1. Acceptance of Terms and Conditions
1.1 These Terms and Conditions govern the provision of the Product (as defined below) by MCSY (as defined below). By placing an order, you acknowledge that you have read, understand and agree to abide by these Terms and Conditions.
2.1 In these Terms and Conditions, the following capitalised words shall have the following meaning:
"Account" means an account registered with MCSY;
"Charges" means the fees and charges for the provision of the Product, as imposed by MCSY from time to time;
"Client" means the holder of an Account;
"Credits" means credits deposited to an Account following an advance payment in accordance with Clause 5 below;
"Intellectual Property Rights" means (a) patents, patent application and patent rights; (b) rights associated with authorship including copyright and copyright restrictions; (c) rights relating to the protection of trade secrets and confidential information; (d) rights analogous to those set forth herein and any other property rights relating to intangible property and (e) divisions, continuation, renewal, reissue and extension of the foregoing (as applicable) now existing or hereafter filed, issued or acquired anywhere in the world;
"Materials" means the materials supplied by the Client to MCSY for purposes of producing the Product, including images, artwork, designs and/or uniform resource identifiers;
"MCSY" means M.C.S.Y. Pte. Ltd.;
"Parties" means MCSY and a Client, and "Party" means either of them;
"Product" means the quick reference code to be provided by MCSY to the Client, incorporating the Materials, subject to the Terms and Conditions;
"Sample" means a sample of the Product to be provided by MCSY to a Client for approval prior to the delivery of the final Product; and
"Website" means MCSY's website at www.mcsy.com.sg.
3. Orders and Supply of Materials
3.1 An order shall be initiated by a Client submitting an order form and supplying the Materials to MCSY, in the prescribed form.
3.2 Each Client represents and warrants to MCSY that:
(a) it owns all necessary rights and/or entitlements to use the Materials for incorporation into the Product;
(b) the Materials do not and will not:
(i) infringe upon or violate the rights, including intellectual property rights, of any third party;
(ii) contain any content that is defamatory, obscene, sexually suggestive or explicit or otherwise offensive or objectionable;
(iii) contain any software virus or computer code, barcodes, files or programs designed to interrupt, destroy or limit the functionality of MCSY's computer network or the Website; or
(iv) violate any laws, rules, regulations, directives and/or policies of any applicable jurisdiction; and
(c) it will promptly inform MCSY in the event it becomes aware that the Materials or any part thereof may be in violation of any of the above terms.
4. Delivery and Approval of Sample
4.1 Following receipt of the Materials, MCSY shall use all reasonable endeavours to produce a Sample as soon as practicable.
4.2 Upon completion of the production of the Sample, MCSY shall deliver to the Client, or otherwise allow the Client to access, a copy of the Sample strictly for the purpose of reviewing and testing the same to satisfy itself as to the suitability and functionality of such Sample.
4.3 Upon receipt of the Sample, the Client shall confirm its acceptance thereof by paying or agreeing to a deduction of the applicable Charges, in accordance with Clause 5 below, and is so doing, shall be deemed to be satisfied with the suitability and functionality of the Sample.
4.4 In the event a Client uses a Sample otherwise than for the purposes set out in Clause 4.2, the Client shall be forthwith deemed to have accepted the Sample and shall be liable to effect payment, in accordance with Clause 5.5 below.
5. Payment of Charges and Delivery of Product
5.1 Charges for the Product are set out on the Website, which MCSY reserves the right to revise from time to time. All Charges are inclusive of taxes, levies or duties imposed by the applicable authorities.
5.2 Payment of the Charges shall be effected in such manner as prescribed on the Website from time to time.
5.3 Payment may be made either on a per-order basis or in advance, for multiple orders. In the event of an advance payment by a Client, corresponding Credits will be allocated to the Account of the Client and, upon acceptance of a Sample by the Client, the relevant payment will be effected by way of a corresponding reduction to the number of available Credits. All Credits shall have a validity period as specified on the Website, which MCSY reserves the right to revise from time to time. Unutilised Credits shall not be refundable for cash.
5.4 Following payment of the Charges, MCSY shall forthwith deliver to the Client, or otherwise allow the Client to access, a copy of the Product in its final form, for use by the Client in accordance with these Terms and Conditions.
5.5 In the event of any deemed acceptance of a Sample by a Client pursuant to Clause 4.4 above, such Client shall be liable to pay the applicable Charges for the Product to MCSY within 3 days of such deemed acceptance, failing which interest shall accrue and be payable on the outstanding amount, at the rate of 2% per month, from the due date of payment until the date that full payment is received by MCSY. In the event MCSY is required to commence legal proceedings to recover any amounts owed, it shall further be entitled to recover its legal costs and expenses for such proceedings, on a full indemnity basis.
6. Title and Intellectual Property Rights
6.1 Title to the Product shall only pass to the Client upon receipt of full payment of the Charges by MCSY. For this purpose, 'receipt' shall mean receipt of cleared funds in MCSY's bank account.
6.2 Pending the passing of title as aforesaid to the Client, the Client warrants, undertakes and agrees with MCSY as follows:
(a) all Intellectual Property Rights evidenced, embodied, attached, connected or related to the Product shall be owned exclusively by MCSY;
(b) the Client shall not modify, disassemble, decompile, reverse engineer, revise or enhance all or any part of any Sample or Product or create any derivative works or otherwise merge or utilise all or any part of a Sample or Product with or into any other computer program or materials or attempt to discover all or any part of the source code in relation the provision of such Sample or Product; and
(c) any use of a Sample by a Client resulting in a deemed acceptance pursuant to Clause 4.4 above shall be deemed effected under a limited licence, terminable by MCSY at any time upon written notice to such Client.
7. Disclaimers and Indemnity
7.1 MCSY warrants that any Sample or Product produced by it shall be original and shall not infringe the Intellectual Property Rights of any third party, provided always that this warranty shall not extend to the use of any Materials provided by the Client and embedded in the sample or Product.
7.2 Save as aforesaid, MCSY makes no representation or warranty whatsoever regarding any Sample or Product and, in particular, makes no representation or warranty that a Sample or Product will be functional or compatible:
(a) when used otherwise than in the form as provided by MCSY to the Client;
(b) in the event of any alterations effected to the Sample or Product by the Client, including, without limitation, to its image quality, colour, shape, layout, perspective and/or borders;
(c) on all types of medium, in particular on any medium of such form or nature as may inherently or likely lead to a degradation in the image quality of the Sample or Product or otherwise impede the ability of a quick reference code scanner to properly detect and read the coding embedded within the Sample or Product; and/or
(d) with all freely and/or commercially available quick reference code scanners.
7.3 MCSY shall have no liability for or be deemed to in any way endorse or support any representations, recommendations, opinions, advice, goods and/or services offered or provided by a Client in connection with the Product, which shall remain at all times the Client's sole liability and responsibility.
7.4 Without limiting the above, MCSY's sole liability in relation to the provision of any Product, whether arising in contract, tort (including negligence), breach of statutory duty or otherwise howsoever, shall be limited to either replacing the Product or reimbursing the Charges paid for the Product, at MCSY's sole discretion.
7.5 Notwithstanding any other provision of these Terms and conditions, neither Party shall be liable to the other Party whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any indirect or consequential loss, damage or expense, including, without limitation, any economic loss or loss of turnover, profit, business or goodwill.
7.6 The Client agrees and undertakes to indemnify and hold harmless MCSY, and its officers, directors, employees and/or agents, from and against all claims, loss and/or damage (including legal costs on a full indemnity basis) arising from any breach by the Client of its obligations under these Terms and Conditions.
7.7 MCSY agrees and undertakes to indemnify and hold harmless the Client, and its officers, directors, employees and/or agents, from and against all claims, loss and/or damage (including legal costs on a full indemnity basis) arising from any breach by MCSY of its obligations under Clause 7.1 above.
8.1 In the event of any breach of these Terms and Conditions by a Client, MCSY may, in its sole discretion, forthwith terminate any pending order(s) placed by such Client and/or otherwise suspend or terminate any Account(s) held by such Client, without any further liability on MCSY's part to such Client (whether for any balance Credits maintained in such Client's Account or otherwise) but without prejudice to any accrued claims on MCSY's part against such Client.
9.1 Any notice to be given under this Agreement shall be in writing and shall be sent by email to the contact email address of MCSY as set out on its website or to the contact email address of the relevant Client as provided upon registration of its Account.
9.2 Notices sent as aforesaid shall be deemed served at the time of receipt by the recipient's email server.
11.1 Force Majeure
Neither Party shall have any liability under or be deemed to be in breach of these Terms and Conditions for any delays or failures in performance that result from circumstances beyond the reasonable control of such Party. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.
Neither Party shall assign or transfer any of its rights and obligations under these Terms and Conditions without the prior written consent of the other Party.
11.3 Entire Agreement
These Terms and Conditions constitutes the entire agreement and understanding between the Parties relating to the subject matter thereof and supersede all prior discussions, representations and/or agreements between the Parties, if any.
11.4 Remedies and Waiver
No failure on the part of any Party to exercise, and no delay on its part in exercising, any right or remedy under these Terms and Conditions will operate as a waiver thereof, nor will any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. The rights provided in these Terms and Conditions are cumulative and not exclusive of any other rights or remedies provided by law.
If any provision of these Terms and Conditions is prohibited by law or judged by a court to be unlawful, void or unenforceable, such provision shall, to the extent required, be severed from these Terms and Conditions and rendered ineffective as far as possible without modifying the remaining provisions of these Terms and Conditions, and shall not in any way affect any other circumstances of or the validity or enforcement of these Terms and Conditions.
11.6 Contract (Rights of Third Parties) Act
A person other than MCSY or a Client shall have no rights under the Contracts (Rights of Third Parties) Act (Chapter 53B of Singapore) to enforce any provision of these Terms and Conditions, provided this shall not affect any right or remedy of any person which exists or is available apart from such Act.
11.7 Governing Law and Jurisdiction
These Terms and Conditions shall be governed by and construed in accordance with the laws of Singapore, and the Parties agree to irrevocably submit to the non-exclusive jurisdiction of the courts of Singapore in relation to any issues or claims arising out of or in connection therewith.