TERMS & CONDITIONS AGREEMENT
OC Digital supplies a wide range of Services in digital marketing. Some of the Terms and Conditions herein vary according to the Service specified in the Sales Order. Specific clauses maybe specified in the Sales Order; specific arrangements in Sales Orders prevail general Terms and Conditions.
These terms and conditions are made in the English language and is a legally binding one.
1.1. In these Terms and Conditions the following definitions apply:
“OC Digital” means OC Digital Private Limited or any of its subsidiaries providing OC Digital related products and services, in specific
a) OC Digital Pte. Ltd. (Registered in Singapore)
b) OC Tech Solutions Pte. Ltd. (Registered in Singapore)
“Client” means the individual or company to whom the invoice is addressed;
“Sales Order” means the order form completed and signed by the Client; this Sales Order may refer to supporting documentation providing detail and scope for the project;
“Purchase Price” means the price for the Service as detailed in the Sales Order;
“Service” means the goods or services specified in the Sales Order;
“Software” means websites, platforms and technologies used to provide the Service by OC Digital;
“First Line Support” means initial analysis and fault logging;
“Support Time” means the time spent assisting the Client with issues related to the Project outside the scope of the Sales Order, or following project sign-off. It includes administration time related to the issue, including but not limited to the time taken to log details of telephone calls;
“Confidential Information” for each party the terms of this Agreement and all information and/or data belonging to or relating to that party, its associates, its or their businesses, activities, affairs, products, services, suppliers, Clients or prospective Clients disclosed (whether in writing, verbally or by any other means and whether directly or indirectly) by that party, its representatives or advisers, to the other party, its representatives or advisers whether before, on or after the date of this Agreement;
“Deliverable” means a set of goods or services that may be delivered at one time, for example: a design draft, a media plan, digital banners, creative assets, a strategy document, 3rd party media buys, a consultation meeting, a development project, a CRM development project, a website development project, or other electronic content;
“Event” means a Service delivered on a particular date, for example: a training course, a training workshop, a hospitality event, a speaker delivering a presentation, or a series of presentations;
“Business Day” means any day which is not a Saturday, Sunday or a bank or public holiday;
1.2. In these Terms & Conditions (except where the context otherwise requires):
1.2.1. the clause headings are included for convenience only and shall not affect the interpretation of these Terms & Conditions;
1.2.2. use of the singular includes the plural and vice versa;
1.2.3. use of any gender includes the other genders;
1.2.4. any reference to “persons” includes natural persons, firms, partnerships, companies, corporations, associations, organizations, governments, states, foundations, and trusts (in each whether or not having separate legal personality);
1.2.5. any phrase introduced by the terms “including”, “include”, “in particular”, “such as” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2. Force Majeure
OC Digital shall not be liable for any delay or failure in performance of its obligations under this agreement which is due to or results from any circumstances beyond its reasonable control in any of its subsidiaries. In any such event OC Digital shall be entitled to delay or cancel delivery of the Service.
3. Governing Law and Jurisdiction
This Agreement shall be governed and construed in all respects in accordance with the Law of the country the respective OC Digital entity signing the Sales Order or contract is registered in
a) OC Digital Pte. Ltd. – Law of Singapore
b) OC Tech Solutions Pte. Ltd. – Law of Singapore
Each legal entity shall be subject to the exclusive jurisdiction of Court of Law of the country it is registered in.
4.1. If any term or provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or in conflict with the law, the validity or enforceability of the remainder of this agreement shall not be affected thereby.
4.2. If any provision of this Agreement is found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid and enforceable.
No failure or delay by either party in exercising, wholly or partially, any of its rights with regard to any breach or default of this agreement by the other party shall constitute a waiver of such rights and no waiver of any such breach or default shall be deemed to constitute a waiver of any other rights or any subsequent or continuing breach of default.
The Client may not sub-license, assign, transfer or otherwise dispose of its rights under this Agreement or any part of it without the written consent of OC Digital.
7.1. Any notice or other communication pursuant to this Agreement must be in writing and signed by or on behalf of the party giving it and may be served by pre-paid first class post to the address of the relevant party as set out in this Agreement, by fax or subject to the provisions of clause 7.2 by email. All such notices or demands shall be deemed to have been received:
7.1.1. in the case of pre-paid first class post two Business Days after posting; and
7.1.2. in the case of fax, at the time of transmission, provided that if receipt occurs before 9am on a Business Day the notice shall be deemed to have been received at 9am on that day, and if receipt occurs after 5pm on a Business Day, or on a day which is not a Business Day, the notice or demand shall be deemed to have been received at 9am on the next Business Day.
7.2. A communication sent by email shall not be effective unless the addressee acknowledges receipt of such communication, such acknowledgement to take the form of a reply email to include the communication being acknowledged.
8. The Sales Order
8.1. OC Digital shall provide a Sales Order to the Client for each project. The Sales Order forms part of this agreement.
8.2. The Client assumes sole responsibility for ensuring that the Service described in the Sales Order meets its requirements before signing the Sales Order.
8.3. The Client shall return the signed Sales Order by letter, fax or email as described in clause 7. Upon receipt of this signed Sales Order acknowledgement, it shall be deemed that the Client and OC Digital and its subsidiaries have entered into a legal service contract for the supply of the Service.
8.4. By signing the Sales Order and agreeing to purchase the Service, the Client acknowledges that they have read these Terms and Conditions, understands them and agrees to be bound by them in accordance with the laws of Singapore or otherwise stated according to clause 3.
9.1. OC DIGITAL may at any time, in its sole discretion, immediately terminate this Sales Order. OC DIGITAL will make commercially reasonable efforts to notify Client(s), Publisher(s) and Third Parties via e-mail of any such termination or cancellation within a reasonable period of time. Unless the termination was as a result of Client’s fault or instruction, OC DIGITAL shall refund to Client only the remaining Media Budget already paid but unutilized upon deducting the professional fees that is payable to OC Digital for the duration of the Sales Order.
9.2. Client(s) may not cancel and/or terminate this Sales Order with or without cause or pre-written approval by OC Digital. There will be cancellation fee of 50% charged for withdrawal. Except as otherwise provided in the Sales Order, the Sales Order is non-cancellable by Client.
9.3. Upon cancellation of the endorsed Sales Order by Client for services provided, there will be no refund on any paid up Professional Fees, Management Fees, Setup Fees, SEO Fees, ORM Fees, CRM Fees, Web Development Fees, Production Fees, Creative Production Fees and Media Budget related to these campaigns, unless such termination or cancellation was the result of OC DIGITAL’s breach of its obligations, negligence, fraud, or willful misconduct. At the point of cancellation, any overdue payments and uncollected fees as mentioned in this clause with reference to the endorsed Sales Order, must all still be made payable to OC Digital.
9.4. Unless otherwise stated in the Sales Order or subject to clause 9.1, 9.2 and 9.3, the Sales Order may not be cancelled except by agreement in writing of both parties and upon payment to OC Digital of such amount as may be necessary to meet the costs incurred to OC Digital up to the date of cancellation and to indemnify OC Digital against all loss resulting from the said cancellation.
9.5. The Client shall have no right to seek any cancellation or repayment of job costs on the basis of style or composition.
10.1. During the period of this Agreement and for a period of 3 years after both parties undertake:
10.1.1. to keep the Confidential Information confidential;
10.1.2. not to use the Confidential Information for any purpose except the performance of its obligations under this Agreement; and
10.1.3. not to use the Confidential Information so as to procure any commercial advantage over the other party.
10.2. The obligations contained in clause 10.1 above shall not apply to any Confidential Information which:
10.2.1. is already in the possession of the disclosing party other than as a result of a breach of this Agreement;
10.2.2. is at the date of this Agreement or at any time after the date of this Agreement comes into the public domain other than through breach of this Agreement; or
10.2.3. is required to be disclosed by any applicable law or regulation or by any governmental or administrative authority or by an order of any court of competent jurisdiction.
10.3. Each party undertakes to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of Clause 10 by its employees, agents and sub-contractors.
10.4. The Client agrees that the ideas, materials and other documents relating to the Service are confidential and all proprietary rights belong to OC Digital and shall not be used or disclosed except as permitted by this agreement.
10.5. This clause 10 shall survive the termination of this Agreement for whatever reason.
11. Intellectual Property Rights
11.1. Once full payment has been made and the deliverables for website and customized CRM development projects have completed and signed off, the ownership of the rights to the deliverables created will pass to the Client.
11.2. The account, ad copies, adtext, copyright, and all intellectual property rights in the Service and all OC Digital content, including without limitation the copyright in the compilation of all keywords, shall be constructed by OC Digital, and vest in and remain with OC Digital. The ad copies, campaign structure, and ad text developed by OC Digital in relation to the advertisement set out in the Sales Order are the property of OC Digital, and all rights to the ad copies, ad text and campaign structure are expressly reserved by OC Digital.
11.2.1. It shall not be copied, reproduced or otherwise used, nor shall such information be furnished in whole or in part to others, except in accordance with the terms of Sales Order under which it was supplied or with the prior written consent of OC Digital.
11.3. OC Digital aggressively enforces its intellectual property rights to the fullest extent of the law. The name of OC Digital may not be used in any way, including in any advertising or publicity, without prior written permission of OC Digital. Any unauthorized disclosure may give rise to OC Digital seeking and obtaining legal or equitable remedies.
11.4. Third party materials, such as imagery, used in the deliverables may be subject to usage liabilities such as royalties and license fees. OC Digital shall procure such license as necessary for the use of third party materials for use within the scope of the Sales Order. The Client should obtain written consent from OC Digital for use of any part of the deliverables outside of the scope of the Sales Order.
11.5. Unless otherwise stated in the Sales Order, OC Digital reserves the continuing right to use any deliverables it produces for the promotion of its services.
11.6. Where the Sales Order includes Software created by OC Digital, OC Digital retains ownership of all copies of the Software and the Intellectual Property Rights (IPR) therein. The Client has no rights to the Software or the IPR contained therein.
11.7. To perform our services best, OC Digital will collect Client’s non PI cookie data for use in campaigns.
12.1. The following provisions set out the entire financial liability of OC Digital (including any liability for the acts or omissions of its employees, agents or subcontractors) to the Client in respect of:
12.1.1. any breach of this Agreement; and
12.1.2. any representation, statement or tortious act or omission including negligence arising under or in connection with the contract.
12.2. Subject as expressly provided in these conditions, all warranties, conditions or other terms implied by statute or law are excluded to the fullest extent permitted by law.
12.3. Nothing in these conditions excludes or limits the liability of OC Digital for death or personal injury caused by negligence or for fraudulent misrepresentation.
12.4. Subject to clauses 12.2 and 12.3:
12.4.1. OC Digital shall not be liable to the Client for any loss or damage, costs or expenses (whether direct, indirect, incidental or consequential and whether relating to loss of profit, loss of business, business interruption, loss of data, depletion of goodwill or other such losses), suffered by the Client which arise out of or in connection with the supply of the Service or their use by the Client.
12.4.2. The Client assumes all risks as to the suitability, quality, and performance of the Service.
12.4.3. OC Digital’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise arising in connection with the performance or contemplated performance of this contract shall be limited to, and in no event shall exceed, the amount originally paid to OC Digital for the Service.
12.4.4. OC Digital shall not be liable for any loss, damage or delay which arises as a result of the termination of the contract between us, or for our compliance with relevant statutory or regulatory requirements.
12.4.5. It is the responsibility of the Client to ensure that the deliverables comply with all laws, regulations and codes in all countries where the deliverables are used. The Client agrees to indemnify OC Digital against any costs arising from the use or misuse of the deliverables.
12.5. No verbal or written information or advice given by OC Digital or its dealers, distributors, employees or agents shall in any way extend, modify or add to these conditions.
13. Payment Terms and Pricing
Unless otherwise stated in the Sales Order, the Purchase Price for a project or service shall be payable to OC Digital by the Client as stated in the Sales Order based on the following criteria.
13.1. Campaigns regardless of duration will always be invoiced at the start of the project in full. This is the default payment arrangement unless otherwise stated.
13.2. Campaigns with any other partial payment arrangement will be invoiced according to the specific agreement, as mentioned in the Sales Order’s Payment Terms.
13.3. Where a deposit is required, OC Digital is not obliged to carry out any work before the deposit is received. In the event that any preliminary work is carried out prior to receipt of the deposit and the Sales Order is then cancelled OC Digital will invoice the Client for this work.
13.4. OC Digital shall prepare and deliver to the Client invoices for the Charges for the services. Such invoices shall state the Charges and GST payable (where applicable). All Charges are subject to prevailing GST unless the contrary is expressly stated. Where all or any part of the Charges are expressly stated to be exclusive of GST, GST shall be payable, where applicable, to all or such part of the Charges hereunder.
13.5. Subject to Clause 13.4, the Client shall pay to OC Digital, in addition to the Charges, a sum equal to the prevailing GST chargeable on the provision to the Client of any Service by OC Digital in accordance with these General Terms & Conditions and/or Specific Service Terms & Conditions.
13.6. The Purchase Price, once accepted by both parties as signified by the receipt of a signed Sales Order, is applicable for 3 months from the date of signing. OC Digital reserves the right to increase the price of any work outstanding after that period.
13.7. Prior to each payment due date, OC Digital shall issue an invoice to the Client. Unless otherwise stated in the Sales Order, each invoice is payable within 7 calendar days.
13.8. If the Client fails to make payment on a due date then without prejudice to any other right or remedy available to OC Digital, OC Digital shall be entitled to suspend or terminate the Service.
13.8.1. Should a payment be late by 30 or more days, OC Digital may suspend or terminate any outstanding project and/or Sales Order with that client.
13.9. Overdue amounts shall accrue interest at the rate of 1.5% per month until paid, or the legal maximum, whichever is less.
13.10. In the event that any payments due under these terms and conditions become overdue, OC Digital reserves the right to add a fee of SGD 500+GST, or the country equivalent to each invoice overdue to cover the costs of administration of the debt.
13.11. All payments shall be paid in full without set off, deduction or counterclaim whatsoever.
13.12. Where any invoice includes a reduction due to an agreement to pay by Direct Debit or Standing Order, should the payment not be made by such means, OC Digital reserves the right to recharge the reduction.
13.13. OC Digital reserves the right to vary the Purchase Price according to further requirements made by the Client subsequent to order acknowledgement. Any such variation shall be advised by OC Digital in writing and confirmed by the Client in writing before either the work proceeds further or any charges are incurred.
13.14. Where the Sales Order includes design work, unless otherwise stated in the Sales Order, the Purchase Price includes an allowance for two sets of changes to each deliverable. Additional changes shall be charged at the prevailing hourly rate. Any such variation shall be advised by OC Digital in writing and confirmed by the Client in writing before either the work proceeds further or any charges are incurred.
13.15. The charge for carriage of goods is at additional cost to the Client, unless otherwise stated in the Sales Order.
14. Changes to Terms and Conditions
14.1. OC Digital reserves the right to change these Terms and Conditions at any time. The most current version of these Terms and Conditions may be found on our website.
14.2. When changes are made to the Terms and Conditions a notice shall be placed in our email newsletter. The Client shall be deemed to have accepted such changes if they have not notified any objections to such changes within one calendar month of the notice.
14.3. The most current version of the Terms and Conditions shall supersede all previous versions.
15. Entire Agreement
15.1. This Agreement and the documents referred to in it, constitute the entire agreement and understanding of the parties and shall supersede any previous agreement between the parties relating to the subject matter of this Agreement. No variation of this Agreement shall be valid unless in writing signed by both parties.
15.2. Each of the parties acknowledges and agrees that in entering into this Agreement, and the documents referred to in it, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) which it may have relied on in entering into this Agreement. The only remedy available to it shall be for breach of contract under the terms of this Agreement. Nothing in this clause shall, however, operate to limit or exclude any liability for fraud.
16. Development Projects
16.1. The Client assumes sole responsibility for ensuring that the development projects functionality meets its requirements before signing the Sales Order.
16.2. Unless the Sales Order explicitly states otherwise, the Client bears all cost for modification to the development project in the event that the Client discovers, subsequent to signing the Sales Order, that the Software functionality does not meet its requirements
16.3. No Software or Internet service can ever be guaranteed to be 100% reliable. OC Digital shall not be liable for any losses caused resulting from the use of (or inability to use) the Service, due to faults in the Software or underlying software, hardware, networks or any other cause of failure.
16.4. OC Digital does not warrant any Software that has been altered or changed in any way by anyone other than OC Digital. OC Digital is not responsible for problems associated with or caused by incompatible operating systems or equipment, or for problems in the interaction of the Software with software not furnished by OC Digital.
17. Minimum Spend Requirements
17.1. OC Digital has a minimum spend requirement for all media and content campaigns to the equivalent of SGD 3,000 per month, exclusive of Management Fee. This minimum level is upheld regardless of pre-payment or “parking” budget with OC Digital.
17.2. For Facebook and Social Media campaigns, OC Digital has a minimum spend level of the equivalent to SGD 1,000 per ad/creative.
Should you have any questions concerning these Terms and Conditions, contact OC Digital before submitting a signed agreement to any Sales Order.