By accessing this website (the “Website”), and in consideration for accessing the content in it, you agree to be legally bound by the following general terms and conditions (the “Terms”) between you and Surge Analytics Private Limited (“Surge Analytics”), a company incorporated and registered in Singapore with UEN 202013695M.
From time to time, Surge Analytics may provide access to Surge Analytics App, a software-as-a-service product (“Surge Analytics App”), to selected persons (our “Customers”) at its sole discretion. Access to Surge Analytics App by a Customer shall be preceded by an agreement in writing between Surge Analytics and you and shall supersede the Terms herein.
1 Your Responsibilities
1.1. By accessing the Website, you agree that you will not, directly or indirectly:
1.1.1. reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to Surge Analytics App or the Website, or any software developed, trained or owned by or licensed to Surge Analytics and which forms part of, or is used in Surge Analytics App, its documentation or data (the together with Surge Analytics App and the Website, the “Software”);
1.1.2. modify, translate, teach, train or create derivative works based on the Software (except to the extent expressly permitted by Surge Analytics);
1.1.3. access all or any part of in order to build a product or service which competes with the Software;
1.1.4. use the Software to provide services to third parties;
1.1.5. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software available to any third party except your employees or agents;
1.1.6 use the Software in a manner that is illegal or causes damage or injury to any person or property;
1.1.7. access, store, distribute or use during the course of its use of the Software any malware or any material that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; promotes unlawful violence; is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
1.1.8 attempt to obtain, or assist third parties in obtaining, access to the Software other than with Surge Analytics’ authorization.
1.2. You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and, in the event of any such unauthorised access or use, promptly notify Surge Analytics.
1.3. You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Software, including modems, hardware, servers, software, operating systems, networking, web servers and the like.
2 Our Responsibilities
2.1. Surge Analytics undertakes to provide access to the Website with reasonable skill and care. This undertaking shall not apply to the extent of any non-conformance which is caused by use of the Website contrary to Surge Analytics’ instructions, or modification or alteration of the Website by any party other than Surge Analytics or Surge Analytics’ duly authorised contractors or agents.
2.2. To be clear, Surge Analytics:
2.2.1. does not warrant that your use of the Website will be uninterrupted or error-free;
2.2.2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Website may be subject to limitations, delays and other problems inherent in the use of such communications facilities;
2.2.3. shall use reasonable endeavours to maintain the availability of the Website, but does not guarantee 100% availability;
2.2.4. does not control the content posted to or via the Website and, as such, Surge Analytics does not make or give any representation or warranty as to the accuracy, completeness, currency, correctness, reliability, integrity, usefulness, quality, fitness for purpose or originality of any of the foregoing content or data; and
2.2.5. reserves the right to update or maintain the Website and the Terms at any time.
2.3. For the avoidance of doubt, nothing in these Terms shall be construed as Surge Analytics agreeing to provide access to, authorizing or licensing the use of, or otherwise granting any rights or making any other representations, warranties and/or undertakings to you in respect of Surge Analytics App. Any future commercial transaction in respect of Surge Analytics App requires further assessment, negotiation and documentation, including the preparation and execution of a binding contract. These Terms do not require either party to proceed to the completion of any such transaction or execution of a binding contract.
3 Intellectual Property
3.1. In this clause, “Intellectual Property Rights” means patents, patentable rights, copyright, design rights, utility models, trade marks (whether or not any of the above are registered), trade names, rights in domain names, rights in inventions, rights in data, database rights, rights in know-how and confidential information, and all other intellectual and industrial property and similar or analogous rights existing under the laws of any country and all pending applications for and right to apply for or register the same (present, future and contingent, and including all renewals, extensions, revivals and all accrued rights of action);
3.2. Surge Analytics and/or its licensors shall, as between the parties, remain the owner of all Intellectual Property Rights in Surge Analytics’ and Surge Analytics App brands, software, database, trademarks and logos, and the Software. Except as expressly permitted by these Terms, you may not use any of Surge Analytics’ Intellectual Property Rights without Surge Analytics’ prior written consent.
3.3. You shall promptly bring to the attention of Surge Analytics any improper or wrongful use of any Intellectual Property Rights of Surge Analytics which comes to your notice. You shall assist Surge Analytics in taking all steps to defend Surge Analytics’ Intellectual Property Rights, but not institute legal proceedings of your own accord.
3.4. Surge Analytics and/or its licensors shall own and retain all right, title and interest in and to the Software, all improvements, enhancements or modifications thereto; and any software, applications, inventions or other technology developed in connection with the Software.
3.5. Nothing in these Terms shall operate to assign or transfer any intellectual Property Rights from Surge Analytics to you. You hereby warrant to Surge Analytics that any data it supplies to Surge Analytics will not infringe upon the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law or regulation.
3.6. You shall indemnify Surge Analytics against all loss or damage that you may incur or suffer, together with associated legal fees reasonably incurred by Surge Analytics, as a result of any claim by a third party that the access and use, in accordance with these Terms, by you of the Software infringes the Intellectual Property Rights of any third party.
4 Data Use
4.2. Surge Analytics shall not be responsible for any loss, destruction, alteration or disclosure of your data caused by any third party (except those third parties sub-contracted by Surge Analytics to perform services related to its maintenance and back-up). You waive any such liability to which Surge Analytics may otherwise be subject to the fullest extent permitted by applicable law.
4.3. Notwithstanding anything to the contrary, Surge Analytics shall have the right to collect, use, analyse or otherwise process your data and other information relating to the provision, use and performance of various aspects of the Software and related systems and technologies, and Surge Analytics will be free (both during and after the term of these Terms):
4.3.1 to use such information and data to improve and enhance the Software and for other development, diagnostic and corrective purposes in connection with the Services and other offerings of Surge Analytics;
4.3.2. to use such data in connection with its business, including for the training of machine learning algorithms and any other data processes deployed by Surge Analytics; and
4.3.3 to disclose such data to third parties solely in aggregate form reasonably necessary for the proper performance of its business functions.
4.4 You shall indemnify Surge Analytics against all loss or damage that Surge Analytics incurs or suffers however arising as a result of or in connection with any claim by a third party as a result of your use of data obtained from or provided to the Software, or your use of the Software.
5 Third Party Service Providers
5.1 You acknowledge that the Software may enable or assist you to access the services or content of or correspond with third-party services and that you do so solely at your own risk.
5.2 Surge Analytics makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or interactions with, any such third-party service.
6.1. In this clause, “Proprietary Information” means all information (whether written, oral or in some other form) disclosed to or obtained by one party (whether directly or indirectly) from the other (whether before or after the signing of this agreement), including all information relating to that other’s business, operations, systems, processes, products, trade secrets, know how, contracts, finances, plans, strategies or current, former or prospective clients, customers, partners or suppliers (together with copies made of any of the foregoing) and which information is marked as being confidential or might reasonably be assumed to be confidential, but excluding information which:
6.1.1. is available to the public other than because of any breach of these Terms;
6.1.2 is, when it is supplied, already known to whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; or
6.1.3 is independently obtained by whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others.
6.2. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose Proprietary Information to the other. Proprietary Information of Surge Analytics includes all non-public information regarding features, functionality and performance of the Services. Proprietary Information of you includes non-public data provided by you to Surge Analytics (for example, the parties and content of contracts) to enable the provision of the Services.
6.3. The Receiving Party agrees to take reasonable precautions to protect such Proprietary Information, and not to use (except as otherwise permitted herein) or divulge to any third person any such Proprietary Information.
6.4. Notwithstanding anything in these Terms, Surge Analytics may use any data, input, enhancements, know how or insights provided by you to develop or improve services provided by Surge Analytics to you or any other customers of Surge Analytics.
7.1. You shall defend, indemnify and hold harmless Surge Analytics against claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) arising out of or in connection with your use of the Software, provided that:
7.1.1 you are given prompt notice of any such claim;
7.1.2. Surge Analytics provides reasonable co-operation to you in the defence and settlement of such claim, at your expense; and
7.1.3 you are given sole authority to defend or settle the claim.
8 Limitation of Liability
8.1. This clause sets out the entire financial liability of Surge Analytics (including any liability for the acts or omissions of its employees, agents and subcontractors) to you:
8.1.1 arising under or in connection with these Terms;
8.1.2. in respect of any use made by you of the Software or any part of them; and
8.1.3 in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms.
8.2. Except as expressly and specifically provided in these Terms, you assume sole responsibility for results obtained from the use of the Software by you, and for conclusions drawn from such use. Surge Analytics shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Surge Analytics by you, or any actions taken by Surge Analytics at your direction. All warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement.
8.3. The Software is provided to you on an “as is” basis. Nothing in these Terms excludes the liability of Surge Analytics: (a) for death or personal injury caused by Surge Analytics’ negligence; (b) for fraud or fraudulent misrepresentation; or any liability for which it would be unlawful to exclude or attempt to exclude.
8.4. Subject to the paragraph immediately above, Surge Analytics shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement.
8.5. Surge Analytics’ total aggregate liability in contract (including in respect of the indemnities herein), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall not exceed 100% of the total fees paid by you to Surge Analytics in respect of the Software during the 6 months immediately preceding the date on which the claim arose.
9 Other Important Terms
9.1. This Agreement shall constitute the entire agreement between the parties in relation to the subject matter of these Terms, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter
9.2. Each of Surge Analytics and you acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.
9.3. A person who is not a party to these Terms has no right under any applicable law or regulation to enforce any provision of these Terms.
9.4. This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
9.5. No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. If any part of these Terms is, or is found to be, unenforceable under a relevant law, that will not affect the enforceability of the rest of these Terms.
9.6. You shall not, without the prior written consent of Surge Analytics, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
9.7. Surge Analytics may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this agreement.
9.8. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non contractual disputes or claims) shall be governed by and construed in accordance with the law of Singapore. Each party irrevocably agrees that the courts of Singapore shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).