1. Terms of Service
These Terms of Service, each Supplement and each Proposal together set out the entire agreement between Auptimate Technologies Pte. Ltd. (“we“, “us” and “our“) and you for the provision of the Services. Your use of the Services is deemed and constitutes your acceptance of the Terms. See section 24 for guidance on interpreting the Terms.
2. Our appointment
2. 1 Engagement. With effect from the Effective Date, you engage us to provide the Services in accordance with these Terms of Service, the relevant Supplement and the relevant Proposal.
2.2 Type of service. Our Services are either one-time (i.e. not recurring) or subscription-based (i.e. recurring until terminated) and this will be stated in the relevant Supplement and/or the relevant Proposal. For a one-time service, you will need to separately engage us to perform that service on each occasion. For a subscription-based service, we will provide you with that service until it is terminated.
2.3 Duties. Our duties and authority to act under the Terms are limited to the duties and authority provided for in the Terms. We will not otherwise be deemed to assume any other obligations to you.
3. Our services
We will perform the Services for you in accordance with the Terms and your instructions.
4. Our fees
4.1 Written agreement. We will be entitled to receive such fees as are agreed with you in writing (including by email) for the provision of the Services to you, payable within 14 days of the date of the applicable invoice.
4.2 Changes to fees. For a one-time service, our fee may be increased by us from time to time by agreement in writing with you. For a subscription-based service, our fee may be increased by us from time to time by not less than 60 days’ written notice to you.
4.3 Recoverable expenses. We will be entitled to recover from you all expenses and disbursements (including, but not limited to, charges for photocopying, fax, telephone, printing, postage and other communications charges, as well as for any banking costs and the fees or charges of any government or official department, body or organisation, and any other similar expenses, costs, fees or charges) paid by us on your behalf in connection with the performance of the Services.
4.4 Advanced payment. If you request us to take any action in the course of providing the Services which, in our opinion, may make us liable for the payment of money on your behalf, then you will advance the money necessary to make such payment on your behalf as a pre-requisite to us taking that action.
4.5 Late payment. Late payments may bear interest at the rate of 2% per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. You will be responsible for all reasonable expenses (including legal fees) incurred by us in collecting such overdue amounts. If your payment for the Services is overdue, we may suspend the Services.
5. Your instructions
In performing the Services, we will rely on instructions given by you, or purporting to be given by you, including by any of your directors, officers or authorised signatories or by your legal adviser or other professional service provider, without requiring any independent enquiry by us. You agree to provide us with any information we may request in connection with our performance of the Services.
6. Our promises
We represent and warrant to you that:
(a) we are duly incorporated under the laws of Singapore and have and will at all times have the necessary power to enter into and perform our obligations under the Terms;
(b) the Terms constitute our legal, binding and enforceable obligations;
(c) the delivery, observance and performance by us of the Terms will not result in any violation of any law, statute, ordinance, rule or regulation applicable to us; and
(d) we have obtained all the necessary authorisations and consents to enable us to enter into the Terms and the necessary authorisation and consents will remain in full force and effect at all times during the term of the Terms.
7. Your promises
7.1 Representations and warranties. You represent and warrant to us that:
(a) you are duly incorporated and in good standing under the laws of your place of incorporation and have and will at all times have the necessary power to enter into and perform your obligations under the Terms;
(b) the Terms constitute your legal, binding and enforceable obligation;
(c) the delivery, observance and performance by you of the Terms will not result in any violation of any law, statute, ordinance, rule or regulation applicable to you; and
(d) you have obtained all the necessary authorisations and consents to enable you to enter into the Terms and the necessary authorisation and consents will remain in full force and effect at all times during the term of the Terms.
7.2 Covenants and undertakings. You covenant with and undertake to us that you will not use or permit the use of our name in any document, publication or publicity material relating to the you (including, but not limited to notices, circulars, promotional and sales literature, advertisements or stationery) without our prior written consent.
8. Responsibility and liability
8.1 Limitation of liability. No Indemnified Person will be liable to:
(b) any of your shareholders or former shareholders; or
(c) any other person,
(each, a “Relevant Person“) for any damage, loss, claims, proceedings, demands, liabilities, costs or expenses whatsoever suffered or incurred by a Relevant Person at any time from any cause whatsoever unless arising directly as a result of the Indemnified Person’s fraud, gross negligence or wilful default. The remaining provisions of this section 8 will not be construed so as to limit the generality of this clause 8.1.
8.2 Indirect losses. We will not be liable for:
(a) any consequential, indirect or special loss or damage;
(b) any economic losses (including loss of revenues, profits, contracts, business or anticipated savings); or
(c) any loss of goodwill or reputation,
arising out of or in connection with the Terms, in each case whether or not we have been advised of the possibility of such loss or damage and howsoever incurred.
8.3 Reliance on instructions. We will be entitled for all purposes to rely, without further enquiry, on the authenticity and accuracy of all information and communications (including by facsimile and email) of whatever nature received by us in good faith in connection with the performance of the Services.
8.4 Lack of cooperation. We will not be responsible for any failure to perform the Services to the extent such failure is a result of you failing or refusing to provide us with all information required or requested by us in connection with the Services in a timely manner.
8.5 No legal action. We will not be required to take any legal action (including the institution or defence of any proceedings) on your behalf.
8.6 Scope of responsibilities. Notwithstanding any other provision of the Terms, we will not be responsible for the performance of any other function carried out by you or your investment manager, administrator or custodian (as applicable), or any other service provider on your behalf.
8.7 Monetary limit. Unless caused by their fraud, gross negligence or wilful default, the maximum aggregate liability of all Indemnified Persons in connection of the performance of the Services for you under the Terms will be limited to an amount not exceeding the fees paid by you or on your behalf to us for the Services performed for you in the twelve month period prior to:
(a) the final non-appealable determination of liability by a Singapore court; or
(b) the termination of the Terms,
whichever is greater.
8.8 Survival of section. The provisions of this section 8 will survive the termination of the Terms.
9.1 Our indemnity from you. You agree to indemnify and hold harmless the Indemnified Persons against all liabilities, obligations, losses, damages, penalties, actions, proceedings, claims, judgments, demands, costs, expenses or disbursements of any kind (including legal fees and expenses) whatsoever (an “Indemnified Loss“) which they or any of them may incur or be subject to over any claim or matter:
(a) arising under or in connection with the Terms;
(b) as a result of the performance of the Terms;
(c) as a result of the performance of the Services; and/or
(d) arising out of, or in connection with, any delay or failure by you to perform your obligations under the Terms,
except to the extent that the same are a result of the fraud, gross negligence or wilful default of the relevant Indemnified Person and this indemnity will expressly inure to the benefit of any such Indemnified Person existing or future.
9.2 Defence costs. An Indemnified Person will be entitled to receive regular advances from you to cover the cost of defending an Indemnified Loss provided that the Indemnified Person enters into a written agreement that all such advances will be repaid to you (without interest) if a Singapore court has reached a final non-appealable determination that the Indemnified Person is not entitled to the indemnity under clause 9.1.
9.3 Repayment of defence costs. If an Indemnified Person is found to have committed fraud, gross negligence or wilful default all advances made pursuant to clause 9.2 will be reimbursed to you.
9.4 Survival of section. The provisions of this section 9 will survive the termination of the Terms.
10. Delegation of Services
10.1 Our authority to delegate. We are entitled to appoint such agents, nominees and delegates as we see fit to perform in whole or in part any of the Services. The fees and other remuneration of any such agents, nominees or delegates will (unless specifically agreed otherwise) be paid by us out of our own fees received pursuant to the Terms.
10.2 Our responsibility for delegation. Where we have delegated or sub-contracted Services to a Group member or an Affiliate, we will remain liable for any loss caused by such Group member or Affiliate but only to the extent that we would have been liable for such loss under the Terms if such loss were caused by us. Subject to the terms of the relevant Supplement, we will not be liable for any loss occasioned by any non-affiliated agent or delegate appointed pursuant to the Terms provided that we have exercised reasonable skill and care in the selection of that agent or delegate and will not be liable for any loss occasioned by reason only of the bankruptcy or insolvency of any non-affiliated agent or delegate.
11. No advice
You acknowledge and agree that we are not responsible for:
(a) any commercial structuring of you or your business, your investment strategy or your objectives; or
(b) the rendering of investment, commercial, legal, accounting, tax or any other advice whatsoever to you or any other person.
12. Confidential Information
12.1 Duty of confidentiality. Each party must, at all times, treat as confidential and not disclose to any other person the Confidential Information, save where it is or was:
(a) already known to the Receiving Party;
(b) in the public domain or becomes public knowledge otherwise than as a result of the unauthorised or improper conduct of the Receiving Party;
(c) disclosed as required by any law or order of any court, tribunal or judicial equivalent, or pursuant to any direction, request or requirement (whether or not having the force of law) of any central bank, governmental, supervisory or other regulatory agency or taxation authority;
(d) disclosed for business purposes to Affiliates, professional advisors, service providers or agents, engaged by the party, who receive the same under a duty of confidentiality;
(e) disclosed by us to a Group member or an Affiliate for risk management and regulatory purposes;
(f) made available by a third party who is or was entitled to divulge such information and who is not under any obligation of confidentiality in respect of such information; or
(g) disclosed with the consent of the Disclosing Party.
12.2 Permission to disclose. Each party must ensure that any Confidential Information relating to any principals, Affiliates, shareholders, directors, officers, employees and agents of the Disclosing Party is and has been provided with its or their consent which the Disclosing Party will be responsible for obtaining.
13. Electronic communication
We may communicate by email in providing the Services. Email communication is not secure and can be subject to possible delay, data corruption, interception, amendment or loss. You accept the inherent risks of communicating by email including the possible unauthorised interception, redirection, copying or review of emails and attachments and the transmission of viruses. The use of email by us to communicate and transmit information will not in and of itself constitute a breach of our confidentiality obligations under the Terms. This section 13 will survive the termination of the Terms.
14.1 Our other customers. We may provide similar services to any other person on such terms as may be arranged with such person, provided that the provision of the Services is not thereby impaired.
14.2 Customer separation. When providing similar services to other persons:
(a) we may retain for our own use and benefit fees or other money payable thereby; and
(b) we will be deemed not to be affected with notice of, nor be under any duty to disclose to you, any fact or thing which may come to our knowledge (or to the knowledge of any of our employees or agents) in the course of so doing or in the course of our business in any other capacity or in any manner whatsoever, otherwise than in the course of carrying out the Services.
14.3 Acquisition of securities. We may acquire, hold or deal with for our own account or the account of any customer or other person either in our own name or in the name of such customer or person or of a nominee any shares or securities for the time being issued by you or any investment in which you are authorised to invest and will not be required to account to you for any profit arising from such acquisition, holding or dealing.
15. No relationship
Nothing in the Terms constitutes a partnership between us and you. Our directors, officers, employees and/or agents will not be deemed to be your employees or entitled to any remuneration or other benefits from you.
16. Force Majeure
16.1 Definition. In the Terms, the expression “Force Majeure” means each (or combinations) of the following causes affecting the performance by a party of its obligations under the Terms:
(a) act of God, explosion, fire, accident, lightning, tempest, hurricane, flood, fog or bad weather;
(b) outbreak of war, hostilities, riot, civil disturbance, act of terrorism;
(c) pandemic, epidemic, disease, outbreak, communal medical event, quarantine, shelter in place order, or similar occurrence;
(d) strikes and labour disputes of all kinds (other than strikes or labour disputes of the party claiming the Force Majeure event);
(e) compliance with any law or governmental order; and
(f) any cause or circumstances whatsoever beyond the reasonable control of the party seeking to rely on the delay.
16.2 Notice of force majeure. If either party is prevented or delayed in the performance of any of its obligations under the Terms by any of the events in clause 16.1, that party must as soon as practicable serve notice in writing on the other party, specifying the nature and extent of the circumstances giving rise to Force Majeure, and will subject to service of such notice and to clause 16.4 have no liability in respect of the performance of such of its obligations as are prevented by the Force Majeure events during the continuation of such events, and for such time after they cease as is necessary for that party, using all reasonable endeavours to recommence its affected operations in order for it to perform its obligations.
16.3 Extended force majeure. If either party is prevented from performing its obligations for a continuous period in excess of 3 months, either party may terminate the Terms immediately on service of written notice upon the party so prevented, in which case neither party will have any liability to the other except that rights and liabilities which accrued prior to such termination will continue to subsist (save that the provisions of sections 8, 9 and 12 will remain in force).
16.4 Obligation to resolve force majeure. The party claiming to be prevented or delayed in the performance of any of its obligations under the Terms by reason of Force Majeure must use reasonable endeavours to bring the Force Majeure event to a close or to find a solution by which the Terms may be performed despite the continuance of the Force Majeure event.
17.1 One-time services. Where a Service is specified in the relevant Supplement or Proposal as being a one-time service (i.e. not recurring), it will automatically terminate and will be considered to be performed in full by us upon the time or action stated in the relevant Supplement or Proposal.
17.2 Subscription-based services. Where a Service is specified in the relevant Supplement or Proposal as being a subscription-based service (i.e. recurring), it will continue to be performed by us until terminated in accordance with this section 17 or as otherwise stated in the relevant Supplement or Proposal.
17.3 General termination right. Either party may terminate the Terms by giving not less than 60 days’ written notice to the other party.
17.4 No waiver. Any termination of the Terms howsoever occasioned will be without prejudice to any other rights or remedies to which a party may be entitled under the Terms or at law and will not affect any accrued rights nor liabilities of either party (including, without limitation, your obligation to make payment to us for any Services supplied prior to the termination taking effect) nor the coming into or 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.
17.5 Outstanding fees. On the termination of the Terms, we will be entitled without prejudice to our other rights under the Terms to receive all fees and other moneys accrued due up to the date of such termination.
18.1 Method of service. Any notice or other communication given under the Terms must be in writing and signed by or on behalf of the party giving it and must be served by:
(a) delivering it personally;
(b) sending it by pre-paid recorded delivery or registered post (or registered airmail in the case of an address for service outside Singapore); or
(c) fax or email,
to the address and for the attention of the relevant party:
(i) for us, as set out in clause 18.3; and
(ii) for you, as set out in the Proposal,
or such other address or facsimile number or email address as may be notified by a party to the other party in writing from time to time.
18.2 Timing of delivery. Any notice will be deemed to have been received:
(a) if delivered personally, at the time of delivery;
(b) in the case of pre-paid recorded delivery or registered post, 48 hours from the date of posting;
(c) in the case of registered airmail, 5 days from the date of posting;
(d) in the case of fax, at the time of transmission; and
(e) in the case of email, at the time of receipt which means at the time the email enters the receiving party’s information processing system,
(i) if deemed receipt occurs before 9.00 a.m. on a Business Day, the notice will be deemed to have been received at 9.00 a.m. on that day; and
(ii) if deemed receipt occurs after 5.00 p.m. on a Business Day, or on a day which is not a Business Day, the notice will be deemed to have been received at 9.00 a.m. on the next Business Day.
18.3 Our contact details. Notices to us must be sent to the following:
Company: Auptimate Technologies Pte. Ltd.
Address: c/o 68 Circular Road, #02-01, Singapore 179097
For the attention of: The Board
Email address: firstname.lastname@example.org
18.4 Proof of delivery. In providing such service of a notice it will be sufficient to prove that the envelope containing such notice was addressed to the address of the relevant party set out in the Terms (or as otherwise notified by that party under the Terms) and delivered either to that address or into the custody of the postal authorities as a pre-paid recorded delivery, registered post or airmail letter, or that the notice was transmitted by fax to the fax number of the relevant party set out in the Terms (or as otherwise notified by that party under the Terms), or any email to the email address of the relevant party set out in the Terms.
19. Data protection
19.1 Personal data. Where we obtain any information which constitutes ‘personal data’ (as defined in section 2(1) of the PDPA) in connection with the Services, and more generally through our relationship with you, we will act as an ‘organisation’ as opposed to a ‘data intermediary’ (as defined in section 2(1) of PDPA) in respect of such information and you acknowledge that we may process such information in accordance with data protection laws applicable to us (including PDPA) and our data protection notice (which is available at here or upon request).
19.2 Data intermediaries. You grant us:
(a) a specific authorisation to appoint Amazon Web Services Singapore Pte. Ltd., Google Asia Pacific Pte. Ltd. and Microsoft Operations Pte. Ltd. and their respective Affiliates as data intermediaries in connection with our performance of the Services; and
(b) a general authorisation to appoint additional or replacement data intermediaries for our performance of the Services, provided that we:
(i) appoint each data intermediary under a written contract enforceable by us that ensures a comparable standard of protection for personal data as under the PDPA;
(ii) ensure each such data intermediary complies with such contract; and
(iii) remain fully liable for all the acts and omissions of each data intermediary as if they were our own.
19.3 EU General Data Protection Regulation. Where you are directly subject to Regulation (EU) 2016/679 of 27 April 2016 (“GDPR“) due to Article 3(2)(a) of the GDPR and we are required to process any of your personal data which is subject to the GDPR, or alternatively, where you require us to process your personal data which you indirectly source from an affiliate of yours or a relevant third party domiciled in the European Economic Area, you may request that we enter into the EU standard contractual clauses (“EU SCC“) with you:
(a) in the form set out in Commission Implementing Decision (EU) 2021/914; and/or
(b) in such other form as the European Commission may adopt from time to time pursuant to Article 46 of the GDPR,
but only if and to the extent we are unable to rely on Article 45 or Article 49 of the GDPR in making the personal data available to us. We will not unreasonably refuse your request that we enter into an EU SCC.
20.1 No transfer. Save as permitted by clause 20.2 and our ability to appoint agents, nominees and delegates under clause 10.1, neither party may assign, sub-contract, sub-licence, novate or otherwise transfer any rights or obligations under the Terms or any part thereof (except in connection with the sale or transfer of all, or substantially the whole, of its assets) without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.
20.2 Permitted transfers. We may:
(a) assign, transfer or novate the Terms to any other entity within the Group or our Affiliate; or
(b) at our reasonable discretion, and upon reasonable prior written notice to you, assign, transfer, novate or deal in any other manner with all or any of our rights under the Terms or any part thereof to a third party.
21. Third party rights
21.1 No third party rights. A person who is not a party to the Terms may not, in its own right or otherwise, enforce any term of the Terms except as stated in clause 21.2.
21.2 Indemnified Persons may enforce. The Indemnified Persons may, in their own right, enforce their rights pursuant to sections 8 and 9 of these Terms of Service subject to and in accordance with the provisions of the Contracts (Rights of Third Parties) Act 2001.
21.3 No third party consent. Notwithstanding any other term of the Terms, the consent of any person who is not a party to the Terms (including, without limitation, any Indemnified Person) is not required for any amendment to, or variation, release, rescission or termination of the Terms.
21.4 Survival of section. The provisions of this section 21 will survive the termination of the Terms.
If any provision in the Terms is determined to be void or unenforceable in whole or in part for any reason whatsoever such invalidity or unenforceability will not affect the remaining provisions or any part thereof contained within the Terms and such void or unenforceable provisions will be deemed to be severable from any other provision or part thereof herein contained.
23. Entire agreement
The Terms supersede all previous agreements between us and you for the provision of the Services. The Terms set out the entire agreement and understanding between the parties with respect to its subject matter.
24.1 Definitions. In the Terms, the following capitalised words have the following meanings:
in relation to any person or entity, any other person or entity that controls, is controlled by or is under common control with such person or entity.
any day which is not a Saturday, a Sunday or a public holiday on which banks are open for non-automated business in the place at or which a notice is left or sent.
all information disclosed (whether in written or other form) in confidence or which by its nature ought to be regarded as confidential by or on behalf of a party (the “Disclosing Party“) to another party (the “Receiving Party“), including any business information which is not directly applicable or relevant to the arrangements contemplated by the Terms.
has the meaning specified in the relevant Supplement or Proposal.
each member of the Group, its successors and permitted assigns and their respective directors, officers, shareholders, employees and agents and where any of these are companies, their respective directors, officers, shareholders, employees and agents.
Auptimate Technologies Pte. Ltd. and all direct and indirect subsidiaries of such person.
the Personal Data Protection Act 2012 of Singapore.
our email, letter, agreement, contract or other communication to or with you (including via the Website) setting out key terms related to our engagement (including Services to be provided and fees payable) and which attaches or refers to these Terms of Service and, if applicable, the relevant Supplement(s).
has the meaning specified in the relevant Supplement or Proposal.
a Supplement published or issued by us setting out supplemental terms for the provision of a certain Service or Services.
together (a) these Terms of Service; (b) each Supplement (as may be added, removed or amended from time to time); and (c) each Proposal (as may be issued, amended or withdrawn from time to time).
Terms of Service
these standard terms and conditions of service.
any internet website, database or platform:
(a) owned, operated, managed or hosted by us or our Affiliate; and
(b) through which we or our Affiliate conducts any of our business.
the company, partnership, trust or other entity to which we provide the Services.
24.2 Interpretation. In the Terms:
(a) a reference to:
(i) a section, clause or a Supplement is to a section or clause in or a Supplement to these Terms of Service;
(ii) a person includes a body corporate, an association of persons (whether corporate or not), a trust, governmental or other regulatory body, authority or entity, in each case whether or not having a separate legal personality;
(iii) a document or agreement is to be construed as a reference to such document or agreement as is in force for the time being and as amended, varied, updated, supplemented, substituted or novated from time to time;
(iv) including and similar words do not imply any limitation;
(v) a statute includes references to that statute as amended or replaced from time to time;
(vi) a party is a reference to you or us, and includes that party’s permitted assigns;
(vii) $ or SGD or dollars are to Singapore currency;
(b) the headings in the Terms are for convenience only and have no legal effect;
(c) the singular includes the plural and vice versa;
(d) use of any gender includes the other gender; and
(e) no person will be found to have committed fraud, gross negligence or wilful default unless or until a Singapore court has reached a final non-appealable determination to that effect.
24.3 Conflicts. If and to the extent these Terms of Service and/or a Supplement conflict with a Proposal, that Proposal will prevail.
24.4 Amendment of Terms. We may at any time and from time to time change, alter, adapt, add or remove portions of these Terms of Service and/or any Supplement and, if we do so, we will email such changes to you and/or post such changes on our website, platform or portal. You may determine if any such revision has taken place by referring to the date on which these Terms of Service were last updated. Your continued use of the Services following any such change will be deemed and constitutes your acceptance of those changes. You acknowledge and agree to be bound by the current version of the Terms of Service and Supplement at all times and that, unless stated in the current version of the Terms of Service or a Supplement (as applicable), all previous versions shall be superseded by the current version.
25. Governing law and jurisdiction
25.1 Governing law. The Terms and any dispute, claim, suit, action or proceeding of whatever nature arising out of or in any way related to it or its formation (including any non-contractual disputes or claims) are governed by, and will be construed in accordance with, the laws of Singapore.
25.2 Jurisdiction. Each of the parties irrevocably agrees that the Singapore courts have exclusive jurisdiction to hear and determine any claim, suit, action or proceeding, and to settle any disputes, which may arise out of or are in any way related to or in connection with the Terms, and, for such purposes, irrevocably submits to the exclusive jurisdiction of such courts.