General Services Terms & Conditions
1. DEFINITIONS AND INTERPRETATION
“Acclivis Equipment” means any and all computer equipment, software, networking and data communications hardware or other materials used at the Site as integrated with the Services and which is owned and controlled by Acclivis or which is leased by a third party to Acclivis.
“Additional Services” means the additional services requested by Customer as described in the relevant Service Order pursuant to Clause 20.
“Authorised Users” means the users of the Customer designated by Customer who are authorised to access and use the Services.
“Business Day(s)” means a day that is not a Saturday, Sunday or a gazetted public holiday in Singapore.
“Change” means any change requested by the Customer to the agreed Services, requirements specifications or Service Levels as set out in the Services Agreement and his Terms and Conditions
“Commencement Date” means the date so specified in the Services Agreement.
“Confidential Information” means (a) proprietary information or material including but not limited to performance, sales, customer, financial, human resource, process, Customer Data, management, contractual, project documentation, know-how, ideas, concepts, strategy, business plan, technology, manufacturing processes, industrial, marketing and commercial knowledge of a confidential nature, pricing, cost, rates and technical data indicated “Confidential”, “Restricted” or with such other restrictive marking; (b) proprietary software including source code and associated documentation; or (c) verbal discussion or other information of an intangible nature identified as confidential at the time of disclosure or reasonably understood to be of a proprietary or confidential nature.
“Core Services” means the services described in the Services Agreement or as the Parties may otherwise agree in writing to amend or supplement from time to time pursuant to the terms of this Terms and Conditions.
“Core Services Charges” means the charges payable for Core Services.
“Customer Data” has the meaning ascribed to it in Clause 9.4
“Customer Equipment” means any and all computer equipment, software, networking and data communications hardware or other materials used at the Site as integrated with the Services other than Acclivis Equipment.
“Customer Licensed Software” means software, either procured by Acclivis on the Customer’s behalf or procured by the Customer directly, in connection with the Services and which is licensed by a third party to the Customer.
“Customer Third Party Contracts” means agreements (whether procured by Acclivis on the Customer’s behalf or not) entered into between the Customer and third parties for the provision of goods or services in connection with the Customer Hardware or Customer Licensed Software or parts thereof, including but not limited to planning, design, procurement, implementation, operation, support or maintenance.
“Designated Coordinator” means the representative or their nominee as varied from time to time by notification by one Party to the other, who shall issue and receive notices as required by Services Agreement for the respective Parties and who shall generally ensure effective communications between the Parties.
“Due Date” has the meaning ascribed to it in Clause 7.1
“Equipment” means the network hardware and computer hardware provided by Acclivis as set out in the Services Agreement and in the Service Orders. .
“Exclusions” means the matters and circumstances which represent exclusions from Acclivis’ scope of responsibility and liability under the Services Agreement and this Terms and Conditions.
“Fees” means the Core Services Charges and the Service Order Charges or the applicable Service Order (as the case may be).
“Force Majeure” means a circumstance beyond the reasonable control of the Parties which results in a Party being unable to observe or perform on time an obligation under the Agreement. Such circumstances will include but will not be limited to:
(a) Acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster; and
(b) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution;
“Initial Term” has the meaning ascribed to it in the Services Agreement.
“Key Personnel” means the individuals in employment or under engagement with either Party who have been designated as Key Personnel by the other Party.
“Parties” means Acclivis and Customer collectively
“Party” means either Acclivis or Customer
“Purchasing Services” means ad hoc purchases carried out by Acclivis, with the Customer’s consent, to acquire goods and services associated with the Services in the Services Agreement and this Terms and Conditions.
“Reimbursable Expenses” means those expenses incurred by Acclivis in connection with the provision of the Services which are to be reimbursed by the Customer in accordance with the terms of the Services Agreement
“Services” means all goods and/or services to be provided by Acclivis to the Customer pursuant to the Services Agreement , more particularly described in the relevant Schedules attached hereto and/or Service Order (if any).
“Service Levels” means the level of service to be provided by Acclivis as specified in the Services Agreement..
“Service Order” means a service order entered into between Acclivis and Customer pursuant to Clause 20 in the Terms and Conditions..
“Service Order Charges” means the charges payable for the service(s) as set out in a Service Order.
“Service Order Effective Date” means the effective date of commencement of an applicable Service Order as stated in the Service Order.
“Service Request” means any written request by either party for Additional Services or for any Change.
“Site” means the location (which may either be at the Customer’s, Acclivis’ or such other agreed third party’s premises) for the performance of the Services as specified in the Services Agreement.
“Software” means the system software for use and operation in conjunction with the Equipment. .
“System” means the computer system comprising Equipment and Software supplied, installed and delivered under the Services Agreement by Acclivis to the Customer.
“Term” has the meaning ascribed to it in Clause 3.1
“Third Party Provider” means any third party service provider supplying services to the Customer, upon whom Acclivis’ performance of the Services may be dependent.
“User Code” means the unique identification code assigned by Acclivis to the Customer to allow the Customer to access the Service.
1.2. In this Terms and Conditions :
(a) the headings in this Terms and Conditions are for ease of reference only and shall not affect its interpretation;
(b) references to a clause shall be construed as references to a clause of this Terms and Conditions;
(c) references to a statutory provision include a reference to that statutory provision as from time to time amended, extended or re-enacted and any regulations made under it provided that in the event that the amendment, extension or re-enactment of any statutory provision or introduction of any new statutory provision has a material impact on the obligations of either party, the parties will negotiate in good faith to agree such amendments to this Terms and Conditions as may be appropriate in the circumstances;
(d) words importing the singular include the plural and vice versa, words importing a gender include other genders and references to a person shall be construed as including an individual, firm, body corporate, association (whether incorporated or not), government and governmental, semi-governmental and local authority or agency; and
(e) references to currency are references to Singapore dollars unless otherwise stated.
1.3. Initial Capitalised terms used in this Terms and Conditions but are not otherwise defined shall have the meaning given in the Services Agreement.
2. PRECEDENCE OF DOCUMENTS
2.1. In the event of any conflict between the provisions contained in two or more of the aforesaid documents forming the entire agreement, the terms of the documents will take precedence in the following order and the document lower in the order of precedence will where possible be read down to resolve such conflict. If the conflict remains incapable of resolution by reading down, the conflicting provisions will be severed from the document lower in the order of precedence without otherwise diminishing the enforceability of the remaining provisions of that document.
(a) The terms of the applicable Service Order (if any) shall prevail save for Clauses 11 (Intellectual Property Rights), 13 (Confidentiality), 16 (Limitation of Liability), 17 (Disclaimer), 18 (Warranty), 19 (Indemnities), and Clause 22 to 27 of this Terms and Conditions which shall take precedence over conflicting provisions in the relevant Service Order.
(b) The terms of the relevant Schedule shall prevail save for Clauses 11 (Intellectual Property Rights), 13 (Confidentiality), 16 (Limitation of Liability), 17 (Disclaimer), 18 (Warranty), 19 (Indemnities) and Clauses 22 to 27 of this Terms and Conditions which shall take precedence over conflicting provisions in the relevant Schedule.
(c) The terms of this Terms and Conditions.
3.1. Acclivis shall provide the Services in accordance with the specification and/or Service Levels to the Customer during the Term of this Terms and Conditions.
3.2. Without limiting the foregoing, Acclivis will at all times during the continuance of this Terms and Conditions provide an adequate number of suitably qualified and experienced personnel to provide the Services and comply with its obligations under this Terms and Conditions.
3.3. Where requested and required by Customer, Acclivis may procure the Customer Licensed Software for the purposes of delivery and installation in accordance with the Services. The Customer Licensed Software is supplied subject to the terms of the relevant Customer Third Party Contracts. The Customer undertakes to comply with the terms of the Customer Third Party Contracts and, without limiting the foregoing, shall fully indemnify the Supplier in respect of any liability to a third party arising out of a breach by the Customer of terms of the Customer Third Party Contracts.
3.4. Acclivis shall assign a User Code to the Customer to allow the Customer access to the certain Service. Acclivis shall have the absolute discretion to change the User Code and forthwith assign a new User Code to the Customer where Acclivis has reason to believe the User Code has been compromised and/or used by a third party without the knowledge, consent, permission of the Customer.
3.5. In the event compliance by Acclivis with its Services obligations under this Terms and Conditions is in part dependent upon (i) Customer executes Customer’s Third Party Contracts (if any); (ii) third parties complying with their obligations under any Customer’s Third Party Contracts; and/or (iii) procurement of authorisation for Acclivis to act in respect of Customer’s third party contracts, compliance by Acclivis with its Services obligations is subject to compliance with the said (i), (ii) and (iii) obligations.
3.6. Customer shall ensure that it observes its obligations contained in the relevant clause described under the heading "Customer's Obligations" in the Services Agreement. Customer acknowledges that Acclivis will not be responsible for any failure to meet a Service Level if the non-achievement is due, in whole or in part, to Customer not observing its obligations or if the reason for the non-achievement falls within the Exclusions.
4. SERVICE LEVELS
4.1. Acclivis shall provide the applicable Services in accordance with the Service Levels in the Services Agreement.
4.2. If Acclivis fails to achieve the said Service Levels in any whole calendar month, and the reason for the non-achievement of the Service Level is not set out in the Services Agreement as an Exclusion, then the Customer shall be entitled to receive a credit against the monthly contract value (“Service Credit”) as outlined in the Services Agreement, if applicable.
4.3. The Service Credit value shall be calculated in accordance to the Services Agreement.
5. CUSTOMER’S OBLIGATIONS
5.1. Where the Site is located at a premises designated by Customer, unless otherwise agreed, Customer shall ensure during the appropriate working hours to enable Acclivis to comply with its obligations under this Terms and Conditions:
(a) Acclivis’ employees engaged in connection with this Terms and Conditions have full and safe access to the relevant areas of the Site;
(b) Acclivis’ employees are provided with all information, facilities, services and accessories reasonably required; and
(c) upon Acclivis’ request, Customer shall make available a suitably qualified or informed representative, agent or employee to accompany Acclivis’ employees and to advise Acclivis on access or on any other matter within the Customer’s knowledge or control;
5.2. Customer shall be responsible and Acclivis shall not be held responsible for all information, data and material that is uploaded, posted, published, transmitted, stored, retrieved, reproduced or distributed through the Service.
5.3. Where applicable, the Customer’s Authorised Users shall receive Authorised User accounts to access and use the Services. The Customer shall:
(a) be solely responsible for any activity conducted or any information transmitted through an Authorised User account;
(b) ensure that all Authorised Users of the Service shall comply with and observe the terms and conditions of the Agreement;
(c) immediately notify the Supplier if it becomes aware of or has reason to believe that there is any unauthorised use of an Authorised User’s account or any other breach of security;
(d) ensure that the Authorised User accounts and the Services therein are accessed and used by authorised parties, and in particular, not to reveal or share the Authorised User accounts with any unauthorised third party and take all such steps as may be necessary to ensure its continued security and to prevent any unauthorised access or use;
(e) co-operate with Acclivis in all such security investigations, indemnify, defend and hold harmless Acclivis for any liability or expense arising from such use or misuse caused by Customer’s negligence, act or omission; and
(f) comply with all usage instructions and guidelines in respect of the use of the Services that may be published from time to time by Acclivis.
6.1. The Parties agree that where the Customer desires to Additional Services, then the Customer and Acclivis shall abide by the “Service Order” process described in Clause 20.
7. FEES AND TERMS OF PAYMENT
7.1. In consideration of the provision of the Services by Acclivis, Acclivis shall be entitled to invoice the Customer and the Customer agrees to pay the Fees and Reimbursable Expenses specified in the relevant Schedule and Service Order (as the case may be). Unless otherwise specified in the relevant Schedule or Service Order, all payments for the undisputed Fees, Reimbursable Expenses and any other additional sums under the Services Agreement shall be made within thirty (30) days from the date of Acclivis’ invoice (the “Due Date”). At Acclivis’ election, all payments to Acclivis hereunder shall be remitted by telegraphic funds transfer to the Acclivis nominated bank account.
7.2. Where an item is not specifically included in a Service Order (including, for the avoidance of doubt, those items specifically excluded from the scope of Services in the Services Agreement and it is necessary to incur a cost for that item, the Customer shall reimburse Acclivis for the cost of the item provided Acclivis has obtained the written approval of the Customer prior to incurring the cost.
7.3. The Customer has no obligation to pay Acclivis any Fee or to reimburse any Reimbursable Expense unless the Customer receives a correctly rendered invoice from Acclivis:
(a) in which the specified Fee or Reimbursable Expense is correctly calculated and due for payment;
(b) in a format that enables the Customer to identify the goods or services to which the invoice relates and the Fee or Reimbursable Expense and Tax payable in respect of those goods or services;
(c) accompanied by any verifying supporting documentation that is reasonably necessary or reasonably requested in advance by the Customer; and
(d) issued to the Customer’s Designated Coordinator.
7.4. (a) Any invoice not disputed by Customer within ten (10) Business Days of the date of receipt of invoice shall be deemed accepted by the Customer.
(b) If the Customer, in good faith, disputes an invoice, in whole or in part whether that invoice has been paid in whole or in part, it shall disclose its grounds for dispute to Acclivis within ten (10) Business Days after receipt of the invoice with reasonable supporting documentation to substantiate such dispute.
7.5. Acclivis may, at its sole discretion, impose an interest charge for any delayed payment at the rate of one and a half per cent (1.5%) per month for the period commencing from the date of each outstanding invoice until each such invoice has been paid in full.
7.6. If any new tax or levy is introduced by government, excluding income tax changes, the resultant variation in cost of providing the Services under the Services Agreement shall be taken into account by way of an adjustment to rates contained herein by the amount equal to the cost variation resultant from the new tax or levy.
8.1. All payments made to Acclivis shall be in the currency stated in the relevant Schedule or Service Order (as the case may be), and unless otherwise stated in the relevant Schedule or Service Order, shall be exclusive of any sales taxes, goods and service tax (GST), duties, shipping, withholding tax, handling, insurance, brokerage, and any other fees and charges of any jurisdiction which may be imposed on or in respect of the Services provided by Acclivis to the Customer. Unless otherwise stated in the relevant Schedule or Service Order, the Customer shall pay such taxes, fees and charges immediately as and when they fall due with the exception of taxes based upon Acclivis’ net income.
8.2. In the event that the Customer is required under an applicable law to make a deduction or withholding from any amount paid or payable to Acclivis, the Customer shall:
(a) notify Acclivis of the obligation as soon as the Customer becomes aware of it;
(b) ensure that the deduction, withholding or payment does not exceed the minimum amount required by the applicable law;
(c) pay to the relevant government body the full amount of the deduction, withholding or payment by the due date and promptly deliver to Acclivis a copy of any receipt, certificate or other proof of payment satisfactory to Acclivis; and
(d) pay Acclivis, at the time that the payment to Acclivis is due, an additional amount which ensures that, after the deduction or withholding is made, Acclivis receives a net sum equal to the sum Acclivis would have received if the deduction or withholding had not been made
9. TITLE TO EQUIPMENT AND OWNERSHIP IN DATA
9.1. In the event that Customer purchases and acquires the Equipment pursuant to the Services Agreement, unless otherwise stated in the relevant Schedule or Service Order, title to the Equipment shall not pass to the Customer but shall be retained by Acclivis until full payment for the Equipment has been received by the Acclivis.
9.2. The ownership and title of Customer Equipment, unless otherwise stated, shall always belong to Customer or its third party licensor, as the case may be.
9.3. Except for Clauses 9.1, 9.2 and Customer Licensed Software, the ownership of the Equipment and Software shall belong to Acclivis or its licensor, as the case may be.
9.4. Data files created by the processing of the Customer's data (“Customer Data”) are agreed to be the sole and exclusive property of the Customer. Acclivis shall use all reasonable endeavours to ensure the physical safety and integrity of the Customer's data. Acclivis is authorised and given the full right to use the Customer Data for the purposes of this Terms and Conditions and Services Agreement.
10. PERSONAL DATA PROTECTION
10.1. Each Party shall comply with the Personal Data Protection Act 2012 (“PDPA”) and all subsidiary legislation related thereto (collectively “Data Protection Legislation”) with regard to any and all Personal Data (as defined in the PDPA) that it receives from the other Party.
10.2. Each Party (“Receiving Party”) agrees that when dealing with Personal Data received from the other Party (“Disclosing Party”), it shall:
(a) only use Personal Data in accordance with the purposes for which the Disclosing Party disclosed the Personal Data, in accordance with the instructions of the Disclosing Party or as is necessary for Customer to fulfil its obligations under the Data Protection Legislation;
(b) take appropriate technical and organisational measures to protect Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access and against all other unlawful forms of processing. Such measures shall ensure a level of security appropriate to the risks represented by the processing and the nature of the Personal Data to be protected, having regard to the state of the art and the cost of implementation;
(c) give Disclosing Party notice in writing as soon as reasonably practicable should it be aware of, or reasonably suspect, that any of the events referred to in Clause 10.2(b) has occurred and shall promptly take all steps necessary to remedy the event and prevent its re-occurrence;
(d) not retain Personal Data for any longer than is necessary for the purposes for which Disclosing Party disclosed the Personal Data and to return or destroy all Personal Data as instructed by Disclosing Party upon the expiration or earlier termination of the Services Agreement;
(e) limit disclosure of such Personal Data to its employees on a need to know basis and only for the purposes of processing for which such Personal Data was disclosed by Disclosing Party; and
(f) not transfer the Personal Data to another country without prior written consent from Disclosing Party.
10.3. Notwithstanding anything to the contrary, Receiving Party undertakes to indemnify and at all times hereafter to keep Disclosing Party indemnified against any and all losses, damages, actions, proceedings, costs, claims, demands, liabilities (including full legal costs on a solicitor and own client basis) which may be suffered or incurred by Disclosing Party or asserted against Disclosing Party by any person, party or entity whatsoever, in respect of any matter or event whatsoever arising out of, in the course of, by reason of or in respect of any breach of any of the provisions in this clause.
11. INTELLECTUAL PROPERTY RIGHTS
11.1. Unless otherwise stated to the contrary, Customer understands and agrees that all title, ownership and intellectual property rights and interests in and relating to any and all Equipment (other than Customer Equipment), software, ideas, know-how, methodologies, technologies, techniques and documentation materials used in providing the Services, the System and derivative works thereof vest solely in Acclivis, its suppliers or licensors (as the case may be).
11.2. The Customer shall not reverse engineer, de-compile, disassemble or otherwise derive the source code of the software delivered under this Terms and Conditions, the Services Agreement and/or the Service Order
11.3. Each Party will not use the trade mark, trade name, logo and/or other mark of the other Party without the prior written consent of such other Party.
12.1. During the term of this Terms and Conditions, Acclivis shall maintain insurance coverage for public liability in an amount not less than S$1 million unless otherwise agreed between the Parties.
13.1. The Parties agree that Confidential Information shall be used only for the sole purpose of discussions concerning, and the undertaking of the obligations herein and will not, without the prior written approval of the other Party, disclose the Confidential Information to a third party.
13.2. The aforesaid restriction on the use or disclosure of such Confidential Information shall not apply to Confidential Information:
(a) already known by the receiving Party without an obligation of confidentiality other than pursuant to this Terms and Conditions, the Services Agreement or Service Order;
(b) that is now in the public domain or subsequently enters the public domain by publication or otherwise through no action or fault of the receiving Party;
(c) lawfully received from a third party without breach of this Terms and Conditions, the Services Agreement or Service Order;
(d) independently developed without use of the disclosing Party’s confidential information; or
(e) required to be disclosed pursuant to listing rules of any recognised stock exchange, a lawful order of a court or government agency, provided the receiving Party provides the disclosing Party with written notice of such order or requirement.
13.3. Each Party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this Terms and Conditions, the Services Agreement and/or Service Order, do not make public or disclose the other Party's Confidential Information.
13.4. Each Party agrees to use the same means it uses to protect its own Confidential Information, but in any event not less than reasonable means, to prevent the disclosure of such Confidential Information to outside parties.
13.5. Each Party agrees to arrange for its employees, agents or sub-contractors engaged in the performance of this Terms and Conditions, the Services Agreement and/or Service Order to execute a suitable confidentiality deed.
13.6. The receiving Party will on demand return to the disclosing Party any documents supplied in connection with this Terms and Conditions within sixty (60) days of the disclosing Party’s written request.
14. DISPUTE RESOLUTION
14.1. Where the Parties find themselves in dispute under this Terms and Conditions, the following process will apply to achieve resolution.
(a) A Party will issue a written notice to the Designated Coordinator of the other Party identifying the matter in dispute and setting out adequate detail to enable a clear understanding of the position taken by the issuing Party (“Dispute Notice”).
(b) The Designated Coordinators of both Parties or their respective nominees will meet within three (3) Business Days of the date of issue of the Dispute Notice, and will cooperate in attempting, at that meeting, to expedite an amicable resolution of the dispute.
(c) Where the dispute remains unresolved after three (3) Business Days from the meeting, then each of the Parties will, within one (1) Business Day, refer the dispute to a senior representative, for example, the Acclivis Chief Executive Officer and the Customer Chief Information Officer, and the senior representatives will meet within three (3) Business Days and use all reasonable commercial endeavours to resolve the dispute.
14.2. In the event that the dispute is unresolved pursuant to Clause 14.1, the matter may be resolved in accordance with Clause 26.2.
15.1. Subject to the Services Agreement period and after the expiry of Initial Term, each Party may terminate this Terms and Conditions and Services Agreement by giving at least ninety (90) days written notice to the other Party.
15.2. Either Party shall be entitled forthwith to terminate the Agreement and/or the relevant Service Order by written notice to the other (a) if that other Party commits any material breach of any of the provisions of this Terms and Conditions, Services Agreement and/or relevant Service Order (including failure to make payment), and fails to remedy the same within 30 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied.
15.3. Either Party shall be entitled to terminate the Agreement and/or the Service Order immediately by written notice if the other Party violates any applicable laws, rules and regulation (including infringement of third party’s intellectual property rights). The defaulting party shall hold harmless and indemnify the non-defaulting party for all claims and damages resulted from violation of laws in this clause.
15.4. Either Party shall be entitled forthwith to terminate the Agreement and all the applicable Service Order by written notice to the other if:
(a) an encumbrancer takes possession or a receiver is appointed over any of the property or assets of that other Party;
(b) that other Party makes any voluntary arrangement with its creditors or fails to pay its debts when they fall due;
(c) that other Party (if a company) goes into liquidation (except for the purposes of amalgamation or reconstruction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other Party under this Terms and Conditions) or (in the case of an individual) goes bankrupt or dies or is otherwise incapacitated from performing his obligations hereunder;
(d) anything which, under the law of any jurisdiction, is analogous to any of the acts or events specified in Clauses 18.5(b), (c) or (d); or
(e) that other Party ceases, or threatens to cease, to carry on business.
16. LIMITATION OF LIABILITY
16.1. Save for breach of confidentiality and to the extent permitted by the laws, in no event will either Party be liable for any indirect, punitive, special, incidental or consequential damages (including loss of profits, saving, loss of data) in connection with or related to this Terms and Conditions, the Services Agreement and/or the Service Order (as the case may be) however arising, in respect of any misrepresentation, breach of term or condition or liability in contract, tort or otherwise, whether or not each Party has been advised of the possibility of such loss.
16.2. Save for breach of confidentiality and to the extent permitted by the laws, each Party’s aggregate liability to the other party for all claims under and in connection with this Terms and Conditions and Services Agreement (including all Service Order executed hereunder) shall not exceed the amount of fees or charges paid by the Customer to Acclivis under this Terms and Conditions and Services Agreement(including all Service Order executed hereunder) for the period of twelve (12) months immediately preceding the date on which the cause of action giving rise to the liability arises.
17.1. Except where expressly provided in this Terms and Conditions and Services Agreement to the contrary, to the extent permitted by the law, no express or implied warranty or condition including without limitation any implied warranty of merchantability, satisfactory quality or fitness for particular purpose are made in relation to the services or deliverables contemplated under this Terms and Conditions, the Services Agreement and/or the Service Order.
18.1. The Parties represent and warrant that they or their authorised representatives have full legal capacity, power and authorisation to enter into this Terms and Conditions.
18.2. Acclivis warrants that all Services will be performed by suitably qualified staff and in accordance with generally accepted industry standards.
18.3. Acclivis warrants that all Services shall comply with the scope of work, Service Level and specification requirements as set out in the applicable Schedule and Service Order (if any).
18.4. In carrying out its obligations under this Terms and Conditions, each party must comply with any relevant statutes, regulations and by-laws which apply in Singapore and the requirements of any government body with authority in Singapore.
18.5. Acclivis warrants to the Customer that those personnel identified as Key Personnel in the Services Agreement, where applicable, will, subject to:
(b) unavailability through illness or injury; or
(c) termination of employment at Acclivis’ instigation for failure to adequately perform services; or
(d) internal Acclivis management determinations where urgency requires,
(e) continue to be assigned by Acclivis to carry out their roles and responsibilities in favour of the Customer without interruption for a period of not less than twelve (12) months from the Commencement Date.
18.6. The Customer represents and warrants that it must only use the Services for lawful purposes and not to use the Service for any illegal or improper purpose (including use in a manner which constitutes a violation or infringement of the rights of any person including rights of confidentiality).
18.7. The Customer must comply with all applicable laws of the Republic of Singapore relating to the Services including regulations and guidelines that are issued by the relevant authority from time to time relating to the Service.
18.8. Customer warrants that it will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone in connection with the Services without first complying with all the applicable export control laws and regulations.
19.1. Acclivis agrees to indemnify, defend and hold harmless the Customer from any and all direct losses (including reasonable costs incurred) arising from or in connection with any of the following:
(a) Any claim against the Customer arising out of or based on the death or bodily injury of any person or loss, destruction, or damage of any real or personal tangible property (but in the case of real or personal tangible property limited to the cost of repair or replacement of the relevant property, whichever is less) caused by Acclivis’ wrongful, negligent, fraudulent, wilful acts or omission.
(b) A claim by a third party against the Customer that the Services or any material used by Acclivis to provide the Services (other than System Software, or other material or software, provided at any time directly or indirectly to Acclivis by the Customer) by Acclivis under this Terms and Conditions infringes a patent, copyright, trade mark, or other intellectual property rights of the third party, subject to the Customer allowing Acclivis to direct any defence and settlement of the said claim.
(c) Acclivis shall not indemnify Customer if the infringement of intellectual property right arises from:
i. use of the Service, material, software or any component thereof in combination by any means and in any form with equipment or computer software not supplied or specifically approved by Acclivis;
ii. use of the Service, material, software or any component thereof in a manner or for a purpose not reasonably contemplated or not authorised by Acclivis;
iii. modifications of the Service, material, software or any component thereof without the prior written consent of Acclivis; or
iv. compliance by Acclivis with Customer’s designs, specifications or instructions.
(d) Where any person makes a claim for patent, trade mark, copyright or other Intellectual Property Right infringement in connection with the provision of Services or materials (including facilities) by Acclivis, Acclivis may modify or cancel the Services or materials, if required, in response to the claim.
19.2. The Customer agrees to indemnify, defend and hold harmless Acclivis from any and all direct losses (including reasonable costs incurred) arising from or in connection with any of the following:
(a) Any claim against Acclivis arising out of or based on the death or bodily injury of any person or loss, destruction, or damage of any real or personal tangible property (but in the case of real or personal tangible property limited to the cost of repair or replacement of the relevant property, whichever is less) caused by the Customer’s negligence, acts or omission.
(b) Any claim against Acclivis arising out of or based on the System Software, or other materials or software, used by Acclivis to provide the Services, and provided at any time directly or indirectly to Acclivis by the Customer, infringes the intellectual property rights of any third party.
(c) Any claim against Acclivis brought by a third party for loss caused by Acclivis while acting within the authorisation granted to Acclivis by the Customer pursuant to this Terms and Conditions.
(d) Any claim or loss Acclivis may suffer by reason of non-observance of any of the terms and conditions of the Agreement or applicable laws (including export control laws and regulations) by the Customer or its Authorised Users.
(e) The obligation of a Party (“Indemnifying Party”) to indemnify the other Party (“Indemnified Party”) under this Clause 19 is subject to the Indemnified Party:
i. notifies the Indemnifying Party in writing promptly of any such infringement/claim, or alleged infringement or claim;
ii. gives the Indemnifying Party the option to solely conduct the defence of such a claim, including negotiations for settlement or compromise prior to the institution of legal proceedings;
iii. provides the Indemnifying Party with all reasonable assistance in conducting the defence of such claim;
iv. if the Indemnifying Party is Acclivis, permits the Indemnifying Party to modify the Service, software or any component at its own expense to render the Service, software or any component thereof non-infringing; and
v. if the Indemnifying Party is Acclivis, authorises the Indemnifying Party to procure for Indemnified Party the authority to continue the use and possession of the Service, software or any component thereof.
20. SERVICE ORDER
20.1. If either party wishes to propose any Additional Services or a Change then it must send a Service Request to the other party, specifying the description and details of the Additional Services or Change request.
20.2. As soon as reasonably practicable after sending or receiving a Service Request and in any event within Twenty (20) Business Days (unless otherwise agreed), Acclivis will provide to the Customer a written proposal that shall include:
(a) a statement of the cost of investigating and preparing a detailed proposal in respect of the Additional Services or Change;
(b) brief details of the likely impact, if any, of the Service Request on any existing Services and Service Levels; and
(c) an estimate of the cost of implementation and on-going operation of the Additional Services or Change, including any alteration of the charges or additional charges payable for the proposed Service Request or additional investment in the System or other infrastructure required.
20.3. If following receipt of the proposal under Clause 20.2 the Customer wishes to proceed with the proposed Service Request it must notify Acclivis in writing, who will as soon as reasonably practicable after receiving that notice and in any event within Twenty (20) Business Days (unless otherwise agreed) provide the Customer with a draft service order in relation to such Service Request including:
(a) full details of the proposed Additional Services or Change including any specifications, special conditions and any variations to the agreement required;
(b) a statement of the cost of implementation and on-going operation of the relevant Additional Services or Change, including any alteration of the charges or additional charges payable for the proposed Additional Services or Change;
(c) a timetable for the implementation, together with any proposals for acceptance testing, of the Additional Services or Change; and
(d) details of any impact of the Additional Services or Change on existing Services and Service Levels.
20.4. The Customer will review the draft service order as soon as reasonably practicable after receiving the draft service order (but in any event within Twenty  Business Days unless otherwise agreed) and will either accept the draft service order as a Service by its delivery of a signed Service Order to Acclivis or reject the draft service order. For the avoidance of doubt, failure by the Customer to respond to a draft service order in accordance with this clause shall not be deemed an approval of the draft service order.
20.5. All costs in relation to any Additional Services or Change, including any alteration of the charges or additional charges payable for the proposed Additional Services or Change, will be as agreed by the parties in the Service Order and calculated in accordance in the Services Agreement
20.6. Acclivis shall not commence work in connection with any Additional Services or Change until the relevant Service Order is agreed by the parties in writing.
20.7. For the avoidance of doubt, there shall be no Service Order granted and no increase to the Fees in respect of any additional work or services requested by Customer which fall within the agreed scope of work, requirements specifications and Services Level as set out in the Schedule but such work / service is omitted or not performed as a result of the default or negligence of Acclivis.
20.8. Except as otherwise agreed in any Service Order, each Service Order shall be governed by the terms and conditions of this Terms and Conditions. The terms and conditions of the Agreement shall be deemed incorporated into each Service Order.
21. NON-SOLICITATION OF PERSONNEL
21.1. During the Term of the Services Agreement , neither Party shall solicit for employment, whether directly or indirectly through an associated or subsidiary company from the date of the Services Agreement until the expiration of twelve (12) months after the expiry or termination of the Services Agreement, the Key Personnel (as described in the Services Agreement), where applicable who is employed or contracted by the other Party and directly involved in the provision or receipt and/or administration of the Services.
21.2. The foregoing restraint will not apply to Key Personnel respond to a general public recruitment advertisement by either Party.
22. FORCE MAJURE
22.1. Except for obligation to make payment for Service delivered, neither Party will be liable for any delay or failure to perform its obligations pursuant to the Services Agreement and/or the applicable Service Orders if such delay or failure to perform is due to Force Majeure.
22.2. If a delay or failure of a Party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that Party's obligations will be suspended.
22.3. If a delay or failure by a Party to perform its obligations due to Force Majeure exceeds sixty (60) days, either Party may immediately terminate the Services Agreement and/or the applicable Service Orders by providing notice in writing to the other Party.
22.4. If the Services Agreement is terminated pursuant to Clause 15.3, Acclivis will refund moneys previously paid by the Customer pursuant to this Terms and Conditions for goods or services not provided by Acclivis to the Customer.
23.1. No right under this Terms and Conditions will be deemed to be waived except by notice in writing signed by each Party.
23.2. A waiver by a Party will not prejudice its rights in respect of any subsequent breach of the Agreement by the other Party.
23.3. Any failure by a Party to enforce any clause of this Terms and Conditions, or any forbearance delay or indulgence granted by a Party, will not be construed as a waiver of that Party’s rights under this Terms and Conditions.
24.1. No variation of the Terms and Conditions and the Services Agreement this Terms and Conditions shall be effective unless made in writing and signed by or on behalf of the Parties. Unless expressly agreed, no variation shall constitute a general waiver of any provisions of this Terms and Conditions, nor shall it affect any rights, obligations or liabilities under or pursuant to this Terms and Conditions which have already accrued up to the date of variation, and the rights and obligations of the Parties under or pursuant to this Terms and Conditions shall remain in full force and effect, except and only to the extent that they are so varied.
25.1. If any provision of this Terms and Conditions, Services Agreement and relevant Service Order (if any) is held invalid, unenforceable or illegal for any reason, this Terms and Conditions, Services Agreement and relevant Service Order will remain otherwise in full force apart from such provision which will be deemed deleted.
26. GOVERNING LAW AND JURISDICTION
26.1. This Terms and Conditions, Services Agreement and relevant Service Order (if any) shall be construed in accordance with and governed by the laws of Singapore excluding its conflict of law principles and the United Nations Convention on Contracts for the International Sale of Goods. A person who is not a party to this Terms and Conditions, Services Agreement and relevant Service Order has no right under the Contracts (Rights of Third Parties) Act (Chapter 53B) to enforce any term.
26.2. The Parties agree to submit to the non-exclusive jurisdiction of the courts of Singapore.
27.1. All notices, demands or other communications required or permitted to be given or made hereunder shall be in writing and delivered personally or sent by prepaid post with recorded delivery, or by facsimile transmission addressed to the Authorized Co-ordinator thereof at its address or at its facsimile number set out in the Services Agreement (or to such other address or facsimile number as a Party may from time to time duly notify the other in writing). Any such notice, demand and/or communication shall be deemed to have been duly served (if delivered personally or given or made by facsimile) immediately or (if given or made by letter to an address within Singapore) three days after posting and in proving the same it shall be sufficient to show that personal delivery was made or that the envelope containing such notice was properly addressed as a prepaid delivery letter or that the facsimile transmission was properly addressed and despatched.
28.1. Neither party shall make any public announcement or press release concerning the Services Agreement other than as required by the relevant authorities of Singapore, stock exchange rules or public company regulations of any Party’s country of organisation.
Notwithstanding the foregoing, in the event that any Party intends to release a public announcement on the entry into of the Services Agreement, prior approval shall be obtained from the other Party prior to its release (such approval not to be unreasonably withheld), and to the extent possible, the other Party shall be consulted and given an opportunity to comment on any such public announcement prior to its release.