Terms & Conditions

 

This Terms & Condition is extracted from XL Catlin Web Shop Program Agreement. For any discrepancy, please refer to the actual Program Agreement document.


2.    SUMMARY OF TERMS

2.1.    Axxel shall supply the following to the Client and Approved Person (collectively, the “Services”):

2.1.1.    a website with a web-shop through which Approved Persons may order Items (the “Web Shop”);

2.1.2.    pre-approved items branded according to the Client’s specifications (each such item a “Collection Item”), which may be from Axxel’s regular catalogue (a “Catalogue Item”) or specifically obtained for the Client at the Client’s request (a “Customised Item”); and

2.1.3.    items from Axxel’s regular catalogue (as may be amended from time to time) which are not Collection Items (each such item a “Non-Collection Item”).

2.2.    Each Approved Person shall pay Axxel the sum for Items purchased by them in accordance with the terms of this Agreement.


3.    ESTABLISHMENT AND OPERATION OF WEB SHOP

3.1.    Axxel and the Client shall use all reasonable endeavours and negotiate in good faith to agree on an implementation plan (Schedule IV) for the Web Shop, its processes, and the corresponding timeline. Once agreed, each Party shall use all reasonable endeavours to comply with such timeline. 
3.2.    Axxel shall retain all rights, title, and interest in the Web Shop and each part of the Web-Shop, and nothing in this Agreement is intended to transfer any right, title, or interest in the Web Shop to the Client at any time.

3.3.    Once the Web Shop has been implemented and launched for use, Axxel shall:

3.3.1.    permit the Client and each Approved Person to access the Web Shop;

3.3.2.    within a reasonable time period, issue each Approved Person with a User Account to enable such Approved Person to access the Web Shop;

3.3.3.    display Collection Items for sale on the Web Shop, and permit each Approved Person to purchase Collection items through the Web Shop;

3.3.4.    use reasonable efforts to ensure that the Web Shop is accessible in each Distribution Region in accordance with the prevailing laws in such Distribution Region;

3.3.5.    use reasonable efforts to procure that each Approved Person is able to access the Web Shop during regular working hours prevalent in the relevant Distribution Region, subject to any maintenance time, legal restriction, and event outside its control; and

3.3.6.    take all reasonable precautions in accordance with industry practice to ensure that the Web Shop remains free from any Malicious Code, including ensuring that virus protection software is used and kept up to date and to test for any Malicious Code and that all messages, attachments and other document provided in an electronic format to the Client and each Approved Person shall be free from any Malicious Code.

3.4.    If either Axxel or the Client becomes aware that the Web Shop or any message, attachment or other document provided to the Client is infected with any Malicious Code that Party shall immediately report its finding to the other Party and provide all information reasonably requested by the other Party in relation to the Malicious Code.

3.5.    Axxel may at any time remove any item for sale on the Web Shop, or restrict certain users from accessing certain parts of the Web Shop, if it deems that the sale or provision of such Item is not desirable, or if the sale or provision of such Item would contravene any applicable law or regulation in Singapore or other relevant territory.

 
4.    COLLECTION ITEMS

4.1.    The Client shall within 1 month of the Agreement Date deliver to Axxel a digital copy of each Client Mark in an appropriate format designated by Axxel.

4.2.    Axxel and the Client shall use all reasonable endeavours and negotiate in good faith to agree on the Collection Items and on the design, quality, and pricing of each such Collection Item. Collection Items may be either Catalogue Items or Customised Items.

4.3.    If any Item is to display a design or graphic provided by the Client, the Client shall provide Axxel with such design or graphic in a suitable form and of suitable quality no later than 1 week before the date Axxel is due to submit a Proof to the Client.

4.4.    After the Collection Items have been agreed, Axxel shall prepare and deliver to the Client a sample for each relevant Item (the “Proof”) and either confirm or revise the price of such Collection Item (the “Quote”).

4.4.1.    The Client shall review the Proof and, if the Proof is of reasonably satisfactory quality as agreed, approve the Proof. If the Proof is not of satisfactory quality, the Client may reject the Proof and Axxel shall provide the Client with a Proof of satisfactory quality as soon as reasonably possible.

(a)    If the Client does not reject the Proof within 5 Business Days of delivery of the Proof to the Client, the Client shall be deemed to have approved the Proof.

4.4.2.    If the Quote is different from the original price agreed on, the Client may either approve the amended Quote or negotiate with Axxel in good faith to determine an acceptable price, which may include a tiered price structure dependent on the quantity of items ordered.

4.5.    Once the Client has approved both the price and the Proof in writing, Axxel will display the Collection Items in the Web Shop at the start of the next Collection Term or at such other time agreed on between Parties.


5.    ORDERS OF CUSTOMISED ITEMS

5.1.    The Client may request Axxel to provide and include a Customised Item as a Collection Item by completing and submitting such form containing such particulars as Axxel may from time to time specify (a “Customised Item Request”).

5.2.    Upon receiving a Customised Item Request, Axxel may issue a “Request Acknowledgment” to Axxel Request. Such Customised Item Request Acknowledgement will only be for reference and act as an acknowledgement of receipt of the Customised Item Request, and WILL NOT constitute an acceptance of the Customised Item Request.

5.3.    If Axxel issues a Request Acknowledgement, Axxel shall prepare and deliver within a reasonable time period a Proof for such Customised Item to the Client, stating further the price of sale for each Customised Item and the estimated time required before the Customised Items may be made available for sale (the “Customised Item Offer”). Such Customised Item Offer will constitute an offer to sell the goods specified in the Customised Item Request to the Client on the terms of the Customised Item Offer.

5.3.1.    If Axxel is required to purchase stock and materials before issuing the Proof to service an Customised Item Request in a timely manner, such Customised Item Request will be described as an “Irrevocable Order” in the relevant Request Acknowledgment. Each Customised Item Request may only be cancelled or amended with Axxel’s written consent, and the Client shall further fully reimburse Axxel for any loss, damage, or expense suffered by Axxel as a result of such cancellation or amendment.

5.4.    The Client may accept the Customised Item Offer in writing within 14 days from the date of the Customised Item Offer. If the Client accepts the Customised Item Offer, the Client shall also state the quantity of such Customised Item to be produced for the Client. If the Customised Item Offer is not accepted within 14 days, Axxel may treat such Customised Item Offer as being declined.

5.5.    If the Client accepts the Customised Item Offer, Axxel shall procure the production / manufacture of the Customised Items. Subject to receipt of a Purchase Order from the Client, Axxel may procure the production / manufacture of such quantity of Customised Items in separate batches, or in any way as it deems reasonable to meet the projected requirements of the Client.

5.6.    Upon receipt of the Customised Items, Axxel will invoice the Client for the cost of such Customised Items based on the price of sale stated in the Customised Item Offer and the quantity of Customised Items Axxel procured to be produced / manufactured, and the Client shall pay such sum to Axxel on the terms stated in Axxel’s invoice.

5.6.1.    During the period commencing from the issuance of the invoice to such date each Customised Item is delivered to the Client or an Approved Person, the Client shall bear all risk for loss or damage to each Customised Item provided that such loss or damage is not caused by the negligence, reckless act, or wilful act of Axxel.

5.7.    Upon Axxel’s receipt of full payment of the invoice, title to the Customised Items will pass to the Client, and Axxel shall list the Customised Items as Collection Items on the Web Shop for the remainder of the Collection Term or for such other period agreed between parties, save that Axxel may cease listing a Customised Item on its website if Axxel does not hold any remaining stock of such Customised Item.

5.7.1.    Customised Items will be distributed through the Web Shop through the usual order process, and the cost of such Customised Items will be based on the price of sale stated in the Customised Item Offer. 

5.7.2.    Axxel shall charge and invoice the Approved Person for their order of the Customised Item(s) placed through the Web Shop. 

5.7.3.    The Client may request Axxel to institute additional approval processes for the order of Customised Items and if such is instituted, Axxel shall not act on any order for Customised Items until and unless such approval processes are satisfied. 

5.7.4.    Upon receiving an order for Customised Items from an Approved Person (subject to satisfactorily receiving any other internal approval which may be set by the Client), Axxel shall procure the delivery of such ordered Customised Items to the Approved Person at the Client’s sole expense and risk.

5.7.5.    During such period when the Customised Items are listed on the Web Shop, Axxel shall hold the Customised Items for the Client as a bailee.

5.8.    Pursuant to Clause 5.7.2, Axxel will maintain and provide a monthly update on the quantity of the Customised Items being drawn-down by the respective Approved Persons. Both Axxel and the Client will negotiate in good faith on the refund procedures with regards to any credit balance resulting from the initial payment made (referred therein Clause 5.6) and the cost of the remaining stock balance held by Axxel for the Client; subsequent to the drawn-downs made by the respective Approved Persons.

The cost of such Customised Items will be based on the price of sale stated in the Customised Item Offer and in no circumstance(s), higher than the price of sale invoiced by Axxel to the Client. Upon subsequent agreement between Axxel and the Client; on the refund procedures, Axxel shall refund any credit balance in full within 30 Business Days from the date of agreement between Axxel and the Client on the credit amount to be refunded; or at such other time as indicated by Axxel and agreed with the Client.   

5.9.    Within 4 weeks after the end of a Collection Term, Axxel shall deliver all remaining Customised Items in its possession or custody to the Client or  the Client’s designated addresses according to the delivery information as stated in the relevant Purchase Orders . Axxel may invoice the Client for any shipping or transport cost reasonably incurred for such delivery.


6.    FORECASTS

6.1.    Once the Collection Items have been agreed, the Parties shall agree on a mutually acceptable date and time period on which to offer each of the Collection Items (a “Collection Term”). If not agreed, the first Collection Term will commence 1 week after all Collection Items are agreed upon between the Parties, each subsequent Collection Term will commence on the day after the expiration of the previous Collection Term, and each Collection Term will last for a duration of 1 year.

6.2.    To ensure availability of Items on the Web Shop, the Client shall deliver a written forecast (a “Forecast”) for the volume of Items to be purchased by all Approved Persons. The Forecast should be provided to Axxel; no later than 1 month before the start of each Collection Term for the Catalogue Items and no later than 2 months before the start of each Collection Term for the Customised Items. Such Forecast will be divided between Catalogue Items and Customised Items, and particularised according to the number of Items which would be required per Distribution Region.

6.2.1.    The minimum quantity in a Forecast for Customised Items is the amount stated in the acceptance to the Customised Item Offer.

6.2.2.    For the avoidance of doubt, a Forecast does not constitute an Order.

6.3.    Before the commencement of each Collection Term, Axxel and the Client shall negotiate in good faith to define a target stock turn per Distribution Region. Based on this target stock turn, Axxel shall hold reasonable quantities of each Collection Item in each Distribution Region.


7.    APPROVED PERSONS

7.1.    The Client may from time to time designate any Affiliate as an “Approved Person” by giving written notice to Axxel in materially the same form set out in SCHEDULE I of this Agreement (an “Approval Notice”).

7.1.1.    Each person set out in SCHEDULE II of this Agreement is an Approved Person as of the Agreement Date.

7.1.2.    For the avoidance of doubt, the Client is an Approved Person.

7.2.    The Client shall procure that each Approved Person purchases Items from Axxel on the terms of this Agreement.

7.3.    Upon receiving an Approval Notice from the Client, Axxel shall create a user account for new Approved Person on its Web Shop (a “User Account”) and transmit the username and password to such User Account to such Approved Person, and thereafter permit such Approved Person to use the Web Shop to order and purchase Items.

7.3.1.    The User Account will function as an administrator account for the Approved Person, who may create one or more “Subsidiary Account” through the User Account, subject to restrictions imposed by Axxel from time to time. 

7.3.2.    Subsidiary Accounts may be issued by an Approved Person to any of its Employees on condition that any purchase from a Subsidiary Account shall be deemed to be a purchase by the Approved Person, and the Approved Person will correspondingly be liable for payment of any purchase made through the Subsidiary Account.

7.3.3.    The Client shall procure that each Authorised Person procures that each user of a Subsidiary Account fully complies with all applicable laws when using the Subsidiary accounts, including laws in Singapore in relation to anti money laundering, terrorism financing, and all applicable international sanctions.

7.4.    Each Approved Person will be solely responsible for maintaining the security of its User Account and all its Subsidiary Accounts, and will be fully responsible and liable for every act taken through such Approved Person’s User Account and all its Subsidiary Accounts to the extent that such act is not taken or caused by the negligence, recklessness, or wilful act of Axxel or Axxel’s Employee.

7.5.    Axxel shall invoice each Approved Person for any Items purchased by such Approved Person on the terms of sale as set out in the Web Shop and amended from time to time, and the Client shall procure that each Approved Person complies with such terms of sale.

7.6.    The Client shall be fully responsible and liable for every act of an Approved Person on the Web Shop or taken through such Approved Person’s User Account, including purchases made by the Approved Person through the User Account and all its Subsidiary Accounts, and shall fully indemnify Axxel upon demand against any damage, loss, or expense suffered or incurred by Axxel pursuant to any order placed, purchase made, or any other act taken by such Approved Person through such Approved Person’s User Account and all its Subsidiary Accounts, as if such act was taken by the Client itself.

7.6.1.    The Client is considered to be a primary obligor to any such damage, loss, or expense suffered or incurred and Axxel may make such demand or commence any claim directly against the Client without making any demand, commencing, or resolving any claim against such Approved Person beforehand.

7.6.2.    This indemnity shall not extend to any damage, loss, or expense suffered or incurred as result of the negligence, recklessness, or wilful act of Axxel or Axxel’s Employees.

7.7.    The Client may at any time revoke the approval of any Approved Person by giving not less than 3 Business Days’ written notice to Axxel. Upon receiving such written notice, Axxel shall without undue delay take all necessary steps to deactivate such Approved Person’s User Account. The Client shall continue to be fully responsible and liable for each act taken by such Approved Person until such User Account is deactivated or 3 Business Days have passed since the date of Axxel’s receipt of the revocation notice.


8.    ORDERS OF ITEMS

8.1.    Each Approved Person may order Items from time to time (an “Item Order”).

8.1.1.    If the Web Shop has commenced operations at such time, each Item Order shall be made through such Approved Person’s User Account or any of its Subsidiary Accounts in the Web Shop.

8.1.2.    If the Web Shop has not commenced operations or is for any reason unavailable or non-operational at such time, each Item Order shall be made pursuant to such written alternative medium as Axxel may designate from time to time. 

8.2.    Each Item Order shall be deemed to be a separate offer by such Approved Person to purchase the relevant Items, which Axxel may accept or decline in its absolute discretion.

8.3.    Upon receiving an Item Order, Axxel may accept such Item Order by issuing an order acknowledgment summarising the Item Order, stating the total price for the relevant Items, the estimated delivery date, and an order number (“Order Acknowledgement”). Axxel will only process the Item Order only upon receipt of a Purchase Order from the Approved Person. Axxel will not be responsible for any claims or damages resulting from a delay in the fulfilment of the Item Order due to a delay in receipt of the Purchase Order.

8.4.    Each Approved Person may cancel its order at any time no later than 1 hour after Axxel issues its Order Acknowledgement provided that if Axxel does not issue its Order Acknowledgement between 9 a.m. and 5 p.m. (Singapore Time) on a Business Day, the Approved Person may cancel such order at any time before 10 a.m. (Singapore Time) on the next Business Day. After such time, such order may only be cancelled or amended with Axxel’s written consent. Each cancellation will be carried out in writing through such form which Axxel may designate from time to time.

8.5.    Each Approved Person shall clearly state the order number on all correspondence relating to each Item Order, failing which Axxel will be under no obligation to process or accept any Item Order or any communication thereupon.


9.    QUALITY AND PACKING

9.1.    Axxel shall prepare, pack, and supply the Items in accordance with generally accepted industry standards and practices applicable.

9.2.    The Items supplied to the Client by Axxel under this Agreement will: 

9.2.1.    in the case of Collection Items, conform to their description in the Collection and to the Proof, and in the case of any inconsistency between the two, the Proof will prevail, save that in the event Axxel is required to order a further production batch of any Collection Item, Axxel will only be required to provide the Client with items which are not materially visually different from the original Proof notwithstanding slight variations which may arise out of the production process;

9.2.2.    in the case of Non-Collection Items, conform to the Proof;

9.2.3.    be of satisfactory quality; and

9.2.4.    comply with statutory and regulatory requirements, in the case of Collection Items, which are applicable in the country or countries which the Collection specifies that those items are to be supplied to, and in the case of Non-Collection Items, which are applicable in the country or countries in which the Client has specified in the Customised Item Request that the items are to be used.

12.    TITLE

12.1.    Title to Items shall not pass to any Approved Person until Axxel has received payment in full (in cash or cleared funds) for such Items and such Approved Person has accepted such Items.

12.2.    Until title to the Items has passed to the Approved Person, the Approved Person shall:

12.2.1.    hold such Items on Axxel's behalf at the Approved Person’s own cost and not use any such Items;

12.2.2.    store such Items separately from all other goods held by such Approved Person so that they remain readily identifiable as Axxel's property;

12.2.3.    not remove, deface or obscure any identifying mark or packaging on or relating to such Items; and

12.2.4.    maintain such Items in satisfactory condition and keep them insured on Axxel's behalf for their full price against all risks with an insurer that is reasonably acceptable to Axxel.


13.    TERMS OF PAYMENT

13.1.    Axxel may accept payment by any means it provides on the Web Shop, including via credit card or the usage of third-party payment service providers such as Paypal, and may further require that payment be made at the point of purchase of any product from the Web Shop. If payment is not made through the Web Shop, shall invoice each Approved Person for each Order at any time after receiving such Order.

13.2.    Each Approved Person shall pay all invoices in full and in cleared funds within 60 days from the date of invoice or at such other time as indicated by Axxel.

13.3.    Each Approved Person shall make all payments in the currency stated in such invoice, without set off, deduction, or counterclaim, through such means provided by Axxel on the Web Shop, bank or telegraphic transfer to Axxel’s bank account, or otherwise by such means that Axxel may designate from time to time. The Approved Person shall wholly bear any cost incurred in such transfer.

13.4.    Each Approved Person shall make all payments directly to Axxel and not to any service partner or Employee of Axxel. 


13.5.    All payments payable to Axxel under this Agreement shall become due immediately on its termination. 


14.    NON-EXCLUSIVITY

14.1.    This Agreement is non-exclusive to both Parties and subject to Clause 14.2, any Party may conduct similar business contemplated under this Agreement with any Third Party.

14.2.    If during the Agreement Term the Client or any of its Affiliates wishes to obtain any product branded with the Client’s corporate logo which is not a Collection Item, before agreeing to purchase such product, the Client shall give Axxel written notice of such desire and specify the desired parameters of such product, and Axxel to submit a tender or offer to provide the desired product to the Client. Axxel may provide the Client such tender within 5 Business Days commencing from the date of receipt of such written notice and during such time, the Client shall not agree to purchase such product from any Third Party.

14.3.    If Axxel submits a tender or offer within the aforementioned 5 Business Days, the Client shall in good faith assess Axxel’s tender or offer and thereafter may, if it deems it desirable to do so, accept Axxel’s tender to provide such Product. 

14.4.    If Axxel does not provide the Client with a tender or offer within the aforementioned 5 Business Days, the Client may agree to obtain such Product from any Third Party without further reference to Axxel.


15.    REPURCHASE OF STOCK

15.1.    Axxel will set all stock levels for Collection Items in collaboration with the Client in accordance with the relevant Forecasts and Clause 6.3. If any particular Collection Item is not sold-out within a Collection Term, the Client shall purchase the remaining stock of such Collection Item at the end of such Collection Term at the retail price of such Item on the Web Shop. 

15.2.    If any of the following events listed occurs, the Client shall upon Axxel’s written notice purchase all stocks then held by Axxel at the retail price of such Item on the Web Shop for such Items within 20 Business Days from the date of such notice:

15.2.1.    a change in the Client’s (or it’s group)’s name or logo;

15.2.2.    a key change in the Client’s (or its Group’s) marketing strategy, or any termination of any key marketing sponsorship (or similar) agreement that the Client (or any member of its Group) is a party to; and

15.2.3.    any other change which renders Axxel’s then stocks of Items obsolete.

15.3.    For the avoidance of doubt, Clauses 10 and 11 are applicable to the delivery of Items purchased under this Clause, save that if the Client does not specify any place of delivery, Axxel may deliver such items to the premises of the Client or any Approved Person that minimises the cost of delivery of such products.


16.    EXCLUSION AND LIMITATION OF LIABILITY

16.1.    Neither party shall be responsible for any indirect or consequential loss or damage arising out of a breach of this Agreement (including if such breach was caused by negligence), including loss of profits, loss of goodwill, loss of opportunity, and any loss or damage suffered by Axxel, the Client or any Approved Person as a result of an action brought by a Third Party.

16.2.    To the fullest extent permitted by law, Axxel and its Employees will not be liable to the Client or any Approved Person for any direct loss, damage, or expense suffered or incurred by the Client or any Approved Person arising from Axxel’s performance or breach of this Agreement  unless such loss, damage, or expense arises directly from Axxel or its Employees’ negligence, recklessness or wilful act.

16.3.    Subject to Clauses 16.1 and 16.2, if Axxel is for any reason found to be liable to the Client or any Approved Person for any sum, Axxel’s maximum liability (including any interest or cost that Axxel may be determined to be liable for) in any continuous 12-month period is limited to the total sum paid by the Client or any such Approved Person (as the case may be) to Axxel under this Agreement for the 12 months immediately prior to the act giving rise to such liability or, if 12 months has not elapsed since the commencement of this Agreement, such sum which has actually been paid to Axxel since the commencement of this Agreement.

16.4.    Nothing in this Clause shall confer any right or remedy on the Client to which it would not otherwise be legally entitled.

16.5.    To the fullest extent permitted by law, the maximum sum the Client or any Approved Person is liable to pay Axxel as a result of the Client’s breach of this agreement is limited to:

16.5.1.    if the breach is in relation to the non-payment of monies, the sum which Axxel would have actually received from the Client if the Client had paid the monies to Axxel (excluding any interest or cost which may be applicable as a result of late payment); and

16.5.2.    in any other case, the actual direct loss and damage suffered by Axxel, and the Client or such Approved Person shall not be liable to Axxel for any indirect or consequential loss or damage suffered by Axxel, including loss of profits, loss of goodwill, loss of opportunity, and any loss or damage suffered by Axxel as a result of an action brought by a Third Party.


17.    TERM AND TERMINATION

17.1.    The “Agreement Term” commences from the Agreement Date and will automatically terminate at the end of 3 years from the date of commencement of the first Collection Term.

17.2.    At the end of each Agreement Term, this Agreement will automatically renew for a further Agreement Term of 1 year on materially the same terms (mutatis mutandis) unless either Party gives the other Party not less than 1 months’ written notice that it does not wish to renew the Agreement.

17.3.    Each Party may terminate this Agreement for convenience by giving the other Party not less than 6 months’ written notice of such termination.

17.4.    Each Party may immediately terminate this Agreement for cause by giving written notice to the other Party if:

17.4.1.    the other Party commits any breach of any of the provisions of this Agreement and, in the case of a breach capable of remedy, fails to remedy the same within 1 month after receipt of a written notice giving full particulars of the breach and requiring it to be remedied;

17.4.2.    an encumbrancer takes possession or a receiver is appointed over any of the property or assets of the other Party;

17.4.3.    the other Party makes any voluntary arrangement with its creditors or becomes subject to an administration order;

17.4.4.    the other Party goes into liquidation (except for the purposes of amalgamation or reconstruction and in such manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other party under this Agreement); or

17.4.5.    the other Party ceases, or threatens to cease, to carry on business.

17.5.    The termination of this Agreement is without prejudice to any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.


18.    OBLIGATIONS ON TERMINATION

18.1.    If either Party gives notice to terminate this Agreement:

18.1.1.    Axxel shall continue to offer Collection Items for sale during the notice period (if any);

18.1.2.    Axxel shall not purchase any additional stock of Collection Items during the notice period (if any); and

18.1.3.    at the end of the notice period, the Client shall purchase from Axxel any remaining unsold stock of all Items at the retail price of such Item on the Web Shop.

18.2.    Upon termination of this Agreement, each Party shall without undue delay:

18.2.1.    return to the other Party all equipment, materials and property belonging to the other Party that the other Party had supplied to it or a member of its Group in connection with the supply and purchase of the Items under this Agreement;

18.2.2.    return to the other Party all documents and materials (and any copies) containing the other Party’s Confidential Information;

18.2.3.    erase all the other Party’s Confidential Information from its computer systems (to the extent reasonably possible and according to local law); and 

18.2.4.    on request, certify in writing to the other Party that it has complied with the requirements of this Clause, including if so requested giving the other Party a statutory declaration executed by each director of the Party that this Clause has been complied with.

18.3.    This Clause will survive the termination of this Agreement.

20.    INTELLECTUAL PROPERTY

20.1.    The Client hereby grants Axxel a non-exclusive, limited license to use each Client Mark and any other mark that the Client may designate by written notice to Axxel from time to time for the purposes of this Agreement.

20.2.    Save as expressly stated otherwise in this Agreement, nothing in this Agreement will be interpreted to confer upon any Party right over or allow such Party to use any Intellectual Property Right of the other Party.

20.3.    Upon termination of this Agreement, Axxel shall immediately cease to use any of the Client’s Intellectual Property Rights.

20.4.    The Client shall indemnify Axxel against all or any costs, claims, damages or expenses incurred by Axxel, or for which Axxel may become liable, with respect to any intellectual property infringement claim or other claim including without limitation any claim for breach of moral right or right of privacy or right of publicity or any other right whatsoever of any person relating to each Client Mark.

20.5.    This Clause will survive the termination of this Agreement.


21.    NON- SOLICITATION OF EMPLOYEES

21.1.    Each Party agrees that, during the Agreement Term and for a period of twelve (12) months immediately following the effective date of termination hereof, it shall not, without the other Party’s prior written consent, knowingly employ or engage on any other basis, or solicit the employment or other engagement of any Employee of the other Party or any of its subcontractors who has been associated with the performance of such other Party’s obligations hereunder; provided, however, that general advertisements of employment or engagement in print or electronic format shall not be considered a violation of the foregoing covenant.

21.2.    This Clause shall survive the termination of this Agreement.


22.    REPRESENTATIONS AND WARRANTIES

22.1.    Each Party represents and warrants to the other Party that at the Agreement Date and at all times thereafter:

22.1.1.    It is a limited liability company duly incorporated under the laws of Singapore.

22.1.2.    It has the full capacity and authority and all necessary licenses, permits, and consents to enter into this Agreement and any other documents to be entered into by it hereunder.

22.1.3.    This Agreement and all documents to be executed pursuant to or under it constitute valid and binding obligations on itself in accordance with their respective terms.

22.1.4.    The execution and delivery of this Agreement and the performance of its obligations under it will not:

(a)    result in a breach of, or constitute a default under, any instrument, agreement or arrangement to which it is a party or by which it is bound; or

(b)    result in a breach of any order, judgment or decree of any court or governmental agency to which it is a party or by which it is bound.

22.1.5.    It is not insolvent, aware of any applications for winding-up or judicial management proceedings taken out against it, entering or contemplating entering into a scheme of arrangement with its creditors, entering or contemplating going into liquidation, or had a receiver appointed over any or all of its assets or property.

22.1.6.    It is not aware of any or any potential court proceedings which have been or are likely to be commenced against it.

22.2.    The Client further represents and warrants to Axxel that:

22.2.1.    each Approved Person complies with the provisions of Clause 22.1 above;

22.2.2.    each Approved Person is at all times an Affiliate of the Client;

22.2.3.    it holds the full rights, title, and interest in each Client Mark, or has otherwise obtained all necessary consents and licenses to permit it to legally enable Axxel to use such Client Marks for the purposes of this Agreement; and

22.2.4.    no Item will be used for any purpose which is illegal in Singapore or in the territory of delivery of such Item, including anything amounting to bribery or terrorism financing.


23.    GENERAL PROVISIONS

23.1.    This Agreement is governed by and is to be construed in accordance with the laws of Singapore, and each Party hereby submits to the exclusive jurisdiction of the Singapore courts.

23.2.    This Agreement is personal to each Party, and no Party may sell, assign, or transfer any duty, right, or interest created under this Agreement without the prior written consent of each other Party.

23.3.    Nothing in this Agreement will be deemed to constitute a partnership between the Parties nor constitute any Party the agent of any other Party or otherwise entitle any Party to have authority to bind any other Party for any purpose.

23.4.    No right or remedy under this Agreement will be waived or be deemed to be waived unless it is evidenced in writing signed by the Party waiving that right or remedy, and a waiver of a breach of this Agreement will not operate as a continuing waiver or operate as a waiver of a subsequent breach, unless a contrary intention is clearly expressed in writing.

23.5.    Nothing in this Agreement is intended to confer on any person any right to enforce any terms of this Agreement which that person would not have had but for the Contracts (Rights of Third Parties) Act, Chapter 53B.

23.6.    This document contains the entire agreement between the Parties with respect to the subject matter hereof. It supersedes any previous agreement between the Parties in relation to the matters dealt with it and represents the entire understanding between the Parties.

23.7.    If any term, condition or provision of this Agreement is held to be a violation of any applicable law, statute or regulation, the same will be deemed to be deleted from this Agreement and will be of no force and effect and this Agreement will remain in full force and effect as if such term, condition or provision had not originally been contained in this Agreement. Notwithstanding the above, in the event of any such deletion the Parties shall negotiate in good faith in order to agree on the terms of a mutually acceptable and satisfactory alternative provision in place of the provision so deleted.

23.8.    In a situation amounting to force majeure:

23.8.1.    If a Party is unable to carry out its obligations or the carrying out is delayed as a result of the force majeure, it shall not be liable for its inability or the delay if:

(a)    it promptly gives the other Party notice specifying the matters constituting the force majeure;

(b)    it states its best estimate of the period for which its inability will continue or the period for which performance of its obligations will be delayed; and

(c)    it uses all reasonable endeavours to remove or minimise the effect of the force majeure.

23.8.2.    If:

(a)    the force majeure continues, or the carrying out of the obligation is delayed, for a period of more than three (3) months; or

(b)    it becomes impossible to perform a material provision of this Agreement;

either Party may terminate this Agreement by giving written notice to the other Party.

23.9.    Any notice given under this Agreement is:

23.9.1.     to be in writing in the English Language;

23.9.2.    signed by or on behalf of the Party giving it (the “Sender”);

23.9.3.    to be served by delivering it by fax, email, post, registered post, or in person to the receiving Party (the “Recipient”) at the address stated for each Party in the Preamble, or at such other particulars for notice as each Party may notify the other Parties in writing from time to time;

23.9.4.    deemed to have been received on the actual date and time of receipt of such notice, failing which:

(a)    if sent by fax or email before 6 p.m. on any Business Day, on the same Business Day;

(b)    if sent by fax or email after 6 p.m. on any Business Day or on a non-Business Day, the Business Day immediately after such fax or email is sent;

(c)    if sent by post or registered post, 3 Business Days from the date of sending such notice, provided there is no intimation that the notice was not received by the Recipient within the 3 Business Days; and

(d)    if delivered personally, when the Sender actually delivers the notice to the address of the Recipient; and

23.9.5.    proven to be served:

(a)    if sent by fax; if the fax is sent to the correct fax number and there is no intimation that the fax was not received by the Recipient;

(b)    if sent by email; if the email is sent to the correct email address and there is no intimation that the email was not received by the Recipient; and

(c)    if sent by post, registered post, or personally; if the envelope containing the notice was addressed to the address of the Recipient and delivered either to that address or into the custody of the postal authorities.

23.10.    Notwithstanding any applicable written law or rule to the contrary, each Party agrees that service of originating processes or other court or arbitral document may be effected by:

23.10.1.    scanning and sending the relevant document to the Recipient by email to the Recipient’s designated email address. If service is effected in such a manner, service will be deemed to be effected 1 Business Day after the date such email is sent, provided that during such time there is no intimation received by the Sender that such email was not received by the Recipient; or

23.10.2.    placing the relevant document into a sufficiently pre-paid envelope addressed to the address of the Recipient, and delivering such envelope either directly to that address or into the custody of the postal authorities. If service is effected in such a manner, service will be deemed to be effected 5 Business Days after the date of delivery to the said address or into the custody of the postal authorities, as the case may be.

23.11.    Any modification or amendment to this Agreement is to be in writing, and signed by each Party to this Agreement, or on behalf of each Party by such person authorised by the respective Party to do so.

23.12.    Except as hereinbefore otherwise stated, each Party shall bear its own costs and expenses in connection with the preparation, negotiation, and execution of this Agreement.

23.13.    This Agreement may be executed in any number of counterparts or duplicates, each of which will be an original but such counterparts or duplicates will together constitute one and the same agreement.

23.14.    Each Party shall from time to time on request by the other Party do or procure the doing of all such acts and will execute or procure the execution of all such documents as the requesting Party may reasonably consider necessary for giving full effect to this Agreement or securing to the other Party the full benefits of all rights, powers and remedies conferred upon the first Party in this Agreement. 

23.15.    If the duration of any time period relating to non-competition in this Agreement is deemed to be unreasonable, the Clause shall not be invalidated but the duration of such time period shall be reduced to such duration as is considered reasonable by the court.

23.16.    If this Agreement is translated into any other language, the version of this Agreement written in the English language shall prevail.