Updated 3 February 2021
PLEASE READ THESE TERMS OF SERVICE CAREFULLY.
Our Terms of Service is a contract that governs our customers' use of the Pencil services.
1.1 Definitions: In these Terms, the following terms have the stated meaning:
Approved Idea: Advertising copy and/or visual concepts generated through the use of the SaaS Service by you that has been exported from the SaaS Service by you or approved by you.
Confidential Information: Any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, these Terms. Our Confidential Information includes Intellectual Property owned by us (or our licensors), including the Pencil Software. Your Confidential Information includes the Data.
Data: all data, content, and information (including Personal Data) owned, held, used or created by or on behalf of you that is stored using, or inputted into, the Services. The Data includes the Approved Ideas.
Fees: the applicable fees set out on our pricing page on the Website at https://www.trypencil.com/pricing, or agreed otherwise in writing between you and us in an Access Agreement, as may be updated from time to time in accordance with clause 8.4.
Force Majeure: an event that is beyond the reasonable control of a party, excluding:
Pilot Period Services: any Pilot Period services provided by us or set out in an Access Agreement.
Idea: advertising copy and/or a visual concepts generated through your use of the SaaS Service, and includes Approved Ideas.
Intellectual Property Rights: includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
Objectionable: includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
Pencil AI: our AI based on the Pencil Software and includes the Pencil AI as trained using the Data.
Pencil Software: the software owned by us (and our licensors) that is used to provide the SaaS Service.
Permitted Users: your personnel who are authorised to access and use the Services on your behalf in accordance with clause 4.3.
Personal Data: has the meaning given in the Personal Data Protection Act 2012 (Singapore).
Related Services: any related or further service that we agree to provide to you under an Access Agreement.
SaaS Service: the service is an AI platform that enables users to generate advertising copy and visuals. The SaaS Service is described in more detail on the Website, as the Website is updated from time to time.
Sales Tax: goods and services tax, value added tax, sales tax or equivalent tax payable under any applicable law.
Services: the SaaS Service, Pilot Period Services (if applicable) and any Related Service agreed between you and us under an Access Agreement.
Access Agreement: means an agreement between you and us setting out additional terms and conditions in relation to the SaaS Service, to be read in conjunction with these Terms.
Start Date: the date that you set up an account.
Terms: means these terms titled terms of service.
Underlying Systems: the Pencil AI, the Pencil Software, IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third party solutions, systems and networks.
We, us, or our means Pencil Technologies Pte. Ltd.
Website: the internet site at https://www.trypencil.com, or such other site notified to you by us.
Year: a 12 month period starting on the Start Date or the anniversary of that date.
You or your means you, or if clause 2.1b applies, both you and the other person on whose behalf you are acting.
1.2 Interpretation: In these Terms:
1.2.a. clause and other headings are for ease of reference only and do not affect the interpretation of these Terms;
1.2.b. words in the singular include the plural and vice versa; and
1.2.c. a reference to:
1.2.c.i. a party to these Terms includes that party’s permitted assigns;
1.2.c.ii. personnel includes officers, employees, contractors and agents, but a reference to your personnel does not include us;
1.2.c.iii. a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity;
1.2.c.iv. including and similar words do not imply any limit; and
1.2.c.v. $ and dollars is a reference to United States Dollars (USD) currency; and
1.2.d. a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them.
2. APPLICATION OF TERMS
2.1 These Terms apply to your use of the Service. By setting up an account:
2.1.a. you agree to these Terms; and
2.1.b. where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.
2.2 If you do not agree to these Terms, you are not authorised to use the Service, and you must immediately stop doing so.
2.3 We may change these Terms at any time by notifying you of the change by email or posting a notice on the Website. Unless stated otherwise, any change takes effect from the date set out in the notice. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the Service from the date on which the Terms are changed, you agree to be bound by the changed Terms.
2.4 These Terms were last updated on the date shown at the top of this web page.
3.1. General: We must use reasonable efforts to provide the Services:
3.1.a. in accordance with these Terms and Singapore law;
3.1.b. exercising reasonable care, skill and diligence; and
3.1.c. using suitably skilled, experienced and qualified personnel.
3.2 Non-exclusive: Our provision of the Services to you is non-exclusive. Nothing in these Terms prevents us from providing the Services to any other person.
3.3.a. Subject to clause 3.3b, we will use reasonable efforts to ensure the SaaS Service is available at all times. However, it is possible that on occasion the SaaS Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. We will use reasonable efforts to publish on the Website advance details of any unavailability.
3.3.b. Through the use of web services and APIs, the SaaS Service interoperates with a range of third party service features. We do not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make available that feature to you. To avoid doubt, if we exercise our right to cease the availability of a third party feature, you are not entitled to any refund, discount or other compensation.
3.4. Additional Related Services:
3.4.a. We may, from time to time, make available additional services to supplement the SaaS Service.
3.4.b. At your request and subject to you paying the applicable Fees (and any additional fee set out in a Access Agreement), we may agree to provide to you an additional Related Service in accordance with these Terms and as set out in an Access Agreement.
4. YOUR OBLIGATIONS
4.1. General use: You and your personnel must:
4.1.a. use the Services in accordance with these Terms solely for:
4.1.a.i. your own internal business purposes; and
4.1.a.ii. lawful purposes;
4.1.b. not resell or make available the Services to any third party, or otherwise commercially exploit the Services; and
4.1.c. not attempt to avoid the Fees by copying or screenshotting the Ideas.
4.2. Access conditions: When accessing the SaaS Service, you and your personnel must:
4.2.a. not impersonate another person or misrepresent authorisation to act on behalf of others or us;
4.2.b. correctly identify the sender of all electronic transmissions;
4.2.c. not attempt to undermine the security or integrity of the Underlying Systems;
4.2.d. not use, or misuse, the SaaS Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the SaaS Service;
4.2.e. not attempt to view, access or copy any material or data other than:
4.2.e.i. that which you are authorised to access; and
4.2.e.ii. to the extent necessary for you and your personnel to use the SaaS Service in accordance with these Terms;
4.2.f. neither use the SaaS Service in a manner, nor transmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading; and
4.2.g. comply with any terms of service on the Website, as updated from time to time by us.
4.3.a. Without limiting clause 4.2, no individual other than a Permitted User may access or use the SaaS Service.
4.3.b. You may authorise any member of your personnel to be a Permitted User, in which case you will provide us with the Permitted User’s name and other information that we reasonably require in relation to the Permitted User.
4.3.c. You must procure each Permitted User’s compliance with clauses 4.1and 4.2 and any other reasonable condition notified by us to you.
4.3.d. A breach of these Terms by your personnel (including, to avoid doubt, a Permitted User) is deemed to be a breach of the Terms by you.
4.4. Authorisations: You are responsible for procuring all licences, authorisations and consents required for you and your personnel to use the Services, including to use, store and input Data into, and process and distribute Data through, the Services.
5.1 Our access to Data:
5.1.a. You acknowledge that:
5.1.a.i. we may require access to the Data to exercise our rights and perform our obligations under these Terms, including to train the Pencil AI; and
5.1.a.ii. to the extent that this is necessary but subject to clause 10, we may authorise a member or members of our personnel to access the Data for this purpose.
5.1.b. You must arrange all consents and approvals that are necessary for us to access the Data as described in clause 5.1a.
5.2 Analytical Data: You acknowledge and agree that:
5.2.a. we may:
5.2.a.i. use Data and information about your and the your end users’ use of the Services to generate anonymised and aggregated statistical and analytical data (Analytical Data); and
5.2.a.ii. use Analytical Data for our internal research and product development purposes and to conduct statistical analysis and identify trends and insights; and
5.2.a.iii. supply Analytical Data to third parties;
5.2.b. our rights under clause 5.2a above will survive termination of these Terms; and
5.2.c. title to, and all Intellectual Property Rights in, Analytical Data is and remains our property.
5.3.a. You acknowledge and agree that to the extent Data contains Personal Data, in collecting, holding and processing that information through the Services, we are acting as your agent for the purposes of applicable privacy law.
5.3.b. You must obtain all necessary consents from the relevant individual to enable us to collect, use, hold and process that information in accordance with these Terms.
5.4. Backups of Data: While we will take standard industry measures to back up all Data stored using the Services, you agree to keep a separate back-up copy of all Data uploaded by you onto the SaaS Service.
5.5. Indemnity: You indemnify us against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by our solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Data (including any Approved Idea) infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data (including any Approved Idea) is Objectionable, incorrect or misleading.
6. PILOT PERIOD
6.1. Pilot Period: Where you have elected to access and use the SaaS Service for a Pilot Period, then these Terms apply except to the extent varied in this clause 6.
6.2. Limited Period: We will provide the SaaS Service to you for a Pilot Period of 3 months from the Start Date (Pilot Period), you are entitled to one Pilot Period in any Year.
6.3. As is basis: The SaaS Service is provided to you during the Pilot Period on an as is basis, and, despite any other provision in these Terms, all other conditions, warranties, guarantees and indemnities in relation to the SaaS Service are excluded by us to the fullest extent permitted by law.
6.4. Fees: Fees are payable for your access and use of the SaaS Service during the 3 month Pilot Period and for the entire 3 month Pilot Period. Unless you terminate these Terms and the Pilot Period in accordance with clause 13.1b, you will automatically roll-over into the remainder of your annual subscription to the SaaS Service following expiry of the Pilot Period.
6.5. No obligation: Nothing in these Terms imposes any obligation:
6.5.a. on you, at the termination of the Pilot Period, to sign up to any other service provided by us; or
6.5.b. on us:
6.5.b.i. at the termination or expiry of the Pilot Period, to provide the the SaaS Service or any other service to you; or
6.5.b.ii. to maintain any feature or part of the SaaS Service in any version of the SaaS Service or any other service.
7. REFERRAL PROGRAMME
7.1. Referral Programme: From time to time, we may offer you the opportunity to earn credit by referring friends to our SaaS Service. Your participation in our referral programme (Referral Programme) can earn you credit to be redeemed from your next invoice for the SaaS Service (Credit). If you participate in our Referral Programme then this clause 7 applies.
7.2. Eligibility criteria: The Referral Programme is open to you (Referrer) when you refer new customers to the SaaS Service (Referee) and when you meet the following eligibility criteria:
7.2.a. the Referrer must be a registered user of the SaaS Service;
7.2.b. the Referee must be a new user and must not have been an existing registered user of the SaaS Service in the previous 12 months (whether by Pilot Period or otherwise);
7.2.c. the Referee must consent to having their email address provided to us for the purpose of the Referral Programme before the date of referral by the Referrer and so that we can provide marketing material;
7.2.d. a Referee can only be referred to us once. If a Referee is referred to us more than once, we will provide the Credit to the Referrer whose referral email was used to complete the registration process by the Referee regardless of when the referrals were made; and
7.2.e. employees, contractors and temporary workers working for us are not eligible to participate in the Referral Programme.
7.2.f. the Referrer cannot participate where in so doing, they would violate any applicable law or regulations;
7.3. How it works: To participate, log-in to your Pencil account, click on "Refer a Friend" in the top-right menu and enter the Referee’s email address in the on-screen pop up. The Referee will be sent an email to the address you provide containing a link to follow to set up their own account to access the SaaS Service. If they successfully follow that link, create an account and become a paying customer, you will automatically receive the Credit which will be applied directly to your next invoice(s) for the SaaS Service. Once the Referee has followed the link to create an account and accepted these Terms, as well as entered their payment details and become a paying customer, they will also receive the Credit to be redeemed from their next invoice(s).
7.4. Use of Credit: Credit can only be used as a credit for part of the amount owing (as set out on your invoice) for the SaaS Service and may not be redeemed for cash, traded, auctioned or sold. Credit has no monetary value.
7.5. Referrer’s conduct: Referrers must not to use the Referral Programme to:
7.5.a. spam or create bulk distributions of referrals;
7.5.b. collect or attempt to collect personal data about potentialReferees for their own business purposes; and
7.5.c. engage in any action that is designed to disrupt or undermine the Referral Programme;
7.6. Right to terminate: We may cancel Credit or suspend or terminate your access to the SaaS Service if you breach these Terms, the referral process or the Referral Programme in any way. Referrals generated by a script, macro, or other automated means will be disqualified. We reserve the right to discontinue or suspend the Referral Programme at any time for any reason.
8.1. Fees: You must pay us the Fees.
8.2. Invoicing and payment:
8.2.a. On the Start Date, we will provide you with valid Sales Tax invoices quarterly in advance for the Fees based on your selected subscription tier.
8.2.b. If during any month your usage exceeds your subscription tier, you will automatically be charged on a per unit basis as set out on our pricing page on our Website. The subsequent Sales Tax invoice will reflect any necessary adjustment to the Fees.
8.2.c. If during any month the number of Approved Ideas does not meet or exceed your subscription tier, the number of unused Approved Ideas will roll over to the following month and will expire at the end of that month.
8.2.d. The Fees exclude Sales Tax, which you must pay on taxable supplies under these Terms.
8.2.e. You must pay the Fees:
8.2.e.i. by credit card on your subscription renewal; or
8.2.e.ii. within 30 days of invoice if we offer you the option of paying the Fees by electronic bank transfer,
in cleared funds without any set off or deduction.
8.3. Overdue amounts: We may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by our primary trading bank as at the due date (or, if our primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.
8.4.a. We may change or increase the Fees at any time. If we have entered into an Access Agreement with you stipulating the fees over a period of time, then that Access Agreement will prevail.
9. INTELLECTUAL PROPERTY
9.1.a. Subject to clauses 9.1b and 9.1c, title to, and all Intellectual Property Rights in, the Services, the Website and all Underlying Systems (including the Pencil AI and the Pencil software, and including any improvements modifications, customisations and enhancements to that IP), is and remains our property (and our licensor’s property). You must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
9.1.b. Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains your property. You grant us a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with these Terms.
9.1.c. Title to, and all Intellectual Property Rights in, the Ideas (as between the parties) becomes your property on payment of the Fees for the Ideas in accordance with these Terms.
9.2. Know-how: To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable and perpetual licence to use for our own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us in the provision of the Services.
9.3. Feedback: If you provide us with ideas, comments or suggestions relating to the Services or Underlying Systems (together feedback):
9.3.a. all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and
9.3.b. we may use or disclose the feedback for any purpose.
9.4. Third party sites and material: You acknowledge that the SaaS Service may link to third party websites or feeds that are connected or relevant to the SaaS Service. Any link from the SaaS Service does not imply our endorsement, approval or recommendation of, or responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, we exclude all responsibility or liability for those websites or feeds.
9.5. Data Exchange: We may use anonymised and aggregated data and information generated by the Approved Idea’s performance as advertisements (Pooled Data) for the purpose of improving the Pencil Software, Pencil AI and the Services, and to enable us to enhance the Pencil AI’s accuracy and your user experience. We may integrate that Pooled Data with other user’s Pooled Data for this purpose (Exchanged Data). If you do not want the Pooled Data to be used for this purpose in conjunction with the Exchanged Data, you may opt at any time by emailing us at email@example.com.
10.1. Security: Each party must, unless it has the prior written consent of the other party:
10.1.a. keep confidential at all times the Confidential Information of the other party;
10.1.b. effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
10.1.c. disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, the provisions of clauses 10.1a and 10.1b.
10.2 Permitted disclosure: The obligation of confidentiality in clause 10.1 does not apply to any disclosure or use of Confidential Information:
10.2.a. for the purpose of performing a party’s obligations, or exercising a party’s rights, under these Terms;
10.2.b. required by law (including under the rules of any stock exchange);
10.2.c. which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
10.2.d. which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or
10.2.e. by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than this clause 10.
10.3. Publicity: Despite clauses 10.1 and 10.2, each party can use the other party’s brand name for publicity purposes (subject to that party’s prior written consent, not to be unreasonably withheld or delayed).
11.1. Mutual warranties: Each party warrants that it has full power and authority to enter into and perform its obligations under these Terms.
11.2. No implied warranties: To the maximum extent permitted by law:
11.2.a. Our warranties are limited to those set out in these Terms, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to SGD1,000.00; and
11.2.b. we make no representation concerning the quality of the Services and do not promise that the Services will:
11.2.b.i. meet your requirements or be suitable for a particular purpose; or
11.2.b.ii. be secure, free of viruses or other harmful code, uninterrupted or error free.
11.3. Consumer Protection: You agree and represent that you are acquiring the Services, and accepting these Terms, for the purposes of trade. The parties agree that:
11.3.a. to the maximum extent permissible by law, any applicable consumer protection legislation does not apply to the supply of the Services or these Terms; and
11.3.b. it is fair and reasonable that the parties are bound by this clause 11.3.
11.4. Limitation of remedies: Where legislation or rule of law implies into these Terms a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in these Terms. However, our liability for any breach of that condition or warranty is limited, at our option, to:
11.4.a. supplying the Services again; and/or
11.4.b. paying the costs of having the Services supplied again.
12.1. Maximum liability: Our maximum aggregate liability under or in connection with these Terms or relating to the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any Year exceed the an amount equal to the Fees paid by you relating to the Services in the previous Year (which in the first Year is deemed to be the total Fees paid by you from the Start Date to the date of the first event giving rise to liability). The cap in this clause 12.1 includes the cap set out in clause 11.2a.
12.2. Unrecoverable loss: Neither party is liable to the other under or in connection with these Terms or the Services for any:
12.2.a. loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or
12.2.b. consequential, indirect, incidental or special damage or loss of any kind.
12.3. Unlimited liability:
12.3.a. Clauses 12.1 and 12.2 do not apply to limit our liability under or in connection with these Terms for:
12.3.a.i. personal injury or death;
12.3.a.ii. fraud or wilful misconduct; or
12.3.a.iii. a breach of clause 10.
12.3.b. Clause 12.2 does not apply to limit your liability:
12.3.b.i. to pay the Fees;
12.3.b.ii. under the indemnity in clause 5.5; or
12.3.b.iii. for those matters stated in clause 12.3a.
12.4. No liability for other’s failure: Neither party will be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under these Terms, or by the negligence or misconduct of the other party or its personnel.
12.5. Mitigation: Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with these Terms.
13. TERM, TERMINATION AND SUSPENSION
13.1. Duration: Unless terminated under this clause 13, these Terms and your right to access the SaaS Service starts on the Start Date and continues until:
13.1.a. we give at least 30 days’ notice that these Terms and your access to and use of the SaaS Service will terminate on the expiry of that notice; or
13.1.b. you terminate these Terms by giving notice via the SaaS Service, in which case your access to and use of the SaaS Service will terminate at the expiry of your subscription term.
13.2. Termination rights: Either party may, by notice to the other party, immediately terminate these Terms if the other party:
13.2.a. breaches any material provision of these Terms and the breach is not:
13.2.a.i. remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or
13.2.a.ii. capable of being remedied;
13.2.b. becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or
13.2.c. is unable to perform a material obligation under these Terms for 30 days or more due to Force Majeure.
13.3. Our termination rights: We may, by notice to you, immediately terminate these Terms if you (in our opinion, acting reasonably), fraudulently or wilfully misuse the SaaS Service or the Ideas, including:
13.3.a. generating excessive amounts of Ideas, but minimal Approved Ideas,
13.3.b. attempting to create a duplicate service or database of Ideas; or
13.3.c. scaping, harvesting, data mining or using similar data extraction methods.
13.4. Consequences of termination:
13.4.a. Termination of these Terms does not affect either party’s rights and obligations that accrued before that termination.
13.4.b. On termination of these Terms, you must pay all Fees for Services provided prior to that termination.
13.4.c. No compensation is payable by us to you as a result of termination of these Terms for whatever reason, and you will not be entitled to a refund of any Fees that you have paid.
13.4.d. Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination of these Terms and subject to clause 13.4e, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.
13.4.e. At any time prior to one month after the date of termination, you may request:
13.4.e.i. a copy of any Data stored using the SaaS Service, provided that you pay our reasonable costs of providing that copy. On receipt of that request, we must provide a copy of the Data in a common electronic form. We do not warrant that the format of the Data will be compatible with any software; and/or
13.4.e.ii. deletion of the Data stored using the SaaS Service, in which case we must use reasonable efforts to promptly delete that Data.
To avoid doubt, we are not required to comply with clause 13.4.e.i to the extent that you previously requested deletion of the Data.
13.5. Obligations continuing: Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 5.5, 9, 10, 12, 13.4, and 15.10, continue in force.
13.6. Rights to restrict: Without limiting any other right or remedy available to us, we may restrict or suspend your access to the SaaS Service and/or delete, edit or remove the relevant Data if we consider that you (including any of your personnel) have:
13.6.a. undermined, or attempted to undermine, the security or integrity of the SaaS Service or any Underlying Systems;
13.6.b. used, or attempted to use, the SaaS Service:
13.6.b.i. for improper purposes; or
13.6.b.ii. in a manner, other than for normal operational purposes, that materially reduces the operational performance of the SaaS Service;
13.6.c. transmitted, inputted or stored any Data that breaches or may breach these Terms or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or
13.6.d. otherwise materially breached these Terms.
13.7.a. We must notify you where we restrict or suspend your access, or delete, edit or remove Data, under clause 13.6.
13.7.b Clause 13.4.e.i. will not apply to the extent that it relates to Data deleted or removed under clause 13.6.
14.1. Good faith negotiations: Before taking any court action, a party must use best efforts to resolve any dispute under, or in connection with, these Terms through good faith negotiations.
14.2. Obligations continue: Each party must, to the extent possible, continue to perform its obligations under these Terms even if there is a dispute.
14.3. Right to seek relief: This clause 14 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.
15.1. Force Majeure: Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure, provided that the affected party:
15.1.a. immediately notifies the other party and provides full information about the Force Majeure;
15.1.b. uses best efforts to overcome the Force Majeure; and
15.1.c. continues to perform its obligations to the extent practicable.
15.2. Rights of third parties: No person other than you and us has any right to a benefit under, or to enforce, these Terms.
15.3. Waiver: To waive a right under these Terms, that waiver must be in writing and signed by the waiving party.
15.4. Independent contractor: Subject to clause 5.3, we are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms.
15.5. Notices: If we need to contact you, we may do so by email or by posting a notice on the Website. You agree that this satisfies all legal requirements in relation to written communications. You may give notice to us under or in connection with these Terms by emailing firstname.lastname@example.org.
15.6.a. If any provision of these Terms is, or becomes, illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity.
15.6.b. If modification under clause 15.6a is not possible, the provision must be treated for all purposes as severed from these Terms without affecting the legality, enforceability or validity of the remaining provisions of these Terms.
15.7. Variation: Subject to clauses 2.3 and 8.4, any variation to these Terms must be in writing and signed by both parties.
15.8. Entire agreement: These Terms set out everything agreed by the parties relating to the Services, and supersedes and cancels anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the subject matter of these Terms that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the Start Date.
15.9. Subcontracting and assignment:
15.9.a. You may not assign, novate, subcontract or transfer any right or obligation under these Terms without our prior written consent, that consent not to be unreasonably withheld. You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer. Any assignment, novation, subcontracting or transfer must be in writing.
15.9.b. Any change of control is deemed to be an assignment for which our prior written consent is required under clause 15.9a. In this clause change of control means any transfer of shares or other arrangement affecting you or any member of your group which results in a change in the effective control.
15.10. Law: These Terms are governed by, and must be interpreted in accordance with, the laws of Singapore. Each party submits to the non-exclusive jurisdiction of the Courts of Singapore in relation to any dispute connected with these Terms.
Pencil Technologies Pte. Ltd.
#02-00, 15 Beach Road