Mycelium Client Terms and Conditions

1. Definitions and Interpretation

1.1 Definitions

The following terms in these Terms and Conditions have the meanings set out below, unless otherwise indicated:

1. Additional Usage Rights means any optional additional usage rights in relation to the Services or the Materials sought by the Client where the option for such usage rights is provided in the Quote on the basis that an additional fee is paid for those usage rights;
2. Agreement means the agreement comprising: (a) these Terms and Conditions; and (b) the Quote;
3. Brief means a set of instructions which Talent will be sourced and engaged by Mycelium to assist in providing the Services;
4. Client means the client or customer referred to in the Quote;
5. Client Materials means any documents or information provided by or on behalf of the Client to Mycelium and which are to be used for the purpose of providing the Services;
6. Commencement Date means the date the Client executes a Quote, or any other date agreed between the parties;
7. Confidential Information means all information disclosed (including inadvertently) by a party (Discloser) in connection with the Agreement, all information disclosed by a third party that the Discloser is required to keep confidential, including (without limitation): (i) information which, either orally or in writing, is designated or indicated as being the proprietary or confidential information of the Discloser or a third party to whom the Discloser owes an obligation of confidentiality; (ii) Information derived partly or wholly from the information, including (without limitation) any calculation, conclusion, summary, computer modelling; and (iii) trade secrets or information that is capable of protection at law or equity as confidential information, and the parties agree that the terms of the Agreement are jointly owned Confidential Information;
8. Exclusivity means an agreement by Mycelium to ensure that Talent will be exclusive or will not be provided briefs for any competitors of the Client for the Term;
9. Expiry Date means the ending date indicated under “Date Range” in the Quote or other such date agreed between the parties;
10. Force Majeure Event means any of the following causes provided that they are outside the reasonable control of the affected party and could not have been prevented or avoided by that party taking all reasonable steps: (a) act of God, earthquake, cyclone, fire, explosion, flood, landslide, lightning, storm, tempest, drought or meteor; (b) war (declared or undeclared), invasion, act of a foreign enemy, hostilities between nations, civil insurrection or militarily usurped power; (c) act of public enemy, sabotage or malicious damage, terrorism or civil unrest; (d) ionising radiation or contamination by radioactivity from any nuclear waste or from combustion of nuclear fuel; (e) confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the order of any government or government authority (except where such arises out of a failure by a party to comply with any Law); or (f) strikes, blockades, lock out or other industrial disputes other than an industrial dispute that only involves the party’s personnel;
11. Funds means the amount of money the Client unconditionally agrees with Mycelium to spend on the Services;
12. GST means Goods and Services Tax as defined in the The Goods and Services Tax Act 1993;
13. Influencer Terms means the terms and conditions upon which Talent is engaged to assist Mycelium in providing Services;
14. Insolvent means, in respect of a person, where: (a) it is (or states that it is) an insolvent under administration or insolvent; (b) it is in liquidation, in provisional liquidation, under administration or wound up or has had a Controller appointed to its property; (c) it is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by the other parties to this Agreement); (d) an application or order has been made (and in the case of an application, it is not stayed, withdrawn or dismissed within 14 days), resolution passed, proposal put forward, or any other action taken, in each case in connection with that person, which is preparatory to or could result in any of the things described in paragraphs (a), (b) or (c); (e) it is taken to have failed to comply with a statutory demand; (f) it is otherwise unable to pay its debts when they fall due; or (g) something having a substantially similar effect to any of the things described in subparagraphs (a) to (f) happens in connection with that person under the Law of any Jurisdiction;
15. Intended Start Date means the intended start date of a Brief with respect to a campaign;
16. IPR or Intellectual Property Rights means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, design rights, rights in computer software, database rights, topography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights of any kind whether registrable or not in any country, including any renewals or extensions thereof;
17. Jurisdiction means the Jurisdiction is Singapore;
18. Law means any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in the Jurisdiction applicable to the Agreement and any other relevant jurisdictions;
19. Materials means material in any form, including drawings, reports, specifications, images, photos, videos and media in any form or type, including proprietary media types (howsoever constituted) and other documents provided by or on behalf of Mycelium in connection with the Agreement and the Services;
20. Quote means the document entitled “Quote T&C’s” executed by the Client, which sets out the Funds to be paid by the Client to Mycelium, for the products and/or Services that Mycelium or a third party is to provide to the Client;
21. Services means the services described and as elected by the Client, including as described in a Quote under “Overview & Costings”, “Costings Breakdown” (if applicable) and the “Brief Particulars” and may include (but are not limited to), where specified: (a) the creation of content and media; (b) the posting of content on social media channels and websites by the Talent with certain parameters, including the inclusion of hashtags, @mentions, specified links, functionalities (where applicable) and phrases; (c) selection of Talent based on certain parameters requested by the Client; (d) management of an advertising campaign by Mycelium; and (e) the provision of content for the Client to post in its own media channels;
22. Schedule means the Schedule to this document;
23. Talent has the meaning given in clause 4.1(3) of these Terms and Conditions;
24. Taxes means GST or any sales tax that may apply in the Jurisdiction to the provision of the Services under the Agreement;
25. Term has the meaning given in clause 2(1) of these Terms and Conditions;
26. Terms and Conditions means this document, including any Schedules;
27. Usage Rights means the usage rights listed under the “Usage Rights” in the Quote. The Usage Rights are subject to: (a) a limited period of time (where a term for the Usage Rights is listed); (b) geographical restriction to the country in which the Client is headquartered unless expressly noted otherwise in the Quote; and (c) any other express restrictions in the Quote, and may include Additional Usage Rights subject to payment of the Additional Usage Right Fees by the Client, where applicable;
28. Mycelium means Mycelium Digital Pte. Ltd (202531652K) of 60 Paya Lebar Road, #07-54 Paya Lebar Square, Singapore 409051;
29. Work Stage has the meaning given to that term in clause 4.1(2).

1.2 Interpretation

In the Agreement:

1. reference to: (a) one gender includes the others; (b) the singular includes the plural and the plural includes the singular; (c) a person includes a body corporate; (d) a party includes the party’s executors, administrators, successors and permitted assigns; (e) a thing includes the whole and each part of it separately; (f) a statute, regulation, code or other law or a provision of any of them includes any amendment or replacement of it and another regulation or other statutory instrument made under it, or made under it as amended or replaced; and (g) dollars means Singapore dollars unless otherwise stated in the Quote;
2. “Including” and similar expressions are not words of limitation;
3. Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning;
4. Headings and any table of contents or index are for convenience only and do not form part of this Agreement or affect its interpretation;
5. A provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Agreement or the inclusion of the provision in the Agreement.

2. Term

1. The Agreement commences on the Effective Date and will continue until unless terminated earlier pursuant to the Agreement or otherwise extended by written agreement between the parties (Term).
2. No subsequent correspondence or document including any order by the Client will modify or vary the Agreement unless that variation is expressly accepted or acknowledged in writing by Mycelium.
3. In the event that Mycelium publishes or has published material in connection with its products or services, including without limitation in relation to the prices of its products or services, anything so published which is inconsistent with the Agreement is expressly excluded.
4. If the Services include Exclusivity, Mycelium shall ensure that: (a) any Talent engaged to assist in providing the Services agrees to; and (b) it will not engage the Talent to, perform any services similar to the Services for any competitors notified to Mycelium by the Client for the Term.

3. Payment

3.1 Payment of Funds

1. The Client agrees and acknowledges that Mycelium will issue a tax invoice to the Client for payment of the Funds on the Commencement Date of the relevant Quote.
2. The Client must pay the amount set out in the tax invoice pursuant to clause 3.1(1) within 30 days of Mycelium issuing that invoice.

3.2 Funds

1. Unless otherwise agreed by Mycelium in writing, the Funds for the Services are quoted exclusive of Taxes and all other taxes and are those stated in the Quote under “Budget”;
2. The Client acknowledges and agrees that the Funds are the committed spend which the Client agrees to spend with Mycelium during the Term for the Services and by agreeing the Quote, agrees to pre-pay for the committed spend in the amount of the Funds.
3. All Funds paid by the Client to Mycelium are non-refundable, and to the extent unpaid, comprise a debt due and payable by the Client to Mycelium.

3.3 Overdue Amounts

1. Where any payment is not made by the due date, Mycelium may charge interest on any overdue portion from the date the payment was due until the date payment is made (both dates inclusive) at an interest rate equal to 2% above the Monetary Authority of Singapore (MAS) Benchmark Interest Rate.
2. Any payment made by the Client to Mycelium may be applied by Mycelium to any amounts owing under the Client’s account with Mycelium in any manner it sees fit.

4. Services

4.1 Services under the Agreement

1. The Services to be provided during the Term of the Agreement will be set out in the Quote and can only be modified or extended with the express agreement of the Client and Mycelium.
2. If agreed, Services may be broken up into different tranches of work (Work Stages), where Mycelium is to provide or procure the provision of particular Services for a particular Work Stage.
3. The Client acknowledges that: (a) Mycelium will engage persons, including social media influencers (Talent) either directly or on a sub-contract or consultancy basis to assist in the provision of the Services. The Client acknowledges that the Talent will primarily be engaged through providing the Talent with a Brief under Mycelium’s Influencer Terms; and (b) Mycelium has no obligation to perform or procure the performance of any Services not specifically listed in the Quote.

4.2 Other matters

1. If the Client becomes aware of any matter which may change the scope or timing of the Services then the Client must give written notice to Mycelium of this as soon as practicable after it becomes so aware.
2. Mycelium will take all reasonable steps to ensure that it and any Talent used to provide the Services will not make any statement or omission or act in any manner which may have a detrimental or negative effect toward the Client, its subsidiaries and affiliates.

5. Limitation of liability

1. The maximum liability of Mycelium to the Client arising out of the performance or non-performance of the Services, whether under the law of contract, tort or otherwise, is the lesser of: (a) the Funds under the Agreement; and (b) the cost of rectifying the work which is the subject of performance or non-performance in relation to the Services;
2. Mycelium does not give any warranty nor accept any liability in relation to the performance or non performance of the Services except to the extent, if any, required by law or specifically provided for in the Agreement.
3. If any warranty would be implied whether by law, custom or otherwise, that warranty is to the full extent permitted by law excluded.
4. Mycelium will not be liable (whether in contract or tort, including negligence or otherwise) for: (a) loss of profits, business, revenue, goodwill, reputation, opportunity, bargain, or actual or anticipated savings; (b) indirect loss or consequential loss; or (c) any other form of loss or damage which does not arise naturally, or in the usual course of things, as a consequence of a breach of the Agreement.
5. Any of the provisions in this agreement which limit the liability of Mycelium to the Client will also operate to the same extent to exclude or limit or release, as the case may be, the liability (if any) of each officer, employee, agent and subcontractor of Mycelium, for whom the benefit of this provision is held by Mycelium as agent.
6. Each party will use reasonable endeavours to mitigate its losses arising under and/or in connection with a breach of the Agreement.
7. Any liability or loss or damage of any kind from one party to the other in connection with this Agreement is reduced to the extent the party claiming loss or damage contributed to that loss or damage whether directly or indirectly.

6. Warranties

1. The Client represents and warrants that: (a) it has not entered into the Agreement in reliance on any representation by Mycelium that the Services will be fit for purpose or otherwise appropriate, and it has relied upon its own expertise in selecting Mycelium to provide the Services or procure provision of the Services; (b) it has power to enter into the Agreement, to comply with its obligations under it and exercise its rights under it; (c) its obligations under the Agreement are valid and binding and are enforceable against it in accordance with its terms; and (d) it is not Insolvent.
2. The Client acknowledges that: (a) it has relied upon and will continue to rely upon its own knowledge and expertise in selecting any of the Mycelium’s products or services for any purpose, and any advice or assistance given for or on behalf of Mycelium will be accepted at the Client’s sole risk and will not under any circumstances be or be deemed to be given by Mycelium as an expert or advisor, or to be relied upon by the Client or any of the Client’s officers, employees, agents or contractors; and (b) Mycelium gives no warranty or guarantee regarding the Talent except that it will use its best efforts to select appropriate Talent for the provision of Services and will not be liable for the actions of any Talent outside of their engagement by Mycelium to provide Services.

7. Intellectual Property

7.1 IPR the property of Mycelium

1. The Materials and all IPR in the Materials is the property of Mycelium unless specifically agreed in writing between the parties in the Usage Rights.
2. Subject to clause 7.3, Mycelium grants the Client a licence to use the Materials and IPR in the Materials referred to in clause 7.1(1) in accordance with the Usage Rights. The Client must not use nor make copies of any Materials or IPR in connection with any work other than work comprised in this Agreement and forming part of the Services unless express written approval is given in advance by Mycelium.
3. For the avoidance of any doubt, except as referred to in the Usage Rights, no Materials produced pursuant to the Services may be edited, reproduced, adapted, uploaded to a third party, linked to, framed, performed in public, distributed or transmitted in any form by any process without Mycelium’s written consent.

7.2 Additional Usage Rights

For the avoidance of doubt, no Additional Usage Rights in Materials or IPR in the Materials are granted until the relevant Additional Usage Right Fee is paid to Mycelium in full by the Client.

7.3 Revocation for breach

Notwithstanding any other provision of the Agreement, in the event that the Client is in breach of any of the provisions of the Agreement, Mycelium may in its absolute discretion by notice in writing to the Client revoke the licence referred to in clause 7.1(2) whereupon the Client must return, or cause to be returned, to Mycelium all Materials and delete any and all copies of all Materials.

7.4 Provision and confidentiality of Client Materials

The Client acknowledges that:

1. it is solely responsible for ensuring that any Client Materials provided to Mycelium do not breach the IPR of any person when they are used for the Services;
2. it provides the Client Materials to Mycelium on the basis that: (a) the Client Materials are only to be used for the provision of the Services under the Agreement and for no other purpose; (b) Mycelium agrees that it will keep the Client Materials strictly confidential and only disclose Client Materials: (i) to its advisers (including legal counsel) for the purpose of assessing and complying with its obligations under this clause 7.4; (ii) to the Talent, on the basis set out in sub-clause (3); (iii) when compelled by any Law, at which point it will advise the Client promptly of such obligation; (c) it will take all reasonable steps to keep the Client Materials secure; and (d) it will destroy or return all materials when requested by the Client following the Expiry Date.
3. Client Materials may be disclosed by Mycelium to any Talent for the purpose of providing the Services on the basis that the Talent agrees to keep the Client Materials confidential on the same terms that apply to Mycelium as per sub-clause (2).

7.5 Mycelium acknowledgement in relation to the Client Materials

Subject to this clause 7, nothing in the Agreement permits or grants any rights to Mycelium to use the IPR of the Client, its holding company, subsidiaries and/or affiliates except in order to perform the Services, unless otherwise agreed in writing by the Client.

7.6 No IPR transferred

Unless expressly stated in the Quote, the Client receives no IPR except as set out in clause 7.1(2).

7.7 Survival

This clause 7 survives termination of the Agreement.

8. Confidentiality

1. Neither party shall, without prior written approval of the other party, disclose the other party’s Confidential Information.
2. Each party shall take all reasonable steps to ensure that its employees and agents, and any subcontractors engaged for the purposes of the Agreement (including the Talent), do not make public or disclose the other party’s Confidential Information.
3. A party may disclose the terms of the Agreement to their related companies, solicitors, auditors, insurers and accountants on a confidential basis.
4. This clause survives the termination of the Agreement.

9. Right to promote

9.1 Notwithstanding any other provision of the Agreement, Mycelium may disclose the existence of this Agreement including any outcomes of its provision of the Services under the Agreement (including reach and engagement, but not the Funds or other sensitive commercial details) for the purpose of promotion. For the avoidance of doubt, this does not include disclosure of Confidential Information or any Client Materials.

10. No solicitation and circumvention

10.1 Non-Solicitation

1. During the term of the Agreement and for a period of 12 months after the termination or expiry of the Agreement, the Client shall not solicit for employment, either directly or indirectly, any person who is employed or contracted by Mycelium (including the Talent).
2. The Client will promptly advise Mycelium if a person who is employed or contracted by Mycelium seeks to be employed or contracted by the Client during the period referred to in clause 10.1(1).
3. The Client undertakes that it will not compete with, or establish a business which is in competition with Mycelium or a business which provides services similar to the Services.
4. This clause survives the termination of the Agreement.

10.2 No Circumvention

The Client agrees that it will not:

1. attempt to negotiate directly with the Talent; and
2. coerce, manipulate or pressure the Talent to perform services outside of the scope of the agreed Services, without the prior consent of Mycelium. For the avoidance of doubt the Client may not contact any Talent (whether actual or proposed in relation to a Quote) except through Mycelium. In the event that the Client contacts the Talent in circumvention of this clause 10.2, the Client will be liable to Mycelium for the full amount of the Funds.

11. Termination

1. Without prejudice to any of its other rights, powers or remedies, Mycelium may terminate the Agreement and cancel any order for the supply of Services if: (a) any amount due to be paid to Mycelium under the Agreement is not paid by the relevant due date; (b) the Client breaches any provision of the Agreement; or (c) the Client becomes Insolvent.
2. If the Agreement is terminated by Mycelium under clause 11(1): (a) Mycelium will be released from all liability under the Agreement and without limiting any of its other rights it will be entitled to immediate payment for all Funds from the Client under the Agreement; (b) any Funds paid by the Client to Mycelium, and any Credit, (whether allocated or used), will be forfeited to Mycelium;
3. The Client shall have the right to terminate this Agreement or the supply of Services, without cause, on 1 months’ written notice.
4. If the Client terminates this Agreement in accordance with clause 11(3): (a) any and all Funds not paid to Mycelium by the termination date will be immediately due and payable by the Client to Mycelium;
5. If the Client terminates particular Services pursuant to a Brief, in accordance with clause 11(3), the Client is required to pay a fee (Termination Fee) in consideration of the Services performed by Mycelium and costs incurred by Mycelium up to the date the Client gives notice under clause 11(3) (Notice Date). The Termination Fee payable by the Client within 30 days of the Notice Date is: (a) if the Notice Date is within 4 weeks prior to the Intended Start Date for the relevant Brief, 25% of the Funds allocated to that Brief; or (b) if work has been started, 50% of the Funds allocated to that Brief; or (c) if content or media is created for the purpose of providing Services, or the Client specifically agrees to any Talent assisting Mycelium in providing Services, 100% of the Funds under the Brief, whichever is the higher. If none of the above circumstances apply, the Termination Fee is 10% of the Funds. The Client agrees and acknowledges that the Termination Fees are paid on account of Mycelium’s work done and costs incurred in respect of the Agreement.
6. This clause survives termination of the Agreement.

12. General

12.1 Currency conversion

To the extent that any Funds are paid in a currency which is required to be converted to another currency for any reason, the Client will incur a fee on any currency conversion, payable in accordance with the terms of the Quote or at Mycelium’s sole discretion. The Client will incur the following fees:

1. A transfer fee equal to 10% of the Funds being converted, in the pre-transfer currency, to be deducted prior to conversion in the pre-transfer currency; and

12.2 Force Majeure

Despite any other provision of this agreement, if a party is unable to perform or is delayed in performing an obligation under this agreement by reason of a Force Majeure Event:

1. that obligation is suspended but only so far and for so long as it is affected by the Force Majeure Event; and
2. the affected party will not be responsible for any loss or expense suffered or incurred by any other party as a result of, and to the extent that, the affected party is unable to perform or is delayed in performing its obligations because of the Force Majeure Event.

12.3 No waiver

No forbearance or delay by Mycelium in exercising or enforcing its rights under the Agreement shall prejudice or restrict the rights of Mycelium to exercise or enforce its rights at a later time and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach. Mycelium may only waive a right under the Agreement by doing so in writing.

12.4 Assignment

The Client may not assign this Agreement without the express written consent of Mycelium. Mycelium may assign its rights under the Agreement on notice to the Client.

12.5 No derogation

The rights and remedies provided in this Agreement will not affect any other rights or remedies available to either party.

12.6 Severability

If any provision of the Agreement is unenforceable, illegal or void, that provision is severed and the other provisions of this Agreement remain in force.

12.7 No relationship

Nothing contained or implied in this agreement constitutes a party the partner, agent or legal representative of another party for any purpose or creates any partnership, agency or trust. No party has any authority to bind another party in any way.

12.8 Notices

All notices to Mycelium may be given by email to Mycelium at the email address notified to the Client before or at the time of the Quote. All notices to the Client may be given by email to the Client’s email address notified to Mycelium at any time.

12.9 Jurisdiction

The Agreement shall be governed by and construed in accordance the laws of the relevant Jurisdiction. Each party irrevocably agrees to submit to the exclusive jurisdiction of the court of the Jurisdiction over any claim or matter arising under or in connection with the Agreement (whether in contract or in tort).