IT IS HEREBY AGREED as follows:
This Master Subscription Agreement (“Agreement”) governs the Customer’s acquisition and use of Services (as defined below).
If the Customer is entering into this Agreement on behalf of a company or other legal entity, the Customer represents that the Customer has the authority to bind such entity and its Affiliates to these terms and conditions, in which case the term “Customer” shall refer to such entity and its Affiliates. If the Customer does not have such authority, or if the Customer does not agree with these terms and conditions, the Customer must not accept this Agreement and may not use the Services (as defined below).
The Customer may not access the Services (as defined below) if the Customer is a direct competitor of the Company, except with the Company’s prior written consent. In addition, the Customer may not access the Services (as defined below) for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
03 Use of the Services
04 Non-PeoplesHR Providers
05 Fees and Payment for Purchased Services
06 Proprietary Rights
08 Data Protection
09 Warranties and Disclaimers
11 Limitation of Liability
12 Term and Termination
13 Notices, Governing Law and Jurisdiction
"Affiliates" means any entities which directly or indirectly control, are controlled by, or are under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity;
"Applicable Laws" means all state, national and international laws, rules, regulations and standards including those imposed by any governmental or regulatory authority and all applicable industry standards and standards determined by any self-regulatory body in any jurisdiction which may apply from time to time to either party pursuant to this Agreement, including without limitation laws and regulations in any applicable jurisdiction relating to personal data, privacy and data protection, liability, confidentiality, intellectual property and warranties;
"Company" means PeoplesHR Pty Limited, (ABN-65162257632) a company incorporated in Australia with its registered address at Suite 444,Seabridge House,377 Kent St, Sydney NSW 2000,Australia and bearing registration number .
"Customer" means the company or legal entity for which this Agreement is accepted and Affiliates of that company or other legal entity;
"Customer Data" means all data or information of any kind whatsoever of the Customer or of any User(s), employees, directors, officers, advisors and agents of the Customer, which data or information is uploaded, stored, downloaded, filed, backed up, entered or otherwise entered or made accessible to the Company or to the Customer or to User(s) or to employees, directors, officers, advisors or agents of the Customer or to all or any one or more of such parties;
"Intellectual Property Rights" means all intellectual property of the Company and any Affiliates of the Company which is the property of the Company including (without limitation) all copyright (including rights in software), patents (including supplementary protection certificates), any materials, Works, prototypes, inventions, discoveries, techniques, computer programs, source codes, data, technical information, trading business brand names, goodwill, style or presentation of goods or services, creations, inventions (or improvement upon or addition to an invention), and research effort which is capable of protection by or of giving rise to letters patent, registered and unregistered trade and service marks, utility model and neighbouring rights registered and unregistered design rights, rights in databases, rights in and to domain names, all rights to bring an action for passing off, rights in know-how and trade secrets moral right and other intellectual property or similar proprietary right in any part of the world whether or not capable of registration and all rights to apply for protection in respect of any of the above rights and all other forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world and, in each case: (i) whether registered or not, (ii) including any applications to protect or register such rights, (iii) including all renewals and extensions of such rights or applications, (iv) whether vested, contingent or future, and (v) wherever existing;
"Losses" means all losses (direct and consequential), obligations, demands, proceedings, actions, claims, liabilities, costs, expenses (including legal expenses) and damages of any nature whatsoever and whether or not reasonably foreseeable or avoidable;
"Malicious Code" means viruses, worms, time bombs, Trojan horses and any other harmful or malicious codes, files, scripts, agents or programs;
"Non PeoplesHR Applications" means online applications and offline software products that are provided by entities or individuals other than the Company and that interoperate with the Services;
"Order Form(s)" means the documents for placing orders hereunder, including addenda thereto, that are entered into between the Customer and the Company or any of the Company's Affiliates from time to time, including addenda and supplements thereto; by entering into an Order Form(s) hereunder, every Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto and any Order Form(s) shall be deemed incorporated herein by reference;
"PeoplesHR Application" means the web based human resources software solution developed and owned by the Company located at http://www.peopleshr.com;
"Purchased Services" means Services that the Customer or the Customer's Affiliates purchase under an Order Form(s);
"Services" means the products and services that are ordered by the Customer under an Order Form(s) (including the PeoplesHR Application) and made available by the Company at http://www.peopleshr.com and/or as described in the User Guide, and "Services" exclude Non PeoplesHR Applications;
"Subscription Term" means the period for which the Customer has subscribed to the Purchased Services as specified in and pursuant to Order Form(s);
"User Guide" means the user guide for the Services, as updated from time to time;
"User(s)" means individuals identified as active employees by the Customer and who are authorised by the Customer to use the Services, and who have been supplied user identifications and passwords by the Company at the Customer's request; and
"Works" means all intellectual property in any part of the world whose origination or discovery the Customer is responsible for (either alone or jointly), in the course of acting as a customer of the Company and in connection with this Agreement which includes without limitation, patents (including supplementary protection certificates), any materials, works, prototypes, inventions, discoveries, techniques, computer programs, source codes, data, technical information, trading business brand names, goodwill, style or presentation of goods or services, creations, inventions (or improvement upon or addition to an invention), know-how and research effort which is capable of protection by or of giving rise to letters patent, registered and unregistered trade and service marks, utility model, copyright and neighbouring rights, design right, moral right, semi-conductor topography right, database right or other intellectual property or similar proprietary right in any part of the world whether or not capable of registration including applications and rights to apply for any of them and in each case rights of a similar or corresponding character and all applications and rights to apply for protection of any of the foregoing.
2.1 Provision of Purchased Services. The Company shall make the Purchased Services available to the Customer pursuant to this Agreement and the relevant Order Form(s) during the Subscription Term. The Customer agrees that the Customer's purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by the Company regarding future functionality or features.
2.2 User Subscriptions. Unless otherwise specified in the applicable Order Form(s), (i) Services are purchased as subscriptions for Users during the Subscription Term specified in the applicable Order Form(s), and (ii) irrespective of the addition of further Users during the Subscription Term, all Purchased Services subscribed to under an Order Form(s) shall terminate on the expiry of the Subscription Term specified in that Order Form(s).
2.3 The Company may at its sole and absolute discretion, at any time, for any reason, make any changes whatsoever to the Services, including without limitation, disable the Services (for the purpose of providing maintenance services or for the purposes of upgrading the Services or otherwise) or make any modifications (including, without limitation, to carry out up-grades or bug fixes) to the Service. By signing this Agreement the Customer agrees to accept any such changes contemplated by this Clause at any time.
03USE OF THE SERVICES
3.1 The Company's Responsibilities. The Company shall: (i) provide basic support for the Purchased Services to the Customer at no additional charge, (ii) use commercially reasonable efforts to make the Purchased Services available during the Customer's usual working hours subject to any unavailability caused by circumstances beyond the Company's reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving the Company's employees), internet service provider failures or delays, or denial of service attacks.
3.2 Protection by the Company of the Customer Data. The Company shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Customer Data. The Company shall not (a) modify the Customer Data, (b) disclose the Customer Data except as compelled by law in accordance with Section 7.4 (Compelled Disclosure) or as expressly permitted in writing by the Customer, or (c) access the Customer Data except to provide the Services and prevent or address service or technical problems, or at the Customer's request in connection with customer support matters.
3.3 The Customer's Responsibilities. The Customer shall (i) be responsible for User(s)' compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of the Customer Data and of the means by which the Customer acquired the Customer Data, (iii) use commercially reasonable efforts to prevent unauthorised access to or use of the Services, and notify the Company promptly of any such unauthorised access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. The Customer shall not (a) make the Services available to anyone other than User(s), (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorised access to the Services or their related systems or networks.
3.4 Usage Limitations. Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls the Customer is permitted to make against the Company's application programming interface, and, for Services that enable the Customer to provide public websites, on the number of page views by visitors to those websites. Any such limitations are specified in the User Guide. The Services provide real-time information to enable the Customer to monitor the Customer's compliance with such limitations.
04THIRD PARTY PROVIDERS
4.1 Acquisition of Third Party Products and Services. The Company or third parties may from time to time make available to the Customer third-party products or services, including but not limited to Non PeoplesHR Applications and implementation, customization and other consulting services. Any acquisition by the Customer of such third party products or services, and any exchange of data between the Customer and any third party provider, is solely between the Customer and the applicable third party provider. The Company does not warrant or support third party products or services including (without limitation) Non Peoples HR Applications whether or not they are designated by the Company as "certified" or otherwise, except as specified in an Order Form(s).
4.2 Non-PeoplesHR Applications and the Customer Data. If the Customer installs or enables Non-PeoplesHR Applications for use with Services, the Customer acknowledges that the Company may allow providers of those Non-PeoplesHR Applications to access the Customer Data as required for the interoperation of such Non-PeoplesHR Applications with the Services. The Company shall not be responsible for any disclosure, modification or deletion of the Customer Data resulting from any such access by third party providers. The Services shall allow the Customer to restrict such access by restricting User(s) from installing or enabling such Non-PeoplesHR Applications for use with the Services.
05FEES AND PAYMENT FOR PURCHASED SERVICES
5.1 Fees. The Customer shall pay all fees specified in all Order Form(s) hereunder. Except as otherwise specified herein or in an Order Form(s), (i) fees are based on services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the number of subscriptions purchased for User(s) and subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; (iv) further subscriptions for Purchased Services for additional User(s) may be added during a Subscription Term at the same pricing as that for the pre-existing subscriptions thereunder.
5.2 Invoicing and Payment. The Customer will provide the Company with valid and updated credit card information, or with a valid purchase order or alternative document acceptable to the Company. If the Customer provides credit card information to the Company, the Customer authorises the Company to charge such credit card for all Services listed in the Order Form(s) for the initial Subscription Term and any renewal Subscription Term(s) as set forth in Section 12.2 (Term of Purchased User Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form(s). If the Order Form(s) specifies that payment will be by a method other than a credit card, the Company will invoice the Customer in advance and otherwise in accordance with the relevant Order Form(s). Unless otherwise stated in the Order Form(s), invoiced charges are due net thirty (30) days from the invoice date. The Customer is responsible for providing complete and accurate billing and contact information to the Company and notifying the Company of any changes to such information.
5.3 Overdue Charges. If any charges are not received from the Customer by the due date, then at the Company's discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) the Company may condition future subscription renewals and Order Form(s) on payment terms shorter than those specified in Section 5.2 (Invoicing and Payment).
5.4 Suspension of Service and Acceleration. If any amount owing by the Customer under this or any other agreement for the Company's services is 30 or more days overdue (or 10 or more days overdue in the case of amounts the Customer has authorised the Company to charge to the Customer's credit card), the Company may, without limiting the Company's other rights and remedies, accelerate the Customer's unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend the Company's services to the Customer until such amounts are paid in full. The Company will give the Customer at least 7 days' prior notice that the Customer's account is overdue, in accordance with Section 13.2 (Manner of Giving Notice), before suspending services to the Customer.
5.5 Payment Disputes. The Company shall not exercise the Company's rights under Section 5.3 (Overdue Charges) or 5.4 (Suspension of Service and Acceleration) if the Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
5.6 Taxes. Unless otherwise stated, the Company's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). The Customer is responsible for paying all Taxes associated with the Customer's purchases hereunder. If the Company has the legal obligation to pay or collect Taxes for which the Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by the Customer, unless the Customer provides the Company with a valid tax exemption certificate authorised by the appropriate taxing authority. For clarity, the Company is solely responsible for taxes assessable against the Company based on the Company's income, property and employees.
6.1 Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, the Company reserves all rights, title and interest in and to the Services; neither the Customer nor any User(s), employees, directors, officers, advisors and agents of the Customer shall acquire in any way any title or rights of ownership in any Intellectual Property Rights; all such interests and rights are and shall remain the exclusive and absolute property of the Company; and no such rights are granted to the Customer or to any User(s), employees, directors, officers, advisors and agents of the Customer hereunder other than as expressly set forth herein.
6.2 Restrictions. Except to comply with this Agreement, the Customer shall not and the Customer shall procure that any User(s), employees, directors, officers, advisors and agents of the Customer shall not (i) use for the Customer's own purposes, nor acquire, nor seek to acquire by this Agreement or any activity under it, nor represent in any way that the Customer is entitled to any rights in or to any Intellectual Property Rights which, together with all goodwill attaching thereto (including without limitation any goodwill generated by the Customer's use of the Intellectual Property Rights under this Agreement), is and shall remain the Company's sole property, (ii) permit for any reason any third party to access the Services except as permitted herein or in an Order Form(s), (ii) create derivate works based on the Services except as authorised herein, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on the Customer's own intranets or otherwise for the Customer's own internal business purposes, (iv) reverse engineer the Services, (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services, (vi) use any of the Intellectual Property Rights without the Company's prior written consent, (vii) omit to do, or do or say anything or use the Intellectual Property Rights in a manner which is or might reasonably be expected to be prejudicial, harmful, defamatory or embarrassing to the Company's name, image, reputation, goodwill or business, and the Customer hereby indemnifies and shall keep the Company indemnified against any Losses arising out of any breach of these undertakings.
6.3 Keep Confidential. The Customer acknowledges and understands that the PeoplesHR Application contains confidential and proprietary information and the Customer shall: (i) not provide or otherwise make the PeoplesHR Application available for any reason to any other person except as permitted by this Agreement or otherwise in accordance with express written authority signed by the Company's authorised signatory;(ii)keep confidential the PeoplesHR Application and limit access to the PeoplesHR Application to the User(s); and (iii) ensure that all User(s) are advised that the PeoplesHR Application constitutes the Company's Confidential Information and that all Intellectual Property Rights are the Company's property and that they owe a duty of confidentiality to the Company.
6.4 Protection. The Customer shall, and shall ensure that all User(s), employees, directors, officers, advisors and agents of the Customer will take all necessary steps and abide by all instructions from the Company to ensure that the Intellectual Property Rights are protected. The Customer shall notify the Company if the Customer becomes aware of any use of the Intellectual Property which may infringe the Company's rights and shall take all steps required by the Company in respect of such use.
6.5 Indemnity. The Customer shall, and shall procure that all User(s), employees, directors, officers, advisors and agents of the Customer will at all times whether during or after termination of this Agreement indemnify and keep the Company indemnified from and against any and all Losses, incurred or suffered by them in relation to any infringement or unauthorised use by or on behalf of the Customer or by any User(s), employees, directors, officers, advisors and agents of the Customer of the Intellectual Property Rights and Works.
6.6 Works. (i) The Customer and any User(s) employees, directors, officers, advisors and agents of the Customer may make, conceive, develop and create Works while being allowed to access and use the PeoplesHR Application pursuant to this Agreement. The Customer shall disclose and shall procure that any User(s) employees, directors, officers, advisors and agents of the Customer disclose to the Company all such Works (together with any modifications, developments, enhancements or alterations thereto) immediately upon their creation or discovery. The Customer hereby assigns and shall procure that any User(s) employees, directors, officers, advisors and agents of the Customer assigns to the Company all present and future Works for the whole period during which such rights may subsist, including all extensions and renewals. (ii) The Customer shall and shall procure that any User(s) employees, directors, officers, advisors and agents of the Customer will if and whenever required by the Company (whether during this Agreement or after its expiry or termination) and at the Customer's expense: (a) apply or join with the Company (or its nominee) in applying for patent, registered design, trademark or other protection or registration in any part of the world for any Works; (b) execute all instruments and do all things necessary for vesting all the Works and all rights, title and interest in and to the same to the Company (or its nominee) absolutely and as sole beneficial owner; and (c) sign and execute all such documents and deeds and do all such things as the Company may reasonably require to protect, prosecute, maintain, defend and/or enforce any Works. (iii) the Customer hereby irrevocably and unconditionally waives all rights under any Applicable Laws relating to Intellectual Property Rights and any other moral rights or rights of a similar nature in or relating to the Works, in whatever part of the world such rights may be enforceable. (iv) the Customer shall procure that all User(s) and any User(s), employees, directors, officers, advisors and agents of the Customer shall do all things for the Company's benefit and is obliged to do pursuant to this Agreement, as if that person were a party to it.
6.7 The Customer's Applications and Code. If the Customer, a third party acting on the Customer's behalf, or any User(s) employees, directors, officers, advisors and agents of the Customer, creates applications or program code using the Services, the Customer authorises the Company to host, copy, transmit, display and adapt such applications and program code, solely as necessary for the Company to provide the Services in accordance with this Agreement.
6.8 Suggestions. The Company shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by the Customer, including User(s), relating to the operation of the Services.
7.1 Definition of Confidential Information. As used herein, "Confidential Information" means, without limitation (in written, verbal or electronic form), all and any information, documents, data and opinions of whatever nature disclosed by a party ("Disclosing Party") to the other ("Receiving Party") including without limitation any business plans, commercial, financial or proprietary material, pricing information, data, know-how, trade secrets, ideas, formulae, processes, operating methods and procedures, results, designs, drawings, photographs, models, diagrams, sketches, specifications, industrial and intellectual property, computer programmes or other software and any other information relating to the technology, business, finances, accounts, financial affairs, strategies, management, customers, commercial relationships and negotiations, marketing, suppliers, assets or properties of either party whether in written, electronic, pictorial, visual or oral form, magnetic, electronic, graphic or digitised format; or disclosed pursuant to discussions with any of the subsidiaries or Affiliates, officers, employees, agents, advisors or consultants of either party and whether or not marked or indicated as confidential and includes all analyses, compilations, notes, studies, plans, memoranda, records or other documents which contain or otherwise reflect such information, other than information specifically classified in writing as not being Confidential Information by either party.
7.2 Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorised by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or of any Order Form(s) to any third party other than to any Affiliates of either party and their legal counsel and accountants without the other party's prior written consent.
7.3 Not Apply. The above will not extend to information which: (i) was in the possession of the Receiving Party (with full right to disclose) before receiving it; (ii) is already or becomes public knowledge; (iii) is independently developed by the Receiving Party without access to or use of such information; or (iv) is required to be disclosed by law or regulatory authority.
7.4 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
7.5 Responsibility. Either party shall be and shall remain primarily and fully liable for any violation or breach of the provisions hereof, by any Affiliates, officer, director, subcontractor, agent, representative, advisors, director, officer and/or employee as if the party itself had disclosed the Confidential Information.
7.6 Return of Confidential Information. Immediately upon a party's request or forthwith at the termination of this Agreement, the other party shall either return (by such means as the party requesting may reasonably specify) or, if specifically directed by the party requesting, destroy all Confidential Information in its possession, power or control in a manner that assures the Confidential Information is rendered unrecoverable.
7.7 Breach. If either party becomes aware of a breach of any of the provisions of this Clause 7, it shall promptly inform the other party about such breach and consult with the other party about the remediation options available.
7.8 Indemnity. The Customer shall, and shall procure that all User(s) will indemnify and shall keep the Company indemnified against any Losses suffered or incurred by the Company arising out of any breach of this Clause 7 by the Customer or any User(s).
7.9 Continuity. The restrictions contained in this Clause 7 shall continue to apply to the Customer without limit in time.
8.1 For the purposes of Applicable Laws, the Customer consents and shall procure the consent of all User(s) whose data is uploaded pursuant to the Purchased Services (including the PeoplesHR Application), to the Customer accessing and processing their personal data for the purposes of this Agreement and to the processing of such personal data in Sri Lanka, Singapore, Hong Kong or in any other location determined by the Company acting in the Company's sole discretion.
8.2 The Company shall: (a) take all reasonable steps to prevent the personal data of either the Customer or of any User(s) that the Company processes from being disclosed to or accessed by any unauthorised person; (b) comply with the Applicable Laws when processing any of the Customer's personal data and personal data of any User(s).
8.3 The Customer shall, and shall procure that all User(s) shall at all times whether during or after termination of this Agreement indemnify and keep the Company indemnified from and against any and all Losses, incurred or suffered by the Company in relation to any breach or unauthorised use by or on behalf of the Customer or User(s) of the Company's Confidential Information.
09WARRANTIES AND DISCLAIMERS
9.1 The Company's Warranties. The Company warrants that (i) the Company has validly entered into this Agreement and has the legal power to do so, (ii) the Services shall perform materially in accordance with the User Guide, (iii) the functionality of the Services will not be materially decreased during a Subscription Term, and (iv) the Company will not intentionally transmit any Malicious Code to the Customer, provided it is not a breach of this subpart (v) if the Customer or a User uploads a file containing Malicious Code into the Services and later downloads that file containing Malicious Code. For any breach of a warranty above, the Customer's exclusive remedy shall be as provided in Section 12.3 (Termination for Cause) and Section 12.5 (Refund or Payment upon Termination) below.
9.2 The Customer's Warranties. The Customer warrants that the Customer has validly entered into this Agreement and has the legal power to do so.
9.3 Exclusion of Warranties. (i) the Customer expressly acknowledges and agrees that the use of the PeoplesHR Application is at the Customer's sole risk and the entire risk as to satisfactory quality, performance, accuracy and effort is with the Customer; (ii) to the maximum extent permitted by law, the PeoplesHR Application is provided "as is", and without warranty of any kind and the Company does not warrant that the functions contained in the PeoplesHR Application will meet the Customer's specific requirements; (iii) the Company hereby disclaims all warranties and conditions with respect to the PeoplesHR Application, either express, implied or statutory, including, but not limited to, the implied warranties and/or conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, of accuracy, of quiet enjoyment and non-infringement of third party rights; (iv) the Company does not warrant that the operations of the PeoplesHR Application will be uninterrupted or error-free or that there will be no delays, failures, errors or omissions or loss of transmitted information, that no viruses or other contaminating or destructive properties will be transmitted or that no damage will occur to the Customer's computer system; (v) the Company does not accept responsibility for updating information and material contained in the PeoplesHR Application and therefore it should not be assumed that the information contained will necessarily be accurate, complete or up-to-date at any point in time; (vi) the Customer has the sole responsibility for adequate protection of its data and/or equipment and for undertaking reasonable and appropriate precautions to scan the Customer's systems for computer viruses or other destructive properties; and (vii) no oral or written information or advice given by the Company or the Company's authorised representatives shall create a warranty.
10.1 Indemnification by the Company. The Company shall defend the Customer against any claim, demand, suit, or proceeding made or brought against the Customer by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a "Claim Against the Customer"), and shall indemnify the Customer for any Losses finally awarded against the Customer including any Losses arising as a result of, and for amounts paid by the Customer under a court-approved settlement of, a Claim Against the Customer; provided that the Customer (a) promptly gives the Company written notice of the Claim Against the Customer; (b) gives the Company sole control of the defence and settlement of the Claim Against the Customer (provided that the Company may not settle any Claim Against the Customer unless the settlement unconditionally releases the Customer of all liability); and (c) provide to the Company all reasonable assistance, at the Company's expense.
10.2 Indemnification by the Customer. The Customer shall defend the Company against any claim, demand, suit or proceeding made or brought against the Company by a third party alleging that the Customer Data, or the Customer's use of the Services is in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates Applicable Law (a "Claim Against the Company"), and shall indemnify the Company for any Losses incurred by the Company including any Losses arising as a result of, or for any amounts paid by the Company under a court-approved settlement of, a Claim Against the Company; provided that the Company (a) promptly gives the Customer written notice of the Claim Against the Company; (b) gives the Customer sole control of the defence and settlement of the Claim Against the Company (provided that the Customer may not settle any Claim Against the Company unless the settlement unconditionally releases the Company of all liability); and (c) provides to the Customer all reasonable assistance, at the Customer's expense.
10.3 Exclusive Remedy. This Section 10 (Mutual Indemnification) states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of claim described in this Section.
11LIMITATION OF LIABILITY
11.1 Exclusion of liability. Subject to Clause 10 above the Company shall be under no liability whatsoever to the Customer or to any User and hereby excludes all liability to the Customer, User(s) and the employees, directors, officers, advisors and agents of the Customer and any third party for any Losses arising to the Customer, User(s)and the employees, directors, officers, advisors and agents of the Customer or any third party in connection with this Agreement and the PeoplesHR Application. Nothing in this Agreement shall exclude or limit the Company's liability in respect of any obligation of which any exclusion is prohibited by a mandatory provision of any Applicable Laws.
11.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL THE COMPANY HAVE ANY LIABILITY TO THE CUSTOMER, USER(S) OR TO ANY EMPLOYEES, DIRECTORS, OFFICERS, ADVISORS OR AGENTS OF THE CUSTOMER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12TERM AND TERMINATION
12.1 Term of Agreement
12.2 Term of Purchased User Subscriptions. User Subscriptions purchased by the Customer commence on the start date specified in the applicable Order Form(s) and continue for the Subscription Term specified therein. Except as otherwise specified in the applicable Order Form(s), all subscriptions for User(s) shall automatically renew for additional periods equal to the expiring Subscription Term . Initially the Customer shall agree with the Company for User Subscription for a period of three(03) years. if the Customer wishes to terminate prior to expiry of a minimum period of two (02) years from and out of the agreed three (03) year period , the customer shall pay to the company the pro-rata portion of the two year Subscription agreed upon. , unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant Subscription Term. The per-unit pricing during any such renewal Subscription Term shall be the same as that during the prior Subscription Term unless the Company has given the Customer written notice of a pricing increase at least 60 days before the end of such prior Subscription Term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 10% of the pricing for the relevant Services in the immediately prior Subscription Term, unless the pricing in such prior Subscription Term was designated in the relevant Order Form(s) as promotional or one-time.
12.3 Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.4 Termination at Will. Either party may terminate this Agreement with three (03) months' prior written notice to the other.
12.5 Refund or Payment upon Termination. Upon any termination for cause by the Customer, the Company shall refund the Customer any prepaid fees covering the remainder of the Subscription Term of all subscriptions after the effective date of termination. Upon any termination for cause by the Company, the Customer shall pay any unpaid fees covering the remainder of the Subscription Term of all Order Form(s) after the effective date of termination. In no event shall any termination relieve the Customer of the obligation to pay any fees payable to the Company for the period prior to the effective date of termination.
12.6 Return of the Customer Data. Upon request by the Customer made within 30 days after the effective date of termination of a subscription for Purchased Services, the Company will make available to the Customer for download a file of the Customer Data. After such 30-day period, the Company shall have no obligation to maintain or provide any of the Customer Data and shall thereafter, unless legally prohibited, delete all of the Customer Data in the Company's systems or otherwise in the Company's possession or under the Company's control.
12.7 Surviving Provisions. Clauses 5 (Fees and Payment for Purchased Services), 6 (Proprietary Rights), 7 (Confidentiality), 8 (Data Protection), 9.3 (Exclusion of Warranties), 10 (Indemnification), 11 (Limitation of Liability), 12.5 (Refund or Payment upon Termination), 12.6 (Return of the Customer Data), 13 (Notices, Governing Law and Jurisdiction) and 14 (General Provisions) shall survive any termination or expiration of this Agreement.
13NOTICES, GOVERNING LAW AND JURISDICTION
13.1 General. All notices may be sent to a party either at its address, e-mail address or facsimile number and for the attention of the individual set out below:
To the Company:
Address: 7500A, Beach Road, #11-320,The Plaza, Singapore 199591, Singapore
13.2 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the fifth business day after courier, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to the Customer shall be addressed to the relevant billing contact designated by the Customer in the relevant Order Form(s). All other notices to the Customer shall be addressed to the relevant Services system administrator designated by the Customer.
13.3 Agreement to Governing Law and Jurisdiction. This Agreement shall be governed and construed in accordance with the laws of Singapore and the Parties irrevocably submit to the exclusive jurisdiction of the courts of Singapore in respect of any matter, claim or dispute arising under, out of or in connection with this Agreement (including as to its validity) or the legal relationships established by this Agreement.
14.2 Relationship of the Parties.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.3 No Third-Party Beneficiaries.
No third party shall have any right, claim or benefit of any nature whatsoever pursuant to this Agreement under any Applicable Laws.
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
14.6 Attorney Fees
The Customer shall pay on demand all of the Company's reasonable attorney fees and other costs incurred by the Company to collect any fees or charges due to the Company under this Agreement following the Customer's breach of Section 5.2 (Invoicing and Payment).
The Customer may assign or sub-license any of the Customer's rights or obligations hereunder, whether by operation of law or otherwise with the Company's prior written consent. The Company may assign this Agreement in its entirety (including all Order Form(s)), without the Customer's consent, to any third party.
This Agreement may be executed in counterparts and by the parties on separate counterparts. Each counterpart shall constitute an original of this Agreement but together the counterparts shall constitute one document.
14.9 Entire Agreement
This Agreement, including all exhibits and addenda hereto and the Order Form(s), constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form(s), the terms of this Agreement shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in any of the Customer's order documentation (excluding Order Form(s)) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.