Terms and Conditions
Last Updated On 14 June 2024
These general terms and conditions (“Terms and Conditions”) are expressly incorporated into the Quotation (as defined below) that has been executed between AIR DIGITAL PTE. LTD. (UEN: 202405600M) (“Supplier”) and the relevant individual or entity whose details are set out in the Quotation (“Customer”). By executing the Quotation, the Customer agrees to be bound by these Terms and Conditions and the Quotation (collectively, the “Agreement”).
Supplier has developed the Platform (as defined below) and App (as defined below) for the provision of logistics fleet management services. The Agreement shall govern the Customer’s use of the Services (as defined below) for its internal business operations and the Supplier’s provision of the Services to the Customer.
Supplier may amend these Terms and Conditions from time to time by publishing the revised Terms and Conditions and using reasonable endeavours to notify the Customer of such amendments. The Customer agrees that the amendments shall apply to and be binding on the Customer if the Customer accesses or uses the Services after such amendments have been made, and the Customer shall be deemed to have consented to such amendments.
1. DEFINITIONS AND INTERPRETATION
1.1 | In these Terms and Conditions, unless the context otherwise requires, the following words and expressions shall have the following meanings: | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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1.2 | In these Terms and Conditions: | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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1.3 | In the event of conflict and/or inconsistency between these Terms and Conditions and the terms of the Quotation, the conflict and/or inconsistency shall be resolved by giving precedence to the Quotation. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
1.4 | For the avoidance of doubt, End Users are not beneficiaries of the Agreement and shall have no rights arising in connection with the Agreement. End Users shall have no rights to enforce the same and Customer shall be liable for all acts, omissions and defaults of any End User which constitute a breach of the terms of the Agreement. |
2. SUPPLY OF SERVICES
2.1 | Subject always to Customer’s continuing compliance with the terms of the Agreement, Supplier hereby: |
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2.2 | Save as expressly specified in the Quotation or Schedule 1, nothing in the Agreement obliges Supplier or its Affiliates to provide, without limitation, any of the following:
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2.3 | In supplying the Services, Supplier may determine in its sole and absolute discretion the modules and functionalities to be provided to Customer and each of its End Users, and such modules and functionalities provided may not be uniform. |
2.4 | Where applicable in accordance with the modules and functionalities purchased by Customer, (a) Supplier may in its sole and absolute discretion issue End User Accounts with administrative features to Customer, and (b) Customer may issue and/or allocate End User Accounts to End Users for accessing the Services provided that Supplier’s prior written consent is obtained. In such event, Customer shall be solely responsible for acts or omissions of any such End User, or if such End User breaches any terms of the Agreement. |
2.5 | Customer may in writing from time to time, request to (a) upgrade the Services; and (b) purchase other services or additional End User Accounts, to be provided by Supplier to Customer and its End Users, and the Parties shall discuss in good faith the terms of such upgrade or purchase. |
3. CUSTOMER’S USE OF THE SERVICES
3.1 | Customer shall:
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3.2 | Customer shall not (and shall procure that any End User or other third party shall not):
and Supplier reserves the right, without liability to or prejudice to its other rights against Customer, to disable Customer’s and/or End Users’ access to the Services if there is a breach of this Clause 3.2, or to terminate or suspend the Agreement. |
3.3 | Customer agrees and acknowledges that:
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4. CUSTOMER DATA
4.1 | Customer shall own all rights, title and interest in and to all of Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data. |
4.2 | Notwithstanding the foregoing, Customer hereby irrevocably grants, and shall further procure and ensure that each End User grants, a worldwide, perpetual, royalty-free, non-revocable, non-transferable and non-exclusive right and licence to:
(collectively, the “Purposes”) |
5. FEES AND PAYMENT TERMS
5.1 | In consideration of the Services provided to Customer, Customer shall pay to Supplier the Fees, and in accordance with the frequency, specified in the Quotation. |
5.2 | Customer shall pay Supplier all amounts invoiced within thirty (30) days from the date of the invoice. Customer shall bear all banking and transaction charges for payments made under the Agreement. |
5.3 | Supplier reserves the right to increase the Fees by up to 10% at the commencement of each Renewal Term with prior written notice to Customer, and Customer agrees to pay such increased Fee for such Renewal Term. |
5.4 | All Fees and other sums payable under the Agreement and/or the Quotation shall be paid free and clear of all deductions and withholdings unless the deduction or withholding is required by any applicable Law. If any deduction or withholding is required by any applicable Law, Customer shall pay to Supplier such additional sum and shall, after the deduction or withholding has been made, ensure that Supplier receives the same amount as it would have been entitled to receive in the absence of any such deduction or withholding. |
5.5 | If Customer fails to make any payment when due then, in addition to all other rights and remedies that may be available to Supplier:
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5.6 | Customer shall pay all amounts due under the Agreement without setoff, counterclaim, deduction or recoupment of any kind for amounts owed or payable by Supplier, whether under the Agreement, applicable Law, or otherwise and whether relating to Supplier’s breach, bankruptcy, insolvency or otherwise. |
6. CONFIDENTIALITY AND PUBLICITY
6.1 | Each Party undertakes to the other Party in respect of Confidential Information received from the other Party to:
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6.2 | A Party may disclose Confidential Information it receives from the other Party:
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6.3 | No obligations of confidentiality shall apply in relation to any information that:
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6.4 | Each Party shall immediately notify the other Party upon discovery of any unauthorised use or disclosure of Confidential Information of the other Party and shall reasonably cooperate to assist the other Party to regain possession of the Confidential Information and prevent further unauthorised use or disclosure. |
6.5 | Nothing in this Clause 6 prohibits Supplier from using or disclosing any data or information that is aggregated or anonymised such that it is not associated with Customer or any End User. |
6.6 | Notwithstanding this Clause 6,
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7. INTELLECTUAL PROPERTY
7.1 | Customer acknowledges and agrees that Supplier and its licensors own all rights, title and interests (including without limitation to Intellectual Property Rights) in and to:
(collectively, the “Supplier Intellectual Property Rights”). |
7.2 | Other than the limited license and use rights to the Supplier Intellectual Property Rights as expressly set forth in the Agreement, Supplier does not grant Customer any other rights to the Supplier Intellectual Property Rights and reserves all rights therein. |
7.3 | Customer acknowledges that its access to some software components used in the Services may be offered under third-party rights or licences, and Customer agrees to be bound by any additional terms under any such third-party rights or licences, to the extent of any inconsistency between the Agreement and those terms. |
7.4 | If Customer or any End User proposes or provides any ideas, suggestions, recommendations, enhancements, improvements, or other feedback (collectively, “Feedback”) to Supplier, Customer shall assign and procure such End User to assign all rights, title, and interests, including all copyright, patent, trade dress rights and other Intellectual Property Rights, in and to such Feedback to Supplier. Supplier shall have the right to use and disclose any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in such Feedback in any manner and for any purpose in Supplier’s discretion without remuneration, compensation or attribution to Customer or such End User, provided that the foregoing shall not create or imply any obligation on the part of Supplier to use such Feedback. |
7.5 | Customer acknowledges and agrees that all rights, title and interests in and to any and all Foreground IPR will immediately vest in and be owned by Supplier absolutely for the full duration of all such rights and all throughout the world, free from any encumbrances, and extending without limitation to the right at Supplier’s sole and absolute discretion, to apply for, prosecute and obtain Intellectual Property Rights protection anywhere in the world in respect thereof, to the intent that the grant of protection thereby derived shall be solely in the name of and vest in Supplier to the exclusion of Customer (and/or any of Customer’s employees, staff, other workers, agents and service providers, and End Users). |
7.6 | Without reservation or limitation, Customer shall and shall procure its employees, staff, other workers, agents and service providers, and End Users (as applicable) to assign, transfer and convey all rights, titles and interests in and to the Foreground IPR on and from the moment of creation to Supplier, exclusively, irrevocably, and perpetually, together with all rights, titles, and interests throughout the world therein, including without limitation, the right to secure registrations, renewals, reissues, and extensions thereof. No rights of any kind are reserved to or by Customer or shall revert to Customer who expressly waives any moral rights, rights of attribution or integrity (or such similar rights) in and to such Foreground IPR. |
7.7 | Customer specifically agrees to do all acts or things necessary or desirable or as otherwise requested by Supplier, including without limitation to obtain all appropriate releases and assignments as may be necessary, to assign, transfer and convey to Supplier the rights, titles and interests to the Foreground IPR as described in Clause 7.6, including but not limited to, procuring written releases and assignments from its employees, staff, other workers, agents and service providers, and End Users. |
7.8 | If and to the extent that, for whatever reason, the rights, titles and interests in respect of the Foreground IPR cannot be assigned, transferred or conveyed to Supplier despite Customer’s best endeavours to ensure and procure the same, Customer shall and shall procure its employees, staff, other workers, agents and service providers, and End Users (as applicable) to grant to Supplier a perpetual, worldwide, irrevocable, exclusive (even as against Customer and its employees, staff, other workers, agents and service providers, and End Users (as applicable)), sub-licensable (through multiple tiers), transferable and license fee / royalty-free right and license to use such Foreground IPR for any purposes whatsoever without any obligation of attribution or consent. |
8. DATA PROTECTION
8.1 | Customer shall:
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8.2 | Supplier shall have a right at any time, to seek information and documents from Customer, so as to enable Supplier to ascertain whether Customer has complied with its obligations under the Agreement or whether there has been a breach of the PDPA. Upon any request from Supplier, Customer shall immediately provide Supplier with all such information and documents. |
8.3 | Parties acknowledge and agree that under the Agreement, the Supplier is merely a data intermediary as defined under the PDPA in respect of any and all Personal Data received from Customer and End Users. |
8.4 | Customer agrees, warrants and undertakes that:
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9. REPRESENTATIONS AND WARRANTIES
9.1 | Each Party represents and warrants to the other Party that:
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10. DISCLAIMERS
10.1 | To the maximum extent permissible under applicable law, except as expressly and specifically provided in the Agreement, the Services are provided on an “as is” and “as available” basis without any representation, warranty, condition or term of any kind (whether express, implied, statutory or otherwise), which are expressly disclaimed by Supplier. Without prejudice to the generality of the foregoing, the following shall be expressly disclaimed by Supplier:
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11. LIMITATION OF LIABILITY
11.1 | Nothing in this Clause 11 limits or excludes any liability of Supplier which cannot be limited by applicable Law, including liability for death or personal injury caused by negligence and/or fraud or fraudulent misrepresentation. |
11.2 | To the maximum extent permitted under applicable Law, Supplier excludes any and all liability, whether on an action or claim in contract, tort (including negligence), breach of statutory duty or otherwise, even if informed of the possibility thereof, arising from or in connection with:
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11.3 | To the maximum extent permitted under applicable law and to the extent not excluded, Supplier’s maximum aggregate liability to Customer in connection with the Agreement, whether based on an action or claim in contract, tort (including negligence), breach of statutory duty or otherwise, shall be limited to and not exceed an amount equal to the fees payable by Customer for Services provided in the month in which the claim giving rise to liability is caused. |
12. INDEMNITY
12.1 | Customer shall fully indemnify, defend and hold harmless Supplier, its directors, officers, employees, agents, advisors and Affiliates (collectively, the “Indemnitees“) against all claims, actions and other legal proceedings, and liabilities, losses, damages, fines, penalties, expenses, costs (including legal costs and expenses on a solicitor-client basis) incurred or suffered by any of the Indemnitees arising out of or in connection with:
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13. TERM AND TERMINATION
13.1 | The Agreement shall commence on the Effective Date and shall, unless the Parties otherwise agree or terminated earlier in accordance with the provisions of the Agreement, continue in full force and effect for the period as set out in the Quotation (“Initial Subscription Term”). |
13.2 | Unless otherwise indicated in the Quotation, on the expiry of the Initial Subscription Term and each preceding Renewal Term (as the case may be), the Agreement shall automatically renew for an additional one (1) year (each a “Renewal Term”), unless either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the end of the Initial Subscription Term or current Renewal Term (as the case may be). |
13.3 | Each Party may terminate the Agreement by giving ninety (90) days’ written notice to the other Party. |
13.4 | Without prejudice to any other right or remedy available to it, Supplier may terminate the Agreement immediately by giving written notice to Customer if:
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13.5 | Termination of the Agreement for any reason shall not affect any rights and remedies a Party may have accrued under the Agreement. |
13.6 | Upon expiry or termination of the Agreement:
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13.7 | Without prejudice to any right or remedy Supplier may have to claim interest under the Agreement, at law or otherwise, all payments payable to Supplier by Customer under the Agreement shall become due and payable immediately upon expiry or termination of the Agreement. |
13.8 | Any provision of the Agreement that is intended (whether expressly or by implication) to survive the termination of the Agreement shall remain in full force and effect, including Clauses 6 (Confidentiality and Publicity); 7 (Intellectual Property), 9 (Representations and Warranties); 11 (Limitation of Liability); 12 (Indemnities); 13 (Term and Termination); 15 (Notices) and 16 (General). |
14. FORCE MAJEURE
14.1 | If Supplier is prevented, hindered or delayed in or from performing any of its obligations under the Agreement due to a Force Majeure Event, the performance of Supplier’s obligations under the Agreement shall be suspended during the period the Force Majeure Event prevents, hinders or delays Supplier’s performance of its obligations without any liability to Customer, provided that Supplier promptly notifies Customer in writing of the Force Majeure Event and the likely duration of any impact of the Force Majeure Event on its ability to perform any of its obligations. |
14.2 | If the Force Majeure Event prevents, hinders or delays Supplier’s performance of its obligations for a continuous period of more than ninety (90) days, Supplier may terminate the Agreement immediately by giving written notice to Customer. |
15. NOTICES
15.1 | Notices under the Agreement may be delivered by hand, by electronic mail or by mail to the addresses and contact details of the Parties as specified in the Quotation. |
15.2 | Any notice served on a Party will be deemed to have been received:
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15.3 | If a notice would otherwise be deemed to be received after 5 p.m. on a Business Day or on a day other than on a Business Day, the notice will be deemed to be received on 9 a.m. on the next Business Day. |
16. GENERAL
16.1 | Entire Agreement. The Agreement, and the documents in it, constitutes the entire agreement and understanding between the Parties relating to the subject matter of the Agreement and no Party has entered into the Agreement in reliance upon any representation, warranty or undertaking of the other Party which is not set out in the Agreement. Nothing in this Clause 16.1 shall however operate to limit or exclude liability for fraud. |
16.2 | Variation. No variation of the Agreement shall be effective unless it is in writing and signed by the Parties. |
16.3 | Assignment. Customer shall not assign, transfer, charge or otherwise deal with all or any of Customer’s rights under the Agreement nor grant, declare or dispose of any right or interest in it without the prior written consent of Supplier. Supplier may assign, transfer, charge or otherwise deal with all or any of its rights under the Agreement, or grant, declare or dispose of any right or interest in connection thereto, without Customer’s prior written consent. |
16.4 | Illegality. The illegality, invalidity or unenforceability of any provision of the Agreement under the law of any jurisdiction shall not affect its legality, validity or enforceability under the law of any other jurisdiction nor the legality, validity or enforceability of any other provision. |
16.5 | Waivers. No failure on the part of any Party to exercise, and no delay on its part in exercising, any right or remedy under the Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. The rights provided in the Agreement are cumulative and not exclusive of any rights or remedies provided by law. |
16.6 | No Partnership. The Parties hereto are independent contractors and neither Party is a partner or joint venturer or employee or agent of the other nor is either Party entitled to act as the other Party’s agent nor shall the latter be liable in respect of any representation act or omission of the former of whatever nature. For the avoidance of doubt, each Party shall have no authority, express or implied, to assume or create any obligation or liability on behalf of the other Party, and shall have no authority to represent the latter in any other capacity except as expressly provided in the Agreement. |
16.7 | Contracts (Rights of Third Parties) Act 2001. Save for Indemnitees referred to in Clause 12, a person who is not a Party to the Agreement shall have no right to enforce or enjoy the benefit of any term of the Agreement under the Contracts (Rights of Third Parties) Act 2001. Notwithstanding any term of the Agreement, the consent of any person who is not a party to the Agreement is not required to rescind or vary the Agreement at any time. |
16.8 | Governing Law and Dispute Resolution. The Agreement shall be governed by, and construed in accordance with, the laws of Singapore. Any dispute arising out of or in connection with the Agreement, 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 in accordance with the Arbitration Rules of the Singapore International Arbitration Centre for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat of the arbitration shall be Singapore. The tribunal shall consist of one (1) arbitrator. The language of the arbitration shall be English. |
16.9 | Electronic Signatures. The Parties agree that the Agreement may be executed by way of electronic signatures and the Parties agree that the Agreement, or any part thereof, shall not be denied legal effect, validity or enforceability solely on the ground that it is in the form of an electronic record. The Parties further agree that they shall not dispute the validity, accuracy, legal effectiveness or authenticity or enforceability of the Agreement merely on the basis that the Agreement is executed by way of electronic signatures, and that such electronic record shall be final and conclusive of the Parties’ agreement of any relevant matter as set out in the Agreement. |
SCHEDULE 1 SERVICE LEVELS
1. | Platform and App Availability |
1.1 | Platform and App shall be made available twenty-four (24) hours per day and seven days per week, including public holidays, excluding scheduled downtime (“Scheduled Downtime”) notified to customer. |
1.2 | The availability of Platform and App excluding Scheduled Downtime shall not be less than 99.5% for any month. |
2. | Support Availability and Incident Response |
2.1 | The Support Services shall be available from 9 a.m. to 5 p.m. (GMT+8) on Business Days. |
2.2 | For incidents escalated to Supplier, Supplier will respond to and resolve the incident based on the severity set out below: Severity 1: Critical
Supplier will use reasonable efforts to respond to Severity 1 service requests within thirty (30) minutes. Supplier will work 24×7 until the Severity 1 service request is resolved, a reasonable workaround is put in place, or as long as useful progress can be made. Customer must provide Supplier with a technical contact during the 24×7 period to assist with data gathering, testing, and applying fixes. Customer are required to propose this severity classification with great care, so that valid Severity 1 situations obtain the necessary resource allocation from Supplier. Severity 2: Significant Severity 3: Standard Severity 4: Minimal |
2.3 | For the avoidance of doubt, Supplier shall have no obligation to provide any Support Services for any performance or availability issues to the Platform or App:
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