HitPay X Quickbooks/Xero Promotion - Terms and Conditions

SOFTWARE AGREEMENT

This service agreement (the “Agreement“) is dated on and shall be effective from the date of payment (the “Effective Date“).

BETWEEN:

  • SW TECH PTE. LTD. (UEN No. 202010267H), a company incorporated and existing under the laws of Singapore with its registered office at 101 Cecil Street #13-10, Singapore 069533 (the “Service Provider”);

(2)     The company that has paid the invoice for the software subscription

 (the “Customer“);

(Collectively referred to as the “Parties”, and each referred to as a “Party”)

NOW THEREFORE, and in consideration of the mutual undertakings set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, IT IS HEREBY AGREED as follows:

  1. Interpretation
  • Definitions

The definitions and rules of interpretation in this clause apply in this Agreement and the schedules to it.

  • Headings, Clauses and Schedules

The headings in this Agreement do not affect its interpretation. Except where the context otherwise requires, references to clauses and schedules are to clauses and schedules of this Agreement.

The schedules to this Agreement, together with any documents referred to in them, form an integral part of this Agreement and any reference to this Agreement means this Agreement together with the schedules and all documents referred to in them, and such amendments in writing as may subsequently be agreed between the Parties.

  • Definitions

Unless the context otherwise requires:

  • any reference to this Agreement includes the schedules, which form part of this Agreement and shall have effect as if set out in full in the body of this Agreement.;
  • if there is an inconsistency between any of the provisions in the main body of this agreement and the schedules, the provisions in the main body of this agreement shall prevail;
  • words in the singular shall include the plural and in the plural shall include the singular;
  • this Agreement shall be binding on and inure to the benefit of each of the successors and permitted assigns of the Parties, and any reference in this Agreement to any of the Parties hereto shall be construed accordingly;
  • a reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.
  1. Software Subscription License

 Upon receiving the Fee (as defined below) as provided under Clause 3.2 below, the Service Provider shall provide to the Customer a non-exclusive license (the “License”) to use the stated software (the “Software”) for the Initial Subscription Term (as defined below) through an account (the “Account”). The number of users allowed per License is subjected to change in accordance with the T&C of the software provider.

Use of the License, Software, and Account shall be subject to their respective standard and prevailing license terms (the “T&Cs”), including but not limited to the Terms of Service for various softwares, by which the Customer agrees to be bound. The Customer shall comply with such license terms and shall indemnify and hold the Service Provider harmless against any loss or damage which it may suffer or incur as a result of the Customer’s breach of such terms however so arising. Copies of the same are annexed herewith at SCHEDULE 1

The Service Provider shall not be responsible for any additional fees or charges however so incurred by the Customer under or in relation to the License, Software, or Account, whether in the course of or after the Subscription Term (as defined below).

The Service Provider may treat the Customer’s breach of the T&Cs as a breach of this agreement.

  • Subscription Term

The subscription with the Customer shall begin with an initial subscription-free period of 3 months (the “Subscription Free Period”). The start date when the Customer has transferred billing to the Service Provider unless otherwise stated. The Subscription Free Period shall be provided on contingent that the Customer subscribes to the Initial Subscription Term (defined below). The License shall, unless this Agreement is otherwise terminated as provided in Clause 9 below, commence starting from the Subscription Free Period and continue for an additional 12 months or 12 payments (the “Initial Subscription Term”) and, thereafter, shall be automatically renewed for successive periods of one-month (each a “Renewal Period”) unless either Party provides written notice of termination at least thirty (30) days prior to the expiration of the Renewal Term.

If no such notice or proposed amendments are received within the aforementioned period, this Agreement shall be automatically renewed for the subsequent Renewal Term under the same terms and conditions. The Initial Term and any Renewal Terms collectively shall be referred to as the ‘Term’ of this Agreement.

 

  • Subscription Fees

 

All subscription fees (the “Fees”) charged will be based on the prevailing retail price of the Software under subscription along with the T&Cs unless otherwise stated. If prevailing retail prices change based on information provided by the software vendor, the Customer will have deemed knowledge of this change and we will charge the renewed price to the Customer.

The subscription fee will be solely for the software. Any additions to the Software, for example additional modules, will be charged separately.

 

 

  1. Payment terms

In consideration of the provision of the License and the Software by the Service Provider in accordance with the terms and conditions of this Agreement, the Customer shall pay to the Service Provider the subscription fee (the “Fee”) upfront on the Effective Date. The Fee is due immediately upon receipt unless stated otherwise in the Invoice. We reserve the right to impose a late payment interest for fees overdue at 2.5% per month after the invoice is one month overdue.

The Service Provider reserves the right to refuse delivery of Software, including the deletion of the Account, if there are outstanding unpaid fees. Fees paid to the Service Provider are not refundable under any circumstances.

 

  • Taxes

The Customer will be solely responsible for paying any taxes, including GST (if applicable), that are due in relation to our deliverables and the Services. The Customer will pay to the Service Provider the full Fee, regardless of any deduction that it is required by law to make. 

  1. Limitation of Liability 

Except as expressly provided in this Agreement and to the fullest extent permitted by applicable law:

  • the Customer shall be solely responsible, as against the Service Provider, for any opinions, recommendations, forecasts or other conclusions made or actions taken by the Customer, any client of the Customer or any other third party based (wholly or in part) on the results obtained from the use of the Services by the Customer;
  • the Service Provider shall have no liability for any damage caused by errors or omissions in any information or instructions provided to the Service Provider by the Customer in connection with the Services; and
  • the Service Provider shall not be held liable for any issues or obligations, statutory or operational, prior to the date of appointment; and
  • all warranties, representations, conditions, and all other terms of any kind whatsoever implied by statute or common law are excluded from this Agreement.
  • Exclusions 

The Service Provider shall not in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:

  • any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation, or goodwill;
  • any loss or corruption (whether direct or indirect) of data or information;
  • loss (whether direct or indirect) of anticipated savings/benefits or wasted expenditure (including management time); or
  • any loss or liability (whether direct or indirect) under or in relation to any other contract.
  • Liability Cap

Subject to this Clause 7, the Service Provider’s total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement or any collateral contract shall be limited to the price paid for the Services.

  • Liability to Customer Alone

The Service Provider accepts no liability to anyone, other than the Customer, in connection with the Services and deliverables, unless otherwise agreed in writing. The Customer agrees to indemnify the Service Provider for any liability (including legal costs) that is incurred in connection with any claim by anyone else in relation to the Services. 

  • No Claims Against Individual(s)

The Customer agrees not to bring any claim (including negligence) against any of the Service Provider’s employees, or employees of the Service Provider’s affiliates,  or subcontractors personally in connection with the Services.

 

  • Group Members

The Customer will ensure that no group member including its subsidiaries, associated companies and holding company (unless a party to the contract), both while they are a group member and thereafter, brings any claim against any of the Service Provider’s affiliated entities or related firms (or its partners, members, directors or employees) or subcontractors in respect of any liability relating to the Services or this Agreement. 

  • Limitation Period

Any claims must be brought no later than two (2) years after the date the claimant should have been aware of the potential claim and, in any event, no later than two (2) years after any alleged breach. 

  1. Termination

Without prejudice to any rights that have accrued under this Agreement or any of its rights or remedies, either Party may at any time terminate this Agreement with immediate effect for material breach of this Agreement by giving one (1) month’s written notice to the other Party if:

  • the other Party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
  • the other Party commits a material breach of any term of this Agreement (other than failure to pay any amounts due under this Agreement) and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
  • the other Party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
  • the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; and
  • any warranty given by the other Party is found to be untrue or misleading.

On termination of this Agreement for any reason, the Customer shall immediately pay any outstanding unpaid invoices and interest due to the Service Provider. The Supplier shall submit invoices for any Services that it has supplied, but for which no invoice has been submitted, and the Customer shall pay these invoices immediately on receipt.

The Minimum Service Period shall be a period of 12 months and stated in this Service Agreement.

In the event you decide to terminate the services within 12 months from the Initial Term, the Client shall be liable to the Service Provider the difference between the service fees that the Service Provider would have imposed or charged the Client for 12 months, had the services not been terminated prior to the Minimum Service period, and the service fees actually paid by the Client.

The Client acknowledges and agrees that the payment obligations outlined in this clause are a reasonable measure to compensate the Service Provider for the costs incurred and the commitment made to deliver the services for the specified duration.

 

  • Data Clearing on Termination

 

The Customer shall have 7 days from the termination of this Agreement to export any of its own data or information from the Account at its own cost and expense, following which the Service Provider shall withdraw the Customer’s rights to access and use the License, Software, and Account, and any data and information remaining in the Account after such date shall be deleted by the Service Provider.

On termination of this Agreement for any reason, each Party shall as soon as reasonably practicable, return, destroy or permanently delete (as directed in writing by the other Party) any documents, information or data provided to it by the other Party containing, reflecting, incorporating or based on confidential information belonging to the other Party.

  1. Representations and Warranties

Each Party represents and warrants to the other Party that:

  • it has the right, power, and authority to enter into, execute, deliver, and perform its obligations under this Agreement;
  • all action, conditions and things required to be taken, fulfilled and done (including the obtaining of any necessary consents) in order (i) to enable it lawfully to enter into, exercise its rights and perform and comply with its obligations under this Agreement, (ii) to ensure that those obligations are legally binding and enforceable, and (iii) to make this Agreement admissible in evidence in any relevant jurisdiction have been taken, fulfilled and done;
  • its entry into, exercise of its rights and/or performance of or compliance with its obligations under this Agreement do not and will not violate (i) any law to which it is subject, (ii) any provision of its constitutive documents or (iii) any agreement to which it is a party or which is binding on it or its assets; and
  • its obligations under this Agreement are valid, binding, and enforceable in accordance with their respective terms.

The Customer:

  • warrants to the Service Provider that it will at all times comply with all applicable laws and regulations with respect to its activities under this Agreement and in connection with any part of the software;
  • shall indemnify the Service Provider against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other [reasonable] professional costs and expenses) suffered or incurred by the Service Provider arising out of any non-compliance by the Customer.
  • any unauthorised modifications, use or improper installation of the Software by or on behalf of the Customer shall render all the Service Provider warranties and obligations under this Agreement null and void.
  1. Assignment

 

Neither Party shall assign, transfer, mortgage, charge, subcontract, declare a trust of or deal in any other manner with any or all of its rights and obligations under this Agreement without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed).

  1. Waiver

No failure or delay by the Service Provider to exercise any right or remedy provided under this Agreement or by law shall operate as a waiver thereof or be sufficient to raise an estoppel against the Service Provider or in favour of the Customer, nor will any single or partial exercise of any right or remedy preclude or restrict any further exercise of any other right or remedy.

No indulgence granted by the Service Provider shall be construed as a waiver of its rights or remedies against the Customer. No waiver of any terms in this Agreement shall be valid unless being made in writing signed by or on behalf of the Parties.

  1. Variation

This Agreement shall not be amended, varied, supplemented, or otherwise modified except by an amendment in writing signed by an authorised representative(s) of each of the Parties to this Agreement.

  1. Confidentiality
  • Confidential information

The Service Provider agrees to keep secret and confidential any confidential information prepared and/or supplied by the Customer. The Parties agree to use each other’s confidential information only in relation to the Services, which shall not be disclosed, or otherwise communicated in any manner, by any of the Parties to any third party without the prior written consent of each of the Parties, other than:

  • to the Parties’ respective auditors, insurers and lawyers on terms which preserve confidentiality; or
  • pursuant to an order of a court of competent jurisdiction or pursuant to any proper order or demand made by any competent authority or body where the disclosing Party is under a legal or regulatory obligation to make such a disclosure; or
  • as far as necessary to implement and enforce any of the terms of this Agreement.

Confidential information is defined as any information the Customer discloses to the Service Provider in the course of the Service Provider’s work with the Customer, either directly or indirectly in writing, verbally or by inspection of tangible objects, including, without limitation, documents, designs, business plans, strategies, analysis,  marketing  plans,  customer  names, customer lists and customer data. However, confidential information shall not include any information which (a) release has been agreed to by the Customer pursuant to the scope of this Agreement, (b) was publicly known and generally available after the Customer‘s disclosure to the Service Provider, (c) becomes publicly known and made generally available to the Service Provider after the Customer‘s disclosure to the Service Provider through no action or inaction on the Service Provider’s part and (d) is required to be disclosed by law or by relevant authorities, such as Inland Revenue Authority of Singapore. The Service Provider shall procure for the delivery of the same to the Customer forthwith upon its request and in any event upon the termination of this contract (howsoever arising). The Service Provider obligations herein shall continue in effect notwithstanding the termination of this Agreement.

  • Referring to the Customer and the Services

The Customer agrees that the Service Provider may refer to the Customer and the Services performed for the Customer when marketing the Service Provider’s services, use the Customer’s company logo when citing the Service Provider experience in proposal documents. The Customer agrees that the Service Provider and may do so, as long as the Service Provider does not disclose the Customer’s confidential information. 

  1. Data Protection
  • Personal Data

The Customer agrees that the Service Provider may process the Customer’s employees, contractors, clients and other individuals’ personal data for the purposes of any of (a) providing the Services, (b) maintaining the Service Provider’s administrative or client relationship management systems, including the use of IT outsource providers, (c) quality and risk management reviews.

  • Data Processor

Where the Service Provider acts as the Customer’s data processor, it will act only on the Customer’s lawful instructions and will comply with the relevant laws and keep such data confidential and secure. 

  1. Rights of Third-Parties

A person who is not a party to this Repayment Agreement shall not have any right under the Contracts (Rights of Third Parties) Act to enforce or to enjoy the benefit of any term of this Agreement.

  1. Force Majeure

No party will be liable to another if it fails to meet its obligations due to matters beyond its reasonable control. 

Neither Party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, including non-performance by third-parties or subcontractor. In such circumstances, the affected Party shall be entitled to a reasonable extension of the time for performing such obligations.

  1. Notices

Unless otherwise agreed in writing, any notices served under this Agreement shall be deemed valid if sent by registered post, e-mail, or fax to the Parties’ respective addresses set out below, or at the option of the Party receiving such a notice, to their appointed legal advisers. Such notice shall be deemed duly served:

  • if it is sent by registered post, three (3) days after posting thereof, or
  • if it is sent by email or fax, immediately after transmission thereof, if the date of the transmission is a working Day, and if such a date is not a working day, then the notice by email or facsimile shall be deemed to be served on the immediately following working day.

In proving the giving of a notice or any other document under or in respect of this Agreement it shall be sufficient to show:

  • if by way of registered post, that the notice has been duly addressed and posted; to the below addresses or;
  • if by way of email and/or fax, that the email and/or fax was duly transmitted from the despatching terminal as evidenced by a transmission report generated by the despatching terminal.
  1. Dispute Resolution

The Singapore courts will have exclusive jurisdiction over any dispute, whether contractual or non-contractual. 

If a dispute arises, the Parties will attempt to resolve it by good faith discussion, negotiation, and mediation before commencing legal proceedings. 

  1. Governing Law

This Agreement is governed by and shall be construed in accordance with the laws of Singapore.

SCHEDULE 1

Taken from:

https://quickbooks.intuit.com/sg/terms-of-service/

https://www.xero.com/sg/legal/terms/