TERMS AND CONDITIONS OF SUBSCRIPTION
These Terms and Conditions of Subscription, together with the Sales Order (collectively the “Agreement”) governs your use, as Customer, of the Product (as described in the Sales Order) to be provided by Zixxe Pte Ltd as Seller.
1.1 Subject to the terms of this Agreement, Seller shall provide Customer with the service consisting of access to and use of the Product on a software as a service basis (hereafter the “Service”) for the duration of the Term (as defined below) for its internal business use. Customer acknowledges that if the servers are hosted by Seller and/or certain third party service providers, the use of the Service may be subject to the terms and conditions of use imposed by the Seller or the relevant third party service providers for the use of the servers.
1.2 Customer shall appoint one (1) Administrator as its designated contact person who is authorized to liaise with Seller and make queries on its behalf. “Administrator” means the person designated by the Customer to administer the Customer’s user account for the Product.
1.3 Upon payment of the relevant Subscription Fees, Seller shall create a primary organization account (“Account”) and its user identification (“User ID”) and password shall be sent to the designated Administrator of Customer who shall in turn allocate User IDs to up to a maximum of three (3) Users. “Users” refer to individuals who have been authorized by Customer to use the Service. For avoidance of doubt, 1 User ID can only be used by 1 individual, and the sharing of User IDs constitutes a breach of this Agreement.
1.4 Customer shall be solely responsible for all activities that occur under its Account, and for the use and protection of its User IDs and passwords. Customer shall: (a) take necessary precautions to prevent unauthorized use or access to the Service; (b) ensure that the Service are used in accordance with the instructions of the Seller. Seller shall not be liable for any loss or damage incurred by Customer due to a breach of this clause.
1.5 The Subscription Fee for the Services includes access to and use of the three modules described below (“Modules”):
(a) Module 1: Form template creation
(b) Module 2: Education content upload
(c) Module 3: Basic Analytics as currently made available in the Product (does not include Advanced Analytics or Calculations).
1.6 The Modules are provided “as is” from the versions developed by Seller in July 2018. The availability of any upgrades to the different Modules are subject to agreement between Seller and Customer and payment of additional fees by the Customer.
1.7 Modules 1 and 2 can be viewed on iOS Apple iPhone devices with operating systems (OS) of version 8.1 and higher.
1.8 The speed and access of Product content through the Service is dependent upon Customer’s broadband or wi-fi speed.
1.9 Customer is not to post any materials infringing any third party’s rights, including but not limited to copyright, trade secrets or portrait right, through the Service. Customer also agrees to be solely liable for any infringement claims (actual or alleged) by any owners of such rights.
- Ownership and Restrictions.
3.1 Customer shall retain ownership and all intellectual property rights in and to the content which its provides and uploads onto the Service platform. Seller and its licensors shall retain ownership and all intellectual property rights to the Service (including the Product) and derivative works thereof and to anything developed or delivered by or on behalf of Seller under this Agreement. Customer grants to Seller a royalty-free, irrevocable, sub-licensable, non-exclusive, perpetual right and licence throughout the world to use, exploit and disclose (including by reproduction, distribution, public display, adaptation and/or public performance) the content which Customer provides and uploads onto the Service platform. Customer acknowledges and agrees that Seller shall have no obligation of confidentiality, whether express or implied, with respect to the content which Customer provides and uploads onto the Service platform, and that Seller shall be entitled to use, exploit or disclose such content without any obligation to compensate or reimburse Customer.
3.2 Notwithstanding and further to anything stated elsewhere in this Agreement, Customer shall not:
- remove or modify any program markings or any notice of Seller’s or a third party’s proprietary rights;
- except as expressly permitted by this Agreement, make the Service (excluding any content or applications belonging to Customer) available in any manner for use by any third party;
- modify, make derivative works of, disassemble, decompile, reverse engineer, reproduce, distribute, republish or download any part of the Service or access or use the Service in order to build or support, and/or assist a third party in building or supporting, products or services which are competitive to those of Seller;
- use the Service to store or transmit any content, including but not limited to content belonging to the Customer, that may be infringing, defamatory, threatening, harmful, or other tortious or unlawful, including any content that may violate intellectual property, data privacy or other laws, or sending spam or other unsolicited message in violation of applicable law;
- use the Service to upload or transmit any data, file, software or link that contains or redirects to a virus, Trojan horse, worm or other harmful component;
- attempt to modify, make derivative reverse engineer, decompile, hack, disable, interfere with, disassemble, copy or disrupt the integrity or the performance of the Service, any third party use of the Service, or any data belonging to Seller or a third party contained therein;
- attempt to gain unauthorised access to the Service or the environment of the Service; or
- authorise or encourage any authorised personnel or other third party to do any of the above.
4.1 Customer recognizes that during the course of using the Service and working with Seller, Customer may have access to or receive information which is considered by Seller to be confidential or proprietary, including without limitation, information relating to designs, user interface, computer program listings, source code, and object code relating to the Service (including the Product) and to the other programs now existing or currently under development by Seller, business plans, products, services, customer lists and records, data analytics, reports, images, programming techniques and development tools, management and/or implementation tools and problem-solving techniques, inventions, patent, trademark and copyright applications, improvements, know-how, ideas, and/or any other written material referring to same (collectively referred to as the “Confidential Information”).
4.2 Customer shall hold the Confidential Information of Seller in strict confidence and shall use such Confidential Information only for the purpose of this Agreement.
4.3 Both during the Term of this Agreement and thereafter:
(a) Customer agrees to maintain in strict confidence such Confidential Information.
(b) Customer further agrees to use all reasonable precautions to ensure that all such Confidential Information is properly protected and kept from unauthorized use or disclosure.
(c) If requested by Seller, Customer agrees to promptly return to Seller all materials, writings, equipment, models, mechanisms, and the like obtained from or through Seller including, but not limited to, all Confidential Information, all of which Customer recognizes is the sole and exclusive property of Seller.
(d) Customer agrees that it will not, without first obtaining the prior written permission of Seller: (i) directly or indirectly utilize such Confidential Information in its own business; (ii) manufacture and/or sell any product that is based in whole or in part on such Confidential Information; or (iii) disclose such Confidential Information to any third party.
4.4 The obligations in this clause shall survive the termination or expiration of this Agreement.
- Customer’s Representations and Warranties. Customer represents and warrants to Seller that it is free to enter into this Agreement and that its performance thereunder will not conflict with any other Agreement to which Customer may be a party.
- Warranty, Disclaimers and Exclusive Remedies.
6.1. The Service and any other product or service supplied under this Agreement is provided to Customer “AS IS” without any warranty of any kind and the use of the Service and any other product or service supplied under this Agreement is entirely at Customer’s own risk. Seller hereby expressly disclaims all warranties with regard to the Service and any other product or service supplied under this Agreement, whether express, implied, statutory or otherwise, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, title, non-infringement and any warranties arising from course of dealing or course of performance.
6.2 Seller does not guarantee that the Service will (a) perform error-free or uninterrupted, or that the Seller will correct all errors; (b) operate in combination with Customer’s content or software or with any other hardware, software, systems, services or data not provided by Seller; and (c) meet the requirements, specification or expectations of Customer.
6.3 Customer acknowledges that Seller does not control the transfer of data over communications facilities, including the internet, and that the Service and other products and services provided by Seller may be subject to limitations, delays and other problems inherent in the use of such communication facilities. Seller is not responsible for any delays, delivery failures or other damage resulting from such problems.
6.4 The above limitations shall apply notwithstanding the failure of essential purpose of any limited remedy provided herein. Seller is not responsible for any issues related to the performance, operation or security of the Service or the other products or services provided by Seller which arise from Customer’s content or application or from third party content or services. Seller does not make any representation or warranty regarding the reliability, accuracy, completeness, correctness or usefulness of any third party content or services, and disclaims any liabilities arising from or related to third party content or services.
- Indemnification. Customer agrees to defend, indemnify, and hold the Seller, its officers, directors, agents, and employees, consultants, agents, parent company, affiliates, vendors, contractors, and subcontractors, harmless against all costs, suits, demands, damages, liabilities, expenses, and losses (including reasonable attorney fees and costs) incurred through claims of third parties based on a breach by Customer of any representation and warranty made in this Agreement.
- Limitation of Liability. In no event shall Seller be liable to Customer for any damages, claims or costs whatsoever or any consequential, indirect, incidental, special or punitive damages, or any loss of revenue or profits or data or data use, even if Seller had been advised of the possibility of such loss, damages, claims or costs or for any claim by any third party. The foregoing limitations and exclusions apply to the extent permitted by applicable law.
9.1. Seller shall have the right, in its sole discretion, to prosecute lawsuits against third parties for infringement of its rights in the Service. Customer agrees to fully cooperate with Seller in the prosecution of any such suit.
- Term and Termination.
10.1 This Agreement shall commence on the Effective Date and shall continue thereafter for the duration set forth in the Sales Order (the “Initial Term”) unless terminated in the manner as described below.
10.2 Following the Initial Term, this Agreement shall automatically renew for consecutive one (1) year terms (each a “Renewal Term”) (the Initial Term and the Renewal Term(s) collectively referred to as the “Term”) unless a Party has given to the other Party a written notice of non-renewal at least fourteen (14) days prior to the end of the then current Term.
10.3 Notwithstanding the above provisions, Seller shall have the absolute right to terminate this Agreement forthwith at any time by giving notice in writing to Customer should Customer neglect or fail to perform or observe any provision of this Agreement or commits any breach of its obligations under this Agreement, which breach if capable of remedy is not remedied to the satisfaction of Seller within fourteen (14) days of the written notice.
- Consequences of Termination
11.1 On expiration or termination of this Agreement for whatever reason, the following shall apply:
- Seller’s obligation to provide the Service to Customer will forthwith cease and terminate.
- Customer shall no longer have rights to access or use the Service, including any associated products or services.
- Customer shall immediately pay to Seller the full amount of all monies then or thereafter due together with any interest thereon up until the date of payment (whether before or after judgment).
- Publicity. Customer agrees that Seller may identify Customer as its customer in its marketing and promotional materials and business proposals to third parties (collectively “Marketing Materials”) and that Seller may refer to Customer in such proposal by its trade marks, logos and trade names and provide a brief description of Customer’s business and the type of products and services which were provided to Customer. Customer hereby grants to Seller an irrevocable, non-exclusive, royalty-free, worldwide right and licence to use the trade marks, logos and trade names of Customer in its Marketing Materials.
- Notices. Any notice required to be given pursuant to this Agreement shall be in writing and mailed by certified or registered mail, return receipt requested, or delivered by a national overnight express service such as Federal Express, or by telefax communication with an acknowledgment by the recipient.
- Relationship of Parties. Seller is an independent contractor and nothing in this Agreement shall be construed or deemed to constitute, create, give effect or to otherwise recognize a joint venture, partnership or constitute one party as a representative or agent of Customer.
- Agreement Binding on Successors. This Agreement shall be binding on and shall inure to the benefit of the Parties hereto, and their heirs, administrators, successors, and assigns.
- Wavier. No waiver by either party of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of this Agreement.
- Severability. If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision in this Agreement and such invalid provision shall be deemed to be severed from this Agreement.
- Assignability. This Agreement and the rights and obligations thereunder with respect to Customer are personal to Customer and may not be assigned by any act of Customer without the prior written consent of Seller. Seller shall have the unfettered right to assign this Agreement or any of the rights granted to it hereunder, in whole or in part, without the prior consent of Customer and any of its rights so assigned shall inure to the benefit of the successors or assigns of Seller.
- Entire Agreement. This Agreement constitutes the entire agreement of the parties, and revokes and supersedes all prior agreements between the parties relating to the subject matter of this Agreement. This Agreement shall not be modified or amended except in writing signed by the parties hereto.
- Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of Singapore. The Parties agree to submit any dispute, controversy or claim arising out of or relating to this Agreement to the exclusive jurisdiction of the courts of Singapore.