Augmentus Terms of Service
Last updated: July 30, 2021
Augmentus Pte. Ltd. (“Augmentus”) is the developer and provider of Software-as-a-Service product(s) relating to robot programming, including an industrial robot programming software which enables non-technical users to program AI robots quickly and efficiently (collectively, the “Augmentus Software”), support services (including basic and enterprise-level support services), hardware reselling services and other customisation and development-related services (collectively, the “Services”).
The purchase order signed between you and Augmentus (“Purchase Order”), this Augmentus Terms of Service and all Additional Terms referenced in Section 1.1 below, collectively form the “Agreement”. Except to the extent that you and Augmentus have executed a separate agreement varying the terms of the Agreement, these terms and conditions of the Agreement exclusively govern your access to and use of the Services and constitute a binding legal agreement between you and Augmentus.
If you accept or agree to the Agreement on behalf of a company, organization or other legal entity (a “Legal Entity”), you represent and warrant that you have the authority to bind that Legal Entity to the Agreement and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
You acknowledge and agree that, by accessing, purchasing or using the Services, you are indicating that you have read, understand and irrevocably agree to be bound by the terms of the Agreement whether or not you have created an account with Augmentus or otherwise registered with the Augmentus website, and the Augmentus Terms of Service shall be valid, legally binding and enforceable against you as of the date on which you purchased or commenced access or use the Services, whichever is the earlier (the “Effective Date”). If you do not agree to these Augmentus Terms of Service and all applicable Additional Terms, then you shall have no right to access or use any of the Services.
Augmentus reserves the exclusive right to periodically update the Agreement unilaterally at its discretion at any time, by posting the modified version at the following URL: https://www.augmentus.tech/legal/terms-of-service or otherwise provide you with notice of the modification. Your continued access and use of the Services after the posting of any modifications to the relevant terms shall constitute your acceptance of the modified Agreement without any further action being required on your part. If the terms of the Modified Agreement are not acceptable to you, your only recourse is to cease using the Services.
1. USE OF SERVICES
1.1 Additional Terms. Your use of the Services is subject to the applicable additional terms as shown below (collectively, the “Additional Terms”), each of which supplements this Augmentus Terms of Service and is incorporated into the Agreement:
- End-User License Agreement (EULA)
- Hardware Resale Terms
- Enterprise-Level Support Services Terms
- Customisation Terms
If there is any conflict between this Augmentus Terms of Service and the Additional Terms, the Additional Terms govern in relation to the relevant Service.
1.2 Changes to Offered Services. Augmentus reserves the right, at its sole discretion, to modify, update, discontinue or terminate any component of the Services at any time.
1.3 Changes to Subscribed Services via Addendum. At any time, you may request to change or supplement any of the Services and in such event, the parties shall execute an addendum to your Purchase Order (the “Addendum”) to revise the scope of the Services which you are subscribing for and the applicable fees accordingly. The Addendum will only be effective, and the proposed changes will only be binding on the parties, when the Addendum has been duly signed by each party. For the avoidance of doubt, as of the effective date of the Addendum, such Addendum shall form part of, and be subject to the provisions of, the Agreement and shall have the same force and effect as if expressly set out in the Agreement.
2. TERMS OF ACCOUNT
2.1 You may be required to create an account with Augmentus Services. By completing the registration procedures displayed on the registration page(s), you acknowledge and agree that you are representing to us that you are providing, and you will maintain, accurate, current and complete information for your account, including as applicable, your name, contact, and payment information.
2.2 Augmentus reserves the right to, with or without notice, in appropriate circumstances and in our sole and absolute discretion, suspend or terminate the accounts of users who violate the Agreement, are repeat infringers of copyright, or engage in, encourage or advocate for offensive, abusive, or illegal conduct. If your account is terminated for cause, you are not entitled to any refund for any amounts paid to Augmentus for any Services.
2.3 You are responsible for maintaining the confidentiality of your username and password, and you are responsible for all activities under your account that you can reasonably control. You may not share your password or other login information with any person; any use of your account by any person other than yourself is grounds for suspension or termination of your account. You agree to promptly notify us of any unauthorised use of your username, password or other account information, or of any other breach of security that you become aware of involving your account or the Services. You agree not to use the account, username or password of any other account holder at any time. Augmentus will not be liable for any loss that you incur as a result of someone else using your password, either with or without your knowledge and/or your failure to comply with this clause.
2.4 You acknowledge and agree that Augmentus may access, preserve and disclose your account information if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the Agreement; or (c) respond to your requests for customer service.
2.5 You may terminate your account at any time and for any reason, by notifying us by email at [email], but any such termination will be effective only after Augmentus has processed the request.
3. INTELLECTUAL PROPERTY RIGHTS
3.1 Services. You hereby acknowledge and agree that Augmentus is the sole legal and beneficial owner of all rights, title, benefits and interests in and to the Services, Augmentus Software and deliverables provided under the Agreement, including all customisations, Updates, Upgrades, modifications, derivative works and all Intellectual Property Rights relating thereto, any sales, marketing and promotional materials relating thereto, and all documents and other copies and tangible embodiments of all of the foregoing.
3.2 Statistical Data. All rights (including Intellectual Property Rights), title, benefits and interests in and to the Statistical Data shall be and remain the property of Augmentus.
3.3 User Content. All rights (including Intellectual Property Rights), title, benefits and interests in and to the User Content shall be and remain your property.
3.4 Trademarks. All trademarks, service marks, logos, trade names and any other proprietary designations of used herein are trademarks or registered trademarks of Augmentus. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
3.5 No Rights Granted. Except for rights expressly granted under the Agreement, nothing in the Agreement shall be construed to assign or grant to you, and you shall not claim, any rights, title, ownership or interest in and to the Services, the Augmentus Software, and/or any deliverables provided under the Agreement, including all modifications, upgrades, derivative works and all intellectual property relating thereto, or any sales, marketing and promotional materials relating thereto.
3.6 Additional Restrictions. Your use of the Services may be subject to additional restrictions as set out in the relevant Additional Terms applicable to such Services.
3.7 Feedback. Augmentus shall have a royalty-free, worldwide, irrevocable, perpetual licence to use and incorporate into the Services any suggestions, enhancement requests, recommendation or other feedback provided by you relating to the Services.
3.8 Marketing and Promotional Material. Augmentus may use your identifying logo or trademark or any other of your identifying marks, and patent markings (collectively, the “Licensed Marks”), in connection with the sale, marketing and promotion of the Services in all marketing or promotional material, including but not limited to, flyers and website advertising or marketing and you hereby grant Augmentus a limited and restrictive licence in respect of the Licensed Marks for the foregoing purposes only. You shall assist in providing testimonials and statistics when required.
3.9 Restrictions and Prohibitions. In relation to Augmentus’ intellectual property:
(a) you shall not, and shall not permit any person to, access or use any part or component of the Services for any purpose or in any manner other than as set out in the Agreement;
(b) you shall not, and shall not permit any person to, access or use any part or component of the Services in any way that could damage the reputation of Augmentus or the goodwill or other rights associated with the Services;
(c) you shall not, and shall not permit any person to, do anything that will or might (whether directly or indirectly) affect, compromise, prejudice or conflict with Augmentus’ Intellectual Property Rights in any manner;
(d) you shall not, and shall not permit any person to (save as otherwise permitted in the Agreement), copy, reverse engineer, decompile, disassemble, attempt to derive the source code of, modify, create derivative works of, re-post or re-publish to other applications or websites, change, or distribute, license, sub-license, transfer or otherwise make available to any third party any aspect of Augmentus’ intellectual property in any manner;
(e) you shall not, and shall not permit any person to, use Augmentus’ intellectual property or any materials incidental thereto to develop any products or services (including any software, hardware or firmware) that is competitive with the Augmentus Software. Any such modifications shall immediately become the sole and exclusive property of Augmentus and Augmentus shall own all right, title and interests to such modified products, and any and all copyrights, patents and trade secrets related thereto; and
(f) you shall advise Augmentus of any technical improvements or inventions made by you or any other party on your behalf relating to the Augmentus Software. All such improvements or inventions shall become the property of Augmentus, and you agree to execute any and all documents requested by Augmentus in order to perfect its rights thereof, and any and all intellectual property relating thereto.
3.10 Your Undertakings. You agree that you will not, directly or indirectly, challenge or contest the validity of Augmentus’ Intellectual Property Rights, or any registrations thereof and/or applications therefore in any jurisdiction, or the right, title and interest of Augmentus therein and thereto, nor will you claim or register any interest in the Augmentus’ Intellectual Property Rights in any jurisdiction, other than the rights expressly granted under the Agreement. All present and future right in and to any intellectual property rights of any kind including without limitation all rights arising out of trade secrets, patents, copyrights, trademarks, service and other marks, know-how and any other proprietary rights of any type under any applicable laws shall, at all times be and remain the sole and exclusive property of Augmentus and/or its licensors and affiliates, as the case may be.
3.11 Further Assurance. You undertake and agree to cooperate with and assist Augmentus in the protection of all Intellectual Property Rights (including but not limited to trademarks, patents, or copyrights) owned by and/or licensed to you (including any rights relating to the Services) and shall inform Augmentus immediately of any infringements or other improper action relating thereto that may come to your attention.
3.12 For the purposes of this Section 3:
“Intellectual Property Rights” means intellectual property rights of any kind including, without limitation, all rights in or arising out of patents, trade, service and other marks, registered designs (and applications for all of the same), copyrights and rights affording equivalent protection to copyrights, database rights, mask work rights, design rights, moral rights, rights protecting trade secrets and confidential information, rights protecting goodwill and reputation, and all other similar corresponding proprietary rights and all applications for the same, trade, product, brand and business names, logos, get-ups, inventions, discoveries, improvements, derivative works, designs, techniques, computer programs, trade secrets, supply distributorship agency and other like agreements, technical and commercial know-how and confidential processes, and information including rights acquired under licences or other agreements in connection with any of the same, all derivatives and full right to all intellectual property and legal protection relating to the same and in every case (unless the context otherwise requires), whether presently existing or created in the future, anywhere in the world, whether registered or not, and all benefits, privileges, rights to sue, recover damages and obtain relief for any past, current or future infringement, misappropriation or violation of any of the foregoing rights;
“User Content” means all user input (in the form of 3D models, 3D scans, robot programming scripts, text, graphics or otherwise) which is entered by you into the Augmentus Software and all resultant content created or generated by the Augmentus Software processing such input by you, excluding any components of Augmentus’ intellectual property contained therein or used in connection therewith); and
“Statistical Data” means anonymised and aggregated statistical and analytical data generated from your use of the Services (including data collected in performing backup operations and technical information provided by you in relation to the receipt of support services).
4. FEES, INVOICING AND PAYMENT
4.1 Fees.
4.1.1 The fees applicable to the Services shall be as set out in the Purchase Order and you agree to pay all amounts due for the Services in accordance with Augmentus payment terms and, if applicable, those of any payment processor.
4.1.2 Augmentus may increase or modify the Fees or add new fees and charges for any of the Services from time to time and shall provide written notice of the same to you at least 30 days in advance of such revised fees becoming effective. Your continued access and use of the Services after the effective date of any such revised fees shall be considered your deemed acceptance and agreement to the revised fees, as applicable.
4.2 Invoicing. Augmentus shall invoice you in accordance with the terms set out in your Purchase Order, and you shall pay, in full, all undisputed invoices within thirty (30) days after the invoice date. All invoices are deemed to be valid, save in the case of manifest errors, which you must notify in writing to Augmentus within ten (10) calendar days of the date of such invoice (with an explanation of your reasons for dispute).
4.3 Payment. You shall provide accurate and complete information for a valid payment method that you are authorised to use. You will be billed for your applicable fees through the payment method that was provided. You shall promptly notify us of any change in your invoicing details and must update your account with any changes related to your payment method. BY SUBSCRIBING TO ANY SERVICES, YOU AUTHORISE AUGMENTUS OR ITS AGENT TO CHARGE THE SELECTED PAYMENT METHOD ON A RECURRING BASIS (“AUTHORISATION”) FOR: (a) THE APPLICABLE SERVICE FEES; (b) ANY AND ALL APPLICABLE TAXES; AND (c) ANY OTHER CHARGES NOT SPECIFIED IN THE PURCHASE ORDER WHICH ARE INCURRED IN CONNECTION WITH YOUR USE OF THE SERVICES (INCLUDING ADDITIONAL SERVICES) AS MAY BE NOTIFIED BY AUGMENTUS TO YOU FOR SUCH USE. The Authorisation shall remain valid and binding throughout the term of the Agreement.
4.4 Taxes. All fees are exclusive of all Taxes. You are solely responsible for paying all Taxes applicable to the Services provided by Augmentus. All payments by you hereunder shall be made in full without any deduction or withholding (whether in respect of any set-off, counter-claim, charges, Taxes, duties or otherwise whatsoever) unless the deduction or withholding is required by applicable laws, in which event you will pay such additional amounts as will result in the receipt by Augmentus of the net amount after such deduction or withholding equal to the amount which would otherwise have been receivable by Augmentus had no such deduction or withholding been required.
4.5 Overdue Payments. If any undisputed amount due to be paid by you to Augmentus under the Agreement remains unpaid as of the date falling thirty (30) days after the due date, Augmentus reserves the right to:
(a) charge you interest on the overdue amount at the interest rate set out in your Purchase Order; and/or
(b) suspend the performance of any of its obligations pursuant to the Agreement (including the suspension of any Services and/or deactivation of your access to the Services).
4.6 No Refund. Except as expressly provided otherwise, all fees are non-refundable.
5. COMPLIANCE
5.1 To ensure compliance with the Agreement, you agree that within ten (10) days from the date of Augmentus or its authorized representative’s request, you shall provide all pertinent records and information requested in order to verify that your access and use of any and all Services is in compliance with the Agreement along with a signed verification that all such information is complete and correct. Furthermore, if you are a Legal Entity, Augmentus or its authorized representatives may upon reasonable prior notice access and inspect your facilities and computer systems to review and verify your compliance with the Agreement. Any such inspection shall be conducted during regular business hours at your facilities or electronically via remote access.
6. TERM AND TERMINATION
6.1 Term. The Agreement commences on the commencement date specified in your Purchase Order and shall continue in force for such term specified therein Date (the “Initial Term”), unless terminated earlier in accordance with this Section 6.
6.2 Renewal. Upon expiry of the Initial Term, the Agreement shall automatically renew on the same terms and conditions for successive twelve (12) month terms thereafter (each, a “Renewed Term”) until and unless terminated by either party by way of notice in writing issued to the other party no less than thirty (30) calendar days prior to the expiry of the existing Initial Term or Renewed Term, as the case may be.
6.3 Early Termination with Notice. Notwithstanding Sections 6.1 and 6.3, either party may terminate the Agreement at any time by giving the other party thirty (30) calendar days’ prior written notice to terminate.
6.4 Immediate Termination without Notice. Notwithstanding Sections 6.1 and 6.3, Augmentus shall have the right to, in its sole discretion, terminate the Agreement without with immediate effect in the event that:
(a) you are in material breach of any provision of the Agreement which is not capable of remedy or (where such breach is capable of remedy) fails to remedy such breach within thirty (30) days after receipt of a written notice from the non-breaching party requiring such breach to be remedied;
(b) you repeatedly or continuously fails to meet your obligations under the Agreement and fail to, upon the other party’s request, remedy such failure within sixty (60) calendar days, irrespective of whether such failures collectively constitute a material breach;
(c) you are in actual or potential breach of any legal or regulatory requirements;
(d) you undergo any change of control;
(e) you become the subject of any voluntary or involuntary bankruptcy, receivership, judicial management or any other insolvency proceedings whether in Singapore or elsewhere (other than for the purpose of a solvent company reorganisation where the resulting entity assumes all the obligations of the other party under the Agreement) or makes an assignment or other arrangement for the benefit of its creditors, or is otherwise unable to pay your debts; or
(f) you have provided false, incorrect or misleading information, or otherwise withheld information, in either case which is material to the performance of your obligations hereunder.
6.5 Rights of Termination available at Law. For the avoidance of doubt, the rights of termination set out in the Agreement shall not exclude any rights of termination available at law.
6.6 Effects of Termination. Upon the expiration or termination of the Agreement:
(a) all rights and licences granted by Augmentus to you under or in connection with the Agreement shall immediately and automatically cease;
(b) Augmentus will terminate and close your account and Augmentus will have no obligation to maintain or forward you your User Content;
(c) Augmentus shall have no further obligation to provide, and shall terminate the provision of, all Services to you;
(d) you shall discontinue all uses of any ongoing Services and the Augmentus Software immediately and shall within seven (7) days following the termination of the Agreement return all materials containing any part of the Augmentus Software to Augmentus;
(e) you shall within seven (7) days following the termination of the Agreement remit to Augmentus all amounts due and payable without any further notice or demand by Augmentus, and you further agree to reimburse Augmentus for and any reasonable attorneys’ fees or legal expenses incurred for the collection of any such amounts due and payable by you to Augmentus;
(f) each party shall discontinue all uses of the other party’s intellectual property immediately and shall within seven (7) days following the termination of the Agreement return all materials containing the other party’s intellectual property;
(g) each Party shall return or destroy the other Party’s Confidential Information in accordance with Section 10.3; and
(h) all provisions of the Agreement which by their nature are intended to survive expiration or termination of the Agreement (including, without limitation, Sections 3, 8, 9, 10, 11, 14, 15) shall survive the termination or expiry of the Agreement and shall continue to have full force and effect.
6.7 Accrued Rights. Except to the extent provided otherwise herein, the termination of the Agreement shall not affect any rights, obligations or liabilities of either party which accrue before termination or which are intended to continue to have effect beyond termination.
6.8 No Refund. For the avoidance of doubt, you shall not be entitled to any refund in respect of any fees paid in respect of any Services in any incomplete period.
7. DISCLAIMERS
7.1 THE SERVICES ARE ALL PROVIDED BY AUGMENTUS ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OF ANY KIND. AUGMENTUS MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO ANY HARDWARE OR ANY PART THEREOF AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, AUGMENTUS DISCLAIMS ALL ANY WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING (WITHOUT LIMITATION) ANY AND ALL (A) WARRANTIES OF MERCHANTABILITY; (B) WARRANTIES REGARDING FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT AUGMENTUS KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); (C) WARRANTIES REGARDING NON-INFRINGEMENT OR CONDITION OF TITLE; (D) WARRANTIES THAT THE SERVICES WILL OPERATE UNINTERRUPTED OR ERROR-FREE OR SUCH ERRORS WILL BE CORRECTED, AND AUGMENTUS DISCLAIMS ALL LIABILITY WITH RESPECT TO ANY FAILURES OF THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM AUGMENTUS OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THE AGREEMENT.
7.2 YOU UNDERSTAND THAT YOU MUST EVALUATE AND BEAR ALL RISKS ASSOCIATED WITH YOUR USE OF THE SERVICES, OR YOUR RELIANCE ON THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE SERVICES.
7.3 IN NO EVENT DOES AUGMENTUS PROVIDE ANY WARRANTY OR REPRESENTATIONS WITH RESPECT TO ANY THIRD-PARTY HARDWARE OR SOFTWARE WITH WHICH THE SERVICES ARE DESIGNED TO BE USED, AND AUGMENTUS DISCLAIMS ALL LIABILITY WITH RESPECT TO ANY FAILURES THEREOF.
8. INDEMNITY
8.1 You agree to indemnify, hold harmless and defend Augmentus and its officers, directors, employees, agents, representatives and licensors from and against any and all claims, demands, actions, suits, proceedings, damages, liabilities, losses, fines, penalties, judgments, awards, settlements, costs and expenses (including attorneys’ fees and court fees) (collectively, “Claims”) arising from or in connection with your (i) access and use of any of the Services; (ii) User Content; (iii) breach or violation of the terms and conditions of the Agreement or any other agreement or license with Augmentus; (iv) violation of any laws, regulations or third-party rights; or (v) fraud, negligent act, omission or wilful misconduct.
9. LIMITATION OF LIABILITY
9.1 Save for any liability in any way that would be illegal to limit and/or exclude under applicable laws, Augmentus shall not be liable to you for any claims, losses, disputes, suits or causes of action based on, or arising out of any force majeure event, any physical injury to person or property or otherwise, any breach of security resulting in loss of user data, and/or any loss arising from your use of any of the Services.
9.2 To the maximum extent permitted by applicable laws, in no event shall Augmentus or its affiliates, suppliers or resellers be liable for any special, incidental, indirect, consequential, or other damages whatsoever (including, without limitation, damages for loss of business, profits, business interruption, loss of data or other information, loss of or corruption to business information, or any other pecuniary loss or damage) arising out of or in any way related to the use of or inability to use the Services, or the provision of or failure to provide technical or other support services or otherwise in connection with any provision of the Agreement whether arising in tort (including negligence) contract or any other legal theory, even if Augmentus, its affiliates, suppliers or resellers have been advised of the possibility of such damages and even if the remedy fails of its essential purpose.
9.3 Save for any liability in any way that would be illegal to limit and/or exclude under applicable laws, in no event shall the aggregate liability of Augmentus, its affiliates, officers, directors, employees, agents, suppliers, resellers and licensors collectively, to you under any provision of the Agreement or arising out of or related to your use of the Services exceed the aggregate amounts paid or payable by you for the Services during the 12-month period immediately preceding the date on which the claim first arose. The existence of more than one claim during the specified term of the Agreement will not enlarge the foregoing limit.
9.4 Without limiting the foregoing, Augmentus may interrupt the Services and/or the Software at any time to perform maintenance, to address security breaches, or for any other reason, or no reason at all, with no liability to you whatsoever. The liabilities limited by this Section 9 include without limitation liability for negligence.
10. CONFIDENTIALITY
10.1 Confidentiality Obligations. Each party to the Agreement shall at all times keep confidential and not disclose to any third party the Confidential Information except as permitted by this Section 10 and for the purposes of performing their obligations under the Agreement, and agrees to protect the Confidential Information with security measures and a degree of care that would apply to its own confidential information, but in any event, no party shall exercise less than reasonable care in protecting such Confidential Information.
10.2 Permitted Disclosures. Notwithstanding Section 10.1 above, the receiving party may disclose Confidential Information:
(a) to its affiliates;
(b) to its and its affiliates’ officers, directors, employees, auditors, advisors, subcontractors and other persons providing services to it where (provided that such person is under a duty of confidentiality in relation to the Confidential Information, whether professional, contractual or otherwise) on a need-to-know basis and/or to the extent necessary for the receiving party to perform its obligations under the Agreement;
(c) where requested or required by law, regulation and/or any court of competent jurisdiction or any competent banking, taxation, judicial, governmental, supervisory, regulatory or equivalent body, and in this respect the receiving party shall (to the extent legally permitted) provide the disclosing party with prior notice of such compelled disclosure and reasonable assistance at disclosing party’s cost, if the disclosing party wishes to contest such compelled disclosure; and
(d) to any other person where necessary for the performance of its obligations under the Agreement or with the consent of the disclosing party.
10.3 Return/Destruction of Confidential Information. Upon termination of the Agreement or upon the written request of the other party, each party shall, where technically practicable and within a reasonable time, return to the other party or destroy (as the other party shall specify) all copies of all the other party’s Confidential Information in the receiving party’s possession and shall, upon request, provide the other party with a written certification, signed by one of its officers, certifying the destruction or return of such Confidential Information.
10.4 Remedies. If the receiving party discloses or uses (or threatens to disclose or use) any Confidential Information of the disclosing party in breach of this Section 10, the disclosing party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, without the necessity of posting bond, it being specifically acknowledged by the parties that any other available remedies are inadequate.
10.5 Survival. Notwithstanding any other provisions of the Agreement, the obligations of confidentiality under this Section 10 shall survive the termination or expiration of the Agreement.
10.6 For the purposes of this Section 10, “Confidential Information” means all and any data and information whether in written, machine readable or other tangible form, or obtained by recipient through observation or examination of such information and material or disclosed orally, that is proprietary, confidential and of value to the disclosing party, is not generally known to competitors of the disclosing party, including but not limited to (a) information concerning or relating in any way whatsoever to its business, distributorship, franchise or other arrangements, principals, any of the trade secrets or confidential operations, processes or inventions carried on or used by the disclosing party, any information concerning the organisation, business, finances, transactions or affairs of the disclosing party, its dealings, secret or confidential information which relates to its business or any of its principals’, clients’ or customers’ transactions or affairs, its technology, designs, documentation, manuals, budgets, financial statements or information, accounts, dealers’ lists, customer lists, marketing studies, drawings, notes, memoranda and the information contained therein, any information therein in respect of trade secrets, technology and technical or other information relating to the development, manufacture, clinical testing, analysis, marketing, sale or supply or proposed development, manufacture, clinical testing, analysis, marketing, sale or supply of any products or services by the disclosing party, and plans for the development or marketing of such products or services and information and material which is either marked confidential or is by its nature intended to be exclusively for the knowledge of the recipient alone; (b) all information or materials prepared in connection with the Agreement or any related subsequent contract and includes, without limitation, all of the following: designs, software, programs, drawings, specifications, techniques, models, data, source code, object code, documentation, diagrams, flow charts, research, development, processes, procedures, ideas, data, “know-how”, new product or new technology information, product prototypes, product copies, manufacturing, development or marketing techniques and materials, development timetables, strategies and development plans, including trade names, trademarks, customer, the disclosing party’s name or personal names and other information related to customers, the disclosing party or its personnel, pricing policies and financial information, and other information of a similar nature, whether or not reduced to writing or other tangible form, and any other trade secrets or non-public business information; and (c) in the case of Augmentus as the disclosing party, without limiting the foregoing, the code, technology, intellectual property and business operations of Augmentus. For the avoidance of doubt, “Confidential Information” shall exclude any item of information which (i) is or become available in the public domain without the fault of the receiving party; (ii) is disclosed or made available to the receiving party by a third party without restriction and without breach of any relationship of confidentiality; (iii) is independently developed by the receiving party without access to the disclosing party’s Confidential Information; or (iv) is known to the receiving party prior to disclosure by the disclosing party.
11. DATA PROTECTION (WHERE APPLICABLE)
11.1 Privacy Policy. You hereby acknowledge and agree that personal data relating to you or provided by you in the course of accessing and using the Services may to the extent that it is reasonably necessary in connection with the Services be collected, processed and used by Augmentus and its affiliates and be disclosed in accordance with our privacy policy. By using any of the Services, hereby represent that you have read, understood and agreed to our privacy policy, which is available here and which may be amended from time to time.
11.2 Consent. By disclosing personal data to Augmentus, you warrant that you have obtained the necessary consent from the relevant individuals in accordance with applicable data protection and privacy laws to disclose such personal data.
11.3 Compliance with Laws. In respect of any personal data collected, used, disclosed or processed pursuant to the Agreement, Augmentus shall ensure that it complies with all applicable data protection and privacy laws that relate to its collection, use, disclosure and processing of such personal data. Without limiting the foregoing, Augmentus shall take appropriate technical and organisational measures (and, if applicable, information security policy) against any unauthorised or unlawful disclosure, or accidental loss or destruction of, or damage to, any such personal data.
11.4 Data Processor. In the event that Augmentus is deemed to be processing personal data on your behalf (in such capacity, a “data processor”), you consent to the processing by such data processor of such personal data for the purposes of performing (or enabling the performance of) any obligations under the Agreement and for the internal business purposes of Augmentus (including but not limited to data analytics, machine learning, improvement of its technology and systems), and the transfer of such personal data to any affiliates of Augmentus and their respective agents, representatives and subcontractors, and to anywhere in the world.
12. YOUR REPRESENTATIONS AND WARRANTIES
12.1 You represent and warrant that:
(a) you have full legal right and power and all authority and approvals required to enter into the Agreement and to perform fully your obligations hereunder which constitute valid and binding obligations enforceable against in accordance with its terms;
(b) your entry into and performance of the Agreement will not:
(i) conflict with or result in any breach or violation of any of the terms and conditions of, or constitute (or with notice or lapse of time or both constitute) a default under, any applicable law or order or any contract to which it is a party or by or to which it is bound or subject;
(ii) violate any order against, or binding upon, it or upon its securities, properties or business; and
(iii) violate any law;
(c) there are no litigation, arbitration or administrative proceedings current or pending or, so far as you are aware, threatened, which (i) restrain your entry into, exercise of your rights under or performance or enforcement of or compliance with your obligations under the Agreement or (ii) has or could have a material adverse effect on you;
(d) you shall at all times comply with all laws, rules and regulations applicable to you, the conduct of its business and the performance of its obligations under the Agreement, including, without limitation, laws relating to anti-money laundering, data protection and consumer rights; and
(e) your have obtained all material licenses, authorizations, approvals, consents, or permits required by applicable laws (including the rules and regulations of all authorities having jurisdiction over the provision of the Services) to conduct its business generally and to perform its obligations under the Agreement.
13. MISCELLANEOUS
13.1 Entire Agreement. The Agreement read in conjunction with your Purchase Order constitutes the entire agreement between yourself and Augmentus with respect to your use of the Service and supersedes all prior oral and written agreements, memoranda, understandings and undertakings between the parties relating to the subject matter of the Agreement, unless you and Augmentus have executed a separate written agreement governing your use of the Services, in which case such separate agreement(s) will control in relation to the relevant Services.
13.2 No Agency, Partnership etc. Nothing in the Agreement shall be deemed to constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between you and Augmentus other than the contractual relationship expressly provided for in the Agreement. Neither party shall have, nor represent that it has, any authority to make any commitment on the other party’s behalf.
13.3 Consent to Specific Performance. You agree that it might be impossible to measure in money the damages which would accrue to Augmentus by reason of failure to perform certain obligation hereunder. Augmentus shall, therefore, be entitled to seek injunctive relief, including specific performance, to enforce such obligation and if any action should be brought in equity to enforce any of the provisions of the Agreement, you shall not raise the defence that there is an adequate remedy at law.
13.4 Force Majeure.
13.4.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than an obligation to make payment), that obligation will be suspended for the duration of the Force Majeure Event. A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay on the part of that party performing any obligation under the Agreement (other than an obligation to make payment), must promptly notify the other party of that fact, and inform the other party of the period for which it is estimated that such failure or delay will continue. Notwithstanding the foregoing, a party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event. In the event a Force Majeure Event lasts for more than sixty (60) days, the other party has the right to immediately terminate the Agreement upon giving written notice.
13.4.2 For the purposes of Section 13.4.1, “Force Majeure Event” means, in relation to the performance by any party of any obligation under or in connection with the Agreement, an event or condition (or a series of related events or conditions) that is beyond or falls outside the reasonable control of such party, including but not limited to failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, inability to secure products or services from other persons or entities (including the failure or performance of common carriers, interchange carriers, local exchange carriers, internet service providers, hosting infrastructure service providers, suppliers or subcontractors), power failures, strikes or industrial disputes, insurrections, riots, embargoes, changes to any applicable law, earthquakes, floods, fires, epidemics or pandemics, explosions, fires, floods or other natural disasters, riots, terrorist attacks, wars or any other acts of enemies.
13.5 Waivers; Non-Contractual Remedies; Preservation of Remedies. No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any party of any such right, power or privilege, nor any single or partial exercise of any such right, power or privilege, preclude any further exercise thereof of the exercise of any other such right, power or privilege. The rights and remedies herein provided are cumulative and are not exclusive of any rights or remedies that any party may otherwise have at law or in equity.
13.6 Severability of Provisions. If any provision or any portion of any provision of the Agreement or the application of any such provision or any portion thereof to any person or circumstance, shall be held invalid or unenforceable, the remaining portion of such provision and the remaining provisions of the Agreement, and the application of such provision of portion of such provision as is held valid or enforceable to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby.
13.7 Successors and Assigns. You shall not assign all or any part of your interest in the Agreement without the prior written consent of Augmentus. Augmentus shall have the right to assign all or any part of its interest in the Agreement without your prior written consent. Subject to the foregoing, the Agreement shall be binding upon and shall inure to the benefit of the parties and their successors and permitted assigns.
13.8 Notices. Any notice or other communication required or permitted hereunder shall be in writing and shall be delivered personally or sent by certified, registered or express mail, postage prepaid, or by distribution via electronic mail, to the addresses and email addresses set out in the Purchase Order or to such other address as the parties may designate by written notice. Any such communication shall be deemed duly given, in the case of personal delivery and courier service, upon delivery and receipt of written acknowledgement thereof and in the case of registered mail, 14 days after posting, and in the case of electronic mail, upon confirmation of delivery and receipt, provided that if such day is not a business day or such time not a normal business hour then delivery shall be deemed to have occurred on the following business day.
13.9 Further Assurance. Each party shall do and execute or procure to be done and executed all such further acts, deeds, things and documents as may be necessary to give effect to the terms of the Agreement, and (so far as it is able) to provide such assistance as the other parties may reasonably request (including without limitation, exercising its power as shareholders) to give effect to the spirit and intent of the Agreement.
13.10 Time of Essence. Any date, time or period mentioned in any provision of the Agreement may be extended by mutual agreement between the parties but as regards any time, date or period originally fixed and not extended or any time, date or period so extended as aforesaid, time shall be of the essence.
13.11 Contracts (Rights of Third Parties) Act. Unless expressly provided to the contrary in the Agreement, a person who is not a party to the Agreement has no right under the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore to enforce or to enjoy the benefit of any term of the Agreement.
14. GOVERNING LAW
14.1 The Agreement shall be governed by, and construed, in accordance with, the laws of Singapore without giving effect to any principles of conflict of laws.
15. DISPUTE RESOLUTION
15.1 In the event of any disputes, controversies, or differences arising out of or in connection with the Agreement (a “Dispute”), the parties agree to first meet and discuss in good faith a possible resolution thereof.
15.2 If the parties are still not able to resolve the Dispute by good faith negotiations within thirty (30) calendar days of the start of such discussions, then the Dispute shall be submitted to the Singapore Mediation Centre for resolution. The disputes, controversies or differences shall be referred within fourteen (14) business days thereafter, in accordance with the Mediation Procedure for the time being in force, unless any of the parties serve a written notice on all the other parties and the Singapore Mediation Centre stating that it does not agree to submit the matter to mediation. The parties agree to participate in mediation in good faith and undertake to abide by the terms of any settlement reached.
15.3 In the event that the Dispute cannot be resolved by according to the procedure above, then the Dispute shall finally be submitted to the non-exclusive jurisdiction of the courts of Singapore.