iShine Cloud (iSC) Terms

These terms and conditions (“Terms”) cover your use of iShine Cloud’s Services. We may change these Terms at any time upon giving notice to you. You are deemed to have agreed to the new Terms if you continue to use the Services after you have been notified of the changes, and once the changes come into effect. If you do not agree to the new Terms, you must stop using the Services, and pay any Early Termination Charges.

DEFINITIONS
1.1 In these Terms, unless the context otherwise requires:

“Acceptable Use Policy”
has the meaning ascribed to it in Clause 2.2

“Applicable Law”
means all laws, statutes, codes, ordinances, decrees, rules, regulations, by-laws, published policies and guidelines, judicial, arbitral, administrative, ministerial, departmental or regulatory judgments, orders, decisions, rulings or awards, including general principles of common and civil law, and terms and conditions of any grant of approval, permission, authority or licence of any Governmental Authority, statutory body or self-regulatory authority, that are applicable to the Services and these Terms

“Authorized Users”
means the employees, contractors, and end-users, whichever applicable, authorized by you or on your behalf to use the Services in accordance with these Terms. For Services that are specifically designed to allow your clients, agents, customers, suppliers or other permitted third parties to access the Services to interact with you, such third parties will be considered Authorized Users

“Claim”
has the meaning ascribed to it in Clause 9.1

“Confidential Information”
has the meaning ascribed to it in Clause 5.1

“Customer Content”
means all software, data (including Personal Data), text, images, audio, video, photographs, or third party applications, and other content and material, in any format, provided by you or any of your Authorized Users that is stored in, or run on or through, the Services. Customer Content includes any Third Party Content that is brought by you into the Services by your use of the Services

For the avoidance of doubt, “Customer Content” shall exclude any and all Services, intellectual property belonging to iShine Cloud

“Force Majeure”
means an event the occurrence of which is beyond the reasonable control of the Party whose performance is delayed or prevented, and shall include, without limitation, an act of war, hostility, or sabotage; act of God; pandemic; electrical, internet, or telecommunication outage that is not caused by the obligated Party; government restrictions (including the denial or cancelation of any export, import or other licence); or other event outside the reasonable control of the obligated Party

“Indemnifying Party”
has the meaning ascribed to it in Clause 9.1

“Material”
has the meaning ascribed to it in Clause 9.1

“Other Party”
has the meaning ascribed to it in Clause 9.1

“Personal Data”
has the meaning ascribed to it in Section 2 of the Personal Data Protection Act (2012)

“Proposal”
means the Proposal prepared by iShine Cloud

“Purpose”
has the meaning ascribed to it in Clause 2.1

“Representatives”
has the meaning ascribed to it in Clause 5.2

“Services”
means the Products and Services, including Onboarding Services set out in the Proposal

“Service Period”
means the period contained in the Proposal which may be varied from time to time by iShine Cloud

“Subscription Fees”
means the fees payable as set out in the Proposal

“Technology Providers”
means the companies that license one or some of the Products and Services to iShine Cloud

“Third Party Content”
means all software, data, text, images, audio, video, photographs and other content and material, in any format, that are obtained or derived from third party sources apart from and outside of iShine Cloud that you may access through, within, or in connection with, your use of the Services. It also includes third-party sourced materials accessed or obtained by your use of the Services. Examples of Third Party Content include data feeds from social network services, RSS feeds from blog posts, dictionaries, and marketing data

“Third Party Licence”
has the meaning ascribed to it in Clause 9.3

“Third Party Services”
has the meaning ascribed to it in Clause 11.1

“User Subscriptions”
means the packages purchased for each Service Period which entitle Authorized Users to access and use the Services in accordance with these Terms

“Warranty”
has the meaning ascribed to it in Clause 6

2. RIGHT OF USE

2.1 In consideration of the Subscription Fees, iShine Cloud hereby grants to you a non-exclusive, non-sublicensable, non-assignable right to use the Services in accordance with these Terms, unless earlier terminated in accordance with these Terms, solely for your internal business operations (“Purpose”).

2.2 You undertake that:
(a) The maximum number of Authorized Users that you authorize to access and use the Services shall not exceed the number of User Subscriptions you have purchased from time to time;
(b) You are fully responsible for the compliance of the Authorized Users with the Terms herein;
(c) You will not and will not cause or permit the Authorized Users to:

(i) use the Services to harass any person; cause damage or injury to any person or property; publish any material that is false, defamatory, harassing or obscene; violate privacy rights; promote bigotry, racism, hatred or harm; send unsolicited bulk e-mail, junk mail, spam or chain letters; infringe property rights; or otherwise violate Applicable Laws;
(ii) modify, adapt, expunge, make derivative works of, disassemble, decompile, reverse engineer, reproduce, republish, download or copy any part of the Services (including data structures, schema, brands, logos or other materials generated by and/or belonging to iShine Cloud);
(iii) take or allow any action to be taken that diminishes the value or changes, obscures or interferes with the appearance of any trademark or logos generated by and/or belonging to iShine Cloud;
(iv) access or use the Services to build or support, directly or indirectly, products or services which are competitive to iShine Cloud’s Services;
(v) license, sell, transfer, assign, distribute, outsource, permit timesharing or service bureau use of, commercially exploit, or make available the Services to any third party except as permitted by these Terms or with expressed permission from iShine Cloud;
(vi) perform or disclose any benchmarking, availability or performance testing of the Services; or
(vii) perform or disclose network discovery, port and service identification, vulnerability scanning, password cracking, remote access or penetration testing of the Services.
(collectively, the “Acceptable Use Policy”).

2.3 In addition to other rights that we have in these Terms, we have the right to take remedial action if the Acceptable Use Policy is violated, and such remedial action shall include, without limitation, removing or disabling access to material that violate the Acceptable Use Policy.

2.4 During the Service Period, we may update the Services to reflect and/or accommodate changes in, among other things, laws, regulations, rules, technology, industry practices, patterns of system use, and availability of Third Party Content.

2.5 You may either increase or reduce the number of User Subscriptions or vary the scope of Services for some or all of the Authorised Users by giving at least one week notice before the next Service Period.

2.6 You must promptly notify iShine Cloud about any possible misuse of your accounts or authentication credentials or any security incident related to the Services.

3. FEES AND PAYMENT’

3.1 The fees payable for each Service Period are to be paid in the manner described in the Proposal.

4. OWNERSHIP RIGHTS

4.1 You acknowledge and agree that iShine Cloud and/or its licensors, which include the Technology Providers, own all intellectual property rights in the Services, any derivative works thereof, and anything developed or delivered by or on behalf of iShine Cloud and/or its licensors under this Agreement. Except as expressly stated otherwise herein, these Terms do not grant you any rights to, under or in, any patents, copyright, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any rights or licences in respect of the Services.

4.2 You shall not do anything to, or authorize or allow anything that will, or is likely to, jeopardize iShine Cloud’s (or its licensors’, as the case may be) intellectual property rights, including (i) copying, modifying, adapting or reverse engineering any of iShine Cloud’s intellectual property; (ii) purporting to sub-license iShine Cloud’s intellectual property to third parties without iShine Cloud’s prior written consent; (iii) registering or attempting to apply for any registration in respect of iShine Cloud’s intellectual property; (iv) deleting or tampering with any proprietary notices on or in iShine Cloud’s intellectual property.

4.3 You shall own all right, title, and interest in and to all the Customer Content, and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Content and for maintaining and handling the Personal Data in the Customer Content in compliance with the Personal Data Protection Act (2012) of Singapore. You shall grant us the right to host, use, process, display and transmit Customer Content to provide the Services pursuant to and in accordance with these Terms. You have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Content, and for obtaining all rights related to Customer Content required by iShine Cloud to perform the Services.

4.4 You may have access to Third Party Content through use of the Services. Unless otherwise expressly stated, all ownership and intellectual property rights in and to Third Party Content and the use of such content shall be governed by separate terms and conditions between you and the third party.

5. CONFIDENTIALITY

5.1 Any information identified by you or iShine Cloud in writing as confidential (“Confidential Information”) may be used only in connection with the Proposal and for the purposes for which the Confidential Information was disclosed. You agree to protect the confidentiality of the Confidential Information in the same manner that you protect the confidentiality of your own proprietary and confidential information of like kind; and exercise reasonable care in protecting such Confidential Information.

5.2 You may however disclose Confidential Information: (a) to your directors, employees or agents (“Representatives”) who have a need to know, where these Representatives are bound by obligations of confidentiality similar to those contained hereunder; or (b) as required by any government, regulatory or law enforcement authority, or by an order of court or tribunal of competent jurisdiction.

5.3 In the event disclosure of Confidential Information is required by any government or regulatory authority or by an order of court of competent jurisdiction, you shall notify iShine Cloud in writing as soon as possible and shall, prior to any such disclosure, allow iShine Cloud an opportunity to intervene.

5.4 Your obligations contained herein shall not apply to information which:
(a) is already in your or your Representatives’ possession prior to disclosure by iShine Cloud;
(b) is or has become part of the public domain through no fault or breach of these Terms by you or your Representatives;
(c) is received by you or your Representatives from a third party who is not under, or in breach of, any obligation of confidentiality in disclosing the same; or
(d) is independently developed by you or your Representatives, whether on your own or jointly with other parties, without use of or reference to the Confidential Information.

5.5 The provisions of this Clause 5 shall survive termination of this Agreement.

6. WARRANTIES

6.1 We warrant that during the Service Period, we will perform the Services using commercially reasonable care and skill in all material respects (“Warranty”).

6.2 For any breach of Warranty, our entire liability shall strictly be to remedy the non-compliance that caused the breach of Warranty. Only in the event that we cannot substantially correct the non-compliance in a reasonable manner will you be entitled to terminate the Services in writing, in which case we will refund to you the pro-rated fees for the terminated Services that you pre-paid to us, for the Service Period in question.

6.3 We do not warrant that the Services will be performed error-free or uninterrupted, that we will correct all errors, or that the Services will meet your requirements or expectations. We are not responsible for any issues related to the performance, operation, corruption of data or security of the Services that arise from Customer Content or Third Party Content.

6.4 To the extent not prohibited by law, and apart from the Warranty under Clause 6.3, all other express and implied warranties or conditions (including for software, hardware, systems, networks or environments or for merchantability, satisfactory quality and fitness for a particular purpose) are hereby excluded.

7. LIMITATION OF LIABILITY

7.1. In no event will iShine Cloud or its Representatives be liable for any indirect, consequential, incidental, special, punitive, or exemplary damages, or any loss of revenue, profits (excluding fees payable under this agreement), opportunity, sales, data, data use, goodwill or reputation.

7.2. In no event shall the aggregate liability of iShine Cloud arising out of or related to these Terms, whether in contract, tort, or otherwise, exceed the total amounts actually paid for the Services for the twelve (12) months immediately preceding the event giving rise to such liability.

8. SUSPENSION

8.1 We may suspend any or all of your Authorized Users’ access to, or use of, the Services if we believe that:
(a) there is a significant threat to the functionality, security, integrity, or availability of the Services or any content, data, or applications in the Services;
(b) you or your Authorized Users are accessing or using the Services to commit an illegal act; or
(c) there is a violation of the Acceptable Use Policy.

8.2 Where reasonably practicable and lawfully permitted, we will provide you with prior notice of any such suspension. We will use reasonable efforts to re-establish access to the Services promptly after we determine that the issue causing the suspension has been resolved. During any suspension period, we will make Customer Content (as it existed on date of suspension) available to you. Any suspension under this paragraph shall not excuse you from your obligation to make payments under these Terms.

9. INDEMNIFICATION

9.1. Each Party (“Indemnifying Party”) agrees to indemnify the other Party (“Other Party”) if a third party makes a claim (“Claim”) against the Other Party that any information, design, specification, instruction, software, service, data, hardware, or material (collectively, “Material”) used by the Other Party, infringes the third party’s intellectual property rights, in the event that such Material was furnished to the Other Party by the Indemnifying Party. The Indemnifying Party, at his sole cost and expense, will defend the Other Party against the Claim, and indemnify the Other Party from all damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement, or as agreed by way of a settlement with the third party, PROVIDED THAT the Other Party does the following:

9.2. If the Indemnifying Party believes that any of the Material may have violated a third party’s intellectual property rights, the Indemnifying Party may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a licence to allow for continued use, or if these alternatives are not commercially reasonable, the Indemnifying Party may end the licence for, and require return of, the applicable Material and refund any unused, prepaid fees the Other Party may have paid to the Indemnifying Party for such Material.

9.3 If iShine Cloud is the Indemnifying Party and you are the Other Party, and such return of the applicable Material will materially affect iShine Cloud’s ability to meet its Services obligations, then iShine Cloud may, upon 30 days’ prior written notice, terminate the Services. If such Material is third party technology provided by a Technology Provider, and the terms of the third party licence with the Technology Provider (“Third Party Licence”) do not allow iShine Cloud to terminate the Third Party Licence, then iShine Cloud may, upon 30 days’ prior written notice, end the Services associated with such Material and refund any unused, prepaid fees for such Services to you.

9.4 The Indemnifying Party will not be liable to indemnify the Other Party if the Other Party:
(a) alters the Material or uses it outside the Purpose or otherwise uses it in violation of the terms of this Agreement; or
(b) uses a version of the Material which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was made available to the Other Party.

9.5 The Indemnifying Party will not indemnify the Other Party to the extent that an infringement claim is based upon any Material not furnished by the Indemnifying Party.

9.6 iShine Cloud will not indemnify you to the extent that an infringement claim is based on Third Party Content or any Material from a third-party portal or other external source that is accessible or made available to you within or by the Services (e.g., a social media post from a third party blog or forum, a third party Web page accessed via a hyperlink, marketing data from third party data providers, etc.).

9.7 Where indemnification has been provided under this Clause 9, the Other Party agrees that it will not pursue any other infringement claims or damages.

10. TERMINATION

10.1 We may terminate any or all of the Services with immediate effect where you :
(a) have committed a material breach that is not capable of remedy;
(b) have committed a breach of these Terms which is capable of remedy, but fail to correct the breach within [30] days of written notification of the breach. Except for non-payment of fees, we may agree in our sole discretion to extend the 30-day period for so long as you continue to make reasonable efforts to cure the breach;
(c) have gone into liquidation whether compulsorily or voluntarily (except for the purpose of a bona fide reconstruction or amalgamation).

10.2 In the event of termination, whether in accordance with Clause 9.1 or otherwise, iShine Cloud shall make Customer Content (as it existed at the point of Termination) in the existing format available for retrieval by you for a period of 60 days. Retrieval of Customer Content will be at your own costs. After the end of the 60-day period, iShine Cloud may delete or otherwise render inaccessible any of the Customer Content that remains in the Services.

11. THIRD-PARTY CONTENT, SERVICES AND WEBSITES

11.1 The Services may enable you to link to, transfer Customer Content or Third Party Content to, or otherwise access third parties’ websites, platforms, content, products, services, and information (“Third Party Services”). iShine Cloud does not control and is not responsible for Third Party Services. You are solely responsible for complying with the terms of access and use of Third Party Services, and if iShine Cloud accesses or uses any Third Party Services on your behalf to facilitate performance of the Services, you are solely responsible for ensuring that such access and use, including through passwords, credentials or tokens issued or otherwise made available to you, is authorized by the terms of access and use for such services. If you transfer or cause the transfer of Customer Content or Third Party Content from the Services to a Third Party Service or other location, that transfer constitutes a transfer by you and not by iShine Cloud.

11.2 Any Third Party Content we make accessible is provided on an “as-is” and “as available” basis without any warranty of any kind. You acknowledge and agree that we are not responsible for, and have no obligation to control, monitor, or correct, Third Party Content. We disclaim all liabilities arising from or related to Third Party Content.

12. FORCE MAJEURE

12.1 iShine Cloud shall not be responsible for failure or delay of performance if caused by a Force Majeure event. However, iShine Cloud will use reasonable efforts to mitigate the effect of a Force Majeure event. If such event continues for more than 30 days, you may terminate the Services upon written notice. This Clause does not excuse you from your obligation to pay for the Services up to the date of termination.

13. NOTICE

13.1. If you wish to issue a notice, make any claims or complaints to iShine Cloud, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to iShine Cloud Limited at 210 Middle Road, #01-01 Singapore Pools Building, Singapore 188994.

13.2. We may give notices applicable to our Services by means of a general notice within messaging services within the Services, and notices specific to you by electronic mail to your e-mail address on record in our account information or by written communication sent by post to your address on record in our account information.

14. ASSIGNMENT

14.1 You may not assign or transfer the User Subscriptions, or any interest in the Services, to another individual or entity.

15. GENERAL

15.1 Our business partners and other third parties, including the Technology Providers and any third parties with which the Services have integrations or that are retained by you to provide consulting services, implementation services or applications that interact with the Services, are independent of iShine Cloud and are not iShine Cloud’s agents. We are not liable for, bound by, or responsible for any problems with the Services or Customer Content arising due to any acts of any such business partner or third party, unless the business partner or third party is providing Services as our subcontractor on an engagement ordered by iShine Cloud, in which case we would be responsible only to the extent of our obligations under these Terms.

15.2 If any of these Terms are found to be invalid or unenforceable, the remaining provisions will remain effective and such Terms shall be replaced with another Term consistent with the purpose and intent of these Terms.

15.3 Prior to accepting our Proposal, you are solely responsible for determining whether the Proposal is suitable for your purpose, though we will provide our assistance and co-operation in relation to your efforts to determine such suitability. Additional fees may apply to any additional work performed by iShine Cloud or changes to the Services. You remain solely responsible for your regulatory compliance in connection with your use of the Services.

15.4 Upon twenty-one (21) days’ written notice and no more than once every twelve (12) months, iShine Cloud may audit your compliance with these Terms. In the event, you agree to co-operate with iShine Cloud’s audit team and to provide reasonable assistance and access to information. iShine Cloud shall use reasonable efforts to ensure that the audit will not unreasonably interfere with your normal operations.

15.5 This Agreement does not create any agency, partnership or joint venture.

15.6 This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act of Singapore (Cap. 53B Rev Ed, 2002).

16. GOVERNING LAW AND JURISDICTION

16.1 This Agreement shall be governed by and construed in accordance with the laws of the Republic of Singapore. 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 Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this clause.

17. ENTIRE AGREEMENT

17.1 You agree that these Terms and the information which is incorporated into these Terms by written reference (including reference to information contained in a URL or referenced policy), is the complete agreement for the Services ordered by you and supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such Services.

 

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