SPECIFIC TERMS FOR CLIENTS
1. Your Acceptance
1.1. This is an agreement between you and MomoCentral, and is in addition to the General Terms of Service.
1.2. This Agreement shall govern your access to, and use of, the Services as a Client.
1.3. The following documents shall form and be read and construed as being an integral part of this Agreement:
(a) the General Terms of Service; and
1.4. By signing up for an Account as a Client, you are deemed to have accepted this Agreement.
1.5. If you do not agree to this Agreement, you must immediately discontinue any access and use of the Services.
2. Amendments and Additions
2.1. MomoCentral may from time to time in its absolute discretion:
(a) amend and supplement this Agreement; and
(b) prescribe additional terms to this Agreement in respect of certain Account and/or Services.
provided that any such amendments, supplements or additions shall be published on the Site at least ten (10) Business Days prior to their effective date.
2.2. It is your responsibility to check the Site and this Agreement from time to time to determine if there are any amendments, supplements or additions to this Agreement.
2.3. If you do not agree to any amendments, supplements or additions to this Agreement, your sole remedy shall be to terminate this Agreement by giving written notice to MomoCentral before the effective date of any such changes.
2.4. Your continued access and use of the Services after any amendments, supplements and additions shall constitute your acceptance to such amendments, supplements and additions.
3. Definitions and Interpretation
3.1. In this Agreement, unless otherwise required by the context or unless otherwise specified herein, the following terms shall have the following meanings:
“Account” means each account opened by you and maintained with MomoCentral;
“Background Information” means the Technical Information which is created prior to or independently of this Agreement or an Engagement;
“Background Intellectual Property” means the Intellectual Property which is created prior to or independently of this Agreement or an Engagement;
“Business Day” means a day (other than a Saturday or Sunday) on which commercial banks are open for business in Singapore;
“Client Brand Features” means the trademarks, service marks, logos, domain names and other distinctive brand features of the Client, as secured by the Client from time to time;
“Confidential Information” means all information:
(i) which has been designated as confidential by MomoCentral in writing; or
(ii) that ought to be considered as confidential (however it is conveyed or on whatever media it is stored), including, but not limited to, information which relates to the business, affairs, properties, assets, trading practices, services, developments, trade secrets, processes, inventions, intellectual property rights, know-how, personnel, customers and suppliers of MomoCentral and commercially sensitive information which may be regarded as the confidential information of MomoCentral;
“Content” means and includes, but is not limited to, any information, reports, design, text, sound recordings, images, links, graphics, logos, icons, photographs, images, moving images, illustrations, opinions, remarks, comments, artwork, links, questions, suggestions, video, software, data and other materials;
“Engagement Completion” shall have the meaning ascribed to it in clause 11.1;
“Engagement Invoice” shall have the meaning ascribed to it in clause 6.5;
“Engagement Request” shall have the meaning ascribed to it in clause 6.1;
“Engagement” shall have the meaning ascribed to it in clause 6.1;
“Foreground Information” means the Technical Information which results from or is created by the Talent pursuant to an Engagement;
“Foreground Intellectual Property” means the Intellectual Property which results from or is created by the Talent pursuant to an Engagement;
“General Terms of Service” means the general terms of service located at , as may be amended and/or supplemented from time to time;
“Intellectual Property” means intellectual property and shall include patents, knowhow, trade secrets and other proprietary information, registered designs, copyrights, design rights, industrial designs, integrated circuit topography, trade, business and domain names, trademarks, service marks, registrations of and applications to register any of the aforesaid items, rights in the nature of any of the aforesaid items in any country, rights in the nature of unfair competition rights and rights to sue for passing off;
“MomoCentral” means MOKOMOMO INTERACTIVE PTE. LTD. (Company Registration No. 201108747G), a company incorporated in Singapore having its registered office at 426 Clemenceau Avenue North, #01-426, Singapore 229516;
“Person” means and includes any:
(i) individual, corporation, firm, partnership, limited liability partnership, society, association, trade union, institution, business concern, organisation;
(ii) statutory body, agency or governmental authority;
(iii) quasi-governmental, inter-governmental or supranational body; or
(iv) regulatory, fiscal, taxing or other authority or organisation, in each case, whether foreign or local;
“Platform” means MomoCentral’s platform designed to allow Clients to find and work with Talents through MomoCentral;
“Proposed Talents” shall have the meaning ascribed to it in clause 6.3(b);
“Services” means the products and services (including such associated features and functionality) provided by MomoCentral, including, but not limited to:
(i) the Site (and provision thereof);
(ii) the Platform (and provision thereof); and (iii) the Talent Services (and provision thereof);
“Site” means the website operated by MomoCentral located at https://momocentral.com/, and includes all Content provided therein;
“Talent Services” means the design and/or software development services provided by the Talent;
“Talent” means a Person providing Talent Services who accesses or uses the Platform for the purpose of finding and working with a Client through MomoCentral;
“Technical Information” shall include inventions, confidential information, know-how, trade secrets and, in particular, all information concerning equipment and software (including firmware) pertaining to design, manufacture, maintenance, installation, operation and use, in whatever form including without limitation drawings, charts, manuals, notes, schematic representations and software listings in source and object code; and
“You”, “you”, “Your”, “your”, “Client” means a Person in need of Talent Services who accesses or uses the Platform as an independent contractor for the purpose of finding, hiring and working with a Talent through MomoCentral, and such Person’s successors and permitted assigns.
3.2. In this Agreement, unless the contrary intention appears:
(a) words importing the singular shall also include the plural and vice versa where the context requires;
(b) words of any gender include all genders;
(c) clause headings and schedules are for ease of reference only and are not intended to affect interpretation of the relevant provision; and
(d) a reference to a document includes:
(i) all amendments or supplements to, or replacements or novations of, that document; and
(ii) any agreement in writing, or any certificate, notice, instrument or other document of any kind.
3.3. In the event of any conflict, ambiguity or inconsistency arising:
(a) between this Agreement and the General Terms of Service, this Agreement shall prevail to the extent of such conflict, ambiguity or inconsistency; and
(b) between this Agreement and any other agreement that you may have with MomoCentral arising out of, or in connection with, the Services, you agree to and shall consult with MomoCentral on the term that shall prevail.
4. Your Eligibility
4.1. Your access and use of the Services is subject to your compliance with all terms of this Agreement.
4.2. You hereby represent and warrant that:
(a) you have full capacity and authority to accept, agree and enter into this Agreement;
(b) all authorisations, consents, licences and approvals (whether under any applicable laws or otherwise) required to accept and agree to this Agreement have been obtained and would be maintained in full force and effect;
(c) you are not barred (whether under any applicable laws or otherwise) from accessing and using the Services;
(d) your access and use of the Services is not in contravention of any applicable laws where you are situated;
(e) your use of the Services is solely for business purposes, and not for personal, household or consumer use; and
(f) all information and Content that you provide to MomoCentral are true and accurate.
4.3. The representations and warranties in clause 4.2 shall be deemed repeated each time you access or use any of the Services.
4.4. You shall not (directly or indirectly):
(a) allow any Person in competition with the business of MomoCentral (including, but not limited to, the Services) to access or use the Services;
(b) access or use the Services to develop a product or service that is competitive with MomoCentral’s business;
(c) copy any ideas, features, functions or Content of the Services;
(d) licence, sub-licence, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services in any way;
(e) modify or make derivative works based on the Services;
(f) send or store Content containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; and
(g) use the Services for any illegal purpose.
4.5. MomoCentral shall have the right to investigate and prosecute any violations of this Agreement to the fullest extent of the law, and may involve and cooperate with law enforcement authorities in prosecuting anyone who violates this Agreement.
5. The Services
5.1. You acknowledge and agree that:
(a) the Services is for the time-rated engagement of MomoCentral (including, but not limited to, hourly-rated or weekly-rated engagements) for the provision of Talent Services;
(b) the provision of the Talent Services is based on time-costs of the Talent;
(c) the Talent Services shall be performed by the Talents, which may consist of third party independent contractors of MomoCentral;
(d) before engaging the Talent Services of any Talent through MomoCentral, you shall carefully vet and enquire upon such Talent to determine if such Talent meets your needs and requirements;
(e) you shall be solely responsible for determining whether any particular Talent meets your needs and requirements;
(f) the provision of the Talent Services may involve the use of Intellectual Property or Technical Information owned by third parties (including, but not limited to, open source and proprietary software, source and object codes, typefaces and images); and
(g) the performance of the Talent Services is dependent in part on your actions and accordingly, you shall use commercially reasonable efforts to provide MomoCentral and its Talents with reasonable information, cooperation and assistance in connection with the Talent Services.
6. Engagement Request
6.1. You may from time to time request to engage MomoCentral for the provision of Talent Services through such means and in such form and manner as may be prescribed by MomoCentral from time to time (each such request, an “Engagement Request”, each such engagement of Talents for the provision of Talent Services, an “Engagement”).
6.2. MomoCentral shall use commercially reasonable efforts to make one or more Talents available to perform the Talent Services described in the Services.
6.3. In relation to each Engagement Request, MomoCentral may:
(a) request for additional information reasonably necessary from you (but such additional information, if provided by you, shall not oblige MomoCentral to act in any way);
(b) respond with one or more Talents for you to hire from (“Proposed Talents”);
(c) respond with an invoice; and/or
(d) take such other actions as MomoCentral in its absolute discretion deems fit and proper.
6.4. If MomoCentral responds to your Engagement Request by sending you details of any Proposed Talents, in relation to such Engagement Request:
(a) you may hire one or more Talents from such Proposed Talents (or choose not to hire any of the Proposed Talents);
(b) you shall carefully vet the details of such Proposed Talents and enquire upon such Proposed Talents to determine if such Proposed Talents meets your needs and requirements;
(c) at MomoCentral’s absolute discretion, you may be allowed to interview the Proposed Talents prior to indicating to MomoCentral the Proposed Talent you would like to hire; (d) your ability to hire the Proposed Talents shall be subject to each Proposed Talent’s availability;
(e) you acknowledge and agree that the restrictive covenants set out in clause 16.1 shall commence; and
(f) you shall within two (2) Business Days (unless otherwise indicated by MomoCentral in writing) respond to MomoCentral indicating the Proposed Talents you would like to hire, failing which you shall no longer be entitled to hire such Proposed Talents (subject to MomoCentral’s absolute discretion), provided always that MomoCentral shall be entitled at any time to:
(i) withdraw, replace, substitute or add any Talent to or from the Proposed Talents; and/or
(ii) withdraw or revoke any Engagement Request.
6.5. Unless otherwise specified by MomoCentral in writing, if MomoCentral responds to your Engagement Request or to your response in clause 6.4(e) with an invoice (“Engagement Invoice”):
(a) the Engagement Invoice may, at MomoCentral’s absolute discretion, contain details of:
(i) the Talents assigned by MomoCentral for the provision of the Talent Services;
(ii) the compensation in respect of each Talent;
(iii) the dates, times and hours of work allocated by MomoCentral for each Talent;
(iv) the payment schedule in relation to the provision of the Talent Services;
(v) any additional instructions from MomoCentral; and
(vi) any additional terms MomoCentral may impose in respect of such Engagement;
(b) such Engagement Invoice shall be valid for two (2) Business Days from the time the Engagement Invoice was sent by MomoCentral and shall thereafter lapse and expire;
(c) during the Engagement Invoice’s validity period, you may either accept, reject or ignore the Engagement Invoice; and
(d) if you would like to accept such Engagement Invoice, you shall within the validity period make such necessary payments and follow such instructions as may be indicated on the Engagement Invoice.
6.6. Unless otherwise specified by MomoCentral, your payment (in full) and observance of instructions in accordance with the Engagement Invoice shall constitute your acceptance of the Engagement Invoice and your agreement to be bound by:
(a) the terms of this Agreement as at the date and time the Engagement Request was sent; and
(b) the terms of the Engagement Invoice.
6.7. In respect of each Engagement, in the event of any conflict, ambiguity or inconsistency between the terms of this Agreement and the Engagement Invoice, the terms of this Agreement as at the date and time the Engagement Request was sent shall prevail to the extent of such conflict, ambiguity or inconsistency.
7. Engagement Performance
7.1. Unless otherwise specified by MomoCentral, each Engagement shall be deemed to commence at the earliest date and time where the Talent Services in respect of such Engagement is first rendered to you by any Talent engaged under such Engagement.
7.2. Each Engagement shall be performed at such venue and in such manner as may be reasonably directed by MomoCentral from time to time (including, but not limited to, via teleconference, online chats and Skype), and you acknowledge and agree that you are responsible for obtaining and using the necessary software, device, hardware and equipment at your own risk and expense in connection therewith.
7.3. Each Talent shall report directly to such individual designated by you in respect of each Engagement, and you agree to and shall designate such individual in connection therewith.
7.4. In the event that a Talent does not show up (or is otherwise completely uncontactable) for an Engagement at the time the Talent Services is scheduled to be performed by such Talent (“no show”):
(a) you shall wait for at least thirty (30) minutes for the Talent to show up;
(b) if the Talent does not show up within thirty (30) minutes, you shall immediately inform MomoCentral of such no show in writing;
(c) unless you inform MomoCentral of a Talent’s no show in writing within one (1) Business Day from the time such Talent Services is scheduled to be performed, MomoCentral shall deem all Talent Services in respect of such Engagement and Talent to have been duly performed one (1) Business Day after the time such Talent Services is scheduled to be performed;
(d) if you have duly informed MomoCentral of such no show in accordance with this clause
7.4, MomoCentral may, at its absolute discretion, in respect of such Engagement and Talent:
(i) provide you with a replacement Talent at such other date and time (subject to availability);
(ii) terminate the Talent Services and/or the Engagement, and provide you with a refund for the remainder of the time engaged paid for but not yet performed;
(iii) defer the performance of such Talent Services by such Talent to such other date and time (subject to availability); or
(iv) take such other actions as MomoCentral may mutually agree with you, provided that you shall provide evidence of such no show to MomoCentral’s absolute satisfaction and MomoCentral shall have absolute discretion in determining whether such no show did in fact occur.
7.5. Subject to the other provisions of this Agreement and any mutual agreements in writing to the contrary between you and MomoCentral, in the event that you do not show up (or is otherwise completely uncontactable) for an Engagement at the time the Talent Services is scheduled to be performed, the Talent Services in respect of such time period shall be immediately deemed to have been duly performed.
7.6. In respect of each Engagement, you acknowledge and agree that:
(a) MomoCentral shall assign to you all rights, title and interest in and to the Foreground Intellectual Property, Foreground Information and deliverables in or associated with any Content developed by each Talent during the course of each Engagement;
(b) where any Intellectual Property and Technical Information:
(i) is based on, incorporates, is an improvement or derivative of, cannot be reasonably and fully made, used, reproduced, distributed or otherwise exploited without using or violating the Intellectual Property or Technical Information rights owned by or licenced to MomoCentral or the Talent; and
(ii) is not assigned hereunder, MomoCentral shall (and, where applicable, shall procure the Talent to) grant to you a perpetual, irrevocable, worldwide, royalty-free, non-exclusive, sub-licensable licence to exploit and exercise all such Intellectual Property or Technical Information; and
(c) you shall be responsible for obtaining your own licences to any Intellectual Property and Technical Information not covered under this clause 7.6.
8. Talent Replacement
8.1. In respect of each Engagement, you acknowledge and agree that a Talent may only be replaced in accordance with clauses 7.4(d)(i), 8.2 and 8.4.
8.2. You shall be the sole judge of the performance and capability of each Talent engaged in providing the Talent Services and may, at any time by giving MomoCentral at least one (1) Business Day’s notice, request the replacement of any Talent who does not meet your performance and capability requirements.
8.3. In respect of each Engagement, if MomoCentral is given notice in accordance with clause 8.2:
(a) the Talent Services performed by the Talents you request to replace shall be suspended from the time falling one (1) Business Day after such notice is received;
(b) MomoCentral shall be entitled to investigate your request;
(c) MomoCentral may at its absolute discretion at any time after such notice is given:
(i) provide you with a replacement Talent to perform the Talent Services at such other date and time (subject to availability); or
(ii) terminate the Talent Services and/or the Engagement, and provide you with a refund for the remainder of the time engaged paid for but not yet performed.
8.4. Notwithstanding any provisions to the contrary, MomoCentral shall be entitled at any time during the duration of an Engagement to replace or remove any Talent by giving you at least one (1) Business Day’s notice.
8.5. If a Talent is removed in accordance with clause 8.4, you may request for a refund for the period you have paid for but which have not been performed due to such removal.
8.6. If a Talent is replaced in accordance with clauses 7.4(d)(i), 8.2 or 8.4, you acknowledge and agree that:
(a) the replacement Talent’s compensation may be adjusted and may be different from the replaced Talent’s compensation;
(b) the replacement Talent’s experience and skillset may be different from the replaced Talent;
(c) in relation to any replacement of Talent, MomoCentral may send you one or more invoices (including, but not limited to, the compensation and scheduling details of the replacement Talent);
(d) if MomoCentral sends you an invoice pursuant to clause 8.6(c), you may elect to accept or reject such replacement within one (1) Business Day of such invoice being sent; and
(e) if you would like to accept the invoice sent pursuant to clause 8.6(c), you shall within one (1) Business Day of such invoice being sent make such necessary payments and follow such instructions as may be indicated on the invoice.
9. Engagement Variation
9.1. Subject to the provisions of this Agreement, any variation to the terms of each Engagement shall be mutually agreed between you and MomoCentral and shall be in writing.
9.2. Subject to any mutual agreement in writing between you and MomoCentral, in the event the compensation in respect of an Engagement is changed due to any variation made in accordance with clause 9.1, you acknowledge and agree that:
(a) MomoCentral may issue you with additional and/or replacement invoices in connection thereto; and
(b) you shall make all payments required such under invoices.
10. Engagement Termination
10.1. Notwithstanding any provisions to the contrary, MomoCentral shall be entitled to terminate any Engagement by giving you at least one (1) Business Day’s prior notice. If an Engagement is terminated under this clause, MomoCentral shall in respect of such Engagement provide you with a refund for the remainder of the Talent Services paid for but not yet performed.
11. Engagement Completion
11.1. An Engagement shall, at MomoCentral’s absolute discretion, be deemed completed:
(a) upon MomoCentral (at its absolute discretion) informing you that such Engagement is completed;
(b) upon there being no monies standing to your credit with MomoCentral in respect of such Engagement;
(c) upon three (3) months having lapsed since the last Talent Services in respect of such Engagement was performed, whichever is earlier (“Engagement Completion”).
11.2. Upon Engagement Completion:
(a) if required by you within three (3) years of the Engagement completion, MomoCentral shall (and shall procure that each Talent) assist you from time to time but at your own expense to further evidence, record, perfect, maintain, enforce and defend any rights assigned pursuant to clause 7.6;
(b) save as set out in clause 11.2(a), MomoCentral shall have no further obligation to you; and
(c) you acknowledge and agree that you shall for six (6) months thereafter be bound by the restrictive covenants set out in clause 16.1.
12. Engagement Compensation
12.1. The compensation in respect of each Talent shall be as indicated by MomoCentral through the Services. In respect of each Talent, if the compensation is not indicated or if there are any conflict, ambiguity or inconsistency in the compensation indicated, you shall consult with MomoCentral on the compensation that shall apply in respect of such Talent.
12.2. You shall reimburse MomoCentral and the Talent for any pre-approved reasonable travel, accommodation and other expenses incurred by MomoCentral and the Talent in connection with the provision of any Talent Services.
13.1. Unless otherwise specified by MomoCentral in writing, you acknowledge and agree that:
(a) payment shall be made in advance of the performance of any Talent Services;
(b) in respect of each Engagement, you shall at all times ensure that there are monies standing to your credit with MomoCentral and shall make such further payment to MomoCentral whenever the monies standing to your credit with MomoCentral is running low or has run out; and
(c) you shall make payment to MomoCentral whenever MomoCentral sends you an invoice in connection with your access and use of the Services.
13.2. MomoCentral may send you invoices from time to time in connection with your access and use of the Services, and such invoices may contain terms additional to an Enagement and this Agreement, including, but not limited to:
(a) the manner of payment;
(b) the payment schedule; and
(c) the payment deadline or deadlines, as the case may be.
13.3. Unless otherwise indicated on the invoice, each invoice:
(a) shall be in United States Dollars;
(b) shall be paid by bank transfer (nett of any bank charges and taxes);
(c) shall be due immediately as of the date of such invoice; and
(d) shall be considered delinquent five (5) Business Days after the date of the invoice.
13.4. If you have provided MomoCentral with details of any credit card, debit card or other payment instrument and have further indicated to MomoCentral to use such payment instrument as the primary payment method, you agree that:
(a) MomoCentral shall be entitled to charge the credit card, debit card or such other payment instrument for all applicable payment due to MomoCentral; and
(b) if any authorisations or charge attempts on the credit card, debit card or such other payment instrument are declined, MomoCentral may immediately disable or cancel the Services (in whole or in part), at its absolute discretion.
13.5. You acknowledge and agree that by clicking on certain checkboxes on the Services which may indicate (or indicate the incorporation of) certain terms, you are agreeing and undertaking to pay for the applicable fees, charges, costs, expenses, penalties or fines should you be responsible for any.
13.6. You hereby authorise MomoCentral to charge you for any late fees, penalties, liquidated damages or other fines should you not fully abide by this Agreement, any other agreement you may have with MomoCentral or by MomoCentral’s rules and business logic defined in the Services.
13.7. You shall be responsible for the payment of any and all bank charges, foreign exchange currency conversion cost, duties, customs fees and taxes (including, but not limited to, any related penalties or interest), such that the amount that MomoCentral receives after payment thereto shall be nett of any such deductions.
13.8. If you are delinquent or late in any payments:
(a) you shall be responsible for all reasonable expenses (including, but not limited to, any expenses of investigation and legal fees and expenses in connection with any action, suit or proceeding) incurred by MomoCentral in collecting such delinquent amounts; and
(b) MomoCentral shall be entitled to:
(i) levy interest on the amounts delinquent or late at the rate of 5.33% per annum (or the highest rate permitted by law, if less) from the payment due date until the date payment is received in full; and
(ii) withhold, suspend, withdraw or cancel the Services, in whole or in part.
13.9. Any interest levied by MomoCentral shall accrue on a day-to-day basis and be calculated by MomoCentral on the basis of a 365-day year and interest shall be compounded in accordance with the usual practice of MomoCentral.
13.10. You acknowledge and agree that MomoCentral may send any invoice to you via:
(a) the Services;
(b) any email address that you provide; or
(c) any other reasonable means MomoCentral deems fit and proper.
13.11. You acknowledge and agree that any failure of transmission or receipt (whether by reason of the fault of MomoCentral or otherwise) shall not release you from the obligation to make payment in respect of any invoice.
13.12. Subject to the other provisions of this Agreement, you acknowledge and agree that all payments you make to MomoCentral shall be non-refundable (whether such payments are made in advance or otherwise).
14.1. If there are any disputes in respect of any Engagement, you shall within one (1) Business Day upon each such dispute arising inform MomoCentral the details of such dispute in writing, setting out:
(a) the nature of the dispute;
(b) a description of dispute; and
(c) the remedy that you are seeking for.
14.2. If pursuant to a dispute filed with MomoCentral it is determined by MomoCentral that you are the party at fault:
(a) you shall be liable for and shall bear all costs and expenses incurred by MomoCentral in relation to the investigation (including, but not limited to, third party costs);
(b) MomoCentral may issue invoices to you pursuant to clause 14.2(a) and you shall be liable to make payments for such invoices; and
(c) MomoCentral may take such action as MomoCentral in its absolute discretion deems fit.
14.3. MomoCentral shall have the right to conduct any investigation into any Account or Engagement (regardless of whether a dispute was filed with MomoCentral), and you undertake to furnish such further information or Content as reasonably required by MomoCentral in relation thereto.
14.4. Notwithstanding any provisions to the contrary, you agree that MomoCentral shall have absolute discretion in determining the outcome of any dispute.
15. Intellectual Property and Technical Information
15.1. Nothing in this Agreement shall affect the right of any Person to own or licence the Background Intellectual Property or the Background Information.
15.2. You shall at all times not infringe, misappropriate or violate the Intellectual Property and Technical Information of any Person.
15.3. You represent and warrant that:
(a) you own all the Content which you have provided to MomoCentral or any Talent, or otherwise have obtained all necessary permissions, releases, rights or licences required to engage in your activities in connection with the Services (and to allow MomoCentral to legally perform its obligations);
(b) the Content which you have provided to MomoCentral or any Talent and other activities in connection with the Services (and MomoCentral’s exercise of all rights and licences granted by you herein) do not and will not infringe, misappropriate or violate any Person’s Intellectual Property, right of privacy or publicity, or other personal or proprietary right; and
(c) the Content which you have provided to MomoCentral or any Talent does not contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing.
15.4. The representations and warranties in clause 15.3 shall be deemed repeated each time you access or use any of the Services.
16. Restrictive Covenants
16.1. You hereby agree that for the period set out in clause 16.3 you shall not, directly or indirectly:
(a) solicit, procure or induce away the business of MomoCentral or any related corporations of which you had dealings with while accessing and using the Services;
(b) recruit, attempt to recruit or directly or indirectly participate in the recruitment of any of MomoCentral’s employees;
(c) induce or attempt to induce any Talent or Client (other than yourself) to terminate their relationship with MomoCentral;
(d) recruit, attempt to recruit or directly or indirectly participate in the recruitment of any of the Client or Talent of which you had dealings with while accessing and using the Services;
(e) engage or offer to engage any Client or Talent of which you had dealings with while accessing and using the Services to provide any Talent Services (whether under a service agreement, consultancy or any other engagement or arrangement);
(f) refer any Person to any Client or Talent of which you had dealings with while accessing and using the Services for the purpose of providing or receiving any Talent Services (whether under a service agreement, consultancy or any other engagement or arrangement);
(g) solicit, attempt to solicit, canvass or interfere with any customer or supplier of MomoCentral in a manner that conflicts with or interferes in the business of MomoCentral as conducted with such customer or supplier;
(h) engage in any activity or business that may conflict with or compromise your ability to perform your obligations under this Agreement without the prior written consent of MomoCentral; and
(i) alone or in conjunction with any other Person, own, manage, operate or control or participate in the ownership, management, operation or control of, or become associated, as an employee, director, officer, advisor, agent, consultant, principal, partner, member or independent contractor with or lender to, any person or entity engaged in or aiding others to engage in the independent contractor marketplace for design and/or software development services business, located anywhere in the world.
16.2. You agree that you shall not now, or at any time in the future, directly or indirectly, take any action or make any statements to anyone about MomoCentral, publicly or privately, that may be construed as being derogatory, defamatory, disparaging or harmful in any way to the reputation of MomoCentral or the business of MomoCentral.
16.3. The covenants in clause 16.1 shall commence in respect of each Engagement:
(a) if MomoCentral had responded to your Engagement Request with details of any Proposed Talents in accordance with clause 6.3(b), at the earliest time MomoCentral sends you details of such Proposed Talents; or
(b) on the date set out in clause 7.1, whichever is earlier, and shall continue for six (6) months following:
(x) if no Engagement arises out of an Engagement Request within three (3) months of MomoCentral sending you details of the Proposed Talents in accordance with clause 6.3(b), the date falling three (3) months from the latest time MomoCentral sent you details of such Proposed Talents; or
(y) Engagement Completion, whichever is later.
16.4. Each restraint under clauses 16.1 and 16.2 is separate, distinct and several from each other restraint under clauses 16.1 and 16.2, such that the validity and enforceability of any such restraint shall not affect the validity or enforceability of any other such restraint.
16.5. Provided always that in the event that MomoCentral agrees to your request to waive any of the restraints under clauses 16.1 and 16.2, you agree to and shall pay a fee of USD5,000 to MomoCentral within ten (10) Business Days of each such agreement for each such waiver.
16.6. You agree and undertake to pay MomoCentral USD5,000 as liquidated damages for breach of each restraint under (a) each sub-clause of clause 16.1; and (b) clause 16.2, (as reasonably determined by MomoCentral) within ten (10) Business Days upon MomoCentral’s notice to pay such liquidated damages.
16.7. You acknowledge that:
(a) monetary damages alone may not be adequate compensation to MomoCentral for a breach of clauses 16.1 and 16.2; and
(b) MomoCentral is entitled to seek an injunction against you:
(i) in respect of any breach or threatened breach of clauses 16.1 and 16.2; and
(ii) if MomoCentral has reason to believe that you will not comply with clauses 16.1 and 16.2.
17.1. You shall (and shall procure that your officers, directors, agents, partners, joint ventures, employees, suppliers and, where applicable, its officers, directors, agents and employees) at all times use all reasonable endeavours to keep confidential any Confidential Information which you may acquire belonging to MomoCentral and shall not use or disclose such information to any other Person except to the extent:
(a) the Confidential Information is within the public domain (except as a result of a breach of an obligation of confidentiality);
(b) MomoCentral has given prior written consent to that disclosure;
(c) required by your employee, professional adviser or supplier for the purpose of such employee, professional adviser or supplier advising or providing such services to you, provided that such employee, professional adviser or supplier is bound by restrictions regarding the disclosure and use of such Confidential Information (either contractual, legal or fiduciary) owed to you or MomoCentral that are comparable to and no less restrictive than those set forth in this Agreement; or
(d) required by:
(ii) any binding order of any court, tribunal or authority of competent jurisdiction;
(iii) any governmental agency; or
(iv) any applicable stock exchange, provided that a copy of the form of the disclosure is given to MomoCentral and MomoCentral has given written consent of its approval (such approval not to be unreasonably withheld).
18. Independent Contractor
18.1. MomoCentral is an independent contractor of the Client and nothing contained herein this Agreement shall be construed as creating the relationship of employer and employee, principal and agent, partnership or joint venture or any other fiduciary relationship.
18.2. You shall have no authority to act as agent for, or on behalf of, MomoCentral, or to represent MomoCentral or bind MomoCentral in any manner.
19. Brand Features
19.1. You hereby grant to MomoCentral a non-exclusive, revocable, worldwide, royalty-free right and licence to use, copy, encode, store and publicly display the Client Brand Features for MomoCentral’s marketing and promotional purposes on the Site and in other communications with existing or potential customers of MomoCentral. If you object to MomoCentral’s use of the Client Brand Features, you must give MomoCentral at least ten (10) Business Days’ notice in writing stating your reasonable request for changes or removal of such Client Brand Features. For the avoidance of doubt, you are not granting MomoCentral any title or other proprietary interest in respect of the Client Brand Features.
20.1. You shall not make any public statements in relation to MomoCentral or the Services without MomoCentral’s prior written consent.
21. Term and Termination
21.1. This Agreement between MomoCentral and you shall commence at the time you create an Account with MomoCentral and shall continue until such time either party gives at least ten (10) Business Days’ prior written notice to the other party.
21.2. Notwithstanding clause 21.1, MomoCentral shall be entitled to terminate this Agreement with you at any time with immediate effect without any prior notice if you:
(a) violate or breach any term of this Agreement; or
(b) in the absolute opinion of MomoCentral, misuse the Services.
21.3. If MomoCentral terminates this Agreement pursuant to clause 21.2, you agree that:
(a) MomoCentral shall be entitled to close your Account or suspend, terminate or revoke any of the Services;
(b) MomoCentral shall be entitled to forfeit any advance payment you may have made to MomoCentral in respect of which performance is incomplete; and
(c) MomoCentral shall be entitled to take such further action (including commencing any investigations, suits, actions or proceedings) against you or another Person related to such breach.
21.4. Upon termination of this Agreement (howsoever arising):
(a) you shall immediately return to MomoCentral all originals, copies and extracts of all Content belonging to MomoCentral in your possession, custody or control;
(b) where there are Content belonging to MomoCentral is in a form incapable of return or which has been copied or transcribed into another document or medium, such Content shall be destroyed or erased (unless otherwise directed by MomoCentral in writing); and
(c) MomoCentral shall be entitled to retain or delete (at its absolute discretion) any Content in respect of your Account.
22.1. Your use of the Services and the Talents is entirely at your own risk.
22.2. The Services and Talents are provided on an “as is” and “as available” basis without warranties of any kind, and MomoCentral, its officers, directors, agents, partners, joint ventures, employees and suppliers expressly disclaims any and all warranties (whether express or implied) including, but not limited to, the implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, title, freedom from malicious code and non-infringement.
22.3. MomoCentral, its officers, directors, agents, partners, joint ventures, employees and suppliers does not guarantee, represent or warrant:
(a) the truth, accuracy, adequacy, completeness or reasonableness of the Content contained in or accessed through the Services;
(b) the non-infringement, non-misappropriation or non-violation of any Intellectual Property or Technical Information of any third party by MomoCentral;
(c) that your access and use of the Services will be uninterrupted or error-free, and you agree that MomoCentral may from time to time remove the Services for indefinite periods of time or cancel the Services;
(d) that the Services or any work product developed pursuant to any Engagement or by any Talent will be free from loss, corruption, attack, viruses, interference, hacking or other security intrusion, and MomoCentral expressly disclaims any liability thereto;
(e) any material or Content downloaded or otherwise obtained through your access and use of the Services; and
(f) the quality, suitability or necessity of any of the Talent (whether assigned or recommended by MomoCentral, or otherwise) or of any Talent Services for any of your needs, even if MomoCentral had been informed of such needs.
22.4. MomoCentral, its officers, directors, agents, partners, joint ventures, employees and suppliers expressly disclaim any and all liability for any errors in, or omissions from, the Services and the Content contained in or access through the Services.
22.5. Any material or Content you download or otherwise obtain through your access and use of the Services is at your own risk and you shall be solely responsible for any damage caused to your device, computer or loss of data that results from the download of such material or Content.
22.6. Unless otherwise expressly agreed by MomoCentral in writing, MomoCentral does not assume any advisory, fiduciary or similar or other duties to you. MomoCentral assumes, and relies on the assumption, that you have taken the necessary independent legal, tax, financial and other advice in relation to any Account, Services or transaction between MomoCentral and you.
23.1. You hereby agree to defend, indemnify and hold harmless MomoCentral, its officers, directors, agents, partners, joint ventures, employees and suppliers against any and all claims, damages, losses, obligations, deficiencies, judgments, awards, demands, penalties, taxes, expenses, disbursements, costs, fines and other liabilities (including, but not limited to, any expenses of investigation and legal fees and expenses in connection with any action, suit or proceeding) suffered or incurred by MomoCentral (other than such losses, costs or damages arising from the wilful misconduct of MomoCentral and its employees) arising out of or in connection with:
(a) any misrepresentation or breach of any representation, warranty, covenant or agreement made by you in this Agreement;
(b) any wilful, unlawful or negligent act or omission made by you in relation to this Agreement;
(c) any infringement or alleged infringement of any action, claim, damages, charges and costs arising from or incurred by reason of any use of the Intellectual Property, Technical Information or other statutory or common law rights of any Content supplied or furnished by you;
(d) your violation of any other rights of another Person;
(e) any action taken by MomoCentral as part of its investigation of a suspected violation of this Agreement;
(f) your access and use of the Services;
(g) any other party’s access and use of the Services using your Account;
(h) your breach of any terms of this Agreement; and
(i) any other party’s breach of any terms of this Agreement where such party was able to access and use the Services by using your Account.
24. Limitation of Liability
24.1. To the extent permitted under applicable law, MomoCentral’s maximum aggregate liability arising out of, or in connection with, this Agreement shall in no event exceed:
(a) USD1,000; or
(b) fifteen percent (15%) of the fees received by MomoCentral from you under this Agreement in the twelve (12) months immediately preceding the date of breach, whichever is lower.
24.2. Notwithstanding clause 24.1 and without prejudice to the generality of the other clauses herein, MomoCentral shall not be liable for any loss, damage or expense suffered or incurred by you arising from any cause whatsoever through no fault of MomoCentral, including, but not limited to, the following:
(a) any computer or system virus interference, sabotage or any other causes whatsoever which may interfere with any of the Services, or any breakdown or malfunction due to any cause whatsoever, of computer software or equipment (whether belonging to MomoCentral or otherwise), used in connection with any of the Services; and
(b) any loss of, destruction to or error in MomoCentral’s records, howsoever caused. 24.3. No action regardless of form arising out of, or in connection with, this Agreement (including, but not limited to, any action relating to an Account or the Services) may be brought by you against MomoCentral unless:
(a) notice of the claim is received in writing by MomoCentral:
(i) within ten (10) Business Days from the date the cause of action has arisen; or
(ii) if you can prove to MomoCentral’s reasonable satisfaction that it was impossible to comply with this time limit, as soon as reasonably practicable;
(b) MomoCentral is given ten (10) Business Days from its receipt of the notice in clause 24.3(a) to remedy the claim set out in such notice; and
(c) if such claim is not remedied to your reasonable satisfaction in accordance with clause 24.3(b) or in any event, such action is brought within twelve (12) months from the date the cause of action has arisen.
For the avoidance of doubt, you agree that all action must be brought within twelve (12) months from the date the cause of action has arisen. If no action is brought within twelve (12) months from the date the cause of action has arisen, you agree to and shall irrevocably waive and release MomoCentral from any claim or liability relating thereto.
25.1. You acknowledge and agree that where you have incurred any liability to MomoCentral (whether arising under this Agreement or otherwise howsoever arising), MomoCentral shall be entitled, at any time, without notice to you and from time to time without prejudice to any other remedies available to MomoCentral, to set off the amount of such liability against any liability of MomoCentral to you (whether arising under this Agreement or otherwise howsoever arising), whether either such liability is liquidated or unliquidated, present or future, actual or contingent, primary or collateral, several or joint.
25.2. In the event you experience a change of control event (including, but not limited to, a share purchase or sale, merger or other form of corporate transaction):
(a) you shall provide written notice to MomoCentral within twenty (20) Business Days after the change of control; and
(b) MomoCentral may immediately terminate this Agreement at any time between the change of control and twenty (20) Business Days after it receives the aforementioned notice of change of control.
25.3. MomoCentral shall not be liable for inadequate performance to the extent caused by a condition (including, but not limited to, natural disaster, act of war or terrorism, riot, labour condition, governmental action and Internet disturbance) that was beyond MomoCentral’s reasonable control.
25.4. Any variation to this Agreement must be in writing. If variations are made specifically in relation to an identified Person or to an identified group of Persons, such variations must expressly state that it is variating this Agreement.
25.5. Any rights and obligations under this Agreement which by their nature should survive (including, but not limited to, clauses 13 (Payment), 16 (Restrictive Covenants), 17 (Confidentiality), 19 (Brand Features), 20 (Publicity), 22 (Disclaimers), 23 (Indemnification) and 24 (Limitation of Liability)) shall remain in effect indefinitely after the termination or expiration of this Agreement.
25.6. You may not transfer or assign any rights or obligations which you have under this Agreement without MomoCentral’s prior written consent. MomoCentral reserves the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time.
25.7. No failure or delay by MomoCentral to exercise or enforce any right under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any other right or remedy.
25.8. If any provision of this Agreement is held to be illegal, invalid or unenforceable in whole or in part in any jurisdiction, this Agreement shall, as to such jurisdiction, continue to be valid as to its other provisions and the remainder of the affected provision, and the legality, validity and enforceability of such provision in any other jurisdiction shall not be affected.
25.9. MomoCentral may provide you with notices regarding the Services, including any changes to this Agreement, by email, regular mail, SMS, through the Services, or any other means MomoCentral deems necessary.
25.10. This Agreement constitutes the entire agreement between you and MomoCentral, governs your use of the Services and completely replaces any prior agreements, arrangements or understandings between you and MomoCentral in relation to the Services. Additional terms may apply when you use any affiliate services, third party content or third party software.
25.11. This Agreement may be executed in any number of counterparts (including, but not limited to, facsimile, PDF or other electronic copies or means), each of which when taken together shall constitute one and the same instrument.
25.12. A person who is not a party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act (Chapter 53B of Singapore) to enforce any term of this Agreement.
25.13. This Agreement shall be governed by and construed in accordance with the laws of Singapore and you irrevocably submit to the non-exclusive jurisdiction of the Singapore courts.