Standard Escrow Agreement
Version as at 28 June 2022
This STANDARD ESCROW Agreement (“AGREEMENT”) is made and entered into,
Recipient (“Recipient”) and
ESCROW SG PTE. LTD (Company No. 201919419K ), a company incorporated under the laws of Singapore and having its registered address is at 138 Arab Street, Singapore 199826 (the “Escrow Agent”),
(each a “Party”, and collectively, the “Parties”).
The Sender and Recipient are desirous of appointing the Escrow Agent for their escrow transaction, and the Escrow Agent is desirous of accepting the same.
1. Definitions and Interpretation
In this Agreement:
“Business Day” means a day, other than a Saturday, Sunday or gazetted public holiday, on which banks are generally open in Singapore.
"Escrow Account” has the meaning given to it in Clause 2.3.
“Escrow Amount” means escrow transaction amount that the Sender wishes to transfer to the Recipient pursuant to their escrow transaction.
In this Agreement:
(a) headings and bold type are for convenience only and do not affect the interpretation of this Agreement;
(b) the singular includes the plural, and the plural includes the singular;
(c) an expression importing a person includes any company, partnership, joint venture, association, corporation, or other body corporate and any government agency as well as an individual;
(d) a reference to a Clause, party, Schedule, or attachment is a reference to a clause of, and a party or schedule or attachment to, this Agreement and a reference to this Agreement includes any schedule and/or attachment;
(e) a reference to any legislation includes all delegated legislation made under it and amendments, consolidations, replacements, or re- enactments of any of them;
(f) a reference to a document includes all amendments or supplements to, or replacements or novation of, that document;
(g) a reference to a party to a document includes that party’s successors and permitted assignees;
(h) no provision of this Agreement will be construed adversely to a party because that party was responsible for the preparation of this Agreement or that provision; and
(i) a reference to time is a reference to Singapore time.
2. Escrow Agent
2.1 Appointment of Escrow Agent
The Sender and Recipient hereby designate and appoint the Escrow Agent as escrow agent in accordance with the terms and conditions of this Agreement.
2.2 Acceptance and Acknowledgment
The Escrow Agent accepts its designation and appointment as escrow agent on the terms of this Agreement.
2.3 Establishment of Escrow Account for Fiat Escrow
The Escrow Agent shall establish a non-interest-bearing demand deposit bank account as the escrow account for the purposes of this Agreement (“Escrow Account”), the detail of which is provided in the Escrow SG web application. For the purpose of the escrow transaction, the Escrow Agent has appointed Watiga Trust Ltd to provide cash custody services and accordingly, the Escrow Account is held in a bank account under the name of Watiga Trust Ltd.
The Escrow Account shall be operated by the Escrow Agent in accordance with the terms of this Agreement until such time that this Agreement is terminated pursuant to Clause 8.
3. DEPOSIT OF ESCROW AMOUNT
Upon initiating transfer on Escrow SG web application, the Sender shall deposit the Escrow Amount, by wire transfer of immediately available funds, with the Escrow Agent in the Escrow Account. The Escrow Amount shall not be subject to any lien, attachment, or any other judicial process of any creditor of any party hereto. The Escrow Agent shall not distribute or release the Escrow Amount except in accordance with the express terms and conditions of this Agreement.
4. Release from Escrow
4.1 Deposited Escrow Amount
On receipt of instructions from both the Sender and Recipient on the Escrow SG web application, the Escrow Amount will be released in the following manner:
(a) If both the Sender and Recipient initiate Release instruction and the Recipient initiates Withdraw instruction, the Escrow Agent will release the Escrow Amount to the Recipient.
(b) If both the Sender and Recipient initiate Revert instruction and the Sender initiates Withdraw instruction, the Escrow Agent will release the Escrow Amount to the Sender.
(c) If the Sender initiates Release instruction and Recipient initiates Revert instruction or vice versa, the Escrow Amount is in dispute and the Escrow Agent will step in.
4.2 No other release
The Escrow Agent shall not release any of the Escrow Amounts, except as expressly set out in this Agreement.
5. Responsibility of Escrow Agent
5.1 The Escrow Agent has only those duties expressly set out in this Agreement.
5.2 Any implied duties or obligations of the Escrow Agent are excluded to the fullest extent permitted by law.
5.3 The Escrow Agent shall not be responsible in any manner whatsoever for the correctness of any statements, representations or warranties contained in this Agreement or in any document or agreement issued or entered into by the Sender and Recipient.
5.4 The Escrow Agent shall be under no duty or obligation to make enquiries of the Sender and/or Recipient, and shall be entitled to rely on documents, statements or representations made by the parties to the Escrow Agent.
5.5 The Escrow Agent shall not be liable or responsible to the Sender and Recipient for any loss which may occur as a result of the proper exercise of its powers and responsibilities under this Agreement.
5.6 The Escrow Agent will not be liable for any failure or delay in acting upon any communication, by reason of any cause beyond the Escrow Agent's control, including (without limitation) any breakdown or failure of transmission, or where such transmission is corrupted, lost, delayed or incomplete, in any way or form, and for any reason.
In consideration of the performance of the Escrow Agent’s role under this Agreement, the Sender and/or Recipient agree to pay the Escrow Agent the amounts set out in the Escrow SG website (https://www.escrowsg.com) (“Fee”). Notwithstanding anything else herein to the contrary, the Escrow Agent shall be under no obligation to act (or refrain from acting) under this Agreement if there are any outstanding amounts due and payable by the Escrow Agent under this Agreement.
7. RESIGNATION OF ESCROW AGENT
The Escrow Agent may resign at any time upon giving the Sender and Recipient 5 Business Days’ prior written notice of the Escrow Agent’s intention to do so (“Resignation Notice”). In such an event, a new escrow agent may be appointed by the Sender and Recipient at their sole discretion. In the event no successor is appointed and acting hereunder within 5 Business Days’ of service of the Resignation Notice by the Escrow Agent on the Sender and Recipient, the Escrow Agent shall continue to hold the Escrow Account for delivery to such person as the Sender and Recipient may designate at its sole discretion, or as the Escrow Agent shall be directed by a court of competent jurisdiction.
This Agreement shall terminate (i) on the final and complete disbursement in full of the Escrow Amount in accordance with Clause 4, (ii) by notice in writing to the Sender and Recipient, or (iii) by notice in writing by the Escrow Agent pursuant to Clause 7; whichever is the earlier.
9.1 Any notice or other communication to or by a party to this Agreement shall be in English in writing and delivered by hand or sent by recorded delivery post (or airmail, if the destination is outside the country of origin), or fax or email to the relevant party at its address or number and for the attention of the individual set out below (or as notified in accordance with this Clause 9 (Notices)).
(a) The Escrow Agent:
Address: 138 Arab Street, Singapore 199826
Facsimile: +65 6725 0752
(b) The Sender or Recipient
Email: As provided on Escrow SG web application
Attention: Authorised Person
9.2 A party may notify the other party of a change to its details specified in Clause 9.1. The new address shall take effect as against the other parties five (5) Business Days after receipt of that notice or such later date as may be specified in the notice.
9.3 Without evidence of earlier receipt, communications complying with Clause 9.1 are deemed received:
(a) if delivered by hand, at the time of delivery; or
(b) if sent by recorded delivery, at 9.00am on the second, or (if sent by airmail) fifth, Business Day after posting; or
(c) if sent by fax, at the time of transmission; or
(d) if sent by email, at the earlier of:
(i) the time a return receipt is generated automatically by the recipient's email server;
(ii) the time the recipient acknowledges receipt; and
(iii)24 hours after transmission, unless the sender receives notification that the email has not been successfully delivered, except that if deemed receipt would occur before 9.00am on a Business Day, it shall instead be deemed to occur at 9.00am on that day and if deemed receipt would occur after 5.00pm on a Business Day, or on a day which is not a Business Day, it shall instead be deemed to occur at 9.00am on the next Business Day. References in this Clause to a time of day are to the time of day at the location of the recipient.
9.4 In proving the giving of a communication, it shall be sufficient to prove that delivery was made to the appropriate address, or the communication was properly addressed and posted by prepaid recorded delivery post or prepaid airmail, or the fax was properly addressed and transmitted or the email was sent to the appropriate email address and dispatch of transmission from the sender's external gateway was confirmed as specified pursuant to Clause 9.
9.5 If a person for whose attention communications must be marked or copied has been specified pursuant to Clause 9.1, a communication will be effective only if it is marked for that person’s attention or copied to that person (as the case may be).
9.6 This Clause does not apply to the service of any document required to be served in relation to legal proceedings.
10. No Claim
The Escrow Agent agrees that it shall have no claim and/or rights whatsoever over the the Escrow Amount including, without limitation, in respect of or by virtue of any right of set-off it may have against monies owed by any of the other parties to the Escrow Agent under this Agreement or otherwise.
11.1 The Sender and Recipient hereby agree to indemnify and keep indemnified and hold harmless the Escrow Agent, its employees, directors, shareholders, agents and third party service providers (collectively, the “Indemnified Parties”) against any and all demands, claims, liabilities, losses, costs, and expenses whatsoever (including all legal and other costs, charges and expenses and bank charges and fees) the Indemnified Parties may incur or sustain or suffer in connection with, in relation to or arising out of the performance of the obligations under this Agreement or otherwise howsoever relating or pursuant to this Agreement, or enforcing or attempting to enforce the Escrow Agent’s rights arising in relation to or out of this Agreement or any omission in relation to or pursuant to this Agreement.
11.2 This Clause shall survive the termination of this Agreement and the termination of the appointment of the Escrow Agent.
12. Further Assurance
Each Party shall execute such other documents, do such acts and things and take such further actions as may be reasonably required or desirable to give full effect to the provisions of this Agreement and the escrow transactions hereunder and each Party shall use its best endeavours to procure that any necessary third party shall execute such documents, do such acts and things and take such further actions as may be reasonably required for giving full effect to the provisions of this Agreement and the escrow transactions hereunder.
If any term of this Agreement or the application of any such term is held by a court of competent jurisdiction to be wholly or partly illegal, invalid, or unenforceable, the same shall be deemed to be deleted from this Agreement and be no force and effect,
whereas the other terms hereof shall remain in full force and effect as if such term had not originally been contained in this Agreement. In the event of such deletion, and if the commercial basis of this Agreement is, whether by reason of any illegality or change in circumstances, substantially altered, the Parties shall review and agree on revisions mutually acceptable to them which shall most closely reflect their original intent and purposes in place of the terms so deleted.
No remedy conferred by any of the provisions of this Agreement is intended to be exclusive of any other remedy which is otherwise available at law, in equity, by statute or otherwise and each and every other remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law, in equity, by statute or otherwise. The election of any one or more of such remedies by a Party hereto shall not constitute a waiver by such Party of the right to pursue other available remedies. No failure on the part of a Party hereto to exercise, and no delay in exercising any right under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right under this Agreement preclude any other or further exercise of any right thereof or of the exercise of any other right.
15. Force Majeure
If any Party is rendered unable to carry out the whole or any part of its obligations under this Agreement for any reason beyond the control of that Party, including but not limited to decrees or restraints by governmental authorities, acts of God, force majeure, strikes, war, riot and any other causes of such nature, then the performance of the obligations hereunder o that Party or all the Parties, as the case may be, and as they are affected by such cause shall be excused during the continuance of any inability so caused, but such inability shall as far as possible be remedied with all reasonably despatch.
Except as provided otherwise in this Agreement, each Party shall pay the costs and expenses incurred by it in connection with this Agreement.
17. Entire agreement
This Agreement contains the entire agreement between the parties, and replace all previous agreements and understandings between them, relating to their subject matter.
18. No reliance
No Party has relied on any statement by any other party not expressly included in this Agreement.
No amendment, modification, addition, waiver or termination of any provision of this Agreement shall be effective unless made in writing and signed by the Parties or their duly authorised representatives (where applicable).
20. THIRD party rights
A person who is not a party to this Agreement shall have no right under the Contracts (Right of Third Parties) Act (Cap. 53B) of Singapore or otherwise to enforce any of its terms.
This Agreement shall be binding on and shall ensure for the benefit of each of the Parties, their respective successors and any permitted assignee or transferee of any or all the Party’s rights or obligations under this Agreement. No Party may transfer or assign any or all its rights, undertakings, agreements, duties, liabilities and/or obligations hereunder, in whole or in part, without the prior written consent of the other Parties, such consent not to be unreasonably withheld.
22. Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of Singapore. Any dispute arising out of or in connection with this contract, 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. The arbitration tribunal shall consist of one arbitrator. The language of the arbitration shall be English.