Specific Terms and Conditions for Magicsoft Cloud Services
1. INCORPORATION BY REFERENCE
1.1 In addition to these Specific Terms and Conditions, Magicsoft General Terms and Conditions published at www.Magicsoft.com.sg/corporate/terms are deemed incorporated by reference.
1.2 The Customer acknowledges and agrees that he is bound by these Specific Terms and Conditions read with Magicsoft General Terms and Conditions and any other terms and conditions accepted by the Customer in the Service application form.
2.1 In these Specific Terms and Conditions, the following terms and expressions shall have the following meanings:
"ACSA Form" means the form given by Magicsoft and used by the Customer to subscribe for the Service;
"Agreement" refers to these Specific Terms and Conditions;
"Computing Resource" refers to server Core, RAM and Storage provided by Magicsoft as part of the Service;
"Customer", "you" or "your" refers to any person or entity that subscribes to the Service, having an account with Magicsoft and/or who uses the Service;
"Infrastructure As A Service or IAAS" refers to a service where IT computing resources comprising virtual and physical servers, are delivered as a hosted service and accessed by Customers remotely. The servers will include core, memory, storage and shared bandwidth as specified in the standard product package description;
"Maintenance Period" refers to a stipulated timeframe specified by Magicsoft during which the Service may be unavailable for operational reasons, including without limit, repair, maintenance, upgrade or improvement of the Service;
"Software As A Service or SAAS" refers to a service where software applications are delivered as a hosted service and accessed by Customers remotely;
"Service" refers to the provision of Cloud Computing services known as Magicsoft Cloud Services for Customers, including IAAS and SAAS;
"Service Contract" refers to the relevant minimum period of subscription that the Customer commits to when applying for the Service, calculated to commence on the RFS Date;
"Service Plans" refer to the standard product packages to which the Customer is subscribed to;
"RFS Date" refers to the date that Magicsoft completes the provisioning of the Service;
Any and all references to "we", "us", "our" or "Magicsoft " shall refer to Magicsoft Ltd.
3. ELIGIBILITY FOR SERVICE
3.1 The Customer shall ensure the satisfaction of the eligibility criteria set out herein, including any amendments which Magicsoft may make from time to time at its absolute discretion. Magicsoft reserves the right at its sole discretion to refuse to provide and/or suspend and or terminate the Service, in whole or in part, in the event that the eligibility criteria is not met, or ceases to be met, as the case may be.
3.2 The Service is available to customers who have the following:
(a) A valid Singapore Certificate of Incorporation ("COI"); or
(b) A valid Business Registration Certificate ("BRC").
3.3 The Service must be subscribed to by Customers under a valid Business Registration Number ("BRN").
3.4 The Customer must not have any outstanding accounts with Magicsoft and/or any entity forming the Magicsoft Group of Companies that are in arrears, due and owing to Magicsoft and/or any entity forming the Magicsoft Group of Companies at all times, subject to applicable laws and regulations.
3.5 Magicsoft reserves the right to, at its discretion, decline acceptance of the Customer's application for any reason or no reason.
4.1 The Service shall be provided to the Customer until termination of the Service in accordance with the terms of this Agreement.
4.2 Any request for changes to the Service by the Customer may be accepted by Magicsoft at Magicsoft 's sole discretion and, if accepted, shall be chargeable at Magicsoft 's prevailing rates.
4.3 The Customer acknowledges and agrees that the Service is provided subject to factors including without limitation, availability of network infrastructure, technical capacity and Service provisioning time required by Magicsoft to provide the Service. In addition, Magicsoft may change or otherwise modify the Service or any aspect or feature of the Service in accordance with technological developments and market demands from time to time at Magicsoft 's discretion and without any notice to the Customer.
4.4 The Customer acknowledges that the technical implementation that Magicsoft uses to deliver the Service is at Magicsoft 's sole discretion.
4.5 The Customer acknowledges that it must procure and maintain at its own expense any equipment, software or connectivity services required to access and use the Service.
4.6 No downgrading of Service Plans is allowed within the duration of the Service Contract. For avoidance of doubt, a 'downgrade' is defined as 'a change of existing Service Plan to another Service Plan with lower monthly subscription fees'. Any downgrading shall be treated as a termination of the existing Service Contract, and the Customer shall liable for the charges stated in Clauses 6.5, 6.6 and/or 6.7 hereinbelow (as may be applicable).
4.7 In the event that the Customer requests to increase or decrease the Service's Computing Resource, the Customer may be required to stop accessing, using and/or shutdown the Service during the Maintenance Period as stipulated by Magicsoft . Any request by the Customer for performance of any Computing Resource changes outside of the Maintenance Period may be accepted by Magicsoft at Magicsoft’s sole discretion and if accepted, shall be chargeable at Magicsoft stipulated rates.
5. SERVICE DURATION
5.1 A minimum 12 months' Service Contract shall be applicable for the Service, or such other period selected by the Customer as stated in the Application-Cum-Service Agreement ("ACSA Form"), or such other period as may be stipulated by Magicsoft as the relevant minimum period of subscription when the Customer applies for the Service.
6. SUSPENSION AND TERMINATION
6.1 In addition to the grounds for suspension and termination as set forth in Magicsoft 's General Terms and Conditions, Magicsoft reserves the right to suspend or terminate the Service or any part thereof, or to cease to provide you with the Service at any time in our discretion and without any liability to you whatsoever if:
(a) the use of the Service violates or is suspected to violate any terms and conditions of the Agreement, or your failure to comply with all applicable laws and regulations;
(b) as result of factors beyond our control, including without limitation, acts of God, natural disaster, act or omission of government authorities (including removal of any applicable license and issuance of court order) or change in legislation, regulation, policy or guideline, fire, civil disturbance, strike or weather, failures by our suppliers and any damage, destruction, corruption, breakdown, malfunction, mechanical or other defect in our systems or telecommunications link or components such that we are unable to provide the Service or the connection to our network; or
(c) provision of the Service or any part of this Agreement becomes unlawful, unenforceable, invalid or illegal for any reason.
6.2 Any such suspension or termination shall be without prejudice to Magicsoft 's accrued rights and all other rights and remedies available to Magicsoft at law or equity.
6.3 In the event that the Customer is not satisfied with the Service, or any of these terms, the Customer may and his sole and exclusive remedy is, to discontinue his access and use of the Service or terminate our provision of the Service by providing one (1) month's advance notice in writing to Magicsoft .
6.4 Upon the Customer's termination of the Service, all sums accruing, due or payable to Magicsoft in respect of the Service up to the date of termination (including any late payment charges) shall become due and payable to Magicsoft immediately.
6.5 A termination charge equivalent to 50% of the applicable subscription fees shall be payable by the Customer in the event of any cancellation of the Service prior to the RFS Date.
6.6 A termination charge of 100% of applicable subscription fees shall be payable by the Customer for any premature termination of the Service, for the remainder of the unused duration of the Service Contract.
6.7 Customer is required to provide no less than one (1) month's advance notice in writing for any cancellation or premature termination of this Service, otherwise, an administrative charge (which shall not exceed the value of one month's subscription fees) may be imposed in addition to the charges stated in Clauses 6.5 and 6.6 (as may be applicable).
6.8 Magicsoft is entitled to remove any Customer data which belongs to terminated Service accounts after a reasonable period of non-activity, at Magicsoft 's sole discretion.
6.9 Magicsoft may, at any time with or without notice to the Customer, temporarily suspend the Service for operational reasons, including without limit, repair, maintenance, upgrade or improvement of the Service. In such an event, Magicsoft shall use its best efforts to restore the Service as soon as reasonably practicable.
6.10 For the avoidance of doubt, any such suspension or termination by Magicsoft hereunder shall be without compensation to the Customer and without prejudice to Magicsoft 's rights to loss and damages as a result of the Customer's breach of this Agreement.
7. PAYMENT AND CHARGES
7.1 You will be charged, and you agree to pay, either (i) a lump-sum fee, or (ii) a recurring subscription fee (as the case may be) as agreed with Magicsoft , for the Service at the respective published or discounted rates, as applied by Magicsoft .
7.2 Upon signing the ACSA Form, Customer shall pay the subscription fee for the first month on a pro-rated basis, in addition to the subscription fee for the next month.
7.3 The subscription fee is payable in respect of a subscription based recurring Service, for the duration of a minimum service period as stated in the ACSA Form, and will be billed to the Customer monthly in advance, unless otherwise expressly agreed by Magicsoft in writing. Your failure to observe the payment of the monthly subscription for any minimum service period, or early termination during the minimum service period, shall incur termination charges.
7.4 All applicable fees shall be paid in full by the Customer, in the manner required, without any set-off, deduction or counterclaim, and the fees shall not be withheld on account of any reason in any event.
7.5 Magicsoft shall have the right to, at any time, change or otherwise modify any aspect or feature of the Service. Magicsoft shall also have the right to, at any time; amend any rules, rates, fees, charges, and/or terms and conditions in respect of the Service, by publishing such amendments on its website.
7.6 In addition to the applicable fees, a surcharge shall be payable for any Service provisioning on public holidays, the eve of public holidays, or outside of the following normal Business Hours: Monday to Friday 8.30am -6.00pm.
8. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTY
8.1 The Services are provided on an "as is" and "as available" basis and the Customer accepts that he accesses or uses them at his own risk. Magicsoft shall not have any liability whatsoever in respect of any loss or corruption of data suffered arising from the use of the Service, howsoever caused. Without prejudice to the foregoing, Magicsoft shall not be liable for any damages suffered or incurred by the Customer which may arise (whether in contract, tort, including negligence under statute or otherwise) by reason of or in connection with the provision of the Service.
8.2 In the event of Service outage, disruption or deterioration due to any lapse on the part of Magicsoft , Magicsoft shall use its best efforts to resolve the situation as soon as practicable. If Magicsoft is unable to fully restore the Service within seven (7) business days, then the Customer may terminate the Service and such termination shall be the Customer's sole remedy against Magicsoft. Accordingly, the Customer shall be liable to pay Magicsoft the monthly fees and any other charges due up to and including the effective date of termination.
8.3 Magicsoft shall not be liable to the Customer for any costs, loss, liability or damage (whether direct, indirect or consequential) arising out of this Agreement or the supply or non-supply of the Service, arising in any way, including in tort, negligence, breach of statutory duty or in connection with the Service.
8.4 Magicsoft expressly disclaims all warranties of any kind, whether express or implied, including implied warranties of merchantability, satisfactory quality, fitness for a particular purpose and non-infringement, to the fullest extent allowed by law.
8.5 Magicsoft does not warrant that the Service will be provided uninterrupted or available at all times or free from errors or that any identified defect will be corrected.
8.6 The Customer acknowledges and agrees that Magicsoft may rely on third party service providers in providing the Service to the Customer, including but not limited to any hardware, software and user documentation or other material from such third parties ("Third Party Inputs"), and accordingly, Magicsoft shall not be liable for any claims, damages, expenses or losses arising from or in connection with the use, inability to use, defect or failure of the Third Party Inputs or with respect to other aspects of the Service; including any loss or damage (whether direct, indirect, incidental, special, economic or consequential loss including without limit loss of profits, revenue, business opportunities, goodwill, data and/or value of Customer Equipment).
9. OBLIGATIONS OF CUSTOMER
9.1 The Customer is responsible for the use of the Service under his account and shall use the Service for lawful purposes only in accordance with this Agreement and any other applicable laws and regulations.
9.2 The Customer is responsible for the security of his account information, including without limitation passwords and/or encryption keys in relation to the Service.
9.3 The Customer understands and agrees that Magicsoft does not store any Customer's account passwords or encryption keys in its networks or servers, and accordingly Magicsoft shall not be liable to recover any data due to misplaced or lost account passwords and/or encryption keys.
9.4 The Customer acknowledges that all Service provisioning will be performed during normal Business Hours, Monday to Friday 8.30am â€“ 6.00pm, unless otherwise agreed between Magicsoft and Customer.
9.5 The Customer acknowledges and agrees that it is the Customer's responsibility to backup all data whilst using the Service.
9.6 Upon termination of the Service by the Customer or Magicsoft , Customer shall be deemed to have fully backed up all its data. Notwithstanding the foregoing, Magicsoft shall not be responsible for any loss of data under any circumstance.
10.1 The Customer agrees to fully indemnify, defend and hold harmless Magicsoft , its affiliates, subsidiaries, and all directors, officers and employees of the foregoing and any third party service providers from and against any and all claims, losses, damages and expenses (including reasonable legal expenses) arising out of the access and use of Service whether by the Customer or other persons.
11. GENERAL TERMS
11.1 The terms of this Agreement and any other applicable terms and conditions referred to herein may be revised by Magicsoft from time to time, with notice to the Customer in such manner as Magicsoft deems appropriate, which may include publication of such revisions on Magicsoft's website. The Customer shall be deemed to have accepted these Specific Terms and Conditions and such other applicable terms and conditions as revised by the Customer's continued use of the Service.
11.2 No delay or failure by Magicsoft to take any action or to enforce or exercise any of its rights in this Agreement will operate as a waiver of such rights by Magicsoft , nor will such failure or delay in any way prejudice or affect Magicsoft 's rights at any time thereafter to act strictly in accordance with our rights in this Agreement.
11.3 If any of these Specific Terms and Conditions is held to be unenforceable, invalid or illegal for any reason, that provision shall be severed from these Specific Terms and Conditions, save and except that the remaining provisions shall remain in full force and effect.
11.4 The use of the Service is subject to Magicsoft 's General Terms and Conditions, the terms and conditions accepted by the Customer in the ACSA Form and such other terms and conditions as may be agreed or accepted by the Customer. If there is any conflict or inconsistency between these terms and conditions herein, such conflict or inconsistency shall be resolved in a manner most favourable to Magicsoft and its affiliates, as determined by Magicsoft at its sole and absolute discretion.
11.5 This Agreement shall be subject to and construed in accordance with the laws of the Republic of Singapore and the Customer and Magicsoft hereby submit to the exclusive jurisdiction of the Singapore courts.