TERMS AND CONDITIONS
DEFINITIONS AND INTERPRETATION
1.1 In this Agreement unless the context requires otherwise:
“Acceptance Testing” shall have the meaning ascribed to it in Clause 3.3;
“Advanced Fees” shall have the meaning ascribed to it in Clause 11.3(a);
“Change Request” shall have the meaning ascribed to it in Clause 4.1;
“Confidential Information” means (a) the terms and conditions of this Agreement and the fact that discussions or negotiations are taking or have taken place between the Parties in connection with the transactions contemplated under this Agreement, and (b) any information which is proprietary and confidential to the disclosing Party including, (in respect of the Company) the Licensed Materials, any of the trade secrets or confidential operations, processes or inventions carried on or used by the disclosing Party, any information concerning the organisation, business, finances, transactions or affairs of the disclosing Party, dealings of the disclosing Party, secret or confidential information which relates to its business or any of its principals’, clients or customers’ transactions or affairs, its technology, plans, designs, documentation, manuals, budgets, financial statements or information, accounts, customer lists, notes, memoranda and the information contained therein, any information therein in respect of trade secrets, technology and technical or other information relating to the development, manufacture, analysis, marketing, sale or supply or proposed development, manufacture, analysis, marketing, sale or supply of any products or services by the disclosing Party, and plans for the development or marketing of such products or services and information and material which is either marked confidential or is by its nature intended to be exclusively for the knowledge of the recipient alone;
“Customised Delivery Date” shall be the date of completion and delivery of the Customised Software, such date being set out in Schedule A, or such other date set in accordance with this Agreement;
“Customised Software” means the customised software specified in Schedule A;
“Customised Specifications” means the specifications and functions of the Customised Software specified in Schedule A, or otherwise mutually agreed by the Parties in writing;
“Documentation” means user and reference manuals, specifications, operating information and any other documentation that is generally provided by the Company to its other customers;
“First Party” shall have the meaning ascribed to it in Clause 11.2;
“Hardware” means the hardware (if any) which the Licensee has purchased from the Company;
“Hardware Warranties” shall have the meaning ascribed to it in Clause 7A.2;
“IMDA” means the Info-communications Media Development Authority of Singapore;
“Initial Support Term” means one (1) year following the date of acceptance of the Software pursuant to Clause 3.4 or 3.5;
“IPRs” means copyright, design rights, layout-design rights, patent rights, trade mark rights, proprietary information and all other intellectual and industrial property rights in any and all countries of the world, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist;
“Licence Term” shall have the meaning ascribed to it in Clause 11.1(a);
“Licenced Materials” means the Standard Software and the Customised Software (if applicable), and shall, unless the context does not permit, include the Documentation (if applicable);
“Packaged Solution” means the ICT solution (includes software and services) which the Company is offering under the Scheme as agreed between the Company and IMDA, including but not limited to the Hubble Workforce Management and Data Analytics Module;
“Packaged Solution Incentive” means the payment made by IMDA to subsidise and support the Participating SME’s licence of/payment for the Packaged Solution in accordance with the terms and conditions of the Scheme;
“Participating SME” means a local small and medium enterprise who has met the eligibility criteria for the Scheme and which the Participating SME submits an application directly and/or through the Company, submits an application for financial support in relation to the Packaged Solution;
“Participating SME Qualifying Period” means the qualifying period (if any) as defined in the Scheme;
“Pilot Phase” means the period of time in which the Parties are testing the Licensed Materials at the end of which a final acceptance test will be signed by the Licensee;
“Receiving Party” shall have the meaning ascribed to it in Clause 9.2(a);
“Scheme” means any applicable scheme and/or grant administered by IMDA, including but not limited to the Enhanced Increase SME Productivity with Infocomm Adoption & Transformation Scheme, the Productivity Solutions Grant, and the Capability Development Grant;
“SIAC” shall have the meaning ascribed to it in Clause 26.2;
“Site(s)” means the Licensee’s premises within Singapore where the Licensed Materials will be installed and used, as specified in Schedule A;
“Standard Delivery Date” shall be the date of completion and delivery of the Standard Software, such date being set out in Schedule A, or such other date set in accordance with this Agreement;
“Standard Software” means the standard software specified in Schedule A;
“Standard Specifications” means the specifications and functions of the Standard Software specified in Schedule A;
“Start Date” means the date the Licensee accepts and signs the quotation for the Packaged Solution.
“Support Services” shall have the meaning ascribed to it in Clause 5.1;
“S$” or “Singapore Dollars” means the lawful currency of Singapore;
“Use” shall have the meaning ascribed to it in Clause 2.2;
1.2 In this Agreement, a reference to:
(a) a statutory provision shall include that provision and any regulations made in pursuance thereof as from time to time modified or re-enacted, whether before or after the date of this Agreement, so far as such modification or re-enactment applies or is capable of applying to any transactions entered into prior to Completion and (so far as liability thereunder may exist or can arise) shall include also any past statutory provision or regulation (as from time to time modified or re-enacted) which such provision or regulation has directly or indirectly replaced;
(b) this “Agreement” includes all amendments, additions, and variations thereto agreed between the Parties;
(c) a “person” shall be construed as including references to an individual, firm, company, corporation, unincorporated body of persons or any agency thereof;
(d) “month” is a reference to a period starting on one day in a calendar month and ending on the day before the numerically corresponding day in the next succeeding calendar month;
(e) “Clauses” and “Recitals” are to the clauses and recitals of this Agreement (unless the context otherwise requires); and
(f) “paragraph” is to a reference to a paragraph of the Clause in which such reference appears.
1.3 Words importing the singular shall include the plural and vice versa and words importing a specific gender shall include the other genders.
1.4 The headings in this Agreement are inserted for convenience only and shall not affect the interpretation or construction of this Agreement.
1.5 Anything or obligation to be done under this Agreement which requires or falls to be done on a stipulated day, shall be done on the next succeeding business day, if the day upon which that thing or obligation is required or falls to be done falls on a day which is not a business day.
SERVICES AND LICENCE
2.1 The Company shall:
(a) in relation to the Standard Software:
(i) design and implement the Standard Software in accordance with the Standard Specifications;
(ii) deliver to and install for the Licensee the Standard Software at the Site, and deliver the relevant Documentation, on or before the Standard Delivery Date;
(iii) assist with server set-up and data migration on or before the Standard Delivery Date;
(iv) provide the Support Services in relation to the Standard Software as set out in Clause 5;
(v) conduct training sessions as set out in Clause 5.3; and
(vi) provide monthly server maintenance services for 12 months, and
(b) if applicable, in relation to the Customised Software:
(i) design and implement the Customised Software in accordance with the Customised Specifications; and
(ii) deliver to and install for the Licensee the Customised Software at the Site, and deliver the relevant Documentation, on the Customised Delivery Date; and
(iii) provide the Support Services (if applicable, as stated in Schedule A) in relation to the Customised Software.
2.2 The Company agrees to provide to the Licensee the Licensed Materials and grants to the Licensee a non-exclusive, non-transferable, non-sublicensable, limited licence to Use during the Licence Term, the Licensed Materials at the Site, and in accordance with and subject to the terms of this Agreement.
2.3 For the purposes of this Agreement, “Use” shall mean and be limited to the right to:
(a) have the Licensed Materials installed into certain equipment at the Site only; and
(b) access and use the Licensed Materials at the Site only solely in connection with the Licensee’s normal business and operations and in compliance with applicable guidelines and instructions pertaining to the use of the Licensed Materials issued by the Company.
2.4 The Licensee is expressly prohibited from the following acts:
(a) installation, use or operation of the Licensed Materials (or any part thereof) in a manner for which it was not designed, intended or recommended by the Company;
(b) alteration, adaptation, modification, reverse assembly, reverse compilation, reverse engineering, or other translation of the Licensed Materials (or any part thereof);
(c) copying, reproducing, translating, varying, decompiling, distributing or modifying the Licensed Materials (or any part thereof) or communicate the same to any third party;
(d) permitting installation, use or operation of the Licensed Materials (or any part thereof) by any person or entity other than as expressly set out in this Agreement;
(e) any release, disclosure, transfer, sale, lease, sub-lease, sub-license or other transfer or disposal of the Licensed Materials or Licensee’s rights under this Agreement (or any part thereof) to any third party;
(f) any use of the Licensed Materials (or any part thereof) as a technology service provider or application service provider to provide such services to any third party;
(g) any installation, use or operation of the Licensed Materials (or any part thereof) outside the Site(s);
(h) any hacking, compromise or tampering with the security or security features of the Licensed Materials (or any part thereof); or
(i) any other use of the Licensed Materials (or any part thereof) other than as expressly permitted under this Agreement.
2.5 In the event that the Licensed Materials are used in conjunction with any third-party software, data or other material that may be introduced by the Licensee, the Company shall not be liable or responsible for any issues or errors that may arise in the Licensed Materials to the extent that they arise from such use and makes no representations or warranties in relation to such third-party software. The Licensee shall indemnify and hold the Company harmless against any loss or damage (including all legal costs and expenses) which the Company may suffer or incur as a result of the Licensee’s use of the Licensed Materials in conjunction with any third-party software howsoever arising.
2.6 The Licensee shall permit the Company to inspect and have access to the Site (or any other premises) at or on which the Licensed Materials are being kept or used, and have access to any records kept in connection with the Licensed Materials, for the purposes of ensuring that the Licensee is complying with the terms of this Agreement, provided that the Company provides reasonable advance notice to the Licensee of such inspections, which shall take place at reasonable times.
DELIVERY AND ACCEPTANCE
3.1 The Licensee shall be provided access to (a) the Standard Software on the Standard Delivery Date and (b) if applicable, the Customised Software on the Customised Delivery Date, provided that the Company shall be entitled to provide at least two (2) weeks prior written notice to the Licensee to reasonably reschedule the Standard Delivery Date and/or the Customised Delivery Date.
3.2 The Company shall be deemed to have completed delivery of (a) the Standard Software on the Standard Delivery Date as long as the Standard Software has met all the Standard Specifications and (b) if applicable, the Customised Software on the Customised Delivery Date as long as the Customised Software has met all the Customised Specifications.
3.3 The Licensee shall have 30 days following the Standard Delivery Date and the Customised Delivery Date (if applicable) to assess and test the Standard Software and the Customised Software (if applicable) (each, the “Acceptance Testing”). In the event that the Licensee during such Acceptance Testing discovers that the Standard Software or the Customised Software does not meet the Standard Specifications or the Customised Specifications (respectively), the Licensee shall immediately provide written notice to the Company setting out in detail the Standard Specifications or Customised Specifications which have not been met, its grounds for stating so (which shall be reasonable) and the relevant supporting documents. The Company shall use reasonable efforts to correct the Standard Software or the Customised Software to ensure that it meets the Standard Specifications or Customised Specifications (respectively) and upon delivery of such corrected Standard Software or Customised Software to the Licensee, the Licensee shall have 30 days thereafter to conduct Acceptance Testing.For the avoidance of doubt, as long as the Standard Specifications and/or the Customised Specifications have been reasonably met such that the Standard Software and/or the Customised Software can be used by the Licensee as was reasonably contemplated by the Parties, the Acceptance Testing shall be deemed to have passed and the Licensee shall accept the Standard Software and/or the Customised Software as delivered to the Licensee.
3.4 In the event that the Standard Software fails to meet the Standard Specifications even after corrections by the Company pursuant to Clause 3.3, the Licensee shall immediately provide written notice to the Company setting out in detail the Standard Specifications which have not been met, its grounds for stating so (which shall be reasonable) and the relevant supporting documents and shall have the option to: (a) amend the Standard Specifications and, subject to the written agreement of the Company, this Agreement shall apply to the Standard Software (as amended) or (b) terminate the licence relating to the Standard Software and the Supplier shall refund all fees paid in advance by the Licensee, less such reasonable costs and expenses incurred by the Company for the work done, in relation to the Standard Software and such refund shall be the Licensee’s sole remedy (save that it shall be without prejudice to Clause 3.5).
3.5 In the event that the Customised Software fails to meet the Customised Specifications even after corrections by the Company pursuant to Clause 3.3, the Licensee shall immediately provide written notice to the Company setting out in detail the Customised Specifications which have not been met, its grounds for stating so (which shall be reasonable) and the relevant supporting documents and shall have the option to (a) amend the Customised Specifications and, subject to the written agreement of the Company, this Agreement shall apply to the Customised Software (as amended) or (b) terminate the licence relating to the Customised Software and the Supplier shall refund all fees paid in advance by the Licensee, less such reasonable costs and expenses incurred by the Company for the work done, in relation to the Customised Software and such refund shall be the Licensee’s sole remedy (save that it shall be without prejudice to Clause 3.4).
3.6 In the event that the Licensee does not provide any notice pursuant to Clause 3.3, 3.4 or 3.5 (as the case may be), upon expiry of 30 days following the delivery of the Standard Software or the corrected Standard Software (as the case may be) or the delivery of the Customised Software or the corrected Customised Software (as the case may be), the Standard Software or corrected Standard Software (as the case may be) and the Customised Software or the corrected Customised Software (as the case may be) shall be deemed to have been accepted by the Licensee.
4.1 The Licensee may at any time, no later than four (4) weeks prior to the Standard Delivery Date or the Customised Delivery Date (if applicable) or two (2) weeks before the end of the Pilot Phase (as the case may be, whichever is earlier), request changes to the Standard Specifications or the Customised Specifications by providing the Company written notice (“Change Request”). There shall be no Change Request in the event that the Licensee is licensing a Packaged Solution and Clause 12 applies to such Licensee, but such Licensee shall nonetheless be entitled to request for Customised Software.
4.2 In the event that the Company determines in its reasonable discretion that the Change Request would lead to a delay of the Standard Delivery Date or Customised Delivery Date and/or additional costs and expenses, the Company shall provide the Licensee an amended quote setting out the amended Standard Specifications or Customised Specifications, Standard Delivery Date or Customised Delivery Date and fees. The Licensee shall have the option to either:
(a) withdraw the Change Request; or
(b) accept the Company’s amended quote (including the amended Standard Specifications or Customised Specifications, Standard Delivery Date or Customised Delivery Date and fees).
4.3 The Company shall be entitled to reject the Change Request in the event that the Company determines in its reasonable discretion that the Change Request significantly affects the Standard Delivery Date or Customised Delivery Date and/or materially alters the Standard Software or Customised Software, or the Standard Specifications or Customised Specifications. The Parties shall then proceed with the Standard Software or Customised Software in accordance with this Agreement as if no Change Request was made.
SUPPORT SERVICES AND TRAINING
5.1 During the Initial Support Term, the Licensee shall subscribe to, and the Company shall provide without charging any additional fees, support services for the Licensed Materials to the Licensee, including the fixing of bugs and errors, log in issues, but excluding recovery of lost data resulting from accidental deletion by the Licensee (“Support Services”).
5.2 The Licensee shall be entitled to terminate its subscription of the Support Services by providing at least [two (2)] weeks prior written notice to the Company.
5.3 The Company shall conduct one (1) training session for two (2) hours per session, to train the Licensee’s staff and personnel to enable such persons to understand and operate the Standard Software and the Customised Software (if applicable). Training sessions shall be on such date and at such locations as the Parties may agree in writing. Additional training sessions may be requested for by the Licensee subject to payment of a fee of S$500 to the Company for each additional 2-hour training session.
FEES AND CHARGES
6.1 The Licensee shall pay the Company the fees and charges in accordance with Schedule A. The Company shall have the discretion to revise its fees and charges from time to time at its sole discretion by providing prior written notice to the Licensee.
6.2 All payments to the Company shall be paid within 30 days of the Licensee’s receipt of the Company’s invoice, unless otherwise stated.
6.3 If the Licensee fails to make payment to the Company in accordance with Clause 6.2, the Company shall be entitled to charge interest on the outstanding amount(s) at a rate of [2.0%] per month, calculated on a daily non-compounded basis commencing from the date immediately after the expiry of 30 days after receipt of the Company’s invoice until the date of actual payment by the Licensee.
6.4 All goods and services tax (if any) payable in respect of the fees, charges and other amounts payable by the Licensee under this Agreement shall be borne by the Licensee in accordance with applicable law at the prevailing rate.
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
7.1 The Company warrants and undertakes to the Licensee that:
(a) it has the authority to licence the Licensed Materials to the Licensee;
(b) the Standard Software and Customised Software (if applicable) shall meet the Standard Specifications and the Customised Specifications, provided the Licensee uses the Standard Software and Customised Software in accordance with this Agreement;
(c) it has no actual knowledge that the licence of the Standard Software and Customised Software (if applicable) pursuant to this Agreement is infringing any valid rights of any third party; and
(d) the services provided under this Agreement will be carried out and completed in a proper and professional manner, with all due care, skill and diligence and in accordance with generally accepted industry standards and practices.
7.2 To the extent permitted by law, except as specifically provided in this Agreement, there are no other warranties by the Company, expressed or implied by law, trade, custom, usage or otherwise, including any implied warranty of merchantability or fitness for a particular purpose, and: (a) the Company does not warrant that the operation of the Licensed Materials will be uninterrupted or that the Licensed materials are error-free or that the functions contained in the Software will meet the Licensee’s requirements or operate in the combination desired by the Licensee, and (b) the Company shall not be liable for any relevant errors arising out of the Licensed Materials to the extent such error is directly and exclusively caused by any unauthorised use or use in breach of this Agreement of the Licensed Materials by the Licensee.
7A. HARDWARE WARRANTIES
7A.1 This Clause 7A shall apply in the event that the Licensee has purchased any Hardware from the Company.
7A.2 The Licensee acknowledges and agrees that the warranties in respect of the Hardware (“Hardware Warranties”) are provided by the relevant Hardware manufacturer(s) and not by the Company.
7A.3 The Company shall provide to the Licensee a list of the applicable Hardware Warranties and the contact details of the relevant Hardware manufacturer(s).
7A.4 The Licensee shall contact the relevant Hardware manufacturer(s) directly for any and all matters relating to the Hardware Warranties.
LIMITATIONS OF LIABILITY
8.1 To the maximum extent permitted by applicable law, the Company shall not be liable whether in contract, tort (including negligence) or otherwise, for (a) any loss of profit or loss of savings (including anticipated profits and savings), or loss of goodwill, reputation, opportunity or business, or (b) any indirect, punitive, incidental, exemplary, special or consequential losses or damages, arising from or in connection with the Licensed Materials, the Support Services, the Hardware and/or this Agreement even if it has been advised of the possibility of such losses or damages.
8.2 In the event of a claim by Licensee of a breach of Clause 7, the Company shall have the option of correcting or replacing the Standard Software or Customised Software and if the Company fails to do so within a reasonable period of time, the Licensee’s sole recourse shall be to terminate this Agreement in relation to the Standard Software or Customised Software (respectively) and the Company’s sole obligation shall be to return the fees paid by the Licensee under this Agreement, less such reasonable costs and expenses incurred by the Company for the work done, in relation to the Standard Software or Customised Software (respectively).
8.3 Subject to Clauses 8.1 and 8.2, the maximum aggregate liability of the Company arising out of or in connection with the Licensed Materials, the Support Services and/or this Agreement, shall not exceed the total fees paid or payable by the Licensee under this Agreement for the 12 months period prior to such claim, and this limit shall be applied in the aggregate and cumulatively irrespective of the number of events giving rise to such liability or the number of parties to whom the Company may be liable.
8.4 Subject to Clause 8.1, the maximum aggregate liability of the Company arising out of or in connection with the Hardware shall not exceed the total charges paid or payable by the Licensee for the Hardware under this Agreement, and this limit shall be applied in the aggregate and cumulatively irrespective of the number of events giving rise to such liability or the number of parties to whom the Company may be liable.
CONFIDENTIALITY AND USE OF INFORMATION AND DATA
9.1 Each Party undertakes to the other Party that, subject to Clause 9.3, it:
(a) shall not, without the prior written consent of the other Party, use or disclose to any person Confidential Information it has or acquires; and
(b) shall make every effort to prevent the use or disclosure of any Confidential Information.
9.2 The confidentiality obligation under Clause 8.1 shall not apply to:
(a) information which the Party receiving Confidential Information (“Receiving Party”) can demonstrate was in its possession prior to the disclosure or acquisition of such information pursuant to this Agreement;
(b) information which is independently developed by the Receiving Party or acquired from a third party without any breach of confidentiality by such third party;
(c) any information which was in the public domain at the time it was disclosed to the Receiving Party or subsequently comes into the public domain, other than by breach of this Agreement or reason of any wilful or negligent act or omission of the Receiving Party;
(d) any information disclosed by any Party to their respective bankers, financial advisers, consultants and legal or other advisers for the purpose of this Agreement; or
(e) any information which is required to be disclosed pursuant to any applicable laws or to any requirement of any court, tribunal, competent governmental or statutory authority or rules or regulations of any relevant regulatory or supervisory body (including any relevant stock exchange) provided that the Receiving Party shall first consult with the Party disclosing such Confidential Information to the extent reasonably practicable and legally permissible having regard to these obligations about the form, content and timing of the disclosure.
9.3 The Licensee acknowledges and agrees that the Company shall be entitled to retain and use (during the term and after expiry or termination of this Agreement) information and data relating to the Licensee which it obtained in the course of its performance of this Agreement for analytics purposes and/or to improve the Company’s products and/or services provided that the Company shall anonymise such data and information it uses and no disclosure shall be in any form that personally identifies the Licensee or it clients.
9.3A The Licensee acknowledges and agrees that the Company shall be entitled to use (during the term of this Agreement) information and data relating to the Licensee which it obtained in the course of its performance of this Agreement for related commercial/business purposes (including but not limited to analytics purposes, to improve the Company’s products and/or services, and/or to provide marketing information or recommendations about the Company’s products and/or services), provided always that the foregoing shall be subject to the provisions of Clause 9.4A below (where applicable).
9.4 The Licensee acknowledges and agrees that the Company shall be entitled to disclose, retain and use any of the Licensee’s Confidential Information as set out in Clause 12.
9.4A The Company’s Personal Data Protection Policy shall apply to all personal data relating to the Licensee which the Company obtained in the course of its performance of this Agreement.
9.5 This Clause 9 shall endure, notwithstanding the termination of this Agreement, without limit in point of time except and until any Confidential Information enters the public domain as set out above.
10.1 The Licensee acknowledges and agrees that:
(a) any and all of the IPRs subsisting in or in connection with the Licensed Materials shall be and remain the sole property of the Company;
(b) the Company transfers no ownership or other interest in the Licensed Materials to the Licensee under this Agreement or otherwise and that the Company reserves all rights in all countries of the world not expressly granted to Licensee hereunder;
(c) the Licensee shall not during or at any time after the expiry or termination of this Agreement in any way question or dispute the ownership by the Company of the Licensed Materials;
(d) in the event that new inventions, designs, processes, works or other subject matter are created or evolve in performance of or as a result of this Agreement, the same shall be the property of the Company; and
(e) the Licensee undertakes not to remove, obscure or destroy any copyright, trade secret, proprietary or confidentiality legends, markings or notices placed upon or contained within the Licensed Materials.
TERM AND TERMINATION
11.1 This Agreement shall commence from the date of this Agreement and:
(a) the licence to use the Licensed Materials under Clause 2 shall commence on the Standard Delivery Date and expire one (1) year thereafter, and shall automatically be renewed for subsequent one (1) year periods (“Licence Term”) at the then-prevailing rates of the Company; and
(b) the Support Services shall commence and end on the first and last day, respectively, of the Initial Support Term and shall automatically be renewed for subsequent one (1) year periods (provided that the Licence Term is renewed) at the then-prevailing rates of the Company.
This Agreement shall expire on expiry or termination of the last Licence Term.
11.2 Either Party (“First Party”) may terminate this Agreement immediately by notice in writing to the other Party if the other Party:
(a) is in material breach of any term of this Agreement and such material breach is not capable of being remedied, or if capable of being remedied, the other Party has failed to remedy such material breach within 14 days following written notification of such material breach by the First Party. For the avoidance of doubt, the following breaches shall be deemed to be irremediable:
(i) if any undisputed fees or charges payable to the Company under this Agreement are in arrears for more than 14 days upon becoming due, and thereafter such payment is not made within a further 14 days period after receiving a written notice from the Company to do so;
(ii) the Licensee uses the Licensed Materials in a manner inconsistent with this Agreement; and
(iii) breach of Clause 9 or 10;
(b) enters into any composition or arrangement with its creditors or makes any assignment for the benefit of its creditors; or if a resolution is passed by its members for its winding up or liquidation; or if a petition or application for winding up or an application for receivership or judicial management is filed or commenced against the other Party; or if any distress or execution is levied or enforced against any of its assets; or
(c) ceases, or threatens to cease, to carry on business or becomes insolvent or is unable to pay its debts when due.
11.3 In the event this Agreement is terminated:
(a) by the Licensee pursuant to Clause 11.2(a), the Company shall refund all fees and other monies paid by the Licensee in advance (if any, “Advanced Fees”) for the period between the effective date of termination and the date of expiry of the Licence Term on a pro-rata basis; or
(b) by the Company pursuant to Clause 11.2(a), the Company shall be entitled to retain all Advanced Fees paid by the licensee,
and such right shall be without prejudice to any other rights or remedies to which the Parties may be entitled hereunder or at general law.
11.4 Upon the expiry or termination of this Agreement (howsoever occasioned), or at any time during the term of this Agreement upon a Party’s written request, each Party shall within 14 days:
(a) return to the other Party at its own cost and expense all materials which contain the Confidential Information of the other Party; or
(b) destroy or permanently erase the Confidential Information, and acknowledge in writing to the other Party that all such Confidential Information has been destroyed or permanently erased,
(i) neither Party shall be required to return, delete or destroy any Confidential Information (a) contained in their computer or electronic records, database or systems which are created pursuant to any automatic archiving or back-up procedures, (b) which are required to be retained under applicable law or for audit purposes or pursuant to any document retention policy and/or (c) save as provided in Clauses 9.3 and 9.4, provided that such Party shall cease to use the same and shall hold and maintain such Confidential Information confidential in accordance with Clause 9; or
(ii) where Licensee requires the Company to return any Confidential Information of Licensee which may be required for the provision of the Licensed Materials or Support Services, the Company shall not be liable or responsible for any relevant issues or problems that directly arise with regard to the Licensed Materials or Support Services as a result of and to the extent of such return.
11.5 Upon the expiry or termination of this Agreement (howsoever occasioned):
(a) the licence granted to Licensee herein shall terminate;
(b) the Licensee shall cease all use of the Licensed Materials;
(c) the Licensee shall within three (3) days of such expiry or termination of this Agreement deliver up and return to the Company, or destroy or delete, at the Licensee’s own cost and expense, all copies of the Licensed Materials in Licensee’s possession, custody or control (save that Clause 11.4(i) shall apply mutatis mutandis to the retained Licensed Materials and subject to the Licensee ceasing all use of the retained Licensed Materials); and
(d) the Licensee shall within 14 days of the Company’s request certify to the Company its compliance with this Clause 11.5.
11.6 The expiry or termination of this Agreement of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either Party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination. Without prejudice to the generality of the foregoing, the provisions of Clauses 8 to 26 and any other clause that by its reasonable implication is intended to survive expiry or termination of this Agreement shall survive the expiry or termination of this Agreement.
PARTICIPATING SME FOR ICT SOLUTION
12.1 This Clause 12 shall apply in the event that (a) any Licensed Material licenced under this Agreement is a Packaged Solution and (b) the Licensee is a Participating SME.
12.2 The Licensee acknowledges, agrees and undertakes as follows:
(a) in connection with the Packaged Solution Incentive, the Licensee shall provide all data, information and assistance (including all supporting documents) for the purposes of the Company assisting the Licensee in completing and submitting on behalf of the Licensee (i) the self-declaration form and (ii) the claims form for the Packaged Solution, and such forms shall be submitted to IMDA as soon as possible, in any case no later than two (2) weeks from the Start Date;
(b) the data, information and declarations in the forms set out in Clause 12.2 are true, correct and accurate, the accompanying supporting documents have been verified against the relevant original documents, and the Licensee must not withhold, suppress or misrepresent any material facts or information;
(c) the Packaged Solution shall be used by the Licensee for at least the minimum period (if any) as required under the terms and conditions of the Scheme;
(d) the Licensee shall not have any relationship with the Company, any of its directors or shareholders or any relevant vendors or consultants of the Company and shall declare its relationship, if any;
(e) the timeline for implementation of the Packaged Solution under the Scheme shall not include any Customised Software (if any);
(f) no fees in relation to the Customised Software (if any) shall be reimbursed or funded by the IMDA under the Scheme;
(g) the Packaged Solution shall only be implemented entirely at the Site in Singapore and the Licensee’s business at the Site shall remain in operation;
(h) the Licensee shall pay at least 30% of the fees relating to the Packaged Solution and shall pay any remaining amount of the fees relating to the Packaged Solution that is not supported by the Scheme;
(i) there shall be no variations in the contents of the Packaged Solution;
(j) the Licensee shall permit IMDA, or its appointed agents or sub-contractors, without any prior notice, full and free access to its place of operation, payroll registers, financial statements, books, documents, papers and all such information in any form related to the Packaged Solution and render all such cooperation as may be required for the purpose of monitoring the purchase and implantation of the Packaged Solution or verifying claims, and to inspect, copy or make extracts from such registers, statements, books, documents, papers and information for the aforesaid purposes. Without limiting the generality of the foregoing, the Licensee shall allow IMDA, or its appointed agents or sub-contractors, to conduct validations of productivity gains (which could include examining the data (log files or equivalent) provided by the Licensee’s system or conducting site visits to the Licensee);
(k) the Licensee shall ensure that its financial statements, books, documents, papers and all such information in any form related to the Packaged Solution and the Scheme shall be retained for at least five (5) years from the end of the financial year in which the transactions or operations to which those records relate are completed;
(l) the Licensee shall furnish IMDA, or its appointed agents or sub-contractors, with such information as may be required by IMDA or its appointed agents or sub-contractors, whether through survey or otherwise, at any time within three (3) years from the expiry of the Participating SME’s Qualifying Period for the purpose of enabling IMDA to monitor and assess the benefits of the Packaged Solution post-implementation;
(m) the Licensee consents to the Company’s collecting of information pertaining to the Licensee for the purposes of providing the Packaged Solution and disclosure of such information to IMDA;
(n) the Packaged Solution Incentive shall be disbursed through payment to the Company and not the Licensee;
(o) in the event that any condition for the Packaged Solution Incentive is not met, the application for the Packaged Solution Incentive is not approved by the IMDA and/or the IMDA withdraws or revokes any approval of the application for the Packaged Solution Incentive, the Licensee shall be liable to pay the full fees in relation to the Packaged Solution to the Company;
(p) the Licensee (and its affiliated companies) shall not hire any of the Company’s partners, directors or shareholders or any of its relevant vendors or consultants for at least one (1) year from completion of the Packaged Solution;
(q) the Licensee at the Site has not already or previously purchased or used any software or IT system/service from the Company that perform a similar set of functions as the Packaged Solution under this Agreement;
(r) without prejudice to the foregoing provisions, the Licensee shall comply with all the terms and conditions of the Scheme, and in particular, those set out in all forms and declarations submitted by the Company on behalf of the Licensee to IMDA, including but not limited to (i) the “Enhanced ISPRINT Terms for Self-Declaration Form (ICT Solution)” attached to the self-declaration form and (ii) the “Enhanced ISPRINT Terms for Claims Form (ICT Solution)” attached to the claims form.
12.3 The Licensee shall fully indemnify and hold harmless, and at the Company’s request defend, the Company against all losses, damages, costs and expenses suffered or incurred by the Company against (a) any claim, demand, action or proceeding made or initiated against, and/or (b) all losses, damages, costs and expenses (including all legal costs and expenses) suffered or incurred by, the Company as a result of any breach of Clause 12.2, including all monies (including the Packaged Solution Incentive and interest thereon) that the Company has to pay to IMDA arising from or in connection with such breach.
13.1 No Party shall be liable for any failure to perform his obligations under this Agreement if the failure results from a Force Majeure Event (defined below), provided that whenever possible the affected Party will resume that obligation as soon as the factor or event occasioning the failure ceases or abates.
13.2 For purposes of this Agreement, a “Force Majeure Event” is an event which is beyond the reasonable control of a Party which affects the general public in such Party’s country of performance and frustrates the performance of such Party’s obligations under this Agreement and shall include industrial action or labour disputes, civil unrest, war or threat of war, criminal or terrorist acts, government action or regulation, telecommunication or utility failures, fire, explosion, natural physical disasters, epidemic, and mass quarantine restrictions.
13.3 If the Force Majeure Event shall continue for a period exceeding three (3) months from the date a Party first came to know of the Force Majeure Event affecting the other Party, such Party may at any time thereafter terminate this Agreement by providing at least 14 days’ written notice to the other Party. For the avoidance of doubt, the obligation to pay any outstanding fees under this Agreement nonetheless shall not be relieved by any Force Majeure Event.
Each Party shall bear its own legal and other costs and expenses of and incidental to the negotiation, preparation, execution and performance by it of this Agreement and all ancillary documents and the subscription hereby agreed to be made.
15.1 The provisions of this Agreement including the representations, warranties, covenants and undertakings herein contained (insofar as the same shall not have been fully performed at Completion) shall remain in full force and effect notwithstanding Completion and shall not in any respect be extinguished or affected by Completion, or by any other event or matter whatsoever, except by a specific and duly authorised written waiver or release by the relevant Party. Completion shall not prejudice any rights of any Party which may have accrued hereunder prior to Completion.
15.2 Save as expressly provided herein, any right of termination conferred upon the Parties shall be in addition to and without prejudice to all other rights and remedies available to it and no exercise or failure to exercise such a right of termination shall constitute a waiver of any such other right or remedy.
15.3 As all Parties have participated in the drafting of this Agreement, the Parties agree that any applicable rule requiring the construction of this Agreement or any provision hereof against the Party drafting this Agreement shall not apply.
If any provision in this Agreement is held to be illegal, void or unenforceable, in whole or in part, under any enactment or rule of law in any jurisdiction, then: (a) such provision or part shall to that extent be deemed not to form part of this Agreement; (b) the legality, validity and enforceability of the remainder of this Agreement under such jurisdiction shall not be affected; and (c) the legality, validity or enforceability of this Agreement under any other jurisdiction shall not be affected. The Parties shall use all reasonable endeavours to replace the illegal, void or unenforceable provision by a valid and enforceable substitute provision the effect of which is the closest possible to the intended effect of the provision to be replaced.
17.1 Any communication to be made under or in connection with this Agreement shall be made in writing and, unless otherwise stated, may be made by prepaid post or electronic communication to the intended recipient thereof at his or its address or electronic mailing address. The address and electronic mailing address of each Party for any communication or document to be made or delivered under or in connection with this Agreement is that identified below, or any substitute address or electronic mailing address as the Party may notify to the other Party for the purposes of this Agreement:
17.2 Except where receipt is expressly required by the terms of this Agreement, any such communication, if given or made by prepaid post, shall be deemed to have been duly given or made two (2) days after the same was posted (and in proving such, it shall be sufficient to prove that the envelope containing the same was properly addressed and posted), if given or made by electronic communication, shall be deemed to have been duly given or made at the time the electronic communication was sent (and in proving such, it shall be sufficient to prove that the electronic communication was properly addressed and transmitted).
17.3 Service of any legal or arbitral proceedings and documents concerning or arising out of this Agreement shall be effected by causing the same to be delivered by hand to the addresses set out above.
The Parties shall do and execute or procure to be done and executed all such further acts, deeds, things and documents as may be necessary to give effect to the terms of this Agreement.
19.1 Each Party confirms that this Agreement represents the entire understanding, and constitutes the whole agreement, in relation to its subject matter and supersedes any previous agreement between the Parties with respect thereto and, without prejudice to the generality of the foregoing, excludes any warranty, condition or other undertaking implied at law or by custom, usage or course of dealing.
19.2 Each Party confirms that:
(a) in entering into this Agreement it has not relied on any representation, warranty, assurance, covenant, indemnity, undertaking or commitment which is not expressly set out or referred to in this Agreement; and
(b) in any event, without prejudice to any liability for fraudulent misrepresentation or fraudulent misstatement, the only rights or remedies in relation to any representation, warranty, assurance, covenant, indemnity, undertaking or commitment given or action taken in connection with this Agreement are those pursuant to this Agreement, and for the avoidance of doubt and without limitation, no Party has any other right or remedy (whether by way of a claim for contribution or otherwise) in tort (including negligence) or for misrepresentation (whether negligent or otherwise, and whether made prior to, and/or in this Agreement).
No Party shall assign, transfer, charge or otherwise deal with all or any of its rights under this Agreement nor grant, declare or dispose of any right or interest in it without the prior written consent of the other Party.
21.1 No variation of this Agreement (or of any of the documents referred to in this Agreement) shall be valid unless it is in writing and signed by or on behalf of each Party. The expression “variation” shall include any amendment, supplement, deletion or replacement however effected.
21.2 Unless expressly agreed, no variation shall constitute a general waiver of any provisions of this Agreement, nor shall it affect any rights, obligations or liabilities under or pursuant to this Agreement which have already accrued up to the date of variation, and the rights and obligations of the Parties under or pursuant to this Agreement shall remain in full force and effect, except and only to the extent that they are so varied.
REMEDIES AND WAIVERS
No failure on the part of any Party to exercise, and no delay on its part in exercising, any right or remedy under this Agreement will operate as a waiver thereof, and any single or partial exercise of any right or remedy shall not preclude any other or further exercise thereof or the exercise of any other right or remedy.
TIME OF ESSENCE
Any date, time or period mentioned in any provision of this Agreement may be extended by mutual agreement between the Parties but as regards any time, date or period originally fixed and not extended or any time, date or period so extended as aforesaid, time shall be of the essence.
This Agreement may be signed in any number of counterparts, all of which taken together shall constitute one and the same instrument. Any Party may enter into this Agreement by signing any such counterpart and each counterpart shall be as valid and effectual as if executed as an original.
CONTRACTS (RIGHTS OF THIRD PARTIES) ACT
A person who is not party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore to enforce any term of this Agreement, but this does not affect any right or remedy of a third party which exists or is available apart from the said Act.
26.1 This Agreement shall be governed by, and construed in accordance with, the laws of Singapore.
26.2 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”) for the time being in force, which rules are deemed to be incorporated by reference in this Clause 26. The arbitral tribunal shall comprise of one (1) arbitrator who shall be appointed by the President of the SIAC. The language of the arbitration shall be English. The arbitration award shall be final and binding upon the Parties hereto and can be used as a basis for the enforcement thereof in any competent court having jurisdiction over any Party and/or any of the Party’s assets or properties. Nothing in this Clause 26 shall preclude any Party from applying for urgent interlocutory relief from any court of competent jurisdiction and for this purpose, the Parties hereto expressly submit to the jurisdiction of any such court.