THESE SOFTWARE AS A SERVICE (SAAS) TERMS (“TERMS”) SET OUT TERMS AND CONDITIONS BINDING ON WIZ AND CUSTOMER IN RESPECT OF SERVICES PROVIDED UNDER ONE OR MORE SCOPE OF WORK DOCUMENTS (THE “PARTIES”).
1. Definition and Interpretation
1.1 In these Terms, the following words and expressions shall have the meanings set out hereunder unless the context otherwise requires:
“Account” means an account that the Customer, the Company Administrator, or the Customer User may use to access the Application Portal, the Website, or any aspect of the Services.
“Agreement” means these Terms, the applicable Country Addendum (where applicable, and if any), all documents and supplementary terms issued by Wiz incorporating such amendments and variations as may be effected by Wiz from time to time in accordance with any of the provisions hereof, and any other agreements which the Customer may have with Wiz including terms and conditions which are or may be prescribed by Wiz from time to time in respect of certain Accounts and/or the Services.
“Applicable Laws” means all statutes, laws, rules, regulations, directives, circulars, notices (whether of governmental body or authority or self-regulatory organisations in relation to which Wiz is a member or otherwise), whether in or outside Singapore which are applicable to Wiz and/or the Customer and/or to which Wiz and/or the Customer is subject.
“Application” means any application made available by Wiz operating through the Application Portal.
“Application Portal” means an application portal system made available by Wiz from time to time enabling the Customer to utilise the Application.
“Application Software” means all software used for the purpose of the provision to the Customer of the Services.
“Business Day” means a day on which Wiz is open for business in the country in which it operates.
“Company Administrator” means the person appointed by the Customer to administer and control the access and use of the Application Portal and/or the Services by the Company Users on behalf of the Customer.
“Company User” means a person authorised by the Customer and/or the Company Administrator to perform day-to-day transactions on behalf of the Customer.
“Country Addendum” means the additional and specific terms applicable in the country or region in which Wiz provides the Services, if any.
“Customer” means the person who accepts and enters into these Terms.
“Customer User” means any of the Company Administrators and Company Users or any combination thereof, who is/are authorised by the Customer from time to time to access and use the Application Portal on behalf of the Customer.
“Equipment” means any electronic, wireless, communication, transmission or telecommunications equipment, device or medium including but not limited to the Internet, any computer or mobile equipment, device, terminal or system which may be required to access and use the Services.
“Instruction” means any request, authorisation or instruction sent, given or transmitted to Wiz. Unless otherwise specified by Wiz, such Instruction must be transmitted through the Application Portal.
“Loss” means any and all injuries, liabilities, losses (including indirect and consequential losses), damages, costs, charges and/or expenses of whatsoever nature or however arising, including legal fees on a full indemnity basis.
“Officer” includes any director, officer, employee, consultant, or representative of Wiz.
“Password” means any number, password or other names, phrases, symbols or codes, whether issued or assigned by Wiz to a Customer User or otherwise selected by a Customer User, to enable him to access any Account and/or to utilise the Services on behalf of or for the Customer and includes any other number, password, name, phrase, symbol or code issued, assigned or selected in replacement thereof.
“Services” means any conversation talkbot or other facility, product or service provided by Wiz to the Customer using the Application Portal.
“User ID” means the identification characters or numbers (whether or not alpha-numeric) issued and assigned by Wiz to the Customer or otherwise selected by the Customer or subsequently selected by a Customer User to access the Application Portal and the Services and for the purpose of enabling Wiz to verify and authenticate the identity of such Customer User for its access to the Application Portal and the Services and includes any other characters or numbers so assigned or selected in replacement thereof.
“Website” means the website presently located at www.wiz.ai (or any replacement or successor domain name), and includes any website operated and/or maintained by or for Wiz from time to time and at any time.
“Wiz” means the entity contracting to provide the Services to the Customer. Typically, this is the Wiz entity named in a Scope of Work document incorporating these Terms.
1.2 The headings or titles to the provisions of these Terms are to facilitate reference and shall not be referred to or relied upon in the construction of any provision of these Terms.
1.3 Where the context so admits, the singular shall include the plural and words in the masculine gender shall include the feminine gender and/or neutral gender and vice-versa.
1.4 The rights of Wiz with respect to any matter conferred under any provision of these Terms shall be additional to the rights conferred under any other agreement with respect to the same matter.
1.5 Any reference to a person in these Terms includes any natural person or any firm, association of persons, corporation, or entity.
1.6 Any reference to a party in these Terms shall include a reference to his successors in title and permitted assigns.
1.7 This Agreement may be amended in accordance with its terms from time to time and is in addition to any other agreements which the Customer may have with Wiz including terms and conditions which are or may be prescribed by Wiz from time to time in respect of certain Accounts and/or Services and such agreements and terms and conditions shall be considered an integral part of this Agreement.
2. Application of Agreement
2.1 These Terms, together with the Scope of Work document that incorporates these Terms, shall constitute an agreement between the Customer and Wiz (collectively the “Parties” and each a “Party”) and shall be considered an integral part of the Agreement. The Agreement shall apply to all Accounts and Services that the Customer has requested or applied for, or currently maintains or utilises, or may subsequently open or establish with Wiz from time to time.
2.2 In the event of any conflict between any of the provisions of the Agreement and any of the provisions of the Agreement, then, to the extent of such conflict, the documents will be given a descending order of precedence as follows: (a) these terms herein; (b) policies and guidelines issued by Wiz; (c) the scope of work document; and (d) any other document constituting the Agreement.
2.3 Notwithstanding anything to the contrary herein, the terms of the Agreement shall not affect or diminish in any way the rights of Wiz referred to or set out in the Website, including, but not limited to any and all exclusions, disclaimers and limitations of liabilities of Wiz, referred to or set out in the Website.
Wiz shall make available the Services to the Customer. As Wiz strives to constantly enhance the performance and range of its Services, Wiz may, without notice to the Customer, modify the range and selection of the Services. The Customer agrees that it has no legitimate expectation as to the range and selection of the Services, as well as the time period for which such Services are provided.
4.1 The nature of the Services may require the Customer to configure the particulars of the Services, and to provide scripts and flowcharts. The Customer may from time to time make modifications to the configurations of the Services or alter the scripts and/or flowcharts provided by way of Instructions. Customer shall perform this configuration through the Application Portal.
4.2 Wiz may (but shall not be obliged to) rely and act upon or carry out any Instruction, and to the extent that any such Instruction is relied, acted upon or carried out by Wiz, then such Instruction shall be deemed to have been given by the Customer to Wiz, notwithstanding anything to the contrary.
4.3 It is the Customer’s responsibility ensure that the appropriate persons are permitted to log into and perform configuration changes. As such, Wiz shall be under no obligation to check the authenticity of any Instruction or the authority of the person or persons giving such Instruction. Without prejudice to the foregoing, Wiz shall otherwise be entitled (but not obliged) to verify and be satisfied with respect to:
(a) the identity of the person purporting to give any Instruction or the source and origin of any Instruction; and/or
(b) the representation of authority of any Customer User purported to act on behalf of or for the Customer;
and Wiz may defer relying or acting upon or carrying out any Instruction unless and until it is satisfied as to the matters on which it has sought verification regardless of whether it is under any obligation to the Customer to act upon or carry out that Instruction.
4.4 In the event that Wiz decides to rely, act on or carry out any Instruction or is otherwise under an obligation to do so in relation to any Instruction, Wiz shall be allowed such amount of time to act on or carry out any Instruction as may be reasonable having regard to the systems and operations of Wiz and other prevailing circumstances at the time and shall not be liable for any Loss arising from any delay on its part in relying or acting on or carrying out any such Instruction.
4.5 Wiz may, in its absolute discretion and without liability, refuse to act on or delay acting on any Instruction if it knows of or suspects a breach of security (or breach of Applicable Laws) in respect of or in connection with the Services generally or if it has terminated these Terms pursuant to Clause 13 hereof. In the event Wiz does not act on or delay acting on an Instruction pursuant to the foregoing, Wiz will inform the Customer of this as soon as is reasonably possible.
5. Intellectual property
5.1 Title, Grant of Licence and Transfer of Risk. Except as otherwise specifically provided in the Agreement, no Party shall be deemed to have offered or granted to the other Party any rights or licenses under any present or future intellectual property disclosed or arising pursuant to the Agreement. Any intellectual property generated in the course of the term of Services or otherwise pursuant to the Agreement will vest solely in Wiz to the exclusion of the Customer, even where produced specifically for a Customer. The Customer acknowledges that copyright and all other industrial, intellectual and marketing rights including all modifications made for the Customer, are and shall remain the property of Wiz or its subcontractors. The Customer has no right to, and undertakes not to, copy, modify, reverse engineer or further develop the Application or Application Software. No title to intellectual property is transferred to the Customer. Wiz shall have the right to obtain injunctive relief against any violation of the preceding licence in addition to any other rights to which Wiz may be entitled.
5.2 Right to Use Application Software of Wiz. Wiz grants to the Customer, and the Customer accepts, during the term of the Services, a personal, non-transferable and non-exclusive licence, which gives the Customer the right to use the Application Software subject to any applicable restrictions set forth herein. The Customer’s rights granted under this Agreement are limited to the executable object code version of the Application Software, and the Customer shall have no rights whatsoever with respect to any source code version of the Application Software. The Customer shall not sublicense or assign any of its rights granted with respect to the Application Software.
5.3 The Customer has no right to use, copy, display, or print the Application Software or any documentation provided, if any, in whole or in part, except as may be expressly stated in the Agreement. The Customer is further prohibited from using the Application Software on a service bureau basis, or otherwise providing data caching and/or management functionality to third parties except as otherwise expressly permitted herein. The Customer obtains no ownership rights in the Application Software. Wiz and/or its licensors reserve all rights not expressly granted herein.
5.4 The Customer shall not, and shall not permit others to, reverse engineer, modify, disassemble or reverse compile and assemble all or any portion of the Application Software.
5.5 It is the responsibility of the Customer to maintain an acceptable level of physical and cybersecurity. The Customer shall use the same degree of care that it uses to protect its own business secrets and confidential information, but not less than a reasonable degree of care, to ensure that the Application Software and any documentation related to it (including any documentation provided, if any) are protected at all times from misuse, damage, theft or destruction by any person, and shall not permit any persons other than its authorized personnel to access or use the Application Software or the documentation thereof. The Customer must immediately provide Wiz with any and all details which the Customer becomes aware of, regarding any unauthorized access, copying, modification or use of the Application Software or the documentation, or any breach of this Clause.
5.6 The Customer warrants that its use of the Application Software will not violate any Applicable Laws, regulation or treaties (including but not limited to data protection laws), the use of the Application Software will only be for lawful purposes, and that the Customer shall not use or authorise or otherwise permit anyone else to use the Application Software for any use which is prohibited by the Agreement.
5.7 Technical Documentation. Wiz may provide the Customer with technical documentation. The Customer hereby acknowledges that such documentation contains the proprietary and confidential information of Wiz and its suppliers. Therefore, the Customer shall not, without Wiz’s prior written consent, utilise, copy, reproduce or communicate to a third party any part of such documentation. Upon termination of the Services, the Customer shall return, at his expense, all such documentation to Wiz and destroy any and all copies of such documentation.
6. Password and User ID
6.1 It is the responsibility of the Customer to ensure an acceptable level of Password and User ID security. The Customer undertakes to procure:
(a) that no person shall be permitted or shall have access or knowledge of any User ID or Password of any Customer User except for such Customer User;
(b) that each Customer User: (i) shall keep confidential and not divulge to any person the User ID and/or Password of such Customer User; (ii) shall memorise that User ID and Password and where applicable, destroy the envelope or document in which that User ID and Password are stated; (iii) shall immediately notify Wiz after such Customer User has reason to believe or suspect that any person may have acquired knowledge of that User ID and/or Password.
6.2 Wiz shall be entitled to rely on and treat any Instruction made, submitted or effected pursuant to the entry or use of the User ID and/or the Password of any Customer User as having been made, submitted or effected by that Customer User for and on behalf of the Customer, unless Wiz has received sufficient advance notice of the disclosure or unauthorised use of the User ID and/or Password from the Customer or that Customer User in such form and by such means as Wiz may deem satisfactory, and Wiz is given sufficient amount of time in advance of such Instruction as Wiz would reasonably require (having regard to all prevailing circumstances at the time) to enable it to take appropriate action to prevent such Instruction from being received, acted upon and implemented.
7.1 Customer acknowledges that misuse of the Application Portal may lead to disruption of services to Wiz’s other customers and their operations. The Customer agrees to comply with and to procure that the Customer Users comply with the terms of the Agreement and comply with any instructions or recommendations Wiz may issue to the Customer regarding security in relation to the use of Application Portal and the Services.
7.2 The Customer acknowledges that security is a paramount concern in its access to and use of the Application Portal and/or the Services and agrees that it is solely responsible for the set-up, maintenance, and review of its security arrangements:
(a) concerning access to and use of the Application Portal and the Services, its Equipment and information stored therein, and the Customer’s and any of the Customer Users’ control of their User IDs, Passwords, and access to the Application Portal and/or the Services; and
(b) for the Instructions and/or the transactions made or effected, or purported to be made or effected, by the Customer or the Customer Users.
The Customer bears the risk of any unauthorised use and/or access to the Application Portal and/or the Services, its Equipment and information stored therein, User ID, and/or Passwords.
7.3 The Customer and/or the Customer Users must notify Wiz immediately, if the Customer or any Customer User knows of or suspects any unauthorised access to the Application Portal and/or the Services or any unauthorised transaction or Instruction, or if the Customer suspects someone else knows the User ID and Passwords of one or more of the Customer Users. In the event of any such breach or suspected breach of security, the Customer must ensure that all the Customer Users change their Passwords immediately. The Customer agrees to comply immediately with all reasonable requests for assistance from Wiz and/or the authorities (including the police, among others) in trying to recover any losses or identify actual or potential breaches of security.
7.4 If a Customer User is leaving the employ of the Customer or is no longer authorised or instructed by the Customer to utilise the Application Portal and/or the Services for any reason whatsoever, or if the Customer suspects any impropriety on the part of any Customer User in connection with the use of the Application Portal and/or the Services, then the Customer must immediately:
(a) inform Wiz of the aforesaid eventuality;
(b) take all steps to ensure that the Customer User is replaced; and
(c) prevent further access to the Application Portal and/or the Services, including but not limited to submitting a request or Instruction to Wiz to revoke the Customer User’s User ID and Password.
7.5 The Customer hereby requests and authorises Wiz from time to time, without further authority or notice required from the Customer, to: (a) act upon any request or Instruction to re-set any User ID, Password; and/or (b) specify the mode of which the Customer can make such request or Instruction. In addition, the Customer agrees that Wiz shall not be liable to the Customer or any third party for any Loss or damage suffered by the Customer or any third party arising from any such request or Instruction being unauthorised or fraudulent or otherwise.
7.6 The Customer shall comply with the applicable authentication methods or any other methods implemented by Wiz from time to time.
8. Customer’s Other Obligations
8.1 The Customer shall not, and shall procure that the Customer Users shall not, use or disclose any material and/or information on the Website pertaining to the Application Portal and/or the Services save for that pertaining to the access and use of the Application and/or the Services. The Customer further undertakes (and procures that each Customer User undertakes) not to reproduce, sell, distribute or in any way whatsoever allow any third party to access the aforesaid material and/or information provided by Wiz on or via the Application Portal.
8.2 The copyright in and to the content of the Website (save for information pertinent to the Customer’s Account(s)) is owned by or licensed for use by Wiz. No part of such content may be reproduced, distributed, published, modified, displayed, broadcasted, hyperlinked, or transmitted in any manner, or otherwise stored in an information retrieval system by any means, without the prior written consent of Wiz. The trade and service marks displayed on the Website are the sole and exclusive property of Wiz and/or other relevant third parties. No right or licence is given for any reproduction or use of any such trade and service marks.
8.3 If the Customer (or any of the Customer Users) receives or retrieves any data or information from the Application Portal or through using an application or services that is not intended for the Customer, the Customer shall immediately notify (and procure such Customer User to notify) Wiz of such receipt or retrieval of such data or information, and delete and destroy (and procure the deletion and destruction of) such data or information.
8.4 The Customer shall respond promptly to all enquiries and communications from Wiz regarding the Application Portal, the Application and/or the Services.
8.5 The Customer shall ensure that:
(a) any person appointed by the Customer as the Customer User has sufficient knowledge and skill to properly operate and maintain all Equipment and software installed or used by the Customer, to enable the Customer to access and utilise the Application and the Services;
(b) every Customer User acquires full and complete knowledge of all features and settings of all Application Software before that Customer User commences utilising the Application or any Service; and
(c) every Customer User shall competently and properly operate and maintain all such Equipment and software referred to in Clause 8.5 (a) above in accordance with the requirements of the Customer and such procedures and requirements as may be stipulated from time to time by Wiz with respect to the Application or any Service.
8.6 The Customer shall not, and shall ensure that every Customer User shall not, use the Application or the Services in a manner that is, or may be perceived as, a breach of Applicable Laws, including without limitation, the conduct of: (i) making nuisance calls to emergency telephone numbers; and (ii) sending telemarketing messages to persons on the DNC Registry (as defined in the Schedule).
9. Electronic notices.
9.1 The Customer acknowledges and agrees that as part of the Services, notices may be sent from time to time to the Customer through various electronic mediums including but not limited to emails and text messaging including WhatsApp and WeChat.
9.2 The Customer shall be responsible for configuring and testing its Equipment and the settings on the Application Portal for receiving notices from Wiz. Wiz shall not be liable to the Customer or any third party for any Loss, suffered by the Customer or such third party, caused by or arising from any inaccurate or incomplete content in these notices or non-delivery or delayed delivery of any such notices.
The Customer warrants that neither the Customer nor the Customer Users shall directly or indirectly utilise the Services, the Application, and/or the Application Portal in any manner that is illegal under any Applicable Laws, or infringes applicable prevailing ethical standards, or in the reasonable opinion of Wiz harms the reputation of either the Customer or Wiz, including without limitation (a) carrying out cold-calling unlawfully; (b) assisting with political activity or political activism; and (c) infringing rights of any entity or person.
11. Fees and Reimbursements
11.1 All fees and rates of charges for the provision of the Services will be agreed between the Parties. The Customer shall pay Wiz all such fees and charges within thirty (30) days from the specified invoice date (“Invoice Date”) in such manner prescribed by Wiz, unless otherwise agreed by Wiz. If the Customer requests any additional services for other matters or transactions, additional fees and rates of charges may apply and shall be paid by the Customer in accordance with this Clause 11.1.
11.2 Wiz shall be entitled to charge the Customer goods and services, value added and other similar taxes imposed by Applicable Laws on any fees and charges payable by the Customer to Wiz under the Agreement.
11.3 The Customer shall reimburse Wiz for all disbursements, costs and expenses incurred by it in connection with:
(a) the execution or implementation of all Instructions; and
(b) such other matters or transactions as it may determine and agree with the Customer from time to time.
Where deemed appropriate, Wiz may collect in advance a reasonable amount from the Customer to cover such disbursements, costs and expenses which Wiz expects to incur for the provision of the Services. Where such amount is requested from Wiz, the Customer shall pay such amount promptly to avoid interruption of the Services.
11.4 In the event of any dispute over the invoiced amount, the Customer shall make payment in full of such invoice and Wiz will refund the excess funds (if any) to the Customer only upon satisfactory resolution of such dispute between the Parties.
11.5 In the event that payment for an invoice is not received within thirty (30) days of the Invoice Date, Wiz shall be entitled to:
(a) suspend provision of the Services and/or the Application Portal to the Customer until all sums due are paid in full; and
(b) charge a penalty fee for late payment at simple interest of 2% per month on such unpaid amount from the date that the amount is due until the date that it is paid in full.
11.6 If the Customer disagrees with or questions any amount due under an invoice submitted by Wiz, the Customer must communicate such disagreement or objection to Wiz, in writing, within ten (10) days of such Invoice Date. The Customer will be deemed to have waived any claim if no disagreement or objection was made within that period. All fees received are non-refundable. Wiz may charge additional fees for exceptions in processing, setup, and other special services (including optional add-on services requested by the Customer).
11.7 Wiz reserves the right to revise the fees and/or charges for its Services from time to time. The Customer will be notified of any change to any or all existing fees and/or charges at least thirty (30) days before the change goes into effect. If a fee or charge increase is not acceptable to the Customer, the Customer may cancel the Service(s) prior to the time when such fee or charge increase takes effect. The Customer’s continued use of the Service(s) beyond the cancellation window constitutes the Customer’s agreement to the revised fee(s) and/or charge(s).
11.8 Termination & Fees.
(a) These Terms shall come into force upon signature of both Parties and shall continue in full force and effect until terminated by either Party in accordance with the terms set out herein.
(b) In the event the Customer elects to terminate the Services and does not satisfy all notice requirements set out in the Agreement, the Customer is liable to pay SGD5,000 or such other amount as set by Wiz and notified to the Customer (“Early Termination Fee”). The Early Termination Fee shall be due for payment one (1) week before the Customer’s last day of using the Services or the Application Portal, whichever the earlier (“Deemed Termination Date”).
(c) In the event the Customer elects to terminate the Services and satisfies all notice requirements set out in the Agreement, there shall be no Early Termination Fee.
(d) In all cases, the Customer shall pay Wiz’s invoices in full, including for any penalty fees charged, within one (1) month from (i) the Deemed Termination Date or (ii) the specified payment date of a Wiz invoice, whichever the earlier.
(e) Upon termination of the Services, on a case-by-case basis and at Wiz’s sole and absolute discretion, Wiz may reimburse the Customer such portion of fees that the Customer has paid in advance in accordance with Wiz’s prevailing refund policy. Wiz’s refund policy will be available upon request and may be amended from time to time.
11.9 Transition. In connection with the termination of the Services, prior to the last day of each relevant Service period or after the expiry of such period, the Customer will cooperate fully with Wiz to enable and facilitate Wiz to transfer all data, records, files and other information received or processed by Wiz (if any) residing within any equipment in Wiz’s premise, or is otherwise within Wiz’s control, as soon as practicable (but in any case no longer than one (1) month).
12. Authorisation to Disclose Information
12.1 The Customer expressly and irrevocably authorises and permits Wiz and each of its Officers, to disclose or use, without incurring any liability of whatsoever nature but subject to applicable personal data protection laws, any and all of the particulars and information relating to the Customer and the Customer Users (the Customer shall be responsible for obtaining the Customer Users’ consent to such disclosure or use) at any time and from time to time to:
(a) any corporation which is deemed to be a related corporation of Wiz by virtue of section 6 of the Singapore Companies Act 1967 or other Applicable Laws;
(b) any Customer Affiliate which accesses and utilises the Application Portal and the Services;
(c) all courts, governmental agencies and lawful authorities in Singapore and elsewhere where the disclosure is required by Applicable Laws;
(d) any person which Wiz or any Officer in good faith considers to be appropriate for the purpose of providing the Services, including any agents, contractors or third-party service provider which have agreed to perform works or services for Wiz in connection with and which affect or may affect the operation of the Service or Application Portal;
(e) any person in connection with the provision by Wiz of any service to the Customer or any person who owns, operates, provides or maintains any part of any Equipment relevant to the provision of the Application Portal or any Service;
(f) any guarantor or surety of any indebtedness, liability or obligation of the Customer, including any person who provides any security to Wiz for any such indebtedness, liability or obligation;
(g) any depository system with the purposes of storing or transferring such information to Wiz;
(h) Wiz’s professional advisors; or
(i) any other person at any time where the particulars of any Account were inadvertently divulged, revealed or disclosed to or accessed by such person through no wilful default or gross negligence of Wiz or its relevant Officer(s).
For the purposes of this Clause 12.1, “Customer Affiliate” means any person, body corporate, partnership, firm or other entity: (i) in which the Customer directly or indirectly owns more than half the capital or business assets, or which directly or indirectly owns more than half the capital or business assets of the Customer; or (ii) in which the Customer directly or indirectly has the power to exercise fifty percent (50%) or more of the voting rights in such entity, or which directly or indirectly has the power to exercise fifty percent (50%) or more of the voting rights in the Customer; or (iii) in which the Customer directly or indirectly has the legal power to direct or cause the direction or general management or affairs of the entity in question, or which directly or indirectly has the legal power to direct or cause the direction or general management or affairs of the Customer; or (iv) in which the Customer directly or indirectly has the power to appoint more than half the members of the supervisory board, board of directors or bodies legally representing such entity, or which directly or indirectly has the power to appoint more than half the members of the supervisory board, board of directors or bodies legally representing the Customer; or (v) in which the Customer directly or indirectly has the right to manage the business of such entity, or which directly or indirectly has the right to manage the business of the Customer.
12.2 The provisions of Clause 12.1 are in addition to any other authorisations and consents given by the Customer to Wiz with respect to the use and/or disclosure of information relating to the Customer, any Customer User, any Service or Account or any Instruction.
13. Suspension, Variation and Termination of Services and Other Provisions
13.1 The Application Portal may be suspended or terminated by Wiz pursuant to the relevant provisions in this Clause 13 at any time either with respect to any Application, Service or any service or facility provided through the Application Portal or generally, without any prior notice to the Customer.
13.2 The Application Portal may be varied by Wiz at any time either with respect to any Service or any service or facility provided through the Application Portal or generally, by giving notice thereof to the Customer.
13.3 The Customer may terminate the Services by giving Wiz at least thirty (30) days’ prior written notice except where a longer or shorter notice period is otherwise notified by Wiz to the Customer or agreed between Wiz and the Customer in respect of the termination of a particular Service.
13.4 Wiz may terminate these Terms and any or all other parts of the Agreement with immediate effect by notice to the Customer if: (i) the Customer commits a breach of the Agreement; (ii) the Customer breaches any Applicable Laws; (iii) the Customer, under Applicable Laws: (a) becomes or is deemed insolvent; (b) becomes or is deemed unable to pay its debts; (c) files for winding up or has been ordered to be wound up pursuant to a court order; (d) has a receiver, liquidator, provisional liquidator, or administrator appointed over any of its assets or undertakings; (e) enters into an arrangement with any creditors or class of creditors; or (f) enters into judicial management; or (iv) the Customer ceases to carry on its business.
13.5 Termination shall be without prejudice to any rights of either Party which may have accrued up to the date of such termination and the rights to terminate the Agreement are not intended to be exclusive but shall be in addition to every other remedy or right now or hereafter existing.
13.6 The Customer must not and must ensure that the Customer Users and its employees, agents, or representatives must not, do any act or thing after the end of the term of the Agreement which will result in the system or security of the Application Portal or the systems or securities of any other application portal customers to be compromised.
13.7 Where the Customer utilises any Service or any other service or facility provided through the Application Portal, the Customer shall be deemed to have agreed to all the terms and conditions relating to the provision of such Service or such other service or facility which are then imposed by Wiz for providing such Service or such other service or facility.
13.8 The Application Portal’s operation hours are subject to change without prior notice to the Customer. Wiz shall use reasonable endeavours to ensure that the Application Portal is available during the times set out on the Application Portal or elsewhere, provided that nothing herein shall be considered or be deemed as a warranty by Wiz that the Application Portal will be available (whether uninterrupted or available at all) during such specified times.
13.9 Compliance Action. Wiz may, at its sole and absolute discretion, take any action to ensure that Wiz complies with Applicable Laws, including without limitation:
(a) remove any non-compliant Customer User from the Website, Application, Application Portal, Services, or Application Software;
(b) suspend the Services until Wiz determines that Wiz can continue to perform its obligations under the Agreement without violating any Applicable Laws;
(c) terminate the Services with no written notice if reasonably necessary to avoid non-compliance; and
(d) take any other action advised by legal counsel (including, without limitation, modifying the Services) to avoid non-compliance with Applicable Laws.
If any action is taken by Wiz under this Clause, all charges, fees, expenses that would have been payable to Wiz, if not for the suspension or non-performance of the Services, shall continue to be payable to Wiz, notwithstanding Wiz’s suspension or non-performance of the Services.
14.1 In addition and without prejudice to any other right or remedy which Wiz may have (at law or otherwise), so long as Wiz acts in good faith in the provision of the Services, or in acting upon or carrying out any Instruction, Wiz shall not be liable to the Customer in any respect for any Loss suffered by the Customer caused by or arising in any way from Wiz’s execution or implementation of that Instruction, the provision of Services, or any matter arising therefrom.
14.2 Without prejudice to any provision in the Agreement, Wiz shall not be liable to the Customer for any Loss caused by or arising from any one or more of the following events or matters, howsoever caused or occurring:
(a) any incompatibility between the Customer’s Equipment and the Application Portal, including but not limited to any adverse outcome, damage, loss, disruption, violation, irregularity or failure arising from the use of or reliance on computer hardware, software, mobile devices, electronic devices, online networks and/or Internet browsers;
(b) any breakdown, disruption or failure of any software (including any Application Software) or any Equipment (whether or not owned, operated or maintained by Wiz, the Customer, any Customer User, or any other person and whether or not used in the provision or operation of any Account or Service), including but not limited to:
(i) the inability or failure of any such software or Equipment to accept, recognise, or properly and accurately store, process or transmit dates or data, or the processing, storage or transmission of any inaccurate date or data by virtue of such inability or failure of any such software or Equipment;
(ii) the failure of any such software, Equipment to accept, recognise or process any Password or User ID or Instruction; and
(iii) the transmission of any virus to any such software or Equipment;
(c) any unauthorised or negligent use or access to information relating to the Account(s), Instructions and any other instructions issued by the Customer to Wiz as a result of the Customer’s use of the Application Portal (except where such use or access is obtained as a result of Wiz’s gross negligence or wilful default);
(d) any loss or theft of any Customer User’s User ID(s) and/or Password(s);
(e) any failure or refusal by Wiz to effect any instructions given by the Customer or any Instructions, due to any order of court, any authority’s order, notice, directive or any statute, regulation or by-law;
(f) any error(s) in transmission of the Customer’s Instructions or any other instructions, data or information that ought to be transmitted through the Application Portal;
(g) any inaccurate, garbled or incomplete Instructions or any other instructions, data or information that ought to be transmitted through the Application Portal;
(h) any failure of the Customer to follow the latest instructions, procedures, directions or recommendation for using the Application Portal;
(i) any delay in payment, delivery or non-delivery of any document or material whatsoever under the Agreement, including any delay by third parties;
(j) any delay or refusal by the Customer to execute Instructions or other instructions that ought to be transmitted through the Application Portal;
(k) any Loss resulting from the Customer’s reliance on any news, reports or any other information that may be provided as part of, or by means of, the Services or the Application Portal;
(l) any Loss associated with systems failures, processing errors, software defects, operating mistakes, capacity inadequacies, network vulnerabilities, control weaknesses, security shortcomings, malicious attacks, hacking incidents, fraudulent actions, and inadequate recovery capabilities which may arise despite Wiz’s best efforts;
(m) any disclosure of any information to third parties arising as a result of the Customer’s or any Customer User’s negligence or failure to keep the User ID(s), and Password(s) confidential;
(n) any cessation, interruption or delay in transmission or any wrongful interception of any Instruction through any Equipment (whether or not owned, operated or maintained by Wiz or by any other person and whether or not used in the provision or operation of any Account, Service or the Application Portal);
(o) any corruption or loss of any data (whether stored in any Equipment, whether belonging to or operated by Wiz or the Customer) or Instruction in the course of transmission thereof through any Equipment used or operated by Wiz or any other person whether or not in connection with any Account or the provision or operation of any Service or the Application Portal, including any error(s) generated in the transmission of any data or Instruction;
(p) any cessation or interruption in the availability or operation of the Application Portal;
(q) any failure or refusal of Wiz or any other person to accept or honour any Instruction for reasons provided for in these Terms;
(r) any inaccuracy or incompleteness in any information obtained from the use of any facility or service comprising the Services; and
(s) any suspension, modification or termination of the Services, Application or Account(s) as provided for in these Terms; and
(t) any breach of Wiz’s obligations or duties to the Customer caused by or arising from any one or more of the events or matters set out in any one or more of the foregoing sub-paragraphs of this Clause 14.2.
14.3 Without prejudice to the generality of the foregoing and notwithstanding any provision to the contrary in the Agreement, Wiz shall not be liable to the Customer for any indirect, special or consequential Loss, or for punitive damages, whether arising from any breach of Wiz’s obligations to the Customer or otherwise.
14.4 No representation or warranty is made or given by Wiz to the Customer or any person and no obligation or liability is assumed by Wiz to the Customer or any person with regard to the availability, uptime, or continued availability or operation of any Service or any other service or facility through the Application Portal or any Equipment (whether or not provided, operated or maintained by Wiz or otherwise) notwithstanding any provision to the contrary in the Agreement. Wiz does not make, and hereby disclaims (i) all express warranties with regard to the Services, including but not limited to any warranty that the Services will be uninterrupted, error-free, or completely secure; and (ii) any and all implied warranties with regard to the Services, including implied warranties of merchantability or satisfactory quality, fitness for a particular purpose and non-infringement of third party’s intellectual property rights.
14.5 Notwithstanding anything to the contrary in the Agreement, in no event will Wiz be liable to Customer for (i) lost profits, (ii) loss of business, (iii) loss of revenues), (iv), loss of data or interruption or corruption of data (v) any consequential or indirect damages; or (vi) any incidental, special, reliance, exemplary or punitive damages (if applicable), even if advised of the possibility of such damages.
14.6 Notwithstanding anything to the contrary in the Agreement, Wiz’s total liability to Customer in the aggregate for the entire term of Services (and regardless of whether the claims are brought during or after such term), with respect to all claims arising from or related to the subject matter of the Agreement (including attorney’s fees) will not exceed the amount due and actually paid by Customer to Wiz in respect of the Services for the period immediately preceding the month which the first claim arose.
14.7 The limitations set forth in clauses 14.4 to 14.7 will apply to all claims and causes of action, regardless of whether in contract, tort, strict liability or other theory.
14.8 WITHOUT PREJUDICE TO ANYTHING HEREIN, THE CUSTOMER SHALL NOT MAKE ANY CLAIM OR COMMENCE ANY LEGAL PROCEEDINGS AGAINST WIZ IN RESPECT OF ANY LOSS INCURRED OR SUFFERED BY THE PROVISION OR UTILISATION OF THE APPLICATION PORTAL OR ANY TRANSACTION EFFECTED THROUGH THE APPLICATION PORTAL FOR WHICH WIZ IS LIABLE TO THE CUSTOMER, MORE THAN ONE (1) YEAR AFTER THE LATER OF (a) THE DATE WHEN THE EVENT CAUSING SUCH LOSS OCCURRED; AND (b) THE DATE OF SUCH TRANSACTION. ANY LIABILITY OF WIZ TO THE CUSTOMER IN RESPECT OF ANY SUCH LOSS SHALL BE LIMITED TO THE SUM EQUIVALENT TO THREE TIMES THE PREVAILING MONTHLY SUBSCRIPTION FEES FOR THE RELEVANT SERVICE.
15.1 Notwithstanding any termination of the Agreement, in addition and without prejudice to any other right or remedy of Wiz (whether under any other provisions of the Agreement or otherwise), the Customer shall indemnify and hold Wiz harmless from and against any and all Loss suffered or incurred by Wiz as a result of any of the following:
(a) any act or default of the Customer User in the operation and use of any system or software (including any Application Software) installed or used by the Customer;
(b) Wiz relying or acting on or carrying out any Instruction in any manner permitted under the Agreement;
(c) any change in Applicable Laws;
(d) any act, omission or thing done or caused to be done by Wiz in connection with or referable to the Agreement or any Account or Service through no wilful default or gross negligence of Wiz, including, but not limited to, the disclosure by any Officer to any person of any information relating to any Service or Account or Instruction, whether by inadvertence or otherwise;
(e) any virus, default, defect, deficiency, malfunction, breakdown, disruption or failure of any software (including any Application Software) or any Equipment owned, operated and/or maintained by or on behalf of Wiz, due to or caused by the Customer or any of the Customer Users accessing and/or utilising the Application Portal; or
(f) any failure by the Customer to comply with Applicable Laws (including, without limitation, misusing the Services to make nuisance calls or to conduct illegal telemarketing).
15.2 In addition and without prejudice to any other right or remedy of Wiz (whether under any other provisions of the Agreement or otherwise), in the event that the Customer breaches any provision of the Agreement, the Customer shall, notwithstanding any termination of the Agreement, defend, indemnify and hold harmless Wiz: (a) against any third party claims brought against Wiz; and (b) from any and all Losses (including arising from third party action or claim) which Wiz may incur in respect of any breach of the Agreement or any breach of Applicable Laws or that may result from any claims arising out of or relating to the Customer’s use of any services, applications, software or products that is not authorized under the Agreement. The Customer shall reimburse Wiz for all expenses (including attorneys’ fees) as incurred by Wiz for or in connection with defending any such action or claim. This clause shall not be construed to limit, modify or exclude any other claims or remedies available to either Party under the Agreement or by law.
15.3 Notwithstanding anything to the contrary, if the Customer breaches any provisions of the Agreement or Applicable Law that results in:
(a) a third party suing Wiz, the Customer shall defend Wiz (and Wiz’s directors, shareholders and employees) against any legal action or claim made by the third party, including, but not limited to, any allegation that the use of the Application or Services is in breach of Applicable Laws, and the Customer shall bear all costs (including legal costs to lawyers) suffered by Wiz (if any);
(b) an enforcement agency, a court, a governmental agency or any other lawful authorities taking any action, whether formal, informal, official or unofficial, against Wiz (and Wiz’s directors, shareholders and employees), the Customer shall provide Wiz (and Wiz’s directors, shareholders and employees) with full and complete cooperation including participating in interviews, meetings, hearings and other appointments and providing Wiz or the relevant authority with supporting documents as evidence.
The Customer agrees to bear full responsibility for all Losses incurred by Wiz in the processes described in sub-clause (a) and (b) above (including, without limitation, attorney’s fees, court application fees, disruptions to Wiz’s business, fines and other penalties levied against Wiz).
16. Force Majeure
In the event that Wiz is unable to observe or perform the terms of the Agreement, whether in whole or in part, by reason of causes beyond its reasonable control, including (but not limited to) the malfunction or failure of Equipment or transmission link, fire, flood, explosion, acts of elements, acts of God, acts of terrorism, war (declared or undeclared), accidents, epidemics, strikes, lockouts, power blackouts or failure, labour disputes, acts, demands or requirements of the Singapore Government or any other government or authority, or by other causes which it cannot reasonably be expected to avoid, the performance of Wiz’s obligations as they are affected by such causes shall be excused for the duration of the abovementioned disabling events. Wiz shall not be liable for any delay, loss, damage or inconvenience whatsoever and howsoever caused by or arising from or in connection with any of the abovementioned disabling events.
17.8 Wiz may amend, vary or supplement any terms or conditions of the Agreement by giving notice thereof to the Customer by any means that Wiz deems fit, and any such amendment, variation or supplement shall take effect as between the Customer and Wiz as from the date specified in such notice or in the absence thereof as from the date of such notice.
17.9 If any of the terms and conditions of the Agreement is or becomes illegal, invalid or unenforceable in any respect, the same shall not affect the legality, validity or enforceability of any other terms or conditions.
17.10 No failure to exercise or enforce and no delay in exercising or enforcing on the part of Wiz of its rights under any of the terms and conditions of the Agreement or relating to any Account or Service shall operate as a waiver thereof nor shall it in any way prejudice or affect the right of Wiz afterwards to act strictly in accordance with the powers conferred on Wiz under such terms and conditions.
17.11 The Agreement (or any part of it) may, at Wiz’s discretion, be translated into a language other than the English language. The Customer agrees that such translation shall only be for its convenience and the English text shall prevail in the event of any ambiguity, discrepancy or omission as between the English text and any translated text.
17.12 Without prejudice to the generality of Clause 17.1 above, any and all notices to be given under the Agreement may be communicated by post, facsimile transmission, electronic mail or through Application Portal or by online messages posted on the Website. If by post the notice will be taken to have been received forty-eight (48) hours after posting by Wiz to the postal address most recently notified by the Customer and if by facsimile transmission, electronic mail, through the Application Portal or by online messages posted on the Website, immediately on despatch.
17.13 Where the Customer is a partnership, the term of the Agreement will not be discontinued unless revoked by notice given by any one partner, notwithstanding any change of name of partnership, admission of new partner(s) or any partner ceasing to be a member of the partnership by reason of death or otherwise.
17.14 Where Wiz introduces new services as part of the Services, Wiz may provide them on supplementary terms which will be notified to the Customer in accordance with the Agreement.
17.15 Subject to Applicable Laws of evidence, each Party agrees not to object to admission of the records (including computer records) of the other as evidence in legal proceedings.
17.16 The Customer agrees not to dispute the validity, accuracy or authenticity of any evidence of Instructions and communications transmitted electronically between the Parties, including such evidence in the form of Wiz’s computer records of transaction logs, magnetic tapes, cartridges, computer printouts, copies of any communication, or any other form of information storage.
17.17 The Customer also agrees to refer to and to treat all such records or logs, tapes, cartridges, computer printouts, copies or other form of information storage as conclusive evidence of the Customer’s Instructions and other communications received or sent by Wiz. The Customer further agrees that all such records shall be binding upon the Customer and that the Customer will not be entitled to dispute the validity or authenticity of the same.
17.18 All Instructions and communications that meet the operating standards and requirements of Wiz shall be deemed to be as good as, and given the same effect as, written and/or signed documentary communications by Wiz.
17.19 Nothing in the Agreement shall affect any right of set-off or combination which Wiz has in relation to any Accounts which the Customer accesses through the Application Portal.
18. Contracts (Rights of Third Parties)
A person who or which is not party to the Agreement shall not have any right to enforce any provision of the Agreement.
19. Governing Law and Jurisdiction
19.8 The Agreement shall be governed by and construed in accordance with the laws of the Republic of Singapore.
19.9 The Customer submits to the non-exclusive jurisdiction of the courts of the Republic of Singapore.
20. Personal Data Protection
20.8 The Parties agree to comply with all applicable data protection laws in all relevant jurisdictions.
20.9 The Customer agrees to comply with the terms set out in the Schedule and the prevailing privacy policies, as may be amended from time to time. The Customer represents, undertakes and warrants that it shall comply with its obligations under the privacy policies.
20.10 Without prejudice to the foregoing sub-clauses, the Customer shall not do anything and not omit to do anything that will cause Wiz and/or their related corporations to be in breach of any applicable data protection law.
SCHEDULE: DATA PROTECTION TERMS
To the extent that any of the terms or conditions contained in this Schedule may contradict or conflict with any of the terms or conditions of these Terms, it is expressly understood and agreed that the terms of this Schedule shall take precedence and supersede these Terms. Any terms not defined in this Schedule shall have the meaning ascribed to it under these Terms. For the purposes of this Schedule, the term “Vendor” shall have the same meaning as “Wiz” in the Agreement.
The Parties agree as follows:
1. Definitions and Interpretation
In this Schedule unless the subject or context otherwise requires, the following expressions have the following meanings:
“Applicable Data Protection Laws” means: (a) the PDPA; (b) any law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding instrument of the Customer’s place of incorporation or place of business which implements the Regulation (EU) 2017/003, the e-Privacy Directive and the GDPR (in each case as amended, consolidated, re-enacted or replaced from time to time); (c) all other personal data protection legislation applicable to Vendor and/or Customer; (in each case as amended, consolidated, re-enacted or replaced from time to time);
“End User” means the data subjects for which Personal Data are forwarded by Customer to Vendor;
“End User Personal Data” means any Personal Data belonging to an End User that Customer transmits to Vendor;
“e-Privacy Directive” means Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector;
“GDPR” means Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data;
“PDPA” means the Singapore Personal Data Protection Act 2012;
“Personal Data” means data, whether true or not, about an individual who can be identified either from that data or from that data when combined with other information to which an entity has access or is likely to have access;
“DNC Registry” means the Do Not Call Registry established by the PDPA.
In the course of Vendor’s discharge of obligations under the Agreement, Customer may from time to time transmit End User Personal Data to Vendor.
3. Customer’s Obligations
3.1 Customer shall at all times comply with Applicable Data Protection Laws at Customer’s cost.
3.2 Collection and Disclosure of Personal Data. Where Customer intends to disclose End User Personal Data (including without limitation by way of uploading a call list) to Vendor, Customer:
(a) shall cooperate with Vendor to provide all information and supporting documents requested by Vendor, and to Vendor’s satisfaction, for each set of End User Personal Data that Customer intends to transmit to Vendor;
(b) shall not disclose or transmit any End User Personal Data to Vendor before receiving Vendor’s express prior written approval;
(c) shall not disclose End User Personal Data unless the End User gives, or is deemed to have given, his consent under the Applicable Data Protection Laws to the collection, use or disclosure by Customer to third parties;
(d) shall be solely responsible for the accuracy, quality, and legality of (i) the End User Personal Data provided to Vendor by or on behalf of Customer, (ii) the means by which Customer acquired any such Personal Data;
(e) shall not provide or make available to Vendor any Personal Data in violation of the Agreement or otherwise inappropriate for the nature of the Services, and shall indemnify Vendor from all claims and Losses in connection therewith;
(f) warrants: (i) the accuracy, quality, and legality of all End User Personal Data provided to Vendor; (ii) the legality of the means by which Customer acquired End User Personal Data and (iii) that Customer was duly authorised by End User to disclose End User Personal Data to Vendor.
3.3 Use and Processing of Personal Data. Where Vendor processes End User Personal Data on Customer’s behalf, Customer shall at all times:
(a) ensure that Customer’s instructions to Vendor comply with all Applicable Data Protection Laws and will not cause Vendor to be in breach of any Applicable Data Protection Laws;
(b) be solely responsible for the accuracy, quality, and legality of the instructions Customer provides to Vendor;
(c) immediately inform the Vendor if, in its opinion, an instruction of the Customer infringes any Applicable Data Protection Laws.
3.4 Managing End User Requests: access, correction, deletion etc. Customer is solely responsible to manage any request from an End User to access, correct, update or delete their Personal Data. Where Customer receives a request from End User to access, correct, update or delete their Personal Data, Customer shall:
(a) promptly respond to an End User’s requests;
(b) directly resolve all requests to access, correct, update or delete End User Personal Data;
(c) if a complaint or request relating to any End User Personal Data has been made, promptly notify Vendor.
3.5 Compliance with Part 9 of the PDPA (DNC Registry). Where a specified message (as defined by the PDPA) is sent to an End User, Customer is solely responsible for sending the message, causing the message to be sent, authorising the sending of the message, making a voice call containing the message, causing a voice call containing the message to be made, or authorising the making of a voice call containing the message, and Customer shall at all times:
(a) conduct regular checks to ensure that all End Users are not registered on the DNC Registry unless Customer has obtained clear and unambiguous consent from all End Users;
(b) immediately notify Vendor when an End User becomes registered on the DNC Registry and (if Customer has not obtained clear and unambiguous consent from such End User) take all necessary steps to complete the removal of all such End User’s Personal Data;
(c) immediately notify Vendor if Customer failed to obtain clear and unambiguous consent from any End User permitting the End User Personal Data to be collected by Customer, forwarded to Vendor and/or Vendor’s external service providers, and handled by Vendor in such manner as may be reasonably necessary to discharge Vendor’s obligations under the Agreement.
3.6 Compliance with Part 9A of the PDPA (Dictionary Attacks, Address Harvesting Software). Customer shall not cause any message to be sent to a telephone number that is generated or obtained through the use of a dictionary attack (i.e. method by which the telephone number of a recipient is obtained using an automated means that generates possible telephone numbers by combining numbers into numerous permutations) or address-harvesting software (i.e. software that is specifically designed or marketed for use for (i) searching the Internet for telephone numbers; and (ii) collecting, compiling, capturing or otherwise harvesting those telephone numbers). At all times, Customer shall not:
(a) provide or make available to Vendor any Personal Data that was (or is suspected to have been) obtained through illegal means;
(b) provide or make available to Vendor any Personal Data that was derived through dictionary attack method or obtained by way of address-harvesting software.
3.7 Customer warrants and represents that:
(a) Customer shall at all times be compliant with all Applicable Data Protection Laws;
(b) Customer has obtained, or will take steps to obtain, clear and unambiguous consent from all End Users permitting the End User Personal Data to be collected by Customer, forwarded to Vendor and/or Vendor’s external service providers, and handled by Vendor in such manner as may be reasonably necessary to discharge Vendor’s obligations under the Agreement;
(c) all End Users (who have not provided clear and unambiguous consent to Customer) are not registered on the DNC Registry and will re-verify the same in such frequency as required by Applicable Data Protection Laws;
(d) End User Personal Data was not obtained through illegal means; and
(e) End User Personal Data was not derived through dictionary attack method or obtained by way of address-harvesting.
3.8 Customer agrees to pay all fines and penalties that Vendor is liable for, to fully and sincerely cooperate and assist Vendor, to procure appearances in court, and to make attestations by way of affidavit or otherwise, at Customer’s own expense, in the event Vendor is prosecuted or investigated under any Applicable Data Protection Laws.
4. Compliance action
4.1 Vendor may, at its sole and absolute discretion, take any action to ensure that Vendor complies with all Applicable Data Protection Laws, including without limitation to:
(a) removing any non-compliant End User Personal Data from the Vendor’s environment (including without limitation the Vendor’s data centres, hardware, cloud system, etc.);
(b) suspending the Services until Vendor determines that Vendor can continue to perform its obligations under the Agreement without violating any Applicable Data Protection Laws;
(c) requesting Customer to remove the entire (or any portion) of the End User Personal Data and to re-transmit a new list of End User Personal Data that is compliant with all Applicable Data Protection Laws;
(d) terminating the Services with thirty (30) days’ written notice, or such shorter notice, if reasonably necessary to avoid non-compliance; and
(e) taking any other action advised by legal counsel (including without limitation to modifying the Services) to avoid non-compliance with Applicable Data Protection Laws.
4.2 If any action is taken by Vendor under Clause 4.1 above, all charges, fees, expenses that would have been payable to Vendor, if not for the suspension or non-performance of Services, shall continue to be payable to Vendor, notwithstanding Vendor’s suspension or non-performance of Services.
5.1 No or limited collection. In general, Vendor does not collect any End User Personal Data except to the extent that: (a) End User directly and voluntarily provides Personal Data to Vendor; or (b) Customer disclosed or otherwise transmitted End User Personal Data to Vendor. Where Customer discloses or transmits End User Personal Data to Vendor, Clause 3.2 shall apply.
5.2 Limited use and processing. In general, Vendor does not use or process any End User Personal Data except to the extent that: (a) End User has directly instructed or authorised Vendor to process their Personal Data; (b) Customer has instructed or authorised Vendor to process End User Personal Data on Customer’s behalf; (c) it is reasonably necessary that Vendor has to process End User Personal Data in order to perform Vendor’s obligations arising from the Agreement; (d) it is reasonably necessary that Vendor has to process any End User Personal Data in order to meet its obligations arising by operation of law. Where Vendor uses or processes End User Personal Data on Customer’s behalf, Clause 3.3 shall apply.
5.3 Managing End User Requests: access, correction, deletion etc. In general, Vendor will not (of its own accord) correct, update or delete any End User Personal Data. However, at Customer’s instruction, Vendor may: either (i) extend the necessary technological assistance to Customer or (ii) manually correct, update or delete any End User Personal Data on Customer’s behalf, if Customer is unable to access, correct, update or delete any End User Personal Data due to a technical fault. Further, if Vendor deems that a correction or deletion of any End User Personal Data is reasonably necessary in order to comply with Applicable Data Protection Laws, Vendor will take any action it deems fit. Where End Users request to access, correct, update or delete their Personal Data, Clause 3.4 shall apply.
5.4 DNC Registry, Dictionary Attacks, Address Harvesting Software, etc. Vendor merely provides a service that enables a specified message to be sent. Vendor will not generally (of its own accord) send the message, cause the message to be sent, authorise the sending of the message, make a voice call containing the message, cause a voice call containing the message to be made, or authorise the making of a voice call containing the message. At all times, the following shall apply:
(a) any messages sent to End Users (through the use of Vendor’s Services) are sent on behalf of Customer and at Customer’s instructions;
(b) while Vendor may make recommendations to Customer: (i) Vendor generally has no input on the substantive content of the messages; (ii) Vendor does not decide when messages will be sent to End Users; and (iii) Vendor does not authorise the sending of the message;
(c) Vendor does not perform any marketing through the messages for Vendor’s benefit and simply transmits all messages on behalf of Customer.
5. Change to Applicable Data Protection Laws
The Parties agree to negotiate in good faith modifications to this Schedule if amendments are required for the Vendor to continue to perform its obligations under the Agreement in compliance with Applicable Data Protection Laws or to address the legal interpretation of any Applicable Data Protection Laws, including (i) to comply with PDPA and any amendments to it; (ii) to comply with GDPR and any amendments to it; or (iii) if changes to the membership status of a country in the European Union or the European Economic Area require such modification.
6. Disclaimer and Limitation of Liability
7.1 Without prejudice to any other rights or remedies that the Vendor may have, Customer hereby acknowledges and agrees that Vendor may be irreparably harmed by any breach of the terms of the Agreement and that damages alone may not be an adequate remedy. Accordingly, Vendor shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of this Schedule.
7.2 Customer agrees that it will (in addition to, and without affecting, any other rights or remedies that Vendor may have whether under statute, common law or otherwise) indemnify and hold harmless Vendor, on demand from and against all claims, liabilities, costs, expenses, loss or damage incurred by Vendor (including consequential losses, loss of profit and loss of reputation and all interest, penalties and legal and other professional costs and expenses) arising directly or indirectly from a breach of this Schedule by Customer or enforcement of any rights under it by Vendor.