1. DEFINITIONS For the purposes of this Agreement, in addition to the capitalised terms defined elsewhere in this Agreement, the following terms shall have the meanings ascribed to them as follows:
1.1 “Affiliate” of a Party means any corporation or other entity that such party directly or indirectly controls, is controlled by, or is under common control with. In this context, a Party “controls” a corporation or other entity if it or any combination of it and/or its Affiliates owns more than fifty percent (50%) of the voting rights for (i) the board of directors, or (ii) other mechanism of control for such corporation or other entity.
1.2 “Customer(s)” means individuals or entities who are end-users or re-marketers or resellers to which Partner has re-sold the Products. 1.3 “Customer Data” means all electronic data or information submitted by Customers to the Products. 1.4 “Deliverable” means any software, equipment, consultation, documentation and/or other materials prepared by Company for Partner as described in an SOW. 1.5 “Fees” means the fees as specified in each Order Form payable by Partner to Company for the resale of the Products to Customers.
1.6 “Initial Term” has the meaning ascribed to that term in Section 8.1.
1.7 “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, or programs.
1.8 “Non-Company Applications” means online applications and offline software products provided by entities or individuals other than Company and are clearly identified as such, and that interoperate with the Products.
1.9 “Order Form" means the documents for placing orders pursuant to this Agreement that are entered into between Company and Partner (or Affiliates of Company and Partner) from time to time, including addenda and supplements thereto.
1.10 “Professional Services” means the services to be provided by Company to Partner as described in an SOW, which may include, without limitation, engineering, maintenance, installation, design consulting, business planning, network planning and analysis.
1.11 “Renewal Term” has the meaning ascribed to that term in Section 8.1.
1.12 “Reseller Agent” means a person or entity that Partner appoints to market, promote, or resell the Products on behalf of Partner.
1.13 “Partner Data” means all electronic data or information submitted by Partner to the Products.
1.14 “Products” means the products and services that are ordered by Partner pursuant to an Order Form and made available by Company as part of the Exhibit. “Products” exclude Non-Company Applications.
1.15 “Statement of Work” or “SOW” means a statement of work for Professional Services and/or Deliverables that is executed by the Parties.
1.16 “Term” has the meaning ascribed to that term in Section 8.1.
1.17 “Territory” means the geographic area and/or market segment specified under the heading “Territory Assigned” in the Partner Profile.
1.18 “User Guide” means the online user guide for the Products, accessible on login, as updated from time to time by Company.
1.19 “Users” means individuals who are authorised by Customers to use the Products, for whom subscriptions to the Products have been ordered or credits purchased, and who have been supplied user identifications and passwords by Partner (or by Company at Partner’s request). Users may include but are not limited to Customer’s employees, consultants, contractors, and agents, and third parties with which Customers transact business.
2.1 Appointment Subject to the provisions in this Section 2 and the other terms and conditions of this Agreement and payment of the applicable Fees, Company hereby appoints Partner for the Term (unless terminated in accordance with Section 8 of this Agreement), as its non-exclusive reseller to market and resell the Products in the Territory on the terms of this Agreement and Partner accepts the appointment on those terms. Partner shall market, promote, and resell the Products to Customers and potential Customers in the Territory, at its own expense and using its own efforts with its own sales force (including Partner Agents). Company shall be free to appoint any other reseller or agent for the Products in the Territory and supply any Products directly in the Territory whether to Customers or for resale.
2.2 Company Responsibilities Company shall provide Partner with the Products in accordance with the subscription terms specified in the relevant Order Form and the terms of this Agreement for resale to Customers within the Territory. Partner acknowledges that the Products may be temporarily limited, interrupted, or curtailed due to maintenance, repair, modifications, upgrades, or relocation and agrees that Company shall not be in breach of this Agreement in such event. Company shall be entitled to change the Products during the Term provided that Company will not materially reduce the capabilities provided by the Products.
2.3 Partner Responsibilities Partner shall use its best endeavours to promote and sell the Products in the Territory and to expand the sale of the Products by all reasonable and proper means and not to do anything which may hinder or interfere with such sales. Partner shall maintain marketing and customer service standards that meets or exceeds prevailing industry standards to maintain the quality of the Products and to reflect favourably on Company’s and Partner’s reputation. Partner shall provide Customers with prompt, courteous, and efficient service, shall not disclose any Customer information, other than as permitted and required to comply with any applicable legislation, and shall deal with Customers honestly and fairly. Partner shall be responsible for all activities of its Customers and Partner shall (i) not allow unauthorised access to or use of the Products and shall notify Company promptly of any such unauthorised access or use; and (ii) comply with all applicable laws in respect to the promotion and resale of the Products.
2.4 Customer Contracts and Terms The Products shall be provided to Customers on terms and conditions that are determined by Partner, in accordance with any applicable regulations. Subject to the Partner’s compliance with the Products offering guidelines communicated from time to time and the User Guide, Company shall have no obligation to: (i) determine such terms and conditions between Partner and Customers; (ii) deal directly with Customers; or (iii) perform any customer service activities in relation to the Customers. Partner shall not make any representations or warranties on behalf of Company or in any way bind or attempt to bind Company contractually or otherwise with any Customer(s).
2.5 Products Restrictions Partner shall not, and shall not authorise any third party to: (a) copy, modify, duplicate, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Products in any form or media or by any means, except to the extent that enforcement of the foregoing restriction is prohibited by applicable law; (b) circumvent any user limits or other timing, use or functionality restrictions built into the Products; (c) remove any proprietary notices, labels, or marks from the Products (except to the extent that Partner is expressly permitted to do so by Company for the purposes of re-branding the Products); (d) frame or mirror any content forming part of the Products; or (e) access the Products in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Products.
2.6 Ownership and Proprietary Rights Company and its suppliers and/or licensors own and shall retain all rights, title, and interests (including without limitation all patent rights, copyrights, trademark rights, trade secret rights and other intellectual property rights), in and to the Products and the User Guide. Partner agrees that only Company shall have the right to maintain, enhance or otherwise modify the Products and Partner shall not maintain, enhance, or otherwise modify the Products without Company’s prior written consent. If Partner provides Company with reports of defects in the Products or proposes or suggests any changes or modifications (collectively “Feedback”), Company shall have the right to use and exploit such Feedback including, without limitation, the incorporation of such Feedback into Company’s software products and/or services, including, without limitation, the Products, without any obligation to Partner. Except as expressly set forth in this section, Company reserves all rights and grants Partner no licenses of any kind, whether by implication, estoppel, or otherwise.
2.7 Partner’s Use of Agents and Subcontractors. Partner may appoint Reseller Agents to market, promote and/or resell the Products within the Territory, provided that Partner shall continue to be responsible for all of its duties and obligations under this Agreement and for any acts or omissions of any of its Reseller Agents, and any acts or omissions of any of its Reseller Agents shall be attributed to Partner, and Partner shall: (a) be liable to Company for all losses, costs, damages and expenses of whatsoever nature, that Company may sustain or incur as a result or in connection with any act or omission of any Reseller Agent, and (b) indemnify Company, its officers, directors, employees, agents and Affiliates (including their officers, directors, employees, agents) from and against any and all actions, causes of action, claims and demands of whatsoever nature caused by, arising directly or indirectly out of, or in connection with any acts or omissions of any Reseller Agent.
2.8 User Subscriptions Unless otherwise specified in the applicable Order Form, (i) access to the Products is purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. Partner shall ensure that User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Products. Each Order Form is non-cancellable and non-refundable, unless with Company’s agreement in writing.
2.9 Credit Subscriptions By so specifying in its Order Form, Partner may purchase credits from Company for Users to redeem the Products. Credits will be allotted to the Partner upon Company’s confirmation of the Order Form. Credits have no cash value or any other value outside of Company’s platform and are not redeemable for cash. The credits do not operate or serve as stored value facilities in any way. Unused credits will expire at the end of their stated validity period and Partner is not entitled to redeem the Products using expired credits. If this Agreement is terminated for any reason, all unused credits will expire immediately, and Company shall not provide any refunds or payments for any unused credits. Partner may not transfer, trade, gift, or exchange credits. Each Order Form is non-cancellable and non-refundable, unless with Company’s agreement in writing.
2.10 Professional Services Upon execution of an SOW by the Parties, Partner may retain Company to provide Partner with Professional Services (including the development of Deliverables) on terms and conditions to be separately agreed between the Parties. If Partner submits a purchase order for Professional Services, such order shall not be binding upon Company until accepted by Company. Once an order has been accepted, it shall be subject to the terms and conditions of this Agreement (such terms superseding any and all pre-printed terms and/or conditions within such order).
2.11 Customer and Partner Data Partner shall comply with all applicable requirements of the Personal Data Protection Act 2012 (Act 26 of 2012), including procuring that it has all necessary and appropriate consents and ensuring that all notices are in place to enable the lawful transfer of personal data to Company for the Term and purposes of this Agreement to enable Company to lawfully collect, use, disclose and transfer the personal data in accordance with this Agreement on the Partner’s behalf. Subject to the limited rights granted to Company pursuant to this Section, Partner shall own all rights, title, and interests in and to the Partner Data and Customer Data, and Company acquires no rights, title or interests from Partner or any Customers under this Agreement in or to Customer Data and Partner Data, including any intellectual property rights therein. Partner shall be solely responsible for the legality, reliability, integrity, accuracy, and quality of all Partner Data.
3. PRODUCTS SUPPORT
3.1 Launch of the Products Offerings Upon both Parties agreeing to, Partner shall co-operate with Company and use its best efforts to integrate the Products with any Partner software(s) or infrastructure(s) in a timely manner with which the Products need to interact in order to allow the Products to be marketed by Partner to Customers in the Territory. Upon Company’s request, Partner shall provide Company with all necessary information, assistance and authorisations required to integrate the Products with any Partner software or infrastructure. Upon successful integration of the Products with Partner’s software(s) or infrastructure(s) and the Parties agree that the integrated Products are of a reasonable quality (having regard to similar commercial offerings), the Partner shall be entitled to begin reselling the Products to Customers in the Territory.
3.2 Products Support Company shall at its absolute discretion provide basic support for the Products to Partner at no additional charge and/or upgraded support if purchased separately by Partner. Partner shall be responsible for providing First Line Support to Customers and Users of the Products. For the purposes of this Agreement, “First Line Support” means (i) fielding each initial call on a Products problem or other inquiry from a Customer or User; (ii) generating and issuing a trouble ticket containing a reference/tracking number to the Customer or User; (iii) to the extent reasonably possible, identifying the problem or performance deficiency in the Products; (iv) by reference to only a troubleshooting guide that may be provided by Company, attempted resolution of the problem; (v) where such problem has not been resolved, preparation of an error notification in relation to the problem or performance deficiency; (vi) managing communications and expectations with the Customer and/or User until the problem is referred to Company; and (vii) escalating the error notification to Company. Under no circumstances will Company be obliged to deal directly with a Customer or User.
3.3 White Labelling If mutually agreed by the Parties in writing, Company shall brand the Products with Partner-specific branding prior to making the Products available for resale by Partner. Partner shall brand the Products with “powered by Dedoco” marks and logos unless otherwise agreed by the Parties in writing. Partner shall ensure that the Products retain any relevant patent, copyright and/or other intellectual property notices as may be determined to be appropriate by Company. Partner shall provide, in a format as reasonably specified by Company, the Partner-specific branding to be used to white-label the Products. Company shall provide Partner with access to the white-labelled Products for review prior to making any production versions of the white labelled Products commercially available for resale by Partner. Partner shall promptly review the white-labelled Products. The Partner-specific branding will be applied to the Products by Company for the fees specified in the applicable SOW for such Professional Services. Partner grants Company a non-exclusive, perpetual, worldwide, royalty-free, sub-licensable and transferable licence to use, reproduce and publicly display the Partner-specific branding materials including the Partner’s trademarks provided to Company for the purposes of re-branding the Products as contemplated in this Section 3.3 and for the operation of the white-labelled Products. Company shall only use any Partner-specific branding materials provided to Company for the purposes of re-branding the Products as contemplated in this Section 3.3 and for the operation of the white-labelled Products. Except for the foregoing rights, Partner shall retain all rights, title and interests in the Partner-specific branding provided to Company.
3.4 Acquisition of Non-Company Products and Services Company or third parties may from time to time make available to Partner third-party products or services, including but not limited to Non-Company Applications and implementation, customisation, and other consulting services. Any acquisition by Partner of such non-Company products or services, and any exchange of data between Partner or its Customers and any non-Company provider, is solely between Partner or the applicable Customer, as the case may be, and the applicable non-Company provider. Company does not warrant or support non-Company products or services, whether or not they are designated by Company as “certified” or otherwise, except as specified in an Order Form.
3.5 Non-Company Applications and Customer and Partner Data If Partner or any of its Customers installs or enables Non-Company Applications for use with the Products, Partner acknowledges that Company may allow providers of those Non-Company Applications to access Customer Data and Partner Data as required for the interoperation of such Non-Company Applications with the Products. Partner shall procure all necessary and appropriate consents and ensure that all notices in place to enable the lawful transfer of personal data from Company to the providers of Non-Company Applications. Company shall not be responsible for any disclosure, modification or deletion of any Customer Data and Partner Data resulting from any such access by Non-Company Application providers. The Products shall allow Customers to restrict such access by restricting Customer users from installing or enabling such Non-Company Applications for use with the Products.
3.6 Integration with Non-Company Products The Products may contain features designed to interoperate with Non-Company Applications. To use such features, Partner and Customers may be required to obtain access to such Non-Company Applications from their providers. If the provider of any such Non-Company Application ceases to make the Non-Company Application available for interoperation with the corresponding Products features on reasonable terms, Company may cease providing such Products features without entitling Partner or any Customers to any refund, credit, or other compensation.
3.7 Company Protection of Customer Data Company shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data. Company shall not (a) modify Customer Data except to the extent required to provide the Products, (b) disclose Customer Data except as compelled by law in accordance with Section 5.5 or as expressly permitted in writing by Partner or the applicable Customer, or (c) access Customer Data except to provide the Products and prevent or address service or technical problems, or at Partner’s request in connection with Customer support matters.
3.8 Partner Responsibilities Partner shall (i) be responsible for Customers’ and Users’ compliance with Company’s policies and procedures applicable to the Products; (ii) be responsible for the accuracy, quality, and legality of the Customer Data and of the means by which it was acquired. Partner shall not: (a) make the Products available to anyone other than Customer and Users; (b) market, sell, resell, rent or lease the Products outside the Territory; (c) use the Products to store or transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (d) use the Products to store or transmit Malicious Code; (e) interfere with or disrupt the integrity or performance of the Products or third party data contained therein; or (f) attempt to gain unauthorised access to the Products or their related systems or networks.
3.9 Usage Limitations on Products If Company opts to impose Products limitations on all customers, such as but not limited to disk storage space, application programming interface calls, Company will use commercially reasonable efforts to provide at least ___________[number of months] written notice of such limitations to Partner.
4. PAYMENT TERMS AND TAXES
4.1 Customer Pricing Subject to the Partner complying with Company’s policies and guidelines on pricing and terms; all fees, rates or charges charged by Partner to Customers for the Products shall be determined by Partner. Company shall have no authority or responsibility to determine such fees or other amounts, and Company shall have no responsibility for billing or collecting such fees or any other amounts from Customers. In connection with such activities, Partner will act in all respects for its own account and will be responsible for such matters as credit verification, deposits, billing, collection, bad debts, and any unauthorised use of the Products by or on behalf of Customers. Partner is solely responsible for payment to Company for all Fees for the Products re-sold to Customers. Company is obligated only to Partner, and not to Customers, with whom Company is not in privity of contract. Customers shall not be deemed third-party beneficiaries of this Agreement and shall have no right to enforce the terms and conditions of this Agreement.
4.2 Fees Partner shall pay all Fees specified in all Order Forms (which will reflect the discounts, if any, specified in the Partner Profile and Exhibits) pursuant to this Agreement. Except as otherwise specified in this Agreement or in an Order Form, (i) Fees are based on contracted usage for the Products and not actual usage, (ii) payment obligations are non-cancellable and Fees paid are non-refundable, and (iii) the User subscriptions purchased cannot be decreased during the relevant subscription term stated on the applicable Order Form. Company may adjust the Fees during the Term by giving Partner not less than 60 days’ prior written notice of such proposed adjustments. Subject to Partner’s agreement to the adjusted Fees, the adjusted Fees shall take effect at the end of the 60 days’ notice period.
4.3 Payment Terms All payments under this Agreement shall be made within the credit period and amounts are payable in the currency specified in the invoice after the receipt of the applicable invoice, as specific in Partner Profile and Exhibits. Any amounts not paid when due shall accrue interest at the lesser of __1.5%__[percent per month] or the maximum rate allowed by law. Without prejudice to the foregoing and any remedies that Company may have, if Partner fails to make payments, Company shall be entitled to cancel all future subscription renewals and revise the payment terms in future Order Forms.
4.4 Suspension of Products and Acceleration If Partner fails to pay any amount owing by Partner to Company under this Agreement or any other agreement for the Products [30 days] after the due date, all unpaid amounts due to Company, including unpaid Fees and interests, shall become immediately due and payable, and Company shall be entitled to, without limiting Company’s other rights and remedies, suspend provision of the Products to Partner and the Customers until all such amounts are paid in full.
4.5 Taxes Unless otherwise stated, the Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, goods and services, harmonised, sales, use or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (collectively, "Taxes"). Partner is responsible for paying all Taxes associated with its purchases pursuant to this Agreement. If Company has the legal obligation to pay or collect Taxes for which Partner is responsible under this paragraph, the appropriate Tax amount shall be invoiced to and paid by Partner, unless Partner provides Company with a valid tax exemption certificate authorised by the appropriate taxing authority. For clarity, Company is solely responsible for taxes assessable against Company based on its income, property, and employees.
5.1 Definition of Confidential Information “Confidential Information” means any and all information disclosed by either Party to the other which is marked “confidential” or “proprietary”, or which the recipient knows or has reason to know is regarded by the disclosing party as such, including oral information. “Confidential Information” does not include any information that the receiving party can demonstrate by its written records: (a) was known to it prior to its disclosure hereunder by the disclosing party; (b) is or becomes known through no wrongful act of the receiving party; (c) has been rightfully received from a third party authorised to make such a disclosure; (d) is independently developed by the receiving party; (e) has been approved for release with the disclosing party’s prior written authorisation; or (f) has been disclosed by court order or as otherwise required by law, provided that the party required to disclose the information provides prompt advance notice to enable the other party to seek a protective order or otherwise prevent such disclosure.
5.2 Obligation Each Party shall keep all Confidential Information in the strictest confidence. Neither Party will use any Confidential Information of the disclosing party except as necessary to exercise its rights or perform its obligations pursuant to this Agreement or as expressly authorised in writing by the other party. Each Party shall use the same degree of care to protect the disclosing party’s Confidential Information as it uses to protect its own Confidential Information of like nature, but in no circumstances less than reasonable care. Neither Party shall disclose the other Party’s Confidential Information to any person or entity other than its officers, employees, consultants, and legal advisors who need access to such Confidential Information in order to affect the intent of the Agreement and who have entered into written confidentiality agreements with it as least as restrictive as those this section. Upon any termination of this Agreement, the receiving party will promptly return to the disclosing party or destroy, at the disclosing party’s option, all of the disclosing party’s Confidential Information.
5.3 Injunctive Relief Each party acknowledges that due to the unique nature of the other party’s Confidential Information, the disclosing party may not have an adequate remedy in money or damages in the event of any unauthorised use or disclosure of its Confidential Information. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief to prevent such unauthorised use or disclosure.
5.4 Other Exemptions Notwithstanding the foregoing provisions in this section, the parties may disclose this Agreement: (i) as otherwise required by law or the rules of any stock exchange or over-the counter trading system provided that reasonable measures are used to preserve the confidentiality of the Agreement, (ii) in confidence to legal counsel, (iii) in connection with the requirements of a public offering or securities filing provided reasonable measures are used to obtain confidential treatment for the proposed or any rights under this Agreement, provided that reasonable measures are used to preserve the confidentiality of this Agreement, (v) in confidence, to auditors, accountants, legal counsel and their advisors, (vi) in confidence, in connection with a change of control or potential change of control of a party or an Affiliate of a party, provided that reasonable measures are used to preserve the confidentiality of the Agreement. For any legally compelled disclosure or disclosure pursuant to a court, regulatory, or securities filing, the parties shall reasonably cooperate to limit disclosure.
5.5 Compelled Disclosure If a receiving party is compelled by law to disclose Confidential Information of a disclosing party, it shall provide the disclosing party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party's cost, if the disclosing party wishes to contest the disclosure.
6. WARRANTIES AND DISCLAIMERS
6.1 Warranties Each Party warrants to the other Party that: (i) it is a business duly incorporated, validly existing, and in good standing under the laws of its jurisdiction of incorporation; (ii) it has all requisite corporate power, financial capacity, and authority to execute, deliver, and perform its obligations under this Agreement; (iii) the execution, delivery, and performance of this Agreement constitutes the legal, valid, and binding agreement of such party; (iv) as of the Effective Date, there is no outstanding litigation, arbitrated matter or other dispute to which it is a party, which, if decided unfavourably to it, would reasonably be expected to have a potential or actual material adverse effect on such party’s ability to fulfil its obligations under this Agreement; and (v) no consent, approval or withholding of objection is required from any entity, including any governmental authority, with respect to such party’s entering into this Agreement. Company warrants that (i) the Products shall perform materially in accordance with the User Guide, (ii) subject to Section 3.4 and 3.6, the functionality of the Products will not be materially decreased during a subscription term, and (iii) Company will not transmit Malicious Code to Partner or any Customers provided that if Partner, a Customer or a User uploads a file containing Malicious Code into the Products and later downloads that file, this warranty shall not apply to such file. For any breach of a warranty above, Partner’s exclusive remedy shall be as provided in Section 8.2 and Section 8.6 below. Partner warrants and represents that: (i) it will at all times comply with all applicable laws with respect to its activities under this Agreement; and (ii) it is the owner or authorised user of all intellectual property provided to Company pursuant to this Agreement and used in conjunction with the Products, including the Partner-specific branding materials and the Partner’s trade marks for the purposes of re-branding the Products and any use thereof by Company pursuant to this Agreement will not violate or infringe any third party rights. Disclaimer. Except as specifically set forth in this Section 6, the Products and the User Guide are provided on an “As Is” basis and without any representations, warranties and/or conditions of any kind. Save as provided under Section 6.1, each Party and its licensors and/or suppliers make no other representations and give no other warranties or conditions, express, implied, statutory, or otherwise regarding the Products and/or the User Guide provided under this Agreement and each Party shall specifically disclaims any and all implied representations, warranties and/or conditions of merchantability, merchantable quality, non-infringement, durability, title and fitness for a particular purpose. Additionally, Partner acknowledges that Company does not represent or warrant or provide any conditions that the Products and/or User Guide will be error-free or that the Products will work without interruptions.
7.1 Company Intellectual Property Indemnity Company shall defend and/or settle at its expense, any claims, actions or proceedings against Partner to the extent arising out of or relating to any misappropriation or infringement by the use of the Products or the User Guide in accordance with this Agreement of any third party’s proprietary or intellectual property right (“Partner Claims”), and Company shall pay all damages finally awarded by a court of competent jurisdiction to such third party against Partner, or any settlement amounts agreed by Company in writing; subject to the conditions that, Partner shall notify Company promptly of any Partner Claims, permit Company to control the defence and settlement of such Partner Claims, and assist Company, at Company’s expense, in defending or settling such Partner Claims. For the avoidance of doubt, Company shall not be liable for any settlement amounts entered into by Partner without Company’s prior written approval. If Company has reason to believe that it would be subject to an injunction or continuing damages based on the Products, then Company shall be entitled to either modify the Products to make it non-infringing and/or remove the misappropriated material, replace the Products or portion thereof with a service or materials that provide substantially the same functionality or information, or, if neither of the foregoing is commercially practicable, require Partner and the Customers to cease reselling, receiving and/or using the Products, as the case may be, and refund to Partner any Fees that have been pre-paid by Partner but are unused. Notwithstanding the foregoing, Company shall have no liability for a claim of infringement or misappropriation to the extent caused by (i) the combination of Products with any other service, software, data or products not provided by Company, which claim would have been avoided if the Products had not been so combined; or (ii) the use of any material provided by Partner or any Customers; (iii) any use or resale of the Products outside the Territory; or (iv) any breach by Partner of this Agreement or by any Customers of any Products policies and/or procedures. The foregoing is Company’s sole and exclusive liability, and Partner’s sole and exclusive remedy for any infringement or misappropriation of any third-party intellectual property rights.
7.2 Partner Indemnity Partner shall defend and/or settle at its expense, any claims, actions or proceedings against Company and its Affiliates and its and their officers, directors, employees and contractors (the “Company Indemnified Parties”) to the extent arising out of or relating to (a) bodily injury or damage to tangible or real property, including death, caused by or arising out of any negligent act or omission of Partner or those for whom Partner is responsible for at law (to the extent permissible by law); (b) the provision, use or failure of any product or service provided by Partner; (c) any representations or warranties made by Partner in respect to the Products or any portions thereof beyond those authorised in this Agreement; (d) any infringement or misappropriate of any intellectual property or other rights by any Customer Data; (e) any violation of any law or regulation by Partner or any of its Affiliates or any of its or their officers, directors, employees, contractors or agents; (f) real or tangible property damage or bodily injury or death caused by the negligent or wilful acts or omissions of the Partner or any of its Affiliates or any of its or their officers, directors, employees, contractors or agents in connection with this Agreement; and/or (g) any misappropriation or infringement of any third party’s proprietary or intellectual property right by Company’s use of Partner’s intellectual property in accordance with this Agreement (“Company Claims”), and Partner shall pay all damages finally awarded by a court of competent jurisdiction to such third party against any of the Company Indemnified Parties, or any settlement amounts agreed by Partner in writing.
8. TERM AND TERMINATION
8.1 Term This Agreement shall commence as of the Effective Date and shall continue in effect for an initial term of [two (2) years] (such initial term referred to in this Agreement as the “Initial Term”). Thereafter, the term of the Agreement shall be automatically renewed annually on the anniversary of the Effective Date for additional one (1) year renewal terms (any such subsequent renewal terms referred to in this Agreement as a “Renewal Term”), unless either Party gives written notice of non-renewal to the other Party at least __30__[number of days] days prior to the end of the Initial Term or any Renewal Term hereof. Collectively, the Initial Term and any subsequent Renewal Terms shall constitute the “Term”.
8.2 Termination Notwithstanding Section 8.1, this Agreement may be terminated as follows: (a) if Partner fails to make any payment due hereunder within __30__[number of days] days after receiving written notice from Company that such payment is delinquent, Company may terminate this Agreement on written notice to Partner at any time following the end of such period; (b) if either Party breaches any material term or condition of this Agreement and fails to cure such breach within __30__[number of days] days after receiving written notice of the breach, the non-breaching party may terminate this Agreement on written notice at any time following the end of such __30__[number of days] day period; (c) if either Party becomes insolvent (i.e., becomes unable to pay its debts in the ordinary course of business as they come due) or makes an assignment for the benefit of creditors, then the other party may terminate this Agreement immediately upon notice; or (d) without cause, with __30__[number of days] days’ written notice by either Party. If Partner terminates this Agreement, such termination shall not affect Partner’s right to provide Customers with Partner’s own products and services that do not use or depend on the Products or any Deliverables.
8.3 Term of Purchased User Subscriptions User subscriptions purchased by Partner commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either Party gives the other notice of non-renewal at least __30__[number of days] days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless Company has given Partner written notice of a pricing increase at least __60__[number of days] days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
8.4 Survival The following sections shall survive the termination or expiration of this Agreement for any reason: 1, 5, 6, 7, 8.4, 8.5, 8.6, 8.7, 9, 10.
8.5 Effect of Termination Upon expiration or termination of this Agreement, Partner shall (a) immediately cease all use of the Products; (b) promptly return all copies of the User Guide to Company or else destroy those copies; (c) provide assurances to Company that it has done the foregoing in subparagraphs (a) and (b); and (d) pay all unpaid and outstanding amounts due to Company as at the date of expiration or termination of this Agreement, including any such unpaid Fees, within thirty (30) days of such expiration or termination or by the payment due date of the relevant invoices, whichever is earlier.
8.6 Rights upon Termination Termination is not an exclusive remedy and is in addition to other rights or remedies that may be available. Upon any termination in accordance with Section 8.2 by Partner, Company shall refund Partner any prepaid Fees covering the remainder of the term of all subscriptions after the date of termination. Upon any termination in accordance with Section 8.2 by Company, Partner shall pay any unpaid Fees covering the remainder of the term of all Order Forms after the date of termination. In no event shall any expiration or termination of this Agreement relieve Partner of the obligation to pay any Fees payable to Company for the period prior to the date of termination. If this Agreement is not terminated for a breach by Partner, the Parties agree to negotiate in good faith and come to an agreement in writing that, where practically and operationally possible as determined by Company, in respect of any Customers to whom Partner has sold subscriptions for the Products during the Term, Company shall continue to provide Products for such Customers for the remainder of their then-current subscription period (as of the date of termination of expiration of this Agreement) subject to Partner’s payment of the applicable Fees for such Customers and subject to Partner’s continued compliance with the terms and conditions of this Agreement, which shall survive in respect of such Customers, and if so agreed, for the avoidance of doubt, ongoing revenue for the remaining term of such Customers’ subscription (as of the date of termination of expiration of this Agreement) will continue to be shared in accordance with this Agreement and both Parties shall continue to provide services to such Customers in accordance with this Agreement for the remainder of such subscription term.
8.7 Return of Customer and Partner Data Upon request by Partner made within thirty (30) days after the date of termination or expiration of a Products subscription, Company will make available and return Customer Data or Partner Data. After such 30-day period, Company shall have no obligation to maintain or provide any of such Customer Data or Partner Data and shall thereafter, unless legally prohibited, may delete all of such Customer’s Customer Data or Partner’s Data in Company’s systems or otherwise in Company’s possession or under Company’s control.
9. LIMITATION OF LIABILITY
9.1 In no event shall either Party, or its licensors or suppliers by virtue of this agreement, have any liability to any other party for any lost profits or costs of procurement of substitute goods or services, or for any incidental, punitive, indirect, special, or consequential damages, however caused and under any theory of liability (including negligence) and whether or not such party has been advised of the possibility of such damage.
9.2 In no event shall Company, its Affiliates or its or their officers, directors, employees, agents, licensors or suppliers be liable to Partner for an amount greater than the Fees in respect of each Order Form for the Products that are the subject of the claim, regardless of the cause and whether arising in contract, tort (including negligence) or otherwise, provided always that Company shall not be liable for any claim in respect of any Products that have not been sold to Customers by Partner.
9.3 The Parties agree that this Section 9 represents a reasonable allocation of risk. Notwithstanding the foregoing, the limitations set forth in this Section 9 shall not apply to (i) any infringement or misappropriation by either Party or its contractors of the other Party’s intellectual property rights; (ii) each Party’s obligation to provide indemnification under Section 7 of this Agreement; and (iii) the breach of each Party’s confidentiality obligations under Section 5.
9.4 Notwithstanding this Section 9, nothing in this Agreement limits any liability which cannot legally be limited, including liability for death or personal injury caused by negligence.
10.1 Invoices The terms, provisions or conditions of any purchase order or other business form or written authorisation used by either party will have no effect on the rights, duties, or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of the receiving party to object to those terms, provisions, or conditions.
10.2 Marketing Activities Following the execution of this Agreement, the Parties may issue a joint press release highlighting the relationship contemplated by this Agreement. Notwithstanding the foregoing, neither Party will publish a press announcement related to this Agreement without prior written consent of the other party.
10.3 Assignment This Agreement shall be binding on and shall ensure for the benefit of each of the Parties and their respective successors and assigns. Neither Party may assign or transfer any of its rights, benefits, or obligations under this Agreement without the prior consent in writing of the other Party. Notwithstanding the foregoing, Company may assign this Agreement (including all Order Forms) with notice to Partner in connection with any merger or acquisition or sale of all or substantially all of Company’s or any of its Affiliate’s assets or stock. Such assignment will not in any event relieve the assignor of any obligations that accrue under this Agreement prior to any such assignment. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any attempted assignment in violation of this Section 10.3 shall be null and void.
10.4 Waiver and Amendment No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party to be changed. No failure or delay by either party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power or remedy.
10.5 Compliance with Laws Each Party shall comply with all applicable laws and regulations regarding the general conduct of business including without limitation all relevant anti-corruption and anti-bribery laws. Partner agrees to fully comply with all export, re-export and import restrictions and regulations of all agencies and/or authorities of any applicable countries.
10.6 Notices All notices, demands or consents required or permitted under this Agreement shall be in writing and delivered to the registered addresses of respective parties. Notice shall be considered delivered and effective on the earlier of actual receipt or when (a) personally delivered; (b) the day following transmission if sent by telex, telegram or facsimile when followed by written confirmation by registered overnight carrier or certified mail; or (c) one (1) day after posting when sent by registered private overnight carrier (e.g. DHL, Federal Express, etc.); or (d) five (5) days after posting when sent by certified mail. Notice shall be sent to the parties at the respective registered addresses or at such other address as shall be specified by either party to the other in a notice in accordance with this Section 10.6.
10.7 No Agency or Partnership This Agreement does not create a legal partnership (notwithstanding any use of the term “partner” by the parties, which if used is meant only to convey a spirit of cooperation between the parties), joint venture, agency, employee/employer, relationship, or franchisee/franchisor relationship between the parties. Neither party shall have any right, power or authority to create any obligation or responsibility on behalf of the other. Each Party confirms that it is acting on its own behalf.
10.8 Severability If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
10.9 Force Majeure Save for each Party’s obligations payment obligations under this Agreement, neither Party shall be deemed to be in breach of this Agreement nor liable for any failure or delay in performance caused by reasons, events or circumstances beyond its reasonable control, including but not limited to acts of God, earthquakes, wars, terrorism, communication failures, strikes or shortages of materials, and any computer, communications, Internet service or hosting facility failures or delays involving hardware, software, power or other systems not within Company’s possession or reasonable control, and denial of service attacks.
10.10 Headings and References The headings and captions used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement.
10.11 Counterparts This Agreement may be executed and delivered in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument. Any Party may enter into this Agreement by signing any such counterpart (which may include counterparts delivered by facsimile and/or electronic transmission, with originals to follow) and each counterpart shall be as valid and effectual as if executed as an original.
10.12 Rights of Third Parties A person who is not a party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore to enforce or enjoy the benefit of any term of this Agreement except and to the extent that the provisions of this Agreement expressly provide for the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore to apply to them. Notwithstanding any of the provisions of this Agreement, the consent of any third party is not required for any rescission or variation of (including any waiver, release, or compromise of any liability under) the provisions of this Agreement nor, for the termination or rescission of this Agreement.
10.13 Company Affiliates Company may use one or more Affiliates to perform its obligations under this Agreement, provided that such use will not affect Company’s obligations hereunder.
10.14 Entire Agreement This Agreement, including all Order Forms, Statements of Work and Schedules, constitutes the final, complete, and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreement.
10.15 Governing Law and Jurisdiction This Agreement and any non-contractual obligations arising out of or in connection with this Agreement shall be governed by, and construed in accordance with, the laws of Singapore. Each Party agrees that any dispute arising out of or in connection with this Agreement or any document or transaction in connection with this Agreement (including any dispute or claim relating to any non-contractual obligations arising out of or in connection with this Agreement) shall be referred to and finally resolved by arbitration in Singapore to the exclusion of the ordinary courts, in accordance with the Arbitration Rules of the Singapore International Arbitration Centre ("SIAC") for the time being in force, which rules are deemed to be incorporated by reference in this Section
10.16. The Tribunal shall consist of one (1) arbitrator to be appointed by the SIAC. The language of the arbitration shall be English. The arbitral award made and granted by the arbitrators shall be final, binding, and incontestable, may be enforced by the Parties against the assets of the other Party wherever those assets are located or may be found and may be used as a basis for judgement thereon in Singapore or elsewhere.