Terms and Conditions covering the Subscription of Services
These terms of services (“Terms”) form a binding contract between your enterprise hereinafter the “Customer” and Hizen Pte (“Provider”) providing software and services under the brand Fitbots
All conditions should be read and understood carefully. These terms regulate Customer’s access to Provider’s services. In case of conflict between these terms and any other policy of the provider, these terms shall prevail. The Provider and the Customer shall be collectively referred to as “Parties”. The services of the Provider shall constitute of providing the software application and coaching (where opted by the Customer) hereinafter referred as “ Service” or “Services”.
By accessing the Services of the Provider, the Customer acknowledges and accepts these terms in toto and agrees to be bound by these terms. In case, the Customer is accessing the Services of the Provider on behalf of a third party/entity, such third party /entity also acknowledges and accepts these terms in toto and agrees to be bound by these terms.
While accessing the Services of the Provider on behalf of a third party/entity, the Customer expressly acknowledges and warrants that he has the authority to represent such third party/entity.
Customer, as an individual, must have attained the age of majority under the laws of the jurisdiction to which he/she is subject and is competent is bind itself and third parties to the terms herein.
Now, in view of the foregoing, the parties agree as follows:
1. Responsibility of the Provider
- Subject to any law for the time being in force, the Provider shall provide the Services to the Customer as per the subscription plan opted by the Customer. The subscription license cannot be transferred but the licensed user rights shared with the Customer’s contractors, agents or third parties under Customer’s control and supervision upon whom the Customer can enforce the terms of this Agreement provided at any given time the access shall not cross the maximum users permissible under the Customer’s purchased subscription plan.
- In case Coaching Services offered by the Provider are subscribed, coaching will be provided by a coach on-boarded by the Provider. The coach shall be bound by the same confidentiality provisions herein. The payment terms for coaching will depend on the plan selected by the Customer and number of teams coached.
- The provision of the Services by the Provider shall be non-exclusive and limited to access rights granted in the subscription plan. The Services can be revoked by the Provider, in case of any breach of these terms by the Customer, its users or third parties or incompliance of the orders of any sovereign authority, regulator, court or forum having the authorization to restrict, suspend or terminate the Service.
2. Responsibilities of the Customer
- 2.1 The Customer is solely responsible to ensure that the Services of the Provider are used in a manner that is in compliance with these terms, and is not in contravention of any law, regulation or ruling, applicable or for the time being in force. The Customer shall ensure that its subscription is not used for any unauthorized access to Provider’s Services. The Provider shall not be liable for any damage, loss resulting from the Customer’s failure to prevent such unauthorized access.
- 2.2 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, accessor otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like(collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords(including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3. General Restrictions
- 3.1 The Customer shall not use the services of the Provider for any purpose, which is in contravention of any law in force. The Customer cannot lease, sub-license the subscription to any third party without prior written consent of the Provider. The Customer cannot use the Services in a manner, which is detrimental to the interests of the Provider.
- 3.2 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services ; modify, translate, or create derivative works based on the Services or any software (except to the extent expressly permitted by the Provider or authorized within the Services); use the Services or any software within for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
- 3.3 Customer shall not use the Services or the software within so as to cause or likely to cause disruption in integrity or performance of the Service or its software or components, or ; use the services to send or store any content which is unlawful, racist, hateful, abusive, libellous, obscene, discriminatory, or transact in any protected health information protected by laws in several countries or send or store any viruses, malware, Trojan horses, time bombs, or any harmful software “Malicious Software’ or track cookies, ad exchanges or networks, data brokerages, or send any electronic communications including e-mail in violation of the applicable laws.
4. Privacy and Data Protection.
- 4.1 The Provider shall provide the Services in compliance with the applicable Privacy laws. The Customer shall ensure that their or their users and third parties’ actions or omissions are not in breach of any privacy regulation.
- 4.2 Customer warrants that it shall be responsible for obtaining all consents and authorizations of its users for the purpose of availing the Services. In the event of any claim related to absence of consents or misuse of any data covered by the applicable Privacy Laws which is due to an action, omission or negligence of the Customer, its users or any third party of the Customer, the Customer shall fully indemnify and keep the Providers safe and harmless against any claim, losses, amounts or damages it, its directors or employees may suffer as a result thereof.
- For the purposes of the Services, the Provider, during the course of providing the Services, shall collect certain data (email and role(optional)).Any personal data collected by the Provider shall be erased within 15 days from the date of expiry of the subscription.
5. Use of APIs
- In case of use of Google API services , Provider's use and transfer to any other app of information received from Google Accounts will be subject to Google API Services User Data Policy, including the Limited Use requirements etc. as applicable from time to time. The Customer agrees on behalf of itself and its users that such terms now existing and as modified from time to time are acceptable to the Customer and its users. Customer’s access and use of the Services shall be subject to other APIs and their relevant conditions applicable from time to time.
6. Availability, Maintenance, Downtime and Changes
- 6.1 The functionalities of the Services may vary when accessed on mobile or other platforms, the same shall not be construed as Service unavailability or deficiency. The optimum use of the Services and software is expected in computers with reasonable enterprise and industry standard operating systems, software, hardware and regular maintenance.
- 6.2. Usually maintenance of the Services is undertaken at periodic intervals on non-business days. However the maintenance schedule is at the discretion of the Provider.
- 6.3. Downtime/Unavailability of the Services or parts thereof may arise due to several factors, some of which may be outside the control of the Provider such as internet availability, availability of telecommunication networks etc. The Customer agrees that no claims for downtime shall lie against the Provider except in the event when such downtime is due to a proven gross negligence of the Provider.
- 6.4. The Provider may at anytime make changes or updates to the Services while making reasonable efforts that the Customer’s Services are substantially of the same level as per the subscription plan opted by the Customer. Any deterioration in Services arising out of a standard change or update made by the Provider shall not constitute an actionable claim. Parties shall mutually consult each other and jointly resolve such matters.
7. Ownership and Intellectual Property Rights
- 7.1 The Provider shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
- 7.2 Notwithstanding anything to the contrary, Provider shall have the right collect and analyse data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom),and the Provider will be free (during and after the term hereof) to (i)use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other of Provider’s offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
- 7.3 Parties authorise each other to reference each other and their brand name or logo for the limited purpose of sales and marketing literature.
8. Fee, Payment and Taxes
- 8.1 The Customer shall pay the Subscription charges via credit card, a designated Payment Gateway or Bank Transfer. In case Customer changes its payment method at any time, the same shall be notified in writing to the Provider at the earliest. All taxes which under the applicable laws are to be paid by the recipient of Services shall be paid by the Customer in addition.
- 8.2 Before accessing the Services, the Customer will pay the Provider the then applicable fees described in the selected plan (the “Fees”) within the period or at frequencies stated in the plan. If Customer’s use of the Services exceeds the Service capacity set forth in the plan selected or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Provider reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the current Service Term or subsequent renewal terms, upon thirty (30)days prior notice to Customer (which may be sent by email). If Customer believes that Provider has billed Customer incorrectly, Customer must contact the Provider no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to the Provider’s customer support department.
- 8.3 The Provider may choose to bill through an invoice, in which case, full payment for invoices issued in any given must be received by the Provider thirty (15) days after the mailing date of the invoice.
9. Auto Renewal
- The subscription shall be auto-renewed at the end of Customer’s selected subscription period unless renewal is not opted by the Customer in writing and communicated to the Provider at least15 days prior to the expiry of the then current subscription period. Unless a confirmation is received as aforesaid, the Provider is entitled to invoice the Customer for the renewal fee and the Customer shall pay such renewal fee within the time specified in the invoice.
10. Free Trial
- Upon expiration of the 14 days free trial period for those plans which are offered with a trial period, unless the Customer specifically chooses to subscribe, Provider may, without any further notice, limit the access to its Services and may also terminate Customer’s account. Customer shall not hold the Provider liable for any data loss or any other damage, loss arising due to such limitation, suspension or termination.
11. Data Backup and Export
- Customer can at any point of time export/save its OKR data locally, once locally exported/saved by the Customer, further actions related to the same shall be the responsibility of the Customer. It is the Customer’s responsibility to export and save locally any of its OKR data that it may needs for the future reference.
12. Compliance with international laws
- 12.1 The Customer shall use the Services in compliance with all international Export Compliance Laws which restrict the use and provision of Services to certain designated countries, individuals or entities.
- 12.2. The Customer shall ensure that in availing the Services or conduct of its engagement with the Provider, the Customer is in full compliance with the international laws of anti - corruption such as the Foreign Corrupt Practices Act (FCPA) of the United States and other such laws applicable. The Provider and the Customer shall both comply with anti-corruption and anti-bribery laws.
- 12.3. For availing the Services, the Customer shall at all times comply with personal data protection laws applicable to the users and ensure that it records appropriate consents and notices in its communications with the users.
- The Parties acknowledge that the existence and the terms of this agreement, any information gained during provision of the Service shall be regarded as confidential information. Each Party shall maintain confidentiality of all such information. Confidential information may be shared with its employees or third parties strictly on a need to know basis. The Provider’s obligations of confidentiality terminate upon the expiry of the subscription plan.
- The Provider shall not disclose any Confidential Information obtained by the Customer without the prior approval. This excludes any information which is already publicly available or generally known to the public at the time of disclosure or has subsequently entered into the public domain.
- Notwithstanding the above, the Provider may use feedback and Customer’s usage data for any further product development, research, reports and analysis and share the same with third parties on need to know basis.
- The effective period for these terms shall be from the date the subscription period starts/Customer signs up and shall continue till the expiry of subscription.
- 15.1 Provider reserves the right to terminate this agreement any time, if any of the terms are breached by the Customer, and the same is not cured within a reasonable period of time not exceeding 7 days.
- Once terminated, the Customer shall be required stop using the Services and clear all the pending subscription dues, if any.
- 15.2 The agreement may also be cancelled by either party by serving a written notice 30 days prior the termination date upon the other party.
- 15.3 The Customer shall be required to clear pending dues, if any prior to the effective date of termination.
- 15.4 Fees paid is non-cancellable and non refundable.
- 16.1 Subject to Customer’s compliance with the terms, Provider will indemnify Customer, from any claim brought against Customer by a third party alleging that Customer’s use of the Service (in the manner as provided by the Provider)infringes such third-party’s registered patent, copyright or trademark (an “IPClaim”) provided that Customer 1) promptly notifies Provider of the threat or notice of such IP claim; 2) gives Provider sole control of the defense and settlement of the Claim 3) fully cooperates with Provider in connection therewith.
- 16.2 Customer will indemnify and hold Provider, its directors, employees, agents and its affiliates harmless against any claim brought by anyone against Provider arising from or related to use of the Service(s) by Customer or breach of any of the conditions herein by the Customer, its employees, agents or third parties associated by it.
17. Disclaimer of Warranties
- Provider warrants that the Service(s) will in all material respects be in accordance with the documentation of the Provider. Except as set forth herein, all representations and warranties, including but not limited to any implied warranties, warranty of merchantability, fitness for a particular purpose, or non-infringement are hereby expressly excluded.
- The third-party service(s), server, network components, apps, APIs, and data migration are provided “as is”.
- The Customer acknowledges and agrees that interruptions are possible due to reasons beyond the control of the Provider and accepts that the Provider does not warrant that the access to the Services shall be uninterrupted.
- The Customer releases the Provider of any claims arising out of third party cybercrimes of any nature.
18. Limitation of Liability
- NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR OUTSIDE, IN NO EVENT WILL PROVIDER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DOWNTIME COSTS, LOSS OF DATA, RESTORATION COSTS, LOST PROFITS, OR COST OF COVER) REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED ON CONTRACT, TORT, WARRANTY OR ANY OTHER LEGAL THEORY.
- SUBJECT TO THE ABOVE, THE PROVIDER’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, OFFICERS,DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, RELATING TO THE SERVICE(S) FOR ANY KIND OF CLAIM, LOSS OR DAMAGE WHETHER CLASSIFIED AS DIRECT OR INDIRECT, CONSEQUENTIAL OR OF ANY OTHER NATURE, WILL NOT EXCEED AN AMOUNT EQUAL TO THE SUBSCRIPTION CHARGES PAID BY CUSTOMER AND/OR ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE.
- THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE CUSTOMER FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE.
19. Force Majeure
- In certain events, the Customer may not be able to access or use the Service during any unavailability caused by circumstances beyond Provider’s reasonable control, such as, but not limited to, acts of God, epidemic or pandemic and resulting control or prevention measures such as lock downs, acts of governments such as internet shutdowns, acts of terror or civil unrest, technical failures beyond Provider’s reasonable control (including, without limitation, inability to access the internet), or acts undertaken by third parties, including, without limitation, distributed denial of service attacks or other cybercrime, distortion or any other event which is beyond the control of the Provider ( a “Force Majeure Event”). In the event of Force Majeure Event, Provider is released from its obligations or part thereof so long as the inability to render the Services continues.
20. Relationship between the Parties
- The parties are independent entities. The acceptance of these terms in no way will create a partnership, franchise, joint venture, agency, employment, or any other relationship, of any kind, between the parties.
21. Severability and Waiver
- 21.1 In case any provision in this agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
- 21.2 Provider’s non-exercise of any right under this agreement (waiver)will not constitute a waiver of that right or other provision of this agreement.
22. Governing Laws and Dispute Resolution
- Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre("SIAC Rules") for the time being in force which rules are deemed to be incorporated by reference into this clause.
- The Tribunal shall be appointed by the Chairman of SIAC. The seat and venue of arbitration shall be Singapore. The governing law of this agreement shall be the substantive law of Singapore. The language of the arbitration and all communications related to this agreement shall be English. This English version of the agreement shall prevail over any other translation.