his myda General Terms of Service (“Agreement”) is a legal agreement between Myda Pte, Ltd (“myda”, “supplier”, “we”, “our” or “us”) and the entity or person (“Customer”, “You”, “Your”, or “user”) who signs up on the myda account page to receive certain Software, Analytics, Intelligence, benchmarking and other business services that may be offered by myda (each, a “Service”)
The definitions and rules of interpretation in this clause apply in this agreement.
Services: the Services provided by myda.
Authorised Users: the employees of the Customer who are authorised by the Customer to use the Applications.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Business Details: all details of the Customer’s business (whether or not entered by the Customer) on the Biits Website.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in Confidentiality section.
Customer: the firm contracting with the Supplier under this agreement.
Customer Data: any and all data inputted by the Customer into the:
Due Dates: has the meaning given to it in Charges and Payment section.
Event of Default: has the meaning given to it in Term and Termination section.
Initial Subscription Term: 1 month, 12 months, 24 months or 36 months, as selected by the Customer during the Subscription process.
Instructions: any user instructions issued by the Supplier from time to time in relation to an Application.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
Normal Business Hours: 8.00 am to 6.00 pm local time in the United Kingdom, each Business Day.
Subscription: the Customer's order for an Application or Remote Access Application, as applicable.
Purchase Order Form: the details of the Order provided to the Customer prior to the Order’s completion.
Renewal Period: has the meaning given to it Term and Termination section.
Subscription Fees: the subscription fees initially set out in the Purchase Order Form, as may be amended from time to time, payable monthly by the Customer to the Supplier for any or all of the Chargeable Applications.
Subscription Term: has the meaning given to it in Term and Termination section.
Supplier: Myda Pte Ltd, incorporated and registered in Singapore with company number 201704734W whose primary business address is at Samsung Hub #25-01, 3 Church Street, Singapore 049483.
User Manual: any user manual issued by the Supplier from time to time in relation to an Application.
Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
A reference to a statute or statutory provision is a reference to it as it is in force as at completion of the Order.
A reference to a statute or statutory provision shall include all subordinate legislation made under that statute or statutory provision as at completion of the Order.
A reference to writing or written includes e-mail but does not include fax.
References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement;
Subject to the Customer subscribing for a Service in accordance with the Supplier’s requirements as notified to the Customer during the Order process and, if the Service is a Chargeable Service making payment in accordance with Charges and Payments section, the Supplier shall grant to the Customer a non-exclusive, non-transferable right to use such Service during the Subscription Term in accordance with the terms of this agreement and solely for the Customer's internal business operations.
The Customer shall use each Service in accordance with any:
The customer shall not;
Subject to the Customer subscribing for a Service in accordance with the Supplier’s requirements as notified to the Customer during the Order process, the Supplier shall grant the Licence to the Customer to use the relevant Remote Access Application.
The Customer undertakes to comply with the terms of the Licence and agrees that any breach by the Customer of the terms of the Licence shall constitute a material breach of the terms of this agreement.
The parties agree that:
Notwithstanding the foregoing, the Supplier does not warrant that the Customer's use of the Applications will be uninterrupted or error-free; or that the Applications and/or the information obtained by the Customer through the Applications will meet the Customer's requirements. The Supplier shall not be responsible for: (a) any non-conformance, defect or error which is caused by any use of the Applications contrary to the Supplier's instructions (including non-compliance with the relevant Instructions or Manual); (b) any modification or alteration of the Applications (other than as expressly permitted by this agreement); or (c) any server outages or loss of network connection, delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that its use of the Applications may be subject to limitations, delays and other problems inherent in the use of such facilities.
The Supplier shall use commercially reasonable endeavours to make the Applications available at all times except for during times of:
The Supplier will, as part of its provision of the Applications and at no additional cost to the Customer, provide the Customer with the Supplier's standard customer support services during Normal Business Hours.
This agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreements
The customer shall provide the Supplier with:
all necessary co-operation in relation to this agreement; and
all necessary access to such information as may be required by the Supplier;
Including but not limited to Customer Data, supplier data, inventory, transactions, expenses, etc, security access information and configuration details of services;
comply with all applicable laws and regulations with respect to its activities under this agreement (and for the avoidance of doubt the Customer shall be responsible for making itself aware of such laws and regulations);
carry out all other responsibilities of the Customer as set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable as reasonably necessary;
ensure that all Authorised Users use the Applications in accordance with the terms and conditions of this agreement and, for the avoidance of doubt, the Customer shall be responsible for any Authorised User's breach of this agreement;
obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this agreement, including without limitation the provision to the Customer of any of the Applications;
ensure that its network and systems comply with the information provided in the relevant specifications provided by the Supplier from time to time;
be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet;
use all reasonable endeavours to ensure that its Business Details are accurate and not misleading in any way and, in the event that the Supplier in its sole discretion deems such Business Details to be incorrect or misleading, the Supplier shall have the right to amend the Customer’s Business Details as it sees fit;
use all reasonable endeavours to prevent any unauthorised access to, or use of, the Applications and, in the event of any such unauthorised access or use, the Customer shall immediately notify the Supplier in writing.
In the event that the Customer subscribes to any of the Chargeable Service, the Customer shall pay the Subscription Fees to the Supplier in accordance with this clause.
During the Order process the Customer shall provide to the Supplier valid, up-to-date and complete debit or credit card details and the Customer hereby authorises the Supplier to bill such debit or credit card for the Subscription Fees:
If the Supplier has not received payment within 5 days of any Due Date, without prejudice to any other rights and remedies of the Supplier:
All amounts and fees stated or referred to in this agreement:
The parties agree that:
For the avoidance of doubt in relation to the foregoing, the Supplier shall exercise such rights of access and use of the Customer Data in reliance on the warranties given by the Customer in terms set out in Your Data section.
The Customer warrants and undertakes to the Supplier that:
The Supplier shall use commercially reasonable endeavours to follow its archiving procedures for Customer Data and in the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with the archiving procedure referred to above. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party
The Supplier shall, in providing the Applications, comply with its policy relating to the privacy and security of the Customer Data (if any).
For the purposes of the Supplier’s provision of any of the Applications to the Customer, in the event that the Supplier processes any personal data on the Customer's behalf when performing its obligations under this agreement, the parties record their intention that the Customer shall be the data controller and the Supplier shall be a data processor and in any such case:
Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer is located in order to:
Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer's behalf (or otherwise);
Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation; and
each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
The Customer acknowledges and agrees that the Supplier (and/or its licensors) own all Intellectual Property Rights in the Services and this agreement does not grant the Customer any Intellectual Property Rights, or (except where expressly stated) any other rights or licences in respect of the Applications.
Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party's Confidential Information shall not be deemed to include information that:
Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this agreement.
Each party Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
The Customer acknowledges that details of the Applications (and the Remote Access Applications), and the results of any performance tests of the Applications (and the Remote Access Applications), constitute the Supplier's Confidential Information.
Subject to terms in Your Data section, the Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
The above provisions of this section shall survive termination of this agreement, however arising.
The Customer shall defend, indemnify and hold harmless the Supplier (including its officers, directors and employees) against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Applications. The Supplier shall provide reasonable co-operation to the Customer upon the reasonable request of the Customer, in the defence and settlement of such claim, at the Customer's expense.
The Supplier shall defend the Customer against any claim that any of the Applications infringe any United Kingdom patent taking effect from the date of completion of the Order, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the relevant Application, replace or modify the relevant Application so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement immediately without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
In no event shall the Supplier be liable to the Customer to the extent that the alleged infringement is based on:
The foregoing states the Customer's sole and exclusive rights and remedies, and the Supplier's (including the Supplier's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
This section sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub contractors) the the Customer:
Except as expressly and specifically provided in this agreement:
Nothing in this agreement excludes the liability of the Supplier:
Subject to the Terms set in Limitation of Liability section:
All references to “the Supplier” in this section shall, for the purposes of this section only, be treated as including all officers, employees, subcontractors and suppliers of the Supplier and its affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause.
This agreement shall commence upon completion of the Subscription and, unless otherwise terminated in accordance with this section, shall continue for the Initial Subscription Term and, thereafter, this agreement shall automatically renew for further periods equal to the Initial Subscription Term (each a Renewal Period), unless:
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term. Any notice to terminate sent by the Customer by e-mail in accordance with this section must be sent to the Termination E-mail Account.
Without affecting any other right or remedy available to it, the Supplier may terminate this Agreement with immediate effect if:
(Each an event of Default) and, for the purposes of this terms in this Section, the Customer shall be under a positive obligation to notify the Supplier (in writing) of the coming into effect of any Event of Default, as soon as practicable after the occurrence of the relevant Event of Default but, for the avoidance of doubt, the Supplier’s right to terminate this agreement under this section shall not be in any way dependent upon receiving such notification from the Customer.
On termination of this agreement by the Supplier pursuant to an Event of Default, all fees which would have been due to the Supplier between the date of termination and the end of the Initial Subscription Term or Renewal Period (as applicable) shall immediately become due and payable.
On termination of this agreement for any reason:
The Supplier shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No Failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.
The customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power)
Any notice required to be given under this agreement shall be in writing and shall be delivered by e-mail or by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party (in writing) for such purposes.
A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery).
A correctly addressed notice sent by:
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Singapore.