Terms of Use
Portcast Pte. Ltd.
These Terms of Service (Terms) govern the supply of the Portcast Software-as-a-Service offering and related services to you. Together with each Order Form (including any Special Terms), these Terms form the Agreement between Portcast Pte Limited (Portcast, we or us) and you.
By signing or submitting an Order Form, by clicking to accept these Terms, or by accessing or using the Services, you agree to be bound by the Agreement. If you are entering into the Agreement on behalf of a company or other legal entity, you warrant that you have authority to bind that entity, and you means that entity. If you do not agree to these Terms, you must not access or use the Services.
Portcast may amend these Terms in accordance with clause 12. The version published at portcast.io/terms-of-use as at the date of your Order Form applies to that Order Form, as amended under clause 12.
HOW THIS AGREEMENT FITS TOGETHER
The Order Form sets out the commercial details of your subscription: the Services you are buying, the committed volume, the Fees, the currency, the start date, the term, the number of users and any Special Terms. It is the only document you need to sign.
These Terms set out the legal terms that apply to every Order Form. You do not need to sign them separately — they are incorporated into your Order Form by reference.
Order of precedence. If there is any inconsistency, the following order applies, in each case only to the extent of the inconsistency: (1) any Special Terms; (2) the Order Form; (3) these Terms.
1. INTERPRETATION
1.1 Definitions: In the Agreement, the following terms have the stated meaning:
Access Point means any Application Programming Interface (API) endpoints, user interfaces, or other mechanisms through which you access the SaaS Services.
Applicable Law means all laws, statutes, regulations, rules, by-laws, mandatory codes of conduct and mandatory guidelines, whether local, national or international, that apply to a party in the performance of the Agreement.
Background Intellectual Property (Background IP) means all Intellectual Property owned or developed by Portcast prior to or independently of the Agreement, including proprietary software, underlying systems, algorithms, databases, infrastructure, trade secrets, and any other systems or technology used in the provision of the SaaS Services, as well as all modifications, enhancements, or derivative works of them.
Bookmark ID means the billing unit for the SaaS Services, as described in clause 5.3.
Business Day means a day other than a Saturday, Sunday or public holiday in Singapore.
Confidential Information means the terms of the Agreement and any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the Agreement, in any manner or media, whether in writing, orally or in electromagnetic form. Portcast’s Confidential Information includes Intellectual Property owned by Portcast (or its licensors), including the external data sourced by Portcast, its proprietary machine learning algorithms and the Portcast software. Your Confidential Information includes the Data.
Data means all data, content, and information (including Personal Data) owned, held, used or created by or on behalf of you that is stored using, or input into, the SaaS Services.
Derived Information has the meaning given in clause 6.3.
Effective Date means the date stated as such in the Order Form or, if no date is stated, the date on which Portcast first makes the SaaS Services available to you.
Fees means the fees, charges and expenses set out in the Order Form.
Force Majeure means an event or circumstance beyond the reasonable control of the affected party, including an act of God, fire, flood, earthquake, exceptionally extreme weather, epidemic or pandemic, explosion, nuclear, chemical or biological incident, war or armed conflict (whether declared or not), invasion, blockade, embargo, act of terrorism, riot, insurrection, sabotage, civil unrest, act of government or public authority, failure of third party telecommunications or internet infrastructure, and any strike, lock-out or industrial action other than one involving the affected party’s own personnel or those of its subcontractors. Force Majeure does not include a party’s inability to pay.
Free Trial has the meaning given in clause 2.7.
Intellectual Property Rights (IP) includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trademarks and designs, branding, circuit layouts, graphics, contents, data and databases, source code, programs, confidential information, know-how, background technical and software development related elements, 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.
Order Form means any order form, service form, subscription order, quotation or other ordering document issued by Portcast and signed, submitted or otherwise accepted by you (including by electronic acceptance) which references or incorporates these Terms.
Permitted User means a person authorised by you under clause 4.3 to access and use the SaaS Services.
Personal Data has the meaning given in the Personal Data Protection Act 2012 of Singapore, and includes users’ names and email addresses.
SaaS Services or Services cmeans the Portcast Software-as-a-Service offering described in clause 2.1 and any related services, in each case as identified in the Order Form.
Special Terms means any special terms and conditions agreed between you and Portcast in writing, and set out in or attached to an Order Form.
Term means the period described in clauses 3.2 and 3.3.
Underlying Systems means the software, IT infrastructure, networks and systems used by Portcast to provide the SaaS Services, including any third party solutions, systems and networks.
Year means each period of 12 months commencing on the Effective Date or an anniversary of it.
1.2 Interpretation: In the Agreement: (a) headings are for convenience only and do not affect interpretation; (b) words importing the singular include the plural and vice versa; (c) “including” and similar words are not words of limitation; (d) a reference to a statute includes that statute as amended or replaced; (e) a reference to a clause is a reference to a clause of these Terms; and (f) all amounts are exclusive of taxes unless stated otherwise.
2. THE SERVICES
2.1 SaaS Services: Portcast agrees to provide, and you agree to buy, the Portcast Software as a Service (SaaS) offering, and related services, on the terms of the Agreement. The SaaS Service provides access to Portcast’s machine-learning-based software that uses real-time external data sources with Portcast’s proprietary algorithms to predict international cargo flows. The SaaS Service includes permitted user registration, user training, ongoing basic upgrades and bug fixes, and ongoing version upgrades as scheduled by Portcast. For the avoidance of doubt, the SaaS Service excludes any bespoke customisation.
2.2 General standard: Portcast shall provide the Services in accordance with the Agreement, Singapore law and any other Applicable Law, exercising reasonable care, skill and diligence in accordance with generally accepted industry practice.
2.3 Non-exclusive: Portcast’s provision of the Services to you is non-exclusive. Nothing in the Agreement prevents Portcast from providing the Services to any other person.
2.4 Availability: Portcast will use reasonable efforts to ensure the SaaS Service is available on a 24/7 basis. However, it is possible that on occasion the SaaS Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. Portcast will use reasonable efforts to provide prior notice on the Access Point and to notify you by email of advance details of any unavailability. Apart from the above situations, if an interruption of the SaaS Service continues for more than two (2) consecutive days, you have the right to extend the Term by the interrupted period.
2.5 Authorisations: Portcast is responsible for procuring all licences, authorisations and consents required for it and its personnel to provide the Services.
2.6 Changes to the Services: Portcast may modify the Services at any time, provided that no modification will have a material adverse effect on the functionality of the Services you have subscribed to. Where a modification to an Access Point requires you to make technical changes in order to continue using the Services, Portcast will use reasonable efforts to give you at least thirty (30) days’ prior notice.
2.7 Free Trials, pilots and proofs of concept: Portcast may make the Services available to you free of charge, or at a reduced fee, on a trial, pilot or proof-of-concept basis for the period stated in the Order Form or otherwise notified to you in writing (Free Trial). Despite any other provision of the Agreement, during a Free Trial:
(a) the Services are provided on an “as is” and “as available” basis, and clauses 2.4 (Availability) and 9.3 do not apply;
(b) Portcast may suspend, modify or terminate the Free Trial, or any part of the Services, at any time on notice to you and without liability;
(c) you must not rely on the Services for operational, commercial or safety-critical decisions, and you are solely responsible for any decision you take on the basis of output generated during the Free Trial; and
(d) unless you enter into a paid Order Form, Portcast may delete your Data thirty (30) days after the end of the Free Trial, and clause 3.7 applies to that deletion.
2.8 Support: Portcast will provide support for the Services during Singapore business hours by email to the address published on the Portcast website, or as otherwise stated in the Order Form. Any service levels, uptime commitments or response times apply only if, and to the extent, expressly stated in the Order Form or Special Terms.
3. ORDER FORMS, TERM AND TERMINATION
3.1 Order Forms: Each Order Form accepted by both parties creates a separate agreement on these Terms in respect of the Services identified in that Order Form. An Order Form is accepted when it is signed by both parties, or when Portcast confirms it in writing and you access or use the Services, whichever occurs first.
3.2 Initial term: The Agreement starts on the Effective Date and continues for the initial term stated in the Order Form. If the Order Form does not state an initial term, the initial term is twelve (12) months from the Effective Date.
3.3 Renewal: At the end of the initial term, and at the end of each renewal term, the Agreement automatically renews for a further period of twelve (12) months, unless either party gives the other at least thirty (30) days’ written notice of termination before the end of the then-current term.
3.4 Termination for cause: Either party may, by notice to the other party, immediately terminate the Agreement if the other party:
(a) breaches any material provision of the Agreement and the breach is not capable of being remedied, or is not remedied within thirty (30) days of receipt of a notice from the first party requiring it to remedy the breach. Non-payment of any amount due and payable is a material breach;
(b) becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or
(c) is unable to perform a material obligation under the Agreement for thirty (30) days or more due to Force Majeure.
3.5 Termination for discontinuance: Portcast may elect to discontinue the Services or any material part of them, in which case Portcast may terminate the Agreement on not less than sixty (60) days’ notice to you and will refund any Fees you have pre-paid in respect of the period after the date of termination.
3.6 Consequences of expiry or termination: On expiry or termination of the Agreement: (a) the licence granted to you under clause 7.4 terminates immediately and you and your Permitted Users must cease all access to and use of the Services; (b) you must pay all amounts outstanding under the Agreement; and (c) clauses 1, 5 (in respect of amounts accrued), 6.3, 7, 8, 10, 11, 13 and any other clause which by its nature is intended to survive, continue in force. Expiry or termination does not affect any right, liability or remedy that accrued before that date.
3.7 Your Data on exit: You may, at any time during the Term and for twenty (20) Business Days after expiry or termination, export your Data using the functionality of the Services or request a copy from Portcast, and Portcast will use reasonable efforts to provide that copy in a mutually agreed format. Portcast will delete your Data from the Underlying Systems within one hundred and eighty (180) days after expiry or termination, or earlier on your written request, except to the extent that Portcast is required or permitted to retain it under Applicable Law or its records retention policies (including in system backups), and except for Derived Information.
4. YOUR OBLIGATIONS
4.1 General use: You and your personnel must use the Services in accordance with the Agreement solely for your own internal business purposes, and must not sell or resell the Services, or directly or indirectly reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, know-how, or algorithms relevant to the Services.
4.2 Access conditions: When accessing the SaaS Service, you and your personnel must:
(a) not impersonate another person or misrepresent authorisation to act on behalf of others;
(b) not use, or misuse, the SaaS Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the SaaS Service;
(c) not attempt to access or copy any material or data other than that which you are authorised to access, and only to the extent necessary for you and your personnel to use the SaaS Service in accordance with the Agreement;
(d) not use the SaaS Service in a manner, nor transmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights); and
(e) not interfere with, gain unauthorised access to, or otherwise make unauthorised use of, the Underlying Systems.
4.3 Permitted Users: No individual other than a Permitted User may access or use the SaaS Service. You must designate an account administrator who is responsible for managing your account and for nominating Permitted Users. You may authorise the following persons to be Permitted Users: (a) your employees, contracted individuals, officers and directors; and (b) your customers who have agreed in writing to be bound by the relevant terms of the Agreement, including in respect of authorised use, confidentiality and compliance with Applicable Law. You must provide Portcast with each Permitted User’s name and any other information Portcast reasonably requires in relation to that Permitted User. You are responsible for your Permitted Users’ access to and use of the Services and must ensure that they comply with the Agreement, and that the number of Permitted Users does not exceed the number permitted by the Order Form.
4.4 Sharing tracking information: Your Permitted Users may share tracking information generated by the Services (including tracking links) with third parties, and those third parties do not count towards the number of Permitted Users permitted by the Order Form, provided that Portcast may require such third parties to accept these Terms before granting them access to that tracking information.
4.5 Suspension for misuse or security: Portcast may limit or suspend your or your Permitted Users’ access to the Services, or any part of them, where reasonably necessary to preserve the security or integrity of the Underlying Systems, or where Portcast reasonably believes there has been, or is reasonably likely to be, unauthorised use of the Services or a breach of clause 4.1, 4.2 or 4.3. Portcast will give you notice as soon as reasonably practicable, will limit any suspension to what is reasonably necessary, and will restore access promptly once the cause has been resolved.
4.6 Compliance with Applicable Law: You must comply with, and must ensure that your Permitted Users comply with, all Applicable Law in exercising your rights and performing your obligations under the Agreement, including in respect of anti-bribery and anti-corruption, data protection and privacy, export control and sanctions.
5. FEES, INVOICING AND PAYMENT
5.1 Fees: You agree to pay all Fees for the Services as set out in the Order Form. All payments are due according to the schedule set out in the Order Form and in Portcast’s invoices.
5.2 Currency and payment terms: Unless the Order Form states otherwise, the currency of the Agreement is United States Dollars (USD) and all payments, fees and charges must be made in USD. You must pay each invoice within thirty (30) days following the date of the invoice. All payments must be made electronically in cleared funds, without any set-off or deduction, except where required by law.
5.3 Billing unit — Bookmark IDs: Unless the Order Form states a different billing unit, usage of the Services is measured and billed in Bookmark IDs. A unique container or Master Airwaybill (MAWB) is equivalent to a Bookmark ID in the Portcast platform:
(a) Definition. A Bookmark ID is a unique container/MAWB identifier, generated within the Portcast platform, which is used to identify an ocean or air shipment. A Bookmark ID is created each time a user initiates a request to track a container or MAWB through the platform or the API.
(i) Ocean: a Bookmark ID is created for each unique combination of container number, master bill of lading or booking number, and Standard Carrier Alpha Code (SCAC) tracked.
(ii) Air: a Bookmark ID is created for each unique Master Airwaybill (MAWB) number tracked.
(b) Duplicate Bookmark IDs. A new Bookmark ID is created each time tracking is initiated for a container, based on the combination of container number, master bill of lading or booking number, and SCAC. Duplicate Bookmark IDs may be generated if tracking is initiated for the same container with different combinations. Archival and re-upload of the same parameter will also create new Bookmark IDs. All Bookmark IDs, including duplicates, will be billed as part of the additional volume charges.
(c) Committed and additional volume. An invoice for the committed annual volume stated in the Order Form will be issued from the Effective Date and annually thereafter. Any additional volume above the committed volume will be charged based on actual usage at the rates set out in the Order Form, and will be invoiced in minimum blocks of 1,000 Bookmark IDs in the month in which the committed volume is exceeded.
(d) Further information is available on our Knowledge Base and API Documentation.
5.4 Taxes: For the avoidance of doubt, all amounts payable by you under the Agreement are exclusive of any applicable taxes, including value-added tax (VAT), goods and services tax (GST), sales tax, withholding tax, or similar taxes. If any taxable supply for tax purposes is made under the Agreement, you shall pay to Portcast any additional amounts in respect of such taxes chargeable on the supply of the Services, at the same time as payment is due. Where you are required by Applicable Law to make a deduction or withholding, you must pay Portcast such additional amount as leaves Portcast with the amount it would have received had no deduction or withholding been required.
5.5 Bank charges and transfer fees: You shall bear all costs associated with the transfer of payments to Portcast, including telegraphic transfer charges, SWIFT or similar international payment system fees, intermediary and correspondent bank fees, currency conversion charges, and any other bank processing fees or charges. The amount received by Portcast must equal the full amount invoiced. If any bank charges or transfer fees are deducted from the payment amount, you shall reimburse Portcast for such deductions so that Portcast receives the full invoiced amount.
5.6 Interest on overdue amounts: If any invoice remains unpaid for more than sixty (30) days from its issuance date, Portcast may charge interest on the overdue amount. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the 3-month Compounded SORA (Singapore Overnight Rate Average) reference rate as at the due date, plus 2% per annum.
5.7 Suspension of access for non-payment: If any invoice remains unpaid for more than ninety (45) days from its issuance date, Portcast reserves the right to suspend access to the platform and related services until the outstanding balance is settled in full. Portcast shall provide written notice of its intent to suspend the Services at least ten (10) days prior to suspension. You acknowledge that suspension of access may affect your ability to use the platform and services, and Portcast shall not be liable for any losses or damages resulting from such suspension.
5.8 Fee increases: Portcast may increase the Fees with effect from the start of any renewal term by giving you at least thirty (30) days’ notice before the end of the then-current term, with the increase not exceeding 5% per annum. If you do not wish to pay the increased Fees, you may terminate the Agreement with effect from the end of the then-current term by giving notice to Portcast before the effective date of the increase. If you do not terminate the Agreement in accordance with this clause, you are deemed to have accepted the increased Fees. Fees will not be increased during an initial term.
6. DATA
6.1 Your Data: As between you and Portcast, you own all right, title and interest in and to the Data, and you have sole responsibility for its legality, reliability, integrity, accuracy and quality.
6.2 Portcast access to Data: You acknowledge that Portcast may require access to the Data to exercise its rights and perform its obligations under the Agreement and, to the extent that this is necessary but subject to clause 8, Portcast may authorise a member or members of its personnel to access the Data for this purpose. Portcast is not responsible for reviewing, monitoring, or verifying the accuracy or legality of the Data, except as required by Applicable Law.
6.3 Derived Information: You acknowledge and agree that Portcast may use the Data and information about your use of the SaaS Services to generate anonymised, aggregated and de-identified statistical and analytical data, which will be processed in such a way that it cannot identify you or any individual user (Derived Information); and may disclose the Derived Information solely in statistical, anonymised, aggregated and de-identified form, for Portcast’s business purposes worldwide, including for market research, performance analysis, and service improvement. Portcast retains all rights, title, and interest in the Derived Information. Portcast’s rights under this clause 6.3 survive expiry or termination of the Agreement.
6.4 Data protection compliance: You acknowledge and agree that, to the extent the Data contains Personal Data, Portcast processes that information solely as a data intermediary (as defined under the Personal Data Protection Act 2012) or the equivalent term under applicable privacy laws. Portcast is not responsible for ensuring your compliance with data protection laws, and you remain solely responsible for obtaining all necessary consents, permissions and approvals for the collection, use, and processing of any Data from data subjects to allow Portcast to use the Personal Data as contemplated under the Agreement.
6.5 International storage of Data: Portcast may store, process, or transfer the Data on secure servers located in Singapore or any other jurisdiction where it or its service providers operate, and may access such Data from time to time as necessary. Portcast shall comply with the applicable data protection laws governing the storage and transfer of Data in each relevant jurisdiction.
6.6 Prohibited content: You must not input into or transmit through the Services: (a) any virus, trojan horse or other malware; or (b) any information or data that is illegal, offensive, abusive, violent, incites hatred or violence, is defamatory, discriminatory or deceptive, or that infringes or makes unauthorised use of the rights of a third party or breaches the privacy of any individual.
6.7 Lawful requests: Portcast may disclose or delete Data to the extent necessary to comply with a lawful request from a court of competent jurisdiction or a relevant governmental authority. Where permitted by Applicable Law, Portcast will notify you before doing so.
6.8 Indemnity: You shall indemnify, hold harmless and defend Portcast from and against any liabilities, claims, proceedings, costs, expenses (including the actual legal fees charged by Portcast’s solicitors) and losses of any kind arising from any actual or alleged claim by a third party (including in respect of Intellectual Property Rights and privacy rights) due to or arising from: (a) the Data and its collection, storage or processing; (b) your failure to comply with applicable data protection laws, including those in jurisdictions where Portcast operates or provides the SaaS Services; or (c) any misuse, unauthorised access, or security breach caused by your acts or omissions.
7. INTELLECTUAL PROPERTY
7.1 Portcast IP: All rights, title and interest, including Portcast’s Intellectual Property Rights, in the SaaS Services, the Access Point, and all Background IP remain the property of Portcast (and its licensors). Nothing in the Agreement transfers or grants any ownership rights to you in respect of Portcast’s Intellectual Property, nor restricts Portcast’s ability to use generic know-how, methodologies, or skills acquired in the ordinary course of providing the SaaS Services, provided that such use does not disclose your Confidential Information.
7.2 Your IP: You retain all rights, title, and interest in and to your Confidential Information, the Data, and any pre-existing Intellectual Property Rights owned by you prior to the commencement of the Agreement, subject to the licence granted to Portcast to use the Data in accordance with clause 6 for the purpose of providing the SaaS Services under the Agreement, including for analytics, aggregation, and improving the SaaS Services.
7.3 No implied rights: Except as expressly provided in the Agreement, neither party grants the other any licence or right, whether by implication, estoppel, or otherwise, in or to any of its Intellectual Property Rights.
7.4 Licence to use Portcast IP: Portcast grants you a limited, non-exclusive, non-transferable, revocable licence to access and use Portcast’s Intellectual Property in the SaaS Services, the Access Point, and all Background IP solely for your internal business purposes during the Term. You must not use Portcast’s Intellectual Property for any competing business or in any way that would directly or indirectly conflict with Portcast’s business. This licence does not include any right to modify, distribute, sublicense, reverse-engineer, or create derivative works based on Portcast’s Intellectual Property unless expressly authorised by Portcast in writing. The rights granted under this licence expire immediately on the expiry or termination of the Agreement, and you must cease all use of Portcast’s Intellectual Property and return or destroy any copies of it in your possession.
7.5 Third party data sources and outputs: Portcast uses multiple external data sources, including carrier data, terminal data, risk-related data (such as weather information and port news), and geospatial data sources. All original data obtained from these third party sources remains the copyright and intellectual property of the respective data providers. Any and all outputs generated by Portcast — including derived data, insights, analytics, predictive models, data structures, algorithms, processing methodologies, model training science, and any improvements, modifications, or enhancements to them — are and remain the exclusive Intellectual Property of Portcast. No rights to Portcast’s proprietary technology, models, algorithms, or methodologies are granted to any party unless expressly agreed in writing by Portcast.
7.6 Feedback and improvements: If you provide any feedback, suggestions, or recommendations relating to the SaaS Services (Feedback), Portcast shall have the exclusive, worldwide, royalty-free, perpetual, and irrevocable right to use, incorporate, and commercialise that Feedback. You waive any claim to Intellectual Property Rights in any enhancement, modification, or improvement made by Portcast based on that Feedback.
7.7 Publicity: You grant Portcast a non-exclusive, royalty-free, worldwide right to use your name and logo in Portcast’s marketing, advertising, and promotional materials, including on its website, in presentations and in other communications. Portcast will use your name, logo, and trademarks in a manner consistent with your brand guidelines, if provided, and will cease such use within a reasonable period after you request it to do so in writing.
7.8 Third party Intellectual Property Rights indemnity: Portcast indemnifies you against any claim or proceeding brought against you to the extent that claim or proceeding alleges that your use of the SaaS Service in accordance with the Agreement constitutes an infringement of a third party’s Intellectual Property Rights (IP Claim). The indemnity is subject to you:
(a) promptly notifying Portcast in writing of the IP Claim;
(b) making no admission of liability and not otherwise prejudicing or settling the IP Claim, without Portcast’s prior written consent; and
(c) giving Portcast full control over the defence and settlement of the IP Claim, including providing reasonable assistance. All reasonable legal costs and expenses shall be borne by Portcast.
7.9 Portcast’s options: If at any time an IP Claim is made, or in Portcast’s reasonable opinion is likely to be made, Portcast may at its option: (a) obtain for you the right to continue using the items which are the subject of the IP Claim; or (b) modify, re-perform or replace the items which are the subject of the IP Claim so that they become non-infringing.
7.10 Exclusions: Portcast shall have no liability for any IP Claim arising from: (a) your modifications to the SaaS Services without Portcast’s prior written approval; (b) use of the SaaS Services in combination with third party software or services in any manner not provided or recommended by Portcast; (c) your failure to implement updates or modifications provided or recommended by Portcast to avoid infringement; or (d) the Data.
8. CONFIDENTIALITY
8.1 Obligation: Each party must use the other party’s Confidential Information solely to fulfil its obligations under the Agreement. For the purpose of the Agreement, Portcast is permitted to use the Data in accordance with clause 6 for analytics, aggregation, and other lawful business purposes, including improving or enhancing the SaaS Services. Unless a party has the prior written consent of the other party, it must keep confidential at all times the Confidential Information of the other party, unless disclosure is required by law or other regulatory requirement, provided the disclosing party promptly notifies the other party in writing prior to such disclosure unless legally prohibited from doing so. You must treat these Terms and your Order Form as Confidential Information of Portcast.
8.2 Exceptions: Information falling within any of the following categories is excluded from Confidential Information:
(a) information that has already been published or is publicly available when it is disclosed to or obtained by the receiving party;
(b) information that becomes public or publicly available for any reason not attributable to the receiving party after it is disclosed to or obtained by the receiving party from the disclosing party;
(c) information possessed before being disclosed by the disclosing party;
(d) information obtained by the receiving party from a third party without assuming any confidentiality obligation; or
(e) information that is developed independently by the receiving party without making use of any Confidential Information.
8.3 Sale of business: The obligation of confidentiality in clause 8.1 does not apply to disclosure or use of Confidential Information by Portcast if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that Portcast (a) notifies you in writing; and (b) enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 8.
9. WARRANTIES
9.1 Mutual warranties: Each party warrants that it has full power and authority to enter into and perform its obligations under the Agreement, which, when accepted, constitute binding obligations on the warranting party. You further warrant that you are entering into the Agreement on your own behalf and not as agent for an undisclosed principal.
9.2 No implied warranties: To the maximum extent permitted by law, Portcast makes no representation concerning the quality of the Services, including that any prediction, forecast or other information supplied during the Term will be accurate or error free; and Portcast does not promise that the Services will meet your requirements or be suitable for a particular purpose.
9.3 Security and continuity: Portcast warrants that it will make reasonable efforts for the Services to be secure, free of viruses or other harmful code, uninterrupted and error free. Portcast’s warranties are limited to those set out in the Agreement, and all other conditions, guarantees or warranties, whether express or implied by statute or otherwise, are expressly excluded to the maximum extent permitted by Applicable Law and, to the extent that they cannot be excluded, liability for them is limited to an amount equal to the Fees paid by you under the Agreement.
9.4 Your responsibility: You are responsible for satisfying yourself that the Services are fit for your purposes, and for ensuring that all use of the Services by you and your Permitted Users complies with Applicable Law.
10. LIABILITY
10.1 Maximum liability: Subject to clause 10.3, the maximum aggregate liability of either party under or in connection with the Agreement or relating to the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any Year exceed an amount equal to the Fees paid by you under the Agreement in that Year.
10.2 Unrecoverable loss: Neither party is liable to the other under or in connection with the Agreement or the Services for any loss of profit, revenue, savings or business, or for any consequential, indirect, incidental or special damage.
10.3 Unlimited liability: Clauses 10.1 and 10.2 do not apply to limit either party’s liability for personal injury or death, or for fraud or wilful misconduct. Clause 10.2 does not apply to limit your liability to pay the Fees.
10.4 No liability for the other party’s failure: Neither party will be responsible, liable, or held to be in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under the Agreement, or by the negligence or misconduct of the other party or its personnel.
10.5 Time limit for claims: To the extent permitted by Applicable Law, any claim arising under or in connection with the Agreement must be brought within twelve (12) months of the date on which the party bringing the claim first became aware, or ought reasonably to have become aware, of the events giving rise to it.
11. DISPUTES
11.1 Good faith negotiations: In the event of a dispute between the parties arising out of or in connection with the Agreement, the parties shall endeavour to resolve the dispute through good faith negotiations for a period of thirty (30) calendar days (or such other period as they may agree in writing) after a party first receives written notice of the dispute from the other party which outlines the dispute in reasonable detail.
11.2 Obligations continue: Each party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a dispute.
11.3 Right to seek relief: This clause 11 does not affect either party’s right to seek urgent interlocutory or injunctive relief.
12. CHANGES TO THESE TERMS
12.1 Amendments: Portcast may amend these Terms from time to time by publishing the amended Terms at portcast.io/terms-of-use.
12.2 What amendments cannot do: No amendment to these Terms will: (a) vary the Fees, committed volume, currency, term or any Special Terms set out in your Order Form; or (b) apply retrospectively to any claim or dispute that arose before the amendment took effect.
12.3 Variation of Order Forms: Any variation to an Order Form must be agreed in writing by both parties.
13. GENERAL
13.1 Force Majeure: Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure, provided that the affected party immediately notifies the other party and provides full information about the Force Majeure, uses best efforts to overcome it, and continues to perform its obligations to the extent practicable.
13.2 Dependencies: Portcast has no liability under or in connection with the Agreement to the extent that any delay or failure to perform its obligations is caused in whole or in part by your delay or failure to promptly and completely fulfil any obligation of yours under the Agreement, including any dependency identified in the Order Form.
13.3 Rights of third parties: No person other than Portcast and you has any right to a benefit under, or to enforce, the Agreement, whether by virtue of the Contracts (Rights of Third Parties) Act 2001 or otherwise. The parties may amend the Agreement without the consent of any third party.
13.4 Waiver: To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party. No delay or omission in exercising a right, power or remedy operates as a waiver of it.
13.5 Independent contractor: Portcast is an independent contractor and no other relationship (for example joint venture, agency, trust or partnership) exists under the Agreement.
13.6 Notices: A notice given under the Agreement must be in writing and in English, and must be delivered by email. Notices to Portcast must be sent to alerts@portcast.io. Notices to you will be sent to the email address stated in the Order Form, or to your account administrator. A notice sent by email is deemed served at the time the email is sent, unless the sender is notified that the address is invalid.
13.7 Severability: If any provision of the Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement otherwise remains in full force and effect and enforceable.
13.8 Assignment and subcontracting: You may not assign, novate, subcontract or transfer any right or obligation under the Agreement without Portcast’s prior written consent, that consent not to be unreasonably withheld. Portcast may, by notice to you: (a) assign or novate the Agreement to a member of its corporate group or to a purchaser of a substantial part of its business; and (b) subcontract or delegate the performance of any of its obligations, in which case Portcast remains liable to you for its subcontractors’ acts and omissions to the same extent as if they were its own. Any assignment, novation, subcontracting or transfer must be in writing.
13.9 Entire agreement: The Agreement sets out everything agreed by the parties relating to the Services, and supersedes and cancels anything discussed, exchanged or agreed prior to the Effective Date. The parties have not relied on any representation, warranty or agreement relating to the subject matter of the Agreement that is not expressly set out in the Agreement, and no such representation, warranty or agreement has any effect from the Effective Date. Nothing in this clause limits liability for fraud or fraudulent misrepresentation.
13.10 Governing law and jurisdiction: The Agreement is governed by, and must be interpreted in accordance with, the laws of Singapore. Each party submits to the exclusive jurisdiction of the courts of Singapore in relation to any dispute connected with the Agreement.
