TRUSTANA – MASTER SERVICE AGREEMENT

The Agreement is between (i) Trustana Singapore Pte. Ltd., a company incorporated and registered in Singapore with company number 202009271E, having its registered office at 15 Beach Road, #02-108, Beach Centre Singapore 189677 (“Trustana”) and (ii) "Customer", and governs the provision of Services by Trustana to the Customer. Each Trustana and Customer may be referred to separately as a “Party” or collectively as the “Parties”. The Parties shall agree to the commercial terms specified in the Order Form. Any terms not specified in the Order Form shall be governed by the provisions of this master service agreement (the “MSA”).  

1. Definitions. The defined terms used in this MSA are set out below:  

1. “Affiliate” means, in relation to a Party, any entity that directly or indirectly Controls, or is Controlled by, or is under common Control with that Party.

2. “Agreement” means, collectively, this MSA, the Order Form and any ancillary agreements entered into between the Parties and amendments to any of the foregoing.  

3. “Business Day” means any day which is not a Saturday, a Sunday or a bank or public holiday in Singapore.  

4. “Confidential Information” means all information, in whatever form, that relates to: the existence, negotiations for and terms of the Agreement; the business and operations affairs, customers, suppliers, developments, trade secrets, know how, personnel and Intellectual Property Rights of either party that is identified as confidential (whether or not marked "confidential") or which ought reasonably to be considered confidential but excludes information that has become independently available to the Receiving Party or is publicly known, in each case other than as the direct or indirect result of a breach of any obligation of confidentiality or fiduciary duty owed to the Disclosing Party or that can be shown to have been lawfully in the possession of the Receiving Party before the date it was disclosed by the Disclosing Party and that the Receiving Party was not under any obligation of confidence in respect of the information.  

5. “Control” means (a) the legal or beneficial ownership, directly or indirectly of more than 50% of the issued share capital or similar right of ownership of an entity; or (b) the power to direct or cause the direction of the affairs and/or general management of the entity in question, whether through the ownership of voting capital, by contract or otherwise and “Controls” and “Controlled” shall be construed accordingly.  

6. “Customer Data” means any data, including personal data, belonging to or controlled by the Customer and provided to Trustana in connection with Trustana’s provision of the Services under the Agreement.  

7. “Customer Property” has the meaning set out in clause 6.1 of this MSA.  

8. “Disclosing Party” has the meaning set out in clause 8.1 of this MSA.

9. “Documentation” means any online documentation, operating manual and usage guides for the Services, accessible via the Services or otherwise provided by Trustana, which may be updated from time to time.

10. “Feedback” means suggestions, comments, feedback, improvements requests or other assessments which Customer or its Users may provide to Trustana relating to features, functionality or the operation of the Services.

11. “Insolvency Event” means the occurrence of any of the following events or circumstances (or any analogous event or circumstance in a jurisdiction other than Singapore) in relation to the other Party: (i) being deemed unable to pay its debts as they fall due, (ii) proposing a voluntary arrangement; (iii) steps being taken for a receiver, administrator or manager to be appointed over the whole or a material part of its business or assets; (iv) an order being made, a resolution passed or other steps being taken for its winding-up (except for the purposes of a bona fide solvent reorganisation), bankruptcy or dissolution; (v) otherwise proposing or entering into any composition or arrangement with its creditors or any class of them; or (vi) ceasing to carry on business or claiming the benefit of any statutory moratorium.

12. “Intellectual Property Rights” or “IPRs” means all intellectual property rights, including patents, supplementary protection certificates, petty patents, utility models, trade markstrademarks, database rights, rights in designs, copyrights (including rights in computer software) and topography rights (whether or not any of these rights are registered, and including applications and the right to apply for registration of any such rights) and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world, in each case for their full term, and together with any renewals or extensions.

13. “License Restrictions” has the meaning set out in clause 3.2 of this MSA.

14. “Permitted Purpose” has the meaning set out in clause 8.1 of this MSA.

15. “Receiving Party” has the meaning set out in clause 8.1 of this MSA.

16. “Services” means generally available software-as-a-service products provided by Trustana that are specified in the Order Form.

17. “Order Form” means an ordering document entered between Trustana and Customer, specifying the Services to be provided hereunder and the fees to be paid by the Customer.

18. “System Data” means data and information collected, derived, or otherwise generated by the Services that has been anonymized, de-identified, and/or aggregated so as not to identify or permit identification of an individual.

19. “Trustana Property” has the meaning set out in clause 6.2 of this MSA.  

20. “User” means an individual Customer invites, authorizes or otherwise uses or accesses the Services under Customer’s account, including employee of Customer and its Affiliates, contractors, agents and consultants of Customer.

2. Trustana Responsibilities.

1. General. Trustana will provide Customer the Services during the subscription term set forth in the Order Form in accordance with the terms of the Agreement in accordance with applicable laws and regulations applicable to Trustana’s provision of the Services. The provision of Services will be without regard for Customer’s particular use of the Services and subject to Customer’s and Users’ use of the Services in accordance with the Agreement and the Documentation. Trustana does not guarantee or accept responsibility for the accuracy or relevancy of any Services output.

2. Features and Functions of the Services. Customer acknowledges that the features and functions of the Services may change over time; provided, however, Trustana will not materially decrease the overall functionality, support and security of the Services. Trustana’s provision and Customer’s purchase of the Services is not contingent upon the delivery of any future functionality or features, or dependent on any oral or written public comments made by Trustana, its Affiliates, or any of their respective representatives regarding future functionality or features.

3. Suspension by Trustana. Trustana may suspend Customer’s or any of its Users’ access to the Services if in Trustana’s reasonable judgment, exercised in good faith: (i) Customer’s or its Users’ use of Services imminently threatens the security, integrity or availability of the Services; or (ii) Customer materially breaches the Agreement. In each case, Trustana will use commercially reasonably efforts to notify Customer in advance of such suspension and where practicable provide Customer with an opportunity to correct its usage prior to any such suspension. Trustana will have no liability for any suspension made in accordance with this section. Unless the Agreement is terminated earlier in accordance with clause 11 (“Termination”), Trustana will as quickly as reasonably practicable, restore Customer’s access to the Services once it verifies that Customer has resolved the condition requiring suspension.

4. Use of System Data. Trustana may use, modify, and display System Data (including using System Data for Trustana’s machine learning algorithm), provided, however, that Trustana will not publicly disclose or distribute System Data unless it is aggregated in a manner that does not permit the identification of Customer. Upon the Customer’s written request, Trustana will exercise commercially reasonable efforts to segregate Customer Data so that such Customer Data is not used for Trustana’s machine learning algorithm.

3. Customer Restrictions and Responsibilities.

1. General. When creating an account to access and use the Services, Customer will identify a User that will act as an administrator and Customer’s administrator may grant access to additional Users (each with their own separate usernames and passwords) in accordance with the provisions of the applicable Agreement. Customer is responsible for maintaining the security of user IDs, passwords and other access credentials of Customer’s Users, and shall ensure such access credentials are kept strictly confidential and not shared with any unauthorized person or entity. Customer shall be responsible for all acts or omissions taken under Customer’s or its Users’ access credentials.

2. License Restrictions. Customer and its Users will not (and will not allow any third party to) directly or indirectly: (a) use the Services to submit, process, store or transmit Customer Data in violation of any applicable laws, regulations, privacy policies, or agreements Customer may maintain or enter with its end users; (b) transmit or provide to the Services any Customer Data that includes  the following: health information, biometric or genetic data; social security numbers (or other local equivalent); driver’s license numbers; birth dates; financial account information, including debit or credit card information, personal bank account numbers, and card verification values; passport, government-issued ID or visa numbers; passwords or other authentication credentials; or any other sensitive personal data; (c) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services (or any underlying software, documentation or data related to the Services); (d) modify, translate, or create derivative works from Services or any underlying software; (e) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any underlying software; (f) use the Services or any underlying software for the benefit of a third party or on a third-party website, in violation of any applicable laws or regulations or outside the scope expressly permitted in the Agreement; (g) attempt to probe, scan or test the vulnerability of the Services, breach the security or authentication measures of the Services without proper authorization or wilfully render any part of the Services unusable; (h) use or access the Services to either develop or commercialize a product or service that is competitive with or a substitute for the Services or to engage in competitive analysis or benchmarking; or (i) store or transmit malicious code through the Services (all of the foregoing, collectively, the “License Restrictions”).

3. Customer’s responsibilities. Customer shall be responsible for: (a) Customer and its Users’ compliance with the Agreement and Documentation; (b) the legality, accuracy and quality of Customer Data, including ensuring that Customer’s collection and submission of data to, and use of the Services to process, store and transmit Customer Data, is compliant with all applicable laws and regulations as well as any privacy policies, agreements or other obligations Customer may maintain or enter into with its end users, including to obtain all legally required consents and permissions; and (c)  using commercially reasonable efforts to prevent the unauthorized access to or use of the Services. In addition, in the event Trustana is legally or contractually required to change or modify the Services, Customer shall be responsible for making all necessary changes to Customer’s applications and websites in order to continue using the Services. Customer also maintains all responsibility for determining whether the Services or the information generated thereby is accurate or sufficient for Customer’s purposes.  

4. Term. The term of this MSA shall commence on the signing date of this MSA and shall continue in full force and effect until terminated as set forth in clause 12 (the "Term"). Subject to early termination in accordance with this MSA, the initial subscription term of the applicable Order Form is as specified in such Order Form.  

5. Fees and Payment.  

1. Fees and payment terms. The service fees and payment terms applicable to the Services are set out in the Order Form. All payment obligations are non-cancelable and, unless otherwise expressly provided in the Agreement, all fees paid under the Agreement are non-refundable.

2. Taxes. Customer shall be responsible for all taxes, duties and other governmental charges associated with the Services other than taxes based on Trustana’s net income. If Customer is required by law to withhold any taxes, Customer must provide Trustana with an official tax receipt or other appropriate documentation, and all fees are payable hereunder without any deduction for such withheld taxes or otherwise. If Trustana has the legal obligation to pay or collect taxes for which Customer is responsible under the terms of the Order Form and this MSA, the appropriate amount shall be invoiced to and paid by Customer as if no withholding were required. Customer shall remit the withholding to the appropriate governmental authorities on behalf of Trustana, and provide a valid tax certificate authorized by the appropriate taxing authority.

6. Intellectual Property.  

1. Customer Property. As between the Parties, the Customer will remain at all times the sole and exclusive owner of all Intellectual Property Rights in the Customer brands, trade marks and logos, in each case with all Intellectual Property Rights in them (together the “Customer Property”).  

2. Trustana Property. As between the Parties, Trustana will remain at all times the sole and exclusive owner of the Trustana brands, trade marks and logos, and the System Data, in each case with all Intellectual Property Rights in them (together the “Trustana Property”).  

3. Assignment of Intellectual Property Rights. The Customer shall, upon full payment of all relevant fees, own the Intellectual Property Rights in the Deliverables and Trustana hereby irrevocably assigns (and shall procure the assignment of) all Intellectual Property Rights in the Deliverables to the Customer by way of present assignment of present and future rights, save that the Trustana Property shall remain the property of Trustana.

4. Infringement or misuse. Neither Party will take any steps to exploit or to register, assert or claim or to harm or render invalid the other Party’s interests in that other Party's property and will notify that other Party as soon as reasonably practicable following becoming aware of any actual or potential infringement or misuse of the same.

5. Further assurance. Each Party will take all such steps and execute all such documents as may be reasonably required by the other Party to give effect to the provisions of this clause 6 (Intellectual Property).

6. Feeback. Customer may provide Feedback to Trustana and Trustana will have full discretion to determine whether or not to use the Feedback. Customer hereby grants Trustana an irrevocable, perpetual, sublicensable, royalty-free license to use, incorporate and otherwise fully exercise and exploit any such Feedback without any obligation to compensate or reimburse Customer for the use of the Feedback.  

7. Data Protection.

1. Personal data. The Parties acknowledge and agree that Trustana is not required to process any personal data as part of the Services to be provided under the Agreement, unless agreed between the Parties in writing in advance.

2. Back up. The Customer shall be responsible for maintaining a back-up of all Customer Data provided to Trustana in connection with the Agreement.  

8. Confidentiality.

1. General. Each Party (the "Receiving Party") shall keep the other Party's (the "Disclosing Party") Confidential Information confidential and safeguard it accordingly and shall:

1.     not (and shall not permit any third party to) use such Confidential Information other than for the purpose of exercising its rights or performing its obligations under the Agreement (a "Permitted Purpose");

2.     not confirm, deny or disclose to any third party in any way, copy or adapt such Confidential Information except as expressly provided in clauses 8.2 and 8.3;

3.      take (at its own expense) all reasonable security precautions or other steps to protect the Confidential Information and ensure that the obligations of the Agreement are met; and

4.     notify the Disclosing Party immediately upon discovery of any unauthorised use or disclosure of the Confidential Information and will cooperate with the Disclosing Party to prevent further unauthorised use or disclosure.

2. Permitted disclosure. A Receiving Party may disclose the Disclosing Party's Confidential Information to: (i) such of its representatives as need to know the information for the Permitted Purpose and shall ensure that such representatives are aware of and comply with the provisions of this clause 8; and (ii) professional advisers engaged to advise the Receiving Party, provided that such advisers comply with the provisions of this clause 8 as if they were the Receiving Party and provided that the Receiving Party shall remain liable for any breach of this clause 8 by its professional advisers as if such breach were caused by the Disclosing Party.  

3. Disclosure by law. The restrictions in clause 8.1 shall not apply to the disclosure of Confidential Information required to be disclosed by law, court order or any government or regulatory authority by the Receiving Party, provided that the Receiving Party shall, to the extent legally permissible, notify the Disclosing Party of the circumstances and extent of the disclosure as early as reasonably possible before it is required to make such disclosure and shall take all reasonable action to avoid and limit such disclosure.

4. NDA. If the Parties enter into a separate non-disclosure agreement (“NDA”), then the NDA shall prevail in case of inconsistency between the clause 8 of this MSA and the NDA.

9. Warranties.

1. General. Each Party warrants and represents that: (a) it has full capacity and authority to enter into and perform the Agreement; (b) the Agreement is executed by a duly authorised representative of that Party; and (c) it has all the rights, licenses, and waivers necessary to comply with its obligations under the Agreement.  

2. Customer. The Customer warrants and represents that it has (and will procure from all applicable third parties) all access, rights, consents, waivers, permissions, licences and/or approvals required by Trustana in order to process Customer Data and perform the Services.  

3. Others. The Services are provided by Trustana to support and guide Customer only and shall not be construed as or relied on as professional or legal advice in any way whatsoever. The Deliverables could also include editorial, factual, typographical, technical, or formatting errors. Trustana makes no representations, warranties or guarantees, express or implied, that the Services or Deliverables provided are accurate, complete or up to date, satisfies any conditions of merchantability, non-infringement, or fitness for a particular purpose.

10. Liability.

1. Disclaimers. Nothing in the Agreement shall limit either Party's liability to the other for: (i) death or personal injury resulting from its negligence or that of its employees agents or subcontractors; (ii) fraud, fraudulent misstatement or fraudulent misrepresentation; (iii) any liability that cannot be limited or excluded by applicable laws; or (iv) its wilful misconduct or gross negligence.  

2. Further disclaimers. Subject to clause 10.1, neither Party shall be liable, (in contract, tort (including negligence) or for breach of statutory duty or in any other way) for: (i) any indirect or consequential losses; (ii) any loss arising from or in connection with loss of revenues, profits, data, contracts or business or failure to realise anticipated savings; or (iii) any loss of goodwill or reputation, in each case suffered or incurred by the other Party arising out of or in connection with the Agreement.

3. Limits. Subject to clauses 10.1 and 10.2, the liability of each Party to the other in respect of loss or damage suffered by a Party arising out of or in connection with the Agreement, whether under any indemnity, in contract, tort (including negligence) or for breach of statutory duty or in any other way, shall not in respect of all claims (connected and unconnected) under the Agreement exceed in aggregate 100% of the fees agreed under the applicable Order Form from which the claim arose.  

4. No double recovery. The Parties agree that nothing in the Agreement allows for any loss to be recovered twice.  

11. Termination.

1. General. Trustana shall be entitled to terminate the Agreement immediately on written notice to the Customer (for the Customer’s unremedied material breach) if the Customer fails to pay any fees owed to Trustana under or in connection with the Agreement within the period set out in the Order Form.  

2. Notice for termination. Either Party (the "Non-Defaulting Party") may terminate the Agreement (without prejudice to its other rights and remedies) by giving 45 business days written notice to the other Party (the "Defaulting Party") if: (a) the Defaulting Party commits a material or persistent breach of any of its obligations under the Agreement and, if the breach is capable of remedy, fails to remedy it within thirty (30) days from the date of receipt of notice from the Non-Defaulting Party requiring remedy; or (b) the Defaulting Party suffers an Insolvency Event.

3. Accrued rights and remedies. The termination of the Agreement shall be without prejudice to the rights and remedies of the Parties which may have accrued before the date of termination.  

4. Effect of expiry/termination. The Parties shall have no further obligations or rights under the Agreement after expiry or termination except that clauses 6, 8, 10, 11.4, 11.5, 12, 13 together with those other clauses, the survival or coming into force of which is necessary for the interpretation or enforcement of the Agreement or which are expressly or by implication intended to survive expiry or termination, shall continue to have effect.

5. Effect of expiry/termination. Following the termination of the Agreement (for any reason) or expiry of the Agreement, (a) the Customer shall promptly pay Trustana for all agreed expenses incurred and/or payable by Trustana in connection with the Services; and (b) both Parties agree not to make any untrue, derogatory, libellous or other inappropriate comment about the other (or any related entity or individual), including but not limited to comments made in relation to the other Party’s technology or the Parties’ partnership.

12. Disputes.

1. Negotiations. In the event of any dispute, controversy or claim arising out of or in connection with the Agreement, including any question regarding its existence, validity interpretation, enforcement, breach, or termination (“Dispute”), the Parties shall first attempt to amicably settle such Dispute through good faith negotiations by the Parties’ respective representatives.  

2. Singapore courts. If the Dispute is not resolved in this manner within thirty (30) Business Days following the date on which one Party has served notice on the other Party for the commencement of such discussions, then both Parties shall escalate the Dispute to senior representatives of each Party for resolution.  If, within ten (10) Business Days following the date on which a Party escalated the Dispute for resolution by the senior representatives, the Parties are unable to agree a resolution to the Dispute and both Parties are unwilling to agree an extension to the period for resolving the Dispute, then either Party shall be free to submit the Dispute to the courts of Singapore for resolution and the provisions of clause 13.9 (Governing Law and Jurisdiction) shall apply.  

3. Others. The Parties agree to follow the foregoing procedure for all Disputes which arise under or in connection with the Agreement, however this clause 12.3 shall not prevent either Party from applying to any court of competent jurisdiction in Singapore for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm.

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13. General Terms.  

1. Variation. Any variation of the Agreement must be in writing and signed by the Parties.

2. Assignment. Neither Party will assign, novate, sub-license, transfer, charge or deal in any other manner with the Agreement or any rights under either without the prior written consent of the other, except as part of an internal company amalgamation, reorganisation or reconstruction.  

3. Third Parties. Save where expressly provided, no third parties will have any rights to enforce or rely upon any term of the Agreement.  

4. No Waiver. No failure or delay by a Party to exercise any right or remedy (or part thereof) provided under the Agreement or by law will constitute a waiver of that or any other right or remedy.

5. Entire Agreement. The Agreement and the documents referred to in it contain the entire agreement between the Parties relating to the subject matter hereof and supersedes all prior agreements, arrangements and understandings between the Parties relating to that subject matter.

6. Force Majeure. Neither Party will be liable to the other for any delay in performing or failure to perform any of its obligations (other than a payment obligation) under the Agreement as a result of any cause outside its reasonable control. Subject to the affected Party promptly notifying the other Party in writing of the cause and the likely duration of the delay or non-performance and provided that the affected Party shall use reasonable endeavours to limit the effect of such event on such other Party, such delay or failure, to the extent affected by the cause, will not constitute a breach of the Agreement and the time for performance of the affected obligation(s) will be suspended during the period the cause persists. Notwithstanding the foregoing, if performance is not resumed within 90 days after that notice, the non-affected Party may by written notice terminate the Agreement with immediate effect.

7. Severability. If any court or competent authority finds that any provision of the Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision will, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Agreement will not be affected.

8. Notices. Unless specifically provided otherwise, any notice given to a Party under or in connection with the Agreement shall be delivered by hand or sent by prepaid registered post or next working day delivery service to the other Party’s address set out at the top of the Agreement or email address as the recipient may have notified to the sender.    

Any such notice shall be deemed to have been received: (a) if delivered by hand or by courier, at the time when it is so duly acknowledged receipt by the receiving party;(b) if by prepaid registered post, five (5) days after posting thereof; or (c) if by email, on the date of transmission provided that there is sufficient proof to support the same.

9. Governing Law and Jurisdiction. The Agreement and any dispute or claim in connection with it will be exclusively governed by the laws of Singapore and subject to the exclusive jurisdiction of the Singapore courts.

CONFIDENTIAL INFORMATION OF TRUSTANA SINGAPORE PTE. LTD.

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