Last Updated: 16 August 2022
PLEASE READ THESE TERMS OF SERVICE (these “TERMS”) CAREFULLY.
Our Terms of Service is a contract between you and us, Quilt AI Pte. Ltd., that governs your use of the SPHERE software ("SPHERE") licensed to you on a limited, non-exclusive, non-transferable and revocable basis.
Analytical Data: has the meaning ascribed to it in Clause 5.2(a)(i).
Approved Output: output (including results of data analysis, insights and reports) generated through the use of SPHERE by you that has been exported and/or downloaded from the SPHERE dashboard by you or approved by you.
Confidential Information: any information which is proprietary to the disclosing party that is not public knowledge and that is obtained from the disclosing party in the course of, or in connection with, these Terms and/or the Services. Our Confidential Information includes Intellectual Property owned by us (or our licensors), including information that relates to SPHERE.
Data: all data, images, videos, content, and information (including Personal Data) owned, held, used or created by or on behalf of you that is stored using or keyed into SPHERE, including Output.
Feedback: has the meaning ascribed to it in Clause 7.3.
Fees: the applicable fees agreed between you and us in a Software Subscription Agreement or otherwise in writing (such as the subscription tier or plan on our Website that you selected), as may be updated from time to time in accordance with Clause 6.4.
Force Majeure: an event that is beyond the reasonable control of a party, and without any fault or negligence, excluding:
Intellectual Property Rights: includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
month: a time period starting on one day in a calendar month and ending on the day immediately preceding the numerically corresponding day in the next calendar month, except that if there is no numerically corresponding day in that next month, it shall end on the last day of that next month.
Objectionable: includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
Output: any output (including results of data analysis, insights and reports) generated through your use of SPHERE, and includes Approved Output.
Permitted Users: your personnel who are authorized to access and use the Services on your behalf in accordance with Clause 4.3.
Personal Data: has the meaning given in the Personal Data Protection Act 2012 (Singapore).
Proprietary AI: our proprietary artificial intelligence systems used to build SPHERE, including any output generated as a result of being trained with the Data.
quarter: a 3 month period starting on the Start Date and/or each subsequent 3 month period (as the context requires).
Related Services: any related or further service that we agree to provide to you under a Software Subscription Agreement.
SaaS Service: the subscription service as it relates to SPHERE, which enables users to generate data analysis, insights and reports. The SaaS Service is described in more detail on the Website, as the Website is updated from time to time.
Sales Tax: goods and services tax, value added tax, sales tax or equivalent tax payable under any applicable law.
Services: the SaaS Service and any additional Related Service agreed between you and us under a Software Subscription Agreement.
Software Subscription Agreement: an agreement (whether titled a Software Subscription Agreement or a Master Services and License Agreement or otherwise) between you and us setting out additional terms and conditions in relation to the SaaS Service, to be read in conjunction with these Terms.
SPHERE: the software owned by us (and our licensors) that is used to provide the SaaS Service.
Start Date: the date that you set up an account.
Third Party Materials: has the meaning ascribed to it in Clause 7.4.
Underlying Systems: the Proprietary AI, SPHERE, IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third party solutions, systems and networks.
We, us, or our: Quilt AI Pte. Ltd.
Year or YEAR: a 12 month period starting on the Start Date or the anniversary of that date (as the context requires).
You or your: you, or if Clause 2.1(b) applies, both you and the other person on whose behalf you are acting.
In these Terms:
(a) clause and other headings are for ease of reference only and do not affect the interpretation of these Terms;
(b) words in the singular include the plural and vice versa;
(c) a reference to:
(i) a "party" to these Terms includes that party's permitted assigns;
(ii) personnel includes officers, employees, contractors and agents, but a reference to your personnel does not include us;
(iii) a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity;
(iv) "day" or "days" means calendar days unless otherwise stated;
(v) including and similar words do not imply any limit; and
(vi) $ and dollars is a reference to United States Dollars (USD) currency; and
(d) a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them.
2.1 These Terms apply to your use of the Service. By setting up an account:
(b) where your access and use are on behalf of another person (e.g. a company), you confirm that you are authorized to, and do in fact, agree to these Terms on that person's behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.
2.2 If you do not agree to these Terms, you are not authorized to use the Service, and you must immediately stop doing so.
2.3 We may change these Terms at any time at our sole discretion by notifying you of the change by email or posting a notice or posting the changed Terms on the Website. Unless stated otherwise, any change takes effect from the date set out in the notice or the changed Terms. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the Service from the date on which these Terms are changed, you agree to be bound by the changed Terms.
2.4 These Terms were last updated on the date shown at the top of this web page.
We must use commercially reasonable efforts to provide the Services: (a) in accordance with these Terms and Singapore law; (b) exercising reasonable care, skill and diligence; and (c) using suitably skilled, experienced and qualified personnel.
Our provision of the Services to you is not exclusive. Nothing in these Terms prevents us from providing the Services to any other person, company or entity.
(a) Subject to Clause 3.3(b), we will use commercially reasonable efforts to ensure the SaaS Service is available at all times. However, it is possible that on occasion the SaaS Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. We will use commercially reasonable efforts to publish on the Website advance details of any unavailability.
(b) Through the use of web services and APIs, the SaaS Service may interoperate with a range of third party service features. We do not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make available that feature to you. For the avoidance of doubt, if we exercise our right to cease the availability of a third party feature, you are not entitled to any refund, discount or other compensation.
(c) We may, at our discretion, make available future updates to SPHERE that may not necessarily include all existing software features or all software features offered at the time of your sign-up. You agree that we may change, improve, modify, suspend or discontinue any part or feature of SPHERE or the SaaS Service at any time with or without notice.
3.4 Additional Related Services
(a) We may, from time to time, make available additional services to supplement the SaaS Service.
(b) At your request and subject to you paying the applicable Fees (and any additional fee set out in a Software Subscription Agreement), we may agree to provide to you an additional Related Service in accordance with these Terms and as set out in a Software Subscription Agreement.
3.5 Per-pull limits
To facilitate the management of the Underlying Systems, upper limits are imposed on the number of insight sources (e.g. keywords, reviews, posts) per data pull. We may, at our sole discretion, modify such limits and/or suspend or discontinue any sources. This table will be updated periodically to reflect the available sources and their applicable limits. We will use commercially reasonable efforts to keep this table current but make no commitment to update on a real-time basis.
4.1 General use
You and your personnel must:
(a) use the Services in accordance with these Terms, applicable laws and if applicable, any Software Subscription Agreement, solely for:
(i) your own internal business purposes; and
(ii) lawful purposes;
(b) agree to and abide by the fair usage of the Services, as determined at our sole discretion. In respect of the SaaS Service, fair usage is primarily governed based on the per-pull limits specified in Clause 3.5 above and any limits defined in your subscription tier, plan or Software Subscription Agreement. If your subscription tier, plan or Software Subscription Agreement does not specify any applicable limit(s), we hereby reserve the right, in addition to Clause 3.5 above, to enforce quotas and usage limits to any resources (including without limitation data sources, searches, pulls and Output);
(c) not use the Services if you are an individual under the age of eighteen (18) or if you are unable to form a binding contract with us;
(d) not resell or make available the Services to any third party, or otherwise commercially exploit the Services;
(e) not avoid the Fees by copying or taking screenshots of the Output;
(f) not copy, decompile, reverse engineer, disassemble, derive the source code or any underlying component of, decrypt, modify, or create derivative works of SPHERE or any Services or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or by licensing terms governing use of open-source components that may be included with SPHERE) or create any software that functions substantially the same as SPHERE or the Services or any part thereof. You and your personnel further agree not to remove, obscure, or alter any proprietary notices (including trademark and copyright notices) that may be affixed to or contained within SPHERE;
(g) not, directly or indirectly, create a duplicate or materially similar service, or otherwise create or compile a database, collection, repository or directory of Output or data, images, videos, content or information accessed through SPHERE or which includes SPHERE or any Services or any part or component thereof;
(h) not use web scraping, web harvesting, data mining or other web/data extraction methods to extract any data from the Services and/or the Underlying Systems; and
(i) not attempt to do any of the prohibited acts in sub-Clauses (c) to (h) above.
4.2 Access conditions
When accessing the SaaS Service, you and your personnel must:
(a) not impersonate another person or misrepresent authorization to act on behalf of others or us;
(b) correctly identify the sender of all electronic transmissions;
(c) not undermine the security or integrity of the Underlying Systems, or avoid, bypass, tamper with or otherwise circumvent any technological, security and/or authentication measure implemented by us within the Services, or use the Services in connection with any spyware, malware, virus, trojan horse or other malicious or harmful code;
(d) not use, or misuse, the SaaS Service in any way which may impair or interfere with the functionality of the Underlying Systems, or impair or interfere with the ability of any other user to use the SaaS Service;
(e) not view, access or copy any material or data other than:
(i) that which you are authorized to access; and
(ii) to the extent necessary for you and your personnel to use the SaaS Service in accordance with these Terms;
(f) neither use the SaaS Service in a manner, nor collect, transmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading;
(g) comply with any terms of service on the Website, as updated from time to time by us and if applicable, any Software Subscription Agreement;
(h) not use the SaaS service for any political purpose, any unlawful purposes and/or any purpose other than to generate Approved Output for use for brand advertising on social media posts, such as posts on Facebook, Twitter and Instagram, or for marketing purposes; and
(i) not attempt to do any of the prohibited acts in sub-Clauses (a), (c) to (f) and (h) above.
(a) Without limiting the effects of Clause 4.2, no individual other than a Permitted User may access or use the SaaS Service.
(b) You may authorize any member of your personnel to be a Permitted User, in which case you will provide us with the Permitted User’s name and other information that we reasonably require in relation to the Permitted User.
(c) You must procure each Permitted User’s compliance with Clauses 4.1 and 4.2 and any other reasonable condition notified by us to you.
(d) A breach of these Terms by your personnel (including, to avoid doubt, a Permitted User) is deemed to be a breach of these Terms by you.
You are solely responsible for (i) the Data; and (ii) procuring all licenses, authorizations and consents required for you and your personnel to use the Services, including to use, store and input the Data into, and process and distribute the Data through, the Services.
5.1 Access to Data
(a) You acknowledge that (and give your consent to the following):
(i) we may require access to the Data to exercise our rights and perform our obligations under these Terms, including to train the Proprietary AI; and
(ii) to the extent that this is necessary but subject to Clause 8, we may authorize a member or members of our personnel to access the Data for this purpose.
(b) You must ensure that you have procured all consents and approvals that are necessary for us to access the Data as described in Clause 5.1.
5.2 Analytical Data
You acknowledge and agree that:
(a) we may:
(i) use Data and information about your and your end users’ use of the Services to generate anonymized and aggregated statistical and analytical data ("Analytical Data"); and
(ii) use Analytical Data for our internal research and product development purposes, to conduct statistical analysis and identify trends and insights;
(b) our rights under Clause 5.2(a) above will survive termination of these Terms; and
(c) title to, and all Intellectual Property Rights in, Analytical Data is and remains our property.
(a) You acknowledge and agree that to the extent Data contains Personal Data, in collecting, holding and processing that information through the Services, we are acting as your agent for the purposes of applicable privacy law.
(b) You must obtain all necessary consents from the relevant individual to enable us to collect, use, hold and process that information in accordance with these Terms.
5.4 Backup of Data
While we will implement standard industry measures to back up all Data stored using the Services, you agree to keep a separate back-up copy of all Data uploaded by you onto the SaaS Service.
You have been duly made aware that any Output generated by the Proprietary AI and SPHERE are used by you at your own discretion and risk on an as-is basis, and you agree that we are not to be held liable in any way for any actual or alleged resemblance between any Output and any third party materials or rights. You agree that you are solely and exclusively liable with respect to any actual or alleged claim by a third party that any Data (including any Approved Output) infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data (including any Approved Output) is Objectionable, incorrect or misleading, and you hereby indemnify and hold harmless us and our members, directors, officers, employees and agents from and against any and all liability, claim, proceeding, cost, expense (including the actual legal fees charged by our solicitors) and loss of any kind arising therefrom and/or in any way connected with (i) your negligence, gross negligence or intentional tortious acts or commissions or omissions; (ii) your access to or use of the Services; (iii) your violation of these Terms; and/or (iv) your actual or alleged infringement, misappropriation, or violation of our or any third party’s rights (including Intellectual Property Rights or proprietary rights).
In consideration of the SaaS Service and use of SPHERE, you must pay us the Fees and you expressly authorize us (or our third-party payment processor) to charge you such Fees. You agree to the pricing, payment and billing policies applicable to such Fees herein, as posted or otherwise communicated to you.
6.2 Invoicing and payment
By electing to set up a subscription, you acknowledge that your subscription has recurring payment features and you accept full responsibility for all recurring payment obligations prior to your cancellation of the subscription or termination of these Terms by us.
(a) On the Start Date, an auto-generated invoice for the Fees for the first month, quarter or Year (as applicable depending on your subscription tier or plan) will be sent to your registered email address. Thereafter, we will automatically charge you the Fees monthly, quarterly or annually (as applicable depending on your subscription tier or plan) in advance and you will receive auto-generated invoices for the Fees, unless and until you notify us to cancel your subscription in accordance with Clause 11.1(b). Such Fees shall be automatically charged on the relevant date.
(b) If during any month your usage exceeds your subscription tier or plan (if applicable), you will automatically be charged on a per unit basis as set out on our pricing page on our Website or your access to and use of the SaaS Service will be restricted or suspended till the start of the month or next billing cycle (as applicable). The subsequent invoice will reflect any necessary adjustment to the Fees.
(c) The Fees exclude Sales Tax, which you must pay on taxable supplies under these Terms.
(d) You must pay the Fees:
(i) by credit card on your subscription renewal; or
(ii) within thirty (30) days of invoice if we offer you the option of paying the Fees by electronic bank transfer,
in cleared funds without any set off or deduction.
(e) You represent and warrant that you have the legal right to use the payment method(s) represented by the payment information you provided (such as the credit card number, expiration date of the credit card, and the email and postal address for billing purposes), and authorize us to provide such payment information to our third-party payment processor.
(f) All payments are non-refundable and non-transferable except as expressly provided in these Terms. All Fees and applicable taxes, if any, are payable in United States Dollars (USD) currency.
6.3 Overdue amounts
We may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by our primary trading bank as at the due date (or, if our primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus two percent (2%) per annum.
6.4 Fee increases
We may change or increase the Fees at any time. If we have entered into a Software Subscription Agreement with you stipulating the fees over a period of time, then that Software Subscription Agreement will prevail.
6.5 Free trials
(a) To qualifying subscribers that successfully sign-up or subscribe for the SaaS Service as part of a free trial, we may offer or make available access to the SaaS Service on a trial basis without charge for the period of time and/or with certain limits as set forth in the specific terms associated with the free trial (if applicable), unless terminated sooner as set out in these Terms.
(b) Except as may otherwise be agreed by us in writing, free trials will only be available to users who have not previously held a paid subscription for the SaaS Service or previously used the SaaS Service as part of a free trial. Restrictions may also exist with respect to combining a free trial with any other offers.
(c) To the maximum extent permitted under law, we reserve the right, in our absolute discretion at any time without notice and with no liability, to (i) determine if and when a free trial may be offered or made available, and the terms of such free trial (including trial period and trial limits, as applicable); (ii) determine your eligibility for a free trial; (iii) withdraw or modify any terms of a free trial; and (iv) terminate the free trial, these Terms and your use of the SaaS Service during a free trial.
(d) Usage after the applicable trial period or over the applicable trial limits will require a purchase of additional resources or services, or an upgrade to a paid subscription. At the end of the free trial (whether by expiry, cancellation or termination), you will lose access to all your Data stored using SPHERE and any customizations made to the SaaS Service by or for you during the free trial period unless a paid subscription to the same or equivalent tier or plan as covered by the free trial (or an upgraded tier or plan) is purchased, or only in the case of your Data, unless you export or download such Data from the SPHERE dashboard prior to the end of the free trial. The right to request for a copy of any Data stored using the SaaS Service under Clause 11.4(e)(i) is expressly excluded from applying to or in connection with any free trial.
(e) If you subscribe to the SaaS Service as part of a free trial, you are also agreeing to sign up for a paid subscription and authorizing us to charge your payment method immediately at the end of your free trial, unless you cancel your subscription prior to the end of your free trial by notifying us in accordance with Clause 11.1(b). You may cancel your free trial subscription at any time.
(f) To the maximum extent permitted under law, the SaaS Service will be provided during a free trial on an as-is basis with no conditions, guarantees, representations or warranties from us, express or implied by statute or otherwise, and despite any other provision in these Terms, we shall have no indemnification obligations nor any liability of any kind in relation to the SaaS Service and, to the extent that they cannot be excluded, our aggregate liability for them is limited to a maximum of one hundred dollars ($100). Without prejudice to the foregoing, these Terms shall apply to the use of the SaaS Service under a free trial except to the extent varied in this Clause 6.5 or any specific terms associated with such free trial (which are hereby incorporated by reference). The cap in this Clause 6.5(f) is subject to and not in addition to the cap set out in Clause 10.1.
(a) Subject to Clauses 7.1(b) and 7.1(c), title to, and all Intellectual Property Rights in, the Services, the Website and all Underlying Systems (including the Proprietary AI and SPHERE, and including any improvements modifications, customizations and enhancements to those Intellectual Property Rights), is and remains our property (or our licensors’ property). You must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
(b) Title to, and all Intellectual Property Rights in, the Data (as between the parties), excluding the Output which shall be subject to Clause 7.1(c) instead and any Data owned by a third party, remains your property. You grant us a worldwide, non-exclusive, fully paid up, transferable, royalty-free, irrevocable and perpetual license to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with these Terms, as well as for the purpose of training the Proprietary AI in order to improve its performance.
(c) Title to the Output (as between the parties), excluding any Data or part thereof owned by a third party, becomes your property on payment of the Fees for the Output in accordance with these Terms. However, you grant us a worldwide, non-exclusive, fully paid up, transferable, royalty-free, irrevocable and perpetual license to use, store, copy, modify, make available and communicate the Output for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with these Terms, as well as for the purpose of training the Proprietary AI in order to improve its performance.
As such, while you may remove any Output from your SPHERE account by specifically deleting it, such Output may not be removed completely and copies of such Output may continue to exist on the SaaS Service or the Underlying Systems. To the maximum extent permitted by law, we shall not be responsible or liable for the removal or deletion of (or the failure to remove or delete) any of such Output.
To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable and perpetual license to use for our own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us in the provision of the Services.
If you provide us with ideas, comments or suggestions relating to the Services or Underlying Systems (collectively, "Feedback"):
(a) all Intellectual Property Rights in that Feedback, and anything created as a result of that Feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and
(b) we may use or disclose the Feedback for any purpose without any restriction or compensation to you.
7.4 Third party sites and material
You acknowledge that the SaaS Service may link, provide or need access to, or display, include or make available content, data, information, applications, links to and/or materials (collectively, "Third Party Materials") from, third party websites or feeds that interoperate with or are connected or relevant to the SaaS Service, and you expressly consent to such use to the extent necessary to complete the necessary functions of SPHERE. Any link, access, display and/or inclusion from the SaaS Service are provided solely as a convenience to you, and does not imply our endorsement, approval or recommendation of, or responsibility for, those websites or feeds, their operators or the Third Party Materials. You acknowledge and agree that we are not responsible for examining, ensuring or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of the websites or feeds or the Third Party Materials. To the maximum extent permitted by law, we exclude all responsibility and liability for those websites or feeds, their operators or the Third Party Materials.
Title to, and ownership of, Confidential Information including any and all Intellectual Property Rights relating thereto shall remain with the disclosing party (or its licensors). Each party must, unless it has the prior written consent of the other party:
(a) keep confidential at all times the Confidential Information of the other party;
(b) effect and maintain adequate security measures to safeguard the other party's Confidential Information from unauthorized access or use; and
(c) disclose the other party's Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party's Confidential Information is aware of, and complies with, the provisions of Clauses 8.1(a) and 8.1(b).
8.2 Permitted disclosure
The obligation of confidentiality in Clause 8.1 does not apply to any disclosure or use of Confidential Information:
(a) for the purpose of performing a party’s obligations, or exercising a party’s rights, under these Terms or in connection with the Services;
(b) required by law (including under the rules of any stock exchange);
(c) which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
(d) which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or
(e) by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, or as part of the due diligence by a third party who intends to invest in our business, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than this Clause 8.
Despite Clauses 8.1 and 8.2, each party can use the other party’s brand name for publicity purposes (subject to that party's prior written consent, not to be unreasonably withheld or delayed).
9.1 Mutual warranties
Each party warrants that it has full power and authority to enter into and perform its obligations under these Terms.
9.2 No implied warranties
To the maximum extent permitted by law:
(a) our warranties are limited to those set out in these Terms, and all other conditions, guarantees, representations or warranties whether expressed or implied by statute or otherwise are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to ten percent (10%) of the Fees paid by you. The cap in this Clause 9.2(a) is subject to and not in addition to the cap set out in Clause 10.1; and
(b) we make no warranty or representation that the Services will:
(i) meet your requirements or be suitable for a particular purpose; or
(ii) be secure, free of viruses or other harmful code, uninterrupted or error free.
9.3 Consumer protection
You agree and represent that you are acquiring the Services, and accepting these Terms, for the purposes of trade. The parties agree that:
(a) to the maximum extent permissible by law, any applicable consumer protection legislation does not apply to the supply of the Services or these Terms; and
(b) it is fair and reasonable that the parties are bound by this Clause 9.3.
9.4 Limitation of remedies
Where legislation or rule of law implies into these Terms a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in these Terms. However, our liability for any breach of that condition or warranty is limited, at our option, to:
(a) supplying the Services again; and/or
(b) paying the costs of having the Services supplied again.
10.1 Maximum liability
IN ANY EVENT, OUR MAXIMUM AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THESE TERMS OR RELATING TO THE SERVICES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE, SHALL NOT IN ANY YEAR EXCEED AN AMOUNT EQUAL TO TEN PERCENT (10%) OF THE TOTAL FEES PAID BY YOU RELATING TO THE SERVICES IN THE PRECEDING YEAR (WHICH IN THE FIRST YEAR IS DEEMED TO BE TEN PERCENT (10%) OF THE TOTAL FEES PAID BY YOU FROM THE START DATE TO THE DATE OF THE FIRST EVENT GIVING RISE TO LIABILITY). THE CAP IN THIS CLAUSE 10.1 INCLUDES THE CAP SET OUT IN CLAUSE 9.2(A) OR CLAUSE 6.5(F) AS APPLICABLE. IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO US, OUR MAXIMUM AGGREGATE LIABILITY WILL NOT EXCEED ONE HUNDRED DOLLARS ($100).
10.2 Unrecoverable loss
Under no circumstances will we be liable to you under or in connection with these Terms or the Services for any:
(a) loss of profit, revenue, savings, business, use and/or goodwill;
(b) loss of, damage to, or corruption of data (including any Data); or
(c) consequential, indirect, exemplary, incidental, punitive or special damages or loss of any kind.
10.3 Unlimited liability
(a) Clauses 10.1 and 10.2 do not apply to limit our liability under or in connection with these Terms for:
(i) personal injury or death; or
(ii) fraud or willful misconduct.
(b) Clause 10.2 does not apply to limit your liability:
(i) to pay the Fees or any other amount payable under these Terms;
(ii) for a breach of Clause 4 and/or Clause 8;
(iii) under the indemnity in Clause 5.5; or
(iv) for those matters stated in Clause 10.3(a).
10.4 No liability for other's failure
Neither party will be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under these Terms, or by the negligence or misconduct of the other party or its personnel.
Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with these Terms.
Unless terminated under this Clause 11, these Terms and your right to access the SaaS Service starts on the Start Date and continues until:
(a) we give at least thirty (30) days' notice that these Terms and your access to and use of the SaaS Service will terminate on the expiry of that notice; or
(b) you terminate these Terms by giving notice via the SaaS Service to cancel your subscription, in which case your access to and use of the SaaS Service will terminate at the expiry of your then-current subscription term.
11.2 Termination rights
Either party may, by notice to the other party, immediately terminate these Terms if the other party:
(a) breaches any material provision of these Terms and the breach is not:
(i) remedied within ten (10) days of the receipt of a notice from the first party requiring it to remedy the breach; or
(ii) capable of being remedied;
(b) becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee's or chargee's agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or
(c) is unable to perform a material obligation under these Terms for thirty (30) days or more due to Force Majeure.
11.3 Our termination rights
Notwithstanding Clauses 11.1 and 11.2 above, we may, by notice to you, immediately terminate these Terms if you (in our opinion, acting reasonably), fraudulently or willfully misuse the SaaS Service or the Output, including:
(a) generating excessive amounts of Output, but minimal Approved Output; and/or
(b) breaching any of your obligations under Clause 4.1, in particular Clauses 4.1(f), (g) and/or (h).
11.4 Consequences of termination
(a) Termination of these Terms does not affect either party's rights and obligations that accrued before that termination.
(b) On termination of these Terms, (i) you must pay all Fees for Services provided prior to that termination and cease all use of SPHERE and the SaaS Service; and (ii) our obligations hereunder, including to provide the Services and license SPHERE to you, shall cease to apply, and the SPHERE license between you and us shall terminate automatically and simultaneously.
(c) No compensation is payable by us to you as a result of termination of these Terms for whatever reason, and you will not be entitled to a refund of any Fees that you have paid.
(d) Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination of these Terms and subject to Clause 11.4(e), a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control and/or certify in writing that it has fully complied with its obligations under this Clause 11.4(d).
(e) At any time within one (1) month after the date of termination, you may request:
(i) a copy of any Data stored using the SaaS Service, provided that you pay our reasonable costs of providing that copy. On receipt of that request, we must provide a copy of the Data in a common electronic form. We do not warrant that the format of the Data will be compatible with any software. After such one (1) month period, we will have no obligation to provide any copy of such Data to you and we will be entitled to delete or destroy our copies of such Data in the SaaS Service and/or the Underlying Systems or otherwise in our possession or control, unless doing so is prohibited by applicable law; and/or
(ii) deletion of the Data stored using the SaaS Service, in which case we must use reasonable efforts to promptly delete that Data.
Notwithstanding the foregoing, we shall not be required to comply, and shall not be liable for any non-compliance, with Clause 11.4(e) to the extent: (A) in the case of Clause 11.4(e)(i), that you previously requested deletion of the Data and/or deleted any Output from your SPHERE account; (B) required under applicable law or that we have compelling legitimate interests otherwise; (C) that it would entail or require the transfer of any personally identifiable information pursuant to any individual and/or personal data as defined under the Personal Data Protection Act 2012 of Singapore, the General Data Protection Regulation (GDPR) or any other applicable law; and/or (D) that it would infringe the rights of any third party (including Intellectual Property Rights and privacy rights).
11.5 Obligations continuing
Clauses which, by their nature, are intended to survive termination of these Terms, including Clauses 5.2(a), 5.5, 7, 8, 9.2(a), 10, 11.4, and 13.10, shall so continue in force.
11.6 Rights to restrict
We shall not be obligated to monitor access to or use of the Services or to review or edit any content. However, without limiting any other right or remedy available to us, we may, at any time and without any notice, restrict or suspend your access to and use of the SaaS Service, terminate your account and/or delete, edit or remove the relevant Data if we, at our sole discretion, consider that you (including any of your personnel) have:
(a) undermined, or attempted to undermine, the security or integrity of the SaaS Service or any Underlying Systems;
(b) exceeded the fair usage of the Services;
(c) used, or attempted to use, the SaaS Service:
(i) for improper purposes; or
(ii) in a manner, other than for normal operational purposes, that materially reduces the operational performance of the SaaS Service;
(d) transmitted, inputted or stored any Data that breaches or may breach these Terms or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or
(e) otherwise materially breached these Terms, which for the purposes of these Terms shall include any of the prohibited acts set out in Clause 11.3 above.
(a) We will notify you where we restrict or suspend your access, or delete, edit or remove Data, pursuant to Clause 11.6.
(b) Clause 11.4(e)(i) will not apply to the extent that it relates to Data deleted or removed under Clause 11.6.
12.1 Good faith negotiations
Before taking any court action, a party must use best efforts to resolve any dispute under, or in connection with, these Terms through good faith negotiations.
12.2 Obligations continue
Each party must, to the extent possible, continue to perform its obligations under these Terms even if there is a dispute.
12.3 Right to seek relief
This Clause 12 does not affect either party's right to seek urgent interlocutory and/or injunctive relief.
13.1 Force majeure
Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure, provided that the affected party:
(a) immediately notifies the other party and provides full information about the Force Majeure;
(b) uses its best efforts to overcome the Force Majeure; and
(c) continues to perform its obligations to the extent practicable.
13.2 Rights of third parties
No person other than you and us (or our permitted assigns) has any right under the Contracts (Right of Third Parties) Act 2001, or any other applicable law, to a benefit under, or to enforce, these Terms.
To waive a right under these Terms, that waiver must be in writing and signed by the waiving party.
13.4 Independent contractor
Subject to Clause 5.3, we are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms. For the avoidance of doubt, we are free to provide services to other clients, so long as there is no interference with our contractual obligations to you.
If we need to contact you, we may do so by email or by posting a notice on the Website. You agree that this satisfies all legal requirements in relation to written communications. You may give notice to us under or in connection with these Terms by emailing [email protected].
(a) If any provision of these Terms is, or becomes, illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity.
(b) If modification under Clause 13.6(a) is not possible, the provision must be treated for all purposes as severed from these Terms without affecting the legality, enforceability or validity of the remaining provisions of these Terms.
13.8 Entire agreement
13.9 Subcontracting and assignment
(a) You may not assign, novate, subcontract or transfer any right or obligation under these Terms, whether by operation of law or otherwise, without our prior written consent, that consent not to be unreasonably withheld. You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer. Any such assignment, novation, subcontracting or transfer must be in writing.
(b) Any change of control is deemed to be an assignment for which our prior written consent is required under Clause 13.9(a). In this Clause, change of control means any transfer of shares or other arrangement affecting you or any member of your group which results in a change in the effective control.
(c) We may freely assign or transfer these Terms without restriction to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our assets.
(d) Subject to the foregoing, these Terms shall inure to the benefit of and shall be binding upon each party’s successors and assigns.
These Terms are governed by, and must be interpreted in accordance with, the laws of the Republic of Singapore. Each party submits to the exclusive jurisdiction of the Courts of the Republic of Singapore in relation to any dispute connected with these Terms.
If there are any questions regarding these Terms, you may contact us at: [email protected].