This Acclivis Cloud Hosting Agreement (this “Agreement”) contains the terms and conditions that govern your access to and use of the Service Offerings (as defined below) and is an agreement between Acclivis (“AKY,” “we,” “us,” or “our”) and you or the entity you represent (“Customer”).
1. Definitions and Interpretation
1.1. In this Agreement unless the context indicates a contrary intention:
“Application Software” means the software owned or licensed by Customer not being the Operating System Software.
“Business Day(s)” means a day that is not a Saturday, Sunday or a gazetted public holiday in either Singapore, Malaysia, Thailand, or Indonesia depending where the Virtual Machines physical located.
“Change” any change to the System, Services, or any other provision of this Agreement.
“Change Control Process” means the process for proposing to make any Change, agreeing to perform a Change and performing any Change, as set out in clause 13.
“Change Request” means any written request by either party for Changes pursuant to the Change Control Process described in clause 13.
“Commencement Date” means the date when Customer received the Virtual Machine login via email.
“Designated Coordinator” means the representative or their nominee as varied from time to time by notification by one Party to the other, who shall issue and receive notices as required by this Agreement for the respective Parties and who shall generally ensure effective communications between the Parties.
“Equipment” means the computer hardware and backup media, if any.
“Force Majeure Event” means an event beyond the reasonable control of either Party including, but not limited to, earthquake, flood, fire, acts of God, and terrorist acts.
“Indirect Tax” - means any present or future goods and services tax, value added tax, service tax, consumption tax or other similar tax, which is levied or imposed by any government body.
“Intellectual Property” means all copyright throughout the world, patents, trademarks, designs, trade secrets, know-how, ideas, concepts, technology and industrial knowledge relating to or developed in connection with or in support of the System and Services.
“Intellectual Property Rights” means all rights arising from and in relation to Intellectual Property.
“Operating System Software” means the system software for use and operation in the provision of Services. Operating System Software includes all necessary system management and monitoring tools.
“Party” means either AKY or Customer as the context requires.
“Purchasing Services” means ad hoc purchases carried out by AKY, with Customer’s consent, to acquire goods and services associated with the Services and this Agreement.
“System” means the Equipment and the Operating System Software provided by AKY to run the Application Software.
“System Availability” means the availability of the System described in clause 4.
“Taxes” means any present or future tax, levy, impost, deduction, charge or duty including without limitation any Indirect Tax, which is levied or imposed by any government body, other than that imposed on net income.
“Third Party Provider” means any third party service provider supplying services to Customer, upon whom AKY’s performance of the Services may be dependent.
1.2. In this Agreement:
(a) clause headings are inserted for convenience of reference only and shall be ignored in the interpretation of this Agreement,
and unless the context otherwise requires:
(b) references to a clause shall be construed as references to a clause of this Agreement;
(c) references to any statute, ordinance or other law include all regulations and other enactments hereunder and all consolidations, amendments, re-enactments or replacements thereof;
(d) words importing the singular include the plural and vice versa, words importing a gender include other genders and references to a person shall be construed as including an individual, , firm, body corporate, association (whether incorporated or not), government and governmental, semi-governmental and local authority or agency; and
(e) References to currency are references to United State dollars.
1.3. Terms that are used elsewhere in this Agreement but which are not otherwise defined have the meaning given in the Schedules.
2.1. This Agreement shall commence with effect from the Commencement Date from the day Customer received the login of the Virtual Machines.
3.1. AKY shall provide the Services to Customer during the Term of this Agreement in accordance with the Service Descriptions as set out in the formal quotation, and for the associated Fees as set out the formal quotation by Acclivis.
3.2. In the provision of the Services, AKY shall use such due care; skill and diligence to be expected of a company engaged in the provision of computer facilities management services of the size, type, scope and complexity contemplated by this Agreement.
3.3. Without limiting the foregoing, AKY will at all times during the continuance of this Agreement provide an adequate number of suitably qualified and experienced personnel to provide the Services and comply with its obligations under this Agreement.
3.4. Customer shall ensure that any transfer, sub-lease, assignment or authorisation to act for Customer in respect of software licences, (including Application Software if applicable) which may be provided to AKY as necessary for AKY to lawfully provide the Services, is carried out or obtained prior to the Commencement Date.
3.5. AKY shall, in consultation with Customer, ensure that the cost to the Customer in relation to the item(s) purchased pursuant to the Purchasing Services is minimised. For the avoidance of doubt, Customer’s prior written consent must first be obtained prior to AKY’s purchase of any item(s) purchased pursuant to the Purchasing Services.
4. SYSTEM AVAILABILITY LEVELS
4.1. AKY shall supply the applicable Services to enable the System to be available for Customer's usage round the clock, seven (7) days a week and twenty-four (24) hours a day and three hundred sixty-five (365) days a year, throughout the Term. In the event the System is not available for Customer’s usage at any point in time, Customer shall notify AKY and AKY shall respond to Customer and commence all necessary rectification of such non-availability of the System within four (4) hours of Customer’s such notification.
4.2. AKY shall promptly notify Customer of any breakdown in the System or any other fault which may cause an interruption to the Customer’s operations.
5.1. Customer agrees to pay to AKY the Fees set out in the formal quotaiton in accordance with the terms of clause 7 below.
6. TERMS OF PAYMENT
6.1. Customer shall pay all undisputed Fees within seven (7) days from the date Customer receives AKY's invoice in other to avoid any service interruption.
7.1. Unless otherwise stated in the Schedules, any charges do not include Tax. Customer must pay any Tax on the charges for the provision of Services.
7.2. Without limiting clause 8.1, if any Indirect Tax is imposed on any Services or charges, in addition to the charges, Customer must pay an additional amount calculated by multiplying the charges (without deduction or set-off) by the prevailing tax rate.
8.1. AKY and Customer shall treat as confidential all information which comes into its possession pursuant to or as a result of or in the performance of this Agreement, whether such information relates to the business, sales, marketing or technical operations of either Party, the clientele of the Parties or suppliers to the Parties, or otherwise. For the purposes of this clause such information is referred to as “Confidential Information”.
8.2. AKY shall ensure that Confidential Information held in connection with this Agreement is protected against loss, and against unauthorised access, use, modification, disclosure or other misuse and that only authorised personnel have access to the confidential information.
8.3. Customer shall take all reasonable measures to ensure that Confidential Information held in connection with this Agreement is protected against loss, and against unauthorised access, use, modification, disclosure or other misuse and that only authorised personnel have access to the confidential information.
8.4. The Parties agree, in respect of Confidential Information of the other Party held in connection with this Agreement:
(a) to use Confidential Information of the other Party only for the purposes of fulfilling its obligations under this Agreement;
(b) not to disclose Confidential Information of the other Party without the written authority of the other Party except for the purpose of fulfilling its obligations under this Agreement ;
(c) not to transfer Confidential Information of the other Party outside Singapore, or allow persons outside Singapore to have access to it, without the prior written approval of the other Party;
(d) to secure the execution by any employee of it or of any sub-contractor requiring access to any Confidential Information of the other Party of a non-disclosure agreement in such form and specifying such matters as are required by the other Party; and
(e) to immediately notify the other Party where it becomes aware of a breach by it of this clause 9.
8.5. The operation of this clause 9 shall survive the termination of this Agreement for 1 year.
8.6. Nothing contained in this clause 9 shall be construed so as to place an obligation of confidentiality on either Party or its employees in respect of information that is or has become known to the general public other than as a result of a breach of this Agreement.
8.7. This clause 9 will not apply to Confidential Information of either Party to the extent that the other Party is required to disclose that information by law or by an order of a court or other tribunal of competent jurisdiction. Each Party shall immediately notify the other Party where it becomes aware that a disclosure of confidential information may be required by law or by an order of a court or other tribunal of competent jurisdiction.
8.8. Each Party must within 60 days of the other Party’s written request, return or destroy (as the case may be) all or any part of the Confidential Information of the other Party then in possession or control of the other Party.
9.1. The Customer may assign its rights and obligations or novate under this Agreement at any time with the prior written consent of AKY and subject to both parties mutually agreement.
10. DISPUTE RESOLUTION
10.1. Parties agree that in the event of any dispute, controversy and/or conflict between the Parties arising out of or relating to or in connection with this Agreement, Parties shall, in good faith, enter into amicable negotiations in order to settle such dispute, controversy and/or conflict. Parties agree that in the event Parties are unable to amicably settle such dispute, controversy and/or conflict within fourteen (14) days after written notice of such dispute, controversy or conflict has been given by one Party to the other Party, Parties may rely on any remedies available to them at law and in equity to resolve such dispute, controversy and/or conflict.
10.2. Both parties agree and acknowledge that this Agreement shall be in all respects subject to, governed by and construed in accordance with the laws of the Singapore. Both parties hereby submit to the non-exclusive jurisdiction of the Singapore courts in respect of all matters and/or disputes arising out of this Agreement.
11. TERMINATION & DISENGAGEMENT
11.1. Parties at any time mutually consent in writing to terminate the Agreement without cause on terms satisfactory by giving to each respective no less than thirty (30) days prior written notice of such termination.
11.2. Without in any way limiting any other remedies that a Party may have, where either Party is in material breach of this Agreement and continues to be in such breach twenty (20) Business Days after receiving notice in writing of this fact from the other Party, accompanied by a demand to rectify the breach where rectification is reasonable, the Party not in breach may terminate this Agreement.
(a) a receiver, receiver and manager, official manager, trustee, administrator or similar official is appointed, or steps are taken for such appointment, over any of the assets or undertakings of a Party;
(b) an application or order is made to place a Party under official management or a resolution is passed or any steps are taken to pass a resolution to place a Party under official management; or
(c) an application or order is made for the winding-up or dissolution of a Party or a resolution is passed or steps are taken to pass a resolution for the winding-up or dissolution of a Party,
then the other Party may immediately terminate this Agreement by providing written notice to the first-mentioned Party.
12. SERVICE LEVELS
12.1. The following section define the service levels for the Games Support Services. AKY will use the metrics in the following table as the service-level objectives associated with the services.
Type/ Action Response Time Incident Management
Severity 1 1 Hour 1 Hour regular update till resolution unless otherwise agreed
Severity 2 2 Hour 4 Hour regular update till resolution unless otherwise agreed
Enquiry 24 Hour
Request 24 Hour
12.2. For incidents reported and system generated incidents the following priorities apply:
(a) Severity 1 Incident – A critical service is impaired by the Incident. Service Level commitments are jeopardised by the Incident. Many Gamers have difficulty with the games play or individual Gamers are unable to access game services. You have no readily available alternative way of accessing the Game Services.
(b) Severity 2 Incident – A non-critical Service is unavailable or is impaired by the Incident. Service Level commitments are impaired in a minor way by the Incident. There is a minor impact on your business. Few gamers have difficulty accessing part of their game services while the Incident is being rectified.
12.3. In all of these Service-Level targets, AKY commitments relate solely to the services under its entire control. Where third parties, such as Customer and/or Games Developer are required to deliver the service, AKY will work with Customer to manage the timely restoration of services.
Where the performance of AKY Services is affected by one or more of the events set out below, AKY has no liability to Customer:
a. A Force Majeure event or circumstances leading to Force Majeure under the Agreement
b. Scheduled maintenance events or emergency maintenance events with 24 hours advance email notice
c. Outages caused by deliberately malicious acts or omissions by Customer or its employees
d. Outages caused by hackers, saboteurs, viruses, worms, or other third party wrongful actions
e. Customer failure to comply with its own obligations and responsibilities under this Agreement
f. Failures or malfunctions in any of Customer software, Equipment or technology
g. Failures or malfunctions caused by acts of omission of Customer, including misconfigurations
h. The failure of third-party service providers or outages or failures occurring outside AKY Core Services including but not limited to DNS issues
i. Circumstances where a System is unavailable for longer than the period of scheduled down-time (“Extended Down-time”), where:
i. AKY identifies and implements procedures to rectify the cause of the Extended Down-time
ii. The Extended Down-time is not caused by and has not arisen due to the fault of AKY
13. CHANGE CONTROL PROCESS
13.1. If either Party wishes to propose to the Services or any other provision of this Agreement (a “Change”) then it must send a Change Request to the other Party, specifying in as much detail as is reasonably practicable, the nature of the Change sought.
13.2. As soon as reasonably practicable after sending and receiving a Change Request, both Parties are to discuss the impact, if any, of the Change Request on any existing Services, or the additional investment in the Systems or other infrastructure required.
13.3. If both Parties agree to proceed with the proposed Change, both Parties must agree with:
(a) full details of the proposed Change including any specifications, special conditions and any variations to the agreement required;
(b) the cost of implementation and on-going operation of the relevant Change, if any;
(c) a timetable for the implementation; and
(d) details of any impact of the Change on existing Services.
13.4. All costs in relation to any Change, including any alteration of the charges or additional charges payable for the proposed Change will be agreed by the Parties.
13.5. Notwithstanding the procedure in clauses 14.1 to 14.4, if any Change is necessary to respond to an emergency that will materially affect the provision of the Services, and it is not reasonably practical to agree on the contents of that Change in advance in accordance with those provisions, then:
(a) the affected party must make its best effort to notify the other party of the need for an urgent Change;
(b) the Parties responsible must as soon as practicable make that Change;
(c) the Parties must then document the Change as soon as is reasonably possible; and
(d) the Parties will use reasonable efforts to agree to the impact of the Change as soon as reasonably possible.
14.1. All notices or approvals required by or provided in accordance with this Agreement shall be delivered to the respective Designated Coordinator as varied from time to time by notice in writing at the address nominated as varied from time to time by written advice of the Parties.
(a) All notices, requests and other communications must be delivered by hand, sent by pre-paid post, or sent by facsimile.
(b) A notice sent by post will be deemed to have been given at the time when, in due course, it would have been delivered at the address to which it is sent.
(c) A notice sent by facsimile will be deemed to have been given when the machine on which the notice is sent reports in writing that the notice has been fully transmitted satisfactorily, except if the notice is sent outside of the hours of 9am to 5pm on a Business Day in the place where the recipient is located, or on a non-Business Day, in which case the notice will be deemed to have been given at 9am on the next Business Day.
14.2. If any new tax or levy is introduced by government, excluding income tax changes, the resultant variation in cost of providing the Services under this Agreement shall be taken into account by way of an adjustment to rates contained herein by the amount equal to the cost variation resultant from the new tax or levy.
14.3. This Agreement and the Schedules hereto represents the entire agreement between the Parties who commit to abide by the terms and conditions contained herein.
14.4. A variation of any term of this Agreement must be in writing and signed by both Parties.
14.5. In carrying out its obligations under this Agreement, each party must comply with any relevant statutes, regulations and by-laws which apply in Singapore and the requirements of any government body with authority in Singapore.
14.6. A person who is not a party to this Agreement has no rights under any applicable legislation to enforce any term or condition in this Agreement.
15.1. aAfter the expiry or termination of this Agreement, neither Party will, without the prior written consent of the other, directly or indirectly induce or attempt to induce from the employment of, or other engagement by, the other Party, or employ or engage under a contract, any person involved in the provision or the receipt and/or administration of the Services.
15.2. The foregoing restraint upon a Party in relation to inducing or attempting to induce from employment of or other engagement by the other Party will not apply if the offer to employ or engage under contract any person has arisen because that person submitted an unsolicited response to a general public recruitment advertisement. To avoid doubt, a public advertisement will not affect the restraint against employment or engagement under a contract.
15.3. Where any of the Parties' employees directly approaches the other Party for employment or engagement as a contractor, the Party receiving that approach must refer that individual to its own human resources department. The consent of the individual to the disclosure of such approach to the other Party must be obtained prior to any further consideration of the request for employment or engagement. Provided such consent is obtained, the other Party will be advised of the direct approach of the individual as soon as practicable.
16.1. Despite any other clause of this Agreement AKY is solely responsible for:
(a) the management of sub-contractors and third parties appointed by AKY and who perform Services in relation to this Agreement; and
(b) the performance of any work performed by subcontractors or other third parties appointed by AKY and who perform Services in relation to this Agreement.
17. RELATIONSHIP OF THE PARTIES
17.1. Neither AKY, nor any of the staff nor any sub-contractor of AKY, is or is to be taken to be an agent, employee or partner of Customer. AKY must not, and must ensure that their staff and AKY’s sub-contractors do not represent themselves as being partners, employees or agents of Customer.
18. PRIORITY OF DOCUMENTS
18.1. In the case of a conflict between the documents which comprise this Agreement, the order of priority is (unless otherwise expressly agreed in writing):
(a) this document;
(b) the Schedules; and
(c) any other documents associated with the Services.
18.2. If any inconsistency occurs between the provisions of any of the above, the documents lower in the order of precedence must be construed as narrowly as necessary to resolve that conflict. If the conflict is not resolved by reading them down, the conflicting provisions contained in the document lower in the order of precedence are severed from that document. The remaining provisions of that document remain in force to the fullest extent possible.
19.1. Each Party warrants and represents to the other that, in the event of a change of control or solvent reorganisation of one Party, whether by merger, acquisition or otherwise, the other will not rely upon the changed circumstances to terminate this Agreement in whole or in part.
20. FORCE MAJEURE
20.1. If either Party to this Agreement is prevented or delayed in the performance of any of its obligations under this Agreement by a Force Majeure Event, and if such Party gives written notice thereof to the other Party specifying the matters constituting the Force Majeure Event, together with such evidence as it reasonably can give and specifying the period for which it is estimated that such prevention or delay will continue then the Party in question shall be excused. The performance or the punctual performance as the case may be as from the date of such Force Majeure Event for so long as such cause of prevention or delay shall continue as a result of the Force Majeure Event.