GOAMA MASTER SERVICE AGREEMENT
Last Updated: 30 September 2021
1. PROVISION OF SERVICES
1.1 Subject to the terms and set forth in this Master Service Agreement (“Agreement”) and the applicable Order Form (as defined below), Goama provides Customer the Service for the fees listed on the applicable Order Form (the “Fees”). “Service” means the provisioning of the gamification platform as a Saas-Solution, including any corresponding SDKs, APIs, documentation or software that may be made available by Goama in connection with such service (“Software”), as more fully described on the Order Form, and subsequent enhancements, updates and bug fixes to the foregoing made generally available by Goama for no additional Fee (“Updates”), but for clarity excludes Third Party Products. “Third Party Product” means a non-Goama product or Web-based, mobile, offline or other software application that Customer chooses to integrate with or use in connection with the Service. “Order Form” means an order form or other similar document specifying the Service to be provided hereunder and Fees to be paid by Customer.
2.1 The following terms, when used with initial capital letters in this Agreement, shall have the following definitions:
“Business Day” means Monday to Friday, excluding any national public holiday gazetted by the Government of the Republic of Singapore.
“Confidential Information” means any and all information of any kind, in whatever form (whether in writing, verbally, visually, in document, recorded or electronic form or by any other means) which is communicated in any way or form by either Party to the other, either before or after the date of this Agreement, whether or not such information is identified as “confidential”, including but not limited to, technical information, know-how and intellectual property rights, specifically the Intellectual Property Rights, and all other data, information and/or documents related to either Party’s products/services, technologies, formulations, materials, trade secrets, marketing activities, End-User names and other private information related to End-User customer, business and product development and the like, which are of a proprietary and/or confidential nature for the Party disclosing such confidential information.
“Content” means applications (“apps”) uploaded on the SaaS-Solution, by GOAMA, or as the case may be, Customer or a third party, and made available to End-Users on the SaaS-Solution.
“Content Services” means the services that GOAMA may provide to Customer relating to provision of Content to Customer’s SaaS-Solution, in respect of Content where GOAMA has distribution rights.
“Data Protection” means Personal Data Protection Act 2010 (“PDPA”) on the protection of individuals with regard to the processing of personal data and on the free movement of such data that regulates the processing of personal data within the European Union, or the equivalent of this regulation in the Territory.
“End-User” means an entity or individual that has used the SaaS-Solution and/or Content, including Customer’s internal use of the SaaS-Solution. End-User does not include an entity that distributes, resells, sells, licenses, rents or leases the SaaS-Solution to other parties in the regular course of business.
“Intellectual Property Rights” means all intellectual property rights of any kind existing anywhere in the world whether or not registered and all applications, renewals and extensions of the same including, without limitation, copyright, database rights, design rights, patents, trademarks, service marks, trade names and other rights in goodwill, rights in know-how, trade secrets and other confidential information.
“Territory” means availability of the SaaS-Solution in the country where the Customer makes its services available.
3. GRANT OF LICENSE, TITLE AND OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS
3.1.1 By duly executing this Agreement, Customer receives a non-exclusive license during the term of the Agreement within the Territory to market and make available for use the SaaS-Solution for End-Users.
3.1.2 The license granted in Clause 4.1.1 includes a right to market and make available the Branded versions of the SaaS-Solution to End-Users.
3.1.3 Customer is not entitled to modify, de-compile, reverse engineer, reverse compile, modify or perform any similar type of operation on the SaaS-Solution in any fashion or for any purpose whatsoever.
3.2 TITLE, OWNERSHIP AND USE OF INTELLECTUAL PROPERTY RIGHTS
3.2.1 GOAMA holds all rights related to the SaaS-Solution and any other technology developed by GOAMA or its partners for the use of the SaaS-Solution by Customer. Customer shall not apply for or register as trademarks or domain names any trademarks or domain names identical or confusingly similar to GOAMA’s trademarks or other Intellectual Property Rights anywhere in the world.
3.2.2 If Customer adopts and uses its own trademarks to co-brand the SaaS-Solution, it shall state with reasonable prominence that the SaaS-Solution is “Powered by Goama” or some other phrase subject to GOAMA’s prior written approval.
3.2.3 In the event Customer wishes to issue press and/or media release on the launch of the SaaS-Solution, GOAMA and/or its partners shall be named, the content of which shall be subject to the prior written approval of the relevant parties.
3.2.4 Customer acknowledges and accepts that GOAMA and/or its partners may refer to Customer in its own marketing material, including but not limited to web sites, brochures, printed material, posters, press releases and GOAMA will request for Customers’ written consent prior to undertaking any of the aforementioned.
3.2.5 Customer shall be responsible for compliance with any and all applicable third – party terms of service, privacy policies and similar documents for platforms, networks and/or websites that Customer runs its applications on, including but not limited to, Facebook, Android, Blackberry or iOS/App Store. In addition, in the event Goama is legally or contractually required to change or modify the Service in order to ensure the Service complies with the terms of service or privacy policies of various platforms, networks and/or websites, including, but not limited to, Facebook, Android, Blackberry or the iOS store, then Customer shall be responsible for making all necessary changes to Customer’s applications and websites in order to continue using the Service.
4. PAYMENT TERMS
4.1 Payment for all invoices is due within thirty (30) days of receipt of the invoice, or the Service may be terminated. Unpaid invoices are subject to a charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection.
4.2 All fees paid by Customer to GOAMA are net fees and shall be exclusive of VAT and any other tax, such as but not limited to withholding tax. Where withholding tax or any other tax applies, the invoiced fees shall be adapted to ensure the correct net amount is paid to GOAMA. In case the correct net amount is not provided by Customer to GOAMA, Customer may incur liabilities to pay compensation to GOAMA.
4.3 Customer shall pay the full amount invoiced to it by GOAMA in USD within thirty (30) days from the date of invoice.
4.4 If Customer fails to pay any amounts due, Goama may suspend the applicable Service by providing Customer with thirty (30) days’ prior written notice. Goama will have no liability in connection with any such suspension.
4.5 The Parties may accept invoices by electronic means and/or any other modes as mutually agreed upon by both Parties.
4.6 If Customer believes that Goama has billed Customer incorrectly, Customer must contact Goama no later than fifteen (15) days after receipt of invoice in order to reconcile any discrepancies, provided that any such claims raised after the expiration of the fifteen (15) day period shall not be settled by GOAMA. Inquiries should be directed to [email protected]
5.1 The Parties represent and warrant to each other that they have the full authority to enter into this Agreement and to grant the rights contemplated herein and further warrant that as at the Commencement Date, neither Party knows of any agreements, charges, actions, suits or proceedings, actual or threatened, which would impair its performance of its obligations under this Agreement.
5.2 GOAMA warrants and represents that:
a) the SaaS-Solution will work in all material respects and that GOAMA will use reasonable efforts to ensure that the SaaS-Solution at all times comply with any local regulation in force in the Territory; and
b) GOAMA holds all rights necessary for the licensing of the SaaS-Solution and the SaaS-Solution does not infringe the Intellectual Property Rights of any third party.
6.1 Each party shall indemnify each other party against any loss, cost or damages (including reasonable attorney’s fees) incurred as a result of such parties’ breach of any representation, warranty, covenant or agreement in this Agreement.
6.2 If any such claim referred to in Clause 7.1 is made against Customer by a third party, then GOAMA shall in its absolute discretion: a) decide whether or not to take or defend any proceedings in relation to such third party’s claims; b) have the right to require, if it considers necessary or desirable, Customer to join in any such proceedings (at GOAMA’s expense); c) have the right to require Customer’s full co-operation with GOAMA in defending the claim; d) have the right to procure the necessary licenses to ensure Customer’s use of the SaaS-Solution in accordance with this Agreement does not infringe any third-party Intellectual Property Rights; or e) have the right to modify the SaaS-Solution to ensure that it no longer infringes a third party’s Intellectual Property Rights.
6.3 Customer is obligated to mitigate its losses as far as possible.
6.4 GOAMA shall however bear no liability if Customer fails to notify GOAMA, in writing within seven (7) Business Days from becoming aware of any potential breach of the warranties.
7. EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY
7.1 Except for the circumstances provided for in Clause 7, neither Party shall be liable for any incidental, consequential, indirect, or special loss and damages (including but not limited to loss of income, loss of profit, loss of goodwill, inconvenience or embarrassment) that may be suffered by the other Party in connection with this Agreement.
7.2 Each Party’s liability under this Agreement is, under any and all circumstances, limited to an aggregate amount of USD 5,000.00 (five thousand USD).
8. COMPLIANCE WITH LAWS AND REGULATIONS
Each Party, their affiliates and/or subcontractors shall, at all times, observe and comply with all applicable laws, by-laws, rules, regulations, statutory instruments, enactments, directives, notifications and any other relevant requirements of applicable laws, including all privacy and personal data protection laws, anti-bribery and anti-corruption laws applicable in the Territory.
9.1 Each Party agrees to treat as confidential all information provided by a Party to the others regarding such Party’s business and operations. All confidential information provided by a party hereto shall be used by any other parties hereto solely for the purposes of rendering services pursuant to this Agreement and, except as may be required in carrying out the terms of this Agreement, shall not be disclosed to any third party without the prior consent of such providing party unless the information is publicly available or is required to be disclosed by any regulatory authority in the lawful and appropriate exercise of its jurisdiction over a party, any auditor of the parties hereto, by judicial or administrative process or otherwise by applicable law or regulation.
9.2 Both Parties shall immediately upon the termination or expiry of this Agreement return or destroy all Confidential Information of the other Party.
9.3 Any such usage and/or disclosure of Confidential Information as provided in the aforementioned clauses is subjected to prior approval and notification. The disclosing Party must notify the Other about the disclosure of Confidential Information within 48 (forty-eight) hours of the said request for disclosure, failure to which may lead to termination of the Agreement.
10. TERM AND TERMINATION
The initial term (“Initial Term”) of this Agreement shall commence on the Commencement Date and shall continue in force for twelve (12) months, unless otherwise terminated in accordance with Clause 11. At the expiry of the Initial Term, this Agreement shall automatically be renewed for successive periods of twelve (12) months (each, a “Renewed Term”), unless either Party notifies the other in writing at least two (2) months prior to the expiration of the Initial Term or Renewed Term.
10.2 The Parties may immediately terminate this Agreement during the Initial Term or Renewed Term by way of mutual consent.
10.3 Either Party may terminate this Agreement at any time during the Initial Term or Renewed Term if the other Party becomes insolvent, files a petition in bankruptcy, goes into liquidation or receivership, or otherwise lose legal control of its business, or commits a material breach or violation of this Agreement, by first giving the other thirty (30) days’ written notice to remedy the said breach. Termination of this Agreement shall not exclude other remedies each Party may have for the other Party’s failure to perform its obligations hereunder.
10.4 Either Party may terminate this Agreement at any time during the Initial Term or Renewed Term without cause by giving the other Party at least ninety (90) days’ written notice.
11. EFFECTS OF TERMINATION
11.1 Upon termination or expiry of this Agreement, Customer shall cease to use the SaaS-Solution. In the case of termination by Customer, all use of the SaaS-Solution by Customer or End-User will cease immediately.
11.2 If this Agreement is terminated as a result of a material breach by Customer, then Customer shall pay in full all remaining Fees payable through the remainder of each outstanding Order Form or if Customer has prepaid any Fees, then those Fees are nonrefundable. If this Agreement is terminated by Customer due to a material breach by Goama, then Goama shall refund Customer on a pro-rata basis any prepaid Fees covering the remainder of each outstanding Order Form after the effective date of termination.
11.3 The provisions of Clause 2 (Definitions), Clause 3 (Grant of License, Title and Ownership of Intellectual Property Rights), Clause 5 (Warranties), Clause 6 (Indemnity), Clause 7 (Exclusion of Damages and Limitation of Liability), Clause 8 (Compliance with Laws and Regulations), Clause 9 (Confidentiality), Clause 13 (Waiver), Clause 14 (Severability), Clause 15 (Amendments), Clause 16 (Assignment), Clause 17 (Third Party rights), Clause 18 (Notices), Clause 19(Governing Law) and Clause 20 (Arbitration), shall survive any expiration or sooner termination of this Agreement for any reason and shall remain in effect and be binding on each Party.
11.4 The accrued rights of the Parties at the time of termination or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced.
12. FORCE MAJEURE
12.1 If either Party is prevented from performing any portion of this Agreement (except the payment of money) by causes beyond its reasonable control, including acts of God, including but not limited to fire, flood, earthquake, windstorm, tsunami, landslides or other natural disaster, war, hostilities (whether declared or not), invasion, armed conflict, act of foreign enemies, pandemic, rebellion, revolution, insurrection, military or usurped power, act of terrorism, civil war, civil commotion or riots, strikes or other labour disputes not arising on account of the acts or omissions of the defaulting Party, governmental regulations, controls, royal decrees, or nuclear, chemical or biological contamination or other hazardous properties of any explosive (“Force Majeure Event”), such defaulting Party will be excused from performance for the said period of delay and for a reasonable time thereafter if the other Party is given notice thereof as soon as reasonably practicable but no later than forty-eight (48) hours of any anticipated delay due to the Force Majeure Event and such defaulting Party takes all reasonable measures to mitigate any delay or interruption to the SaaS-Solution.
If the Force Majeure Event prevails for a continuous period of more than ninety (90) days, either Party may forthwith terminate this Agreement by giving ninety (90) days’ written notice to the other Party. On expiry of this notice period, this Agreement will terminate. Such termination shall be without prejudice to the rights of the Parties in respect of any other breach of this Agreement.
A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the Party to whom the waiver is addressed and the circumstances for which it is given. For the avoidance of doubt, the delay or failure of either Party at any time to require performance by the other Party of any provision of this Agreement shall not affect the right of such Party to require performance by the other Party of that provision and no waiver of any breach or default under this Agreement shall operate as a waiver of any preceding or subsequent breach of default.
If any provision of this Agreement is held to be invalid or in contravention of any applicable law or regulation, such part or provision shall be construed to be limited in scope or duration to the maximum scope and duration that is legal, valid and enforceable or, if it cannot be limited. then it shall be severable without affecting the validity of any other part or provision of this Agreement.
Save as expressly provided in this Agreement, no amendment or variation of this Agreement shall be effective unless in writing and signed by a duly authorized representative of each of the Parties to it.
16.1 Neither Party shall, without the prior written consent of the other Party, assign, novate, transfer, charge, sub-contract, sub-license or deal in any other manner with all or any of its rights or obligations under this Agreement.
16.2 This Agreement shall be binding upon the permitted assigns and successors-in-title of the Parties hereto by operation of law or otherwise.
17. THIRD PARTY RIGHTS
This Agreement is made for the benefit of the Parties to it and (where applicable) their successors-in-title and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.
All notices, requests, demands, approvals, waivers and other communications required or permitted under this Agreement shall be in writing in the English language and addressed to the respective Party’s address as mentioned herein or such other address as notified in writing by the said Party. Any notices, requests, demands, approvals, waivers and other communications shall be deemed to be sufficiently served:
(a) if delivered by registered post, unless actually received earlier, on the third Business Day after the posting thereof;
(b) if delivered by hand, at the time when it is delivered by hand;
(c) if delivered by e-mail, upon confirmation of receipt by the other Party.
Notices to GOAMA delivered by electronic mail shall be sent to:
● [email protected]
● [email protected]
19. GOVERNING LAW
19.1 This Agreement and this arbitration clause shall be governed by and construed in accordance with the laws of Singapore.
20.1 Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, whether during the continuance of this Agreement or at any time after the termination hereof shall first be amicably settled between the Parties within one hundred and eighty (180) days. If amicable resolution so fails, the said dispute shall be resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this Clause 23. The parties agree that any arbitration commenced pursuant to this clause shall be conducted in accordance with the Expedited Procedure set out in Rule 5.2 of the SIAC Rules. The seat of the arbitration shall be Singapore and the language shall be English. The Tribunal shall consist of one arbitrator. The physical venue for the proceedings shall be mutually decided, failing which the proceedings may be held via video conferencing from each Party’s and the Arbitral Tribunal’s respective physical locations. The arbitral award shall be final and binding.
Except as expressly provided herein, all warranties, all services and other materials of any kind, including any and all materials, third party products, deliverables, customizations, hardware, professional services, support services, and cloud services, are provided “as is.” To the fullest extent permitted by applicable law, GOAMA (and its business partners, licensors and service providers) disclaim all other warranties, conditions, representations, indemnities and guarantees, whether express or implied, arising by law, custom, prior oral or written statements or otherwise (including any warranty of merchantability, satisfactory quality, fitness for a particular purpose, title, non- infringement, compatibility, security, quiet enjoyment, timeliness, completeness or accuracy). Without limiting the foregoing, GOAMA does not warrant that use of any materials or services will be uninterrupted or error free or that all defects in any services or other materials of any kind will be corrected. Customer assumes all responsibility for the selection of the services or other materials necessary to achieve the intended results. To the extent that GOAMA cannot disclaim a warranty as a matter of applicable law, the scope and duration of such warranty will be the minimum permitted under such law.
This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. This Agreement may also be executed and delivered by facsimile signature, PDF or any electronic signature complying with the U.S. federal ESIGN Act of 2000.