Terms of service
Effective Date: 13th June 2023
Published on: 13th June 2023
These Customer Terms of Service (“Terms”) describe the terms under which Qapita Fintech Pte. Ltd. or any of its Affiliates (“Qapita” “Us”, “We”, “Our”) provides a subscriber access to and use of Our Services (“You”, “Your”, “Yourself”). By accessing and/or using Our Service,
- You warrant to Us that You are aged 18 years or above and are competent to enter into this agreement.
- That, in the event You are entering into these Terms on behalf of any entity/company or its group, You possess the requisite authority to bind such entities, company, or its groups to these Terms.
You and Qapita shall be hereinafter collectively be referred to as “Parties” and individually as “Party”.
- Account means any accounts or instances created by You or on Your behalf for access and use of the Services.
- Affiliate means, with respect to any specified person, any other person that directly or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with such specified person.
- API means the application programming interfaces developed, enabled by or licensed to Qapita that permits certain functionalities provided by the Services.
- Customer Data means all electronic data, text, messages, personal data or other materials, including without limitation Personal Data of Users and end-users, submitted to the Services by You through Your Account in connection with Your use of the Services.
- 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.
- Control means (i) the direct or indirect ownership of more than fifty percent (50%) of the total issued voting share capital or any equivalent voting interest of a company or corporation, (ii) the capacity to unilaterally appoint a majority of the board directors of such company or corporation, or (iii) the capacity to unilaterally direct the business affairs and/or operations of such company or corporation, and the terms “Controls” and “Controlled” shall have the same meaning.
- Documentation means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services provided or made available by Qapita to You or Your Users through the Services or otherwise.
- Order Form means any service order form specifying the Services, Valuation Services and/or Professional Services provided, particular details, features and functionalities in the Services, Valuation Services and/or Professional Services that You wish to avail.
- Personal Data means any information relating to an identified or identifiable natural person that is submitted by You to the Services as part of Customer Data.
- Process means any operation or set of operations which is performed on Personal Data or on sets of Personal 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.
- Professional Services means the professional services that You may engage Qapita for as specified in the relevant Order Form, under the terms of Schedule I.
- Services means the cloud-based proprietary platform of Qapita enabling investment, liquidity solutions, cap table and ESOP management or any new services that Qapita may introduce as a Service to which You may subscribe to, and any updates, modifications or improvements thereto, including individually and collectively, Software, the API and any Documentation
- Software means software provided by Qapita (either by download or access through the internet) that allows You to use any functionality in connection with the Services.
- Subscription Charges means all charges associated with Your Account and use of the Services.
- Subscription Term the period during You have agreed to subscribe to the Services as specified in the relevant Order Form.
- Third-Party Services shall mean third-party application(s) or service(s) integrating with the Services through APIs or otherwise enabled through the Services
- User means a designated user within the Services, including an Account administrator, employee, shareholder, auditor, lawyer, founder and other designated users.
- Valuation Services means the Employee Stock Option Plan valuation services that You may engage Qapita for as specified in the relevant Order Form, under the terms of Schedule II.
2. YOUR RIGHTS
2.1. Subject to Your compliance with these Terms and solely during the Subscription Term, You have the limited, non-exclusive, revocable right to access and use the Services for Your internal business purposes in accordance with the subscription plan set forth in an Order Form.
3. YOUR OBLIGATIONS
3.1. Your 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: You agree 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 these Terms; (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 Process any Personal Data in violation of applicable laws and regulations, including but not limited to violation any person’s privacy rights, or use the Services in violation of any law or regulation, including, without limitation, any applicable export control laws, or any other purpose not reasonably intended by Qapita; (d) use the Services to store or process any content that infringes upon any person’s intellectual property rights or is unlawful, racist, hateful, abusive, libellous, obscene, or discriminatory; or (e) “crawl,” “scrape,” or “spider” any page, data, or portion of or relating to the Services (through use of manual or automated means);
3.3. You represent and warrant to Qapita that You own or have the necessary rights to provide the Customer Data to Qapita and that doing so does not violate any applicable law, proprietary or privacy rights. Qapita shall have no liability for any claims with respect to the Services arising in connection with the inaccuracy or insufficiency of Customer Data.
- 4.1. Any enhancements, new features or updates (“Updates”) to the Services are also subject to these Terms and Qapita 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 Qapita shall use commercially reasonable endeavours to notify You in advance.
- 4.3. Notwithstanding anything to the contrary contained elsewhere, Qapita shall not be liable for unavailability of the Services caused by circumstances beyond Qapita’s reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Qapita’s reasonable control (including, without limitation, inability to access the internet), or acts undertaken by third-parties, including without limitation, distributed denial of service attacks.
- 4.4. You may also avail of the Professional Services from Qapita subject to the terms set out in Schedule I and Valuation Services from Qapita subject to the terms set out in Schedule II.
5. INTELLECTUAL PROPERTY RIGHTS
- 5.1. Except for the rights granted You under clause 2, 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 Qapita.
- 5.2. Qapita 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 You.
- 5.3. You own the rights to the Customer Data that You provide to Qapita. Qapita does not claim ownership over such Customer Data, however, by posting or transferring Customer Data to Qapita, You grant a royalty-free, non-exclusive license and permission to use the Customer Data generated by You solely to provide, maintain and improve the Services.
- 5.4. Qapita reserves its rights to re-use any and all techniques and know-how gathered by Qapita while providing the Services under the Modules to You.
- 5.6. All rights not expressly provided to You are herein are reserved.
6. THIRD-PARTY SERVICES
You acknowledge and agrees that Your use of Third-Party Services will be subject to the terms and conditions and privacy policies of such third-party and that Qapita shall not be liable for Your enablement, access or use of such Third-Party Services, including for processing of Customer Data by such third-party. You should contact that Third-Party Service provider for any issues arising in connection with use of such Third-Party Service.
7. CHARGES AND PAYMENT
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 7.2, when You subscribe to the Services. The Subscription Charges are specified in the Order Form, provided that upon each renewal of the Subscription Term, the Subscription Charges shall increase as follows:
(i) In the event Your subscription plan remains the same, the Subscription Charges for the renewed Subscription Term will increase by the greater of (a) the Year-on-Year percentage increase (if any) in the latest Consumer Price Index published by the Singapore Department of Statistics, as on January 1st of the year in which the Subscription Term is renewed or (b) five percent (5%) of the Subscription Charges applicable in the immediately prior Subscription Term, and rounded to the nearest dollar; or
(ii) In the event You exceed the usage restrictions of Your subscription plan during a Subscription Term, Your Subscription Charges for the renewed Subscription Term will be auto-upgraded to correspond with the appropriate subscription plan (“Upgraded Subscription Charges”). For such renewed Subscription Term, the Upgraded Subscription Charges shall further increase by the greater of (a) the percentage increase (if any) in the Consumer Price Index published by the Monetary Authority of Singapore and Ministry of Trade and Industry, Singapore, as on January 1st of the year in which the Subscription Term is renewed or (b) five percent (5%) of the Upgraded Subscription Charges, and rounded to the nearest dollar.
- 7.2. Payment: You hereby authorize Qapita or Qapita’s authorized agents, as applicable, to bill You upon Your subscription to the Services (and any renewal thereof). Unless otherwise stated in an Order Form, Your payment is due within thirty (30) days of Qapita’s invoice date.
- 7.3. Refunds: Unless otherwise specified in these Terms, all Subscription Charges are non-refundable. No refunds shall be issued for partial use or non-use of the Services by You.
- 7.4. Late Payments/Non-payment of Subscription Charges: Qapita will notify You if Qapita does not receive payment towards the Subscription Charges within the due date for Your Account. Qapita must receive payments within a maximum of ten (10) days from the date of Qapita’s notice. If Qapita does not receive payment within the foregoing time period, in addition to its right to other remedies available under law, Qapita may (i) charge an interest for late payment @ 1.5% per month and/or; (ii) suspend Your access to and use of the Services until Qapita receives Your payment towards the Subscription Charges as specified herein and/or; (iii) terminate Your 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. TERM, TERMINATION, SUSPENSION
- 8.1. The Subscription Term shall be as set forth in the relevant Order Form.
- 8.2. Termination by You: You may terminate Your Account and subscription to the Services at any time with fifteen (15) days prior written notice, but will remain liable for all Subscription Charges for the Subscription Term
- 8.3. Termination and Suspension by Qapita: In addition to suspension for late payment or non-payment of Subscription Charges, Qapita may suspend Your access to and use of the Your Account or the Services if You are in violation of the terms of these Terms. Qapita will notify You of activities that violate these Terms and provide You with a period of thirty (30) days to cure or cease such activities ("Cure Period"). If You do not cure or cease such activities within the said Cure Period or if Qapita believes that You are in breach of these Terms cannot be cured, Your Account shall be terminated immediately."
- 8.4. Termination for Insolvency: Notwithstanding anything contained herein, either Party may terminate these Terms 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 Your Account: Following the termination of Your Account either by You or Qapita, You may export Customer Data from within the Services within 6 (six) months of effective termination of Your Account (“Data Retention Period”), beyond which period Qapita may delete all Customer Data. You may reactivate your terminated Account within such Data Retention Period, unless the termination is by Qapita.
- 9.1 If You choose or are provided with a user identification code, login, password or any other information as part of Qapita’s security procedures, You must treat such information as confidential and shall not disclose such information to any third-party other than a User. Qapita has the right to disable any user identification code or password, whether chosen by You or allocated by Qapita, at any time, if in Qapita’s reasonable opinion, You have failed to comply with any of the provisions of these Terms. Qapita will not be responsible for any activities, including any attempted or actual access or loss of data occurring under Your Account as a result of Your 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 these Terms, each of the Parties may use the other’s Confidential Information solely to exercise its respective rights and perform its respective obligations under these Terms 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-section shall supersede any non-disclosure agreement by and between the Parties entered prior to these Terms 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. DATA PROTECTION AND PRIVACY
- 10.2. Qapita may Process Your Personal Data to provide, maintain and improve the Services, or prevent or address any technical problems, or at Your request in connection with support requests.
- 10.3. You acknowledge and agree that Qapita may access or disclose information about Your Account and Your Users in order to comply with the law or respond to lawful requests or legal process, or prevent any infringement of Qapita’s customers’ or Qapita’s proprietary rights. Further, at Qapita’s sole discretion, any suspected fraudulent, abusive, or illegal activity by You may be referred to law enforcement authorities.
- 10.4. Qapita shall use appropriate technical and organizational measures to protect the Your Personal Data. The measures used are designed to provide a level of security appropriate to the risk of Processing the data. Qapita shall ensure that any person authorized by Qapita to Process Your Personal Data shall protect it in accordance with Qapita’s confidentiality obligations under these Terms.
- 10.5. Qapita shall, without undue delay, notify You of any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Your Personal Data processed by Qapita.
- 10.6. Qapita may perform analytics on Customer Data to improve, enhance, support and operate the Services and compile statistical reports and record insights into usage patterns. You acknowledge that Qapita uses Customer Data for the aforementioned purpose in compliance with applicable laws
- 10.7. Qapita shall reasonably assist You, at Your expense, in meeting the Your obligations under applicable data protection laws.
11. DISCLAIMER OF WARRANTIES
- 11.1. 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.
- 11.2. YOU ACKNOWLEDGE THAT QAPITA DOES NOT WARRANT THAT THE ACCESS TO THE SERVICE, WHICH IS PROVIDED OVER INTERNET AND VARIOUS TELECOMMUNICATIONS NETWORKS, ALL OF WHICH ARE BEYOND EACH PARTY'S CONTROL, WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE.
12. LIMITATION OF LIABILITIES
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 YOU 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, QAPITA’S 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 YOU, FOR THE SERVICES PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
- 13.1. Indemnification by Qapita: Subject to Your compliance with these Terms, Qapita will indemnify and hold You harmless, from and against any claim brought against You by a third-party alleging that the Services You subscribed to infringes or misappropriates such third-party’s valid patent, copyright, or trademark (an “IP Claim”). Qapita shall, at its expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys, provided that (a) You promptly notify Qapita of the threat or notice of such IP Claim; (b) Qapita 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) You fully cooperate with Qapita in connection therewith. Qapita 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 You; (ii) modification of the Services by anyone other than Qapita; 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 You has become, or in Qapita’s opinion is likely to become, the subject of any IP Claim, Qapita may at its own option and expense (a) procure for You 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 Qapita, terminate Your subscription to the Services and repay You, on a pro-rated basis, any Subscription Charges You have previously paid Qapita for the corresponding unused portion. This clause states Qapita’s sole, exclusive and entire liability to You and constitutes Your sole remedy with respect to an IP Claim brought by reason of access to or use of the Services by You.
- 13.2. Indemnification by You: You will indemnify and hold Qapita harmless against any claim brought by a third-party against Qapita, and its respective employees, officers, directors and agents arising from Your acts or omissions in connection with clause 3 of these Terms provided that (a) Qapita promptly notifies You of the threat or notice of such a claim, (b) You have or will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such claim; and (c) Qapita fully cooperates with You in connection therewith. You will have no obligation or liability with respect to any such claim arising out of the gross negligence or wilful misconduct of Qapita.
- 14.1. Assignment: Except to its affiliates/within its group companies, neither Party may, directly or indirectly, assign all or any part of these Terms or its respective rights under these Terms or delegate performance of its respective duties under these Terms without the prior consent, which consent shall not be unreasonably withheld, of the other party. In the event of assignment to an affiliate, the Party assigning its performance shall promptly intimate the other party of such assignment and shall not default in any of its payment obligations under these Terms. Subject to the foregoing restrictions, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
- 14.2. Entire Agreement: These Terms together with any supplementary terms, constitute the entire agreement, and supersede any and all prior agreements between You and Qapita with regard to the subject matter hereof. These Terms shall prevail over the terms or conditions in any purchase order or other order documentation You or any entity that You represent 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 these Terms and an Order Form, these Terms shall prevail. In case of a conflict between two Order Forms, the Order Form later in date shall prevail.
- 14.3. Amendment: We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify You of any material revisions not less than ten (10) days prior to the effective date of any amendments to these Terms and Your continued use of the Services following the effective date of any such amendment may be relied upon by Us as Your acceptance of any such amendment. You can review the most current version of the Terms at any time by visiting this page.
- 14.4. Severability; No Waiver: If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by applicable law, and the remaining provisions of these Terms shall remain in effect. Qapita’s non-exercise of any right under or provision of these Terms does not constitute a waiver of that right or provision of these Terms.
- 14.5. Relationship of the Parties: The Parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the Parties.
- 14.6. 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 Qapita’s agreement with respect to use of the Services by You. Termination shall not limit either Party’s liability for obligations accrued as of or prior to such termination or for any breach of these Terms.
- 14.7. Notices and Consent to Electronic Communications: All notices to be provided by Qapita to You under these Terms may be delivered in writing (i) by nationally recognized overnight delivery service (“Courier”) or to the contact mailing address provided by You on any Order Form while subscribing to the Services; or (ii) electronic mail to the e-mail address provided for Your Account. Qapita’s address for a notice to Qapita in writing by Courier is Qapita Fintech Pte. Ltd. with its offices at 30 Cecil Street #19-08, Prudential Tower, Singapore 049712 with a CC to firstname.lastname@example.org 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.
- 14.8. Publicity Rights: You hereby grant Qapita the right to identify Yourself as Qapita’s customer on Qapita’s websites and/or marketing collateral and to include Your use of the Services in case studies.
- 14.9. Governing Law and Dispute Resolution: These Terms shall be governed by the laws of Singapore without regard to conflict of law principles. Any disputes or differences arising under, relating to or connected with these Terms shall be resolved by mediation first, failing which they shall be resolved by final and binding arbitration in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force.
SCHEDULE - I
Customer’s engagement of Qapita for any Professional Services purchased in an Order Form shall be subject to the terms and conditions set forth in this Schedule I.
- In connection with the Professional Services, Qapita shall provide the deliverables and output as set out in the relevant Order Form (“Deliverables”). You acknowledge and agree that Qapita shall require access to the Customer Data in order to provide the Deliverables.
- The fees for the Professional Services rendered shall be specified in the Order Form (“Fees”). Unless otherwise stated, payment of the Fees is due within thirty (30) days of Qapita's invoice date. Unless otherwise stated, the Fees 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”).
- You agree to provide, in a timely manner, information, materials and actions necessary to the project including as applicable data, management decisions, approvals, and other information and material (“Inputs”). Qapita’s failure to perform its contractual responsibilities or to perform the Professional Services shall be excused to the extent caused by Your delay or failure to provide the Inputs required.
- These additional terms applicable to Professional Services will survive termination of the Terms until the completion of Deliverables.
- You shall reimburse Qapita for any out-of-pocket expenses incurred in connection with Deliverables.
- You acknowledge that Qapita may use for any purpose, any information retained by Qapita while performing the Professional Services such as ideas, concepts, know-how, experience and techniques which do not contain Your Confidential Information. Qapita shall own and retain all right, title and interest in and to all of the intellectual property, including any inventions, discoveries, developments, and innovations, owned or controlled by it prior to the Effective Date of the Order Form or developed independent of its obligations herein.
- 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 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 CONTRACT, NEGLIGENCE OR OTHER THEORY OF LIABILITY, EXCEPT YOUR PAYMENT OBLIGATIONS, EVEN IF EITHER PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, QAPITA’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, RELATING TO THE PROFESSIONAL SERVICES, WILL BE LIMITED TO AN AMOUNT EQUAL TO FEES PAID BY YOU, FOR THE PROFESSIONAL SERVICES PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
- This Schedule I shall be governed by the laws of Singapore without regard to conflict of law principles. Any disputes or differences arising under, relating to or connected with these terms shall be resolved by mediation first, failing which they shall be resolved by final and binding arbitration in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”).
- All clauses which, by their nature are intended to survive, including without limitation, disclaimer of warranties, intellectual property and limitation of liability shall survive any termination of Qapita’s agreement with respect to the Professional Services. Termination shall not limit either Party’s liability for obligations accrued as of or prior to such termination or for any breach of this Schedule I
SCHEDULE - II
Customer’s engagement of Qapita for any Valuation Services purchased in an Order Form shall be subject to the terms and conditions set forth in this Schedule II.
- Valuation Services. Qapita shall conduct a fair value valuation of the Employee Stock Option Plan (“ESOP”) for the purpose of financial reporting and audit relating to employee stock compensation (the “Purpose”), and provide a fair value estimate of the ESOPs granted by You for the financial year(s) specified in the Order Form.
- Valuation Report. In connection with the Valuation Services, Qapita shall provide the deliverables and output as set out in the relevant Order Form (“Valuation Report”). You acknowledge and agree that Qapita shall require access to the Customer Data in order to provide the Valuation Report. Subject to receipt of information and unless stated otherwise in an Order Form, We will be able to prepare and deliver the draft report for You within ten (10) working days from the date of receipt of information.
- Valuation Fees. The fees for the Valuation Services rendered shall be specified in the Order Form (“Valuation Fees”). Unless otherwise stated in the Order Form, the Valuation Fees are payable prior to commencement of Valuation Services. Unless otherwise stated in the Order Form, payment of the Valuation Fees is due within thirty (30) days of Qapita's invoice date and 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”).
- Governing Law and Dispute Resolution. This Schedule II shall be governed by the laws of Singapore without regard to conflict of law principles. Any disputes or differences arising under, relating to or connected with these terms shall be resolved by mediation first, failing which they shall be resolved by final and binding arbitration in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”).
- Challenge from Court. In all matters that may be potentially challenged before a court, We do not take any responsibility for the degree of reasonableness of contrary positions that such other party may choose to take, nor for the costs or fees that may be incurred in the defense of our recommendations against such challenge(s). Qapita will retain supporting work papers for Your matter(s), and will be available to assist in active defence of Our professional positions taken, at our prevailing rates and in addition direct actual expenses and according to Our prevailing standard professional agreements at that time. Qapita and/or its personnel shall not be required to give testimony or attendance in court or to any government agency by reason of this report, and the valuer accepts no responsibility whatsoever to any other person.
- Reliance. Unless stated otherwise in this Schedule II or in Our reliance letter, if any, the valuation report is strictly only for Your use and for the explicitly stated Purpose. No reliance may be made by any third party without Our prior written consent. Parties should not solely rely on this valuation report and this does not serve as a substitute for their due diligence.
- Reliance Period. Qapita does not assume any responsibility or accept any liability in connection with this Valuation Report after the Reliance period of three months from the date of the report. Should the Client become aware of any external or internal factors and such factors have not been disclosed to Qapita prior to the completion of the Valuation Report, then Qapita is not liable and does not accept any responsibility for effects of such undisclosed information on the valuation.
- Retention and Copies of Information. Qapita will be the sole owner of any documents, working papers, financial models and other files, including the Valuation Report, developed during Our engagement. Qapita will need to retain the Valuation Report, data or copies of files for a period of ten years from the date of the Valuation Report.
- No Publication or Publicity. Except for sharing with Your advisers and auditors in relation to the Purpose, Qapita’s Valuation Report may not be published in any document, statement, website, social media, circular or otherwise without the express written approval of Qapita. This includes, but is not limited to, the form and context of such intended publication.
- Integrity of the Whole Report. This Valuation Report, including all supporting information, must be used, and understood it its entirety. This Valuation Report may not be used in conjunction with any other news, reports, valuations, or studies.
- Non-Disclosure. The contents of this Valuation Report are confidential to You and prepared specifically for the Purpose for which they have been prepared for. You may share this Valuation Report with Your advisers in relation to the Purpose, provided however Qapita will share no responsibility for any third party who may use or rely on a part or whole of this Valuation Report.
- Local Legislations. Qapita has not made any effort to determine the possible effects of any current or future rules, regulations, statutes of local, provincial or national authorities including and not limited to sectoral regulations or environmental matters.
- Specialized Expertise. Qapita does not express or intend to express views or opinions on matters that require specialized expertise or knowledge including taxation or legal matters beyond what may be customarily expected from valuers.
- Forecasts. Any financial or operational forecasts that may have been (if) included or used in this Valuation Report is based on information provided to Qapita. Qapita makes no warranty or representation on the correctness or the accuracy of such forecasts.
- Limited Scope. Qapita does not claim to have carried out all possible investigations or analyses in relation to Your business. Qapita also assumes without verification the accuracy of all data provided to Us by You. Qapita is not responsible and is liable for any loss that may be caused directly or indirectly by a decision to not conduct further due diligence or investigation.
- Valuation Methodology. Qapita uses generally accepted valuation methods. Our final valuation is an estimate and not a guarantee, and it is fully dependent upon the accuracy of the assumptions on business performance indicators, financial metrics, forecasts, and market conditions.
- Extraneous Information. Our valuation considers information derived from or sourced from other publicly available sources or private databases. Qapita has not independently verified that information, nor adopted it as Our own, or accepted its reliability. We have not independently verified market conditions and market information. You accept the risk that if any of the unverified information provided by others and referred to in the valuation is incorrect, then this may influence the valuation.
- Subsequent Events and Conditions. Our Valuation Report reflects prevailing conditions and facts as on the valuation date. We do not consider subsequent events and do not accept any obligation to update the report for subsequent events.
- Periodic Review. The Valuation Report should be reviewed from time to time. Qapita does not give any warranty on the validity of this valuation report in the future.
- Other Factors. If You become aware of matters that may affect the valuation, then Qapita must be informed of such matters and reliance must not be placed on the Valuation Report under such circumstance.
- Independent Verification. Before undertaking any decision or financial transaction based on the Valuation Report, You should perform their own independent verification and due diligence as well as potential insurance to cover any potential risks or losses that may occur. Whilst We perform our analysis considering several factors, there are market conditions and risks which are changing all the time. By nature, for early-stage companies in disruptive sectors, the market conditions change rapidly and have substantial impact on the business.
- Sub-contracting. You acknowledge and agree that Qapita may engage sub-contractors (including, but not limited to, an affiliate of Qapita) to perform its obligations under this Schedule II, provided that the use of a sub-contractor shall not release Qapita from any duty or liability to fulfil its obligations under this Schedule II, and provided further, that Qapita shall be responsible for all acts of such sub-contractor as if such acts were its own.
- Other Terms and Disclaimer. This clause shall survive even after the termination of this engagement between You and Qapita for any reason. Qapita reserves the right to include You in Our client list, but we will maintain the confidentiality of all information shared with Us, and the contents of Our reports, subject to legal or administrative process or proceedings. Our Valuation Report will be solely used by You or the recipient party for the express Purpose stated in this Schedule II and Our conclusions are valid only for the valuation date (period) mentioned in the Valuation Report.
QAPITA AND OR ITS PERSONNEL WILL NOT BE RESPONSIBLE FOR ANY DECISIONS TO PURCHASE, SELL OR TRANSFER ANY INTEREST IN YOU AND THAT SHALL BE THE SOLE RESPONSIBILITY OF THE PURCHASER. THIS INCLUDES (AND IS NOT LIMITED TO) THE PRICE, TERMS, CONDITIONS, AND PREFERENCES OF THE INSTRUMENTS OF PURCHASE. THE SELECTION OF THE PRICE TO BE ACCEPTED REQUIRES CONSIDERATION OF FACTORS BEYOND THE INFORMATION WE WILL PROVIDE OR HAVE PROVIDED.
- Limitation of Liability. ANY LIABILITY FOR LOSS OR DAMAGES FOR QAPITA RELATED TO THE VALUATION SERVICES WILL BE LIMITED TO WHAT WE MAY BE EXPECTED TO OR OUGHT TO REASONABLY PAY HAVING REGARD TO OUR RESPONSIBILITY FOR THE SAME ON THE BASIS THAT ALL OTHER CONSULTANTS AND SPECIALISTS, WHERE APPOINTED, SHALL BE DEEMED TO HAVE PROVIDED TO YOU. IN ALL CASES, OUR LIABILITY FOR ANY LOSS OR DAMAGE ARISING OUT OF THE ACTION OR PROCEEDINGS AFORESAID SHALL, NOTWITHSTANDING THE PRECEDING PROVISIONS, IN ANY EVENT BE LIMITED TO A SUM EQUAL (I) THE PRORATED AMOUNT PAID BY YOU RELATING TO THE VALUATION SERVICES, WHERE AS PART OF YOUR SUBSCRIPTION TO THE SERVICES, YOU RECEIVE CERTAIN VALUATION SERVICES AND A SEPARATE VALUATION FEE IS NOT CHARGED; (II) THE VALUATION FEES, WHERE A SEPARTE VALUATION FEE IS CHARGED FOR THE VALUATION SERVICES.
QAPITA, SHALL, IN NO EVENT SHALL BE LIABLE FOR CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE LOSS, DAMAGE OR EXPENSE (INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, OPPORTUNITY COST, ETC.) DESPITE ITS EXISTENCE. FOR THE AVOIDANCE OF DOUBT OUR LIABILITY SHALL NEVER EXCEED THE AMOUNT CALCULATED IN ACCORDANCE WITH THE PRECEDING PARAGRAPH.
- Indemnification. You shall indemnify and hold Us and Our personnel harmless from any claims, liabilities, costs and expenses (including, without limitation, attorney’s fees and the time of our personnel involved) brought against, paid or incurred by Us at a time and in any way arising out of erroneous information furnished to Us by You in connection with the Valuation Services except to the extent that any such losses, expenses, damages or liabilities are ultimately determined to be the result of gross negligence, misconduct, wilful default or fraud of Our engagement team in conducting its work.
- Survival. All clauses which, by their nature are intended to survive, including without limitation, disclaimer of warranties, intellectual property, indemnification and limitation of liability shall survive any termination of Qapita’s agreement with respect to the Valuation Services. Termination shall not limit either Party’s liability for obligations accrued as of or prior to such termination or for any breach of this Schedule II.