SOFTWARE AS A SERVICE AGREEMENT (the "Agreement")
IMPORTANT - READ THIS CAREFULLY BEFORE INSTALLING, USING OR ELECTRONICALLY ACCESSING THIS PROPRIETARY PRODUCT.
THIS SOFTWARE AS A SERVICES AGREEMENT ("AGREEMENT") IS A LEGAL
AGREEMENT BETWEEN YELLOW PAGES PTE LTD, INC ("YP") AND THE BUSINESS ENTITY ON WHOSE BEHALF YOU ("YOU") ARE ACTING ("CUSTOMER") AS THE END USER OF THE YP BUSINESS SOFTWARE PRODUCT ACCOMPANYING THIS AGREEMENT, WHICH INCLUDES THE OBJECT CODE VERSION OF THE SOFTWARE AND MAY INCLUDE ASSOCIATED MEDIA, PRINTED MATERIALS AND DOCUMENTATION (COLLECTIVELY, THE "SOFTWARE"). THE SOFTWARE ALSO INCLUDES ANY UPDATES OR UPGRADES TO OR NEW VERSIONS OF THE ORIGINAL SOFTWARE, IF AND WHEN MADE AVAILABLE TO YOU BY YELLOW PAGES PTE LTD.
YOU AGREE THAT YOU ARE AN EMPLOYEE OR AGENT OF CUSTOMER AND ARE ENTERING
INTO THIS AGREEMENT TO EVALUATE THE SOFTWARE FOR THE PURPOSE OF A BUSINESS COLLBORATION (COLLABORATION) BETWEEN WWS AND THE CUSTOMER. YOU HEREBY AGREE THAT YOU ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
Provider and Customer hereby agree as follows:
a. Provision of Services. Customer and users of Customer's Services account ("End Users") may access and use the Services in accordance with this Agreement. Customer shall be defined as a purchaser on the Provider's Software. End Users shall refer to users of the Customers who are employees of the Customer and who are Authorised Users of the Services. The Provider will issue to the Customer's Authorised Users User IDs and Passwords. The user ID and password will be issued when they register through the website or within 24h after signing the contract.
b. Facilities and Data Processing. Provider will use, at a minimum, industry standard technical and security measures to transfer, store, and process Customer Data. These measures are designed to protect the integrity of Customer Data and guard against the unauthorised or unlawful access to, use, and processing of Customer Data. Customer agrees that Provider may transfer, store, and process Customer Data in locations other than Customer's country. "Customer Data" means Stored Data and Account Data. "Stored Data" means the files and structured data submitted to the Services by Customer or End Users. "Account Data" means the account and contact information submitted to the Services by Customer or End Users.
c. Modifications to the Services. Provider may update the Services from time to time. If Provider changes the Services in a manner that materially reduces their functionality, Provider will inform Customer via the email address associated with the account.
2. Customer Obligations.
b. Customer Administration of the Services. Customer may specify End Users as "Administrators" through the administrative console. Administrators may have the ability to access, disclose, restrict or remove Customer Data in or from Services accounts. Administrators may also have the ability to monitor, restrict, or terminate access to Services accounts. Provider's responsibilities do not extend to the internal management or administration of the Services. Customer is responsible for:
i. maintaining the confidentiality of passwords and Administrator accounts;
ii. managing access to Administrator accounts; and
iii. ensuring that Administrators' use of the Services complies with this Agreement.
c. Unauthorized Use & Access. Customer will prevent unauthorized use of the Services by its End Users and terminate any unauthorized use of or access to the Services.
d. Restricted Uses. Customer will not (i) sell, resell, or lease the Services; (ii) use the Services for activities where use or failure of the Services could lead to physical damage, death, or personal injury; or (iii) reverse engineer the Services, nor attempt nor assist anyone else to do so, unless this restriction is prohibited by law.
e. Third Party Requests.
i. "Third Party Request" means a request from a third party for records relating to an End User's use of the Services including information in or from an End User or Customer's Services account. Third Party Requests may include valid search warrants, court orders, or subpoenas, or any other request for which there is written consent from End Users permitting a disclosure.
ii. Customer is responsible for responding to Third Party Requests via its own access to information. Customer will seek to obtain information required to respond to Third Party Requests and will contact Provider only if it cannot obtain such information despite diligent efforts.
iii. Provider will make commercially reasonable efforts, to the extent allowed by law and by the terms of the Third Party Request, to: (A) promptly notify Customer of Provider's receipt of a Third Party Request; (B) comply with Customer's commercially reasonable requests regarding its efforts to oppose a Third Party Request; and (C) provide Customer with information or tools required for Customer to respond to the Third Party Request (if Customer is otherwise unable to obtain the information). If Customer fails to promptly respond to any Third Party Request, then Provider may, but will not be obligated to do so.
3. Third-Party Services. If Customer uses any third-party service (e.g., a service that uses a Provider API) with the Services, (a) Provider will not be responsible for any act or omission of the third party, including the third party's access to or use of Customer Data and (b) Provider does not warrant or support any service provided by the third party.
a. End User Accounts by Provider. If an End User (i) violates this Agreement or (ii) uses the Services in a manner that Provider reasonably believes will cause it liability, then Provider may request that Customer suspend or terminate the applicable End User account. If Customer fails to promptly suspend or terminate the End User account, then Provider may do so.
b. Security Emergencies Or Threats. Notwithstanding anything in this Agreement, if there is a Security Emergency then Provider may automatically suspend use of the Services. Provider will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency. "Security Emergency" means: (i) use of the Services that do or could disrupt the Services, other customers' use of the Services, or the infrastructure used to provide the Services and (ii) unauthorized third-party access to the Services.
5. Intellectual Property Rights And Ownership.
a. Reservation of Rights. Except as expressly set forth herein, this Agreement does not grant (i) Provider any Intellectual Property Rights in Customer Data or (ii) Customer any Intellectual Property Rights in the Services or Provider trademarks and brand features. "Intellectual Property Rights" means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights. All patents, copyrights, software, trade secrets, trademarks, trade names, logos, technology, know-how, or other Intellectual Property Rights developed or created by the Provider shall at all times be the sole exclusive property of and shall fully vest in the Provider.
b. Limited Permission. Customer grants Provider only the limited rights that are reasonably necessary for Provider to offer the Services (e.g., hosting Stored Data). This permission also extends to trusted third parties Provider works with to offer the Services (e.g., payment provider used to process payment of fees).
c. Suggestions. Provider may for any purpose, use, modify, and incorporate into its products and services, license and sublicense, any feedback, comments, or suggestions Customer or End Users send Provider or post in Provider's forums without any obligation to Customer.
d. Customer List. Provider may include Customer's name in a list of Provider customers on the Provider website or in promotional materials.
6. Fees & Payment.
a. Fees. Customer will pay, and authorizes Provider to charge using Customer's selected payment method, for all applicable fees. The fees are exclusive of all taxes including withholding taxes, where applicable. All fees are to be paid by the Customer within 30 days of the date of the invoice. Provider reserves the right to charge interest on outstanding fees at the rate of 10% per annum for outstanding fees. Fees are non-refundable except as required by law. Customer is responsible for providing complete and accurate billing and contact information to Provider. Provider may suspend or terminate the Services if fees are past due. Provider may revise Fees from time to time by providing Customer at least 30 days' notice in writing. In the event, the Agreement is terminated by either party pursuant to Clause 7(a) below, all fees paid by the Customer are non-refundable including the yearly fees or such fees charged for Services.
b. Auto Renewals. The Customer's account is an auto renewal account and Provider will automatically charge for the renewal, unless Customer notifies Provider that Customer wants to cancel or disable auto renewal.
c. Taxes. Customer is responsible for all taxes. In the event that there are statutory obligations to which the Customer must comply in connection with taxes including withholding taxes, if any, then the Customer shall be solely liable for these taxes, where applicable.
7. Confidentiality. Customer shall indefinitely keep secret and retain in strictest confidence, and shall not, without the prior consent of Company, furnish, make available or disclose to any third Party or use for the benefit of itself (except as necessary to fulfill the purposes of this Agreement and/or any Exhibit(s) attached hereto) or any third Party, any Confidential Information of Company. As used herein, "Confidential Information" shall mean any information relating to business or affairs of Company, including but not limited to; Company Products, Work Product, information relating to financial statements, business strategies and plans, customer identities, customer accounts, potential customers, employees, suppliers, servicing methods, equipment, programs, style and design strategies and information, analyses, profit margins, or other proprietary information used by Company in connection with its business. If Customer is an entity, it will make sure that the Confidential Information is disclosed only to those of its employees whose functions require that they obtain access to the Confidential Information to carry out the purpose of this Agreement, that have been informed of the confidential nature and obligations of Customer with respect to the Confidential Information and who are subject to a general written agreement committing such employees to conduct that would not violate Customer's obligations listed in this Section with respect to such Confidential Information if such conduct was committed by Customer. Customer's obligations pursuant to this section shall survive the termination of this Agreement. The Customer shall not reverse-engineer, decompile, or disassemble any software disclosed to it and shall not remove, overprint or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of Confidential Information it obtains from the Company.
8. Term & Termination.
a. Term. This Agreement will remain in effect until Customer's subscription to the Services expires or until the Provider terminates the Agreement.
b. Termination for Breach. Either Provider or Customer may terminate this Agreement if:
i. the other party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice or
ii. the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days.
c. Effects of Termination. If this Agreement terminates:
i. the rights granted by Provider to Customer will cease immediately (except as set forth in this section);
ii. Provider may provide Customer access to its account at then-current fees so that Customer may export its Stored Data; and
iii. after a commercially reasonable period of time, Provider may delete any Stored Data relating to Customer's account. The following sections will survive expiration or termination of this Agreement: 2(e) (Third Party Requests), 5 (Intellectual Property Rights), 6 (Fees & Payment), 7(c) (Effects of Termination), 8 (Indemnification), 9 (Disclaimers), 10 (Limitation of Liability), 11 (Disputes), and 12 (Miscellaneous).
i. Customer Data
ii. Customer's use of the Services in violation of this Agreement or
iii. End Users' use of the Services in violation of this Agreement.
b. By Provider. Provider will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable legal fees) arising out of any claim by a third party against Customer to the extent based on an allegation that Provider's technology used to provide the Services to the Customer infringes or misappropriates any copyright, trade secret, patent, or trademark right of the third party. In no event will Provider have any obligations or liability under this section arising from:
i. use of any Services in a modified form or in combination with materials not furnished by Provider and
ii. any content, information, or data provided by Customer, End Users, or other third parties.
c. General. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party will have full control and authority over the defence, except that:
i. any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed and
ii. the other party may join in the defence with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE PROVIDER's AND CUSTOMER'S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.
10. Disclaimers. THE SERVICES ARE PROVIDED "AS IS." TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER CUSTOMER NOR PROVIDER AND ITS AFFILIATES, SUPPLIERS AND DISTRIBUTORS MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR NON-INFRINGEMENT. CUSTOMER IS RESPONSIBLE FOR MAINTAINING AND BACKING UP ANY STORED DATA.
The Provider will not assume responsibility for server downtime, server delayed response time, network issues, or any other issues caused by interruption or intermittent issues of the underlying hosting service provider.
THE PROVIDER EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE SERVICES WILL BE ERRORFREE, TIMELY, SECURE OR UNINTERRUPTED. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY THE PROVIDER, ITS EMPLOYEES, LICENSORS OR AGENTS WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE.
UNDER NO CIRCUMSTANCES WILL THE PROVIDER, OR ITS AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING BUT NOT LIMITED TO RELIANCE ON ANY INFORMATION OBTAINED ON THE SERVICES; OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, LOSS OF OR DAMAGE TO DATA, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION,
OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF
GOD, COMMUNICATION FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO THE SERVICES TO RECORDS, PROGRAMS OR SERVICES. YOU HEREBY ACKNOWLEDGE THAT THIS PROVISION WILL APPLY WHETHER OR NOT THE PROVIDER IS GIVEN NOTICE OF THE POSSIBILITY OF SUCH DAMAGES AND THAT THIS PROVISION WILL APPLY TO ALL SERVICES AVAILABLE FROM THE PROVIDER AND ITS AFFILIATES. UNDER NO CIRCUMSTANCES, UNDER THE TERMS OF THIS AGREEMENT, SHALL DAMAGES INCLUDE LOSS OF BUSINESS, OR LOSS OF PROFITS, WHETHER BASED ON BREACH OF AGREEMENT, BREACH OF WARRANTY, PRODUCT LIABILITY, OR OTHERWISE, TO ANY PARTY IN PRIVY TO THIS AGREEMENT, OR ANY THIRD PARTY NOT SO SITUATED. THE TERMS OF THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT FOR WHATEVER REASON.
11. Limitation of Liability.
a. Limitation on Indirect Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR PROVIDER OR CUSTOMER'S INDEMNIFICATION OBLIGATIONS, NEITHER CUSTOMER NOR PROVIDER AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS WILL BE LIABLE UNDER THIS AGREEMENT FOR (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR (II) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
b. Limitation on Amount of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, PROVIDER'S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE LESSER OF $1,000 OR THE AMOUNT PAID BY CUSTOMER TO PROVIDER HEREUNDER DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
a. Informal Resolution. Provider desires to address your concerns without resorting to a formal legal case. Before filing a claim, each party agrees to try to resolve the dispute by contacting the other party through the notice procedures in section 12(e). If a dispute is not resolved within 30 days of notice, Customer or Provider may bring a formal proceeding.
b. Agreement to Arbitrate. Customer and Provider agree to resolve any claims relating to this Agreement or the Services through final and binding arbitration, except as set forth below. Any dispute, subject to considering other alternative dispute resolution schemes available to parties, arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre ("SIAC Rules") for the time being in force, which rules are deemed to be incorporated by reference in this clause. The parties agree that any arbitration commenced pursuant to this clause shall be conducted in accordance with the Expedited Procedure set out in Rule 5.2 of the SIAC Rules. The Tribunal shall consist of one arbitrator. The language of the arbitration shall be in English. Parties may, by agreement, resolve their disputes by referring their disputes to alternative dispute resolutions avenues and schemes available to parties.
c. Exception to Agreement to Arbitrate. Either party may bring a lawsuit in the Courts of the Republic Of Singapore, solely for injunctive relief to stop unauthorized use or abuse of the Services or infringement of Intellectual Property Rights without first engaging in the informal dispute notice process described above. Both Customer and Provider consent to venue and personal jurisdiction there.
a. Terms Modification. Provider may revise this Agreement from time to time and the most current version will always be posted on Provider website. If a revision, in Provider's sole discretion, is material, Provider will notify Customer (by, for example, sending an email to the email address associated with the applicable account). Other revisions may be posted to Provider's blog or terms page, and Customer is responsible for checking such postings regularly. By continuing to access or use the Services after revisions become effective, Customer agrees to be bound by the revised Agreement. If Customer does not agree to the revised Agreement terms, Customer may terminate the Services within 30 days of receiving notice of the change.
b. Entire Agreement. This Agreement, including Customer's invoice and order form, constitutes the entire agreement between Customer and Provider with respect to the subject matter of this Agreement and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of this Agreement. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the invoice, the order form, the Agreement.
c. Governing Law. THE AGREEMENT WILL BE GOVERNED BY LAW OF THE REPUBLIC OF SINGAPORE.
d. Severability. Unenforceable provisions will be modified to reflect the parties' intention and only to the extent necessary to make them enforceable, and the remaining provisions of the Agreement will remain in full effect.
e. Notice. Notices must be sent via AR Registered and/or Certificate of Posting and are deemed given when posted to the registered address of the Customer or to its address provided in the Application Form or last known address available to Provider. Notices to Customer may also be sent to the applicable account email address and are deemed given when sent. Notices to Provider must be sent to Provider, to its registered address and addressed to the Managing Director.
f. Waiver. A waiver of any default is not a waiver of any subsequent default.
g. Assignment. Customer may not assign or transfer this Agreement or any rights or obligations under this Agreement without the written consent of Provider. Provider may not assign this Agreement without providing notice to Customer, except Provider may assign this Agreement or any rights or obligations under this Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void.
h. No Agency. Provider and Customer are not legal partners or agents, but are independent contractors.
i. Force Majeure. Except for payment obligations, neither Provider nor Customer will be liable for inadequate performance to the extent caused by a condition that was beyond the party's reasonable control (for example, natural disaster, act of war or terrorism, riot, labour condition, governmental action, and Internet disturbance).
j. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. Without limiting this section, a Customer's End Users are not third-party beneficiaries to Customer's rights under this Agreement.
k. Export Restrictions. The export and re-export of Customer Data via the Services may be controlled by applicable export restrictions or embargo.