Commercial Agreement | Proxtera

COMMERCIAL AGREEMENT

THIS AGREEMENT is made on [day-month-year] (the “Agreement“).

BETWEEN

(1) PROXTERA PTE. LTD., a company incorporated in Singapore bearing company registration number 202018854C and having its registered office at 7 Straits View, #12-00, Marina One East Tower, Singapore 018936 (“Proxtera“); and

(2) [name of Participating Platform entity], a company incorporated in [country] bearing company registration number [number] and having its registered office at [address] (the “Participating Platform“),

(each, a “Party” and collectively the “Parties“).

WHEREAS:

(a) Proxtera operates the Proxtera Network (as defined below).

(b) During the Term (as defined below), Proxtera will provide the Services (as defined below) to the Participating Platform on the Proxtera Network, which is being hosted on the cloud. 

(c) This Agreement governs the Participating Platform’s access to the Proxtera Network and the usage of the Services on the Proxtera Network during the Term (as defined below).

AGREEMENT DETAILS

Services

Proxtera Network Subscription Service:

 

(i) Listing, publishing, searching, enabling cross-platform buying / selling, matching, and other procurement to fulfillment services, enabled via the Participating Platform.

(ii) Access to escrow payments service, a Third Party Service enabled by Proxtera’s protected payments service provider 

(iii) Access to Third Party Services (marketplace services, e.g., financing, logistics and transportations services, etc.). 

Utilisation of Third Party Services will be subject to additional terms and conditions, to be agreed upon by End Customers and the respective Third Party Service Providers. Additional Proxtera terms may apply which will be appended to this Agreement (the form of which is set out in Schedule 3).

Term

Initial term commencing on [1 March 2021] and ending on [28 February 2022] 

 Renewable automatically for subsequent terms of 12 months each, unless terminated in accordance with this Agreement.

Service Charges

 Fixed Component: A monthly fixed component based on the number of End Customers opted-into Proxtera’s Services, i.e. the number of SME profiles created on Proxtera that is tagged to the Participating Platform. The Fixed Component will be calculated by Proxtera at the same time as the calculation of the Variable Component and Rebate. Proxtera shall issue a monthly invoice to the Participating Platform which shall be paid within 30 calendar days

 Variable Component: A monthly variable component based on a proportion of the total Transaction Value (as detailed below) of Transactions concluded by the Participant Platform’s End Customers each month, such component to be calculated by Proxtera. Proxtera will have two collection mechanisms for the Variable Component:

o If the Transaction utilized Proxtera’s escrow payments service: The Third Party Service provider will facilitate collection of Proxtera’s Variable Component from the seller Participating Platform or seller End Customer

o If the Transaction did not utilize Proxtera’s escrow payments service: The Variable Component shall be set-off against the amount of Rebates (set out below), to be calculated by Proxtera at the same time as the calculation of the Fixed Component and Variable Component. Proxtera shall issue a monthly invoice to the Participating Platform which shall be paid within 30 calendar days.

The above-mentioned Fixed Component and Variable Component can be found in Schedule 2.

Any amendment to above Fixed Component and Variable Component will be communicated to Participating Platforms four (4) weeks before implementation. 

Cost of Third Party Services will be charged on actuals and payable by the End Customers to the Third Party Service Provider.

Rebates

Regardless of cross-border or domestic transactions, a rebate will be provisioned and split between buyer & seller platforms. The rebate will be calculated by Proxtera, at the same time as the calculation of the Fixed Component and Variable Component. 

The above-mentioned Rebates can be found in Schedule 2.

Any amendment to above Rebates will be communicated to Participating Platforms four (4) weeks before implementation.

Schedules

Schedule 1: General Terms and Conditions

Schedule 2: Services Provisos

Schedule 3: Additional terms (template)

1. This Agreement is made up of the following:

(a) The Agreement Details.

(b) The Schedules specified in the Agreement Details.

2. If there is any conflict or ambiguity between the terms of the documents listed in paragraph 1, a term contained in a document higher in the list shall have priority over one contained in a document lower in the list.

3. A reference to “Clause” refers to a clause under Schedule 1 (General Terms and Conditions), unless otherwise expressly provided.

[signature page follows]

This Agreement has been entered into on the date stated at the beginning of it.

PROXTERA

Proxtera Pte. Ltd.

THE PARTICIPATING PLATFORM 

[Name of Participating Platform]

Schedule 1: General Terms and Conditions

1. DEFINITION AND INTERPRETATION

1.1. The following definitions and rules of interpretation apply in this Agreement.

Associated Materials” means, in the context of the Services, any materials provided, developed, or otherwise made available by Proxtera or its service providers in respect of or in relation to the Proxtera Network, including but not limited to any then-current technical and functional documentation for those Services;

Business Day” means a day other than a Saturday, Sunday or public holiday in Singapore when banks in Singapore are open for business;

Buy / Sell Transactions has the meaning ascribed to it in Clause 9.5;

Confidential Information” means in relation to either Party, any information (whether or not stated to be confidential or marked as such) which that Party discloses to the other, either orally or in writing or by any other means, under or in connection with this Agreement;

End Customer” means each of the customer of, and/or member registered with, the Participating Platform;

End Customer Data” means (a) any data (whether true or not) about such End Customer; and (b) any electronic data and information uploaded, published, shared or submitted by the End Customer (whether through the Participating Platform or otherwise) to the Proxtera Network, including (but not limited to) photos, videos, comments, data, text, links and any other information, including any Personal Data;

Force Majeure Event has the meaning ascribed to it in Clause 16; 

Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), source and object codes, format, directories, queries, algorithms, structure and organization of any Service or the Proxtera Network, 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;

Malicious Material” means (a) any material containing software viruses, worms, trojan horses or other harmful computer code, files, scripts, agents or programs; (b) any automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation and/or performance of the Proxtera Network and/or the Services; or (c) any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Proxtera Network, Services or their contents; 

Participating Platform Data” means any electronic data and information originating from and uploaded, published, shared or submitted by the Participating Platform to the Proxtera Network, including (but not limited to) photos, videos, comments, data, text, links and any other information, including any Personal Data;

Participating Platform Personnel” in relation to the Participating Platform, means any individual being an employee, agent, contractor or representative of the Participating Platform to which the Participating Platform grants access credentials to access and/or use the Services;

Personal Data” means any information relating to an identified or identifiable natural person, or such other types of information as may be the subject of and protected under Personal Data Protection Laws;

Personal Data Protection Laws” means any and all applicable laws and regulations relating to the protection of Personal Data, which may include (without limitation) the laws of each Party’s jurisdiction of incorporation;

Proxtera-Assistance Period” has the meaning ascribed to it in Clause 9.5(e);

Proxtera Network” means the network known as “PROXTERA”, which is developed, managed and operated by Proxtera as an information interchange for customers of business-to-business (B2B) platforms to be connected to one another and to service providers such as merchants, financial institutions, advisory services providers, clearing agents, logistics providers, and marketing agents, and shall include any subsequent system enhancements made to the Proxtera Network from time to time by Proxtera;

Proxtera Operations Rulebook” means the rulebook prepared by Proxtera and made available to the Participating Platform, as may be amended from time to time;

Services” means the services on the Proxtera Network provided by Proxtera to the Participating Platform pursuant to the terms of this Agreement, as initially set out in the Agreement Details and as may be supplemented, modified or amended from time to time by the Parties; 

Service Charges” means the charges for the Services, as initially set out in the Agreement Details and as may be supplemented, modified or amended from time to time by the Parties;

Specifications” means the Services specifications as separately provided by Proxtera to the Participating Platform, as may be modified, amended or updated by Proxtera from time to time;

Submitted Data” means any data that is submitted and/or stored on the Proxtera Network (whether by the Participating Platform, End Customer, or other person), including but not limited to the Participating Platform Data and End Customer Data;

Term” means the term as described in the Agreement Details;

Terms of Use” shall have the meaning ascribed to it in Clause 2.4;

Third Party Services” has the meaning ascribed to it in Clause 9.6;

Third Party Service Providers” has the meaning ascribed to it in Clause 9.6;

Third Party Websites” has the meaning ascribed to it in Clause 9.6;

Transactions” means any Buy / Sell Transaction, or any transaction between Users and Third Party Service Providers;

Transaction Value” means the monetary consideration that is agreed to be exchanged for goods and/or services pursuant to transactions or service arrangements facilitated by the Proxtera Network;

United States Dollars” or “US$” means the lawful currency of the United States of America; and

Users” has the meaning ascribed to it in Clause 9.5.

1.1 Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.

1.2 The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.

1.3 All references to “applicable laws” shall include all laws, rules and regulations (in each case, as amended from time to time) applicable to either Party, this Agreement and/or any transaction contemplated hereunder.

1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.5 A reference to writing or written includes fax and e-mail.

1.6 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

2. COMMENCEMENT AND SERVICES

2.1. Proxtera shall provide the Services to the Participating Platform on the terms and conditions of this Agreement.

2.2. This Agreement commences on the date of this Agreement and continues until terminated in accordance with Clause 12.

2.3. Subject to the Participating Platform’s payment of the Service Charges set out in the Agreement Details, Proxtera grants the Participating Platform (including its Participating Platform Personnel) a non-exclusive, non-transferable, right to access and use the Services for the purposes of the business operations of the Participating Platform and its End Customers. 

2.4. The Participating Platform shall ensure that all End Customers who access or use the Proxtera Network via the Participating Platform are provided with and abide by the Proxtera Network Terms of Use as made available from time to time at [www.proxtera.com/termsofuse] (“Terms of Use“). The Parties agree that:

(a) the Participating Platform shall ensure that the Terms of Use forms a binding contractual agreement between the Participating Platform and its End Customers; and

(b) an End Customer whose access and/or use of the Services or Proxtera Network is limited solely to the End Customer performing buy-side searches / queries will not be required to agree to the Terms of Use. 

2.5. In the event that Proxtera desires to enforce any provision of the Terms of Use against the End Customer, the Participating Platform agrees and undertakes that it shall upon Proxtera’s request enforce the Terms of Use on behalf and for the benefit of Proxtera.

2.6. The Participating Platform agrees that its obligations under this Agreement are not contingent on the delivery of future features or functionality of the Proxtera Network, or dependent on any oral or written public comments made by Proxtera regarding future features or functionality of the Proxtera Network. 

3. PROXTERA’S RESPONSIBILITIES

3.1. Proxtera shall use commercially reasonable efforts to make the Proxtera Network and online Services available other than in the event of any: 

(a) planned or unplanned downtime or maintenance period; 

(b) unavailability or downtime of the Proxtera Network caused by a Force Majeure Event; or

(c) breach of the terms of this Agreement by the Participating Platform. 

4. PARTICIPATING PLATFORM’S OBLIGATIONS

4.1. The Participating Platform must during the term of this Agreement:

(a) maintain appropriate security standards for its Participating Platform Personnel’s and its End Customers’ access and use of the Proxtera Network, and ensure that its platform shall not unreasonably impair, degrade or reduce the performance or security of the Proxtera Network; 

(b) comply with all applicable laws in relation to the subscription for, and use of, the Services, and obtain and maintain all necessary licenses and consents for the operation of, and the sale of products and services on, the platform managed and/or operated by the Participating Platform; 

(c) allow its End Customers to use the Services only in accordance with this Agreement, applicable laws and governmental regulations; and 

(d) prevent any unauthorized access to or use of the Services, and notify Proxtera promptly of any such unauthorized access or use.

4.2. The Participating Platform shall not:

(a) offer the Services for the benefit of anyone other than its End Customers, unless expressly agreed in writing between Proxtera and the Participating Platform; 

(b) sell, resell, license, distribute, sublicense, lease or outsource any of the Services, unless otherwise expressly permitted by this Agreement; 

(c) use the Proxtera Network to store, transmit or make available any unlawful material, or to store, transmit or make available any material in violation of any third-party intellectual property or privacy rights; 

(d) incorporate, introduce or store any Malicious Material on the Proxtera Network or use the Services or the Proxtera Network to spread or transmit any Malicious Material; 

(e) interfere with or disrupt the integrity or performance of any of the Services, the Proxtera Network or third-party data contained therein; 

(f) attempt to gain unauthorised access to any part of the Proxtera Network or its related systems or networks, or use any Service to access or use any of Proxtera’s intellectual property unless otherwise expressly permitted under this Agreement; 

(g) modify, copy or create derivative works based on a Service or the Proxtera Network, or any part, feature, function or user interface thereof; 

(h) permit direct or indirect access to the Proxtera Network or use of any Service in a way that circumvents any restrictions set by Proxtera; and

(i) disassemble, reverse engineer, or decompile a Service or the Proxtera Network (including any information, text, images, graphics, video clips, sound, directories, files, databases or listings, etc. available on or through the Service or access to the Proxtera Network) or access it to build a competitive product or service, or build a competitive product or service using similar ideas, features, functions or graphics of the Service or the Proxtera Network, or copy any ideas, features, functions or graphics of the Service or the Proxtera Network, or to determine whether either the Service or the Proxtera Network are within the scope of any patent. For the avoidance of doubt, any systematic retrieval of information or content available through the Services or access to the Proxtera Network to create or compile, directly or indirectly, a collection, compilation, database or directory (whether through automatic or manual processes) without written permission from Proxtera is prohibited. 

4.3. The Participating Platform hereby agrees that any use of the Services or the Proxtera Network which: (a) is in material breach of any term under this Agreement; or (b) threatens the security or the availability of any aspect of the Services or the Proxtera Network, may: (i) result in immediate suspension or termination of the provision of or access to the Services to the Participating Platform; and (ii) entitle Proxtera to request the Participating Platform to, at its sole expense, effect or procure the suspension or termination of an End Customer’s access to the Services or the Proxtera Network within 3 Business Days. Proxtera may in its sole discretion lift such suspension and/or reinstate access (as the case may be). 

In the event that Proxtera directs the Participating Platform to suspend or terminate its End Customer’s access to the Services or Proxtera Network, the Participating Platform shall at its own expense, and without any cost or liability arising on the part of Proxtera, unwind all transactions facilitated by the Proxtera Network to which such End Customer is a party to and which has not been finalised. For the purposes of this Clause, a transaction is “finalised” when the obligations of each party to the transaction have been fulfilled and the Proxtera-Assistance Period has expired. The details and procedures for the unwinding of such transactions shall be as set out in the Proxtera Operations Rulebook. 

4.4. The Participating Platform hereby agrees that:

(a) it is solely responsible for any breach of the terms of this Agreement arising or resulting from the access and use of the Services or the Proxtera Network by any of its employees, agents, contractors, representatives, or its End Customers;

(b) it is solely responsible for conducting the relevant background checks and other verifications in respect of its End Customers in compliance with all laws and regulations applicable to the Participating Platform. Proxtera may require the Platform to furnish documentary details for the verification of any End Customers to ensure compliance with applicable laws (including but not limited to anti-money laundering and countering of financing of terrorism regulations). In the event that Proxtera determines that any End Customer’s continued access to the Proxtera Network or Services may result in a potential breach of applicable laws, Proxtera may in its sole discretion suspend or terminate such End Customer’s access to the Proxtera Network or Services;

(c) Proxtera may also suspend the Participating Platform and/or its respective End Customer’s access to the Proxtera Network and Services, or block any transfer, transmission or delivery of Participating Platform Data, End Customer Data, Submitted Data, and/or other communication on the Proxtera Network as part of Proxtera’s efforts to protect the Proxtera Network and its users, any Services, or otherwise to enforce any terms of this Agreement. 

5. PROXTERA SUPPORT

During the term of this Agreement, Proxtera shall exercise its commercially reasonable efforts to ensure that the Services will perform substantially in accordance with the Specifications, although the Participating Platform acknowledges that the Services may not be error free. 

6. CHARGES AND PAYMENT

6.1. In consideration of the provision of the Services by Proxtera, the Participating Platform shall pay the Service Charges as set out in the Agreement Details. 

6.2. Time is of the essence for the payment of the Service Charges and payment obligations are non-cancellable.

6.3. Save as otherwise expressly provided under this Agreement, all sums payable to Proxtera under this Agreement shall become due immediately on the termination of this Agreement, and the Participating Platform shall pay all amounts due under this Agreement in full without any deduction except as required by law and the Participating Platform shall not be entitled to assert any credit, set-off or counterclaim against Proxtera in order to justify withholding payment of any amount due, in whole or in part.

7. DATA 

Collection, processing and use

7.1. The Participating Platform agrees that Proxtera may collect the Participating Platform Data and End Customer Data, and shall procure its End Customers to agree that Proxtera may collect the End Customer Data, in the following general non-exhaustive situations:

(a) when the Participating Platform or any End Customer registers or otherwise requests for access and use of the Proxtera Network and the Services;

(b) when the Participating Platform or any End Customer uses any aspect of the Services or any features and functions available on or via the Proxtera Network; and

(c) when the Participating Platform or any End Customer submits any query, feedback or reports a problem in respect of the Proxtera Network or the Services. 

7.2. The Participating Platform consents to Proxtera collecting, using, disclosing, transferring and/or processing the Participating Platform Data and End Customer Data, including any transaction data, and shall procure its End Customers to consent to Proxtera collecting, using, disclosing and/or processing the End Customer Data, for the business and activities of Proxtera, including (but without limitation) the following purposes:

(a) to perform Proxtera’s obligations in respect of the terms of this Agreement and the provision of the Services;

(b) to process, manage or verify any identity or requests to use the Proxtera Network or Services pursuant to this Agreement; 

(c) for Proxtera’s administrative and analytics purposes, such as auditing, data analysis, database records;

(d) for Proxtera to comply with its obligations under any applicable laws, regulations, guidelines or notices issued by any government or regulatory authority (whether in Singapore or overseas including disclosing such data to Singapore or overseas law enforcement agencies or courts);

(e) to respond to the questions, comments and feedback of the Participating Platform, End Customers, and/or other users of the Proxtera Network;

(f) to develop, operate, improve, deliver or maintain the Services; and/or

(g) any other purpose relating to Proxtera’s operations or the Services, including the transfer or export, whether locally or cross-border, of such data to third parties for or in connection with any of the purposes described in this Clause, in accordance with all applicable data protection laws and regulations including, where applicable, ensuring that any data transferred or exported will be protected to a standard required under applicable data protection laws. 

7.3. Notwithstanding the foregoing, the Participating Platform hereby acknowledges that any incomplete or inaccurate data submitted to Proxtera may cause Proxtera to be unable to provide the Services (or parts thereof) and restrict or deny the Participating Platform’s and/or the End Customers’ usage of the whole or any part of the Proxtera Network or the Services.

Proxtera’s responsibilities 

7.4. Proxtera hereby represents, warrants and undertakes to the Participating Platform that:

(a) Proxtera shall protect all Participating Platform Data and End Customer Data stored on the Proxtera Network which are in Proxtera’s control or possession by making reasonable security arrangements (including, where appropriate, physical, administrative, procedural and information & communications measures) to prevent unauthorised or accidental access, collection, use, disclosure, copying, modification, disposal or destruction of such data, or other similar risks. 

(b) Proxtera shall not transfer the Participating Platform Data and/or the End Customer Data otherwise than in accordance with applicable data protection laws and regulations. 

(c) Proxtera shall cease to retain the Participating Platform Data and the End Customer Data (or parts thereof, including Personal Data), or in the case of Personal Data shall remove the means by which the data can be associated with particular individuals: 

(i) upon Proxtera’s reasonable determination that the purpose for which the Participating Platform Data and/or End Customer Data (or parts thereof) was collected by or transferred to Proxtera is no longer being served by retention and retention is no longer necessary for legal or business purposes, or

(ii) where required under applicable data protection laws and regulations (including Personal Data Protection Laws).

Participating Platform’s responsibilities

7.5. The Participating Platform agrees that it is solely responsible for the Participating Platform Data and End Customer Data, and shall comply with all applicable obligations under Personal Data Protection Laws and all other applicable data protection laws, regulations, orders or codes of practice, at its own cost.

7.6. The Participating Platform hereby represents, warrants and undertakes to Proxtera that:

(a) The Participating Platform shall protect all Submitted Data which are in the Participating Platform’s control or possession by making reasonable security arrangements (including, where appropriate, physical, administrative, procedural and information & communications measures) to prevent unauthorised or accidental access, collection, use, disclosure, copying, modification, disposal or destruction of such data, or other similar risks. 

(b) By transferring any data, including Participating Platform Data, End Customer Data or any information relating to a third party, onto the Proxtera Network or otherwise disclosing such data to Proxtera, the Participating Platform has validly obtained all relevant consents of the End Customer and/or relevant third party for such transfer or disclosure. 

(c) The Participating Platform shall not transfer any End Customer Data or Submitted Data in its control or possession except pursuant to the terms of this Agreement or where such transfers are made in accordance with all applicable laws (and shall ensure that any such data transferred will be protected at a standard no less protective than that required under the provisions of this Agreement).

(d) The Participating Platform shall take all necessary actions or measures for Proxtera to comply with its obligations under any applicable data protection laws (including Personal Data Protection Laws).

(e) The Participating Platform shall cease to retain the End Customer Data and Submitted Data (including Personal Data), or in the case of Personal Data shall remove the means by which the data can be associated with particular individuals:

(i) as soon as it is reasonable to assume that the purpose for which the End Customer Data or Submitted Data was collected by or transferred to the Participating Platform is no longer being served by retention and retention is no longer necessary for legal or business purposes; or

(ii) where required under applicable data protection laws and regulations (including Personal Data Protection Laws).

(f) The Participating Platform shall make reasonable effort to ensure that any Participating Platform Data or End Customer Data which is submitted to the Proxtera Network is accurate and complete.

(g) The Participating Platform shall not use the Submitted Data from other platforms and their respective end customers for any purposes other than as contemplated under the terms of this Agreement.

Participating Platform to notify Proxtera of data protection queries and requests

7.7. The Parties agree that the Participating Platform shall notify Proxtera at the following e-mail address: partnerships@Proxtera.com in the event that the Participating Platform or its End Customer: 

(a) has any questions or feedback relating to the data privacy and protection terms as stated herein; 

(b) would, pursuant to applicable data protection laws, like to withdraw any consent to use any Personal Data which forms part of the Participating Platform Data and/or End Customer Data; or 

(c) would, pursuant to applicable data protection laws, like to obtain access and make corrections to any Personal Data within the Participating Platform Data and/or End Customer Data retained on the Proxtera Network.

Removal or modification of data

7.8. Subject to applicable laws, notwithstanding any other provision in this Agreement, Proxtera shall have the right (but not the obligation) in its sole and absolute discretion to refuse to accept and/or delete any Participating Platform Data, End Customer Data, or Submitted Data (or parts thereof) that is submitted and/or stored on the Proxtera Network. 

7.9. In the event that the Participating Platform receives any notice that any Participating Platform Data, End Customer Data or Submitted Data is in violation of any applicable law or contractual or third-party rights, the Participating Platform shall immediately inform Proxtera of such notice. Upon receipt of such notice, Proxtera shall have the right to forward the notice to the other relevant platform(s) on the Proxtera Network to which the data in question relates or was submitted from. 

7.10. If Proxtera informs the Participating Platform that any Participating Platform Data, End Customer Data or Submitted Data must be removed, modified and/or disabled to avoid violating any applicable law, third-party rights, or any terms of this Agreement, or to prevent any compromise to the availability or security of the Proxtera Network, the Participating Platform shall immediately without any delay follow any and all instructions provided by Proxtera. 

Audit

7.11. The Parties agree that Proxtera (or such other person authorised by Proxtera) shall be permitted to audit the usage of the Services by the Participating Platform and End Customers.

8. CONFIDENTIALITY

8.1. Each Party undertakes that it shall not at any time disclose to any person any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other Party or of any member of the group of companies to which the other Party belongs, except as permitted by Clause 8.2.

8.2. Each Party may disclose (the “disclosing party“) the other Party’s Confidential Information:

(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the Party’s obligations under this Agreement. Each Party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other Party’s Confidential Information comply with this Clause; 

(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority;

(c) where Proxtera is the disclosing party, to any of Proxtera’s affiliates, relevant subcontractors, and IT or other service providers (who may be located in other territories),

provided always that the Participating Platform acknowledges that Confidential Information shall include the Associated Materials.

8.3. Exceptions: No Party shall use the other Party’s Confidential Information for any purpose other than to: 

(a) perform its obligations under this Agreement; 

(b) disclose the Participating Platform’s procurement of Proxtera’s Services in any advertising, publicity campaigns, public statements, media releases, promotional or marketing materials of any kind (collectively, “publicity and marketing statements / materials“) to be given by either Party, provided that the Participating Platform shall obtain the prior written consent of Proxtera for any publicity and marketing statements / materials which uses or includes Proxtera’s name, trademarks, logo, materials, or purports to make any statement or representation in respect or on behalf of Proxtera or the Proxtera Network; or 

(c) take any action, or cause or permit anything to be done, for the business or operations of Proxtera to the extent that any information used is not specifically identifiable to any Participating Platform. 

9. DISCLAIMER

9.1. To the maximum extent permitted by any applicable law, Proxtera makes no warranty of any kind, whether express, implied, statutory or otherwise, regarding any matter, and specifically disclaims all implied warranties, including without limitation any implied warranty of merchantability, fitness for a particular use or purpose, accuracy of informational content, systems integration, non-interference with enjoyment, non-infringement of third party rights, results to be derived from the use of or integration with the Services, and/or that the Services will be secure, uninterrupted and/or error free. Proxtera does not make any warranty that the Services will be error free or uninterrupted. The Proxtera Network and the Services are provided “as is”, and as available exclusive of any warranty whatsoever.

9.2. The Proxtera Network and/or the Services may be subject to limitations, delays, and other issues inherent in the use of the internet and the type of technology that Proxtera may utilise for the Proxtera Network. Proxtera is not responsible for any delays, delivery failures, damages or losses resulting from such issues.

9.3. The Participating Platform acknowledges and agrees that the entire risk arising out of its use of the Proxtera Network and/or the Services remains solely and absolutely with the Participating Platform and End Customers, and the Participating Platform and End Customers shall have no recourse whatsoever to Proxtera.

9.4. For the avoidance of doubt, Proxtera shall not be in any way liable for any loss, damages, costs, expenses or other liabilities arising from or in connection with the failure by any End Customer to possess or obtain the requisite license, permit, consent and/or approval before the sale, provision or purchase of any goods or services (as the case may be) by such End Customer with the facilitation of the Proxtera Network.

Transactions between End Customers

9.5. The Parties agree and acknowledge that:

(a) Through the Proxtera Network, Proxtera facilitates the listing and exchanging of information between the end customers of participating platforms (“Users“) as buyers and sellers of B2B goods and services. For the avoidance of doubt, the Proxtera Network does NOT provide or serve as a transaction platform for Users to place, accept, conclude, manage and fulfil orders for the provision of goods and services (collectively, “Buy / Sell Transactions“), which will instead be processed and carried out between Users directly and/or on the respective participating platforms on which the Users are registered. For any Services, Proxtera does not represent either the seller or the buyer in any Buy / Sell Transaction. Proxtera does not control, make any representation or warranty in respect of, and is not liable or responsible for, the merchantability, quality, safety, lawfulness or availability of the products or services offered for sale listed on the Proxtera Network, the ability of the sellers to complete a sale, or the ability of buyers to complete a purchase.

(b) Proxtera does not verify the identity of each User and instead relies on each participating platform to conduct their respective verifications in respect of Users. Proxtera cannot and does not confirm any User’s purported identity.

(c) Users accessing or using the Proxtera Network and/or the Services shall assume the risks of conducting any Buy / Sell Transactions with any other User. Users accessing or using the Proxtera Network and/or the Services shall also fully assume all risks of liability or harm of any kind arising out of or in connection with any subsequent activity relating to the products or services that are the subject of any Buy / Sell Transactions. Examples of such risks shall include, without limitation, misrepresentation of goods and services, non-merchantability, unsatisfactory product quality, failure to meet specifications, defective or dangerous products, unlawful products, delay or default in delivery or payment or non-completion (including without limitation due to suspension, restriction or termination of any User’s use or access to the Proxtera Network and/or Services), cost mis-calculations, breach of warranty, breach of contract, transportation accidents, violation of third party rights arising from the manufacture, importation, export, distribution, offer, display, purchase, sale and/or use of products or services, and the risk that the User may incur costs of defense or other costs in connection with third parties’ assertion of such third party rights, or in connection with any claims by any party that they are entitled to defense or indemnification in relation to the assertion of rights, demands or claims by claimants of third party rights. Proxtera is not liable or responsible for any damages, claims, liabilities, costs, harm, inconveniences, business disruptions or expenditures of any kind that may arise as a result of or in connection with such risks.

(d) In the event that any User has a dispute with any party to a Buy / Sell Transaction, the Terms of Use shall provide that the User agrees to release and indemnify Proxtera (and its agents, affiliates, directors, officers and employees) from all claims, demands, actions, proceedings, costs, expenses and damages (including without limitation any actual, special, incidental or consequential damages) arising out of or in connection with such dispute or the Buy / Sell Transaction.

(e) Without prejudice to any other provisions of this Agreement and the Terms of Use, the Terms of Use shall provide that a User who has a dispute with any party to a Buy / Sell Transaction may seek Proxtera’s assistance by raising such dispute to Proxtera within a specified time period as described in the Proxtera Operations Rulebook (if applicable) (the “Proxtera-Assistance Period“), in which case Proxtera may in its sole discretion suggest and/or implement an appropriate resolution to such dispute (such resolution to be effected by the Participating Platform and/or other platform as may be directed by Proxtera), without any liability or cost on the part of Proxtera. The details, conditions and procedure for obtaining such assistance from Proxtera shall be as described in the Proxtera Operations Rulebook.

Transactions between End Customers and Third Party Service Providers

9.6. As part of the Services, Users may be allowed access to content, products or services offered by third parties (“Third Party Service Providers“) (collectively, “Third Party Services“) through hyperlinks (in the form of word link, banners, channels or otherwise), API or otherwise to such third parties’ websites (“Third Party Websites“). The Parties acknowledge that: (a) Proxtera shall in no circumstances be considered to be associated or affiliated in whatever manner with the providers of such Third Party Services or any trade or service marks, logos, insignia or other devices used or appearing on the Third Party Websites; and (b) Proxtera has no control over and does not monitor such Third Party Websites, and shall not be responsible or liable to the User or any other person or entity for such Third Party Website or any Third Party Services made available on or through such Third Party Website.

10. INTELLECTUAL PROPERTY

10.1. Subject to this Clause 10, Proxtera reserves all Intellectual Property Rights which may subsist in the Proxtera Network, or in connection with, the provision of the Services, including all modifications, derivative works, and feedback related thereto and intellectual property rights therein. Proxtera reserves the right to take such action as may be appropriate to restrain or prevent the infringement of such Intellectual Property Rights. No rights are granted to the Participating Platform hereunder other than as expressly set forth herein.

10.2. All rights to the Proxtera Network (including all underlying software functionality), Associated Materials, all design contributions, related knowledge or processes, and any derivative works (even if created to address a requirement of, or in collaboration with, the Participating Platform and/or its End Customers) shall vest in Proxtera, its licensors, and/or its affiliates, subject to the terms of the any agreement between Proxtera and its respective licensors.

10.3. Proxtera licenses all such rights to the Participating Platform on a non-exclusive, revocable, limited-term, and worldwide basis to such extent as is necessary to enable the Participating Platform to make reasonable use of the Proxtera Network and the Services.

10.4. The Participating Platform shall retain ownership rights in the Participating Platform Data and, subject to any agreement between the Participating Platform and its End Customers, the End Customer Data, published or shared on the Proxtera Network and shall grant, and procure its End Customers to grant (where applicable), Proxtera (and its affiliates) and Proxtera’s service providers (to the extent necessary for the Services or operation of the Proxtera Network) a worldwide, perpetual, fully-paid, royalty-free, sub-licensable (through multiple tiers), and transferrable license, which shall survive the termination or expiry of this Agreement, to:

(a) process, host, store, use, display, reproduce, modify, adapt, edit, publish and distribute the Participating Platform Data and End Customer Data for the purpose of operating, developing, facilitating, providing, promoting, and improving the Proxtera Network, the Services or any new products or services; and

(b) use the Participating Platform Data and End Customer Data, together with other information derived from the use of the Proxtera Network, to create analyses. Such analyses will anonymize and aggregate the aforementioned data and will only be used for the following purposes:

(i) product improvement and development of new products and services; 

(ii) improving resource allocation and support;

(iii) internal demand planning;

(iv) training and developing machine learning algorithms;

(v) improving product performance;

(vi) verification of security and data integrity; and

(vii) identification of industry trends and developments, creation of indices and anonymous benchmarking.

10.5. Unless expressly provided or the context requires otherwise, the rights granted under Clauses 10.3 and 10.4 will automatically terminate upon the termination or expiry of this Agreement. 

10.6. In the event of any claim brought against Proxtera (and/or its affiliates and respective licensors) by any third party in relation to the Participating Platform Data or End Customer Data, the Participating Platform shall defend Proxtera (and/or its affiliates) against such claims, and indemnify Proxtera (and/or its affiliates) against any damages awarded (or settlement amount) to the third party in respect of such claim.

11. GENERAL REPRESENTATIONS AND WARRANTIES

11.1. Each Party represents, warrants and undertakes to the other Party that: 

(a) it has full power, authority and capacity to enter into this Agreement and to perform its obligations hereunder; 

(b) the execution and delivery of this Agreement and the performance of its obligations hereunder does not constitute a violation of its organizational documents or is restricted by, in conflict with, or contrary to any contract or agreement to which it is a party or by which it is bound (including any agreements relating to the confidential or proprietary information of a third party); 

(c) it will not make any commitment or incur any contractual obligation on behalf of the other Party; 

(d) it will not make any statements, representations, warranties, promises or guarantees with respect to the other Party’s products and/or services other than those expressly authorized by the other Party; and

(e) its performance of this Agreement will comply with all applicable laws and regulations.

11.2. The Participating Platform further represents, warrants and undertakes to Proxtera that:

(a) it conducts its operations in compliance with applicable laws, rules and regulations in its access to and use of the Services (including the Associated Materials), including all applicable anti-bribery and anti-corruption legislation;

(b) it will, at its own expense, obtain and arrange for the maintenance in full force and effect of all applicable local government approvals, consents, licenses, authorization, declarations, filings and registrations as are necessary for such its performance of all of the terms and conditions of this Agreement including, but not limited to, foreign exchange approvals, import and offer agent licenses, fair trade approvals and all approvals which may be required for the purposes of this Agreement;

(c) upon Proxtera’s request, it shall provide reasonable evidence of the Participating Platform’s compliance with the terms of this Agreement; 

(d) all information which it provides to Proxtera in relation to Service Charges shall be true, accurate, complete and not misleading;

(e) it is not listed by any government agency as debarred, suspended, proposed for suspension or debarment or otherwise determined to be ineligible for government procurement programs; and

(f) it shall not provide to Proxtera, whether through the Proxtera Network or Services or otherwise, any information which is not legally available, or which is procurement-sensitive, proprietary, or classified, where there is reason to believe that possession of such information is unauthorized, illegal, or unethical.

12. TERM AND TERMINATION

12.1. Except as otherwise specified in writing between the Participating Platform and Proxtera, this Agreement shall remain in force for the Term only, unless terminated earlier by: 

(a) the Participating Platform providing Proxtera with a written notice of termination at least thirty (30) days before the end of the Term; or 

(b) Proxtera by providing the Participating Platform with thirty (30) days’ written notice.

12.2. Notwithstanding any other provisions in this Agreement and without affecting any other right or remedy available to it, Proxtera may terminate this Agreement with immediate effect by giving written notice to the Participating Platform if the Participating Platform fails to pay any amount due under this Agreement on the due date for payment as set out in writing and remains in default not less than thirty (30) days after being notified in writing to make such payment.

12.3. Notwithstanding any other provisions in this Agreement and without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if:

(a) either Party commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so, or 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;

(b) the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts;

(c) the other Party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;

(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other Party;

(e) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other Party;

(f) the holder of a qualifying floating charge over the assets of that other Party has become entitled to appoint or has appointed an administrative receiver;

(g) a person becomes entitled to appoint a receiver over the assets of the other Party or a receiver is appointed over the assets of the other Party;

(h) a creditor or encumbrancer of the other Party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other Party’s assets and such attachment or process is not discharged within thirty (30) days;

(i) any event occurs, or proceeding is taken, with respect to the other Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 12.3(b) to Clause 12.3(h) (inclusive); or

(j) the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business. 

12.4. For the purposes of Clause 12.3(a), material breach means a breach (including an anticipatory breach) having a serious adverse effect on the benefit which the terminating party would otherwise derive from:

(a) a substantial portion of this Agreement; or

(b) any of the obligations set out in Clauses 4 (Participating Platform’s Obligations), 6 (Charges and Payment), 7 (Data), 10 (Intellectual Property), and 11 (General Representations and Warranties).

In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.

13. CONSEQUENCES OF TERMINATION

13.1. Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry. For the avoidance of doubt, in the event of termination or expiry of this Agreement:

(a) subject to Clause 13.2, the Participating Platform and its End Customers’ access to the Proxtera Network and Services shall cease immediately and any Participating Platform Data and End Customer Data may be removed by Proxtera from the Proxtera Network with immediate effect; 

(b) the Participating Platform shall procure that all Submitted Data from other platforms and their respective end customers which is in the possession of the Participating Platform shall be delivered to Proxtera or deleted; and

(c) the Participating Platform may be entitled to a pro-rata refund of the Service Charges pursuant to paragraph 3 of Schedule 2, provided that such refund shall not be payable until the conclusion of any ongoing Transactions as set out in Clause 13.2.

13.2. In the event that any End Customer has any ongoing Transaction on the effective date of expiry or termination of this Agreement:

(a) the terms of this Agreement shall continue to apply (with such consequential changes as necessary) until all of the End Customer’s ongoing Transactions have either: (i) been concluded; or (ii) cancelled by Proxtera (and any costs to Proxtera incurred for or resulting from such cancellation shall be recoverable by Proxtera from the Participating Platform); and 

(b) with effect from the effective date of expiry or termination of this Agreement, the End Customer shall not be permitted to initiate any new Transactions, or submit any further End Customer Data to the Proxtera Network which is not otherwise required for the purposes of concluding the ongoing Transactions.

13.3. The following clauses shall survive the expiry or termination of this Agreement: Clause 6.3, 8, 9, 10, 13, 14, 15, 19, 20, 21, 22, 23, 27, 28, and 33.

14. REMEDIES

Except as expressly provided in this Agreement, the rights and remedies of each Party provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

15. INADEQUACY OF DAMAGES

Without prejudice to any other rights or remedies that Proxtera may have, damages alone would not be an adequate remedy for any breach of the terms of this Agreement by the Participating Platform. Accordingly, Proxtera shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of this Agreement.

16. FORCE MAJEURE

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 result from events, circumstances or causes beyond its reasonable control, including but not limited to an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labour problem, failure or delay on the part of the internet service provider, denial of service attack, or any online attacks on the Proxtera Network (the “Force Majeure Event“). In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for thirty (30) days, the Party not affected may terminate this Agreement by giving written notice of one (1) week to the affected party.

17. VARIATION

No variation of this Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).

18. NO PARTNERSHIP OR AGENCY

18.1. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, or authorise any Party to make or enter into any commitments for or on behalf of any other Party.

18.2. Each Party confirms it is acting on its own behalf and not for the benefit of any other person.

19. INDEMNITY

The Participating Platform shall indemnify Proxtera, its subsidiaries, affiliates, partners, suppliers, licensors, shareholders, officers, employees, independent contractors and agents and all successors and/or assigns against any claim damages, losses, claims, causes of actions, expenses and liability of any nature whatsoever associated with: (a) the Participating Platform’s breach or violation of any provisions of this Agreement or any rights of any third party; (b) the Participating Platform’s and the End Customers’ use or misuse of the Proxtera Network and/or Services; (c) and/or the Participating Platform’s or End Customers’ use of the Proxtera Network and/or Services in its dealings with any Third Party Service Providers, third party merchants, partners, providers, users, and/or advertisers on the Proxtera Network. 

20. LIMITATION OF LIABILITY

20.1. Subject to Clause 20.2 and 20.3, the liability of each Party arising out of, pursuant to, or related to this Agreement shall be limited in respect of any damages arising directly from any transaction or service arrangement facilitated by the Proxtera Network, where each Party’s liability in respect of such particular transaction or service arrangement shall be limited to the Transaction Value of the Buy / Sell Transaction(s) between Users to which such transaction or service arrangement relates (the “Underlying Transaction“).

20.2. For the liability of the Participating Platform arising from indemnity obligations under this Agreement, the Participating Platform’s liability for each incident, or series of connected incidents, giving rise to such liability shall be limited to an amount equal to 3 times the aggregate Transaction Value recorded in respect of all Underlying Transactions of the Participating Platform’s End Customers during the entire 3 calendar months immediately preceding the month during which such incident (or the first incident in a series of connected incidents) occurred, provided that such limitation of liability shall not apply to any liability arising from any breach or violation of applicable laws. 

20.3. Proxtera shall not be liable to the Participating Platform or anyone for any indirect, punitive, economic, future special, exemplary, incidental, consequential, or other damages or losses of any type or kind (including loss of data, goods, revenue, profits, goodwill, use or other economic advantage). Proxtera shall not be liable for any loss, damage or injury which may be incurred by or caused to the Participating Platform, or to any person for whom the Participating Platform accessed the Proxtera Network or used the Services for, including but not limited to loss, damage or injury arising out of, or in any way connected with the Proxtera Network and/or the Services including but not limited to the use or inability to use the Proxtera Network and/or the Services, any reliance placed by the Participating Platform on the completeness, accuracy or existence of any advertising, or as a result of any relationship or transaction between the Participating Platform and any Third Party Service Provider or advertiser whose advertising appears on the Proxtera Network or is referred to by the Proxtera Network and/or the services.

21. RELEASE

Any liability to either Party under this Agreement may in whole or in part be released, compounded or compromised, or time or indulgence given, by that Party in its absolute discretion without in any way prejudicing or affecting its other rights against the other Party.

22. NO IMPLIED WAIVERS

No failure to exercise, nor any delay in exercising, on the part of either Party, any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any other right or remedy.

23. SUCCESSORS AND ASSIGNS

This Agreement shall be binding on and shall endure for the benefit of the Parties and their respective successors and assigns. Any reference in this Agreement to either Party shall be construed accordingly. No Party may assign and/or transfer its rights, benefits and obligations under this Agreement to any person without the prior written consent of the other Party.

24. FURTHER ASSURANCE

Each Party undertakes with the other Party that it will execute such documents and do such acts and things as that other Party may reasonably require for the purpose of giving to that other Party the full benefit of the provisions of this Agreement.

25. NO REPRESENTATION OR RELIANCE 

Each Party acknowledges that:

(a) no Party (nor any person acting on its behalf) has made any representation or other inducement to it to enter into this Agreement, except for representations or inducements expressly set out in this Agreement; and

(b) it does not enter into this Agreement in reliance on any representation or other inducement by or on behalf of the other Party, except for any representation or inducement expressly set out in this Agreement.

26. NO MERGER

The rights and obligations of the Parties will not merge on completion of any transaction under this Agreement. They will survive the execution and delivery of any assignment or other document entered into for the purpose of implementing any transaction.

27. THIRD PARTY CONTRACT RIGHTS 

Save as expressly provided herein, a person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore to enforce any provision of this Agreement.

28. NOTICES

28.1. All notices, demands or other communications required or permitted to be given or made under this Agreement shall be in writing and in the English language and shall be sent to the recipient at its address, or electronic mail address set out below, or as otherwise directed by the recipient by notice given in accordance with this Clause. 

PROXTERA

Address:

7 Straits View, #12-00, Marina One East Tower, Singapore 018936

Tel:

(65)6236 3328

E-mail address:

partnerships@proxtera.com

Attention:

Shirish Jain

[Name of Participating Platform]

Address:

[  ]

Tel:

(65)[   ]

E-mail address:

[  ]

Attention:

[  ]

28.2. Any such notice, demand or communication shall be deemed to have been duly served immediately if hand delivered or one (1) Business Day after sending by local courier and in proving the same it shall be sufficient to show the receipt from the local courier showing that package was duly addressed and the date on which it was sent or (if given or made by electronic mail) immediately and in proving the same it shall be sufficient to show the electronic mail has been sent in full to the recipient’s electronic mail address. 

29. SEVERABILITY

If a court of competent jurisdiction holds any provision of this Agreement to be invalid, illegal or unenforceable (whether in whole or in part), such provision shall be deemed modified to the extent, but only to the extent, of such invalidity, illegality or unenforceability and the remaining provisions of this Agreement shall not be affected thereby.

30. COSTS

Except as expressly provided in this Agreement, each Party shall bear its own costs incurred in connection with the negotiation, preparation, execution and registration of this Agreement and any other documents executed in connection with this Agreement.

31. ENTIRE AGREEMENT

31.1. This Agreement and any other documents delivered pursuant to this Agreement (i) contain the entire agreement of the Parties with respect to the subject matter hereof and (ii) supersede all prior agreements, arrangements, understanding, promises, covenants, representations and communications between the Parties, whether written or oral, with respect to the subject matter hereof.

31.2. Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.

32. COUNTERPARTS

This Agreement may be executed in any number of counterparts and by the Parties on separate counterparts, each of which when executed and delivered shall constitute an original, but all the counterparts shall together constitute one and the same instrument.

33. GOVERNING LAW 

This Agreement shall be governed by, and construed in accordance with, the laws of Singapore. Any dispute arising out of or in connection with this 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 arbitration shall be Singapore. The Tribunal shall consist of one (1) arbitrator. The language of arbitration shall be English.

Schedule 2: Services Provisos

 

1.1. Support services: 

 

During the Term, the following support services will be provided by Proxtera:

(i) Acknowledging, verifying and responding to calls and inquiries from the Participating Platform. 

(ii) Liaising directly with the Participating Platform and working to resolve the issue with the Participating Platform. The Participating Platform will work directly with end-users to trouble-shoot and triage issues at its own costs, before engaging Proxtera support.

1.2. Access to the Proxtera Network may also include access to, subject to availability and the discretion of Proxtera, the Associated Materials for the purposes described in Clause 2.3 of this Agreement.

1.3. During the Term, the Services, Associated Materials and/or other materials or policies relevant to the Services may be modified from time to time by Proxtera, the Technology Provider, and/or such other third party service provider(s) as may be engaged by Proxtera. Proxtera will endeavour to communicate such modifications by way of email, the support portal, release notes, and/or via the Services. Modifications may include optional new features for the Services, which will be available for use subject to the then-current Associated Materials and/or other supplemental document. In respect of such modifications:

(a) modifications relating to critical bug-fixes or security related fixes may be deployed without prior notice and Proxtera will endeavour to communicate such modifications to the Participating Platform as soon as practicable;

(b) modifications involving new features and/or other innovation will be deployed in the following manner:

(i) At any point in time, Proxtera will support up to 2 versions of the technical specifications prior to the most recent Specifications.

(ii) Proxtera will provide at least 30 calendar days’ notice prior to retiring and ceasing to support any APIs falling outside the scope described in paragraph (i) above.

(iii) Proxtera will provide at least 14 calendar days’ notice prior to making any new APIs available on the live Services / Proxtera Network. Such new APIs will need to pass Proxtera’s mandatory acceptance criteria (which may be published from time to time as part of a new Specifications release).

2. Service Charges:

 

The Service Charges may include a combination of (a) a fixed amount calculated based on a monthly rate (“Fixed Component“); and/or (b) a variable component (“Variable Component“), each as specified in the Agreement Details. The table below outlines the fee schedule and associated Service Charges. 

Fixed Component

Not applicable.

Variable Component

2.0% of Transaction Value (Transaction Value defined as the purchase order amount, excluding Third Party Service fees, taxes, and levies), capped at USD 280 per transaction, and further capped at USD 3,360 per End Customer per calendar year.

The Variable Component is chargeable to the seller Participating Platform.  

This fee will either be collected by Proxtera’s escrow payments Third Party Services provider or by the Participating Platform from the seller, and paid to Proxtera, in the event that an alternative payments service provider is utilised. 

Where applicable, the Variable Component shall be paid monthly in arrears.

Rebates

Proxtera shall rebate all of its Variable Component Service Charges up to 30 June 2022. 

Thereafter, Proxtera will introduce a performance-based rebate structure. This will be outlined and communicated four (4) weeks before implementation.

Any amendment to above Fixed Component, Variable Component, and Rebates will be communicated to Participating Platforms four (4) weeks before implementation.

Where applicable, upon the receipt of any monthly invoice for Proxtera’s Service Charges, the Participating Platform shall settle payment for the invoice within 30 calendar days of the date of the invoice.

3. Finalisation:

After setting-off or deducting any amounts due to Proxtera under this Agreement, in the event of termination of this Agreement by either Party prior to the expiry of the Term (excluding any termination pursuant to Clause 12.3(a) for material breach, or Clause 12.3(b) – (j)), Proxtera shall in accordance to Clause 13.1(c) refund the Participating Platform a pro-rata portion of the Fixed Component of the Service Charges which has been paid, calculated from the date on which all ongoing Transactions have been either concluded or cancelled pursuant to Clause 13.2(a) up till the date for which payment of the Fixed Component of the Service Charges has been received by Proxtera. 

4. Purchase Order Terms:

 

To facilitate the provision of the Services and operation of the Proxtera Network, Proxtera will provide the User with a disclaimer, or a link or reference thereto, which the User acknowledges and agrees will be included on or appended to any purchase order submitted by the User onto the Proxtera Network, before such purchase order is made accessible to the intended recipient (i.e. another User) on the Proxtera Network.

 


Schedule 3: Additional terms (template)

Description of third party service(s)

[Details to be inserted]

Duration

[Details to be inserted]

Applicable fees / charges

[Details to be inserted]

Other terms

[Details to be inserted]