This Agreement is made between:
(A) Vanilla Resource Pte Ltd, of 62 Ubi Road 1, #06-25, Oxley Bizhub , Singapore 408734 (“Licensor”)
(B) the persons who have subscribed to the services offered in the app known as “GoSME”. (“Licensee”). (collectively referred to as the Parties and individually as Party).
(A) The Licensor has an app known as GoSME in relation to the Business.
(B) The Licensor owns all the Confidential Information and Intellectual Property Rights in the app, which is used and exploited for the Business.
(C) The Licensor is willing to grant to the Licensee the right to use and exploit the certain aspects of the Confidential Information and Intellectual Property Rights in relation to the Business in the manner, in the term and in the Territory in consideration of royalties and upon the terms and conditions as agreed between the parties.
3. TERMS AND CONDITIONS
IT IS HEREBY AGREED BETWEEN THE PARTIES AS FOLLOWS:
4.1 ADVERSE INFERENCE
No provision of this Agreement will be construed adversely to a party solely on the ground that the party was responsible for the preparation of this Agreement or that provision.
Business means and includes the business of facilitating and allowing businesses to network by posting, matching and reviewing in an online community.
4.3 CALENDAR DAYS
Unless expressly indicated otherwise, all references to a number of days mean calendar days, and the words “month” or “monthly” as well as all references to a number of months means calendar months.
4.4 CLAUSE AND SCHEDULE
In this Agreement, references to a clause or schedule shall be deemed to refer to the clause or schedule of this Agreement, as may be amended, modified or supplemented from time to time.
4.5 CONFIDENTIAL INFORMATION
Confidential Information means and includes information not available to the public, client lists and details, trade secrets, business plans, financial information, employee lists and details, information known to a party to be confidential, information which may affect the competitive position of a party, and any information which a party is obligated not to disclose. It includes proprietary information belonging to one party and which is transferred or conveyed to another party. By way of illustration but not limitation, proprietary information includes: (a) inventions, trade secrets, ideas, data, programs, works of authorship, know-how, and improvements, discoveries, designs, techniques and sensitive information that that party which has expended time, money and resources for; (b) technical information, existing and future plans or products, including, where appropriate and without limitation, software, firmware, information, patent disclosures, patent applications, development or experimental work, formulae, engineering or test data, product specification and part lists, names of suppliers, customers or contractors, techniques, processes and apparatus relating to the same disclosed by one party to another party through observation or examination of the information; (c) confidential marketing information (including but without limitation, marketing strategies, customer names and requirements and product and services, prices, margins and costs; (d) confidential product, marketing, development and other plans; (e) confidential financial information provided by one party to another party; (f) personnel information (including without limitation employee compensation); (g) confidential information relating to one party including without limitation, corporate information and secrets, unannounced financial results reports and statements or information, projections, profiles, investment plans, capitalization plans; business plans or expansion plans or arrangements relating to its business whether or not with third parties; and (h) other confidential business information or information received by one party which is marked “confidential” or words to that effect conveyed, transmitted, recorded or stored by any means whatsoever including, without limitation, documents, drawings, photographs, computer diskettes, computer hard disks, computer network storage devices, Internet or intranet electronic mail, discs, designs, plans or models or any of the media (electronic or otherwise) for storing or recording information.
4.6 CONFLICT – AGREEMENT PREVAILING
In the event of a conflict or inconsistency between any two or more provisions under this Agreement and its Schedules or Annexes (if any), whether such provisions are contained in the same or different documents, the provisions in the body of this Agreement shall prevail.
4.7 HEADING AND MARGINAL NOTES
The headings and marginal notes in the Agreement shall not be deemed to be part of the Agreement nor be taken into consideration in the interpretation or construction of the Agreement.
4.8 INCLUDING WITHOUT LIMITATION
Whenever the words “include”, “includes” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation”.
4.9 INTELLECTUAL PROPERTY
Intellectual Property means and includes any invention, discovery, trade secret, trade mark, service mark, trade name, logo, get-up, patent or improvement to and development of procedure, product or process idea, improvement, invention, program, formula, process, technique, development, design, know-how and data, whether or not patentable or registrable under copyright or similar statutes, and all designs, trademarks and copyrightable works.
4.10 MEANING OF “MAY”
“May” means has the right, but not the obligation to do something and “may not” means does not have the right to do something.
4.11 MEANING OF “WILL” AND “SHALL”
“Will” and “shall” are expressions of command, not merely expressions of future intent or expectation.
4.12 NATURAL PERSONS
References to any “person” include any natural person, corporation, judicial entity, association, statutory body, partnership, limited liability partnership, limited liability company, joint venture, trust, estate, or unincorporated organisation. The use of any gender shall include all genders.
4.13 PARTIES AND ASSIGNS
Any reference to any party will be construed as a reference to such party’s successors and permitted assigns.
4.14 SINGULAR AND PLURAL
Words importing the singular shall also include the plural and vice versa where the context requires.
Territory means the whole world.
4. GRANT OF LICENCE
In consideration of the payment by the Licensee to the Licensor of the fees and/or monies stipulated within the app and subject to the Licensee performing all of the obligations stipulated in this Agreement, the Licensor grants to the Licensee the non-exclusive rights, benefits and interests in the matching and direct mailing functional aspects of the Intellectual Property Rights in respect of the Business to be exploited and use for the Business as agreed according to the terms of this Agreement and on monthly terms in the Territory. For avoidance of doubt, the rights, benefits and interests in the Intellectual Property Rights shall from time to time be only those rights, benefits and interests expressly granted by the Licensor to the Licensee.
5. LICENCE FEE
The Licensee shall pay to the Licensor monthly sum stipulated in the app The first of such payment shall be made a soon the Licensee accepts the stated subscription fee in the app (“Fees”). The payment mode of the Fees shall be in the manner stipulated as follows:
6.1 The Licensor may review and revise the Fees from time to time.
6.2 The Fees shall be paid in the currency stipulated in the app . The Licensee shall make all payments due to the Licensor for Fees in advance. Unless otherwise instructed the monthly term and Fees shall be automatically renewed when expired. The Licensee must give notice of termination of the monthly term at least 7 days before the expiration of the term. Failing which the term will be renewed.
6.3 The Fees shall be made using Google and/or or Apple payment gateways.
6.4 The Fees shall be paid without any demand, set-off, counterclaim or deduction whatsoever, and be free and clear of and (except to the extent required by law) without any deduction or withholding on account of any tax.
6. LICENSOR’S OBLIGATIONS
The Licensor shall, subject to the compliance by the Licensee with the provisions of this Agreement, at all times during the continuance of this Agreement:
7.1 permit the Licensee to use the aspects of the Intellectual Property Rights to carry on the Business in accordance with the terms stipulated by the Licensor from time to time;
7.2 notify the Licensee of all improvements or modifications to the Intellectual Property Rights in respect of the Business;
7.3 to provide any updates and/or its research and development to the Intellectual Property Rights in respect of the Business;
7.4 notify the Licensee of all improvements or modifications to the Intellectual Property Rights in respect of the Business;
7.5 during the business hours of the Licensor, respond to all reasonable requests from the Licensee for information and assistance in respect of the use of the Intellectual Property Rights with the Business of the Licensee; and
7.6 continue to maintain the integrity of the Intellectual Property Rights in respect of the Business.
Any and all Intellectual Property Rights and rights, benefits and/or interests similar to the Confidential Information throughout the world resulting from any work carried out by the Licensee in order to adapt them to its customers’ requirements shall vest exclusively in the Licensor .
Each party hereto warrants and represents to each of the others that it has full authority, power and capacity to enter into this Agreement, and that all necessary actions have been taken to enable it lawfully to enter into this Agreement.
The Licensee shall indemnify the Licensor and/or its representatives from and against any and all loss, damages liabilities, claims, expenses including legal fees and costs incurred by the Licensor arising from any breach of this Agreement.
10. PREVAILING PROVISIONS
In the event of any inconsistency between the provisions of the Schedules, the Manual and the terms of this Agreement, priority shall be given in the order as follows; (a) the terms of this Agreement; (b) the Schedules; (c) the Manual.
11. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties and there are no other representations, understandings or agreements which are not fully expressed in this Agreement.
No variation, alteration or modification of any of the terms of this Agreement shall be of any effect unless in writing and signed by all Parties.
13. NO WAIVER
No waiver of a breach of the terms of this Agreement shall be effective unless made in writing and signed by the party granting the waiver, and no such waiver shall be deemed a waiver of any other existing or subsequent breach. A failure by a party to exercise or enforce any rights conferred upon it by this Agreement shall not be deemed to be a waiver of any such rights or operate so as to bar the exercise or enforcement thereof at any subsequent time. A party is not entitled to rely on a delay in the exercise or non-exercise of a right arising from a breach of this Agreement or on a default under this Agreement as constituting a waiver of that right.
If any terms of this Agreement shall be held to be illegal or unenforceable, whether in whole or in part, under any enactment or rule of law, such term or part shall to that extent be deemed not to form any part of this Agreement, but the validity and enforceability of the remainder of this Agreement shall not be affected.
Save as permitted under this Agreement, this Agreement or any of the rights and obligations under it may not be assigned, transferred, sub-contracted or otherwise disposed of, whether in whole or in part, by any party without obtaining the prior written consent of the other party. In any permitted assignment, the assignor shall procure and ensure that the assignee shall assume all rights and obligations of the assignor under this Agreement and that the assignee agrees to be bound to all the terms of this Agreement.
16. INTELLECTUAL PROPERTY RIGHTS – SURVIVAL
Clauses which relate to intellectual property rights shall survive the expiry or termination of this Agreement.
17. INTELLECTUAL PROPERTY RIGHTS-CONTROLS
In respect of the Intellectual Property Rights of the parties in this Agreement, the parties have agreed as follows:
18. INTELLECTUAL PROPERTY RIGHTS – NO ASSIGNMENT, LICENCE
Save as permitted under this Deed, there shall be no transfer, assignment or licence created in respect of any intellectual property rights by any party without obtaining the prior written consent of the other party. In any permitted transfer, assignment or licence, the transferor, assignor or licensor shall procure and ensure that the transferee, assignee or licensee shall assume all rights and obligations of the transferor, assignor or licensor under this Agreement and that the transferee, assignee or licensee agrees to be bound to all the terms of this Agreement.
19. TERMINATION – ENDURING RIGHTS
The termination of this Agreement, howsoever arising, shall be without prejudice to the rights, duties and liabilities of the Parties which have accrued prior to its termination. The provisions in this Agreement which expressly or impliedly have effect after termination of this Agreement shall continue to be enforceable notwithstanding termination.
20. CUMULATIVE RIGHTS AND REMEDIES
Unless otherwise expressly agreed between the Parties or provided under this Agreement, the provisions of this Agreement and the rights and remedies of the Parties under this Agreement are cumulative and are without prejudice and are in addition to any rights or remedies a party may have in law or in equity. No exercise by a party of any one right or remedy under this Agreement or at law or in equity shall (save to the extent provided expressly in this Agreement or at law or in equity) operate so as to hinder or prevent the exercise by it of any other such right or remedy a party has at law or in equity.
21. FORCE MAJEURE
In the event that any party to this Agreement shall be rendered unable to carry out the whole or any part of its obligations under this Agreement for any reason beyond the control of that party, including but not limited to, acts of God, force majeure, strikes, war, riot, pandemic, epidemic, health hazards and any other causes of such nature, the performance of the obligations under this Agreement of that party or all Parties as the case may be and to the extent that they are affected by such causes shall be excused during the continuance of any such cause, but such inability to carry out the whole or any part of its obligations under this agreement shall as far as possible be remedied with all reasonable dispatch.
Any notice required to be given under this Agreement by any party shall be in writing and shall be sent by courier or by prepaid registered post or by email or by facsimile. Any notices hall be deemed to be effectively given at the expiration of seventy-two (72) hours after by courier or by prepaid registered post whether or not received, or twenty-four (24) hours after dispatch to the correct email address or facsimile number of the addressee if sent by email or by facsimile.
23. CONFIDENTIALITY RESTRICTION – BOTH
Each party agrees that it will not, without the prior written consent of the other party, at any time (save as may be required by law) use, divulge or communicate to any person, other than officers or employees of the party whose province it is to know the same, any Confidential Information other than that which may properly come into the public domain through no default of the party. Each party will use its reasonable endeavours to prevent the publication and disclosure of any such Confidential Information concerning such matters, and on termination or expiry of this Agreement shall return all documents and copies of such Confidential Information that are in his possession. The Parties acknowledge and agree, having had the opportunity to seek independent legal advice thereon, that all the clauses relating to Confidential Information in this Agreement are reasonable and necessary to protect the legitimate interests of the Parties.
24. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT (CAP. 53B)
A person who is not a party to this Agreement may not enforce its terms under the Contracts (Rights of Third Parties) Act of Singapore or its statutory replacement or equivalent.
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and all of which when taken together shall constitute one and the same agreement.
26. DISPUTES – MEDIATION OPTION
Any dispute arising out of or in connection with this Agreement shall first be submitted for mediation. Parties shall submit a request to the Singapore Mediation Centre or other equivalent mediation institution to mediate within forty-five (45) days of the dispute arising. Where a party is a body corporate, company or business entity, such party to the mediation must be represented by a representative of the party who has the authority to negotiate and settle the dispute. Unless otherwise agreed by the Parties, the mediator will be appointed by the mediation institution. The mediation will take place in Singapore in the English language and the Parties agree to be bound by any settlement agreement reached. Should Parties fail to reach a settlement through mediation, then the Parties may proceed to resolve the dispute in any other manner provided for in this Agreement. For the avoidance of doubt, the Parties shall be deemed to have failed to reach a settlement if either party serves a written notice terminating the mediation.
27. GOVERNING LAW AND JURISDICTION – FOREIGN
This Agreement shall be governed by and construed in accordance with the laws of Singapore and 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 in the Singapore International Arbitration Centre, before a single arbitrator, in the English language.