“ZENCODE” shall mean Zencode Technologies Pte. Ltd.
“Client” shall mean the person, firm or company to whom the Quotation is issued. ZENCODE and the Client each a “Party” and, collectively, the “Parties”.
“Insolvency Event” means circumstances where a party is unable to pay its debts as and when they fall due or otherwise takes any corporate action or any steps are taken or legal proceedings are started for:
a. its bankruptcy, winding-up, dissolution, liquidation, or reorganization other than to reconstruct or amalgamate while solvent on terms approved by the other party;
b. the appointment of a controller, receiver, administrator, official manager, trustee or similar officer over it or any of its revenues and assets; or
c. seeking protection or being granted protection from its creditors, under any applicable legislation.
“Quotation” shall mean the quotation issued by ZENCODE attached or on the front of these Terms and Conditions (as the case may be), that specifies all the Goods and/or Services to be provided by ZENCODE and all commercial terms related to such proposed job, including but not limited to, price and schedule.
“Contract” shall mean the contract between ZENCODE and Client consisting of the Quotation and acceptance of the Quotation by the Client, these Terms and Conditions (as defined below) and any other relevant document (or parts thereof) executed by the Parties in writing.
“T&Cs” shall mean these General Terms and Conditions for the Purchase of Goods and/or Services.
“25th Nov 2016” shall be the earlier of Client’s unconditional acceptance of the Quotation or ZENCODE’s commencement of performance of the Services under the Contract.
“Malfunctions” shall mean defects, failures, and problems in the Services, System, or Software.
“Services” shall mean all goods and services to be provided by ZENCODE to the Client, including, as applicable, hardware to be purchased, hardware maintenance services, hardware leasing services, software to be purchased, software maintenance services, software leasing services, software development services, and general IT services.
“Software” This term is used herein to refer to application software, databases, or websites and related software components.
“System Development” This term includes activities such as project management, new development, design, specifications, conversion, testing, acquisition, and/or integration of existing commercially available or custom applications, databases, and/or websites and associated hardware/network/internet platforms. It also includes business process analysis for automation/integration, data analysis and data standardization. It also includes major enhancements to existing applications, databases and/or websites. Example major enhancements include new screens/forms, new capabilities, new tables, new modules, new web pages, new graphics, new or changed buttons depending on the level of required effort.
“Software Maintenance” Minor modifications/corrections to software components including websites that occurs after the final delivery of a developed software product. Example minor modifications/corrections include updating existing application forms, creating new reports based on existing data tables, and adding a few fields to existing tables. Minor modifications also include updating text, replacing an existing graphic with a new version, and adding an external web link. Other tasks may also be deemed maintenance activity. ZENCODE reserves the right to determine whether an effort is development or maintenance.
“Technical Support” Technical support includes hardware installation/repair, local area and long haul networking including internet hosting/connectivity, training, help desk, troubleshooting, malware protection/removal, hardware setup, operating system or commercial software installation/configuration, diagnostics, preventive maintenance, performance tuning, and similar activities. Technical support also includes research and tips on acquiring new computer technology and how best to use computer technology to leverage automation in businesses and homes, including home businesses.
“Daily Rate” and “Half Day Rate” Unless otherwise stated, this is the payment ZENCODE charges the Client per person-day of work and/or half person-day of work. A person-day of work is defined as over 5 hours of work a day, whilst a half person-day of work is defined as between 2 to 5 hours of work a day.
a. References to legislation include any statutory amendments, modifications or re-enactments, and any subordinate legislation or regulations issued under that legislation or legislative provision.
b. The Quotation prevails over the T&Cs in the event of inconsistency.
3 Provision of Goods and/or Services
By accepting this Quotation, the Client agrees to be bound by these T&Cs and accept the goods and/or services specified in this Quotation in accordance with these T&Cs. Any T&Cs proposed by Client which are inconsistent with or in addition to these T&Cs are void unless agreed to in writing by ZENCODE.
Delivery of the goods and/or services by ZENCODE under this Contract shall not constitute the acceptance or agreement to Client’s T&Cs if any.
The price specified in this Quotation will (unless expressed in writing to the contrary) include the costs of any delivery fees, duty, freight, handling, insurance, packaging, stamp duty, any taxes (except for Goods and Services Tax, as provided for in Clause 20 (d) herein below) and other expenses relating to the goods or services.
The supplies shall be delivered on the date and at the place as instructed by Client. Where no delivery place has been specified, and if the place does not result from the nature of the obligatory relation, Client’s registered office shall be deemed the place of delivery.
In the event of delay, or anticipated delay, from any cause, ZENCODE shall immediately notify the Client in writing of the delay or anticipated delay, and its approximate duration, and will undertake to reduce or make up the delay by all reasonable and expeditious means and the Client agrees to accept such reasonable requests for extension.
Title in the goods passes to the Client at the earlier of: acceptance of the goods by the Client or payment.
8 Acceptance and Rejection
Quotations, acceptance of deliveries, any alteration or amendment of Quotations must be made by ZENCODE and the Client in writing to be effective. Acts of God, terrorism, natural disaster, loss of utilities, industrial action including without limitation, strike, shutdown and interruption of business, and all other circumstances beyond ZENCODE’s control shall release ZENCODE from its contractual obligations of delivery of the goods or services for the duration of the disruption and to the extent of its effect. Both ZENCODE and the Client must agree on a suitable alternative date of delivery. If possible, ZENCODE will notify the Client within a reasonable time of a suitable alternative date of delivery.
9 Warranties, Indemnities and Disclaimer
9.1 The Services/Products are made available for use “as-is” and without any warranty or indemnity of any kind except as provided in this contract. ZENCODE makes no other warranties, conditions, indemnities, representations or terms, express or implied, whether by statute, common law, custom, usage, or otherwise.
9.2 By installing and/or using the provided services/products Client agrees to hold ZENCODE harmless from any liabilities, losses, actions, damages, or claims, including all expenses and attorney fees, arising out of or relating to any use of, or reliance on, the services/products provided.
9.3 Client agrees that in no case will ZENCODE or its partners or suppliers be liable to Client or any of Client’s representatives for any damages, claims, or costs whatsoever or any consequential, indirect, or incidental damages, or any loss of profits or savings, or any other finances even if ZENCODE has been advised of the possibility of such loss, costs, damages, or claims.
9.4 ZENCODE and its sub-contractors shall protect client’s sensitive, confidential, and proprietary information, tools, and processes. Client shall do the same for ZENCODE’s sensitive, confidential, and proprietary information, tools, and processes.
9.5 Client guarantees and shall ensure that all material such as text, graphics, multimedia, photo, design, artwork, other software, and other resources provided by Client are free of copyright and trademark and similar violations. ZENCODE shall not be responsible in any way for copyright, trademark and similar violation regarding items provided by Client. Client agrees to indemnify ZENCODE and not hold ZENCODE responsible in any way for such violations regarding items provided by Client.
9.6 ZENCODE guarantees and shall ensure that all material such as text, graphics, multimedia photos, design, artwork, music, other software and other resources delivered by ZENCODE are free of copyright and trademark and similar violations. ZENCODE agrees to indemnify Client and not hold Client responsible in any way for such violations regarding items provided by ZENCODE. If items delivered by ZENCODE to meet Client requirement require copyright notice to be a part of product, Client agrees that as long as such items are part of product, such copyright notices shall properly remain a part of product.
These assurance and warranties shall survive acceptance and payment.
The warranties contained herein shall continue for a period of twelve (12) months after acceptance of the goods and/or services or for the period provided in Client’s warranty covering the goods and/or services, whichever is longer.
10 Data Protection & Proprietary Information
10.1 Data Protection: The Client represents and warrants that insofar as the same is applicable, it will comply with the Singaporean Personal Data Protection Act and all directives, regulations and laws relating to the protection of data and/or personal data in force in Singapore at the commencement of these T&Cs or that come into force during any supply under the Quotation. On request, Client shall provide the name and contact information of it(s) contact person(s) for data protection and information security to ZENCODE.
10.2 Definition: “Proprietary Information” means confidential proprietary information (including business, financial or technical data, machine-readable or interpreted information, information contained in physical components, mask works or artworks in written or other permanent form) that is delivered to the recipient, bears the date of disclosure, and is visibly identified by clear and conspicuous markings as the disclosing Party’s Proprietary Information. A non-written disclosure shall be considered Proprietary Information to the extent that such disclosure is orally identified as Proprietary Information at the time of disclosure and is confirmed in writing by the disclosing Party. Such written confirmation shall: (i) sufficiently describe the information disclosed in detail, its scope, and the date and manner of disclosure; (ii) identify disclosers and recipients; (iii) be supplied within 10 days after oral disclosure; and (iv) refer to this Article.
10.3 Obligations of receiving party: The receiving Party shall preserve the disclosing Party’s Proprietary Information and will maintain the confidentiality of the Proprietary Information with at least the same degree of care that it uses to protect its own confidential information, but no less than a reasonable degree of care under the circumstances. The receiving Party will not disclose any of the disclosing Party’s Proprietary Information, except to its employees, project members or consultants who have a need to know and who agree to abide by nondisclosure terms at least as comprehensive as those set forth herein. The receiving Party will not disclose a disclosing Party’s Proprietary Information to any third party without the disclosing Party’s prior written authorization. Any copies that are made will be identified as belonging to the disclosing Party and marked “Proprietary” or with a similar legend. A receiving Party may not use Proprietary Information to reproduce, redesign, or reverse engineer any products or equipment of the disclosing Party.
10.4 No liability for certain disclosures: The receiving Party will not be liable for the disclosure of any information, regardless of its designation as Proprietary Information, if it is (a) rightfully in the public domain other than by a breach of a duty to the disclosing Party; (b) rightfully received from a third party without any obligation of confidentiality; (c) rightfully known to the receiving Party without any limitation on use or disclosure prior to its receipt from the disclosing Party; (d) independently developed by the employees of the receiving Party; or (e) generally made available to third parties by the disclosing Party without restriction on disclosure.
10.5 Disclosures required by law: Should a receiving Party be faced with a legal obligation to disclose Proprietary Information received under this Contract, the receiving Party shall, as soon as possible, notify the disclosing Party, and upon request of the disclosing Party shall reasonably cooperate in contesting such disclosure. Except in association with a failure to discharge the responsibilities set forth in this paragraph, neither Party shall be liable for any disclosures made pursuant to the laws they are governed by.
This Clause shall survive expiration or termination of this Contract
11 Services or products provided by Client
11.1 Client shall provide a sufficiently detailed description of the capabilities/functionalities it requires from the ZENCODE. Client may satisfy this requirement by providing a copy of printed documents, existing/sample databases, applications, websites, ZENCODE provided worksheets, other resources, and by being available for interviews by ZENCODE.
11.2 Client shall provide a returnable copy or access to any application or software to be interfaced to the developed database/applications. This copy shall be returned to the Client by the ZENCODE when no longer needed to service the Client.
11.3 Client shall make Client’s computer hardware/software including web hosting available as needed for ZENCODE to install and test developed capabilities. Client shall participate in the testing of the delivered capabilities as requested by ZENCODE to ensure compliance to Client’s requirements.
11.4 Client shall provide other equipment/supplies including hardware and software as specified and agreed to in the Quotation.
11.5 Client shall timely complete and update ZENCODE required specification documents clearly defining the client requirements for products for development/maintenance. Substantial or repetitive changes to Client submissions due to Client error may cause us to bill Client an additional amount at our option.
12 Breach of Warranty
If the Client becomes aware that a good or service fails to comply with any of the quality or warranty requirements under this Quotation or these T&Cs, the Client is entitled to, at its option and without prejudice to any other Client’s rights, at ZENCODE’s cost at any time within twelve (12) months after acceptance of the goods and/or services as to the Goods: (i) require ZENCODE to replace the goods, or (ii) require ZENCODE to repair the goods; as to the Services: (i) require ZENCODE to re-provide the Services; or (ii) require ZENCODE to cure such defect.
13 General Service Obligations
13.1 Performance of the Services
ZENCODE shall perform the Services in accordance with the technical and quality standards recognized at the time this Contract becomes effective. Hardware must meet and be in accordance with any and all applicable governmental regulations, requirements or standards in effect at the time this Contract becomes effective. Software must be provided in compliance with the generally accepted principles of data processing and relevant quality standards.
13.2 Checking for malware
Before they are made available or used, all deliveries, services and all data carriers used in the performance of the Services as well as deliveries and services transferred electronically (e.g. by e-mail or data transfer) shall be examined for malware (e.g. Trojan Horses, viruses, spyware, etc.) by ZENCODE using tests and analysis procedures that meet the Standards for Services, thus ensuring that they do not contain any malware. If malware is discovered, the data carrier may not be used and the Client must be notified immediately. If ZENCODE identifies malware on the Client’s systems, it shall inform the Client of this immediately. The same obligations shall apply to all forms of electronic communication.
13.3 Acceptance of the Services
The Services shall be tested by ZENCODE in a test and trial operation to ensure that they are complete and that they function in accordance with the requirements of the Contract and the Documentation. The Client shall provide any support requested by ZENCODE in conjunction with such testing. If defects are discovered during the test and trial operation, ZENCODE shall supply replacement Services or re-perform the Services so that they are free of defects. If no defects are observed during the test and trial operation, the Client shall confirm in writing acceptance of the Services.
14 Modifications to Services
The Client may order changes in the Services consisting of additions, deletions and revisions. If such changes result in a decrease or increase in ZENCODE’s cost or in the time for performance, ZENCODE shall notify the Client in writing within seven (7) days after receipt of the change notice. Upon receipt of this notice ZENCODE and the Client shall negotiate a compensation for ZENCODE’s cost or time.
15 Export Controls and Customs
The Client shall, at its own costs, comply with all applicable import and export controls, customs, foreign trade regulations and all other applicable requirements for the legal delivery of goods and services at the place of delivery and obtain all licenses, permits and authorizations necessary in this regard. The Client shall be liable to fully indemnify ZENCODE against any expenses, costs and/or damages (including solicitors’ costs on an indemnity basis), which may be incurred by ZENCODE as a consequence of Client’s non-compliance of this Clause.
16 Intellectual Property
ZENCODE warrants that the goods and/or services supplied pursuant to this Quotation do not infringe any copyright, moral rights, licences, patents, registered designs, trademarks or any other intellectual property rights. ZENCODE indemnifies and holds harmless the Client, its customers and the users of the goods supplied, against any action, claim (including any third party claim), demand, fines, penalties, proceeding or suit for actual or alleged infringement of any copyright, moral rights, licences, patents, registered designs, trademarks or any other intellectual property rights brought or made against any of them by reason of any use or disposal of the goods and/or services supplied against this Quotation. ZENCODE will own, and the Client assigns now and in the future to ZENCODE, all intellectual property rights in any goods or any material designed or created by ZENCODE in connection with this Quotation. The Client acknowledges and agrees that ZENCODE owns all the intellectual property rights in any additions, alterations, modifications, and the like that ZENCODE makes to the goods and/or services.
17 Blue Prints, Tools, Artwork, etc
All tools, dies and other equipment and all drawings, blue prints and specifications and other documents supplied without charge to the Client by ZENCODE are and remain the property of ZENCODE and must not be copied or used for any purpose. Such equipment and documents must be returned to ZENCODE at ZENCODE’s request on completion or termination of this QUOTATION.
Either party may terminate this Quotation immediately upon the provision of written notice to the other party if:
a. the other party commits a breach (other than a trivial breach which causes no harm) of any provision of these T&Cs and where the breach is capable of remedy fails to remedy the breach within 14 days of receipt of written notice from the party calling for the breach to be remedied; or
b. an Insolvency Event occurs in relation to the other party.
19 Dispute Resolution
Any dispute arising out of or in connection with this Contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of Singapore international Arbitration Centre (“SIAC Rules“) for the time being in force which rules are deemed to be incorporated by reference to this clause. The tribunal shall consist 1 Arbitrator for disputes up to Singapore Dollars One Million who is to be appointed by the Chairman of SIAC. For disputes exceeding Singapore Dollars One Million there shall be three arbitrators of which each Party shall appoint one arbitrator and the third arbitrator shall be appointed by the Chairman of SIAC. The language of the arbitration shall be English.
20 General Clauses
(a) Governing law: These T&Cs and the Quotation are governed by the laws of the Republic of Singapore.
b. Variations: Any alteration or amendment to the Quotation / T&Cs must be agreed by both parties in writing in order to be effective. The parties agree that any terms and conditions endorsed on any order confirmation, delivery note, docket, invoice or other document produced by the Client are expressly negated and do not form part of this Quotation or the T&Cs, and do not apply to the delivery of goods or services under this Quotation.
c. Waiver: A waiver is not effective unless it is in writing. A Party’s failure or delay to exercise a power or right that it has under this Quotation or the T&Cs, does not operate as a waiver of that power or right. A party does not by granting an indulgence, allowing any time, or exercising any right of remedy arising out of any default/s by the other waive its rights or remedies under these T&Cs.
d. Sales Tax: ZENCODE shall charge the Client appropriate sales tax according to the laws of Singapore. Generally, sales tax is not chargeable for development and maintenance and configuration of software owned by or being developed for client ownership. Technical support services involving hardware repair is generally taxable. In any case, the prevailing state law in effect at the time the work is performed shall be adhered to.
e. Independent Contractor: ZENCODE is engaged as an independent contractor and not as an agent or employee of the Client. ZENCODE shall have no authority to bind or obligate Client in any manner whatsoever. ZENCODE shall be solely liable and responsible for its employment practices and for paying its own employee salaries, benefits, taxes and withholdings.
f. Limitation of liability: Neither party shall be liable to the other party for any lost profits or punitive, special, incidental, indirect or consequential damages arising out of this contract, even if such party has been advised of the possibility of such damages. This section shall survive expiration or termination of this Contract.
g. Non-solicitation: The Client hereby agrees that, during the term of this Agreement and for two (2) years following the termination hereof, the Client will not recruit, attempt to recruit or directly or indirectly participate in the recruitment of any ZENCODE resource.
h. Entire Agreement: This agreement, together with any supplements or modifications thereof signed by both parties, comprise the entire agreement. None of the parties has made any representations or warranties other than those set forth in this agreement and such supplements or modifications, if any.
i. Notice: All notices must be in writing to Person in-charge’s stated email or stated Company address as provided in the Quotation. A notice may be delivered in person or by registered or certified mail or by stated email address or by traceable courier service.
j. Severability: If any term or provision of this Contract, or the application thereof to any person or circumstance, shall to any extent be found to be invalid, void, or unenforceable, the remaining provisions of this Contract and any application thereof shall, nevertheless, continue in full force and effect without being impaired or invalidated in any way.
k. Counterparts: This Contract, and any amendments hereto, may be executed in counterparts, each such counterpart to be considered an original and all of which shall be construed together as one and the same document.
l. Authorization: The individuals signing this Contract represent that they are fully authorized to execute this Contract on behalf of the Parties.