BY SELECTING THE “I AGREE” BOX DISPLAYED AS PART OF THE USAGE REGISTRATION PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS GOVERNING YOUR SUBSCRIPTION AND USE OF MODUS CONSULTING’S NDISIGN DIGITAL SIGNATURE SIGN WITH SINGPASS ONLINE SOFTWARE (“NDISIGN ONLINE”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY YOU REPRESENT, YOU CONFIRM THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MUST NOT SELECT THE “I AGREE” BOX AND YOU MAY NOT USE THE SOFTWARE. WITHIN THIS AGREEMENT, NDISIGN ONLINE AND YOU ARE EACH REFERRED TO AS A “PARTY” AND ARE COLLECTIVELY REFERRED TO AS THE “PARTIES” (defined below).

The terms and conditions contained within this subscription agreement (this “Agreement”), are effective as of the date that the Customer has clicked “I Agree” in conjunction with registering to access the NDISIGN ONLINE Service (the “Effective Date”), is by and between you (the “Customer”) and Modus Consulting Pte. Ltd., a private limited company organized and existing under the laws of the Republic of Singapore (UEN 201017193W), with its registered office at 40A Orchard Road, #03-00 MacDonald House, Singapore 238838 (“MODUS”). All capitalized terms used in this Agreement not otherwise defined in context shall have the meanings as set out in Clause 14. The Parties agree as follows:

1. Provision of the Service

1.1 The Service shall be provided to the Customer via an online, web-based service and/or mobile service, provided by NDISIGN ONLINE via https://signdesk.ndisign.sg/  and https://signdesk.sg/  or any other websites and applications designated by MODUS at any time.

1.2 MODUS shall make the Service available during the Term in a professional, competent manner in accordance with this Agreement and the Documentation.

2. Customer’s Use of the Service

2.1 The Customer’s use of the Service is governed by this Agreement and the Documentation made available to the Customer at https://ndisign.sgPDF copies of the Documentation can be provided upon written request by the Customer.

2.2 In order to use the Service, the Customer must complete the registration process with NDISIGN ONLINE to create a “Term Subscription Account” (Account). To create an Account, the Customer will be required to follow the prompts provided after completing the first signature event, after or during any trial period specified, select a subscription period and check the “I Agree” checkbox.

2.3 The Customer must conduct its own due diligence into the Service to ensure that the functionality provided by the Service meets the Customer’s requirements. NDISIGN ONLINE does not warrant or represent that the Service, Documentation and/or the information obtained by the Customer through the Service will meet the Customer’s requirements.

2.4 The customer shall be solely responsible for all activities that occur under its Account.

2.5 The customer undertakes that it will not use the Service in a way that unreasonably degrades the performance of the Service for the Customer’s own purposes or for the purposes of NDISIGN ONLINE or other users.

2.6 NDISIGN ONLINE shall not be liable for any loss or damage resulting from a failure by the Customer to comply with Clause 2.4, and Clause 2.5 above.

2.7 The Customer shall not:

2.7.1 use the Service in violation of applicable Laws;

2.7.2 sell, resell, license, sublicense, distribute, make available, rent or lease any Service, or include any Service in a service bureau or outsourcing offering;

2.7.3 attempt to gain access to the Service or its related systems or networks in a manner not set forth in the Documentation or Supporting Documentation;

2.7.4 interfere with or disrupt the integrity or performance of the Service in whole or in part;

2.7.5 attempt to gain unauthorized access to the Service in whole or in part or its related systems or networks;

2.7.6 permit direct or indirect access to or use of the Service in whole or in part in a way that circumvents a contractual usage limit, or use the Service to access or use any of NDISIGN ONLINE’s intellectual property except as permitted under this Agreement or the Documentation;

2.7.7 copy the Service or any part, feature, function or user interface thereof;

2.7.8 frame or mirror any part of the Service, other than framing on the Customer’s own intranets or otherwise for its own internal business purposes or as permitted in the Documentation;

2.7.9 access the Service in whole or in part in order to build a competitive product or service or to benchmark with a product or service not developed or provided by NDISIGN ONLINE; or

2.7.10 reverse engineer the Service in whole or in part (except to the extent such restriction is prohibited by law).

3. Fees, Invoices, Receipts

Payment

3.1 The Customer will pay all fees specified for the Service as agreed between the Customer and NDISIGN ONLINE.

3.2 Fees for the Service will be indicated to the Customer, in accordance with the relevant subscription or purchase made through the Service and payment shall be remitted via a PayNow^® gateway provided via QRCODE within NDISIGN ONLINE.  Fees shall be due on agreement of the Service and tax receipts provided for download on confirmation of successful payment via PayNow^®.

3.2.1 Optional offers to extend the Service will be provided within each session for signing via an “extend” button.

3.3 Fees are charged in advance (pre-paid) and are non-refundable. Unless required by law, NDISIGN ONLINE will not provide refunds in connection with the NDISIGN ONLINE Services.

3.3.1 Where a Customer pays for more than one (1) month of the Service in advance, NDISIGN ONLINE reserves the right to review the number of signing events that are executed within the Service at any point during the paid period for period.

Future functionality

3.4 The Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by NDISIGN ONLINE regarding future functionality or features.

Taxes

3.5 NDISIGN ONLINE’s fees include GST and this is reflected in the tax receipt provided after each subscription purchase or renewal.

3.6 For the avoidance of doubt, NDISIGN ONLINE is solely responsible for taxes assessable against it based on its income, property and employees.

3.7 All fees payable to NDISIGN ONLINE under their Service Level Agreement are net amounts and are payable in full.

Account Usage Verification

3.8 NDISIGN ONLINE may monitor the usage of the Service on its hosted servers to validate the number of subscriptions and/or purchases made through the Service by the Customer.

Changes to the Pricing

3.9 NDISIGN ONLINE reserves the right to increase pricing for the use of the Service at any time. This will not affect current pre-paid subscriptions and durations.

4. Changes to the Service

4.1 Subject to Clause 8.2.2, NDISIGN ONLINE may from time to time make changes to the functionality of the Service, for example to make improvements to the Service or to, address a security threat. 

5. Proprietary Rights

Ownership and Reservation of Rights to NDISIGN ONLINE Intellectual Property

5.1 NDISIGN ONLINE owns all rights, titles and interest in the Service (and any Intellectual Property Rights therein), and other NDISIGN ONLINE Intellectual Property Rights.  Subject to the limited rights expressly granted in accordance with this Agreement, NDISIGN ONLINE reserves all rights, title and interest in and to the Service, and Supporting Documentation, including all related Intellectual Property Rights.  No Intellectual Property Rights are granted to the Customer in accordance with this Agreement other than as expressly set forth in this Agreement.

Grant of Rights

5.2 NDISIGN ONLINE grants the Customer a non-exclusive, non-transferable right to access and use the Service, solely for the internal business purposes of the Customer and solely during the Term, subject to this Agreement, the payment of the fees in accordance with Clause 3 and within the scope of rights specified by the relevant subscription and/or purchase made through the Service.

Ownership of Customer Data

5.3 As between NDISIGN ONLINE and the Customer, the Customer shall own all right, title and interest in the product of the Service – the signed document.

Customer Input

5.4 NDISIGN ONLINE may adapt and use any Customer Input, provided that NDISIGN ONLINE shall have no obligation to make any improvements based on such Customer Input.  The Customer shall have no obligation to provide Customer Input. NDISIGN ONLINE shall own any Intellectual Property Rights which arise as a result of NDISIGN ONLINE making any changes to the Service or developing any new services based on Customer Input.

Aggregated Data Use

5.5 Subject to Clause 5.4 above, and with the exception of Customer Data, NDISIGN ONLINE owns the aggregated and statistical data derived from the operation of the Service, including, without limitation, the number of records in the Service and the number and types of transactions, and the performance results for the Service (the “Aggregated Data”).  Nothing in this Agreement shall be construed as prohibiting NDISIGN ONLINE from utilizing the Aggregated Data for the purposes of operating NDISIGN ONLINE’s business, provided that NDISIGN ONLINE’s use of Aggregated Data will not reveal the identity, whether directly or indirectly, of any individual or specific data. In no event shall the Aggregated Data include any Personal Data.

6. Confidentiality

6.1 A Party shall not disclose or use any Confidential Information of the other Party except as reasonably necessary to perform its obligations or exercise its rights pursuant to this Agreement except with the other Party’s prior written permission, and only then subject to the disclose agreeing to be bound by binding obligations of confidentiality which shall be no less restrictive than those in this Clause 6.

Protection

6.2 The Customer agrees to protect the Confidential Information of the other Party in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a reasonable standard of care.

Compelled Disclosure

6.3 A disclosure by one Party of Confidential Information of the other Party to the extent required by Law shall not be considered a breach of this Agreement, provided the Party so compelled promptly provides the other Party with prior notice of such compelled disclosure (to the extent legally permitted) and provides reasonable assistance, at the other Party’s cost, if the other Party wishes to contest the disclosure.

Remedies

6.4 If a Party discloses or uses (or threatens to disclose or use) any Confidential Information of the other Party in breach of confidentiality protections in this Agreement, the other Party shall have the right, in addition to any other remedies available, to seek injunctive relief to prohibit such acts, it being acknowledged by the Parties that any other available remedies are inadequate.

Exclusions

6.5 Confidential Information shall not include any information that:

6.5.1 is, or becomes, generally known to the public without breach of any obligation owed to the other Party;

6.5.2 was known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party;

6.5.3 was independently developed by a Party without breach of any obligation owed to the other Party; or

6.5.4 is received from a third party without breach of any obligation owed to the other Party.  Customer Data shall not be subject to the exclusions set forth in this Clause.

7. Customer Data

7.1 Definitions:  In this Clause, the following terms shall have the following meanings:

7.1.1 “Applicable Data Protection Law” shall mean the PERSONAL DATA PROTECTION ACT 2012 (ACT 26 OF 2012), together with any other data protection laws applicable to NDISIGN ONLINE.

7.1.2 Relationship of the parties:  The customer appoints NDISIGN ONLINE as a processor to process the application of digital signatures within a document (the “Permitted Purpose“).  Each party shall comply with the obligations that apply to it under Applicable Data Protection Law.

7.1.3 Data Storage: NDISIGN ONLINE does not collect or retain any Personal Data; NDISIGN ONLINE does not store any customer document or certificate or signature (the “Customer Data”) for the Permitted Purpose.

7.1.4 Security:  The processor shall implement technical and organizational measures to protect the Customer Data during the period it is made available in NDISIGN ONLINE (i) from accidental or unlawful access, and (ii) alteration or unauthorized disclosure (a “Security Incident“).

7.1.5 Cooperation and data subjects’ rights:  NDISIGN ONLINE shall provide reasonable and timely assistance to Customer (at Customer’s expense) to enable Customer to respond to: (i) any request from a data subject to exercise any of its rights under Applicable Data Protection Law (including its rights of access, correction, objection, erasure and data portability, as applicable); and (ii) any other correspondence, enquiry or complaint received from a data subject, regulator or other third party in connection with the processing of the Customer Data.   In the event that any such request, correspondence, enquiry or complaint is made directly to NDISIGN ONLINE, NDISIGN ONLINE shall promptly inform the Customer providing full details of the same.

7.1.6 Data Protection Impact Assessment:  If NDISIGN ONLINE believes or becomes aware that its processing of the Customer Data is likely to result in a high risk to the data protection rights and freedoms of data subjects, it shall inform the Customer and provide reasonable cooperation to the Customer (at the Customer’s expense) in connection with any data protection impact assessment that may be required under Applicable Data Protection Law.

7.1.7 Security incidents:  If it becomes aware of a confirmed Security Incident, NDISIGN ONLINE shall inform Customer without undue delay and shall provide reasonable information and cooperation to the Customer so that the Customer can fulfil any data breach reporting obligations it may have under (and in accordance with the timescales required by) Applicable Data Protection Law.  NDISIGN ONLINE shall further take such any reasonably necessary measures and actions to remedy or mitigate the effects of the Security Incident and shall keep the Customer informed of all material developments in connection with the Security Incident.

7.1.8 Audit:  Upon request and no more than once per calendar year, NDISIGN ONLINE shall provide Customer with reasonable documentation to demonstrate compliance with the obligations of this clause or submit its facilities to audit by Customer. Such activity shall be at Customer’s expense and any audit reports or similar documentation shall be subject to the confidentiality provisions of this Agreement.

7.1.9 Company Obligations: NDISIGN ONLINE shall (a) inform Customer if NDISIGN ONLINE is under a legal obligation to process Customer Data other than on the instructions or with the consent of the Customer before such processing occurs, and (b) inform the Customer if, to NDISIGN ONLINE’s knowledge, any instruction to process Customer Data infringes Applicable Data Protection Law.

8. Warranties & Disclaimers

Warranties

8.1 Each Party warrants that it has the authority to enter into this Agreement and, in connection with its performance of this Agreement, shall comply with all Laws applicable to it related to data privacy, international communications and the transmission of technique or  Data.

8.2 NDISIGN ONLINE warrants that in respect of any Service provided to the Customer:

8.2.1 the Service shall perform materially in accordance with this Agreement and the Documentation; and

8.2.2 the functionality of the Service will not be materially decreased when viewed in the aggregate.

Warranty Remedies

8.3 As the Customer’s exclusive remedy and NDISIGN ONLINE’s sole liability for breach of the warranties Clause 8.2 above:

8.3.1 NDISIGN ONLINE shall correct the non-conforming Service at no additional charge to the Customer; or

8.3.2 in the event NDISIGN ONLINE is unable to correct such deficiencies after good-faith efforts,  NDISIGN ONLINE may refund the Customer amounts paid that are attributable to the defective part of the Service from the date NDISIGN ONLINE received such notice at its discretion.

8.3.3 Notwithstanding the foregoing, NDISIGN ONLINE is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

8.4 To receive warranty remedies, the Customer must promptly report deficiencies in writing to NDISIGN ONLINE, but in any case no later than two (2) days of the date the deficiency is first identified by the Customer.

Disclaimer

8.5 Except as expressly provided in this Agreement and to the maximum extent permitted by applicable law, NDISIGN ONLINE makes no warranties of any kind, whether express or implied, statutory or otherwise, and specifically disclaims all implied warranties, including any warranties of merchantability, fitness for a particular purpose or non-infringement with respect to the Service and/or related Documentation. NDISIGN ONLINE does not warrant that the Service will be error free or uninterrupted. The limited warranties provided in this Agreement are the sole and exclusive warranties provided to the Customer in connection with the provision of the Service.

9. Mutual Indemnification

Indemnification by NDISIGN ONLINE

9.1 NDISIGN ONLINE shall defend, indemnify and hold the Customer harmless against any loss, damage or costs (including reasonable legal fees) in connection with claims, demands, suits, or proceedings (“Claims“) made or brought against the Customer by a third Customer alleging that the use of the Service as contemplated in this Agreement infringes any Intellectual Property Right; provided, however, that the Customer:

9.1.1 promptly gives written notice of the Claim to NDISIGN ONLINE;

9.1.2 gives NDISIGN ONLINE sole control of the defence and settlement of the Claim (provided that NDISIGN ONLINE may not settle any Claim unless it unconditionally releases the Customer of all liability); and

9.1.3 provides to NDISIGN ONLINE, at NDISIGN ONLINE’s cost, all reasonable assistance.

9.2 NDISIGN ONLINE shall not be required to indemnify the Customer to the extent the Claim is caused by:

9.2.1 modification of the Service by the Customer in conflict with the Customer’s obligations or as a result of any prohibited activity as set forth in this Agreement;

9.2.2 use of the Service in a manner inconsistent with the Documentation;

9.2.3 use of the Service in combination with any other product or service not developed or provided by NDISIGN ONLINE; or

9.2.4 use of the Service in a manner not otherwise contemplated by this Agreement.

9.3 If the Customer is prohibited from using the Service or NDISIGN ONLINE reasonably believes it will be prohibited or a claim of infringement will be made, NDISIGN ONLINE shall have the right, at its sole option, to obtain for the Customer the right to continue use of the Service or to replace or modify the Service so that it is no longer infringing.  If neither of the foregoing options is deemed available to NDISIGN ONLINE in its sole discretion, then use of the Service may be terminated at the option of NDISIGN ONLINE and NDISIGN ONLINE’s sole liability shall be to refund any prepaid fees for the Service that were to be provided after the effective date of termination.

Indemnification by Customer

9.4 The Customer shall defend, indemnify and hold NDISIGN ONLINE, its subsidiaries and Affiliates, and its and their respective owners, employees, officers, directors and agents harmless from any loss, damage or costs (including reasonable legal fees) in connection with Claims made or brought against NDISIGN ONLINE by a third Customer arising from an allegation that the Customer Data infringes the rights of, or has caused harm to a third party, or violates any Law, the breach of this Agreement or the warranties set forth in this Agreement, or the improper act, omission or negligence of the Customer provided, however, that NDISIGN ONLINE:

9.4.1 promptly gives written notice of the Claim to the Customer;

9.4.2 gives the Customer sole control of the defence and settlement of the Claim (provided that the Customer may not settle any Claim unless it unconditionally releases NDISIGN ONLINE of all liability); and

9.4.3 provides to the Customer, at the Customer’s cost, all reasonable assistance.

10. Limitation of Liability

Limitation of Liability

10.1 To the maximum extent permitted by law and except with respect to the Customer’s payment obligations, in no event shall either Party’s (or NDISIGN ONLINE’s third party licensors’) aggregate liability arising out of or related to the Agreement, whether in contract, tort or otherwise, exceed the fees actually paid by the Customer to NDISIGN ONLINE in consideration for NDISIGN ONLINE’s Service delivery during the six (6) month period immediately preceding the facts and circumstances from which the claim arose.

10.2 NDISIGN ONLINE shall not exclude or limit in any way NDISIGN ONLINE’s liability to the Customer where it would be unlawful to do so. This includes liability for death or personal injury caused by NDISIGN ONLINE’s negligence or NDISIGN ONLINE’s employees, agents or subcontractors for fraud, fraudulent misrepresentation or for breach of the Customer’s legal rights in relation to the Service.

Exclusion of Damages

10.3 Except with respect to the Customer’s payment obligations, in no event shall either Party have any liability to the other party for any indirect, special, incidental, punitive or consequential damages, however caused, or for any lost profits whether in contract, tort or otherwise, arising out of, or in any way connected with the Service, including but not limited to the use or inability to use the Service, any interruption, inaccuracy, error or omission, even if the party from which damages are being sought or such party’s licensors or subcontractors have been previously advised of the possibility of such loss or damages.

11. Term, Termination and Suspension.

Term of Agreement

11.1 The term of this Agreement commences on the Effective Date and shall continue until the stated term for the current applicable subscription and/or purchase of the Service has expired, unless otherwise terminated under Clause 11.4 below (the “Term“).

11.2 NDISIGN ONLINE may amend these terms from time to time and publish this on the website. Amended terms are effective from the date that they are published as part of an updated Agreement.  Previous versions of this Agreement can be requested via email. Continued use of the Service following any modification constitutes Customer acceptance of the modified Agreement.

11.2.1 Any material changes to these terms will be communicated to the Customer by NDISIGN ONLINE a minimum of 6 weeks before they take effect.

Termination

11.3 Either Party may terminate this Agreement:

11.3.1 Upon thirty (30) days prior written notice to the other Party of a material breach by the other Party if such breach remains uncured at the expiration of such notice period; or

11.3.2 Immediately upon written notice in the event the other becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

11.3.3 NDISIGN ONLINE may terminate this Agreement in the event that the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default no less than seven (7) days after the payment fails.

11.3.4 The Customer has the right to cancel within 14 days of the start of the initial subscription period. The Customer must inform NDISIGN ONLINE within this 14-day period either via telephone on +65 6673 9853or by emailing sales@modus.sg to be eligible for either a partial or full refund. The Customer may be charged for the period which they have used the software before cancellation.

11.3.5 In the event the Agreement is terminated, subscription to the Customer’s Account will be simultaneously terminated.

Effect of Termination

11.4 Upon any termination of this Agreement, the Customer shall, as of the date of such termination:

11.4.1 Immediately cease accessing and otherwise utilizing the Service, except as permitted under Clause 6; and

11.4.2 Termination for any reason shall not relieve Customer of the obligation to pay any fees accrued or due and payable to NDISIGN ONLINE prior to the effective date of termination and termination for any reason other than for uncured material breach by NDISIGN ONLINE shall not relieve Customer of the obligation to pay all future amounts due through under the Service.

Suspension Rights

11.5 NDISIGN ONLINE shall be entitled to immediately on notice suspend provision of the Service where:

11.5.1 The Customer breaches this Agreement (including additional documentation such as its Privacy Policy, Service Level Agreement and Fair Usage Policy) and NDISIGN ONLINE reasonably believes that such breach has the potential to threaten the security, integrity or availability of the Service or impact any other users of the Service (including NDISIGN ONLINE other customers); or

11.5.2 The Customer fails to pay any amount due under this Agreement and payment is not forthcoming after a second attempt is made to claim the payment; or

11.5.3 Where required by law.

11.6 NDISIGN ONLINE shall not be liable for any breach by it of this Agreement which is caused by the suspension of provision of the Service. The Customer shall remain liable for all fees due under this Agreement during the period of any suspension unless informed otherwise by NDISIGN ONLINE.

Following resolution by the Customer of the issues that gave rise to the right to suspend, NDISIGN ONLINE shall as soon as reasonably practicable reinstate provision of the Service.

11.7.1 If there is no resolution forthcoming to the issues that gave rise to the right to suspend, NDISIGN ONLINE reserves the right to cancel the provision of the Service.

11.7.1.1 If the issues that gave rise to the right to suspend the account pertain to Section 4 of the Fair Usage Policy, NDISIGN ONLINE will first give a formal warning to the Customer and will only suspend or cancel the Service if no resolution can be found.

Surviving Provisions.

11.8 The following provisions of this Agreement shall not survive and will have no further force or effect following any termination or expiration of this Agreement:

11.8.1 Clause 1 (Provision of the Service);

11.8.2 Clause 5.2 (Grant of Rights); and

11.8.3 Any subscriptions and made through the Service.

11.8.4 All other provisions of this Agreement shall survive any termination or expiration of this Agreement to the extent necessary to give effect to the purpose of such provision.

12. General Provisions

Continuity of Service

12.1 NDISIGN ONLINE has in place both a Business Continuity and a I.T. Disaster Recovery policy designed to prevent any unnecessary disruptions to the Service. These policies may be updated from time to time.

12.1.1 NDISIGN ONLINE’s Business Continuity Plan puts in place policies and procedures to try and ensure day-to-day business critical services can continue if a major incident occurs that prevents NDISIGN ONLINE from working in their regular place of work. The key service to be recovered is customer support, which NDISIGN ONLINE commits to being available within one business day after a major incident occurs.

12.1.2 NDISIGN ONLINE’s I.T. Disaster Recovery (IT DR) policy governs Our approach to (a) any disaster level incidents that may occur which affects Our database and ability to provide the Service (b) backing up the database relating to the Service and (c) recovering and reinstatement of the Service after a major incident. Within the IT DR policy, NDISIGN ONLINE commits to backing up the database a minimum of every 24 hours and, should a disaster incident occur, recovering and making live the Service within two business days.

Relationship of the Parties and Third Party Rights

12.2 Nothing in this Agreement is intended to or shall give rise to a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. 

Prevention of Corruption

12.3 Each Party warrants that in entering into this Agreement it has not committed any Prohibited Act (defined below).

12.4 If a Party or any subcontractor of that Party (or anyone employed by or acting on behalf of any of them) or any of its or their agents commits any Prohibited Act, that act shall be considered a material breach subject to the provisions of Clause 11.4 above (Termination).  Depending on the circumstances of the breach, such remedy may include, but shall not be limited to:

12.4.1 The termination of employment (or instruction, if a subcontractor) of the person(s) committing the Prohibited Act;

12.4.2 If necessary, procuring the continued performance of the Agreement (in NDISIGN ONLINE’s case, the Service) by another person(s); and/or

12.4.3 An undertaking by a sufficiently senior executive (director level or above) that the Prohibited Act has been fully investigated and remedied, to the reasonable satisfaction of the innocent Party.

12.5 For the purposes of this Clause 12.5, the term “Prohibited Act” means

12.5.1 The offering, promising or giving of a financial or other advantage to another person (whether directly or through a third party) with the intention to induce that person to perform improperly a relevant function or activity or to reward that person for the improper performance of such a function or activity or knowing or believing that the acceptance of the advantage would constitute the improper performance of such a function or activity; and/or

12.5.2 The requesting, agreeing to receive or acceptance of a financial or other advantage intending that, in consequence, a relevant function or activity should be performed improperly (whether by that person  or another person) or improperly performing a relevant function or activity in anticipation of receiving or accepting a financial or other advantage; and/or

12.5.3 The offering, promising or giving of a financial or other advantage to another person (whether directly or through a third party) who is a foreign public official intending to influence the performance of that foreign public official’s functions (whether in the exercise or in omitting to exercise those functions) or otherwise to use the foreign public official’s position in order to obtain or retain business or an advantage in the conduct of business; and/or

12.5.4 Without limiting the foregoing, any act that is in breach of applicable Law, including those relating to anti-bribery and anti-corruption (including Corrupt Practices Act).

12.6 In the definition of Prohibited Act above:

12.6.1 A “person” includes an individual, partnership, body corporate or other recognized commercial organization; and

12.6.2 A “relevant function or activity” shall mean a function or activity if it is of a public nature, or is connected with a business, or is performed in the course of a person’s employment or is performed on behalf of a body of persons (whether corporate or unincorporated) and the person performing the function or activity is expected to perform it in good faith, or impartially, or is in a position of trust by virtue of performing it (failure of any one of the above conditions being improper performance of that function or activity) regardless of where in the world such function or activity is performed or should be performed.

Notices

12.7 All notices under this Agreement shall be in writing and shall be deemed to have been given upon:

12.7.1 Personal delivery;

12.7.2 The third business day after first class mailing; or

12.7.3 The second business day after sending by email with electronic confirmation of receipt.  Notices to NDISIGN ONLINE shall be addressed to sales@modus.sg.

12.8 Notices to the Customer shall be addressed to the party set forth under the applicable subscriptions and/or purchases through the Service.  Each Party may modify its recipient of notices by providing notice pursuant to this Agreement.

Waiver and Cumulative Remedies.

12.9 The failure to exercise or delay in exercising a right or remedy provided to a party under this Agreement shall not constitute a waiver of that right or remedy, and no waiver by a party of any breach of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision.

12.10 The rights and remedies of the Parties under and in connection with this Agreement are cumulative and not exclusive of any rights and remedies provided by law, and all such rights and remedies may be enforced separately or concurrently with any other right or remedy. Each Party shall pay its own costs and expenses in relation to the negotiation, preparation, execution and performance of this Agreement and the transactions and arrangements contemplated by this Agreement.

Force Majeure

12.11 Neither Party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable in accordance with this Agreement)  for causes beyond that Party’s reasonable control and not caused by  that Party’s fault, or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labour problems (other than those involving NDISIGN ONLINE or Customer employees, respectively), computer attacks or malicious acts, such as attacks on or through the internet, any internet service provider, telecommunications or hosting facility (a “Force Majeure Event”), but in each case, only if and to the extent that the non-performing Party is without fault in causing such failure or delay, and the failure or delay could not have been prevented by reasonable precautions and measures and cannot reasonably be circumvented by the non-conforming Party through the use of alternate sources, workaround plans, disaster recovery, business continuity measures or other means. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

Assignment

12.12 The Customer may not assign any of its rights or obligations in accordance with this Agreement, whether by operation of law or otherwise, without the prior written consent of NDISIGN ONLINE (which will not be unreasonably withheld).  Any attempt by the Customer to assign its rights or obligations under this Agreement in breach of this Clause

12.11 shall be void and of no effect.  Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.

12.13 NDISIGN ONLINE may assign all of its rights or obligations in accordance with this Agreement to any of its group companies, subsidiaries and/or affiliates.

Disputes

12.14 If there is a dispute between the parties in relation to this Agreement (or any previous version of this Agreement), either party must give the other party notice of the nature and details of the dispute, and neither party will commence any Court or arbitration proceedings until the procedure described in this section has been complied with.

12.15 Within ten (10) business days of receipt of the notice of dispute, senior managers of the parties shall meet either in person or via electronic means as agreed to endeavour to resolve the dispute in good faith. If the dispute is not resolved within twenty (20) business days of receipt of the notice of dispute, either party may by notice to the other party refer the dispute to mediation.

12.16 If the dispute cannot be resolved through mediation, then either party may refer the dispute to for adjudication in the Courts according to Clause 13 below.

13. Governing Law and Jurisdiction

13.1 You hereby submit to the exclusive jurisdiction of the courts of Singapore for all disputes arising out of or in connection with this Agreement which have not been resolved through negotiation in good faith or mediation.

Miscellaneous

13.2 This Agreement, and the subscriptions and/or purchases through the Service, constitutes the entire agreement between the Parties with respect to the subject matter in this Agreement.  In the event of a conflict, the provisions of any subscriptions and/or purchases through the Service shall take precedence over provisions of the body of this Agreement.  This Agreement supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.  No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both Parties.

13.3 If any provision of this Agreement is or becomes, or is declared by any competent court or body to be, illegal, invalid or unenforceable this shall not affect or impair the legality, validity or enforceability of the remaining provisions of this Agreement.

13.4 The Customer permits NDISIGN ONLINE to use the Customer’s name and logo in lists of Customers, on marketing materials and on its website subject to a prior written request made to the Customer from NDISIGN ONLINE.

14. Definitions

Account

A registered account with NDISIGN ONLINE for the use of the Service

Affiliate

Any entity which directly or indirectly controls, is controlled by, or is under common control by either party. For purposes of the preceding sentence, “control” means direct or indirect ownership or control of more than fifty per cent (50%) of the voting interests of the subject entity

Confidential Information

a) any software utilized by NDISIGN ONLINE in the provision of the Service and its respective source code; (b) Customer Data; (c) each party’s business or technical information, including but not limited to the Documentation, training materials, any information relating to software plans, designs, costs, prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how or the receiving party knows or should reasonably know is confidential or proprietary; and (d) the terms, conditions, pricing and/or any discounts relating to this Agreement (but not its existence or parties).

Customer Data

The electronic data or information submitted by the Customer to the Service, which may include Personal Data.

Customer Input

Suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the operation or functionality of the Service.

Documentation

The supporting documents that outline the use of the software. This includes but is not limited to, NDISIGN ONLINE’s Service Level Agreement, Fair Usage Policy and Quality Assurance Policy.

Intellectual Property Rights

Any and all common law, statutory and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents and other proprietary rights issued, honoured or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto.

Law(s)

Any local, state, national law or laws, treaties, and/or regulations applicable to a respective party.

Malicious Code

A breach (including an anticipatory breach) which is serious in the widest sense of having a serious effect on the benefit which the party alleging the material breach would otherwise derive from a substantial portion of this Agreement over the term of this Agreement. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.

Personal Data

Any information that relates to an identified or identifiable individual.

Service

NDISIGN ONLINE’s software-as-a-service digital signature platform as described in the Documentation.

Supporting Documentation

NDISIGN ONLINE’s electronic user guide videos or documents for the Service available at https://ndisign.sg/ (NDISIGN ONLINE), may be updated by from time to time.
We, Our, Us or NDISIGN ONLINE, Modus Consulting Pte. Ltd. (UEN 201017193W) and any of our related companies.