Peakflo Terms & Conditions

The use of Peakflo implies full acceptance of all the Terms and Conditions in relation to the website in force at the time of access by the User

Last updated May 21, 2021

SECTION A: WEBSITE TERMS AND CONDITIONS

Peakflo PTE. LTD. (registration number 202035714D) is headquartered in Singapore (hereinafter referred to as "Peakflo", "supplier" "we", “us”, or “our”). Peakflo operates globally in various jurisdictions.

RECIPIENTS AND CHANGES TO THE WEBSITE

These Terms and Conditions regulate the use of app.peakflo.co, portal.peakflo.co or any peakflo.co domain (hereinafter referred to as the ‘Website”), and tо those linked thereto that Peakflo makes available to its users or clients (hereinafter, referred to as “User” or "Client"). The use of this Website implies full acceptance of all the Terms and Conditions in relation to the Website in force at the time of access by the User. Hence, where the latter does not agree with any of the conditions set forth herein, said User shall refrain from using this Website. Peakflo reserves the right to modify these Terms and Conditions of the Website, as well as any other general or particular conditions, regulations of use, instructions or warnings, which may be applicable at any time. Likewise, Peakflo reserves the right to suspend, interrupt or cease to operate the Website at any time.

PURPOSE

Peakflo is a holistic accounts receivable automation and cash flow management SaaS. Through its partnership with regulated and licensed third parties, it also offers embedded payments and financing functionality to its Clients.

Peakflo facilitates access to different content, information and data (hereinafter “Content”) made available to the User by Peakflo or third party service and content providers through its Website. Peakflo reserves the right to modify at any time the presentation, configuration and location of the Website, as well as the Content and conditions required to use it.

CONDITIONS FOR ACCESS AND USE OF THIS WEBSITE

Access to and use of the Website

The User recognizes and accepts that access to this Website and/or the Content herein contained takes place freely and consciously, under his/her sole responsibility. The User agrees to make a suitable and lawful use of this Website and its Content, in accordance with the applicable legislation, with these Terms and Conditions, and generally accepted moral, decency and public order. The User shall refrain from:

  1. making unauthorised or fraudulent use of the Website and/or its Content;
  2. accessing or attempting to access resources or restricted areas of the Website, without fulfilling the conditions required for such access;
  3. using the Website and/or its Content for illicit or illegal purposes, contrary to the provisions of these Terms and Conditions, to good faith and public order, with the purpose of violating the rights and interests of others, or of damaging, disabling or overloading the Website or preventing its normal use or enjoyment;
  4. causing damage to Peakflo’s physical or logical systems, its suppliers or third parties;
  5. introducing or spreading viruses into the computer network, or into any other physical or logical systems with the purpose of causing damage to Peakflo’s physical or logical systems, its suppliers or third parties;
  6. attempting to access, use and/or tamper with data from Peakflo, third party suppliers and other Users;
  7. reproducing or copying, distributing, allowing access to the public through any means of public communication, transforming or modifying its Content, unless authorised by the owner of the corresponding rights or where so is legally permitted;
  8. deleting, concealing or tampering the notes on intellectual or industrial property rights and other identifying data of the rights of Peakflo or third parties incorporated to the Content, as well as of the protection technical devices or any other information mechanisms that may be included in the Content; and/or
  9. obtaining and attempting to obtain Content using, to this end, means or procedures different from those made available for said purpose, as the case may be, or where said means or procedures are expressly indicated in the web pages where the Content is included or, in general, those frequently used on the Internet, provided that they do not entail any risks for damage or disablement of the Website and/or its Contents.

Introduction of links

Users who wish to embed a hyperlink or link to Peakflo’s Website must obtain prior authorization from Peakflo, and be subject to compliance with the following obligations:

  1. the link shall only allow access to the Website, but shall not reproduce it in any way;
  2. links to pages other than the ‘Home’ page of the Website (peakflo.co) or 'Payer portal' page (portal.peakflo.co) shall not be embedded. Also, the link shall open in a separate window in the browser;
  3. the use of frames, or any other means that may create the presumption that there is a relationship between Peakflo and the website where the link is included is strictly prohibited;
  4. false, inaccurate or incorrect statements or manifestations about the Website are strictly prohibited;
  5. there shall be no declaration or presumption that Peakflo has supervised or assumed in any way the content or services offered or advertised on the website where the link is embedded;
  6. the website where the link is embedded shall not contain any trademarks, trade names, labels, names, logos, slogans or other distinctive signs belonging to Peakflo and/or third parties without express authorisation; and
  7. the website where the link is embedded shall not contain pictures or any other elements contrary to law, morals, public order, or decency. Peakflo reserves the right to prohibit the inclusion of links to its Website, where it considers that the site where the links is embedded fails to meet the requirements herein indicated, and shall in no event be held liable for the consequences that may result from the introduction of the link by third parties, or from the content, information and/or services offered on the websites where the link is embedded.

APPLICABLE PRIVACY POLICY

  1. Usage of Peakflo or agreement to Peakflo's terms and conditions also include agreement to Peakflo's privacy policy

INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS

The User acknowledges and accepts that all intellectual and industrial property rights on the Content and/or any other elements contained in the Website (including without limitation, trademarks, logos, trade names, text, images, graphics, audio and video, databases, software and presentation) belong to Peakflo and/or third parties. In no case shall access to the Website imply any type of waiver, transmission, licensing, or total or partial transfer of said rights, unless explicitly stated otherwise. These Terms and Conditions do not confer on the Users any other right of use, alteration, exploitation, reproduction, distribution or public disclosure of the Website and/or its Content, other than those expressly provided herein. Any other use or exploitation of any rights shall be subject to the prior and express authorisation, specifically granted for that purpose, by Peakflo, or the third-party holder of the rights in question. Peakflo authorises Users to use, view and print the Content and/or elements included in the Website solely for their personal, private and non-profit use. The use of such elements, their reproduction, communication and/or distribution for commercial or lucrative purposes, as well as their modification, alteration, or decompilation are strictly forbidden. For any other use except those expressly permitted, it shall be necessary to obtain previous written consent by the owner of the rights of the element in question. Peakflo may take legal actions in the event of breaches of its intellectual and industrial property rights.

WAIVER OF GUARANTEES AND LIABILITY

Exclusion of guarantees for operating the Website

Peakflo does not guarantee the availability and continuity of the functioning of the Website or of those other websites where a link to its Website has been embedded. Likewise, Peakflo shall in no event be held liable for any damages that may result from:

  1. lack of availability or accessibility to the Website or to those sites where a link has been embedded;
  2. interruption in the operation of the Website or computer failures, telephone breakdowns, disconnections, delays or blockages caused by deficiencies or overloads of telephone lines, the Internet system or other electronic systems, produced in the course of their operation;
  3. lack of suitability of the Website for the specific needs of the User;
  4. other damages that may be caused by third parties through unauthorised interference outside Peakflo’s control; and/or
  5. the presence of viruses or other elements that may alter the physical or logical systems, electronic documents or files of Users.

Exclusion of guarantees and for the use of the Website

Peakflo shall not be held liable, under any circumstances, for the use made by Users and/or third parties of the Website, its Content, applications or related services, or for the damages which may arise from said use.

Disclaimer of liability for the Content

Peakflo does not edit the Content produced by third parties published on the Website, if any. Consequently, it is not responsible for the legality, reliability, usefulness, veracity, accuracy, completeness and timeliness of said Content.

Exclusion of guarantees and liability in relation to links

The Website may make available links which allow Users to access pages and/or websites belonging to, and/or managed by third parties. Peakflo checks the existing content of said pages when the link is embedded and does so in the belief and good faith that such content complies with applicable legislation. Nevertheless, in no case shall Peakflo be liable for, nor shall it approve or recognise as its own the products, services, content, information, data, files and any kind of existing materials on said web pages, and shall not monitor and not be liable for, nor shall it approve or claim as its own, any subsequent modifications of said materials. Where deemed advisable or when so requested by a legal or administrative order, Peakflo shall remove links to web pages which infringe the applicable legislation and/or affect third parties’ rights.


ACTIONS IN CASE OF NON-COMPLIANCE

Peakflo reserves the right to exercise as many actions as it can under the current legislation and applicable at any time and in any case to demand the responsibilities arising from the breach of any of the provisions of these Terms and Condition of the Website and/or related services on the part of a User.

PARTIAL NULLITY

The declaration of the nullity, invalidity or inapplicability of any of these Terms and Conditions shall not affect the validity or applicability of the other conditions, which shall continue to bind the parties. The waiver by either party to enforce any of the conditions at a particular general moment stipulated here does not imply a waiver of a general nature of the fulfilment of another condition or conditions, nor does it create a right acquired for the other party.

DISCLOSURE

Whatsapp: Peakflo offers its products and services in conjunction with use or access to WhatsApp, and is an ISV (Independent Software Vendor) with Twilio. This means that the Whatsapp for business communication channels are offered for use through the Twilio APIs for WhatsApp.

Publicity: Peakflo may, at its discretion, make public disclosure about the existence of a commercial relationship (if any) with the user/client to other prospective clients or investors. Such disclosure may be in the form of placing the user's company logo in Peakflo's marketing material.


 

SECTION B:  GENERAL TERMS

1. INTERPRETATION


1.1 Definitions:  In this terms and conditions agreement, the following terms have the stated meaning:  

Term

Meaning

Agreement

Section A (Agreement to Website Terms and Conditions), Section B (General Terms) and Appendix (Pricing and Payment Partners)

Confidential Information

the terms of the Agreement and any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the Agreement.  The Supplier’s Confidential Information includes Intellectual Property owned by the Supplier (or its licensors), including the Peakflo Software.  The Client’s Confidential Information includes the Data.

Data

all data, content, and information (including Personal Information) owned, held, used or created by or on behalf of the Client that is stored using, or inputted into, the Services.

End Date

the end date set out in the Key Details.

Fees

the fees set out in the Key Details, as updated from time to time in accordance with clause 5.

Force Majeure

an event that is beyond the reasonable control of a party, excluding:

  1. an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
  2. a lack of funds for any reason.

Intellectual Property Rights

includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity, but excludes data and documents output generated by the Client’s use of the SaaS Services .  Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.

Key Details

the Agreement specific details set out in Section A of the Agreement.

Objectionable

includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.

Payment Terms

the payment terms set out in the Key Details (if any).

Permitted Users

Those personnel, including officers, employees and subcontractors, of the Client who are authorised to access and use the Services on the Client’s behalf in accordance with clause 3.3.

Personal Information

has the same meaning as Personal Data as defined in the PDPA 2012

Peakflo Software

the software owned by the Supplier (and its licensors) that is used to provide the SaaS Service.

Related Services

any related service described in the Key Details and any further services that the Supplier agrees to provide to the Client under the Agreement.

SaaS Service

the service having the core functionality described in the Key Details and the Appendix. The SaaS Service is described in more detail on the Website, as the Website is updated from time to time.

Services

the SaaS Service and any Related Service.

Start Date

the start date set out in the Key Details.

Underlying Systems

the Peakflo Software, IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third party solutions, systems and networks.

Website

the internet site at the domain set out in the Key Details, or such other site notified to the Client by the Supplier.

Year

a 12 month period starting on the Start Date or the anniversary of that date.

1.2 Interpretation:  In the Agreement: 
    1. a party to the Agreement includes that party’s permitted assigns; 
    2. personnel includes officers, employees, contractors and agents, but a reference to the Client’s personnel does not include the Supplier;
    3. a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity;
    4. including and similar words do not imply any limit; and 
    5. a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them;
    6. clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement;
    7. words in the singular include the plural and vice versa; 
    8. a reference to:
    9. no term of the Agreement is to be read against a party because the term was first proposed or drafted by that party; and
    10. if there is any conflict between Section B and Section A of the Agreement, Section B prevails unless expressly stated otherwise in Section A.

2. SERVICES

2.1 General:  The Supplier must use reasonable efforts to provide the Services:

          1. in accordance with the Agreement and Singapore law;
          2. exercising reasonable care, skill and diligence; and
          3. using suitably skilled, experienced and qualified personnel.

2.2 Non-exclusive:  The Supplier’s provision of the Services to the Client is non-exclusive.  Nothing in the Agreement prevents the Supplier from providing the Services to any other person.

2.3 Availability: 

      1. The Supplier will use all reasonable efforts to ensure the SaaS Service is available on a 24/7 basis with a guaranteed 99.5% uptime, as defined below.  However, it is possible that on rare occasions the SaaS Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure.  The Supplier will use reasonable efforts to publish on the Website and/or notify the Client by email in advance about details of any unavailability. The supplier will make all reasonable efforts to ensure that such maintenance or updates that may disrupt client’s access to software is not done during normal business hours so as to minimize any inconvenience. Reasonable downtime of SaaS Service notified by Supplier to Client in advance in accordance with this clause should not count towards the said 99.5% uptime requirement.
      2. Through the use of web services and APIs, the SaaS Service interoperates with a range of third party service features.  The Supplier does not make any warranty or representation on the availability of those features.  Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, the Supplier may cease to make available that temporarily until a suitable alternative third party service provider is not acquired.  To avoid doubt, if the Supplier exercises its right to cease the availability of a third party feature, the Client is not entitled to any refund, discount or other compensation.
      3. The Supplier does not make any warranty or representation on the availability when
        1. The Client has made unauthorized changes to the configuration or set up of affected equipment, software or services.
        2. The Client has prevented the Supplier from performing required maintenance and update tasks.
        3. the cause is reasonably beyond the Supplier control. For instance: floods, war, civil unrest etc.
        4. the Client is in breach of this contract with Vendor for any reason (e.g. late payment of fees, improper use, violation of terms, etc.).
      4. Measurement and penalties
        1. Uptime is measured over each calendar month. It is calculated to the nearest minute, based on the number of minutes in the given month (for instance, a 31-day month contains 44,640 minutes).
        2. The Client must report the downtime at the time it occurs, and must claim any credits by presenting documented evidence of the SaaS Service unavailability within fifteen (15) days of occurrence of the relevant unavailability.
        3. If uptime of the SaaS Service availability drops below the threshold, a penalty will be applied in the form of a credit for the client.
        4. This means the following month’s fee payable by the client will be reduced on a proportional downtime basis.
        5. The level of penalty will be calculated depending on the number of hours for which the service was unavailable, minus the downtime permitted by the SLA.
        6. Uptime penalties in any month are capped at 50% of the total monthly fee.
        7. Uptime measurements exclude periods of routine maintenance.
      5. Service requests and support
        1. Email support: monitored 9am-7pm SGT Monday-Friday
          Emails received outside of office hours will be collected, however, no action can be guaranteed until the next business day.
        2. The Supplier will respond to service-related incidents and/or requests submitted by the Client within the following time frames:
          1. 0-8 hours (during business hours) for issues classified as High priority (The SaaS Service has completely ceased to function).
          2. Within 48 hours for issues classified as Medium priority (The SaaS Services are working, but certain functionalities of the SaaS Service are unavailable which requires attention/solution as soon as possible).
          3. Within 5 working days for issues classified as Low priority (These are minor issues that do not fall under any of the above severity levels and that do not have any significant impact on the ability to use the Software Service features and functionalities).

    2.4 Additional Related Services:  
      1. The Supplier may, from time to time, make available additional services to supplement the SaaS Service (such as embedded payments and financing solutions in stages geographically across different countries)
      2. At the request of the Client and subject to the Client paying any additional applicable Fees, the Supplier may agree to provide to the Client an additional Related Service (such as customization of dashboard, reports etc.)

    3. CLIENT OBLIGATIONS


    3.1 General use:  The Client and its personnel must:
      1. the Client’s own internal business purposes and reaching out to their B2B customers (also referred to as payers) for their accounts receivable collections
        1. lawful purposes including complying with the local regulations that may exist in their country of operations; and
        2. use the Services in accordance with the Agreement solely for:
      2. not resell or make available the Services to any third party, save for companies affiliated or related to the Client and their employees, officers and subcontractors, or otherwise commercially exploit the Services.

    3.2 Access conditions:  When accessing the SaaS Service, the Client and its personnel must:

      1. not impersonate another person or misrepresent authorisation to act on behalf of others or the Supplier;
      2. correctly identify the sender of all electronic transmissions;
      3. not attempt to undermine the security or integrity of the Underlying Systems; 
      4. not use, or misuse, the SaaS Service in any way which may be illegal or impair the functionality of the Underlying Systems or impair the ability of any other user to use the SaaS Service;
      5. not attempt to view, access or copy any material or data other than: 
        1. that which the Client is authorised to access; and
        2. to the extent necessary for the Client and its personnel to use the SaaS Service in accordance with the Agreement;
      6. neither use the SaaS Service in a manner, nor transmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading; and
      7. comply with any terms of use on the Website, as updated from time to time by the Supplier.
    3.3 Personnel:  
        1. Without limiting clause 3.2, no individual other than a Permitted User may access or use the SaaS Service.
        2. The Client may authorise any member of its personnel to be a Permitted User, in which case the personnel with the administrator access of the Client will update their Peakflo software’s user settings with the Permitted User’s name and details.
        3. The Client must procure each Permitted User’s compliance with clauses 3.1 and 3.2 and any other reasonable condition notified by the Supplier to the Client.
        4. A breach of any term of the Agreement by the Client’s personnel [(including, to avoid doubt, a Permitted User)] is deemed to be a breach of the Agreement by the Client.

      3.4 Authorisations:  The Client is responsible for procuring and managing all licences, authorisations and consents required for it and its personnel to use the Services, including to use, store and input Data into, and process and distribute Data through the Services. 

      4. DATA 

      4.1 Supplier access to Data:  

        1. The Client acknowledges that:
          1. the Supplier may require access to the Data to exercise its rights and perform its obligations under the Agreement; and
          2. to the extent that this is necessary but subject to clause 7, the Supplier may authorise a member or members of its personnel to access the Data for this purpose. 
        2. The Client must arrange all consents and approvals that are necessary for the Supplier to access the Data as described in clause 4.1a.

      4.2 Analytical Data:  The Client acknowledges and agrees that:
        1. the Supplier may:
          1. use Data and information about the Client’s and the Client’s end users’ use of the Services to generate anonymised and aggregated statistical and analytical data (Analytical Data); and
          2. use Analytical Data for the Supplier’s internal research and product development purposes and to conduct statistical analysis and identify trends and insights;
        2. the Supplier’s rights under clause 4.2a above will survive termination or expiry of the Agreement; and
        3. title to, and all Intellectual Property Rights in, Analytical Data is and remains the Supplier’s property.
      4.3 Agent:  
        1. The Client acknowledges and agrees that to the extent Data contains Personal Information, in collecting, holding and processing that information through the Services, the Supplier is acting as an agent of the Client for the purposes of the PDPA 2012 and any other applicable privacy law.
        2. The Client must obtain all necessary consents from the relevant individual to enable the Supplier to collect, use, hold and process that information in accordance with the Agreement.

      4.4 Backups of Data:  While the Supplier will take standard industry measures to back up all Data stored using the Services, the Client agrees to keep a separate back-up copy of all data uploaded or synced with the SaaS Service.

      4.5 Indemnity:  The Client indemnifies the Supplier against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by the Supplier’s solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data is Objectionable, incorrect or misleading.

      5. FEES

      5.1 Fees:  The Client must pay to the Supplier the Fees.

      5.2 Invoicing and payment:  

        1. The Supplier will bill the Client at the start period of the defined Payment Terms
        2. The Fees include or exclude GST, depending on the relevant tax jurisdiction
        3. The Client must pay the Fees:
          1. by the due date of each invoice and;
          2. electronically in cleared funds without any set off or deduction.

      5.3 Overdue amounts:  The Supplier may charge interest on overdue amounts.  Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by the Supplier’s primary trading bank as at the due date (or, if the Supplier’s primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.

      5.4 Increases to SaaS fees

        1. By giving at least 90 days’ notice, the Supplier may increase the SaaS fees once each year by upto a maximum of 8%. Fees updated under this clause are deemed to be the Fees listed in the Appendix
        2. If the Client does not wish to pay the increased Fees, it may terminate the Agreement on no less than 90 days’ notice, provided the notice is received by the Supplier before the effective date of the Fee increase.  If the Client does not terminate the Agreement in accordance with this clause, it is deemed to have accepted the increased Fees.

      6. INTELLECTUAL PROPERTY 

      6.1 Ownership:  

        1. Subject to clause 6.1b, title to, and all Intellectual Property Rights in, the Services, the Website, and all Underlying Systems is and remains the property of the Supplier (and its licensors).  The Client must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
        2. Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains the property of the Client.  The Client grants the Supplier a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of its rights and performance of its obligations in accordance with the Agreement. 

      6.2 Know-how:  To the extent not owned by the Supplier, the Client grants the Supplier a royalty-free, transferable, irrevocable and perpetual licence to use for the Supplier’s own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by the Supplier in the provision of the Services.

      6.3 Feedback:  If the Client provides the Supplier with ideas, comments or suggestions relating to the Services or Underlying Systems (together feedback):

        1. all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by the Supplier; and
        2. the Supplier may use or disclose the feedback for any purpose.

      6.4 Third party sites and material:  The Client acknowledges that the SaaS Service may link to third party websites or feeds that are connected or relevant to the SaaS Service.  Any link from the SaaS Service does not imply any Supplier endorsement, approval or recommendation of, or responsibility for, those websites or feeds or their content or operators.  To the maximum extent permitted by law, the Supplier excludes all responsibility or liability for those websites or feeds.

      6.5 Third party Intellectual Property Rights indemnity:

        1. The Supplier indemnifies the Client against any claim or proceeding brought against the Client to the extent that claim or proceeding alleges that the Client’s use of the SaaS Service in accordance with the Agreement constitutes an infringement of a third party’s Intellectual Property Rights (IP Claim).  The indemnity is subject to the Client:
          1. promptly notifying the Supplier in writing of the IP Claim; 
          2. making no admission of liability and not otherwise prejudicing or settling the IP Claim, without the Supplier’s prior written consent; and
          3. giving the Supplier complete authority and information required for the Supplier to conduct and/or settle the negotiations and litigation relating to the IP Claim.  The costs incurred or recovered are for the Supplier’s account.
        2. The indemnity in clause 6.5a does not apply to the extent that an IP Claim arises from or in connection with:
          1. the Client’s breach of the Agreement;
          2. use of the SaaS Service in a manner or for a purpose not reasonably contemplated by the Agreement or otherwise not authorised in writing by the Supplier; or
          3. any illegal use of third party data or any Data.
        3. If at any time an IP Claim is made, or in the Supplier’s reasonable opinion is likely to be made, then in defence or settlement of the IP Claim, the Supplier may (at the Supplier’s option):
          1. obtain for the Client the right to continue using the items which are the subject of the IP Claim; or
          2. modify, re-perform or replace the items which are the subject of the IP Claim so they become non-infringing.

      7. CONFIDENTIALITY

      7.1 Security:  Each party must, unless it has the prior written consent of the other party:

        1. keep confidential at all times the Confidential Information of the other party; 
        2. effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
        3. disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, the provisions of clauses 7.1a and 7.1b.
      7.2 Permitted disclosure:  The obligation of confidentiality in clause 7.1 does not apply to any disclosure or use of Confidential Information:
        1. for the purpose of performing the Agreement or exercising a party’s rights under the Agreement;
        2. required by law (including under the rules of any stock exchange);
        3. which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
        4. which was rightfully received by a party to the Agreement from a third party without restriction and without breach of any obligation of confidentiality; or
        5. by the Supplier if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that the Supplier enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 7.

      8. WARRANTIES

      8.1 Mutual warranties:  Each party warrants that it has full power and authority to enter into and perform its obligations under the Agreement which, when signed, will constitute binding obligations on the warranting party.

      8.2 No implied warranties:  To the maximum extent permitted by law:

        1. the Supplier’s warranties are limited to those set out in the Agreement, which shall not be limited in any way other than under Clause 9,and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to SGD 1,000; and
        2. the Supplier makes no representation concerning the quality of the Services and does not promise that the Services will:
          1. meet all of the Client’s requirements or be suitable for a particular purpose; or
          2. be indefinitely secure, free of viruses or other harmful code, uninterrupted or always error free.
      8.3 Limitation of remedies:  Where legislation or rule of law implies into the Agreement a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in the Agreement.  However, the liability of the Supplier for any breach of that condition or warranty is limited, at the Supplier’s option, to:
        1. supplying the Services again; and/or
        2. paying the costs of having the Services supplied again.

       

      9. LIABILITY

        9.1 Maximum liability:  The maximum aggregate liability of the Supplier under or in connection with the Agreement or relating to the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any Year exceed an amount equal to the Fees paid by the Client under the Agreement in the previous Year (which in the first Year is deemed to be the total Fees paid by the Client from the Start Date to the date of the first event giving rise to liability)].  The cap in this clause 9.1 includes the cap set out in clause 8.2a.

        9.2 Unrecoverable loss:  Neither party is liable to the other under or in connection with the Agreement or the Services for any: 

          1. loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or
          2. consequential, indirect, incidental or special damage or loss of any kind.
        9.3 Unlimited liability:  
          1. Clauses 9.1 and 9.2 do not apply to limit the Supplier’s liability:
            1. under the indemnity in clause 6.5a; or
            2. under or in connection with the Agreement for:
              1. personal injury or death;
              2. fraud or wilful misconduct; or 
              3. a breach of clause 7.
          2. Clause 9.2 does not apply to limit the Client’s liability:
            1. to pay the Fees;
            2. under the indemnity in clause 4.6; or
            3. for those matters stated in clause 9.3aii.

        9.4 No liability for other’s failure:  Neither party will be responsible, liable, or held to be in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under the Agreement, or by the negligence or misconduct of the other party or its personnel.

        9.5 Mitigation:  Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with the Agreement.

         

        10. TERM, TERMINATION AND SUSPENSION

        10.1 Duration:  Unless terminated under this clause 10, the Agreement:
          1. starts on the Start Date and ends on the End Date; but
          2. where no End Date is set out in the Key Details, continues for successive terms of 12 months from the Start Date unless a party gives 60 days notice that the Agreement will terminate on the expiry of the then-current term. 
        10.2 Termination rights:  
          1. Either party may, by notice to the other party, immediately terminate the Agreement if the other party:
            1. breaches any material provision of the Agreement and the breach is not:
              1. remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or
              2. capable of being remedied;
            2. becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or
            3. is unable to perform a material obligation under the Agreement for 30 days or more due to Force Majeure.
          2. If the remedies in clause 6.5c are exhausted without remedying or settling the IP Claim, the Supplier may, by notice to the Client, immediately terminate the Agreement.
        10.3 Consequences of termination or expiry:
          1. Termination or expiry of the Agreement does not affect either party’s rights and obligations that accrued before that termination or expiry.
          2. On termination or expiry of the Agreement, the Client must pay all Fees for Services provided prior to that termination or expiry.
          3. Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination or expiry of the Agreement and subject to clause 10.4d, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.  
          4. At any time prior to one month after the date of termination or expiry, the Client may request: 
            1. a copy of any Data stored using the SaaS Service, provided that the Client pays the Supplier’s reasonable costs of providing that copy.  On receipt of that request, the Supplier must provide a copy of the Data in a common electronic form.  The Supplier does not warrant that the format of the Data will be compatible with any software; and/or
            2. deletion of the Data stored using the SaaS Service, in which case the Supplier must use reasonable efforts to promptly delete that Data.  

        To avoid doubt, the Supplier is not required to comply with clause 10.4di to the extent that the Client previously requested deletion of the Data.

        10.4 Obligations continuing:  Clauses which, by their nature, are intended to survive termination or expiry of the Agreement, including clauses 4.6, 6, 7, 9, 10.4, 10.5 and 11, continue in force.


        10.5 Rights to restrict:  Without limiting any other right or remedy available to the Supplier, the Supplier may restrict or suspend the Client’s access to the SaaS Service and/or delete, edit or remove the relevant Data if the Supplier considers that the Client (including any of its personnel) has:

          1. undermined, or attempted to undermine, the security or integrity of the SaaS Service or any Underlying Systems;
          2. used, or attempted to use, the SaaS Service:
            1. for improper purposes; or
            2. in a manner, other than for normal operational purposes, that materially reduces the operational performance of the SaaS Service; 
          3. transmitted, inputted or stored any Data that breaches or may breach the Agreement or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or
          4. otherwise materially breached the Agreement.
        10.6 Process:  
          1. The Supplier must notify the Client where it restricts or suspends the Client’s access, or deletes, edits or removes Data, under clause 10.6.
          2. Clause 10.4di will not apply to the extent that it relates to Data deleted or removed under clause 10.6.

        11. DISPUTES


        11.1 Good faith negotiations:  Before taking any court action, a party must use best efforts to resolve any dispute under, or in connection with, the Agreement through good faith negotiations.
        11.2 Obligations continue:  Each party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a dispute.
        11.3 Right to seek relief:  This clause 11 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.

        12. GENERAL 

          12.1 Force Majeure:  Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure, provided that the affected party:
            1. immediately notifies the other party and provides full information about the Force Majeure;
            2. uses best efforts to overcome the Force Majeure; and
            3. continues to perform its obligations to the extent practicable.

          12.2 Rights of third parties:  No person other than the Supplier and the Client has any right to a benefit under, or to enforce, the Agreement.

          12.3 Waiver:  To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.

          12.4 Independent contractor:  Subject to clause 4.3, the Supplier is an independent contractor of the Client, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under the Agreement.

          12.5 Notices:  A notice given by a party under the Agreement must be delivered to the other party via email using the email address set out in the Key Details or otherwise notified by the other party for this purpose.  If the notice is a notice of termination, a copy of that email must be immediately delivered (by hand or courier) to the Chief Executive or equivalent officer of the other party at the other party’s last known physical address.  

          12.6 Severability:  
            1. If any provision of the Agreement is, or becomes, illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity.
            2. If modification under clause 12.6a is not possible, the provision must be treated for all purposes as severed from the Agreement without affecting the legality, enforceability or validity of the remaining provisions of the Agreement.

          12.7 Variation:  Subject to clause 5.4, any variation to the Agreement must be in writing and signed by both parties.

          12.8 Entire agreement:  The Agreement sets out everything agreed by the parties relating to the Services, and supersedes and cancels anything discussed, exchanged or agreed prior to the Start Date.  The parties have not relied on any representation, warranty or agreement relating to the subject matter of the Agreement that is not expressly set out in the Agreement, and no such representation, warranty or agreement has any effect from the Start Date.

          12.9 Subcontracting and assignment:  
            1. Other than permitting the use of Peakflo SaaS by the Client’s related companies and their officers, employees and subcontractors, the Client may not assign, novate, subcontract or transfer any right or obligation under the Agreement without the prior written consent of the Supplier, that consent not to be unreasonably withheld.  The Client remains liable for its obligations under the Agreement despite any approved assignment, subcontracting or transfer.  Any assignment, novation, subcontracting or transfer must be in writing.
            2. Any change of control of the Client is deemed to be an assignment for which the Supplier’s prior written consent is required under clause 12.9a.  In this clause change of control means any transfer of shares or other arrangement affecting the Client or any member of its group which results in a change in the effective control of the Client.

          12.10 Law:  The Agreement is governed by, and must be interpreted in accordance with, the laws of Singapore.  Each party submits to the non-exclusive jurisdiction of the Courts of Singapore in relation to any dispute connected with the Agreement.

          12.11 Counterparts:  The Agreement may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement.  A party may enter the Agreement by signing and emailing a counterpart copy to the other party.

          12.12 Disclosure: 
            1. Supplier offers its products and services in conjunction with use or access to WhatsApp, and is an ISV (Independent Software Vendor) with Twilio. The Whatsapp for business communication channels are offered for use to the client through Twilio APIs for WhatsApp. Hence the client’s usage based charges for the same would be passed through to the client without any mark-up by the supplier.
            2. The Supplier does not not:
              1. resell the WhatsApp Business Solution, or give any Clients or third parties access to (or permit them to access) the WhatsApp Business Solution (including messages) other than the Client for whom supplier's services have been engaged;
              2. hold itself out as an agent, legal representative, or employee of WhatsApp (including any of its Affiliates) or suggest any affiliation with WhatsApp (or any of its Affiliates) including that the supplier is an authorized distributor of the WhatsApp Business Solution;
              3. create or set up WABAs for any Clients or third parties. For clarity, the requirements relating to appointing a system administrator do not apply to the supplier;
              4. use or access the WhatsApp Business Client;
              5. retain any third party as its service provider to manage its own, or Client’s access to the WhatsApp Business Solution (including messages);
              6. charge a fee for using the WhatsApp Business Solution (or related services), but this does not prohibit the supplier from charging for any of the other products and services unrelated to the use of the WhatsApp Business Solution (or related services);

          12.13 Publicity: The Supplier may, at its discretion, make public disclosure about the existence of this commercial relationship with the Client to other prospective clients or investors. Such disclosure may be in the form of placing Client’s logo in its marketing material or website


          12.14 Other legal notes: mentioned in https://help.peakflo.co/legal-notes shall also apply.


          APPENDIX - Pricing and Processing Payment

          Pricing

          Standard tiered pricing : Unless otherwise stated in a signed Peakflo Quote, Peakflo prices it’s software based on the total USD value of annual credit sales done by the client as defined at https://peakflo.co/pricing (this excludes certain usage based charges that may apply as highlighted in the following paragraphs)

          Payment terms: Supplier will bill Client at the start of each annual period. Payment for the same will be due at the start date of each annual period

          Peakflo pricing and functionality summarized in table below:

          Functionality

          Availability

          CXO dashboard

          Yes

          Personalized and systematic workflows with customizable escalation matrix

          Yes

          Automatically trigger reminders/alarms to internal stakeholders on pending actions

          Yes

          Centralized workspace for pending actions with customer & invoice level information

          Yes

          Detailed reports (credit control, legal escalation, customer level tracking, invoice level tracking)

          Yes

          Payer portal with all invoices received by each customer incl. payment and dispute functionality

          Yes

          Role based access for multiple users

          Yes, with no charge for any additional user added upto number of users specified in the Peakflo Quote

          Multi-channel comms (Emails, SMS, Whatsapp, Letter of Demand, Call Log)

          Yes

          Email reminders

          Yes, free up to 700,000 emails / month

          US$55 for every additional 100,000 emails

          SMS reminders

          Yes

          *Refer to pricing table below 

          Whatsapp reminders

          Yes

          *Refer to pricing table below

          Physical Letter of Demand

          Yes, US$1.99 per Letter of Demand

          Integration and setup

          A one time integration fee may apply

           

          In accordance with clause 12.12, the following are only indicative prices from the supplier’s service provider that will be passed through to the client without any markups.

           

          *Charges for SMS and Whatsapp for Business

          Country

          Cost per whatsapp (US$)

          Cost per SMS (US$)

          Singapore

          $0.0795

          $0.040

          Malaysia

          $0.0782

          $0.049

          Indonesia

          $0.0366

          $0.021

          Vietnam

          $0.0795

          $0.1045

          Thailand

          $0.0795

          $0.029

          Philippines

          $0.0795

          $0.1699

          India

          $0.0116

          $0.0399



          Processing Payments

          As highlighted in clause 2.4(a) of this agreement, Peakflo shall also provide collection and the disbursement of electronic transactions services. Payment processing charges for B2B transactions (i.e. payments made by customers of Client to the Client via Peakflo) are as follows:

          Country

          Payment Category & Method

          Transaction Currency

          Rate %

          + Fixed Fee (USD)

          Settlement Time (days)

          Singapore

          Bank Transfer

          - FAST

          - PayNow

          SGD

          TBC

          TBC

          T+0 (before cut-off time)

          Philippines

          Bank Redirect

          - Leading banks

          PHP

          TBC

          TBC

          T+2 (using pesonet clearing hours)

          Indonesia

          Bank Transfer

          - All leading banks

          IDR

          TBC

          TBC

          T+0 (Mandiri, BRI, BNI, Permata, BSS)

          T+2 (BCA and others)

          India

          TBC

          TBC

          TBC

          TBC

          TBC

          Malaysia

          TBC

          TBC

          TBC

          TBC

          TBC

          Thailand

          TBC

          TBC

          TBC

          TBC

          TBC

          Vietnam

          TBC

          TBC

          TBC

          TBC

          TBC

           

          Terms of Payment and Method:

          1. Method of payment is dependent on the Service which will be agreed upon by both Parties and is subject to change:
            1. Direct Deduction: The applicable service fees in the amount set out above shall be automatically deducted from the balance of the Client by Peakflo upon each executed Collection or Disbursement;
            2. Monthly Billing: At the beginning of each month, Peakflo shall deliver in writing an invoice setting forth the total service fees due and payable by the Client for the Services provided by Peakflo for the preceding month. Save for any manifest errors or mistakes, such invoice shall be deemed final and conclusive. The Client shall make full settlement of such invoice within thirty (30) calendar days of the date of such invoice, together with the applicable taxes, if any
            3. Monthly Direct Deduction: At the beginning of each month, the First Party shall automatically deduct the total service fees due and payable by the Second Party for the Services provided by the First Party for the preceding month from the balance of the Second Party. 
          2. The pricing outlined excludes tax, except for ShopeePay and QRIS.

           

          Warranties and Disclosure

          1. For the avoidance of doubt, the both Parties agree that Peakflo shall not have any legal ownership of the Client’s funds processed beyond the payment processing fees accrued to Peakflo as defined in this agreement.

          2. This Agreement constitutes a legal, valid and binding obligation. The Client’s use of the payment collection service is solely for the purpose of legitimate transactions and business activities in compliance with all applicable laws, rules and regulations and does and will comply with all applicable laws, rules and regulations. Peakflo will, if necessary, facilitate KYB / KYC for the client.
          3. For all payments to be processed, Peakflo works with licensed Payment Gateway companies:
            1. For Singapore & Philippine clients: Rapyd Holdings Pte Ltd. (Rapyd)
            2. For Indonesian clients: PT SINAR DIGITAL TERDEPAN (Xendit)

          Both of which are licensed payments companies engaged in financial technology services, inter alia the collection and the disbursement of electronic transactions proceeds on behalf of Peakflo for its clients.

           

          For Indonesian clients, Peakflo provides multiple channels as elaborated here:

          No

          Service/ Layanan

           

          Price per transaction (IDR) / Harga per transaksi (USD or IDR)

          Channel

          Price

          Remarks

           

          Receiving Money / Menerima Uang

          1

          Virtual Account / Rekening Virtual

          Mandiri, BNI, BRI, Permata, BCA

          BCA requires KYB to activate

          TBC

          Will be enabled by default for all clients. Will be free of cost for the first 3 months.

          Settlement time is T+0 for Mandiri, BRI, BNI, Permata, BSS

          Settlement time is T+2 for BCA and others

          2^ 

          Credit Card /Kartu Kredit (Require approval for foreign entity)

          VISA, Master

          TBC

          Aggregator

          3^

          Retail Outlet / Gerai Ritel

          Alfamart

          TBC

          Apply for Group channel

          Indomaret

          {...}* + IDR 2500

          4^

          eWallet

          Dana, LinkAja

          TBC

           

          Sakuku

          TBC

          Switcher

          Shopeepay

          TBC

          Inclusive of VAT

          OVO

          TBC** 

          Local

          TBC***

          Foreign

          5^

          QR Code

          QRIS

          TBC

          Inclusive of VAT

          6^

          PayLater

          Kredivo

          TBC****

          Aggregator

          7^

          Direct Debit

          BRI

          TBC

           

          BCA OneKlik (Requires local entity & BCA account)

          {...}* + IDR 2500

          Payment Service Provider*******

          BCA KlikPay (Requires local entity & BCA account)

          {...}* + IDR 2500

          Payment Service Provider*******

           

          Remarks

          ^Payment channels 2 to 7 can be enabled for client upon request

          * Fee decided by payment channel provider

          ** 3% MDR for Indonesian Digital Content Merchants

          *** 3.5% MDR for Foreign Digital Content Merchants

          **** Client may have to submit some documentation for KYB to Kredivo

          ***** Active means any money movement (including in-house transactions)

          ****** Capped at Rp 10,000 per transaction. In-house Transactions refer to any internal balance movement that does not involve real money movement

          ******* Client may have to sign a separate agreement with BCA