Oneberry General Terms & Conditions

Oneberry General Terms & Conditions

These Terms and Conditions apply to all agreements between OneBerry Technologies Pte. Ltd. ("Company") and its customers ("Customers") identified in the agreements ("Agreements").

1. Definitions. The following terms shall have the following meanings:

1.1 "Confidential Information" means the Software (including methods or concepts utilised therein) and all other proprietary or confidential information identified as such by Company; provided that items other than the Software will not be deemed Confidential Information when (i) available to the public other than by a breach of an agreement with Company; (ii) rightfully received by Customer from a third party not in breach of any obligation of confidentiality; (iii) rightfully known to Customer at the time of disclosure; or (iv) disclosed in compliance with applicable law or a court order, so long as Company is given reasonable advance notice of such disclosure.

1.2 "Customer Content" means all text, pictures, sound, graphics, video and other contents developed, uploaded or captured by or on behalf of Customer.

1.3 "Documentation" means the then-current installation instructions and user manuals customarily provided by Company to its customers in relation to the Software.

1.4 "Services" means services provided by Company to Customer and identified in an Agreement.

1.5 "Software" means the software identified in Software Licence Agreement between Company and Customer, and all corrections and modifications to, and releases and new versions of, the Software.

1.6 "Use" means to load, execute, use, perform or display a software program.

2. Ownership Rights.

Company and its licensors shall retain all intellectual property rights and title (including any patent, copyright, trade secret, trademark and other rights) in and to all of the Software, Documentation and work product arising from the Services (all of the foregoing, "Works"), including without limitation all modifications, enhancements, upgrades and derivatives of the Works. Customer shall retain all intellectual property rights and title (including any copyright, trade secret, trademark and other rights) in and to all Customer Content.

3. Fees and Payment.

3.1 Fees. Customer shall pay to Company the fees as set out in the relevant Agreement. All fees are exclusive of tax. Customer agrees to keep the fees confidential and shall only disclose it to those of its employees and consultants (including legal and technical consultants) on a need to know basis. All sales, services, use and withholding taxes which are imposed by any government entity on the fees for any of the Services or Software shall be borne by Customer and shall not be considered a part of, or an offset against, such fees.

3.2 Payment Terms. Unless otherwise specified in an Agreement, all fees are payable in Singapore Dollars within fourteen (14) days of the date of Company’s invoice. All payments shall be made by Customer to Company without demand, set-off, counterclaim or deduction of any nature whatsoever.

3.3 Late Payment Fee. If Customer does not pay any invoice when due, Company may charge a late payment fee of one percent (1%) every month on the unpaid amounts.

3.4 Purchase Orders. These Terms and Conditions and the relevant Agreement shall take precedence over any additional or different terms and conditions in Customer’s purchase order, to which notice of objection is hereby given.

4. Confidentiality; Publicity; Proprietary Notices.

4.1 Confidentiality. Confidential Information shall remain the sole property of Company and shall not be used by Customer for any purpose not specified in the Agreement or disclosed by Customer to any third party without the express written consent of Company.

4.2 Publicity. Customer agrees that Company may disclose that Customer is a customer of Company in Company’s marketing materials and web site. Customer grants to Company the nonexclusive, limited right and licence to use Customer’s name and logo solely for such purposes. Company agrees to comply with all trademark usage requirements and procedures of Customer which are provided to Company in writing.

4.3 Proprietary Markings and Copyright Notices. Customer agrees not to remove, obliterate or destroy any of Company’s or its licensors’ proprietary, trademark or copyright markings or notices placed upon or contained within any Software or Documentation or displayed to users during operation of the Services.

5. Indemnification.

5.1 Duty to Defend. Company, at its own expense, shall: (i) defend, or at its option settle, any claim, suit or proceeding against Customer on the basis of infringement of any copyright or trade secret by the unmodified Software or Services as delivered by Company or any claim that Company has no right to provide the Software or Services hereunder; and (ii) pay any final judgment entered or settlement against Customer on such issue in any such suit or proceeding, provided that Customer gives Company: (a) prompt written notice in writing of the claim; (b) the right to control and direct the investigation, preparation, defence and settlement of the claim; and (c) reasonable assistance and information.

5.2 Company Options. Company shall have the right, at its option, to obtain for Customer the right to continue use of the affected Software or Services or to replace or modify the affected Software or Services so that it or they are no longer infringing. If neither of the foregoing options is reasonably available to Company, then use of the affected Software or Services may be terminated at the option of Company and Company shall refund any fees paid by Customer for such Software or Services.

5.3 Exclusions. Company shall have no liability under this Section 5 if the alleged infringement arises from: (i) customisations, enhancements or modifications of the Software other than by Company; (ii) use of the Software or Services with third party software, hardware or firmware not provided or approved by Company; or (iii) Customer Content. THE RIGHTS AND REMEDIES SET FORTH IN THIS SECTION 5 CONSTITUTE THE ENTIRE OBLIGATIONS OF COMPANY AND THE EXCLUSIVE REMEDIES OF CUSTOMER CONCERNING THIRD-PARTY RIGHTS INFRINGEMENT RELATING TO THE SOFTWARE AND SERVICES.

6. Warranties; Limitations on Liability.

6.1 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES CONTAINED IN THE RELEVANT AGREEMENTS, COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. COMPANY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN CUSTOMER. COMPANY DOES NOT WARRANT THAT THE SOFTWARE OPERATES UNINTERRUPTED, OR THAT IT IS ERROR FREE, OR THAT IT WILL MEET ALL OF CUSTOMER’S REQUIREMENTS, OR THAT THE SERVICES, INFORMATION AND MATERIALS PROVIDED BY COMPANY ARE ERROR FREE OR ARE FREE FROM ANY VIRUS OR OTHER MALICIOUS, DESTRUCTIVE OR CORRUPTING CODE, PROGRAMME OR MACRO, OR THAT ANY IDENTIFIED DEFECT WILL BE CORRECTED.

6.2 DISCLAIMER OF CERTAIN OTHER LIABILITY. CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE AND/OR SERVICES PROVIDE THE CAPABILITY OF TRACKING ACTIVITY ONLINE. COMPANY EXPRESSLY DISCLAIMS ANY LIABILITY RELATING TO CUSTOMER’S USE OF THE SOFTWARE AND SERVICES FOR SUCH PURPOSES, AND CUSTOMER AGREES THAT IT SHALL BE SOLELY RESPONSIBLE FOR COMPLYING WITH, AND SHALL INDEMNIFY COMPANY FROM ALL LIABILITY ARISING FROM ALL LAWS AND REGULATIONS RELATING TO SUCH ACTIVITY. COMPANY WILL NOT BE LIABLE FOR LOSSES OR DAMAGES RESULTING FROM LOSS OF DATA, INABILITY TO ACCESS THE INTERNET, OR INABILITY TO TRANSMIT OR RECEIVE INFORMATION DUE TO CIRCUMSTANCES NOT IN THE DIRECT CONTROL OF COMPANY, SUCH AS, BUT NOT LIMITED TO, CUSTOMER’S EQUIPMENT CAPABILITIES, TELECOMMUNICATIONS FAILURES OR INTERNET SERVICE PROVIDER LIMITATIONS.

6.3 LIMITATION OF LIABILITY. IN NO EVENT WILL COMPANY BE LIABLE TO CUSTOMER FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF GOODWILL AND BUSINESS OPPORTUNITIES, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION AND DATA, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHER THEORY OF LIABILITY, AND EXCEPT FOR LIABILITY UNDER SECTION 5, UNDER NO CIRCUMSTANCES SHALL COMPANY’S TOTAL LIABILITY EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THE RELEVANT AGREEMENT IN RESPECT OF WHICH THE LIABILITY AROSE.

7. Termination.

7.1 Termination for Default. Either party shall be entitled to terminate any Agreement, upon written notice to the other party if:

7.1.1 the other party has breached any one or more of the terms and conditions of these Terms and Conditions or that Agreement, and where such breach is capable of remedy, has failed to do so within thirty (30) days of its being informed by the first mentioned party of such breach by notice in writing (except in the case of non-payment of fees by Customer, the termination shall be effective if Customer fails to pay within ten (10) days of the notice by Company requiring payment);

7.1.2 any proceedings are commenced for the liquidation, dissolution or bankruptcy of the other party and are not discharged or discontinued within ninety (90) days of its commencement, or if the other party becomes bankrupt or goes into liquidation either voluntarily or compulsorily except for the bona fide purpose of amalgamation, merger or re-construction;

7.1.3 the other party compounds with any of its creditors or has a receiver appointed in respect of the whole or any part of its assets; or

7.1.4 the other party ceases or threatens to cease to carry on business.

7.2 Effect of Termination. On termination, all licenses and rights granted to Customer shall terminate. Customer shall cease Using the Software, Documentation and Services. Termination shall not relieve Customer from paying all fees accrued prior to termination and shall not limit either party from pursuing any other available remedies.

8. General.

8.1 No Assignment. Customer may not assign the Agreement or any right or licences granted thereunder without Company’s prior written consent, which shall not be unreasonably withheld.

8.2 Entire Agreement. These Terms and Conditions and the Agreement referencing them constitute the entire agreement of the parties in relation to the subject matter, and supersede all previous and contemporaneous communications, representations, and agreements regarding the subject matter hereof.

8.3 Force Majeure. No delay or default in the performance of any obligation by either party shall constitute a breach of the relevant Agreement to the extent resulting from causes beyond the reasonable control of such party.

8.4 Notices. All notices relating to the Agreement shall be in writing and delivered by overnight delivery service or first class prepaid mail with return receipt requested, to the address of the relevant party specified in the Agreement. Either party may designate a different address by written notice to the other party.

8.5 Governing Law. These Terms and Conditions and the Agreement referencing them shall be governed by and construed under the laws of Singapore and the parties submit to the non-exclusive jurisdiction of the Singapore courts. No third party shall have any right to enforce any of the provisions under the Contracts (Right of Third Party) Act (Cap.53B). The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

8.6 Severability. The invalidity or unenforceability for any reason of any part of provision shall not prejudice or affect the validity or enforceability of the remaining parts and each clause is distinct and at all times severable from the rest.

8.7 Relationship between Parties. The relationship established between the parties shall be that of independent contractors and not that of principal and agent, partnership, joint venture or any other association.