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Astro Lighting Limited Terms and Conditions of Sale of Goods

1. Definitions

In this Agreement, the following words shall have the following meanings:

1.1 "Supplier" means Astro Lighting (Singapore) Pte. Limited (Registration No. 201601285G), a company incorporated and existing under the laws of Singapore and having its registered office at 16 Raffles Quay, #10-00 Hong Leong Building Singapore 048581;
1.2 "Customer" means the customer of the Supplier specified in a relevant purchase order;
1.3 "Goods" means any goods which the Supplier supplies to the Customer pursuant to a purchase order;
1.4 "GST" means Singapore Goods and Services Tax, pursuant to the Goods and Services Tax Act, Chapter 117A of Singapore;
1.5 "Delivery Date" means the date on which the Goods are deemed to be delivered in accordance with clause 9;
1.6 "Account Address" means the address provided by the Customer when setting up an account with the Supplier;
1.7 "Intellectual Property Rights" means patents, registered designs, unregistered designs, trade marks and service marks, domain names, copyright, design right, database rights, moral rights, utility models, trade or business names, trade secrets and other proprietary knowledge and information, specifications, formulae, data, processes, methods, techniques, improvements, other technology and/or discoveries, know-how, materials, rights protecting goodwill and reputation, rights in inventions, computer programs, designs, rights in confidential information and any other intellectual or industrial property right of any nature whatsoever, whether registered or unregistered or applied for, and together with (i) all rights of action in relation to the infringement of and the right to apply for any of the above, from time to time existing anywhere in the world and (ii) anything which is capable of protection by any of the foregoing rights;
1.8 "Personal Data" shall have the meaning set out in the Personal Data Protection Act, No. 26 of 2012 of Singapore; and
1.9 "Insolvency Event" means in relation to the Customer:

(a) the Customer ceases to carry on business;

(b) the Customer is or becomes unable to pay its debts when they are due;

(c) any step is taken by the Customer to enter into any scheme of arrangement with its creditors;

(d) any step is taken by a mortgagee to enter into possession or dispose of the whole or any part of the Customer's assets or business; or

(e) any step is taken to appoint a receiver and manager, a judicial manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other like person to the Customer or to the whole or any part of the Customer's assets or business.

2. Conditions Applicable

2.1 These Terms and Conditions shall apply to the sale of Goods by the Supplier to the Customer to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.2 An order for the Goods placed by the Customer or any agent of the Customer shall be deemed to be:-

2.2.1 an offer by the Customer to purchase Goods pursuant to the provisions of these Terms and Conditions;
2.2.2.accepted only when the Supplier issues a written acceptance of the order, at which point these Terms and Conditions shall become binding on the parties; and
2.2.3 conclusive evidence of the Customer's acceptance of these Terms and Conditions.

2.3 The Supplier reserves the right to decline an order for any reason at any time, at its sole discretion, or demand collateral.
2.4 Any variation of these Terms and Conditions (including any special terms and conditions agreed between the parties) shall be invalid unless agreed in writing by the parties.

3. Description

The Customer acknowledges and agrees that any description which is given or applied to the Goods:

is only for the purpose of identifying the Goods; and

is not relied on by the Customer when entering into these Terms and Conditions.

4. Supplier Warranty

4.1 The Supplier warrants that on delivery, the Goods shall reasonably:

4.1.1 conform in all material respects with their description; and
4.1.2 be free from material defects in design, material and workmanship.

4.2 The Supplier shall not be liable for the failure of any Goods to comply with the warranty set out in clause 4.1 in any of the following events:

4.2.1 the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
4.2.2 the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;
4.2.3 the Customer alters or repairs such Goods without the written consent of the Supplier;
4.2.2 the defect arises as a result of (including but not limited to) fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
4.2.5 the Goods differ from their description as a result of changes made by the Supplier to ensure they comply with applicable statutory or regulatory requirements.

4.3 The warranties set out in clause 4.1 shall not apply to any bulbs or components supplied by third parties that are incorporated in the Goods.
4.4 Subject to clause 4.1, all conditions or warranties in relation to the Goods, express or implied (whether by statute or otherwise, to the fullest extent permitted by law), are expressly excluded from these Terms and Conditions. The warranties, obligations and liabilities of the Supplier and the rights and remedies of the Customer set forth in these Terms and Conditions are exclusive and are in lieu of and the Customer hereby waives and releases all other conditions, warranties, obligations, representations or liabilities, express or implied, arising by law (including implied conditions of the Sale of Goods Act, Chapter 393 of Singapore), in contract, civil liability or in tort, or otherwise, including but not limited to (a) any implied warranty or merchantability or of fitness for a particular purpose, and (b) any other obligation or liability on the part of the Supplier to anyone of any nature whatsoever by reason of the design, manufacture, sale, repair, lease or use of the Goods or related products and services delivered or rendered hereunder or otherwise.

5. Acknowledgement of Examination

5.1 The Customer agrees:

5.1.1 to inspect the Goods on delivery;
5.1.2 that it must notify the Supplier of any defect or damage which would be apparent upon a reasonable visual inspection within five (5) days of the Delivery Date;
5.1.3 that in the absence of such notification described in clause 5.1.2 the Customer is deemed to be satisfied as to the condition of the Goods which would be evident upon reasonable examination; and
5.1.4 that, subject to clause 4.1, the Supplier has not given any warranty or condition as to quality or fitness for any purpose of the Goods.

5.2 If the quantity of goods delivered is different from that ordered, the Customer must notify the Supplier of such deficiency within five (5) days of delivery failing which the Customer shall be deemed to have accepted the amount actually delivered as being in accordance with the Customer's order.

6. Defects and Guarantee

6.1 The Supplier will, at its option, either make good by repair or the supply of a replacement, material defects (determined by reference to the warranties set out in clause 4.1) which, under proper use, appear in the Goods within a period of three (3) years after the Goods have been delivered, provided that:

6.1.1 the defect would not have been apparent from reasonable inspection by the Customer on delivery made in accordance with clause 5.1.1;
6.1.2 the Customer notifies the Supplier in writing of the claimed defects in accordance with clause 5.1.2;
6.1.3 the Supplier is satisfied that the defects arise solely from faulty design (other than a design made, furnished or specified by the Customer), materials or workmanship of the Supplier;
6.1.4 the Goods or parts thereof claimed to be defective are returned to the Supplier at the risk of the Customer but at the expense of the Supplier; and
6.1.5 the repaired or replacement Goods will be delivered to the Customer to the original place of delivery, but otherwise subject to the provisions of these Terms and Conditions.

6.2 As an alternative to clause 6.1, the Supplier shall be entitled, at its absolute discretion, to refund the price paid by the Customer for the Goods in question.
6.3 The remedy provided in this clause 6 is the sole and exclusive remedy of the 6.4 Customer under these Terms and Conditions and is without prejudice to the other provisions of these Terms and Conditions, including, without limitation, clause 13 below.

6.4 These Terms and Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.

7. Sample

The Customer acknowledges and agrees that where a sample of the Goods has been shown to and/or inspected by the Customer:

7.1 the sole purpose of the Supplier in doing so was to enable the Customer to judge the quality of the bulk; and
7.2 the provision of such sample does not form part of these Terms and Conditions or have any contractual force and, for the avoidance of doubt, shall not constitute a sale by sample.

8. Price

8.1 All amounts stated by the Supplier are exclusive of GST and/or any other applicable taxes or levy, which shall be charged in addition at the rate in force at the date any payment is required from the Customer and in the manner from time to time prescribed by law. The parties agree that the Customer shall be responsible for any and all applicable GST charged.
8.2 If the Customer must at any time deduct or withhold any tax or other amount from any sum paid or payable by the Customer, the Customer shall pay such additional amount to the Supplier as is necessary to ensure that the Supplier receives on the due date and retains (from any liability other than tax on its own overall net income) a net sum equal to what it would have received and so retained had no such deduction or withholding been required or made.
8.3 The Supplier reserves the right to adjust its prices for any increase in any costs of any kind arising for any reason (including but not limited to changes in law or engineering standards applicable to or affecting the Goods) after the date of these Terms and Conditions.
8.4 The Customer shall pay the price for the Goods as stated on the invoice issued by the Supplier and not as stated on any quotation, estimate, documentation or given orally.
8.5 The Customer shall pay all amounts due under these Terms and Conditions in full without any set-off, counterclaim, deduction or withholding (except for any deduction of withholding required by law). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

9. Delivery

9.1 The Supplier shall, on agreement with the Customer, either make the Goods available for collection by the Customer or deliver the Goods to either the Account Address or such registered business address as may be agreed between the parties. Where the Supplier transports the Goods to the Customer, the Supplier reserves the right to charge for all transport costs including any taxes or charges.
9.2 Subject to the method of delivery to be determined in accordance with clause 9.1, the Goods shall be deemed to have been delivered to the Customer when:

9.2.1 the Supplier makes them available to the Customer or agent of the Customer or any carrier (who shall be the Customer's agent whether or not the charges are paid by the Supplier or Customer); or
9.2.2 the Goods are delivered to the Customer or agent of the Customer or any carrier (who shall be the Customer's agent whether or not the charges are paid by the Supplier or Customer) by the Supplier or the Supplier's agent or subcontractor.

9.3 Any dates quoted for delivery by the Supplier are approximate only and are always subject to change, unless fixed deadlines are explicitly agreed upon in individual contracts. These are definite only if the Supplier has received on time from the Customer (including but not limited to) the documents, permits, approvals necessary to bring the contract to effect, as well as any prearranged payments. The parties further agree that the time of delivery shall not be of the essence, and the Supplier shall be entitled to make delayed deliveries, partial deliveries and/or advance deliveries if deemed appropriate and practical by the Supplier.
9.4 If the Customer fails to take delivery of the Goods or any part of them on the due date and fails to provide any instructions, documents, licences, consents or authorisations required to enable the Goods to be delivered on the due date, the Supplier shall be entitled, upon giving written notice to the Customer, to store or arrange the storage of Goods. In this situation, the risk in the Goods shall pass to the Customer and delivery will be deemed to have taken place. The Customer shall be liable to pay to the Supplier all costs and expenses arising as a result of the failure to take delivery.
9.5 Any shipment terms quoted in relation to the delivery of the Goods shall be in accordance to Incoterms 2010 or its latest version as from time to time modified, supplemented or revised.

Risk

10.1 The risk in the loss of or damage to the Goods shall pass to the Customer as soon as they are delivered on the Delivery Date (including all risks associated with unloading) or upon title in the Goods passing to the Customer, whichever is the earlier.

11.Title

11.1 Title to the Goods shall not pass to the Customer until the Supplier receives payment of the price (and any other sums that are due or owing to the Supplier) in full, whether or not delivery of the Goods has been made.
11.2 Notwithstanding clause 11.1, title to the Goods shall pass to the Customer upon notification by the Supplier in writing.
11.3 Until title to the Goods passes to the Customer, the Customer shall:

11.3.1 keep the Goods in satisfactory condition, in their packaging and separate from other goods so that they remain readily identifiable as the Supplier's property; and
11.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods.

11.4 The Supplier shall be entitled at any time before the title passes to re-possess and dismantle (without being liable for any damage caused by doing so) all or any of the Goods and for that purpose to enter any premises of the Customer. If in such circumstances the Goods are stored or otherwise held on premises belonging to any third party, the Customer shall procure the right for the Supplier to enter such premises to re-possess and dismantle the Goods.
11.5 The Customer shall reimburse the Supplier for any expenses and costs to the Supplier in recovering any Goods arising from any non-compliance by the Customer with the terms of clause 11.4.

12. Payment

12.1 Payment for the Goods shall be made by the Customer upon the issuance of the proforma invoice, unless agreed otherwise in writing by the parties. The time of payment of the price shall be of the essence of these Terms and Conditions.
12.2 If payment is not received in accordance with clause 12.1, the Supplier shall be entitled:

12.2.1 to charge the Customer interest on the outstanding amount at the rate of four percent (4%) per annum above the average Prime Lending Rate of DBS Bank Limited, the United Overseas Bank Limited and the Oversea-Chinese Banking Corporation Limited, from the due date until payment in full is made;
12.2.2 to require that the Customer makes a payment in full in advance of any delivery not yet made; and
12.2.3 not to make any delivery in respect of Goods ordered but not yet delivered.

13. Returns

Goods which are not faulty or defective can only be returned with the prior agreement of the Supplier (at the Supplier's complete discretion). Non-faulty or defective goods and their packaging must be returned in re-saleable condition, and at the Customer's own cost, and will be subject to a re-stocking charge of an amount equal to twenty percent (20%) the price paid in respect of the Goods that are returned in accordance with this clause 13.

14. Limitation of Liability

14.1 Nothing in these Terms and Conditions shall limit or exclude the Supplier's liability:

14.1.1 for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
14.1.2 for fraud or fraudulent misrepresentation;
14.1.3 for breach of the terms implied by Sections 12 to 15 of the Sale of Goods Act, Chapter 393 of Singapore;
14.1.4 under the Consumer Protection (Fair Trading) Act, Chapter 52A of Singapore; or
14.1.5 for any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.

14.2 Subject to clause 14.1:

14.2.1 the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or any other legal theory, or otherwise, for (included but not limited to):

cost of capital;
costs of replacement;
loss of profits (actual or anticipated);
loss of opportunities;
loss due to business interruption;
loss of interest;
loss of sales or business;
loss of agreements or contracts;
loss of anticipated savings;
loss of or damage to goodwill or reputation;
loss of use or corruption of software, data or information; or
any indirect, incidental, special, punitive or consequential losses or damages

arising under or in connection with these Terms and Conditions; and

14.2.2 the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with these Terms and Conditions, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the price of the Goods in relation to which such liability has arisen.

14.3 Clause 14.2.1 shall apply to the benefit of the Supplier's personnel, the Supplier's affiliates and the Supplier's sub-contractors.

15. Data Protection

15.1 By placing an order in accordance with these Terms and Conditions, the Customer hereby consents to the use of its (and its employees' and agents') Personal Data by the Supplier for the following purposes:

15.1.1 to enable the Supplier to fulfil its obligations under these Terms and Conditions;
15.1.2 for the administration of the Customer's order;
15.1.3 for marketing and promotional purposes; and
15.1.4 to obtain feedback from customers and administer customer surveys.

15.2 The Supplier shall process the Personal Data only to the extent, and in such a manner, as is necessary for the purposes specified in clause 15.1 and shall not process the Personal Data for any other purpose, unless authorised or required under the Personal Data Protection Act (No. 26 of 2012 of Singapore), or other written law as amended from time to time.

16. Intellectual Property

16.1 The Supplier shall retain and own all Intellectual Property Rights in and to the Goods. The Customer shall use best endeavours to ensure that such rights vest in the Supplier by the execution of appropriate instruments or the making of agreements with third parties (if necessary).
16.2 To the extent that the Goods are to be manufactured in accordance with modifications and/or improvements requested by the Customer (the acceptance of which are at the complete discretion of the Supplier), the Customer acknowledges that the Supplier shall own any Intellectual Property Rights in such modifications and improvements and the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages, suits, claims and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Supplier's use of any specification or details supplied with the Customer's request. This clause 16.2 shall survive termination of these Terms and Conditions.
16.3 The Supplier reserves the right to amend the specification of the Goods if required by an applicable statutory or regulatory requirement.

17. Termination

17.1 If the Customer becomes subject to any of the events listed in clause 17.2, the Supplier may terminate these Terms and Conditions with immediate effect by giving written notice to the Customer.
17.2 For the purposes of clause 17.1, the relevant events are:

17.2.1 an Insolvency Event occurs in respect of the Customer;
17.2.2 the Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
17.2.3 the Customer's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under these Terms and Conditions has been placed in jeopardy.

17.3 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under these Terms and Conditions or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 17.2.1 to clause 17.2.3, or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under these Terms and Conditions on the due date for payment.
17.4 On termination of these Terms and Conditions for any reason the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest.
17.5 Termination of these Terms and Conditions, however arising, shall not affect any of the parties' rights, remedies, obligations and liabilities that have accrued as at termination.
17.6 Clauses which expressly or by implication survive termination of these Terms and Conditions shall continue in full force and effect.

18. General

18.1 Assignment

The Customer shall not assign any of its rights or obligations under this Agreement without the prior written consent of the Supplier, such consent to be signed by its authorised representatives. Any attempted delegation or assignment shall be void. The Supplier may attach conditions to the giving of its consent.

The Supplier may assign any of its rights (including receivables) under this Agreement without the prior written consent of the Customer.

The Supplier may sub-contract the performance of this Agreement or any part of this Agreement without obtaining the prior consent of the Customer.

18.2 Force Majeure

The Supplier shall not be liable to the Customer or be deemed to be in breach of this Agreement by reason of any delay in performing, or any failure to perform, any of the Supplier's obligations in relation to the Goods, if the delay or failure was due to force majeure.

For the purposes of this clause, force majeure shall mean any unforeseen event beyond the reasonable control of the Supplier such as, but not limited to any act of God, act of government or any authorities, non-issuance of licences, hostilities between nations, war, riot, civil commotions, civil war, insurrection, blockades, import or export regulations or embargoes, rainstorms, national emergency, earthquake, fires, explosion, flooding, hurricane or other exceptional weather conditions or natural disaster, acts of terrorism, accidents, sabotages, strikes, shortages in material or supply, infectious diseases, epidemics, as well as travel restrictions or travel warnings due to any such events. If any delay in performing, or any failure to perform this Agreement is caused by the delay of a subcontractor of the Supplier, and is beyond the control and without the fault or negligence of the Supplier, the Supplier shall incur no liability for such delay.

Where there is force majeure, the Supplier is entitled to a reasonable extension of the Delivery Date(s).

Without prejudice to the other provisions of this Agreement, where the force majeure continues for more than six (6) months, the Supplier shall have the right to terminate this Agreement. In such a situation, the Supplier shall be reimbursed for Goods already performed/delivered, cost of materials or goods reasonably ordered, any other expenditure reasonably incurred in the expectation of completing the Goods as well as the reasonable cost for removal of the Supplier's equipment and demobilization of personnel, if applicable.

18.3 Amendments

These Terms and Conditions may only be amended in writing signed by duly authorised representatives of both parties.

18.4 Entire Agreement

Subject to the incorporation of these Terms and Conditions (if relevant) in the Supplier's form of distribution agreement as amended from time to time, these Terms and Conditions contain the entire agreement between the parties and supersede and replace any prior written or oral agreements, representations or understandings between them.

18.5 Waiver

No failure or delay by the Supplier in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in Agreement are cumulative and not exclusive of any rights and remedies provided by law.

18.6 Severance

If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from these Terms and Conditions and rendered ineffective as far as possible without modifying the remaining provisions of these Terms and Conditions, and shall not in any way affect any other circumstances of or the validity or enforcement of these Terms and Conditions.

18.7 Non-exclusivity

Notwithstanding anything in this Agreement, the Supplier shall, in its sole discretion, reserve the right to enter into any negotiations, arrangements or agreements with any person (other than the Customer) for the supply of the same or similar goods without being liable to the Customer in any way whatsoever.

18.8 Relationship of Parties

Nothing contained in this Agreement shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in this Agreement shall be deemed to construe either of the parties as the agent of the other.

18.9 Governing Law

This Agreement shall be governed by and construed in accordance with the laws of Singapore. The terms of the United Nations Convention on Contracts for the International Sale of Goods ("CISG") referred to in the Sale of Goods (United Nations Convention) Act, Chapter 283A of Singapore, explicitly shall not apply.

The parties will use their best efforts to negotiate in good faith and settle any dispute that may arise out of or in relation to this Agreement or any breach of it. If any such dispute cannot be settled amicably through ordinary negotiations between representatives of the parties, the dispute shall be referred to the management of each party who will meet in good faith in order to try and resolve the dispute.

All negotiations connected with the dispute will be conducted in complete 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 and such negotiations shall be without prejudice to the rights of the parties in any future proceedings.

In the event any such dispute is unresolved after thirty (30) days of the commencement of such negotiations, such disputes arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be finally settled under the Rules of 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.

For disputes where the total quantum in dispute (including all counterclaims) is less than S$5 million, the tribunal shall consist of one (1) arbitrator to be appointed by the Chairman of SIAC. For all other disputes, the tribunal shall consist of three (3) arbitrators to be appointed by the Chairman of the SIAC. The seat of arbitration shall be Singapore. The language to be used in the arbitration proceedings shall be English.

18.10 Headings

The headings of these Terms and Conditions are for convenience of reference only and shall not affect their interpretation.

18.11 Contracts (Rights of Third Parties) Act

Save for the Astro group of companies, the parties do not intend that any term of this 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 this Agreement. Notwithstanding the foregoing, any right or remedy of a third party which exists or is available apart from the said Act shall not be affected.

18.12 Interpretation

In these Terms and Conditions, unless the context requires otherwise:

18.12.1 words importing any gender include every gender;
18.12.2 words importing the singular number includes the plural number and vice versa;
18.12.3 words importing persons include firms, companies and corporations and vice versa;
18.12.4 the headings to the clauses, schedules and paragraphs of these Terms and Conditions are not to affect the interpretation;
18.12.5 any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate by-law made under that enactment; and
18.12.6 where the word "including" is used in these Terms and Conditions, it shall be understood as meaning "including without "Limitation".

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