Effective Date: 1 September 2021
Elixus Global Pte. Ltd., on behalf of itself, its subsidiaries and affiliates (“Elixus”) have been engaged by you, the Customer, to carry out creative services. Elixus provides these Services (as defined below) on this Terms of Service (“TOS”) and as detailed in the relevant Order Form. Any additional terms and conditions detailed in the Order Form will be deemed to be incorporated into this TOS by reference. This TOS and the relevant Order Form will collectively be referred to as the “Agreement”.
This TOS will be effective as of the date the Customer clicks “Accepted and Agreed To” or signs an Order Form with Elixus.
“Order Form” means a contract signed between the relevant contracting Elixus entity and the Customer for the use of Services.
“Business Day” means a day other than a Saturday, Sunday or statutory public holiday in the country where the relevant contracting Elixus entity is incorporated.
“Fees” mean the fees agreed between the Elixus and the Customer as set out in the Order Form.
“Intellectual Property” means any patent, design, trademark, copyright, know-how, trade secret, and any other proprietary right or form of intellectual property (whether protectable by registration or not) in respect of any technology, concept, idea, data, program or other software (including, without limitation) source and object codes, specification, and process.
“Services” means the services to be performed by Elixus as detailed in the relevant Order Form.
2.1 The Customer has engaged Elixus to undertake the Services on the terms and conditions set out in the Agreement.
2.2 Elixus will perform the Services with reasonable care, skill, and diligence and will ensure that any third parties engaged by Elixus to assist with providing the Services also act with reasonable care, skill and diligence.
2.3 The Customer shall pay Elixus the Fees and any applicable taxes and/or charges for the Services.
3.1 The Customer represents and warrants that the Customer owns and/or has the right to use or grant Elixus the rights and license of all Intellectual Property in any information, text, image, photos, media, graphics, videos, logos, brand name, representation or other contents (“Materials”) being provided by the Customer so that Elixus can use the Materials in providing the Services without infringing any Intellectual Property or privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity. Elixus reserves the right to terminate the Agreement immediately if the Customer is found to be infringing any Intellectual Property right.
3.2 The Customer grants Elixus a non-exclusive license to use, alter, amend, vary, publicly perform, publicly display, reproduce, distribute and/or change the Materials to the extent necessary to enable Elixus to provide the Services.
3.3 To the extent that Elixus’ provision of the Services creates a new copyright work, that new copyright work will be owned by the Customer.
3.4 The Customer grants Elixus a non-exclusive license to incorporate the Materials, the results of Elixus’ Services (including but not limited to any new copyright work created thereby), and Customer’s name, logo and brief description of the business relationship between Elixus and the Customer (including but not limited to the Services provided pursuant to the Agreement but not including pricing information) in Elixus’ marketing and advertising material including but not limited to websites owned or operated by Elixus (or owned or operated by third parties on behalf of Elixus), press kits and presentations to third parties.
3.5 The Customer shall indemnify Elixus against all damages, losses, costs, and expenses suffered or incurred by Elixus as a result of the Materials which the Customer has contributed or approved being in contravention of any legislation, decency, marketing rules or any action that any such Materials infringe any Intellectual Property rights of a third party.
3.6 Elixus may use the audio content within the Customer’s provided creative advertisements, which is under license through one of Elixus’ audio content providers, and “as is” without warranty. This audio content is provided to the Customer subject to the terms of that license. All Elixus’ audio content licenses are non-exclusive, limited, non-sublicensable, non-transferable and non-assignable. The Customer must only use the audio content for the purposes for which it is provided and in the form provided to the Customer under the Agreement, and Elixus will not provide or sell the source file of the audio content to the Customer as a standalone file.
3.7 The Customer shall not:
4.1 The Customer represents and warrants to Elixus that:
4.2. The Customer agrees to defend, indemnify and hold harmless Elixus and its licensee and licensors, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, fines, penalties and expenses (including but not limited to attorney’s fees), resulting from or arising out of any failure by the Customer to comply with its obligations contained in the Agreement and/or any breach of Customer’s representations and warranties contained in this TOS.
4.3 In no event shall Elixus, nor its directors, employees, partners, agents, suppliers, or affiliates, be liable for any indirect, incidental, special, consequential or punitive damages, including without limitation, loss of profits, data, use, goodwill, or other intangible losses, resulting from a breach by Elixus of its obligations under the Agreement.
4.4 Notwithstanding any contrary provision contained in the Agreement, Elixus’ maximum liability to the Customer under or in connection with the Services (whether in contract, tort or otherwise) will not exceed the aggregate of all Fees paid or payable by the Customer for the Services.
5.1 The Agreement will take effect from the date of signing of the Order Form and will remain in effect until the Fees have been paid in full to Elixus and the Services have been provided to the Customer.
5.2 Either Party may terminate the Agreement without cause by giving 14 days prior written notice. If the Customer terminates the Agreement, there shall be no refund of the Fees paid by the Customer. In the event, if Elixus terminates the Agreement, it will be Elixus’ sole and absolute discretion to decide whether the Fees paid by the Customer are refundable on a case-to-case basis.
5.3 The non-defaulting party may terminate the Agreement at any time and with immediate effect by written notice to the defaulting party if the:
(a) defaulting party has committed a material breach of the Agreement and the non-defaulting party has given written notice to the defaulting party of that breach, but the defaulting party has failed to remedy the breach within 10 Business Days of receipt of the written notice;
(b) defaulting party has committed a material breach of the Agreement, where both parties acting reasonably agree that breach is not reasonably capable of being remedied within 10 Business Days; or
(c) defaulting party goes into liquidation, receivership, administration or bankruptcy.
Notwithstanding the above mentioned, the Customer shall pay for the outstanding Fees for the portion of Services which have been performed by Elixus before the date of termination (where applicable).
5.4 Without limiting Elixus’ other rights or remedies, Elixus may, at Elixus’ discretion, terminate the Agreement with immediate effect if the Customer fails to pay any Fees due under the Agreement on the due date for payment.
5.5 Customer’s duty to indemnify Elixus as set forth in Clause 3 and 4 above will survive the expiration or termination of this TOS.
6.1 Elixus is an independent contractor. Nothing expressed or implied in the Agreement will constitute either party as the partner, agent, employee or officer of, or as a joint venture with, the other party. Neither party will make any contrary representation to any other person.
6.2 The Customer must not give any warranty or make any representation, on behalf of Elixus, to any person, unless expressly authorised to do so in writing by Elixus.
7.1 Neither party will be liable for any act, omission or failure by it under the Agreement if that act, omission or failure results directly from an event or circumstances beyond that party’s reasonable control (force majeure).
7.2 The supply of Elixus’ Services is subject to this TOS. Elixus may amend this TOS at any time by posting the updated version on this website. The latest updated version of the TOS will apply to any orders entered into after the amendment(s) have been made. The Customer is responsible for reviewing regularly information posted online to obtain timely notice of such changes. The Customer’s continued use of Elixus’ Services after changes are posted constitutes the Customer’s acceptance of the Agreement as modified by the posted changes.
7.3 Any waiver by a party of any of its rights or remedies under the Agreement will be effective only if it is recorded in writing and signed by both parties.
7.4 If a provision of the Agreement is invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of remaining provisions is not affected.
7.5 The Elixus entity that you are contracting with under this TOS will be one of the following entities subject to the Order Form: Elixus Pte Ltd or Elixus Sdn Bhd.
7.6 The Agreement is governed by the laws of Singapore. Any claim, dispute or controversy of whatever nature arising out of or relating to the Agreement shall be referred to and finally resolved by arbitration in Singapore administered by the Singapore International Arbitration Centre (SIAC) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (SIAC Rules) for the time being in force, which rules are deemed to be incorporated by reference in this Clause. This Clause governs all claims arising out of or related to the Agreement, including without limitation tort claims.
The Customer will receive motion design creatives in video format. Subject to Clauses 3.6 and 3.7 above, should the Customer want to purchase the working file(s) of the motion design creatives [excluding the audio content in the working file(s)], Elixus reserves the right to charge the Customer accordingly.