Updated: 3 March 2020
1. Parties’ Definitions
“The Company” refers to KADDRA Pte Ltd, a private company limited by shares in Singapore.
“The Client” refers to the party who has signed the Quote between themselves and the Company.
“Parties” refers to both the Company and the Client.
2. General Terms of Service
2.1 This Terms of Service (“TOS”) constitute a single, legally binding document, which govern the Client’s use of the Service by the law of Singapore, even though it is electronic and is not physically signed by both Parties.
2.2 The Client warrants that it is a legal entity in good standing in the jurisdiction of its formation.
2.3 By accepting this TOS or by continuing to access or use the Service, the Client acknowledges that the Client has read, understood, and agree to be bound by this TOS.
2.4 The failure of the Company to exercise or enforce any right or provision of this TOS shall not be a waiver of that right.
2.5 From time to time, the Company may amend and modify this TOS without prior notice, and the TOS becomes effective from the date of posting. The Client can review the most recent version of this TOS at any time here.
3. Scope of the Agreement
The Company shall provide the services in connection with the creation and operation of the App as specified in the Quote.
3.2 Grant of right to Use
(a) General. The Company hereby grants to the Client a limited, non-exclusive, non-transferable right to use the Platform during the term of this Agreement, solely for the operation of the App as further specified in the Quote.
(b) White Label Branding. The App shall be branded under the Client’s brand. The name and logo(s) of the Company shall appear on the App unless mutually agreed by the parties otherwise.
(c) Restrictions to Services.
As the Company owns all rights, titles and interests in and to the Services, the Client agrees not to (i) modify, decompile, reverse engineer the Platform or otherwise attempt to obtain the source code for the Platform; (ii) license or allow any other person to use the Platform, unless otherwise agreed between Parties; (iii) use the name or proprietary logo(s) of the Company without the Company’s prior written consent; (iv) use the Services for any purpose other than the operation of the App; (v) use the Services in a manner that interferes with the use of Services by the Company or its other Clients; and/or (vi) without giving at least ninety (90) days’ written notice to the Company, commence development of an electronic platform for the purpose of offering such electronic platform to other Apps, in competition with the App.
The Client may not assign this TOS to any other parties outside the Agreement without the prior written consent of the Company. However, to ensure the App continues functioning for the Client, the Company may assign or transfer this TOS, in whole or in part, without restriction by providing thirty (30) days’ written notice in advance to the Client.
4. Delivery of Platform
4.1 Timetable. The Company shall use reasonable commercial efforts to develop and deliver the customised platform (“Platform”) to the Client in accordance with the timetable set forth in Quote (the “Timetable”). However, the Client understands that the ability of the Company to follow this timetable depends on a number of factors beyond the control of the Company, including but not limited to the timely cooperation of the Client and/or its affiliated parties. The Company shall notify the Client when and if it believes the Timetable should be shortened or extended.
4.2 Client’s Obligations. The Client shall (i) provide the Company with accurate and complete descriptions of its needs and business plans for the functioning of the App, (ii) cooperate with the Company in the development and installation of the customized Platform, (iii) use the Platform only in an operating environment approved by the Company (e.g., hardware and software), (iv) notify the Company of any defects in the Platform, (v) give the Company access to the Platform to troubleshoot and correct any defects, (vi) install any software updates recommended by the Company, and (vii) use reasonable commercial efforts to operate the App in accordance with all applicable laws and regulations.
4.3 Testing and Acceptance. The Company shall notify the Client when the Company believes the customised Platform is ready for use by the Client. Upon receipt of such notice, the Client shall have ten (10) days to test the Platform. If the Client believes that there are defects in the Platform, the Client shall notify the Company, and Parties shall cooperate in fixing any such defects. The Client shall be deemed to have accepted the customised Platform (i) if it does not notify the Company of defects within the ten (10) day period, (ii) when it notifies the Company of its acceptance, or (iii) when it has used the customised Platform in commerce for thirty (30) days, whichever occurs first.
5.1 Definition. Confidential Information shall mean any information of a non-public, confidential or proprietary nature, whether of commercial, financial or technical nature, supplier, product or production-related or otherwise, including but not limited to trade secrets, disclosed by a Party (the Disclosing Party) to the other Party (the Receiving Party). Such information may be disclosed in any form, provided that it is disclosed reasonably in connection with this Agreement.
5.2 Limited use. A Receiving Party shall not use Confidential Information for purposes other than in connection with this Agreement. The Receiving Party shall treat the Disclosing Party's Confidential Information with at least the same degree of care as it would use in respect of its own confidential information of similar importance, but in any event a reasonable level of care. In particular, the Receiving Party shall not disclose, publish, disseminate or make accessible the Disclosing Party's Confidential Information, in whole or in part, in any way or form, to third parties other than to its employees or employees of Affiliates on a need-to-know basis, in connection with the performance of the Receiving Party’s obligations under this Agreement.
5.3 Exemptions. The restrictions and obligations in this clause shall not apply to the Disclosing Party’s Confidential Information, which:
(a) is or has become generally available to the public other than through a breach of this Agreement;
(b) was received by the Receiving Party from a third party and not indirectly from the Disclosing Party in violation of any obligation of secrecy or non-use; and/or
(c) was in the possession of the Receiving Party prior to disclosure or is developed independent from such Confidential Information, as is shown by competent evidence.
5.4 Court orders. In case Confidential Information is required to be disclosed by the Receiving Party in connection with a court order or other legal requirement, the Receiving Party shall be allowed to do so, provided that it shall without delay inform the Disclosing Party in writing of receipt of such order or duty and enable the Disclosing Party reasonably to seek protection against such order or duty.
5.5 Return or destroy. Upon request of a Disclosing Party, the Receiving Party shall without delay (a) return all their copies, samples and extracts of, and all other physical media containing, the Disclosing Party’s Confidential Information, and (b) delete or destroy (and have deleted or destroyed) all automated data containing the Disclosing Party’s Confidential Information.
6. Billing and Fees
6.1 Parties agree that payment by credit card shall be the default payment mode for the Client. The Client hereby agrees to pay the Company the amount as provided in the pro forma invoice for each month, as agreed in the Quote. Unless otherwise agreed between Parties, all fees are non-cancelable and non-refundable.
6.2 The subscription fee is billed in USD and the transaction fee will be charged immediately in the local currency of the Client using the fee % as finally agreed in the Client’s Quote . The monthly pro forma invoice will show the total amount, i.e. subscription and transaction fee, in USD based on a translation usage of the officially published OANDA platform.
6.3 The Client is solely responsible for the payment of all taxes, assessments, tariffs, duties or other fees imposed, assessed or collected by or under the authority of any governmental body (collectively, “Taxes”).
6.4 The Company reserves the right to amend the price/price-related matters, service offerings and/or this Agreement at any time by giving written notice to the Client at least thirty (30) days in advance.
6.5 In the case of any credit card rejection, a late penalty fee of 5% will be charged from the due date.
6.6 If any amounts owed by the Client for the Service are overdue for at least thirty (30) days, the Company may, without limiting the Company’s other rights and remedies, suspend the Client’s access to the Services until such amounts are paid in full. Further delay by the Client will subject the Company to effect the termination clause under Clause 7.
7.1 Either party may terminate this Agreement (including all related Order Forms) if the other party:
(a) Termination for Cause. Fails to perform any of its material obligations hereunder and such failure continues for thirty (30) days following written notice from the non-breaching party. For these purposes (i) any obligation of the Client to pay any amount to the Company shall be treated as a material obligation, and (ii) if the Client fails to make a required payment by the due date as per Clause 6.6 of Billing and Fees, the Company may terminate this Agreement without giving written notice of such failure or any additional failure.
(b) Termination for Cessation of Business. Discontinues the business using the App. The Company may terminate this Agreement by giving at least one hundred eighty (180) days’ notice to the Client if it discontinues providing its platform to all of its clients.
(c) Termination by Client Without Cause. Provides at least thirty (30) days’ written notice before the end of the Initial Term (as per the Quote). After the Initial Term, either Party may terminate this Agreement at any time by giving at least ninety (90) days’ notice to other Party.
7.2 Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this TOS, by law, or otherwise.
7.3 The Client is responsible for disconnecting all data sources connected to the Company upon termination of the service. The Company will not be liable for any security breach of any data leaked if the Client terminated this subscription without disconnecting their data source.
7.4 The Company shall not be liable to the Client or any third party for any modification, suspension or discontinuation of the Service, including any incorrectness or incompleteness of information. All accrued rights to billing and payment shall survive termination of this Agreement.
8.1 The Client shall be solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use all of the Client’s Data.
8.2 The Client shall defend, indemnify and hold harmless the Company, its suppliers and licensors, and its respective subsidiaries, affiliates, officers, agents, employees, representatives, and assigns, from any costs, damages, expenses, and liability caused by the Client’s violation of this Agreement.
8.3 The Client agree to indemnify and hold the Company harmless from and against any loss, cost, damage and expense, including but not limited to solicitors and court costs, arising directly or indirectly from use of the the Company’s Service and/or the Client’s breach of any representation, warranty or restriction contained in this Agreement.
9. Limitation of Liability
9.1 Neither party shall be liable under this Agreement for any of the following losses suffered or incurred by the other party (whether or not such losses were within the contemplation of the parties at the date of this Agreement):
(a) loss of actual or anticipated profits (including loss of profits on contracts);
(b) loss of anticipated savings;
(c) loss of business opportunity;
(d) loss of reputation or damage to goodwill; and
(e) special, indirect or consequential losses.
9.2 Each party’s liability under this Agreement in relation to liability arising from any given event or series of connected events shall be limited to the total amount paid by the Client in the twelve (12) months immediately preceding the month in which the event (or first in a series of connected events) occurred.
10.1 Limited Performance Warranty. The Company warrants that the Platform will perform substantially as demonstrated in the demonstration version and will be free of material errors or defects, and that all Services will be performed in a good and workmanlike manner. In the event the Client believes that the Company is in violation of this limited performance warranty, the Client shall notify the Company and the Company shall use reasonable commercial efforts to correct any error or defect. Further obligations of Parties are found in Clause 4.
10.2 Warranty of Non-Infringement.
(a) In General. The Company warrants that the Client’s use of the Services as anticipated by this Agreement will not infringe on the rights of any third party. If a claim from a third party finds the Client’s use of the Platform infringing on the rights of a third party, the Company will, at its sole expense and as the Client’s agreed sole remedy from the Company, defend against such claim and pay any final judgment against the Client, provided that the Client promptly notifies the Company of any such claim in writing and the Company is given sole control over the defense and settlement of such claim.
(b) Exceptions. The foregoing warranty shall not apply to infringement caused by (i) the Client’s modification or use of the Platform other than as contemplated by the Agreement; (ii) the Client’s failure to use corrections or enhancements made available by the Company to the extent that such corrections or enhancements would make the Platform non-infringing; or (iii) information, specification or materials provided by the Client or third party acting for the Client.
10.3 Compliance with Laws. The Company shall use commercially reasonable efforts to conduct its business, and develop the Platform, in compliance with all applicable laws, rules and regulations.
10.4 No Other Warranties. Except for the warranties set forth in the above sections, the App and the Services are provided by the Company “as is”, without warranty of any kind.
11.1 Independent contractors. The Parties are independent contractors. No Party shall have any power or authority to assume on behalf of or in the name of the other Party any obligations or duties or to bind the other Party to any agreement, obligation or other commitment vis-à-vis any third party.
11.2 Waivers. A failure of a Party to enforce any of the provisions of this Agreement shall in no event be considered a waiver of such provision and a waiver of a provision by a Party shall not preclude that Party from later enforcing any other provision of this Agreement. No waiver by a Party of any breach or default by the other Party shall operate as a waiver of any succeeding breach or other default of the same or any other provision of this Agreement. No waiver shall have any effect unless it is specific and in writing.
11.3 Counterparts. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all counterparts together shall constitute a single Agreement.
11.4 Severability. If any provision in this Agreement is found to be invalid or unenforceable in any respect in any jurisdiction:
(a) the validity or enforceability of such provision shall not in any way be affected in respect of any other jurisdiction and the validity and enforceability of the remaining provisions shall not be affected, unless this Agreement reasonably fails in its essential purpose; and
(b) the Parties shall substitute such provision by a valid and enforceable provision approximating to the greatest extent possible the essential purpose of the invalid or unenforceable provision.
11.5 Assignment. No Party may assign rights or obligations of this Agreement without the consent of the other Party, which consent shall not unreasonably be withheld or delayed; except that the Company may, without such consent, on written notice to the other Party, assign any of its rights or obligations under this Agreement to its Affiliates.
11.6 Third Parties. Save as expressly provided for in this Agreement, a person or entity that is not a party to this Agreement shall have no right to enforce any of its terms under the Contracts (Rights of Third Parties) Act (Cap. 53B).
12. Governing Law and Jurisdiction