These Terms of Service (“Terms”) form a contract between a subscriber of Momos’ Services (“Partner”) and us, Merchant Management Solutions PTE. LTD. (“Momos”), and governs our Partner’s access to and use of our Services. By accessing and/or using our Services you are accepting that:
2. The individual accepting these Terms on behalf of the Partner warrants that they are aged 18 years or above and are competent to enter into this Agreement and that he/she possesses the requisite authority to bind the Partner, its affiliates or its groups to these Terms.
Partner and Momos are individually referred to as “Party” and collectively as “Parties”.
1.1 Account means any accounts or instances created by or on Partner’s behalf for access and use of the Services.
1.2 Ad/Marketing/Promotion Spend means the amount the Partner spends on the marketing or promotion of their restaurant, including discount coupons’ amount or advertisement expenses per month.
1.3 API means the application programming interfaces developed, enabled by or licensed to Momos that permits certain functionalities provided by the Services.
1.4 Partner Data means all electronic data, text, messages, or other materials, including Personal Data, (but excludes any and all data (including Personal Data) of Partner’s customers)) provided by Partner, or provided or obtained for or on Partner’s behalf, on the basis of which the Service(s) will be provided and/or the Partner Data will be submitted to the Services by the Partner through Partner’s Account for Partner’s use of the Services.
1.5 Confidential Information means all information disclosed by one Party to the other Party which is in tangible form and labelled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. Notwithstanding the foregoing, Confidential Information shall not include any information which (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records prior to the time of disclosure; (d) is obtained by the receiving party from a third-party without a breach of such third-party’s obligations of confidentiality; (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession; or (f) is required by law to be disclosed by the receiving party, provided that the receiving party shall, to the extent legally permitted, give the disclosing party written notice of such requirement prior to disclosing so that the disclosing party may seek a protective order or other appropriate relief.
1.6 Documentation means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services provided or made available by Momos to Partner or Partner’s Users through the Services or otherwise.
1.7 Order Form means any service order form specifying the Services provided, particular features and functionalities in the Services that the Partner wishes to avail, and the Term for provision of the Services agreed to by the Parties.
1.8 Personal Data means any information or data relating to an identified or identifiable natural person, as defined as “personal data” under the Personal Data Protection Act 2012 (“PDPA”) of Singapore, as amended from time to time, or such other similar data privacy laws in any other jurisdiction that may be applicable.
1.10 Process, processes, or processing means any operation or set of operations which is performed on Partner Data or on sets of Partner Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction, and also includes transferring Partner Data to third parties.
1.11 Services means the cloud-based proprietary platform of Momos that enables restaurant businesses to manage and grow their business through content management, customer service, reputation review and survey management, digital marketing management, and data and analytics tools.
1.12 Software means software provided by Momos (either by download or access through the internet) that allows Partner to use any functionality in connection with the Services.
1.13 Subscription Charges means all charges associated with Partner’s Account and use of the Services
1.14 Subscription Term means the period during which Partner has agreed to subscribe to the Services as specified in a relevant Order Form.
1.15 Third-Party Services shall mean third-party application(s) or service(s) integrating with the Services through APIs or otherwise enabled through the Services.
1.16 User means a user designated by Partner to use or access the Services including an Account administrator, agents and other designated users.
Subject to Partner’s compliance with this Agreement and solely during the Subscription Term, Partner has the limited, non-exclusive, revocable right to access and use the Services for its internal business purposes in accordance with the subscription plan set forth in an Order Form
3.1 Partner Account: Each User shall be identified using unique login information such as usernames and passwords (“User Login”) and such User Login shall be used only by one individual.
3.2 Acceptable Use: Partner agrees not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third-party, other than Users in furtherance of its internal business purposes as expressly permitted by this Agreement; (b) modify, adapt, or hack the Services or otherwise attempt to gain or gain unauthorized access to the Services or related systems or networks; (c) use the Services to store or process any content that infringes upon any person’s intellectual property rights or is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; or (d) “crawl,” “scrape,” or “spider” any page, data, or portion of or relating to the Services (through use of manual or automated means);
3.3 Partner agrees that the Services shall be provided only upon prompt access to the Partner Data being granted by the Partner to Momos.
3.4 Partner represents and warrants to Momos that the Partner owns or has the necessary rights and consents to provide the Partner Data to Momos and that doing so does not violate any applicable law, proprietary or privacy rights. Momos shall have no liability for any claims with respect to the Services arising in connection with the unavailability, inaccuracy or insufficiency of Partner Data.
4.1 Any enhancements, new features or updates (“Updates”) to the Services are also subject to these Terms and Momos reserves the right to deploy Updates at any time.
4.2 The Services may temporarily be unavailable due to scheduled downtime for upgrades and maintenance in which case Momos shall use commercially reasonable endeavours to notify the Partner in advance.
4.3 Notwithstanding anything to the contrary contained elsewhere, Momos shall not be liable for unavailability of the Services caused by circumstances beyond Momos' reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Momos' reasonable control (including, without limitation, inability to access the internet), or acts undertaken by third-parties, including without limitation, distributed denial of service attacks.
5.1 Except for the rights granted to the Partner under clause 3, all rights, title and interest in and to all intellectual property and/or proprietary rights, title and interest in or related to the Services, including patents, inventions, copyrights, trademarks, domain names, trade secrets or know-how shall belong to and remain exclusively with Momos.
5.2 Momos shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback it receives from the Partner.
5.3 Partner owns the rights to the Partner Data that the Partner provides to Momos. Momos does not claim ownership over such Partner Data, however, by posting or transferring Partner Data to Momos, the Partner grants a royalty-free, non-exclusive license and permission to use the Partner Data generated by Partner solely to provide, maintain and improve the Services.
5.4 Momos reserves its rights to re-use any and all techniques and know-how gathered by Momos while providing the Services to the Partner.
5.5 All rights not expressly provided to Partner herein are reserved.
6.1 Partner acknowledges and agrees that Partner’s use of Third-Party Services will be subject to the terms and conditions and privacy policies of such third-party and that Momos shall not be liable for Partner’s enablement, access or use of such Third-Party Services, including for processing of Partner Data by such third-party. The Partner should contact that Third-Party Service provider for any issues arising in connection with use of such Third-Party Service.
7.1 Subscription Charges: Unless otherwise mentioned in an Order Form, the Subscription Charges are due in full and payable in advance, in accordance with clause 8.2, when Partner subscribes to the Services. The Subscription Charges shall be specified in the Order Form.
7.2 Payment: Partner hereby authorizes Momos or Momos' authorized agents, as applicable, to bill Partner upon Partner’s subscription to the Services (and any renewal thereof). Unless otherwise stated in an Order Form, Partner’s payment is due within thirty (30) days of Momos' invoice date.
7.3 Refunds: Unless otherwise specified in this Agreement, all Subscription Charges are non-refundable. No refunds shall be issued for partial use or non-use of the Services by Partner.
7.4 Late Payments/Non-payment of Subscription Charges: Momos will notify Partner if Momos does not receive payment towards the Subscription Charges within the due date for Partner’s Account. Momos must receive payments within a maximum of ten (10) days from the date of Momos' notice. If Momos does not receive payment within the foregoing time period, in addition to its right to other remedies available under law, Momos may (i) charge an interest for late payment @ 1.5% per month and/or; (ii) suspend Partner’s access to and use of the Services until Momos receives Partner’s payment towards the Subscription Charges as specified herein and/or; (iii) terminate Partner’s Account.
7.5 Applicable Taxes: Unless otherwise stated, the Subscription Charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”).
8.1 The Subscription Term shall be as set forth in an Order Form.
8.2 Termination by Partner: Unless otherwise mentioned in an Order Form, the Partner may terminate their Account and subscription to the Services at any time with thirty (30) days prior written notice, but will remain liable for all Subscription Charges for the Subscription Term. Unless the Partner’s Account and subscription to the Services is terminated, the Partner’s subscription to the Services will renew for a Subscription Term equivalent in length to the then expiring Subscription Term at Momos' then prevailing Subscription Charges unless specified otherwise in an Order Form.
8.3 Termination and Suspension by Momos: In addition to suspension for late payment or non-payment of Subscription Charges, Momos may suspend Partner’s access to and use of the Partner’s Account or the Services if the Partner is in violation of the terms of this Agreement. Momos will notify the Partner of its activities that violate this Agreement and provide the Partner with a period of thirty (30) days to cure or cease such activities (“Cure Period”). If the Partner does not cure or cease such activities within the said Cure Period or if Momos believes that Partner’s breach of this Agreement cannot be cured, the Partner’s Account shall be terminated immediately.
8.4 Termination for Insolvency: Notwithstanding anything contained herein, either Party may terminate this Agreement without notice if the other Party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such Party (except for involuntary bankruptcies which are dismissed within sixty (60) days, or has a receiver or trustee appointed for substantially all of its property.
8.5 Effect of Terminating Partner’s Account: Following the termination of Partner’s Account either by Partner or Momos, the Partner may export Partner Data from within the Services within six (6) months of effective termination of the Partner’s Account (“Data Retention Period”), beyond which period Momos may delete all Partner Data. The Partner may reactivate their terminated Account within such Data Retention Period, unless the termination is by Momos.
9.1 If the Partner chooses or is provided with a user identification code, login, password or any other information as part of Momos' security procedures, Partner must treat such information as confidential and shall not disclose such information to any third-party other than a User. Momos has the right to disable any user identification code or password, whether chosen by Partner or allocated by Momos, at any time, if in Momos' reasonable opinion, Partner has failed to comply with any of the provisions of this Agreement. Momos will not be responsible for any activities, including any attempted or actual access or loss of data occurring under Partner’s Account as a result of Partner’s non-compliance of its obligations under this clause 9.1.
9.2 Confidentiality obligations: Each of the Parties will protect the other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each of the Parties protects its own Confidential Information, and in any event, no less than reasonable care. Except as otherwise expressly permitted under this Agreement, each of the Parties may use the other’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement and shall disclose such Confidential Information solely to those of its respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information. The provisions of this sub-clause shall supersede any non-disclosure agreement by and between the Parties entered prior to this Agreement that would purport to address the confidentiality of any Confidential Information and such agreement shall have no further force or effect with respect to the Confidential Information.
10.1 Momos does not, and Partner understands and acknowledges that Momos does not, collect use or disclose any Personal Data from Partner’s customers for the purposes of providing the Services under this Agreement. Momos may use Personal Data received from Partner where Partner has obtained the customer’s consent to share the customer’s Personal Data with Momos for the purpose of providing the Services, including business improvement.
10.3 Momos may Process Partner Data or User’s Personal Data to provide, maintain and improve the Services, or prevent or address any technical problems, or at the Partner’s request in connection with support requests.
10.4 The Partner acknowledges and agrees that Momos may access or disclose information about the Partner, their Account and their Users in order to comply with the law or respond to lawful requests or legal process, or prevent any infringement of Momos' partners’ or Momos' proprietary rights. Further, at Momos' sole discretion, any suspected fraudulent, abusive, or illegal activity by the Partner may be referred to law enforcement authorities.
10.5 Momos shall use appropriate technical and organizational measures to protect the Partner Data and the User’s Personal Data. The measures used are designed to provide a level of security appropriate to the risk of Processing the data. Momos shall ensure that any person authorized by Momos to Process the Partner Data shall protect it in accordance with Momos' confidentiality obligations under this Agreement.
10.6 Momos shall, without undue delay, notify the Partner and/or User of any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to the Partner Data or User’s Personal Data processed by Momos.
10.7 Momos may perform analytics on Partner Data to improve, enhance, support and operate the Services and compile statistical reports and record insights into usage patterns. Partner acknowledges that Momos uses Partner Data for the aforementioned purpose in compliance with applicable laws
10.8 Partner acknowledges and agrees that it is solely responsible for complying with all applicable data protection laws including obtaining all necessary consents and authorisations to collect any of its customers‘ Personal Data for use with the Services under this Agreement. Notwithstanding, Momos shall reasonably assist the Partner, at the Partner’s expense, in meeting the Partner’s obligations under applicable data protection laws.
10.9 When sharing or transferring Personal Data to Momos in Singapore for the purposes of this Agreement, Partner (hereinafter referred to as “Disclosing Party” in this clause) and Momos (hereinafter referred to as “Receiving Party” in this clause) agree to abide by the following terms as set out under this clause 11 and its sub-clauses.
11.1 In this DSA, unless the context otherwise requires, the following terms shall have the meanings assigned to them below:
(a) “Shared Personal Data” means Personal Data which the Disclosing Party discloses to the Receiving Party, or which the Receiving Party processes on behalf of the Disclosing Party, including: a name, identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
(b) “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Shared Personal Data transmitted, stored or otherwise processed.
11.2 Handling and Protection of Personal Data
11.2.1 The Disclosing Party and the Receiving Party acknowledge that for the purpose of the PDPA, the Disclosing Party is the data controller / data collector and the Receiving Party is the data processor / data intermediary.
11.2.2 The Receiving Party shall at all times comply with all its obligations under the PDPA at its own cost and shall also ensure that all necessary measures for compliance with the PDPA are also put in place by any of its sub-contractors, subsidiaries or affiliates to whom Shared Personal Data may be transferred to for processing.
11.2.3 The Receiving Party shall not transfer any Shared Personal Data to a place outside Singapore without the Disclosing Party’s prior written consent. If the Disclosing Party provides consent, the Receiving Party hereby undertakes to Disclosing Party to ensure that the Shared Personal Data transferred outside Singapore will be protected at a standard that is comparable to that under the PDPA and the Receiving Party shall also procure a similar written undertaking from any overseas third party in receipt of any Shared Personal Data.
11.2.4 The Receiving Party shall maintain the confidentiality of all Shared Personal Data and only process, use or disclose Shared Personal Data:
(b) in accordance with the Disclosing Party’s prior written consent;
(c) in accordance with the purposes for which consent to process, use or disclose such Shared Personal Data has been obtained from an individual;
(d) insofar as an exception or exemption under the PDPA applies; or
(e) when required by law or an order of court, but the Receiving Party shall notify the Disclosing Party as soon as practicable before complying therewith at its own cost.
11.2.5 The Receiving Party shall protect Shared Personal Data in the Receiving Party’s control or possession by taking into consideration the nature and sensitivity of the Shared Personal Data, and making reasonable security arrangements (including, where appropriate, physical, administrative, procedural and information & communications technology measures) to prevent unauthorised or accidental access, collection, use, disclosure, copying, modification, disposal or destruction of Shared Personal Data, or other similar risks.
11.2.6 For the purposes of this DSA, “reasonable security arrangements” shall include, but is not limited to, physical access controls, system access controls, data access controls, data transmission controls, data input controls, data pseudonymisation or encryption, data backups, and data segregation.
11.2.7 The Receiving Party shall only permit the authorised personnel to access Shared Personal Data on a need to know basis.
11.2.8 The Receiving Party shall provide the Disclosing Party with access to the Shared Personal Data that the Receiving Party has in its possession or control, as soon as practicable upon Disclosing Party’s written request.
11.2.9 Where the Disclosing Party provides Shared Personal Data to the Receiving Party, the Disclosing Party shall make reasonable effort to ensure that the Shared Personal Data is accurate and complete before providing the same to the Receiving Party. The Receiving Party shall put in place adequate measures to ensure that the Shared Personal Data in its possession or control remain or is otherwise accurate and complete. In any case, the Receiving Party shall take steps to correct any errors in the Shared Personal Data, as soon as practicable upon the Disclosing Party’s written request.
11.2.11 The Receiving Party shall, upon the request of the Disclosing Party:
(a) return to the Disclosing Party, all Shared Personal Data; or
(b) delete all Shared Personal Data in its possession,
and, after returning or deleting all Shared Personal Data, provide the Disclosing Party with written confirmation that it no longer possesses any Shared Personal Data. Where applicable, the Receiving Party shall also instruct all third parties to whom it has disclosed Shared Personal Data for the purposes of this DSA to return to the Receiving Party or delete such Shared Personal Data and certify the same to the Receiving Party.
11.2.12 The Disclosing Party retains control of the Shared Personal Data and remains responsible for its own compliance obligations under the PDPA, including ensuring cyberinformation security for the information they process, providing any required notices and obtaining any required consents regarding the scope and purpose of the collection, use, disclosure, transfer and processing in respect of any Shared Personal Data upon which it gives instructions to the Receiving Party.
11.3. Notification of Breach and Indemnity
11.3.1 The Receiving Party shall immediately notify the Disclosing Party when the Receiving Party becomes aware of or has reason to believe there has been a Personal Data Breach or a breach of any of its obligations in Clause 2. The Receiving Party shall then provide the Disclosing Party with the following information: -
(a) description of the nature of the Personal Data Breach or breach of any of the Receiving Party’s obligations under Clause 2 including the types, approximate numbers, and categories of Personal Data concerned;
(b) the likely consequences; and
(c) a description of the measures taken or proposed to be taken to address or mitigate the possible adverse effects.
11.3.2 The Receiving Party shall reasonably co-operate with the Disclosing Party in the Disclosing Party's handling of the matter, including:
(a) assisting with any investigation;
(b) providing the Disclosing Party with physical access to any facilities and operations affected;
(c) facilitating interviews with the Disclosing Party’s employees, former employees and others involved in the matter;
(d) making available all relevant records, logs, files, data reporting and other materials required under the PDPA or as otherwise reasonably required by the Disclosing Party; and
(e) taking reasonable and prompt steps to mitigate the effects and to minimise any damage resulting from the Personal Data Breach or the unlawful processing of any Personal Data.
11.3.3 The Receiving Party shall not inform any third party of any Personal Data Breach without first obtaining the Disclosing Party's prior written consent, except when required to do so by law.
11.3.4 The Receiving Party agrees that the Disclosing Party has the sole right to determine:
(a) whether to provide notice of the Personal Data Breach to any affected individuals, supervisory authorities, regulators, law enforcement agencies or others, as required by law or regulation or in the Disclosing Party's discretion, including the contents and delivery method of the notice; and
(b) whether to offer any type of remedy to affected individuals, including the nature and extent of such remedy.
11.3.5 The Receiving Party shall indemnify the Disclosing Party and its officers, employees and agents, against all actions, claims, demands, losses, damages, statutory penalties, expenses and cost (including legal costs on an indemnity basis), in respect of:
(a) a Personal Data Breach caused by the Receiving Party;
(b) the Receiving Party’s breach of any of its obligations under Clause 2; or
(c) any act, omission or negligence of the Receiving Party that causes or results in the Disclosing Party being in breach of the PDPA.
11.3.6 The Disclosing Party shall indemnify the Receiving Party and its officers, employees and agents, against all actions, claims, demands, losses, damages, statutory penalties, expenses and cost (including legal costs on an indemnity basis), in respect of:
(a) a Personal Data Breach caused by the Disclosing Party;
(b) the Disclosing Party’s breach of any of its obligations under Clause 2; or
(c) any act, omission or negligence of the Disclosing Party that causes or results in the Receiving Party being in breach of the PDPA.
11.4 Receiving Party's employees
11.4.1 The Receiving Party will ensure that all employees or persons granted access to any Shared Personal Data:
(a) are informed of the confidential nature of the Shared Personal Data and are bound by confidentiality obligations and use restrictions in respect of the Shared Personal Data; and
(b) are aware and have undertaken training on the Receiving Party’s obligations under the PDPA relating to handling Shared Personal Data and how it applies to their particular duties; and
11.4.2 The Receiving Party undertakes to take or that it will take reasonable steps to ensure the reliability, integrity and trustworthiness of all its employees with access to the Shared Personal Data.
11.5 Term and termination
11.5.1 This DSA will remain in full force and effect so long as the Subscription Term is in effect or the the Receiving Party retains any Shared Personal Data in its possession or control.
11.5.2 If a change in the PDPA or any similar legislation prevents either of the Parties from fulfilling all or part of its obligations under this DSA, the parties will suspend the processing of Shared Personal Data until that processing complies with the new requirements. If the parties are unable to bring the processing of Shared Personal Data into compliance with the changed legislation, they may terminate this entire Agreement on written notice to all other parties.
11.5.3 Upon termination or expiry of this entire Agreement, the Receiving Party shall return, delete or destroy all Shared Personal Data in its possession pursuant to this DSA. The parties commit to fulfil all its outstanding obligations up to date of termination or expiry.
11.6.1 The Receiving Party warrants and represents that:
(a) its employees, subcontractors, agents and any other person or persons accessing Shared Personal Data on its behalf are reliable and trustworthy and have received the required training on the PDPA or other similar legislation relating to the handling and protection of Personal Data;
(b) it and anyone operating on its behalf will process the Shared Personal Data in compliance with the PDPA and other laws, enactments, regulations, orders, standards and other similar instruments in Singapore or in any other relevant jurisdictions; and
(c) considering the current technology environment and implementation costs, it will take appropriate technical and organisational measures to prevent the unauthorised or unlawful processing of Shared Personal Data and the accidental loss or destruction of, or damage to, Shared Personal Data, and ensure a level of security appropriate to:
(i) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage;
(ii) the nature of the Shared Personal Data protected; and
(iii) comply with all applicable legislation and its information and security policies, including the reasonable security arrangements required under this DSA.
12.1 The services, including all server and network components are provided on an “as is” and “as available” basis. all express or implied representations and warranties, including any implied warranty of merchantability, fitness for a particular purpose, accuracy or non-infringement, are hereby excluded.
12.2 Partner acknowledges that Momos does not warrant that the access to the service, which is provided over internet and various telecommunications networks, all of which are beyond Momos’ control, will be uninterrupted, timely, secure, error-free or free from viruses or other malicious software.
12.1 To the fullest extent permitted by applicable law, in no event will either party, its affiliates, officers, directors, employees, agents, suppliers or licensors be liable to any person for any indirect, incidental, special, punitive, cover or consequential damages (including, without limitation, damages for lost profits, lost revenue, lost sales, lost goodwill, loss of use or lost content, impact on business, business interruption, loss of anticipated savings, loss of business opportunity) however caused, under any theory of liability, including, without limitation, contract, tort, warranty, breach of statutory duty, negligence or otherwise, except payment obligations of the partner even if either party has been advised as to the possibility of such damages or could have foreseen such damages. to the maximum extent permitted by applicable law, Momos’ aggregate liability and that of its affiliates, officers, employees, agents, suppliers and licensors, relating to the services, will be limited to an amount equal to the lower of (a) twelve months of the subscription charges paid for the services; or (b) the charges paid by partner, for the services prior to the first event or occurrence giving rise to such liability.
14.1 Indemnification by Momos: Subject to Partner’s compliance with this Agreement, Momos will indemnify and hold Partner harmless, from and against any claim brought against Partner by a third-party alleging that the Services Partner subscribed to infringes or misappropriates such third-party’s valid patent, copyright, or trademark (an “IP Claim”). Momos shall, at its expense, defend such IP Claim and pay damages finally awarded against Partner in connection therewith, including the reasonable fees and expenses of the attorneys, provided that (a) Partner promptly notifies Momos of the threat or notice of such IP Claim; (b) Momos has or will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim; and (c) Partner fully cooperates with Momos in connection therewith. Momos will have no liability or obligation with respect to any IP Claim if such claim is caused by (i) compliance with designs, data, instructions or specifications provided by Partner; (ii) modification of the Services by anyone other than Momos; or (iii) the combination, operation or use of the Services with other hardware or software where the Services would not by themselves be infringing. If use of the Services by Partner has become, or in Momos' opinion is likely to become, the subject of any IP Claim, Momos may at its own option and expense (a) procure for Partner the right to continue using the Services as set forth hereunder; (b) replace or modify the Services to make it non-infringing; or (c) if options (a) or (b) are not commercially and reasonably practicable as determined by Momos, terminate Partner’s subscription to the Services and repay Partner, on a pro-rated basis, any Subscription Charges Partner has previously paid Momos for the corresponding unused portion. This clause states Momos' sole, exclusive and entire liability to Partner and constitutes Partner’s sole remedy with respect to an IP Claim brought by reason of access to or use of the Services by Partner.
14.2 Indemnification by Partner: Partner will indemnify and hold Momos harmless against any claim brought by a third-party against Momos, and its respective employees, officers, directors and agents arising from Partner’s acts or omissions in connection with clause 4 of this Agreement provided that (a) Momos promptly notifies Partner of the threat or notice of such a claim, (b) Partner has or will have the sole and exclusive control and authority to select legal representatives, or to defend and/or settle any such claim; and (c) Momos fully cooperates with Partner in connection therewith. Partner will have no obligation or liability with respect to any such claim arising out of the gross negligence or wilful misconduct of Momos.
15.1 Assignment: Partner may not directly or indirectly, assign all or any part of this Agreement or its respective rights under this Agreement or delegate performance of its respective duties under this Agreement without the prior consent of Momos, which consent shall not be unreasonably withheld.
15.2 Entire Agreement and Revisions: This Agreement, together with any schedules or annexes, constitute the entire agreement, and supersede any and all prior agreements, written or oral, between Partner and Momos with regard to the subject matter hereof. This Agreement shall prevail over the terms or conditions in any purchase order or other order documentation Partner or any entity that Partner represents provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either Party with respect to the subject matter hereof. In case of a conflict between this Agreement and an Order Form, the Order Form shall prevail. In case of a conflict between two Order Forms, the Order Form later in date shall prevail. Upon mutual consent, this Agreement may be amended in writing, in which case the latest version of this Agreement will supersede prior versions.
15.3 Severability; No Waiver: If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified or interpreted so as to best accomplish the original intent of that provision to the fullest extent permitted by applicable law, and the remaining provisions of this Agreement shall remain unaffected and in effect. Momos' non-exercise of any right under or provision of this Agreement does not constitute a waiver of that right or provision of this Agreement.
15.4 Relationship of the Parties: The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the Parties.
15.5 Survival: All clauses which, by their nature are intended to survive, including without limitation clauses 1 (Definitions), 5 (Intellectual Property Rights), 7 (Charges and Payment), 11 (Disclaimer of Warranties), 12 (Limitation of Liability), 13 (Indemnification), 14 (Miscellaneous) shall survive any termination of Momos' agreement with respect to use of the Services by the Partner. Termination shall not limit or waive either Party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.
15.6 Notices and Consent to Electronic Communications: All notices to be provided by Momos to Partner under this Agreement may be delivered in writing (i) by nationally recognized overnight delivery service (“Courier”) or to the contact mailing address provided by Partner on any Order Form while subscribing to the Services; or (ii) electronic mail to the e-mail address provided for Partner’s Account. Momos’ address for a notice to Momos in writing by Courier is 10 Anson Road, #22-02 International Plaza, Singapore 079903 with a CC to email@example.com by electronic mail. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.
15.7 Publicity Rights: Partner hereby grants Momos the right to identify Partner as a user of Momos' Services on Momos’ websites and/or marketing collateral and to include Partner’s use of the Services in case studies.
15.8 Rights of Third Parties: Save as provided for under the PDPA, Any any person who is not a party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore, or such other similar law in any other jurisdiction, to enforce any provisions of this Agreement.
15.9 Governing Law and Dispute Resolution: This Agreement shall be governed by the laws of Singapore without regard to conflict of law principles. Any disputes or differences arising out of or in connection with this Agreement (the “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. The seat and venue of the arbitration shall be Singapore. The Tribunal shall consist of a single arbitrator. The language of the arbitration shall be English.
The Parties further agree that following the commencement of arbitration, they will attempt in good faith to resolve the Dispute through mediation at the Singapore International Mediation Centre (“SIMC”), in accordance with the SIAC-SIMC Arb-Med-Arb Protocol for the time being in force. Any settlement reached in the course of the mediation shall be referred to the arbitral tribunal appointed by SIAC and may be made a consent award on agreed terms