1. DEFINITIONS AND INTERPRETATION
1.1. In the Agreement, except to the extent that the context requires otherwise the following expressions shall have the meanings ascribed to them below:-
(a) Acceptable Use Policies means the policies and guidelines issued by AJP from time to time for the regulation of the use of the Service;
(b) Agreement means the agreement for the supply of Services made between the Customer and AJP, which agreement is identified by the Agreement Number and comprises one or more completed Application Forms, these terms and conditions and the Special Terms and Conditions (if any) as from time to time amended, modified or varied;
(c) Agreement Number means the number specified as the ‘Agreement Number’ on the first page of the Agreement;
(d) Application Form means a document described as such and specifying a Service, signed by the Customer and accepted by AJP, and identified by the Agreement Number or Reference Number;
(e) Billing Dispute means a dispute by the Customer in relation to an amount in an invoice provided by AJP where the Customer has reasonable grounds to believe that the matter has risen from one of the following circumstances:
- AJP’s billing system is or has been defective or inaccurate in respect of recording of the Services which are the subject of such dispute;
- there is or has been fraud; or
- (there is or has been some other error in respect of the recording of the Service or calculation of the charges which are the subject of the dispute or the billing in respect thereof;
(f) Charge means the fees, expenses and charges for or in respect of a Service charged by AJP from time to time including but not limited to any fees, expenses or charges (whether in advance or not) for equipment, software, access, connection, installation, subscription, usage, government charges, third party charges, license fees and administration costs;
(g) Commencement Date means the date on which a Service shall be provided to the Customer pursuant to the Customer’s acceptance of the Agreement;
(h) Customer means the person or persons whose application to enter into the Agreement is accepted by AJP;
(i) Data means any information about the Customer, the Customer’s employees and customers that is provided to or collected by AJP from time to time in connection with a Service;
(j) Minimum Period of Subscription means 24 months or (a)such shorter period as may be agreed to in writing by AJP in its sole discretion; or (b) such longer period as may be stated in any written information given to the Customer or specified in an Application Form;
(k) Payment Date means a date or dates for payment of a Charge specified in an Application Form; or if no payment date or dates is so specified, 14 days after AJP issues an invoice for payment of the Charge;
(l) AJP means AJP Business Pte Ltd;
(m) Service means such services, products, facilities, equipment and software (as the case may be) as may be specified in an Application Form and Services refers to each and every Service to be supplied under the Agreement;
(n) Special Terms and Conditions means a document described as such and appended to an Application Form
(o) words importing the singular shall include the plural and vice versa and words importing one gender shall include the other gender. The clause headings herein are used for convenience only and shall have no substantive meaning; and
(p) references to an Ordinance shall include any modification, extension or re-enactment thereof then in force and all instruments, orders and regulations then in force and made under or deriving validity from the relevant Ordinance or provision.
2. SERVICE
2.1. Subject to the terms of the Agreement, AJP shall use reasonable efforts to provide the Services to the Customer.
2.2. The Customer shall be responsible to arrange at his/her/its own expense the provision and installation of all relevant equipment (including any software unless specifically provided as part of AJP’s promotion) for the purpose of gaining access to the Services.
2.3. AJP shall notify the Customer of the Commencement Date when the Services shall become available to the Customer.
2.4. Subject to the consent of AJP, the Customer may change the usage plan on the first day of any month selected by him/her/it on the Application Form by giving not less than seven (7) days’ prior notice in writing to AJP. The effective date of such change shall be the first day of the calendar month subsequent to the expiry of the notice given by the Customer or such other date as determined by AJP in its sole and absolute discretion.
3. SOFTWARE
3.1. In connection with any software provided by AJP for use with any Service, the Customer:
(a) acknowledges that the software is provided “as is” and that AJP does not make any express or implied warranties of any nature with respect to the software;
(b) shall be solely responsible for ensuring that such software is suitable for his/her/its needs and the compatibility of such software for use with any equipment used by him/her/it, whether or not any changes are introduced to the Service by AJP;
(c) shall adhere to all instructions and notices (written or otherwise) given by AJP whether originating from AJP or any other person from time to time regarding the use of such software;
(d) shall only use the Software solely for the purpose for which it is supplied;
(e) shall not modify, reverse engineer, or alter the Software; and
(f) shall (notwithstanding the indemnity provisions under Clause 13) indemnify AJP and/or its third party supplier and hold them harmless against any claims, actions, law suits, losses or damages as a result of its breach of this Clause 3.
4. CHARGE AND PAYMENT
4.1. In consideration of the provision of the Services, the Customer shall pay AJP each Charge at the applicable rate indicated in the Agreement or such other rates as may be prescribed by AJP from time to time on its Payment Date.
4.2. The Customer shall be liable for and shall pay each Charge on demand. In the event that there is a Billing Dispute, the Customer is entitled to withhold payment pending resolution of such Billing Dispute.
4.3. The Customer shall inform AJP by written notice at least 10 days prior to the Payment Date of such Billing Dispute and that it intends to withhold payment. Such notice should contain the following information:
(a) reasons why the Customer disputes the relevant Charge; and
(b) the amount in dispute.
4.4. Within 30 days of the receipt of such written notification from the Customer, AJP will conduct a complete investigation and review of the Customer’s reasons and provide a written response to the Customer informing him of AJP’s conclusions. The Customer shall pay the amount withheld within 5 days of the receipt of AJP’s written response if the conclusions stated in such written response are in AJP’ s favour.
4.5. The Customer shall pay and maintain such deposits with AJP as AJP may require and shall increase the amount of such deposits from time to time when so required by AJP.
4.6. AJP shall be entitled to charge interest on all outstanding amounts (including without limitation any disputed amounts under Clause 4.2 for which the Customer is ultimately found to be liable for upon the resolution of such dispute) under the Agreement at the rate of two per cent (2%) per month, accruing on a daily basis (including accrued default interest) from the Payment Date until payment in full is received by AJP notwithstanding the termination of the Agreement.
4.7. The Customer will be liable for and shall pay on demand to AJP any charges incurred by any unauthorised or illegal log-ins for any reason whatsoever not due to any gross negligence or willful default on the part of AJP.
4.8. The Customer shall be responsible and AJP shall not be liable for any charges of whatsoever nature incurred in connection with or pursuant to the use or purported use whether authorised or unauthorised of the Customer’s account including without limitation international telecommunications roaming charges, local telecommunications service charges and charges imposed by third parties
4.9. AJP will issue a monthly invoice to the Customer unless stated “-Special Terms and Conditions”, otherwise.
4.10. The Customer shall notify AJP of any Billing Dispute within 1 month from the date of its receipt of the invoice from which such Billing Dispute arises failing which no claim may be brought with respect to such invoice.
5. TAXES
5.1. Each Charge payable by the Customer is exclusive of any stamp duty, value added, goods and services or similar taxes or duties and government charges (“Taxes”). The Customer shall be solely liable and shall pay (and shall indemnify AJP in respect of) all Taxes.
6. MAINTENANCE
6.1. AJP may suspend or disconnect any Service in whole or in part at any time by giving as much notice as is reasonably practicable in the circumstances and without compensation to the Customer if, in AJP’s reasonable opinion, it is necessary:
(a) to carry out any planned maintenance, repair or upgrade of any part of the Service; or
(b) to carry out any unplanned maintenance, repair or upgrading of any equipment or facility forming part of the Service.
6.2. The Customer shall be and remain liable for all charges accrued prior to such suspension or disconnection under clause 6.1. AJP may, without further cost to the Customer, reconnect or resume the Service as soon as it is reasonably practicable to do so.
7. DATA PROTECTION
7.1. The Customer acknowledges and agrees that the Data may be processed by any:
(a) related companies, sub-contractors and agents (including but not limited to third-party service providers) of AJP in connection with processing orders and the delivery, installation, support and maintenance of any Service.
7.2. The Customer acknowledges that processing of the Data may involve transfer of the Data out of Singapore.
7.3. The Customer may at any time give written notice to AJP that the Customer does not wish AJP to process the Data as provided herein, provided that such processing is not reasonably necessary for the performance of AJP’s obligations under the Agreement.
7.4. AJP shall not provide the Data to any affiliates or third parties for the development or marketing of other goods and services not related to the Service unless with the written consent of the Customer.
7.5. The Customer acknowledges and agrees that AJP may use, collect or disclose the Data for the following purposes:
(a) to enable AJP to perform its obligations hereunder, including the provision of any Service to the Customer;
(b) to ensure that the Customer performs his/her/its obligations hereunder; or
(c) where AJP is required by law (including without limitation the Code of Practice for Competition in the Provision of Telecommunication Services) to disclose.
8. OBLIGATIONS OF THE CUSTOMER
8.1. The Customer shall:
(a) be solely responsible for the set-up or configuration of his/her/its equipment for access to the Services and shall provide at his/her/its own expense, when so required by AJP, all facilities or resources necessary for the proper provision of the Services including without limitation power points,electricity, conduits, pipes, access, licenses or easements;
(b) comply with all notices, directions or instructions given by AJP from time to time in respect of the use of any Service including but not limited to the guidelines as stated in the Acceptable Use Policies, the contents of which is subject to change at AJP’s sole discretion;
(c) be solely responsible for obtaining, at his own cost, all licenses, permits, consents, approvals and intellectual property rights as may be required for using the Services;
(d) comply with the rules of any network through which the Customer accesses the Services;
(e) be solely responsible for all information retrieved, stored and transmitted through any Service by him and for managing the use of the storage capacity provided so that it does not exceed the capacity allocated to him;
(f) obtain the prior written approval of AJP if he/she/it contemplates that using any Service for any activity would or is likely to generate a change in traffic in excess of his/her/its normal usage and/or is likely to cause congestion in AJP’s network;
(g) not intentionally attack AJP’s network system and/or any Service, nor create or cause a situation whereby other subscribers are affected in their enjoyment and/or use of any Service; and
(h) not use AJP’s network system and/or any Service to cause harm to any third party including, but not limited to circumvention of user authentication or security of any host, network or account, and not to launch a technical attack on other users of any Service or other Internet service providers.
8.2. The Customer shall strictly comply with:
(a) all applicable laws of Singapore relating to the Service including without limitation the Telecommunications Act, Code of Practice for Competition in the Provision of Telecommunication Services, Films Act, Computer Misuse Act, Penal Code, Copyright Act, Undesirable Publications Act, Media Development Authority (MDA) Act, Indecent Advertisements Act, Public Entertainments Act, Common Gaming Houses Act, Maintenance of Religious Harmony Act, and Official Secrets Act, and
(b) the Internet Code of Practice, any regulations, guidelines, instructions, etc in whatsoever form that the Media Development Authority (MDA) and Infocomm Development Authority (IDA) may issue from time to time relating to the Service or otherwise.
8.3. Without limitation to the generality of the foregoing, the Customer undertakes not to use any Service:
(a) for any illegal or improper purpose or for the purpose of sending any message which is defamatory, offensive or abusive or of an obscene or immoral nature or menacing character or which is offensive on moral, religious, communal or political grounds;
(b) for any purpose or programme that is against the public interest, public order or national harmony or offends against good taste or decency;
(c) in breach of any code of practice, regulations, guidelines, instructions, etc in whatsoever form that the regulatory authorities in Singapore may issue from time to time relating to any Service or otherwise;
(d) to post or transmit any information or software which contains a virus, worm, cancelbot or other harmful component;
(e) to copy, upload, post, publish, transmit, reproduce, or distribute in any way or manner whatsoever, information, software, or other material which is protected by copyright or other proprietary right or derivative works with respect thereto, without obtaining permission of the copyright owner or rights’ holder;
(f) for offering any professional advice or specialist consultancy services without the written approval of the governing body for that profession;
(g) to gain access to any computer system connected to the Internet without authorization by the owner of the computer system;
(h) to access information or resources which are private to individuals and organizations unless permission to do so has been granted by owners or holders of the rights to such resources and information; or
(i) otherwise in a manner which constitutes a violation or infringement of the rights of any person, firm or company (including but not limited to rights of copyright or confidentiality) or a violation or infringement of any statutory duty or obligation or any duty or obligation in contract, tort or otherwise, to any third party.
9. SECURITY
9.1. As information transmitted through the Internet in general is not secure, AJP cannot and shall not guarantee the privacy of the Customer’s electronic communications. The Customer shall take all such measures as may be necessary (including but not limited to changing his/her/its password from time to time) to protect the secrecy of his/her/its User Identification (“UI”) and/or password and shall not reveal the same to any other person(s). AJP shall not be liable for any loss or damage incurred by the Customer or third parties due to any wrongful use of the Customer’s UI or account by the Customer or any wrongful or fraudulent use of the Customer’s UI or account by any other person.
9.2. AJP shall have the right to withdraw the UI and forthwith assign a new UI to the Customer at no extra charge where AJP has reason to believe the UI has been discovered and/or used by a person without the knowledge, consents, permission, expressed or implied, of the Customer, its servants, employees or agents and on such other occasions as AJP shall deem necessary in its reasonable opinion.
9.3. AJP shall have the right to withdraw the UI from the Customer if the Agreement or any Service is terminated; or where in AJP’s opinion, the Customer has not complied, is not complying or is likely not to comply with its obligations under the Agreement.
9.4. Where a UI is necessary to access any Service, the Customer shall use only his/her/its own UI.
9.5. The Customer acquires no rights to any mailbox number, the UI, Internet Protocol address, domain name, circuit reference and any codes assigned to him or it by AJP and AJP reserves the right to change or re-assign the same to the Customer at its sole discretion without being liable to the Customer for any damages or losses suffered.
9.6. AJP does not and will not perform system backups on information stored within its system. AJP is not responsible or under any obligation to provide historical data or to assist the Customer in downloading, faxing or reading to the Customer any of its or his electronic mails.
9.7. If at any time the Customer requests AJP to reset his/her/its password, the Customer shall forthwith after ascertaining that his/her/its password has been reset change such password to a new password.
9.8. The Customer agrees to immediately notify AJP for AJP’s informational purposes only of any unauthorised use of the Customer’s account or of any other breach of security known to the Customer.
10. MANAGEMENT AND CONTROL OF INFORMATION
10.1. Although AJP does not actively monitor information stored within the AJP systems, AJP shall have the right to manage and control the access to computer systems and information stored within the AJP systems in a manner deemed appropriate by AJP. AJP may, in its sole discretion and if it deems appropriate, vary, amend or suspend any Service or any part thereof including but not limited to the removal of content of web pages hosted on its servers, the removal of postings on its news service and the blocking of electronic messages through its mail servers.
11. SUSPENSION OF SERVICE
11.1. AJP may suspend the use of or access to any Service at any time on the following grounds:
(a) AJP reasonably suspects that the Customer is intentionally using the Service in contravention of any applicable law, and fails to cease such action within seven (7) days of being notified by AJP of such contravention;
(b) AJP determines that the provision of the Service has an adverse network impact on AJP;
(c) the Customer does or allows anything to be done which in AJP’s reasonable opinion may jeopardize the operation of the Service or the AJP network; or
(d) the Customer has not paid a Charge or any part thereof for more than 30 days after the Payment Date.
11.2. Upon any such suspension pursuant to any of the grounds specified in clause 11.1, the Customer shall be liable for all charges and fees incurred up to and including the date of such suspension.
11.3. If, within 14 days of a suspension, the Customer rectifies all of the grounds for which such suspension has been effected (if such grounds may be rectified), then the Customer may request AJP to reconnect the Service. Upon such request, AJP may reconnect the Service and shall reserve the right to impose on the Customer a reconnection fee and such other fees as it deems appropriate.
11.4. Nothing herein shall prejudice the right of AJP to terminate the Service pursuant to clause 14.3.
12. EXCLUSION AND LIMITATION OF LIABILITY
12.1. AJP makes no express or implied warranties of any nature under the Agreement.
12.2. AJP does not exclude or limit the application of any provision of any statute or legislation (including the Control of Exemption Clauses Ordinance and the Sale of Goods Ordinance) where to do so would contravene that ordinance or cause any part of this clause 12 to be void.
12.3. AJP excludes from the Agreement all conditions, warranties and terms implied by legislation, general law or custom, except any implied condition or warranty, the exclusion of which would contravene any legislation or cause this clause 12 to be void (“Non-excludable Condition”).
12.4. Subject to clause 12.2, to the fullest extent permitted by law, AJP excludes:
(a) all statutory liability;
(b) all tortious liability;
(c) all liability to the Customer in contract, tort or otherwise for economic, consequential or indirect losses, expenses, damages and costs arising out of or in connection with the Agreement even if:
(1) AJP knew they were possible; or
(2) they were otherwise foreseeable, including without limitation, lost profits and damage suffered as a result of claims by any third person, such as a customer of the Customer; and
(d) all liability to the Customer in negligence (save for death or personal injury arising out of negligence) for acts or omissions of AJP, its employees, agents and contractors arising out of or in connection with the Agreement.
12.5. AJP’s total liability to the Customer for breach of any express provision of the Agreement or any Non-excludable Condition or any warranty implied by statute or otherwise is limited at AJP’s option to any one or more of:
(a) supplying, replacing or repairing the goods in respect of which the breach occurred;
(b) supplying again the Service; or
(c) an amount up to the amount paid by the Customer for the Service for the period of 2 months preceding the date of the breach or damage occurred.
12.6. In the event AJP provides any house call to provide technical support on the Customer’s premises, the Customer shall ensure that such premises are safe and shall provide such facilities as AJP, its personnel or its agents may reasonably request.
13. INDEMNITY
13.1. The Customer shall indemnify and hold AJP harmless at all times against all actions, proceedings, costs, claims, expenses (including legal costs on a full indemnity basis), demands, liabilities, losses (whether direct, indirect or consequential) and damages (whether in tort, contract or otherwise) whatsoever including without limitation claims made by third parties and claims for defamation, infringement of intellectual property rights, death, bodily injury, wrongful use of computers, unauthorised or illegal access to computers (including but not limited to hacking), property damage or pecuniary losses howsoever arising which AJP may sustain, incur, suffer or pay arising out of, in connection with or pursuant to the Agreement or the use of Customer’s account whether authorised or not authorised or the use of any Service by Customer or any act or omission of Customer thereof.
14. TERM AND TERMINATION
14.1. Unless otherwise agreed by AJP, the minimum commitment period for a Service shall be the Minimum Period of Subscription.
14.2. Upon expiry of the Minimum Period of Subscription, the Agreement shall be automatically renewed for a further period of twelve (12) months unless otherwise terminated by either party by giving to the other party at least one (1) month’s prior written notice. The one (1) month’s prior written notice applies to either before or after the expiry of the Minimum Period of Subscription. AJP may in its sole discretion waive or accept in writing a shorter period of notice from the Customer than that referred to in this clause.
14.3. Notwithstanding any other provision of the Agreement, AJP may terminate the Agreement or any Service (in whole or in part) with immediate effect if:
(a) the Customer has not paid a Charge or any part thereof for more than 30 days after the Payment Date;
(b) in the sole opinion of AJP, the Customer has breached any provision of the Agreement and/or the Acceptable Use Policies and the Customer has failed to remedy the breach (if the breach is capable of remedy) within fourteen (14) days from the date of AJP’s notice of such breach;
(c) the Customer has at any time provided any false or incomplete information to AJP;
(d) in the opinion of AJP or any regulatory authority, it is not in the public interest to continue providing the Service to the Customer for any reason whatsoever;
(e) the Customer (where the Customer is an individual) dies or is declared a bankrupt;
(f) the Customer (where the Customer is a corporation) enters into any compromise or arrangement with its creditors or a receiver or a receiver and manager is appointed over the whole or part of the undertaking of the Customer or any proceedings are taken for the appointment of an administrator of or the winding up of the Customer or the Customer becomes insolvent or ceases to carry on business; or
(g) in AJP’s sole opinion, the Customer has behaved unreasonably and in such a way that hinders AJP in the proper discharge of its obligations herein.
15. LIABILITIES OF THE CUSTOMER UPON TERMINATION
15.1. In the event of termination of the Agreement or any Service pursuant to clause 14, without prejudice to any other remedies available to AJP, the Customer shall within 7 days of termination pay each Charge up to and including the expiry date of the relevant Minimum Period of Subscription or the date of termination stated in the notice given in accordance with clause 14, whichever is later.
15.2. If the Customer intends to terminate any Service prior to or after the expiry of the Minimum Period of Subscription, the Customer shall immediately give AJP the requisite one (1) month’s notice of its intention to terminate the Service. Upon acceptance by AJP of the Customer’s termination thereof, the Customer shall become liable to pay AJP a termination charge (as prescribed by AJP in its relevant Application Form(s) and which amount may vary from time to time) and the Charge for the remaining duration of the Minimum Period of Subscription.
15.3. Without prejudice to the foregoing, upon termination of the Agreement, AJP may use such deposits paid by the Customer to offset any amounts due from the Customer under the Agreement or any other agreement between AJP and the Customer, and the balance thereof shall be refunded to the Customer free of interest.
16. GENERAL
16.1. The parties hereto shall not divulge or communicate to any person or use or exploit for any purpose whatsoever (other than that contemplated in the Agreement) any confidential information which may or may have come to their respective knowledge by reason of or in connection with the Agreement, and shall use all reasonable efforts to prevent their respective employees, officers, agents and consultants from so acting, except with the prior written consent of the other party or where required to be disclosed pursuant to any applicable law or legal process used by any court or the rules of any relevant regulatory body.
16.2. AJP reserves the right to vary or amend the provisions of the Agreement (including, without limitation, the charges and fees hereinstated) at any time and from time to time upon giving to the Customer not less than 14 days notice and such amended terms and conditions shall be binding on the Customer upon such amendment coming in to effect.
16.3. If AJP does not exercise or delay in exercising its rights under the Agreement, AJP is not taken to have waived its rights.
16.4. The Customer may not transfer or novate nor try to transfer or novate any right created under the Agreement to any third party without AJP’s prior consent. AJP may transfer or novate any of its rights or obligations hereunder by giving the Customer prior notice thereof.
16.5. AJP shall not have any liability for any delay or default in the performance of its obligations under the Agreement caused by circumstances beyond its control and without the fault or negligence of AJP including but not restricted to acts of God, acts of the public, enemy, decrees or restraints by governmental authorities, strikes, war, riots, insurrections, civil commotion, failure of utilities or computers and other causes of such nature. In any of the events mentioned above, AJP shall for the duration of such event, be relieved of any such obligation under the Agreement as is affected by the said event PROVIDED that the provisions of the Agreement shall remain in force with regard to all other obligations under the Agreement which are not affected by such event and PROVIDED further that the parties shall resume their full obligations under the Agreement upon the cessation of such event.
16.6. Any notices relating to the Agreement can be provided by email, fax or post.
16.7. A certificate, determination, notification, opinion or the like by an officer of AJP as to any matter relating to the Agreement shall be conclusive save for manifest error.
16.8. If any provision in the Agreement is found or held to be invalid or unenforceable, then the meaning of such provision shall be construed to the fullest extent allowed by law so as to render the provision valid and enforceable, and if no such construction is possible, the invalidity or unenforceability of such provision shall not affect the other provisions of the Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereto shall use their best efforts to negotiate, in good faith, a substitute, valid and enforceable provision or agreement which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.
16.9. The Agreement creates no agency, partnership, joint venture or employment and neither the Customer nor his/her/its agents have any authority to bind AJP in any respect whatsoever.
16.10. The documents comprising the Agreement shall be read in the following order of precedence:
(a) the Application Form;
(b) the Special Terms and Conditions (if any);
(c) these terms and conditions; and
(d) the provisions of a document expressly incorporated by reference. Where any conflict occurs between the provisions contained in two or more of the documents forming the Agreement, the document lower in the order of precedence shall where possible be read to resolve such conflict if the conflict remains incapable of resolution by reading down. The conflicting provisions shall be severed from the document lower in the order of precedence without otherwise diminishing the enforceability of the remaining provisions of that document. Where any conflict occurs between two documents at the same level of precedence, the later dated document shall prevail.
17. GOVERNING LAW AND JURISDICTION
17.1. The Agreement is governed by, and construed in accordance with, the laws of the Singapore and each of the Customer and AJP hereby submits to the non-exclusive jurisdiction of the Singapore courts.
Revision November 2010.