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THIS AGREEMENT GOVERNS YOUR SUBSCRIPTION AND USE OF OUR SERVICES. IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN PURCHASE ORDER 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 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, as updated by Us from time to time and posted at Our site, is effective between You and Us as of the date of You accepting this Agreement either by clicking a box indicating Your acceptance or executing an Purchase Order or You using or continuing the use of the Services or any Hoku product.
Table of Contents
3.Subscription of Services
4.Use of the Services and Content
6.Fees and Payment for Purchased Services
7.Proprietary Rights and Licenses
Exclusive Remedies and Disclaimers
11.Limitation of Liability
12.Term and Termination
13.Notices, Governing Law and Jurisdiction
In this Agreement: "
" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. Control for the purposes of this definition, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that company, through the ownership or control of securities representing a majority of the voting interests of the subject entity.
" means this Master Subscription Agreement including all attachments, annexes, schedules and other ancillary documents that relate to it, as well as any other attachments, annexes, schedules and other ancillary documents referred to in this Agreement.
" means Hoku services or functionality that may be made available to Customer to try at its option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
" means any data or information obtained by Hoku from publicly available sources or third party content providers and made available to Customer through the Services, Beta Services or pursuant to an Purchase Order, as more fully described in the Documentation.
" means the company or other legal entity which has contracted with HOKU for any Purchased Service subscriptions to use the applicable Service(s) or such other products and services provided by HOKU, subject to the terms and conditions of this Agreement.
" means the applicable Service's documentation, and its usage guides and policies, as updated from time to time, accessible via
login to the applicable Service.
" means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
" means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
" means an online directory, catalog or marketplace of applications that interoperate with the Services, or the Hoku add-ons and any successor websites.
" means a Web-based, mobile, offline or other software application functionality that is provided by You or a third party and interoperates with a Service, including, for example, an application that is developed by or for You, is listed on a Marketplace, or is identified as a Hoku component or by a similar designation.
" means an ordering document or online order specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. By entering into an Purchase Order hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
" means Services that You or Your Affiliate purchase under an Purchase Order, as distinguished from those provided pursuant to a free trial
" means the products and services that are ordered by You under an Purchase Order or provided to You under a free trial, and made available online by Us, including associated Hoku offline or mobile components, as described in the Documentation. "Services" exclude Content and Non-Hoku Applications.
" means an individual who is authorized by You to use a Service, for whom You have purchased a subscription (or in the case of any Services provided by Us without charge, for whom a Service has been provisioned), and to whom You (or, when applicable, Us at Your request) have supplied a user identification and password (for Services utilizing authentication). Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
"We," "Us" or "Our" means the Hoku entity described in Section 13 (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 which have signed Purchase Orders.
" means all electronic data and information submitted by or for Customer in the course of the use of the Services or other products and services of HOKU, excluding Content and Non-Hoku Applications.
If You register on Our website for a free trial, We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by You for such Service(s), or (c) termination by Us in Our sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE APPLICABLE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL; THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.
NOTWITHSTANDING SECTION 9 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY.
3.SUBSCRIPTION OF SERVICES
3.1. Provision of Purchased Services.
We will (a) make the Services and Content available to You pursuant to this Agreement and the applicable Purchase Orders, (b) provide applicable Hoku standard support for the Services to You at no additional charge, and/or upgraded support if purchased, and (c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give advance electronic notice as provided in the Documentation), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Non-Hoku Application, or denial of service attack.
3.2. Protection of Your Data.
The collection, processing and the use of Your Data shall be done solely for and in furtherance of the purposes defined in this Agreement. We act solely as a data intermediary in the storing and processing of personal data provided by You in the course of providing the Services to You. We are not obliged to ensure Your compliance with the applicable personal data protection or privacy laws (including but not limited to the Personal Data Protection Act of Singapore 2012). You remain solely responsible for compliance with applicable personal data protection and privacy laws in Your usage of the Services. Your acceptance of this Agreement shall be treated as Your consent for Our usage of Your data, management, password assignment etc. You shall inform Us immediately if You become aware of any breach of personal data protection or privacy laws in the course of using the Services.
3.3. Our Personnel.
We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.
3.4. Beta Services.
From time to time, We may make Beta Services available to You at no charge. You may choose to try such Beta Services or not in Your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Beta Services are not considered "Services" under this Agreement, however, all restrictions, Our reservation of rights and Your obligations concerning the Services, and use of any related Non-Hoku Applications and Content, shall apply equally to Your use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
4.USE OF SERVICES AND CONTENT
Unless otherwise provided in the applicable Purchase Order or Documentation, (a) Services and access to Content are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
4.2 Usage Limits.
Services and Content are subject to usage limits, including, for example, the quantities specified in Purchase Orders and Documentation. Unless otherwise specified, (a) a quantity in a Purchase Order refers to Users, and the Service or Content may not be accessed by more than that number of Users, (b) a User's password may not be shared with any other individual, and (c) except as set forth in a Purchase Order, a User identification may only be reassigned to a new individual replacing one who will no longer use the Service or Content. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute a Purchase Order for additional quantities of the applicable Services or Content promptly upon Our request, and/or pay any invoice for excess usage in accordance with Section 6.2 (Invoicing and Payment).
4.3 Your Responsibilities.
You will (a) be responsible for User's compliance with this Agreement, Documentation and Purchase Orders, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Us promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement, Documentation, Purchase Orders and applicable laws and government regulations, and (e) comply with terms of service of any Non-Hoku Applications with which You use Services or Content.
4.4 Usage Restrictions.
You will not (a) make any Service or Content available to, or use any Service or Content for the benefit of, anyone other than You or Users, unless expressly stated otherwise in a Purchase Order or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Non-Hoku Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or Non-Hoku Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, or use any of Our Services to access or use any of Our intellectual property except as permitted under this Agreement, a Purchase Order, or the Documentation, (h) copy a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in a Purchase Order or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, (k) access any Service or Content in order to build a competitive product or service or to benchmark with a Non-Hoku product or service, or (l) reverse engineer any Service (to the extent such restriction is permitted by law). Any use of the Services in breach of this Agreement, Documentation or Purchase Orders, by You or Users that in Our judgment threatens the security, integrity or availability of Our services, may result in Our immediate suspension of the Services, however We will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to such suspension.
4.5 External-Facing Services.
If You subscribe to a Service for sending electronic messages or for the creation and hosting of, or for posting content on, external-facing websites, such use is subject to Our policies from time to time as may be applicable to a Service, and You are solely responsible for complying with applicable law in Your use of any cookies or other tracking technologies.
4.6 Removal of Content and Non-Hoku Applications.
If We are required by a licensor to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such Content from Your systems. If We receive information that a Non-Hoku Application hosted on a Service by You may violate Our External-Facing Services described in Section 4.5 (External-Facing Services) or applicable law or third-party rights, We may so notify You and in such event You will promptly disable such Non-Hoku Application or modify the Non-Hoku Application to resolve the potential violation. If You do not take required action in accordance with the above, We may disable the applicable Content, Service and/or Non-Hoku Application until the potential violation is resolved.
We or third parties may make available (for example, through a Marketplace or otherwise) third-party products or services, including, for example, Non-Hoku Applications and implementation and other consulting services. Any acquisition by You of such products or services, and any exchange of data between You and any Non-Hoku provider, product or service is solely between You and the applicable Non-Hoku provider. We do not warrant or support Non-Hoku Applications or other Non-Hoku products or services, whether or not they are designated by Us as "certified" or otherwise, unless expressly provided otherwise in a Purchase Order.
5.2. Non-Hoku Applications and Your Data.
If You choose to use a Non-Hoku Application with a Service, You grant Us permission to allow the Non-Hoku Application and its provider to access Your Data as required for the interoperation of that Non-Hoku Application with the Service. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by such Non-Hoku Application or its provider.
5.3. Integration with Non-Hoku Applications.
The Services may contain features designed to interoperate with Non-Hoku Applications. To use such features, You may be required to obtain access to such Non-Hoku Applications from their providers, and may be required to grant Us access to Your account(s) on such Non-Hoku Applications. We cannot guarantee the continued availability of such Service features, and may cease providing them without entitling You to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-Hoku Application ceases to make the Non-Hoku Application available for interoperation with the corresponding Service features in a manner acceptable to Us.
6.FEES AND PAYMENT FOR PURCHASED SERVICES
You will pay all fees specified in Purchase Orders. Except as otherwise specified herein or in the applicable Purchase Order, (i) fees are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
6.2. 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 Purchased Services listed in the Purchase Order for the initial subscription term and any renewal subscription term(s) as set forth in Section 12.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Purchase Order. If the Purchase Order 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 Purchase Order. Unless otherwise stated in the Purchase Order, invoiced charges are due net 30 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.
6.3. Overdue Charges.
If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals and Purchase Orders on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
6.4. 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. Other than for customers paying by credit card or direct debit whose payment has been declined, We will give You at least 10 day's prior notice that Your account is overdue, in accordance with Section 13.3 (Notice) for billing notices, before suspending Services and Content to You.
6.5. Payment Disputes.
We will not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (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 Section 6.6, We will invoice You and You will pay that amount 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 Us based on Our income, property and employees.
6.7. Future Functionality.
You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
7.PROPRIETARY RIGHTS AND LICENSES
7.1. Reservation of Rights.
Subject to the limited rights expressly granted hereunder, We, Our Affiliates and Our licensors own all rights, titles and interests in and to all copyright, trademark rights, patent rights, design rights and other IP Rights to the Services and Content that reside on Our site, as well as to any work output and all further developments, updates, upgrades, enhancements, modifications or derivative works which are developed on or out of the Services by any party. No rights are granted to You hereunder other than as expressly set forth herein.
7.2. Access to and Use of Content.
You have the right to access and use applicable Services and Content subject to the terms of applicable Purchase Orders, this Agreement and the Documentation.
7.3. License to Host Your Data and Applications.
You grant Us, Our Affiliates and applicable contractors a worldwide license to host, copy, transmit and display Your Data, and any Non-Hoku Applications and program code created by or for You using a Service or for use by You with the Services, as reasonably necessary for Us to provide the Services in accordance with this Agreement.
7.4. License to Use Feedback.
You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Our and/or Our Affiliate's services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of Our or Our Affiliate's services.
8.1. Definition of Confidential Information.
"Confidential Information" means all 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 includes Your Data; Our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Purchase Orders (including pricing), 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 does 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.
The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not 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, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliate's employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Purchase Order to any third party other than its Affiliates, legal counsel and accountants without the other party's prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate's, legal counsel's or accountant's compliance with this "Confidentiality" section. Notwithstanding the foregoing, We may disclose the terms of this Agreement and any applicable Purchase Order to a subcontractor or Non-Hoku Application Provider to the extent necessary to perform Our obligations to You under this Agreement, under terms of confidentiality materially as protective as set forth herein.
8.3. Compelled Disclosure.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the 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 that Confidential Information.
9.REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
The parties each separately represents and warrants the execution, delivery and performance of this Agreement have been duly authorised by all necessary corporate actions on its behalf, and this Agreement has been duly executed and delivered and is a legal, valid and binding Agreement. You hereby warrant that no data or material You provide for use with or in connection with the Services shall infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy, or violate any applicable law, statute or regulation for its subscription term.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED "AS IS," EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
During the existence and for a period of three years after termination of this Agreement, You shall not directly or indirectly, employ, solicit for employment, or advise or recommend to any other person that such other person employ or solicit for employment, any person employed by Us (whether as a consultant, contractor, employee or otherwise) during the period of Your subscription with Us.
You shall indemnify, defend and hold Us and Our Affiliates and their respective representatives harmless from and against any and all loss, damage, liability, suits, actions, proceedings, demands, damages, judgments, liabilities, claims, and expenses (including, without limitation, reasonable attorney's fees, expert fees and court costs and the costs of investigation and defense and settlement awards) (collectively, the "Losses") relating to, arising from, or in connection with (i) Your or Your Affiliate's, or any of their representative's performance under this Agreement, (ii) the breach or violation by You or Your Affiliates, or any of their representatives of any representation, warranty, covenant or obligation under this Agreement; or (iii) any act or omission by You or Your Affiliates, or its representatives in connection with their actions, omissions, obligations and agreements hereunder.
11.LIMITATION OF LIABILITY
11.1. Limitation of Liability.
To the fullest extent permitted by applicable law, in no event shall We be liable for any indirect, incidental, special or consequential damages, including but not limited to costs of procurement of substitute products or services, loss of profits or revenue, or loss of data or use, incurred by You or any third party, whether in an action in contract or tort or otherwise, even if it has been advised of the possibility of such damages. In no event shall We be liable to You for any cause of action (contract, tort or otherwise) for more than the total amount paid to Us by You during the previous three (3) months at the time the alleged claim arose, whether arising in a single or multiple causes of action.
12.TERM AND TERMINATION
12.1 Term of Agreement.
This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.
12.2. Term of Purchased Subscriptions.
The term of each subscription shall be as specified in the applicable Purchase Order. Except as otherwise specified in a Purchase Order, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any renewal term will increase by up to 7% above the applicable pricing in the prior term, unless We provide You notice of different pricing at least 60 days prior to the applicable renewal term. Except as expressly provided in the applicable Purchase Order, renewal of promotional or one-time priced subscriptions will be at Our applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term's per-unit pricing.
Either party may terminate this Agreement:
(i) upon 30 day's written notice to the other party of a material breach of its obligations under this Agreement 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.
If this Agreement is terminated by You in accordance with Section 12.3 (Termination), You shall not be entitled to any refund but You shall pay any unpaid balance sum set out in the applicable Purchaser Order. If this Agreement is terminated by Us in accordance with Section 12.3, You will pay any unpaid fees covering the remainder of the subscription term of all Purchase Orders. Subject to the foregoing in this Section, in no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
12.5. Your Data Portability and Deletion.
Upon request by You upon termination or expiry of this Agreement, We will make Your Data, in Our possession and not legally prohibited, available to You for export or download as provided in the Documentation. After termination or expiry of this Agreement, We will have no obligation to maintain or provide any Your Data, and as provided in the Documentation and We may thereafter delete or destroy all copies of Your Data in Our systems.
12.6. Surviving Provisions.
The sections titled "Fees and Payment," "Proprietary Rights and Licenses," "Confidentiality," "Disclaimers," "Mutual Indemnification," "Limitation of Liability," "Refund or Payment upon Termination," "Customer Data Portability and Deletion," "Removal of Content and Non-Hoku Applications," "Surviving Provisions" and "General Provisions" will survive any termination or expiration of this Agreement. All other agreements in relation to the Services between the parties shall be superseded by this Agreement except the Professional Services Agreement. This Agreement does not supersede, release, waive, amend, or in any way alter any release or waiver You have given to Us or in any way release You from any obligation You owe Us, and, for the avoidance of doubt, nothing in this Agreement or otherwise shall in any way affect or impair the effectiveness of this statement.
13.NOTICES, GOVERNING LAW AND JURISDICTION
13.1 Governing Law.
If You are an entity established in Singapore or an individual ordinarily residing in Singapore, this Agreement and any disputes, controversy or claim arising out of or in connection therewith shall be governed by and construed in accordance with Singapore law. Any dispute arising out of or in connection with this Agreement including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in Singapore administered by the Singapore International Arbitration Centre ("SIAC") in accordance with the arbitration rules of the SIAC for the time being in force, which rules are deemed to be incorporated by reference to this Section. The seat of arbitration shall be Singapore. The tribunal shall consist of one arbitrator. The language of the arbitration shall be English.
13.2 Governing Law.
If You are an entity established outside Singapore or an individual not ordinarily residing in Singapore, this Agreement and any disputes, controversy or claim arising out of or in connection therewith shall be governed by and construed in accordance with the laws of the State of New York. Any dispute arising out of or in connection with this Agreement including any question regarding its existence, validity or termination, shall be referred to and finally resolved by the courts of the State of New York.
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 forum.
The parties agree in good faith to use 13.4 reasonable efforts to resolve any and all conflicts and controversies between them relating to this Agreement informally and amicably between themselves before submitting any such matter for adjudication.
Any notice required or permitted to be given under this Agreement must be in writing and will be deemed effective:
(i) if given by personal delivery, upon such personal delivery;
(ii) if given by internationally-recognised courier or mail service, at the time that the notice is delivered to the receiver's premises according to the tracking records of the courier or mail service; or
(iii) upon delivery by facsimile or electronic transmission by verified electronic transmission receipt, in each case with a courtesy copy sent by email.
The addresses for notice for each party are the respective addresses of the parties set forth in the Purchase Order. Either party may change its address for notice by written notification to the other party.
No Agency. For the avoidance of doubt, We are entering into this Agreement as principal and not as agent for any other company. Subject to any permitted Assignment under Section 14.2, the obligations owed by Us under this Agreement shall be owed to You solely by Us and the obligations owed by You under this Agreement shall be owed solely to Us.
14.1 Entire Agreement and Order of Precedence.
This Agreement (together with the documents referred to herein) constitutes the entire agreement between You and Us in relation to the transactions referred to herein and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated by You in Your purchase order or in any other of Your order documentation (excluding Purchase Orders) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Purchase Order, (2) this Agreement, and (3) the Documentation.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party's prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Purchase Orders), without the other party's consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees allocable to the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.5. 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.
14.6. Third-Party Rights.
A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act (Chapter 53B of Singapore) to enforce any term of this Agreement.
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall remain in full force.