Terms of Service
Effective as of 12 April 2017
The Oddle Company (“Oddle,” “we,” “us,” or “our”) welcomes you. We’re really excited that you have decided to access and use our services (the “Services”), which are made available to you via the Oddle.me website (the “Website”), our Facebook social plugin (the “Plugin”), our mobile application (the “Mobile App”), and applications operated by Oddle on behalf of licensees of our platform (collectively, the “Platform”).
GENERAL TERMS AND CONDITIONS
a. Oddle hereby provides the Service for the duration of the Term, subject to and in accordance with the terms set out in this Agreement.
b. In the event of any conflict or inconsistency between these General Terms and Conditions and the Service Form, the terms set out in the Service Form shall prevail to the extent of such inconsistency.
a. Herein after Oddle shall, during the Term, undertake, perform, provide and complete for and on behalf of the Merchant, the following Service:
i. Provide the opportunity for customers to make online orders to the Merchant via the Site.
ii. Receive such orders made through the Plug-in and channel it to the Merchant.
3. SERVICE LEVEL AGREEMENT
a. Oddle shall use all reasonable commercial efforts to ensure that the service is operating and available to the Merchant at a rate of ninety-nine point nine percent (99.9%) uptime. Circumstances beyond Oddle’s reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, armed conflict, embargo, fire, flood, acts of God, strike or other labour disturbance, unavailability of or interruption or delay in telecommunications of third party services, virus attacks or hackers, failure of third party software (including, without limitation, ecommerce software, payment gateways, Browser software limitations).
4. SERVICE FEE INVOICING AND PAYMENT TERMS
a. In consideration of the Service to be provided by Oddle, the Merchant shall pay Oddle the service fee. Prices for the Services are set out in the Service Form and are exclusive of GST unless these are separately identified and agreed by both parties.
b. Invoices for the annual subscription fee for the service period will be billed in advance, with the invoice due on the 14th day from the date of such invoice. Payment shall be made in full without set off or deduction.
c. Invoices for the transaction cuts per order via Feastbump marketing platform will be consolidated and billed within the first week of the following month. Payments shall be made in full without set off or deduction.
d. The Merchant shall bear and pay all Taxes. If the Merchant is required under the law of any jurisdiction outside Singapore to deduct or withhold any sum as Taxes imposed on or in respect of any amount due or payable to Oddle, the Merchant shall make such deduction or withholding as required and the amount payable to Oddle shall be increased by any such amount necessary to ensure that Oddle receives a net amount equal to the amount which Oddle would have received in the absence of any such deduction or withholding.
5. MERCHANT DATA
a. Oddle will use the Data only to provide the Service and Professional Services and only as permitted by this Agreement. The Merchant acknowledge and agree that in order to provide the Service, Oddle may modify and transfer the Data back to third-party services, all subject to such third party’s terms of service governing this Data. Oddle may retain an archival copy of your Data. The Merchant shall have sole responsibility for the accuracy, quality, and legality of the Data.
b. The Merchant agree to remove or anonymize all sensitive information before transferring the Data to us, including, but not limited to, Billing Information, Personally Identifiable Information, and other sensitive information that you collect from your customers, agents, employees, and other parties. Oddle will not have any liability that may result from the disclosure of such information to us.
c. Oddle shall employ commercially reasonable physical, administrative, and technical safeguards to secure the Merchant Data on the Platform from unauthorized use or disclosure.
d. Oddle may monitor the performance and use of the Website and the Platform by all of the Merchants, combine this data (the “Usage Data”) with other data (including the Merchant Data), and use such combined data in an aggregate and anonymous manner. The Merchant hereby agree that Oddle may collect, use, and publish such aggregate data for the purpose of creating aggregated and anonymized statistics regarding Oddle Merchant base. Examples of the use of such aggregate data include, but are not limited to, statistics aggregated across all of Oddle’s Merchants on metrics such as size of data sets, the number of users of the Website and Platform, revenue, number of transactions, and growth rates.
6. REPRESENTATIONS AND WARRANTIES
a. The Merchant warrants and undertakes to Oddle as follows:
i. The Merchant will remain duly organized and validly existing in good standing under the laws of the jurisdiction of its incorporation and has all requisite power and authority to conduct its business, own its properties, and execute, deliver and perform its duties, obligations, undertakings, warranties and covenants under this Agreement.
ii. The execution, delivery and performance by the Merchant of this Agreement have been duly authorized by all necessary corporate action, and do not and will not contravene any provision of the Merchant’s constitutional documents or any indenture, contract or agreement to which the Merchant is a party or by which it or its properties may be bound, to any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award presently in effect applicable to the Merchant.
iii. All action, conditions and things required by any applicable law or regulation to be taken, fulfilled and done, including the obtaining of any necessary authorisations, approvals, permits, licences and consents, in order to enable the Merchants lawfully to enter into, exercise its rights and perform and comply with its obligations under this Agreement, to ensure that those obligations are valid, legally binding and enforceable and to make this Agreement admissible in evidence in any court of competent jurisdiction have been taken, fulfilled and done in all material aspects.
iv. This Agreement is valid and binding on the Merchant.
v. In entering into this Agreement, the Merchant
has relied on its own judgment and has not relied upon any representations, warranties or statements made or purported to be made by Oddle (other than expressly set out in this Agreement).
vi. So far as the Merchant is aware, no litigation, arbitration or administrative proceeding is current, pending or threatened to restrain the entry into, exercise of any of its rights under and/or performance or enforcement of or compliance with any of its obligations under this Agreement, and the Merchant is not subject to any outstanding judgment, rule, order, statement of claim, injunction or decree of any court, governmental or regulatory authority or body acting in an arbitral or adjudicative capacity, that may affect its ability to perform its obligations under this Agreement.
a. The Merchant shall indemnify and hold harmless Oddle from and against all costs, damages, claims, actions, expenses or liabilities incurred by or imposed upon Oddle, including loss of profits, business or anticipated savings, or any indirect or consequential loss, as a result of or in connection with:
i. A breach by the Merchant on its obligations and liabilities under this Agreement; or
ii. Any failure by the Merchant to honour the order by any entity;
8. EXCLUSION AND LIMITATION OF LIABILITY
a. Notwithstanding anything in this agreement, Oddle will not be liable to the Merchant (under the law of contract, tort, equity or otherwise) for any damages arising out of or in connection with the agreement that are indirect (meaning not arising in the ordinary course as a direct, natural or probably consequence of the act or omission complained of), regardless of the cause of such damages. Notwithstanding any provision on this Agreement, the maximum aggregate liability of Oddle to the Merchant out of or in connection with this Agreement, whether based on breach of contract, statutory warranty or otherwise, for any single incident or series of related incidents shall be limited to an amount equal to the service fees actually received by Oddle under this Agreement.
a. Either Oddle or the Merchant may elect to terminate this Agreement by providing notice, in accordance with these Terms, on or prior to the date thirty (30) days preceding the end of such Subscription Term. Unless the Account and subscription to the Service is so terminated, the subscription to the Service will renew for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in any Form, the Subscription Charges applicable to the subscription to the Service for any such subsequent Subscription Term shall be Our standard Subscription Charges for the Service Plan to which the Merchant have subscribed as of the time such subsequent Subscription Term commences.
b. Either Oddle or the Merchant may elect to terminate this Agreement immediately by written notice to the other Party if
i. The other Party commits any material breach of any of the provisions of this Agreement and, in the case of a breach capable of remedy, fails to remedy the same within seven (7) days after receipt of written notice giving full particulars of the breach and requiring it to be remedied;
ii. Any order by a court of competent jurisdiction is made for the liquidation or winding up of the other Party, the appointment of any receiver over any of the assets of the Party or any liquidator or provisional liquidator or judicial manager of the Merchant or any resolution is validly and effectively passed by the members or creditors of the Party for the liquidation or winding up of the Party or any analogous procedure under any applicable law; or
iii. The other Party ceases or threatens to cease to carry on business.
c. For the purpose of this Clause 9, a breach shall be considered capable of remedy only if the offending Party can comply with the provision in question in all respects other than as to time of performance (provided that time of performance is not of the essence). The rights to terminate this Agreement given by this Clause 9 shall be without prejudice to any other right or remedy of Oddle in respect of the breach concerned or any other breach and shall not affect the right and liabilities of Oddle accrued prior to the date of termination.
d. Parties acknowledge that any discounted fees offered by Oddle to the Merchant on the basis that the Merchant has agreed to take the Services for the full term under this Agreement. If this Agreement is terminated by (i) virtue of clause 9a, 9b or (ii) due to the Merchant’s termination prior to the expiry of the Term for whatever reasons, Oddle shall be entitled to be paid cancellation fees as follows:
i. Subscription fee for the remaining term at a non-promotional price.
ii. Variable charges up to 2359 on day of termination.
iii. Cancellation of any waiver of the subscription fee during the promotion period and payment of the same. Such cancellation fees represent a genuine pre-estimate of Oddle’s losses and shall not relieve the Merchant from any liability for damages or other remedies which may have been incurred by reason of any breach of this Agreement.
e. No refunds or credits for Subscription Charges or other fees or payments will be provided to the Merchant if the Merchant elect to terminate the subscription to the Service or cancel the Account prior to the end of the then effective Subscription Term. Following the termination or cancellation of the subscription to the Service and/or Account, Oddle reserves the right to delete all Data of the Merchant in the normal course of operation.
f. If the Merchant terminates the subscription to the Service or cancel the Account prior to the end of the then effective Subscription Term, in addition to other amounts the Merchant may owe Oddle, the Merchant must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term. This amount will not be payable by the Merchant in the event the Merchant terminate the subscription to the Service or cancel the Account as a result of a material breach of these Terms by Oddle, provided that the Merchant provides advance notice of such breach to Oddle and afford Oddle not less than seven (7) days to reasonably cure such breach.
10. CONFIDENTIAL INFORMATION
a. Subjected to Clause 10b, each Party shall, and shall ensure that its employees, keep confidential and shall not disclose to any person or use directly or indirectly for its own or any other person’s benefit (other than for the due performance by it of its obligations under this Agreement), any Confidential Information disclosed, made available or otherwise provided to that Party (“Receiving Party”) by or on behalf of any other Party (“Disclosing Party”).
b. Clause 10a shall not apply to the extent of:
i. Any Confidential Information which at the time it is disclosed, made available or otherwise provided by the Disclosing Party, was already in the public domain and shall cease to apply to any information which subsequently becomes publicly available otherwise than as a consequence of any breach by the Receiving Party of Clause 11a;
ii. Any disclosure required by any governmental or regulatory authority or stock exchange having jurisdiction over the Receiving Party in order to comply with any official directive or guideline, whether or not having the
force of law; and
iii. Any disclosure made in confidence to professional consultants of the Receiving Party or to an affiliate of the Receiving Party, provided that such disclosure is made in confidence and that each person to whom such disclosure is made has given an undertaking on the same terms as this Clause 10.
c. The Receiving Party shall take all reasonable steps to minimize the risk of disclosure of any Confidential Information disclosed, made available or otherwise provided by the Disclosing Party by ensuring that only its employees and directors whose duties will require them to possess any such Confidential Information shall have access thereto, and that they shall be instructed to treat the same as confidential.
d. The obligations contained in this Clause 10 shall ensue for a period of 2 years following the expiry of this Agreement.
a. All notices, demands or other communications required or permitted to be given or made hereunder shall be in writing and may be delivered personally or sent by prepaid registered post with recorded delivery, or by facsimile transmission addressed to the intended recipient thereof at its address or at its facsimile number set out in the Agreement Form.
a. The Merchant shall not assign, transfer, subcontract or delegate any of its rights, interest or obligations under this Agreement or any part thereof without the prior written consent of Oddle. Oddle may at any time freely assign any of its rights, benefits and interest and/or transfer any of its obligations or liabilities arising out of this Agreement to an Associate by written notice to the Merchant.
a. A statement issued by Oddle stating any matter or amount due from or owing by the Merchant to Oddle in connection with this Agreement at the date set out in such statement shall constitute conclusive evidence of the fact of such matter or amount as against the Merchant. However, nothing in this Clause shall prevent Oddle from correcting any error or discrepancy in such statement and issuing a substitute statement.
a. No variation of this Agreement shall be effective unless made in writing and signed by or on behalf of Oddle.
15. NO PARTNERSHIP
a. Nothing in this agreement shall create or be deemed to create a partnership between the Parties.
a. No failure on the part of Oddle to exercise, and no delay on its part in exercising, any right or remedy under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any other rights or remedies (whether provided by law or otherwise).
17. TIME OF ESSENCE
a. Time shall be of the essence in the performance of the Parties’ obligations under this Agreement.
18. THIRD PARTY RIGHTS
a. A person who or which 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 term of this Agreement.
19. GOVERNING LAW AND JURISDICTION
a. This Agreement shall be governed by, and construed in accordance with, the laws of Singapore. The Parties irrevocably and unconditionally agree to submit to the non-exclusive jurisdiction of the Singapore courts.
20. FORCE MAJEURE
a. No party shall be held responsible for any delay or failure in performance of any part of its obligations under this Agreement caused beyond its reasonable control and without fault or negligence of the delayed or nonconforming Party.
a. Each Party shall bear all costs incurred by it in connection with the preparation, negotiation and entry into of this Agreement.
a. In this Agreement, unless the context otherwise requires, the following words and expressions shall have the following meanings:
i. “Agreement” means this agreement, which consists of the Agreement Form and the General Terms and Conditions, as the same may be amended, supplemented or otherwise modified from time to time.
ii. “Associate” in relation to a Party means any business entity which directly or indirectly controls, is controlled by, or in under common control with that Party. For purposes of the foregoing, “control” shall mean the direct or indirect ownership of more than 50% of the outstanding voting securities or capital stock of such business entity or other comparable equity or ownership interest.
iii. “Data” refers to information collected from customers utilizing the services provided under this Agreement, including but not limited to the person’s name, telephone number and email address, and information submitted by the Merchant to the Platform.
iv. “Authorized User” means any of existing employees of the Merchant, consultants, or agents whom the Merchant authorizes to access and use the Platform pursuant to the terms and conditions of this Agreement; provided, however, that any consultants’ or agents’ access and use of the Platform shall be limited to their provision of services to the Merchant. The Merchant is responsible for the acts and omissions of its Authorized Users and any other person who accesses and uses the Platform using any of the Merchant or its Authorized Users’ access credentials.
v. “Non-Promotional Price” means the full non discounted price of the relevant Service.
vi. “Parties” refer to the Merchant and Oddle collectively, and “Party” means any of them.
vii. “Site” means the websites, mobile applications or digital properties operated directly or indirectly by Oddle, or for or on behalf of Oddle to facilitate online orders.
viii. “Taxes” means goods and services tax, value added tax, and any and all other taxes, duties, levies, imposts, licence duties, registration fees and any other charges or imposts howsoever described.
b. The headings and sub-headings of the provisions of this Agreement are to facilitate reference only and do not form a part of this Agreement, and shall not in any way affect the construction or interpretation thereof.