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A. Purpose of this document
THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR ACQUISITION AND USE OF OUR SOFTWARE ON A “SOFTWARE AS A SERVICE MODE” (“SERVICES”).
BY ACCEPTING THIS AGREEMENT, EITHER BY SIGNING TO INDICATE YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on 10th May 2020. It is effective between You and Us as of the date of You accepting this Agreement.
1. Definitions
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“AWS” means the web-based cloud computing infrastructure platform provided by Amazon Web Services at http://aws.amazon.com as per the terms and conditions specified (& update from time to time) at that website. These terms & conditions governs the usage of the AWS infrastructure and is applicable to the Services that is provided by Sambaash on the AWS.
"E-Sign” means the web-based online digital electronic signature service provider known as “Adobe Sign” (Copyright 2020 Adobe Systems Incorporated) with services as provided on the website address: https://acrobat.adobe.com/sea/en/sign.html (“Adobe EchoSign website”), subject to the Terms of Use described in the Adobe Sign website –https://wwwimages2.adobe.com/content/dam/cc/en/legal/ servicetou/Adobe-Sign-Additional-Terms-of-Use-en_US_20200416.pdf OR any such E-Sign services that may be publicly available from time to time
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Non-Sambaash Applications" means online applications and offline software products that are provided by You or entities or individuals other than Us and are clearly identified as such, and that interoperate with the Services.
"Order Form (ANNEXURE 1)" means the documents for placing orders hereunder, including addenda thereto, that are entered into between You and Us or any of Our Affiliates from time to time, including addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms shall be deemed incorporated herein by reference.
"Purchased Services" means Services that You or Your Affiliates purchase under an Order Form (ANNEXURE 1).
"Services" means the products and services that are ordered by You under an Order Form(ANNEXURE 1) and made available by Us online via the instance of sambaash 2.0 platform for your online business community, as described in the Order Form (ANNEXURE 1). “Services” excludes Non-Sambaash Applications.
"Users" means individuals or Corporates who are authorized by You to use the Services, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business.
"We," "Us" or "Our" means the Sambaash company described in Section 13. (WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION).
"You" or "Your" means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
"Your Data" means all electronic data or information submitted by You to the Purchased Services.
2. PURCHASED SERVICES
2.1. Provision of Purchased Services
We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms (Annexure 1) during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
2.2. User Subscriptions
Unless otherwise specified in the applicable Order Form,
(i) Services are 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 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. 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 Services.
3. USE OF THE SERVICES
3.1. Our Responsibilities
We shall:
(i) provide Our support for the Purchased Services to You at no additional charge, and/or customised support if purchased separately,
(ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for:
a. planned downtime (of which We shall give at least 8 hours notice via the Support software & email and which We shall strive to schedule to the extent practicable during the evenings of weekdays from 7 p.m. to 6 a.m. or during the weekend hours from 6:00 p.m. Friday to 6:00 a.m. Monday Singapore Time), or
b. any unplanned downtime which shall be addressed as per the agreed SLA defined in Section 6.1. (Service Level Agreement for System Availability) for recovery time objective and recovery point objective, or
c. any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving Our employees), Internet service provider failures or delays, or denial of service attacks,
(iii) provide the support services for the Purchases Services for bug fixes and enhancements as per the agreed SLA defined in Section 6.2. (Service Level Agreement for System Support) with respect to support package and the enclosed support hours duration, response time and resolution time.
3.2. Our Protection of Your Data.
We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not
(i) modify Your Data,
(ii) disclose Your Data except as compelled by law in accordance with Section 8.3. (Compelled Disclosure) or as expressly permitted in writing by You, or
(iii) access Your Data except to provide the Services and prevent or address service or technical problems, or at Your request in connection with customer support matters.
We shall protect your Data such that there no users can access the information without authorised access credentials and we shall strive to maintain confidentiality & privacy of data within commercially reasonable means, in accordance with the Personal Data Protection Act 2012 (as may be amended from time to time).
3.3.Your Responsibilities
You shall
(i) be responsible for Users’ compliance with this Agreement,
(ii) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data,
(iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and
(iv) use the Services only in accordance with the User Guide and applicable laws and government regulations.
You shall not
(i) make the Services available to anyone other than Users,
(ii) sell, resell, rent or lease the Services other than using it for Your operations to support Your customers,
(iii) use the Services 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,
(iv) use the Services to store or transmit Malicious Code,
(v) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or
(vi) attempt to gain unauthorized access to the Services or their related systems or networks.
3.4. Usage Limitations
Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls You are permitted to make against Our application programming interface, and, for Services that enable You to provide public websites, on the number of page views by visitors to those websites. Any such limitations are specified in the Order form (Annexure 1).
4. NON-SAMBAASH PROVIDERS
4.1. Acquisition of Non-Sambaash Products and Services
We or third parties may from time to time make available to You third-party products or services, including but not limited to Non-Sambaash Applications and implementation, customization and other consulting services. Any acquisition by You of such non-Sambaash products or services, and any exchange of data between You and any non-Sambaash provider, is solely between You and the applicable non-Sambaash provider. We do not warrant or support non-Sambaash products or services, whether or not they are designated by Us as “certified” or otherwise, except as specified in an Order Form.
Subject to Section 4.3. (Integration with Non-Sambaash Services.), no purchase of non-Sambaash products or services is required to use the core Services except a supported computing device, operating system, web browser and Internet connection.
4.2. Non-Sambaash Applications and Your Data
If You install or enable Non-Sambaash Applications for use with Services, You acknowledge that We may allow providers of those Non-Sambaash Applications to access Your Data as required for the interoperation of such Non-Sambaash Applications with the Services. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Non- Sambaash Application providers. The Services shall allow You to restrict such access by restricting Users from installing or enabling such Non-Sambaash Applications for use with the Services.
4.3. Integration with Non-Sambaash Services
The Services may contain features designed to interoperate with Non-Sambaash Applications (e.g., Google, Facebook, Twitter, Stripe, etc applications). To use such features, You may be required to obtain access to such Non-Sambaash Applications from their providers. If the provider of any such Non-Sambaash Application ceases to make the Non- Sambaash Application available for interoperation with the corresponding Service features on reasonable terms, We may either work with You to find and integrate other such similar Non-Sambaash Application providers at an appropriately & mutually agreed cost OR cease providing such Service features without entitling You to any refund, credit, or other compensation.
5. ANNUAL SUBSCRIPTION FEES AND PAYMENT FOR PURCHASED SERVICES
5.1. Annual Subscription Fees.
You shall pay all fees specified in all Order Forms (Annexure 1) hereunder. Except as otherwise specified herein or in an Order Form,
(i) Annual fees are based on services purchased and not actual usage,
(ii) Annual fees payment obligations are non-cancellable and fees paid are non-refundable, and
(iii) If applicable, the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. Annual User subscription fees are based on defined periods that begin on the subscription start date and each anniversary thereof; therefore, fees for Annual User subscriptions added in the middle of the period will be charged for that full period and periods remaining in the subscription term, as specified in the Order Forms (Annexure 1).
5.2. Invoicing and Payment
You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 12.2. (Term of Purchased Annual User Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form (Annexure 1). If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form (Annexure 1). Unless otherwise stated in the Order Form (Annexure 1), invoiced charges are due net fifteen (15) days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
5.3. Overdue Charges
If any charges are not received from You by the due date, then at Our discretion,
(i) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum credit card interest rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or
(ii) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 5.2. (Invoicing and Payment).
5.4. Suspension of Service and Acceleration
If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full.
We will give You at least 7 days’ prior notice that Your account is overdue, in accordance with Section 13.2. (Manner of Giving Notice), before suspending services to You.
5.5. Payment Disputes
We shall not exercise Our rights under Section 5.3. (Overdue Charges) or 5.4. (Suspension of Service and Acceleration) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
5.6. Taxes
Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against it based on Our income, property and employees.
6. SERVICE LEVEL AGREEMENTS (SLA)
6.1. Service Level Agreement for System Availability
The annual subscription includes the standard Service Level Agreement package for System Availability. It is defined as system & its Purchased Services being available for 95% of the time, measured on a monthly basis, with no specific recovery time objective or recovery point objective.
A system availability SLA with higher system availability time of 99.95% or 99.99% can be designed & made available at extra cost for the extra redundant capacity in hot standby or cold standby mode, along with defined recovery point objective and recovery time objective. Such an enhanced SLA for system availability along with recovery time & point objective shall be specified in the Order Form (Annexure 1) and the additional cost shall included in the Section 5. (ANNUAL SUBSCRIPTION FEES AND PAYMENT FOR PURCHASED SERVICES)
6.2. Service Level Agreement for System Support
The System Support applies to issues – bugs or clarifications or enhancements, that are raised in the JIRA Ticket Management system through one assigned user-id which is common to all users per customer. The annual subscription package includes the Standard System Support package.
(i) The Standard support package caters for support during the office working hours in the Singapore time zone, defined as from 9 a.m. SGT to 6 p .m. SGT on a business weekday and excludes public holidays and weekends. The Standard support package includes the following response time and resolution time by the respective ticket / incident categorisation.
| Standard Incident management and resolution | ||||
| Severity | Acknowledge within | Should Resolve in | Resolution working hours | Status updates to clients |
| Critical | 2 Hours | 24 hours | 24 x 5 x 365 | Every 4 hours |
| Major | 24 hours | 15 days | 8 x 5 | Every 24 hours |
| Minor | 24 hours | 15 days | 8 x 5 | Every 2 days |
| Clarification | 2 days | 20 days | 8 x 5 | NA |
| Enhancements | 3 days | Mutually agreed | Mutually agreed | Mutually agreed |
(ii) The Platinum support package caters for support 24 hours all days of the year for Critical and Major incident types while rest of the incident types caters for support during the office working hours in the Singapore time zone, defined as from 9 a.m. SGT to 6 p .m. SGT on a business weekday and excludes public holidays and weekends. The Platinum support package includes the following response time and resolution time by the respective ticket / incident.
| Platinum Incident management and resolution | ||||
| Severity | Acknowledge within | Should Resolve in | Resolution working hours | Status updates to clients |
| Critical | 30 mins | 8 hours | 24 x 7 x 365 | Every 4 hours |
| Major | 1 Hour | 12 hours | 24 x 7 x 365 | Every 24 hours |
| Minor | 4 hours | 8 days | 8 x 5 | Every 2 days |
| Clarification | 1 day | 12 days | 8 x 5 | NA |
| Enhancements | 1 day | Mutually agreed | Mutually agreed | Mutually agreed |
(iii) The incident categorisation in the above tables applies to the tickets raised in the JIRA Ticket Management system, with the first 3 categories specifying the incident types for bugs in the Purchased Services.
Critical
Critical errors are those that render the complete system unusable and prevent for more than 50% of the users of the system, from performing normal activities in the system. All show stopper errors will be treated as critical incidents and will be resolved with the highest priority. Critical incidents include but are not limited to the following:
- Application hangs repeatedly or randomly
- User cannot log in
- Registration process cannot proceed
- Screen is displayed as a white page
- All successful creation/modification messages is shown to the user even though the operation failed at the Database level
- Any Calculation mistakes (for those calculations that are critical from business perspective) e.g. Payment amount for settlement via Stripe
Major
Major incidents are classified as those which will prevent the use of certain functionalities with localized impact (e.g. within a module) for about 10% to 50% of the users of the system. Major incidents include but are not limited to the following:
- Problems causing the community administrator to manually correct a situation
- Problems with automatic functions requiring manual intervention to proceed
- Application Fails to Delete the Record when Delete button is clicked
- Application Fails to Add or create the record into database when save or add button is clicked (and this happens for non critical activity)
- Application fails to Modify the changes done when save or modify button is clicked
- Missing functionality where it has no critical impact on the business process
- Field level validations leading to Java exceptions
- Wrong search results
Minor
Minor incidents concern appearance or non-critical functionality and have no serious negative influence on the program(s). All cosmetic errors are treated as Minor incidents. Processing generally is unhindered and continues with limited or no intervention to deal with the errors. Minor incidents include but are not limited to the following:
- Cosmetic UI related errors like spelling mistakes, grammar, font, size, color etc
- Basic field level validations (form level) – like type, range, size, values not defaulting
- The ICON displayed in error message is not matching with the context of the error message
- The missing details in the Error message / confirmation page
- Incorrect data appearing on report / view page
Clarification
Incorrect interpretation of the system behaviour by the user, and/or clarifications sought by the user on the system functionality and/or data
Improvement/ Enhancements
Any functionality which would enhance the application, but is currently not available or is available but needs to be enhanced / improved
7. PROPRIETARY RIGHTS
7.1. Reservation of Rights in Services
Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
7.2. Restrictions
You shall not
(i) permit any third party to access the Services except as permitted herein or in an Order Form,
(ii) create derivate works based on the Services except as authorized herein,
(iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes,
(iv) reverse engineer the Services, or
(v) access the Services in order to
a. build a competitive product or service, or
b. copy any features, functions or graphics of the Services.
7.3. Your Applications and Code
If You, a third party acting on Your behalf, or a User creates applications or program code using the Services, You authorize Us to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Us to provide the Services in accordance with this Agreement. Subject to the above, We acquire no right, title or interest from You or Your licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.
7.4. Your Data
Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data, including any intellectual property rights therein.
7.5. Suggestions
We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
8. CONFIDENTIALITY
8.1. Definition of Confidential Information
As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party.
However, Confidential Information (other than Your Data) shall not include any information that
(i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party,
(ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party,
(iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or
(iv) was independently developed by the Receiving Party.
8.2. Protection of Confidential Information
The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care)
(i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and
(ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.
8.3. Compelled Disclosure
The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party 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.
If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
9. WARRANTIES AND DISCLAIMERS
9.1. Our Warranties
We warrant that
(i) We have validly entered into this Agreement and have the legal power to do so,
(ii) subject to Section 4.3. (Integration with Non-Sambaash Services.), the functionality of the Services will not be materially decreased during a subscription term, and
(iii) We will not transmit Malicious Code to You, provided it is not a breach of this subpart (iv)
if You or a User uploads a file containing Malicious Code into the Services and later downloads that file containing Malicious Code.
(iv) For any breach of a warranty above, Your exclusive remedy shall be as provided in Section 12.3. (Termination for Cause) and Section 12.4. (Refund or Payment upon Termination) below.
9.2. Your Warranties
You warrant that You have validly entered into this Agreement and have the legal power to do so.
9.3. Disclaimer
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9.4. Non-GA Services
From time to time We may invite You to try, at no charge, Our products or services that are not generally available to Our customers ("Non-GA Services"). You may accept or decline any such trial in Your sole discretion. Any Non-GA Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. NON-GA SERVICES ARE NOT CONSIDERED "SERVICES" HEREUNDER AND ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue Non-GA Services at any time in Our sole discretion and may never make them generally available.
10. MUTUAL INDEMNIFICATION
10.1. Indemnification by Us
We shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a "Claim Against You"), and shall indemnify You for any damages, attorney fees and costs finally awarded against You as a result of, and for amounts paid by You under a court- approved settlement of, a Claim Against You; provided that You
a. promptly give Us written notice of the Claim Against You;
b. give Us sole control of the defense and settlement of the Claim Against You (provided that We may not settle any Claim Against You unless the settlement unconditionally releases You of all liability); and
c. provide to Us all reasonable assistance, at Your expense.
In the event of a Claim Against You, or if We reasonably believe the Services may infringe or misappropriate, We may in Our discretion and at no cost to You
(i) modify the Services so that they no longer infringe or misappropriate, without breaching Our warranties
under “Our Warranties” above,
(ii) obtain a license for Your continued use of the Services in accordance with this Agreement, or
(iii) terminate Your User subscriptions for such Services upon 30 days’ written notice and refund to You any
prepaid fees covering the remainder of the term of such User subscriptions after the effective date of termination.
10.2. Indemnification by You
You shall defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a "Claim Against Us"), and shall indemnify Us for any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us; provided that We
a. promptly give You written notice of the Claim Against Us;
b. give You sole control of the defence and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us unless the settlement unconditionally releases Us of all liability); and
c. provide to You all reasonable assistance, at Your expense.
10.3. Exclusive Remedy
This Section 10. (MUTUAL INDEMNIFICATION) states the indemnifying party’s sole liability to, and the
indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.
11. LIMITATION OF LIABILITY
Limitation of Liability
NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE LESSER OF S$ 100,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE
INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL ACTUAL AMOUNT PAID BY YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 5. (ANNUAL SUBSCRIPTION FEES AND PAYMENT FOR PURCHASED SERVICES).
11.2. Exclusion of Consequential and Related Damages
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12. TERM AND TERMINATION
12.1. Term of Agreement
This Agreement commences on the date You accept it and continues until all Annual User subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
12.2. Term of Purchased Annual User Subscriptions
Annual User subscriptions purchased by You 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 90 days before the end of the relevant subscription term. The per-unit annual pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 60 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
12.3. Termination for Cause
A party may terminate this Agreement for cause:
(i) upon 90 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or
(ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.4. Refund or Payment upon Termination with Cause
Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
12.5 Termination without Cause
Either party may terminate this Agreement without cause by giving the other party one hundred eighty (180) days written notice at the addresses stated below.
12.6. Refund or Payment upon Termination without Cause
Upon any termination without cause by either Parties, You shall pay for the relevant fees for the Purchased Services, as specified in the Order Form, for the notice period of one hundred eighty (180) days and We shall continue to provide the Purchased Services, as specified in the Order Form, to You for the notice period of one hundred eighty (180) days. In other words, there is no refund of any previously paid fees, when the termination is without cause.
12.7. Return of Your Data
Upon request by You made within 30 days after the effective date of termination of a Purchased Services subscription, We will make available to You for download a file of Your Data in comma separated value (.csv) format, where possible, along with attachments in their native format. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.
12.8. Surviving Provisions
Section 5. (ANNUAL SUBSCRIPTION FEES AND PAYMENT FOR PURCHASED SERVICES), 7. (PROPRIETARY RIGHTS), 8. (CONFIDENTIALITY), 9.3. (Disclaimer), 10. (MUTUAL INDEMNIFICATION), 11. (LIMITATION OF LIABILITY), 12.4. (Refund or Payment upon Termination), 12.7. (Return of Your Data), 13. (WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION) and 14. GENERAL PROVISIONS)shall survive any termination or expiration of this Agreement.
13. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION
13.1. General.
Who You are contracting with under this Agreement, who You should direct notices to under this Agreement, what law will apply in any lawsuit arising out of or in connection with this Agreement, and which courts can adjudicate any such lawsuit, is the same irrespective of where You are domiciled.
Notices should be addressed to:
Sambaash Pte. Ltd.
(UEN No.: 200819656H)
#07-55, Oxley Biz Hub 1,
73, Ubi Road 1, Singapore - 408733
Email: info@sambaash.com
Phone: +65 6513 4766
The governing law is the Singapore law and the courts having exclusive jurisdiction are the relevant courts of Singapore.
13.2. Manner of Giving Notice
Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon:
(i) personal delivery,
(ii) the fifth business day after mailing,
(iii) the second business day after sending by confirmed facsimile, or
(iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim).
Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.
13.3. Agreement to Governing Law and Jurisdiction
Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
13.4. Waiver of Jury Trial
Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
14. GENERAL PROVISIONS
14.1. Anti-Corruption
You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Finance Department (finance @sambaash.com).
14.2. Relationship of the Parties
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.3. No Third-Party Beneficiaries
There are no third-party beneficiaries to this Agreement.
14.4. Waiver
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
14.5. Severability
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
14.6. Attorney Fees
You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 5.2. (Invoicing and Payment).
14.7. Assignment
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party.
A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.8. Electronic Signing
This Agreement may be signed in any number of counterparts, all of which taken together and when delivered to the Parties by facsimile or by electronic mail in "portable document format (".pdf") form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, or by a combination of such means, shall constitute one and the same instrument. Any Party may enter into this Agreement by manually signing any such counterpart transmitted electronically or by facsimile or other electronic signature (such as Adobe Sign, etc) by any of the Parties to any other Party and the receiving Party may rely on the receipt of such document so executed and delivered by facsimile or other electronic means as if the original had been received. Such signatures executed by way of facsimile or other electronic means (such as EchoSign) shall be recognised and construed as secure electronic signatures pursuant to the Electronic Transactions Act 2010 and that the Parties accordingly shall deem such signatures to be original signatures for all purposes.
14.9. Entire Agreement
This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.