Terms of Use
Please read this agreement carefully before using the Product. These terms of use (“Agreement”) constitute a legal and enforceable contract between the user and Podium Pte Ltd (“Podium”). By indicating consent electronically or accessing or otherwise using the Product and related Material (“Effective Date”), User agrees to the terms and conditions of this agreement and any other terms and policies referred to in these terms of use, which are hereby incorporated into and form part of this Agreement.
1. | Access and Use |
1.1 | Podium grants User a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use Podium for Development (“Product”) and related Material, in each case solely:(a) for use and evaluation of the Product and the Material during the Evaluation Period as defined below;(b) for User’s non-commercial business purposes; and(c) in accordance with the terms of this Agreement. |
1.2 | This Agreement does not provide a commercial access grant, and User’s access to and use of the Product and the Material after the Evaluation Period is subject to Podium and User entering into and executing a separate commercial agreement. |
1.3 | User further agrees that neither the Product nor the Materials will not be made available, transferred or provided to, or used on behalf of, any third party. |
2. | Evaluation Period |
2.1 | The term of this Agreement shall commence on the Effective Date of this Agreement and, unless terminated earlier pursuant to this Agreement’s express provisions, shall continue until the End Date (“Evaluation Period”). |
3. | Reservation of Rights |
3.1 | Podium and its licensors retain title to and ownership of, and all other rights with respect to, the Product and the Material and all copies thereof, including, without limitation, any related copyrights, trademarks, trade secrets, patents, and other intellectual property rights. This includes any information that Podium may collect in connection with User’s use of the Product, such as usage patterns, and other aggregated, de-identified information to improve and evolve Podium’s products and service offerings. |
3.2 | User has only the limited rights granted with respect to the Product and the Material expressly set forth in this Agreement, and User has no other rights, implied or otherwise. |
3.3 | User shall not use the Product or the Material for any purposes beyond the scope of the access granted in this Agreement. Except as otherwise set forth in this Agreement, User shall not at any time, directly or indirectly:
(a) copy, modify, or create derivative works of the Product or the Material, in whole or in part;(b) rent, lease, lend, sell, license, sublicense, assign, distribute, disclose, commercially exploit, publish, transfer, or otherwise make available the Product or the Material (including prior versions or derivative works thereof);(c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Product, in whole or in part;(d) implement a routine, data structure, or protocol described in the Product or the Material in any other platform or software;(e) use the Product or the Material outside the scope of this Agreement;(f) remove, alter, or cover any copyright or other proprietary rights notices in the Product or the Material;(g) disable or circumvent the access keys or other security features used by Podium; or(h) cause, assist, or permit any third party to do any of the foregoing. |
3.4 | User further agrees not to disclose to any third party the results of any evaluation performed by or on behalf of the User under this Agreement without the prior written approval of Podium. |
4. | Suspension |
4.1 | Podium may suspend User’s access to or use of all or part of the Product or the Material immediately by giving notice to User if:(a) Podium reasonably determines that User’s access to the Product or use of the Material:(i) poses a security risk to the Product, Podium or any third party; (ii) could adversely impact the Product or the systems or data of Podium or any third party; or (iii) could subject Podium or its related bodies corporate, or any third party, to liability; or (b) User breaches the terms of this Agreement. |
5. | Data Ownership and Rights |
5.1 | User retains all rights, including any intellectual property rights, in and to User Data provided in connection with this Agreement. |
5.2 | User affirms, represents, and warrants that User owns or has the necessary licenses, rights, consents, and permissions to use and authorise Podium to use all such User Data, in the manner contemplated by this Agreement. User grants Podium a non-transferable, non-exclusive, worldwide, royalty-free license during the Evaluation Period to access, host, copy, transmit, display, process, analyse, aggregate, modify and use User Data, or combine such data with other data, and develop derivative works with such User Data for the sole purpose of providing User with access to and use of the Product and the Material. |
5.3 | For the avoidance of doubt, subject to the limited rights expressly granted, Podium reserves all right, title and interest in and to the Product and the Material including all of their related intellectual property rights. No rights are granted to User other than as expressly granted. |
5.4 | If User provides Podium with any ideas, proposals, suggestions, enhancement requests, recommendations or other feedback or related materials (“Feedback”), with respect to the Product, the Materials or otherwise, User acknowledges and agrees that such Feedback is not confidential, and that User’s provision of such Feedback is gratuitous, unsolicited and without restriction, and does not place Podium under any fiduciary or other obligation. User grants to Podium a non-exclusive, worldwide, royalty-free, fully paid-up, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to User or any third party, to reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, adapt, modify, store and otherwise use, analyse and otherwise exploit the Feedback, in any format or media now known or hereafter developed, for any purpose. |
5.5 | User is responsible for the accuracy, quality, completeness and legality of User Data and of the means by which it acquired it. User further agrees that it will not share or store data in the Product which contains any information or content that is illegal, in violation of applicable data privacy and protection laws, rules and regulations, or contains any information or content that User does not have a right to make available under any law of a Government Agency or under contractual or fiduciary relationships. |
5.6 | User is responsible for acquiring and maintaining any necessary equipment and the connections (including any API provided by Podium) during the Evaluation Period required for User to access and use the Product and the Material according to any criteria and requirements as notified to User by Podium as updated from time to time. |
6. | Security |
6.1 | User shall implement reasonable cyber security to prevent being the weakest link in the chain (for example, unauthorised access to or use of the Product or the introduction of any malicious code) and shall notify Podium promptly of any such unauthorised access or use |
7. | Confidentiality |
7.1 | The Receiving Party shall hold Confidential Information in strict confidence using precautions to prevent the unauthorised disclosure of Confidential Information at least as protective as the Receiving Party takes to safeguard its own confidential information of a similar nature, including, without limitation, protection of documents from theft, unauthorised duplication, and discovery of contents, and restrictions on access by third parties to such Confidential Information, but in no case less than a reasonable standard of care. |
7.2 | The Receiving Party shall not disclose Confidential Information to any other party for any other purpose; provided, however, that the Receiving Party may disclose Confidential Information:(a) to its directors, officers, employees, advisors and legal counsel (collectively, “Representatives”) so long as:(i) there is a commercially reasonable need to know in connection with this Agreement; (ii) the Representatives have been informed of the confidential nature of the Confidential Information and that by receiving such information, they are agreeing to treat it confidentially in accordance with this Agreement (or, by reason of their employment or other relationship with the Receiving Party, otherwise have a duty to comply with this Agreement), and (iii) the Receiving Party remains liable for all disclosures by its Representatives that are not expressly permitted by this Agreement or authorised in writing by the Disclosing Party, (b) for purposes of defending or maintaining any legal action related to this Agreement or the underlying subject matter; and (c) when such disclosure is required to demonstrate compliance with the Receiving Party’s legal or regulatory obligations. |
7.3 | Notwithstanding anything to the contrary in this Agreement, the Receiving Party and its Representatives shall be permitted to disclose Confidential Information:(a) as may be required by applicable law, rule or regulation,(b) pursuant to a valid and effective subpoena or order issued by a court or governmental body of competent jurisdiction, or(c) in connection with any proceeding in which the Receiving Party (or the applicable Representative) is involved that relates to this Agreement or the underlying subject matter; provided that before disclosing any such information, the Receiving Party (or the applicable Representative) shall, to the extent permitted by law:(i) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding any such requirement for disclosure, and (ii) consult with the Disclosing Party on the advisability of taking steps to resist or narrow any such disclosure (and, if the Disclosing Party seeks to resist or narrow any such disclosure, then the Receiving Party (or the applicable Representative) will provide such commercially reasonable cooperation as the Disclosing Party reasonably requests at the Disclosing Party’s sole cost and expense); provided, however, that if the Receiving Party (or the applicable Representative) is nonetheless required or otherwise compelled to disclose such information, the Receiving Party (or the applicable Representative) shall furnish only that portion of the Confidential Information that its legal counsel advises it as being legally required to disclose. |
7.4 | The Receiving Party and its Representatives shall destroy or return to the Disclosing Party all Confidential Information within ten (10) business days after the earlier to occur of:(a) the expiration of this Agreement, or(b) the request of the Disclosing Party. |
7.5 | Notwithstanding anything to the contrary in this Agreement, the Receiving Party:(a) will not be obligated to erase Confidential Information that is created electronically pursuant to automatic or ordinary course archiving, back-up, security or disaster recovery procedures or that results from the ordinary operation of electronic devices, and(b) may retain copies of the Confidential Information for legal or regulatory compliance purposes; provided that any retained copies of such information shall remain subject to the terms and conditions of this Agreement so long as such information remains Confidential Information. This section shall survive the expiration of this Agreement. |
8. | Disclaimer and Exclusion of Liability |
8.1 | The Product and all Material are provided hereunder on an “as is” and “as available” basis. User is responsible and liable for all uses of the Product and the Material resulting from access provided by User, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. |
8.2 | Except as stated herein, Podium does not give any warranties or representations, whether express or implied, as to the suitability or usability of the Product or the Material during the Evaluation Period including any representations that the Product will be uninterrupted or error free. Furthermore, Podium does not guarantee any specific outcome or result from use of the Product or the Material. |
8.3 | To the fullest extent permitted under applicable law, Podium disclaims any implied or statutory warranty, including any implied warranty of title, non-infringement, merchantability or fitness for a particular purpose in respect of the Product or the Material. |
8.4 | The Product and the Material are pre-release and are expected to contain defects which may be material and are not expected to operate at the level of performance or compatibility of a final, generally available product offering. |
8.5 | The Product may not operate accurately and may be substantially modified prior to public availability or withdrawn at any time. Accordingly, access to and use of the Product is entirely at User’s own risk. |
8.6 | User must use its own professional judgement and expertise to independently assess information received from the Product. Podium is not liable to User for any decisions that the User makes using data insights or services provided through the Product. |
8.7 | The User must safeguard important data including User Data, use caution and not to rely in any way on the correct functioning or performance of the Product. |
8.8 | Podium is not liable for any indirect, incidental or consequential damages of any kind arising out of or in connection with User’s use of the Product, the Materials or User Data. Subject to the below, this does not preclude the recovery of any loss or damage to the extent it may fairly and reasonably be considered to arise directly and naturally, that is according to the usual course of things, from the breach or other wrongful act or omission giving rise to the relevant liability. |
8.9 | A party’s total aggregate liability to the other for actual damages, liabilities, costs and losses incurred or suffered by that affected party shall not exceed, for all claims in aggregate, one thousand Singapore dollars (1,000 SGD). The foregoing limitations, exclusions and disclaimers shall apply regardless of whether such liability arises from any claim based upon contract, warranty, tort (including negligence), strict liability or otherwise, and whether or not any of the parties has been advised of the possibility of such loss or damage and even if a remedy set forth in this Agreement is found to have failed of its essential purpose. |
8.10 | Any bugs, glitches, lack of functionality or other problems in relation to the Product encountered by User should be reported to Podium immediately. |
9. | Support Services |
9.1 | User acknowledges and accepts that the Product is not subject to any availability or performance service level agreement and all support is provided on a “best efforts” basis. |
9.2 | User also acknowledges there may be periods of scheduled and unscheduled downtime where updates / patches / upgrades / releases are necessary. Adequate notice will be provided where possible. |
10. | Indemnity |
10.1 | Podium will indemnify User for any claim by a third party that use of the Product or the Material by User in accordance with this Agreement infringes that third party’s intellectual property rights. |
10.2 | Podium will have the option to modify or replace the affected part of the Product or the Material, procure the necessary licence from the third party or, where those options are not commercially practical, Podium may suspend or terminate the affected parts of the Product. |
10.3 | Podium’s liability under this clause will be reduced to the extent such liability arises as a result of an act or omission of User, from the use of the Product, or combination of the Product with any User Data or other materials, media, content, or information provided by User. |
10.4 | User will indemnify Podium for any losses, damages, liabilities, or costs (including attorneys’ fees) resulting from any actual or threatened third-party claim, suit, action, or proceeding arising out of or based upon the User’s breach of this Agreement, User’s negligence or wilful misconduct, User’s failure to comply with applicable law, or User’s infringement or other violation of a third party’s intellectual property rights. |
11. | Termination |
11.1 | Either party may terminate this Agreement immediately by giving written notice to the other party if:(a) the other party commits a material breach of this Agreement and has failed to rectify the breach within 15 business days of a written request to do so by the terminating party;(b) an Insolvency Event occurs in relation to the other party; or(c) the other party or any of its group members breaches a Zero Tolerance Obligation. |
11.2 | The termination of this Agreement pursuant to this clause does not affect any rights or remedies of a party under this Agreement. |
11.3 | Either User or Podium may terminate this Agreement at any time upon seven (7) days' prior written notice. |
11.4 | Upon termination or expiration, User’s access to the Product and the Material will end and User will:(a) return or destroy all copies of the Material in User’s possession; and(b) cease access to the Product and the Material for any purpose. |
12. | Miscellaneous Provisions |
12.1 | Each party shall bear its own expenses incurred in relation to this Agreement. |
12.2 | Both parties represent and warrant that they have the right and authority to enter into and perform their obligations hereunder. |
12.3 | Podium warrants that it will comply with all applicable laws in connection with this Agreement including to the issue of privacy with respect to User Data. |
12.4 | This agreement is governed by the laws of Singapore. Each party submits to the non-exclusive jurisdiction of the courts of Singapore. |
12.5 | The invalidity, illegality or unenforceability of any provision of this Agreement under any jurisdiction shall not affect the validity, legality or enforceability of any other provision hereof. |
12.6 | This Agreement constitutes the entire and only agreement between the parties with respect to the Product and the Material and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter, except as otherwise set forth herein. |
12.7 | Neither party shall assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed. |
12.8 | Podium may amend this Agreement at any time by providing prior written notice of the amendment to User. |
13. | Definitions
AML Requirements means all anti money laundering Laws and all Laws directed to countering the financing of terrorism, including without limitation, the Singapore Corruption, Drug Trafficking and Other Serious Crimes Act 1992 and any directions made by a Government Agency in connection with AML Requirements.
Anti Corruption Requirements means any Bribery, fraud, kickback, or other similar anti bribery and anticorruption law or regulation of any relevant country, including the Singapore Prevention of Corruption Act 1960, the Malaysian Anti-Corruption Commission Act (Act 694), the UK Bribery Act 2010 and the US Foreign Corrupt Practices Act 1977 (as amended from time to time) and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and any directions made by a Government Agency in connection with Anti Corruption Requirements.
Bribery means any form of bribe, kickback, facilitation payment, political donation or undue financial or other advantage in connection with this Agreement or otherwise for or on behalf of the User or any similar conduct that would be unlawful under any applicable Anti Corruption Requirements.
User Data means electronic data and information provided by or for the User to the Product.
Confidential Information means all confidential and/or proprietary information and material furnished by and/or on behalf of the Disclosing Party either before or after the Effective Date in connection with this Agreement, including, without limitation, all information and material related to the Disclosing Party, this Agreement, and the underlying subject matter thereof (irrespective of the form of communication and whether provided orally or in written or electronic format), including all analyses, notes, summaries and computer files generated by or for the Receiving Party or its Representatives that are based on or incorporate any such information, including all terms, conditions and other facts discussed or negotiated in connection with this Agreement.Notwithstanding the foregoing, the term “Confidential Information” shall not include information that:(a) was in the Receiving Party’s possession prior to the Effective Date (provided that such information was not known by the Receiving Party to be subject to a legal, fiduciary or contractual obligation of confidentiality);(b) becomes available to the public, other than as a result of disclosure by the Receiving Party in violation of this Agreement;(c) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party (provided that such information is not known by the Receiving Party to be subject to a legal, fiduciary, or contractual obligation of confidentiality); or(d) is independently developed, discovered or arrived at by the Receiving Party or its Representatives without the use of or reference to the Confidential Information; provided, however, that Confidential Information will not be considered to be within the foregoing exception merely because it (or a portion thereof) is expressed in more general terms publicly or in items in the Receiving Party’s possession.
Disclosing Party means the party disclosing Confidential Information to the Receiving Party.
End Date means 2 months from the Effective Date.
Government Agency means any government or governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, bureau, tribunal, agency or entity in any part of the world.
Law means any and all relevant acts of parliament, instruments, subsidiary legislation, laws (including by-laws) and all rules, regulations, resolutions, notices, directions, orders, proclamations, decrees, permissions and guidelines of the Government Agencies, court rulings and judgments, directives, constraints, treaty and/or other instrument and/or requirement having the force of law within Singapore.
Material means firmware, tools, documentation, reports, data, diagrams, procedures, plans and other materials.
Modern Slavery Requirements means conduct that would constitute:(a) an offence under division 270 (slavery and slavery-like offences) or 271 (trafficking in persons) of the Criminal Code Act 1995 (Cth) if the conduct took place in Australia;(b) trafficking in persons, as defined in article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, done at New York on 15 November 2000 ([2005] ATS 27);(c) the worst forms of child labour, as defined in article 3 of the ILO Convention (no. 182) concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, done at Geneva on 17 June 1999 ([2007] ATS 38); or(d) an offence under any applicable anti-human trafficking, forced labour and modern slavery Law.
Receiving Party means the party receiving Confidential Information from the Disclosing Party.
Sanction Requirements means any financial or economic sanction, or sanction related to trade, import or export of goods or provision of service, administered or enforced by any official body within Singapore and any other jurisdiction where the Product is sold or licenced or Podium services are being performed. User means any person who uses the Product or the Material.
WHS Requirements means all applicable work health and safety related legislation, codes of practice and standards.
Zero Tolerance Obligations Means all AML Requirements, Anti Corruption Requirements, Modern Slavery Requirements, Sanction Requirements and WHS Requirements |