- In this Agreement, unless otherwise inconsistent with the context hereof:The “Service Provider” means ALIGN GROUP OF COMPANIES PTE LTD (UEN 201217491G), a company established in Singapore with a registered address at 73 Circular Road, #03-01 Singapore 049427;The “Company” means the company entering into the Service Agreement with the Service Provider;“Agreement” means this Terms and Conditions of Services Agreement, the Services Agreement Form, and annexes and any supplemental, amendments or modifications agreed in writing and signed by the Parties;“Deliverables” means the deliverables to be developed, created and completed by the Service Provider and furnished to the Company pursuant to the Services Agreement, as more particularly described in the Services Agreement Form and/or the Proposal;“Effective Date” means the date as set out in the Services Agreement Form;“Total Fee” means the consideration to be paid by the Company to the Service Provider as set out in the Services Agreement Form;
“Man Day” means 8 hours/ day of work dedicated to the performance of the Services and Deliverables;
“Term” means the number of months commencing from the Effective Date, set out in the Services Agreement Form;
“Services” means the services to be provided by the Service Provider as more particularly described in the Services Agreement Form.
- Words denoting the singular include the plural and vice versa. Words denoting any gender include all genders and word denoting persons include firms and corporations and vice versa.
- References to Clauses and Annexes are references to the clauses of, and the annexes to, this Agreement.
- The headings to the Clauses or Annexes are for convenience of reference only and shall not affect the construction of this Agreement.
- The Company hereby agrees to engage the Service Provider to carry out the Services for the Company, subject to such changes as may be required by the Company. The Service Provider shall not be liable for non-performance of any item of the Services due to restrictions or changes on the part of the Company. At the request of the Company, the Service Provider may provide additional services on terms to be discussed in good faith and agreed in writing. The Service Provider shall assist the Company in applying for related qualifying government grant(s) but the Service Provider does not guarantee the success and approval of such government grant(s).
- The Service Provider shall perform the Services in a timely manner and shall furnish the Company with the Deliverables within reasonable timing(s). The Service Provider shall provide the Services with due care and diligence, and shall use reasonable efforts to supervise third-party suppliers in order to ensure accuracy and quality in all aspects of the Services or items being supplied. The Service Provider shall not be liable for any failure, delay or default on the part of any third party suppliers beyond the reasonable control of the Service Provider.
- The Company warrants that all information and/or data provided to the Service Provider is true and accurate to the best of their ability. The Service Provider disclaims all liability for any losses suffered by the Company and/or any third party as a consequence of provision of inaccurate information and/or data and/or delay of provision of information and/or data by the Company to the Service Provider. Should the Company assume control of any part of the Service’s Provider’s role, the Service Provider shall not be liable for any consequences as a result.
- Should the Service Provider be required to work with any third party service providers and/or vendors engaged by the Company, the Company agrees to procure such third party service providers’ and/or vendors’ full cooperation. The Service Provider shall not be liable for any losses suffered by the Company arising from non-performance by such third party service providers and/or vendors.
- The Company authorises the Service Provider to share any grant related documents to government authorities, auditors and financial institutions, when such disclosure is required for reasons not related to marketing purposes.
3. DURATION AND PROVISION OF SERVICES
- This Agreement shall be deemed to have come into force on the Effective Date and shall continue in full force and effect for duration of the Term, unless earlier terminated in accordance with this Agreement.
- All timelines proposed in the Proposal for the Services and/or the Deliverables are based on estimation, on the assumption that there is no delay on the part of the Company in paying the Fee in the manner and on the timing(s) set out in the Services Agreement Form, providing the Service Provider with information and/or access, or otherwise cooperation with the Service Provider. The Service Provider shall not be liable in the event there is any delay due to unforeseen circumstances, any event of Force Majeure, or unexpected changes not within the control of the Service Provider. In case of any variation to the Services and/or Deliverables requested by the Company, including the provision of inaccurate information by the Company to the Service Provider, the Service Provider shall be entitled to adjust the timelines proposed in the Proposal without being liable for any losses suffered by the Company.
- The Services and/or Deliverables will be executed or provided as an extension and based on the Company’s existing framework for the corresponding topic, which serves as a building block for the Services and/or Deliverables. Should the requirement for the Services and/or Deliverables be amended at the Company’s request, or due to irrelevance or inadequacy of the Company’s existing framework, the Service Provider reserves the right to amend the Proposal and/or Services and/or Deliverables. The Service Provider shall not be penalised nor be liable for any losses suffered by the Company as a consequence of such a change.
- For projects which require external data collection, the Company would be responsible to achieve the minimum sample size that is required for statistical validity based on the best estimate of target population number at a confidence level of 90% and error margin of ±5%. The Service Provider will do its best to support the Company in achieving the minimum sample size, but is not to be penalised nor liable for any losses suffered by the Company as a consequence.
- In consideration for the Service Provider’s performance of the Services, the Company shall pay the Service Provider the Fee in the manner and on the timing(s) set out in the Services Agreement Form. The performance of the Services will be carried out solely in Singapore, and should the Service Provider be required to perform the Services outside of Singapore, the Company shall reimburse the Service Provider for reasonable travel, flight, and accommodation expenses, an extra charge of 60% per man-day cost shall be imposed, or at any other rate pre-agreed on record between the Company and the Service Provider.
- The Company shall reimburse the Service Provider for all out-of-pocket expenses and third party costs incurred in providing the Services. Such expenses and costs may include but are not limited to the following:
- transport and logistics expense;
- rental of venue;
- telecommunication cost;
- office supplies;
- external tools and systems;
- costs of translation;
- press releases printing;
- media conference calls;
- food and beverages;
- any other expenses incurred by the Service Provider at the request of Company which is not stated in the Services Agreement Form.
These amounts will be included in the Service Provider’s invoices and the Service Provider reserves the right to invoice the Company for these amounts immediately upon receipt of third party invoices, such as invoices for third party services, hotel bookings, venue bookings, food and beverage and entertainment expenses.
- The number of training, facilitation, presentation sessions (the “Sessions”) to be conducted by the Service Provider to the Company as described in the Proposal shall be fixed and is based on the optimal requirements for the Company. Should the Company require additional Sessions, additional fees would apply. Should the Company decide not to participate in any of the Sessions, the Company shall not be entitled to any reduction of the Fee and/or any discounts.
- All payments to the Service Provider under this Agreement shall be by way of remittance to the Service Provider’s designated bank account. All bank charges for remittance of payments to the Service Provider shall be borne by the Company. Further, all payments shall be free from set-off, deduction or withholding (on account of tax or otherwise). If the Company shall at any time be compelled by any applicable law to withhold or deduct any tax on behalf of the Service Provider from any amount payable to the Service Provider hereunder, the amount payable to the Service Provider shall be increased to such extent that the net amount received by the Service Provider after such withholding or deduction shall equal the amount that would have been received by the Service Provider hereunder if no such withholding or deduction had been required. The Company shall promptly furnish to the Service Provider written receipts from the appropriate tax authority certifying that the payment of all applicable withholding taxes have been made.
- Unless specified otherwise, all quotes provided by the Service Provider shall be in Singapore Dollars and amounts quoted in any additional currency are approximate only based on the currency exchange rate at time of the quote. In the event that the Service Provider agrees to payment in a currency other than Singapore Dollars, the Company shall pay such amount in that foreign currency as is necessary to ensure that the Service Provider receives the Singapore Dollar amount quoted, provided always that any variation shall not be more than 10% of the amount quoted.
5. INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY
- The intellectual property rights in all materials provided by the Company shall belong to the Company and the Company warrants that the use of such materials by the Service Provider will not infringe the intellectual property rights or any other rights of a third party.
- The final Deliverables created by the Service Provider for the Company pursuant to this Agreement shall belong to the Company. For the avoidance of doubt, the Service Provider shall be entitled to re-use for any other third party any ideas and/or Deliverables and/or materials which is not created using the Company intellectual property and/or rejected for implementation by the Company.
- The Service Provider agrees to keep confidential the terms of this Agreement and all documents and materials supplied or made available to the Service Provider by the Company such as the financial and business affairs and conditions of the Company and the operations and dealings of the Company with third parties, which is (a) marked as confidential or proprietary at time of disclosure, or (b) if disclosed verbally is confirmed in writing as confidential or proprietary within two (2) business days from disclosure (hereinafter called the “Confidential Information”). However, the Service Provider may disclose such Confidential Information which (a) the Service Provider knew or possessed prior to receiving it from the Company without any obligations of confidentiality, (b) is or becomes publicly available without breach of this Agreement; (c) is obtained by the Service Provider from a third party, without any obligation to keep it confidential; or (d) is independently developed or discovered by the Service Provider and forms part of the Service Provider’s trade knowledge. Further, the Service Provider may disclose any Confidential Information if it gives the Company prior written notice and the disclosure is required by law or by lawful requirement of a competent judicial, administrative or regulatory authority, or to comply with funding arrangements of either Party or listing rules of a stock exchange. The obligations of the Service Provider under this clause shall remain in force for the duration of this Agreement and for one (1) year after the termination or expiration of this Agreement.
- The Service Provider shall be entitled to list the Company as a client of the Service Provider and describe the Services provided in its corporate literature including website, and any publicity and marketing materials.
6. PERSONAL DATA PROTECTION
- In connection with the performance of the Services under the Agreement, the Service Provider shall comply with the relevant sections of the Personal Data Protection Act 2012 (“PDPA”) when handling Personal Data provided to the Service Provider by the Company.
- “Personal Data” means “data, whether true or not, about an individual who can be identified — (a) from that data; or (b) from that data and other information to which the Company has or is likely to have access; and/or any other personal data”, as defined under the PDPA.
- The Company undertakes to ensure that the disclosure to the Service Provider of each item of Personal Data is lawful under the PDPA and to notify the Service Provider if any individual withdraws their consent to the Service Provider’s use or disclosure of the Personal Data;
- Without limiting the generality of the Company’s obligations as stated in Clause 6.3, above, the Company undertakes and warrants to perform the following retention obligations:
- Where consent from an individual was obtained by way of a physical document, to retain the original document as evidence of the consent for a period of at least three years (or for such longer time as the parties may agree), and upon request provide the Service Provider with a clear and certified true copy of the same.
- Where consent from an individual was obtained verbally, to retain the recording of the consent as evidence of the consent for a period of at least three years (or for such longer time as the parties may agree), and upon request provide the Service Provider with a clear and unedited copy of the same.
- Where the consent from an individual was obtained through electronic means, the Company will retain documentation or system logs, for at least three years (or for such longer time as the parties may agree), and upon request provide the Service Provider with a clear and certified true copy of the same, capturing the following information:
- The individual’s choice;
- Date and time when the individual expressed his/her choice;
- The webpage / pop-up / online form (or equivalent) which the relevant individual was looking when providing the consent; and
- The clauses which the individual consented to (including the terms and conditions applicable to the consent which the individual provided).
7. INDEMNITY AND LIQUIDATED DAMAGES
- The Company agrees and undertakes to indemnify the Service Provider against any action, claim, demand, expense loss, damage and cost asserted against or incurred by the Company whatsoever or howsoever arising from or as a result of any breach of these terms and conditions or of the warranties by the Service Provider, or any act or omission or negligence by the Service Provider in connection with the performance of the Services, including without limitation third party claims for breach of contract, failure of compliance to law or audit requirements, defamation or the infringement of any copyright or other intellectual property rights, but not for any such claims caused solely by the Service Provider’s wilful misconduct. The indemnification obligations in this clause shall survive termination (howsoever occurring) of this Agreement.
- In the event the Company hires the assigned employee(s) of the Service Provider under Contract of Service as a result of the engagement for the Services, during or twelve (12) months after the completion of the Services, the Company would be liable to pay the Service Provider the total Fees agreed for the project, plus a sum of Twenty Thousand Dollars (S$20,000) as liquidated damages.
- Either Party shall have the right to terminate this Agreement by giving one (1) month’s written notice without assigning any reasons.
- The Service Provider shall be entitled to suspend the provision of the Services if the Company fails to make payment of any invoice within 30 days from its due date, and to resume performance only upon payment of the invoice and any interest levied thereon in accordance with this Agreement. In the event that this Agreement is suspended for more than 30 days or the Company repeatedly fails and/or delays in making payment of the Service Provider’s invoices, then the Service Provider shall be entitled to terminate this Agreement forthwith by notice in writing.
- The Service Provider shall be entitled to terminate this Agreement forthwith upon written notice if-
- the Company is guilty of any breach of these terms and conditions and fails to remedy such breach within the time period reasonably stipulated by the Service Provider in writing;
- the Company is guilty of any breach incapable of remedy;
- any proceeding has commenced or any order is made for the winding-up, liquidation, receivership or judicial management of the Company, or if the Company enters into an arrangement or composition for the benefit of its creditors, or if a receiver or manager is appointed in respect of its assets or undertaking or any part thereof.
- On termination of the Agreement howsoever arising:
- all rights and obligations of the Parties under this Agreement shall automatically terminate except for such rights of actions as shall have accrued prior to such termination and any obligations which expressly of by implication are intended to come into or continue in force on or after such termination;
- the Service Provider shall promptly return to the Company all Confidential Information and any other document and material belonging to the Company in the possession of the Service Provider; and
- where applicable, the Company shall, within thirty days, pay the Service Provider for all unpaid monies accrued up to the date of termination after making due deduction for any sums due and owing to the Company under the terms of this Agreement, or the Service Provider shall, within fourteen days, refund any excess payments made in advance by the Company.
9. RELATIONSHIP WITH THE COMPANY
- It is expressly agreed that Service Provider shall be an independent contractor of the Company.
- Nothing in this Agreement shall create a partnership, joint venture or agency relationship between the Company and the Service Provider.
10. GOVERNING LAW AND DISPUTE RESOLUTION
- This Agreement shall be governed and construed in accordance to the laws of the Republic of Singapore. The Parties hereby submit to the non-exclusive jurisdiction of the Courts of the Republic of Singapore in connection with matters concerning this agreement.
- Notwithstanding anything in this Agreement, in the event of any dispute, claim, question or disagreement arising out of or relating to this Agreement, or the breach thereof, the Parties agree that they will observe the following protocol:
- Compulsory mediation, conducted by a mediator from the Singapore Mediation Centre, for a minimum of 1 full day;
- If the mediation fails to produce a commercial resolution of the dispute(s) in question, the Parties agree that all dispute(s) shall be referred to fully and finally decided by Arbitration in Singapore in accordance with the prevailing rules of the Singapore International Arbitration Centre. No Party shall proceed to litigation or any other form of dispute resolution.
11. GENERAL PROVISIONS
- These terms and conditions embody the entire agreement between the Parties that governs the relationship between the Parties in relation to the engagement and supersedes any and all other contracts, representations, and arrangements, whether oral or in writing, heretofore made by either Party with reference to the subject matter hereof.
- This Agreement shall not be altered, changed, supplemented or amended except where mutually agreed in writing by both Parties.
- No delay or omission by the Company in exercising any right or remedy under these terms and conditions shall be considered a waiver of such right or remedy and no waiver shall be effective unless in writing. The right of the Company to require strict performance and observance of any obligation hereunder shall not be affected in any way by any previous waiver, forbearance or course of dealing.
- The rights and remedies in this Agreement are cumulative and not exclusive of any other rights or remedies (whether provided by law or otherwise).
- In the event that any or any part of the provisions contained in these terms and conditions is determined to be invalid, unlawful or unenforceable to any extent, such provision shall be severed from the remaining provisions which shall continue to be valid and enforceable to the fullest extent permitted by law.
- A person who is not a Party to these terms and conditions shall have no right under the Contracts (Rights of Third Parties) Act (Cap. 53B) to enforce any of its terms.
- Each party shall be responsible for its own costs and expenses in the preparation, negotiation and execution of this Agreement and the transactions contemplated.
- Except as otherwise provided in this Agreement, any notices permitted or required under this Agreement shall-
- be in writing and in the English language and shall be delivered personally or by letter;
- be deemed to have been received, in the case of a letter delivered personally or two days after it has been put into the post; and
- be sent to the recipient at its address or fax number set out below, or to such other address as is notified by a Party to the other Party of this Agreement.
To Service Provider:
- In the event that any Party delays or is prevented from performing its obligations hereunder due to earthquake, typhoon, flood, tidal wave, lightning, fire, plague, other epidemics, falling objects, war, hostilities, acts of terrorism, insurrection, strikes, riots, industrial dispute or any other events the occurrence and consequences of which a Party is unable to prevent or avoid (any one of the above events is referred to as an “event of Force Majeure”), this shall not constitute a breach of contract; provided that such Party shall, after it is aware of its being affected by such an event, immediately notify the other Party of such an event and the reasonable remedial measures that it has adopted or will adopt. The Parties shall, in accordance with the extent to which the performance of this Agreement is affected by such an event, consult with each other and decide on whether or not to terminate or vary this Agreement. The provisions of this Clause do not apply to any obligations imposed with respect to the payment of monies under this Agreement.