Binance Standard Supplier Terms
1. Introduction
1.1 These terms and conditions (“Standard Supplier Terms”), together with each SOW, form an “Agreement” between Binance entity (“Customer”) and the supplier entity (“Supplier”) identified in the SOW for the products and services specified in the SOW. If there is any conflict or inconsistency between any of the Standard Supplier Terms and the SOW, the Standard Supplier Terms shall prevail; save for terms expressly labelled as Special Conditions in a document issued and executed by the Customer, which shall prevail over the Standard Supplier Terms.
1.2 Any additional, different or inconsistent terms in any documents of the Supplier (including any quotations, proposal, acknowledgements, invoices, online terms or communication) are void, regardless of when they are issued.
1.3 Customer may reschedule Products or Services, change the delivery destination for Products in the SOW, or change the Services provided under SOW at no cost to Customer, except that if requested changes materially increase or decrease the cost to provide Products or Services, the parties will negotiate an appropriate adjustment to their obligations under the SOW. Supplier will not unreasonably withhold or delay agreement to any change requested by Customer.
2. Interpretation
The following definitions and rules of interpretation apply in this Agreement.
2.1 Definitions:
a) Affiliate: in relation to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with that party from time to time.
b) Applicable Data Protection Laws: all applicable laws of any jurisdiction which relate to the protection of personal data.
c) Applicable Laws: all applicable laws, statutes, regulations from time to time in force.
d) Business Day: a day, other than a Saturday or public holiday in the jurisdiction in which the Services are being provided, the jurisdiction in which the Customer is incorporated and the jurisdiction in which the Supplier is incorporated when banks in these jurisdictions are open for business.
e) Business Hours: the period from 9.00 am to 6.00 pm on any Business Day.
f) control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of Control shall be construed accordingly.
g) Customer Marks: has the meaning given in 4.3.
h) Customer Materials: all documents, information, items and materials in any form (whether owned by the Customer or a third party), which are provided by the Customer to the Supplier in connection with the Services.
i) Customer Personal Data: any personal data which the Supplier processes in connection with this Agreement, in the capacity of a processor on behalf of the Customer.
j) Deliverables: any outputs of the Services to be provided by the Supplier to the Customer as specified in a SOW and any other documents, products and materials provided by the Supplier to the Customer in relation to the Services.
k) Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, 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.
l) Losses: liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses).
m) Project Schedule: a date by which a part or all of the Services is to be completed or Deliverables to be provided, as set out in a SOW.
n) Product: any product provided by Supplier, including any hardware, software or Deliverables.
o) Fees: the sums payable for the Services as set out in a SOW. If no currency is specified in the SOW, then the Fees shall be interpreted to be set out in USD currency.
p) Services: the services and Deliverables which are provided by the Supplier under a SOW, including services which are incidental or ancillary to the Services.
q) Statement of Work (“SOW”): the description of the Services to be provided by the Supplier, the timetable for their performance and related matters as set out in any other statement of work, purchase order, invoice or similar documentation (i) entered into between the Customer and the Supplier; (ii) issued by the Supplier and accepted by the Customer; or (iii) issued by the Customer to the Supplier.
r) Supplier Materials: all documents, information, items and materials in any form which are owned by the Supplier, and/or developed independently of this Agreement, and provided by the Supplier to the Customer in connection with the Services.
s) Supplier Personal Data: any personal data which the Supplier processes in connection with this Agreement, in the capacity of a controller.
2.2 This Agreement shall be binding on, and enure to the benefit of, the parties to this Agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party's personal representatives, successors and permitted assigns.
2.3 Unless expressly provided otherwise in this Agreement, a reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time.
2.4 Unless expressly provided otherwise in this Agreement, a reference to legislation or a legislative provision shall include all subordinate legislation made from time to time under that legislation or legislative provision.
2.5 The Supplier acknowledges and agrees that the relationship with the Customer is non-exclusive and acknowledges and agrees that the Customer may enter into any other agreements with other parties for any of the Services at the Customer’s sole and absolute discretion.
2.6 The parties acknowledge and agree that this Agreement is entered into between the Customer and the Supplier for the purposes of permitting the Service Recipients (as may identified in the SOW, if not so identified, then shall be deemed to refer to all related entities, Affliates of the Customer and any entities within the Customer’s corporate group) to receive, access and use the Services and Deliverables. For the avoidance of doubt, any rights or licenses (including rights to receive or use the Services) granted to Customer under this Agreement shall be deemed to also be granted to the Service Recipients. Customer may from time to time notify the Supplier in writing of any additions or changes to the list of Service Recipients.
3. The Customer’s Brand and Reputation
3.1 The Supplier (including its representatives and employees) shall ensure that it shall comply with all Applicable Laws and shall refrain from any act or activities which might be reasonably considered to be immoral, deceptive, scandalous, obscene or unethical. The Supplier (including its representatives and employees) shall not be involved in or cause anything that adversely affects or could in the Customer’s opinion adversely affect the Customer, its branding, its goodwill, and/or its reputation, including any actual or alleged criminal activity or wrongdoing.
3.2 Notwithstanding anything to the contrary in this Agreement, any marketing, publicity, press release and/or public announcement, or any use of the Customer’s trade name, logo or trade marks is not permitted except with the Customer’s prior written consent for each instance of use and shall always be subject to the Customer’s branding guidelines and instructions for the time prevailing.
3.3 If the Supplier intends to use the Customer’s trade marks and/or service marks (“Customer Marks”) in its advertising and/or promotional materials ('Promotional Materials"), the Supplier must provide to the Customer samples of any proposed material containing the Customer Marks before its proposed use for the Customer’s prior written approval.
3.4 Upon the Customer’s prior written approval in accordance with clause 3.3 (and subject to clause 3.5), the Customer grants to the Supplier, a non-exclusive, non-sublicensable, non-transferable, royalty-free license to use the Customer Marks on Promotional Materials as necessary to fulfil its obligations under this Agreement.
3.5 In conducting any advertising or promotional activity and in producing all Promotional Materials, the Supplier agrees that the nature and quality of materials produced must conform to standards set by, and be under the approval of, the Customer and, accordingly, the Supplier agrees to:
(a) co-operate with the Customer in maintaining such nature and quality;
(b) use the Customer Marks only with the Customer’s prior written approval of all aspects of that advertising or promotional activity or of those Promotional Materials; and
(c) use the Customer Marks only in the form and manner and with appropriate legends as prescribed from time to time as communicated by the Customer.
3.6 The Supplier acknowledges and agrees that:
(a) the Customer Marks are the property of the Customer, that they are valid and the Supplier will not do anything inconsistent with the Customer’s ownership of, or right in, the Customer Marks;
(b) all use of the Customer Marks by the Supplier pursuant to this Agreement will inure to the benefit of, and be on behalf of, the Customer;
(c) it has no claim to any Customer Marks, except as explicitly set out in this Agreement;
(d) it shall not, under any circumstances, seek to register any trade mark, service mark, business name, company name or domain name using or incorporating any Customer Marks; and
(e) upon conclusion of the term or earlier termination of this Agreement, it shall have no further rights whatsoever in connection with the Customer Marks.
3.7 Notwithstanding anything to the contrary in this Agreement and without prejudice to the Customer’s rights hereunder or at law, the Supplier’s breach of any part of this clause 3 shall be deemed a non-remediable material breach of this Agreement that shall permit the Customer to suspend and/or terminate this Agreement in part or in whole without incurring liability immediately upon written notice to the Supplier.
4. Supplier's Responsibilities
4.1 The Supplier shall:
(a) provide the Services and the Deliverables in accordance with the SOW;
(b) ensure that the Services and Deliverables will conform in all respects with the SOW and that the Deliverables shall be fit for any purpose expressly or implicitly made known to the Supplier by the Customer;
(c) perform the Services with the highest level of care, skill and diligence in accordance with best practice in the Supplier's industry, profession or trade;
(d) ensure that the Deliverables, and all goods, materials, standards and techniques used in providing the Services are of the best quality and are free from defects in workmanship, installation and design;
(e) co-operate with the Customer in all matters relating to the Services, and comply with the Customer's instructions;
(f) before the date on which the Services are to start, obtain and maintain during the term of the relevant SOW, all necessary licences and consents and comply with all relevant legislation in relation to the Services.
(g) observe all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Customer's premises from time to time and that have been communicated to it. The Customer reserves the right to refuse any of the Supplier's personnel involved in the provision of the Services access to the Customer's premises, which shall only be given to the extent necessary for the performance of the Services;
(h) hold all Customer Materials in safe custody at its own risk, maintain such Customer Materials in good condition until returned to the Customer, and not dispose of or use the Customer Materials other than in accordance with the Customer's written instructions or authorisations;
(i) not do or omit to do anything which may cause the Customer to lose any licence, authority, consent or permission on which it relies for the purposes of conducting its business;
(j) notify the Customer in writing immediately upon the occurrence of a change of Control of the Supplier;
(k) ensure it has adequate security processes and policies, business continuity plans and disaster recovery plans in place to keep the Customer’s data secure and to minimise disruption to the Services; and
(l) comply with any additional obligations imposed on it as set out in a SOW.
4.2 Time is of the essence in relation to any performance dates for the Supplier. If the Supplier fails to meet the relevant deadlines, then (without prejudice to the Customer's right to terminate this Agreement and any other rights it may have), the Customer may:
(a) refuse to accept any subsequent performance of the Services under the relevant SOW which the Supplier attempts to make;
(b) purchase substitute services from elsewhere and reclaim from the Supplier any additional costs incurred as a result of procuring such services from a third party instead of the Supplier;
(c) hold the Supplier accountable for any Losses and additional costs incurred; and
(d) have any sums previously paid by the Customer to the Supplier in respect of the affected Services refunded by the Supplier.
4.3 In relation to the Supplier's personnel, the Supplier shall:
(a) use the key personnel (if any is identified in the SOW) in the provision of the Services, where applicable;
(b) ensure that all personnel involved in the provision of the Services have suitable skills and experience to enable them to perform the tasks assigned to them, and that such personnel are in sufficient number to enable the Supplier to fulfil its obligations under this Agreement;
(c) promptly inform the Customer of the absence (or the anticipated absence) of any key personnel (if applicable), and if so required by the Customer, provide a suitably qualified replacement for such individual; and
(d) use its best endeavours not to make any changes to the key personnel (if applicable) throughout the term of the relevant SOW and obtain the prior written approval of the Customer to any replacements for such individuals.
5. Product Delivery
5.1 Unless otherwise specified in the SOW, Supplier will deliver Products DDP (Incoterms 2020) to the delivery destination stated in the SOW. Title and risk of loss will transfer from Supplier to Customer at the delivery destination. When Supplier is responsible for exporting or importing Product, Supplier will obtain all authorisations and permits necessary to fulfill all applicable governments' requirements for Product shipment. Upon Customer's request, Supplier will provide Customer with any information Customer reasonably requests regarding Product importation, exportation or distribution.
5.2 Supplier will package Products according to any instructions Customer provides in a SOW, and if none are provided, then according to good commercial practice to ensure safe arrival of the Products.
5.3 Customer may refuse any delivery made more than 5 days before the delivery date and Supplier will re-deliver the Product on the correct date at Supplier's expense.
5.4 Customer may return to Supplier, at Supplier's expense, any quantity of Product exceeding that specified in the SOW.
5.5 If a Product shipment (or part of a shipment) is likely to be delayed, Supplier will: (1) promptly notify Customer in writing and immediately propose a new delivery date, (2) use best efforts to expedite delayed Product at Supplier's expense, and (3) issue Customer a discount or refund on the purchase price for Product delivered late, unless otherwise agreed by the parties. In addition to the remedies in Subsection (A), Customer may (1) cancel without liability the applicable SOW or portions of the SOW for delayed Product that is not yet delivered, or (2) source replacements for delayed Product from another supplier, at Supplier's reasonable expense.
5.6 Customer may inspect Product and Services on delivery. Any Product or Service not rejected within 30 days of receipt will be deemed accepted by Customer. Customer's payment to Supplier for Product or Services will not be treated as acceptance. At Customer's option, Customer may: (A) return rejected Products, and Supplier will immediately replace returned Products, at Supplier's expense, including all freight costs; or (B) use the Defective Products and obtain a reduction in price.
5.7 For Product that is discovered Defective during the Warranty Period, Supplier will, at its expense and at Customer's option: (i) replace or repair Defective Product and re-deliver such repaired or replaced Product to Customer within a commercially reasonable time frame agreed to by Customer; (ii) refund Customer the Product purchase price within 30 days of receiving Customer's notice that a Product is Defective; or (iii) reimburse Customer for the reasonable cost to have the Product repaired within 30 days after receiving Customer's invoice.
5.8 Supplier is responsible for all costs, damages, and liabilities incurred by Customer as a result of Defective Product. All Products undergoing repair will at all times remain Customer's property. Supplier will warrant replacement Product for the longer of 90 days following Customer's acceptance of the replacement Product or the remainder of the original Product's Warranty Period.
6. Charges and Payment
6.1 In consideration of the provision of the Services by the Supplier, the Customer shall pay the Fees.
6.2 Where the Fees are calculated on a time and materials basis:
(a) the Supplier's daily fee rates for each individual person as set out in the SOW are calculated on the basis of an eight-hour day, worked during Business Hours;
(b) the Supplier shall not be entitled to charge on a pro rata basis for part days worked by the Supplier's team during Business Hours, unless it has the Customer's prior written consent to do so;
(c) if the Customer has agreed to the Supplier's personnel carrying out specific work outside Business Hours, the Supplier may charge for the time so spent by such personnel at an overtime rate set out in the SOW, pro-rated to reflect the hours worked. The Customer may not charge for work done outside Business Hours in any other circumstances; and
(d) the Supplier shall ensure that every individual whom it engages on the Services completes time sheets to record time spent on the Services, and the Supplier shall indicate the time spent per individual in its invoices.
6.3 Where the Fees are calculated on a fixed price basis, the amount of those charges shall be as set out in a SOW.
6.4 The Supplier shall invoice the Customer for the Fees at the intervals specified in the SOW. If no intervals are specified, the Supplier shall invoice the Customer at the end of each month for Services performed during that month.
6.5 Unless otherwise stated in the SOW, the Customer shall pay each invoice submitted to it by the Supplier within 60 days of receipt to a bank account nominated in writing by the Supplier.
6.6 The Customer may, at any time set off any liability of the Supplier to the Customer against any liability of the Customer to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this Agreement. If the liabilities to be set off are expressed in different currencies, the Customer may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by the Customer of its rights under this clause shall not limit or affect any other rights or remedies available to it under this Agreement or otherwise.
7. Acceptance
7.1 The Customer may withhold the payment of any invoice, should any Services delivered or performed to the Customer which are the subject of such invoice (i) do not comply with 5.1; or (ii) are not to the reasonable satisfaction of the Customer, provided that the Customer notifies the Supplier within 60 Business Days from receipt of such invoice by the Customer.
7.2 In the event where prior payment has been made in respect of any Services delivered or performed to the Customer (including any such Services which are not the subject of any invoice) (the “Prior Payment”), where such Services (i) do not comply with this Agreement; or (ii) are not to the reasonable satisfaction of the Customer, the Customer may withhold the payment of an amount equivalent to the Prior Payment from any other invoice payable by the Customer.
7.3 If the Customer withholds the payment of any invoice hereunder, then the Customer shall be entitled to:
(a) where applicable, require the Supplier to repair or replace the rejected Services (at no additional cost to the Customer); or
(b) where applicable, require the Supplier to perform the relevant Services to the reasonable satisfaction of the Customer (at no additional cost to the Customer).
8. Audit
8.1 The Customer may request for and inspect copies of records, information or documents as may be necessary to comply with their regulatory requirements and/or to ensure that the Supplier is compliant with this Agreement.
8.2 In addition, the Supplier shall allow the Customer (or its professional advisers) to access the Supplier's premises, personnel, systems and relevant records to verify that the Fees and any other sums charged to the Customer under this Agreement are accurate.
8.3 Subject to the Supplier's confidentiality obligations, the Supplier shall provide the Customer (and its professional advisers) with all reasonable co-operation, access and assistance in relation to each audit.
8.4 The Customer shall provide at least five Business Days' notice of its intention to conduct an audit.
8.5 The Customer and its professional advisers shall have the right to take copies of any records which they reasonably require and remove such copies and the Supplier shall provide the necessary facilities to assist in copying free of charge.
9. Intellectual Property Rights
9.1 In relation to the Customer Materials:
(a) the Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials; and
(b) the Customer grants to the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of this Agreement for the purpose of providing the Services to the Customer.
9.2 In relation to the Supplier Materials:
(a) the Customer acknowledges that the Supplier owns all Intellectual Property Rights in the Supplier Materials;
(b) to the extent that Supplier Materials are incorporated into the Deliverables, the Supplier grants to the Customer and its Affiliates a fully paid-up, non-exclusive, royalty-free, transferable, perpetual, worldwide license to use, modify, copy, adapt and otherwise exploit the Supplier Materials in connection with the Deliverables; and
(c) If requested by the Customer, the Supplier will perform all acts reasonably necessary to give effect to the licence specified in 9.2(b).
9.3 In relation to the Deliverables:
(a) the Supplier assigns to the Customer and its Affiliates, with full title guarantee and free from all third party rights, all Intellectual Property Rights in the Deliverables;
(b) the Supplier shall obtain waivers of all moral rights in the Deliverables to which any individual is now or may be at any future time entitled under the Copyright Act 2021 or any similar provisions of law in any jurisdiction; and
(c) the Supplier shall, promptly at the Customer's request, do (or procure to be done) all such further acts and things and the execution of all such other documents as the Customer and its Affiliates may from time to time require for the purpose of securing for the Customer and its Affiliates all right, title and interest in and to the Intellectual Property Rights assigned to the Customer and its Affiliates in accordance with Clause 9.3(a). For the avoidance of doubt, the Customer’s Affiliates shall be entitled to use, sell, offer to sell, import, reproduce, display, perform, distribute, modify, prepare derivative Services of, disclose and otherwise exploit the Deliverables for any purpose in the same manner as the Customer under this Agreement.
9.4 The Supplier:
(a) represents and warrants that it has full right and power to enter into this Agreement and the receipt, use and onward supply of the Services and the Deliverables by the Customer and its permitted sub-licensees shall not infringe or misappropriate the rights, including any Intellectual Property Rights, of any third party; and
(b) shall indemnify, defend and hold harmless the Customer (and its Affiliates and its and their directors, officers, employees, and agents) against all Losses suffered or incurred or paid by the Customer arising out of or in connection with any claim brought against the Customer for actual or alleged infringement of a third party's Intellectual Property Rights arising out of, or in connection with, the receipt, use or supply of the Services and the Deliverables.
10. Insurance
During the term of this Agreement and for a period of three months after the expiry or termination of this Agreement, the Supplier shall maintain in force, with a reputable insurance company, such insurance as may be necessary or desirable in connection with the Supplier providing the Services and any other such insurance as may be reasonably required by the Customer, including but not limited to professional indemnity insurance at an amount not less than an amount reasonably required by the Customer and shall, on the Customer's request, produce both the insurance certificate giving details of cover and the receipt for the current year's premium.
11. Compliance with Laws and Policies
11.1 In performing its obligations under this Agreement, the Supplier shall comply with all Applicable Laws; and any policies of the Customer as may be provided to Supplier from time to time.
11.2 The Supplier will inform the Customer as soon as it becomes aware of any changes in the Applicable Laws that may affect the performance of the Services.
12. Data protection
12.1 Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.
12.2 The Supplier shall:
(a) if so provided with the Customer’s privacy policy, comply with such policy in full;
(b) implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against its accidental loss, damage or destruction, including inter alia as appropriate:
(i) the pseudonymisation and encryption of Customer Personal Data;
(ii) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
(iii) the ability to restore the availability and access to Customer Personal Data in a timely manner in the event of a physical or technical incident; and
(iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
In assessing the appropriate level of security, the Supplier shall take into account in particular of the risks that are presented by the processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Customer Personal Data transmitted, stored or otherwise processed.
(c) ensure, and procure that that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
(d) promptly assist the Customer, at the Supplier's expense, in responding to any request from a data subject and in ensuring compliance with the Customer's obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with the Commissioner, supervisory authorities or other regulators and, in particular, the Supplier shall promptly notify the Customer if it receives any complaint, notice or communication (whether from the Commissioner, any data subject, supervisory authority or other third party) which relates to processing of Customer Personal Data;
(e) notify the Customer without undue delay (and no later than two Business Days) after becoming aware of a personal data breach and on suspecting the same, the Supplier shall promptly conduct an initial assessment to determine, with a reasonable degree of certainty, whether the event or incident qualifies for notification to the Customer under this sub-clause (e) and shall provide a copy of this initial assessment along with such notification;
(f) at the written direction of the Customer, delete or return to the Customer all Customer Personal Data on termination or expiry of the agreement, and certify to the Customer in writing it has done so, unless the Supplier is required by Applicable Law to continue to process that Customer Personal Data, in which case the Supplier shall promptly notify the Customer, in writing, of what that Applicable Law is and shall only be permitted to process that Customer Personal Data for the specific purpose so-notified, and all other requirements set out in Clause 12 (Data Protection) shall continue to apply to such Customer Personal Data notwithstanding the termination or expiry of this Agreement for as long as such Customer Personal Data is processed by the Supplier. For the purposes of this clause, the obligation to "delete" data includes the obligation to delete data from back-up systems as well as live systems; and
(g) maintain adequate records, and, on the Customer's request, make available such information as the Customer may reasonably request, and allow for and submit its premises and operations to audits, including inspections, by the Customer or the Customer's designated auditor, to demonstrate its compliance with Applicable Data Protection Laws and this Clause 12.
13. Confidentiality
13.1 Each party undertakes that it shall not at any time during this Agreement, and for a period of two years after termination or expiry of this Agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the Group to which the other party belongs ("Confidential Information"), except as permitted by clause 13.2.
13.2 Each party may disclose the other party's Confidential Information:
(a) to its and its Affiliates’ employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this Agreement. Each party shall ensure that its and its Affiliates’ employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this Clause 13 (Confidentiality); and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 No party shall use any other party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.
14. Limitation of liability
14.1 The Supplier has obtained insurance cover in respect of certain aspects of its own legal liability for individual claims as set out in Clause 10 (Insurance) per claim. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess liability.
14.2 The Supplier agrees to indemnify, defend and hold harmless the Customer (and its Affiliates and its and their directors, officers, employees, and agents) from and against all Losses arising out of:
(a) any gross misconduct, wrongful, wilful or negligent act or omission of the Supplier;
(b) any breach or non-performance by the Supplier of its obligations under this Agreement;
(c) any third party claims (including but not limited to intellectual property infringement claims) in connection with the Services;
(d) any breach by the Supplier of any representations, warranties, undertakings or covenants in this Agreement; or
(e) any breach of Supplier of confidentiality, security or data privacy obligations and/or applicable laws (including any regulatory fines).
14.3 Nothing in this Agreement shall limit the Supplier's liability under Clause 14.2.
14.4 Nothing in this Agreement limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or other liability which cannot be limited or excluded by Applicable Law; or
14.5 Subject to Applicable Law, the Customer and its Affiliate's total collective liability to the Supplier under or in connection with this Agreement, whether arising from tort (including negligence), breach of contract, or otherwise, shall not exceed in aggregate 100% (hundred per cent) of the Fees paid by the Customer to the Supplier during the 12 (twelve) months preceding the event or circumstances giving rise to such liability.
14.6 Notwithstanding anything in this Agreement, to the maximum extent permitted by law, the Customer and its Affiliates are not liable to the Supplier, whether in tort (including negligence), contract or otherwise, for any direct or indirect lost profits or revenue, exemplary damages, loss of goodwill, incidental, special or consequential Losses, even if such party has been advised of the possibility of such damages.
15. Termination
15.1 Without affecting any other right or remedy available to it, Customer may terminate the Agreement for convenience on written notice to Supplier at no cost to Customer, except that Supplier may invoice Customer for any Services and Products and work-in-progress not yet invoiced at a pro-rated price based on the percentage of work completed before the termination date.
15.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 125(2) of the Insolvency, Restructuring and Dissolution Act 2018 as if the words "it is proved to the satisfaction of the court" did not appear in section 125(2) of the Insolvency, Restructuring and Dissolution Act 2018;
(d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party applies to court for, or obtains, a moratorium under the Insolvency, Restructuring and Dissolution Act 2018;
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company, limited liability partnership or partnership) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(g) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
(h) the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in use 15.2(c) to 15.2(j) (inclusive);
(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(m) the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy.
15.3 Either party may also terminate this Agreement with immediate effect (without penalty, damages or liability) by giving written notice to the other party if:
(a) upon the change of any Applicable Law, regulations, directives, guidelines, orders or notices issued by any applicable governmental or regulatory authority, such change causes the party’s performance under this Agreement to violate any such Applicable Law, regulations, directives, guidelines, orders or notices issued by any applicable governmental or regulatory authority or substantially limits the party’s performance under this Agreement; or
(b) required by Applicable Law, a court of competent jurisdiction or any governmental or regulatory authority.
15.4 Without affecting any other right or remedy available to it, the Customer may terminate this Agreement with immediate effect (without penalty, damages or liability) by giving written notice to the Supplier if:
(a) the Supplier commits a breach of Clause 3 (Customer’s Brand and Reputation) or 11 (Compliance with Laws and Policies); and/or
(b) there is a change of Control of the Supplier.
16. Obligations on termination and survival
16.1 Obligations on termination or expiry On termination of this Agreement:
(a) the Supplier shall immediately deliver to the Customer all Deliverables whether or not then complete, and return all Customer Materials. If the Supplier fails to do so, then the Customer may enter the Supplier's premises and take possession of them. Until they have been delivered or returned, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Agreement; and
(b) the Supplier shall, if so requested by the Customer, provide all assistance reasonably required by the Customer to facilitate the smooth transition of the Services to the Customer or any replacement supplier appointed by it including the assistance as set out in the relevant Statements of Work.
16.2 Survival
(a) On termination of this Agreement, all existing Statements of Work shall terminate automatically.
(b) Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
(c) Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
17. Inadequacy of damages
Without prejudice to any other rights or remedies that the Customer may have, the Supplier acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of this Agreement by the Supplier. Accordingly, the Customer shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of this Agreement.
18. Assignment and other dealings
18.1 The Supplier shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement.
18.2 The Customer may at any time assign, mortgage, charge, delegate, declare a trust over or deal in any other manner with any or all of its rights under this Agreement to any Affiliate.
18.3 The Customer may at any time assign, mortgage, charge, delegate, declare a trust over or deal in any other manner with any or all of its rights under this Agreement to any third party (who is not an Affiliate), provided that it gives prior written notice of such dealing to the Supplier.
18.4 Without prejudice to any other rights or remedies that the Customer may have hereunder or at law, if the Supplier is in material breach of its obligation to perform any of the services under the Agreement and fails to remedy such breach within ten (10) days after written notice of the breach from the Customer, the Customer, at its sole discretion, shall have the right to “step-in” (i.e. perform the work itself) or hire another contractor to perform these services. Supplier shall be liable to the Customer for any fees or expenses that the Customer may incur in exercising its step-in rights or securing a substitute provider to assume completion of those services.
19. Variation
Subject to 1.3 (Changes), no variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
20. Waiver
20.1 A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
20.2 A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
20.3 A party that waives a right or remedy provided under this Agreement or by law in relation to one party, or takes or fails to take any action against that party, does not affect its rights in relation to any other party.
21. Rights and remedies
The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
22. Severance
22.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Agreement is deemed deleted under the foregoing, then the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
23. Entire agreement
23.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter (including the terms and conditions of any purchase orders and/or invoices issued prior to the date of this Agreement).
23.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
24. No partnership or agency
24.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
24.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
25. Third party rights
25.1 A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 2001 of Singapore to enforce any term of this Agreement.
26. Notices
26.1 Any notice or other communication given to a party under or in connection with this Agreement shall be in writing and shall be:
(a) delivered personally or sent by prepaid registered post at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by electronic mail to the address notified by each party to the other.
26.2 Any notice or communication shall be deemed to have been received:
(a) if delivered personally, immediately, provided that if delivery occurs after 6pm on a Business Day or a day which is not a Business Day, service shall be deemed to occur at 9 am on the next following Business Day, where references to time in this clause are to local time in the country of the addressee; or
(b) if delivered by electronic mail, at the time of sending the email provided that the email was properly and correctly addressed to the recipient’s email address notified by the recipient under this Agreement; or
(c) if delivered by prepaid registered post, forty eight (48) hours after posting (or if by airmail seven days after posting) and in proving the same it shall be sufficient to that the envelope containing such notice or communication was properly addressed, and duly stamped and posted.
26.3 This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
27. Counterparts
27.1 This Agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
27.2 Transmission of the executed signature page of a counterpart of this Agreement by (a) fax (in PDF, JPEG or other agreed format), (b) email (in PDF, JPEG or other agreed format) or (c) other electronic means (such as AdobeSign and DocuSign or other similar electronic signature systems) shall take effect as transmission of an executed "wet-ink" counterpart of this Agreement. Signatures executed by such method of transmission (ie fax, email or other electronic means) shall be recognised and construed as secure electronic signatures pursuant to the Electronic Transactions Act 2010 of Singapore and that the Parties accordingly shall deem such signatures to be original signatures for all purposes. Without prejudice to the validity of the agreement thus made, each party shall on request provide the other(s) with the "wet ink" hard copy original(s) of their counterpart.
28. Dispute Resolution
28.1 If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it (“Dispute”) then the parties shall follow the procedure set out in this clause:
(a) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (“Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, an authorised representative of the Customer and an authorised representative of the Supplier shall attempt in good faith to resolve the Dispute;
(b) if the authorised representative of the Customer and the authorised representative of the Supplier are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, the parties will attempt to settle it by mediation at the Singapore Mediation Centre (“SMC”) in accordance with the SMC’s Mediation Procedure in force for the time being. Unless otherwise agreed between the parties, the mediator shall be nominated by the SMC. Either party may submit a request to mediate to SMC upon which the other party will be bound to participate in the mediation within 60 days thereof. The mediation will take place in Singapore in the English language and the parties agree to be bound by any settlement agreement reached.
28.2 If the Dispute is not resolved within 150 days after the submission of the request to mediate, or either party fails to participate or to continue to participate in the mediation before the expiration of the said period of 150 days, or the mediation terminates before the expiration of the said period of 150 days, the Dispute shall be finally resolved by arbitration, administered by the Singapore International Arbitration Centre in accordance with the Arbitration Rules of the Singapore International Arbitration Centre for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat of the arbitration shall be Singapore. The Tribunal shall consist of one arbitrator. The language of the arbitration shall be English.
29. Governing law
This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of Singapore.
30. Non-Solicitation
During the term of this Agreement and for a period of two years after any termination of the Agreement hereunder for any reason, each party will not, directly or indirectly, (i) induce or attempt to induce any employee or independent contractor of the other party to leave; (ii) in any way interfere with the relationships between the other party and any such employee or independent contractor of the other party; (iii) employ or otherwise engage as an employee, independent contractor or otherwise any such employee or independent contractor of the other party; or (iv) solicit or otherwise attempt to establish any business relationship with any user of the other party’s platform or client to whom the other party and its Affiliates had provided services at any time during the term of this Agreement.
31. Anti-Corruption
(a) Each party represents that it is familiar with (i) the U.S. Foreign Corrupt Practices Act 1977, (ii) the UK Bribery Act 2010, or (iii) other public and commercial anti-bribery laws which may apply and (iv) international anti-corruption treaties such as the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the United Nations Convention against Corruption) (“Anti-Bribery Laws”).
(b) Each party represents that performance under this Agreement will be made in compliance with the Anti-Bribery Laws and neither it, nor any of its directors, officers, agents or employees acting on behalf of it, has taken any action that will cause the other party or their affiliates to be in breach of any applicable Anti-Bribery Laws.
(c) Each party warrants that it and its affiliates have not made, offered, or authorised and will not make, offer, or authorise with respect to the matters which are the subject of this Agreement, any payment, gift, promise, reimbursement or other transfer of anything of value, or any solicitation, or other advantage, whether directly or indirectly through any other person or entity, to or for the use or benefit of any officer or employee of the other party or any public official (i.e., any person holding a legislative, administrative or judicial office, including any person employed by or acting on behalf of a public agency, a public enterprise or a public international organisation) or any political party or political party official or candidate for office, where such payment, gift, promise or advantage would violate the applicable Anti-Bribery Laws.
(d) Neither party shall make any unofficial payment made to (i) a government employee to speed up an administrative process where the outcome is already pre-determined (facilitation payment) in the performance of its obligations in terms of this Agreement; or (ii) to any political party for the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks or other unlawful, illegal or improper means.
(e) Each party agrees to maintain adequate internal controls and to keep accurate and complete records that support the payments due and all transactions under this Agreement.
(f) Any breach of, or failure to comply with, the provisions of this Clause 31 shall be deemed a material of this Agreement and shall entitle the non- breaching party to terminate the Agreement forthwith.
32. Translation
This Agreement or any part thereof may be translated into other languages for convenience only. The English language version of this Agreement shall be controlling in all respects and shall prevail in case of any ambiguity, conflict or inconsistencies with translated versions, if any.
