ACCEPTANCE OF TERMS OF SERVICE
AFFLE HOLDINGS PTE LTD (“AFFLE”) AND ITS GROUP OF COMPANIES (COLLECTIVELY KNOWN AS “AFFLE”) PROVIDES SERVICE SUBJECT TO THE FOLLOWING TERMS OF SERVICES. THE FOLLOWING TERMS OF SERVICES WILL APPLY TO ALL CONTRACTS AND SERVICES RENDERED BETWEEN AFFLE AND ITS CUSTOMERS INCLUDING FUTURE BUSINESS TRANSACTIONS BETWEEN AFFLE AND THE CUSTOMER, EVEN WITHOUT EXPRESS REFERENCE THERETO. THESE TERMS REPRESENT THE ENTIRE AGREEMENT BETWEEN THE PARTIES REGARDING THE SUBJECT MATTER HEREOF AND SUPERSEDES ANY AND ALL OTHER AGREEMENTS BETWEEN THE PARTIES WITH REFERENCE TO THE SERVICE, WHETHER WRITTEN OR ORAL.
PLEASE READ THESE TERMS OF SERVICE (“AGREEMENT” OR “TERMS OF SERVICE”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY AFFLE.
THROUGHOUT THIS TERM OF SERVICE, AFFLE WILL BE REFERRED TO AS “WE”, “OUR”, “US’ & THE CUSTOMER AS ‘YOU’, and ‘YOUR’, ‘YOURS’. AFFLE MAY UPDATE THESE TERMS FROM TIME TO TIME WITHOUT PRIOR NOTICE AND WILL MAKE REASONABLE COMMERCIAL EFFORT TO NOTIFY YOU OF ANY SUCH UPDATE. YOUR CONTINUED USE OF OUR SERVICE WILL BE DEEMED ACCEPTANCE TO THE AMENDED OR UPDATED TERMS. THE TERMS OF SERVICE IS ONLY AVAILABLE IN ENGLISH VERSION. AS SUCH YOU SHOULD ENSURE TO SEE IF WE HAVE UPDATED THESE TERM. THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SITES AND THE SERVICE (EACH AS DEFINED BELOW). BY USING THE SUBSCRIPTION SERVICE, YOU AGREE TO BE BOUND BY THIS AGREEMENT.
YOU UNDERSTAND THAT OUR CONTRACTUAL RELATIONSHIP AND OBLIGATION ONLY EXTENDS TO YOU. IF YOU CHOOSE TO USE THE SERVICE ON BEHALF OF ANY THIRD PARTY, YOU REPRESENT AND WARRANT THAT SUCH THIRD PARTIES ARE AUTHORIZED TO ACT ON BEHALF OF AND BIND THAT THIRD PARTY OF THESE TERMS OF SERVICE.
AFFLE DOES NOT HAVE A CONTRACTUAL OBLIGATION WITH THE END USERS WHO PURCHASE AND/ OR INSTALL YOUR PRODUCTS, PARTNERS OR THIRD PARTY AFFILIATES OR ANY OTHER PARTY WITH WHOM YOU CHOSE TO ENGAGE TO PERFORM ANY TRANSACTIONS INVOLVING THE SERVICE. THERE ARE NO THIRD PARTY BENEFICIARIES TO THIS AGREEMENT.
NEITHER THE CUSTOMER NOR AFFLE MAY ASSIGN OR TRANSFER THIS AGREEMENT OR ANY RIGHT OR OBLIGATION HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD. EITHER YOU OR WE MAY, UPON NOTICE TO THE OTHER, ASSIGN THIS AGREEMENT TO A PARENT, SUBSIDIARY, DIVISION, AFFILIATES, OR SUCCESSOR UPON THE MERGER, CONSOLIDATION, SALE OR TRANSFER OF ALL OR SUBSTANTIALLY ALL ASSETS, SO LONG AS YOUR OR OUR SUCCESSOR TO SUCH TRANSACTION ASSUMES ALL OBLIGATIONS UNDER THIS AGREEMENT.
AFTER COMPLETING THE REGISTRATION PROCESS AND CLICKING TO THE ‘I ACCEPT’ BUTTON, YOU ACKNOWLEDGE AND AGREE TO BE BOUND AND GOVERNED BY THESE TERMS UNDER THIS AGREEMENT.
“AFFLE Property” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies and information acquired, created, developed or licensed by AFFLE prior to or outside the scope of this Agreement and any improvement, modification, extension or other derivative works thereof and all intellectual property rights thereto including without limitation the Service, SDK, Documentation, Report Templates, and Aggregate Data as defined in Section 6. AFFLE Property does not include Customer Data and Results.
“Customer” means any application(s) owner and / or their Agency who has subscribed for Free or Paid Services provided by AFFLE as mentioned in this Agreement.
“Customer Data” means all information, data and other content provided by Customer in connection with its authorized use of the Service, including, without limitation, all data and information transmitted to the Service via the Client/ or their Agency Libraries.
“Event Call” means an individual recording of a single event.
“Data Point” means any Data being tracked on AFFLE’s SDK installed on the Application(s) of the Customer. Data point includes, but does not limit to a session start, session stop or any Event Call / Page Views and subsequent Event Calls / Page Views on the Application(s).
“Documentation” means the implementation guides; help information and other user documentation regarding the Service that is provided by AFFLE to Customer in electronic or other form.
“Order Form” shall mean an order form referencing this Agreement that has been mutually agreed to and executed by the parties.
“Period” means the duration when the Customer has registered with AFFLE and till end of the price plan period as opted by the Customer.
“Report Template” means the content, formatting, look and feel of the templates used for the reports, charts, graphs and other presentation in which the Results are presented to Customer.
“Results” means the work product resulting from the Service delivered to Customer by AFFLE through the Service, to the extent based on the Customer Data. Results expressly exclude all AFFLE Property.
“Rate” or “Rates” means the rate for the service which has been mentioned in the price plan and opted by the Customer for availing of the service.
“SDK” means the Software Development Kit provided by AFFLE and installed within Customer’s application(s) for the purpose of collecting Customer Data and sending such Customer Data to AFFLE servers, used for Marketing, Analytics & User Engagement.
“Service” means AFFLE’s mobile application analytics, marketing services & user engagement services (including any AFFLE Property used to provide such service), as hosted by or on behalf of AFFLE and provided to Customer under this Agreement, as identified in an Order Form, as updated from time to time by AFFLE in its sole discretion.
“Sites” means websites operated by AFFLE that are made accessible to Customer under this Agreement.
2. DESCRIPTION OF SERVICE
i. Service Start Up: Each party understands that for the commencement and working of the services as per the package opted by the customer, both the parties agree to provide each other with reasonable and required cooperation, assistance, information and access as may be necessary to initiate Customer’s use of the Service to the extent set forth in the Order Form.
ii. Service Access and Availability.
a) Customer Systems: Customer undertakes to provide (i) all information and tools which includes equipment, subscriptions and credentials which will enable and facilitate AFFLE to receive the Customer Data and (ii) all servers, devices, storage, software (other than the SDK), databases, network and communications equipment and ancillary services needed to connect to, access or otherwise use the Service at its facility (collectively, “Customer Systems”). Customer shall ensure that all Customer Systems are compatible with the Service and SDK and Customer will be responsible that it complies with all configurations and specifications described in the Documentation.
b) Service Access: As part of the implementation process, Customer will identify a primary administrative username and password that will be used to set up Customer’s account. Customer may use the administrative username and password to create subaccounts for its employee users (each with unique login IDs and passwords). AFFLE reserves the right to refuse registration of, or to cancel, login IDs that violate the terms and conditions set forth in this Agreement. Customer agrees to provide the required accurate, complete & up-to date information and is responsible to ensure confidentiality of the user id & password. Affle shall not be responsible for the usage and conduct done by the Customer and any person including unauthorised access while being logged into the Customer’s account. In case the Customer discovers that there has been an unauthorised access or any other breach of security then on getting the information the Customer at the earliest shall notify AFFLE electronically of the same. Customer hereby acknowledges and gives consent to AFFLE for allowing AFFLE’s person to log in to their account for the purpose of periodic service and maintenance which includes technical and billing issues.
iii. Service Availability: AFFLE will use commercially reasonable efforts to maintain the Service availability to send and receive data, subject to downtimes resulting from maintenance, repairs and upgrades. AFFLE will attempt to notify Customer electronically via the Service in advance of any planned downtime. Notwithstanding the foregoing, AFFLE will not be liable for any failures in the Service or any other problems which are related to (a) the Customer Data or Customer Systems or (b) outages to any telecommunications or public Internet backbones, networks or servers, or other equipment or service outside of AFFLE’s facilities or control.
AFFLE in no event shall be liable for any direct, indirect or special consequential damages, or any other damages of any kind, including an action in contract, tort (including but not limited to negligence) and not limited to loss of profits, loss of data, loss of use arising in any way connected with the use of or inability to use our services including without limitations any damages caused by or resulting from reliance on any information obtained by using our services, or that result from mistakes, omissions, deletion of files, interruptions, errors, defects, viruses, any failure of performance, delays in operation or transmission, communication failure, theft, destruction or unauthorised access to Customer’s records pertaining to service.
iv. Service License: Subject to the terms of service hereof during the term of the Agreement we hereby grant the Customer a limited, revocable, non-exclusive, non-transferable, non- sublicensable license to use the Service provided by AFFLE together with documentation. The Service is made available to Customer solely as hosted by or on behalf of AFFLE, and nothing in this Agreement shall be construed to grant Customer any right to receive any copy of the Service or any software (other than the SDK). Customer’s access and use of the Service shall comply with all other conditions set forth in the Order Form and Documentation (such as, for example, any requirements regarding data formats, number of permitted users or prohibited uses). Except for the license set forth above, use of the SDK are governed solely by AFFLE.
v. Service Support: AFFLE will provide Customer Service Support to the Customer through communication (telephone, email and chat) as per the terms of the Order Form during the period of the Agreement from 9.AM IST till 6.PM IST. Customer agrees that AFFLE is not responsible to provide support for any issues resulting from problems, errors or inquiries related to Customer Systems.
vi. Professional Services: From time to time, there may be a request forwarded by the Customer to AFFLE to provide certain custom development, consultations, training or other professional services or other professional services (“Professional Services””) which AFFLE will provide subject to its approval. The terms and conditions of any such arrangement for Professional Services shall be set forth in a separate statement of work executed by the parties that specifically references this Agreement (each, a “Statement of Work”), each of which shall be governed by the terms of this Agreement. Unless otherwise agreed to by the parties and set forth in the applicable Statement of Work, all intellectual property, and all rights embodied therein, that are created by AFFLE during the performance of Professional Services shall be owned solely and exclusively by AFFLE.
3. LICENSE RESTRICTIONS AND CUSTOMER OBLIGATIONS
i. Service License Restrictions: Customer shall not directly or indirectly: (i) use the Service or any of AFFLE Property or Confidential Information to create any service, software or documentation that performs substantially the same functionality as the Service, (ii) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code, algorithms or trade secrets underlying the Service (except and only to the extent these restrictions are expressly prohibited by applicable statutory law), (iii) encumber, sublicense, transfer, distribute, rent, lease, time-share or use any AFFLE Property in any service bureau arrangement or otherwise for the benefit of any third party, (iv) adapt, combine, create derivative works of or otherwise modify any AFFLE Property, or (v) use or allow the transmission, transfer, export, re-export or other transfer of any software, technology or information it obtains or learns pursuant to this Agreement in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction.
ii. Unauthorized Use of Service: Customer shall not directly or indirectly: (interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (ii) bypass any privacy settings or measures AFFLE may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); (iii) run mail list, Listserv, any form of auto-responder or “spam” on the Service; or (iv) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Sites.
4. ORDERS, FEES AND PAYMENTS
i. Order Form: The parties may enter into one or more Order Forms pursuant to this Agreement. Each Order Form shall specify the Service to be provided, Service Fees, the term during which the Service is to be provided, invoicing terms and any other terms mutually agreed to by the parties. AFFLE shall only be responsible to provide the Service identified in an Order Form for the term specified in the Order Form.
ii. Service Fees: Customer shall pay a fee for the right to use the Service (“Service Fees”) in the amount and pursuant to the invoicing schedule set forth in the Order Form. Unless otherwise set forth in the Order Form, AFFLE shall not invoice the monthly fixed Service Fees in arrears.
iii. Professional Services Fees: Customer shall pay for Professional Services at the rates and pursuant to the invoicing schedule set forth in the applicable Statement of Work.
iv. Payment Terms: Payments shall be made in US dollars at AFFLE’s address (or to an account specified by AFFLE), in full without set-off, counterclaim or deduction in advance. Any due amounts which are not subject to a good faith dispute shall bear a late payment charge, until paid, at the rate of One & Half percent (1.5%) per month or the maximum amount permitted by law, whichever is less. Customer agrees to reimburse AFFLE for all costs (including attorneys’ fees) incurred by AFFLE in collecting late payments. In addition to its other rights and remedies, AFFLE may, at its option, immediately suspend Customer’s access to the Service or terminate this Agreement in the event that Customer is not current in the payment of fees owed to AFFLE.
v. Taxes. All payments required by this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Customer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon AFFLE’s net income. All amounts payable by Customer hereunder, including all Service Fees, shall be grossed-up for any withholding taxes imposed by any foreign government on Customer’s payment of such amounts to AFFLE.
i. Scope: “Confidential Information” means all financial, business, operational, marketing or technical information disclosed by or for a party in relation to this Agreement whether disclosed in tangible, written, oral or electronic form, that is of a nature that should reasonably be considered to be confidential and proprietary. Without limitation, (a) the Service, AFFLE Property and pricing information are AFFLE’s Confidential Information and (b) all Customer Data (including any PII) shall be deemed Customer’s Confidential Information for purposes of this Section 5. Confidential Information expressly excludes any information (other than PII) to the extent that a recipient can demonstrate such information is (a) was already lawfully known to or independently developed by the Customer or its affiliates without access to or use of Confidential Information, (b) was received by the Customer or its affiliates from any third party without restriction, (c) is publicly and generally available, free of confidentiality information (d) independently developed by the recipient without reference to or use of any of the disclosing party’s Confidential Information.
ii. Confidentiality: To the extent as specified in this Agreement, the receiving party shall not use, copy or disclose any of the disclosing party’s Confidential Information without disclosing party’s prior written consent and the receiving party shall protect the secrecy of the discloser’s Confidential Information with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than due care and the information will be used by the receiving party solely for the purpose of exercising its rights and obligations under this Agreement. The receiving party is only entitled to disclose the Confidential Information to its employees, contractors and agents (collectively known as “Representatives”) who are connected with the Service and in event of any breach of confidentiality by its Representative the receiving party shall be solely responsible and liable for any damages caused to the disclosing party. Each party acknowledges and agrees that upon receiving request from disclosing party, the receiving party shall promptly return all the disclosing party’s tangible Confidential Information, permanently erase all Confidential Information under its possession including electronic records, copies, summaries, analysis and materials developed therefrom. Each party may if need required disclose information under this Agreement of general nature only, but not the specific terms without the prior consent of the other party; provided, however, that either party may provide a copy of this Agreement or otherwise disclose its terms on a confidential basis in connection with any financial transaction or due diligence inquiry.
iii. Compelled Disclosure: Nothing herein shall prevent a party from disclosing this Agreement or any of the other’s Confidential Information as necessary pursuant to any court order or any legal, regulatory, law enforcement or similar requirement or investigation; provided, prior to any such disclosure, the receiving party shall use reasonable efforts to (a) promptly notify the disclosing party in writing of such requirement to disclose and (b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.
6. PROPRIETARY RIGHTS
i. Results and Customer Data: Customer shall own all right, title and interest (including all intellectual property and other proprietary rights) in and to the Results, Customer Data and Customer Systems. Customer hereby grants AFFLE a limited, revocable, non-transferable, non- sub licensable royalty-free right and license to access, use, copy, process and store the Customer Data solely for the purpose of providing the Service. Customer acknowledges and agrees that Customer is responsible for providing Customer Data and also that the working of the service depends on the Customer Data made available and Customer will be solely responsible for all Customer Data collected from end users as a result of Customer’s use of the Service including the accuracy and completeness of such information. Unless otherwise set forth in the Order Form, AFFLE shall not have any obligation to store any Customer Data or Results in its Database and / or Interface beyond 60 calendar days of termination of Agreement. Customer agrees that Affle may also delete all data if the Customer’s outstanding to AFFLE is not cleared as per terms mentioned on the Order Form. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Customer shall retain all right, title and interest (including all intellectual property and proprietary rights embodied therein) in and to the Results, Customer Data and Customer Systems.
ii. Service Feedback: Customer may, from time to time and in its sole discretion, make suggestions for changes, modifications or improvements to the Service (“Feedback”). All Feedback shall be solely owned by AFFLE (including all intellectual property rights therein and thereto) and shall also be AFFLE’s Confidential Information. Customer shall and hereby does make all assignments necessary to achieve such ownership.
iii. AFFLE Property: To the extent that AFFLE includes any AFFLE Property in the Results (including the Report Template), then subject to all terms and conditions of this Agreement, AFFLE agrees to grant Customer a limited, revocable non-transferable, non-sub licensable, royalty-free right and license to use such AFFLE Property as combined with or embodied in the applicable Results, solely for Customer’s internal business purposes in connection with its use of the Results. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and AFFLE (and its licensors) shall retain all right, title and interest (including all intellectual property and proprietary rights embodied therein) in and to the Service and the AFFLE Properties.
iv. General Learning; Customer agrees that AFFLE is free to (i) collect, use and create derivative works of data regarding Service usage and performance derived from the Results; (ii) aggregate such data with other data to create compilations and analysis of such data (the “Aggregated Data”); and (iii) use, copy, modify, create derivative works of, publish and disclose such Aggregated Data in a manner that does not directly or indirectly identify Customer or any individual person. AFFLE shall own all right, title and interest to the Aggregated Data and any derivative works thereof. In addition, AFFLE shall be free to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) related to the Results or acquired during provision of the Service (including without limitation, that which it could have acquired while performing the same or similar services for another customer).
7. WARRANTIES AND DISCLAIMERS
i. Customer Data: Customer represents and warrants that it owns all right, title and interest, or possesses sufficient license rights, in and to the Customer Data and PII as may be necessary to permit the use contemplated under this Agreement.
ii. Service: AFFLE represents and warrants to Customer that the Service will be provided in a professional manner in accordance with the terms of this Agreement and the Documentation. Any warranty claim under this Section 7 (ii) must be made in writing within thirty (30) calendar days after performance of the portion of the Services giving rise to the claim. AFFLE’s sole liability and Customer’s exclusive right and remedy for a breach of such warranty is for AFFLE to correct or re-perform the nonconforming Service.
DISCLAIMERS: EXCEPT AS SPECIFICALLY PROVIDED FOR IN THIS SECTION 7, TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY HEREBY DISCLAIMS (FOR ITSELF, ITS AFFILIATES AND THEIR SUPPLIERS) ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, AFFLE MAKES NO WARRANTY THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR BE UNINTERRUPTED, ERROR-FREE OR BUG-FREE.
I. AFFLE Infringement Indemnity: Except as provided below, AFFLE agrees to (a) defend Customer against any allegation demand, claim, action, proceeding or suit (each, a “Claim”) by a third party that Customer’s authorized use of the Service infringes any SINGAPORE patent or copyright or mis-appropriates any trade secret of such third party and (b) indemnify Customer for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees, “Loss(es)”) awarded to such third party by a court of competent jurisdiction or agreed to as part of a monetary settlement arising out of such Claim; provided, that (i) Customer promptly provides AFFLE with written notice thereof and reasonable cooperation, information, and assistance in connection therewith, and (ii) AFFLE shall have sole control and authority to defend, settle or compromise such Claim. If the Service becomes or, in AFFLE’s opinion, is likely to become, the subject of any injunction preventing its use as contemplated herein, AFFLE may, at its option (1) obtain for Customer the right to continue using the Service or (2) replace or modify the Service so that it becomes non-infringing without substantially compromising its principal functions. If (1) and (2) are not reasonably available to AFFLE, then it may terminate this Agreement upon written notice to Customer and refund to Customer any unused prepaid Service Fees, pro-rated for the remainder of the prepaid period. AFFLE shall have no liability or obligation to Customer hereunder with respect to any Claim or Loss to the extent based upon (a) any unauthorized use of the Service, (b) any modification or combination of the Service with data, software, hardware, or systems not provided by AFFLE, (c) any portion of the Service that implements Customer’s specific requirements, (d) Customer’s continuing allegedly infringing activity after being notified to cease use as provided for herein or (e) Customer’s continuing use of any version of the AFFLE Properties after being provided modifications that would have avoided the alleged infringement. The foregoing states the sole and exclusive liability of AFFLE, and Customer’s sole and exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Service or any part thereof or by its use or operation.
II. Customer Indemnity: Customer agrees to (i) defend AFFLE against any Claim by a third party that results from or arises out of (a) any breach by Customer of any of its obligations in Section 3.3 hereof, (b) any breach by Customer of its representations and warranties set forth in Section 7.1 hereof, or (c) any violation of any third party’s (including any of Customer’s end users) privacy right or PII arising out of Customer’s use of the Service; and (ii) indemnify AFFLE for any Losses awarded by a court of competent jurisdiction or agreed to as part of a monetary settlement and arising out of such Claim; provided, that (i) AFFLE promptly provides Customers with written notice thereof and reasonable cooperation, information, and assistance in connection therewith, and (ii) Customer shall have sole control and authority to defend, settle or compromise such Claim.
9. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OR INACCURACY OF OR DAMAGE TO DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE TOTAL OF THE AMOUNTS PAID TO IT (IN THE CASE OF AFFLE) OR THE TOTAL OF THE AMOUNTS PAID AND PAYABLE HEREUNDER (IN THE CASE OF CUSTOMER) DURING THE THEN CURRENT TERM OF THE ORDER FORM GIVING RISE TO THE CLAIM. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY TO ANY BREACH OF CONFIDENTIALITY OR PROPRIETARY RIGHTS OR FOR COST OF DEFENSE OR LIABILITIES ARISING OUT OF A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
10. TERM AND TERMINATION
Term of Agreement: The term of this agreement shall commence on the date the Customer accepts the Agreement (or inserts the AFFLE SDK into the Application) and shall continue unless terminated by either party with 30 calendar days’ written notice.
This Agreement may be immediately terminated by either party if:
(a) the other party commits a material breach (capable of being cured) of its obligations hereunder that is not cured within 20 calendar days after written notice thereof from the non-breaching party, except as otherwise stated in this Agreement with regard to specific breaches; or
(b)a petition in bankruptcy or other insolvency proceeding is filed by or against the other party, or if an application is made for the appointment of a receiver for the other party of its property, or if a the other party makes an assignment for the benefit of creditors, be unable and fail to pay its debts regularly as they become due, suspend or be caused to suspend business, or commit or cause to be committed any other act amounting to business failure.
Effects of Termination: Upon any termination or expiration of the Agreement, AFFLE will cease providing the Services, and Customer agrees to delete all copies of the AFFLE SDK from the Application, including older versions of the app. If AFFLE continues to receive data on its servers; irrespective of the current version of the app or older; beyond 7 calendar days from termination, AFFLE will continue to charge the Customer as per the Order Form for all the Installs & Data Points that have been received on AFFLE’s servers.
In the event of termination, the Customer will not be entitled to any refunds of any fees AND agrees to pay all outstanding balances in full for Services rendered through the date of termination. The Customer also agrees that all historical result data will no longer be available beyond 60 calendar days from the date of Termination.
All other rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) and all remedies for breach of this Agreement shall survive, confidentiality, proprietary rights provisions, warranties and disclaimers), indemnification, limitation of liability, and general provisions shall survive.
11. GENERAL PROVISIONS
I. Entire Agreement. This Agreement (including the Order Form and all Statements of Work) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed by the parties after the date hereof, shall have no force or effect under this Agreement. No waiver, consent or modification of this Agreement shall bind either party unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any use of the terms “include,” “included” or “including” shall also be deemed to mean “but not limited to” or “without limitation.”
II. Governing Law and Dispute Resolution.
Compliance with Law: The terms of service is governed by and construed in accordance with the laws of Singapore, without regard to principal of conflicts of laws and any arbitrators shall apply such law.
Both the parties acknowledge and agrees that in the event that the parties do not agree to a binding arbitration provision or if the arbitration provision contained herein is deemed to be void or voidable – the parties agree to submit to the exclusive jurisdiction of the Courts of Singapore for any dispute arising under this terms of service.
Both the parties also acknowledge and agree that recognising the global nature of the internet you agree to comply with all local rules, online conduct & acceptable content. You agree to comply with all applicable export and import laws and regulations including and without limiting rules, sanctions of Singapore.
III. Force Majeure: Both the parties acknowledges and agrees that shall not held liable either of the parties for any delay in performance of any obligation hereunder the Agreement due to/on account to labour disturbance, accidents, fire, floods, earthquake, epidemics, telecommunication or Internet failure, strike, war, riots, rebellion, blockades, terrorists acts, acts of government, government requirement, embargoes and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party (“Event of Force Majeure”).
IV. Publicity. Customer hereby consents to inclusion of its name and logos in customer lists that may be published as part of AFFLE’s marketing and promotional efforts.
V. Notices. Any notice or communication hereunder shall be in writing and either personally delivered or recognized express delivery courier or certified or registered mail, prepaid and return receipt requested or all other electronic means; including but not limited to email, fax, addressed to the other party at its address specified herein, or at such other address designated in a subsequent notice. All notices shall be in English, effective upon receipt.
VI. Assignment. Except as expressly provided herein, this Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party’s written consent. However, without consent, each party may assign this Agreement to any successor to all or substantially all of its business that concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). Any assignment in violation of this Section shall be deemed null and void ab initio. AFFLE may use contractors and other third party service providers in performing the Service provided that AFFLE shall be liable for the acts and omissions of its subcontractors to the same extent as for its own acts and omissions. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
VII. Independent Contractors: The parties will performing under the terms of this Agreement shall act as independent contractor and not as an employer, employee, agent or representative, or both parties as joint venture or partner of the other party for any purpose and the parties shall act on a principal to principal basis.
VIII. Miscellaneous. This Agreement may be executed in counterparts, which, taken together, will constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic means or in writing shall be sufficient to bind the parties to the terms and conditions of this Agreement.