These terms and conditions (“TC”) apply to all products and services (collectively referred to as “Services”) provided to the Client by 10360821 Canada Corporation and its related body corporates (collectively referred to as “Provider”) or by a company whose services the Provider is allowed to resell (“Partner”) in consideration of payment based on the charges and fulfilment of the specific conditions set out in the service order form (“Form”) executed by the Client.
Contract means the TC, the Form, Annexures to the Form and if applicable, each and every one of the Partner’s additional terms of use (“Specific Terms of Use” or “STU”) as the case may be (collectively referred to as the “Contract”). For the purposes of the Contract, client means the signatory of the Contract (“Client”).
The Client may not resell the Services or otherwise generate income from the Services.
The Contract shall form the entire agreement between the parties, and supersedes any previous agreement relating to its subject matter. In case of any conflict between the TC and the Form, the Form shall prevail. In any case, the STU prevail on any contradictory terms of any other contractual document concerning the resold Services. By signing the Form, the Client acknowledges that it has read and accepted the TC and if applicable, each and every additional STU.
The Contract shall not be modified or amended except in writing and shall require the signature of the duly authorised representatives of both parties.
The Contract shall commence on the date on which the Contract is signed between both parties (“Effective Date”).
2.1 Charges. The Client shall pay the charges for the Services as set out in the Form, Annexures to the Form or in a superseding quotation accepted by the Client. All charges are exclusive of any applicable taxes, VAT or GST and regulatory fees now or hereafter attributable to the Services and included in the invoice. If products or hardware are sold, the Provider retains title and lien until full payment is made by Client who is responsible for all costs of shipping, transportation and insurance as well as applicable customs duties and taxes.
The Provider shall not increase the charges as agreed in the Form unless the Client has consented in writing in advance.
2.2 Invoicing. The Services are invoiced electronically or otherwise monthly and, in a currency, as set out in the Form (by default, in USD Dollars).
2.3 Methods of payment. Net payment of invoices, in full and in cleared funds duly received by the Provider, shall be due as set out in the Form and by default fourteen (14) days starting from the date of the receipt of the invoice. Any invoice not disputed within fourteen (14) days following the date of receipt shall be considered to have been accepted by the Client.
If the Client fails to pay the charges due in a timely manner, the Provider may suspend access to Services without prior notification to the Client.
Moreover, the Provider may also recover reasonable compensation from the Client for any recovery expenses incurred by the Provider to collect any sums properly due by the Client under this Contract.
Client shall not be entitled to set off or otherwise withhold any undisputed amount due to the Provider under this Contract.
Unless the term is set out in the Form, the initial term of the Contract shall commence on the Effective Date and continue for a period of one (1) year. Thereafter, the Contract shall automatically renew from year to year unless the Client gives written notice of termination to the Provider at least one (1) month prior to the end of the initial or renewal term.
4.1. Notwithstanding any other provision of the Contract, when the Client downloads any software application, including any conferencing Add-on software together with any documentation to use the Provider’s proprietary services (altogether referred as “Software”), the Client is entitled to use the Software insofar as this is necessary for the proper and lawful utilisation of Services and only as expressly permitted in this Contract and for the duration of the Contract. The Partner’s (and other non-Provider’s) proprietary services are subject to the SLT stated under their respective STU.
4.2. The Provider grants the Client, for the duration of the present license a worldwide, non-transferable, non-exclusive and personal right to use, in object code form, the Software.
4.3. All rights, title, ownership rights, and Intellectual Property Rights in the Software are protected by applicable copyright laws or other laws and are held by the Provider or its licensors and all are reserved.
4.4. The Client must comply with any limitations of the SLT that only allow using the Software in certain ways and in particular, may not (i) copy the program or the source code of the Software, or (ii) use the Software for any purpose other than use of the Services, or (iii) create copies of the Software for any purpose that is not directly related to the Services or make more copies of the Software than specified in these SLT or allowed by applicable law despite this limitation, or (iv) modify, translate, adapt, reverse engineer, decompile, disassemble (except and only to the extent that applicable law expressly permits, despite this limitation), incorporate the Software into any other software or create derivative works based upon the Software, or (v) resell, rent, lease or make any commercial use of the Software or transfer the Software or these SLT to any third party, (vi) use the documentation but for internal and reference purposes, or (vii) remove any proprietary notices or labels from the Software, or (viii) export, re-export, divert or disclose any portion of the Software or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.
5.1. The Client warrants that it shall:
(a) provide the Provider with all the information necessary to the supply of the Services and update the Provider in writing with any changes in such information (especially any change of address, user, or otherwise). The Client shall be solely responsible for any consequences caused by failure or delay in providing or updating such information;
(b) be responsible for ensuring that its own systems and equipment comply with the technical requirements (as amended from time to time) that are necessary to use the Services and prevent itself from the risk of losing data, files and programs by making regular backups and using antivirus software updated regularly;
(c) only use the Services in accordance with directions given by the Provider from time to time for better management of the Services or for security purposes;
(d) provide content and data in accordance with all applicable local laws and regulations, make all necessary disclosures and obtain any necessary authorisations, before using the Services, regarding such use of the Service, the collection and the use of identifying information about Services participants;
(e) restrict knowledge and maintain the confidentiality of all telephone access numbers, PIN Codes, logins, passwords and personal identification numbers used in connection with the Services and generally safeguard such information to ensure that there is no unauthorised use of the Services;
(f) be exclusively liable for (i) the use of the Services, especially in the case of Client’s use after termination of the Contract whatever the cause, (unless such use of the Services is in accordance with the terms of the Contract or is permitted by the Provider or Partner) and for illegal, fraudulent or immoral use by the Client and (ii) the content and the transmission of any conference communications; and
(g) authorise the Provider, solely for the purpose of providing the Services to host, record, copy, cache and display transmission content.
5.2. The Client acknowledges that:
(a) the Services depends on the reliability, availability and continuity of connections by various third parties and external factors (such as telecom carriers, public internet, Client’s equipment etc) and the Provider cannot be liable for a service interruption outside of its control;
(b) the Provider makes no warranty express or implied that all security threats and breaches and vulnerabilities will be detected;
(c) the Provider may be required to reduce or suspend Services for a short period (i) to enable technical or maintenance operations to be improved, upgraded or conducted, or (ii) to avoid an imminent threat of material or financial harm to the Provider or to anyone else, (iii) or in the event of a Force majeure. In all such cases, the Provider will use reasonable efforts to minimise any inconvenience to the Client caused by such reduction or suspension of Services; and
(d) the Provider may provide all updates, supplements, add-on components, features, or other functionality, including without limitation increases, decreases, and alterations of functionality, features, storage, security, availability, content, and other information relating to the Software or Services that the Provider may make available to the Client after the date that Services commence, subject to any additional terms and conditions provided by the Provider applicable to such updates, including for Services the Provider is allowed to resell.
5.3. The Provider may audit the Client's use of the Services to ensure compliance with this Contract, under conditions to be agreed between the parties.
6.1. In no event shall either party be liable to the other whether in tort, contract, innocent misrepresentation or in any other legal theory, for (i) any special, indirect, incidental or consequential loss, costs, damages, charges or expenses; or (ii) loss of profits, or (iii) loss of business, contracts, goodwill, business opportunities; or (iv) loss of income, anticipated savings; or (v) loss or corruption of data or information except where such loss or corruption is intentionally caused by that party; or (vi) any degradation which occurs in relation to the network or associated software or hardware of the Client.
6.2. The Client understands and agrees that the Services and the Software is provided "as is" and “as available”, and where permitted by law, the Provider expressly disclaims all warranties of any kind, expressed or implied, including without limitation any warranty of merchantability or fitness for a specific purpose.
6.3. Notwithstanding anything to the contrary, each party’s maximum aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or any other legal theory for damages arising out of or relating to this Contract (including the SLT) to the other party shall not exceed the aggregate amount of the previous three (3) months of billings immediately prior to the incident arising, in relation to the affected Services, as set out in the Form.
6.4. Certain legislation may imply warranties or conditions or impose obligations upon the Provider which cannot be excluded, restricted or modified or cannot be excluded, restricted or modified except to a limited extent. This Contract must be read subject to these statutory provisions. If these statutory provisions apply, to the extent to which the Provider is entitled to do so, the Provider limits its liability in respect of any claim under those provisions to:
(a) in the case of products, at the Provider's option (i) the replacement of the products or the supply of equivalent products, or (ii) the repair of the products, or (iii) the payment of the cost of replacing the products or of acquiring equivalent products, or (iv) the payment of the cost of having the costs repaired; and
(b) in the case of services, at the Provider’s option (i) the supplying of the services again, or (ii) the payment of the cost of having the services supplied again.
6.5. Nothing in this Contract excludes or limits the liability of one party (i) for death or personal injury caused by negligence, or (ii) for fraud or fraudulent misrepresentation, or (iii) any violation of laws; or (iv) any indemnification obligations in relation to claims made by third parties; or (iv) breach of confidentiality or data security obligations; (or) other liability which cannot be excluded or limited by law.
6.6. The parties declare that the price agreed in the Contract reflect the distribution of the risk as negotiated in between the parties and resulting from the limited liability provisions as defined hereof and that the limitation of liability as mentioned above is an essential condition leading the signature of the Contract.
The Client irrevocably agrees to indemnify, defend and hold the Provider and its employees, officers, directors, consultants and agents, harmless from and against any claims, damages, liabilities, costs and expenses (including without limitation, legal fees and expenses including any applicable taxes, Tax arising out of or related to (i) the use of the Services, including content of any conference communications held by the Client (such as confidential communication and disclosures made through the use of the Services) and transmission content (such as application sharing, document sharing, file transfer), or (ii) the Client’s breach of any provision of this Contract (including the SLT), or (iii) the Client’s infringement of any Intellectual Property Rights or other rights of any person or entity caused by the use of the Services including the use of any Software.
The Provider irrevocably agrees to indemnify, defend and hold the Client and its employees, officers, directors, consultants and agents, harmless from and against any claims, damages, liabilities, costs and expenses arising as a result of the Client’s use of the Services or the Software resulting in the infringement of any third party’s Intellectual Property Rights.
In an event of force majeure, the affected party shall notify the other party as soon as practicable. Neither party shall be in breach of this Contract, nor liable for any failure or delay in performance of any obligations under this Contract arising from or attributable to force majeure, which shall include, but not be limited to, events that are unpredictable, unforeseeable or irresistible, such as any severe weather, earthquake, fire, epidemic, acts of terrorism, biological warfare, outbreak of military or civil hostilities, explosions, strikes or other labour unrest, sabotage, expropriation by governmental authorities or interruption of service due to telecom carriers or Partner events.
9.1. The Provider may terminate the Contract immediately if (i) the Client is in breach of any provision of this Contract (including the SLT) and the Client is incapable of having the breach remedied, or (ii) the Client is in breach of any provision of this Contract (including the SLT) and the Client does not remedy the breach within three (3) weeks of being notified of the breach by the Provider, or (iii) a receiver or administrator is appointed over the Client or its assets, or if the Client otherwise becomes insolvent.
9.2. The Client may terminate the Contract immediately if (i) the Provider is in breach of any provision of this Contract (including the SLT) and the Client does not remedy the breach within three (3) weeks of being notified of the breach by the Client, or (iii) a receiver or administrator is appointed over the Client or its assets, or if the Client otherwise becomes insolvent.
9.3. The Provider may, at its sole discretion, terminate the Contract by giving one (1) month notice to the Client.
9.4. As set out in clause 3, the Client may terminate the Contract by giving one (1) month written notice to the Client, provided that the notice is provided at least one (1) month prior to the end of the initial or renewal term in accordance with clause 3.
9.5. On termination of the Contract, the Client agrees that it shall:
(a) immediately pay the Provider any amounts owed under the Contract, including but not limited to all of the Provider’s outstanding unpaid invoices and interest as well as any invoices which will fall due for Services provided to the Client prior to the date of termination;
(b) remain liable to pay all fixed monthly subscription fees until the end of the subscription period specified in the Form (however, the Client is released from obligation under this Section 9.5 (b) if the Client terminates the Contract in accordance with Section 9.2 and Section 14.5); and
(c) immediately cease using the Services and the associated Software.
10.1. The Client agrees that all intellectual property rights, confidential know-how, trade secrets, graphics, logos and trade names used by the Provider in performing its obligations under this Contract (“Intellectual Property Rights”) are, and will remain, the property of the Provider (or the Partners) and nothing in this Contract or the Provider’s performance of it will be deemed to transfer to the Client any such Intellectual Property Rights of the Provider or any Partner. The allocation of access numbers, PIN Codes, logins, passwords, personal identification numbers and telephone numbers shall not involve any transfer of ownership to the benefit of the Client.
10.2. The Provider shall not reference the names, trademarks, trade names and corporate logos of the Client on its marketing literature, website and commercial representations and in any list of Client references without Client’s prior written consent.
11.1 Confidentiality. Each party and their employees, agents, consultants, subcontractors or any other persons for whom they are responsible undertake to keep strictly confidential any information that they may have mutually exchanged during the performance of the Contract including passwords or access keys to the Services. Confidential information includes, in particular (non-exhaustive list) trade secrets, customer lists, software plans or any other product or projects in development, marketing or business plans, or financial information, pricing, and all documents/access information for the Services. Neither party shall use or disclose any information to a third party for any purpose other as may be reasonably necessary for the performance of the respective duties of each party under this Contract.
This obligation shall not apply to information which is (i) in the public domain other than in breach of the Contract, or (ii) in the possession of the receiving party before such disclosure has taken place, or (iii) obtained from a third party who is free to disclose the same, or (iv) legally required to be disclosed.
11.2 Privacy. Each Party to this Contract shall comply with the applicable privacy laws if it comes into possession of any personal information from the other party.
Each party may assign or transfer any of its rights or obligations under this Contract, in whole or in part, only with the written consent of the other party, except in case of assignment or transfer intragroup, in which case the only information of the non-assigning party shall be required.
In case of transfer or assignment as mentioned above, the assignee will be fully subrogated to all of the rights and obligations of the assignor under the present Contract and will be deemed as the signatory of the present Contract without necessary Contract changes or amendment.
This clause shall not be construed as limiting the Provider right to use subcontractors to carry out any of its obligations under this Contract, provided that the Provider shall remain liable for any such Services provided by a subcontractor.
Unless otherwise agreed upon by in the Form, this Contract shall be governed by the law of Singapore. and the courts of Singapore shall have exclusive jurisdiction.
14.1. Failure by a party to enforce any clause of the Contract, whether temporarily or permanently shall under no circumstance be construed as a waiver of the rights of such party under the said clause.
14.2. Each party warrants that it has the necessary rights, licenses and permissions to enter into and perform its obligations under the terms of the Contract.
14.3. If any provisions of this Contract be held as void, invalid, unlawful or unenforceable to any extent, the validity and enforceability of the remainder of the Contract shall not be affected.
14.4. In connection with any actions or activities associated with this Contract or in connection with the relationship between the parties, neither party shall engage in any unlawful trade practices or any other practices that are in violation of any law that prohibits bribery or similar activity.
In connection with this Contract, each party shall ensure that (i) it will not either directly or indirectly, seek, receive, accept, give, offer, agree or promise to give any money, facilitation payment, or other thing of value from or to anyone (including but not limited to government or corporate officials or agents) as an improper inducement or reward for or otherwise on account of favourable action or forbearance from action or the exercise of influence; or (ii) it will establish appropriate safeguards to protect itself from such prohibited actions.
Each party shall, upon request from the other party, provide evidence of the steps being taken to avoid prohibited actions, including the establishment of policies, practices, and/or business controls with respect to these laws.
To the extent permitted by the relevant authority, each party shall promptly inform the other party of any official investigation with regard to alleged breaches of the above laws that are related in any way to this Contract.
14.5 The Provider warrants that neither it nor any person(s) that own(s), individually or collectively, or controls it is (a) subject to economic sanctions imposed by the United States, European Union or the United Kingdom, including but not limited to the List of Specially Designated Nationals and Blocked Persons maintained by the U.S. Office of Foreign Assets Control and/or the U.K. Consolidated List of Financial Sanctions Targets published by Her Majesty’s Treasury; or (b) located, organized, headquartered, or, if a natural person, ordinarily resident in a country or region that is subject to comprehensive economic and/or trade sanctions imposed by the United States (currently Cuba, Crimea, North Korea, Iran, Syria, and Sudan) or a governmental instrumentality of such country. The Provider agrees that it will notify the Client if these circumstances change. If at any time during the term of this Contract, the Provider is in breach of this Section 14.5, then, in addition to any other rights the Client may have under the Contract, the Client may immediately terminate this Contract. For purposes of this provision, “own(s)” means any ownership interest, direct or indirect, of 50 percent or more, and “control” means the right or ability to, directly or indirectly, dictate the decisions, actions, and/or policies of an entity or its management by any means.
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