Terms & Conditions

Terms & Conditions

Last Updated Date: November 27, 2020

1. Parties

1.1 Toku Pte. Ltd. is a private limited company incorporated under the laws of Singapore with registration number 201734881W and having its registered office address at 10 Collyer Quay, #03-10 Ocean Financial Centre, Singapore 049315 (“Toku”, “We”, “Our”, “Us”).

1.2 We are the owner and/or licensor of the Toku Platform, through which We provide solutions that integrate traditional and digital telecommunications, with customer engagement solutions, communications APIs and other software and technology tools.

1.3 You are the individual or entity, who is contracting with Us for the provision of Services (“Customer”, “You”, “Your”, “Yours”).

 

2. Terms and Conditions

2.1 These terms (“Terms”) cover the use of the Toku Platform as well as the use of any Products and/or Services.

2.2 You accept these Terms by creating an Account, entering into a Services Agreement, through your use of the Toku Platform, the Products and/or Services, and/or by continuing to use the Toku Platform, the Products and/or Services after being notified of a change to these Terms

 

3. Changes to the Terms and Conditions

3.1 Toku reserves the right to update these Terms from time to time. We will provide You with a notification via email, where any changes are made. Where practicable, We will also give a reasonable period of advance notice in relation to any such changes.

3.2 The updated version of these Terms will immediately supersede any previous versions.

3.3 Where We have updated these Terms, Your continued use or access of Toku’s Services shall constitute acceptance of the updated Terms. If You disagree with any provision of the updated Terms, You should immediately cease to use the Services.

 

4. Precedence and Structure

4.1 These Terms supplement and are incorporated by reference into any Quotation which is provided by Toku and accepted by the Customer.

4.2 Your acceptance of a Quotation shall create a binding service agreement between Toku and you for the provisioning of the Products and/or Services on the terms set-out in the Quotation, effective from the date you accept the Quotation(each a “Services Agreement”).

4.3 If there is any conflict, ambiguity, or inconsistency between a Services Agreement and these Terms, these Terms shall prevail, provided that a Services Agreement may serve to amend Clause 23 of these Terms.

 

5. Right to Use

5.1 When you enter into a Services Agreement with Us, We grant to You a revocable, royalty-free, non-exclusive, non-transferable licence to Use the Toku Platform:

5.1.1 to access and Use the Products and/or Services; and

5.1.2 to access such additional content, information and related materials as We may make available to You from time to time.

5.2 Your right to Use the Toku Platform is strictly subject to and conditional upon Your ongoing and continuous compliance with:

5.2.1 these Terms; and

5.2.2 any applicable Services Agreement.

6. Termination of Services

6.1 Either Party may terminate a Services Agreement by serving a termination notice to the other party in accordance with the notice period specified in the Services Agreement.

6.2 In relation to each Services Agreement:

6.2.1 where the Term set-out in the Services Agreement is expiring, either Party may provide the other Party with 30 days’ written notice, if it wishes to terminate the Services Agreement at the end of the Term; and

6.2.2 where no notice is provided by a Party terminating the Services Agreement in accordance with Clause 6.2.1, the Services Agreement shall be automatically extended, on a month to month basis, until either Party provides the other with a termination notice at least 30 days before the intended date of termination.

6.3 Toku may terminate a Services Agreement with immediate effect by serving a termination notice if it is prevented from performing its obligations as a result of a Force Majeure Event, to which Clause 18 applies.

6.4 Toku may serve a termination notice to terminate the Services Agreement with immediate effect if the Customer:

6.4.1 commits a Material Breach; or

6.4.2 experiences, or is reasonably likely to experience, an Insolvency Event.

 

7. Consequences of Termination

7.1 Upon the termination of a Services Agreement:

7.1.1 You shall remain liable to pay any Recurring Fees, for the duration of any agreed Commitment Period;

7.1.2 Your right to access the associated Services and/or Products and any licenses in relation to the same shall immediately end; and

7.1.3 if all Services Agreements between You and Us have been terminated:

a) We will close your Account and You will also cease to have any access to the Toku Platform; and

b) We may delete any data or content associated with your Account, so please note that You should have a plan to regularly back-up Your data or other content, as We won’t be able to retrieve it once your Account is closed.

7.2 Upon the termination of a Services Agreement, the Parties shall promptly:

7.2.1 return all Confidential Information to the Party that disclosed it, or destroy such Confidential Information and provide evidence of destruction where requested;

7.2.2 take all possible action to mitigate any liabilities which may arise as a result of such termination; and

7.2.3 cease performance of the obligations under the Services Agreement and these Terms in accordance with, and to the extent specified in, the termination notice.

7.3 The termination of a Services Agreement shall not affect the rights or remedies of either Party which may have accrued under the Services Agreement and/ or Applicable Law up to the date of such termination.

7.4 The Parties agree that the Surviving Provisions shall survive the termination or earlier expiry of the Services Agreement for whatever reason.

 

8. Suspension of Services

8.1 Without prejudice to its rights under Clause 5, Toku may suspend the provision of the Services immediately, where the Customer fails to pay any amounts when due under a Services Agreement.

8.2 Without prejudice to its rights under Clause 5, Toku may serve a suspension notice to suspend the provision of the Services with immediate effect, where:

8.2.1 Toku becomes entitled to terminate the Services Agreement under Clause 6.4; or

8.2.2 the provision of the Services violates Applicable Law or would result in additional licensing requirements.

8.3 Where Clause 8.2 applies, the Parties acknowledge and agree that:

8.3.1 the Customer shall pay any Charges incurred for Services provided by Toku prior to its suspension, but shall not be liable for any other Charges for suspended Services during the period of such suspension;

8.3.2 solely where Clause 8.2.2 applies:

a) Toku shall make commercially reasonable efforts to restore the Service or to provide a functionally equivalent Service in a manner that is permitted under Applicable Law; and

b) (where applicable) Toku shall agree with the Customer separately on pricing terms for the functionally equivalent Service to be provided;

and

8.3.3 Toku shall not be liable in any way for any Losses suffered by the Customer as a result of Toku suspending the provision of the Services pursuant to Clause 8.2.

8.4 Without prejudice to its rights under Clause 5, Toku may, in its sole and absolute discretion, suspend the provision of the Services immediately and without the need for notice where:

8.4.1 the Customer, any of its customers or any Third Party whose relationship is with the Customer and not Toku:

a) uses equipment, which is defective, illegal or causes damages to Toku; or

b) utilises the Services in a way which damages or is likely to cause damage to Toku’s or any mobile network operator’s system or part thereof;

8.4.2 Toku has reason to suspect fraudulent, unlawful or unauthorised use; or

8.4.3 there is an exceptional spike in the level of traffic received such that it is reasonably necessary for Toku to block traffic from the Customer to protect its network or systems.

8.5 Toku shall use reasonable efforts to discontinue any suspension in the shortest possible time where the cause for such suspension has been identified and resolved.

 

9. Customer’s Obligations

9.1 The Customer shall at all times during the Term:

9.1.1 use the Services only for the purposes for which they are designed and provided;

9.1.2 obtain, maintain in force and comply with all necessary Approvals as required under the Services Agreement, these Terms and Applicable Law;

9.1.3 ensure that all content providers comply with the Services Agreement and these Terms, and accept all responsibility for the acts or omissions of such content providers;

9.1.4 comply with any acceptable use or other policies or terms and conditions, which are put in place by any Third Party service providers whose offerings are incorporated into the Services; 

9.1.5 not use (and not permit Third Parties to use) the Services in a manner which:

a) facilitates or engages in cryptocurrency mining.

b) violates Applicable Law;

c) violates the acceptable usages of any networks, equipment or services which are accessed through Toku’s network;

d) infringes Third Party IPR;

e) is fraudulent, deceptive or misleading;

f) is excessively burdensome or otherwise results in network interruptions of any kind;

g) involves illegal or unauthorised access, exploitation, interruptions or monitoring;

h) is illegal, immoral or to further improper purposes; or

i) is unsolicited by the End User.

9.1.6 provide Toku with access to all information it reasonably requires in relation to the Services;

9.1.7 ensure that all Customer Personnel observe the Services Agreement and these Terms and do all things necessary for the Customer to comply with the Services Agreement and these Terms; and

9.1.8 be solely responsible for any Third Party software that it uses in connection with the Services.

9.2 The Customer acknowledges and agrees that:

9.2.1 it shall not hold Toku liable for any interruption of or inability to use the Services where such event is caused by the Customer’s non-compliance with Clause 9.1; and

9.2.2 any breach of its obligations under this Clause 9 shall be a Material Breach.

9.3 The Customer acknowledges and agrees that it is solely responsible for:

9.3.1 the operation of its own business;

9.3.2 maintaining its own compliance with any Applicable Law and regulations; 

9.3.3 obtaining any Approvals it requires for its intended use of the Services; and

9.3.4 the use of the Services by its Authorised End-Users, including ensuring that all Authorised End-Users comply with the Customer’s obligations under the Services Agreement and these Terms.

9.4 With regard to Clause 9.3, the Customer is recommended to obtain its own legal advice on any regulatory obligations, guidelines and restrictions before using Toku’s services.

 

10. Embedded Third Party Services

10.1 The Customer acknowledges and agrees that:

10.1.1 certain Services may incorporate Embedded Third Party Services;

10.1.2 in relation to Embedded Third Party Services, except as otherwise agreed by Toku in writing:

a) the warranties, obligations and liabilities of Toku and the remedies of Customer with respect to Embedded Third Party Services will be limited to whatever recourse may be available against the Third Party provider of such Embedded Third Party Services; and

b) are subject to such additional restrictions and other limitations as may be displayed in or referenced by such Embedded Third Party Services;

and

10.1.3 Toku disclaims any and all warranties in connection with such Third Party service providers and any and all Embedded Third Party Services.

10.2 Azure Lab Services: Notwithstanding Clause 10.1, solely in respect of the Azure Lab Services, for the purposes of this Service Agreement, the Customer acknowledges and agrees that:

10.2.1 Toku is the sole provider of the Azure Lab Services to the Customer;

10.2.2 Toku disclaims any and all warranties in respect of the Azure Lab Services, on behalf of itself and Microsoft; and

10.2.3 the Customer disclaims any right to claim and agrees that it shall not seek to make any claim against Microsoft, in connection with the Azure Lab Services.

 

11. Obligations on both Parties

11.1 Both Parties:

11.1.1 shall at all times comply with Applicable Law and Good Industry Practice;

11.1.2 warrant that neither it nor any of its directors or employees are subject to any sanctions administered or enforced by any U.S. governmental authority including the Office of Foreign Assets Control (OFAC); and

11.1.3 represent and warrant that they are not located in a country classified as a U.S. Embargoed Country.

 

12. Security and Access

12.1 We do not guarantee that the Toku Platform will be secure or free from bugs or Viruses. You shall not misuse the Toku Platform by knowingly introducing any Viruses.

12.2 You shall not:

12.2.1 attempt to gain unauthorised access to the Toku Platform, the server on which the Toku Platform is stored or any server, computer or database connected to the Toku Platform;

12.2.2 attack the Toku Platform via a denial-of-service attack, a distributed denial-of-service attack or any other cyber-attack aimed to disrupt ordinary access to and/or functionality of the Toku Platform;

12.2.3 seek to reverse-engineer the Toku Platform or any elements within it;

12.2.4 seek to access, collect or store any Personal Information from the Toku Platform; or

12.2.5 otherwise use any unauthorised method to access, search, scrape, download or change any part of the Toku Platform or the elements within it.

 

13. Indemnities

13.1 The Customer shall fully indemnify Toku and its Affiliates from and against any and all Claims and/or Losses of whatever nature suffered, sustained, or incurred, arising out of or in connection with:

13.1.1 any breach of its obligations under Clauses 9, 12.2, 19.2, 20, 21 or 24; and

13.1.2 the use of the Services (including any Claims regarding content transmitted).

13.2 Each indemnity in the Services Agreement and these Terms:

13.2.1 is a continuing obligation separate and independent from the Customer’s other obligations; and

13.2.2 shall survive termination of the Services Agreement or these Terms.

13.3 The Customer shall not be liable under this Clause 13 to the extent the Claim and/or Loss occurred wholly and directly as a result of Toku’s gross negligence or wilful misconduct.

 

14. Unlimited Liability

14.1 Nothing in these Terms shall exclude or limit the Customer’s liability in connection with the Customer’s:

14.1.1 gross negligence or wilful misconduct;

14.1.2 fraud or fraudulent misrepresentation; and/or

14.1.3 breach of Clauses 12, 20 or 21.

 

15. Limited Liability

15.1.1 Toku shall not be liable for any Indirect Loss, or any Loss arising out of or in connection with:

a) any interruption in the provision of any Service;

b) any failure of its networks or any part of it; or

15.1.2 any error or omission in relation to information transmitted through the Customer’s networks.Toku’s maximum aggregate liability under or in connection with these Terms and any Service Agreement(s), shall not exceed the lower of:

a) the total amount of Charges paid by the Customer to Toku under the Services Agreement, in the 12 months prior to the event that caused the liability; or

b) USD 100,000.

 

16. No Liability

16.1 Toku shall not be liable to the Customer if changes in any of its facilities, operations, procedures or Services:

16.1.1 renders obsolete any equipment or facilities provided by the Customer in conjunction with its use of the Services;

16.1.2 requires modification, alteration or relocation of such equipment or facilities; or

16.1.3 otherwise affects the performance of such equipment or facilities.

 

17. Warranties and Representations

17.1 Toku warrants and represents to the Customer that:

17.1.1 it shall deliver the Services using the reasonable skill and care of a competent telecommunications service provider; and

17.1.2 it shall use reasonable efforts to restore the Services as soon as possible in the case of a network failure.

17.2 Except as set-forth in Clause 17.1, Toku disclaims any and all warranties, representations or other terms which may apply to the Services to the maximum extent permitted by Applicable Law, including:

17.2.1 the warranty of merchantability;

17.2.2 the warranty of satisfactory quality; and

17.2.3 the warranty of fitness for a particular purpose,

17.3 Except in relation to the warranties set-forth in Clause 17.1, Customer hereby waives, releases, and disclaims, all other warranties of any kind, whether express, implied or otherwise regarding the Toku Platform and any Products and/or Services, including any warranty that the Toku Platform, the Products and/or Services will be uninterrupted, error free or free of Viruses or other harmful components, or that any materials or content provided by Toku or a third party will be secure or not otherwise lost or damaged. 

 

18. Force Majeure

18.1 No Party shall be liable to the other for any delay or non-performance of its obligations under these Terms to the extent that such failure to perform is directly attributable to a cause which is unforeseeable and beyond the reasonable control of the Party so affected (a “Force Majeure Event”), including acts of God or nature, governmental acts or omissions, war or war-like conditions, mob violence, fire, flood, explosion or civil commotion.

18.2 The Party affected by a Force Majeure Event shall promptly notify the other Party and use reasonable commercial efforts to mitigate the impact of the Force Majeure Event, resuming performance of its impacted obligations as soon as reasonably practicable.

18.3 No Force Majeure Event shall excuse the Customer from its obligation to make any payments owed to Toku for services delivered before the Force Majeure Event; or that accrue due to the Customer’s continued use of the Services after the occurrence of a Force Majeure Event.

18.4 Subject to compliance with Clause 18.2, where a Force Majeure Event lasts for more than 3 months then Toku may terminate this Agreement at its election in accordance with Clause 6.2.

 

19. IPR

19.1 Nothing in these Terms is intended to or will create or vest in the Customer any right, title, or interest in any of the Products and/or Services, their configuration or the underlying equipment and assets used to provide them.

19.2 The Customer acknowledges and agrees that the Products and Services are licensed, not sold pursuant to the limited license set-out in Clause 5.1 and Toku reserves all rights to the Products and/or Services not expressly granted by Toku, whether by implication, estoppel, or otherwise. This license does not give You any right to, and You shall not:

19.2.1 circumvent or bypass any technological protection measures in or relating to the Products and/or Services;

19.2.2 disassemble, decompile, decrypt, hack, emulate, exploit, or reverse engineer any software or other aspect of the Products and/or Services that is included in or accessible through the Products and/or Services, except and only to the extent that the applicable copyright law expressly permits doing so;

19.2.3 publish, copy, rent, lease, sell, export, import, distribute, or lend the Products and/or the Services, unless Toku expressly authorizes you to do so;

19.2.4 transfer any rights to access or use the Products and/or Services, including any embedded software or software licenses; or

19.2.5 use the Products and/or Services in any unauthorized way that could interfere with anyone else’s use of them or gain access to any service, data, account, or network.

19.3 Unless otherwise agreed in signed writing between the Parties, the Customer shall not have any right to resell the Products and/or Services.

19.4 The Toku Platform, and all rights therein, are and shall remain Our property or the property of Our licensors. Neither these Terms nor Your Use of the Toku Platform shall convey or grant to You any rights whatsoever:

19.4.1 in or related to the Toku Platform, except for the limited licence granted in Clause 5.1; or

19.4.2 to use or reference in any manner Our Marks or those of Our licensors.

19.5 All content and functionality on the Toku Platform are the exclusive property of Us or Our licensors and are protected by Applicable Law.

19.6 The Marks displayed on the Toku Platform are IPR owned by Us and/or Our licensors. You shall not use or reproduce any Marks of Us or Our licensors, except as expressly agreed by Toku in writing.

19.7 You acknowledge and agree that upon entering into a Services Agreement, You shall have granted us an irrevocable, royalty-free, non-exclusive right to reference Your logo and/or name for Our own marketing purposes.

 

20. Data Protection

20.1 In addition to its general obligations to comply with Applicable Law, each Party shall comply at all times with any applicable data protection and/or privacy legislation that regulates the activities contemplated under the Services Agreement (“Data Privacy Laws”).

20.2 The Customer acknowledges and agrees that in relation to any Personal Information it provides to Toku that Toku shall: (a) only be acting in the capacity as “data processor” as generally understood by Data Privacy Laws; (b) not process the Personal Information other than on the other Party’s written instructions; and (c) not process that Personal Information for any other purpose other than to fulfil its obligations under the Services Agreement.

20.3 Each Party warrants and represents to the other Party that all Personal Information that it provides to the other has been provided in full compliance with Data Privacy Laws. Each Party acknowledges and agrees that any breach of its obligations under this Clause 20 shall be a Material Breach.

 

21. Confidentiality

21.1 Neither Party shall disclose Confidential Information to any individual, corporate or similar entity other than as authorised by the Disclosing Party and/or Applicable Law (a person so authorised being an “Authorised Recipient”) and even then only on a strictly ‘need to know’ basis. Each Receiving Party shall procure that its Authorised Recipients (including its own Personnel) are aware of, and fully comply with, its obligations under this Clause 21 as if that Authorised Recipient were themselves a Party.

21.2 This Clause 21 does not apply to Confidential Information which (a) is the subject of a mandatory announcement or disclosure required by Applicable Law or any order of a court of competent jurisdiction; (b) is in or comes into the public domain other than by breach of these Terms; (c) the Receiving Party can show it knew before disclosure; (d) was subsequently disclosed to the Receiving Party lawfully by a Third Party who did not acquire the information under an obligation of confidentiality; or (e) is independently developed by or for the Receiving Party at any time by Persons who have had no access to or knowledge of the said information.

21.3 For the purposes of Clause 21.2, where a Receiving Party is required to make a Mandatory Disclosure, then that Party shall (a) give the Disclosing Party as much notice of such disclosure as is reasonably practicable (provided Applicable Law permits the same); and (b) take into account the reasonable requests of the Disclosing Party in relation to the content of such disclosure before it is made.

 

22. Anti-bribery and corruption

22.1 Each Party warrants and represents to the other Party that throughout the Term (a) it is and shall remain knowledgeable about and will comply with all applicable anti-corruption, anti-bribery, antitrust and anti-money laundering laws, applicable tax laws and any other applicable criminal laws (“ABC Laws”) at all times and will ensure all of its Personnel are appropriately trained with respect to ABC Laws; (b) no payment nor any other advantage or favour that might give an improper advantage to the Customer’s business has been or shall be, directly or indirectly, offered, promised or provided to any Person including specifically a Public Official; and (c) none of its directors, officers or Personnel performing any of the obligations under this Agreement shall be a Public Official or have any close or personal association with any Public Official.

22.2 Each Party acknowledges and agrees that any breach of its obligations under this Clause 22 shall be a Material Breach.

 

23. Invoicing and Payment

23.1 Toku shall invoice the Customer as based on GMT +8. Payment of invoices shall become due 7 days after the date of issue of an invoice or as otherwise agreed in writing between the Parties. Toku shall be entitled to issue an interim invoice where there is a Credit Limit Breach. Where full payment is not received by Toku the outstanding amount shall automatically accrue interest at 1% per month from the date an invoice becomes overdue until it is paid in full. Any interest owed to Toku shall be payable on demand.

23.2 Subject to Clause 23.3, Toku may in subsequent invoices include Charges that were omitted from an earlier invoice or make adjustments for amounts incorrectly charged in an earlier invoice.

23.3 Toku acknowledges and agrees that no adjustments shall be allowed with respect to Charges that relate to Services supplied more than 120 days prior to the date of the new invoice purporting to make the adjustment.

 

24. Taxes

24.1 Subject to the following provisions in this Clause 24, all amounts specified under the Services Agreement  shall be exclusive of all Taxes.

24.2 Each Party shall bear its own Taxes (other than GST) in connection with each Party’s performance of its obligations under the Services Agreement.

24.3 Where the Customer is required under Applicable Law to Withhold, the Customer shall pay Toku such amount such that Toku receives the full amount to which it is entitled if no such Withholding had been required.

24.4 The Parties acknowledge and agree that the Charges shall be exclusive of GST. Where GST is required to be paid, the Customer shall bear the cost of any GST payments.

 

25. Disputes

25.1 If a dispute arises under the Services Agreement or these Terms, a Party may give to the other Party a dispute notice requiring its resolution in accordance with this Clause 24. During a dispute, the Parties shall continue to perform all of their obligations under these Terms without prejudice to their position in respect of such dispute, unless the Parties agree otherwise, and act in good faith and in a fair and equitable manner with a view to resolving the dispute without the requirement for formal proceedings.

25.2 If the dispute is not amicably resolved within thirty (30) calendar days after the date of the dispute notice, then either Party may refer the dispute to the courts of Singapore for resolution, in accordance with Clause 27.9.

 

26. Modification and Maintenance

26.1 Modification. Toku retains the right, in its sole discretion, to modify the Toku Platform and/or Products and/or Services, or to implement new elements as part of and/or ancillary to the Toku Platform and/or Products and/or Services from time to time and this may affect the previous mode of operation of the Toku Platform and/or Products and/or Services.

26.2 Software Updates. In connection with the aforesaid modification, you may be required to download software updates from time to time to continue using the Toku Platform and/or Products and Services. Toku will use best endeavours to provide you with the option of whether or not to install the update. However, do note that in certain circumstances, Toku may require you to install the update to continue accessing and using the Toku Platform and/or Products and Services. In all cases, you agree to permit Toku to deliver these updates to you (and you to receive them) as part of your use of the Toku Platform and/or Products and Services. You shall be solely responsible for any and all charges incurred for the download of such updates.

26.3 Maintenance. Toku reserves the right to shut down the Toku Platform  and the Products and/or Services for maintenance as and when required, in which case notification shall be given to you via email. Toku shall not be responsible for any damages or losses of whatever nature suffered by the Customer as a result the unavailability of the Toku Platform and/or Products and Services during maintenance.

26.4 Toku will not bear any responsibility or liability for any damage or loss you may suffer as a result of the aforesaid modifications and/or maintenance, including, without limitation, damages or losses as a result of the deletion of, or failure to make available to you, any content.

 

27. General

27.1 Authority. In accepting and agreeing these Terms, You hereby warrant and represent to Us that You have the lawful capacity and authority needed for You to do so.

27.2 Notices. Any notice to be given hereunder shall be given in writing to the party at the address specified in these Terms by personal delivery, certified mail, or by email. Notices to the Customer will be addressed to the relevant billing or other contact designated by the Customer in its account. Notices to Toku shall be copied to legal@toku.co, Attn: Toku Legal. Notices sent by email will be deemed received on the sender’s receipt of the system confirmation indicating that the email has been opened at the address to which it has been sent.

27.3 Inadequacy of Damages. The Customer acknowledges and agrees that any unauthorized use of the Toku Platform or the Products and/or Services and/or breach of these Terms or the Service Agreement may result in irreparable injury to Toku for which damages alone would be inadequate. Accordingly, Toku shall be entitled to seek an injunction, specific performance or other equitable relief for any threatened or actual breach of these Terms, a Service Agreement and/or any unauthorised use of the Toku Platform and the Products and/or Services.

27.4 Assignment. The Customer shall not, without the prior written consent of Toku, assign, transfer, charge or otherwise deal in any other similar manner with all or any of its rights under this Agreement and shall not subcontract any or all of its obligations under this Agreement, or purport to do any of the same.

The Customer acknowledges and agrees that Toku shall have the right at any time and in its sole discretion, to assign, transfer or charge to a third party all or any of its rights under any Service Agreement and to subcontract any or all of its obligations under any Service Agreement to any third party.

27.5 Remedies and Waivers. No failure on the part of Toku to exercise, and no delay on its part in exercising, any right or remedy under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. The rights provided in under this Agreement are cumulative and not exclusive of any rights or remedies provided by law. Waivers by Toku will only be effective if expressly granted in writing.

27.6 No Rights of Third Parties. Except as expressly stated, these Terms do not create any rights that are enforceable by any third party. A person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore, to enforce any term of this Agreement.

27.7 Language. These Terms are drawn up in the English language and the English language version of the same shall always prevail over any translation. These Terms shall be construed, interpreted and administered in English.

27.8 Severability. The illegality, invalidity, or unenforceability of any provision of this Agreement under the law of any jurisdiction shall not affect its legality, validity or enforceability under the law of any other jurisdiction nor the legality, validity or enforceability of any other provision.

27.9 Governing Law and Jurisdiction. This Agreement shall be governed by the laws of the Republic of Singapore without regard to its conflict of law provisions. The Parties agree to submit to the exclusive jurisdiction of the courts of the Republic of Singapore.

 

28. Definitions and Interpretation

28.1 The defined provisions in these Terms shall have the following meaning ascribed to them:

28.1.1 “Account” means the user account which You register with Us to access the Toku Platform;

28.1.2 “Administration Event” means an order that is made for the appointment of an administrator (or equivalent) to manage the affairs, business and property of a Party; or where documents are filed with a court of competent jurisdiction for the appointment of an administrator (or equivalent) of a Party; or where a notice of intention to appoint an administrator is given by a Party or its legal representative;

28.1.3 “Affiliate: mean any entity that is Controlled by a Party or under common Control of that Party;

28.1.4 “Applicable Law” means all national, state, local and municipal legislation, regulations, statutes, by-laws, including Approvals relating to or connected with the activities contemplated under the Services Agreement and these Terms, wherever so located and/or provided;

28.1.5 “Approvals” mean any licenses, permits, consents, approvals and authorisations that a Party may require (whether to comply with Applicable Law or otherwise) to perform its obligations under a Services Agreement and these Terms;

28.1.6 “Apps” means the Toku applications downloadable via a relevant app store including those offered by Apple Inc., Google Inc, etc.;

28.1.7 “Business Day” means any day other than a weekend, an official public holiday, or a day upon which banks are otherwise generally closed for business in Singapore;

28.1.8 “Billing Time Zone” means GMT +8 (SGT);

28.1.9 “Charges” means the fees payable by the Customer to Toku under a Services Agreement and these Terms, including any Recurring Fees;

28.1.10 “Claims” means any allegation, debt, judgment, cause of action, action, claim, proceeding, suit or demand of any nature howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, under statute or otherwise asserted by any Person at any time;

28.1.11 “Commitment Period” means any minimum term commitment period for the Customer’s payment of Recurring Fees for any Products and/or Services, as set-out in a Services Agreement;

28.1.12 “Confidential Information” means any Services Agreement and all information of any nature which a Party may have or acquire before or after the Effective Date (as stated on the Services Agreement), however conveyed (whether in writing, verbally, in a machine- readable format or by any other means and whether directly or indirectly), which relates to the business, products, price lists, developments, Personnel, suppliers and customers of a Party and its Affiliates (whether or not designated as Confidential Information by the Disclosing Party), and all information designated as confidential or which ought reasonably to be considered confidential;

28.1.13 “Control” means the: (1) ownership or control (whether directly or indirectly) of more than 50% of the voting share capital of the relevant entity; (2) ability to direct the casting of more than 50% of the votes exercisable at general meetings of the relevant entity on all, or substantially all, matters; or (3) right to appoint or remove directors of the relevant entity holding a majority of the voting rights at meetings of the board on all, or substantially all, matters, and the terms “Controls”, “Controlled” and “Controlling” shall have the equivalent grammatical meaning;

28.1.14 “Creditor Event” means where a Party makes any arrangement or composition with its creditors or makes an application to a court of competent jurisdiction for protection from its creditors in any way;

28.1.15 “Embedded Third Party Services” means services and/or software acquired or licensed by Toku from a third party that is included in the offering of the Services and/or Products, including but not limited to interface vendors, internet service providers, data centers, network connectivity providers and cloud computing services;

28.1.16 End User means a natural person who is in possession of or makes use of an electronic device and is consequently able to receive voice calls and/or SMS messages in connection with the Services;

28.1.17 “Good Industry Practice” means the exercise of that degree of skill, diligence and prudence which would reasonably and ordinarily be expected from time to time from a skilled and experienced Person carrying out the same type of activity, and applying the best industry practices under the same or equivalent circumstances;;

28.1.18 “GST” means goods and services tax or value-added tax or any other sales tax or any other taxes similar thereto which may be payable in relation to the supply and delivery of the Services;

28.1.19 “Indirect Loss” means  any loss of production, loss of use, loss of revenue, loss of profit, loss of contract, loss of goodwill, or any indirect, consequential or special loss;

28.1.20 “IPR” means patents, inventions (whether patentable or not), copyrights, moral rights, design rights, trade-marks, trade names, business names, service marks, brands, logos, service names, trade secrets, know-how, domain names, database rights and any other intellectual property or proprietary rights (whether registered or unregistered, and whether in electronic form or otherwise) including rights in computer software, and all registrations and applications to register any of the aforesaid items, rights in the nature of the aforesaid items in any country or jurisdiction, any rights in the nature of unfair competition rights, and rights to sue for passing off;

28.1.21 “Insolvency Event” means a Creditor Event, Receivership Event, Administration Event or a Winding-up Event;

28.1.22 “Loss or Losses” mean any loss, expense, claim, penalty expenses or equivalent which is suffered, including Indirect Loss, as may arise as a result of one Party’s actions or inactions in respect of their obligations under a Services Agreement or these Terms;

28.1.23 “Marks” means company names, product and service names, trademarks, service marks, designs and logos;

28.1.24 “Material Breach” means (1) a breach of these Terms or a Services Agreement which, is not capable of remedy or, if capable of remedy, which is not remedied by the breaching Party within 30 days of being notified of the breach; (2) a persistent pattern of minor breaches of these Terms or a Services Agreement, which when taken as a whole, constitute a material breach; or (3) any breach of any of the clauses in these Terms or a Services Agreement, which is designated as a Material Breach term;

28.1.25 “Person” means any natural person, corporate or unincorporated body (whether or not having separate legal personality), individual, corporation, partnership, limited liability company or similar entity;

28.1.26 “Personal Information” means data relating to a living individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the data controller;

28.1.27 “Products” means the telecommunications products to be provided by Toku to the Customer as set out in a Services Agreement;

28.1.28 “Receivership Event” means where a receiver (or equivalent) is appointed over any of a Party’s assets or undertaking or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager (or equivalent) of a Party, or if any other Person takes possession of or sells a Party’s assets;

28.1.29 “Recurring Fees” means any recurring, non-usage based Charges for Products and/or Services;

28.1.30 “Sites” means the Toku webclients for the provision of the Services, including Toku.co; Tokuworld.com; and Toku4teams.com;

28.1.31 “Quotation” means a quotation provided by Toku to the Customer, setting-out proposed terms for the provision of Services and/or Products by Toku and referencing these Terms;

28.1.32 “Services” means the telecommunications services to be provided by Toku to the Customer as set out in a Services Agreement;

28.1.33 “Services Agreement” means an agreement for the provision of Products and/or Services by Toku which is established pursuant to the Customer’s acceptance of a Quotation;

28.1.34 “Surviving Provisions” means Clauses 4, 7, 13, 14, 15, 16, 19, 21, 25, 27 and 28;

28.1.35 “Use” means using the Toku Platform (or any part thereof), including visiting the Sites or downloading the Apps and thereafter accessing, browsing, viewing or registering to use and utilising in any manner (as the case may be) the Toku Platform either directly or indirectly and “Using”  shall be construed accordingly;

28.1.36 “Taxes” means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of them);

28.1.37 “Third Party” means any Person who is not the Customer or Toku;

28.1.38 “Term” means the period of contract specified in a Services Agreement;

28.1.39 “Toku Platform” means the Sites and Apps;

28.1.40 “U.S. Embargoed Country” means any country which is subject to any import or export restrictions or prohibitions under US export regulations, including any sanctions administered or enforced by any U.S. governmental authority including the Office of Foreign Assets Control (OFAC) ;

28.1.41 “Viruses” means any viruses, worms, trojan horses, cancel bolts or any other computer code designed to disrupt or adversely impact computer systems, networks or devices;

28.1.42 “Winding-up Event” means where an order is made or a resolution is passed for the winding-up of a Party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of a Party; and

28.1.43 “Withholding” means the holding back of a portion of money by the Customer from monies owed to the Service Provider in respect of withholding Tax as may be required under Applicable Law, and “Withhold” shall have the equivalent grammatical meaning.

 

If you have any questions regarding this Agreement, please email us at legal@toku.co