Catalyzer Suite Terms & Conditions

All contracts that the Provider may enter for the provision of Catalyzer Suite products as a Service shall be governed by these Terms and Conditions.

DEFINITION AND INTERPRETATION

In this Agreement, the following definitions and interpretations apply unless the context otherwise requires:

“Affiliates”	means any other corporation which is the subsidiary, holding company, or ultimate holding company of such corporation, or any subsidiary of that holding company or ultimate holding company in each case from time to time;
“Business Day”	means a day (other than a Saturday, Sunday or gazette public holiday in Vietnam) on which the banks in Vietnam are open for general commercial business;
“Confidential Information”	means any information supplied by either Party, or any of their respective Connected Persons to the other Party and any of its Connected Persons, whenever and in whatever form, in connection with this Agreement, including any information: relating to either Party or any of its respective Connected Persons; contained or reflected in any report, analysis, compilation, study or other material prepared by or for either Party or any of their respective Connected Persons; relating to the existence and provisions of, or the negotiations leading to, this Agreement; and that would be regarded as confidential by a reasonable business person, and includes intellectual property, written information and information transferred or obtained orally, visually, electronically or by any other means.
“Connected Persons”	means, in relation to a Party, any Affiliate of that Party and any officer, employee, agent, adviser or representative of that party or any of its Affiliates, in each case, from time to time;
“Costs”	means losses, damages, costs (including reasonable legal costs on an indemnity basis) and expenses (including Taxation), in each case of any nature whatsoever;
“Force Majeure Event”	means any event beyond the reasonable control of the delayed Party which prevents the performance of any obligations of this Agreement, including without limitation, acts of God, acts of civil or military authority, fire, strikes, lockouts or labor disputes, epidemics or pandemics (including any directive pronouncement or guidelines issued by a Governmental Authority), disease, outbreaks or quarantines, governmental restrictions, wars, riots, earthquakes, storms, typhoons, floods and breakdowns in electronic or computer information and communication systems;
“Governmental Authority”	means any administrative, executive, judicial, legislative, regulatory, licensing, competition or other governmental authority (including any Tax Authority) having applicable jurisdiction;
“Intellectual Property Rights”	means patents, rights to inventions, copyright and related rights, all other rights in the nature of copyright, trademarks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use and protect the confidentiality of confidential information (including know-how), and all other intellectual property rights, in each case, whether registered or unregistered and including all applications and rights to apply for and be granted renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
“Law”	means any statute, law, rule, regulation, guideline, ordinance, code or rule of law issued, administered or enforced by any Governmental Authority, and any judicial or administrative interpretation of any of these;
“License Fee”	shall have the meaning given to it in Schedule 1;
“Payment terms”	Shall have the meaning given to it in Schedule 1;
“Rights”	shall have the meaning given to it in Schedule 1;
“Software”	shall have the meaning given to it in Schedule 1;
“Software Documentation”	shall have the meaning given to it in Schedule 1;
“Tax” or “Taxation”	means (a) taxes on income, profits and gains, and (b) all other taxes, levies, duties, imposts, charges and withholdings in the nature of taxation, together with all penalties, charges, fees and interest relating to any of these or any late or incorrect return in respect of any of them; and
“Tax Authority”	means any taxing or other authority competent to impose any Tax liability, or assess or collect any Tax; and
“Term”	shall have the meaning given to it in Schedule 1;
“Territory”	shall have the meaning given to it in Schedule 1;
“Working Hours”	means 8.00 am to 5.00 pm in the relevant location on a Business Day.

In this Agreement, unless the context requires otherwise:
1. references to a person include any individual, firm, body corporate (wherever incorporated), government, state or agency of a state or any joint venture, association, partnership, works council or employee representative body (in any case, whether or not it has separate legal personality);
2. references to a paragraph, Clause or Schedule are to those of this Agreement;
3. headings do not affect its interpretation;
4. the singular shall include the plural and vice versa, and references to one gender include all genders;
5. references to any legal term or concept shall, in respect of any jurisdiction other than Singapore, be construed as references to the term or concept that most nearly corresponds to it in that jurisdiction;
6. references to $, USD or U.S. Dollars are references to the lawful currency from time to time of the United States of America;
7. any phrase introduced by the terms including, include, in particular, or any similar expression shall be construed as merely illustrative and shall not limit the sense of the words preceding those terms; and
8. any reference to a document in the agreed form is to the form of the relevant document agreed between the Parties and, for the purpose of identification, initialed for or by each of them (in each case with any amendments that the Parties may agree).
Except as otherwise expressly provided in this Agreement, any reference to an enactment (which includes any legislation in any jurisdiction) includes references to: (i) that enactment as amended, consolidated or re-enacted by or under any other enactment whenever made; (ii) any enactment that that enactment re-enacts (with or without modification); and (iii) any subordinate legislation (including regulations) whenever made under that enactment, as amended, consolidated or re-enacted as described at (i) or (ii), except to the extent that any of the matters referred to in (i) to (iii) occurs on or after the date of this Agreement and increases or alters the liability of a Party under this Agreement.

LICENCE
1. Pursuant to this Agreement and in consideration of and subject to the obligations undertaken by the Customer under this Agreement, SAI Digital hereby licenses to the Customer a non-exclusive, revocable, non-transferable, non-assignable, and non-sublicensable license to the Software and the Software Documentation throughout the Territory and for the Term for the License Fee.
2. SAI Digital shall retain all rights, title and interest in the Software and Software Documentation. Except as specifically authorised under this Agreement by applicable law or by SAI Digital in writing, the Customer shall not (i) copy or otherwise reproduce the Software and Software Documentation except to the extent reasonably required for internal training purposes; (ii) adapt, vary, modify, disclose, disassemble, decompress, reverse compile, reverse assemble, reverse engineer, translate, or create any derivative works of the Software or Software Documentation or any portion thereof; (ii) rent, lease, lend, distribute, sell, assign, license, transmit over a network or otherwise transfer the Software or Software Documentation or any portion thereof; or (iii) provide or otherwise make available the Software and Software Documentation, in whole or in part, including without limitation the object and source codes, in any form to any person other than the Customer’s employees or contractors who have a specific need to have access to it in order to perform their duties to the Customer.
3. The Parties agree to do all such things and to sign and execute all such documents and deeds in any part of the Territory as may be reasonably required to perfect, protect or enforce any of the rights licensed and granted to the Customer pursuant to this Agreement.
4. The Customer must obtain from each of its employees or contractors, and the employees or contractors of the Customer’s Affiliates, who are to be given access to the Software and Software Documentation:
  1. an assignment in writing to SAI Digital of all Intellectual Property Rights in any items and material created or developed by the employee or contractor in connection with the Software or Software Documentation; and
  2. an undertaking in favor of SAI Digital that the employee or contractor will do everything necessary to ensure that the assignment operates to the fullest extent.
5. The Customer shall, and shall cause its users, to use the Software and the Software Documentation solely as contemplated by this Agreement and the applicable Software Documentation, and abide by any posted guidelines or policies related to acceptable use and conduct when accessing or using the Software. The Customer will not, and will not permit or assist anyone else to: (a) use the Software or Software Documentation in violation of applicable laws; (b) attempt to gain unauthorised access to the Software, Software Documentation or related systems or networks, or circumvent or remove any security or use protection mechanisms; (c) frame or mirror any part of the Software or Software Documentation on any server or wireless or internet-based device, other than on Customer’s intranets or otherwise for its internal business purposes or as permitted in the Software Documentation; or (d) conduct any tests or analysis on the security or performance of the Software or Software Documentation, including any benchmark tests, without SAI Digital’s prior written consent, or publicly disclose the results of any such tests or analysis.
6. SAI Digital may, without limiting any other rights or remedies available to it, suspend the Customer’s use of the Software or Software Documentation (as applicable), or take other appropriate remedial action, to address any violation or suspected violation of this Clause 2.
7. The terms of this Clause 2 shall apply to an order for Software (“Order”) except to the extent explicitly overridden in such Order. Such Order may set forth additional terms and conditions applicable to the Software being licensed to the Customer.
INTELLECTUAL PROPERTY RIGHTS
1. No Intellectual Property Rights of either Party are assigned or transferred under this Agreement unless by mutual agreement in writing between the Parties.
2. The Software and Software Documents remain the property of SAI Digital.
3. SAI Digital shall indemnify the Customer and its officers, employees, contractors or agents, against all liabilities (direct or indirect) suffered or incurred by SAI Digital arising out of or in connection with any claim made against SAI Digital for actual or alleged infringement of a third party’s intellectual property rights, provided that, if any third party makes a claim, or notifies an intention to make a claim against SAI Digital, which may reasonably be considered likely to give rise to a liability under this indemnity (“Claim”), the Customer:
  1. as soon as reasonably practicable, gives written notice of the Claim to SAI Digital, specifying the nature of the Claim in reasonable detail;
  2. does not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of SAI Digital (such consent not to be unreasonably conditioned, withheld or delayed); and
  3. gives SAI Digital and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable SAI Digital and its professional advisers to examine them and to take copies for the purpose of assessing the Claim.
  4. The Customer must not:
    1. make any press release, announcement or other public notification in relation to this Agreement; or
    2. use or reproduce any brand or trademark of SAI Digital, without first obtaining the prior written consent of SAI Digital, which consent may be withheld or provided at the sole discretion of SAI Digital.
    In the event that consent is provided under Clause 3.4, the Customer must comply with SAI Digital’s brand guidelines, which may apply from time to time.
REPRESENTATIONS AND WARRANTIES
1. SAI Digital represents and warrants to the Customer that:
  1. it has the right and authority to enter into this Agreement and that this Agreement and perform its obligations under this Agreement;
  2. it has the right to grant the Customer the licence under Clause 2.1;
  3. it has not received notice of, and is not otherwise aware of, any infringement claims anywhere in the world in relation to the Software and Software Documentation; and
  4. the Software and Software Documentation and their supply and use do not infringe the Intellectual Property Rights of any person.
2. The Customer represents and warrants to SAI Digital that:
  1. it has the right and authority to enter into this Agreement and that this Agreement and perform its obligations under this Agreement;
  2. it will obtain from each employee or contractor, and the employee and contractor of its Affiliates, that are given access to the Software or the Software Documentation an undertaking in writing that the employee or contractor, and the employee and contractor of its Affiliates, will keep the Software and Software Documentation confidential;
  3. it will notify SAI Digital as soon as it becomes aware of any circumstance giving rise to a suspicion that a breach of this Agreement has occurred; and
  4. it will act in accordance with SAI Digital’s reasonable instructions in relation to any breach, or which SAI Digital reasonably considers is likely to breach this Agreement.
TERMINATION
1. The Parties may, by mutual agreement in writing, terminate this Agreement. The Parties agree that upon the termination of this Agreement pursuant to this Clause 6.1, the Customer will not be entitled to a refund of the Licence Fee, or be relieved of future payment obligations, for the unused portion of the remaining Term.
2. Either party may terminate this Agreement by way of providing written notice if the other party:
  1. commits a material breach of a fundamental term of this Agreement that has a material adverse effect on the other party including, without limitation, the failure to pay fees when due;
  2. does not remedy that breach within thirty (30) days after receiving written notice of the breach from the non-breaching party;
  3. a party is in material breach of this Agreement and the breach is not capable of being remedied;
  4. if one Party enters into winding up or receivership proceedings; or
  5. pursuant to Clause 10.2, if a Force Majeure Event continues for more than [sixty (60)] days.
3. Upon the expiration or termination of this Agreement, the Customer’s access to and use of the Software or Software Documentation shall be terminated. Each party shall return to the other party all Confidential Information of the other party pursuant to Clause 6.4.
4. Upon the termination or expiry of this Agreement for any reason, the Customer shall immediately:
  1. cease to use the Software or Software Documentation belonging to or associated with SAI Digital including, without limiting the generality of the foregoing, any software or documents relating to the Intellectual Property Rights of SAI Digital, printed manuals, forms and other materials provided by SAI Digital to the Customer hereunder and all copies of such material, or any adaptations thereof;
  2. deliver to SAI Digital all copies and adaptations of the Software and Software Documentation, and materials or documentation relating to the Intellectual Property Rights of SAI Digital; and
  3. cease to have the license to use or exploit any Intellectual Property Rights in relation to the Software and Software Documents that belong to SAI Digital.
5. Notwithstanding the termination or expiry of this Agreement, the obligations and undertakings of the Parties set out in this Agreement shall remain in full force and effect so far as such obligations and undertakings and such rights are not fulfilled or discharged or have not lapsed by effluxion of time
CONFIDENTIALITY
1. Each Party shall (and shall procure that each of its Connected Persons shall):
  1. hold the Confidential Information in confidence;
  2. not copy or reproduce the Confidential Information;
  3. not disclose the Confidential Information to any person other than a Connected Person; and
  4. use the Confidential Information only for the purposes of exercising of performing that Party’s rights and obligations under this Agreement.
2. For the avoidance of doubt, Confidential Information includes any information (a) marked or designated as “confidential” or “proprietary” at the time of disclosure or (b) disclosed in circumstances under which a reasonable person would understand it is to be treated as confidential.
3. Clause 5 shall not apply to Confidential Information to the extent that:
  1. the Confidential Information is required to be disclosed by Law or by any stock exchange or Governmental Authority; if the receiving party believes that this Clause 5.3 (a) applies, it shall, as far as it is practicable and lawful to do so and except in connection with disclosure to a Tax Authority:
    1. first consult the disclosing party to give the disclosing party an opportunity to contest the disclosure; and
    2. take into account the disclosing party’s reasonable requirements about the proposed form, timing, nature, and extent of the disclosure.
  2. the Confidential Information is required to be disclosed so the receiving party can fulfil its obligations under this Agreement;
  3. the Confidential Information is required to be disclosed for the purpose of satisfying the obligations under this Agreement;
  4. the Confidential Information was already in the public domain when it was first made available to or received by the receiving party;
  5. the Confidential Information subsequently enters the public domain, other than a breach of Clause 5.1;
  6. written records show that, when the Confidential Information was first made available to the receiving party, it was already in the lawful possession of the receiving party or any of its Connected Persons;
  7. the Confidential Information is required to be disclosed for the purpose of any arbitral or judicial proceedings arising out of this Agreement;
  8. after it was first made available to either of them, the receiving party or a Connect Person lawfully receives the Confidential Information from a third party who does not owe the disclosing party, or any of its Connected Persons, an obligation of confidence in relation to it; or
  9. after it was first made available to either of them, the receiving party or a Connect Person lawfully receives the Confidential Information from a third party who does not owe the disclosing party, or any of its Connected Persons, an obligation of confidence in relation to it; or
  10. the Confidential Information is developed by or for the receiving party at any time independently of the information disclosed to it by the disclosing party by persons who have had no access to or knowledge of the said information.
4. Each Party shall disclose Confidential Information as permitted by this Clause 5 only if it is reasonably required and in the case of Clause 5.3 (b) and 5.3(c), only if the Party to whom the disclosure is made is informed of the confidential nature of the Confidential Information and acknowledges that it is subject to a duty of confidentiality on substantially the same terms as this Clause 5.
5. If this Agreement terminates, the receiving party shall (and shall procure that its Connect Persons shall), within thirty (30) days after receiving a written request by the disclosing party:
  1. 1. destroy, or return to the disclosing party, all copies of any document or Software that contains any Confidential Information;
    2. take reasonable steps to erase the Confidential Information from any computer or other digital device on which it is held; and
    3. appoint one of its authorised officers to supervise the steps contemplated in Clauses 5.5(a) and 5.5(b), and to certify in writing to the disclosing party that they have been carried out
  For the purposes of this Clause 5.5, document includes any material prepared by or on behalf of either Party or its Connected Persons.
6. The provisions of this Clause 5 shall survive termination or expiry of this Agreement.
AUDIT RIGHTS & LICENSE VERIFICATION
1. With respect to the Software and Software Documentation, the Customer will maintain accurate records of its compliance with this Agreement and the order for the duration of the Term (“Compliance Reports”). The Customer shall promptly provide these Compliance Reports within fourteen (14) days to SAI Digital upon its request, which shall only be requested once every twelve (12) months.
2. SAI Digital may, at its own expense and with the approval of the Customer (whose approval shall not be unreasonably held), engage an independent auditor to audit the Customer’s use of the Software and the Software Documentation to determine:
  1. the accuracy of the Compliance Reports;
  2. the confidentiality obligations imposed on the Customer under this Agreement are being observed;
  3. the Customer is complying with the terms and restrictions of the license granted under this Agreement; or
  4. SAI Digital’s Intellectual Property Rights are being observed by the Customer, its Affiliates, and their employees and contractors, and have not been and are not infringed.
3. Any such audit will be conducted upon reasonable notice to the Customer and during the Customer’s normal Working Hours.
4. The Customer shall reasonably cooperate with SAI Digital to conduct the audit, including providing the auditor with all relevant information, documents and records regarding its compliance with this Agreement, and the right to interview relevant personnel.
5. If such audit determines any unauthorised use of the Software, SAI Digital will invoice the Customer for all such unauthorised use in accordance with SAI Digital’s then-current retail prices computed from the date the excess usage commenced. The Customer shall pay all invoices described in this Clause 7.4 within thirty (30) days from notice.
6. The exercise by SAI Digital of its rights under this Clause 7 shall be without prejudice to any other rights or remedies available to SAI Digital under this Agreement, or otherwise howsoever, at law or in equity.
LIMITATION OF LIABILITY
1. The express obligations and warranties made by each party in this agreement are in lieu of and exclude (to the fullest extent permitted by law) any other obligation, warranty, condition, term or representation of any kind (express or implied, statutory or otherwise) relating to this agreement, including (without limitation) any warranty by SAI Digital as to the condition, quality, performance, merchantability or fitness for purposes of the Software or the Software Documentation.
2. To the fullest extent permitted by law, SAI Digital’s total liability (whether in contract, tort, including negligence, or otherwise) to the Customer under or in connection with this Agreement will not exceed the fees received by SAI Digital under this Agreement.
3. SAI Digital will not be liable (whether in contract, tort, including negligence, or otherwise) to the Customer for:
  1. any indirect or consequential loss, damage, cost or expense of any kind whatsoever and howsoever caused; or
  2. any loss of production, loss or corruption of data, loss of profits or savings, or wasted management or staff time, arising directly or indirectly in connection with this agreement.
4. The limitations in this clause are intended by the parties to apply to the fullest extent permitted by law, but they are not intended to apply to the extent (if any) that their application is prohibited by law.
FURTHER ASSURANCE
1. Each Party and its Affiliates shall do anything that is required by law or may be reasonably necessary or desirable to implement and give effect to this Agreement.
2. Each Party shall procure so far as it is lawful and practicable to do so that each of its Affiliates complies with all obligations under this Agreement that are expressed to apply to any of its Affiliates.
FORCE MAJEURE
1. Subject to Clause 10.2, if a Force Majeure Event delays, hinders, or prevents the performance of any obligation required by a Party, where possible, the time for performance of such obligation shall be extended for the period of the delay, provided that the delayed Party notifies of such Force Majeure Event to the other Party within seven (7) days. Once the Force Majeure Event has ceased, each Party shall resume the performance of this Agreement except provided otherwise in this Agreement.
2. If the Force Majeure Event continues for a consecutive period exceeding [sixty (60)] days and the failure or delay is substantial or fundamental in the context of this Agreement, either Party shall be free to terminate this Agreement by providing at least fourteen (14) days’ notice to the other Party.
ASSIGNMENT
1. Except with the prior written consent of the other Party, neither Party may:
  1. assign, transfer, charge or otherwise deal with any of its rights or obligations under this Agreement, nor grant, declare, create, or dispose of any right or interest in it; or
  2. subcontract the performance of any of its obligations under this Agreement.
LEGAL RELATIONSHIP
1. Nothing in this Agreement shall constitute a partnership between the Parties nor make either Party the agent of the other Party for any purpose.
COSTS
1. Except as otherwise provided in this Agreement, each Party shall pay its own Costs incurred in connection with negotiating, preparing and completing this Agreement.
SET-OFF
1. The Customer shall pay all sums due under this Agreement without set-off or counterclaim.
INVALID TERMS
1. Each of the provisions of this Agreement is severable.
2. If and to the extent that any provision of this Agreement:
  1. is held to be, or becomes, invalid or unenforceable under the Law of any jurisdiction; but
  2. would be valid, binding and enforceable if some part of the provision were deleted or amended, then the provision shall apply with the minimum modifications necessary to make it valid, binding and enforceable and neither the validity or enforceability of the remaining provisions of this Agreement, nor the validity or enforceability of that provision under the Law of any other jurisdiction, shall in any way be affected or impaired as a result of this Clause 15.2.
3. The Parties shall negotiate in good faith to amend or replace any invalid, void or unenforceable provision with a valid, binding and enforceable substitute provision or provisions, so that, after the amendment or replacement, the commercial effect of the Agreement is as close as possible to the effect it would have had if the relevant provision had not been invalid, void or unenforceable.
NOTICES
1. Any notice to be given by one Party to the other Party in connection with this Agreement shall be in writing in English and signed by or on behalf of the Party giving it. It shall be delivered by hand, e-mail, registered post or courier using an internationally recognized courier company.
2. A notice shall be effective upon receipt and shall be deemed to have been received (i) at the time of delivery, if delivered by hand, registered post or courier or (ii) at the time of transmission if delivered by e-mail. Where delivery occurs outside Working Hours, notice shall be deemed to have been received at the start of Working Hours on the next following Business Day.
3. The addresses and e-mail addresses of the Parties for the purpose of Clause 16.1 are set out in Schedule 1.
4. Each Party shall notify the other Party in writing of a change to its details in Clause 16.3 from time to time.
CONFLICT
1. If there is any conflict between the terms of this Agreement and any other agreement, the terms of this Agreement shall prevail as between the Parties to this Agreement and as between any Affiliates of either Party to the extent of the inconsistency unless:
  1. the other agreement expressly states that it overrides this Agreement in the relevant respect; and
  2. the Parties:
    1. are also parties to that other agreement; or
    2. expressly agree in writing that the other agreement overrides this Agreement in that respect.
ENTIRE AGREEMENT
1. This Agreement, its Schedules and Annexures attached hereto set forth the entire understanding between the Parties concerning the subject matter hereof and incorporate all prior negotiations and understandings. There are no covenants, promises, agreements, conditions, or understandings, either oral or written, between the Parties relating to the subject matter of this Agreement other than set forth herein. Each Party agrees that this Agreement is the result of good faith negotiations among the Parties and shall be interpreted as though it were drafted by both Parties. In the event of any contradiction between the wording of this Agreement and any one of its Schedules or Annexures, this Agreement shall prevail.
VARIATION
1. No variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of all of the Parties to it.
COUNTERPARTS
1. This Agreement may be signed in any number of counterparts with the same effect as if the signatures upon any counterpart or the same instrument, and all signed counterparts, whether by photocopy or otherwise, shall be deemed to be an original.
NO THIRD-PARTY ENFORCEMENT
1. A person who is not a Party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act 2001 of Singapore to enforce any of its terms.
GOVERNING LAW
1. This Agreement and any non-contractual obligations arising out of, or in connection with it, shall be governed by, and interpreted in accordance with, Singapore law.
DISPUTE RESOLUTION
1. 1. ARBITRATION: Any Dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (SIAC) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (SIAC Rules) for the time being in force, which rules are deemed to be incorporated by reference in this Clause 23.
    1. The seat of the arbitration shall be [Singapore].
    2. The Tribunal shall consist of [one]/[three] arbitrator(s).
    3. The language of the arbitration shall be English.
    4. The law for the arbitration agreement shall be Singapore law.
  2. Changes of the Terms and conditions. SAI Digital reserves the right to amend this agreement to incorporate changes in certain cases:
    1. mandatory applicable laws.
    2. New or updated features.
The changes need to be communicated in writing 3 (three) months in advance.