Singapore
GENERAL TERMS AND CONDITIONS OF SERVICES

Captivea Singapore - Version 2 - Last Updated 08/02/2024

Captivea Singapore's general terms and conditions of services (“Terms”)

CAPTIVEA provides consulting services, software integration, training, and custom software development for professionals in the field of management software and corporate information systems. The purpose of these General Conditions is to define the terms and conditions for the provision and delivery of services, licensing of software, add-on modules, and the Software Solution made available to the Client.

1. DEFINITIONS AND INTERPRETATION

Agreement: the agreement is composed of the Commercial Proposal, the Order Confirmation and the following Terms.

CAPTIVEA: Captivea Pte. Ltd.

Client: the legal entity that has signed a contract with CAPTIVEA.

Client Information: in relation to a Client, all information which CAPTIVEA obtains as a result of such Client's use of a Service provided by CAPTIVEA or in connection with any contract or agreement between that the Parties, including any information (including opinions) which identifies or which relates to an individual, whether true or not.

Client Request: any request, order or instruction of the Client to CAPTIVEA with respect to any Service. 

Commercial Proposal: any commercial proposal made by CAPTIVEA in response to a Client Request.

Order Confirmation: Client’s acceptance and confirmation of a Commercial Proposal.

Services: all the services offered by CAPTIVEA and described in a Commercial Proposal.

Small Claims Tribunals: the Small Claims Tribunals established by the Small Claims Tribunals Act 1984 and which form part of the Singapore State Courts.

Software: any proprietary technology and software commercialised or integrated by CAPTIVEA.

Intellectual Property Rights: all intellectual property rights including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights.

2. APPLICABILITY

1. These Terms shall govern the provision of services by CAPTIVEA to the Client (each referred to as a “Party” and together as “Parties”)
2. The Agreement supersedes between the Parties all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. 
3. In the event of any conflict between these Terms and the Order Confirmation, these Terms shall prevail, unless the Commercial Proposal expressly states otherwise. 
4. These Terms prevail over any of the Client’s general terms and conditions regardless whether or when Client has submitted a Client Request. Provision of Services to Client does not constitute acceptance of any of Client’s terms and conditions and does not modify or amend these Terms. 
5. These Terms shall remain subject always to such terms, restrictions, limitations and prohibitions under any applicable law as are or may become applicable.
6. CAPTIVEA reserves the right to update and change these Terms at any time.

3. SERVICES

1. CAPTIVEA shall provide the Services to Client in accordance with these Terms.
2. CAPTIVEA shall commit appropriate human and technical resources sufficient to satisfactorily meet the Client Request and shall use reasonable skill and care in the provision of the Services consistent with the standards of practice within the industry.

4. AGREEMENT

1. CAPTIVEA shall issue a Commercial Proposal for any Client Request. Upon Order Confirmation, terms of the Commercial Proposal are binding and supersede any information available on catalogues, brochures, CAPTIVEA website which is provided for information purposes only.
2. The Agreement may be accepted by the Client remotely, and the Client acknowledges that Order Confirmation bearing electronic signature of the Client’s duly authorised representative that is received by CAPTIVEA constitutes evidence of a valid contract and can be enforced by CAPTIVEA accordingly. Electronic acceptance of the Agreement has the same probative value between the Parties as a printed agreement.
3. Unless otherwise agreed between the Parties, the Agreement is effective on the date of the Order Confirmation.

5. LICENSE AND TERM

1. When required as part of the Service, CAPTIVEA grants to Client a license to use the relevant Software for a term of one (1) year from the date of Software installation, unless provided otherwise in the Agreement. 
2. The subscription term for such Software license shall be automatically renewed for a term of one (1) year upon expiry unless either party provides written notice of non-renewal to the other at least three (3) months before expiration of the applicable initial term or then-current renewal term. Each renewal term shall operate under the terms and conditions of the initial term or the then-current terms. 
3. Client acknowledges and agrees that the relevant Software is licensed, not sold, and that CAPTIVEA shall retain at all times exclusive title to the Software and any related patent, trademark, service mark, database right, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.

6. CLIENT’S UNDERTAKINGS

1. The Client shall, whenever required by CAPTIVEA to perform the Services, procure that CAPTIVEA's authorised personnel be permitted to enter any premises occupied or controlled by the Client at such time as may be specified by CAPTIVEA and to remain on such premises for such period as may be required to perform the Services and shall, while CAPTIVEA’s authorised personnel remains at such premises pursuant to this clause, provide or procure the provision of such utilities and space as may be necessary, and ensure a safe working environment, at such premises.
2. The Client undertakes to comply with the Software technical specifications required for the installation of the Software. Software technical specifications shared by CAPTIVEA are for information purposes and subject to the Software editor’s amendment or revision.
3. The Client shall designate one authorised representative who shall be CAPTIVEA’s primary point of contact for all matters relating to the Services.

7. COOPERATION

1. Satisfactory performance of the Agreement and proper provision of the Services require active and continuing cooperation in good faith between the Parties. Consequently, each of the Parties undertakes to: 
2. 1. refrain from any conduct which could affect and/or hinder fulfillment of the other Party's obligations;
   2. swiftly provide all information and documents necessary for implementation of the Agreement; 
   3. alert the other as quickly as possible in the case of difficulty and agree on deploying the best possible solution as promptly as possible. 
3. The Parties shall meet as frequently as necessary to ensure satisfactory conduct of the Agreement. The Parties agree to meet at least once (1) every quarter for thirty (30) minutes. 
4. It is the Client's responsibility to send CAPTIVEA all information that is necessary for the proper provision of the Services and to inform CAPTIVEA of any difficulties of which it may become aware or which its knowledge of its field of activity enable it to foresee as the Services are implemented. 

8. TIMELINE FOR PERFORMANCE

1. CAPTIVEA shall use reasonable efforts to perform the Services within the timeframe specified in the Order Confirmation. Timeframe specified in the Order Confirmation is indicative in nature, unless mentioned otherwise in the Order Confirmation, and CAPTIVEA shall not be held liable for any delay.
2. If any delay is caused by the Client or CAPTIVEA’s supplier, the timeframe shall be adjusted accordingly subject to CAPTIVEA’s availability.

9. PAYMENT TERMS - FEES

1. In consideration of the provision of the Services by CAPTIVEA and the rights granted to Client under the Agreement, Client shall pay the fees set forth in the Agreement.
2. Client agrees to reimburse CAPTIVEA for all reasonable travel and out-of-pocket expenses incurred by CAPTIVEA in connection with the performance of the Services.
3. Fee may be adjusted by CAPTIVEA at any time to take into account increased cost/fee of supplier (editor) or increased cost of servicing. In case of price revision, the Client shall be entitled to terminate the Agreement within thirty (30) day of receipt of the revised price notice. Should the Client fail to notify the termination within such notification period, the revised prices shall be deemed accepted and shall apply to the Parties for the remainder of the term.
4. Fee are payable upon Order Confirmation. Subscription fee are payable yearly at the beginning of each subscription term. All fee shall be paid upon receipt of an invoice by wire transfer in immediately available funds. The Client shall bear any banking fees that may apply.
5. The Client may purchase pre-paid hours (“Purchased PPH”) valid for two (2) years of the purchase date. In case of termination of the Agreement, Purchased PPH are not refundable. Purchased PPH can only be used to offset Services. Disbursement and expenses shall not deducted from the Purchased PPH.
6. Time expected to be spent on any Service Request shall be communicated to the client by CAPTIVEA and Service shall be performed only upon Client’s confirmation, it being specified that only time actually spent by CAPTIVEA shall be deducted from the Purchased PPH. Notwithstanding the above, any Service request requiring, in CAPTIVEA’s professional opinion, four (4) hours or less shall be met by CAPTIVEA and deducted from the Purchased PPH without Client’s prior’s approval. Time spent on completion of a Service Request is deducted by fifteen (15) minute increments.
7. Upon exhaustion of the Purchased PPH, standard hourly fee applicable as at the date of Service will apply to the remaining or additional Service. Services shall be invoiced bimonthly and paid upon receipt of the invoice.
8. In the event payment is not received by CAPTIVEA within seven (7) days after becoming due, CAPTIVEA may (i) charge interest on all late payments, calculated daily and compounded monthly at the lesser of a rate of ten (10) percent per month or the highest rate permissible under applicable law, calculated daily and compounded monthly and (ii) suspend performance for all Services until payment has been made in full. The Client shall also reimburse CAPTIVEA for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees, court costs, and collection agency fees.
9. Security deposit clause for monthly invoiced services on a deferred payment basis: 
10. 1. Security deposit for monthly invoiced services: For monthly invoiced services, a security deposit will be required from the client. The security deposit must be equivalent to at least 100% of the estimated total amount for the month. The payment of the security deposit will be executed through any means of payment accepted by the company
    2. Adjustment of the security deposit: If the invoiced amount during the month exceeds the initial security deposit, the security deposit will be revised. This revision aims to ensure that the security deposit will be equal to at least 100% of the total monthly invoice amount.
    3. Billing of the security deposit and regular monthly billing: At the beginning of the service period, the security deposit will be invoiced to the client. Subsequently, the monthly billing system will come into effect.
    4. At the end of the contract: Upon termination of the contract, the refund of the security deposit will be made by allocating service hours equivalent to the initial amount of the guarantee.  The request for the refund of the deposited guarantee must be initiated within 12 months following the termination to be considered valid. Beyond this period, the request will be deemed void and cannot be accepted.

10. TAXES

Client shall be responsible for all taxes (including goods and services taxes), duties, levies, and other similar charges (and any related interest and penalties) however designated, imposed under any law, payable on any amounts payable by Client hereunder.

11. INTELLECTUAL PROPERTY

All Intellectual Property Rights in and all documents, work product and other materials that are delivered to Client under the Agreement or prepared by or on behalf of CAPTIVEA in the course of performing the Services, including any items identified as such in the Order Confirmation (collectively, the “Deliverables”) shall be owned by CAPTIVEA. CAPTIVEA hereby grants Client a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Client to make reasonable use of the Deliverables and the Services.

12. CONFIDENTIAL INFORMATION

1. All non-public, confidential or proprietary information of CAPTIVEA, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by CAPTIVEA to Client, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Client without the prior written consent of CAPTIVEA. Confidential Information does not include information that is: (i) in the public domain; (ii) known to Client at the time of disclosure; or (iii) rightfully obtained by Client on a non-confidential basis from a third party. 
2. Client agrees to use the Confidential Information only to make use of the Services and Deliverables. 
3. CAPTIVEA shall be entitled to injunctive relief for any violation of this clause.

13. NON-SOLICITATION

1. Client agrees that, during the term of the Agreement and for a period of one (1) year thereafter (“Restricted Period”), they will not directly or indirectly, solicit or attempt to solicit, or attempt to hire any person who is an employee or identified independent contractor of CAPTIVEA.
2. The Parties agree that damages would not be an adequate remedy for any breach of the provisions of this clause 14 and CAPTIVEA may, in addition to the damages, seek remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of the provisions of this clause 14 by the Client. In addition, without limiting CAPTIVEA's remedies for any breach of any restriction set forth in this clause 14, except as required by law, CAPTIVEA will be entitled to payments equal to a full year of billing at the current prevailing rate of the employee equal to 1,920 hours which will be due immediately.

14. REPRESENTATION AND WARRANTY

1. CAPTIVEA represents and warrants to Client that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognised industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement. 
2. CAPTIVEA shall not be liable for a breach of the warranty set forth in clause 16(a) unless Client gives written notice of the defective Services, reasonably described, to CAPTIVEA within ten (10) days of the time when Client discovers or ought to have discovered that the Services were defective.
3. Subject to clause 14(2), CAPTIVEA shall, in its sole discretion, either: (i) repair or re-perform such Services (or the defective part); or (ii) credit or refund the price of such Services at the pro rata contract rate.
4. THE REMEDIES SET FORTH IN CLAUSE 14(3) SHALL BE THE CLIENT’S SOLE AND EXCLUSIVE REMEDY AND CAPTIVEA’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN CLAUSE 14(1). 

15. DISCLAIMER OF WARRANTIES

Except for the warranty set forth in clause 14(1), CAPTIVEA makes no other warranty whatsoever whether express or implied by law, course of dealing, course of performance, usage of trade or otherwise.

16. LIABILITY

Notwithstanding anything to the contrary, CAPTIVEA shall not be liable in any way to any Client, whether at law, in equity or otherwise, and whether such liability is based on breach of contract, indemnity or warranty (express, implied or otherwise), or in tort (including negligence and breach of statutory duty) or otherwise, for: 

1. any loss of revenue, profits, business or custom or any loss of a purely economic nature (whether direct or indirect); or
2. any consequential or indirect loss, howsoever and whenever caused or occurring;
3. for any loss, damage or liability caused by or arising from:
4. 1. any defect, deficiency, deterioration, failure, delay, interruption, cessation or disruption to or of any Service or Software;
   2. the incompatibility or unsuitability of any Software in relation to or in conjunction with any other software, system or equipment, (whether used, maintained or operated by such Client or any other person); or
   3. the retention, collection, use, disclosure and/or publication by CAPTIVEA, in any manner and for any purpose whatsoever, of any information or data (a) relating to such Client or the use of any Service, (b) transmitted through the use of any Service, or (c) provided by such Client to CAPTIVEA.

CAPTIVEA’s aggregate liability arising from, under or relating to each Agreement shall in no event exceed the total of fees received by CAPTIVEA from the Client under the Agreement during the twelve (12) months preceding the damage triggering event. Nothing in this Clause shall apply to exclude or restrict CAPTIVEA’s liability for death or personal injury resulting from negligence.

CAPTIVEA shall carry and maintain in force normal and customary insurance coverage during the Agreement term.

17. TERMINATION

In addition to any remedies that may be provided under this Agreement, CAPTIVEA may terminate this Agreement with immediate effect upon written notice to Client, if Client: 

1. fails to pay any amount when due under this Agreement and such failure continues for ten (10) days after Client’s receipt of written notice of nonpayment;
2. has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or 
3. becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

18. WAIVER

No waiver by CAPTIVEA of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by CAPTIVEA. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

19. FORCE MAJEURE

CAPTIVEA shall not be liable or responsible to Client, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of CAPTIVEA including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lock-downs, strikes or other labor disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of thirty (30) days, Client shall be entitled to give notice in writing to CAPTIVEA to terminate this Agreement.

20. PERSONAL DATA

1. Save with the Client’s agreement, consent or authority (including agreement, consent and authority given or granted pursuant to this clause and/or CAPTIVEA’s data protection policy), CAPTIVEA shall not collect, use or disclose Client Information for any purpose other than the purposes specified in applicable law. In addition to clause 20(1), the Client may give its agreement, consent or authority to all collection, use and disclosure by CAPTIVEA of Client Information, for any purpose(s) requested by CAPTIVEA, by any form of writing or by the acceptance by the Client of any relevant terms and conditions (including in the Agreement) which refer to such agreement, consent or authority.
2. The Client hereby affirmatively agrees, consents to and authorises the collection, use and disclosure, by and on behalf of CAPTIVEA, of all information or data relating to the Client (including any Client Information), in the manner and for the purposes set out in CAPTIVEA’s data protection policy (the terms of which are deemed to be incorporated by reference in this clause), including for the purposes of provisioning and administering services, market research, network and service enhancement, security and risk management, compliance with legal and regulatory requirements and other purposes as further described in CAPTIVEA’s data protection policy, subject to such changes, withdrawals or corrections which may have been separately notified by or to the Client. The provisions of this clause 20(2) shall constitute consent of the Client for the purpose of applicable law, unless otherwise notified in writing by the Client in the procedure as determined by CAPTIVEA from time to time, including as may be described in its data protection policy.
3. Where the Client or its representative is responsible for the provision of or actually provides any information or data relating to one or more natural persons to CAPTIVEA, the Client represents, warrants and undertakes to CAPTIVEA that each such natural person has consented to the collection, use and disclosure of their personal data by and on behalf of CAPTIVEA in the manner and for the purposes set out in any relevant Agreement including CAPTIVEA’s data protection policy, and the Client further, on behalf of each such natural person affirmatively agrees, consents to and authorises the collection, use and disclosure by and on behalf of CAPTIVEA of all such information and data, in such manner and for such purposes. 

21. ASSIGNMENT

Client shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of CAPTIVEA. Any purported assignment or delegation in violation of this clause is null and void. No assignment or delegation relieves Client of any of its obligations under this Agreement.

22. RELATIONSHIP OF THE PARTIES

The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

23. THIRD PARTY RIGHTS

No person who is not a party to an Agreement has any right under the Contracts (Rights of Third Parties) Act 2001 of Singapore to enforce any term of such Agreement.

24. GOVERNING LAW

All matters arising out of or relating to an Agreement are governed by, and construed in accordance with, the laws of Singapore.

25. DISPUTE RESOLUTION

All claims and disputes relating to or arising from an Agreement, including any question regarding the existence, validity or termination of the Agreement shall be resolved in the following manner:

1. by referring such dispute to the Small Claims Tribunals, if the dispute falls within the jurisdiction of the Small Claims Tribunal;
2. if the Parties so agree, by jointly referring such dispute to and finally resolving such dispute by arbitration at the Singapore International Arbitration Centre. Such arbitration shall be conducted in accordance with the Rules of the Singapore International Arbitration Centre (“Rules”) for the time being in force, which Rules are deemed to be incorporated by reference into this clause except as such Rules conflict with the provisions of this clause, in which event the provisions of this clause shall prevail. Any arbitration commenced pursuant to this clause shall be conducted by one arbitrator nominated jointly by the Parties, or failing such joint nomination, by the Chairman for the time being of the Singapore International Arbitration Centre. The language to be used and all written documents provided in any such arbitration shall be in English. Nothing in this clause shall preclude CAPTIVEA from applying for urgent interlocutory relief from any court of competent jurisdiction. The Client agrees that any arbitration award made pursuant to any arbitration commenced pursuant to this clause may be enforced by CAPTIVEA against assets of the Client wherever those assets are located or may be found, and a judgment upon any such arbitration award may be entered into by any court of competent jurisdiction thereof and for this purpose, the Client expressly submits to the jurisdiction of any such court; or
3. by referring such dispute to any court of competent jurisdiction and, for this purpose, the Client hereby submits to the non-exclusive jurisdiction of the Courts of the Republic of Singapore with respect to any and all claims and disputes between the Parties relating to or arising from the Agreement provided always that the Client shall not without the written consent of CAPTIVEA commence or prosecute any action or proceeding in any jurisdiction outside the Republic of Singapore with respect to any such claim or dispute.
4. Regarding the litigation fees, the prevailing party will turn against the defending party and shall be entitled to seek reimbursement its litigation fees. Litigation fees include, not exhaustively, attorney costs, collection fees, notarial fees, court fees, costs of investigation, copying costs, electronic discovery costs, telephone charges, mailing and delivery charges, information technology support charges, consultant and expert witness fees, travel expenses, court reporter fees, and mediator fees, etc.

26. NOTICES

All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses set forth in the Order Confirmation or to such other address that may be designated by the receiving Party in writing. All Notices shall be delivered by personal delivery, nationally recognised overnight courier (with all fees pre-paid), email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this clause.

27. SEVERABILITY

If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

28. SURVIVAL

Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: clause 13 (Confidential Information), clause 14 (Non-Solicitation), clause 15 (Representation and Warranty), clause 17 (Liability), clause 25 (Governing Law), clause 26 (Dispute Resolution), clause 27 (Notices), clause 29 (Survival).

29. AMENDMENT AND MODIFICATION

Unless otherwise specified herein, an Agreement may only be amended or modified in a writing which specifically states that it amends the Agreement and is signed by an authorised representative of each Party.