EQUIPMENT LOAN AGREEMENT
This equipment loan agreement (“Agreement”) is made and entered into as of the date of the relevant Demo Equipment Loaner Form (the “Effective Date”) by and between:
Evident Scientific Singapore Pte. Ltd., established and existing under the laws of Singapore, with its registered office at 25 Ubi Road 4, #04–04/05, UBIX, Singapore 408621 (“Evident”); and
The entity named in the relevant Demo Equipment Loaner Form (the “Loanee”).
WHEREAS, Evident is engaged in the business of manufacturing and developing certain equipment and Loanee is desirous of holding certain equipment on loan at its premises for a period of time.
NOW, THEREFORE, in consideration of the mutual promises, conditions and covenants contained in this Agreement, the parties agree as follows: -
1. Loan of equipment
1.1 The equipment (the “Equipment”) as listed in Demo Equipment Loaner Form are to be loaned for use by the Loanee for the purpose listed in the Demo Equipment Loaner Form (the “Purpose”).
1.2 The Loanee acknowledges that the Equipment shall be on a loan basis and used for the Purpose as per Clause 1.1 only.
1.3 The Loanee shall periodically perform preventive maintenance on the Equipment.
1.4 The Loanee shall ensure that the Equipment is kept in good working condition during the Term and shall maintain the Equipment during the Term in accordance with the standards set by Evident and shall also retain proof of such actions. If required by Evident, the Loanee shall enter into a separate maintenance agreement with Evident and shall be solely responsible for the costs associated with the same.
1.5 Upon the request of Evident, the Loanee shall return the Equipment in good working condition.
2. Term
This Agreement shall commence from the Loan Start Date and shall remain in force until the Loan End Date (the “Term”). Thereafter, this Agreement may be extended on such terms as are agreed between the Parties in writing.
3. Title and Ownership
3.1 The Loanee warrants, covenants and agrees that the Equipment loaned by Evident shall be free and clear of all liens, judgments, charges, security interests, claims or other encumbrances during the Term.
3.2 Title to the Equipment shall vest in and belong to Evident at all times during the Term.
3.3 Upon written demand by Evident, the Loanee shall return the Equipment to Evident in good order and condition, except for reasonable wear and tear.
4. Damage, damaged beyond repair or loss of Equipment
4.1 The Loanee shall be responsible for the repair costs of any damaged Equipment.
4.2 In the event that the Equipment is damaged beyond repair or unable to be accounted for/ lost, the Loanee shall pay Evident the full replacement price of the Equipment at the market price as at the date of the damage or loss. In such an event, Loanee agrees to notify Evident with official documentation from the authorities, for example police report or health authorities report for the loss of Equipment as soon as reasonably possible.
5. Delivery and return of the Equipment
5.1 The Loanee shall bear all freight, insurance and custom expenses for the delivery of the Equipment to and from the location of the Loanee.
5.2. The Loanee shall ensure that the Equipment is returned to Evident within fourteen (14) days after the end of the Term.
5.3 In the event that the Equipment is not returned in accordance with clause 5.2 above, the Loanee shall compensate Evident a late return fee based on the actual selling price of the Equipment to the Loanee to be calculated over a period of three hundred sixty-five (365) days and payable for each day that the Equipment is not returned.
6. Records of the Equipment
The Loanee shall keep a record of all the Equipment and any documents in relation to the Equipment and shall give the representatives of Evident access to such records upon written request, including and not limited to, field inspection certificate and consignment note records. The Loanee agrees to, upon Evident’s request, permit the representatives of Evident to enter its premises at reasonable times to take an inventory of the Equipment in the Loanee’s possession to confirm whether the physical inventory corresponds with the records.
7. Warranty and Limitation of Liability
7.1. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, EVIDENT MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE OPERATION OR CONDITION OF THE EQUIPMENT OR ANY PART THEREOF, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY ON ITS MERCHANTABILITY, ITS DURABILITY OR ITS FITNESS FOR A PARTICULAR PURPOSE.
7.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, IN NO EVENT SHALL EVIDENT BE LIABLE TO THE LOANEE FOR ANY CLAIM, LOSSES OR DAMAGES CAUSED OR ALLEGED TO BE CAUSED, DIRECTLY OR INDIRECTLY, INCIDENTALLY OR CONSEQUENTIALLY OR SPECIAL DAMAGES HOWSOEVER CAUSED BY THE EQUIPMENT, OR FOR ANY EXEMPLARY OR PUNITIVE DAMAGE, ARISING OUT OF OR IN CONNECTION WITH OR RESULTING FROM THE EQUIPMENT DELIVERED BY EVIDENT TO THE LOANEE UNDER THIS AGREEMENT OR THE PERFORMANCE OR BREACH OF, REGARDLESS WHETHER SUCH DAMAGES ARE BASED UPON TORT, NEGLIGENCE, FRAUD, WARRANTY, CONTRACT OR OTHERWISE, OR IN ANY WAY RELATED TO OR ARISING OUT OF THIS AGREEMENT EVEN IF EVIDENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. Indemnity and Insurance
The Loanee agrees to indemnify, defend and hold Evident harmless from any and all damages, losses, claims, causes of action, expenses and liability of any nature whatsoever associated with the Loanee’s use of the Equipment while under the care, custody and control of the Loanee unless due to the negligence of Evident. The Loanee shall, at its own cost, insure the Equipment with reputable insurers during the Term in an amount equal to the Damaged Beyond Repair/ Loss of Equipment value, under an all-risks property insurance policy. Such insurance shall be maintained at the Customer’s expense and shall not be cancelled during the Term.
9. Assignment
Loanee shall not assign any of its rights under this Agreement, or delegate the performance of any of the obligations or duties hereunder, without the prior written consent of Evident and any attempt to so assign, transfer, or subcontract any rights, duties or obligations arising hereunder shall be void and of no effect.
10. Notices
10.1 Unless otherwise provided or specified by the parties after the date of this Agreement, any notice, consent, approval or other communication required to be given by the parties under this Agreement must be in writing and sent to the address set forth in the Demo Equipment Loaner Form.
10.2 A notice or other communication sent:
(a) by hand shall be deemed to have been served when delivered;
(b) by registered post shall be deemed to have been served on the third (3rd) business day after posting.
11. Confidentiality
Except as required by law, the parties under this Agreement warrant and represent to, and undertake with, each other that they shall not divulge, disclose or communicate to any person, or use or exploit for any purpose whatsoever, any confidential knowledge or information or any business, financial or commercial information, technical data, trade secrets or know–how, any information concerning transactions or affairs relating to the other party and/or clients or customers of the other party which it may receive or obtain in the course of this Agreement.
12. Compliance with Laws
The Loanee shall, in the performance of this Agreement, comply with all applicable laws, regulations, orders, industry practice guidelines and the like, including, without limitation, all applicable laws and regulations relating to fair competition, anti–corruption and anti–bribery (including the United States Foreign Corrupt Practices Act and UK Bribery Act 2010). The Loanee shall hold Evident harmless from any claim, liability, cost or expense arising out of a violation thereof.
13. Force Majeure
13.1 Neither party shall be liable to the other party for its failure to perform any of its obligations under this Agreement during any period due to circumstances beyond its reasonable control, including earthquakes, governmental regulation, fire, flood, civil disorder, terrorist acts, and acts of God.
13.2 The party affected by force majeure shall without delay inform the other party of the force majeure event and the effect the force majeure event has on the performance of this Agreement.
13.3 Provided that if the performance of any obligation under this Agreement is suspended for a period exceeding two (2) months as a result of a force majeure event, either parties may terminate this Agreement by giving at least thirty (30) days’ notice in writing to the other party.
14. Termination
14.1 Either party may earlier terminate this Agreement by giving the other party at least thirty (30) days’ prior written notice. Upon termination of this Agreement, the Loanee warrants and undertakes to return all Equipment to Evident within fourteen (14) days.
14.2 In case either party shall breach or default in the effective performance in any of the terms, conditions, covenants, or agreements contained in this Agreement, the other party may give to such defaulting party a written notice of such default, and if such defaulting party does not effect an adequate cure within fourteen (14) days after the receipt from the aggrieved party of written notice specifying the nature of such breach or default, the aggrieved party may immediately terminate this Agreement by dispatching a termination notice to the defaulting party. Despite such termination, the defaulting party shall be and remain liable to the aggrieved party as to damages or loss resulting from such default.
14.3 Either party may immediately terminate this Agreement by written notice upon occurrence of any of the following events:
(a) a receiver is appointed for any of the parties or its property, any of the parties make an assignment for the benefit of its creditors, any proceedings related to any of the party’s financial condition or its ability to meet its financial obligations are commenced by, for or against any of the parties under any bankruptcy, insolvency or debtor’s relief law, and the same is not discharged or dismissed within sixty (60) days from the date of such proceedings, or any of the parties is liquidated or dissolved; or
(b) any of the parties is merged or consolidated, sells all or substantially all of its assets, or implements or suffers any substantial change in management or control without obtaining the other party’s consent.
The termination of this Agreement shall be without prejudice to the rights of either party to payment or other claims due or accrued up to the termination of this Agreement.
14.4 Any clause which should by its very nature, survive, shall survive the expiration or termination of this Agreement.
15. Dispute Resolution
15.1 In the event of any dispute arising from or in connection with this Agreement, including but not limited to the validity, interpretation, execution, operation, effect, termination or breach of this Agreement, the parties shall promptly make endeavours to resolve such dispute through amicable negotiation.
15.2 If no settlement can be reached through mutual discussions and negotiations within thirty (30) days, then such disputes arising out of or in connection with this Agreement shall be referred to, settled exclusively and finally resolved by arbitration administered by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the SIAC for the time being in force. The arbitral tribunal shall consist of one (1) arbitrator. The seat of the arbitration shall be Singapore and the arbitration shall be conducted in English. The arbitration shall be governed by the laws of Singapore and the arbitral award by the arbitrator shall be final and binding on the Parties.
16. Governing Law
This Agreement shall be governed by, construed and interpreted in accordance with, the laws of Singapore without giving effect to the conflict of law principles that will result in the application of the laws of any other jurisdiction.
17. Miscellaneous
17.1 The headings in this Agreement are for reference only and shall not affect the meaning or construction of this Agreement.
17.2 Throughout this Agreement, whenever required by context, the use of the singular number shall be construed to include the plural, and the use of the plural the singular, and the use of any gender shall include all genders.
17.3 Reference in this Agreement to a Clause or appendix of this Agreement.
17.4 Any reference in this Agreement to any statute or regulation shall be deemed to include any statutory modification or re–enactment thereof whenever made.
17.5 If any term or provision in this Agreement shall be held to be illegal or unenforceable, in whole or in part, under any enactment or rule of law, such term or provision or part shall to that extent be deemed not to form part of this Agreement but the validity and enforceability of the remainder of this Agreement shall not be affected.
17.6 The waiver or forbearance of failure of a party in insisting in any one or more instances upon the performance of any provisions of this Agreement shall not be construed as a waiver or relinquishment of that party’s rights to future performance of such provision and the other party’s obligations in respect of such future performance shall continue in full force and effect.
17.7 No amendments or variations to this Agreement shall be effective unless made in writing and signed by the parties.
17.8 A person/entity who is not a party to this Agreement has no rights to enforce any terms of this Agreement.
17.9 This Agreement sets out the entire agreement and understanding between each of the parties hereto in connection with the subject matter of this Agreement and no party hereto has entered into this Agreement in reliance upon any representation, warranty or undertaking or any other party that is not set out or referred to in this Agreement.
17.10 This Agreement may be executed in counterparts, any one of which need not contain the signatures of more than one party, but all such counterparts taken together shall constitute one and the same agreement. The parties agree that a facsimile transmission or electronic transmission of an original shall be deemed the same as the delivery of an original.