TERM OF USE
PLEASE READ THESE TERMS & CONDITIONS FOR USERS BEFORE PROCEEDING FURTHER. BY ACCESSING THE WEBSITE AND MOBILE SERVICES (AS DEFINED BELOW), UTILISING THE SERVICE (AS DEFINED BELOW) OR ORDERING ANY PRODUCTS (AS DEFINED BELOW), YOU ARE CONSENTING TO BE BOUND BY AND BECOMING PARTY TO A LEGALLY BINDING CONTRACT BETWEEN (i) YOURSELF; AND (ii) BENG KANG PRIVATE LIMITED (COMPANY REGISTRATION NO. 202012503E), THAT IS GOVERNED BY THESE TERMS & CONDITIONS FOR USERS.
These Terms & Conditions for Users form part of the Contract (as defined below) between BENG KANG PRIVATE LIMITED (also referred to as “BENG KANG”) and you. You are referred to as the “User” in these Terms & Conditions for Users.
1. DEFINITIONS AND INTERPRETATION
1.1. In these Terms & Conditions for Users, the following words and expressions shall have the following meanings:
“Application Form” means the application or application form on the Website and Mobile Service, that a User completes and/or submits on the Website and Mobile Service to register to access and utilise the Service.
“Catalogue” means the catalogue on the Website and Mobile Service listing the Products that are available for sale on the Website and Mobile Service.
“Changes” means any addition, deletion, modification or alteration to the Service, the manner in which the Service is provided, or the performance standards of the Service, as determined by BENG KANG from time to time.
“Charges” means any charges payable by the User for Products purchased from the Website and Mobile Service.
“Confirmation of Order” means BENG KANG’s acknowledgement of the User’s Order, which may be by way of a message on the Website and/or Mobile Service, and/or an email sent to the User’s specified email address.
“Content” includes text, images, graphics, music, software, audio, video, information or other materials.
“BENG KANG” means BENG KANG (SINGAPORE) PRIVATE LIMITED (Company Registration No. 195500108C), a Singapore incorporated company.
“External Advertisement” means advertisements placed or posted on the Website and Mobile Service by third parties or originating from third parties, other than BENG KANG.
“Terms & Conditions for Users” means these terms and conditions for Users prescribed by BENG KANG with respect to the provision by it of the Service and that may be posted by BENG KANG on its Website and Mobile Service, including any revised or amended version of the same as issued by BENG KANG from time to time and that may be posted on the Website and Mobile Service. Such revised or amended version of the same shall apply to the User and the User is deemed to have accepted the same, from the time it is published on the Website and Mobile Service.
“GST” means prevailing tax imposed under the Goods and Services Tax Act (Chapter 117A) of Singapore (the “GST Act”).
“Intellectual Property Rights” means all vested, contingent and future intellectual property rights including but not limited to goodwill, reputation, rights in confidential information, copyright, trademarks, logos, service marks, devices, plans, models, diagrams, specifications, source and object code materials, data and processes, design rights, patents, know-how, trade secrets, inventions, get-up, database rights, in each case whether registered or unregistered, and any applications or registrations for the protection of these rights and all renewals and extensions thereof existing in any part of the world, whether now known or in the future created.
“User” means any individual who applies or subscribes for or utilises the Service and/or the Website and Mobile Service.
“User’s Content” means Content posted, uploaded, published, submitted or otherwise made available by the User through the Website and Mobile Service, including but not limited to information, suggestions, ideas, concepts, know-how, reviews, techniques, questions, comments and testimonials, and the Contents therein.
“User’s Information” means all information which BENG KANG obtains, and any other information, and data provided by the User to BENG KANG, whether relating to himself/itself or otherwise, as a result of the User’s use of the Service.
“Order” means the order submitted by the User on the Website and Mobile Service to purchase Products.
“Party” means either BENG KANG or the User as the case may be, and “Parties” means both BENG KANG and the User.
“Product Information” means the information and write up on the Products, as set out on the Website and Mobile Service.
“Products” means the products, goods or items listed in the Catalogue.
“Related Corporation” has the meaning ascribed to it in Section 6 of the Companies Act (Chapter 50) of Singapore (and “Related Corporations” shall be construed accordingly).
“Return Policy” means the return policy relating to the purchase of Products by Users, as set out by BENG KANG on the Website and Mobile Service.
“Service” means a service provided by BENG KANG whereby BENG KANG provides an online platform that allows Users to access, browse and/or search the Catalogue and purchase Products; post and submit reviews, questions, comments and/or testimonials on Products;, and/or any other activities as determined by BENG KANG at its absolute discretion, in accordance to the terms hereof. Further details, if any, of the Service, may be set out by BENG KANG on the Website and Mobile Service.
“Website” means such Internet website(s) owned or controlled by BENG KANG, on which BENG KANG shall provide the Service, namely www.euyansang.com.sg
“Mobile Service” means such mobile application(s) owned or controlled by BENG KANG and made available for download via the Google Playstore or Apple App Store, on which BENG KANG shall provide the Service.
“Working Day” means any day which is not a Saturday, Sunday or a public holiday in Singapore.
1.2. Unless the contrary intention appears:
(a) A reference to these Terms & Conditions for Users or another instrument includes any variation or replacement of any of them;
(b) A reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(c) The singular includes the plural and vice versa;
(d) The word “person” includes an individual, a firm, a body corporate, a partnership, joint venture, an unincorporated body or association, or any government agency, and includes a reference to the person’s executors, administrators, successors, substitutes (including, without limitation, persons taking by novation) and assigns;
(e) If a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day;
(f) A reference to a day is to be interpreted as the period of time commencing at midnight and ending twenty-four (24) hours later;
(g) A reference to a time is a reference to Singapore time;
(h) A reference to anything (including, without limitation, any amount) is a reference to the whole and each part of it and a reference to a group of persons is a reference to all of them collectively, to any two or more of them collectively and to each of them individually;
(i) The words “including”, “for example” or “such as” are not used as, or to be interpreted as a word of limitation, and do not limit the meaning of the words to which the example relates to that example or example of a similar kind;
(j) No rule of construction applies to the disadvantage of a Party because that Party was responsible for the preparation of these Terms & Conditions for Users or any part of it; and
(k) Headings are inserted for convenience and do not affect the interpretation of these Terms & Conditions for Users.
2. APPLICATION OF TERMS & CONDITIONS TO THE SERVICE
2.1. These Terms & Conditions for Users shall apply to the provision of the Service.
2.3. These Terms & Conditions for Users shall apply to the Contract to the exclusion of any other terms and conditions which the User may purport to apply and in whichever way the User purports to introduce them (the “User’s Provisions”). For the avoidance of doubt, the User acknowledges and agrees that BENG KANG shall not be bound by any of the User’s Provisions.
3.1. Notwithstanding anything that may be to the contrary in the Application Form or the Terms & Conditions for Users, and regardless that the Contract has been concluded, BENG KANG reserves the right to refuse to provide the Service or to refuse commencement of the Service, without having to assign any reason for such refusal and without being liable to the User for any compensation whatsoever. Should BENG KANG choose to refuse to provide the Service to the User as aforesaid, the Contract between the User and BENG KANG shall be deemed to have never been concluded and neither Party shall owe any obligations to the other. Subject to the aforesaid, the Contract shall be deemed to have been concluded on the date that the User is able to access the Service after having applied for access on the Website or Mobile Service, or after having submitted the Application Form on the Website or Mobile Service.
3.2. Without prejudice to Clause 3.1, the User acknowledges that BENG KANG may require some time to activate the Service for the User subsequent to the User’s sign up for the Service.
3.3. Without prejudice to Clause 3.1 and/or notwithstanding anything that may be to the contrary, the commencement date of the Service shall be at the absolute discretion of BENG KANG
3.4. The User shall obtain and maintain at its own cost and shall be responsible for, to the absolute exclusion of BENG KANG, all telecommunications and other services, computers and any other hardware and any ancillary software required to enable the User to access the Service via the Internet.
3.5. Without prejudice to the foregoing subclauses, BENG KANG will use reasonable endeavours to provide the Service subject to the terms of the Contract and to the following:
(a) the User acknowledges that the Internet or the systems, servers, and equipment through which the Service is provided may from time to time be inoperative in full or in part as a consequence of but not limited to (i) mechanical breakdown, maintenance (whether emergency, scheduled or otherwise), hardware or software upgrades, telecommunication connectivity problems; or (ii) other factors beyond the control of BENG KANG; and
(b) BENG KANG shall not be liable in any way whatsoever for its failure or inability to provide the Service or to provide continuous, error free, uninterrupted Service, whether under the abovementioned or any other circumstances.
3.6. BENG KANG does not warrant in any way whatsoever that the User will be able to use the Service continuously or at all, or that such Service will be uninterrupted.
3.7. BENG KANG neither warrants nor guarantees that the form, wording, colour, style, text and look and feel of the User’s Content that eventually appears on the Website and Mobile Service will be the same as the User’s Content when submitted or posted by the User on the Website and Mobile Service and BENG KANG shall not be liable to the User in any way whatsoever for the aforesaid.
3.8. For the avoidance of doubt, BENG KANG retains absolute discretion in:
(a) inserting and publishing any statements on the Website and Mobile Service introducing the User’s Content, or in taking such steps as BENG KANG deems necessary or appropriate in making clear to viewers of the Website and Mobile Service as to the non-endorsement by BENG KANG of the statements or information in the User’s Content including but not limited to inserting and publishing any statements on the Website and Mobile Service disassociating itself from any User’s Content or the User, or making clear that BENG KANG does not endorse the statements or information set out in the User’s Content; and/or
3.9. The User acknowledges and agrees that:
(a) BENG KANG cannot and does not control or verify any External Advertisements, Product Information, the Content contained in any External Advertisements and/or Product Information and the condition, legality or suitability of any Products;
(b) BENG KANG does not warrant that the External Advertisements, Product Information or any contents therein contain accurate information;
(c) the External Advertisements, Product Information and contents therein are provided on an “as is” basis with no warranties whatsoever by BENG KANG, and the User fully assumes its own risk in relying on the External Advertisements, Product Information and contents therein;
(d) BENG KANG is not responsible for and shall not be liable in any way whatsoever to the User for:
(i) any External Advertisements including the content thereof; and/or
(ii) any loss or damage incurred or suffered or that may be incurred or suffered by the User arising from, connected with or related to any Products and/or External Advertisements; and
(e) in entering into any transaction for Products, it has made or will be relying on the User’s own independent assessment and it has not relied in any way whatsoever on any representations (if any), acts or omissions of BENG KANG in this respect,
and the User undertakes that it shall make no claim and take no action whatsoever against BENG KANG arising from, relating to or connected with any of the foregoing. The User further acknowledges and agrees that any transaction it enters into with BENG KANG and/or any other third parties will be wholly made at the User’s own risk.
3.10. Without prejudice to the foregoing, BENG KANG assumes neither responsibility nor liability arising from any Content posted, uploaded, submitted by any User, or from BENG KANG’s publication of the same, including but not limited to any error, defamation, libel, slander, omission, falsehood, obscenity, pornography, profanity, threats, or inaccuracy contained within any such Content. The User undertakes that it shall make no claim and take no action whatsoever against BENG KANG arising from, relating to or connected with any of the foregoing.
3.11. BENG KANG is not obligated to provide the Service to the User during times of maintenance (whether emergency or scheduled maintenance or otherwise) to any of the computer systems and/or equipment through which the Service is to be provided.
3.12. BENG KANG may at its absolute discretion make Changes from time-to-time (including changes to its standards and procedures relating to the Service, whether or not it results in an upgrade or a downgrade of Service performance), without notice.
4. ACCOUNT REGISTRATION
4.1. In accessing and utilising the Service, submitting the Application Form and/or in applying for an account to access or utilise the Service, the User warrants that:
(a) the User is at least 18 years of age;
(b) the User possesses the legal authority to create a legally binding obligation between itself and BENG KANG;
(c) if the User is an individual and is creating an account for a corporate/business entity, that the User is agent for and acts on behalf of the corporate/business entity and that it has the legal authority to create a legally binding obligation between BENG KANG and the said corporate/business entity.
(d) the User will use the Service in accordance with these Terms & Conditions for Users;
(e) all information supplied by the User in the Application Form, on the Website and Mobile Service is true, accurate, current and complete during the registration process and the User shall update such information to keep it accurate, current and complete; and
(f) the User shall safeguard his account information, including but not limited to his/its password which he/it shall not disclose to any third party. The User shall take sole responsibility for any activities or actions under his/its BENG KANG account, whether or not he/it has authorised such activities or actions.
5. CHARGES, PAYMENT AND TAXES
5.1. The User shall pay to BENG KANG the Charges for the Products by BENG KANG on the Website and Mobile Service. Once payment has been made, Charges are neither refundable nor exchangeable for cash, except in accordance with this Terms & Conditions for Users and the Return Policy. The User agrees that once the Charges have been paid to BENG KANG, title in the Charges shall wholly belong to BENG KANG.
5.2. The User shall pay the Charges by either PayPal, credit card or any other payment mechanism permitted by BENG KANG, as provided for on the Website and Mobile Service. The User hereby authorises BENG KANG to collect (whether directly or indirectly) such amounts by charging the User’s credit card (details of which were provided by the User), via a third party online payment processor or by one of the payment methods described on the Website and Mobile Service. The User shall provide customary billing information such as name, billing address and credit card information to BENG KANG or its third party payment processor, where requested.
5.4. The User acknowledges and agrees that BENG KANG cannot control any fees that may be charged to the User by its bank in relation to the payment of Charges and the User shall be wholly responsible for the same.
5.5. BENG KANG may at any time review and revise the Charges, and any new Charges so specified by BENG KANG shall apply from such date as BENG KANG may determine at its absolute discretion.
5.6. All Charges are payable in Singapore Dollars, unless the selected payment gateway allows for the Charges to be paid in another currency. The User acknowledges and agrees that any payment made to BENG KANG may incur foreign currency processing costs and these foreign currency processing costs shall be fully borne by the User.
5.7. For the avoidance of doubt, all Charges are inclusive of GST.
5.8. Without prejudice to the foregoing and except as expressly provided for otherwise, the User shall be responsible for all taxes, duties, levies, and other similar charges (and any related interest and penalties), however designated (hereinafter referred to as “Taxes”), arising out of or in connection with the Service, including but not limited to, any tax which the User is required to withhold or deduct from payments to BENG KANG, except any income tax imposed upon BENG KANG by the Inland Revenue Authority of Singapore.
5.9. If Taxes pursuant to Clause 5.8 above are required to be paid, the User shall pay such additional sums as are necessary to ensure that BENG KANG receives a net amount equal to the Charge which BENG KANG would have received had the payment not been made subject to such Taxes.
6. ORDERS AND DELIVERY
6.1. The User shall make an offer to purchase Products by submitting an Order on the Website and Mobile Service, in such form or manner as may be specified on the Website and Mobile Service. BENG KANG acknowledges the Order by issuing the Confirmation of Order.
6.2. The User acknowledges and agrees that the Order remains an offer to purchase and BENG KANG shall not be obliged to supply the Products to the User until BENG KANG has accepted the Order by dispatching the Order.
6.3. Prior to the issuance of the Confirmation of Order by BENG KANG, BENG KANG reserves the right not to process the User’s Order and the User reserves the right to cancel the Order. For the avoidance of doubt, on the issuance of the Confirmation of Order by BENG KANG, the User shall not be entitled to cancel or make amendments to the Order for which the Confirmation of Order has been issued.
6.4. There may be instances where errors may occur, in which case BENG KANG is under no obligation to fulfill the Order (even after the Confirmation of Order has been issued). If BENG KANG discovers an error in the description or price of any Products which the User has ordered, BENG KANG will inform the User of the error as soon as possible and give the User the option of reconfirming the Order at the correct description or price, or cancelling it. If BENG KANG is unable to contact the User, BENG KANG will treat the Order as cancelled. Where the Order is cancelled as provided in this Clause and the User has already paid for the Order, the User will receive a full refund.
6.5. Subsequent to the Confirmation of Order, BENG KANG shall endeavour to deliver the purchased Products to the User at the place of delivery requested by the User in the Order. Delivery of the purchased Products will be effected in the manner described on the Website and Mobile Service.
6.6. The User acknowledges and agrees that BENG KANG shall not be liable to the User for any losses, liabilities, costs, damages, charges or expenses arising out of or in connection with any late delivery by BENG KANG.
6.7. The User acknowledges and agrees that risk of loss or damage to the purchased Products passes to the User upon dispatch. The User acknowledges and agrees that title to the purchased Products passes to the User upon delivery.
6.8. If delivery is delayed through the User’s unreasonable refusal to accept delivery, BENG KANG may (without prejudice to another other right or remedy under this Terms & Conditions of Users):
(a) charge the User for BENG KANG’s reasonable storage fee and other costs reasonably incurred by BENG KANG arising out of or in connection with the User’s unreasonable refusal to accept delivery; and/or
(b) no longer make the purchased Product available for delivery and notify the User that the applicable contract is cancelled, in which case BENG KANG will refund to the User the applicable Charges (less any reasonable administrative fees or other costs as provided in Clause 6.8(a).
7.1. BENG KANG reserves the right to cancel the applicable contract and Confirmation of Order if it discovers an error or the applicable Products in the Order are not available for any reason. In such event, BENG KANG shall notify the User and return any Charges already made, in such form as determined by BENG KANG.
7.2. Prior to the issuance of the Confirmation of Order by BENG KANG, the User may cancel the Order by contacting BENG KANG’s customer service team at firstname.lastname@example.org or +65 62698639 BENG KANG reserves the right to charge a cancellation fee. The User acknowledges and agrees that once a Confirmation of Order is issued by BENG KANG, the Order may not be cancelled or amended by the User.
8. USER’S CONTENT AND USER CONDUCT
8.1. BENG KANG may at its absolute discretion edit or modify or refuse to publish any User’s Content, if any such User’s Content in BENG KANG’s sole opinion:
(a) are not of a quality or condition suitable for processing based on BENG KANG’s prevailing standard specifications and procedures applicable for the same;
(b) do not comply with BENG KANG’s applicable standards and procedures;
(c) are otherwise not in proper machine-readable form; or
(d) contain any material that BENG KANG deems at its absolute discretion, to:
(i) have breached any terms and conditions of the Contract;
(ii) likely to subject BENG KANG to unfavourable regulatory or statutory action;
(iii) contravene or likely to contravene any law;
(iv) infringe or likely to infringe the rights of any persons; or
(v) subject or likely to subject BENG KANG to liability for any reason whatsoever.
8.2. In the event that:
(a) the User’s Content; or
(b) the Service,
would cause BENG KANG to be in breach of any laws or regulatory requirements or guidance to which it is subject, BENG KANG shall be entitled to immediately suspend the Service and/or remove the User’s Content from the Website and Mobile Service, without incurring any liability to the User whatsoever. In the event of the aforesaid happening, BENG KANG has the right to immediately terminate the Contract without incurring any liability to the User whatsoever.
8.3. The User acknowledges and agrees that the User shall be solely responsible for compliance with any and all laws, rules and regulations that may apply to its access and use of the Website, Mobile Service, and/or Service.
8.4. In relation to the User’s use of the Website, and Mobile Service and/or Service, the User warrants and represents that it shall not:
(a) violate any laws, rules, regulations or any order of a court;
(b) use the Website, Mobile Service or Service for any other purposes that are not expressly permitted by the Contract;
(c) infringe the rights of any person or entity, including but not limited to, their Intellectual Property Rights, privacy, or contractual rights;
(d) use the Website, Mobile Service or Service to distribute unsolicited emails, advertisements, messages, or any other form of spam;
(e) harass or stalk any other user of the Website, Mobile Service or Service;
(f) collect or store any personally identifiable information about any other user in violation of applicable laws;
(g) register for more than one BENG KANG account;
(h) use any information acquired through the use of the Website, Mobile Service and/or Service for any other purpose, whether lawful or unlawful;
(i) impersonate any person or entity, or otherwise misrepresent himself as another person or entity;
(j) use the Website, Mobile Service and/or Service (including the forum and/or blog) for any unlawful purpose;
(k) make any misrepresentations when using the Service;
(l) post, upload, publish, submit or transmit any Content that: (i) is, or may be reasonably suspected by the User to be, fraudulent, false, misleading or deceptive; (ii) is defamatory, obscene, pornographic, vulgar or otherwise offensive; (iii) is racist or discriminating against any individual or group; (iv) is violent or threatening or promotes violence; or (v) promotes illegal or harmful activities;
(m) swear, use profanities, obscenities or any bad language of any kind, even if disguised with asterisks;
(n) access or tamper with the non public areas of the Website, Mobile Service and/or Service;
(o) interfere with or damage the Website, Mobile Service or Service, through the use of, without limitation, viruses, Trojan horses, malicious codes, malwares, or other similar methods or technology;
(p) attempt to probe, scan, or test the vulnerability of the Website, Mobile Service system or network or breach any authentication measures;
(q) avoid, bypass, deactivate, remove, or otherwise circumvent any technological measures implemented by BENG KANG or any of BENG KANG’s providers to protect the Website and Mobile Service; and/or
(r) advocate, encourage or assist any third party in doing any of the foregoing.
8.5. The User acknowledges and agrees that BENG KANG shall have the right to investigate and prosecute any violation of any of the subprovisions in Clause 8.4 to the fullest extent of the law. BENG KANG may involve and cooperate with law enforcement authorities in prosecuting Users who violate Clause 8.4.
8.6. For the avoidance of doubt, the User acknowledges and agrees that BENG KANG has no obligation to monitor the User’s access and use of the Website, Mobile Service or Service, or to review or edit any User’s Content, but BENG KANG shall retain the right to do so.
8.7. Without prejudice to any other remedies provided in accordance with the Contract or at law, BENG KANG reserves the right, at any time and without prior notice, to remove or disable access to any User’s Content that BENG KANG, at its sole discretion, considers to be objectionable for any reason or in violation of the terms provided in these Terms & Conditions for Users.
9. INTELLECTUAL PROPERTY RIGHTS AND WARRANTIES
9.1. The User acknowledges that all Intellectual Property Rights in the software and technology comprised in the Service are retained exclusively by BENG KANG and/or their rightful owner(s) and the User shall not do or permit any act which is directly or indirectly likely to prejudice the rights, title or interest of the said rightful owner(s) in and to any of the aforesaid. Without prejudice to the generality of the foregoing, the User shall not use in any way and shall not reproduce any trademarks that is associated with the Service, BENG KANG or that the User has sight of when using the Service (collectively the “Trademarks”), without the prior written consent of BENG KANG.
9.2. The User hereby undertakes and agrees:
(a) that BENG KANG is the true and lawful owner of the Trademarks and all derivatives thereof;
(b) not to use the Trademarks or any derivatives thereof or any other name or mark confusingly similar as the aforesaid;
(c) that all rights, title, interest and any goodwill in the Trademarks or any derivatives thereof belong exclusively to BENG KANG; and
(d) not to register domain names associated with or including the Trademarks or any derivatives thereof or any name that is confusingly similar to any of them including any visual or phonetic equivalent or other derivation thereof.
9.3. BENG KANG does not represent or warrant that the use or application of the Service by the User will not constitute an infringement or misuse of any Intellectual Property Rights.
9.4. The User agrees to assume all risks arising out of or relating to its use of the Service. Notwithstanding anything that may be to the contrary, BENG KANG makes no warranty that any information, software or any material made available by BENG KANG via the Internet relating to the Service does not contain computer viruses and BENG KANG accepts no responsibility or liability whatsoever relating to the aforesaid.
9.5. The User agrees to be bound by and shall execute any end user licence agreements relating to any software or technology utilised in the Service that BENG KANG may from time to time require the User to agree to and execute for the purpose of the provision of the Service, failing which the Service shall be discontinued or suspended at the discretion of BENG KANG.
9.6. The User hereby grants to BENG KANG, its Related Corporations and BENG KANG’s agents and subcontractors, a perpetual, irrevocable, worldwide, non-exclusive, no-charge, royalty-free, sublicenseable and transferable licence to use, process, display, reproduce, store, publish, transmit, communicate, adapt, translate, modify, deal in, and/or to use in any other way whatsoever, the User’s Content, or any part thereof, for any purpose.
The User agrees that BENG KANG shall have no duty to attribute authorship of the User’s Content to the User, and shall not be obligated to enforce any form of attribution by third parties. BENG KANG reserves the right to disclose, and the User hereby consents to such disclosures of, the User’s identity and personal data (i) for the purpose of attribution, and (ii) to any third party who claims material posted by the User violates their rights, including without limitation, their intellectual property and privacy rights. The provisions of this clause shall constitute a consent of the User for the purpose of the provisions of the Singapore Personal Data Protection Act 2010.
9.7. The User shall ensure, and warrants and represents to BENG KANG that:
(a) all information, materials and User’s Content that the User publishes or uploads shall not be defamatory of any party;
(b) the User’s Content do not infringe the rights of any party (including any Intellectual Property Rights of any third party throughout the world);
(c) it is the proprietor or authorised licensee of any and all Intellectual Property Rights (including copyright) in the User’s Content. The User further warrants that none of the Intellectual Property Rights in the User’s Content infringe the rights of any third party. In cases where the User is the licensee of any such Intellectual Property Rights in the User’s Content, the User warrants that it has a licence and has obtained the necessary consents to permit BENG KANG to deal in and use the aforesaid Intellectual Property Rights in any way conceivable and for any purpose;
(d) the User is entitled to enter into the Contract, is able to perform its obligations under the Contract and to grant BENG KANG the rights (including the licence under Clause 9.6) under the Contract;
(e) the User has all the necessary consents, licences, permits and approval(s) from the relevant authorities, bodies, organisations or as required by applicable laws in order to perform its obligations under the Contract;
(f) the User’s Content do not infringe any laws, statutes and regulations of any territory, including Singapore;
(g) the User’s Content will not cause BENG KANG to infringe the rights of any person or to infringe any laws, statutes and regulations of any territory, including Singapore;
(h) the User’s Content do not cause annoyance, embarrassment, distress, harassment, disturbance or nuisance of any kind whatsoever, or which is not in the public interest, or contain obscene, racially or ethnically objectionable material, or be offensive in any way.
9.8. The User undertakes:
(a) not to send or submit any materials or information or otherwise use the Service for a purpose, which under applicable laws, regulations or policies, (including those of countries where the User’s Content can be accessed via the Internet), or under international conventions, codes, regulations or licences of such countries, would be prohibited;
(b) not to cause BENG KANG to do anything that would amount to a contravention of the laws of Singapore, or international conventions, codes or regulations; and
(c) that in using the Service, the User will not do anything that will be unlawful or that will infringe the Intellectual Property Rights of any third party.
9.9. The User shall only have a limited, non-exclusive and revocable right for the duration of the Contract to access and view Content posted by BENG KANG, for the User’s personal and non-commercial purpose, subject to these Terms & Conditions for Users including payment of Charges where required by BENG KANG.
9.10. The User shall not use, copy, modify, adapt, distribute, create derivative works from, license, sell, broadcast or otherwise exploit or deal in the Content posted by BENG KANG, except as expressly permitted under these Terms & Conditions for Users.
10.1. From time to time during the term of the Contract, BENG KANG (the “Disclosing Party”) may, but is not obliged to, disclose information to the User (the “Receiving Party”) that is proprietary or confidential. The Receiving Party shall maintain in strict confidence all confidential or proprietary information of the Disclosing Party including but not limited to designs, plans or any other information relating to any research project, work in process, future development, scientific, engineering, manufacturing, marketing or business plan or financial or personnel matter relating to the Disclosing Party, its present or future products, sales, suppliers, employees, investors or business, including prices and discounts (“Confidential Information”) identified by the Disclosing Party or where it ought reasonably to be known as Confidential Information, whether in oral, written, graphic or electronic form. The Receiving Party shall not use, disclose or grant the use of such Confidential Information to any third party except for the purposes of performing obligations to the Disclosing Party under the Contract. The Receiving Party shall ensure its employees, agents or consultants to whom disclosure is to be made on a need to know basis, hold the Confidential Information in strict confidence and not make any use of such information for any purpose other than those expressly permitted by the Contract. The Receiving Party shall use (and require that all employees, agents and consultants) at least use the same standard of care as the Receiving Party uses to protect its own Confidential Information of a similar nature from unauthorised use or disclosure, but in no event less than reasonable care. The Receiving Party shall promptly notify the Disclosing Party upon discovery of any unauthorised use or disclosure of the Confidential Information of the Disclosing Party.
10.2. The obligations contained in Clause 10.1 shall not apply if:
a) the Confidential Information was already known to the Receiving Party, other than under an obligation of confidentiality, at the time of disclosure by the Disclosing Party;
b) the Confidential Information was generally available to the public or otherwise part of the public domain at the time of its disclosure to the Receiving Party;
c) the Confidential Information became generally available to the public or otherwise part of the public domain after its disclosure and other than through an act or omission of the Receiving Party in breach of the Contract;
d) the Confidential Information was disclosed to the Receiving Party, other than under an obligation of confidentiality, by a third party who had no obligation to the Disclosing Party not to disclose such information to others; or
e) the disclosure or use is required by law, any regulatory body or the rules and regulations of a relevant recognised stock exchange.
10.3. This Clause shall survive termination of the Contract.
11. LIMITATION OF LIABILITY
11.1. The User acknowledges that (i) the Service presents the possibility of human and machine errors, omissions, delays, and losses, including the inadvertent loss of data; and (ii) the Products may contain manufacturing faults which are not attributable to BENG KANG, which may give rise to loss or damage suffered by the User, and the User agrees that it shall not hold BENG KANG liable in any way whatsoever for the said loss or damage.
11.2. BENG KANG makes no guarantee, representation or warranty whatsoever:
a) that the Service will be available on a continuous or 24x7 basis;
b) that the Website and/or Mobile Service will be available on a continuous or 24x7 basis for access; and/or
c) of the effect or benefits that can be derived by the User from using the Service or from using the Products.
11.3. The User acknowledges that BENG KANG’s systems, servers and equipment, or such other third party systems, services and equipment, used to operate the Website and/or Mobile Servoce, may from time to time be inoperative or only partly operational as a consequence of mechanical breakdown, maintenance, hardware or software upgrades, telecommunication connectivity problems or other causes whatsoever. BENG KANG may schedule downtime for the Website and/or Mobile Service for maintenance purposes without giving notice thereof. BENG KANG shall not be liable for any loss, damage, claims, costs or expense of any kind arising from any such downtime, or from any unavailability or inoperability of any telecommunications systems or internet, technical malfunction, error, omission, interruption, delay in operation or transmission, computer error or viruses, any failure in communication lines or telecommunications networks, or any corruption or loss of data or other disruption of any kind.
11.4. All express and implied warranties or conditions, statutory or otherwise as to completeness, accuracy, sufficiency, quality or fitness of the Service and Products for any purpose or any business whatsoever whether known to BENG KANG or otherwise, are hereby excluded. BENG KANG gives no condition, warranty, or undertaking, and makes no representation to the User about the:
a) suitability of, or fitness of the Service or Products for the User’s purposes; or
b) availability of the Service or Products, or operational availability of the Service.
11.5. The User acknowledges and agrees that the Service and Products are provided on an “as is” and “as available” basis, with all faults, and BENG KANG disclaims all warranties and makes no warranty of any kind, whether express or implied (statutory or otherwise), including but not limited to warranties on the ownership of Intellectual Property Rights and implied warranties of merchantability, sufficiency, quality and fitness for a particular purpose. BENG KANG does not warrant that the Service will be uninterrupted or error-free.
11.6. To the extent permitted by law, BENG KANG shall not be liable to the User in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever and whatever the cause thereof, for any indirect, consequential, collateral, special or incidental loss or damage suffered or incurred by the User in connection with the Service or Products, or any transaction relating thereto, whether during or after the term of the provision of the Service or Products. For the purposes of these Terms & Conditions for Users, indirect or consequential loss or damage includes, without limitation, loss of revenue, profits, anticipated savings or business, loss of data or goodwill, loss of use or value of any equipment including software, claims of third parties, and all associated and incidental costs and expenses.
11.7. Where BENG KANG’s liability is not expressly excluded under these Terms & Conditions for Users or under any applicable law, BENG KANG’s liability for direct damages to the User in contract, tort (including negligence) or otherwise whosoever and whatever the cause thereof, arising by reason of or in connection with the Service or Products, any transaction relating thereto or the Contract shall be up to a maximum aggregate amount of the Charges received by BENG KANG from that User.
11.8. Nothing in these Terms & Condition for Users in any way excludes or restricts a Party’s liability for death or personal injury resulting from the negligence of that Party.
11.10. For the purposes of this Clause 11, all references to BENG KANG shall also include its respective officers, employees, affiliates, sub-contractors and agents.
12.1. Notwithstanding anything that may be to the contrary, the User undertakes to indemnify and at all times hereafter to keep each of BENG KANG and its Related Corporations (together with their respective officers, employees and agents) (each an “Affected Party”) indemnified against any and all losses, damages, actions, proceedings (whether such proceedings have been brought or are threatened to be brought), costs, claims, demands, liabilities (including full legal costs on a solicitor and client basis) which may be suffered or incurred by the Affected Party or asserted against the Affected Party by any person whatsoever, in respect of any matter or event whatsoever arising out of, in the course of, by reason of or in respect of:
(a) the User’s Content or any part thereof (including but not limited to any use or dealing by BENG KANG or its Related Corporations, its agents or subcontractors, of the User’s Content);
(b) the performance of the Service;
(c) a breach by the User of any of the provisions in the Contract (including these Terms & Conditions for Users), including but not limited to a breach of any of the warranties or undertakings in Clause 9;
(d) any act or omission of the User or its agents or sub-contractors; and
(e) the User’s Content, or any part thereof, infringing the Intellectual Property Rights or other rights of, or any claim that the User’s Content, or any part thereof, infringe, the Intellectual Property Rights of, any party, in any part of the world.
12.1. For the purposes of this Clause, “claim” shall mean all demands, claims and liability (whether criminal or civil, in contract or tort or otherwise).
13. FORCE MAJEURE
13.1. Force Majeure means anything outside the reasonable control of a Party (other than in respect of payment obligations), including but not limited to, acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, labour dispute, labour shortage, power shortage or failure, server crashes, severance of the Internet submarine transmission cable under the sea that prevents or impedes the transmission of User submissions and data, emergency maintenance on the Service that is necessary to protect the Service in response to actual or reasonably anticipated acts or threats of terrorism (including internet terrorism involving but not limited to the release of new internet viruses and worms that are not in existence at the date of the Contract), deletion, corruption, loss or removal of data, transportation embargo, failure or delay in transportation, including without limitation where a Party ceases to be entitled to access the Internet or ceases to have access to the Internet for whatever reason, any act or omission (including laws, regulations, disapproval’s or failures to approve) of any government or government agency.
13.2. If a Party is wholly or partially precluded from complying with its obligations under the Contract by a Force Majeure event, then that Party’s obligation to perform in accordance with the Contract will be suspended for the duration of the Force Majeure event and that Party shall not be liable in any way whatsoever for its failure to perform for the duration of the Force Majeure event.
13.3. If such event continues for a period in excess of thirty (30) continuous days, then the Party whose performance is not prevented by such Force Majeure event shall be entitled at its sole discretion to terminate the Contract forthwith on notice in writing.
13.4. Except as otherwise expressly set out herein, termination of the Contract as aforesaid shall be without prejudice to the rights or liabilities of the Parties that have accrued prior to the date of termination.
14.1. Either Party (“Terminating Party”) may terminate the Contract by providing written notice to the other Party where the other Party breaches any of the terms and conditions of these Terms & Conditions for Users (or the Contract) and the Terminating Party has given fourteen (14) days’ notice of such breach and the other Party has failed to rectify such breach within that time.
14.2. BENG KANG may terminate the Contract and cancel the User’s account immediately where:
(a) BENG KANG is of the opinion that the Service has been used by the User in any manner unacceptable to BENG KANG, and where BENG KANG has given fourteen (14) days’ notice of such breach and the User has failed to rectify such breach within that time;
(b) the User has outstanding Charges or any other monies due and payable to BENG KANG, if any, which remain unpaid, and where BENG KANG has given fourteen (14) days’ notice of such breach and the User has failed to rectify such breach within that time;
(c) BENG KANG is unable to provide the Service due to lack of reasonable operating capacity;
(d) the User has been adjudged bankrupt or if a receiving order has been made against it, or if the User is insolvent or is in liquidation (whether voluntary or compulsory) or if the User has made compositions or arrangements with, or assignment for the benefit of, its creditors;
(e) the User, in the case of a corporation, has a winding-up petition presented against it, or has a receiver or a receiver and manager or a judicial manager appointed;
(f) the User, in the case of a corporation, has in BENG KANG’s reasonable opinion, ceased to carry on business;
(g) the continued operation of the Service would in the opinion of BENG KANG (at its absolute discretion) be unlawful or be commercially non-viable to BENG KANG;
(h) in BENG KANG’s reasonable opinion, the User attempted to use, is likely to use or has used the Service (whether with or without the authorisation and/or permission of BENG KANG) in contravention of any law; or
(i) any material information provided or representation made by the User to BENG KANG is untrue, misleading or inaccurate and has an adverse material impact on BENG KANG in relation to its provision of the Service.
14.3. In the event that any governmental or regulatory authorities direct or instruct or give guidance that BENG KANG should cease the Service, or the Service would cause BENG KANG to be in breach of any laws or regulatory requirements or guidance to which it is subject, BENG KANG shall be entitled to immediately terminate the Contract forthwith without entitling the User to receive any compensation in respect of the termination.
14.4. BENG KANG reserves the right to immediately suspend the Service and/or terminate the Contract if BENG KANG is unable to provide the Service or is unable to continue providing the Service due to a termination of the underlying licence or agreement permitting BENG KANG to use the software or system through which the Service is to be provided. BENG KANG shall not be liable to the User whatsoever and the User shall not be entitled to receive any compensation from BENG KANG, arising from such immediate termination.
14.5. Regardless of termination of the Contract for any reason, the User shall remain obligated to pay BENG KANG all Charges and any other sums that have accrued or are otherwise owed by the User to BENG KANG up to the date of termination, if any.
14.6. In the event of termination of the Contract due to any cause the User acknowledges that BENG KANG will upon termination of the Contract immediately cease providing the Service to that User and BENG KANG may at its absolute discretion delete all of the User’s Content.
14.7. Unless otherwise expressly stated, any termination by either Party of the Contract shall be without prejudice to any other rights or liabilities of either Party accrued prior to and including the date of termination.
14.8. Any termination or suspension of the Service by BENG KANG for whatever reasons shall not entitle the User to receive any compensation in respect of the termination. For the avoidance of doubt, notwithstanding termination of the Contract for any reason whatsoever (including where it is terminated by the User), Charges paid are not refundable to the User and the Charges shall be wholly retained by BENG KANG for BENG KANG’s absolute disposal and use, subject to the Return Policy.
14.9. Any termination of the Contract (howsoever occasioned) shall not affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination. Without limiting the generality of the foregoing, Clauses 3, 9, 10, 11, 12, 14.3 to 14.9, 17 and 18.10 of these Terms & Conditions for Users shall survive termination of the Contract.
15. MODIFICATIONS AND AMENDMENTS
15.1. BENG KANG reserves the right to amend or supplement these Terms & Conditions for Users from time to time, and the User shall be bound to observe and comply with any such amendments or supplements to these Terms & Conditions for Users upon their publication by BENG KANG (whether by posting on the Website and Mobile Service or otherwise).
15.2. BENG KANG reserves the right, at its absolute sole discretion, to modify the Website, Mobile Service and/or Service, including the Charges, at any time and without prior notice.
15.3. The User acknowledges and agrees that any continued access and utilisation of the Website, Mobile Service or Service after any such amendments or modifications shall be deemed to be an agreement by the User to be bound by the modified terms.
16.1. All notices, demands or other communications required or permitted to be given or made under or in connection with the Contract shall be in writing and shall be sufficiently given or made if :
(a) if delivered by hand;
(b) sent by pre-paid registered post; or
(c) sent by legible facsimile transmission or by email (provided that there has been successful transmission),
addressed to the intended recipient at its address or facsimile number or email address as may be notified to the other Party in writing from time to time.
16.2. Any such notice, demand, court process or communication shall be deemed to have been duly served if it is (i) delivered by hand or sent by pre-paid registered post, at the time of delivery; or (ii) if made by successfully transmitted facsimile or email transmission, at the time of dispatch.
17. GOVERNING LAW AND DISPUTE RESOLUTION
17.1. The Contract and any matters relating thereto shall be subject to and construed in accordance with the laws of the Republic of Singapore.
17.2. Any dispute or controversy arising in connection with the Contract, which cannot be settled by mutual or amicable agreement, shall be finally settled in accordance with the Rules of the Singapore International Arbitration Centre ("SIAC Rules") by one arbitrator appointed in accordance with the SIAC Rules. The place of arbitration shall be Singapore. The arbitration shall be conducted in English. The decision and award resulting from such arbitration shall be final and binding on the Parties.
17.3. For the purpose of enforcing the Contract and notwithstanding Clause 17.2, BENG KANG has absolute discretion to seek equitable relief from a court of competent jurisdiction, as it may choose, without first attempting to resolve a dispute under Clause 17.2 and the User hereby submits to the jurisdiction of the court which BENG KANG may seek relief from under this subclause. For the avoidance of doubt, the right under this subclause is only extended to BENG KANG and not to the User.
18.1 .The waiver by a Party of a breach or default of any of the provisions of the Contract by the other Party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of a Party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other Party. A waiver has to be in writing to be effective.
18.2. The Contract shall be binding upon and enure for the benefit of the successors in title of the Parties hereto.
18.3. If any of the provisions of the Contract becomes invalid, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
18.4. The User shall not assign, transfer, charge or otherwise deal with the Contract or any obligation under the Contract, without the prior written consent of BENG KANG.
18.5. BENG KANG has the right to assign or transfer all or part of its rights, benefits and/or obligations under the Contract.
18.6. BENG KANG has the right to enter into any sub-contract for the performance of any of its obligations under the Contract without prior consent of the User.
18.7. A person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act (Chapter 53B) of Singapore to enforce any term of the Contract.
18.8. The relationship of the Parties shall be solely that of independent contractors. Nothing in the Contract shall be deemed to constitute, create or give effect to or otherwise recognise a joint venture, partnership or formal business entity of any kind, and the rights and obligations of the Parties shall be limited to those expressly set forth herein. Nothing herein contained shall be construed as authorising either Party to act as an agent or representative of the other Party.
18.9. The Contract (as may be amended from time to time pursuant to the terms hereof) shall constitute the entire understanding between the Parties hereto concerning the provision of the Service and supersedes and replaces any prior agreements and negotiations related to the subject matter herein.
18.10. The User hereby affirmatively consents to and authorises the use by BENG KANG in any manner and for any purpose whatsoever or to disclose to any person, any User’s information, including for the purposes of the sending of commercial messages to the User by BENG KANG and/or its partners. The provisions of this Clause shall constitute a consent of the User for the purpose of the provisions of the Spam Control Act (Chapter 311A) of Singapore.