days of the receipt of such notice terminate the Agreement by giving written notice to Astoria in which event neither Party shall have any liability to the other in respect of such termination.
5.4 Except as otherwise agreed in writing, all prices quoted are on an Ex Works basis, and where Astoria agrees to deliver the Equipment, Software and/or perform any Service Offering other than at Astoria’s premises, the Customer shall be liable to pay the charges for transport, packaging, insurance and other incidental costs incurred i.e. personnel travel costs, costs for transporting tools and equipment etc. upon presentation of the relevant receipts and invoices by Astoria.
5.5 Where any Equipment, Software and/or Service Offering have been wrongly delivered, wrongly performed, over supplied or where such charges have been incurred as a result of Astoria’s performance of obligations during the warranty period, Astoria shall bear the cost of delivery and/or performance.
5.6 All prices are exclusive of any applicable goods and services tax or other government taxes, charges, duties or fees which shall be paid by the Customer.
6.1 The purchase price is due immediately upon presentation of the relevant invoice unless otherwise indicated in the invoice.
6.2 If any sum payable is not paid within the agreed period, then without prejudice to Astoria’s other rights and remedies, Astoria reserves the right to:
(a). suspend the provision of the relevant Equipment, Software and/or Service Offering and terminate the same without being liable for any losses incurred by the Customer, and where applicable, demand that all Equipment, Software, Documentation and Work Products are returned forthwith;
(b). in relation to any Service Offering, deem all unpaid fees for the remainder of any term immediately due and payable;
(c). at its sole discretion, apply any monies received from the Customer in relation to the Agreement or any other contract between the Parties, including deposits or security payments, towards the payment of the relevant invoice;
(d). charge the Customer interest on the amount unpaid on a daily basis at the rate of 2% per month, from the due date until payment in full is made (both dates inclusive); and/or
(e). charge the Customer all costs of collection of overdue fees, including reasonable attorneys’ fees.
6.3 Notwithstanding the above, Astoria reserves the right to suspend performance or withhold delivery if in its reasonable opinion, Astoria determines that the Customer’s credit worthiness is unsatisfactory or that the Customer will not be able to pay the amounts due and payable under the Agreement. Astoria shall inform the Customer in writing of such suspension or withholding of delivery.
6.4 The Customer is not entitled to withhold from, set off against or otherwise reduce any payments due to Astoria unless agreed in writing by Astoria.
7.1 Unless otherwise agreed in writing, all Equipment and Software shall be delivered Ex Works. Astoria may supervise the installation of any Equipment and/or Software by the representatives of the Customer where requested.
7.2 Where any Equipment, Software and/or Service Offering are to be delivered or performed in separate phases, each delivery or performance shall constitute a separate contract and failure by Astoria to deliver or perform any one or more of the phases or any claim by the Customer in respect of any one or more phases shall not entitle the Customer to treat the Agreement as a whole as repudiated.
7.3 Astoria reserves the right prior to delivery of any Equipment, Software or performance of any Service Offering to substitute any item with an alternative item provided that such substitution will not materially affect the performance and will not result in any increase in the purchase price. Astoria shall inform the Customer of such substitution prior to delivery.
7.4 Where in relation to the provision of any Equipment, Software or Service Offering, works need to be performed by Astoria at a Site, the Customer shall at its own cost and expense, take all necessary measures prior to delivery to prepare the Site and ensure that the Site is suitable and ready for the commencement of the works by Astoria. The Customer shall 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 without undue delay or impediment, including:
(a). granting Astoria’s personnel adequate access to the Site (including assisting with all visas, permits and passes);
(b). providing such assistance as may be required by Astoria in obtaining import, export and customs clearance for any Equipment or Software and the tools of Astoria’s personnel which are required for the installation of any Equipment or Software or the performance of any Service Offering on Site; and
(c). providing adequate working space and such other equipment (including protective clothing and devices, programming devices, measurement devices, test resources and tools etc), materials (including documentation and information on existing systems, building plans, structural data, concealed pipelines and other installations etc), manpower, utilities and facilities (including suitable storage space and sanitary facilities) as may be required by Astoria’s personnel for the delivery, assembly, installation, commissioning and performance of any Equipment, Software and/or Service Offering.
7.5 Where the Customer does not either provide or fulfil the above required obligations to the satisfaction of Astoria, Astoria shall be entitled to carry out all necessary works at the expense of the Customer provided the Customer has been informed of the non-compliance and has failed to remedy this within the rectification period set out in such notice of non-compliance.
7.6 The Customer shall not move or transport any Equipment, Software or part thereof from the Site, change the installation site, or otherwise permit any physical alteration or modification of the Equipment or Software without Astoria’s prior written consent.
7.7 Where any Equipment, Software and/or Subscription Service are supplied to the Customer and no assembly, installation, erection and commissioning is required, the Customer is obliged to inspect the Equipment, Software and/or Subscription Service upon delivery and shall notify Astoria within 1 week of the Delivery Date if there are any defects. Such notification of any defects shall be accompanied with relevant supporting evidence. If the Customer fails to notify Astoria of the defects within 1 week of the Delivery Date, it will be deemed to have accepted the Equipment, Software and/or Subscription Service.
7.8 Where installation, erection or commissioning is required, Astoria shall, within 1 week after installation, submit the Equipment, Software and/or Subscription Service to Astoria’s standard installation tests to ensure that they are in working order. Astoria reserves the right to take rectification action, including repeating any tests or to substitute such Equipment, Software and/or Subscription Service or parts thereof, should any Equipment, Software and/or Subscription Service or part thereof fail the installation tests, subject to informing the Customer of such substitution. Once the Equipment, Software and/or Subscription Service have passed the installation tests, Astoria shall declare them ready for acceptance and the Customer shall accept the Equipment, Software and/or Subscription Service within 1 week from such declaration. If the Customer does not notify Astoria of any defects within 1 week of the declaration for acceptance, it will be deemed to have accepted the Equipment, Software and/or Subscription Service.
7.9 The Customer shall not be entitled to withhold acceptance for:
(a). minor defects which do not materially affect the usage or functioning of the Equipment, Software and/or Subscription Service;
(b). defective installation or erection which were not carried out by Astoria; or
(c). reasons which are not within the reasonable control of Astoria.
7.10 The Delivery Date may be extended, at Astoria’s discretion and by written notification to the Customer, by such further periods as may reasonably reflect any delay which will or may be or has been caused by any of the following events:
(a). Force majeure;
(b). Any variation or suspension of the Agreement;
(c). Customer’s Default (as defined in Clause 7.11 below); or
(d). Any other circumstances where Astoria is entitled under law to have an extension of time.
7.11 Astoria shall not be liable for any delays due to an act or omission of the Customer, including any failure of the Customer to comply with any of its obligations under the Agreement (“Customer’s Default”). Where there is a Customer’s Default, Astoria shall be entitled to claim such increase in costs incurred by Astoria as a result of the Customer’s Default.
8.1 Unless otherwise agreed in writing between the Parties, risk of damage to or loss of the Equipment and/or Software shall pass to the Customer as soon as they are delivered.
8.2 Notwithstanding the above, in the case of a sale of Equipment and/or Software, the legal and beneficial ownership of and title in the Equipment and/or Software shall only pass to the Customer on payment in full and in cleared funds of the purchase price and any other sums which may then be due. In the case of a lease, Astoria shall at all times retain title to the Equipment and/or Software and the Customer shall not directly or indirectly create any mortgage, pledge, lien, charge, encumbrance, or claim on or with respect to the Equipment and/or Software.
8.3 Until such time as title in the Equipment and/or Software passes to the Customer, Astoria shall be entitled at any time to require the Customer to deliver up the Equipment and/or Software and, if the Customer fails to do so, Astoria shall be entitled to enter the premises of the Customer or any third party where the Equipment and/or Software is stored or installed and repossess the same. Until such time as in accordance with this provision, the Equipment and/or Software shall not be pledged or given as security or resold by the Customer.
8.4 The Customer shall reimburse Astoria for any expenses and costs to Astoria in recovering any Equipment and/or Software arising from any non-compliance by the Customer with the terms of Clause 8.3.
9.1 The Customer acknowledges that the ownership of all intellectual property rights in the Equipment, Software, Subscription Services, Documentation and Work Products (“Intellectual Property”) shall remain vested in Astoria. The Customer shall have no right to attach its name or trademarks, logos or trade names to any such Intellectual Property.
9.2 Astoria shall indemnify the Customer 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 of any unaffiliated third party, subject to the following conditions:
(a). the Customer shall notify Astoria in writing within 30 calendar days of receiving any allegations of infringement 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 or to make any settlement or compromise;
(b). the Customer, at Astoria’s request and expense, shall allow 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, including providing all communications and correspondence related to the claim, and shall be reimbursed by Astoria for any reasonable out of pocket expenses incurred in so doing.
9.3 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 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 such that it becomes non-infringing; or
(c). remove the Intellectual Property and refund to the Customer the price (or a proportionate part of the price) of the Equipment, Software, Subscription Service, Documentation or Work Products (or any part thereof) which contains the infringing Intellectual Property.
9.4 The indemnity given under this clause will not apply in any of the following events:
(a). any use of the Equipment, Software, Subscription Service, Documentation or Work Products or any part thereof in combination with any equipment and/or software not supplied or approved by Astoria;
(b). any infringement due to Astoria having followed a design or instruction furnished by the Customer;
(c). any modification or alteration made to the Equipment, Software, Subscription Service, Documentation or Work Products other than by Astoria or with Astoria’s prior written consent;
(d). the Customer entering into any compromise or settlement in respect of any action or proceeding relating to the use of the Intellectual Property without Astoria’s prior consent in writing;
(e). any refusal by the Customer to install and/or use a non-infringing version of any Equipment, Software, Subscription Services, Documentation or Work Product offered by Astoria; or
(f). any claim falling more than 3 years from the start of the Warranty Period.
9.5 The foregoing states Astoria’s entire liability to the Customer in respect of the infringement of the intellectual property rights of any third party.
10.1 The Customer acknowledges and agrees that, unless otherwise stated:
(a). all Software provided by Astoria under the Agreement are protected by intellectual property laws and treaties;
(b). all Software contains valuable confidential and proprietary information and trade secrets of Astoria or its licensors which may not be disclosed to third parties; and
(c). all ownership, license, intellectual property, and other rights and interests in the Software (including patches and updated versions) shall remain the sole and exclusive property of Astoria which provision and use is subject to the Customer’s compliance of these Conditions.
10.2 Where the Software is located on servers that are controlled by Astoria, the Customer may access the Software but has no right to receive a copy of the source code to the Software.
10.3 The Software shall only be installed on medium approved or provided by Astoria for use with the Software under the Agreement. The Customer is prohibited from making any copies of the Software or use the Software on non-approved media or with non-approved Equipment unless Astoria’s prior written consent is obtained.
10.4 Nothing in these Conditions 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 the Agreement. All rights to the Software not expressly granted in the Agreement shall remain reserved.
10.5 Except as expressly permitted in writing between the Parties, the Customer shall not, and shall not permit any other party to:
(a). assign, transfer, loan, sell, rent, lease, sublicense, redistribute, export or otherwise transfer the Software and/or Equipment to any third party in whole or in part;
(b). charge a fee to any third party for access to or use of the Software and/or Equipment;
(b). use the Software in a manner that violates any applicable law or these Conditions, including to (i) attempt unauthorized access to any other Astoria systems that are not part of the Software; (ii) permit any third party to benefit from the use or functionality of the Software via a rental, lease, timesharing, service bureau, hosting service, or other arrangement; (iii) remove or alter any copyright, trademark or proprietary notice in the Software; or (iv) make the Software available on any file-sharing or application hosting service; or
(d). copy, duplicate, modify, adapt, merge, translate, reverse-engineer, deconstruct, disassemble or otherwise attempt to discover the confidential information or trade secrets (including the source code) in the Software and/or Equipment.
10.6 The Customer is further prohibited from creating any derivative works of the Software whether from any:
(a). modification, change, translation, addition, enhancement, extension, upgrade, update or improvement to the Software;
(b). work resulting from the porting of the Software to a different operating environment or platform;
(c). new software programmes based on the Software or any identifiable portion of the Software (whether or not combined with any other new or pre-existing works); or
(d). other work constituting a derivative of the Software under applicable copyright laws without the prior written approval of Astoria.
10.7 The Customer acknowledges and agrees that Astoria shall own all such derivative works created by the Customer whether or not Astoria’s prior written approval was sought and granted pursuant to their creation.
10.8 Astoria may terminate the Customer’s licence upon notice of breach of these licence terms. The Customer must destroy all copies of the Software immediately upon notice of termination.
10.9 Astoria may from time to time provide patches and fixes to the Software during the term of the Agreement at no additional cost. However, this shall not include the provision of any major releases or new versions of the Software, additional functionality, or custom programming, which may be provided at an additional cost.
10.10 The Customer may only use the Software according to the limitations and only for the period of use as agreed between Astoria and the Customer, or in accordance with Astoria’s then-current product discontinuation policies, as updated from time to time (including limitations on the number of Authorised Users, number of connected systems, number of employees etc.).
11.1 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 the Customer (“Third Party Software”). The Customer agrees that:
(a). it will use such Third Party Software in accordance with the Agreement and instructions from Astoria;
(b). 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;
(c). no Third Party Licensor will have any obligation or liability to the Customer as a result of the Agreement or the use of such Third Party Software;
(d). such Third Party Software may be licensed under license terms which grants the Customer additional rights or contain additional restrictions in relation to such materials, beyond those set forth in the Agreement, and such additional license rights and restrictions as may be described or linked to within the applicable Software.
11.2 The Customer is prohibited from causing any other 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. 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 and Astoria shall have no obligation or liability howsoever arising under the Agreement in relation to the same.
11.3 Where Software is hosted on a third-party platform by 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 the Agreement, except for scheduled system back-ups or other on-going maintenance as required and scheduled in advance by Astoria, or any unforeseen cause beyond Astoria’s reasonable control (such as internet service provider or communications network failures, denial of service attacks or similar attacks, or any other force majeure events).
12.1 Where Astoria has agreed to provide Subscription Services, the Customer acknowledges that the Software is located on servers that are controlled by Astoria. The Customer may access the Subscription Services only via the Software, but has no right to receive a copy of the object code or source code to the Software.
12.2 To access the Subscription Services, the Customer must have a high-speed internet connection, and hardware and software that is compatible with the Subscription Services, as set out in the accompanying Documentation. Astoria shall not be liable for any defective performance where the operating conditions as per the Documentation have not been complied with.
12.3 Astoria regularly upgrades and updates its Subscription Services. Some of these changes will occur automatically, while others may require the Customer to schedule and implement the changes. Some changes may require the Customer to upgrade its equipment, hardware or software in order to make efficient use of its Subscription Services. Astoria will provide the Customer with advance notification in this event.
12.4 The Subscription Services provided to the Customer are non-exclusive, non-transferable (except as provided in these Conditions), and are for Customer’s internal business use only. The Customer may not:
(a). transfer to any other person any of its rights to use the Subscription Services;
(b). sell, rent or lease the Subscription Services;
(c). make the Subscription Services available to anyone who is not an Authorised User;
(d). create any derivative works based upon the Subscription Services or Documentation;
(e). copy any feature, design or graphic in, or reverse engineer the Software;
(f). access the Subscription Services in order to build a competitive solution or to assist someone else to build a competitive solution;
(g). use the Subscription Services in a way that violates any criminal or civil law;
(h). load test the Subscription Services in order to test scalability; or
(i). exceed the usage limits listed in the Agreement.
12.5 If Customer initially purchases Subscription Services for a term, and subsequently orders additional products, the purchase price for the additional products shall be pro-rated so that the added subscriptions terminate on the same day as the initial subscription.
13.1 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 begin from the agreed commencement date and continue until such time the maintenance and support services by Astoria is terminated by either Party in accordance with the Agreement.
(b). Astoria shall provide the following maintenance services in respect of the Equipment to the Customer:
(i). Preventative Maintenance – Astoria shall make visits to the Site 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 the specification as may be mutually agreed between the Parties.
(ii). Corrective Maintenance – Upon receipt of notification from the Customer that the Equipment has failed or is malfunctioning, Astoria shall undertake 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.
13.2 The Maintenance Services exclude any maintenance of the Equipment which is necessitated due to the Customer’s neglect or fault or due to a cause other than fair wear and tear, such as wilful damage, negligence, abnormal working conditions, accidents, acts of God, wars, acts of violence, failure to follow Astoria’s instructions, misuse, alteration or repair of the Equipment by non-Astoria personnel, improper or inadequate maintenance by the Customer (such as subjecting the Equipment to unusual physical or electrical stress, failure or fluctuation of electric power, unsuitable air conditioning, humidity control or other environmental conditions) or any fault in any attachments or associated equipment which are not supplied by Astoria or which do not form part of the Equipment.
13.3 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.
13.4 The Maintenance Services provided by Astoria under these Maintenance Terms shall exclude:
(a). the provision of services other than at the Site (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 damaged as a result of any breakdown of or fault in the Equipment or Software.
13.5 Astoria reserves the right to replace any Equipment 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.
13.6 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.
13.7 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.
13.8 The Customer shall have the option to purchase additional maintenance and support services by Astoria for any Equipment or Software at rates specified in the Agreement or otherwise as agreed between the Parties.
13.9 Astoria reserves the right to suspend or terminate the provision of any maintenance and support services if any sum payable is not paid within the agreed period and may, at its sole discretion, apply any monies received from the Customer in relation to the Agreement or any other contract between the Parties towards the payment of the relevant invoice; and/or charge the Customer interest on the amount unpaid on a daily basis at the rate of 2% per month, from the due date until payment in full is made (both dates inclusive).
14.1 In the case of a lease of Equipment, the Customer shall cause the Equipment 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.
14.2 The Customer shall not copy, move or transport any leased Equipment or part thereof from the Site, change the installation site, or otherwise permit any physical alteration or modification of the Equipment without Astoria’s prior written consent.
14.3 The Customer shall comply with all governmental laws, rules and regulations relating to the use of the Equipment and shall be responsible for obtaining all permits required to operate the Equipment at such Site.
14.4 Astoria reserves the right to, at any time, enter the Customer’s premises or Site for the purposes of inspecting, examining or repairing the Equipment.
14.5 The Customer shall bear the responsibility of ensuring and keeping the leased Equipment adequately insured against loss by fire, theft, and all other hazards and Astoria shall, at its absolute discretion, require the Customer to provide proof of insurance.
14.6 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.
14.7 Upon the completion of the lease term or any renewal, extension, or otherwise prolongation thereof, the Customer shall return the Equipment to Astoria within 7 Business 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). In the absence of any affirmative election by the Customer to effect such return and the actual receipt of all Equipment 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 prevailing list prices of Astoria.
14.8 Notwithstanding any other provisions in the Agreement, in the event of termination by Astoria due to Customer’s Default, the Customer shall immediately return the Equipment to Astoria no later than 7 Business Days after such termination. Failure to do so shall entitle Astoria to enter the premises of the Customer or any third party where the Equipment are stored or installed and repossess the Equipment. Until such time as in accordance with this provision, the Equipment shall not be pledged or given as security or resold by the Customer. The Customer shall indemnify Astoria against 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.
15.1 Astoria warrants that all Equipment and/or Software will correspond with their specifications at the time of delivery and will be free from defects in material, workmanship and installation for a period of 12 months (“Warranty Period”) from the Delivery Date except where otherwise stated in writing.
15.2 If Astoria receives written notice from the Customer of any defect in the Equipment and/or Software within the Warranty Period, Astoria shall repair or replace the Equipment and/or Software or such parts of it as are defective or otherwise remedy such defect at its own cost.
15.3 If the Equipment and/or Software is repaired or replaced during the Warranty Period, the period of warranty for replacements shall run for 3 months from the date of such repair or replacement (“Extended Warranty Period”) or up until the expiry of the original Warranty Period, whichever is the longer.
15.4 Astoria shall be under no liability under these Conditions whatsoever:
(a). in respect of any defect in the Equipment and/or Software arising from any customisation in drawing, design or specification supplied by the Customer;
(b). in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, accident, failure to follow Astoria’s instructions, misuse, alteration or repair of the Equipment and/or Software without Astoria’s approval, or improper or inadequate maintenance by the Customer (such as subjecting the Equipment and/or Software to unusual physical or electrical stress, failure or fluctuation of electric power, unsuitable air conditioning, humidity control or other environmental conditions or by removing or altering the original identification marks);
(c). in respect of minor deviations from the drawings, design or specifications supplied by Astoria, insignificant deviations from the agreed quality or minor impairment of usability which do not materially affect the commercial use of the Equipment and/or Software;
(d). if the Equipment and/or Software have been used in a manner or under a circumstance or for a purpose not reasonably to be inferred by Astoria or disclosed to Astoria;
(e). if the total price for the Equipment and/or Software has not been paid by the due date for payment;
(f). for any delay in the delivery or installation of the Equipment and/or Software if such delay arises or results from variation of the Agreement pursuant to Clause 4; or
(g). if the Customer permits persons other than Astoria’s personnel to effect any replacement of parts, maintenance adjustments or repairs to the Equipment and/or Software.
15.5 In relation to Software, the 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). deficiencies or damages in any software, hardware, firmware, data or technology not licensed, provided or approved by Astoria in writing;
(e). failure of any telecommunications medium or third party connectivity used by the Customer or necessary for the provision or use of the Software;
(f). failure of the Customer’s own computer system or hosting system; or
(g). failure of the Customer and/or user to comply with documentation provided by Astoria.
15.6 Further, the Customer acknowledges that Astoria shall not be 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 that the Software and documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
15.7 For any claims for defects in any Equipment and/or Software, Astoria’s sole liability shall be to repair or replace the Equipment and/or Software or parts thereof free of charge, or refund to the Customer the price of the defective Equipment and/or Software (or a proportionate part of the price).
15.8 This clause sets out the Customer’s sole and exclusive remedy for all warranty claims in relation to Equipment and/or Software during the Warranty Period and Extended Warranty Period.
15.9 Save for the warranties specified herein, all other warranties, conditions or other terms in relation to any Equipment and/or Software implied by statute or common law are excluded to the fullest extent permitted by law. Neither Astoria nor any Third Party Licensor provides any warranty that any Equipment and/or Software is fit for any particular purpose, or warrants the adequacy of any Equipment and/or Software to produce any particular result, or that the use of any Equipment and/or Software will be uninterrupted or error-free.
16.1 The Customer must provide Astoria with all information, access, and full good faith cooperation reasonably necessary to enable Astoria to deliver all Service Offerings, including all Customer obligations as identified in the Agreement. If the Customer fails to perform its obligations, Astoria will be relieved of its obligations to the extent that the obligations are dependent upon Customer’s performance.
16.2 Astoria warrants that: (a) the Subscription Services will function substantially as described in the Documentation; and (b) Astoria owns or otherwise has the right to provide the Subscription Services to the Customer. The remedies set out in this clause are the Customer’s exclusive remedies for breach of either warranty.
16.3 If the Subscription Services do not function substantially in accordance with the Documentation, Astoria shall either (a) modify the Subscription Services to conform to the Documentation; or (b) provide a work-around solution that will reasonably meet the Customer’s requirements. If neither option is commercially feasible then either Party may terminate the Agreement and Astoria shall refund to the Customer all fees that have been paid for the unused portion of any Subscription Services.
16.4 If the normal operation, possession or use of the Subscription Services by the Customer is found to infringe any third party intellectual property rights or Astoria believes that this is likely, Astoria shall elect to (a) obtain a license from such third party for the benefit of Customer; or (b) modify the Subscription Services so that they no longer infringe; or (c) if neither option is commercially feasible then either Party may terminate the Agreement and Astoria shall refund to the Customer all fees that have been paid for the unused portion of any Subscription Services.
16.5 However, Astoria has no warranty obligations for Subscription Services where (a) any Software has been modified by the Customer or a third party without the prior written approval of Astoria; or (b) problems in the Subscription Services are or have been caused by any third party software or hardware, accidental damage or by other factors beyond Astoria’s reasonable control.
16.6 Astoria warrants that (a) the Work Products will substantially conform to the Agreement; and (b) all Professional Services will be performed with reasonable skill, care and diligence. The remedies set out in this clause are Customer’s exclusive remedies for breach of either warranty.
16.7 If any Professional Services do not conform to the Agreement or are not performed with reasonable skill, care and diligence, Astoria shall re-perform the Professional Services to the extent necessary to correct the defective performance.
16.8 Save for the warranties specified herein, all other warranties, conditions or other terms in relation to any Subscription Service or Work Product implied by statute or common law are excluded to the fullest extent permitted by law. Neither Astoria nor any Third Party Licensor provides any warranty that any Subscription Service or Work Product is fit for any particular purpose, or warrants the adequacy of any Subscription Service or Work Product to produce any particular result, or that the use of any Subscription Service or Work Product will be uninterrupted or error-free.
17.1 Either Party may terminate any Agreement without cause by giving 30 calendar days’ notice in writing to the other Party (or any other term as may be agreed by the Parties and stated in the Agreement).
17.2 Where the Customer terminates an Agreement without cause before the full term, all discounts (if any) enjoyed by the Customer shall be deemed revoked and the Customer shall be liable for the full undiscounted price of all Equipment, Software or Service Offering, any shortfall between the discounted and undiscounted price shall become due and payable immediately to Astoria. Where payments have been made in advance, Astoria shall not be liable to refund any part of such payments already made. Where Astoria terminates the Agreement without cause, Astoria shall refund the price (or a proportionate part of the price) of the Equipment, Software, Subscription Service, Documentation or Work Products (or any part thereof) up to the date of termination.
17.3 In the event that:
(a). any Party is in breach of the Agreement and the breach is not cured within calendar 30 days of written notice;
(b). any Party makes any voluntary arrangement with its creditors, becomes bankrupt or goes into liquidation otherwise than for the purpose of amalgamation or reconstruction, or have an order made or resolution passed for winding-up or otherwise becomes insolvent, or make such proposal, assignment or arrangement for the benefit of its creditors or have a receiver, administrator, encumbrancer or judicial manager taking possession of or appointed over its assets;
(c). any Party ceases, or threatens to cease, to carry on business;
(d). there is a change in control of any Party which in the reasonable opinion of the other Party adversely affects its position, rights or interests (for the purpose of this sub-clause, “control” means the ability to direct the affairs of another whether by virtue of contract, ownership of shares, or otherwise howsoever);
(e). in the reasonable opinion of any Party, there occurs a material change in the financial position of the other Party which is likely to affect its ability to perform its obligations under the Agreement; or
(f). any Party reasonably apprehends that any of the events mentioned above is about to occur and notifies the other Party accordingly,
then the non-defaulting Party shall be entitled to, by issuance of a written notification, terminate the Agreement forthwith upon the occurrence of any of the events in Clauses 17.3 (b), 17.3 (c) or 17.3(d), or suspend any further deliveries or performance on the occurrence of each of the events in Clauses 17.3 (a), 17.3 (e) and 17.3 (f).
17.4 Upon the issuance of any written notification of such termination or suspension in accordance with Clause 17.3, if the Equipment, Software and/or Service Offerings have been delivered or completed but not paid for, the price shall become immediately due and payable and Astoria shall be entitled to be paid a reasonable sum for any work carried out by it prior to and in consequence of such termination or suspension (including the right to offset any deposit monies against such sums), and in the case of a termination by the Customer shall entitle the Customer to be repaid forthwith any sums previously paid under the Agreement (whether paid by way of a deposit or otherwise). Astoria shall also be entitled to enter the Customer’s premises to recover any Equipment, Software, Documentation and/or Work Products which are the property of Astoria.
17.5 In the event the Agreement is terminated in accordance with Clause 17.3, the non-defaulting Party shall, in addition to the remedies in Clause 17.4 above, be entitled to recover all losses and damages from the defaulting Party, including all costs, expenses and liabilities reasonably incurred in respect of Equipment or Software that are partially completed or Service Offerings not fully performed as well as any costs, expenses and liabilities in expectation of the completion of such Equipment, Software and/or Service Offerings.
17.6 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.
18.1 The fulfilment of the Agreement on Astoria’s part is conditional upon the following:
(a). all necessary export licenses, permits, licenses and other permissions being obtained by the Customer from the relevant authorities for the destination and intended use of the Equipment, Software and/or Service Offerings;
(b). if Astoria is required to have any permit or license from any governmental or other regulatory authority, such permit or license being granted to Astoria at the required time;
(c). such performance shall not be prevented by impediments on the grounds of national and international legal requirements, including export control regulations, customs requirements, embargoes or other sanctions.
18.2 The Customer shall comply with all relevant statutes, rules and regulations and by-laws affecting its obligations and the performance of the Agreement (including any laws and regulations concerning the export, re-export or import of Equipment and Software, technology or technical data and Service Offerings) and shall obtain at its own costs and expenses all necessary permits and licences. Astoria may suspend performance if the Customer is in violation of applicable laws or regulations.
18.3 The Customer shall indemnify and hold harmless Astoria from and against any claim, proceeding, action, fine, loss, cost and damages arising out of or relating to any non-compliance with export control regulations by the Customer, and the Customer shall compensate Astoria for all losses and expenses resulting thereof.
19.1 No Party shall be regarded as being in default of the 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, labour 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.
19.2 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.
19.3 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 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 14 calendar days after such 1 month period has expired, either Party may elect to terminate the 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). a reasonable sum in respect of any Equipment, Software and/or Service Offerings already delivered or performed prior to such termination;
(b). any expenditure reasonably incurred by Astoria in the expectation of completing the obligations under the Agreement; and
(c). reasonable cost for removal of any Equipment and demobilization of personnel,
and for that purpose Astoria may deduct such sum from any amounts previously paid by the Customer (whether paid by way of deposit or otherwise), the balance of which shall be refunded to the Customer.
20.1 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 (a) breach of the Agreement; (b) the provision of any Equipment, Software and/or Service Offerings and use thereof of the same or any part of it by the Customer; and (c) any representation, statement or tortuous act or omission arising under or in connection with the Agreement, shall not exceed the value of the Agreement.
20.2 If Astoria is prevented or delayed from performing its obligations under the Agreement by reason of any act or omission of the Customer (other than a delay by the Customer for force majeure) then the Customer will pay to Astoria all reasonable costs, charges and losses sustained or incurred by Astoria as a result (including the cost of storage and insurance of any Equipment and Software), subject to the same limit of liability under Clause 20. Astoria shall promptly notify the Customer in writing of any claim which it may have under this Clause 20 giving such particulars thereof as it is then able to provide.
20.3 Astoria shall not be liable to the Customer for any loss of profit (actual or anticipated), loss of use, loss of production, loss of contracts, loss of opportunities, loss of revenue, loss of goodwill, loss of reputation, loss of information or data, loss from any third party contracts, loss due to business interruption, loss of interest, loss of power, contractual claims from third parties or any indirect, incidental, special or consequential losses or damages arising from or in connection with its performance or non-performance under the Agreement and whether based upon contract or tort.
20.4 The Customer acknowledges and agrees that (a) it assumes all responsibility for the selection of any Equipment, Software or Service Offering necessary to achieve the Customer’s intended results, and for the use and results thereof; (b) Astoria shall not be liable or responsible for the use or maintenance of any Equipment, Software and/or Subscription Service, its failure to operate, any repairs or service to it, any interruption of service or loss of use of the Equipment, Software and/or Service Offerings, or of any loss and or corruption of any of the Customer’s data or information in connection with the use of the Equipment, Software and/or Service Offerings, and (c) the remedies available to the Customer herein provided for under the Agreement are the Customer’s sole and exclusive remedies.
20.5 The Customer agrees that there shall be no limitation on any claim by Astoria for direct loss, claim or damages arising as a result of an infringement of Astoria’s intellectual property rights, or a breach of confidentiality under Clause 21 of these Conditions, or in connection with a Party’s indemnification obligations under these Conditions.
21.1 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 the 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 the 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.
21.2 All Equipment, Software, Subscription Services, Documentation and Work Products contain valuable trade secrets and Confidential Information that are the sole property of Astoria, and the Customer agrees to use reasonable care to prevent other parties from learning of these trade secrets and Confidential Information. The Customer must take reasonable care to prevent unauthorized access to or duplication of the Equipment, Software, Subscription Services, Documentation and Work Products.
21.3 The following shall not constitute Confidential Information: (a) information that is or subsequently becomes, through no act or failure to act on the part of the receiving Party, generally known or available; (b) information that is known by the receiving Party at the time of receiving such information, as evidenced by the receiving Party’s records; (c) information that is subsequently provided to the receiving Party by a third party, as a matter of right and without restriction on disclosure; or (d) information that is required to be disclosed by law, provided that the party to whom the information belongs is given prior written notice of any such proposed disclosure.
21.4 The information contained in all commercial or marketing documents (including any Agreement, quotation, proposal, order form, statement of work or other document which describes Astoria’s offering, any special discount information, product specifications etc.) is proprietary to Astoria. Astoria submits these documents to the Customer with the understanding that it will be held in the strictest confidence and will not be disclosed, duplicated or used, in whole or in part, for any purpose, without the prior written consent of Astoria.
22.1 The Customer must provide the necessary Customer Data in connection with the use or Astoria’s provision of any Equipment, Software or Service Offering. Astoria is not obliged to modify or add to the Customer Data and the Customer is solely responsible for the content and accuracy of the Customer Data.
22.2 Astoria makes no claim to any right of ownership in the Customer Data and is obliged to keep all Customer Data confidential. However, Astoria may (a) observe and report back to the Customer on the Customer’s usage of any Equipment, Software or Service Offering, and make recommendations for improved usage of such Equipment, Software or Service Offering; and (b) identify trends and publish reports on its findings provided the reports include data aggregated from more than one customer and do not personally identify the Customer.
22.3 Astoria shall take reasonable measures to keep Customer Data secure and to protect it against unlawful destruction, alteration, disclosure or access and it shall deal with it only in accordance with the Customer’s instructions, provided they are reasonable and lawful.
22.4 Upon termination of any Service Offering, Astoria shall provide the Customer with collected Customer Data in comma separated value (CSV) format. However, Astoria may retain Customer Data in backup media for an additional period of up to 3 months.
22.5 The Customer must indemnify and hold harmless Astoria, its directors, employees, contractors and agents from any damages awarded against Astoria (including reasonable costs and legal fees incurred) arising out of any third party suit, claim or other legal action in connection with the Customer Data, including any action for infringement of any trademark, copyright, trade secret, right of publicity or privacy, defamation, patent or other proprietary right with respect to the Customer Data.
23.1 Entire Agreement: The Agreement embodies all the terms and conditions agreed upon amongst the Parties as to the subject matter of the 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.
23.2 Amendments and Variations: 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.
23.3 Assignment: The Customer shall not assign, delegate, sub-contract, mortgage, charge or otherwise deal with or transfer any or all of its rights and obligations under the Agreement in any way without the prior written consent of Astoria. 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 the Agreement, including sub-contracting the performance of the Agreement or any part of it without obtaining the prior consent of the Customer.
23.4 Severability: If any provision of the Agreement is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of the Agreement and the remainder of the provision in question (if any) shall not be affected.
23.5 Shipment Terms: Any shipment terms quoted in relation to the delivery of the Equipment and/or Software shall be in accordance to Incoterms 2000 or its latest version as from time to time modified supplemented or revised.
23.6 Compliance with Laws: The Customer shall comply with all relevant statutes, rules and regulations affecting its obligations and the performance of the Agreement and shall obtain at its own costs and expenses all necessary permits and licences and shall furnish to Astoria, upon request, information or documentation of the Customer’s compliance, as well as to any other information or documentation required to enable Astoria to comply with any laws, rules, regulations and requirements applicable to its performance of the Agreement.
23.7 Waivers: 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.
23.8 Relationship between Parties: The relationship between Astoria and the Customer is that of an independent contractor and not that of principal and agent and nothing herein shall constitute any partnership between the Parties hereto.
23.9 Third Parties: Save for any group companies controlled by Astoria, the Parties do not intend that any term of the Agreement should be enforceable, by virtue of the Contracts (Rights of Third Parties) Act (Chapter 53B of Singapore) or otherwise, by any person who is not a party to the Agreement.
23.10 Publicity: The Customer agrees that Astoria may use and disclose the Customer’s name and the nature of any Agreement entered into between the Parties in Astoria’s marketing materials including a public press release.
24.1 Any notices, requests, demands or other communications required or permitted to be given or made hereunder shall be in writing and signed by the authorised representatives of the Party addressed to the other Party at its address set out in the Agreement (or such other address as any Party may from time to time notify the other).
24.2 Notices may be delivered by hand or by prepaid registered post and shall be deemed to have been served if:
(a). by hand, at time of delivery; and
(a). by prepaid registered post: 3 Business Days after posting.
25.1 The Agreement (including these Conditions) shall be governed by and construed in accordance with the laws of Singapore, and the parties hereby submit to the exclusive jurisdiction of the courts of the Republic of Singapore.
25.2 The Parties will use their best efforts to negotiate in good faith and settle any dispute that may arise out of or relate to the Agreement or any breach of it. All negotiations connected with the dispute will be conducted in confidence and the Parties undertake not to divulge details of such negotiations except to their professional advisers who will also be subject to such confidentiality obligations and such negotiations shall be without prejudice to the rights of the Parties in any future proceedings.
25.3 In the event any such dispute is unresolved after 30 calendar days of the commencement of such negotiations referred to in Clause 25.2, such disputes arising out of or in connection with the Agreement, including any question regarding its existence, validity or termination, shall be finally settled under the Rules of the Singapore International Arbitration Centre (“SIAC”) for the time being in force (“SIAC Rules”), which rules are deemed to be incorporated by reference into this clause. The tribunal shall consist of one arbitrator to be appointed by the Chairman of SIAC. The language of the arbitration proceedings shall be English. The seat of arbitration shall be Singapore. The decision of the arbitrator will be final, binding and incontestable.