Auditor terms Of Use


SPARKLINE AUDITOR TERMS OF USE

Publication Date: March 2018


These these terms and conditions of use (the “Terms of Use”) apply to our data analytics audit program Sparkline Auditor and Insights (each a  “Product”).  The Product is owned by and made available by us, Sparkline Pte Ltd, a private limited company registered under the laws of Singapore and located at Sparkline Pte Ltd, 1 Keong Saik Road, Singapore, 089109 (“Sparkline”) .
You (as our client) understand that your purchase and use of the Product by you and/or your employees or agents who are authorised to access and use the Product on your behalf (each a “Permitted User”) constitutes acceptance by you of these Terms of Use and creates a legally binding contract between you and us.  Please read them carefully. 
There may be additional terms and conditions that apply to any other products or services that you purchase from or engage us to provide, those additional terms shall form part of your agreement with us. 


1. Eligibility, registration and account security

     1.1 By registering, purchasing and/or using the Product you warrant that you understand your obligations under these Terms of Use.

     1.2 As part of your registration you will be given access to an account with us through which the Product may be accessed by you and/or your Permitted Users. This account will include a username and password. It is your responsibility to ensure that the information you provide is accurate, not misleading and relates to you. 

     1.3 You are permitted to nominate up to six (6) The number of Permitted Users.

     1.4 You and your Permitted Users shall protect your account by keeping your password confidential.  You are responsible for any activity within or through your account, including the use of the Product. If you suspect that your username and password has been compromised or used without authorisation you should contact us immediately.


2. About the Product
     2.1 The sale of the Product to you is on a non-exclusive basis. Nothing in these Terms of Use prevents us from selling the Product to any other person.

     2.2 We will use reasonable efforts to ensure the Product is available on a 24/7 basis. However, it is possible that on occasion the Product may be unavailable to permit maintenance or other development activity to take place, or if there is an event that is beyond our reasonable control, excluding: (a) an event that could have been avoided by us by taking reasonable steps or reasonable care; or (b) a lack of funds for any reason. We will use reasonable efforts to notify users of the Product in advance details of any unavailability. 

     2.3 Through the use of web services and application program interfaces (“APIs”), the Product interoperates with a range of third-party service features. We do not make any warranty or representation on the availability or compatibility of those features, nor do we warrant or represent that the Product will operate free of defects or error-free with all third-party service features on an ongoing basis. Without limiting the previous sentence, if a third-party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make available that feature to you. To avoid doubt, if we exercise our right to cease the availability of a third-party feature, you are not entitled to any refund, discount or other compensation.
     2.4 We are responsible for procuring all software, IT solutions, systems and networks (including software and hardware) used to make the Product available, including any third-party solutions, systems and networks (the “Underlying Systems”) reasonably required for us to provide the Product in accordance with these Terms of Use.

3. Use of our Product 

     3.1 You and your Permitted Users must: 
          a) use the Product only in accordance with these Terms of Use and solely for business purposes; 
          b) not abuse or misuse our Product or attempt to access our Product in a manner other than in accordance with instructions we provide;
          c) comply with any other policies that we advise apply to the use of the Product, including our Privacy Policy  and Data Processing Terms which, by purchasing and/or using the Product you agree to be bound by. Our Privacy Policy can be found at https://www.sparkline.com/privacy-policy;
          d) not, unless otherwise agreed with us in writing, resell or make available the Product to any third party, or otherwise commercially exploit the Product; 
          e) at all times comply with all applicable laws (including applicable data protection, privacy, export and re-export control laws and regulations) and ensure that the use of the Product by you and your Permitted Users is for lawful purposes only;
          f) not attempt to undermine the security or integrity of the Product and/or the Underlying Systems;
          g) not use, or misuse, the Product in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Product;
          h) not attempt to view, access or copy any material or data other than that to which you are authorised to access;
          i) not combine the Product with any other software or your own products nor reverse engineer, decompile, disassemble, create derivative works or otherwise use the Product in a manner not permitted by these Terms of Use, save to the extent expressly permitted by applicable law, in particular, Part III, Division 3 of the Copyright Act (Cap. 63);
          j) not engage in any conduct with respect to the Product that: (i) knowingly violates a third party’s terms of service; (ii) interferes with, disrupts, harms or accesses in an unauthorised manner the machines, hardware, devices, servers, networks, data or other properties or services of any third party; or (iii) infringes the Intellectual Property Rights of any third party; and
          k) neither use the Product in a manner, nor transmit, input or store any Data (as defined in clause 4), that breaches any third party right (including Intellectual Property Rights and privacy rights) or is objectionable, defamatory, obscene, harassing, threatening, unlawful, incorrect or misleading in any way.

      3.2 When accessing and using the Product, you must not, and shall procure that your Permitted Users do not, impersonate another person or misrepresent authorisation to act on behalf of others or us and correctly identify the sender of all electronic transmissions.

      3.3 Without limiting clauses 3.1 and 3.2 above:
           a) no individual other than a Permitted User may access or use the Product; 
           b) you may authorise any of your employees or agents to be a Permitted User. You shall provide us with each Permitted User’s name and other information that we reasonably require in relation to the relevant Permitted User;
           c) you must procure each Permitted User’s compliance with these Terms of Use and any other reasonable condition notified by us to you; and
          d) a breach of any term of these Terms of Use by one of your employees or agents (including a Permitted User) is deemed to be a breach of these Terms of Use by you and you will hold harmless and indemnify us (and our employees, officers and agents) from any claim, suit or action arising from or related to the use of the Product in violation of these Terms of Use.

     3.4 You are responsible for procuring all licences, authorisations and consents required for you and your Permitted Users to use the Product, including to use, store and input Data into, and process and distribute Data through, the Product.

4. Privacy and Data security
     4.1 Our Privacy Policy (found at https://www.sparkline.com/privacy-policy/), which shall be deemed to be incorporated by reference into these Terms of Use, explains how we deal with the Personal Data (as defined in the Personal Data Protection Act 2012) of individuals who purchase and/or use the Product. By purchasing and/or using the Product you consent and agree that we can collect, use and disclose your Personal Data in accordance with our Privacy Policy. You shall procure that each Permitted User reads these Terms of Use and our Privacy Policy and consents to the collection, use and disclosure of his or her Personal Data in accordance with the terms therein. 

    4.2 You acknowledge that we may require access to the data, content, and information (including the results of any audits conducted by you and Personal Data) owned, held, used or created by or on behalf of you that is stored using, or inputted into, the Product (together the “Data”):
          a) to exercise our rights and perform our obligations under these Terms of Use; and
          b) to the extent that this is necessary and subject to clause 8 (Confidentiality), 
       and you consent to us authorising our employees or agents to access such Data for this purpose.

     4.3 You acknowledge that the results of all audits conducted using the Product will be stored within the program and are accessible by us as owner and developer of the Product.  We undertake to not access such results other than in accordance with clause 4.2 above without your prior consent.

     4.4 You must arrange all consents and approvals that are necessary for us to access the Data as described in clause 4.2 above, including from your clients where you are acting as their agent. Before providing us with any Personal Data relating to a third party, you undertake to procure and obtain consent from that third party to allow us to collect, use and disclose the Personal Data of that third party for the purposes listed in our Privacy Policy.

     4.5 You acknowledge and agree that to the extent Data contains Personal Data (as defined in the Personal Data Protection Act 2012), in collecting, holding and processing that information through the Product, we are acting as a data intermediary of yours for the purposes of the Personal Data Protection Act 2012 and any other applicable privacy law.

     4.6 You agree that we may transfer Data to and store Data in secure servers in Asia and may access that Data from time to time in accordance with these Terms of Use and our Privacy Policy. 

     4.7 You agree to indemnify us against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by our solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Data infringes the rights of that third party (including Intellectual Property Rights (as defined in clause 5) and privacy rights) or that the Data is objectionable, defamatory, obscene, harassing, threatening, unlawful, incorrect or misleading.

5. Intellectual Property 
For the purpose of these Terms of Use, “Intellectual Property Rights” includes copyright and all worldwide rights conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trademarks and designs, circuit layouts, data and databases, confidential information, know how, and all other rights resulting from intellectual activity. “Intellectual Property” has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.  “Documentation” shall mean any hard or electronic copy of the publicly released documentation relating to the Product, as updated by Sparkline from time to time

     5.1 You acknowledge that the Product is patented technology which is legally and beneficially owned by us. 
     5.2 Purchasing the Product does not give you any ownership over the Intellectual Property in our Product, Documentation or any written recommendations, observations, feedback or reports delivered through the Product.  Subject to clause 5.3, title to, and all Intellectual Property Rights in, the Product, Documentation and any written recommendations, observations, feedback or reports delivered through the Product are and remain the property of Sparkline (and its licensors). You must not dispute that ownership, or do or permit to be done any act which would or might jeopardise or invalidate those Intellectual Property Rights. All ownership and Intellectual Property Rights in the content accessed through use of the Product are the property of the applicable content owner and may be protected by copyright or other applicable laws.
     5.3 As between you and us, we solely own all new Intellectual Property created by us in the course of providing the Product or otherwise in connection with these Terms of Use and all new Intellectual Property in any documentation or other materials created by you, to the extent the documents and materials relate to the Product.
     5.4 We do not claim title to, or ownership of, the Intellectual Property Rights in the Data. You grant us a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, make available and communicate the Data for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with these Terms of Use.  You must ensure you have all the necessary consents (including from clients for whom you act as agent) to grant us this licence.
     5.5 To the extent that we have incorporated any know how, techniques, ideas, methodologies, and similar Intellectual Property owned by you in the supply of the Product, you grant us a royalty-free, transferable, irrevocable and perpetual licence to use the same for our own business purposes. 
     5.6 If you provide us with ideas, comments or suggestions relating to the Product or Underlying Systems (“Feedback”): (a) all Intellectual Property Rights in that Feedback, and anything created as a result of that Feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and (b) we may use or disclose the Feedback for any purpose and without any obligation to you.
     5.7 You acknowledge that the Product may link to third party websites or feeds that are connected or relevant to the Product. Any link from the Product does not imply any endorsement by us, approval or recommendation of, or responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, we exclude all responsibility or liability for any loss or damage suffered by you through the use of those third party websites or feeds. 
     5.8 We own all right, title and interest in any trademark, service mark, trade name, or other name or logo that we secure from time to time (“Branding”). You shall not use any of our Branding without first obtaining our consent.

6. Technical Support
For specific details about technical support for the Product please refer to your customer contract and/or partner agreement.

7. Confidentiality
For the purposes of these Terms of Use “Confidential Information” means the terms of these Terms of Use and any information that is not public knowledge and that is obtained from us in the course of, or in connection with, these terms of Use and the supply and use of the Product and includes our Intellectual Property Rights. 

     7.1 Unless we give our consent first, you must always: (i) keep our Confidential Information confidential; (ii) effect and maintain adequate security measures to safeguard our Confidential Information from unauthorised access or use; and (iii) disclose our Confidential Information to your Permitted Users or professional advisors on a need to know basis only and, in that case, ensure that any Permitted Users or professional advisor to whom you disclose our Confidential Information is aware of, and complies with, the provisions of clauses 7.1(i) and 7.1(ii).

     7.2 The obligation in clause 7.1(i) does not apply to any disclosure or use of Confidential Information: (i) for the purpose of performing your obligations in, or exercising your rights under, these Terms of Use; (ii) required by law (including under the rules of any stock exchange); (iii) which is publicly available through no fault of yours (or your personnel); or (iv) which was rightfully received by you from a third party without restriction and without breach of any obligation of confidentiality. 
     7.3 Following termination of these Terms of Use, you must, at our request, promptly return to us or destroy all Confidential Information of ours that is in your possession or control.

8. Modifications to our Product 

We endeavour to continually improve our Product. You acknowledge that we may modify functionality and/or features of the Product at any time.  We will endeavour to give you prior notice of any modifications.

9. Suspension and termination of account 
     9.1 Without limiting any other right or remedy available to us, we may restrict or suspend your access to your account and/or the Product where you or any of your employees or agents (including any Permitted User):
         a) undermines, or attempts to undermine, the security or integrity of the Product or any Underlying Systems;
         b) uses, or attempts to use, the Product: (i) for improper purposes; or (ii) in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Product; or
         c) has otherwise materially breached these Terms of Use (in our reasonable opinion), 
or where we are investigating suspected non-compliance with these Terms of Use.

     9.2 We will notify you if we restrict or suspend your access under clause 9.1 above.
     9.3 Subject to yours and our respective obligations in any other agreements entered into between us: (a) we may, at our sole discretion, elect to stop supplying the Product at any time by giving written notice; and (b) you may elect to stop using the Product at any time, in each case by written notice upon which these Terms of Use terminate. 

     9.4 If we discontinue the supply of the Product in accordance with clause 9.3 above, we will endeavour, but are not obliged, to give you advance notice. 

     9.5 Upon termination of these Terms of Use you shall: (i) cease immediately to use the Product, the Documentation and all other Sparkline Confidential Information; and (ii) return, destroy or erase (at our option) all copies of Sparkline’s Intellectual Property in your possession. Termination of these Terms of Use does not affect your or our rights and obligations that accrued before that termination or expiry.  Upon termination of these Terms of Use, we will delete all Data held in your account. 

     9.6 You acknowledge that upon termination of these Terms of Use, any licences granted by us under these Terms of Use shall be immediately revoked.

     9.7 At any time prior to the date of termination, you may request: (i) a copy of any Data stored using the Product, provided that you pay our reasonable costs of providing that copy. On receipt of that request, we must provide a copy of the Data in a common electronic form. We do not warrant that the format of the Data will be complete or compatible with any software; and/or (ii) deletion of the Data stored using the Product, in which case we must use reasonable efforts to promptly delete that Data. To avoid doubt, we are not required to comply with this clause to the extent that you previously requested deletion of the Data.

     9.8 No compensation is payable by us to you as a result of the termination of these Terms of Use for whatever reason.

     9.9 All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, the licences granted by you in clause 5.4 and 5.6, warranty disclaimers, indemnity and limitations of liability.

10. Warranties and disclaimer
     10.1 Each party warrants that it has full power and authority to enter into and perform its obligations under these Terms of Use which constitute binding obligations on the warranting party.

     10.2 We warrant that we are authorised to use or own all software used in providing the Product and undertake to supply our Product: (a) in accordance with the Agreement and Singapore law; (b) exercising reasonable care, skill and diligence; and (c) using suitably skilled, experienced and qualified personnel.  

     10.3 You acknowledge that you use the Product at your own risk and any download of material is at your own discretion and risk and you shall be responsible for any damage to systems or other devices or loss of data that arises as a consequence of such use.

     10.4 To the maximum extent permitted by law:
          a) our warranties are limited to those set out in these Terms of Use, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under the Sale of Goods Act) are expressly excluded and, to the extent that they cannot be excluded they are deemed to be included in these Terms of Use, however liability for them is limited to providing the Product again free of charge or reimbursing you an amount equal to the price you paid for the Product; and
          b) we make no representation or warranty concerning the quality of the Product and do not promise that the Product will: (i) meet your requirements or be suitable for a particular purpose; or (ii) be secure, free of viruses or other harmful code, uninterrupted or error free. 

11. Your indemnity
To the extent permitted by law, you shall indemnify and hold harmless Sparkline (and its affiliates, employees, officers and agents) from and against all liabilities, damages and costs and all claims, actions or proceedings (including by any third parties) arising out of: (i) any breach or alleged breach by you of these Terms of Use or any applicable law (including applicable data protection, privacy, export and re-export control laws and regulations); (ii) the use of the Product by you and/or your employees (including Permitted Users); and (iii) any infringement or alleged infringement of our Intellectual Property Rights. 

12. Liability and limitations
     12.1 To the extent permitted by law: (a) we shall not be liable to you for any loss or damage that is not reasonably foreseeable or for any indirect or consequential loss or damage, even if we were aware or should have known that such losses or damages are possible and direct damage are not sufficient remedy; and (b) our maximum aggregate liability for any claim arising under or in connection to these Terms of Use shall not exceed the amount paid by you for the relevant Product to which the claim relates.

     12.2 Each of us must take reasonable steps to mitigate any loss or damage, cost or expense we may suffer or incur arising out of anything done or not done by the other under or in connection with these Terms of Use.

13. Jurisdiction and dispute resolution
     13.1 These Terms of Use shall be governed by and construed in accordance with the laws of Singapore. Any dispute arising out of or in connection with these Terms of Use, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this clause. The tribunal shall consist of one (1) arbitrator and the language of the arbitration shall be English. The parties do not intend that any term of these Terms of Use shall be enforceable, by virtue of the Contracts (Rights of Third Parties) Act (Cap. 53B) or otherwise, by any person who is not a party to these Terms of Use. 

     13.2 The parties acknowledge that money damages may not be a sufficient remedy for a breach of these Terms of Use and each party will be entitled to obtain equitable relief, including injunctive relief and specific performance if needed.

14. Other terms 
     14.1 We may update or modify these Terms of Use at any time. We shall notify you of any changes to these Terms of Use and your continued use of the Product shall constitute your acknowledgement and acceptance of such changes.  Such changes will not apply retrospectively, save for changes that are required to be made by us for legal reasons or that relate to improved functionality of the Product. 

     14.2 We shall not be liable to you for any failure to perform our obligations under these Terms of Use to the extent caused by circumstances beyond our reasonable control, excluding an event to the extent that it could have been avoided by us taking reasonable steps or reasonable care.

     14.3 If there is a conflict between these Terms of Use and any customer or partner agreement you may have entered into with us regarding the Product then the provisions of the relevant customer or partner agreement shall prevail. 

     14.4 Any notices to be served on us shall be delivered to our registered office (details of which are provided above). We may give notice to you at either the email or postal address you provide to us when purchasing the Product. Notice will be deemed delivered and received and properly served twenty-four (24) hours after an email is sent, or three days after the date of posting of any letter by registered mail. 

     14.5 These Terms of Use are binding upon each party, our successors, and permitted assigns. These Terms of Use will not be assignable or transferable by you without our prior written consent. These Terms of Use do not create any partnership, agency or joint venture between the parties. These Terms of Use (together with any applicable customer or partner agreement entered into between us) contain the entire understanding of the parties regarding its subject matter and supersedes all prior and contemporaneous agreements and understandings between the parties regarding its subject matter. No failure or delay by either of us in exercising any right, power, or privilege under these Terms of Use will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise of any right, power, or privilege under these Terms of Use. The invalidity or unenforceability of any provision of these Terms of Use will not affect the validity or enforceability of any other provision of these Terms of Use, all of which will remain in full force and effect. 

15. Complaints 

Any complaints regarding the Product should be made directly to Sparkline via email to the following address: support@sparkline.com. We will take commercially reasonable steps to ensure that all complaints are dealt with promptly and professionally.