GMO Z.com Pte. Ltd. is a limited liability company incorporated under the laws of the Republic of Singapore (hereinafter referred to as the “Z.com”) providing online services including domain name registration, hosting services, SSL certificates service and application creation service.
PLEASE READ THIS MASTER SERVICE AGREEMENT CAREFULLY.
This Master Service Agreement (hereinafter referred to as the "Agreement" or "MSA") is entered into by and between Z.com and you, and sets out the terms and conditions on which you may use products and services (hereinafter referred to as the "Services") from Z.com.
Upon clicking a box indicating "Acceptance", submitting a relevant Order for any of the Services, and/or using any of the Services, you hereby enter into this Agreement and indicate your acceptance to be bound by the Terms of this Agreement. Upon your acceptance, you confirm that you have read this Agreement, and all terms and conditions of this Agreement shall govern your purchase and use of the Services provided by Z.com, and all other matters in connection therewith.
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1.1.
This Agreement shall be effective from the date of your entry into this Agreement in accordance with Clause 1.3 above. It shall be binding upon the Parties hereto and their respective successors, legal representatives, permitted assigns and sub-contractors.
For any further information on our services, you may contact us via:
E-mail: info.web.sg6E7DddHbFTz2xx4A@z.com
Definitions
"We", "us" or "our" means Z.com;
"You", "your", "user" or "customer" means any individual or entity who accepts this Agreement, creates an account in accordance with Clause 6 of this Agreement, has access to an account, and/or uses the Services. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits;
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1.2.
"Party" means Z.com or the Customer, which shall collectively be known as the "Parties";
"Business day" means every official working day other than Saturday, Sunday or any official holiday in Singapore;
"Confidential Information" means any and all confidential or proprietary information or materials or data which have been or are hereafter disclosed or made available by one party (the "Disclosing Party") to the other (the "Receiving Party") in connection with this Agreement and/or Order(s), whether provided in any form or media, including without limitation: all trade secrets; existing or contemplated products, services, designs, technology, processes, technical data, engineering techniques, methodologies and concepts and any related information;
information relating to business plans, sales or marketing methods and customer lists or requirements; and customer-specific terms or pricing set forth in this Agreement and/or any Order;
"Content" means all content, data, video, templates or information in any form that is uploaded through the use of Z.com Services by the customer, including any such Content that is incorporated into the Z.com Services from third parties at the direction of the customer;
"Deliverables" means any tangible and intangible materials including a document, software, development work or design that are prepared and provided by Z.com or its subcontractors in the course of performing the Services;
"Z.com Property" means all Intellectual Property used or developed by Z.com to provide the Services, including without limitation the text, software, source code, APIs, photos, sounds, music, videos and interactive features and the trademarks, service marks and logos contained therein;
"Intellectual Property" means any and all inventions, patent applications, patents, design, copyrights, trademarks, service marks, trade names, domain name, mask work, know-how and other trade secret, and all other intellectual property, derivatives thereof, and forms of protection of a similar nature anywhere in the world (whether registered or unregistered and including the right to register such intellectual property) that are, in each case, protected under the laws of any governmental authority having jurisdiction;
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1.3.
"Personal Data" means data, whether true or not, about an individual (being a natural person) who can be identified:
(a) from that data; or
(b) from that data and other information to which the Company has or is likely to have access;
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1.4.
"Customer Data" means, in relation to a Customer, all Personal Data of the Customer obtained by the Company in anyway, including but not limited to such Personal Data of the Customer obtained as a result of or in connection with the Customer's setting up of an account in accordance with Clause 6 of this Agreement and/or the Customer's use of any of the Services provided by the Company;
"Order" or "Service Order" means the Z.com Domain Name Registration Service Order, Z.com Hosting Service Order and/or Z.com SSL Service Order which are integral parts of this Agreement.
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1.5.
"Z.com Charge Terms" means the Z.com Charge Terms and Conditions that govern the Z.com Charge stored value service provided by the Company for the payment of fees for goods and services provided by the Company;
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1.6.
"Policy" means the Z.com Data Protection Policy set out at the link below, as may be amended and/or updated from time to time; https://web.z.com/sg/privacy/
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1.7.
Any reference to 'include' or 'including' shall be deemed to be followed by 'without limitation' or 'but not limited to', whether or not they are followed by such phrases or words of like import;
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1.8.
Unless the context otherwise requires, words (including words defined in this Agreement) denoting the singular number only shall include the plural and vice versa, words denoting natural persons shall include bodies corporate (except for references to Personal Data), and reference to a particular gender shall include all genders.
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1.9.
The headings to the clauses and paragraphs are for convenience only and shall not affect the interpretation or construction of this Agreement;
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1.10.
Unless the context otherwise requires, references herein to "Clause" or "Clauses" are references to the clause or clauses of this Agreement;
Warranties and Representations
If you are an individual and are entering into this Agreement on behalf of an entity, you represent and warrant that you have the authority to bind such entity to all of the terms and conditions of this Agreement.
Z.com represents and warrants that (i) it either owns fully and outright or otherwise possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to perform its obligations hereunder, exercise its rights hereunder and to grant the licenses granted by it under this Agreement and (ii) the Z.com Services, as used by the customer in accordance with this Agreement, does not, and shall not, infringe, violate or misappropriate any third party's rights.
The customer represents and warrants that (i) it either owns fully and outright or otherwise possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to perform its obligations hereunder, exercise its rights hereunder and to grant the licenses granted by it under this Agreement and (ii) the Content used in connection with the Z.com Services, as enabled by the customer, directly or indirectly, does not, and shall not, infringe, violate or misappropriate any third party's rights.
Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
Provision of Services and Orders
This Agreement shall apply each time a Customer engages Z.com to provide Services and shall govern the provision of any and all Z.com Services to the Customer. Services do not include any Third Party Products or Services that may be purchased by the Customer from a third party or procured for the Customer by Z.com, including without limitation extended warranties on Third Party Products offered by the manufacturer thereof.
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1.11.
You may enter into Order(s) with us which describe each Service you may use. You can access and enter into the:
The Service Order and its Terms shall be an integral part of this Agreement. In the event of any inconsistency between this Agreement and any Order, the terms of the Order shall take precedence over this Agreement, to the extent of the inconsistency.
We may provide you with the Services in accordance with this Agreement and the terms of an Order or Orders you have made. We have no obligation to provide any Services requested by you until the due execution of an Order with respect to those Services.
Subject to the terms and conditions of this Agreement, Orders and our other policies and procedures, we shall use commercially reasonable efforts to attempt to provide the Services.
Maintenance Services
During the Term of any of the Services provided by Z.com, Z.com will perform the repair or maintenance services at its own costs unless otherwise agreed between the parties.
If a damage to the Services is as a result of misuse or abuse of the system or component (such as, but not limited to, use of incompatible devices or accessories, or failure to follow operating instructions) by the customer, the costs of the repair and/or maintenance services shall be borne by the customer.
Account
In order to use the Services, the customer needs to create an Account at the Z.com website:
https://web.z.com/sg/sign-in/ by its username(s) and password(s) (hereinafter referred to as "Credentials". An "Account" is a single point of entry through which the customer can access and use the Z.com Services. The customer is solely responsible for all activities carried out in relation to the customer's Account(s), whether authorized by the customer or not, and Z.com shall have the right, without further inquiry, to rely on the provision of the customer's Credentials as sufficient to authenticate the customer's use of the Service(s) and the operation of his/her Account(s). The customer must notify Z.com immediately of any breach of security or unauthorized access and/or use of its Account. Z.com will not be liable for any losses, damages or liabilities that the customer may incur due to any unauthorized use of his/her Account.
Accounts can be created by persons 18 years of age or older. If you are less than 18 years of age and wish to use any of the Services, your parent(s) or guardian(s) must complete the registration process, open an Account in their name(s) and accept full responsibility for all obligations under this Agreement. The registered user of an Account may use the Account or may choose instead to permit a minor child, of which the registered user is a parent or guardian, to use the Account. You are liable for all activities conducted through your Account, and parents or guardians are liable for all activities of their minor child conducted through the Account.
You agree to provide true, accurate, current and complete information about yourself when you create your Account (hereinafter referred to as the "Account Information") and maintain and promptly update the Account Information to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Z.com has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Z.com has the right to suspend or terminate your Account and refuse any and all current or future use of the Service.
Customer's Obligations
The customer acknowledges and agrees that its use of the Services, including any content it has submitted, will comply with this Agreement, the Orders, the Z.com Charge Terms, the Policy and all other policies of the Company and all applicable laws and regulations.
The customer covenants that it shall not use the Services in a manner (as determined by Z.com in its sole and absolute discretion) that:
- is illegal, or promotes or encourages illegal activity;
- promotes, encourages or engages in child pornography or the exploitation of children;
- promotes, encourages or engages in terrorism, violence against people, animals, or property;
- promotes, encourages or engages in any spam or other unsolicited bulk email, or computer or network hacking or cracking;
- infringes on the intellectual property rights of Z.com, another User or any other person or entity;
- violates the rights of Z.com, another User or any other person or entity, or breaches any duty of confidentiality that you owe to Z.com, another User or any other person or entity;
- interferes with the operation of the Services;
- contains or installs any viruses, worms, bugs, Trojan horses or other code, files or programs designed to, or capable of, disrupting, damaging or limiting the functionality of any software or hardware;
- contains false or deceptive language, or unsubstantiated or comparative claims, regarding Z.com or the Services; or
- send commercial advertising and/or bulk emails or faxes without the recipient's prior consent to receive messages from you.
The customer shall not copy or distribute any part of the Services or Z.com Property without Z.com's expresses prior written consent, which may be withdrawn at any time at the sole discretion of Z.com in writing or otherwise. Written consent of the parties may be given by email or fax or attachment to an email, or by other means.
The customer shall not re-sell or provide the Services, including any of Z.com's related technologies, without Z.com's express prior written consent, which may be withdrawn at any time at the sole discretion of Z.com in writing or otherwise.
The customer shall not modify or alter any part of the Services or any of its related technologies.
The customer shall not access Z.com Property or the customer's content, whether posted or published or submitted through the customer's Account or otherwise ("User Content"), through any technology or means other than through the Services, or as Z.com may designate.
The customer agrees to back-up all of its User Content so that the customer can access and use it when needed. Z.com does not warrant that it backs-up any Account or User Content, and the customer agrees to assume the risk of the loss of any and all of its User Content.
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1.13.
The customer agrees that Z.com may from time-to-time contact him or her about his or her Account via telephone, email or otherwise. for the purposes of any and all such contact(s), the customer hereby consents to allow Z.com, in its sole discretion, to record the entirety of such contact, regardless of whether the customer has been informed, in each particular instance of contact, of the Company's intention to record such contact.
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1.14.
The recording of any such contact as referred to in Clause 7.8 above shall be used for any of the following purposes:
- (a)to ascertain any discrepancies, errors or other issues pertaining to or arising out of the use or operation of the Account and/or any transactions carried out thereunder;
- (b)monitoring such contact for evaluative purposes, including but not limited to quality assurance, employee training and performance evaluation; or
- (c)to take into account and follow up on any feedback or issues raised by the Customer in connection with the provision of the Services by the Company, the use of the Account and/or any transactions carried out on the Account
Subject to the provisions of the PDPA, the recording of such contact will be used for:
- (a)verifying your identity;
- (b)providing any of the Services to you;
- (c)carrying out any of Z.com's obligations under the MSA, Pre-Pay Terms and/or relevant Orders;
- (d)monitoring our interactions between you for the purposes of customer service quality controls, employee training and performance evaluation;
- (e)responding to your enquiries, feedback or comments;
- (f)conducting any market research and/or analysis;
- (g)carrying out any surveys;
- (h)reviewing our internal processes and policies with a view to improving upon such processes and policies;
- (i)opening and maintaining an Account or Z.com Charge account;
- (j)authenticating the operation of an Account or Z.com Charge account, and any transactions carried out thereon as emanating from a registered or authorised user of Z.com's Services;
- (k)investigating any suspected instances of fraud, forgery, unauthorised access or use pertaining to or arising out of the provision of Services by Z.com, the operation of any Account or Z.com Charge account or any transaction entered into;
- (l)monitoring the transactions carried out for any suspected money-laundering, terrorism financing activities and/or other related risks;
- (m)meeting any legal, regulatory or compliance obligations on the part of Z.com, including such disclosures to the relevant government agency or regulatory authority as the case may be;
- (n)the conduct or defence of any legal proceedings, claims or actions, including but not limited to the procurement of legal advice, drafting of documents and facilitation of dispute resolution, and the enforcement of our rights and/or performance of our obligations in relation thereto;
- (o)marketing our Services;
- (p)providing you with information on promotions or rewards;
- (q)any other purpose permitted by any relevant law, regulation, notice or government authority; and
- (r)any other purposes arising out of or connected to the abovementioned purposes.
The customer further acknowledges and agrees that, to the extent permitted by applicable Laws, any such recording(s) may be submitted as evidence in any legal proceeding in which Z.com is a party.
If the customer posts or publishes or submits any of its User Content through or to the Services, the customer represents and warrants to Z.com that:The customer has all necessary rights to post or publish or submit its User Content through or to the Services; Its User Content does not violate the rights of any third party.
Z.com's obligations
Z.com agrees to (a) make the Services available to the customer in accordance with this Agreement, including any current Order; and (b) perform any other obligations expressly identified in any current Order.
Fees and Payments
The customer shall pay Z.com the fees set forth, from time to time, in this Agreement and/or the relevant Order (the "Fees").
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1.15.
The customer shall make its payment in accordance with the "Payment Methods" set forth in this Agreement and/or the relevant Order.
The Payment Methods are payment by valid credit card, bank transfer, online payment, deposit payment "Z.com Charge", or in cash.
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1.16.
Payment of Fees shall be made, without set-off, by the due date as specified in this Agreement or the relevant Order.
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1.17.
The Customer shall be responsible for and shall pay any applicable bank charges or any other charges arising out of the payment transaction and/or transfer of funds.
The Customer shall be further responsible for and shall pay any applicable taxes or duties, tariffs or the like applicable to the Customer's Order (except for taxes on Z.com's income). All payments shall be made without deduction for withholding taxes.
If Z.com pursues collection efforts against the Customer due to the Customer's failure to pay fees on the date that such fees fall due under this Agreement and/or the relevant Order, the Customer shall pay Z.com's reasonable costs of collection, including any attorneys' fees relating thereto.
To the extent permitted by applicable laws, the fees payable under this Agreement and/or Order are non-refundable and non-cancelable, even if the customer's use of the Services are suspended, terminated, or transferred prior to the end of the Term.
Z.com may, in its sole and absolute discretion, change or modify the fees at any time, and such changes or modifications shall be effective immediately upon posting to its website.
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1.18.
If a Customer has purchased or obtained the provision of Services by the Company over a period of time (a "Term"), such changes or modifications in prices and fees shall take effect upon renewal of the Term.
2. Term
Unless terminated in accordance with the provisions of this Agreement, this Agreement shall commence from the date set out in Clause 1.4 and shall remain in effect for as long as there shall remain in effect an Order entered into between you and the Company or for as long as you shall remain a registered user of an Account with the Company, whichever is longer.
Termination
Either Z.com or the customer may terminate this Agreement or any Order, with or without cause, by giving at least ten (10) business Days prior written notice to the other party, unless provided otherwise in the relevant Order.
Without prejudice to any other rights of Z.com under this Agreement or any other applicable laws, Z.com may immediately, in its sole and absolute discretion, suspend the performance of its obligations or provision of Services under this Agreement or any Order (including the removal and/or destruction of any User Content) and/or may terminate this Agreement or any Order, at any time and without prior notice if:
you fail to pay any of the Fees to Z.com by the due date as specified in this Agreement or any relevant Order;
you materially breach any provision of this Agreement or any relevant Order;
(a) you materially breach any provision of the Z.com Charge Terms or the Policy;
you suffer an Insolvency Event, being such an event where:
- (i)you are or have become unable to pay your debts as and when they fall due;
- (ii)you enter into any arrangement or composition with or for the benefit of your creditors;
- (iii)any insolvency proceedings have been commenced against you, whether voluntary or involuntary, and where involuntary, the proceedings have not been dismissed within 30 days;
- (iv)in the case of a corporation, a resolution has been passed for the winding-up, judicial management, scheme of arrangement, or any other insolvency or rehabilitative proceedings in relation to the corporation; or
- (v)in the case of a corporation, a resolution has been passed for the appointment of an administrator, provisional liquidator, receiver or similar official over the assets of the corporation
your use of the Services are deemed by Z.com to be inappropriate;
you are abusive or threatening towards, or harass Z.com and/or any of Z.com's employees;
Notwithstanding the terms of this Agreement or any other Order, policies or terms and conditions between Z.com and you, Z.com expressly reserves the right to deny, cancel, terminate, suspend, lock, or modify access to (or control of) any Account or Services (including the right to cancel or transfer any domain name registration) for any reason whatsoever, including but not limited to the following:
- To correct mistakes made by Z.com in offering or delivering any Services (including any domain name registration);
- To protect the integrity and stability of, and correct mistakes made by, any domain name registry;
- To assist with our fraud and abuse detection and prevention efforts;
- To comply with court orders against you and/or your domain name or website and any applicable Laws;
- To comply with requests by any law enforcement body, including subpoena requests;
- To comply with any dispute resolution process;
- To defend any legal action or threatened legal action, regardless of whether such legal action or threatened legal action is eventually determined to be with or without merit; or
- To avoid any civil or criminal liability which might concern Z.com, its officers, directors, employees, agents and/or affiliates, including, but not limited to, instances where you have sued or threatened to sue us.
Consequences of Termination
If this Agreement is terminated, the customer shall pay Z.com the amounts specified in each Order relating to Service(s) performed by Z.com up to and including the date of termination, as well as any additional costs or expenses which Z.com has reasonably incurred in connection with the provision of such Services. We may invoice for all fees and any other amounts payable to us. You must pay those fees and amounts within three (3) Business days after the date of the termination.
Upon termination of this Agreement or any relevant Oder, all property of each party in possession of the other party relating to the relevant Service(s) (the provision of which has been terminated) shall be promptly returned, including, without limitation, any Deliverables provided to Customer by Z.com under the Agreement or any relevant Order(s) that have not yet been fully paid for by the Customer. The customer shall also promptly return or destroy (as determined by Z.com in its sole and absolute discretion) all Confidential Information, (including all copies), held by it, its personnel or otherwise under its control.
Notwithstanding the termination of the Agreement and/or any relevant Order, Clauses 3, 7, 9, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 25 and 26 shall survive and continue to be legally binding between the parties after the date of termination.
Intellectual Property
The Customer owns and retains all worldwide right, title, and interest in and to all of his Intellectual Property. Except as expressly set forth herein, nothing in this Agreement conveys any right, title, or interest in or to the Customer's Intellectual Property to Z.com.
Z.com owns and retains all worldwide right, title and interest in and to all its Intellectual Property including without limitation the text, software, source code, APIs, photos, sounds, music, videos and interactive features and the trademarks, service marks and logos contained therein ("Z.com Property"). To the extent that any Z.com Property is included in a deliverable provided to Customer as part of any Services, Z.com hereby grants to Customer a non-exclusive, non-transferable, worldwide right and license to internally use such Z.com Property solely in relation to the related Services. Except as expressly set forth herein, nothing in this Agreement conveys any right, title, or interest in or to the Z.com Property to the Customer or any other third party. Z.com shall own all worldwide right, title, and interest in and to all Deliverables delivered to Customer (including, without limitation, all related Intellectual Property) from the time that it is created, authored, invented, discovered, or first reduced to material form or practice.
Z.com shall retain all intellectual property rights with respect to the processes, tools and software related to the Services. Any use by the Customer, including the execution, reverse engineering, decompilation, reproduction, modification, distribution, transmission, republication, display, transfer or performance, except as specifically permitted by Z.com during the Term of Services, is prohibited. We provide Z.com Property to you "as is", "as available" and "with all faults" for your information and personal, non-commercial use only and such Z.com Property may not be copied, reproduced, distributed, transmitted, broadcast, sold, licensed, or otherwise exploited for any purposes whatsoever without the express prior written consent of Z.com. Except as provided in this Agreement or Order, we may not grant you any rights in relation to any Z.com Property.
Except as otherwise specifically agreed to in this Agreement, Z.com shall retain exclusive ownership in all of its Deliverables. Subject to payment in full for the applicable Services, Z.com grants the Customer a non-exclusive, non-transferable, royalty-free right to use the Deliverables solely for the Customer's internal and personal use. The Customer agrees to take all reasonable steps to protect Deliverables under this Agreement, and any related documentation, from unauthorised copying or use. The Customer further agrees not to modify, disassemble or decompile any such Deliverables in order to discover the trade secrets contained in the source code or for any other reason.
You hereby irrevocably acknowledge that this Agreement is not a sale, conveyance or transfer, and does not convey, transfer or assign to you any rights of ownership in or related to the Services, any technology developed by Z.com, the Z.com Property or any other Intellectual Property Rights owned by Z.com.
Confidentiality
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2.1.
In the performance of the Services, the Customer and Z.com may have access to or be exposed to Confidential Information of the other party. Confidential Information may not be shared with third parties unless such disclosure is to personnel of Z.com or the Customer, including employees, agents, consultants, and subcontractors ("Personnel") on a "need-to-know" basis and in connection with the performance of this Agreement, provided that such personnel has agreed in writing to be bound by terms at least as restrictive as those contained in this Agreement, with respect to the handling and treatment of Confidential Information.
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2.2.
In pursuance of Clause 14.1 above, the Personnel shall execute a confidentiality agreement in the form reasonably required by the party whose Confidential Information is disclosed.
The Receiving party agrees to take the necessary precautions to maintain the confidentiality of the Confidential Information of the Disclosing Party by using at least the same degree of care as the Receiving party employs with respect to its own Confidential Information of a like kind and nature, but in every case no less than the commercially reasonable standard of care to maintain such confidentiality. The Parties ensure that the Confidential Information is secured with the reasonable level of security. The Receiving Party agrees that it will hold in confidence the Confidential Information disclosed by the Disclosing Party. The Parties shall not use Confidential Information for any purpose other than the performance of this Agreement or the Customer's use of the Services. Each party shall also be liable for all breaches of these obligations by its employees and contractors.
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2.3.
The obligations of the Receiving Party under this Clause will not apply to information of the Disclosing Party if such information:
- (a)was in the possession of the Receiving Party at the time of disclosure without any restrictions as to confidentiality of such information;
- (b)was generally available to the public at the time of disclosure or became generally available to the public after disclosure through no breach of this Agreement or other wrongful act by the Receiving Party;
- (c)was rightfully received by the Receiving Party from a third party without restriction on disclosure; oris independently developed by the Receiving Party without use of or reference to the Confidential Information
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2.4.
The Receiving Party may disclose Confidential Information to the extent required to comply with the applicable laws or binding orders of governmental entities that have jurisdiction over it, provided that, to the extent legally permitted, the Receiving Party :
(a) gives the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or other appropriate remedy;
discloses only such Confidential Information as is required by the governmental entity; and uses commercially reasonable efforts to obtain confidential treatment for any Confidential Information disclosed.
Upon the written request of the Disclosing Party, made by email, fax or other similar means, the Receiving Party shall promptly return or destroy the Confidential Information, including all copies thereof (certifying the fact of such destruction to the Disclosing Party).
The parties acknowledge and agree that any breach of the obligations of this Clause 14 may cause the non-breaching party irreparable harm for which an adequate remedy at law may not be available and that, therefore, the non-breaching party shall be entitled to seek injunctive relief, in addition to all other remedies available at law.
Each party shall promptly notify the other party upon discovery of any unauthorised use or disclosure of Confidential Information and will cooperate with the other party in every reasonable way to help regain possession of such Confidential Information and prevent any further unauthorised use.
The obligations with respect to Confidential Information shall continue for five (5) years from the date of termination of this Agreement.
Indemnification
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2.5.
Each party (the "Indemnifying Party"), at its own expense, agrees to protect, defend, indemnify and hold harmless the other party (the "Indemnified Party") and such other party's officers, employees, directors, agents, affiliates, subsidiaries, successors and assigns from and against any and all claims, demands, damages, liabilities, losses, government fines, costs and expenses (including, without limitation, reasonable attorney's fees and litigation expenses) (individually, a "Claim") imposed upon or incurred by the Indemnified Party directly or indirectly arising from the Indemnifying Party's:
Use of the Services; violation of any provision of this Agreement or Order which are incorporated herein; and/or violation of any third-party right, including without limitation any intellectual property or other proprietary right.
(a) The indemnification obligations in this Clause are conditioned upon: written notice by the indemnified party, made by email or fax or other means to the indemnifying party within 30 days of the indemnified party's receipt of any Claim for which indemnification is sought; counsel for the indemnified party being reasonably acceptable to the indemnifying party, such acceptance by the Indemnifying Party not to be unreasonably withheld;
Approval by the indemnifying party of any settlement of the Claim for which indemnification is sought by the Indemnified Party; and such reasonable cooperation by the indemnified party in the defense of the Claim as the indemnifying party may request. Notwithstanding anything to the contrary contained herein, the indemnifying party shall not, without the prior written consent of the indemnified party, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened Claim unless the settlement, compromise or consent provides for and includes an express, unconditional release of such Claim against the indemnified party.
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2.6.
If Z.com receives notice of a claim that, in its reasonable opinion, is likely to result in an adverse ruling, then Z.com may in its sole discretion:
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(a)obtain a right for Customer to continue using such Service or Deliverable; modify such Service or Deliverable to make it non-infringing; replace such Service or Deliverable with a non-infringing equivalent; or
- (b)terminate the use of such Service or Deliverable by the Customer and thereafter refund any fees paid by the Customer for the allegedly infringing Service that has not been provided by Z.com, or provide a reasonable refund in relation to the allegedly infringing Deliverable (taking into account the depreciation of such Deliverable).
Notwithstanding the foregoing, Z.com shall have no obligation under this Clause for any claim resulting or arising from:
- (a)any unauthorised modification or alteration of the Services or Deliverables by the Customer;
- (b)any modification or alteration of the Services or Deliverables not carried out by or on behalf of Z.com;
- (c)any operation, combination or use of the Service or Deliverable in connection with any other third-party product or service; or
- (d)any action undertaken by Z.com in compliance with the Customer's written specifications or directions, including but not limited to the incorporation or use of any software or other materials or process provided by or requested by the Customer.
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2.7.
Each Customer shall defend, indemnify and hold Z.com harmless from any Claim, including any third-party claim or action arising out of:
- (a)the failure of the Customer to obtain the appropriate license(s), Intellectual Property right(s), or any other permission(s), regulatory certificates(s) or approval(s) associated with the Content and/or any technology, software or other component provided by the Customer, or requested by the Customer to be installed or integrated as part of the Services;
- (b)any inaccurate representations by the Customer regarding the existence and/or validity of a license, Intellectual Property right, regulatory certificate, approval and/or permission ; or
Any allegation made against Z.com due to the Customer's violation or alleged violation of any applicable law, regulation, notice and/or order.
3.Personal Data
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3.1.
Each Customer hereby affirmatively agrees, consents to and authorizes the retrieval, collection, use, disclosure and/or retention, by and on behalf of the Company, of any Customer Data in accordance with this Agreement and the Policy.
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3.2.
In addition to Clause 16.1 above, a Customer may agree, consent to or authorise the collection, use, disclosure and/or retention of Customer Data by the Company for any purpose(s) as requested by the Company, by any form of writing or by the acceptance by the Customer of this Agreement, any relevant Order, or any other agreement and/or terms and conditions of the Company which refer to such consent or authority.
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3.3.
Each Customer hereby affirmatively agrees, consents to and authorizes the disclosure of Customer Data to third party agents of the Company (including the transfer out of Singapore if so required), in accordance with the Policy.
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3.4.
Each Customer hereby represents, warrants and undertakes to the Company that in the event that any Personal Data of a third-party is provided to the Company, the Customer has obtained the expressed, written consent of such third-party to the retrieval, collection, use, disclosure and retention by and on behalf of the Company, of such Personal Data of the third-party in accordance with this Agreement and the Policy.
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3.5.
The consent given by each Customer in accordance with this Agreement shall also constitute consent of the Customer for the purposes of the Spam Control Act (Cap 311A) or any other applicable legislation
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3.6.
Each Customer hereby further consents to the sending of SMS notifications by the Company and/or other forms of contact in connection with the provision of the Services, subject to the Do Not Call Registry provisions under Part IX of the Personal Data Protection Act 2012 (No. 26 of 2012).
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3.7.
A Customer may, in accordance with the Policy, withdraw consent given under this Agreement.
Data Security and Protection of customer Information
Z.com will maintain reasonable administrative, physical, and technical safeguards for the protection of the security, confidentiality and integrity of Customer Data and Content (collectively known as "Customer Information") which is owned and/or controlled by the Customer. Z.com will not modify Customer Information or access Customer Information except to provide the Services and prevent or address service or technical problems, or at the Customer's request in connection with the provision of Customer support.
Z.com shall, where reasonably practicable, promptly notify a Customer of any loss, misuse, or unauthorized acquisition of his/her Customer Information, provided that such obligation on the part of Z.com shall only arise where Z.com has had notice of such an event.
Despite Clause 17.1 above, the Customer hereby warrants, agrees and undertakes that it is solely responsible for taking appropriate and/or necessary measures to secure, back -up and protect its computing device(s) and Customer Information, including but not limited to any computer programs, applications, data and/or files in connection therewith. The Customer further acknowledges that customer Information may be altered or damaged in the course of providing technical services, whether on-site, via remote connection or otherwise.
Limitation of Liabilities
IN NO EVENT SHALL Z.COM, Z.COM'S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND/OR ANY THIRD PARTY SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, LOSSES OR LIABILITIES WHICH IS/ARE SUFFERED OR INCURRED IN CONNECTION WITH OR RELATING TO THIS AGREEMENT (INCLUDING AN ORDER) OR OTHERWISE ARISING OUT OF THE RELATIONSHIP BETWEEN YOU AND US, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE PRINCIPLE, AND WHETHER OR NOT WE WERE AWARE OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGE , LOSS OR LIABILITY.
YOU HEREBY ACKNOWLEDGE AND AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY ANY APPLICABLE LAWS, OUR TOTAL AGGREGATE LIABILITY TO YOU FOR ANY AND ALL LOSSES SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID TO US BY YOU UNDER THE APPLICABLE ORDER(S) IN THE 12 MONTHS PRIOR TO THE LAST OCCURRENCE OF SUCH LOSS (LESS ANY OTHER CLAIMS PAID BY US IN CONNECTION WITH OR RELATING TO THAT ORDER IN THAT PERIOD.)
YOU FURTHER ACKNOWLEDGE THAT SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. Z.COM IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER SHORTCOMINGS IN THE PROVISION OF SERVICES RESULTING FROM SUCH PROBLEMS.
Disclaimer
TO THE EXTENT PERMITTED BY APPLICABLE LAWS, WE, OUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ALL THIRD PARTY SERVICE PROVIDERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Parties' relationship and Assignment
The parties are independent contractors. Neither party shall have any rights, power or authority to act or create any obligation, express or implied, on behalf of another party, except as specified in this Agreement. Z.com has the right to assign, subcontract or delegate this Agreement, or any rights, duties, obligations or liabilities under this Agreement, in whole or in part, by operation of law or otherwise, provided that Z.com shall remain responsible for the performance of Services under this Agreement. You may not novate, assign or sub-contract your rights or obligations under this Agreement or Order, in whole or in part, without prior written consent of Z.com, which may be given or withheld at Z.com's sole discretion.
Modification
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3.8.
Z.com may, in its sole and absolute discretion, change or modify this Agreement, any relevant Order, the Policy, the Z.com Charge Terms and/or any policies or agreements in connection therewith (the "Agreements"), at any time, and such changes or modifications shall be effective immediately upon posting to Z.com's website or upon notice to the Customer.
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3.9.
Your use or continued use of any of the Services after such change(s) or modification(s) have been made to any of the Agreements shall constitute your acceptance of the Agreements with all such change(s) or modification(s) made up to the date on which the Service was used or continue to be used by you.
If at any time you do not agree to be bound or continue to be bound by any of the Agreements with such change(s) or modification(s) made, you shall cease your use of the Services immediately.
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3.10.
Z.com may, in its sole and absolute discretion, change, modify or discontinue any aspect of the Services at any time, including without limitation, the prices and fees for the Services. such changes, modifications or discontinuation shall be effective immediately upon posting to Z.com's website.
Your use or continued use of any of the Services after such change(s) or modification(s) have been made shall constitute your acceptance of the Services with all such change(s) or modification(s) made up to the date on which the Service was used or continue to be used by you. If at any time you do not agree to be bound by such change(s) or modification(s) made to the Services, you shall cease your use of the Services immediately.
Your use of the Services after the effective date of any amendments to the Agreements constitutes your complete and irrevocable acceptance of such amendments. You hereby undertake to check Z.com's website from time to time to be kept apprised of all such change(s), modification(s) and/or amendment(s) made to the Agreements and/or the aspects of the Services.
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3.11.
For the avoidance of doubt, Clause 21.7 shall have no bearing on the effective date of any change, modification and/or discontinuation referred to in Clause 21.1 and Clause 2
4. Governing Law
This Agreement, the relevant Orders, the Policy, the Z.com Charge Terms and/or any policies or agreements in connection therewith shall be governed by and construed in accordance with the laws of the Republic of Singapore.
Settlement of Disputes
Z.com and the Customer shall attempt to resolve any claim, dispute or controversy (whether in contract, tort or otherwise) arising out of or relating to this Agreement and/or any relevant Order through amicable negotiation. The Parties agree that all acts, conduct and/or correspondence in connection with the negotiation and/or any settlement will be kept confidential.
In the event that the parties are unable to resolve the dispute within thirty (30) days after the notice of dispute is given by one Party to the other party, the parties shall each have a right to refer the dispute to a court of competent jurisdiction in Singapore.
Force Majeure
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4.1.
A Party (the "Delayed Party") shall not be liable to the other party for any failure to perform any of its obligations (except payment obligations) under this Agreement or any relevant Order, if performance is delayed by circumstances beyond the reasonable control of the Delayed Party, including, but not limited to, fire, flood, war, embargo, strike, riot or the intervention of any governmental authority (a "Force Majeure Event").
In such event, the delayed party must promptly provide the other party with written notice of the Force Majeure Event. The delayed party's performance shall be excused and suspended for the duration of the Force Majeure Event, but if the Force Majeure Event lasts longer than sixty (60) days, the other party may terminate the applicable Order and/or this Agreement by giving written notice to the delayed party.
Use of Customer Name
With the prior written consent of the Customer, Z.Com may use and/or publish the Customer's name in its customer lists, lists of referrals for other customers (or potential customers), and in other promotional information, including but not limited to, press releases, brochures, reports, letters, white papers, and electronic media such as e-mail or Web pages.
Miscellaneous Notice
All notices, demands, requests, or other communications that may be or are required to be given, served, or sent by either Party to the other Party pursuant to this Agreement, shall be in writing and shall be mailed by first-class, registered, or certified mail, return receipt requested, postage prepaid, or transmitted by hand delivery or email or facsimile addressed to the respective Parties as follows:
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To GMO-Z.com Pte, Ltd:
Address: 1 Wallich Street, #25-01a Guoco Tower, Singapore 078881
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To Customer:
Address provided in the most recent Order.
Severability
If any provision or part thereof of this Agreement or any relevant Order becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, then that provision or part thereof shall be deemed to be severed, but the other provisions or part(s) thereof of this Agreement or relevant Order shall continue to remain in full force and effect.
No Waiver
The failure of either party to require the performance of any of the terms of this Agreement and/or a relevant Order or the waiver by either party of any default under this Agreement and/or a relevant Order shall not prevent a subsequent enforcement of such term, nor be deemed a waiver of any subsequent breach. Any waiver shall not be effective unless it is in writing and duly signed by both Parties hereto.
Entire Agreement
This Agreement, the relevant Order, the Policy, the Z.com Charge Terms and/or any policies or agreements in connection therewith shall constitute an entire agreement between the Parties relating to the subject matter of this Agreement, the relevant Order, the Policy, the Z.com Charge Terms and/or any policies or agreements in connection therewith, and shall supersede all prior representations, proposals, understandings, communications or agreements, whether written or oral, relating to that subject matter.
Counterparts
This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and such counterpart together shall constitute one and the same instrument. For the purposes hereof, a facsimile copy of this Agreement shall be deemed to be an original. Facsimile and electronic copies of signatures shall have the same effect as originals. If a party elects to sign any relevant Order electronically, the Party expressly acknowledges and agrees that such electronic signature is the legal equivalent of, and has the same force and effect as, a hand-written signature.
Foreign Language Translation of Agreement
For the convenience of its Customers, Z.com may provide a customer with a non-English translation of the Agreement (the "Translated Agreement"). Any such Translated Agreement is for reference purposes only. The Customer acknowledges and agrees that in the event of any inconsistency between the English version of this Agreement and the Translated Agreement, the English version of this Agreement shall take precedence and govern in all instances between the Parties.
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4.2.
Agreement to be Paramount
In the event of any inconsistency between the term(s) of this Agreement, a relevant Order, the Policy, the Z.com Charge Terms and/or any policies or agreements in connection therewith, the term(s) of this Agreement shall take precedence.
