1. DEFINITIONS AND INTERPRETATION

1.1        In this Agreement, the following terms and expressions shall bear the meanings set out opposite them respectively as follows:

Terms/Expressions                                          Meanings

“Acquiring Bank”	Such bank or other financial institution: (i)         identified by SCCP as collaborating with SCCP to act as the acquiring bank which shall process Customer Payments in connection with the use of Swiff Services; and (ii)         with whom the Merchant  (a)    has entered into an Acquiring Bank Merchant Agreement; and (b)   has opened and maintains, throughout the Term, an account pursuant to Clause 2.1.1.
“Acquiring Bank Merchant Agreement”	Such merchant agreement between the Acquiring Bank and the Merchant on the processing of Customer Payments on such terms as required by and agreed with the Acquiring Bank.
“Agreement”	This agreement between the Parties, including the terms of: (i)          this Swiff Master Services Agreement; (ii)         the Service Order; and (iv)        the Swiffbook.
“Clearing House”	Such third party as may be appointed by SCCP to provide the service of reconciling payment settlement records between the Acquiring Bank, Customer Payment Account Issuer and the Merchant’s Bank (where these are not one and the same) in relation to Customer Payments.
“Commencement Date”	The date of commencement of the Swiff Services as set out in the Service Order.
“Customer”	Such person or legal entity: (i)          with whom the Merchant transacts in relation to the supply of goods and/or services or otherwise, in consequence of which a payment obligation arises on the part of such person or legal entity to the Merchant; and (ii)         who has a Customer Payment Account with a Customer Payment Account Issuer.
“Customer Instruction”	Any request, enquiry, authorization or instruction, in whatever form and howsoever sent, given or transmitted or apparently given or transmitted by a Customer in connection with or for the purpose of initiating or facilitating a Merchant Transaction or Customer Payment to be made to the Merchant through use of the Swiff Services or the Swiff System.
“Customer Payment”	A payment due and payable by a Customer to the Merchant in consequence of a Merchant Transaction.
“Customer Payment Account”	The account opened and maintained by a Customer with its Customer Payment Account Issuer and through which the Customer makes payment of monies owed to third parties such as the Merchant, whether being a: (i)          a credit card or debit card account; (ii)         a bank account; (iii)        a billing account; or (iv)        otherwise.
“Customer Payment Account Issuer”	The party with whom a Customer opens and maintains the Customer Payment Account, whether being: (i)          an issuing bank or financial institution of the Customer's credit card or debit card; (ii)         a bank or financial institution holding funds to the credit of the Customer; (iii)        a service provider of the Customer with a regular billing account with the Customer; or (iv)        otherwise.
“Electronic Communication”	Each transmission of data, information, payment requests, refund requests, instructions, authorisations, messages and other communication effected via the Swiff System whether through the Internet or otherwise.
“Internet”	The world-wide network of computer systems interconnected and accessible by software protocols and telecommunication links, including the world wide web of electronic web-sites.
“Merchant Information”	All information provided by the Merchant to SCCP pursuant to this Agreement or in connection with the Merchant's use of the Swiff Services and/or the Swiff System, whether prior to the date hereof or from time to time thereafter.
“Merchant Instruction”	Any request, enquiry, authorization or instruction, in whatever form and howsoever sent, given or transmitted or apparently given or transmitted by the Merchant in connection with or for the purpose of initiating or facilitating a Merchant Transaction or receiving a Customer Payment from a Customer through use of the Swiff Services or the Swiff System or otherwise in relation to the Merchant's Swiff Account.
“Merchant Mark”	Any of such trade names, marks, signs, logos or other indicia of origin (including the Merchant's name) used by the Merchant in connection with its business and/or its goods and/or services from time to time.
“Merchant Outlet”	The physical retail shop or outlet owned and/or operated by the Merchant, at, from or through which the Merchant offers goods and/or services to and/or otherwise transacts with Customers and/or where Merchant Transactions are concluded, as identified in the Service Order and in relation to which the Swiff Services thereunder are required.
“Merchant System”	The Merchant's electronic retail sales management system deployed and used at the Merchant Outlet.
“Merchant Transaction”	A transaction entered into by the Merchant with a Customer whether in relation to the sale and purchase of goods and/or services or otherwise, in consequence of which a Customer Payment becomes due and payable by or from such Customer to the Merchant.
“Merchant’s Bank”	The party with whom a Merchant opens and maintains the Merchant’s Bank Account, whether being the same entity as the Acquiring Bank or otherwise.
“Merchant's Bank Account”	The account opened and maintained by the Merchant with the Merchant’s Bank for the purpose of receiving Customer Payments (less applicable deductions) and into which Customer Payments (less applicable deductions) may be remitted.
“Merchant's Swiff Account”	The account with SCCP in the name of the Merchant [as identified by a unique reference [alpha-numeric] code issued by SCCP – the SWIFF ID] for the use of Swiff Services under which the Merchant's activities and/or transactions relating to its use of the Swiff Services are effected and recorded.
“Parties”	SCCP and the Merchant collectively and “Party” shall mean either one of them as the case may be.
“Security Device”	A security device, feature and/or facility made available to the Merchant for use in connection with the Swiff Services and/or the Swiff System including without limitation every user ID, password and/or authorisation or authentication code issued for the Merchant's use under the Merchant's Swiff Account.
“Service Order”	The Swiff service order form which makes reference to this Agreement and sets out the Swiff Services contracted for by the Merchant and the terms applicable thereto, duly executed by both the Merchant and SCCP.
“Swiffbook”	The book(s), manual(s), publication(s) and/or other literature issued and made available by SCCP to the Merchant (in any printed, electronic or other form or medium) setting out the operational requirements and processes in connection with the use of the Swiff Services and the operation of the Swiff System as may be amended from time to time by SCCP.
“Swiff Fees”	Fees payable by the Merchant to SCCP for the provision of Swiff Services, more particularly set out in the Service Order,
“Swiff Intellectual Property”	The items described in Clause 11.1 as comprising the Swiff Intellectual Property, whether or not registered.
“Swiff Mark”	Any one of the trade names, marks, signs, slogans, logos, emblems, designs, labels, symbols or other indicia of origin identified and/or used by SCCP in connection with the provision of the Swiff Services, the Swiff System and/or the facilities offered thereby including but not limited to the word "Swiff", “Swiffpay” and/or such other derivatives thereof as SCCP may specify from time to time.
“Swiff Mobile Device”	A mobile device supplied or made available by or on behalf of SCCP to the Merchant for use at the Merchant Outlet for the purpose of processing Customer Payments through use of the Swiff System and which device represents a mobile point-of-sales terminal at the Merchant Outlet.
“Swiff Services”	Services provided or to be provided by SCCP to the Merchant and as identified in the Service Order, so as to enable and facilitate the processing of Customer Payments from roving point-of-sales terminals at the Merchant Outlet through use of the SCCP System and Swiff Mobile Devices, whether in relation to SCCP’s: (i)      software and/or system development, customisation, configuration and/or implementation services for interfacing the Merchant System with the Swiff System; (ii)     supply and rental of Swiff Mobile Devices; and/or (iii)   processing of Customer Payments through use of the Swiff System, including authentication and/or transmission of any Customer Instruction or Merchant Instruction through use of Swiff Mobile Devices.
“Swiff System”	The computerised system (including all front-end and back-end software, hardware, equipment, Swiff Mobile Devices, Security Devices, cabling and data transmission facilities) operated, made available, supplied and/or used by or on behalf of SCCP for the purpose of providing the Swiff Services.
“Swiff Transaction”	Each Customer Payment transaction processed through use of the Swiff System.
“Swiff Transaction Fee”	The transaction fee payable to SCCP for each Swiff Transaction.
“Term”	The term commencing from the Commencement Date and as specified in the Service Order during which SCCP shall provide and the Merchant shall use the Swiff Services.

1.2        Expressions and Usage

1.2.1     Any of the terms and expressions as defined in the singular in Clause 1.1, if and when used in the plural in this Agreement, shall be accordingly construed in the plural based on the respective meanings given to them in Clause 1.1.

1.2.2     Unless otherwise specified, references in this Agreement to:

(i)         words importing the singular shall be construed as importing the plural and vice versa as the context requires;

(ii)         words denoting a gender shall be construed as denoting any other gender as the context requires; and

(iii)        Clauses shall mean the clauses of this Agreement;

(iv)        “hereof”, “herein”, “hereto”, “hereby”, “hereunder”, “herefrom” and other similar expressions shall mean the same in the context of and with reference to this Agreement; and

(v)        “in writing” shall mean any communication in any written form or means including by electronic mail, facsimile transmission and traditional paper form.

1.3        Titles and Divisions

Title headings and the division of provisions into sections and clauses are for convenience only and shall not be considered in the interpretation of the substantive provisions of this Agreement.

1.4        Amendment and Variation

None of the provisions herein may be varied or amended except by the written agreement of both Parties signed by the respective authorised representatives thereof.

1.5        Severability

In the event any court or tribunal of competent jurisdiction determines that any provision of this Agreement or part thereof is invalid, unenforceable or illegal for any reason, the said provision or part thereof shall be deemed to be deleted herefrom and such invalidity, unenforceability or illegality shall not affect the remaining provisions of this Agreement which shall remain in full force and effect.

1.6        Waiver

No forbearance or delay by either Party in enforcing its respective rights will prejudice or restrict the rights of that Party, and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach.

1.7        Service Order

1.7.1     This Agreement shall be effective only in the context of a Service Order and references herein to “the Agreement” or “this Agreement” shall mean this Agreement as read with and including such Service Order, which shall be deemed to form part of this Agreement.

1.7.2     Subject to Clause 4.2, the Parties may from time to time:

(i)         replace a Service Order with a substitute Service Order, in which case the substitute Service Order shall supersede the earlier one which it replaces;

(ii)         supplement or modify any duly issued Service Order by executing a supplemental Service Order making reference to the Service Order to which it relates and the said supplemental shall be read as constituting one Service  Order with that to which it relates; or

(iii)        execute other distinct Service Orders, each of which shall be read together and in conjunction with the terms of this Agreement and shall form the subject of a separate, independent and binding contract between the Parties.

1.8        Exhaustive Statement

Subject to Clauses 1.4 and 1.7, the terms herein and the Service Order constitute the entire and exclusive statement of the Parties’ agreement and shall supersede all other understandings correspondence and agreements (whether oral or written) on the subject matter herein. In the event of a conflict or inconsistency between the terms of this Agreement and the documents referred to herein, the terms of the following documents shall prevail, in order of priority:

1.8.1      the terms of Clauses 1 to 18 herein;

1.8.2      the Service Order; and

1.8.3      the Swiffbook.

2.         DISPUTES AND DISCREPANCIES

2.1        In the event of a dispute relating to the receipt or transmission of any Customer Instruction, Merchant Instruction or other Electronic Communication relating to any Merchant Transaction, the records thereof generated by the Swiff System will be binding on the Parties and conclusive of the accuracy of the matters stated therein, save for manifest error and subject to Clause 2.2.

2.2        In the event the Merchant disputes the contents of any transaction record, it shall notify SCCP thereof in writing within 3 calendar days of the same becoming available as aforesaid, after which the Merchant shall be deemed to have accepted and shall not be permitted to dispute the said transaction record.

2.3        The Merchant undertakes to co-operate with and assist SCCP in good faith to investigate any alleged discrepancy between any record generated by the Swiff System disputed by the Merchant and the Merchant's own records and to make available to and grant SCCP access to such information and documents in the Merchant's possession as may be required by SCCP to resolve the said discrepancy.

3.         RIGHTS OF SCCP

3.1        SCCP has the right, and shall continue to reserve the right (but shall not be obliged) to:

3.1.1     verify all and any Merchant Information provided by or on behalf of the Merchant if SCCP has any reason to suspect that inaccurate information or data has been given or to request additional information and data from the Merchant as SCCP deems appropriate;

3.1.2     verify the identity of any person purporting to give any Customer Instruction or Merchant Instruction or the source and origin of the same and SCCP may defer relying or acting upon any Customer Instruction or Merchant Instruction unless and until SCCP is satisfied as to the matters on which SCCP has sought verification regardless of whether SCCP is under any obligation to act upon or carry out that Customer Instruction and/or Merchant Instruction, as the case may be;

3.1.3     prevent or restrict the Merchant, any of the Customers, the Acquiring Bank, the Merchant’s Bank or the Customer Payment Account Issuer from accessing or using its services or otherwise transmitting Electronic Communications through the Swiff System for such reasons as it deems appropriate; and

3.1.4     do all such acts as may be necessary to ensure the satisfactory provision of the Swiff Services.

4.         EXCLUSIONS

4.1       Without prejudice and subject to Clause 3, SCCP shall not be responsible in any way for:

4.1.1     any inaccuracy of the Electronic Communications or any error in the transmission of the Customer Instruction or Merchant Instruction as the case may be, caused by factors beyond the reasonable control of SCCP;

4.1.2     any goods and/or services supplied to or ordered or purchased by any Customer from the Merchant notwithstanding that the Electronic Communications in respect of the Merchant Transactions relating thereto were routed through the Swiff System;

4.1.3     any disputes or claims relating to the goods and/or services supplied to or ordered or purchased by any Customer from the Merchant under any Merchant Transaction or the failure or delay by the Merchant in delivering or performing the same or otherwise in respect of any Merchant Transaction;

4.1.4     any delay in or failure or insufficiency of payment by the Customer or the Customer Payment Account Issuer of the required Customer Payment to (or receipt thereof by) the Merchant or the settlement process between the Customer Payment Account Issuer, the Acquiring Bank and/or the Merchant’s Bank for any reason whatsoever;

4.1.5     any acts or omissions of the Acquiring Bank, the Merchant’s Bank, the Customer Payment Account Issuer, any Customer or other user of the Swiff System or the Swiff Services including in respect of any non-compliance with the directions of SCCP.

4.2        The Merchant agrees that it shall not involve SCCP in any way in any matter relating to:

4.2.1     the delivery of the goods and/or performance of the services under or any claim or dispute arising in connection with any Merchant Transaction or the performance thereof and shall look to and/or settle the same directly with the relevant Customer, or the Customer Payment Account Issuer as the case may be; or

4.2.2     the entry into, execution or performance of the Acquiring Bank Merchant Agreement or any claim or dispute arising in connection therewith and shall look to and/or settle the same directly with the Acquiring Bank; or

4.2.3     the opening, maintenance or operation of the Merchant's Bank Account or any claim or dispute arising in connection therewith and shall look to and/or settle the same directly with the Merchant's Bank; and/or

all without recourse to SCCP and shall indemnify and keep SCCP harmless from and against any and all claims made by any Customer, Customer Payment Account Issuer, the Acquiring Bank and/or the Merchant's Bank, as the case may be, in respect thereof.

5.         OBLIGATIONS AND WARRANTIES OF MERCHANT

5.1        Undertakings and Warranties

The Merchant hereby represents, warrants and undertakes:

5.1.1     that the Merchant has full legal capacity and authority and has obtained all authorisations, consents, licences or approvals (whether under applicable laws or otherwise) required to accept, agree to and perform this Agreement and to receive and use the Swiff Services made available by SCCP from time to time;

5.1.2     that all Merchant Information is accurate, truthful and complies with the requirements of SCCP (if any) and is and shall be further maintained and updated promptly by the Merchant so as to ensure the accuracy of the Merchant Information at all times;

5.1.3     not to resell, sub-lease, offer or otherwise make available the Swiff Services or part thereof to any third party except as expressly permitted under this Agreement whether or not for money's worth;

5.1.4     not to do any act which may impose an unreasonably or disproportionately large load on the infrastructure or facilities or interfere with the proper working of the Swiff System whether by the use of any device or software;

5.1.5     not to undermine the security or integrity of the Swiff System and/or the computer systems or networks used by SCCP in any manner whatsoever, including without limitation introducing into the said systems or networks any viruses, Trojan horses, time-bombs or other disabling devices intended to detrimentally interfere, damage, surreptitiously intercept or expropriate such systems or networks;

5.1.6     not to gain or attempt to gain unauthorised access to the computer systems or networks of SCCP;

5.1.7     not to engage in the operation of any unlawful business and not use or permit any person to use the Swiff Services for any unlawful purpose or in contravention of any laws, or rules, byelaws or regulations of any government or quasi-government body or otherwise collude with, abet or facilitate any person to do so;

5.1.8     to keep the Merchant System properly configured and maintained at all times so as to meet the requirements specified by SCCP for the purposes of enabling the Merchant System to be interfaced and be communicable with the Swiff System (as may be updated from time to time) throughout the applicable Term; and

5.1.9     generally to comply with the directions or requirements of SCCP in the use of the Swiff Services, the Swiffbook and this Agreement.

5.2       Use of Swiff Services

In using the Swiff Services, the Merchant agrees and undertakes to:

5.2.1     prominently display the Swiff Marks and notify and promote the availability and use of the Swiff Services at the Merchant Outlet and elsewhere as may be appropriate and in good taste and that it shall, at its own cost and expense, comply with SCCP's directions and stipulations as to changes, modifications, representations, colour scheme or such other alterations that are to be effected to any of the Swiff Marks and the use thereof as shall be notified by SCCP to the Merchant from time to time;

5.2.2     be solely responsible for the operation and use of the Merchant's Swiff Account and the use of the Swiff Services under the Merchant's Swiff Account, whether the same is used by the Merchant by any other person with or without the Merchant's authorisation;

5.2.3     comply with the provisions of the Swiffbook; and

5.2.4     honour its obligations under and relating to every Merchant Transaction and the Merchant's Bank Account and keep SCCP harmless from and indemnified against any matter or dispute arising with -

(i)         a Customer in connection with a Merchant Transaction and/or the performance thereof; and/or

(ii)        the Merchant's Bank in connection with the Merchant's Bank Account and/or the operation thereof.

5.3       Use of Swiff Mobile Devices

The Merchant acknowledges, agrees and undertakes that:

5.3.1     SCCP’s supply of Swiff Mobile Devices to the Merchant is by way of rental or hire only;

5.3.2     title to all Swiff Mobile Devices supplied to the Merchant shall remain vested in SCCP and shall not pass to the Merchant under any circumstances and the Merchant shall not mix the Swiff Mobile Devices with its own property or assets such as to suggest or give the impression that the Swiff Mobile Devices belong to the Merchant;

5.3.3     the Merchant shall use the Swiff Mobile Devices only in such manner as directed or allowed by SCCP whether in the Swiffbook or otherwise and only for the purposes of facilitating the processing of Customer Payments through the Swiff System and/or such other purposes as may be authorised by SCCP;

5.3.4     except with the express written instruction of SCCP, the Merchant shall not tamper with, adjust or reconfigure any of the Swiff Mobile Devices in any way including any labels, legends, signs or insignia affixed by or with the authority of SCCP to the Swiff Mobile Devices;

5.3.5     the Merchant shall immediately return to SCCP any and all Swiff Mobile Devices in its possession upon termination or suspension of this Agreement for any reason whatsoever or otherwise upon written demand issued by SCCP for any reason whatsoever; and

5.3.6     all risks of loss or destruction of or damage to any of the Swiff Mobile Devices shall lie with the Merchant and the Merchant shall immediately notify and compensate SCCP for any such loss or destruction of or damage to such Swiff Mobile Devices at the replacement cost thereof as advised by SCCP, fair wear and tear excepted.

5.4       Agency

The Merchant further agrees and undertakes that in providing the Swiff Services, SCCP acts in its capacity as and the Merchant hereby authorises and appoints SCCP as its duly authorised agent on the Merchant's behalf to:

5.4.1     receive and transmit Customer Instructions and Merchant Instructions between the Customer and the Merchant in relation to Customer Payments (including if necessary, the applicable Merchant Transactions) through use of the Swiff System;

5.4.2     provide such information or data as it deems appropriate to facilitate the processing and settlement of Customer Payments,

and the Merchant agrees to authorise and hereby authorises SCCP to use the Merchant's name for any of the above purposes if SCCP deems fit or necessary and the Merchant further agrees to ratify and hereby ratifies all and any acts, omissions and decisions of SCCP pursuant to or in connection with the aforesaid.

5.5        Security

The Merchant further agrees and undertakes that it shall:

5.5.1     be responsible for and maintain the integrity and safety of all Security Devices;

5.5.2     limit access to and use of the Security Devices only to those of the Merchant's personnel as shall have been trained on the proper use thereof and duly authorised and responsible for the such proper use thereof on behalf of the Merchant;

5.5.3     ensure the use, safe-keeping and maintenance of the Security Devices in accordance with such directions as may be given by SCCP in respect thereof;

5.5.4     ensure that all communications of the Merchant are accurate, true and correct and issued only with the proper authorisation of the Merchant and in any event not dispute or deny any communication issued through or under the Merchant's Swiff Account and/or the validity and legitimacy thereof and/or SCCP's reliance thereon and acts and/or omissions pursuant thereto;

5.5.5     immediately notify SCCP in writing upon its discovery that the Merchant's Swiff Account or any of the Security Devices has been compromised in any manner or that any communication given through or under the Merchant's Swiff Account or purportedly by or on behalf of the Merchant was not authorised and co-operate and comply with such directions as SCCP may give in consequence thereof.

6.        INDEMNITY

Without derogating from nor limiting Clauses 3.3, 3 and/or 5.2.4, the Merchant shall defend and indemnify and hold harmless SCCP and its licensors/operators (if any) fully against any claims, actions, damages, expenses liabilities or adverse consequences arising from any breach of its obligations or representations and/or warranties in this Agreement and in respect of the use of the Swiff System and/or the Swiff Services.

7.        TERM AND TERMINATION

7.1      This Agreement shall commence from the date hereof and take effect in relation to the Service Order from the effective date and for the Term thereof as stated in the Service Order.

7.2      Notwithstanding Clause 4.1, either Party (“the Notifying Party”) shall be entitled to forthwith terminate this Agreement by written notification thereof to the other Party (“the Notified Party”) in relation to:

7.2.1   all (but not only one or some) Service Orders if the Notified Party -

(i)         has been in material breach of any of the provisions of the above Clauses 1, 2 and/or 5; or

(ii)         commences or has commenced against it any liquidation or winding up proceedings or appoints or has appointed over its assets or undertaking any receiver or judicial manager or makes any arrangement or composition with its creditors with a view to prefer any of them other than in the ordinary course of business; or

(iii)        ceases to carry on business or is in imminent likelihood of ceasing to carry on business; OR

7.2.2   all (but not only one or some) Service Orders without assigning any reason therefor provided -

(i)         the Notifying Party has previously given to the Notified Party at least 1 months' written notice of its intention to terminate this Master Services Agreement (“the Notice Period”); and

(ii)         upon the expiry of the Notice Period, the Term in every Service Order shall have expired; OR

7.2.3   any particular Service Order if the Notified Party breaches any of the terms of that Service Order which, if capable of being remedied, has not been remedied within a period of 30 days following written notice by the Notifying Party to so remedy the said breach.

7.3      In addition to its right of termination under Clause 4.2 as the Notifying Party, in the event SCCP determines in its discretion that it shall no longer be able to supply or it becomes no longer feasible for SCCP to supply the Swiff Services under a particular Service Order on the terms thereof, SCCP shall be entitled to terminate the said Swiff Services by giving to the Merchant at least 1 months' written notice of its intention to so terminate the said Swiff Services.

7.4      In the event of:

7.4.1   termination pursuant to Clause 4.2.1 or Clause 4.2.2, this Master Services Agreement and all Service Orders which make reference to this Master Service Agreement shall be terminated and -

(i)         each Party shall immediately cease representing that it is associated with the other in any manner including in the manner as otherwise contemplated under Clause 5.2.1;

(ii)         the Merchant shall forthwith cease using all the Swiff Marks and SCCP shall forthwith cease using all the Merchant Marks in any manner whatsoever; and

(iii)        the Merchant shall forthwith return to SCCP all –

(a)        Swiff Mobile Devices supplied by SCCP to the Merchant; and

(b)        all documents and materials provided by SCCP to the Merchant and all copies of such material and any other material containing confidential information about the Swiff Services, or the Swiff System, including the Swiffbook (or if so directed by SCCP in writing, destroy and certify to SCCP in writing the destruction of such documents and materials);

7.4.2   termination pursuant to Clause 7.2.3 or Clause 7.3 or expiry of the Term under any Service Order –

(i)         the Agreement in relation only to the terminated or expired Service Order in question shall be terminated without affecting the Agreement in relation to any other Service Order which is still in subsistence; and

(ii)         the Merchant shall return to SCCP all Swiff Mobile Devices supplied pursuant to that Service Order.

7.5      Upon termination of this Agreement for any reason and in any event:

7.5.1   SCCP shall immediately terminate the provision of the Swiff Services affected by such termination;

7.5.2   all outstanding payments due from the Merchant pursuant to the terms of this Agreement shall be settled within 7 days of the effective date of termination; and

7.5.3   none of the rights or liabilities of either Party accrued as of the effective date of termination will be in any way affected.

8.        DISCLAIMER AND LIMITATION OF LIABILITY

8.1      The Swiff Services and use of all related facilities (including the Swiff System and the Swiffbook) are provided on an "as is, as available" basis without any warranties whether express or implied. SCCP expressly excludes and disclaims any and all warranties, including without limitation warranties of merchantability, fitness for a particular purpose, accuracy, availability, non-infringement or implied warranties from course of dealing or usage of trade to the extent permissible by applicable law.

8.2      Notwithstanding the obligations of SCCP hereunder, the Merchant agrees and acknowledges that SCCP shall not, under any circumstances, be responsible nor shall SCCP be held liable for:

8.2.1   any special, consequential or incidental damages including but not limited to lost profits, lost business, lost opportunities or lost data howsoever arising;

8.2.2   any amount which exceeds S$500 in aggregate for SCCP’s total liability for all claims arising under or in connection with this Agreement and in relation to all Service Orders, save for SCCP liability for personal injury or death caused directly by its negligence;

8.2.3   any inability to receive, send or transmit instructions, data, text, graphics, animation, video, sound, images, music, songs, information and other materials, or part thereof or any loss or inaccuracy in such data or other materials or any delay or disruption in such retrieval or transmission through the Swiff System due to no fault of SCCP including any breakdown, inoperability, defect or fault in or of any communication network, equipment, infrastructure, cables or other facilities or any part of the Internet;

8.2.4   any loss of data or delay or failure in the transmission of information due to any technical failure of the software, hardware or other facilities related to the Merchant System or any part or parts thereof or loss or damage whether direct or indirect arising from the introduction of viruses into the Merchant System due to any causes inherent in or otherwise due to or occasioned by routing data through the Internet or otherwise through the public telecommunication systems or any other communication network or system;

8.2.5   the contents or applications on the Merchant System or any computer or other system or facility of the Merchant nor any services thereby provided or used by the Merchant;

8.2.6   any consequences arising from non compliance with the directions and/or instructions of SCCP in connection with the use of the Swiff Services or the Swiff System;

8.2.7   any act or omission perpetrated by the Merchant, any of its authorised users or any of the Merchant's customers, in connection with the Merchant's use of the Swiff Services.

8.2.8   any Swiff Services or assistance provided by or other action taken or omission done by SCCP pursuant to or in accordance with the express instructions or directions of the Merchant and/or the consequences thereof.

9.        ASSIGNMENT

This Agreement and all rights of SCCP hereunder may be assigned or transferred by SCCP and shall enure for the benefit of the successors and assigns of SCCP.  This Agreement may not be assigned by the Merchant in whole or in part, directly or indirectly, including by transfer of the shares in or assets of the Merchant or otherwise, without the prior written consent of SCCP.

10.        FORCE MAJEURE

10.1      Neither Party will be liable to the other Party for any delay in or failure to perform its obligation (other than an obligation for the payment of money) as a result of any cause beyond its reasonable control, including but not limited to any act of God, war, labor strike, terrorist act, act of sabotage by a third party, riot, fire, flood, earthquake, natural or unnatural disaster, any law, order, regulation or other action of any governing authority or agency thereof, or failure of the Internet (including third party telecommunication facility).

10.2      If such delay or failure continues for at least 30 consecutive days, either Party will be entitled to forthwith terminate this Agreement in relation to the Service Order affected by the same in which event the provisions of Clauses 7.4.2 and 7.5 shall apply.

11.       GOVERNING LAW AND DISPUTE RESOLUTION

11.1      This Agreement is governed and shall be construed in accordance with the laws of Singapore.

11.2      The Parties agree to resolve any dispute or difference arising between them in respect of or under this Agreement in a spirit of utmost good faith and conciliation.

11.3      If the Parties fail to resolve the dispute or difference between them pursuant to Clause 11.2 within 60days after the said dispute or difference arises, the Parties agree to submit such dispute or difference for resolution by mediation before such mediator as shall be mutually acceptable to both of them and to:

11.3.1   give their full co-operation to such mediation process; and

11.3.2   be legally bound by the finding of such mediation following the written acceptance thereof by both Parties.

11.4      If:

11.4.1   the Parties fail to commence the processes under Clause 11.3 within 60days following the identification of the dispute or difference in question; or

11.4.2   having commenced the said processes, the Parties fail to resolve the dispute or difference between them pursuant to Clause 11.3 within 60days after the said dispute or difference has been submitted to the processes thereunder,

the said dispute or difference shall be referred to and finally resolved by arbitration as provided in Clause 11.5.

11.5      The said arbitration shall be conducted:

11.5.1   in accordance with the Rules of the Singapore International Arbitration Centre (“SIAC Rules”), which are incorporated by reference into this Clause;

11.5.2   before a single arbitrator appointed pursuant to the provisions of the SIAC Rules for the appointment of such single arbitrator and each Party expressly agrees and consents to this procedure for the appointment of the single arbitrator;

11.5.3   with the seat, or legal place of arbitration, in Singapore; and

11.5.4   with proceedings conducted in the English language;

and service of any Notice of Arbitration made pursuant to this Clause shall be in accordance with the SIAC Rules at the postal address given for the sending of notices under this Agreement at Clause 12.

11.6      Nothing herein shall preclude either Party from instituting legal proceedings to seek or obtain any interim or injunctive relief.

12.        NOTICES AND PUBLICITY

12.1      Unless expressly stated otherwise in this Agreement, all statements, documents, correspondence and notices under this Agreement shall be in writing and may be delivered by hand, registered mail, facsimile transmission or electronic mail:

12.1.1   if to SCCP, to   -           15A Duxton Road

Singapore 089481

Facsimile: +65 6222 6883

Email: [email protected]

Attention: etienne

12.1.2   if to the Merchant - to the address, facsimile number and email address stipulated and to the attention of the person stated as aforesaid in this Agreement.

12.2      Notice will be deemed given:

12.2.1   upon delivery if sent by hand delivery;

12.2.2   3 days after posting if sent by postage prepaid mail;

12.2.3   upon confirmation of completion of facsimile transmission by the facsimile device or machine used by the sending Party to so transmit the notice in question if sent by facsimile transmission; and

12.2.4   24 hours after completion of transmission if sent by electronic mail unless a contrary message or other indication is issued by the system administrator about the status of the transmission.