2005년말에 FX와 관련된 해외영업에서 작은 진전을 만들었습니다.
미국Refco라는 선물사로는 세계최대인 회사와 계약을 맺었습니다. FX사업을 위한 제휴를 하기로 ..그런데 제가 하늘에 진 죄가 많은지 계약서에 대한 문안을 확정하고 날인을 하기로 한 날로부터 1주일후에 미국에서 Refco가 파산하였다는 소식이 들려왔습니다… 일이 안되려면 이런 경우도 생깁니다. 중국 상해로 출장가서 아시아 책임자와 마무리지었는데.
아래는 혹시 해외와 계약을 하실 때 참조하시라고 원문중 중요한 사항만을 올려놓습니다. 최초 이 계약서는 다른 해외업체와 계약을 할 때 사용한 것인데…. 해외 상대방에서 변호사의 검토를 마친 문서였습니다.
국제영업이나 계약을 하실 때 도움이 되었으면 합니다.
COOPERATION AND IT SERVICES AGREEMENT
THIS AGREEMENT is made on October4, 2005 by and between:
1. REFCO CAPITAL MARKETS, LTD., a company incorporated under the laws of Singapore with its registered office at Suite No.542, 48 Par-La-Ville Road Hamilton HM 11, Bermuda(“REFCO”); and
2. NEXTWARE FINANCIAL CONSULTING CO. LTD, a company incorporated under the laws of the Republic of Korea with its registered office at 15-3, Yeouido-dong Yeongdeungpo-gu, Seoul, Korea (“NEXTWARE”).
WHEREAS
REFCO requires the performance of certain services and delivery of certain outputs from such services in relation to REFCO’s provision of the Margin Forex Trading Service to its customers. NEXTWARE has the necessary skills, know-how, qualifications and ability to perform such services and deliver such outputs and therefore agreed to perform such services and deliver such outputs all on the terms and subject to the conditions of this Agreement.
REFCO and NEXTWARE hereby agree as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 In this CooperationIT Services Agreement unless the context otherwise requires: “Agreement” means this CooperationIT Services Agreement comprised of terms and conditions included in Clauses below, and Schedules attached as may be varied or amended from time to time in accordance with this Agreement;
“Business Day” means a day (other than Saturdays, Sundays or public holidays) on which banks are open for business in [Korea];
“Change Control Procedure” means the procedure and process for making a variation to the Specifications, set out in Schedule 3 of the Agreement;
“Confidential Information” means all proprietary and confidential information of the Parties and those of their customers, clients or suppliers whether commercial, financial, technical or otherwise and material which by its very nature should obviously be treated as secret and confidential or which, due to the circumstances under which it is disclosed, a reasonable person would infer as confidential and which the Parties desire to protect against unrestricted disclosure or use or which is designated as such, including without limitation, the Project or any business operations carried on by both Parties or the method of carrying on such business operations.
“Deliverables” means any works, materials and items (including without limitation, the Software), business logic, any relevant documentation (including without limitation the Documentation) and other works, materials and items to be developed, provided, sold or licensed to REFCO under this Agreement.
“Documentation” means the operating manuals, user guides, training materials and associated documentation (if any) relevant to the Software, more specifically set out in Schedule 1.
“Effective Date” means the date of this Agreement.
“FCMs” means Korean Future Commissions Merchants which are REFCO’s customers.
“Intellectual Property Rights” includes but is not limited to any patent, copyright, design right, trade mark, service mark, trade dress, trade name, goodwill, geographical indication, integrated circuit layout-design right, know-how, confidential information, trade secret, any application (whether pending, in process or issued) for any of the foregoing, and any other industrial, intellectual property or protected right similar to the foregoing (whether registered, registrable or unregistered) in any country and in any form, media, or technology now known or later developed.
“Implementation Plan” means the plan and timetable set out in set out in Schedule 2.
“Parties” means REFCO and NEXTWARE collectively.
“Project” means the project comprising provision of the Services and delivery of Deliverables by NEXTWARE to REFCO specified in Schedule 1 pursuant to the terms of this Agreement.
“Project Price” means the price and rate for providing the Services and the Deliverables as specified in the Schedule 1.
“Services” means the services to be supplied to REFCO by NEXTWARE in relation to this Agreement as specified in Schedule 1, including without limitation, Development Service, Training and Support Service and Maintenance and Update Service.
“Specifications” means the specifications for the Software describing the intended facilities and functions thereof, set out in Schedule1.
“Software” means all software specified in Schedule 1, developed by or for NEXTWARE according to the Specifications and delivered to REFCO hereunder, any new releases thereof to be made generally available pursuant to Maintenance and Update Service, and any complete or partial copies of any of the foregoing.
“Source Materials” means in relation to the Software, all materials and documents necessary to enable a reasonably skilled programmer to understand, maintain,
amend and enhance the Software in question without reference to any other person or document and whether in eye-readable or machine readable form
including, without limitation, the source code listing of such Software and all normally available programmer’s comments.“Territory” means Korea.
“User Acceptance Test” means the user acceptance test to be implemented in accordance with Clause 13 hereafter.
1.2 In this Agreement, unless the context otherwise requires:
1.2.1 the clause headings are for convenient reference only and have no effect in limiting or extending the language of the provisions to which they refer;
1.2.2 the singular includes the plural and vice versa;
1.2.3 references to persons include individuals, partnerships, associations and bodies corporate;
1.2.4 references to days are to calendar days;
1.2.5 references to a gender include references to any other gender as the context requires;
1.2.6 a reference to a Clause or Schedule is a reference to a clause or schedule of this Agreement;
1.2.7 “in writing” means any communication in any written form or means, including facsimile and electronic transmission and traditional paper form;
1.2.8 where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings; and
1.2.9 the recitals to this Agreement do not form part of the Agreement.1.3 In the event of an inconsistency between the terms of this Agreement and the terms of the Schedule, the terms of this Agreement shall prevail unless the terms of the Schedule specifically and expressly modify the terms of this Agreement.
2 THE SCOPE OF THE AGREEMENT
REFCO hereby engages NEXTWARE to provide Services and Deliverables specified in Schedule 1 pursuant to the terms of this Agreement and NEXTWARE agrees to perform, provide and deliver such Services and Deliverables to REFCO in consideration of the Project Price.
3 TERM OF THE AGREEMENT
This Agreement shall take effect from the Effective Date. The term of this Agreement shall be for three(3) years and shall be automatically renewed on the anniversary of the Effective Date for additional consecutive terms of twelve (12) months, unless written notice of termination shall have been received by either Party from the other Party at least ninety (90) days prior to the end of the initial term or the applicable renewal term or unless this Agreement is terminated earlier as otherwise provided elsewhere herein
4 NEXTWARE’S OBLIGATIONS
4.1 NEXTWARE warrants and undertakes to:
(a) deliver the Software (in a form which meets theSpecifications) and the Documentation;
(b)provide the Services and all other services required in order to fulfil its obligations pursuant to this Agreement;
(c)grant or procure the grant of licences to use the Software to REFCO in accordance with the terms set out in Clause 5;
(d)deliver any other Deliverables to REFCO in accordance with terms set out in this Agreement;all in accordance with the provisions of this Agreement and any applicable laws and regulations.
4.2 Should any copy of the Software and/or Documentation be lost or destroyed, NEXTWARE will supply to REFCO a replacement copy of the same at the
reasonable cost only of the media on which the same is supplied.4.3 NEXTWARE shall be responsible for obtaining at NEXTWARE’s own expense any third party licences or consents necessary for the use of the Software by REFCO
as licensed under this Agreement.5 LICENCE
NEXTWARE hereby grants, or shall procure the grant by third parties, to REFCO of an exclusive, irrevocable right and licence to use and copy the Software in the Territory and other regions as REFCO shall require in its absolute discretion during the term of agreement. Any licence granted pursuant to this Clause 5 also permits REFCO to transfer the Software and grant to third parties sub-licences to use the same.
6 DEVELOPMENT
6.1 NEXTWARE shall develop the Software in accordance with the Specifications, prepare the Documentation (which shall be in English) and deliver the Software and the Documentation developed and prepared by NEXTWARE to REFCO (hereinafter collectively referred to as the “Development Service”).
6.2 In the event that NEXTWARE considers it necessary to use third party software in its provision of the Development Service, it shall first obtain approval from REFCO(which shall not be unreasonably withheld or delayed).
7 IMPLEMENTATION
7.1 NEXTWARE shall deliver to assigned FCM the Software in machine executable form on such medium or format specified by assigned FCM and shall install the Software on the date or within the time frame specified in the Implementation Plan, whichever is applicable.
7.2 NEXTWARE shall deliver to FCMs the Software in machine executable form on such medium or format specified by REFCO. NEXTWARE shall provide FCMs with twenty-five (25) Business Days’ advance written notice of its intention to make a delivery of the Software or any portion thereof under this Agreement. NEXTWARE shall use its best efforts to meet the time frames specified in the Implementation Plan.
8 TRAINING
NEXTWARE shall be responsible for the training of FCMs’ staff for the management of the Margin Forex Trading Service and shall provide support to FCMS and REFCO in the general management of the Margin Forex Trading Service (“Training and Support Service”), upon REFCO’s request.
9 MAINTENANCE AND UPDATE
9.1 NEXTWARE shall, at its own expense, undertake and be responsible for the continuing maintenance and service modification of the Software (“Maintenance
and Update Service”) during the term of the Agreement.9.2 Maintenance and Update Service shall include the following:
(a) performance of security updates of the Software at all times (including without limitation after the acceptance of the Software by REFCO), as and when NEXTWARE becomes aware of any possible security flaws in the Software and/or any applicable updates are announced, notified, released or made available to the general public by any person;
(b) performance of all other updates of the Software at all times (including without limitation after the acceptance of the Software by REFCO), as and when any applicable updates are announced, notified, release or made available to the general public by any person;
(c) rectification of all critical and non-critical bugs in and/or defects to the Software, and provision of the necessary patches to the Software (including without limitation after acceptance of the Software by REFCO) as and when required.10 ESCROW OF SOURCE MATERIALS
10.1 NEXTWARE acknowledges and agrees that it may become necessary if any of the events specified in Clause 10.4 shall occur for REFCO to obtain possession and make use of the Source Materials.
10.2 If requested by REFCO, NEXTWARE will at the same time as entering into this Agreement or any time during its term, enter into an arrangement to ensure that during the term of this Agreement the Source Materials are deposited and held in escrow with an escrow agent acceptable to REFCO(“Escrow Agreement”).
10.3NEXTWARE undertakes that for so long as the Agreement remains in force the Source Materials deposited with the escrow agent will be kept fully up to date.
10.4 NEXTWARE agrees to irrevocably authorise in writing that escrow agent will release such Source Materials on notice from REFCO that:
(a) NEXTWARE is unable to rectify a breach of any warranty in accordance with the terms of the Agreement;
(b) NEXTWARE expressly authorises the escrow agent in writing to release the Source Materials to REFCO;
(c) NEXTWARE is subject to any of the events set out in Clause 15.1(a) or (b); and
(d) NEXTWARE has refused to provide Maintenance and Update Service in accordance with Clause 9.10.5 The fees of the escrow agent will be paid jointly in equal proportions by REFCO and NEXTWARE.
11 PROJECT CHANGES
11.1 Where REFCO or NEXTWARE, during the implementation of this Agreement wishes to make any change (which term includes a modification) to the Services, Deliverables, Implementation Plan, Specifications or any other matter in relation to this Agreement (a “Change”), REFCO may at any time request and NEXTWARE may at any time recommend, such Change and propose an amendment to any of the foregoing. Any Change shall be subject to the Change Control Procedure set out in Schedule 3.
11.2 This Clause 11 shall not apply to any amendment, modification or alteration which is required to the extent it arises in consequence of any failure or delay on the part of NEXTWARE in performing its obligations hereunder or any breach of any warranty, condition or term of this Agreement on the part of NEXTWARE and any such amendment, modification or alteration shall be entirely at NEXTWARE’s cost and shall not affect any obligation of NEXTWARE to comply with the Implementation Plan.
12 PAYMENT
12.1 Except as other specified herein, REFCO shall pay the Project Price in accordance with the payment schedule set out in Schedule 4.
12.2 All charges are exclusive of value added tax or equivalent goods and sales tax which shall also be paid by REFCO but which shall only be paid if a receipt which is valid for such purposes is given to REFCO. All other taxes and charges are included in the Project Price.
12.3 In the event that any payment to be made in respect of any invoice is subject to withholding tax, REFCO shall make payment to NEXTWARE of the amount owing, less a deduction of the withholding tax and shall account to the relevant tax authority for the withholding tax.
12.4 REFCO may withhold payment against any invoice which covers or relates to Services, Deliverables or any other goods or services which have not been provided in accordance with this Agreement and shall forthwith notify NEXTWARE in writing accordingly.
13 ACCEPTANCE
13.1 ACCEPTANCE TESTING
Within twenty (20) Business Days of the completion of the implementation of the Software, REFCO, together with the FCMs shall commence User Acceptance Tests to determine whether the Software complies fully with and perform in accordance with the Specifications. REFCO will notify NEXTWARE in writing within ten (10)
Business Days after obtaining conclusive results of the User Acceptance Tests that either:(a) the Software has satisfied the User Acceptance Tests and REFCO accepts the Software; or
(b) the installed portion of the Software contains one or more deficiencies (a “Deficiency”).13.2 DEFICIENCIES
Upon receipt of written notification of a Deficiency during the User Acceptance Tests, NEXTWARE will immediately begin to prepare a written plan and schedule for correction of such Deficiency (“Correction Plan”) and shall deliver such Correction Plan to REFCO [and FCMs] for REFCO’s approval within five (5) Business Days of NEXTWARE’s receipt of notification of such Deficiency. REFCO will advise NEXTWARE in writing of its approval or rejection of the Correction Plan within three (3)
Business Days of its receipt. REFCO shall not withhold its approval unreasonably. If REFCO rejects the Correction Plan, REFCO will advise NEXTWARE in writing of the reasons therefor and NEXTWARE shall be required to submit a revised Correction Plan to REFCO in writing within five (5) Business Days of being so advised. NEXTWARE shall be required to continue to revise its Correction Plan until REFCO advises NEXTWARE in writing that the Correction Plan is acceptable. Upon acceptance of the Correction Plan by REFCO, NEXTWARE will immediately implement the approved Correction Plan.13.3 RESUMPTION OF USER ACCEPTANCE TESTS
Upon completion of the implementation of a Correction Plan, NEXTWARE shall immediately provide REFCO with written notice that the Correction Plan has been successfully implemented together with notice that, in NEXTWARE’s opinion, the Deficiency has been remedied. User Acceptance Tests will then commence.
13.4 Clauses 13.2 and 13.3 will also apply to any additional User Acceptance Tests to be conducted.
13.5 OPTIONS UPON FAILURE OF ACCEPTANCE TESTING
If two (2) or more User Acceptance Tests have been unsuccessfully completed, REFCO may at its sole option and discretion, in addition to any other remedies available to it, immediately terminate this Agreement in accordance with the provisions of this Agreement.
14 CONFIDENTIALITY
14.1 Subject to Clause 14.1(a) and (b) below and save as otherwise expressly provided in this Agreement, neither Party shall during the term of this Agreement or thereafter disclose to any person or use for any purpose any Confidential Information obtained by it (“Recipient Party”) from the other (the “Disclosing Party”) in connection with this Agreement but the Recipient Party, may, to the extent required or necessary:
(a)disclose Confidential Information if such disclosure is required by applicable laws, subsidiary legislation or regulations issued by any regulatory agencies or
authorities provided that the Recipient Party has promptly notified the Disclosing Party in writing of such requirement and allowed the Disclosing Party areasonable time to oppose such requirement; or
(b) use Confidential Information in the proper exercise of its rights and the performance of its obligations under this Agreement.14.2 The Recipient Party shall use its reasonable endeavours to minimize the risk of unauthorised disclosure or use and undertakes to take proper care and all
reasonable measures to protect the confidentiality of the Confidential Information using not less than the standard of care as it applies to its own Confidential Information and in no event less than a reasonable standard of care.14.3 The restrictions on use and disclosure of Confidential Information under Clause 14.1 shall not apply to any Confidential Information which the Recipient Party can prove:
(a)was already known to it prior to its receipt thereof from the Disclosing Party; or
(b) was subsequently disclosed to it lawfully by a third party who did not obtain the same (whether directly or indirectly) from the Disclosing Party;
(c) was in the public domain at the time of receipt by the Recipient Party or has subsequently entered in the public domain other than by reason of the breach of the provisions of this Clause or any obligations of confidence owed by the Recipient Party to the Disclosing Party.14.4 This Clause 14 shall survive termination of this Agreement.
15 EVENTS OF TERMINATION
15.1 Notwithstanding any prior provisions, both REFCO and NEXTWARE shall be entitled to terminate this Agreement forthwith by written notice to the other:
(a) if either Party commits a material breach of any of the terms or conditions of this Agreement and fails to remedy the same within thirty (30) days’ written notice from the non-breaching Party; or
(b) if either Party is unable to pay its debts as they fall due or a petition is presented or meeting convened for the purpose of winding up the Party or either Party enters into liquidation whether compulsorily or voluntarily or compounds with its creditors generally or has a receiver appointed of all or any part of its assets or takes or suffers any similar action in consequence of debt;15.2 REFCO shall be entitled to terminate this Agreement forthwith by written notice to NEXTWARE in any of the following events:
(a) if NEXTWARE fails to successfully complete any aspect of or fulfill any material requirement in accordance with the Specifications and in accordance with the
Implementation Plan;
(b) if two (2) or more User Acceptance Tests have been unsuccessfully completed, in accordance with Clause 13.5.15.3 Neither the expiration nor termination of this Agreement shall release either Party from the obligation to perform any other duty or to discharge any other liability that had been incurred prior thereto.
16 EFFECT OF TERMINATION
16.1 Upon request by REFCO, NEXTWARE shall following termination of this Agreement fully co-operate with and assist REFCO free of charge in order to ensure that such termination and its consequences cause the minimum disruption to REFCO’s business and affairs and the performance of its responsibilities. NEXTWARE will take all reasonable steps to mitigate any costs which REFCO may incur as a result of termination of this Agreement.
16.2 Upon request by REFCO, NEXTWARE shall provide all reasonable assistance for the migration of all work in progress to either REFCO or a third party nominated by REFCO and to give REFCO and/or such third party all help as may be necessary to enable such migration to take place.
16.3 Termination of this Agreement shall be without prejudice to any rights of either Party which may have accrued up to the date of such termination and the rights to terminate this Agreement are not intended to be exclusive but shall be in addition to every other remedy or right now hereafter existing including the right to recover damages.
17 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS GENERAL WARRANTIES
17.1 Each Party represents, warrants and undertakes that:
(a) it is a corporation validly subsisting under the laws of its jurisdiction of incorporation;
(b) it has full legal capacity, right, power and authority to enter into this Agreement and to perform its obligations hereunder; and,
(c) it has taken all corporate action necessary to authorize the execution and delivery of this Agreement.NEXTWARE’s warranties
17.2 NEXTWARE further represents, warrants and undertakes to REFCO the following in relation to the Services and the Deliverables:
(a)NEXTWARE has, being aware that REFCO is wholly reliant upon REFCO’s expertise and specialized skills in providing and delivering the Services and the Deliverables, exercised its utmost skill, care and diligence in such provision and delivery of the Services and the Deliverables;
(b)the Software and the Documentation, as at the date of successful completion of the User Acceptance Tests, complies with the Specifications in all respects;
(c) the Software shall be free from all computer viruses, spyware, worms, time-outs, time bombs, back doors, easter eggs, any harmful or malicious codes intended to or which may damage, disrupt, inconvenience or permit unauthorized access to any software, hardware, networks, data or information and other contaminants
that may and will be used to access, modify, delete or damage any data files or other computer programs used by REFCO and for this purpose NEXTWARE warrants
that it has used the most comprehensive and up to date virus checker available;
(d) there are no disabling programs or devices in the Software and nor will NEXTWARE introduce any at any time;
(e) notwithstanding any inspection or acceptance of any portion of the Software by REFCO: (i) the Software will be free from defects in design, materials and workmanship and will fully perform in accordance with all relevant Specifications for a period of one(1) year following the date of successful completion of the User Acceptance Tests;
(f) NEXTWARE will use its best efforts to install, implement and integrate all elements of the Software for which it is responsible into REFCO’s existing system without material disruption to the operations of REFCO;
(g) the Software does not infringe the Intellectual Property Rights of any third party;
(h) the Deliverables shall provide the facilities and functions and perform in accordance with the Specifications;
(i) all goods and materials employed in the Deliverables shall be of an appropriate and sufficient quality and standard and all Services shall be provided properly and efficiently in a professional manner with all reasonable due care and skill;
(j) NEXTWARE has not violated any laws, rules, regulations, directions or governmental requirements in the provision and delivery of the Services and the Deliverables;
(k) NEXTWARE has obtained all the necessary governmental and other licences, registrations, consents and approvals for it to enter into this Agreement and perform its duties hereunder and the same shall remain valid and subsisting throughout the term of this Agreement;
(l) there are no agreements, encumbrances or covenants with respect to the subject matter of this Agreement which in any way conflict or interfere with NEXTWARE’s right to enter into this Agreement or which conflict or interfere with REFCO’s right to exercise the rights granted to it under this Agreement and NEXTWARE will not
enter into any such agreements, encumbrances or covenants without the prior written consent of REFCO.PERFORMANCE WARRANTY
17.3 If the Software does not comply and fully perform in accordance with the Specifications, NEXTWARE shall, at the request of REFCO, be required to rectify all faults and defects at its own expense.
18 LIMITATION OF LIABILITY AND INDEMNITY
LIMITATION OF LIABILITY
18.1 Nothing in this Agreement excludes or limits the liability of either party in respect of any indemnity given in this Agreement, dishonesty, or tort of deceit, or willful neglect by its employees, agents or contractors, fraudulent misrepresentation and liability which may not otherwise be limited or excluded under any applicable law.
18.2 Subject to Clause 18.1 above, in no event shall REFCO be liable to NEXTWARE for loss of revenue, loss of profits, loss of business, loss of contracts, loss of data,
loss of anticipated savings or loss of goodwill, or any indirect, consequential or special loss of whatever nature arising out of or in connection with this Agreement notwithstanding that any such loss may have been foreseeable or within the reasonable contemplation of either Party.INDEMNITY
18.3 NEXTWARE will indemnify and save harmless REFCO, its employees, officers, directors, shareholders and agents from and against any and all losses, allegations,
claims, costs, damages, expenses, actions, proceedings (including reasonable lawyer’s fees) or liabilities of whatsoever nature arising out of any material breach by it of its obligations under this Agreement or arising out of or in connection with any allegation or claim that the Deliverables or any part thereof infringes any Intellectual Property Rights or proprietary rights belonging to any third party.CONTINUED USE
18.4 In the event that the use of all or any part of the Software by REFCO is threatened by court action or injunction, NEXTWARE will, in addition to its own obligations under this Agreement and at its own expense, either:
(a)modify or substitute the Software or the relevant part thereof, in order to avoid continuing infringement while continuing to conform with the Specifications; or
(b) obtain for REFCO the right to continue the use or possession of the infringing Software or part thereof;
(c) if neither of the foregoing alternatives is available on a commercially reasonable basis, provide notice of termination of this Agreement.THIRD PARTY SOFTWARE
18.5 To the extent that NEXTWARE is permitted to do so, NEXTWARE shall assign to REFCO in full any patent, copyright, trade secret and other intellectual property or contractual right warranties and indemnities originally provided to NEXTWARE by a third party in respect of all or part of any third party software.
19 EXCLUSIVITY
NEXTWARE acknowledges that it has developed the Software for the sole and exclusive use of REFCO relating to REFCO’s provision of the Margin Forex Trading Service to the FCMs. As a result of the foregoing, NEXTWARE undertakes the following:
(a) NEXTWARE shall not grant to any third party a licence to use the Software; and
(b) NEXTWARE shall not develop any software similar to the Software for the benefit of any of its FCM customers.and REFCO’s competitors without REFCO’s prior consent.20 RELATIONSHIP OF PARTIES
REFCO and NEXTWARE are respective independent companies. Either Party, its agents or employees shall under no circumstances be deemed to be agents or representatives of the other party. Either Party shall not enter into any contracts in the name of or on behalf of the other party, or shall either Party, its agents or employees bind the other Party in any respect whatsoever.
21 WAIVERS
No forbearance, delay or indulgence by either Party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that Party nor shall any waiver of its rights in relation to a breach of this Agreement operate as a waiver of any subsequent breach and no right, power or remedy given to or reserved to either Party under this Agreement is exclusive of any other right, power or remedy available to that party and each such right, power or remedy shall be cumulative.
22 VARIATIONS
This Agreement may not be amended or modified except by in writing signed by authorized representatives of both Parties.
23 SEVERABILITY
If any term or provision of this Agreement is held invalid, illegal or unenforceable, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect.
24 NOTICES
Any notice required under this Agreement shall be given in writing and in the English language and sent to the address of the Party for which it is intended to be given, or such other address as shall have been notified to the other Party in accordance with this Clause and be sent by registered post, or equivalent, courier, facsimile or other electronic transmission and:
(i)if posted, shall be deemed to have been received three (3) Business Days after the date of posting, or in the case of a notice to an addressee not in the country
of the sender, ten (10) Business Days after the date of posting;
(ii) in the case of facsimile or other electronic transmission, upon confirmation of complete receipt being given by the intended recipient party;
(iii) if couriered, on delivery.25 ASSIGNMENT AND SUB-CONTRACTING
Neither party may assign or sub-contract any of its rights or obligations under this Agreement to any other third party without first obtaining the express written consent of the other party (which shall not be unreasonably withheld or delayed).
26 THIRD PARTY RIGHTS
This Agreement does not create or confer any rights or benefits enforceable by any person not a party to it (within the meaning of the Singapore Contracts (Rights of Third Parties) Act (Cap.53B).
27 ENTIRE AGREEMENT
The terms and conditions contained herein constitute the entire agreement between the Parties hereto and shall supersede all previous agreements, statements, representations, understandings, negotiations and discussions, whether oral or written, between the Parties with respect to the subject matter hereof. Each of the Parties acknowledges and agrees that in entering into this Agreement it does not rely on any statement, representation, warranty or understanding made prior to this Agreement save to the extent that such statement, representation, warranty or understanding is incorporated into this Agreement. Each of the parties acknowledges and agrees that in entering into this Agreement it has not relied on (or has been induced to enter into this Agreement) by a statement, representation, warranty or
understanding made prior to this Agreement.28 ARBITRATION
28.1 Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to
and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this Clause 28.1.28.2 The Tribunal shall consist of 3 arbitrator(s) to be appointed by the Chairman of the SIAC.
28.3 The language of the arbitration shall be in English.
28.4 Nothing in this Clause 28 prevents any party from seeking equitable relief (including injunctions or specific performance) from the competent courts of the Republic of Singapore. For this purpose, the Parties submit and agree to the exclusive jurisdiction of the Singapore courts.
29 APPLICABLE LAW AND JURISDICTION
This Agreement and any matter relating this Agreement shall be governed by and construed in accordance with the laws of Singapore. The Parties submit and agree to the exclusive jurisdiction of the Singapore courts in relation to disputes which are by the law excluded from resolution at the SIAC in accordance with Clause 28.
IN WITNESS WHEREOF, this Agreement has been executed on the day and year first above written.
