GENERAL TERMS AND CONDITIONS


1. DEFINITIONS AND INTERPRETATION

In the Agreement and these general terms and conditions, the following terms shall (unless the context otherwise requires) have the meanings set out opposite them below respectively:

“Agreement” means the agreement incorporating these general terms and conditions;

“Client Content” means all content uploaded by Client on the Server;

“Copyright Act” means the Copyright Act (Cap. 63);

“Defaulting Party” has the meaning ascribed in Condition 6.3;

“Duration” means the duration of this Agreement;

“Intellectual Property” means all present, contingent or future copyright, patent rights, design rights (whether registered or unregistered), moral rights, rights in trade names, logos, get up and trade and service marks and any other intellectual property rights (whether now or hereinafter to be discovered) including Confidential Information, know-how and trade secrets and any application for registration of any such right;

“WhereIsWhere IP” means the Intellectual Property belonging to WhereIsWhere pursuant to Condition 4;

“Licensed IP” means all Intellectual Property in the WhereIsWhere Software;

“Literary Work” has the meaning ascribed to “literary work” in the Copyright Act;

“Non-Defaulting Party” has the meaning ascribed in Condition 6.2;

“Number of Outlets” means the number of the Client’s outlets in respect of which the marketing communications would be available;


“Service Fee” means the amount payable by Client to WhereIsWhere set out in the Agreement;

“Server” means the server or servers making available the Service;

“Service Locations” means the service locations set out in the Agreement; and

“Term” means the term set out in the Agreement.

The headings in the Agreement are inserted for convenience of reference only and shall not be taken, read and construed as essential parts of the Agreement. All references to “Condition” or “Conditions” shall be references to a clause or clauses of these general terms and conditions.

2. PROVISION AND USE OF WHEREISWHERE SERVICE

2.1 In consideration of payment by Client to WhereIsWhere of the amounts set out in the Agreement, WhereIsWhere shall grant the Client access to the Service to make available to its customers the Service.
2.2 In consideration of payment by Client to WhereIsWhere of the amounts set out in the Agreement, WhereIsWhere shall grant the Client access to the Service to make available to its customers the Service.
(a) is, or which markets any product or service which is, illegal in the jurisdiction of the Service Locations or the site where the Server is situated;
(b) infringes any third party intellectual property rights, or any intellectual property rights of WhereIsWhere; or
(c) infringes any third party intellectual property rights, or any intellectual property rights of WhereIsWhere; or
2.3 Client undertakes to deliver the Minimum Promotions in the marketing communication delivered to its customers using the WhereIsWhere Service.

3. PAYMENTS

3.1 Client shall the Service Fee shall be payable in advance at the beginning of each month.
3.2 All sums payable to WhereIsWhere under this Agreement are exclusive of all sales and value added or other applicable taxes, imposts or duties (excluding withholding taxes), which shall be an paid by Client and shall be borne by them. The sums payable to WhereIsWhere shall be paid in cleared funds to such bank account or in such other manner as WhereIsWhere may specify from time to time to WhereIsWhere, after the deduction of the applicable rate of withholding tax by Client. Client shall pay this withholding tax to the relevant authorities and shall provide WhereIsWhere with a certificate from the relevant authorities evidencing payment of said withholding tax. Client agrees to release and indemnify WhereIsWhere from and against all liability of whatever nature arising out of Client’s failure duly and timely to pay and discharge any of the above-mentioned taxes.

4. INTELLECTUAL PROPERTY

4.1 All Intellectual Property in the Service belong exclusively to WhereIsWhere, and Client shall not do anything which might bring into question WhereIsWhere’s ownership of those rights or their validity. All Intellectual Property in the Client Content belong exclusively to Client, and WhereIsWhere shall not do anything which might bring into question Client’s ownership of those rights or their validity.
4.2 Client shall have no access to WhereIsWhere IP save for the Licensed IP and shall not use the Licensed IP in any manner other than as provided pursuant to this Agreement. Without prejudice to the generality of the limitation in the foregoing, Client shall not alter, modify, adapt or translate the whole or any part of the Licensed IP in any way whatsoever nor permit the whole or any part of the Licensed IP to be combined with or become incorporated in any other computer programs nor decompile, disassemble or reverse engineer the same nor attempt to do any of such thing.

5. LIMITATION OF WARRANTY AND LIABILITY

5.1 The express terms of the Agreement are in lieu of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise, all of which are hereby excluded to the fullest extent permitted by law.
5.2 WhereIsWhere makes no representation, undertaking or warranty whatsoever, express or implied, that Service or the Licensed IP is merchantable or fit for any particular purpose.
5.3 Without prejudice to the generality of the foregoing, in no event shall WhereIsWhere’s liability to Client exceed the amount payable to, and received by WhereIsWhere, for a period of six (6) months prior to the date on which such liability arose. No claim shall be brought against WhereIsWhere any later than twelve (12) months from the date on which such liability arose.
5.4 Client shall indemnity and hold WhereIsWhere harmless from any and all damages, liabilities, costs and expenses (including but not limited to attorneys' fees and costs of suit) incurred by WhereIIsWhere as a result of any claim, proceeding, and/or judgment to the extent it arises out of or is connected in any manner with Client’s use of the Service save where such liability arises from the wilful default or gross negligence on the part of WhereIsWhere.

6. TERMINATION

6.1 The Agreement shall commence from the effective date set out in the Agreement shall remain in force for the Term.
6.2 Provided that Client has not at any time been in breach of the Agreement, Client shall have the option to renew the Agreement for the Option Renewal Term at WhereIsWhere’s prevailing rates applicable to the Service.
6.3 The Agreement may be terminated earlier in accordance with the following provisions:
(a) either Party ("Non-Defaulting Party") may terminate this Agreement if the other Party ("Defaulting Party") has breached this Agreement, and the Defaulting Party fails to rectify such breach within thirty (30) days of receiving written notification from the Non-Defaulting Party specifying the breach;
(b) either Party may terminate this Agreement immediately if the other Party is insolvent, ceases or threatens to cease to carry on business, makes any arrangement for the benefit of or makes any composition or arrangement with its creditors, or any action or proceeding in bankruptcy or insolvency is taken, including, but not limited to, the appointment of a receiver, administrator, liquidator or other trustee, other than for the purpose of amalgamation or reconstruction;
(c) either Party may terminate this Agreement immediately if any of the Parties is prohibited from performing its obligations under this Agreement at any time due to any prohibition or restriction under any applicable laws, regulations or policies; or
(d) either Party may terminate this Agreement immediately where any of the Parties is unable to continue its business operation for a period of 3 (three) months or more due to an Event of Force Majeure.
6.4 Termination of this Agreement (howsoever arising) shall be without prejudice to all other rights and claims of each Party against the other.
6.5 The provisions of Conditions 4, 5 and 7 to 10 shall survive termination or expiration of the Agreement.

7. CONFIDENTIALITY

Each of the Parties shall at all times, both before and after termination of the Agreement, keep confidential:
(a) the provisions of the Agreement; and
(b) any information which he may acquire or may already have acquired prior to the date of the Agreement in relation to the other Party or its business, customers, clients or other affairs and shall not use such information or disclose the same to any third party except with the prior written consent of every other Party or in accordance with the order of a court of competent jurisdiction.

8. NOTICES

8.1 Any notice to be given by any Party shall be in writing and shall be deemed duly given if delivered personally or by sent e-mail or by prepaid registered post to the addressee at the address or (as the case may be) the facsimile number or e-mail address set in the Agreement or at such other address or e-mail address as the Party to be served may have notified (in accordance with this Condition 8.1) for the purposes of the Agreement.
8.2 Any notice sent by e-mail shall be deemed given when dispatched subject to the sender not receiving any indication that the electronic mail message has not been successfully transmitted to or received by the intended recipient, and any notice served by prepaid registered post shall be deemed given 72 (seventy-two) hours after posting.

9. MISCELLANEOUS

9.1 The Agreement shall be binding upon the Parties and their successors and permitted assigns provided that none of the Parties shall be entitled to assign his rights or benefits under the Agreement or purport to transfer any of his duties or obligations hereunder except with the prior consent of all the other parties.
9.2 In the event of any inconsistency between the Agreement and these general terms and conditions, the provisions of the Agreement shall prevail.
9.3 No exercise or failure to exercise or delay in exercising any rights, power of remedy vested in any Party under or pursuant to the Agreement shall constitute a waiver by that Party of that or any other right, power or remedy.
9.4 Nothing in the Agreement shall be deemed to constitute a partnership between the Parties nor constitute any Party the agent of any other Party or otherwise entitle any Party to have authority to bind any other Party for any purpose whatsoever.
9.5 The Agreement constitutes the entire Agreement between the Parties in relation to the subject matter hereof and supersedes all prior agreements and understandings whether oral or written with respect thereto and no variation of this Deed shall be effective unless reduced to writing and signed by each of the Parties.
9.6 A person who is not a party to the Agreement has no right under the United Kingdom Contracts (Rights of Third Parties) Act (1999) of Singapore to enforce any term of the Agreement.
9.7 The rights and remedies contained in the Agreement are cumulative and not exclusive of any rights or remedies provided by law.

10. LAW AND JURISDICTION

The Agreement shall be governed by, and construed in all respects in accordance with the laws of Singapore and the parties hereby submit to the non-exclusive jurisdiction of the courts of Singapore.