PLEASE READ THESE TERMS & CONDITIONS FOR USERS BEFORE PROCEEDING FURTHER. BY SIGNING UP FOR AN ACCOUNT, YOU ARE CONSENTING TO BE BOUND BY AND BECOMING PARTY TO A LEGALLY BINDING CONTRACT BETWEEN (i) YOURSELF; AND (ii) BAKCUPBYTES, THAT IS GOVERNED BY THESE TERMS & CONDITIONS FOR USERS.
These Terms & Conditions for Users form part of the Contract (as defined below) between BAKCUPBYTES PTE LTD (also referred to as “BAKCUPBYTES”) and you. You are referred to as the “User” in these Terms & Conditions for Users.
1. DEFINITIONS AND INTERPRETATION
1.1 In these Terms & Conditions for Users, the following words and expressions shall have the following meanings:
Application Form means the application or application form on the Website, that a User completes and/or submits on the Website to register to access and utilize the Service.
Changes means any addition, deletion, modification or alteration to the Service, the manner in which the Service is provided, or the performance standards of the Service, as determined by BAKCUPBYTES from time to time.
Charges means any fees payable by the User in connection with the provision of the Service.
Content includes text, images, graphics, music, software, audio, video, information or other materials.
Contract means a contract entered into by a User and BAKCUPBYTES that comprises (i) the Application Form; and (ii) these Terms & Conditions for Users as well as the privacy policy.
Terms & Conditions for Users means these terms and conditions for Users prescribed by BAKCUPBYTES with respect to the provision by it of the Service and that may be posted by BAKCUPBYTES on its Website, including any revised or amended version of the same as issued by BAKCUPBYTES from time to time and that may be posted on the Website. Such revised or amended version of the same shall apply to the User and the User is deemed to have accepted the same, from the time it is published on the Website.
Intellectual Property Rights means all vested, contingent and future intellectual property rights including but not limited to goodwill, reputation, rights in confidential information, copyright, trade marks, logos, service marks, devices, plans, models, diagrams, specifications, source and object code materials, data and processes, design rights, patents, know-how, trade secrets, inventions, get-up, database rights, in each case whether registered or unregistered, and any applications or registrations for the protection of these rights and all renewals and extensions thereof existing in any part of the world, whether now known or in the future created.
User means any individual, association, partnership, firm or corporation who applies or subscribes for or utilizes the Service.
User’s Content means Content posted, uploaded, published, submitted or otherwise made available by the User through the Website, including but not limited to User’s emails and the Contents therein.
User’s Information means all information which BAKCUPBYTES obtains, and any other information, and data provided by the User to BAKCUPBYTES, whether relating to himself/itself or otherwise, as a result of the User’s use of the Service.
Party means either BAKCUPBYTES or the User as the case may be, and “Parties” means both BAKCUPBYTES and the User.
Related Corporation has the meaning ascribed to it in Section 6 of the Companies Act, Chapter 50 of Singapore (and “related corporations” shall be construed accordingly).
Service means a service provided by BAKCUPBYTES whereby BAKCUPBYTES provides automatic backups of your email in the cloud, and/or any other activities as determined by BAKCUPBYTES at its absolute discretion, in accordance to the terms hereof. Further details, if any, of the Service, may be set out by BAKCUPBYTES on the Website.
Website means such Internet website(s) owned or controlled by BAKCUPBYTES, on which BAKCUPBYTES shall provide the Service, namely https://www.BAKCUPBYTES.com.
Working Day means any day which is not a Saturday, Sunday or a public holiday in Singapore.
BAKCUPBYTES means BAKCUPBYTES
1.2 Unless the contrary intention appears:
a) A reference to these Terms & Conditions for Users or another instrument includes any variation or replacement of any of them;
b) A reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
c) The singular includes the plural and vice versa;
d) The word “person” includes an individual, a firm, a body corporate, a partnership, joint venture, an unincorporated body or association, or any government agency, and includes a reference to the person’s executors, administrators, successors, substitutes (including, without limitation, persons taking by novation) and assigns;
e) If a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day;
f) A reference to a day is to be interpreted as the period of time commencing at midnight and ending twenty-four (24) hours later;
g) A reference to a time is a reference to Singapore time;
h) A reference to any thing (including, without limitation, any amount) is a reference to the whole and each part of it and a reference to a group of persons is a reference to all of them collectively, to any two or more of them collectively and to each of them individually;
i) The words “including”, “for example” or “such as” are not used as, or to be interpreted as a word of limitation, and do not limit the meaning of the words to which the example relates to that example or example of a similar kind;
j) No rule of construction applies to the disadvantage of a Party because that Party was responsible for the preparation of these Terms & Conditions for Users or any part of it; and
k) Headings are inserted for convenience and do not affect the interpretation of these Terms & Conditions for Users.
2. APPLICATION OF TERMS & CONDITIONS TO THE SERVICE
2.1 These Terms & Conditions for Users shall apply to the provision of the Service.
2.2 The User agrees to be bound by and to fully observe and comply with these Terms & Conditions for Users as well as the privacy policy which shall be deemed incorporated by reference into these Terms & Conditions for Users.
2.3 These Terms & Conditions for Users shall apply to the Contract to the exclusion of any other terms and conditions which the User may purport to apply and in whichever way the User purports to introduce them ( the “User’s Provisions” ) For the avoidance of doubt, the User acknowledges and agrees that BAKCUPBYTES shall not be bound by any of the User’s Provisions.
3. SERVICE
3.1 Notwithstanding anything that may be to the contrary in the Application Form or the Terms & Conditions for Users, and regardless that the Contract has been concluded, BAKCUPBYTES reserves the right to refuse to provide the Service or to refuse commencement of the Service, without having to assign any reason for such refusal and without being liable to the User for any compensation whatsoever. Should BAKCUPBYTES choose to refuse to provide the Service to the User as aforesaid, the Contract between the User and BAKCUPBYTES shall be deemed to have never been concluded and neither Party shall owe any obligations to the other. Subject to the aforesaid, the Contract shall be deemed to have been concluded on the date that the User is able to access the Service after having applied for access on the Website or after having submitted the Application Form on the Website.
3.2 Without prejudice to clause [3.1] , the User acknowledges that BAKCUPBYTES may require some time to activate the Service for the User subsequent to the User’s sign up for the Service.
3.3 Without prejudice to clause [3.1] and/or notwithstanding anything that may be to the contrary, the commencement date of the Service shall be at the absolute discretion of BAKCUPBYTES.
3.4 The User will obtain and maintain at its own cost and shall be responsible for, to the absolute exclusion of BAKCUPBYTES, all telecommunications and other services, computers and any other hardware and any ancillary software required to enable the User to access the Service via the Internet.
3.5 Without prejudice to the foregoing subclauses, BAKCUPBYTES will use reasonable endeavours to provide the Service subject to the terms of the Contract and to the following:
a) the User acknowledges that the Internet or the systems, servers, and equipment through which the Service is provided may from time to time be inoperative in full or in part as a consequence of but not limited to (i) mechanical breakdown, maintenance (whether emergency, scheduled or otherwise), hardware or software upgrades, telecommunication connectivity problems; or (ii) other factors beyond the control of BAKCUPBYTES; and
b) BAKCUPBYTES will not be liable in any way whatsoever for its failure or inability to provide the Service or to provide continuous, error free, uninterrupted Service, whether under the abovementioned or any other circumstances.
3.6 BAKCUPBYTES does not warrant in any way whatsoever that the User will be able to use the Service continuously or at all, or that such Service will be uninterrupted.
3.7 BAKCUPBYTES neither warrants nor guarantees that the form, wording, colour, style, text and look and feel of the User’s Content that eventually appears on the Website will be the same as the User’s Content when submitted or posted by the User on the Website and BAKCUPBYTES shall not be liable to the User in any way whatsoever for the aforesaid.
3.8 BAKCUPBYTES assumes neither responsibility nor liability arising from any Content posted, uploaded, submitted by any User, or from BAKCUPBYTES’s publication of the same, including but not limited to any error, defamation, libel, slander, omission, falsehood, obscenity, pornography, profanity, threats, or inaccuracy contained within any such Content. The User undertakes that it shall make no claim and take no action whatsoever against BAKCUPBYTES arising from, relating to or connected with any of the foregoing.
3.9 BAKCUPBYTES is not obligated to provide the Service to the User during times of maintenance (whether emergency or scheduled maintenance or otherwise) to any of the computer systems and/or equipment through which the Service is to be provided.
3.10 BAKCUPBYTES may at its absolute discretion make Changes from time-to-time (including changes to its standards and procedures relating to the Service, whether or not it results in an upgrade or a downgrade of Service performance), without notice.
4. ACCOUNT REGISTRATION
4.1 In submitting the Application Form and/or in applying for an account to access or utilize the Service, the User warrants that :
(a) the User is at least 18 years of age;
(b) the User possesses the legal authority to create a legally binding obligation between itself and BAKCUPBYTES;
(c) if the User is an individual and is creating an account for a corporate/business entity, that the User is agent for and acts on behalf of the corporate/business entity and that it has the legal authority to create a legally binding obligation between BAKCUPBYTES and the said corporate/business entity.
(d) the User will use the Service in accordance with these Terms & Conditions for Users;
(e) all information supplied by the User in the Application Form, on the Website is true, accurate, current and complete during the registration process and the User shall update such information to keep it accurate, current and complete; and
(f) the User shall safeguard his account information, including but not limited to his/its password which he/it shall not disclose to any third party. The User shall take sole responsibility for any activities or actions under his/its BAKCUPBYTES account, whether or not he/it has authorized such activities or actions.
5. CHARGES AND PAYMENT
5.1 The User shall pay the Charges by either PayPal, credit card or any other payment mechanism permitted by BAKCUPBYTES, as described on the Website. The User hereby authorizes BAKCUPBYTES to collect (whether directly or indirectly) such amounts by charging the User’s credit card (details of which were provided by the User), via a third party online payment processor or by one of the payment methods described on the Website. The User shall provide customary billing information such as name, billing address and credit card information to BAKCUPBYTES or its third party payment processor, where requested.
5.2 If the User is directed to BAKCUPBYTES’s third party payment processor, the User may be subject to terms and conditions governing use of that third party’s service and that third party’s personal information collection practices. BAKCUPBYTES shall not be responsible for any damage, loss or harm to User resulting from the User’s use of that third party’s service. For the avoidance of doubt, the User agrees that any legal remedy or liability that the User seeks to obtain for actions or omissions of such third parties will be limited to a claim against the third parties who caused the User harm and the User agrees not to attempt to impose liability on, or seek any legal remedy from BAKCUPBYTES with respect to such actions or omissions. Accordingly, the User will review such third party’s terms and conditions and privacy policy before using the services of such third party.
5.3 The User acknowledges and agrees that BAKCUPBYTES cannot control any fees that may be charged to the User by its bank in relation to the payment of Charges and the User shall be wholly responsible for the same.
5.4 BAKCUPBYTES may at any time review and revise the Charges, and any new Charges so specified by BAKCUPBYTES shall apply from such date as BAKCUPBYTES may determine at its absolute discretion.
5.5 All Charges are payable in US Dollars, unless the selected payment gateway allows for the Charges to be paid in another currency. The User acknowledges and agrees that any payment made to BAKCUPBYTES may incur foreign currency processing costs and these foreign currency processing costs shall be fully borne by the User.
5A. FREE TRIAL
5A.1 BAKCUPBYTES may at its absolute discretion, from time to time, offer free trials of the Service to Users (“Free Trial”). The duration and scope of each Free Trial is at the absolute discretion of BAKCUPBYTES and will be as described on the Website.
5A.2 To qualify for the Free Trial, the User must apply for an account at the Website and submit the Application Form in accordance with these Terms and Conditions for Users.
5A.3 The Free Trial cannot be used in conjunction with or combined with any other offer by BAKCUPBYTES.
5A.4 the Free Trial is only open to new Users. If a User has previously received a Free Trial, the User will not be eligible for another Free Trial.
5A.5 Each User may only receive one Free Trial for the duration of the Free Trial.
5A.6 For the avoidance of doubt, the User acknowledges and agrees that the use of the Service by the User during a Free Trial is subject to this Section 5A and the rest of these Terms and Conditions for Users.
5A.7 At the end of the Free Trial period, this Contract and the licence granted under these Terms and Conditions for Users will automatically terminate unless the User pays the Charges in accordance with these Terms and Conditions for Users.
5A.8 The User may, at any time during the Free Trial, terminate the Contract by providing fourteen (14) days written notice to BAKCUPBYTES and in such event, Clauses 14.5 to 14.9 of these Terms and Conditions for Users will apply.
5A.9 The User acknowledges and agrees that BAKCUPBYTES reserves the right to cancel, revise, modify or change the terms of the Free Trial at their absolute discretion. Any such cancellation, revision, modification or change will be notified to the ser and deemed accepted upon the User’s continued use of the Service.
5A.10 For the avoidance of doubt, nothing in this Section 5A shall be construed as an obligation for BAKCUPBYTES to provide Free Trial or any other such promotion or offers.
6. RIGHT TO REFUSE AND DISCLOSURE
6.1 Without prejudice to clause [6.2] ,BAKCUPBYTES may at its absolute discretion refuse to provide the Service for any User’s Content, if any such User’s Content in BAKCUPBYTES’s sole opinion :
a) are not of a quality or condition suitable for processing based on BAKCUPBYTES’s prevailing standard specifications and procedures applicable for the same;
b) do not comply with BAKCUPBYTES’s applicable standards and procedures;
c) are otherwise not in proper machine-readable form; or
d) contains any material that BAKCUPBYTES deems at its absolute discretion, to :
(i) have breached any terms and conditions of the Contract;
(ii) likely to subject BAKCUPBYTES to unfavourable regulatory or statutory action;
(iii) contravene or likely to contravene any law;
(iv) infringe or likely to infringe the rights of any persons; or
(v) subject or likely to subject BAKCUPBYTES to liability for any reason whatsoever.
6.2 For the avoidance of doubt, BAKCUPBYTES is under no obligation to vet or monitor the User’s Content for the Service and the User agrees and undertakes that the User alone will be wholly responsible for the User’s Content. BAKCUPBYTES presently does not intend to vet any User’s Content, but BAKCUPBYTES reserves its right to do so should it wish or is required to.
6.3 Without prejudice to the generality of clause [6.2] , BAKCUPBYTES may refuse to process the User’s Content or any part thereof until such time that the User provides to BAKCUPBYTES’s satisfaction, documentary proof of the User’s rights to use, deal in, reproduce, distribute, communicate and/or modify, the User’s Content, as may be required by BAKCUPBYTES from time to time.
6.4 Upon the request of any government authorities, a court order, the legitimate request of a person who alleges that any of the User’s Content is defamatory of that person (BAKCUPBYTES shall have absolute discretion in determining whether such request is legitimate and/or the material in question defamatory), or the legitimate request of the copyright owner of any of the User’s Content (BAKCUPBYTES shall have absolute discretion in determining whether a request is indeed from a copyright owner and whether such request is legitimate), the User agrees that BAKCUPBYTES may at BAKCUPBYTES’s absolute discretion :
a) remove any of the User’s Content from the Website; and/or
b) disclose the User’s identity, contact details, the User’s information and the User’s Content to the requesting party (as well as provide copies of such User’s Content to the requesting party).
6.5 In the event that :
a) the User’s Content; or
b) the Service,
would cause BAKCUPBYTES to be in breach of any laws or regulatory requirements or guidance to which it is subject, BAKCUPBYTES shall be entitled to immediately suspend the Service and/or remove the User’s Content from the Website, without incurring any liability to the User whatsoever. In the event of the aforesaid happening, BAKCUPBYTES has the right to immediately terminate the Contract without incurring any liability to the User whatsoever.
7. USER CONDUCT
7.1 The User acknowledges and agrees that the User shall be solely responsible for compliance with any and all laws, rules and regulations that may apply to its access and use of the Website and/or Service.
7.2 In relation to the User’s use of the Website and/or Service, the User warrants and represents that it shall not:
(a) violate any laws, rules, regulations or any order of a court;
(b) use the Website or Service for any other purposes that are not expressly permitted by the Contract;
(c) infringe the rights of any person or entity, including but not limited to, their Intellectual Property Rights, privacy, or contractual rights;
(d) use the Website to distribute unsolicited emails, advertisements, messages, or any other form of spam;
(e) harass or stalk any other user of the Website or Service;
(f) collect or store any personally identifiable information about any other user in violation of applicable laws;
(g) register for more than one BAKCUPBYTES account;
(h) use any information acquired through the use of the Website and/or Service for any other purpose, whether lawful or unlawful;
(i) impersonate any person or entity, or otherwise misrepresent himself as another person or entity;
(j) use the Service and Website (including the forum and/or blog) for any unlawful purpose;
(k) make any misrepresentations when using the Service;
(l) post, upload, publish, submit or transmit any Content that : (i) is, or may be reasonably suspected by the User to be, fraudulent, false, misleading or deceptive; (ii) is defamatory, obscene, pornographic, vulgar or otherwise offensive; (iii) is racist or discriminating against any individual or group; (iv) is violent or threatening or promotes violence; or (v) promotes illegal or harmful activities;
(m) swear, use profanities, obscenities or any bad language of any kind, even if disguised with asterisks;
n) access or tamper with the non public areas of the Service or the Website;
(o) interfere with or damage the Website or Service, through the use of, without limitation, viruses, Trojan horses, malicious codes, malwares, or other similar methods or technology;
(p) attempt to probe, scan, or test the vulnerability of the BAKCUPBYTES system or network or breach any authentication measures;
(q) avoid, bypass, deactivate, remove, or otherwise circumvent any technological measures implemented by BAKCUPBYTES or any of BAKCUPBYTES’s providers to protect the Website; and/or
(r) advocate, encourage or assist any third party in doing any of the foregoing.
7.3 The User acknowledges and agrees that BAKCUPBYTES shall have the right to investigate and prosecute any violation of any of the subprovisions in clause [7.2] to the fullest extent of the law. BAKCUPBYTES may involve and cooperate with law enforcement authorities in prosecuting Users who violate clause [7.2]
7.4 For the avoidance of doubt, the User acknowledges and agrees that BAKCUPBYTES has no obligation to monitor the User’s access and use of the Website or Service, or to review or edit any User’s Content, but BAKCUPBYTES shall retain the right to do so.
7.5 Without prejudice to any other remedies provided in accordance with the Contract or at law, BAKCUPBYTES reserves the right, at any time and without prior notice, to remove or disable access to any User’s Content that BAKCUPBYTES, at its sole discretion, considers to be objectionable for any reason or in violation of the terms provided in these Terms & Conditions for Users.
8. INTELLECTUAL PROPERTY RIGHTS AND WARRANTIES
8.1 The User acknowledges that all Intellectual Property Rights in the software and technology comprised in the Service are retained exclusively by BAKCUPBYTES and/or their rightful owner(s) and the User shall not do or permit any act which is directly or indirectly likely to prejudice the rights, title or interest of the said rightful owner(s) in and to any of the aforesaid. Without prejudice to the generality of the foregoing, the User shall not use in any way and shall not reproduce any trademarks that is associated with the Service or that the User has sight of when using the Service, without the prior written consent of BAKCUPBYTES.
8.2 The User hereby undertakes and agrees :
(a) thatBAKCUPBYTES is the true and lawful owner of the trade mark and all derivatives thereof;
(b) not to use the trade mark or any derivatives thereof or any other name or mark confusingly similar as the aforesaid;
(c) that all rights, title, interest and any goodwill in the trade mark or any derivatives thereof belong exclusively to BAKCUPBYTES; and
(d) not to register domain names associated with or including the trade mark or any derivatives thereof or any name that is confusingly similar to any of them including any visual or phonetic equivalent or other derivation thereof.
8.3 BAKCUPBYTES does not represent or warrant that the use or application of the Service by the User will not constitute an infringement or misuse of any Intellectual Property Rights.
8.4 The User agrees to assume all risks arising out of or relating to its use of the Service. Notwithstanding anything that may be to the contrary, BAKCUPBYTES makes no warranty that any information, software or any material made available by BAKCUPBYTES via the Internet relating to the Service does not contain computer viruses and BAKCUPBYTES accepts no responsibility or liability whatsoever relating to the aforesaid.
8.5 The User agrees to be bound by and shall execute any end user licence agreements relating to any software or technology utilized in the Service that BAKCUPBYTES may from time to time require the User to agree to and execute for the purpose of the provision of the Service, failing which the Service shall be discontinued or suspended at the discretion of BAKCUPBYTES.
8.6 The User hereby grants to BAKCUPBYTES, its related corporations and BAKCUPBYTES’s agents and subcontractors, a perpetual, irrevocable, worldwide and non-exclusive licence to use, process, display, reproduce, store, publish, transmit, communicate, adapt, translate, modify, deal in, and/or to use in any other way whatsoever, the User’s Content, or any part thereof, for the purpose of providing the Service.
8.7 The User shall ensure, and warrants and represents to BAKCUPBYTESthat :
a) all information, materials and User’s Content that the User publishes or uploads shall not be defamatory of any party;
b) the User’s Content do not infringe the rights of any party (including any Intellectual Property Rights of any third party throughout the world);
c) it is the proprietor or authorized licensee of any and all Intellectual Property Rights (including copyright) in the User’s Content. The User further warrants that none of the Intellectual Property Rights in the User’s Content infringe the rights of any third party. In cases where the User is the licensee of any such Intellectual Property Rights in the User’s Content, the User warrants that it has a licence and has obtained the necessary consents to permit BAKCUPBYTES to deal in and use the aforesaid Intellectual Property Rights in any way conceiveable, in the course of, in connection with or for the purpose of, providing the Service to the User;
d) the User is entitled to enter into the Contract, is able to perform its obligations under the Contract and to grant BAKCUPBYTES the rights (including the licence under clause [8.6] under the Contract;
e) the User has all the necessary consents, licences, permits and approval(s) from the relevant authorities, bodies, organizations or as required by applicable laws in order to perform its obligations under the Contract;
f) the User’s Content do not infringe any laws, statutes and regulations of any territory, including Singapore;
g) the User’s Content will not cause BAKCUPBYTES to infringe the rights of any person or to infringe any laws, statutes and regulations of any territory, including Singapore;
h) the User’s Content do not cause annoyance, embarrassment, distress, harassment, disturbance or nuisance of any kind whatsoever, or which is not in the public interest, or contain obscene, racially or ethnically objectionable material, or be offensive in any way.
8.8 The User undertakes :
a) not to send or submit any materials or information or otherwise use the Service for a purpose, which under applicable laws, regulations or policies, (including those of countries where the User’s Content can be accessed via the Internet), or under international conventions, codes, regulations or licences of such countries, would be prohibited;
b) not to cause BAKCUPBYTES to do anything that would amount to a contravention of the laws of Singapore, or international conventions, codes or regulations; and
c) that in using the Service, the User will not do anything that will be unlawful or that will infringe the Intellectual Property Rights of any third party.
8.9 The User shall only have a limited, non-exclusive and revocable right for the duration of the Contract to access and view Content posted by BAKCUPBYTES, for the User’s personal and non-commercial purpose, subject to these Terms & Conditions for Users including payment of Charges where required by BAKCUPBYTES.
8.10 The User shall not use, copy, modify, adapt, distribute, create derivative works from, license, sell, broadcast or otherwise exploit or deal in the Content posted by BAKCUPBYTES, except as expressly permitted under these Terms & Conditions for Users.
9. CONFIDENTIALITY
9.1 From time to time during the term of the Contract, BAKCUPBYTES (the “Disclosing Party”) may, but is not obliged to, disclose information to the User (the “Receiving Party”) that is proprietary or confidential. The Receiving Party shall maintain in strict confidence all confidential or proprietary information of the Disclosing Party including but not limited to designs, plans or any other information relating to any research project, work in process, future development, scientific, engineering, manufacturing, marketing or business plan or financial or personnel matter relating to the Disclosing Party, its present or future products, sales, suppliers, employees, investors or business, including prices and discounts (“Confidential Information”) identified by the Disclosing Party or where it ought reasonably to be known as Confidential Information, whether in oral, written, graphic or electronic form. The Receiving Party shall not use, disclose or grant the use of such Confidential Information to any third party except for the purposes of performing obligations to the Disclosing Party under the Contract. The Receiving Party shall ensure its employees, agents or consultants to whom disclosure is to be made on a need to know basis, hold the Confidential Information in strict confidence and not make any use of such information for any purpose other than those expressly permitted by the Contract. The Receiving Party shall use (and require that all employees, agents and consultants) at least use the same standard of care as the Receiving Party uses to protect its own Confidential Information of a similar nature from unauthorised use or disclosure, but in no event less than reasonable care. The Receiving Party shall promptly notify the Disclosing Party upon discovery of any unauthorised use or disclosure of the Confidential Information of the Disclosing Party.
9.2 The obligations contained in clause [9.1] shall not apply if :
a) the Confidential Information was already known to the Receiving Party, other than under an obligation of confidentiality, at the time of disclosure by the Disclosing Party;
b) the Confidential Information was generally available to the public or otherwise part of the public domain at the time of its disclosure to the Receiving Party;
c) the Confidential Information became generally available to the public or otherwise part of the public domain after its disclosure and other than through an act or omission of the Receiving Party in breach of the Contract;
d) the Confidential Information was disclosed to the Receiving Party, other than under an obligation of confidentiality, by a third party who had no obligation to the Disclosing Party not to disclose such information to others; or
e) the disclosure or use is required by law, any regulatory body or the rules and regulations of a relevant recognised stock exchange.
9.3 This clause shall survive termination of the Contract.
10. LIMITATION OF LIABILITY
10.1 The User acknowledges that the Service presents the possibility of human and machine errors, omissions, delays, and losses, including the inadvertent loss of data which may give rise to loss or damage suffered by the User, and the User agrees that it shall not hold BAKCUPBYTES liable in any way whatsoever for the said loss or damage.
10.2 BAKCUPBYTES makes no guarantee, representation or warranty whatsoever :
a) that the Service will be available on a continuous or 24×7 basis;
b) that the Website will be available on a continuous or 24×7 basis for access; and/or
c) of the effect or benefits that can be derived by the User from using the Service.
10.3 The User acknowledges that BAKCUPBYTES’s systems, servers and equipment, or such other third party systems, services and equipment, used to operate the Website, may from time to time be inoperative or only partly operational as a consequence of mechanical breakdown, maintenance, hardware or software upgrades, telecommunication connectivity problems or other causes whatsoever. BAKCUPBYTES may schedule downtime for the Website for maintenance purposes without giving notice thereof. BAKCUPBYTES shall not be liable for any loss, damage, claims, costs or expense of any kind arising from any such downtime, or from any unavailability or inoperability of any telecommunications systems or internet, technical malfunction, error, omission, interruption, delay in operation or transmission, computer error or viruses, any failure in communication lines or telecommunications networks, or any corruption or loss of data or other disruption of any kind.
10.4 All express and implied warranties or conditions, statutory or otherwise as to completeness, accuracy, sufficiency, quality or fitness of the Service for any purpose or any business whatsoever whether known to BAKCUPBYTES or otherwise, are hereby excluded. BAKCUPBYTES gives no condition, warranty, or undertaking, and makes no representation to the User about the :
a) suitability of, or fitness of the Service for the User’s purposes; or
b) availability of the Service or operational availability of the Service.
10.5 The User acknowledges and agrees that the Service is provided on an “as is” and “as available” basis, with all faults, and BAKCUPBYTES disclaims all warranties and makes no warranty of any kind, whether express or implied (statutory or otherwise), including but not limited to warranties on the ownership of Intellectual Property Rights and implied warranties of merchantability, sufficiency, quality and fitness for a particular purpose. BAKCUPBYTES does not warrant that the Service will be uninterrupted or error-free.
10.6 To the extent permitted by law, BAKCUPBYTES shall not be liable to the User in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever and whatever the cause thereof, for any indirect, consequential, collateral, special or incidental loss or damage suffered or incurred by the User in connection with the Service or any transaction relating thereto, whether during or after the term of the provision of the Service. For the purposes of these Terms & Conditions for Users, indirect or consequential loss or damage includes, without limitation, loss of revenue, profits, anticipated savings or business, loss of data or goodwill, loss of use or value of any equipment including software, claims of third parties, and all associated and incidental costs and expenses.
10.7 Where BAKCUPBYTES’s liability is not expressly excluded under these Terms & Conditions for Users or under any applicable law, BAKCUPBYTES’s liability for direct damages to the User in contract, tort (including negligence) or otherwise whosoever and whatever the cause thereof, arising by reason of or in connection with the Service, any transaction relating thereto or the Contract shall be up to a maximum aggregate amount of the Charges received by BAKCUPBYTES from that User.
10.8 BAKCUPBYTES shall not be liable to the User for its failure to perform its obligations if, and to the extent that, such failure results from the User failing to perform any of its obligations under these Terms & Conditions for Users.
10.9 Nothing in these Terms & Condition for Users in any way excludes or restricts a Party’s liability for death or personal injury resulting from the negligence of that Party.
10.10 For the purposes of this clause 11, all references to BAKCUPBYTES shall also include its respective officers, employees, affiliates, sub-contractors and agents.
11. INDEMNITY
11.1 Notwithstanding anything that may be to the contrary, the User undertakes to indemnify and at all times hereafter to keep each of BAKCUPBYTES and its Related Corporations (together with their respective officers, employees and agents) ( each an “Affected Party” ) indemnified against any and all losses, damages, actions, proceedings (whether such proceedings have been brought or are threatened to be brought), costs, claims, demands, liabilities (including full legal costs on a solicitor and client basis) which may be suffered or incurred by the Affected Party or asserted against the Affected Party by any person whatsoever, in respect of any matter or event whatsoever arising out of, in the course of, by reason of or in respect of :
(a) the User’s Content or any part thereof (including but not limited to any use or dealing by BAKCUPBYTES or its Related Corporations, its agents or subcontractors, of the User’s Content);
(b) the performance of the Service;
(c) a breach by the User of any of the provisions in the Contract (including these Terms & Conditions for Users), including but not limited to a breach of any of the warranties or undertakings in clause [8];
(d) any act or omission of the User or its employees, agents or sub-contractors; and
(e) the User’s Content, or any part thereof, infringing the Intellectual Property Rights or other rights of, or any claim that the User’s Content, or any part thereof, infringe, the Intellectual Property Rights of, any party, in any part of the world.
For the purposes of this clause, “claim” shall mean all demands, claims and liability (whether criminal or civil, in contract or tort or otherwise).
12. FORCE MAJEURE
12.1 Force Majeure means anything outside the reasonable control of a Party (other than in respect of payment obligations), including but not limited to, acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, labour dispute, labour shortage, power shortage or failure, server crashes, severance of the Internet submarine transmission cable under the sea that prevents or impedes the transmission of User submissions and data, emergency maintenance on the Service that is necessary to protect the Service in response to actual or reasonably anticipated acts or threats of terrorism (including internet terrorism involving but not limited to the release of new internet viruses and worms that are not in existence at the date of the Contract), deletion, corruption, loss or removal of data, transportation embargo, failure or delay in transportation, including without limitation where a Party ceases to be entitled to access the Internet or ceases to have access to the Internet for whatever reason, any act or omission (including laws, regulations, disapproval’s or failures to approve) of any government or government agency.
12.2 If a Party is wholly or partially precluded from complying with its obligations under the Contract by a Force Majeure event, then that Party’s obligation to perform in accordance with the Contract will be suspended for the duration of the Force Majeure event and that Party shall not be liable in any way whatsoever for its failure to perform for the duration of the Force Majeure event.
12.3 If such event continues for a period in excess of thirty (30) continuous days, then the Party whose performance is not prevented by such Force Majeure event shall be entitled at its sole discretion to terminate the Contract forthwith on notice in writing.
12.4 Except as otherwise expressly set out herein, termination of the Contract as aforesaid shall be without prejudice to the rights or liabilities of the Parties that have accrued prior to the date of termination.
13. TERMINATION
13.1 Either Party “Terminating Party” may terminate the Contract by providing written notice to the other Party where :
a) the Terminating Party provides not less than one (1) month’s prior written notice to the other Party (i.e termination without cause); or
b) the other Party breaches any of the terms and conditions of these Terms & Conditions for Users (or the Contract) and the Terminating Party has given fourteen (14) days’ notice of such breach and the other Party has failed to rectify such breach within that time.
13.2 BAKCUPBYTES may terminate the Contract and cancel the User’s account immediately where :
a) BAKCUPBYTES is of the opinion that the Service has been used by the User in any manner unacceptable to BAKCUPBYTES, and where BAKCUPBYTES has given fourteen (14) days’ notice of such breach and the User has failed to rectify such breach within that time;
b) the User has outstanding Charges or any other monies due and payable to BAKCUPBYTES, if any, which remain unpaid, and where BAKCUPBYTES has given fourteen (14) days’ notice of such breach and the User has failed to rectify such breach within that time;
c) BAKCUPBYTES is unable to provide the Service due to lack of reasonable operating capacity;
d) the User has been adjudged bankrupt or if a receiving order has been made against it, or if the User is insolvent or is in liquidation (whether voluntary or compulsory) or if the User has made compositions or arrangements with, or assignment for the benefit of, its creditors;
e) the User, in the case of a corporation, has a winding-up petition presented against it, or has a receiver or a receiver and manager or a judicial manager appointed;
f) the User, in the case of a corporation, has in BAKCUPBYTES’s reasonable opinion, ceased to carry on business;
g) the continued operation of the Service would in the opinion of BAKCUPBYTES (at its absolute discretion) be unlawful or be commercially non-viable to BAKCUPBYTES;
h) inBAKCUPBYTES’s reasonable opinion, the User attempted to use, is likely to use or has used the Service (whether with or without the authorisation and/or permission of BAKCUPBYTES) in contravention of any law; or
i) any material information provided or representation made by the User to BAKCUPBYTES is untrue, misleading or inaccurate and has an adverse material impact on BAKCUPBYTES in relation to its provision of the Service.
13.3 In the event that any governmental or regulatory authorities directs or instructs or gives guidance that BAKCUPBYTES should cease the Service, or the Service would cause BAKCUPBYTES to be in breach of any laws or regulatory requirements or guidance to which it is subject, BAKCUPBYTES shall be entitled to immediately terminate the Contract forthwith without entitling the User to receive any compensation in respect of the termination.
13.4 BAKCUPBYTES reserves the right to immediately suspend the Service and/or terminate the Contract if BAKCUPBYTES is unable to provide the Service or is unable to continue providing the Service due to a termination of the underlying licence or agreement permitting BAKCUPBYTES to use the software or system through which the Service is to be provided. BAKCUPBYTES shall not be liable to the User whatsoever and the User shall not be entitled to receive any compensation from BAKCUPBYTES, arising from such immediate termination.
13.5 Regardless of termination of the Contract for any reason, the User shall remain obligated to pay BAKCUPBYTES all Charges and any other sums that have accrued or are otherwise owed by the User to BAKCUPBYTES up to the date of termination, if any.
13.6 In the event of termination of the Contract due to any cause the User acknowledges that BAKCUPBYTES will upon termination of the Contract immediately cease providing the Service to that User and BAKCUPBYTES may at its absolute discretion delete all of the User’s Content.
13.7 Unless otherwise expressly stated, any termination by either Party of the Contract shall be without prejudice to any other rights or liabilities of either Party accrued prior to and including the date of termination.
13.8 Any termination or suspension of the Service by BAKCUPBYTES for whatever reasons shall not entitle the User to receive any compensation in respect of the termination. For the avoidance of doubt, notwithstanding termination of the Contract for any reason whatsoever (including where it is terminated by the User), Charges paid are not refundable to the User and the Charges shall be wholly retained by BAKCUPBYTES for BAKCUPBYTES’s absolute disposal and use.
13.9 Any termination of the Contract (howsoever occasioned) shall not affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination. Without limiting the generality of the foregoing, clauses [3, 6, 8, 9, 10, 11, 13.3 to 13.9, 16 and 17.10] of these Terms & Conditions for Users shall survive termination of the Contract.
14. MODIFICATIONS AND AMENDMENTS
14.1 BAKCUPBYTES reserves the right to amend or supplement these Terms & Conditions for Users from time to time, and the User shall be bound to observe and comply with any such amendments or supplements to these Terms & Conditions for Users upon their publication by BAKCUPBYTES (whether by posting on the Website or otherwise).
14.2 BAKCUPBYTES reserves the right, at its absolute sole discretion, to modify the Website and/or Service, including the Charge, at any time and without prior notice.
14.3 The User acknowledges and agrees that any continued access and utilization of the Website or Service after any such amendments or modifications shall be deemed to be an agreement by the User to be bound by the modified terms.
15. NOTICES
15.1 All notices, demands or other communications required or permitted to be given or made under or in connection with the Contract shall be in writing and shall be sufficiently given or made if :
a) if delivered by hand;
b) sent by pre-paid registered post; or
c) sent by legible facsimile transmission or by email (provided that there has been successful transmission), addressed to the intended recipient at its address or facsimile number or email address as may be notified to the other Party in writing from time to time.
15.2 Any such notice, demand, court process or communication shall be deemed to have been duly served if it is (i) delivered by hand or sent by pre-paid registered post, at the time of delivery; or (ii) if made by successfully transmitted facsimile or email transmission, at the time of dispatch.
16. GOVERNING LAW AND DISPUTE RESOLUTION
16.1 The Contract shall be subject to and construed in accordance with the laws of the Republic of Singapore.
16.2 Any dispute or controversy arising in connection with the Contract, which cannot be settled by mutual or amicable agreement shall be finally settled in accordance with the Rules of the Singapore International Arbitration Centre (“SIAC Rules”) by one arbitrator appointed in accordance with the SIAC Rules. The place of arbitration shall be Singapore. The arbitration shall be conducted in English. The decision and award resulting from such arbitration shall be final and binding on the Parties.
16.3 For the purpose of enforcing the Contract and notwithstanding clause 16.2, BAKCUPBYTES has absolute discretion to seek equitable relief from a court of competent jurisdiction, as it may choose, without first attempting to resolve a dispute under clause 16.2 and the User hereby submits to the jurisdiction of the court which BAKCUPBYTES may seek relief from under this subclause. For the avoidance of doubt, the right under this subclause is only extended to BAKCUPBYTES and not to the User.
17. MISCELLANEOUS
17.1 The waiver by a Party of a breach or default of any of the provisions of the Contract by the other Party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of a Party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other Party. A waiver has to be in writing to be effective.
17.2 The Contract shall be binding upon and enure for the benefit of the successors in title of the Parties hereto.
17.3 If any of the provisions of the Contract becomes invalid, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
17.4 The User shall not assign, transfer, charge or otherwise deal with the Contract or any obligation under the Contract, without the prior written consent of BAKCUPBYTES.
17.5 BAKCUPBYTES has the right to assign or transfer all or part of its rights, benefits and/or obligations under the Contract.
17.6 BAKCUPBYTES has the right to enter into any sub-contract for the performance of any of its obligations under the Contract without prior consent of the User.
17.7 A person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act (Cap 53B) to enforce any term of the Contract.
17.8 The relationship of the Parties shall be solely that of independent contractors. Nothing in the Contract shall be deemed to constitute, create or give effect to or otherwise recognise a joint venture, partnership or formal business entity of any kind, and the rights and obligations of the Parties shall be limited to those expressly set forth herein. Nothing herein contained shall be construed as authorising either Party to act as an agent or representative of the other Party.
17.9 The Contract (as may be amended from time to time pursuant to the terms hereof) shall constitute the entire understanding between the Parties hereto concerning the provision of the Service and supersedes and replaces any prior agreements and negotiations related to the subject matter herein.
17.10 The User hereby affirmatively consents to and authorises the use by BAKCUPBYTES in any manner and for any purpose whatsoever or to disclose to any person, any User’s information, including for the purposes of the sending of commercial messages to the User by BAKCUPBYTES and/or its partners. The provisions of this clause shall constitute a consent of the User for the purpose of the provisions of the Spam Control Act (Cap. 311A).
