Talon.One SG Pte. Ltd.
Last updated: December 1, 2022
THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 9 (LIMITATION OF LIABILITY).
The following definitions and rules of interpretation apply in these Terms and Conditions (hereinafter known as the "Conditions").
Business Day: a day other than a Saturday, Sunday or public holiday in Singapore, when banks in Singapore are open for business.
Fees: the fees payable by the Customer for the supply of the Talon.One Services in accordance with clause 6.
Commencement Date: has the meaning given in clause 2.5.
Conditions: these terms and conditions as amended from time to time in accordance with clause 12.5.
Contract: the contract between Talon.One and the Customer for the supply of Talon.One Services in accordance with these Conditions and concluded as a legally binding contract in clause 2.7(a).
Customer: the person or firm who purchases Talon.One Services from Talon.One.
Customer Default: has the meaning set out in clause 5.2.
Data Protection Agreement: the agreement regarding the processing of personal data into which the Customer and Talon.One will enter at the beginning of the Contract.
Force Majeure Events: means a) act of God, pandemic or epidemic, explosion, flood, tempest, fire or accident; b) war or threat of war, sabotage, insurrection, civil disturbance or requisition; c) actions, restrictions (including restrictions on cross-border travels or cross-border controls), regulations, bye- laws, prohibitions or measure of any kind on the part of any governmental parliamentary or local authority; d) import or export regulations or embargoes; e) strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of Talon.One or of a third party); f) difficulties in obtaining raw materials, labour, fuel parts or machinery; g) power failure, power outage or breakdown in machinery h) any regional, country-wide or international event(s) affecting trade in general and/or in relation to the supply of raw and other materials, components and/or parts and/or labour, freight, transport, delivery and other operating expenses of Talon.One and i) any cause or circumstance whatsoever beyond Talon.One's reasonable control.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks 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.
Order: the Customer's order for Talon.One Services via an Order Form or via a Web Application Order.
Order Form: the Customer's order for Talon.One Services via a written order.
Talon.One Services: the online and software based products and services to maintain, monitor and automate voucher codes, discounts, loyalty programs, customer referral campaigns and related products and services supplied by Talon.One to the Customer as set out in the Specification.
Specification: the description or specification of Talon.One Services in the respective service and product descriptions, special contract conditions, individual subjects of performance and/or services, order forms and/or price lists in effect at the time the Contract was concluded.
Talon.One: Talon.One SG Pte. Ltd., a private limited company incorporated in Singapore (UEN no.: 202129802N).
Talon.One Self Service Portal: Talon.One's online portal for which access is granted after acceptance of email invitation and provision of correct URL
Web Application Order: the Customer's order for Services via Talon.One's online portal ('Talon.One Self Service Portal') by using the respective order form within the web application.
(a) A reference to legislation or a legislative provision:
(i) is a reference to it as amended, extended or re-enacted from time to time; and
(ii) shall include all subordinate legislation made from time to time under that legislation or legislative provision.
(b) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(c) A reference to writing or written includes fax and email.
2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Talon.One Services in accordance with these Conditions. The Customer is bound by the Order for a period of two (2) weeks after making the Order.
2.2 Any samples, drawings, descriptive matter or advertising issued by Talon.One, and any descriptions or illustrations contained in Talon.One's catalogues or brochures or on its website, are issued or published for the sole purpose of giving an approximate idea of the Talon.One Services described in them. They shall not form part of the Contract or have any contractual force.
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.4 Any quotation given by Talon.One shall not constitute an offer, and is only valid for a period of 14 Business Days from its date of issue or until the validity date stated in the Order Form.
2.5 The Contract between Talon.One and the Customer shall come into existence (Commencement Date) either upon Talon.One confirming an Order Form in writing, upon the Customer using the Web Application Form via Talon.One's online portal, or upon Talon.One delivering or performing Talon.One Services towards the Customer.
(a) Order Form In order to conclude the Contract via an Order Form, the Customer must send the signed Order Form to Talon.One by fax or by email. Talon.One shall not be obliged to accept the Order Form and is entitled to reject such Order without stating reasons.
(b) Web Application Order In order to conclude the Contract via the Talon.One Self Service Portal, the Customer must register itself online with Talon.One. It is required for Talon.One to confirm such registration by sending a confirmation email or verbal confirmation by phone, each by using the respective contact details (email address / phone number) that was provided by the Customer. A right to registration does not exist; Talon.One expressly reserves the right to reject a registration without stating reasons. The Customer's Talon.One user account will be activated once the Customer clicks on the activation link. The user account is non-transferable. The Customer must keep the password secret and protect it against any wrongful use by unauthorised third parties.
2.6 The Customer can order Talon.One Services via its user account. Talon.One offers subscriptions for its Talon.One Services. The details for subscriptions can be found within the Customer's account or on the Order Form.
2.7 (a) Subscriptions Unless otherwise provided in the Order Form or Web Application Order, Talon.One Services are purchased as subscriptions. Further subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and any added subscriptions will terminate on the same date as the underlying subscriptions. To order a subscription, the Customer must click on the button 'Buy' (or any similar or synonymous expression) or sign the provided Order Form to make a binding Order for the relevant Talon.One Services. Talon.One will confirm the receipt of the Order via email. However, such confirmation does not constitute an acceptance of the Order. The Contract between the Customer and Talon.One will be concluded by Talon.One's express acceptance of the Order in writing, via email or by making the Talon.One Services available. Talon.One is not obliged to accept the Order.
(b) Usage Limits Talon.One Services are subject to usage limits, including, for example, the quantities specified in the Order Form or Web Application Order, unless otherwise specified or agreed. Talon.One Service may not be active for more than the respective usage limit. If the Customer exceeds a contractual usage limit, Talon.One is entitled to charge additional quantities accordingly.
(c) Free Trial Talon.One may offer a free trial period to new Customers. The free trial period is available only once to any one Customer. Length of the free trial will be communicated by Talon.One. The detailed terms for such free trial are available in the Customer's account. If the new Customer does not order Talon.One Services within the communicated trial period against payment, they will not be entitled to continue the use of the Talon.One Services after expiry of the free trial period. The Customer is aware that contractual declarations (e.g. confirmation emails, amendments to the Conditions as well as other notifications) may be sent via email.
3. Supply of Services
3.1 Talon.One shall supply the Talon.One Services to the Customer in accordance with the Specification in all material respects.
3.2 Talon.One reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Talon.One Services, and Talon.One shall notify the Customer in any such event. Talon.One also reserves the right to make technical changes and improvements to the Talon.One Services within a reasonable scope.
3.3 Talon.One warrants to the Customer that the Talon.One Services will be provided using reasonable care and skill.
3.4 Talon.One is entitled to use third parties as agents in order to carry out and/or fulfil all or part of its contractual obligations.
4. Availability, Changes of Services
4.1 Unless expressly specified Talon.One offers the Talon.One Services on the basis of what is currently technically, economically and operationally possible and/or reasonable.
4.2 The Customer accepts that uninterrupted availability of the Talon.One Services is technically not possible and cannot be reasonably guaranteed. The Talon.One Services shall be available at least 99,0% of the annual mean. Hereof excluded are times during which Talon.One Services may be interrupted or disrupted by circumstances beyond Talon.One's reasonable control, including but not limited to acts of third parties that do not act on Talon.One's behalf, technical conditions of the internet that Talon.One cannot influence or Force Majeure Events. If such circumstances interfere with the availability, quality or functionality of the Talon.One Services, this shall not constitute a breach of the Contract by Talon.One. If the period of the Force Majeure Event exceeds 30 calendar days, the Customer shall be entitled to terminate the Contract by giving Talon.One 7 Business Days' written notice, whereupon Talon.One shall be discharged from its obligations under the Contract and the Conditions. Talon.One shall then invoice the Customer for Talon.One Services provided to the Customer up until the termination date of the Contract.
4.3 Talon.One shall notify the Customer about planned downtimes or restrictions on the availability of the Talon.One Services within a reasonable period of time. The Customer shall have no claims against Talon.One based on or in connection with such circumstances.
4.4 In case of unforeseen events, Talon.One is entitled to suspend the Talon.One Services for maintenance or repair purposes if this is necessary to ensure the proper operation of the Talon.One Services.
4.5 Taking into account the Customer's interest in the Talon.One Services, Talon.One reserves the right to change, alter, limit or discontinue Talon.One Services, in particular if this is reasonably necessary to prevent abuse of Talon.One Services or to comply with legal requirements. Talon.One shall notify the Customer of any such measure with a notice period of three (3) weeks. In such event, the Customer is entitled to request a price adjustment or to terminate the Contract, provided that contractual use of the Talon.One Services is significantly impaired. Talon.One is entitled at any time, and without an obligation to notify the Customer, to improve, adjust, extend and/or to adapt the Talon.One Services to the technical progress, provided that the material content of the Talon.One Services is maintained.
5. Customer's obligations
5.1 The Customer shall:
(a) keep the passwords and login data provided by Talon.One for access to the Talon.One Services confidential and inform Talon.One immediately as soon as the Customer becomes aware of unauthorised third parties gaining access to these passwords. If, due to the Customer's fault, unauthorised third parties use any Talon.One Services by using the passwords, the Customer is liable to Talon.One for usage fees and damages;
(b) ensure that only its authorised employees are permitted to access the Customer's Talon.One user account;
(c) not make the software provided by Talon.One available to any third parties;
(d) not modify, translate, reverse engineer, decompile, disassemble or otherwise create derivative works from the Talon.One software or documentation;
(e) not transfer, lend, rent, lease, distribute the software provided by Talon.One or the Talon.One Services, or use them for providing services to a third party, or grant any rights in and to the Talon.One software or documentation to a third party in any form, without Talon.One's express prior written consent and unless all respective fees have been paid and all of Talon.One's other conditions have been met;
(f) not remove, modify or make illegible the labels, markers or designations regarding any Intellectual Property Rights of the Talon.One software or documentation;
(h) if Talon.One has protected its Talon.One Services by technical means (e.g. security codes, firewalls, etc.), not circumvent or remove such security measures.
(i) protect its own data by taking appropriate measures and by regularly making backups of its data;
(j) follow Talon.One's instructions as well as the protocols and specifications as requested by Talon.One with regard to the telecommunication/data transmission.
(k) upon receipt of the Talon.One Services, immediately notify Talon.One in writing of any obvious defects. The Customer shall provide Talon.One with all documents necessary for the analysis and debugging attempts and shall provide Talon.One with access to the Customer's servers, if necessary.
(l) confirm, represent and warrant that all personal as well as other relevant contractual information provided by the Customer during the conclusion of the Contract is true, complete and correct. The Customer is responsible for any disadvantages or damages incurred as a result of providing false, incorrect, incomplete or outdated information. The Customer is obliged to promptly inform Talon.One about any changes to this data and/or to update altered data in its user account.
5.2 If Talon.One's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, Talon.One shall have the right to suspend performance of the Talon.One Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Talon.One's performance of any of its obligations herein;
(b) Talon.One shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Talon.One's failure or delay to perform any of its obligations as set out in this clause 5.2; and
(c) the Customer shall reimburse Talon.One on written demand for any costs or losses sustained or incurred by Talon.One arising directly or indirectly from the Customer Default.
6. Fees, Payment
6.1 The Fees for the Talon.One Services are set out in the applicable Order Form, Web Application Order or Talon.One's current valid price lists. All Fees are in Singapore Dollars, unless another currency is explicitly agreed. Unless explicitly stated otherwise, all Fees are quoted exclusive of the statutory goods and services tax (GST) applicable at the time. Where GST is applicable, it will be added to the quoted Fees. Talon.One will invoice the Customer in advance and otherwise in accordance with the relevant Order Form. If the Customer places a Web Application Order via its customer account in the Talon.One Self Service Portal, Talon.One accepts the payment methods as shown in the customer account (e.g. payment by credit card). When paying by credit card, the credit card on file will be charged with the amount indicated on the Order.
6.2 Invoices will be sent to the Customer via mail or in electronic form, unless expressly agreed otherwise.
6.3 The Customer shall pay each invoice submitted by Talon.One:
(a) within 15 days of the date of the invoice (unless stated differently in the applicable Web Application Order or Order Form); and
(b) in full and in cleared funds to a bank account nominated in writing by Talon.One, and
(c) without deductions created by bank charges using SWIFT payment instruction 'SHA' or 'BEN' (i.e. Customer shall choose 'OUR'), and time for payment shall be of the essence of the Contract.
6.4 If the Customer fails to make a payment due to Talon.One under the Contract by the due date, then, without limiting Talon.One's remedies under clause 10, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.4 will accrue each day at 2% a year above the Oversea-Chinese Banking Corporation (OCBC Bank) base rate from time to time, but at 2% a year for any period when that base rate is below 0%.
6.5 All fees and charges payable by Customer are exclusive of applicable taxes and duties, including VAT, GST and applicable sales tax. If Customer is legally entitled to an exemption from any sales, use, or similar transaction tax, Customer is responsible for providing Talon.One with legally sufficient tax exemption certificates for each taxing jurisdiction. Talon.One shall apply the tax exemption certificates to charges under Customer's account occurring after the date Talon.One receive the tax exemption certificates. If any deduction or withholding is required by law, Customer shall notify Talon.One and shall pay Talon.One any additional amounts necessary to ensure that the net amount that Talon.One receives, after any deduction and withholding, equals the amount, Talon.One would have received if no deduction or withholding had been required. Additionally, Customer shall provide Talon.One with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.
6.6 Further claims and rights to which Talon.One may be entitled in this respect shall remain unaffected.
6.7 Even if the Customer does not use the provided Talon.One Services, the Customer is still obliged to pay the agreed fees.
6.8 As long as Talon.One carries out its Talon.One Services during the term of the Contract, Talon.One is entitled to change the Fees at any time with a six (6) week notice to the beginning of each calendar month by notifying the Customer in writing. If such changes exceed 10% of the agreed fees for the Talon.One Services provided under the Contract, the Customer has the right to terminate the Contract within four (4) weeks from the date of notification of Fee increase. In case the Customer terminates the Contract, Talon.One is entitled to revoke the proposed increase at its sole discretion. If the Customer does not terminate the Contract within four (4) weeks from the date of notification of the Fee increase, the higher Fees are deemed to be accepted.
6.9 Any complaints relating to an invoice must be submitted to Talon.One in writing or by email to firstname.lastname@example.org within four (4) weeks upon receipt of the respective invoice. If no such complaint has been made within four (4) weeks upon receipt of invoice, the invoice is deemed to be accepted. Talon.One will notify the Customer in the invoice about the consequences of failing to submit a timely complaint.
7. Intellectual property rights
7.1 All Intellectual Property Rights in or arising out of or in connection with the Talon.One Services, as well as other services that are provided under the Contract, including source codes, databases, hardware and/or any other material (e.g. documentations, developments, functions, report templates, preparatory material, etc.), shall be owned by Talon.One or its affiliated companies within the Talon.One group of companies.
7.2 Talon.One grants to the Customer the simple and non-exclusive, non-transferable and non-sub licensable right to use the Talon.One Services during the term of the Contract, insofar as this is necessary to use the Talon.One Services according to the respective Order Form or Web Application Order. This right of use shall expire with the termination of the Contract for whatsoever reason.
7.3 Information which may require to achieve interoperability with other programs created independently can be purchased from Talon.One for a fee based on the current price list upon request.
7.4 The Customer undertakes to not violate any applicable laws, in particular third party rights (e.g. copyrights, personality rights, intellectual property rights) or the terms of the Contract while using the Talon.One Services. Insofar, the Customer shall indemnify Talon.One regarding any and all third party claims (including but not limited to all costs and expenses, including reasonable legal fees) that are being asserted against Talon.One.
7.5 The Customer hereby grants Talon.One a non-exclusive license solely during the term of the Order Form to list Customer's name and display the Customer's logo in the customer section of Talon.One's website and to use the Customer's name and logo in Talon.One's customer lists but only to the extent that other customers of Talon.One are also listed on such list. Within 60 days of the Effective Date of this Agreement, the customer agrees to review in good faith a press release announcing the cooperation with Talon.One. Talon.One must obtain written consent by the Customer prior to publication of such release, such consent not to be unreasonably withheld. Any other use by Talon.One of the Customer's name, logo or trademark requires the Customer's prior written consent (such consent not to be unreasonably withheld).
7.6 The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 7.2.
8. Data protection
8.1 The Customer shall comply with the applicable data protection law and the Data Protection Agreement when using the Talon.One Services.
9. Limitation of liability: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
9.1 References to liability in this clause 9 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
9.2 Talon.One does not assume any liability for any damages resulting from a usage other than the intended use of the Talon.One Services. The same applies to any damages resulting from a usage that is not in accordance with Talon.One's instructions and recommendations or any other unauthorised usage.
9.3 Talon.One does not assume any liability for any disturbances, limitations, interruptions or disruptions of the Talon.One Services which are caused by circumstances beyond Talon.One's reasonable control.
9.4 Nothing in this clause 9 shall limit the Customer's payment obligations under the Contract.
9.5 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
9.6 Nothing in the Contract limits any liability which cannot legally be limited, including liability for: (a) death or personal injury caused by negligence; (b) fraud or fraudulent misrepresentation; and (c) breach of the terms implied by section 12 of the Sale of Goods Act, Cap. 393 (title and quiet possession).
9.7 Subject to clause 9.5 (No limitation in respect of deliberate default), and clause 9.6 (Liabilities which cannot legally be limited), Talon.One's total liability to the Customer for all loss or damage shall not exceed SGD25,000.00 per incident of damage and SGD50,000.00 per Contract.
9.8 Subject to clause 9.5 (No limitation in respect of deliberate default), clause 9.2 (No limitation of customer's payment obligations) and clause 9.6 (Liabilities which cannot legally be limited), this clause 9.8 sets out the types of loss that are wholly excluded: (a) loss of profits, whether direct or indirect. (b) loss of sales or business. (c) loss of agreements or contracts. (d) loss of anticipated savings. (e) loss of use or corruption of software, data or information. (f) loss of or damage to goodwill; and (g) indirect or consequential loss.
9.9 Talon.One has given commitments as to compliance of the Talon.One Services with relevant specifications in clause 3. Except for the express representations and warranties set out herein, Talon.One does not make any other express or implied representations or warranties, in fact or in law, including without limitation, any express or implied warranties of quality or fitness for a particular purpose. Except as expressly provided herein, all representations, warranties, terms, conditions, undertakings or inducements whether express, implied, statutory, under common law or otherwise relating in any way to the Talon.One Services, are, to the fullest extent permitted by law, hereby excluded.
9.10 Unless the Customer notifies Talon.One that it intends to make a claim in respect of an event within the notice period, Talon.One shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 6 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
9.11 This clause 9 shall survive termination of the Contract.
10.1 The term of the Contract is determined in the Order Form or Web Application Order. Each party has the right to terminate the Contract by giving 30 days' prior written notice to the end of the agreed term. If such notice is not given, the Contract will be automatically renewed for the same term as agreed, unless terminated or ended otherwise under this clause 10.
10.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so.
(b) the other party takes any step or action in connection with its entering into administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
10.3 Without affecting any other right or remedy available to it, Talon.One may terminate the Contract with immediate effect by giving written notice to the Customer if: (
a) the Customer breaches its obligations under clauses 5.1, 7.4 or 12.3;
(b) the Customer fails to pay any amount due under the Contract on the due date for payment; or
(c) the Customer publishes racist, pornographic, immoral or illegal content on its website and/or content which glorifies or trivialises violence.
10.4 Without affecting any other right or remedy available to it, Talon.One may suspend the supply of Talon.One Services under the Contract or any other contract between the Customer and Talon.One if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment;
(b) the Customer becomes subject to any of the events listed in clause 10.2(c) or clause 10.2(d), or Talon.One reasonably believes that the Customer is about to become subject to any of them; and
(c) Talon.One reasonably believes that the Customer is about to become subject to any of the events listed in clause 10.2(b).
11. Consequences of termination
11.1 On termination of the Contract:
(a) the Customer shall immediately pay to Talon.One all of Talon.One's outstanding unpaid invoices and interest and, in respect of Talon.One Services supplied but for which no invoice has been submitted, Talon.One shall submit an invoice, which shall be payable by the Customer immediately on receipt. In case of termination based on Section 10.4 (a), (b) or (c), then Talon.One shall be entitled to receive all of the Fees due under the applicable Order Form for the entire unexpired terminated portion of the term of such Order Form and any prepaid Fees will not be refunded. If the Order Form is terminated as a result of Talon.One's material breach, then Customer shall be entitled to a refund of the pro rata portion of any prepaid unused subscription fees or any other prepaid, unused fees paid by Customer to Talon.One under this Contract.
(b) the Customer shall delete all copies of the codes that were provided by Talon.One.
11.2 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination of the Contract, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
11.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
12.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from Force Majeure Events, circumstances or causes beyond its reasonable control.
12.2 Assignment and other dealings. (a) Talon.One may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Customer 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 the Contract without the prior written consent of Talon.One.
(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.3(b).
(b) Each party may disclose the other party's confidential information:
(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 12.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
12.4 Entire agreement.
(a) These Conditions, the Order Form and the Web Application Order, constitute 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.
(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
12.5 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract 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 the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
12.7 Severance. If any provision or part-provision of the Contract 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 Contract is deleted under this clause 12.7 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.
(a) Unless stated otherwise in these Conditions, any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by fax to its main fax number or sent by email to the address provided to the other party.
(b) Any notice or communication shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
(iii) if sent by fax or email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 12.8(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause 12.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
12.9 Third party rights.
(a) Unless it expressly states otherwise, the Conditions and the Contract do not give rise to any rights under the Contracts (Rights of Third Parties) Act, Cap 53B to enforce any term of the Conditions or the Contract.
(b) The rights of the parties to rescind or vary the Conditions or the Contract are not subject to the consent of any other person.
12.10 Governing law. These Conditions and the Contract, 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 laws of Singapore. For the avoidance of doubt, the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply to these Conditions.
12.11 Jurisdiction. 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 administered by the Singapore International Arbitration Centre ('SIAC') in accordance with the Arbitration Rules of the Singapore International Arbitration Centre ('SIAC Rulesî' 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 three arbitrators. The language of the arbitration shall be English.
Certain capitalized terms not otherwise defined in this Service Level Addendum, will have the meanings set forth in the Agreement.
The following terms will have the definitions set forth below:
1.1 'System Uptime' will mean the total amount of time during any calendar month, measured in minutes, during which Customer has the ability to access the features and functions of the Subscription Service according to the terms of the Agreement.
1.2 'Scheduled Downtime' will mean the total amount of time during any calendar month, measured in minutes, during which Customer is not able to access the Subscription Service or to deliver Customer Data, according to the terms of the Agreement, due to planned system maintenance performed by Talon.One. Talon.One will provide reasonable prior notice to conduct system maintenance.
1.3 'Unscheduled Downtime' will mean the total amount of time during any calendar month, measured in minutes, during which Customer is not able to access the features and functions of the Subscription Service according to the terms of this Agreement, other than Scheduled Downtime, as defined above.
1.4 'System Availability' will mean, with respect to any particular calendar month, the ratio obtained by subtracting Unscheduled Downtime during such month from the total time during such month, and thereafter dividing the difference so obtained by the total time during such month. Represented algebraically, System Availability for any particular calendar month is determined as follows:
NOTE: 'Total Monthly Time' is deemed to include all minutes in the relevant calendar month, to the extent such minutes are included within the Subscription Term.
2. System Performance
2.1 System Availability: Talon.One will undertake commercially reasonable measures to ensure that System Availability equals or exceeds ninety-nine point nine percent (99.9%) during each calendar month (the 'Service Standard'), provided that any Unscheduled Downtime occurring as a result of circumstances beyond Talon.One's reasonable control including, without limitation, (i) Customer's breach of any provision of this Agreement; (ii) non-compliance by Customer with any provision of this Exhibit; (iii) incompatibility of Customer's equipment or software with the Subscription Service; (iv) poor or inadequate performance of Customer's systems; or (vi) force majeure (as contemplated in the Agreement), shall not be considered toward any reduction in System Availability measurements.
2.2 Access to Support; Response Times: Customers may report any Unscheduled Downtime by email at email@example.com 24 hours per day, 7 days per week. Talon.One classifies problems with the Subscription Service using the following problem classification table:
Upon discovery of a problem both Parties shall promptly inform each other on discovery of the problem according to the classifications above. The following table specifies the reaction steps, which must be performed by Talon.One and Customer by which Talon.One deals with the specific problem reports:
Step 1 - Identification: Talon.One confirms that the problem exists and starts to collect information and performs an analysis.
Step 2 - Temporary Solution: Talon.One processes the problem and provides a temporary work around, if possible, as soon as possible, in order to make the Subscription Service at least partially available.
Step 3 - Problem Resolution: Talon.One provides a final solution to the problem, so that the Subscription Service is fully available again.
Both Parties shall inform each other regularly on the status of the error.
3. Measurement and Reports
3.1 System Monitoring and Measurement: Talon.One will provide for monitoring of System Availability on an ongoing basis. All measurements of System Availability will be calculated on a monthly basis for each calendar month during the Subscription Term.
3.2 System Performance Reports: Upon Customer's request, Talon.One will provide reports to Customer on a quarterly basis setting forth measurements of Unscheduled Downtime and a calculation of System Availability for the relevant preceding quarter. If Customer disagrees with any measurement or other information set forth in any such report, it must so inform Talon.One in writing within five (5) calendar days after receipt thereof, provided that the accuracy of any such report shall be deemed conclusive unless such notice is provided by Customer. Any such notice must indicate specific measurements in dispute and must include a detailed description of the nature of the dispute. Talon.One and Customer agree to attempt to settle any such disputes regarding System Availability and/or related measurements in a timely manner by mutual good faith discussions.
4. Customer Requirements
4.1 Minimum System Requirement: The service standards set forth in this Exhibit assume that Customer, as applicable, meets the minimum system standards established by Talon.One.
4.2 Additional Customer Obligations: Except as otherwise agreed between the Parties in a separate written agreement, Customer is responsible for (i) maintenance and management of its computer network(s), servers, software, and any equipment or services related to maintenance and management of the foregoing; and (ii) correctly configuring Customer's systems in accordance with the terms of this Agreement.
4.3 Reporting of Unscheduled Downtime: Customer must promptly notify Talon.One in the event Unscheduled Downtime occurs. Unscheduled Downtime will be deemed to begin when Talon.One receives accurate notification thereof from Customer, or when Talon.One first becomes aware of such Unscheduled Downtime, whichever first occurs.
4.4 Non-Performance by Customer: The obligations of Talon.One set forth in this Exhibit will be excused to the extent any failures to meet such obligations result in whole or in part from Customer's failure(s) to meet the foregoing requirements.
4.5 Suspension: If the Customer endangers the security, integrity or availability of networks, the Talon.One's servers or the Subscription Service, or if Talon.One has an objective reason to suspect so, then Talon.One may temporarily suspend Customer's access to the Subscription Service. In case of deliberate actions by the Customer, Talon.One may terminate the contract with immediate effect: (a) if the Customer's system or Subscription Service becomes an object of Denial of Service attacks by Customer; (b) if Customer is responsible for sending spam mails or text/multimedia messages (SMS/MMS) via the Subscription Service; or (c) if the Customer saves content on the Talon.One' servers, which violates any laws or infringes on the rights of third parties.
In the event Unscheduled Downtime occurs, Talon.One will undertake commercially reasonable efforts to remedy such Unscheduled Downtime within a commercially reasonable timeframe. If Talon.One is unable to meet the System Availability standards set forth in Section 2.1 of this Exhibit, Customer shall be entitled to the following service credits (ìService Creditsî), provided that the maximum number of Service Credits to be issued by Talon.One to Customer for any and all Unscheduled Downtime shall not exceed one month of service.
Credit shall be applied to the next month's platform fee.
WHEREAS, the Customer and the Contractor entered into the Terms and Conditions for the Supply of Services in respect of the provision of Talon.One services via an Order Form or Web Application Order (as the case may be)(the 'Master Agreement') that may require the Contractor to process Personal Data on behalf of the Customer. NOW THEREFORE, this Personal Data Processing Agreement (the 'Agreement') sets out the additional terms, requirements and conditions on which the Contractor will process Personal Data when providing services under the Master Agreement.
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless the context otherwise requires, the following terms shall have the meanings assigned to them below: i) ìCustomer Personal Dataî means Personal Data which the Customer discloses to the Contractor, or which the Contractor processes on behalf of the Customer as a result of, or in connection with, the provision of the services under the Master Agreement, including: Customer's master data - name, address, email address, phone number; order data - currently selected products, recently ordered products, product categories and types, revenue and delivery status; session data - device, operating system; location data - GPS location; and user master data of Customer's employees with access to the Contractor's platform ñ name, and email address. ii) 'PDPA' means the Personal Data Protection Act 2012; and iii) 'Personal Data' means data, whether true or not, about an individual who can be identified (a) from that data alone; or (b) from that data and other information which the Contractor has or is likely to have access.
1.2 This Agreement is subject to the terms of the Master Agreement and is incorporated into the Master Agreement. Interpretations and defined terms set forth in the Master Agreement apply to the interpretation of this Agreement.
1.3 The Annexes form part of this Agreement and will have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Annexes.
1.4 A reference to writing or written includes faxes and email.
1.5 In the case of conflict or ambiguity between: i) any provision contained in the body of this Agreement and any provision contained in the Annexes, the provisions in the body of this Agreement will prevail; ii) the terms of any accompanying invoices or other documents annexed to this Agreement and any provision contained in the Annexes, the provision contained in the Annexes will prevail; and iii) any of the provisions of this Agreement and the provisions of the Master Agreement, the provisions of this Agreement will prevail.
2. HANDLING AND PROTECTION OF PERSONAL DATA
2.1 Compliance with PDPA
2.3.1 The Contractor shall comply with all its obligations under the PDPA at its own cost.
2.3.2 The Customer warrants and represent that the Contractor's expected use of the Customer Personal Data for the purposes and as specifically instructed by the Customer shall comply with the PDPA.
2.3.3 The Customer retains control of the Personal Data and remains responsible for its compliance obligations under the PDPA, including but not limited to, providing any required notices and obtaining any required consents, and for the written processing instructions it gives to the Contractor.
2.2 Process, Use and Disclosure The Contractor shall only process, use or disclose Customer Personal Data: (i) strictly for the purposes of fulfilling its obligations and providing the services required under the Master Agreement and any other purposes specifically identified in Annex 1 of this Agreement; (ii) with the Customer's prior written consent; or (iii) when required by law or an order of court, but shall notify the Customer as soon as practicable before complying with such law or order of court at its own costs.
2.3 Transfer of Personal Data outside Singapore
2.3.4 The Contractor shall not transfer Customer Personal Data to a place outside Singapore unless the Customer has explicitly chosen to process data and use Talon.One services on servers outside of Singapore in writing.
2.3.5 If the Customer provides consent, the Contractor shall provide a written undertaking to the Customer that the Customer Personal Data transferred outside Singapore will be protected at a standard that is comparable to that under the PDPA.
2.3.6 If the Contractor transfers Customer Personal Data to any third party overseas, the Contractor shall procure the same written undertaking from such third party.
2.4.1 The Contractor may only authorize a third-party (subcontractor) to process the Personal Data if: (i) the Customer is provided with an opportunity to object to the appointment of each subcontractor within fourteen (14) working days after the Contractor supplies the Customer with full details in writing regarding such subcontractor; (ii) the Contractor enters into a written contract with the subcontractor that contains terms substantially the same as those set out in this Agreement, in particular, in relation to requiring reasonable security arrangements, and, upon the Customer's written request, provides the Customer with copies of the relevant excerpts from such contracts; (iii) the Contractor maintains control over all of the Personal Data it entrusts to the subcontractor; and (iv) the subcontractor's contract terminates automatically on termination of this Agreement for any reason.
2.4.2 The subcontractors approved as at the commencement of this Agreement are as set out in Annex 2. The Contractor must list all approved subcontractors in Annex 2 and include any subcontractor's name and location and the contact information for the person responsible for privacy and data protection compliance.
2.4.3 Where the subcontractor fails to fulfil its obligations under the written agreement with the Contractor which contains terms substantially the same as those set out in this Agreement, the Contractor remains fully liable to the Customer for the subcontractor's performance of its agreement obligations.
2.4.4 The parties agree that the Contractor will be deemed by them to control legally any Customer Personal Data controlled practically by or in the possession of its subcontractors.
2.5 Security Measures
2.5.1 The Contractor shall protect Customer Personal Data in the Contractor's control or possession by making reasonable security arrangements (including, where appropriate, physical, administrative, procedural and information & communications technology measures) to prevent: (i) unauthorized or accidental access, collection, use, disclosure, copying, modification, disposal or destruction of Customer Personal Data, or other similar risks; and (ii) the loss of any storage medium or device on which Customer Personal Data is stored.
2.5.2 The Contractor shall only permit authorized personnel to access Customer Personal Data on a need to know basis.
2.5.3 The Contractor shall ensure that the authorized personnel: (i) are informed of the confidential nature of the Customer Personal Data and are bound by written confidentiality obligations and use restrictions in respect of the Customer Personal Data; (ii) have undertaken training on the PDPA and how it relates to their handling of Personal Data and how it applies to their particular duties; and (iii) are aware both of the Contractor's duties and their personal duties and obligations under the PDPA and this Agreement.
2.6 Access to Personal Data
The Contractor shall provide the Customer with access to the Customer Personal Data that the Contractor has in its possession or control, as soon as practicable upon Customer's written request.
2.7 Accuracy and Correction of Personal Data
Where the Customer provides Customer Personal Data to the Contractor, the Customer shall make reasonable effort to ensure that the Customer Personal Data is accurate and complete before providing the same to the Contractor. The Contractor shall put in place adequate measures to ensure that the Customer Personal Data in its possession or control remain or is otherwise accurate and complete. In any case, the Contractor shall take steps to correct any errors in the Customer Personal Data, as soon as practicable upon the Customer's written request.
2.8 Retention of Personal Data
2.8.1 The Contractor shall not retain Customer Personal Data (or any documents or records containing Customer Personal Data, electronic or otherwise) for any period of time longer than is necessary to serve the purposes of this Agreement.
2.8.2 The Contractor shall, upon the request of the Customer: (i) return to the Customer, all Customer Personal Data; or (ii) delete all Customer Personal Data in its possession, and, after returning or deleting all Customer Personal Data, provide the Customer with written confirmation that it no longer possesses any Customer Personal Data.
2.8.3 Where applicable, the Contractor shall also instruct all third parties to whom it has disclosed Customer Personal Data for the purposes of this Agreement to return to the Contractor or delete, such Customer Personal Data.
2.9 Notification of Breach
Where the Contractor has reason to believe that a data breach has occurred in relation to the Customer Personal Data that it is processing on behalf of the Customer, the Contractor must without undue delay notify the Customer of the occurrence of the data breach.
The Contractor shall indemnify the Customer and its officers, employees and agents, against all actions, claims, demands, losses, damages, statutory penalties, expenses and cost (including legal costs on an indemnity basis), in respect of: (i) the Contractor's breach of Clauses 2.2 to 2.9; or (ii) any act, omission or negligence of the Contractor or its subcontractor that causes or results in the Customer being in breach of the PDPA.
3.1 This Agreement shall remain in full force and effect so long as: (i) the Master Agreement remains in effect; or (ii) the Contractor retains any of the Customer Personal Data related to the Master Agreement in its possession or control.
3.2 Any provision of this Agreement that expressly or by implication should come into or continue in force on or after termination of the Master Agreement in order to protect the Customer Personal Data shall remain in full force and effect.
3.3 The Contractor's failure to comply with the terms of this Agreement is a material breach of the Master Agreement. In such event, the Customer may terminate any part of the Master Agreement involving the processing of the Customer Personal Data effective immediately on written notice to the Contractor without further liability or obligation of the Customer.
3.4 If a change in the PDPA prevents either party from fulfilling all or part of its Master Agreement obligations, the parties may agree to suspend the processing of the Customer Personal Data until that processing complies with the new requirements. If the parties are unable to bring the Customer Personal Data processing into compliance with the PDPA within 30 days, either party may terminate the Master Agreement with immediate effect on written notice to the other party.
4.1 Any notice or other communication given to a party under or in connection with this Agreement must be in writing and delivered to: For the Customer: As in the Order Form For the Contractor: As in the Order Form
4.2 Clause 4.1 above does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
5. GOVERNING LAW AND JURISDICTION
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 administered by the Singapore International Arbitration Centre (ìSIACî) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (ìSIAC Rulesî) 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 three arbitrators. The language of the arbitration shall be English.
Automated processing of promotional activities (e.g. creation of coupon codes) for the Customer.
Access control of the Contractor's platform.
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