Software As A Service – General Terms And Conditions
- In these Alpha Ori’s Software as a Service (SaaS) General Terms and Conditions (“General Terms” or “SaaS General Terms and Conditions”) save where the context otherwise requires, capitalized words and expressions used without definition shall have the meanings hereby assigned to them:
- “Activation Fee” means a one-time amount, if any, due from Customer to Alpha Ori in respect of activation of each Service subscription as set forth on the applicable Quotation.
- “Affiliate” means a Person that directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, another Person. For purposes of this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting shares, by contract or otherwise.
- “Agreement” means, with respect to each Service, a Software as a Service (SaaS) Agreement consisting of (i) the Quotation, (ii) the Customer Specific Terms and Conditions, (iii) these SaaS General Terms and Conditions; and (iv) any Alpha Ori agreed exhibits, appendices or schedules to the Quotation.
- “Alpha Ori” means Alpha Ori Technologies Pte. Ltd., a Singaporean company, or any of its Affiliates identified in the Quotation.
- “Alpha Ori Personnel” means employees, agents, sub-contractors or consultants employed by Alpha Ori, its Affiliates or their respective authorized representatives.
- “Amounts Due” means all amounts due to Alpha Ori under this Agreement, including the Subscription Fee, the Activation Fee, if any, and any other costs and expenses incurred or Charges paid by Alpha Ori on behalf of Customer or in connection with this Agreement.
- “Analyses and Uses” has the meaning set forth in Section 10d of these General Terms.
- “Anti-Corruption Laws” means any anti-bribery, anti-corruption, and anti-money laundering Laws, including the Singapore Prevention of Corruption Act (Cap. 241), the U.S. Foreign Corrupt Practices Act; the UK Bribery Act, as well as any other applicable legislation implementing either the United Nations Convention Against Corruption or the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
- “Charges” means collectively all taxes, duties or other charges, including without limitation sales, value added, use, excise or similar taxes; port charges; freight fees; shipping, handling or packaging costs; insurance; duties and tariffs where applicable.
- “Confidential Information” means any confidential or proprietary information pertaining to or provided by Alpha Ori, including, without limitation, (i) all information concerning Alpha Ori and its Affiliates’ and their customers’ and suppliers’ business affairs, including pricing, discounts, costs, markets and sales information; research and development, future services and products offering and business plans; sales and commercial strategies; (ii) any unpatented inventions, ideas, methods and discoveries, trade secrets, know-how, unpublished patent applications and other confidential intellectual property; (iii) any Software, hardware and products designs, specifications, engineering documentation, components, source code, object code, images, icons, audiovisual components and objects, configuration information, schematics, drawings, protocols, processes and formulas; (iv) any third-party confidential information included with, or incorporated in, any information provided to Customer; and (v) any other information that would reasonably be considered non-public, confidential or proprietary given the nature of the information and Alpha Ori’s business, whether such information is in written, oral, electronic, web-based, or other form. Confidential Information shall not include information that: (a) is or becomes generally available to the public through no act or omission of Customer or its employees or representatives; (ii) is received on a non-confidential basis from a third party, provided that such third party was not breaching an obligation of confidentiality to Alpha Ori; or (iii) has been independently developed by Customer without reference to Alpha Ori’s information and without violating any of its obligations under this Agreement.
- “Customer” means the party identified as customer in the Quotation.
- “Customer Data” means all information, documentation, data content and other materials made available by Customer or obtained from the Vessel’s on-board systems and equipment.
- “Customer Supplies” means any Software, hardware, information technology devices (e.g., hard disks or central processing units) web browsers, applications, equipment, facilities, services (including telecommunications and data connections with the Internet), connections to the Vessel’s on-board systems and equipment, and all other supplies, services, equipment, products and materials owned or controlled by Customer and needed to implement, receive and use the Service.
- “Data Protection Laws” means any Laws relating to privacy and the processing, collection, use and protection of personal data, including the Singapore Personal Data Protection Act of 2012, the European Union (EU) General Data Protection Regulation 2016/679, the California Consumer Privacy Act of 2018, as well as any other applicable legislation implementing the OECD Guidelines on the Protection of Privacy and Transborder Flow of Personal Data.
- “Feedback” means any suggestion or idea for improving or modifying any of the Alpha Ori products or services communicated by Customer or any User to Alpha Ori, including all Intellectual Property Rights in such suggestion or idea.
- “Force Majeure Event” means any event the occurrence of which a party is unable to control or avoid by the use of reasonable diligence, including but not limited to the failure, shortage or interruption of electrical power, telecommunications or data connections with the Internet or supply or any equipment supplied by, or any service provided by, any supplier or service provider; riots or civil commotion, strikes, lock outs or trade or labor disputes or disturbances; plague, epidemic, pandemic or quarantine; acts of any Governmental Authority, requisition, control, intervention, requirement or interference, change in any Law; acts of war or terrorism (whether real or perceived), sabotage or piracy; fire, accident, explosion, flood, drought or inclement or extreme weather conditions and acts of God or the consequences of any of the foregoing.
- “Governmental Authority” means any international, foreign or domestic federal, state or local government or any governmental department, ministry, cabinet, commission, board, bureau, agency, court, tribunal, regulatory authority or other political instrumentality or subdivision thereof and any entity or body exercising executive, legislative, judicial, regulatory, administrative or taxing functions.
- “Indemnified Persons” means collectively Alpha Ori, its Affiliates, Alpha Ori Personnel, Suppliers and their respective directors, officers, employees, agents and representatives, and successors and assigns of any of the foregoing.
- “Intellectual Property Rights” means any rights respecting intellectual property, including without limitation: patents, or any type design rights, utility models, mask works, or other similar invention rights; copyrights and Software, hardware and products designs, specifications, engineering documentation, components, source code, object code, images, icons, audiovisual components and objects, configuration information, schematics, drawings, protocols, processes and formulas; trade secret, know how or confidentiality rights; trademarks, service marks, trade names, logos, domains, corporate names and goodwill; proprietary rights, including privacy and publicity rights, and any other intangible property rights, including applications and registrations for any of the foregoing, in any country, arising under statutory or common law or by contract and whether or not perfected, now existing or hereafter filed, issued or acquired.
- “Law” means (i) any applicable international, foreign or domestic federal, state or local government constitution, treaty, law, statute, code, regulation, ordinance, rule, or other requirement with similar effect (including common or case law) and (ii) any judgment, order, writ, injunction, decision, ruling, decree or award of any Governmental Authority.
- “Person” means any individual, corporation, limited liability company, partnership, joint venture, trust, cooperative, association or other organization or entity.
- “Quotation” means Part I (Quotation) or any other quotation, order form, invoice or other ordering documentation entered into by Alpha Ori and Customer containing the pricing and other special terms applicable to the Service.
- “SaaS” means Software as a Service, a Software delivery model in which Software developed by a vendor and associated data are hosted on the cloud, which users access through a web portal by using thin clients such as a web browser.
- “Sanctions” means any economic sanctions imposed by a Governmental Authority, including the United Nations Security Council, Singapore (including any sanctions administered or enforced by the Monetary Authority of Singapore), the United States (including any sanctions administered or enforced by the Office of Foreign Assets Control of the U.S. Treasury Department, the U.S. Department of State, the U.S. Department of Commerce), the European Union or the United Kingdom (including any sanctions administered or enforced by Her Majesty’s Treasury).
- “SCMA” has the meaning set forth in Article 19 of these General Terms.
- “Service” means the Alpha Ori service of providing Customer with access to the Service Software via the Portal for use in Customer’s internal business operations.
- “Service Commencement Date” means the date on which the Service is first made available for use by Customer.
- “Service Period” means the period of number of months specified in the Quotation or such other period as may be otherwise agreed by Alpha Ori and Customer in writing as the period of subscription for the Service commencing on the Service Commencement Date.
- “Service Software” means the Software product identified on Part I (Quotation), developed and maintained by Alpha Ori, hosted on the cloud and made available to Customer through the Portal on a SaaS basis. Service Software does not include any operating system Software that manages hardware or any other Software.
- “Software” means computer software, programs, and databases in any form, including Internet websites, website content, member or user lists and information associated therewith, links, source code, object code, operating systems and specifications, data, databases, database management code, utilities, graphical user interfaces, menus, images, icons, forms, methods of processing, software engines, platforms, and data formats, all versions, updates, corrections, enhancements, and modifications thereto, and all related documentation, developer notes, comments, and annotations.
- “Subscription Fee” means the monthly amount due from Customer to Alpha Ori during the Service Period in respect of the Service subscription.
- “Supplier” means Alpha Ori, its Affiliate or a third-party supplier, service provider, reseller or manufacturer of any supply, service, Software, hardware, equipment, product or material used in connection with the Service.
- “USD$” means the lawful currency of the United States of America.
- “Users” means end-users authorized by Customer to access and use the Service.
- “Vessel” means the vessel, construction or structure in respect of which the Service is provided.
- Words importing the singular include the plural, words importing a gender include every gender and references to persons include bodies corporate or unincorporated, and in each case vice versa.
- The words “include” or “including” shall be deemed to be followed by “without limitation” or “but not limited to” whether or not they are followed by such phrases or words of like import, and “otherwise” shall not be construed as limited by words with which it is associated.
- The headings to the Articles are for convenience only and shall not affect the construction or interpretation of these SaaS General Terms and Conditions and the Agreement.
2. Application of General Terms
- The General Terms shall apply to each Service and are in addition to any Quotation, Customer Specific Terms and Conditions, and any Alpha Ori agreed exhibits, appendices or schedules to the Quotation.
- In the event of a conflict or inconsistency between the provisions of the components of this Agreement, the following order of precedence shall be used in resolving such conflict or inconsistency: (1) the Quotation’s terms and conditions shall take precedence over any other component of the Agreement; (2) then provisions of Customer Specific Terms and Conditions; (3) then provisions of any Alpha Ori agreed exhibits, appendices or schedules to the Quotation; and (4) last, these Software as a Service (SaaS) General Terms and Conditions.
- Alpha Ori may amend these General Terms at any time by posting them on Alpha Ori’s website, currently located at https://alphaori.sg/SaaS-general-terms.php, and all such amended terms and conditions shall be deemed effective and binding on Customer as of the new effective date specified in the amended terms and conditions.
3. Service Subscription
- By accepting a Quotation, Customer agrees to be bound by the terms and conditions of the Agreement and subscribe to the Service in exchange for payment of the Amounts Due and Customer’s continued compliance with this Agreement.
- Customer shall, and shall allow Users to, access and use the Service solely for Customer’s internal business operations and for no other purpose.
- The Service subscription shall commence on the Service Commencement Date and shall continue for the entire duration of the Service Period.
- Customer hereby acknowledges and agrees that the Service is provided “as is” and “as available” and the availability of the Service is subject to:
- availability of Customer Supplies meeting operating conditions and/or specifications needed to implement, receive and use the Service;
- availability of third-party services and resources needed to implement, receive and use the Service at the time the Service is requested or delivered;
- geographic and technical capability of communication networks and delivery systems (including telecommunications and data connections with the Internet) at the time the Service is requested or delivered;
- provisioning time for any supplies, service, Software, hardware, equipment, product, good or material required by Alpha Ori to provide the Service;
- maintenance of the Service carried out by Alpha Ori from time to time; and the settlement of all Amounts Due.
- During the Service Period, Alpha Ori may change or update the Service Software from time to time to reflect changes in, among other things, Laws, technology, industry practices, patterns of system use and availability of third-party technology and services. Alpha Ori has a right to discontinue the Service or any feature thereof, and in such instance, Customer or Alpha Ori may terminate the Service Period by notifying the other party reasonably in advance.
- Except as otherwise expressly provided in this Agreement, each order of the Service is non-cancellable and the sums paid are nonrefundable.
- All Amounts Due to Alpha Ori under this Agreement shall be paid in full to Alpha Ori within fifteen (15) days of the Alpha Ori’s invoice date without any set off, counterclaim or deduction. Customer shall be liable for all applicable Charges.
- If the payment of Amounts Due is not received by Alpha Ori when due, without prejudice to Alpha Ori’s rights under law or equity, Customer shall pay interest on any outstanding Amounts Due at the rate of one and one half (1.5%) percent per month, compounded monthly, from the date the payment of such amounts is due until such payment of plus any accrued interest is paid in full as well as all costs related to the collection of overdue amounts, including reasonable attorneys’ fees.
5. Customer Responsibilities
- Customer shall, at its cost and expense, procure, supply and maintain Customer Supplies meeting operating conditions and/or specifications needed to implement, receive and use the Service, including, but not limited to:
- providing and using web browsers, applications, Software, hardware, equipment and other facilities that are supported by the Service;
- establishing and retaining telecommunications and data connections with the Internet or such network required to gain access to the Service; and
- implementing and maintaining cybersecurity measures and safeguards to protect the security, confidentiality and integrity of the Service that are not less rigorous than those information security management systems Customer uses to protect its own confidential data and information.
Customer shall be solely responsible for any defects in, delays in the supply of, and any damage or losses caused by, Customer Supplies.
- Customer shall be responsible for: (i) supplying, authorizing or terminating only named Users’ access to or use of the Service; and (ii) Users’ actions that violate this Agreement and any breach by a User shall be deemed Customer’s breach. Customer shall keep a register of such named Users and make it available for Alpha Ori’s inspection at Alpha Ori’s request.
- Customer shall not and shall not authorize or permit any User or any Person to:
- use the service
- in violation of any applicable Law or this Agreement;
- by a particular Person, or in a particular country or region, that is restricted or otherwise becomes subject to any Sanctions or Laws restricting the provision or use of the Service;
- to infringe on Intellectual Property Rights pertaining to any information or resources made available by the Service and belonging to Alpha Ori, any Supplier or any other Person or retain such information or resource for re-use;
- to access information or resources which are private or confidential to Alpha Ori, any Supplier or any other Person unless permission to do so has been granted by owners or holders of such information or resources; or
- to commit any other illegal act;
- copy any technical specifications or documentation or disclose such to any third party;
- create any derivative works based on, disassemble, decompose, reverse engineer any part of the Service for any purpose;
- access or use the Service to build or support or assist a third party in building or supporting, directly or indirectly, any services, Software, hardware, equipment, products, goods or materials competitive to Alpha Ori; or
- license, sell, transfer, assign, distribute, outsource, permit timesharing, commercially exploit or make available the Service to any third party.
If requested by Alpha Ori, Customer will cooperate in any legal action to prevent or stop the use of the Service in violation of the terms of this Agreement.
6. Intellectual Property Rights
- Alpha Ori or its licensors shall retain all ownership of, and Intellectual Property Rights in and to, the Service or the Service Software, related derivative works thereof, and anything developed or made available by or on behalf of Alpha Ori under this Agreement.
- The availability of the Service Software to Customer does not convey to Customer any Intellectual Property Rights in such Service Software (other than the non-exclusive, worldwide, limited right to access and use such Service Software during term of this Agreement, solely for Customer’s internal business operations).
- No provision in this Agreement shall be construed to grant to Customer, either expressly, by implication or by way of estoppel, any license under any patents or other Intellectual Property Rights of Alpha Ori or its licensors covering or relating to any other product or invention or any combination of the Service or the Service Software with any other supply, service, Software, hardware, equipment, product, good or material.
- The Service may contain or require the use of third-party technology that is provided with the Service. Alpha Ori may provide certain notices to Customer in the Service Software or the Portal documentation, readmes or notice files in connection with such third-party technology. Third-party technology will be licensed to Customer either under the terms of this Agreement or, if specified in the Service Software or the Portal documentation, readmes or notice files, under separate terms. Customer rights to use separate licensed third-party technology under separate terms is not restricted under this Agreement. However, for avoidance of doubt, third-party technology that is not separately licensed shall be deemed to be part of the Service.
- In addition Section 6d above, Customer shall not and shall not permit any User or any Person to: (i) remove or modify any copyright notices or other legends from the Service or any accompanying documentation, any program or service markings or any notice of Alpha Ori’s or its licensors’ proprietary rights to use Alpha Ori’s or such licensors’ logos or trademarks; or (ii) otherwise infringe on Alpha Ori’s or its licensors’ ownership of, and Intellectual Property Rights in and to, the Service or the Service Software, related derivative works thereof, and anything developed or made available by or on behalf of Alpha Ori under this Agreement. If requested by Alpha Ori, Customer will cooperate in any legal action to prevent or stop the use of the Service in violation of the terms of this Agreement.
- Except as otherwise provided in this Agreement, Customer shall retain ownership in and to Customer Data. Customer grants Alpha Ori the right to host, use, process, display and transmit Customer Data in connection with the provision of the Service and as otherwise provided for in this Agreement.
7. Warranties and Remedies
- No warranty, express or implied, shall apply to the Service or the Service Software, except as provided in this Article 7. Furthermore, Customer agrees that effectiveness of the warranty contained in this Article 7 shall be conditioned upon and subject to Alpha Ori having received all Amounts Due.
- The Service is provided “as is” and “as available”. Alpha Ori does not guarantee that the Service is fault free, continuous or uninterruptible or provide any other warranties, whether express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement with respect to the Service. Further, Alpha Ori makes no warranties that:
- the Service will be available on an uninterrupted, timely, secure, or error-free basis; and
- the content or results that may be obtained from the use of the Service or any content provided on or through the Service will be accurate and reliable.
- Alpha Ori warrants only to Customer that the Software will be free from material programming errors that substantially impair the Alpha Ori’s intended operation thereof for the duration of the Service Period. Alpha Ori makes no warranties that any Software provided or made available by Alpha Ori under this Agreement will perform error free or uninterrupted or that it will meet Customer’s requirements or expectations.
- Alpha Ori warrants only to Customer that the Service will be performed in a professional and workmanlike manner and in accordance with normal industry standards.
- Upon discovery of a breach of any of the above warranties, Customer must (i) immediately take appropriate steps to mitigate any loss or damage and to prevent any such breach from becoming more serious; and (ii) shall promptly but in any event no later than fourteen (14) days after such discovery, provide Alpha Ori with a detailed written notice of any such breach and establish that its claim is covered by the applicable warranty. Customer agrees that failure to do so shall be deemed to constitute a waiver of its right under the applicable warranty in respect of the relevant breach.
- In the event of a breach the above warranties, the Customer’s exclusive remedy and Alpha Ori’s entire liability shall be, as applicable:
- to use commercially reasonable efforts to provide a Software work-around or correct the Software errors that cause breach of the warranty, or if Alpha Ori cannot substantially correct the errors in a commercially reasonable manner, Customer may terminate the Service and Alpha Ori will refund Customer any Subscription Fees prepaid to Alpha Ori for the period following the effective date of termination; or
- to re-perform any defective Service.
- Furthermore, Alpha Ori warrants only to Customer that the Service Software developed by Alpha Ori does not infringe upon any Intellectual Property Rights of any third party.
- In the event a third party claim alleges that such Service Software infringes upon its Intellectual Property Rights, Alpha Ori shall, at its own expense, either: (i) obtain for Customer the right to continue using the allegedly infringing Software, (ii) replace such allegedly infringing Software components with non-infringing Software without material loss of functionality, or (iii) modify such allegedly infringing Software so that it becomes non-infringing without material loss of functionality.
Furthermore, Alpha Ori will defend Customer against any claims made by an unaffiliated third party that the Service Software developed by Alpha Ori infringes its Intellectual Property Rights and will pay the amount of any resulting adverse final judgment, or any settlement to which Alpha Ori consents; provided that Customer shall notify Alpha Ori promptly in writing of the claim and give Alpha Ori control over its defense and/or settlement. Customer agrees to provide Alpha Ori with reasonable assistance in defending the claim, but Customer shall not be responsible for providing financial assistance in respect of any such claim.
Alpha Ori obligations to defend such claims will not apply to the extent that the claim or adverse judgment is based on (i) any use of the Service Software not in accordance with this Agreement; (ii) any use of the allegedly infringing Software after Alpha Ori notifies Customer to discontinue use due to such a claim; (iii) use of the allegedly infringing Software in an application or environment or on a platform or a device for which it was not designed, contemplated or authorized by Alpha Ori; (iv) combining the allegedly infringing Software with a non-Alpha Ori Software, service, hardware, equipment, product, good, material, data or business process; or (v) that portion of the allegedly infringing Software which implements Customer’s requirements where there was on non-infringing way to implement such requirements. Customer will reimburse Alpha Ori for claims, losses, liabilities, damages, fines, penalties, and costs and expenses that result from these actions.
- Customer hereby acknowledges and agrees that it has not relied on any representations or warranties other than those expressly set forth herein.
- Except as expressly set forth in this Article 7, Alpha Ori makes no other warranties, express or implied, with respect to the Service, including but not limited to any implied warranties of title, non-infringement, quiet enjoyment, accuracy, integration, merchantability or fitness for a particular purpose and all warranties arising from Law, course of dealing, course of performance or usage of trade.
The rights and remedies provided in this Article 7 are exclusive and in lieu of any other rights or remedies, whether in an action for or arising out of breach of contract, indemnity or warranty (express, implied or otherwise), tort (including negligence and breach of statutory duty) or any other cause of action.
8. Limitation of Liability
- In no event shall Alpha Ori be liable to Customer, any User or any third party for any indirect, incidental, consequential, punitive or special damages, including but not limited to any loss of profit, revenue, contracts or savings or other damages arising out of use or inability to use the Software, or the delivery of failure to deliver the Service, any defects in the Service or any breach of this Agreement, whether in an action for or arising out of breach of contract, indemnity or warranty (express, implied or otherwise), tort (including negligence and breach of statutory duty) or any other cause of action, even if Alpha Ori has been advised of the possibility of such damages.
The foregoing limitation of liability shall remain in full force and effect regardless of whether Customer’s remedies hereunder are determined to have failed their essential purpose.
Alpha Ori’s total aggregate liability for all damages, losses and indemnities arising under or in connection with this Agreement shall at all times be limited to: (i) with respect to each Vessel subscription, fifty (50%) percent of the aggregate amounts of Subscription Fees paid by Customer to Alpha Ori under this Agreement over three (3) months period immediately preceding the date that such claim concerning such Vessel arise; and (ii) with respect to all claims collectively, fifty (50%) percent of the aggregate amounts of Subscription Fees paid by Customer to Alpha Ori under this Agreement over three (3) months period immediately preceding the date that such claim(s) arise.
The parties acknowledge and agree that the fees paid by Customer reflect the allocation of risk between the parties under this Agreement.
- Alpha Ori shall be under no liability whatsoever to Customer for any and all claims, losses, liabilities, damages, fines, penalties and costs and expenses of any kind, whether direct or indirect, arising out of or relating to this Agreement unless same is proved to have resulted solely from the gross negligence or willful misconduct of Alpha Ori or Alpha Ori Personnel.
- Notwithstanding any provision of this Agreement, Alpha Ori shall not be liable for any and all claims, losses, liabilities, damages, fines, penalties, and costs and expenses of any kind, whether direct or indirect, arising out of or relating to:
- Customer Supplies or any other supplies, services, Software, hardware, equipment, products, goods or materials not provided by Alpha Ori;
- Customer Data and any other information, data, content, documentation and materials not provided by Alpha Ori or any results or data produced therefrom;
- the security, confidentiality or privacy of the communications, information or data transmitted over the Internet, including any failure, delay, interruption, error, loss, corruption or deletion of any content, data or information;
- incompatibility or inability of the Service to operate or to communicate or control or to be controlled by any other system, Software, hardware, equipment or part not provided by Alpha Ori;
- any error, omission or inaccuracy in any information provided by the Alpha Ori whether to Customer or any other Person as part of or in connection with the Service or otherwise;
- any Force Majeure Event;
- any acts or omissions or work carried out, or assistance provided by Alpha Ori Personnel on Customer’s request or instruction; or
- any other acts, omissions or work carried out, or assistance provided by Customer or by any Person other than Alpha Ori Personnel, even though carried out with actual or attributable assistance or knowledge of Alpha Ori.
- Customer hereby acknowledges and agrees that all technical information and/or advice provided by Alpha Ori Personnel: (i) which is outside the scope of this Agreement; or (ii) prior to the date of this Agreement and not expressly included in this Agreement, is intended for informal and confidential information purposes only, and Alpha Ori assumes no liability for the consequences of Customer’s actions, omissions or decisions made or based on such information or advice for any losses so caused.
- Customer hereby undertakes to indemnify, defend and hold the Indemnified Persons harmless against all actions, proceedings, lawsuits, demands, claims, losses, liabilities, damages, fines, penalties and costs and expenses of any kind, whether direct or indirect, whatsoever or howsoever arising which may be brought against the Indemnified Persons or incurred or suffered by them in connection with, arising out of, or incurred in the course of the performance of, this Agreement, including those relating to:
- Customer Supplies;
- Customer Data and any results or data produced therefrom;
- Customer’s, Users’ or any Person’s wrongful or unauthorized use of the Service;
- Customer failure to comply with applicable Law;
- any breach of this Agreement by Customer or User, including unauthorized disclosure of Confidential Information or infringement of Alpha Ori Intellectual Property Rights; or
- any fraud or intentional or unlawful act or omission of Customer or any User.
9. Force Majeure
Neither party shall be liable for any delay or failure in performance of this Agreement due to a Force Majeure Event. The party seeking to invoke force majeure shall notify the other party, in writing, within ten (10) days after the occurrence of the Force Majeure Event, specifying the nature and anticipated duration of the delay or non-performance. Both parties shall be excused from performance of any part of this Agreement on a day-to-day basis during the continuance of the Force Majeure Event. The party invoking force majeure shall use its commercially reasonable efforts to avoid or minimize the effects of delay or non-performance and both parties shall proceed immediately with the performance of their obligations under this Agreement whenever the Force Majeure Event ceases to exist. Notwithstanding the foregoing, in the event any delay or non-performance extends for a period of more than sixty (60) days, either party shall have the right to terminate this Agreement by written notice to the other party.
10. Privacy and Uses of Data
- Alpha Ori may monitor the Service, among other things, to facilitate Alpha Ori’s operations of the Service; to detect and address threats to the functionality, security, integrity, and availability of the Service as well as any content, data, or applications in the Service; and to detect and address any illegal acts or violations of this Agreement. Any information made available to Alpha Ori, including Customer Data, may also be used by Alpha Ori and its Suppliers: (i) in connection with the operation and use of, and to enhance the performance of, the Service; (ii) to assist in managing and developing product and service portfolio; (iii) to help address deficiencies in product or service offerings; and (iv) for license management and administrative purposes.
Customer hereby grants Alpha Ori an exclusive, perpetual, worldwide, irrevocable, sublicensable, fully paid license and unlimited right to use and exploit any Feedback.
Each party shall, at its own cost and expense, carry and maintain comprehensive insurance coverage required by Law or as is commercially standard in the jurisdictions and industries in which it transacts business.
13. Confidential Information
Customer agrees to keep all Confidential Information strictly confidential and use it solely for the purpose of, and in connection with, Customer’s business relationship with Alpha Ori, and will protect it from disclosure using at least the same degree of care as Customer uses to protect its own confidential and proprietary information but no less than reasonable care, and not disclose it to any third party without Alpha Ori’s prior written consent. Customer may share Confidential Information only with its employees and representatives who have a need to know and who are subject to legally binding obligations of confidentiality no less restrictive than those imposed by this Agreement; provided that Customer shall remain liable for breaches of these confidentiality obligations by such employees and representatives.
Neither party shall use the name of the other party in publicity, advertising, or similar activity, without the prior written consent of the other, except that Customer agrees that Alpha Ori and its Affiliates may use Customer’s name and logo in customer listings or as part of Alpha Ori’s marketing efforts.
15. Term; Suspension and Termination
- Customer shall subscribe to the Service for the entire duration of the Service Period.
- Any party may terminate the Service with or without cause by giving the other party no less than ninety (90) days prior written notice.
- Alpha Ori may suspend or terminate the Service at any time without written notice thereof to Customer:
- if there is any unauthorized use of the Service;
- if there is any unauthorized disclosure of Confidential Information;
- if there is any infringement of Intellectual Property Rights Alpha Ori, its Suppliers or any of their respective licensors;
- if there is any other violation or default under any provision of this Agreement, and any such violation or default that is capable of being corrected has not been corrected within thirty (30) days of Alpha Ori’s notice of such violation or default;
- if Alpha Ori believes that there is a significant threat to the functionality, security, integrity or availability of the Service or any content, data or application in the Service;
- if Alpha Ori believes that the Service is being used, has been used or attempted to be used, or is likely to be used:
- (a) in violation of any applicable Law or this Agreement;
- (b) by a particular Person, or in a particular country or region, that is restricted or otherwise becomes subject to any Sanctions or Laws restricting the provision or use of the Service;
- (c) to infringe on Intellectual Property Rights pertaining to any information or resources made available by the Service and belonging to Alpha Ori or any other Person or retain such information or resource for re-use;
- (d) to access information or resources which are private or confidential to any Person unless permission to do so has been granted by owners or holders of such information or resources; or
- (e) to commit any other illegal act;
- if Customer, any User or any Person or their respective Affiliates, directors, officers, employees or agents engaged in any activity, practice or conduct which would constitute an offence under the Anti-Corruption Laws;
- Customer has ceased to trade; suspend payment(s); has an order made or resolution passed for its winding up, dissolution, liquidation or bankruptcy (otherwise than for the purpose of solvent reconstruction or amalgamation); has a receiver, administrative receiver, administrator or other similar official appointed over all or substantially all of its assets or undertakings; has a secured party take possession of all or substantially all its assets; has become insolvent or gone into liquidation (unless such liquidation is for the purpose of a solvent reconstruction or amalgamation); makes a general assignment, arrangement or composition with or for the benefit of its creditors; is unable to pay its debts as they become due; causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in the foregoing; or, takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts; or
- in the event payment of Amounts Due is not made within sixty (60) days of the invoice date.
- When reasonably practicable and lawfully permitted, Alpha Ori will provide Customer with advance notice of such suspension and will use reasonable efforts to recommence the Service promptly after Alpha Ori determines that the issue causing the suspension has been resolved. During suspension of the Service, the Subscription Fees will continue to apply and Customer will be invoiced accordingly and, prior to any recommencement of the Service, Customer shall pay Alpha Ori a fee for recommencing the Service along with all other Amounts Due
- Upon termination of the Service, Customer shall be liable to pay Alpha Ori:
- where the effective date of termination of the Service is the same as the expiration of the Service Period, all Amounts Due up to and including the effective date of the Service termination; and
- where the effective date of termination of the Service is before the expiration of the Service Period, all Amounts Due up to and including the effective date of the Service termination and 100% of the Subscription Fees for the period between the effective date of termination of the Service and the expiration of the Service Period.
- Customer shall be responsible to backup any data contained in the Service prior to the effective date of termination of the Service.
- All notices given by either party to the other party in accordance with the provisions of this Agreement shall be in writing and shall be sent to the address for that other party as set out in the Quotation or to such other address as the other party may designate in writing. A notice may be sent by registered or recorded mail, facsimile, electronically or delivered by hand.
- Any notice given under this Agreement shall take effect on receipt by the other party and shall be deemed to have been received: (i) if posted, on the seventh (7th) day after posting; (ii) if sent by facsimile or electronically, on the day of transmission; and (iii) if delivered by hand, on the day of delivery. And in each case proof of posting, handing in or transmission shall be proof that notice has been given, unless proven to the contrary.
- This Agreement shall be binding on and shall enure for the benefit of each party’s successors and permitted assigns.
- Neither this Agreement nor any rights, duties or interest herein, shall be assigned, transferred, pledged or hypothecated or otherwise conveyed by either party without the other party’s prior written consent which shall not be unreasonably delayed or withheld. Notwithstanding the foregoing, Alpha Ori shall have the right to subcontract any of its obligations hereunder without the prior written consent of Customer; provided that, in the event of such a sub-contract, Alpha Ori shall remain fully liable for due performance of this Agreement.
18. Governing law
This Agreement shall be governed by and interpreted in accordance with Singapore law.
Any dispute, controversy or claim arising out of or in connection with this Agreement, including any question regarding the existence, termination or validity thereof, shall be submitted upon the application of any party to the Singapore Chamber of Maritime Arbitration (“SCMA”) and shall be finally settled under the rules of the SCMA in force as of the date of this Agreement, which rules are deemed to be incorporated by reference into this Article 19. The seat of the arbitration shall be Singapore. The language of the arbitration shall be English. For the purposes of enforcing any award, judgment may be entered on an award by any court of competent jurisdiction.
20. Independent Contractors Relationship
The relationship between the parties under this Agreement is solely that of independent contractors, and neither party is an employer, employee, owner, agent, franchisor, franchisee or representative of the other party. Neither party is authorized or empowered to represent the other party, nor to transact business, incur obligations or buy goods in the other party’s name or for the other party’s account. This Agreement does not constitute, and shall not be deemed to constitute a joint venture or partnership between the parties hereto, and neither party shall be deemed to be an agent of the other, or have authority to bind, obligate or make an agreement for the other party.
21. Entire Agreement
Customer agrees that this Agreement and the information which is incorporated into this Agreement by written reference (including reference to information contained in a URL or referenced policy) is the complete Agreement with Alpha Ori relating to the Service and supersedes all prior or contemporaneous agreements or representations, written or oral, regarding the Service.
22. Partial Validity
If any term or provision of this Agreement is or becomes or is held by any court, arbitrator or other competent body to be illegal, invalid or unenforceable in any respect under any Law or jurisdiction, the provision shall be deemed to be amended to the extent necessary to avoid such illegality, invalidity or unenforceability, or, if such amendment is not possible, the provision shall be deemed to be deleted from this Agreement to the extent of such illegality, invalidity or unenforceability, and the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible. The remaining provisions shall continue in full force and effect and shall not in any way be affected or impaired thereby.
23. Equitable Remedies
Customer hereby acknowledges and agrees that that a breach or threatened breach by Customer of any of its obligations under this Agreement would give rise to irreparable harm to Alpha Ori, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by it of any such obligations, Alpha Ori shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
- Prior to entering into this Agreement, Customer is solely responsible for determining whether the Service meets Customer’s technical, business and regulatory requirements. Alpha Ori will cooperate with Customer’s efforts to determine whether use of the Service is consistent with those requirements.
- No term of this Agreement is enforceable by a Person who is not a party to this Agreement, other than Indemnified Persons with respect to the applicable indemnity provisions.
- A party’s failure to insist on strict performance of any provision of this Agreement shall not be deemed to be a waiver thereof or of any right or remedy for breach of a like or different nature. Subject, as aforesaid, no waiver shall be effective unless specifically made in writing and signed by a duly authorized officer of the party granting such waiver.
- Upon written notice, Alpha Ori may audit Customer’s compliance with the terms of this Agreement. Customer agrees to cooperate with Alpha Ori’s audit and to provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Customer’s normal business operations.