(V1.01 - Effective October 4, 2022)
I. Interpretation
II. Intellectual Property or Licenses
III. Confidentiality
IV. Representations, Warranties and Certain Covenants
V. Remedies
VI. Your Conduct Requirements; Your Grant of License
VII. Termination
VIII. Force Majeure
IX. General Provisions
COLLAB ASIA SEA PTE LTD (UEN No. 201932088M) (“Company”) and You (“Client’) wish to enter into this master agreement for the provision of digital marketing services upon the terms and conditions set out below.
THE PARTIES HEREBY AGREE as follows:-:
In this Agreement, the following words shall have the respective meanings set out hereunder, unless the context otherwise requires:
(a) “Affiliate” in relation to any Party, means (1) any Subsidiary or Parent Company of that Party, and (2) any Subsidiary of that Parent Company, in each case from time to time;
(b) “Deliverables” means the Products and/or the proceeds of Services, including but not limited to advertising campaigns and influencer marketing by the Company to the Client.
(c)“Influencers” means any social media influencers that is represented by the Company.
(d) “Intellectual Property” means inventions, trademarks, service marks, logos and the like, discoveries, developments, methods, processes, compositions, works, concepts and ideas (whether or not patentable or copyrightable or constituting trade secrets) conceived, made, created, developed or reduced to practice by either Party (whether alone or with others, whether or not during normal business hours or on or off company premises)
(e) “Product” means any physical product as specified by one or more Statement(s) of Work (“SOW”) which the Company and Client may agree from time to time when this Agreement is in force.
(f) “Services” means any service the Company is to provide Client as detailed in one or more SOW which the Company and Client may enter into from time to time.
(g) “Service Provider Personnel” means all persons engaged by the Company in connection with the Services
1.1 The Client hereby engages, and the Company agrees to provide the Services on a project specific needs basis as requested by the Company from time to time. The Client shall determine the scope of Work to be provided under each SOW and the Company shall be responsible for the method and manner in which the Service Provider Personnel and the Influencers perform their tasks.
Each SOW shall make express reference to this Agreement and shall be named and numbered in a chronological order “Statement of Work #[__]”.
1.2 In consideration of the Services rendered by the Company, the Client will pay the Producer the fees and set forth in the relevant SOW in accordance to the manner set out in the relevant SOW.
2.1 No Right to Intellectual Properties or Licenses of Company
Nothing in this Agreement shall be deemed to implicitly or explicitly grant any license or other right to the Client to use, possess, copy or own any of the Company’s software, services, products or intellectual property.
2.2 License to Certain Client Intellectual Property
Subject to and in accordance with the terms and conditions of this Agreement and the SOW, the Client grants the Company and its Affiliates and Influencers a limited, non-exclusive license during the term of this Agreement and the SOW to use the Client’s Intellectual Property solely to the extent necessary to provide the services to the Client.
2.3 Ownership and License to Deliverables
Ownership and/or licenses to the Deliverables will be as set forth in the applicable SOW.
2.4 Portfolio and Marketing Rights
The Client grants to the Company the right to indicate that the Client is a client of the Company in the Company’s marketing materials. Further, the Client grants to the Company the right to display the material that the Company created for the Client in the portfolio of the Company in the Company’s marketing materials, provided that the Client has at some point in time publicly displayed such materials.
3.1 Confidential Information: “Confidential Information” means any of the following, which a Party may acquire at any time during the term of this Agreement from the other Party:
(i) all and any all information (whether or not recorded in documentary or digital form) relating to the business methods, corporate plans, management systems, finances, Campaigns, maturing new business opportunities or research and development projects of the Parties and their related corporations, as well as information on their employees, vendors, suppliers and independent contractors.
The Parties acknowledge that as a result of their relationship pursuant to this Agreement, they may be furnished with or receive confidential and/or proprietary information of the other party. The party disclosing the confidential and/or proprietary information shall be referred to as the “Discloser”. The party receiving the confidential and/or proprietary information shall be referred to as the “Recipient”.
3.2 Exceptions
Notwithstanding anything to the contrary herein, Confidential Information shall not include any information to the extent that it;
(a) is or becomes a matter of public knowledge without the fault of Recipient; or
(b) was known to Recipient prior to the disclosure to it by Discloser; or
(c)was developed independently by Recipient; or
(d) was rightfully disclosed to Recipient by a third party which is not under an obligation to Discloser to maintain such information in confidence; or
(e) is disclosed under operation of law, government regulation, or court order.
3.3 Obligation of Confidentiality
Each Party shall maintain the confidentiality of all Confidential Information, holding such information in strict confidence, using at least such degree of care as is appropriate to avoid unauthorised use or disclosure of such information.
Any Confidential Information disclosed by Discloser to Recipient shall remain perpetually confidential notwithstanding termination or expiration of this Agreement. For the avoidance of doubt, information which is subsequently disclosed by either party to the other for the first time after and only after the termination or expiration of this Agreement shall not be considered Confidential Information under the terms of this Agreement.
3.4 Each Party will not, directly or indirectly, disclose or use for its own benefit, any Confidential Information to any third party, except with the other Party’s prior written consent.
3.5 Each Party shall not make use of any Confidential Information for any purpose or for the benefit of anyone or any other entity other than Discloser, except as permitted by this Agreement.
3.6 Each Party shall be permitted to disclose the Confidential Information only to its employees, contractors and agents ("Employees") having a need to know such information in connection with the performance of this Agreement and who are bound by a written agreement, enforceable by the Recipient, that obligates the Employees to comply with the provisions set forth in this Clause 3.
3.7 Recipient, upon termination of this Agreement or at any time Discloser may so request, shall deliver promptly to Discloser, or, at Discloser’s option, shall destroy all memoranda, notes, records, reports, media and other documents and materials (and all copies thereof) regarding or including any Confidential Information which Recipient may then possess or have under its control.
3.8 Each Party acknowledges that the disclosure of Confidential Information will cause irreparable injury to the other Party and agrees that the other Party shall, therefore, be entitled to injunctive relief in the event of any breach of this Clause 3, without a requirement that the other Party prove irreparable harm. This provision shall not in any way limit such other remedies as may be available to either Party at law or in equity.
4.1 Mutual Representations
Each Party represents, warrants and covenants to the other Party that:
(i) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it under this Agreement (including that as stated in the SOWs);
(ii) it has the right to grant the rights granted hereunder;
(iii) the execution of this Agreement and performance of its obligations under this Agreement do not and shall not violate any other agreement to which it is a Party; this Agreement constitutes a legal, valid and binding obligation of such Party when executed and delivered; and
(v) any and all activities it undertakes in connection with this Agreement shall be performed in compliance with all applicable laws, rules and regulations (including, without limitation, consumer protection and privacy laws). Without limiting the generality of the foregoing, each party shall at all times, at its own expense, obtain and maintain all certifications, credentials, authorisations, licenses and permits necessary to conduct its business relating to the exercise of its rights and the performance of its obligations under this Agreement.
Except for the express representations and warranties contained in this Agreement or in an SOW, (a) neither party to this Agreement, nor any other person on such party’s behalf, has made or makes any express or implied representation or warranty, either oral or written, whether arising by law or otherwise, all of which are expressly disclaimed, and (b) each party acknowledges that it has not relied upon any representation or warranty made by the other party, or any other person on such party’s behalf, except as specifically provided in Agreement or in an SOW.
The Company further represents, warrants and covenants to the Client that:
(i) all services to be rendered under this Agreement and any SOW shall be performed in a competent and professional and workmanlike manner by fully qualified personnel; and
(ii) no content or other intellectual property provided by the Company to the Client shall interfere with or infringe the rights (including, without limitation, contractual and intellectual property rights) of any third party.
4.3 To the maximum extent allowable under applicable law, work and deliverables shall be provided “as is” and the Company makes no warranties (other than as expressly made in this Agreement or in an applicable SOW) and hereby specifically disclaims the implied warranties of fitness for a particular purpose, merchantability or non-infringement, with regard to such work, deliverables, materials, products and/or services provided under this agreement.
4.4 To the maximum extent allowable under applicable law, the Client agrees that the Company shall not be liable for any monetary damages in excess of the amounts paid to Company under this Agreement pursuant to the applicable SOW. The Client also agrees that in no event shall the Company be liable for lost profits, lost opportunities, consequential or incidental damages resulting from Company’s performance under this agreement.
5.1 Exclusive Remedy
The Client’s exclusive remedy for damages arising from Company’s performance shall be at Company’s option either;for the Company to attempt to reasonably repair, replace or redo its performance; orrefund of the funds received by Company from Client pursuant to the applicable SOW, not to exceed Client’s actual damages.
5.2 Indemnification by the Company:
The Company agrees to indemnify and to hold the Client harmless against any loss, damage, expense, or cost, including reasonable attorneys' fees, arising out of any third party claim, demand, or suit ("Claim") asserting that i) Deliverables infringes or violates any copyright, patent, trade secret, trademark, or proprietary right or that
ii) Company has breached applicable law.The indemnification obligation in this Clause 5.2 shall be effective only if:the Client gives prompt notice of the Claim and permits the Company to defend and settle such Claim; and the Client reasonably cooperates in the defense of the Claim. The Company shall have no obligation to indemnify the Client, or to defend or satisfy any Claims made against the Client that arise from activities which are prohibited by this Agreement or any SOW.
5.3 Mitigation of Damages – Infringement and Indemnification Issues:
To reduce or mitigate damages (such as those that may result from a Claim), the Company may at its own expense
i) procure the right for the Client to continue its activities with regard to the Deliverables or
ii) discontinue use of Deliverables which gave rise to a Claim or potential Claim and replace such Deliverables with other Deliverables with the same functionality.
In the event that a Claim is made, the Client agrees to refrain from activities which would increase the possibility of damages being assessed or would increase the extent of damages, payments or settlements that would result from the Claim.
5.4 Client Indemnification: The Client hereby agrees to indemnify, defend and hold harmless the Company, and its officers, directors, employees, contractors and agents (collectively, the "Company Indemnities"), from and against all damages, claims and/or losses which shall be asserted against, imposed upon or incurred by the Company Indemnities or any member thereof, directly or indirectly, or in any way attributable to any allegation, claim, judgment or adjudication that i) Company’s use of any of the materials, information or other property owned by, licensed by, provided by or provided on behalf of the Client or ii) Client’s acts or omissions do or result in any of the following: (1) infringe any patent, copyright, trademark, trade secret, rights of publicity or privacy, or any other proprietary right of any third party; (2) is libelous or slanderous; (3) constitutes false, deceptive, or misleading description, depiction or comparison of the product(s) or services(s) of the Client and/or any competitive products(s) or services(s); (4) constitutes inappropriate or unauthorized use or possession of materials, information or other property; (5) breaches applicable law; (6) injures or harms any third party; or (7) which relates to any issues of product or service liability from use of the Client's products or services.
5.5 Cumulative remedies
The provisions of this Agreement, and the rights and remedies of the Parties under this Agreement are cumulative and are without prejudice and in addition to any rights or remedies a Party may have at law or in equity.
6.1 A SOW may be terminated;by either party, upon written notice, if there is (A) liquidation, insolvency, or the appointment of a custodian or receiver for such party or for such party’s property, if such appointment is not terminated or dismissed within 30 days; or (B) the commencement with respect to the other party of any proceeding under any bankruptcy, reorganization, receivership or insolvency, which proceeding if initiated against such party, is not dismissed within 30 days; and
in accord with any termination terms set forth in an SOW which are applicable to that SOW.
6.2 This Agreement may be terminated at any time, by either party, upon thirty (30) days’ notice, if and only if all SOWs have either previously expired or been terminated.
6.3 Upon the expiration or termination of this Agreement for any reason, each Party shall promptly return to the other Party or permanently erase all documents and tangible materials containing, reflecting, incorporating, or based on the other Party’s Confidential Information;
Neither party shall be entitled to any compensation or claim for goodwill or other loss, cost or expense which either of them may suffer or claim to have suffered solely by reason of termination or expiration of this Agreement or an SOW.
Any termination of this Agreement or SOW shall be without prejudice to any rights accrued in favour of a Party prior to such termination by the other Party and each Party shall remain entitled to all rights granted or assigned to the such Party under this Agreement and any SOW.
For as long as an entity is a user of the Website, COMPANY is granted the right to use such entity’s name and logos in order to indicate that such entity is a user of the Website.
8.1 Whole Agreement
(i) This Agreement and any SOWs referencing this Agreement constitute the entire agreement between the parties with reference to the subject matter hereof and supersedes all prior agreements (written or oral). No waiver, consent or change of the terms of this Agreement or any SOW shall bind either party unless it is in writing signed by both parties by their duly authorized representatives. There are no understandings, agreements, representations or warranties, express or implied, with respect to the subject matter hereof except as expressly set forth in this Agreement or any SOW. Only the terms and conditions of this Agreement and any SOWs shall govern the transactions contemplated hereunder notwithstanding any additional, different or conflicting terms which may be contained in any other document, other than an SOW, provided by one party to the other.
(ii) With regard to SOWs, in the event of a conflict or inconsistency with the terms and conditions of this Agreement, this Agreement shall govern the transactions contemplated hereunder unless otherwise provided in the SOW.
(iii) Any clarification, modification or other change made to this Agreement by a particular SOW, i) shall be understood as only a clarification, modification or change to this Agreement with respect to that particular SOW, and ii) shall not act as a clarification, modification or other change to this Agreement with respect to any other SOW.
8.2 Independent ContractorThe Company shall be acting as an independent contractor and that nothing in this Agreement shall constitute a partnership, employment, agency or joint venture or other association between the Parties.
8.3 Severability
Any one or more clauses in this Agreement which is declared or adjudicated to be illegal, invalid or unenforceable under any applicable law in any jurisdiction shall be ineffective to the extent of such illegality, invalidity or unenforceability without invalidating or rendering unenforceable the remaining clauses of this Agreement.
8.4 Right of Assignment
Except as otherwise stated in this Agreement or in an SOW, either Party may assign this Agreement and any SOWs in conjunction with a merger, acquisition, reorganization, or sale of substantially all of the assets of the assigning party. Any such assignee shall be treated as a party to this Agreement for all purpose of this Agreement and shall be entitled to the full benefits of such rights and or obligations as if it were the party in respect of the rights and/or obligations assigned to it. The Agreement shall be binding upon each party hereto and endure to the benefit of the party and successor and assigns of the party.
8.5 Survival of Obligations
All obligations under this Agreement, except those obligations as set forth in any SOW, shall survive the expiration or termination of this Agreement and continue to be enforceable. Obligations as set forth in a SOW shall survive the expiration or termination of this Agreement and continue to be enforceable only if that SOW provides for the survival of obligations.
8.6 Waiver
No failure to exercise, or delay in exercising, any right under this Agreement or any other document referred to in this Agreement or provided by law shall affect that right or operate as a waiver of the right. The single or partial exercise of any right under this Agreement or any other document referred to in this Agreement or provided by law shall not preclude any further exercise of it.
8.7 Governing Law
This Agreement shall be governed by and interpreted in accordance with the laws of Singapore.
8.9 Arbitration
Any dispute arising out of or in connection with this Agreement, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force.