TERMS OF SERVICE

This Agreement, which comprises the following Order Schedule and the attached Terms of Service, is made between Octus Pte. Ltd. (a company registered in Singapore under number 201409552D with its registered office at 65 Chulia Street, 46-07, 049513 (“Octus”) and you, the customer detailed below (“you”, “your” or the “Customer”).

1. DEFINITIONS AND INTERPRETATION

1.1. In this Agreement, except where the context requires otherwise:

 

1.1.1. “Admin User” means a person who has been allocated a User License and who is granted administrator rights.

1.1.2. “Agreement” means the contract between Octus and the Customer on the terms set out in these Terms of Service and the Order Schedule;

1.1.3. “Customer”, “you” or “your” means the customer identified in the Order Schedule;

1.1.4. “Customer Data” means any data uploaded by the Customer to Octus’ systems as part of the Service;

1.1.5. “Commencement Date” means the date specified in the Order Schedule;

1.1.6. “Fees” means the fees payable by you to Octus for the Service as specified in the Order Schedule;

1.1.7. “Service Data” means all data, analysis, reports and other materials which Octus makes available to you as part of the Service;

1.1.8. “Service” means the services described in the Order Schedule;

1.1.9. “Standard User” means a person who has been allocated a User License but who is not granted administrator rights;

1.1.10. “Term” means the period during which Octus will provide the Services to the Customer calculated in accordance with Clause 12;

1.1.11. “User” means either an Admin User or a Standard User; and

1.1.12. “User License” means a license for the exclusive use of a named individual to use the Service. A User License may be allocated by you to such individual from time to time. Such allocation shall not permit you to allow more than one individual to benefit from a User License simultaneously, except you may reallocate a User License from one individual to another individual from time to time as needed.

 

1.2. References to “written” or “in writing” shall include email.

 

1.3. Words in the singular shall be treated as plural and vice-versa, and words referring to the whole of something shall also be treated as referring to any part thereof.

 

1.4. The headings and clauses are for ease of reference and shall not affect the interpretation or construction of this Agreement.

2. SUPPLY OF THE SERVICE

2.1. In consideration of the Fees, Octus shall provide the Service during the Term and grants you a worldwide, non-exclusive, non-transferable and revocable license to receive and/or access the Service and the Service Data during the Term subject to the terms of this Agreement.

 

2.2. Octus agrees that it shall use commercially reasonable endeavors to make the Service available 24 hours a day, seven days a week, except for (i) planned maintenance carried out during the maintenance window of 12.00 am to 6.00 am Singapore time; and (ii) unscheduled maintenance, provided that Octus shall use reasonable endeavors to give you as much advance notice as is practicable in the circumstances.

 

2.3. Octus shall be entitled to:

 

2.3.1. Control, direct and establish technical procedures for the use and supply of the Service;

2.3.2. Make operational changes to the Service without giving prior notice to you; and

2.3.3. Suspend or resume the availability of the Service over the internet if required in order to attend to essential maintenance.

 

2.4. Octus shall:

 

2.4.1. Take all reasonable safeguards within its control to prevent the destruction, corruption or unauthorized access to Customer Data;

2.4.2. Maintain personnel adequately skilled and trained in the technical support of any Service; and

2.4.3. Provide training materials to you.

 

2.5. Use of the Service may be subject to limitations, including but not limited to monthly data storage limits, and if so, such limitations will be communicated to you in writing.

 

2.6. Octus may monitor the Customer’s use of the Service in order to maintain and improve the Service and to ensure compliance with the terms of this Agreement. Octus may terminate or suspend the provision of the Service or parts of a Service where Octus has reason to believe that the Customer or a User may be using it (or any Service Data) in breach of this Agreement or for any unlawful or improper purpose.

3. USERS

3.1. User accounts will be initially allocated as set out in the Order Schedule.

 

3.2. You are entitled to increase the number of Users at any time by purchasing additional User Licenses from Octus by the process communicated to you by Octus from time to time.

 

3.3. You are entitled to decrease the number of User Licenses by giving 30 days written notice to Octus provided that there is a minimum of 1 Admin User and 1 Standard User.

 

3.4. You may not sublicense or resell any User License without Octus’ prior written consent.

 

3.5. Further to Clauses 5 and 6 below, you agree that you are responsible for all use of the Service by Users. You will draw the terms of this Agreement to the attention of Users and ensure that they comply with them. You acknowledge and agree that any breach of this Agreement by a User shall be deemed a breach of this Agreement by you.

4. FEES

4.1. You shall pay to Octus the Fees in accordance with the terms of payment set out in the Order Schedule. The Fees will be subject to review at the end of the Initial Term and annually thereafter for any Additional Term (each as defined in Clause 12) and will be set at the amount agreed at such time in writing between Octus and you.

 

4.2. The Fees are exclusive of any applicable taxes which you shall pay to Octus in addition to the Fees at the same time as payment of the Fees (where applicable).

 

4.3. You shall pay all Fees and taxes (where applicable) in full (without any set-off, deduction or withholding whatsoever) by such method and to such account as may be specified from time to time by Octus. If a cheque delivered by you is dishonored or a direct debit or standing order fails, Octus may charge you all costs incurred by Octus as a result.

 

4.4. If your account falls into arrears, in addition to any other right or remedy which Octus may have, Octus may:

 

4.4.1. Immediately suspend or terminate provision of the Service without liability; and

4.4.2. Charge interest at 1.5% per month on any outstanding balance (or Octus may, at its discretion, claim any applicable statutory interest in the alternative), such interest to accrue on a daily basis from the due date until the date of actual payment of the outstanding balance, whether before or after judgment.

5. PASSWORD AND SECURITY

5.1. Octus will provide your Users with a username and password as part of the Service’s registration process. Users can log into their account and change their password at any time. You are responsible for maintaining the confidentiality of your Users’ usernames and passwords and are fully responsible for all activities that occur under any User account. You shall and shall ensure that:

 

5.1.1. You disclose such usernames and passwords only to such of your employees as have a need to know them for the proper use of the Service;

5.1.2. Users keep all usernames and passwords strictly confidential; and

5.1.3. You will take all reasonable steps to ensure that nobody other than Users accesses the Service.

5.1.4. You shall notify Octus as soon as you become aware or suspect that a username or password has become known to an unauthorized person.

6. YOUR UNDERTAKINGS

6.1. You warrant to and undertake with Octus that you:

 

6.1.1. Shall be responsible for configuring your own information technology systems (including virus protection software) and telecommunications systems in order to access the Service;

6.1.2. Shall have all necessary rights to upload Customer Data and that Octus’ processing of Customer Data for the purpose of this Agreement shall not infringe the intellectual property or other rights of any third party nor contravene any applicable law;

6.1.3. Shall follow all reasonable instructions and procedures given by Octus in relation to the Service;

6.1.4. Shall appoint one or more persons, as Octus may require, to receive all relevant license keys and other information pertaining to the Service;

6.1.5. Shall not interfere with or disrupt the Service;

6.1.6. Shall not sub-license, re-sell or offer in any manner, to a third party, the Service or grant access to the Service or any Service Data (other than in accordance with this Agreement), for commercial gain or otherwise;

6.1.7. Shall not reverse engineer the Service or its technology or use or access the Service to: (i) build a competitive product or service, (ii) make or have made a product or service with similar features, functions, text, or graphics, (iii) make derivative works based upon the Service; or (iv) copy any features, functions, text, or graphics of the Service;

6.1.8. Shall not, and shall procure that no User shall, submit to Octus via the Service or any other means, and material which: (i) is libelous, defamatory, invades privacy or is obscene, pornographic or harassing, (ii) infringes any intellectual property rights including rights of confidentiality and copyrights of any third party, (iii) violates any law or regulation, (iv) advocates illegal activity, or (v) shall cause or is likely to cause harm in any degree to computer systems owned by Octus or its suppliers or users;

6.1.9. Shall not, and shall procure that no User shall, use the Service in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;

6.1.10. Shall not, and shall procure that no User shall, misuse the Service by knowingly introducing viruses, worms, logic bombs or other material which is malicious or technologically harmful; and

6.1.11. Shall not, and shall procure that no User shall, attempt to gain unauthorized access to other computer systems or networks used by Octus in the provision of the Service.

 

6.2. If in Octus’ absolute opinion there is evidence that the Customer is using the Service other than in accordance with this Agreement, and once this information is presented to the Customer and the Customer refuses to use the Services in accordance with this Agreement, then Octus may terminate this Agreement and/or suspend access to the Service without liability of any kind.

7. INTELLECTUAL PROPERTY RIGHTS

7.1. Octus acknowledges and agrees that all intellectual property rights vesting in the Customer shall remain vested in the Customer and nothing in this Agreement shall operate as an assignment to Octus of such intellectual property rights. Any suggestions for enhancements or additions to the Services of any Octus software made by the Customer shall not be deemed as the Customer’s intellectual property.

 

7.2. The Customer acknowledges and agrees that all intellectual property rights vesting in Octus and Octus’ licensors shall remain vested in such parties and nothing in this Agreement shall operate as an assignment to the Customer of such intellectual property rights.

8. DATA

8.1. In order to use the Service, you will be required to provide your information and information of Users (such as identification or contact details) as part of the registration process, or as part of continued use of the Service. You agree that any such information you give to Octus will always be accurate, correct and up to date. By accessing or using the Service, you consent to such processing and confirm your authority to give such consent on behalf of your Users.

 

8.2. By uploading Customer Data via the Service you give Octus a license to host, reproduce and display such Customer Data for the sole purpose of enabling Octus to supply the Service to you. You also give Octus a non-exclusive license to analyze the Customer Data on an aggregated, non-identifiable basis (e.g. to produce market trends data, and other market analysis). The Customer Data shall not be accessible by Octus’ other customers under any circumstances.

 

8.3. To the extent that Octus Processes (as defined in applicable law) any Personal Data (as defined in applicable law) on your behalf under this Agreement, Octus shall:

 

8.3.1. Comply with reasonable instructions from you regarding the Processing of that Personal Data;

8.3.2. Protect the Personal Data by making reasonable security arrangements to prevent unauthorized access, collection, use, disclosure, copying, modification, disposal (or similar risks); and

8.3.3. Promptly provide such assistance as you may reasonably require in order for you to deal with any request with which you are required to comply pursuant to applicable laws: (i) for access to and correction of the Personal Data; or (ii) from a regulator or law enforcement agency.

8.3.4. Octus is not responsible for assisting you with (or advising you on) your own compliance with applicable law, including personal data and privacy law, regulation or guidance.

8.3.5. Upon termination of this Agreement, or otherwise upon your written notice, Octus shall cease to retain the Customer Data that it no longer requires under this Agreement and, at your option, either return the Customer Data to you (but only provided that all outstanding and undisputed Fees have been paid) or destroy the Customer Data. You acknowledge that, if Octus is restricted from using the Customer Data pursuant to this sub-clause, Octus may not be able to perform its obligations in accordance with this Agreement. Octus will provide Customer Data in an industry standard format (JSON) upon your request to enable you to transfer it to a new system. Any further formats will incur a cost of SGD 1,000.

9. CONFIDENTIALITY

9.1. Neither party shall, except as strictly required to exercise its rights or perform its obligations under this Agreement, use, copy, adapt, alter, disclose, publicize or in any way part with possession of any confidential proprietary information of the other which comes into its possession as a result of this Agreement, including the existence and terms of this Agreement (“Confidential Information”). This obligation shall not apply to Confidential Information that:

 

9.1.1. Is or becomes publicly known other than through any act or omission of the receiving party;

9.1.2. Was in the other party’s lawful possession before the disclosure;

9.1.3. Is lawfully disclosed to the receiving party by a third party without restriction on disclosure;

9.1.4. Is independently developed by the receiving party, which independent development can be shown by written evidence; or

9.1.5. Is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

10. WARRANTY DISCLAIMER

10.1. You acknowledge that the existence of a reasonable number of errors or bugs in the Service or any Octus software shall not constitute a breach of this Agreement provided that such bugs or errors do not compromise the fundamental application of such software and such software remains fit for purpose.

 

10.2. Whilst reasonable measures have been taken to ensure that the Service shall be virus-free, no warranty is given that the Service is free from infection from viruses or anything else that has contaminating or destructive properties and Octus shall have no liability in respect thereof.

 

10.3. Octus warrants and represents that the Service will be provided by Octus with reasonable skill and care.

 

10.4. Save as expressly set out in these Terms of Service, Octus gives you no representation, condition, warranty or assurance regarding the Service or the Service Data and, specifically, Octus gives no warranty concerning the accuracy, completeness or up-to-date nature of the Service Data or that the Service will meet your requirements, will be uninterrupted or timely, will be secure or error free, will be non-infringing or that defects in the Service Data or the Service will be corrected.

 

10.5. Other than where directly related to the Service, Octus is not responsible for software, systems or network connections used by you or Users or for the operation or performance of the internet or any other network.

11. LIABILITY AND INDEMNITY

11.1. In the event that any exclusion contained in this Agreement shall be held to be invalid for any reason and Octus shall become liable for loss or damage that may lawfully be limited, Octus’ total liability (whether in contract, tort (including negligence) or otherwise) arising out of or in connection with the Service and its obligations under this Agreement shall be limited to an amount equal to a quarter of the Fees paid by you during the 12 months immediately prior to written notification of the claim.

 

11.2. Notwithstanding the generality of Clause 10 above, Octus shall not in any event have any liability to you (whether in contract, tort (including negligence) or otherwise) for:

 

11.2.1. Any loss of revenue or profit, loss of data, loss of goodwill or damage to reputation (in each case whether direct or indirect); or

11.2.2. Any indirect, special or consequential loss or damage whatsoever or howsoever incurred.

 

11.3. Nothing in this clause or Agreement shall exclude or limit any liability for: (i) death or personal injury resulting from Octus’ negligence; (ii) fraud or fraudulent misrepresentation; liability to pay the Fees; or (iii) any other liability that cannot by law be limited or excluded.

 

11.4. You shall defend, indemnify and hold harmless Octus against all claims, actions, proceedings, losses, expenses, costs (including without limitation court costs and reasonable legal fees), damages and any other liabilities arising out of or in connection with your use of the Service. You shall also indemnify Octus against all claims, actions, proceedings, losses, expenses, costs (including without limitation court costs and reasonable legal fees), damages and any other liabilities arising from any breach of any of this Agreement or any obligation you may have to Octus, including (but not limited to) any costs relating to the recovery of any Fees that are due but have not been paid by you.

12. TERM

12.1. Subject to Clause 12.2, the term of this Agreement (the “Term”) shall commence on the Commencement Date and shall continue for the Initial Period, each as set out in the Order Schedule (the “Initial Term”), and shall automatically renew thereafter for successive 1 month renewal periods (or any other period as may be agreed by you and Octus in the Service Order or otherwise in writing) (an “Additional Term”) unless terminated by the Customer giving Octus not less than 1 month’s written notice before the end of the Initial Term or any Additional Term. Subject to Clause 12.2 and for the avoidance of doubt, the Term of this Agreement shall be for the minimum of the Initial Term.

 

12.2. Either party may without liability terminate this Agreement by notice in writing to the other having immediate effect if:

 

12.2.1. the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of being notified in writing of the breach;

12.2.2. an order or resolution is made for the winding up of the other party; for the appointment of an administrator to manage the affairs of the other party; or a receiver is appointed of any of the other party’s assets or undertaking; or the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or the other party ceases, or threatens to cease, to trade; or the other party takes or suffers any similar action in any jurisdiction;

 

12.2.2.1. pursuant to Clause 14; or

12.2.2.2. in the case of Octus only:

12.2.2.3. pursuant to Clause 2.6;

12.2.2.4. pursuant to Clause 4.4; or

12.2.2.5. pursuant to Clause 6.2.

 

12.3. Octus shall have the right to change User passwords and lock User accounts where it has reason to believe that such User may be in breach of this Agreement. Octus will notify you and/or the User if this occurs.

 

12.4. On and following termination of this Agreement for any reason:

 

12.4.1. the license to use the Service shall immediately terminate;

12.4.2. Octus may disable access to your account and you and Users will no longer be able to access or receive the Service Data; and

12.4.3. Clause 8.5 in relation to Customer Data may apply.

 

12.5. For the avoidance of doubt, Octus shall not be responsible for any loss, damage, costs, expenses or claims of the Customer or any user resulting from the lawful suspension or termination of the Service as set out in this Agreement.

 

12.6. Termination shall not affect or prejudice the accrued rights of the parties as at termination. The provisions of Clauses 7 (Intellectual property rights), 9 (confidentiality), 10 (warranty disclaimer), 11 (liability), this Clause 12.4, and Clauses 13 (assignment) and 16 (general) shall survive termination of this Agreement for any reason.

13. ASSIGNMENT AND SUBCONTRACTING

13.1. You shall not assign, sub-license, sub-contract or otherwise deal with all or any of your rights and obligations under this Agreement without Octus’ prior written consent.

 

13.2. Octus shall have the right to assign all or any of its rights and obligations under this Agreement and in the event of such assignment shall give notice of it to you. Octus may subcontract the performance of any of its obligations under this Agreement to any third party and Octus will manage such subcontractors but Octus shall only be liable for such subcontractors to the extent the subcontractors are liable to Octus. Octus will provide notice before any assignment takes place with an explanation of what impact if any such assignment would have of services.

14. FORCE MAJEURE

14.1. Octus will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under this Agreement that is caused by events outside its reasonable control (including but not limited to war, civil disorder, terrorism, decision of any court or other judicial body of competent jurisdiction, unavailability of equipment, power or other utility, failure or non-availability of Internet or telecommunications network, acts of government or other prevailing authorities or defaults of third parties). Either party may terminate this Agreement forthwith by notice in writing to the other if such event continues for more than 60 days.

15. NOTICES

15.1. Any notice to be given under this Agreement may be delivered or sent by prepaid registered post to the principal place of business at the time of the party to receive the notice. Notice served by post shall be deemed served on the second business day (for the party to receive the notice) after the date of posting.

 

15.2. Notices for Octus should be addressed to Jason Lopez, CEO, 65 Chulia Street #46-07 Singapore 049513.

16. GENERAL

16.1. This Agreement constitutes the whole agreement and understanding between you and Octus relating to the Service.

 

16.2. You acknowledge and agree that, in entering into this Agreement, you do not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently made or not) other than as expressly set out in the Agreement.

 

16.3. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties.

 

16.4. The failure of Octus to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.

 

16.5. If for any reason any provision of this Agreement, or any portion thereof, is found to be unenforceable, the remaining provisions of this Agreement shall continue to be valid to the fullest extent permitted by law.

 

16.6. This Agreement is not intended to benefit anyone other than the parties to it and, in particular, none of the terms of this Agreement shall be enforceable under any applicable legislation.

 

16.7. On the signing of this Agreement, you agree to the use of marketing by Octus for social media, our website etc. subject to your final approval before any content is posted.

 

16.8. This Agreement shall be governed by Singapore Law. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in accordance with the Arbitration Rules of the Singapore International Arbitration Centre. The seat of the arbitration is Singapore. The Tribunal shall consist of a sole arbitrator. The language of the arbitration shall be English.