THIS HUB END USER AGREEMENT is made between

Hub Global Pte Ltd of 151 Chin Swee Road #7-12 Manhatten House, Singapore (“Supplier”)

-and-

You as the Party described in the Log-On Procedure (“End User”)

 

RECITALS

  1. The Supplier conducts a business of providing secure, cloud based, private platforms as a service.
  2. The Supplier has created the Designated Platform.
  3. The Supplier has created the Account for the Customer described in the Long On Procedure.
  4. The End User is an Authorised Account User and wishes to obtain the right to access and use the Designated Platform.
  5. The Supplier has agreed to grant the End User access to the Designated Platform on the terms and conditions set out in this Agreement.

 

OPERATIVE PROVISIONS

1.DEFINITIONS AND INTERPRETATION

1.1In this Agreement, unless the context otherwise requires:
  1. “Account” means the account created and provided to the Customer to access the Designated Platform under the Customer Agreement.
  2. “Account Administrator” means the person or persons nominated by the Customer from time to time with rights to control access to the Account under the Customer Agreement.
  3. “Account Data” means the Data stored on or via the Designated Platform through the use of the Account and being the Customer Data, the Authorised Account User Data and End User Data; 
  4. “Access Rights”, in relation to a person, means the rights granted to that person to access and use the Designated Platform via the Account, including any rights to upload, store, copy, manipulate or alter any Account Data.
  5. “Agreement” means this agreement and includes all Schedules and Annexures.
  6. “Authorised Account User” has the meaning given under the Customer Agreement and, unless the context otherwise requires, includes the End User;.
  7. “Authorised Account User Data” means Data belonging to any of the Authorised Account Users;
  8. “Associate” means in relation to a person, the employees, officers, directors, representatives, agents and contractors (including sub-contractors) of that person and of any Related Entity of that person (if any).
  9. “Background IP” means Intellectual Property (and subsequent enhancements) belonging to a Party prior to Commencement Date or acquired or created by a Party independently of this Agreement, which are used in the provision of the Services;
  10. “Business Day” means a day which is not a Saturday, Sunday or government declared public holiday in Melbourne, Victoria, Australia.
  11. “Commencement Date” means the date End User or agrees to the terms of this Agreement during the Log-On Procedure.
  12. “Confidential Information” means all information of a confidential nature belonging to or in the possession of a Party, consisting of business, financial and other commercially valuable information in whatever form including know how, trade secrets, unpatented inventions, processes, business and marketing policies and strategies, employee and client details, formulae, computer software, code, graphs, drawings, designs, samples, devices, models and other materials provided that the following will constitute an exception to such information:
    1. information which is already in the public domain;
    2. information which hereafter becomes part of the public domain otherwise than as a result of an unauthorised disclosure by the recipient Party or its Associates;
    3. information which is or becomes available to the recipient Party from a third party lawfully in possession thereof and who has the lawful power to disclose such information to the recipient Party; and
    4. information which is rightfully known by the recipient Party (as shown by its written record) prior to the date of the disclosure to it or otherwise independently developed by an employee of the recipient Party who has no knowledge of the disclosure to it hereunder.

    13. Confidential Information includes confidential information owned by the Supplier or in relation to which the Supplier holds Intellectual Property Rights and includes the Licensed Software, Documentation and the Source Code relating to the Software.

  13. “Corporations Act” means the Corporations Act 2001 (Cth).
  14. “Customer” means the person who invited the End User to access and use the Designated Platform using the Account;
  15. “Customer Agreement” means the agreement between the Supplier and the Customer under which the Supplier has allowed the Customer and its Authorised Account Users to access and use the Designated Platform.
  16. “Customer Data” means the Data belonging to or controlled by the Customer;
  17. “Data” means all information, images, sound, video or data whether in oral or written form (including electronic) created, used, amended, uploaded or stored in the course of using the Services and includes all information relating to the Access Rights of the Customer and Authorised Account Users and all information including email content, headers and attachments;
  18. “Designated Platform” means the platform hub described in the Customer Agreement.
  19. “Documentation” means:
    1. the operating manuals, technical specifications, user manuals, and other printed or electronic literature made available to the Customer by the Supplier to aid the use and application of the Services; and
    2. all materials published or otherwise made available by the Supplier that relate to the functional, operational and/or performance capabilities of the Services.
  20. "Downtime" means any period of time of any duration that the Services are not made available by Supplier to the Customer or an Authorised Account User (including the End User) for any reason, including scheduled maintenance or enhancements to the Licensed Software.
  21. “End User Data” means Data created, owned or belonging to the End User;
  22. “Force Majeure” means any event beyond the reasonable control of the Parties which prevents or materially prejudices or renders materially more expensive, a Party performing one or more of its obligations (other than an obligation to pay money) and includes but is not limited to:
    1. acts of God, natural disasters, fire, flood, lightning strikes, earthquakes, storms, explosions, transport delays, telephone and data connection interruption;
    2. acts of war, terrorism, riot, civil disturbance, third party criminal activity; or
    3. industrial action including pickets, work to rule, work bans and strikes.
  23. “GST” has the meaning given in section 195-1 of the GST Act.
  24. “GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
  25. “Intellectual Property Rights” means statutory and other property rights in respect of trademarks, patents, circuit layouts, copyrights, confidential information and all other intellectual property rights as defined in Article 2 of the Convention establishing The World Intellectual Property Organisation of July 1967.
  26. “Insolvent”, in relation to a person, means if that person:
    1. is (or states that it is) an insolvent under administration or insolvent (each as defined in the Corporations Act);
    2. is in liquidation, in provisional liquidation, under administration or wound up or has had a receiver appointed to any part of its property;
    3. is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by the other Party to this agreement);
    4. is the subject of an application or order (and in the case of an application, it is not stayed, withdrawn or dismissed within twenty (20) Business Days), resolution passed, which is preparatory to or could result in any of (i), (ii) or (iii) above;
    5. has failed to comply with a statutory demand under section 459F(1) of the Corporations Act or has not had the statutory demand set aside pursuant to section 459G of the Corporations Act;
    6. is the subject of an event described in section 459C(2)(b) of the Corporations Act (or it makes a statement from which the other Party to this agreement reasonably deduces it is so subject);
    7. has something happen in connection with it that has a substantially similar effect to (i) to (vi) above under the law of any jurisdiction; or
    8. is bankrupt or commits an act of bankruptcy.
  27. “Liability” means any liability and includes Losses.
  28. “Liability Cap Amount” means the lesser of:
    1. $5,000;
    2. the amount paid to the Supplier by the Customer in relation to the Account for the Services (all commissions payable in respect of the Account to third parties) in the 12 month period prior to the event resulting in the relevant Liability.
  29. “Licensed Software” means the software described in the Customer Agreement and any other software agreed to be supplied by the Supplier to the Customer using the Account and relating to the Designated Platform (but does not include any Source Code).
  30. “Log On Procedures” means procedures including username and password protocols used by the End User or required to be used by the Supplier to access the Account or the Designated Platform obtain Access Rights to the Account or the Designated Platform.
  31. “Losses” means claims, losses, liabilities, damages, costs and expenses of any kind, including those which are prospective or contingent and those the amount of which is not ascertained or ascertainable.
  32. “Maintenance and Technical Support” means any services provided by the Supplier relating to the Designated Platform.
  33. “Party” means a party to this Agreement and “Parties” means both parties to this Agreement.
  34. “RCTI” means a recipient created tax invoice within the meaning of the GST Act or similar invoice within the meaning of any relevant VAT Act.
  35. “Related Entity” has the meaning given to it in the Corporations Act.
  36. “Remote Access” means functionality whereby the computer equipment of the Customer, the Authorised Account Users or the End User (as the case may be) has or have a permanent and secure data connection to the Supplier or its equipment enabling Support and Maintenance services to be carried out remotely;
  37. “Source Code” means the complete high level language computer programs in human readable alphanumeric characters, which when compiled, generate the object and executable program that constitutes a usable software product and any relevant documentation including the description of the development environment for the relevant software.
  38. “Statute” means any act of any parliament or other legislative body or any regulations or other subordinate instrument made under or pursuant to such an act.
  39. “Support or Maintenance Services” means any maintenance or support services relating to the Designated Platform or the Account.
  40. “Supplier” means Hub Global Pte Ltd of 151 Chin Swee Road #7-12 Manhatten House, Singapore.
  41. “Term” means the period from the Commencement Date and ending on the termination or expiration of this Agreement under its terms.
  42. “Third Party Software” means any software or Intellectual Property Rights belonging to or owned by a third party which are used by the Customer or any Authorised Account User or the End User in relation to the Services (but excluding the Software and Licensed Software).
  43. “VAT” means any type of consumption tax on a product or service whenever value is added at a stage of production or final sale of such product or sale and includes any tax which is similar in effect to the GST;
  44. “VAT Act” means any statute that imposes VAT in any jurisdiction in the world other than Australia;
  45. “Valid Tax Invoice” means a tax invoice that complies with:
  46. the GST Act; or
  47. the relevant legislation imposing VAT.
  48. “Viruses” means any viruses, time-bombs, back doors, trojan horses and any other form of malevolent or defective code or similar items.
  49. “Website” means the website www.hub3c.com or such other web address notified by the Supplier from time to time and includes all domains within such website.
1.2In this Agreement, headings are inserted for convenience only and will not affect interpretation. Unless expressly provided otherwise:
  1. words importing the singular include the plural and vice versa;
  2. a word importing a gender includes the other genders;
  3. other grammatical forms of defined words or expressions have corresponding meanings;
  4. a reference to a clause, paragraph, Schedule or Annexure is a reference to a clause of, paragraph of, schedule of, or annexure to, this Agreement;
  5. a reference to this Agreement includes all schedules and annexures to it;
  6. a reference to dollars or $ means Australian dollars;
  7. a reference to a document or agreement includes a reference to that document or agreement as novated, altered or replaced from time to time;
  8. a reference to a Party or a person includes the Party’s or the person’s executors, legal personal representatives, successors, permitted transferees and assigns; and
  9. a reference to a specific time for the performance of an obligation is a reference to that time in the place, in the case of a notice, where the notice is to be received and otherwise, where the obligation is to be performed.
1.3If the doing of any act, matter or thing under this Agreement is dependent on the consent or approval of a Party or is within the discretion of a Party, the consent or approval may be given or the discretion may be exercised conditionally or unconditionally or withheld by the Party in its absolute discretion, unless this Agreement expressly provides otherwise.
1.4Where any conflict occurs between the provision contained in two or more of the documents forming this Agreement, the document lower in the order of precedence will where possible be read down to resolve such conflict. If the conflict remains incapable of resolution by reading down, the conflict provisions will be severed from the document lower in the order of precedence without otherwise diminishing the enforceability of the remaining provisions of that document.

 

2.RIGHT TO ACCESS AND USE DESIGNATED PLATFORM

2.1On the terms and conditions set out in this Agreement, the Supplier agrees to provide allow the End User to access and use the Designated Platform using the Account.
2.2The End User warrants and represents to the Supplier that the End User is an Authorised Account User (in relation to the Account) and has been granted permission by the Customer (or the Account Administrator on its behalf) to access and use the Designated Platform using the Account.
2.3If the End User ceases to be an Authorised Account User:
  1. the rights of the End User (as End User) under this Agreement cease; and
  2. the End User must cease to use the Designated Platform and the Licensed Software.

 

3.ACCOUNT AND ACCOUNT ADMINISTRATOR

3.1The End User agrees that, subject to the rights of the Supplier, the Account Administrator is responsible for the operation of the Account and without limiting the foregoing the Account Administrator:
  1. is entitled to invite Authorised Account Users to use the Designated Platform via the Account;
  2. may determine the Access Rights of Authorised Account Users (including the End User) in relation to the Account from time to time in its discretion;
  3. may alter or terminate the Access Rights of Authorised Account Users (including the End User) at its discretion; and
  4. is responsible for and agrees to monitor all Account Data.
3.2The Supplier may cancel the Account and alter or cancel any User Agreement at its discretion.

 

4.SUPPLIES TO END USER

4.1Subject to the terms of this Agreement, (including clause 2 and 3), the Supplier grants:
  1. Access Rights to the Designated Platform; and
  2. a licence to use of the Licensed Software in accordance with clause 5.
4.2The obligations on the Supplier under this Agreement terminate on the termination of the Customer Agreement.

 

5.SOFTWARE LICENSE

5.1Subject to clauses 5.2, the Supplier grants to the Customer and the Authorised Account Users a non-exclusive, non-transferable license to use the Licensed Software:
  1. during the Term;
  2. for the sole purpose of accessing and use the Designated Platform;
  3. on the terms and conditions agreed from time to time between the End User and the Supplier.
5.2Notwithstanding clause 5.1:
  1. the Supplier and the End User agree that:
    1. the End User will be required to agree to enter into software license agreements for each relevant software program constituting the Licensed Software;
    2. until and unless the End User signs or accepts the terms of a software licence agreement for the use of a relevant software program constituting the Licensed Software the End User does not have a right or license to use that software program;
    3. the Supplier may change the terms upon which the Licensed Software is licensed to the Customer and Authorised Account Users (including the End User) (both in respect of the Licensed Software and any other software licensed during the Term);

 

6.THIRD PARTY SOFTWARE

6.1The Supplier will reasonably assist the End User to obtain a licence from third parties to use Third Party Software during the Term to the extent that it is necessary to obtain the benefit of the Designated Platform. However, any such licence will be on the terms agreed between the Customer and/or the End User (as the case may be) and the relevant third party and the Supplier makes no warranty or representation in this Agreement in relation to the supply or use of Third Party Software.
6.2The End User acknowledges that the use of Third Party Software may be necessary in order to access and use the Designated Platform. If it is necessary to use such Third Party Software, it is a condition of provision of access and use of the Designated Platform that the End User agree and comply with the terms upon which any Third Party Software is licensed to the End User.

 

7.INTELLECTUAL PROPERTY

7.1Other than rights expressly granted under this Agreement, no right, title or interest is granted to the End User in the Licensed Software, and the Customer expressly disclaims any such right, title or interest and will not during or after this Agreement challenge or dispute the Supplier’s ownership of or rights to the Licensed Software.
7.2Subject to clause 7,3, the Supplier retains ownership of and rights to all relevant Intellectual Property Rights in and relating to the Designated Platform and the Licensed Software and the End User will not, during the Term or after this Agreement has terminated, challenge or dispute such ownership or rights.
7.3Despite any other provision of this Agreement, as between the End User and the Supplier:
  1. the End User will own the Intellectual Property Rights which reside solely in the End User Data (even if processed or generated in part using the Licensed Software);
  2. any information, reports, documents generated by the End User using the Licensed Software will not be owned by the Supplier;
  3. the Supplier solely and exclusively owns:
    1. the Licensed Software;
    2. all Background IP incorporated into or used in association with the Licensed Software;
    3. the Supplier’s Confidential Information;
    4. all derivative works based on the Licensed Software or the Supplier’s Confidential Information;
    5. all derivative works, ideas, concepts, know-how, and techniques that the Supplier may use, conceive of or first reduce to practice in connection with the Licensed Software.
7.4Nothing in this clause affects the obligations of the End User to the Customer or any Authorised Account User.
7.5Nothing in this clause or this Agreement transfers ownership of any Source Code that produces or generates Data, information, reports or documents.

 

8.END USER OBLIGATIONS

8.1The End User must not:
  1. reproduce, disseminate or otherwise disclose the content of any Licensed Software except as expressly set out in this Agreement;
  2. electronically transmit any Licensed Software over a network except as necessary for the End User’s rights (if any) in relation to the Licensed Software;
  3. modify, disassemble, decompile, or reverse engineer any Licensed Software except to the extent permitted by law; and
  4. use the Licensed Software or Designated Platform in any way not expressly provided for by this Agreement.
8.2The End User is responsible for acquiring and maintaining all licences and permissions necessary in respect of any Third Party Software and data that belongs to third parties it may use in connection with the Designated Platform. The End User confirms that any information, Data or other materials provided by the End User to the Supplier or supplied by the End User in relation to the Designated Platform will not infringe any Intellectual Property Rights of any third party, will not be obscene or defamatory, and will not violate the laws or regulations of any state which may have jurisdiction over such activity.
8.3The End User acknowledges that it is responsible for its input (including all Account Data) in relation to the Designated Platform and for any use that it makes of such input and Data and that the Supplier has no responsibility for such input or Data or its use. 
8.4The End User acknowledges that it is its sole responsibility to determine that the Designated Platform and the Licensed Software meet the End User’s needs and that the End User’s use of the Designated Platform and Licensed Software does not any legal obligation owed by the End User to any person.
8.5If the End User learns about or is informed of any of the components, processes or methods of operating any Licensed Software it will treat that knowledge or information as the Supplier’s trade secret, and not use it to the benefit of any party other than the Supplier or convey it in any way to any third party or allow any third party to acquire it.
8.6If the Supplier suffers any Loss or Liabilty as a result of:
  1. any unauthorised access to, or use or misuse of, the Designated Platform or the Licensed Software by the End User; or
  2. any unauthorised access to, or use or misuse of, the Designated Platform or the Licensed Software, by any third party if such access, use or misuse was permitted or facilitated by the End User

    3. the End User will fully indemnify the Supplier in respect of such Loss or Liability.

 

9.MAINTENANCE AND TECHNICAL SUPPORT SERVICES

9.1If the Supplier agrees to supply Maintenance and Technical Support Services to the Customer or the Authorised Account Users, the End User agrees to provide all reasonable assistance to the Supplier to enable it to provide such Maintenance and Technical Support.

 

10.CUSTOMER DATA AND END USER DATA

10.1The End User warrants that it is either the sole and exclusive owner or an authorised licensee or user of all Intellectual Property Rights and all other rights in the End User Data including, but not limited to, any trade marks or logos, and that it is authorised to allow the use of such rights as necessary for the use of accessing and using the Designated Platform and warrants that the End User Data does not infringe the copyright or other Intellectual Property Rights of any other person. 
10.2Subject to any agreement between the Customer and the End User, the End User is responsible for any breach of the Intellectual Property Rights or privacy rights of any person arising as a result of the provision or use of the End User Data through the use of the Designated Platform or the Licensed Software.
10.3The End User acknowledges and agrees that, subject to any agreement it has with the Customer, it is entirely responsible for the End User Data and other input by the End User to the Designated Platform via the Account including its accuracy and integrity, and for any use that it, or any third party may make of it for any purposes. Without limiting the foregoing, to the full extent permitted by law, the Supplier gives no warranty that the End User Data will not be altered or destroyed:
  1. by the Customer or an Authorised Account User; or
  2. through the application of the Licensed Software or a result of it being stored, retrieved, used, altered or managed on the Designated Platform or through the Account.
10.4Without prejudice to the generality of the previous sub-clause, the End User undertakes that it will not provide any item of Data or upload, transmit or download any Data, message or material that:
  1. is defamatory, racist or sexist, threatening or menacing to any person or group of people, or otherwise illegal, or which in the Supplier's reasonable opinion is likely to cause annoyance or distress to any person;
  2. infringes the copyright or other Intellectual Property Rights of any other person, company or partnership, anywhere in the world;
  3. contains any Viruses or any other harmful or destructive files;
  4. constitutes or facilitates any conduct which is unlawful or criminal; or
  5. constitutes, directly or via the Supplier, the sending of any unsolicited e-mail.
10.5The End User acknowledges and agrees that:
  1. it is the best judge of the value and importance of the End User Data and that subject to any agreement it has with the Customer it will be solely responsible for instituting and operating all necessary back-up procedures, for its own benefit, to ensure that the integrity of the data can be maintained in the event of loss for any reason;
  2. the End User Data is or may be fully accessible via the Account to the Customer and the Account Administrator and it is solely the responsibility of the End User to ensure that the rights of the Customer and the Account Administrator over the End User Data (including over the access to, use of, alteration of, destruction of and retention End User Data) are complied with.
10.6If, for the purpose of providing the Services, it is necessary or desirable for the Supplier to access or use any Customer Data, Authorised Account User Data or equipment, facilities or services of the Customer or Authorised Account User, the Customer will make these available to the Supplier for access free of charge to enable the Supplier to perform its obligations under this Agreement, and the Customer grants to the Supplier a non-exclusive, royalty-free licence for such purposes.
10.7The Customer agrees that it will not and will ensure that the Authorised Account Users do not:
  1. access, amend or any data or information of any other person which it is not authorised to do under this Agreement; or
  2. disrupt or attempt to disrupt or damage the Website, the content of the Website, servers, platforms or networks of the Supplier.

 

11.PRIVACY

11.1The End User will comply with:
  1. the Supplier’s privacy policy from time to time;
  2. the Customer’s privacy policy from time to time; and
  3. comply with all laws relating to privacy.
11.2Without limiting clause 11.1, the End User acknowledges that the Website and the Designated Platform may allow the End User to communicate with third parties and agree to exercise care and discretion in disclosing End User Data and Account Data to third parties.
11.3The End User agrees to comply with the Log On Procedures.
11.4To the maximum extent allowed by law, the Supplier will have no Liability under this Agreement to the End User if any Loss or damage or expense suffered or incurred by the End User, the Customer or any Authorised Account User resulted in part or whole from a breach of this Agreement by the End User or a failure to comply the reasonable instructions or directions of the Supplier.

 

12.DATA SECURITY

12.1Under but subject to the terms of the Customer Agreement, the Supplier agrees to:
  1. effect and maintain at all times standard industry security measures, in order to safeguard the End User Data from unauthorised access and use, and to minimise the risk of unauthorised access to the Account and End User Data. Subject to the foregoing, the Supplier provides no warranty that End User Data will be secure from attack, Viruses, destruction, theft, alteration or sterilisation as a result of unauthorised access by third parties (including hackers) and regardless of how such access occurred;
  2. use appropriate and reliable storage media, the Supplier will regularly backup End User Data and retain such backup copies for a minimum of 30 days;
  3. retain logs associated with Customer and Authorised Account User activities relating to the Services for a period of 30 days after the Term has ended.
12.2Nothing in this clause imposes an obligation on the Supplier in relation to the End User Data which is greater in scope or effect than that imposed on it under the Customer Agreement.

 

13.DATA TRANSFER UPON TERMINATION OR EXPIRATION

13.1On the termination or expiration of this Agreement:
  1. Subject to any obligation owed by the End User to the Customer, the End User must ensure that all End User Data is transferred or exported to the Customer (or its equipment or storage devices) at its own expense within 14 days of such termination or expiration; and
  2. the Supplier and End User will provide all reasonable assistance to the Customer to ensure the transfer or export of all End User Data to the Customer provided however that the Supplier may charge fees for its services and the obligations of the Supplier are conditional on the Customer using and requesting a method and facilities that are compatible with the Supplier’s system and at the Supplier’s option the Supplier may provide (solely) a back-up copy of such End User Data.
13.2If the Customer does not comply with its obligations to the Supplier under the Customer Agreement, the End User acknowledges that the Supplier will not be under any obligation to retain End User Data for more than 30 days after the termination or expiration of the Customer Agreement and without limiting the foregoing the Supplier may destroy End User Data after such period.
13.3Notwithstanding any other provision in this clause:
  1. the Supplier will be entitled to retain and disclose any End User Data in order to comply with any legal or taxation obligation to do so;
  2. except for any rights expressly granted to the Supplier, the Agreement does not give the Supplier any rights to End User Data;
  3. the Supplier will only use or access End Data for the purposes of carrying out its obligations or exercising its rights under this Agreement; and
  4. the Supplier does not warrant that it will be technically possible to transfer or export all the End User to the Customer.

 

14.AVAILABILITY OF SERVICES

14.1Subject to this Agreement, the Supplier will use all reasonable endeavours to make the Designated Platform and the Licensed Software available to the End User during the Term.
14.2Access to the Designated Platform and the Licensed Software may be suspended for so long as is reasonably necessary as Downtime subject to prior agreement with the Customer, such agreement not to be unreasonably withheld or delayed:
  1. to enable either party to comply with an order or request from a governmental, or other competent regulatory body or administrative authority, or
  2. to enable the Supplier to carry out work which is necessary in its reasonable opinion to maintain or improve the Services, or
  3. to carry out standard maintenance and support;

    4. provided that the Supplier will use all reasonable endeavours to schedule such Downtime during hours of low usage of the Services in order to minimise impact on the Services, and to ensure that there is no permanent material degradation of the Services.

14.3Without limiting clause 14.2, the Supplier gives no warranty:
  1. that the End User will be able to access the Account, the End User Data or the Designated Platform at all times; or
  2. relating to the speed at which the End User will be able to access Designated Platform or Customer Data or End User Data or store, retrieve, alter such Customer Data and End User Data.
14.4If Licensed Software requires immediate correction to enable it to run effectively or for immediate compliance with a governmental or regulatory requirement, the Supplier may suspend that the Licensed Software without advance warning for as long as reasonably necessary to implement the correction or to ensure compliance.
14.5The Supplier is entitled in its sole discretion to make changes or upgrades to the Designated Platform or Licensed Software or accessibility provided that such changes or upgrades do not cause any material reduction in functionality. Licensed Software may be suspended for so long as is reasonably necessary, but the Supplier will use all reasonable endeavours to minimise the Downtime that may be caused by such change or upgrade.
14.6The Supplier shall not be Liable to any person for interruptions or delays in provision of the Services resulting from:
  1. the acts or omissions of the End User, Customer or Authorised Account Users;
  2. disruptions to or lack of access to the Designated Platform caused by a lack of internet connection or wi-fi connection (or disruptions thereto) regardless of cause; or
  3. any act or omission beyond the reasonable control of the Supplier, including any acts or omissions of suppliers of services to the Supplier.

 

15.WARRANTIES AND DISCLAIMERS

15.1The Supplier warrants that it is either the owner or an authorised licensee or user of all Intellectual Property Rights needed to comply with its obligations under this Agreement.
15.2The Supplier warrants that it will provide its services using all reasonable skill and care in accordance with the terms of this Agreement.
15.3The Supplier will at all times use all reasonable endeavours to provide the Designated Platform free of Viruses and without interruption.
15.4The Supplier does not and cannot control the Designated Platform or the flow of Data (including the End User Data, Customer Data and Authorised Customer Data) to or from its Designated Platform. Such flow depends on the performance of services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt connections. Although the Supplier will use all commercially reasonable efforts to avoid such events and take all actions it deems appropriate to remedy such events, the Supplier cannot guarantee that such events will not occur. Accordingly, without limiting clause 14, the Supplier cannot and does not warrant that the Designated Platform, Account or Customer Data will be uninterrupted, error-free or entirely secure, and will not be liable for any delay in response time in accessing the internet and disclaims any and all liability resulting from or related to such events. The End User accepts that the Supplier cannot guarantee availability or response times and may have to suspend the Designated Platform or the Account at its sole discretion from time to time.
15.5The End User acknowledges that the Supplier does not provide any back-up software or processing facilities covering equipment, data, operating systems or application software, and the End User agrees that the Supplier will not be responsible or liable if, for any reason concerning any of these, the services cannot be provided.
15.6The Supplier does not make any other warranties, guarantees or representations concerning the operation or performance of the Designated Platform or the Licensed Software. The End User is entirely responsible for deciding to select and use the Designated Platform and the Licensed Software for its own purposes, and the Supplier accepts no liability for any use to which the End User puts the Designated Platform or the Licensed Software.
15.7The Supplier does not accept any responsibility or any liability for enabling the End User to make any link to the contents of any other website, whether one from which the End User may have been linked to, or to which the End User may link from.

 

16.CONFIDENTIALITY

16.1In relation to the Confidential Information of a Party, the recipient Party will:
  1. use the Confidential Information only for the purposes for which it has been disclosed;
  2. keep that Confidential Information confidential and not disclose it or allow it to be disclosed to any third party except:
    1. with the consent of the owner of the Confidential Information;
    2. to Associates to the extent that each has a need to know for the purposes contemplated by this Agreement and who are aware that the Confidential Information will be kept confidential;
    3. to its legal advisors and auditors and other consultants who require it for the purposes contemplated by this agreement or for the purpose of providing legal or commercial advice in relation to this agreement;
    4. if required to do so by law or a stock exchange; or
    5. if required to do so in connection with legal proceedings relating to this Agreement;
  3. take or cause to be taken reasonable precautions necessary to maintain the secrecy and confidentiality of the Confidential Information; and
  4. continue to keep confidential all Confidential Information of the other Party.
16.2With the exception of information which the Supplier needs to retain for its own business records, upon request of the Customer, the Supplier must return to the Customer at the expense of the Customer that Confidential Information of the Customer or that the Customer requests that the Supplier returns or if the Customer requests that it be destroyed, certify that it has been destroyed.
16.3With the exception of information which the Customer needs to retain for its own business records; upon the request of the Supplier, the Customer must return to the Supplier the Confidential Information of the Supplier.
16.4The rights and obligations of the Parties set out in this Agreement with respect to Confidential Information will survive termination of this Agreement.
16.5The Supplier is entitled to inform third parties of the fact that the End User has a license of the Licensed Software.

 

17.IMPLIED TERMS

17.1Subject to clause 17.2 the Supplier provides no representation or warranty in relation to the Designated Platform or Licensed Software other than the express limited warranties set out in this Agreement.
17.2Where any legislation implies in this Agreement any condition or warranty and that legislation avoids or prohibits provisions in a contract excluding or modifying the application or exercise of, or any liability under, such condition or warranty, the condition or warranty will be deemed to be included in this Agreement. However, the liability of the Supplier for any breach of such condition or warranty will be limited, at the Supplier’s option, to one or more of the following:
  1. if the breach relates to goods:
    1. the replacement of the goods with equivalent goods or the supply of equivalent goods;
    2. the repair of such goods;
    3. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
    4. the payment of the cost of having the goods repaired; and
  2. if the breach relates to services:
    1. the supplying of the services again; or
    2. the payment of the cost of having the services supplied again.

 

18.LIMITATION OF LIABILITY

18.1Subject to clause 18.7, but otherwise notwithstanding anything to the contrary in this Agreement, the Supplier’s total liability for damages or other forms of monetary relief for matters related to, connected with or arising out of this Agreement and the Customer Agreement regardless of the cause of action, whether in contract, tort (including, without limitation, negligence) or breach of any Statute or any other legal or equitable obligation is limited to the Liability Cap Amount.
18.2Where any Statute implies in this Agreement any term, and that Statute avoids or prohibits provisions in a contract excluding, restoring or modifying the application of, or the exercise of, or liability under such term, such implied terms as are not excludable will be deemed to be included in this Agreement. However, the liability of the Supplier for any breach of such term will be limited, at the option of the Supplier, to any one or more of the following:
  1. if the breach related to goods: the replacement of the goods or the supply of equivalent goods; the repair of such goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; and
  2. if the breach relates to services the supplying of the services again; or the payment of the cost of having the services supplied again.
18.3In no event will the Supplier be liable to another for any incidental, special, indirect, consequential Losses or damage of any character, (including without limitation, loss of profit, revenue, goodwill or anticipated savings, loss of data, work stoppage or computer failure).
18.4Without limitation to the generality of clause 18.3, under no circumstances will the Supplier be liable for direct, indirect or consequential Losses, personal injury or death arising out of or in connection with:
  1. the Customer’s computer equipment or the equipment of Authorised Account Users failing to operate in accordance with its specification or otherwise;
  2. any element of the Customer’s business not functioning correctly; or
  3. any act or omission of the End User or any person acting as the Customer’s representative or agent or Authorised Account Users.
18.5The End User warrants that it has not relied on any representation made by the Supplier which has not been stated expressly in this Agreement or upon any descriptions, illustrations or specifications contained in any document or publicity material produced by the Supplier and that, but for providing such warranty, the Supplier would have entered into this Agreement.
18.6The End User acknowledges that to the extent the Supplier has made any representation which is not otherwise expressly stated in this Agreement, the End User has been provided with an opportunity to independently verify the accuracy of that representation.
18.7The End User indemnifies the Supplier and each of its Associates (the “Indemnified”) against any Losses incurred by the Indemnified, arising directly out of any of the following:
  1. any fraud or wilful misconduct of the End User or its Associates under or in connection with this Agreement causing Liability;
  2. any infringement or alleged infringement of the Supplier’s or a third party’s Intellectual Property Rights by the End User or any of its Associates;
  3. personal injury, death or loss of or damage to real or tangible personal property (excluding data) caused by the End User any of its Associates;
  4. breach by the End User of any obligation of confidentiality owed to the Supplier;
  5. any claim, action or proceeding by a third party against any of the Indemnified to the extent that it relates to a breach of this Agreement by the End User; or
  6. a breach of the warranty in clause 18.5
18.8Where any Statute provides a guarantee in relation to the supply of any good or service under this Agreement and that Statute avoids or prohibits provisions in a contract excluding, restoring or modifying the application of, or the exercise of, or liability under such guarantee, such guarantees as are not excludable, will be deemed to be included in this Agreement. However, to the maximum extent permitted under the Statute, the liability of the Supplier for any failure to comply with the guarantee will be limited, at the option of the Supplier, to any one or more of the following:
  1. if the failure relates to goods:
    1. the replacement of the goods or the supply of equivalent goods;
    2. the repair of such goods;
    3. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
    4. the payment of the cost of having the goods repaired, and
  2. if the failure relates to services:
    1. the supplying of the services again; or
    2. the payment of the cost of having the services supplied again.

 

19.SUSPENSION AND TERMINATION

19.1The Supplier may suspend this Agreement and any licence relating to the Licensed Software if the Customer breaches the Customer Agreement.
19.2This Agreement is terminated immediately upon termination of the Customer Agreement.
19.3The Supplier may terminate the Agreement and any license relating to the Licensed Software:
  1. if the Customer fails to pay any License Fee (or any other fees owing to the Supplier by the Customer whether pursuant to the Customer Agreement or otherwise) when due;
  2. if the Customer or any Authorised Account User breaches the Customer Agreement;
  3. of the End User breaches this Agreement and fails to rectify such breach within five Business Days of receipt of a notice setting out the details of such breach;
  4. if the End User uses any of the Licensed Software in an unauthorised manner or allows unauthorised third parties to use the Licensed Software, and after written notice from the Supplier to the End User notifying the End User of unauthorised use, the End User fails to prevent (with the reasonable assistance of the Supplier) such unauthorised use within ten (10) Business Days of receipt of such notice;
  5. immediately, and without notice to the Customer, if the End User becomes Insolvent; or
  6. if an event of Force Majeure continues for a period of more than two months.
19.4Upon termination of this Agreement under this clause, all rights of the End User in relation to the Licensed Software will cease immediately and the End User and will return all copies of any Licensed Software in its control or possession to the Supplier immediately.
19.5Termination of this Agreement pursuant to clause 19 will not otherwise affect the accrued rights of any Party.

 

20.GST AND TAXES

20.1Any amounts payable the End User to the Supplier are exclusive of any applicable GST or VAT or tax chargeable in relation to the supply of any good, service or thing to the End User. The GST, VAT and any similar taxation treatment of any supply will be determined pursuant to the GST Act or VAT Act or equivalent statute of the jurisdiction where a taxable transaction for GST purposes (or equivalent VAT tax purposes) is deemed to take place.
20.2Each Party will, to the extent permitted by law, provide the other with any Valid Tax Invoices as required for the purposes of this Agreement and, to the extent required by law, will correctly account for any GST or VAT properly due in its jurisdiction. Where reasonably necessary, either Party may request the other for the information necessary to create and issue a RCTI.
20.3Subject to each Party’s obligations relating to GST and VAT, each Party will cause all royalty tax, taxes, duties and other sums (including any royalty withholding tax, stamp duty, other documentary taxes, environmental tax or levy) legally payable by that Party arising in connection with this Agreement to be paid. 

 

21.FURTHER ASSURANCES

21.1Each Party will sign, execute, deliver and do and will procure that each of its officers, employees and agents signs, executes, delivers and does, all deeds, documents, instruments and acts reasonably required of it or them by notice from another Party to effectively carry out and give full effect to this Agreement and the rights and obligations of the Parties under it.

 

22.NO MERGER

22.1The rights and obligations of the Parties in respect of agreements, indemnities, covenants and warranties contained in this Agreement will remain in full force and effect, be continuing agreements, indemnities, covenants and warranties and not be merged or extinguished by or upon termination or completion of any obligations under, this Agreement.

 

23.NO PARTNERSHIP

23.1Nothing contained or implied in this Agreement will create or constitute, or be deemed to create or constitute, a partnership between the Parties for the purposes of any law or Statute of any jurisdiction.
23.2A Party will not act, represent or hold itself out as having authority to act as the agent of or in any way bind or commit the other Party to any obligation.

 

24.ENTIRE AGREEMENT

24.1This Agreement constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all previous communications, representations, inducements, undertakings, agreements or arrangements between the Parties or their respective officers, employees or agents and all such other agreements will (other than in relation to Confidential information) be replaced by this Agreement.

 

25.WAIVER

25.1The failure, delay, relaxation or indulgence on the part of a Party in exercising any power, right or remedy conferred upon that Party by this Agreement will not operate as a waiver of that power, right or remedy, nor will the exercise or any single or partial exercise of any power, right or remedy preclude any other or further exercise of such power, right or remedy or the exercise of any other power, right or remedy under this Agreement.
25.2Any waiver of a breach of this Agreement will be in writing signed by the Party granting the waiver and will be effective only to the extent expressly set out in such waiver.

 

26.APPLICATION OF LAW

26.1This Agreement will be deemed to have been made in the Republic of Singapore and the construction validity and performance of this Agreement will be governed in all respects by the law for the time being in force in Singapore.
26.2The Parties hereby submit themselves to the exclusive jurisdiction of the Supreme Court of Singapore in respect of any dispute, proceeding or matter relating to this Agreement.

 

27.SEVERABILITY

27.1If any provision of this Agreement is invalid or not enforceable in accordance with its terms in any jurisdiction, it is to be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable and will otherwise be capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of that provision in any other jurisdiction.

 

28.ASSIGNMENT AND SUB CONTRACTING

28.1The End User may not assign this Agreement or any of the rights granted pursuant to this Agreement other than with the written consent of the Supplier and in accordance with the terms of this Agreement.
28.2The Supplier may assign or sub-contract this Agreement to a third party upon giving the End User twenty (20) Business Days prior written notice of the assignment or proposed sub-contract.

 

29.SURVIVAL OF TERMS

29.1Notwithstanding termination or expiration of this Agreement, the following clauses are deemed to survive such termination or expiration: clauses 1, 8, 10, 11, 12, 13, 15, 16, 17, 18, 20, 26 and this clause.
29.2Nothing in this clause will affect the accrued rights of a Party that exist at termination.