These terms and conditions (“T&Cs”) are made by and between the customer as identified in the Order Form
(Customer) and Deskimo Pte. Ltd. (Aprovia), on the date the Customer filled out the Order Form.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Definitions and Interpretation
1.1 The definitions and rules of interpretation set out in Schedule 1 shall apply to these T&Cs.
1.2. In these T&Cs:
1.2.1 each Order Form entered into by the Customer shall on Order Acceptance form a separate contract, incorporating the terms of these T&Cs together with the Schedules. For the avoidance of doubt, the Customer expressly agrees that by entering into these T&Cs the provisions and practices set out in the Policies shall be applicable to any and all Services provided by Aprovia to the Customer and that any and all terms contained in the Policies shall form part of these T&Cs;
1.2.2 in the event of any conflict in respect of the provisions of these T&Cs and/or the documents referred to therein the following order of priority shall prevail (in descending order of priority):
(a) the Policies;
(b) the T&Cs and Schedules; and
(c) the Documentation; and
1.2.3 subject to the order of priority between documents in clause 1.2.2, later versions of documents shall prevail over earlier ones if there is any conflict or inconsistency between them.
1.3 Any obligation of Aprovia under these T&Cs to comply or ensure compliance by any person or the Services with any law shall be limited to compliance only with laws within Singapore as generally applicable to businesses and to providers of software as a service solutions. Such obligations shall not be construed to create any obligation on Aprovia (or anyone acting on its behalf) or any part of the Services to comply with any laws or regulations which apply solely to specific commercial or other activities (such as insurance, legal advice or banking or other professional services) or which apply solely to a specific commercial or non-commercial sector (or part thereof) (such as the public, legal, accountancy, actuarial, insurance, banking or financial service sectors).
1.2. In these T&Cs:
1.2.1 each Order Form entered into by the Customer shall on Order Acceptance form a separate contract, incorporating the terms of these T&Cs together with the Schedules. For the avoidance of doubt, the Customer expressly agrees that by entering into these T&Cs the provisions and practices set out in the Policies shall be applicable to any and all Services provided by Aprovia to the Customer and that any and all terms contained in the Policies shall form part of these T&Cs;
1.2.2 in the event of any conflict in respect of the provisions of these T&Cs and/or the documents referred to therein the following order of priority shall prevail (in descending order of priority):
(a) the Policies;
(b) the T&Cs and Schedules; and
(c) the Documentation; and
1.2.3 subject to the order of priority between documents in clause 1.2.2, later versions of documents shall prevail over earlier ones if there is any conflict or inconsistency between them.
1.3 Any obligation of Aprovia under these T&Cs to comply or ensure compliance by any person or the Services with any law shall be limited to compliance only with laws within Singapore as generally applicable to businesses and to providers of software as a service solutions. Such obligations shall not be construed to create any obligation on Aprovia (or anyone acting on its behalf) or any part of the Services to comply with any laws or regulations which apply solely to specific commercial or other activities (such as insurance, legal advice or banking or other professional services) or which apply solely to a specific commercial or non-commercial sector (or part thereof) (such as the public, legal, accountancy, actuarial, insurance, banking or financial service sectors).
2. Rights of Use
2.1 In accordance with the terms of these T&Cs, Aprovia grants the Customer a non-exclusive,
non-transferable, personal right to:
2.1.1 from the Effective Date, use the Services during Service Hours; and
2.1.2 upon Order Acceptance, copy and use the Documentation as strictly necessary for its use by Authorised Users of the Services, during the Service Period for the Permitted Purpose.
2.2 The Customer acknowledges that the Services do not include:
2.2.1 any services, systems or equipment required to access the internet (and that the Customer is solely responsible for procuring access to the internet and for all costs and expenses in connection with internet access, communications, data transmission and wireless or mobile charges incurred by it in connection with use of the Services);
2.2.2 dedicated data back up or disaster recovery facilities (and the Customer should ensure it at all times maintains backups of all Customer Data); or
2.2.3 legal, tax, accounting or other professional or regulated services and that, except as expressly stated in these T&Cs, no assurance is given that the Services will comply with or satisfy any legal or regulatory obligation of any person.
2.1.1 from the Effective Date, use the Services during Service Hours; and
2.1.2 upon Order Acceptance, copy and use the Documentation as strictly necessary for its use by Authorised Users of the Services, during the Service Period for the Permitted Purpose.
2.2 The Customer acknowledges that the Services do not include:
2.2.1 any services, systems or equipment required to access the internet (and that the Customer is solely responsible for procuring access to the internet and for all costs and expenses in connection with internet access, communications, data transmission and wireless or mobile charges incurred by it in connection with use of the Services);
2.2.2 dedicated data back up or disaster recovery facilities (and the Customer should ensure it at all times maintains backups of all Customer Data); or
2.2.3 legal, tax, accounting or other professional or regulated services and that, except as expressly stated in these T&Cs, no assurance is given that the Services will comply with or satisfy any legal or regulatory obligation of any person.
3. Authorised Users
3.1 The Customer shall ensure that only Authorised Users use the Services and that such use is at
all times in accordance with these T&Cs. The Customer shall ensure that Authorised Users are, at all
times whilst they have access to the Services, the employees, contractors or administrators of the
Customer, the Authorised Affiliates or fall into other categories agreed with Aprovia in writing.
3.2 The Customer shall ensure that Authorised User Accounts cannot be shared or used by more than one individual at the same time.
3.3 Without prejudice to any other right or remedy of Aprovia, in the event the Customer is in breach of clause 3.1 or 3.2 then the warranties in clause 8.1 shall cease to apply to the relevant Services for the duration of the period during which the Customer is in breach of clause 3.2; and
3.4 The Customer shall:
3.4.1 be liable for the acts and omissions of the Authorised Users and the Authorised Affiliates as if they were its own;
3.4.2 only grant Authorised Users the right to access the Services subject to the instructions issued by Aprovia which will explain how an assigned Customer system administrator can issue invitations through the Aprovia Platform, such invitations will automatically generate a link which will be sent to the specified Authorised User prompting them to set up their own user ID and password (Account Authentication Information). Once the Authorised User has set up an account they will be able to access the Aprovia Platform and the Services. The Customer shall not issue invitations, provide access to (or permit access by) anyone other than an Authorised User or Authorised Affiliate; and
3.4.3 procure that each Authorised User (and each Authorised Affiliate) is aware of, and complies with, the obligations and restrictions imposed on the Customer under these T&Cs, including all obligations and restrictions relating to Aprovia’s Confidential Information;
3.4.4 Ensure that no report, information, data, graphs, numbers, figures, or any information of any kind taken from the Aprovia Platform is disclosed, published, or communicated, publicly or privately, to persons other than Authorised Users.
3.5 The Customer warrants and represents that it, and all Authorised Users and all others acting on its or their behalf (including systems administrators) shall, keep confidential and not share with any third party (or with other individuals except those with administration rights at the Customer and its Authorised Affiliate’s organisation as necessary for use of the Services) their Account Authentication Information for any Services.
3.6 The Customer shall (and shall ensure all Authorised Affiliates and Authorised Users shall) at all times comply with the Website Terms of Service and all other requirements applicable in these T&Cs.
3.7 If any Account Authentication Information has been provided to an individual that is not an Authorised User, the Customer shall, without delay, notify Aprovia immediately and Aprovia may suspend access based on such Account Authentication Information to the Aprovia Platform or the Services at its discretion.
3.8 The Customer shall comply (and shall ensure all Authorised Affiliates and Authorised Users comply) with all applicable laws, rules, and regulations governing export (Export Control Laws) that may apply to the Services, the Customer Data and the Documentation (or any part), and shall not export or re-export, directly or indirectly, separately or as a part of a system, the Services, the Customer Data or the Documentation (or any part) to, or access or use the Services, the Customer Data or the Documentation (or any part) in, any country or territory for which an export licence or other approval is required under the laws of Singapore, without first obtaining such licence or other approval. The Customer shall be solely responsible for ensuring its access, importation and use of the Services, the Customer Data and Documentation complies with all Export Control Laws and any other applicable laws.
3.2 The Customer shall ensure that Authorised User Accounts cannot be shared or used by more than one individual at the same time.
3.3 Without prejudice to any other right or remedy of Aprovia, in the event the Customer is in breach of clause 3.1 or 3.2 then the warranties in clause 8.1 shall cease to apply to the relevant Services for the duration of the period during which the Customer is in breach of clause 3.2; and
3.4 The Customer shall:
3.4.1 be liable for the acts and omissions of the Authorised Users and the Authorised Affiliates as if they were its own;
3.4.2 only grant Authorised Users the right to access the Services subject to the instructions issued by Aprovia which will explain how an assigned Customer system administrator can issue invitations through the Aprovia Platform, such invitations will automatically generate a link which will be sent to the specified Authorised User prompting them to set up their own user ID and password (Account Authentication Information). Once the Authorised User has set up an account they will be able to access the Aprovia Platform and the Services. The Customer shall not issue invitations, provide access to (or permit access by) anyone other than an Authorised User or Authorised Affiliate; and
3.4.3 procure that each Authorised User (and each Authorised Affiliate) is aware of, and complies with, the obligations and restrictions imposed on the Customer under these T&Cs, including all obligations and restrictions relating to Aprovia’s Confidential Information;
3.4.4 Ensure that no report, information, data, graphs, numbers, figures, or any information of any kind taken from the Aprovia Platform is disclosed, published, or communicated, publicly or privately, to persons other than Authorised Users.
3.5 The Customer warrants and represents that it, and all Authorised Users and all others acting on its or their behalf (including systems administrators) shall, keep confidential and not share with any third party (or with other individuals except those with administration rights at the Customer and its Authorised Affiliate’s organisation as necessary for use of the Services) their Account Authentication Information for any Services.
3.6 The Customer shall (and shall ensure all Authorised Affiliates and Authorised Users shall) at all times comply with the Website Terms of Service and all other requirements applicable in these T&Cs.
3.7 If any Account Authentication Information has been provided to an individual that is not an Authorised User, the Customer shall, without delay, notify Aprovia immediately and Aprovia may suspend access based on such Account Authentication Information to the Aprovia Platform or the Services at its discretion.
3.8 The Customer shall comply (and shall ensure all Authorised Affiliates and Authorised Users comply) with all applicable laws, rules, and regulations governing export (Export Control Laws) that may apply to the Services, the Customer Data and the Documentation (or any part), and shall not export or re-export, directly or indirectly, separately or as a part of a system, the Services, the Customer Data or the Documentation (or any part) to, or access or use the Services, the Customer Data or the Documentation (or any part) in, any country or territory for which an export licence or other approval is required under the laws of Singapore, without first obtaining such licence or other approval. The Customer shall be solely responsible for ensuring its access, importation and use of the Services, the Customer Data and Documentation complies with all Export Control Laws and any other applicable laws.
4. Indemnity
4.1 The Customer shall indemnify, keep indemnified and hold harmless Aprovia (on Aprovia’s own
behalf and on behalf of each of Aprovia’s Affiliates) from and against any losses, claims, damages,
liability, costs (including legal and other professional fees) and expenses incurred by it (or any
of its Affiliates) as a result of the Customer’s breach of these T&Cs (and for the avoidance of
doubt including any losses caused by the Customer's breach of clause 3.6 and 9.1.3).
4.2 This clause 4 shall survive termination or expiry of these T&Cs.
4.2 This clause 4 shall survive termination or expiry of these T&Cs.
5. Support
5.1 Aprovia will use reasonable endeavours to notify the Customer in advance of scheduled
maintenance but the Customer acknowledges that it may receive no advance notification for downtime
caused by Force Majeure or for other emergency maintenance.
6. Changes to Services and Terms
6.1 Aprovia may at its absolute discretion make, and notify the Customer of, updated versions of the
documents referred to in clause 1.2.2 or other documents referred to in any part of these T&Cs from
time to time by notifying: a) the Customer of such update either by e-mail (together with a copy of
the update or a link to a copy of the update); b) the Customer's system administrator through a pop
up window which will appear on the Aprovia Platform after the system administrator has logged in,
such pop up window will request that the system administrator acknowledges such changes, or by any
other means which Aprovia elects (Update Notification).
6.2 The document(s) subject to such Update Notification shall replace the preceding version of the same document(s) for the purposes of these T&Cs immediately following such Update Notification (the Update) (or at such later date as Aprovia may specify). Aprovia shall use reasonable commercial efforts to provide advance notice to the Customer of any material changes to the documents referred to in clause 1.2.2 or other documents referred to in any part of these T&Cs prior to an Update Notification.
6.3 The Customer acknowledges that Aprovia shall be entitled to modify the features and functionality of the Services. Aprovia may, without limitation to the generality of this clause 6.3, establish new limits on the Services (or any part), including limiting the volume of data which may be used, stored or transmitted in connection with the Services, remove or restrict application programming interfaces or make alterations to data retention periods, provided such changes are introduced by Update to the relevant impacted contractual documents.
6.2 The document(s) subject to such Update Notification shall replace the preceding version of the same document(s) for the purposes of these T&Cs immediately following such Update Notification (the Update) (or at such later date as Aprovia may specify). Aprovia shall use reasonable commercial efforts to provide advance notice to the Customer of any material changes to the documents referred to in clause 1.2.2 or other documents referred to in any part of these T&Cs prior to an Update Notification.
6.3 The Customer acknowledges that Aprovia shall be entitled to modify the features and functionality of the Services. Aprovia may, without limitation to the generality of this clause 6.3, establish new limits on the Services (or any part), including limiting the volume of data which may be used, stored or transmitted in connection with the Services, remove or restrict application programming interfaces or make alterations to data retention periods, provided such changes are introduced by Update to the relevant impacted contractual documents.
7. Fees
7.1 The Fees and any other charges (including expenses) expressly agreed between the parties in writing shall be paid by the Customer at the rates and in the manner described in clause 7.3 below and in the Pricing Terms (together the Charges).
7.2 Unless otherwise expressly agreed in writing with Aprovia, the Charges due under these T&Cs shall be payable in advance by the Customer on the date of Order Acceptance.
7.3 In relation to payment of any Charges the Customer shall provide Aprovia with Customer's preferred method of payment (Payment Method). Customer confirms that it is authorised to use such Payment Method and shall provide Aprovia with complete and accurate details to enable Aprovia to take payments from Customer in relation to the Charges. Customer authorises Aprovia to charge Customer's Payment Method for the Charges as provided in clause 7.1. As agreed under clause 7.1, Aprovia may charge the Customer through the Customer's Payment Method: (a) via scheduled payments in advance; or (b) on a recurring basis. Aprovia may charge the Customer through the Customer's Payment Method up to the amount of the agreed Charges.
7.4 To the extent these T&Cs terminates or expires the Customer shall not be entitled to any refund or discount of Fees already paid to Aprovia under these T&Cs unless otherwise agreed with Aprovia in writing.
7.5 The Charges for any Subsequent Periods will be made by Aprovia on the Payment Method.
7.6 In the event that the Customer upgrades from one plan to a higher plan, credits will be converted using the following formula: current_plan_credits_quota * (current_time - start_time) / month + new_plan_credits_quota * (month - current_time) / month - used_credits
7.2 Unless otherwise expressly agreed in writing with Aprovia, the Charges due under these T&Cs shall be payable in advance by the Customer on the date of Order Acceptance.
7.3 In relation to payment of any Charges the Customer shall provide Aprovia with Customer's preferred method of payment (Payment Method). Customer confirms that it is authorised to use such Payment Method and shall provide Aprovia with complete and accurate details to enable Aprovia to take payments from Customer in relation to the Charges. Customer authorises Aprovia to charge Customer's Payment Method for the Charges as provided in clause 7.1. As agreed under clause 7.1, Aprovia may charge the Customer through the Customer's Payment Method: (a) via scheduled payments in advance; or (b) on a recurring basis. Aprovia may charge the Customer through the Customer's Payment Method up to the amount of the agreed Charges.
7.4 To the extent these T&Cs terminates or expires the Customer shall not be entitled to any refund or discount of Fees already paid to Aprovia under these T&Cs unless otherwise agreed with Aprovia in writing.
7.5 The Charges for any Subsequent Periods will be made by Aprovia on the Payment Method.
7.6 In the event that the Customer upgrades from one plan to a higher plan, credits will be converted using the following formula: current_plan_credits_quota * (current_time - start_time) / month + new_plan_credits_quota * (month - current_time) / month - used_credits
8. Warranties
8.1 Subject to the remainder of this clause 8, Aprovia warrants that:
8.1.1 the Services shall operate materially in accordance with its Description when used in accordance with these T&Cs under normal use and normal circumstances during the relevant Service Period; and
8.1.2 it will provide each of the Services with reasonable care and skill.
8.2 The Customer acknowledges that clause 8.1 does not apply to Support Services provided in connection with the same. Support Services provided in connection with the same are provided ‘as is’ and without warranty to the maximum extent permitted by law.
8.3 The Services may be subject to delays, interruptions, errors or other problems resulting from use of the internet or public electronic communications networks used by the parties or third parties. The Customer acknowledges that such risks are inherent in cloud services and that Aprovia shall have no liability for any such delays, interruptions, errors or other problems.
8.4 The Customer acknowledges that the Services may be subject to delays, interruptions, errors or other problems resulting from:
8.4.1 the COVID-19 global pandemic as announced by the World Health Organization (WHO) on 11 March 2020; or
8.4.2 any epidemics within or affecting Singapore,
8.4.3 any other “act of god”, natural disaster, war, catastrophe or similar event that affects Singapore; and agrees that Aprovia shall have no liability to the Customer for such delays, interruptions, errors or other problems until: a) in the case of the circumstances described at clause 8.4.1, such time the WHO declares the pandemic is over or; b) in the case of the circumstances described at clause 8.4.2, such time as the relevant health or governmental authorities in Singapore (as applicable) declare that the local epidemic is over.
8.5 If there is a breach of any warranty in clause 8.1 Aprovia shall at its option: (i) use reasonable endeavours to repair or replace the impacted Services within a reasonable time; or (ii) (whether or not it has first attempted to repair or replace the impacted Services) refund the Fees for the impacted Services which were otherwise payable for the period during which Aprovia was in breach of any such warranty (provided such period is at least 14 consecutive days). To the maximum extent permitted by law, this clause 8.5 sets out the Customer’s sole and exclusive remedy (however arising, whether in contract, negligence or otherwise) for any breach of any of the warranties in clause 8.1.
8.6 The warranties in clause 8.1 are subject to the limitations set out in clause 18 and shall not apply to the extent that any error in the Services arises as a result of:
8.6.1 incorrect operation or use of the Services by the Customer, any Authorised Affiliate or any Authorised User (including any failure to follow the Documentation or failure to meet minimum specifications);
8.6.2 use of any of the Services other than for the purposes for which it is intended;
8.6.3 use of any Services with other software or services or on equipment with which it is incompatible;
8.6.4 any act by any third party (including hacking or the introduction of any virus, bugs or malicious code);
8.6.5 any modification of Services (other than that undertaken by Aprovia or at its direction); or
8.6.6 any breach of these T&Cs by the Customer (or by any Authorised Affiliate or Authorised User).
8.7 Aprovia may make Non-Aprovia Materials available for the Customer’s use in connection with the Services. The Customer agrees that:
8.7.1 Aprovia has no responsibility for the use or consequences of use of any Non-Aprovia Materials;
8.7.2 the Customer’s use of any Non-Aprovia Materials shall be governed by the applicable terms between the Customer and the owner or licensor of the relevant Non-Aprovia Materials;
8.7.3 the Customer is solely responsible for any Non-Aprovia Materials used in connection with the Services and for compliance with all applicable third party terms which may govern the use of such Non-Aprovia Materials; and
8.7.4 the continued availability, compatibility with the Services and performance of the Non-Aprovia Materials is outside the control of Aprovia and Aprovia has no responsibility for any unavailability of or degradation in the Services to the extent resulting from the availability, incompatibility or performance of any of the Non-Aprovia Materials.
8.8 The Customer acknowledges that no liability or obligation is accepted by Aprovia (howsoever arising whether under contract, tort, in negligence or otherwise):
8.8.1 that the Services shall meet the Customer’s individual needs, whether or not such needs have been communicated to Aprovia;
8.8.2 that the operation of the Services shall not be subject to minor errors or defects or temporary bugs; or
8.8.3 that the Services shall be compatible with any other software or service or with any hardware or equipment.
8.9 Other than as set out in this clause 8, and subject to clause 18.6, all warranties, conditions, terms, undertakings or obligations whether express or implied and including any implied terms relating to quality, time for performance, consideration, fitness for any particular purpose or ability to achieve a particular result are excluded to the fullest extent allowed by applicable law.
8.1.1 the Services shall operate materially in accordance with its Description when used in accordance with these T&Cs under normal use and normal circumstances during the relevant Service Period; and
8.1.2 it will provide each of the Services with reasonable care and skill.
8.2 The Customer acknowledges that clause 8.1 does not apply to Support Services provided in connection with the same. Support Services provided in connection with the same are provided ‘as is’ and without warranty to the maximum extent permitted by law.
8.3 The Services may be subject to delays, interruptions, errors or other problems resulting from use of the internet or public electronic communications networks used by the parties or third parties. The Customer acknowledges that such risks are inherent in cloud services and that Aprovia shall have no liability for any such delays, interruptions, errors or other problems.
8.4 The Customer acknowledges that the Services may be subject to delays, interruptions, errors or other problems resulting from:
8.4.1 the COVID-19 global pandemic as announced by the World Health Organization (WHO) on 11 March 2020; or
8.4.2 any epidemics within or affecting Singapore,
8.4.3 any other “act of god”, natural disaster, war, catastrophe or similar event that affects Singapore; and agrees that Aprovia shall have no liability to the Customer for such delays, interruptions, errors or other problems until: a) in the case of the circumstances described at clause 8.4.1, such time the WHO declares the pandemic is over or; b) in the case of the circumstances described at clause 8.4.2, such time as the relevant health or governmental authorities in Singapore (as applicable) declare that the local epidemic is over.
8.5 If there is a breach of any warranty in clause 8.1 Aprovia shall at its option: (i) use reasonable endeavours to repair or replace the impacted Services within a reasonable time; or (ii) (whether or not it has first attempted to repair or replace the impacted Services) refund the Fees for the impacted Services which were otherwise payable for the period during which Aprovia was in breach of any such warranty (provided such period is at least 14 consecutive days). To the maximum extent permitted by law, this clause 8.5 sets out the Customer’s sole and exclusive remedy (however arising, whether in contract, negligence or otherwise) for any breach of any of the warranties in clause 8.1.
8.6 The warranties in clause 8.1 are subject to the limitations set out in clause 18 and shall not apply to the extent that any error in the Services arises as a result of:
8.6.1 incorrect operation or use of the Services by the Customer, any Authorised Affiliate or any Authorised User (including any failure to follow the Documentation or failure to meet minimum specifications);
8.6.2 use of any of the Services other than for the purposes for which it is intended;
8.6.3 use of any Services with other software or services or on equipment with which it is incompatible;
8.6.4 any act by any third party (including hacking or the introduction of any virus, bugs or malicious code);
8.6.5 any modification of Services (other than that undertaken by Aprovia or at its direction); or
8.6.6 any breach of these T&Cs by the Customer (or by any Authorised Affiliate or Authorised User).
8.7 Aprovia may make Non-Aprovia Materials available for the Customer’s use in connection with the Services. The Customer agrees that:
8.7.1 Aprovia has no responsibility for the use or consequences of use of any Non-Aprovia Materials;
8.7.2 the Customer’s use of any Non-Aprovia Materials shall be governed by the applicable terms between the Customer and the owner or licensor of the relevant Non-Aprovia Materials;
8.7.3 the Customer is solely responsible for any Non-Aprovia Materials used in connection with the Services and for compliance with all applicable third party terms which may govern the use of such Non-Aprovia Materials; and
8.7.4 the continued availability, compatibility with the Services and performance of the Non-Aprovia Materials is outside the control of Aprovia and Aprovia has no responsibility for any unavailability of or degradation in the Services to the extent resulting from the availability, incompatibility or performance of any of the Non-Aprovia Materials.
8.8 The Customer acknowledges that no liability or obligation is accepted by Aprovia (howsoever arising whether under contract, tort, in negligence or otherwise):
8.8.1 that the Services shall meet the Customer’s individual needs, whether or not such needs have been communicated to Aprovia;
8.8.2 that the operation of the Services shall not be subject to minor errors or defects or temporary bugs; or
8.8.3 that the Services shall be compatible with any other software or service or with any hardware or equipment.
8.9 Other than as set out in this clause 8, and subject to clause 18.6, all warranties, conditions, terms, undertakings or obligations whether express or implied and including any implied terms relating to quality, time for performance, consideration, fitness for any particular purpose or ability to achieve a particular result are excluded to the fullest extent allowed by applicable law.
9. Customer’s Responsibilities
9.1 The Customer agrees that it shall:
9.1.1 at all times comply with all applicable laws relating to the use or receipt of the Services including laws relating to use of systems and communications;
9.1.2 be liable for the acts and omissions of the Authorised Users and the Authorised Affiliates as if they were its own and shall be responsible for all content or data uploaded by its Authorised Users or Authorised Affiliates on the Aprovia Platform and maintain and check that any and all content in whatever form including Customer Data which it uploads to the Aprovia Platform or otherwise provides to Aprovia in connection with the Services is up to date and accurate;
9.1.3 where any Customer Data or other data is uploaded to the Aprovia Platform by the Customer or its Authorised Users, or otherwise provided to Aprovia in respect of the Services, includes personal data of any person other than the Customer, the Customer is deemed to have confirmed that:
(a) it has provided such other person with the PICS prior to upload; and
(b) it has obtained the consent from such person regarding the collection, use, disclosure, transfer and retention of his / her personal data and other information as set out in the PICS and these T&Cs;
9.1.4 permit Aprovia to collect, use, disclose, process or transfer any of the Customer Data (including personal data) or other data uploaded by the Customer or its Authorised Users onto the Aprovia Platform for the purposes of the Services as set out in the PICS and in accordance with the Privacy Policy;
9.1.5 ensure that any Customer Data (including personal data) uploaded by Customer to the Aprovia Platform, or otherwise provided to Aprovia in respect of the Services, is necessary for Aprovia to provide the Services offered hereunder. If the Customer fails to provide the same to Aprovia, Aprovia may not be able to provide or continue to provide any Services offered hereunder to the Customer. The Customer may contact Aprovia to gain access to and request correction or amendment to such Customer Data. Such Customer Data together with any other data of the Customer obtained by Aprovia from time to time may be disclosed to such persons and may be used by Aprovia as specified in the PICS and in accordance with the Privacy Policy;
9.1.6 comply with any other obligations under applicable Data Protections Laws including in respect of collecting, using and handling of personal data (including any personal data in the Customer Data) and other information relating to any other person in compliance with the Data Protection Laws. The Customer agrees that it shall not use the Services for any unlawful purposes; and
9.1.7 at all times ensure that any Customer Data complies with the Website Terms of Service or any other part of these T&Cs and be responsible for any Customer Data which has been uploaded in error or which is found to be inappropriate; and procure that each Authorised User (and each Authorised Affiliate) is aware of, and complies with, the obligations and restrictions imposed on the Customer under these T&Cs, including all obligations and restrictions relating to the Aprovia's Confidential Information.
9.1.1 at all times comply with all applicable laws relating to the use or receipt of the Services including laws relating to use of systems and communications;
9.1.2 be liable for the acts and omissions of the Authorised Users and the Authorised Affiliates as if they were its own and shall be responsible for all content or data uploaded by its Authorised Users or Authorised Affiliates on the Aprovia Platform and maintain and check that any and all content in whatever form including Customer Data which it uploads to the Aprovia Platform or otherwise provides to Aprovia in connection with the Services is up to date and accurate;
9.1.3 where any Customer Data or other data is uploaded to the Aprovia Platform by the Customer or its Authorised Users, or otherwise provided to Aprovia in respect of the Services, includes personal data of any person other than the Customer, the Customer is deemed to have confirmed that:
(a) it has provided such other person with the PICS prior to upload; and
(b) it has obtained the consent from such person regarding the collection, use, disclosure, transfer and retention of his / her personal data and other information as set out in the PICS and these T&Cs;
9.1.4 permit Aprovia to collect, use, disclose, process or transfer any of the Customer Data (including personal data) or other data uploaded by the Customer or its Authorised Users onto the Aprovia Platform for the purposes of the Services as set out in the PICS and in accordance with the Privacy Policy;
9.1.5 ensure that any Customer Data (including personal data) uploaded by Customer to the Aprovia Platform, or otherwise provided to Aprovia in respect of the Services, is necessary for Aprovia to provide the Services offered hereunder. If the Customer fails to provide the same to Aprovia, Aprovia may not be able to provide or continue to provide any Services offered hereunder to the Customer. The Customer may contact Aprovia to gain access to and request correction or amendment to such Customer Data. Such Customer Data together with any other data of the Customer obtained by Aprovia from time to time may be disclosed to such persons and may be used by Aprovia as specified in the PICS and in accordance with the Privacy Policy;
9.1.6 comply with any other obligations under applicable Data Protections Laws including in respect of collecting, using and handling of personal data (including any personal data in the Customer Data) and other information relating to any other person in compliance with the Data Protection Laws. The Customer agrees that it shall not use the Services for any unlawful purposes; and
9.1.7 at all times ensure that any Customer Data complies with the Website Terms of Service or any other part of these T&Cs and be responsible for any Customer Data which has been uploaded in error or which is found to be inappropriate; and procure that each Authorised User (and each Authorised Affiliate) is aware of, and complies with, the obligations and restrictions imposed on the Customer under these T&Cs, including all obligations and restrictions relating to the Aprovia's Confidential Information.
10. Intellectual Property
10.1 All Intellectual Property Rights in and to the Services (including in all Applications, Documentation and all Aprovia Provided Materials) belong to and shall remain vested in Aprovia or the relevant third party owner. To the extent that the Customer, any of its Affiliates or any person acting on its or their behalf acquires any Intellectual Property Rights in the Applications, Documentation, Aprovia Provided Materials or any other part of the Services, the Customer shall assign or procure the assignment of such Intellectual Property Rights (including by way of present assignment of future Intellectual Property Rights) to Aprovia or such third party as Aprovia may elect. The Customer shall execute all such documents and do such things as Aprovia may consider necessary to give effect to this clause 10.1.
10.2 Aprovia has no obligation to deliver any copies of any software to the Customer in connection with these T&Cs or the Services.
10.3 The Customer and Authorised Users may be able to store or transmit Customer Data using one or more Services and the Services may interact with Customer Systems. The Customer hereby grants a royalty-free, non-transferable, non-exclusive licence for Aprovia (and each of its direct and indirect sub-contractors) to use, copy and other otherwise utilise the Customer Data and Customer Systems to the extent necessary to perform or provide the Services or to exercise or perform Aprovia’s rights, remedies and obligations under these T&Cs.
10.4 To the extent Non-Aprovia Materials are made available to, or used by or on behalf of the Customer, any Authorised Affiliate or any Authorised User in connection with the use or provision of any Services, such use of Non-Aprovia Materials (including all licence terms) shall be exclusively governed by applicable third party terms notified or made available by Aprovia or the third party and not by these T&Cs. Aprovia grants no Intellectual Property Rights or other rights in connection with any Non-Aprovia Materials.
10.5 Aprovia may use any feedback and suggestions for improvement relating to the Services provided by the Customer, the Authorised Affiliates or any Authorised User without charge or limitation (Feedback). The Customer as legal and beneficial owner hereby assigns (or shall or procure the assignment of) all Intellectual Property Rights in the Feedback (including by way of present assignment of future Intellectual Property Rights) to Aprovia at the time such Feedback is first provided to Aprovia.
10.6 The Customer hereby waives (and shall ensure all relevant third parties have waived) all rights to be identified as the author of any work, to object to derogatory treatment of that work and all other moral rights in the Intellectual Property Rights assigned to Aprovia under these T&Cs.
10.7 Except for the rights expressly granted in these T&Cs, the Customer, any Authorised User, any Customer Affiliate and their direct and indirect sub-contractors, shall not acquire in any way any title, rights of ownership, or Intellectual Property Rights of whatever nature in the Services (or any part including the Applications or Documentation) and no Intellectual Property Rights of either party are transferred or licensed as a result of these T&Cs.
10.8 This clause 10 shall survive the termination or expiry of these T&Cs.
10.2 Aprovia has no obligation to deliver any copies of any software to the Customer in connection with these T&Cs or the Services.
10.3 The Customer and Authorised Users may be able to store or transmit Customer Data using one or more Services and the Services may interact with Customer Systems. The Customer hereby grants a royalty-free, non-transferable, non-exclusive licence for Aprovia (and each of its direct and indirect sub-contractors) to use, copy and other otherwise utilise the Customer Data and Customer Systems to the extent necessary to perform or provide the Services or to exercise or perform Aprovia’s rights, remedies and obligations under these T&Cs.
10.4 To the extent Non-Aprovia Materials are made available to, or used by or on behalf of the Customer, any Authorised Affiliate or any Authorised User in connection with the use or provision of any Services, such use of Non-Aprovia Materials (including all licence terms) shall be exclusively governed by applicable third party terms notified or made available by Aprovia or the third party and not by these T&Cs. Aprovia grants no Intellectual Property Rights or other rights in connection with any Non-Aprovia Materials.
10.5 Aprovia may use any feedback and suggestions for improvement relating to the Services provided by the Customer, the Authorised Affiliates or any Authorised User without charge or limitation (Feedback). The Customer as legal and beneficial owner hereby assigns (or shall or procure the assignment of) all Intellectual Property Rights in the Feedback (including by way of present assignment of future Intellectual Property Rights) to Aprovia at the time such Feedback is first provided to Aprovia.
10.6 The Customer hereby waives (and shall ensure all relevant third parties have waived) all rights to be identified as the author of any work, to object to derogatory treatment of that work and all other moral rights in the Intellectual Property Rights assigned to Aprovia under these T&Cs.
10.7 Except for the rights expressly granted in these T&Cs, the Customer, any Authorised User, any Customer Affiliate and their direct and indirect sub-contractors, shall not acquire in any way any title, rights of ownership, or Intellectual Property Rights of whatever nature in the Services (or any part including the Applications or Documentation) and no Intellectual Property Rights of either party are transferred or licensed as a result of these T&Cs.
10.8 This clause 10 shall survive the termination or expiry of these T&Cs.
11. Defence against Infringement Claims
11.1 Subject to clauses 11.2 and 11.5, Aprovia shall:
11.1.1 defend at its own expense any claim brought against the Customer by any third party alleging that the Customer’s use of the Services infringes any copyright, database right or registered trademark, registered design right or registered patent in Singapore (an IP Claim); and
11.1.2 pay, subject to clause 11.3, all costs and damages awarded or agreed in settlement or final judgment of an IP Claim.
11.2 The provisions of clause 11.1 shall not apply unless the Customer:
11.2.1 promptly (and in any event within two (2) Business Days) notifies Aprovia upon becoming aware of any actual or threatened IP Claim and provides full written particulars;
11.2.2 makes no comment or admission and takes no action that may adversely affect Aprovia’s ability to defend or settle the IP Claim;
11.2.3 provides all assistance reasonably required by Aprovia subject to Aprovia paying the Customer’s reasonable costs; and
11.2.4 gives Aprovia sole authority to defend or settle the IP Claim as Aprovia considers appropriate.
11.3 The provisions of clause 18 shall apply to any payment of costs and damages awarded or agreed in settlement or final judgment of an IP Claim under clause 11.1.
11.4 In the event of any IP Claim Aprovia may elect to terminate these T&Cs immediately by written notice and promptly refund to the Customer on a pro-rata basis for any unused proportion of Fees paid in advance. This clause 11.4 is without prejudice to the Customer’s rights and remedies under clauses 11.1.
11.5 Aprovia shall have no liability or obligation under this clause 11 in respect of (and shall not be obliged to defend) any IP Claim which arises in whole or in part from:
11.5.1 any modification of the Services (or any part) without Aprovia’s express written approval;
11.5.2 any Non-Aprovia Materials;
11.5.3 any Customer Data;
11.5.4 any Support Services;
11.5.5 any breach of these T&Cs by the Customer;
11.5.6 installation or use of the Services (or any part) otherwise than in accordance with these T&Cs and the User Manual; or
11.5.7 installation or use of the Services (or any part) in combination with any software, hardware or data that has not been supplied or expressly authorised by Aprovia.
11.6 Subject to clause 18.6, the provisions of this clause 11 set out the Customer’s sole and exclusive remedy (howsoever arising, including in contract, tort, negligence or otherwise) for any IP Claim.
11.1.1 defend at its own expense any claim brought against the Customer by any third party alleging that the Customer’s use of the Services infringes any copyright, database right or registered trademark, registered design right or registered patent in Singapore (an IP Claim); and
11.1.2 pay, subject to clause 11.3, all costs and damages awarded or agreed in settlement or final judgment of an IP Claim.
11.2 The provisions of clause 11.1 shall not apply unless the Customer:
11.2.1 promptly (and in any event within two (2) Business Days) notifies Aprovia upon becoming aware of any actual or threatened IP Claim and provides full written particulars;
11.2.2 makes no comment or admission and takes no action that may adversely affect Aprovia’s ability to defend or settle the IP Claim;
11.2.3 provides all assistance reasonably required by Aprovia subject to Aprovia paying the Customer’s reasonable costs; and
11.2.4 gives Aprovia sole authority to defend or settle the IP Claim as Aprovia considers appropriate.
11.3 The provisions of clause 18 shall apply to any payment of costs and damages awarded or agreed in settlement or final judgment of an IP Claim under clause 11.1.
11.4 In the event of any IP Claim Aprovia may elect to terminate these T&Cs immediately by written notice and promptly refund to the Customer on a pro-rata basis for any unused proportion of Fees paid in advance. This clause 11.4 is without prejudice to the Customer’s rights and remedies under clauses 11.1.
11.5 Aprovia shall have no liability or obligation under this clause 11 in respect of (and shall not be obliged to defend) any IP Claim which arises in whole or in part from:
11.5.1 any modification of the Services (or any part) without Aprovia’s express written approval;
11.5.2 any Non-Aprovia Materials;
11.5.3 any Customer Data;
11.5.4 any Support Services;
11.5.5 any breach of these T&Cs by the Customer;
11.5.6 installation or use of the Services (or any part) otherwise than in accordance with these T&Cs and the User Manual; or
11.5.7 installation or use of the Services (or any part) in combination with any software, hardware or data that has not been supplied or expressly authorised by Aprovia.
11.6 Subject to clause 18.6, the provisions of this clause 11 set out the Customer’s sole and exclusive remedy (howsoever arising, including in contract, tort, negligence or otherwise) for any IP Claim.
12. Customer Systems and Customer Data
12.1 Customer Data shall at all times remain the property of the Customer or its licensors.
12.2 Except to the extent Aprovia has direct obligations under Data Protection Laws, the Customer acknowledges that Aprovia has no control over any Customer Data hosted as part of the provision of the Services and may not actively monitor or have access to the content of the Customer Data. The Customer shall ensure (and is exclusively responsible for) the accuracy, quality, integrity and legality of the Customer Data and that its use (including use in connection with the Services) complies with all applicable laws (including Data Protection Laws) and Intellectual Property Rights.
12.3 If Aprovia becomes aware of any allegation that any Customer Data may not comply with the Website Terms of Service or any other part of these T&Cs, Aprovia shall have the right to permanently delete or otherwise remove or suspend access to any Customer Data which is suspected of being in breach of any of the foregoing from the Services and/or disclose Customer Data to law enforcement authorities (in each case without the need to consult the Customer). Where reasonably practicable and lawful Aprovia shall notify the Customer before taking such action.
12.4 Except as otherwise expressly agreed in these T&Cs, Aprovia shall not be obliged to provide the Customer with any assistance extracting, transferring or recovering any data whether during or after the Service Period. The Customer acknowledges and agrees that it is responsible for maintaining safe backups and copies of any Customer Data, including as necessary to ensure the continuation of the Customer’s and Authorised Affiliates’ businesses. The Customer shall, without limitation, ensure that it backs up (or procures the back up of) all Customer Data regularly (in accordance with its, its Authorised Affiliates and its Authorised User’s needs) and extracts it from the Services prior to the termination or expiry of these T&Cs or the cessation or suspension of any of the Services.
12.5 Aprovia routinely undertakes regular backups of the Services (which may include Customer Data) for its own business continuity purposes. The Customer acknowledges that such steps do not in any way make Aprovia responsible for ensuring the Customer Data does not become inaccessible, damaged or corrupted. To the maximum extent permitted by applicable law, Aprovia shall not be responsible (under any legal basis, including in negligence) for any loss of availability of, or corruption or damage to, any Customer Data.
12.2 Except to the extent Aprovia has direct obligations under Data Protection Laws, the Customer acknowledges that Aprovia has no control over any Customer Data hosted as part of the provision of the Services and may not actively monitor or have access to the content of the Customer Data. The Customer shall ensure (and is exclusively responsible for) the accuracy, quality, integrity and legality of the Customer Data and that its use (including use in connection with the Services) complies with all applicable laws (including Data Protection Laws) and Intellectual Property Rights.
12.3 If Aprovia becomes aware of any allegation that any Customer Data may not comply with the Website Terms of Service or any other part of these T&Cs, Aprovia shall have the right to permanently delete or otherwise remove or suspend access to any Customer Data which is suspected of being in breach of any of the foregoing from the Services and/or disclose Customer Data to law enforcement authorities (in each case without the need to consult the Customer). Where reasonably practicable and lawful Aprovia shall notify the Customer before taking such action.
12.4 Except as otherwise expressly agreed in these T&Cs, Aprovia shall not be obliged to provide the Customer with any assistance extracting, transferring or recovering any data whether during or after the Service Period. The Customer acknowledges and agrees that it is responsible for maintaining safe backups and copies of any Customer Data, including as necessary to ensure the continuation of the Customer’s and Authorised Affiliates’ businesses. The Customer shall, without limitation, ensure that it backs up (or procures the back up of) all Customer Data regularly (in accordance with its, its Authorised Affiliates and its Authorised User’s needs) and extracts it from the Services prior to the termination or expiry of these T&Cs or the cessation or suspension of any of the Services.
12.5 Aprovia routinely undertakes regular backups of the Services (which may include Customer Data) for its own business continuity purposes. The Customer acknowledges that such steps do not in any way make Aprovia responsible for ensuring the Customer Data does not become inaccessible, damaged or corrupted. To the maximum extent permitted by applicable law, Aprovia shall not be responsible (under any legal basis, including in negligence) for any loss of availability of, or corruption or damage to, any Customer Data.
13. Confidentiality and Security of Customer Data
13.1 Aprovia shall maintain the confidentiality of the Customer Data and shall not without the prior written consent of the Customer or in accordance with these T&Cs or (where applicable) the PICS, disclose or copy the Customer Data other than as necessary for the performance of the Services or its express rights and obligations under these T&Cs.
13.2 Aprovia shall implement technical and organisational security measures in accordance with the Information Security Requirements.
13.3 Aprovia:
13.3.1 undertakes to disclose the Customer Data only to those of its officers, employees, agents, contractors, advisors and direct and indirect sub-contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under these T&Cs or the PICS or as otherwise reasonably necessary for the provision or receipt of the Services, and
13.3.2 shall be responsible to the Customer for any acts or omissions of any of the persons referred to in clause 13.3.1 in respect of the confidentiality and security of the Customer Data as if they were Aprovia’s own.
13.4 The provisions of this clause 13 shall not apply to information which:
13.4.1 is or comes into the public domain through no fault of Aprovia, its officers, employees, agents or contractors;
13.4.2 is lawfully received by Aprovia from a third party free of any obligation of confidence at the time of its disclosure;
13.4.3 is independently developed by Aprovia (or any of its Affiliates or any person acting on its or their behalf), without access to or use of such information; or
13.4.4 is required by law, by court or governmental or regulatory order to be disclosed.
13.5 This clause 13 shall survive the termination or expiry of these T&Cs for a period of ten (10) years.
13.6 Notwithstanding clause 9.1.3, to the extent any Customer Data is personal data the parties agree to comply with their respective obligations under any relevant Data Protection Laws at all times.
13.2 Aprovia shall implement technical and organisational security measures in accordance with the Information Security Requirements.
13.3 Aprovia:
13.3.1 undertakes to disclose the Customer Data only to those of its officers, employees, agents, contractors, advisors and direct and indirect sub-contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under these T&Cs or the PICS or as otherwise reasonably necessary for the provision or receipt of the Services, and
13.3.2 shall be responsible to the Customer for any acts or omissions of any of the persons referred to in clause 13.3.1 in respect of the confidentiality and security of the Customer Data as if they were Aprovia’s own.
13.4 The provisions of this clause 13 shall not apply to information which:
13.4.1 is or comes into the public domain through no fault of Aprovia, its officers, employees, agents or contractors;
13.4.2 is lawfully received by Aprovia from a third party free of any obligation of confidence at the time of its disclosure;
13.4.3 is independently developed by Aprovia (or any of its Affiliates or any person acting on its or their behalf), without access to or use of such information; or
13.4.4 is required by law, by court or governmental or regulatory order to be disclosed.
13.5 This clause 13 shall survive the termination or expiry of these T&Cs for a period of ten (10) years.
13.6 Notwithstanding clause 9.1.3, to the extent any Customer Data is personal data the parties agree to comply with their respective obligations under any relevant Data Protection Laws at all times.
14. Aprovia's Confidential Information
14.1 The Customer shall maintain the confidentiality of Aprovia’s Confidential Information and shall not without the prior written consent of Aprovia, disclose, copy or modify Aprovia’s Confidential Information (or permit others to do so) other than as necessary for the performance of its express rights and obligations under these T&Cs.
14.2 The Customer undertakes to:
14.2.1 disclose Aprovia’s Confidential Information only to those of its officers, employees, agents and contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under these T&Cs;
14.2.2 procure that such persons are made aware of and agree in writing to observe the obligations in this clause 14; and
14.2.3 be responsible for the acts and omissions of those third parties referred to in this clause 14.2 as if they were the Customer’s own acts or omissions.
14.3 The Customer shall give notice to Aprovia of any unauthorised use, disclosure, theft or loss of Aprovia’s Confidential Information immediately upon becoming aware of the same.
14.4 The provisions of this clause 14 shall not apply to information which:
14.4.1 is or comes into the public domain through no fault of the Customer, its officers, employees, agents or contractors;
14.4.2 is lawfully received by the Customer from a third party free of any obligation of confidence at the time of its disclosure;
14.4.3 is independently developed by the Customer, without access to or use of such information; or
14.4.4 is required by law, by court or governmental or regulatory order to be disclosed provided that the Customer, where possible, notifies Aprovia at the earliest opportunity before making any disclosure.
14.5 This clause 14 shall survive the termination or expiry of these T&Cs for a period of ten (10) years.
14.2 The Customer undertakes to:
14.2.1 disclose Aprovia’s Confidential Information only to those of its officers, employees, agents and contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under these T&Cs;
14.2.2 procure that such persons are made aware of and agree in writing to observe the obligations in this clause 14; and
14.2.3 be responsible for the acts and omissions of those third parties referred to in this clause 14.2 as if they were the Customer’s own acts or omissions.
14.3 The Customer shall give notice to Aprovia of any unauthorised use, disclosure, theft or loss of Aprovia’s Confidential Information immediately upon becoming aware of the same.
14.4 The provisions of this clause 14 shall not apply to information which:
14.4.1 is or comes into the public domain through no fault of the Customer, its officers, employees, agents or contractors;
14.4.2 is lawfully received by the Customer from a third party free of any obligation of confidence at the time of its disclosure;
14.4.3 is independently developed by the Customer, without access to or use of such information; or
14.4.4 is required by law, by court or governmental or regulatory order to be disclosed provided that the Customer, where possible, notifies Aprovia at the earliest opportunity before making any disclosure.
14.5 This clause 14 shall survive the termination or expiry of these T&Cs for a period of ten (10) years.
15. Publicity
15.1 The Customer permits that Aprovia may make an announcement or other public disclosure which references the Customer's use of the Services and may use any trademarks or other identifying logos owned or licensed to the Customer in order to market and promote its Services. Where Aprovia is able to, it will try to provide prior notice to the Customer of the form and content of any such announcement or other public disclosure, as well as the manner of its release but it shall not be obliged to do so.
16. Monitoring Compliance
16.1 During the Service Period and for seven (7) years thereafter the Customer shall maintain full and accurate records relating to Authorised Users’, the Customer’s and Authorised Affiliates’ use of the Services under these T&Cs.
16.2 The Customer shall allow and procure for Aprovia (and any representatives of Aprovia) access to its premises and the premises of Authorised Affiliates to:
16.2.1 inspect use of the Services; and
16.2.2 audit (and take copies of) the relevant records of the Customer and the Authorised Affiliates, in each case to the extent necessary to verify that the Customer is in compliance with its obligations under these T&Cs.
16.3 Unless otherwise agreed in writing, the inspection and audit referred to in clause 16.2 shall be undertaken during the Customer’s normal business hours on Business Days; subject to the provision by Aprovia of a minimum of five (5) Business Days’ notice; and not more than once in any calendar year.
16.4 At Aprovia’s request from time to time the Customer shall promptly (and in any event within two (2) Business Days of such request) provide Aprovia with copies of the records referred to in clause 16.1.
16.5 Aprovia may monitor, collect, store and use information on the use and performance of the Services (including Customer Data) to detect threats or errors to the Services and/or Aprovia's operations and for the purposes of the further development and improvement of Aprovia’s services, provided that such activities at all times comply with the Privacy Policy and are in accordance with the PICS. This clause 16 shall survive termination or expiry of these T&Cs for a period of twelve (12) months.
16.2 The Customer shall allow and procure for Aprovia (and any representatives of Aprovia) access to its premises and the premises of Authorised Affiliates to:
16.2.1 inspect use of the Services; and
16.2.2 audit (and take copies of) the relevant records of the Customer and the Authorised Affiliates, in each case to the extent necessary to verify that the Customer is in compliance with its obligations under these T&Cs.
16.3 Unless otherwise agreed in writing, the inspection and audit referred to in clause 16.2 shall be undertaken during the Customer’s normal business hours on Business Days; subject to the provision by Aprovia of a minimum of five (5) Business Days’ notice; and not more than once in any calendar year.
16.4 At Aprovia’s request from time to time the Customer shall promptly (and in any event within two (2) Business Days of such request) provide Aprovia with copies of the records referred to in clause 16.1.
16.5 Aprovia may monitor, collect, store and use information on the use and performance of the Services (including Customer Data) to detect threats or errors to the Services and/or Aprovia's operations and for the purposes of the further development and improvement of Aprovia’s services, provided that such activities at all times comply with the Privacy Policy and are in accordance with the PICS. This clause 16 shall survive termination or expiry of these T&Cs for a period of twelve (12) months.
17. Force Majeure
To the maximum extent permitted by law, Aprovia shall not be liable (under any legal basis, including negligence) for any breach, delay or default in the performance of these T&Cs to the extent the same (or the circumstances giving rise to the same) arises or was contributed to by a Force Majeure or a delay due to the Covid-19 pandemic which adversely affects the performance of Aprovia under these T&Cs.
18. Limitation of Liability
18.1 The extent of Aprovia’s liability under or in connection with these T&Cs (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation or under any indemnity) shall be as set out in this clause 18.
18.2 Subject to clause 18.6, Aprovia’s shall have no liability in respect of each individual Free or Trial Service (and all Support Services provided in connection with the same) (howsoever arising under or in connection with these T&Cs).
18.3 Subject to clause 18.6, Aprovia’s total aggregate liability howsoever arising under or in connection with these T&Cs shall not exceed an amount equal to the Fees for all Services paid to Aprovia in the twelve (12) month period immediately preceding the first incident giving rise to any claim under these T&Cs.
18.4 Subject to clause 18.6, Aprovia shall not be liable for consequential, indirect or special losses.
18.5 Subject to clause 18.6, Aprovia shall not be liable for any of the following (whether direct or indirect):
18.5.1 loss of profit;
18.5.2 destruction, loss of use or corruption of data;
18.5.3 loss or corruption of software or systems;
18.5.4 loss or damage to equipment;
18.5.5 loss of use;
18.5.6 loss of production;
18.5.7 loss of contract;
18.5.8 loss of opportunity;
18.5.9 loss of savings, discount or rebate (whether actual or anticipated); and/or
18.5.10 harm to reputation or loss of goodwill.
18.6 Notwithstanding any other provision of these T&Cs, Aprovia’s liability shall not be limited in any way in respect of the following:
18.6.1 death or personal injury caused by negligence;
18.6.2 fraud or fraudulent misrepresentation; or
18.6.3 any other losses which cannot be excluded or limited by applicable laws.
18.7 This clause 18 shall survive the termination or expiry of these T&Cs.
18.2 Subject to clause 18.6, Aprovia’s shall have no liability in respect of each individual Free or Trial Service (and all Support Services provided in connection with the same) (howsoever arising under or in connection with these T&Cs).
18.3 Subject to clause 18.6, Aprovia’s total aggregate liability howsoever arising under or in connection with these T&Cs shall not exceed an amount equal to the Fees for all Services paid to Aprovia in the twelve (12) month period immediately preceding the first incident giving rise to any claim under these T&Cs.
18.4 Subject to clause 18.6, Aprovia shall not be liable for consequential, indirect or special losses.
18.5 Subject to clause 18.6, Aprovia shall not be liable for any of the following (whether direct or indirect):
18.5.1 loss of profit;
18.5.2 destruction, loss of use or corruption of data;
18.5.3 loss or corruption of software or systems;
18.5.4 loss or damage to equipment;
18.5.5 loss of use;
18.5.6 loss of production;
18.5.7 loss of contract;
18.5.8 loss of opportunity;
18.5.9 loss of savings, discount or rebate (whether actual or anticipated); and/or
18.5.10 harm to reputation or loss of goodwill.
18.6 Notwithstanding any other provision of these T&Cs, Aprovia’s liability shall not be limited in any way in respect of the following:
18.6.1 death or personal injury caused by negligence;
18.6.2 fraud or fraudulent misrepresentation; or
18.6.3 any other losses which cannot be excluded or limited by applicable laws.
18.7 This clause 18 shall survive the termination or expiry of these T&Cs.
19. Suspension
19.1 Aprovia may suspend access to the Services (in whole or part) to all or some of the Authorised Users if:
19.1.1 Aprovia suspects that there has been any misuse of the Services or breach of these T&Cs; or
19.1.2 Aprovia is unable to take payment from the Customer in accordance with clause 7 or the Customer fails to pay any sums due to Aprovia by the due date for payment.
19.2 Where the reason for the suspension is suspected misuse of the Services or breach of these T&Cs, without prejudice to its rights under clause 20, Aprovia will take steps to investigate the issue and may restore or continue to suspend access at its discretion.
19.3 In relation to suspensions under clause 19.1.2, access to the Services will be restored promptly after Aprovia receives payment in full and cleared funds.
19.4 Fees shall remain payable during any period of suspension notwithstanding that the Customer, Authorised Affiliates or some or all of the Authorised Users may not have access to the Services.
19.1.1 Aprovia suspects that there has been any misuse of the Services or breach of these T&Cs; or
19.1.2 Aprovia is unable to take payment from the Customer in accordance with clause 7 or the Customer fails to pay any sums due to Aprovia by the due date for payment.
19.2 Where the reason for the suspension is suspected misuse of the Services or breach of these T&Cs, without prejudice to its rights under clause 20, Aprovia will take steps to investigate the issue and may restore or continue to suspend access at its discretion.
19.3 In relation to suspensions under clause 19.1.2, access to the Services will be restored promptly after Aprovia receives payment in full and cleared funds.
19.4 Fees shall remain payable during any period of suspension notwithstanding that the Customer, Authorised Affiliates or some or all of the Authorised Users may not have access to the Services.
20. Term and Termination
20.1 These T&Cs shall come into force on the Effective Date and, unless terminated earlier in accordance with these T&Cs, shall continue to run.
20.2 Subject to Order Acceptance, the Services shall commence on the date of the Order Acceptance, and shall end once the Services have been received by the Customer.
20.3 Aprovia may terminate the Agreement or the provision of any of the Services immediately at any time by giving notice in writing to the Customer where the Customer:
20.3.1 commits a material breach of the Agreement and such breach is not remedied within twenty (20) Business Days of receiving written notice of such breach;
20.3.2 undergoes a change of Control; or
20.3.3 has failed to pay any amount due under these T&Cs on the due date and such amount remains unpaid within twenty (20) Business Days after the Customer has received notification that the payment is overdue.
20.4 Aprovia may terminate or suspend the provision of Support Services at any time with or without notice.
20.5 Any breach by the Customer of clauses 3 or 9.1.7 shall be deemed a material breach of these T&Cs which is not remediable.
20.2 Subject to Order Acceptance, the Services shall commence on the date of the Order Acceptance, and shall end once the Services have been received by the Customer.
20.3 Aprovia may terminate the Agreement or the provision of any of the Services immediately at any time by giving notice in writing to the Customer where the Customer:
20.3.1 commits a material breach of the Agreement and such breach is not remedied within twenty (20) Business Days of receiving written notice of such breach;
20.3.2 undergoes a change of Control; or
20.3.3 has failed to pay any amount due under these T&Cs on the due date and such amount remains unpaid within twenty (20) Business Days after the Customer has received notification that the payment is overdue.
20.4 Aprovia may terminate or suspend the provision of Support Services at any time with or without notice.
20.5 Any breach by the Customer of clauses 3 or 9.1.7 shall be deemed a material breach of these T&Cs which is not remediable.
21. Consequences of Termination
21.1 Immediately on termination or expiry of these T&Cs (for any reason), the rights granted by Aprovia under these T&Cs shall terminate and the Customer shall (and shall procure that each Authorised User and Authorised Affiliate shall):
21.1.1 stop using the Services; and
21.1.2 destroy and delete or, if requested by Aprovia, return any copies of the Documentation in its possession or control (or in the possession or control of any person acting on behalf of any of them).
21.2 Termination or expiry of these T&Cs shall not affect any accrued rights and liabilities of either party at any time up to the date of termination or expiry and shall not affect any provision of these T&Cs that is expressly or by implication intended to continue beyond termination.
21.1.1 stop using the Services; and
21.1.2 destroy and delete or, if requested by Aprovia, return any copies of the Documentation in its possession or control (or in the possession or control of any person acting on behalf of any of them).
21.2 Termination or expiry of these T&Cs shall not affect any accrued rights and liabilities of either party at any time up to the date of termination or expiry and shall not affect any provision of these T&Cs that is expressly or by implication intended to continue beyond termination.
22. Entire Agreement
22.1 These T&Cs constitutes the entire agreement between the parties and supersedes all previous agreements, understandings and arrangements between them in respect of its subject matter, whether in writing or oral.
22.2 Each party acknowledges that it has not entered into these T&Cs in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in these T&Cs.
22.3 Nothing in these T&Cs shall limit or exclude any liability for fraud.
22.2 Each party acknowledges that it has not entered into these T&Cs in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in these T&Cs.
22.3 Nothing in these T&Cs shall limit or exclude any liability for fraud.
23. Notices
23.1 Any notice or other communication given by a party under these T&Cs shall be:
23.1.1 in writing and in English;
23.1.2 signed by, or on behalf of, the party giving it; and
23.1.3 sent to the relevant party at the address set out in clause 23.3.
23.2 Notices may be given, and are deemed received by email on receipt of a delivery email from the correct address.
23.3 Notices and other communications shall be sent to:
23.3.1 in the case of those to Aprovia, to the attention of legal counsel at: Deskimo Pte. Ltd., 1 Scotts Road, #24-10, Shaw Centre, Singapore 228208 Email: support@deskimo.com
23.3.2 in the case of those to the Customer, to any email or physical address or contact details notified by you (as updated from time to time pursuant to clause 23.4).
23.4 Any change to the contact details of a party as set out in clause 23.3 shall be notified to the other party in accordance with clause 23.1 and shall be effective:
23.4.1 on the date specified in the notice as being the date of such change; or
23.4.2 if no date is so specified, five (5) Business Days after the notice is deemed to be received.
23.5 This clause does not apply to notices given in legal proceedings or arbitration.
23.1.1 in writing and in English;
23.1.2 signed by, or on behalf of, the party giving it; and
23.1.3 sent to the relevant party at the address set out in clause 23.3.
23.2 Notices may be given, and are deemed received by email on receipt of a delivery email from the correct address.
23.3 Notices and other communications shall be sent to:
23.3.1 in the case of those to Aprovia, to the attention of legal counsel at: Deskimo Pte. Ltd., 1 Scotts Road, #24-10, Shaw Centre, Singapore 228208 Email: support@deskimo.com
23.3.2 in the case of those to the Customer, to any email or physical address or contact details notified by you (as updated from time to time pursuant to clause 23.4).
23.4 Any change to the contact details of a party as set out in clause 23.3 shall be notified to the other party in accordance with clause 23.1 and shall be effective:
23.4.1 on the date specified in the notice as being the date of such change; or
23.4.2 if no date is so specified, five (5) Business Days after the notice is deemed to be received.
23.5 This clause does not apply to notices given in legal proceedings or arbitration.
24. Variation
24.1 No variation of these T&Cs shall be valid or effective unless it is:
24.1.1 an Update made in accordance with these T&Cs; or
24.1.2 made in writing, refers to these T&Cs and is duly signed or executed by, or on behalf of, each party.
24.1.1 an Update made in accordance with these T&Cs; or
24.1.2 made in writing, refers to these T&Cs and is duly signed or executed by, or on behalf of, each party.
25. Assignment and Subcontracting
25.1 Except as expressly provided in these T&Cs, Aprovia may at any time assign, sub-contract, sub-licence (including by multi-tier), transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights or obligations under these T&Cs.
25.2 Except as expressly permitted by these T&Cs, the Customer shall not assign, transfer, sub-contract, sub-licence, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights or obligations under these T&Cs (including the licence rights granted), in whole or in part, without Aprovia’s prior written consent.
25.2 Except as expressly permitted by these T&Cs, the Customer shall not assign, transfer, sub-contract, sub-licence, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights or obligations under these T&Cs (including the licence rights granted), in whole or in part, without Aprovia’s prior written consent.
26. Set off
Each party shall pay all sums that it owes to the other party under these T&Cs without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
27. No Partnership or Agency
The parties are independent and are not partners or principal and agent and these T&Cs does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Neither party shall have, nor shall represent that it has, any authority to make any commitments on the other party’s behalf.
28. Severance
28.1 If any provision of these T&Cs (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of these T&Cs shall not be affected.
28.2 If any provision of these T&Cs (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
28.2 If any provision of these T&Cs (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
29. Waiver
29.1 No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under these T&Cs shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
29.2 No single or partial exercise of any right, power or remedy provided by law or under these T&Cs shall prevent any future exercise of it or the exercise of any other right, power or remedy.
29.3 A waiver of any term, provision, condition or breach of these T&Cs shall only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given.
29.2 No single or partial exercise of any right, power or remedy provided by law or under these T&Cs shall prevent any future exercise of it or the exercise of any other right, power or remedy.
29.3 A waiver of any term, provision, condition or breach of these T&Cs shall only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given.
30. Costs and Expenses
Each party shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of these T&Cs (and any documents referred to in it).
31. Authority
Each party represents and warrants to the other that it has the right, power and authority to enter into these T&Cs and grant to the other the rights (if any) contemplated in these T&Cs and to perform its obligations under these T&Cs.
32. Governing Law
These T&Cs and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of Singapore.
33. Disputes
Any dispute, controversy, difference or claim arising out of or relating to these T&Cs, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (SIAC) under the SIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted. The law of this arbitration clause shall be Singapore law. The seat of arbitration shall be Singapore. The number of arbitrators shall be one. The arbitration proceedings shall be conducted in English.
