GENERAL TERMS OF SERVICE
PlusMargin, a brand belonging to PlusMargin Pte Ltd, having its Registered Office at 229, Mountbatten Road, #02-41, Singapore 398007 (“PlusMargin”), is in the business of providing predictive persuasion automated platform, including but not limited to “Smart Messages” and “Smart Labels” and the Customer is desirous in engaging and utilizing the solution for increasing the sales conversion for online businesses. Relying on the representations and covenants made and agreed by the Customer herein and believing the same to be true and correct, the PlusMargin has accepted the offer to render the Services to the Customer, subject to the terms and conditions as set forth in this Agreement.
2.1The definitions and rules of interpretation in this clause apply to these general terms and conditions.
- Affiliate: means an entity which directly or indirectly controls, is controlled by, or is under.
- Agreement: means the agreement between PlusMargin and the Customer including the Terms and Conditions.
- Authorised Users: means those employees and workers of the Customer who are authorised by the Customer to use the Product.
- Business Day: means any day which is not a Saturday, Sunday or public holiday in Singapore.
- Business Hours: means 9.00 to 18.00 local Singapore time, each Business Day.
- Confidential Information: means information disclosed by (or on behalf of) one party to the other party in connection with or in anticipation of the Agreement (including the content of the Agreement) that is marked as confidential or, from its nature, content or the circumstances in which it is disclosed, might reasonably be supposed to be confidential. It does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient or that was lawfully given to the recipient by a third party.
- Customer: means the customer of PlusMargin that entered into the Agreement.
- Customer Site: means those website(s) owned and operated by the Customer on which PlusMargin agrees to implement the Product and the Services.
- Data Protection Laws: refers to the protection of individuals with regard to the processing of personal data (or as applicable any similar legislation in any jurisdiction)
- Derivative Data: means information, know-how (including PlusMargin’s underlying data collection methodologies), data and materials that are derived, prepared or generated by PlusMargin and/or its sub-contractors within PlusMargin’s environment pursuant to (and/or as a consequence of) the Product.
- Effective Date: is the date on which PlusMargin and the Customer enter into the Agreement.
- Fees: means the fees for the Product and the Services to be paid by Customer to PlusMargin and which are included and agreed upon in the Agreement.
- Intellectual Property Rights: means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
- Product: means the Software functionality and Services made available by PlusMargin as an application PlusMargin (and as such functionality and services may thereafter be updated by PlusMargin from time to time).
- System: means a “software as a service” (SAAS) system that is an online real-time prediction/conversion/profiling engine and which (i) enables a Customer to automatically build full personal profiles of its Customer Site visitors and based on these profiles to entice and convince these visitors to make certain actions, all focusing in particular on increasing online conversion (e-commerce), and (ii) consists of, among other things, the Software.
- Term: has the meaning given in clauses 13.1. Terms and Conditions means these general terms and conditions, regardless of the form in which they are presented (on paper or expressed electronically, e.g. via the web site), and which form an integral part of and are applicable to the Agreement
- Third Party Users: means agency partners or other third parties identified and notified to PlusMargin in writing which the Customer may permit to use the Product in accordance with clause 2.1 b).
- Virus: means anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
2.2Clause, schedule and paragraph headings shall not affect the interpretation of the Agreement. Where the words include(s), including or in particular are used in the Agreement, they are deemed to have the words without limitation following them.
3. USE OF THE PRODUCT
3.1 Subject to the timely payment by the Customer of the Fees and solely during the Term, PlusMargin grants to the Customer a non-exclusive, non-transferable right to:
- permit the Authorised Users to use the Product;
- permit Third Party Users to use the Product; and
- permit a Customer Affiliate or Affiliates to use the Product in each case solely for the Customer’s internal business operations (and if applicable the business purposes of a relevant Customer Affiliate).
3.2 The Customer shall be solely responsible for any failure of an Authorised User or Third Party User to comply with the terms of the Agreement and shall ensure that Authorised Users and Third Party Users discontinue use upon completion of work for the Customer (or if earlier, upon termination of the Agreement).
3.3 The Customer shall not:
- attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Product (as applicable) in any form or media or by any means;
- attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Product;
- access all or any part of the Product in order to build a product or service which competes with the Product;
- use the Product to provide services to third parties;
- license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Product available to any third party; or
- (without prejudice to clause 2.1 b) attempt to obtain, or assist third parties in obtaining, access to the Product.
3.4 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Product and, in the event of any such unauthorised access or use, promptly notify PlusMargin.
- 4.1 PlusMargin shall, during the Term, provide the Services.
- 4.2 PlusMargin shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except in the event of (planned or unscheduled) maintenance regarding the System.
- 4.3 PlusMargin shall, as part of the Services provide the Customer with PlusMargin’s customer support services during Business Hours in accordance with, if applicable, the Agreement.
- 4.4 PlusMargin uses Customers’ first party cookies or universally unique identifiers to operate the Services.
- 4.5 In accordance with the service level agreement of PlusMargin, PlusMargin shall to its best and reasonable endeavours: a) repair and/or solve all operational issues, problems and/or errors regarding the Services, such as downtime of PlusMargin’s serves as soon as reasonable possible after reporting by the Customer to the helpdesk of PlusMargin; and b) respond to support questions during Business Days between 09.00 and 17.00 hour and as soon as reasonable possible after reporting by the Customer to the helpdesk of PlusMargin.
PlusMargin may use resellers or intermediaries for its benefit. In accordance with clause 18 and 21, any agreement entered into between the Customer and a reseller or intermediary of PlusMargin shall in no event (directly or indirectly) affect the Agreement, the Terms and Conditions and/or any provision thereof. PlusMargin agrees upon separate terms from these “general terms and conditions” directly with the reseller.
6. PERSONAL DATA
- 6.1 Customer shall implement the Product in accordance with all of PlusMargin’s reasonable instructions from time to time determined by PlusMargin to be necessary to enable PlusMargin to comply with applicable Data Protection Laws.
- 6.3 The Customer indemnifies PlusMargin for all (legal) claims, costs, and damages that may arise, for example for PlusMargin as a result of a claim by a third party, related to or arising out of the infringement by the Customer of any obligations under laws and regulations related to the processing, handling or the use of personal data in the context of the services or services that the Customer supplies to its consumers.
- 6.4 PlusMargin shall not collect, store and/or save any names or (email) addresses of any users of the Customers Site.
7. OBLIGATIONS OF PLUSMARGIN
- 7.1 PlusMargin shall perform the Services with reasonable skill and care.
- 7.2 Notwithstanding clause 6.1, PlusMargin:
- a) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Product may be subject to limitations, delays and other problems inherent in the use of such communications facilities;
- b) does not accept responsibility for any use of the Product contrary to PlusMargin’s instructions, or modification or alteration of the Product by any party other than PlusMargin or PlusMargin’s daily authorised contractors or agents;
- c) does not warrant that the Customer’s use of the Product will be uninterrupted or error-free; nor that the Product and/or the information obtained by the Customer through the Product will meet the Customer’s requirements; and/or
- d) is entitled to temporarily and/or completely limit the use of the Product to the extent (i) reasonable necessary in PlusMargin’s opinion or (ii) necessary for the maintenance or upgrades needed to improve the Product, without prior notification and/or any right of compensation of the Customer.
- 7.3 The Agreement shall not prevent PlusMargin from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Agreement.
- 7.4 No conditions, warranties or other terms apply to the Product supplied by PlusMargin under the Agreement unless expressly set out in the Agreement or the Terms and Conditions. No implied conditions, warranties or other terms apply (including any implied terms as to satisfactory quality, fitness for purpose or conformance with description).
8. OBLIGATIONS OF CUSTOMER
The Customer shall:
- a) provide PlusMargin with: (i) all necessary co-operation in relation to the Agreement; and (ii) all necessary access to such information as may be required by PlusMargin in order to render the Product, including but not limited to security access information and configuration services;
- b) comply with all applicable laws and regulations with respect to its activities under the Agreement;
- c) carry out all other Customer responsibilities set out in the Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, PlusMargin may adjust any agreed timetable or delivery schedule as reasonably necessary;
- d) ensure that the Customer Affiliates, Authorised Users and Third Party Users use the Product in accordance with the terms and conditions of the Agreement and shall be responsible for any Authorised User’s, Third Party Users or Affiliates breach of the Agreement;
- e) to the extent applicable, obtain and shall maintain all necessary licences, consents, and permissions necessary for PlusMargin, its contractors and agents to perform their obligations under the Agreement, including without limitation the Services;
- f) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to PlusMargin’s hosting environment, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet; and
- g) permit and assist PlusMargin to monitor Customers Site for the purpose of calculating a change of the Fee in accordance with clause 9.5.
9. FEES & PAYMENT
- 9.1 Customer shall pay the Fees to PlusMargin within 30 days after receiving the invoice.
- 9.2 If PlusMargin has not received payment for any reasons and without prejudice to any other rights and remedies of PlusMargin, PlusMargin may, without liability to the Customer disable the Customer’s access to the Product and/or all or part of the Services and PlusMargin shall be under no obligation to provide the Product and/or any or all of the Services while the invoice(s) concerned remain unpaid.
- 9.3 All amounts and fees stated or referred to in the Agreement: a) shall be payable in USD; b) are non-cancellable and non-refundable; and c) are exclusive of any value added tax, which shall be added to PlusMargin’s invoice(s) at the appropriate rate.
- 9.4 All payments shall be of the gross amount specified in the Agreement without deduction of any taxes, including any non-resident withholding tax which may be imposed on payments by the Customer to PlusMargin.
- 9.5 In accordance with the Agreement, PlusMargin shall have the right, at any time during the Term, to adjust the monthly Fee. The announced Fee changes will become effective 1 (one) month after the notice by PlusMargin to the Customer of such changes. The Customer shall have the right to terminate the Agreement if it does not approve with the announced Fee change
10. PROPRIETY RIGHTS
- 10.1 The Customer acknowledges and agrees that PlusMargin and/or its licensors own all Intellectual Property Rights and any other rights in the Product, Software and System. Except as expressly stated in the Agreement, the Agreement does not grant the Customer any Intellectual Property Rights or any other rights or licences in respect of the Product, Software and System and the Customer shall not acquire or claim any rights in respect of the Product, Software and System by virtue of the rights granted under the Agreement.
- 10.2 PlusMargin acknowledges and agrees that the Customer and/or its licensors own all Intellectual Property Rights and any other rights in the Customer Site. Except as expressly stated in the Agreement, the Agreement does not grant PlusMargin any Intellectual Property Rights or any other rights or licenses in respect of the Customer Site and PlusMargin shall not acquire or claim any rights in respect of the Customer Site by virtue of the rights granted under the Agreement.
- 10.3 PlusMargin confirms that it has all the rights in relation to the Product that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Agreement.
- 10.4 PlusMargin shall have the right to use the Derivate Data for the purpose of research and development of the Product, Software and/or System, and the Customer hereby grants PlusMargin such right.
11. (A) INDEMNITY
- a) Each Party (“Defaulting Party”) hereby undertakes and agrees to indemnify and keep and hold the other Party (“Non Defaulting Party”) indemnified and harmless from and against all claims, proceedings, damages, losses, actions, costs and expenses arising as a consequence of out of with this Agreement or arising from any breach of any terms and conditions of this Agreement.
- b) All indemnities shall survive the expiry or termination of this Agreement.
11. (B) LIMITATION OF LIABILTY
Notwithstanding anything contained in this Agreement including the provisions of Indemnity 11(A), the entire liability of the Service for any and all claims arising out of this Agreement shall not exceed the [fees paid] by the Customer to the PlusMargin for a period of one year.
- a) The Customer/PlusMargin can terminate this Agreement, without assigning any reason by giving advance (01) One Month notice in writing to PlusMargin/Customer.
- b) In case of breach of any terms and conditions of this Agreement, including but not limited to non-satisfactory performance of the Services or for any other reasons, PlusMargin shall be free to terminate this Agreement immediately.
- c) Without limiting the foregoing, either party may terminate this Agreement immediately if the other (i) ceases to do business in the normal course, (ii) becomes or is declared insolvent or bankrupt.
- d) In the event of termination of this Agreement no part of the consideration received by the PlusMargin under the terms of this Agreement shall be refundable to the Customer under any circumstances.
- a) This is a non-exclusive Agreement and it does not, in any manner, restrict Customer from appointing any other person(s)/agencies to do same/similar/identical work on such terms and conditions as Customer may deem fit.
- b) This Agreement shall prevail over any other terms or conditions contained in PlusMargin’s invoices/bills or any other document.
- c) This Agreement constitutes the whole Agreement and/or the entire understanding between the parties and there are no promises, terms, conditions and/or obligations oral or written, expressed or implied other than those contained herein.
- d) The parties herein are and shall be, with respect to the subject matter of Agreement, independent PlusMargins of one another and nothing herein shall be deemed to create
- e) All notices required to be served under this Agreement shall be in writing and sent by registered mail or by facsimile, to the other party hereto at the addresses provided hereinbefore or any later addresses, notice of which having been previously given by one party to the other. All such notices shall be effective upon actual receipt or it shall deem to have been received on the fifth day after the day of dispatch.
- f) Customer shall not assign, delegate or transfer any rights, duties or obligations hereunder or interests herein without the prior written consent of the PlusMargin and any attempted assignment shall be null and void. It is agreed between the parties that PlusMargin may assign, delegate or transfer any rights or obligation hereunder or interest herein at its discretion.
- h) The failure of either party to insist upon or enforce strict performance by the other party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same shall be and remain in full force and effect.
- i) This Agreement may only be modified in writing, by the mutual assent of the parties to this Agreement and signature of a duly authorized officer of each party hereto.
- j) Any right or obligation which becomes absolute before termination/expiration of this Agreement for any reason, or which is by definition of a continuing nature, will survive such termination/expiration.
- h)Force Majeure. Except for payment obligations, neither Party shall be liable for the failure to perform its obligations under this Agreement or an Opportunity due to events beyond such Party's reasonable control including, but not limited to, strikes, riots, civil disorder, wars (declared or undeclared), terrorism, fire, perils of sea or air, flood, drought, explosion, sabotage, accident, embargo, acts of God, acts of Federal, State or local government, or (subject to Section 10 (Proprietary Information) acts in compliance with any applicable law, regulation or order (whether valid or invalid) of any court or governmental body. Time of performance of either Party’s obligations hereunder shall be extended by the time period reasonably necessary to overcome the effects of such occurrences, provided, however, that if such circumstances continue beyond thirty (30) days, the Party awaiting performance may cancel this Agreement or the Opportunity affected.
- i) Non-solicitation. While this Agreement is in effect and for a period of one year following its termination, the Customer agrees that it will not, and will ensure that its affiliates do not, directly or indirectly, solicit or attempt to solicit for employment any of the PlusMargin's Personnel, provided that the foregoing shall not prevent either party from interviewing and/or hiring individuals, who are not Personnel participating in a Program or Opportunity, who respond to general advertisements for employment or that otherwise and independently initiate contact with such Party. In the event of a breach of this Section 11, the Customer shall pay compensation to the PlusMargin in the form of liquidated damages equal to the greater of one (1) year’s compensation either (a) offered to the Personnel by the breaching Party or (b) paid or offered to the Personnel by the non-breaching Party.
14. SETTLEMENT OF DISPUTE AND JURISDICTION
- a) Compliance with Laws. Each Party and its employees and agents shall, and each shall cause its contractors, consultants and subcontractors to comply at their own expense with all applicable local, national, regional and international laws, ordinances, regulations and codes, standards, directives and international conventions and agreements, to the extent that any of the foregoing have the force of law by being directly enforceable by a governmental authority, a court or other proper tribunal, (collectively “Laws”), including, but not limited to, the US Foreign Corrupt Practices Act or similar anti-corruption and/or anti-bribery laws in other countries, the UN Universal Declaration of Human Rights, child labor laws, data protection and privacy laws, criminal reporting laws or any other similar laws. Each Party shall defend, indemnify and hold the other Party, its employees and officers and any of their affiliated companies harmless from and against any and all liabilities (including all costs and reasonable attorney's fees associated with defending against such claims) that may arise by reason of the acts or omissions of a Party or third Parties acting on such Party's behalf which would constitute a violation of this Section.
- b) That all disputes and differences arising out of or in connection with this Agreement (Dispute), shall be resolved through discussion between the parties. If the Dispute is not resolved through discussion within a period of one month from the date of rising of Dispute then it will be referred to and finally resolved by arbitration in accordance with this Section under the Arbitration Rules of Singapore International Arbitration Centre (the “Rules”) for the time being in force. The arbitration under this Section shall be by a single arbitrator as may be mutually agreed to and appointed by the Parties. The decision of the arbitrator shall be final and binding on the Parties. The venue of arbitration shall be Singapore. The Parties shall continue to fulfil their obligations under this Agreement pending the final resolution of the Dispute and the Parties shall not have the right to suspend their obligations under this Agreement by virtue of any Dispute being referred to arbitration.
- c) Prior to or pending arbitration, nothing shall preclude either Party to the Dispute from seeking interim or permanent equitable or injunctive relief, or both, or specific performance from the competent court of law. The pursuit of equitable or injunctive relief shall not be a waiver of the duty of the Parties to the Dispute to pursue any remedy for monetary damages through the arbitration described in this Section.
- d) The costs and expenses of the arbitration, including, without limitation, the fees of the arbitration and the arbitrator, shall be borne equally by each Party to the Dispute or claim and each Party shall pay its own fees, disbursements and other charges of its counsel, except as may be determined by the arbitrator. The arbitrator would have the power to award interest on any sum awarded pursuant to the arbitration proceedings and such sum would carry interest, if awarded, until the actual payment of such amounts.
- e) This Agreement shall be governed and construed in accordance with the laws of Singapore.