1 Definitions1 In these Terms the following words have the meanings set out below and derivative words will have a corresponding meaning: “Agreement” this agreement and the Terms of Engagement specifying the details, terms and conditions which govern the interaction between the Customer and the Company; “Our”, “Company” or “the Company” refers to Codamake, incorporated as Apance Pte Ltd in The Republic of Singapore “Affiliate” means, with reference to a party, any other party which: (a) directly or indirectly controls or is controlled by the first party; or (b) is directly or indirectly controlled by a party which also directly or indirectly controls the first party; and for the purposes of this definition, a party controls another party if such party has the power to direct or cause the direction of the management and policies of the other party, whether directly or indirectly, through one or more intermediaries or otherwise, and whether by ownership of shares or other equity interests, the holding of voting rights or contractual rights, by being the general partner of a limited partnership, or otherwise. “Terms of Engagement” are the specific services and plans selected by the Customer to be enacted by the Company in return for payment; detailing, among others, the Services, the Deliverables, Fees and/or Expenses. “Company” means the Party that will undertake the Services, as specified in the Terms of Engagement. “Confidential Information” means any information in whatever form (including, without limitation, in written, oral, visual or electronic form or any magnetic or optical disk or memory and wherever located) relating to the business, customers, products, affairs and finances of a Party for the time being confidential to the Party or its Affiliate(s) and trade secrets including, without limitation, technical data and know-how relating to the business of a Party or its Affiliate(s) or any of its or their suppliers, customers, agents, distributors, shareholders, management or business contacts, including in particular (but not limited to) information that the Company creates, develops, receives or obtains in connection with the Agreement whether or not such information (if in anything other than oral form) is marked confidential. “Deliverables” means anything in writing or otherwise tangible (whether in hard copy or electronic format), which arises out of or is made, created or generated in the course of carrying out the Services. “Expenses” means actual costs incurred by the Company reasonably necessary for carrying out the Services, including but not limited to, travelling, accommodation, subsistence, official translation charges and charges related to goods and services purchased on the Customer’s behalf. “Fees”means the fees charged by the Company to the Customer for the provision of Services, as set out in the Letter, excluding VAT and Expenses. “Force Majeure Event” means any circumstance not within a Party’s reasonable control including, without limitation acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; nuclear, chemical or biological contamination or sonic boom; any law or action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; collapse of buildings, fire, explosion or accident; any labour or trade dispute, strikes, industrial action or lockouts; non-performance by suppliers or subcontractors; and interruption or failure of utility service. “Intellectual Property Rights” means all intellectual property rights, including patents, rights to inventions, copyright and related rights, goodwill, rights in designs, rights in computer software, trade or service marks, business names and domain names, database rights, rights to use and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world. “Jurisdiction” means the country, state or province where the Company has its corporate seat. “Mandatory Policies” means the Company’s Code of Conduct and relevant policies (on ethics, anti-slavery and human trafficking, anti-bribery, and corruption, data protection and privacy) reasonably established and amended by the Company from time to time, a copy of which will be delivered to the Customer. “Party or Parties” means the Company or the Customer individually or collectively as the context may require. “Customer” means jointly and severally each Party to whom (a) the Terms of Engagement are addressed; and/or (b) the Services and/or the Deliverables are to be delivered. “Services” means the services as described in the Terms of Engagement to be rendered by the Company to the Customer, or such additional services as may be agreed upon between the Parties in writing from time to time by way of an annexure to the Letter. “Standards of Practice” means, with reference to the Services and the supply thereof, the standards of practice that would usually be applied by professional Companies of such kind of Services in similar circumstances and at the relevant time. “Subcontractor” means any party, other than the Company or its employees, engaged by the Company, through a sub-contract, to perform the Services, or any part thereof, for and on behalf of the Company. “VAT” means value added tax chargeable under applicable tax legislation or any similar replacement, additional or alternative tax imposed in the Jurisdiction; where this may also refer to “GST” with which we mean the same thing.
2 Scope of Our Services1 The scope of the Company’s services will be clearly defined by stating a detailed description of the services the Company will perform, the duration of the service and the location(s) where the Company is required to provide their services; 2 The Terms of Engage will stipulate the standards of performance required in the provision of services; where the standard comes in the form of an undertaking or assurance given by the Company pertaining to the quality of their work in the delivery of services; where such standards are pegged to the code of conduct and standard of reasonable care and skill expected of the Company. 3 Fees 1 The Terms of Engagement will specify the prices charged for providing each of the selected services to the Customer; 2 Where the following points are covered in the Terms of Engagement regarding fees and payment: - how the total price is calculated - what/if any discounts are provided and terms based on which the discount is offered - when payment is due - the mode of payment (eg; bank transfer, credit card, paynow) - where any interested is charged on late payments, and the applicable rate
4 Customer Obligations1 The Terms of Engagement will state any obligations of the Customer in respect to facilitate the delivery of the Company’s services 2 These obligations can refer to the provision of meeting rooms, workspaces, access to facilities and information which are required for the Company to render its services; Where any such access is governed by our general terms of services which includes a Non-Disclosure clause for the Company and any of its representatives;
5 Indemnity1 The Customer shall indemnify hold harmless, and, upon the Company’s written request, defend the Company and any of its directors, officers, employees, advisors, Subcontractors, or Affiliates from and against any and all Claims by any third party (including but not limited to the directors, officers, employees, advisors, Subcontractors, subsidiaries or Affiliates of the Customer) arising out of, relating to or in connection with the Agreement to the extent that the aggregate of any such Claims exceeds Company’s cumulative overall liability set forth in
6 Conflicts of interest1 The Terms of Engagement will include a provision where the Company warrants that to the best of its knowledge, no conflict of interest exists or is likely to arise in the delivery of services to the Customer;
8 Intellectual property1 For the purpose of this Article Company’s Intellectual Property Rights means any and all Intellectual Property Rights of the Company in any tools, methodologies, services, documents and techniques of any nature whatsoever, which have been created or acquired by the Company before or otherwise than in the performance of the Agreement and which are used by the Company in connection with or to perform the Services or otherwise are necessary for exploitation of the Services, as well as all Intellectual Property Rights in and to all (new) documents, tools, methodologies, services and techniques of any nature whatsoever which are generated by or for the Company in the performance of the Agreement. The Customer will execute such documents and/or take such other steps as may reasonably be necessary to vest Company’s IPR in the Company or its nominee. 2 For the purpose of this Article Customer’s Intellectual Property Rights means all Intellectual Property Rights of the Customer whether provided directly or indirectly by the Customer to the Company for the purpose of the Agreement. 3 The Customer acknowledges that all Company’s IPR and any developments, modifications, or enhancements to the Company’s IPR are and will at all times remain vested in the Company. 4 The Company hereby grants to the Customer, upon full and final payment by the Customer of all amounts owing to the Company, a royalty-free, world-wide, non-exclusive, non-transferable right to use the Company’s IPR in and to the Services, the Deliverables or output for the purpose of the Agreement ONLY and conditionally upon compliance with the Terms. The Customer shall not, without the prior written consent of the Company, alter or make any addition to the Company’s IPR. The Customer shall not alter, deface or remove any reference to the Company as being the rightful owner of the Company’s IPR. If the Customer commits a breach of any material term or condition of the Agreement, the Company may withdraw the right of use set forth in this Article. 5 The Company warrants, exclusively to the Customer, that the Deliverables produced in relation to the Services will be the original work of the Company, its employees or Subcontractors, unless a Deliverable indicates otherwise, and that the Deliverables to the best of Company’s knowledge will not infringe or misappropriate the Intellectual Property Rights of any third Party. 6 The Company will indemnify and hold harmless the Customer against all reasonably incurred claims, losses, damages, costs (including reasonable legal fees), expenses and liabilities suffered or incurred by the Customer as a result of any claim that any Services or Deliverables provided in the performance of the Agreement infringe the Intellectual Property Rights of any third party. 7 The Customer shall, within forty-eight (48) hours of receipt of an infringement claim by a third party, notify the Company in writing, by registered mail with acknowledgement of receipt. 8 The warranty and indemnity set forth in Articles 10.5 and 10.6 shall not apply to an infringement claim: (a) resulting from the Company’s compliance with specific written instructions of the Customer directing a change in the specifications for the Deliverables or directing a manner of performance of the Services or requiring the use of specifications not normally used by the Company; (b) resulting from additions to or changes in any Services or Deliverables or any part thereof furnished under the Agreement if the Customer or another person acting under the direction of the Customer made such changes; (c) directly or indirectly caused by Company’s reliance on any information provided to the Company by the Customer (or another person acting under the direction of the Customer); or (d) not notified to the Company by the Customer in accordance with Article 10.7 hereof. 9 The Company shall, at its request, have sole control over the defence of any infringement claim and over all negotiations in respect of such a claim and the Customer shall not accept any liability in relation to such a claim without Company’s prior written consent. Furthermore, the Customer shall provide all such documents, information and assistance and do all such acts and things as the Company may reasonably require in relation to such infringement claims. 10 Neither Party will use or reference any trade names or trademarks of or used by the other Party or any of its Affiliates except as authorised by this agreement;
9 Termination1 For the purpose of this Article Termination Event means any of the following: (a) a Party commits a breach of any material term or condition of the Agreement, the effect of which breach is or may be substantial; (b) in case of theft, wilful misconduct, gross negligence, fraud or fraudulent misrepresentation by a Party when performing its obligation in connection with the Agreement; (c) the affected Party stops or suspends, or threatens to stop or suspend payment of all or a material part of its debts or is unable to pay its debts as they fall due; or (d) any step is taken with a view to the administration, winding up or bankruptcy or any similar proceedings in the Jurisdiction of the affected Party. 2 The Agreement shall commence on the Effective Date and shall, unless terminated earlier in terms of the Agreement, automatically terminate once the Services have been rendered by the Company and all Fees, Expenses and VAT have been paid by the Customer (the Term of the Agreement). 3 3 Upon the occurrence of a Termination Event or thereafter, the Party not experiencing the Termination Event may: (a) in the case of a Termination Event which is not capable of remedy, terminate the Agreement forthwith by written notice; and (b) in the case of any other Termination Event, serve notice to the other Party specifying the Termination Event and requiring it to be remedied within thirty (30) days, and if the affected Party fails to remedy the Termination Event in accordance with the Agreement within such thirty day period, the other Party may terminate the Agreement forthwith by written notice. 4 Upon termination of the Agreement for any cause, the Customer shall pay to the Company, within five (5) business days of the date of termination, all Fees and any Expenses and VAT or GST payable under the Agreement for the Services performed up to the termination. Termination of the Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties which have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination
10 Insurance1 In no event shall the Company’s cumulative overall liability for any and all claims, demands, causes of action, suits, proceedings, remedies, fines, penalties, taxes, losses, judgments, liens, liabilities, indemnities, costs, awards, damages (including any punitive and/or exemplary damages) or expenses of any kind and character (including reasonable attorney’s fees and other legal-related expenses) (Claims) arising out of, relating to or in connection with the Agreement exceed the amount of Fees paid by Customer in respect of the Services that gave rise to such Claim. Further, in no event shall the Company or any of its directors, officers, employees, advisors, Subcontractors, or Affiliates be liable under the Agreement to the Customer or any third party for consequential, indirect, incidental, special, exemplary, punitive or enhanced damages, or lost profits, revenues or business opportunities, diminution in value or damage to reputation and/or goodwill, arising out of, relating to, or in connection with the Agreement, regardless of (a) whether such damages were foreseeable; (b) whether or not the Customer was advised of the possibility of such damages; and (c) the legal or equitable theory (contract, tort or otherwise) upon which the claim is based 2 The Customer shall indemnify, hold harmless, and, upon the Company’s written request, defend the Company and any of its directors, officers, employees, advisors, Subcontractors, or Affiliates from and against any and all Claims by any third party (including but not limited to the directors, officers, employees, advisors, Subcontractors, subsidiaries or Affiliates of the Customer) arising out of, relating to or in connection with the Agreement to the extent that the aggregate of any such Claims exceeds Company’s cumulative overall liability set forth in Article 12.1 3 Any representative of the Company or any of its directors, officers, employees, advisors, Subcontractors, or Affiliates shall have the benefit of the limitations, exclusions and indemnities set forth in this Article 12. 4 The Customer shall be prohibited from bringing legal action following the expiry of three (3) months from the day upon which the Customer became aware of the Claim. In any event, Claims shall be time-barred by the expiration of six (6) months after the event causing the damage. 5 The Fees paid by the Customer and the other provisions of the Agreement reflect the allocations of risk between the parties. The provisions of this Article 12 are an essential element of the basis of this Agreement. 6 Each party shall use all reasonable endeavours to mitigate any Claims arising out, relating to or in connection with the Agreement. 7 Provided it has complied with the provisions of this Article 12.9, if a Party is prevented, hindered or delayed in or from performing any of its obligations under the Agreement by a Force Majeure Event (the Affected Party), the Affected Party shall not be in breach of the Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The Affected Party shall (a) as soon as reasonably practicable after the start of the Force Majeure Event, notify the other Party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Agreement; and (b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations. If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than sixty (60) days, the Party not affected by the Force Majeure Event may terminate the Agreement by giving thirty (30) days written notice to the Affected Party whereupon the provisions of Article 13.4 shall apply 8 Both Parties shall take out adequate insurance policies at their own expense so as to sufficiently cover their respective liabilities under the Agreement, and shall, upon written request of the other Party, provide written evidence of the existence of such policies.
11 Marketing1 The Company is permitted to use the Customers brand name and company name in marketing to promote its products and services; where such permission may be withdrawn by written request from the Customer;
12 Non-Disclosure1 To deliver some of our services the Receiving Party may need access to Business Information; Any Business Information that the Disclosing Party grants access to will be kept confidential by the Receiving Party; 2 Any information the Receiving accessed to deliver its services will not be retained and will be destroyed upon fulfilling the obligations to the Receiving Party to the Disclosing Party under this Agreement; 3 The Receiving Party will only use the Disclosing Party’s business information to perform its obligations to the Disclosing Party under this Agreement; 4 The Receiving Party will not disclose any of the Disclosing Party’s business information without their prior written consent; 5 If the Receiving Party becomes aware of any unauthorised disclosure of Business Information; it shall immediately inform the Disclosing Party and the Parties shall seek to find a remedy to the situation and to prevent further unauthorised use of the Business Information. 6 The Receiving Party may disclose the Disclosing Party’s Business Information on a “need to know” basis to: (a) any legal advisers and statutory auditors that it has engaged for itself; (b) any regulator having regulatory or supervisory authority over its business; (c) any director, officer or employee of the Receiving Party; (d) its Affiliates and Subcontractors and their directors, officers or employees, where the Receiving Party is a Company (the Authorised Recipients), provided that the Receiving Party shall in each case first advise the Authorised Recipients of the conditions set out herein and shall ensure that the Authorised Recipients are bound by conditions of confidence in respect of the Business Information no less onerous than those set out in these Terms. The Receiving Party will be fully and solely responsible to Company for its Authorised Recipients and Authorised Recipients’ compliance with the Terms. 7 The obligations of confidentiality referred to in this Article will not apply to any Business Information which: 1. was known to or in the possession of the Receiving Party before such information was imparted by the Disclosing Party; 2. is legitimately in or subsequently comes into the public domain other than by breach by the Receiving Party of its obligations hereunder or under any other agreement on confidentiality between the Parties or any of their Affiliates; 3. is received in good faith by the Receiving Party from a third party who has no obligations of confidence to the Disclosing Party in respect of it and who imposes no obligations of confidence upon the Receiving Party; 4. is approved for release or use by written authorisation of the Disclosing Party; 5. is developed by the Receiving Party independently without reference to the Confidential Information, as demonstrated by relevant evidence; or 6. is required to be disclosed by legal or regulatory obligation. 8 All Confidential Information is and shall remain the property of the Disclosing Party; provided however that the Company shall have an irrevocable, perpetual, non-exclusive right to use and reproduce the Customer’s Confidential Information in any Deliverable to the Customer; 9 Within thirty (30) days from the date of termination or expiration of the Agreement, the Receiving Party shall cease to use the Confidential Information and shall promptly return or destroy all Confidential Information, together with any copies or extracts thereof, as so requested by the Disclosing Party; 10 With respect to archival storage, the Customer agrees that the Company may only retain the Business information in its archive where it is required by applicable law;