Master Service Agreement
Last Updated: 18th August 2022
This Master Service Agreement is effective as of 18 August 2022 (the “Agreement”).
This Agreement is made between the person or company, enterprise or other legal entity you represent (“Customer”, “You”, “Your”) and M800 Limited (“M800”) or its affiliates/ related companies (including without limitation, Cinnox Limited, Cinnox Asia Pacific Pte. Limited and 台灣資信股份有限公司) (“We”, “Our”, “Us”), each referred to as a “Party” and collectively, as “Parties”, in connection with a subscription to the Services (as defined below). This Agreement constitutes a binding contract and governs the access, use and subscription of the Services by You, Your Staff, and End-Users
THIS AGREEMENT CONSTITUTES A BINDING CONTRACT ON YOU AND GOVERNS THE USE OF AND ACCESS TO THE SERVICES BY YOU, YOUR AGENTS AND END-USERS WHETHER IN CONNECTION WITH A PAID OR FREE TRIAL SUBSCRIPTION TO THE SERVICES. PLEASE READ THIS AGREEMENT CAREFULLY IF YOU WISH TO BECOME A CUSTOMER AND BEFORE ACCESSING AND USING THE SERVICES. IF YOU DO NOT AGREE WITH THIS AGREEMENT OR IF YOU DO NOT HAVE FULL LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT, YOU MUST NOT CLICK THE “AGREE AND CREATE ACCOUNT” BUTTON AND YOU SHOULD NOT ACCESS AND USE THE SERVICES.
The terms of this Agreement may be modified or amended from time to time by Us publishing the latest version of this Agreement on the CINNOX Website at www.cinnox.com (the “CINNOX Website”) without giving advance notice to You. Unless stated herein otherwise, You are responsible to check for changes or updates to the terms of this Agreement whenever You visit the CINNOX Website or log into Your Account. Your continued access to and use of the Services following the publishing of changes or updates to the terms constitutes Your acceptance of any changes. If You do not agree to the changes or updates to the terms of this Agreement, You should stop using the Services immediately.
By acceptance of this Agreement or through your access or use of the Services, You are bound by and subject to the following terms and conditions under this Agreement.
Table of Contents
- Access to the Services
- Use of the Services
- Free Trials
- Term, Suspension and Termination
- Service Plan Modifications
- Payment, Billing and Tax
- Confidential Information
- Ownership and Security of Service Data
- Privacy and Personal Data Protection
- Intellectual Property Rights
- Publicity and Marketing
- Representations, Warranties and Disclaimers
- Limitation of Liability
- Third Party Services
- Assignment, Entire Agreement and Amendment
- Severability and Waiver
- Export Compliance and Use Restrictions
- Relationship of the Parties and Third Party Rights
- Governing Law and Dispute Resolution
- Ethical Conduct and Compliance
General Terms and Conditions
In addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the meanings set forth below: -
Affiliates: means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
Activation Date: means the date when You are first provided with a link to activate Your CINNOX Account for access and use of the Services to which you have subscribed to.
API: means the application programming interfaces developed and enabled by Us that permits You to access certain functionality provided by the Services, including without limitation, the application programming interface that enables the interaction with the Services.
Applicable Law: means laws, regulations, binding code of practice, rules, guidelines, or requirements of any government or governmental agency, professional or regulatory authority, each as relevant to the Parties in the provision and/or receipt of the Services or the carrying out of its business.
Code: means object code, a machine language or a programming language which can be understood directly by a specific type of central processing unit, generated from source code by an assembler or compiler.
Confidential Information: means all non-public information of any nature whatsoever disclosed by one Party, directly or indirectly, in writing or orally to the other Party in relation this Agreement or received from any third party before on or after Your acceptance of this Agreement, including but not limited to (i) API, Code, information relating to the architecture or security of the telecommunication or IP network software, Service Data, documents, equipment, designs, drawings, schematics, algorithms, specifications, techniques, models, technical data, source code, object code, research, processes, business plans or opportunities, marketing plans, business strategies, customer data, projects or products under consideration and financial information, information concerning the operation, business, financial affairs, products, any related know how, show how, trade secrets, discoveries, ideas, inventions or concepts; and (ii) Any information, findings, data or analysis derived from the Confidential Information.
Documentation: means all the documentations, manuals, guides, videos, text, sounds and images that specify the features and functionality of the Services and describe the Service Plans, provided by Us to You on the CINNOX Website.
End-User: means a Person using and subscribing the Service, or who is contracted or referred by You, any of Your Staff or Customer to use or access the Services.
Force Majeure Event: means any circumstance beyond a Party's reasonable control including, without limitation, any act of war, act of God or nature, earthquake, hurricanes, typhoons, flood, fire and other similar natural disaster, embargo or breaking off of diplomatic relations, riot, terrorism, civil war, threat of or preparation of war, armed conflict, imposition of sanctions, sabotage, strike or labour difficulty, industrial action or lockout, unforeseen governmental act, law, or regulation, insurrections, terrorism, epidemic or pandemic, quarantine, failure of power, failure of the Internet, supplier or other third party due to any of the foregoing, failure to procure materials or transportation facilities due to any of the foregoing, nuclear, chemical or biological contamination, or such other acts or occurrences similar in nature to the foregoing and not resulting from the actions or inactions of such Party.
Governmental Authority: means any governmental or quasi-governmental body, whether foreign or domestic, including but not limited to any department, agency, commission, bureau, or other administrative, taxation or regulatory bodies, courts, public utilities and communication authorities.
Intellectual Property Rights: means (i) all rights in, and in relation to, any patents, registered designs, design rights, trademarks, trade and business names (including goodwill associated with any trademarks or trade and business names), rights to inventions, copyright and neighboring or related rights, moral rights, databases rights, domain names, topography rights and utility models, whether registered, registrable or otherwise, and including registrations, applications and pending applications for, and renewals or extensions of such rights, and similar or equivalent rights or forms or protection in any part of the world; (ii) rights in the nature of unfair competition rights and to sue for passing off and for past infringement; (iii) trade secrets, confidentiality and other proprietary rights, including rights to know how and other technical information; and (iv) computer programs, databases, compilations and data, that result from, relate to, or arise out of the Services.
Order Form: means Our service order form making reference to this Agreement executed or approved by You and Us with regard to Your subscription to the Services, particulars of which may include, among other things, the Subscription Term, any Supplemental Terms, the number of Staff to a Service under Your subscription and the Service Plan applicable to Your subscription.
Person: means any individual, company, limited liability company, corporation, trust, estate, association, nominee or other entity.
Personal Data: means any information relating to an identified or identifiable natural person. An identifiable natural person is a person who is identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, psychological, genetic, mental, economic, cultural or social identity of that natural person, including but not limited to originating and destination numbers, date, time and duration of voice or data transmissions, billing and maintenance of the transmission and others alike containing personal and/or private information of Your officers, contractors, employees, authorized users, such as End-Users, of the Services provided by You as the data controller or any third party engaged by You for the purpose of rendering the Services pursuant to this Agreement.
Planned Downtime: means planned downtime for upgrades and maintenance to the Services scheduled in advance of such upgrades and maintenance.
SDK: means Software Developer Kit that refers to a set of tools and related instructions that enables developers to both build and add features to a program on a particular platform.
Service Data: means electronic data, text, messages, communications or other materials submitted to and stored within a Service by You, Your Staff and End-Users in connection with Your use of such Service, including but without limitation, Personal Data.
Service Plan(s): means the packaged service plan(s) describing the services, features and functionality for the Services published on the CINNOX Website from time to time.
Staff: means an individual appointed and authorized by You to access and use the CINNOX web Dashboard and/or mobile application.
Subscription Charges: means all charges associated with Your Account.
Subscription Term: means the period during which You have agreed to subscribe to a Service.
Supplemental Terms: means supplemental terms and conditions that are in addition to the General Terms and Conditions, and/or other policies applicable to use of the Services, which are announced by Us, included in any Order Forms, or published on the CINNOX Website from time to time.
2. Access to the Services
2.1 Services. We will make available to You the CINNOX services online in the form of a cloud-based end-to-end convergent communications platform. You may subscribe or purchase Your Service Plan(s) online and access and use such services via the applicable web dashboard and/or mobile application designated by Us under this Agreement (the “Service(s)”). “Service(s)” excludes (i) Third Party Services as specified under Clause 16 in this Agreement; and (ii) any additional features or services that are not provided under this Agreement or under Your Service Plan. Subject to this Agreement and/or the applicable Order Form(s), We will use commercially reasonable efforts to make the Services available to You 24 hours a day, 7 days a week, in accordance with the Service Plan that You choose, except during any (a) Planned Downtime (of which We will give advance notice via the CINNOX Website or web dashboard); or (b) Force Majeure Event.
2.2 Additional Services. You may subscribe or activate additional features (e.g. International Direct Dialing (“IDD”), Short Message Service (“SMS’') and Toll Free (“TF”)) from within your CINNOX Account. This Agreement applies to all additional features which you subscribe to or activate from within your CINNOX Account.
2.3 Support. We will provide standard customer support from Our dedicated Network Operations Center (the “NOC”) to You.
2.4 Modifications. We may make any changes to the features and functionality of the Services during Your Subscription Term, or in the operation of the CINNOX platform and its related facilities, including but not limited to Our infrastructure, used in providing the Services that We determine in its sole discretion to be necessary and/or desirable, including without limitation change in hardware, systems and/or applications software, programming languages, data communications, location of systems and service equipment, the company identification procedures and the type of terminal equipment. In the event of any such changes that, in Our reasonable determination, would materially change the operation of the CINNOX platform, We will use commercially reasonable efforts to notify You in writing of such changes and You shall be responsible to ensure Your infrastructure remains compatible. We reserve the right to charge You for any additional integration efforts necessary to make customizations compatible with future versions/releases of the CINNOX platform and/or Our infrastructure.
3. Use of the Services
3.1 Account Management. Subject to Your acceptance of this Agreement, We will grant You a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Services via a CINNOX web dashboard and/or mobile application during the Subscription Term (the “Account”). You shall not allow any third party to copy, distribute, sell, disclose, lend, transfer, convey, modify, decompile, disassemble or reverse engineer the CINNOX web dashboard and/or mobile application for any other purpose other than expressly permitted under this Agreement. You shall not allow any unauthorized third party to access Your Account for any purpose other than expressly permitted under this Agreement. Subject to the Service Plan You subscribed to, Your access and use of the Service is restricted to the number of individual Staff specified and permitted under Your Service Plan. You acknowledge and agree that each Staff shall use a unique login identifier, such as an email address and password (“Staff Login”), and that a Staff Login cannot be shared and used by more than one designated individual Staff. The rights granted to You to access and use the Services under this Agreement do not transfer any additional rights in the Services or in any Intellectual Property Rights of Ours associated therewith.
3.2 Compliance. You are responsible for compliance with the provisions of this Agreement by Your agents, contractors and End-Users in respect of any and all activities that occur under Your Account, which We may verify from time to time. Without limiting the foregoing, You will ensure that Your use of the Services is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations You may maintain or enter into with agents or End-Users.
3.3 Security of Service Data. Without prejudice to Our obligations under Clause 8 and Clause 10 of this Agreement, You are solely responsible for the confidentiality of any Service Data and Your Staff Login at Your end. You shall not share Your Account or particulars of Your Account with any third parties. Without limiting the foregoing, You are solely responsible for ensuring that Your use of the Services to store and transmit Service Data is compliant with all Applicable Law. You are also solely responsible for determining whether the Services or the information generated thereby is accurate or sufficient for Your purposes.
3.4 Content and Conduct. In Your use of the Services You agree not to (a) modify, adapt, or hack the Services or otherwise attempt to gain unauthorized access to the Services or related systems or networks; (b) attempt to bypass or break any security or rate limiting mechanism on any of the Services or use the Services in any manner that interferes with or disrupts the integrity, security or performance of the Services and its components; or (c) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Services.
3.5 No Competitive Access. You may not access the Services if You are a direct competitor of Us, except with Our express prior written consent. You may not access the Services for competitive purposes.
4. Free Trials
4.1 If You subscribe to free trial Service under the Digital Commerce Plan, We will make such trial Service available to You free of charge for a trial period of 14 days, which will include the display of Our Build-in Advertisements on Your applicable CINNOX web widget, CINNOX web dashboard, mobile application and/or other CINNOX application when You access and use of such free trial Service. The free trial Service will be automatically suspended after the said trial period, and you may upgrade or subscribe to any paid Service Plan within 90 days after the conclusion of the free trial period. If you do not subscribe to any paid Service Plan within the prescribed 90 days your Account and all of your Service Data therein will be permanently deleted.
4.2 You shall not conceal, disable or remove Our Build-in Advertisement whenever You access Your Account and use such free trial Service. “Our Build-in Advertisement” means any and all advertisements built-in to the Services under this Agreement, which take the form of advertisement banners, videos, texts, images or hyperlinks of “Powered by CINNOX”, or any other material displayed for the purpose of promoting Our products and services.
4.3 We shall ensure that any description relating to Our products and/or services in the Our Build-in Advertisement is true and accurate.
4.4 We may, at its sole discretion, terminate and cease to provide the free trial Service in its entirety, without liability. Upon the termination of this free trial, Your Account will be closed and cancelled to the effect that You will not have access to your Service Data or be able to use the Services under this Agreement.
5. Term, Suspension and Termination
5.1 Term and Renewal
Your subscription to any Service will automatically renew after the Subscription Term being expired, unless Your Account and subscription to any Service is terminated pursuant to Clause 5.2 of this Agreement, or unless otherwise specified in an Order Form.
If You subscribe to a Service Plan that requires You to commit to a minimum subscription period (the “Subscription Commitment”), You acknowledge and agree not to terminate such Services, or Service Plan, or to cancel Your Account at any time under Clause 5.2.1 during the period of Subscription Commitment.
5.2 Suspension and Termination
5.2.1 Termination without Cause
Either Party may terminate Your Account and subscription to the paid Service Plan prior to the expiration of Your then current Subscription Term at any time, by providing no less than thirty (30) days’ advance written notice to the other Party. Notwithstanding the foregoing, You shall pay any then unpaid Subscription Charges covering the reminder of such Subscription Term to Us within thirty (30) days from the date of termination.
5.2.2 Termination for Cause
18.104.22.168 Without prejudice to Clause 5.2.1, a Party may terminate this Agreement and cancel Your Account (i) upon written notice to the other Party of a material breach of this Agreement and such breach remains uncured for thirty (30) days after receipt of a written notice of breach from the other Party; or (ii) any bankruptcy, insolvency, administration, liquidation, receivership or winding up proceeding is commenced in respect of either Party.
22.214.171.124 We shall have the right to suspend the Services and/or terminate this Agreement with immediate effect, without liability, in the event that:-
(a) You fail to make any payment of the Subscription Charges or any Overdue Amount which has become due and payable under this Agreement;
(b) You, Your Staff or any End-User have violated any Applicable Law in the performance of Your rights and obligations under this Agreement, or by accepting or using the Services;
(c) You, Your Staff or any End-User have caused or may cause, in Our sole reasonable judgment, damage to Our facilities, network, infrastructure, or facilities, network or infrastructure of Our third party suppliers;
(d) We need to carry out any Planned Downtime or emergency work to the network, infrastructure or equipment in association with or necessary for the provision of the Services under this Agreement; or
(e) We receive any notification or instruction from any of its third party suppliers to suspend or terminate the provision of any of their services.
5.3 Effect of Suspension and Termination
Except where the suspension or termination of Your Service is initiated by Us under Clauses 5.2.1, 126.96.36.199(d) or 188.8.131.52(e), You shall pay any then unpaid Subscription Charges covering the remainder of such Subscription Term. Save as expressly set out in this Agreement, in no event will termination relieve You from Your obligation to pay any amounts owed to Us up to and including the date of termination.
6. Service Plan Modifications
6.1 Upgrade. You may upgrade Your Service Plan at any time during Your Subscription Term. If You choose to upgrade, the new Subscription Charges become effective immediately and the new Subscription Charges for the remainder of Your then current Subscription Term will be charged on a prorated basis. The new Subscription Charges will be reflected in the subsequent Subscription Term.
6.2 Downgrade. You may not downgrade Your Service Plan during Your Subscription Term. If You choose to downgrade Your Service Plan for a subsequent Subscription Term, You shall give Us thirty (30) days’ advance written notice prior to the expiration of Your then current Subscription Term. Downgrading Your Service Plan may cause loss of content, features, functionality or capacity of the Service as available to You under Your Account, and We will not be liable for any such loss incurred.
7. Payment, Billing and Tax
7.1.1 Unless otherwise specified in the Supplemental Terms or an applicable Order Form, all Subscription Charges for the Services generally consist of : (i) monthly recurring charges which will be charged based on the Service Plan You have chosen (the “Subscription Fee”); (ii) usage fees which will be charged on a pay-as-you-go basis in respect of the actual usage of Voice over internet protocol (“VoIP”), International Direct Dialing (“IDD”), Direct Inward Dialing (“DID”), Short Message Service (“SMS”) and Toll Free (“TF") services; and/or one-time fees to set up VoIP, IDD, SMS and TF services; and/or other fees for additional features and functionality that You enable within the Services (Collectively, the “Usage Charges”).
7.1.2 During Your Subscription Term, We will commence charging You for the Services on the Activation Date and You shall pay all the Subscription Charges due monthly in arrears. The Subscription Charges for a partial Subscription Term will be prorated on a monthly basis.
7.1.3 Unless otherwise specified in an Order Form, all Subscription Charges, other charges and any fees shall be invoiced and paid in US Dollars.
7.2 Payment and Billing
7.2.1 Payment against Invoice. You shall pay an invoice in full within thirty (30) days from the date of the invoice (the “Payment Due Date”) to the bank account as designated by Us.
7.2.2 Payment by Credit Card. You can also pay any Subscription Fee, Usage Fee or any other fees incurred during the Subscription Term by credit card. Should You choose to do so, You hereby authorize us to charge your credit card and our payment agent to process the payment for the above mentioned fees in advance on a periodic basis in accordance with the terms of the subscribed Service Plan and any applicable additional features you may have subscribed to.
7.2.3 You shall pay Us interest on any amount due but not paid on or before the Payment Due Date (the “Overdue Amount”). The rate of interest shall be two (2) percent (%) per month. Such interest shall be paid in US Dollars and shall accrue from the date after the Payment Due Date up to and including the date of actual full payment of the Overdue Amount is made.
7.2.4 In the event that You in good faith dispute any portion of an invoiced amount, You shall pay the undisputed portion of the invoice and submit a written claim for the disputed amount, together with all supporting documents relevant to the dispute and the Parties shall thereafter arrange discussions in good faith and settle the dispute on the discrepancy as soon as it is practicable. All disputes must be submitted to Us within fifteen (15) days of receipt of the first invoice related to the disputed amount. You acknowledge that the time limit of fifteen (15) days is reasonable, and You therefore waive the right to dispute any invoiced amount not submitted to Us within the said time limit.
7.2.5 You shall pay all applicable Subscription Charges and/or any other charges and fees incurred in relation to the Services, whether incurred by You, Your Staff, End-Users or any other third parties, even if such were incurred in or as a result of fraudulent or unauthorized use of the Services.
7.2.6 All payment obligations under this Agreement shall be fulfilled solely by You by transferring funds directly to Our designated bank account or such other method of payment as otherwise determined by Us from time to time.
7.3.1 All Subscription Charges or other charges and fees are exclusive of (i) any bank fees charged by both Parties’ bank or any intermediary banks between Your bank and Our bank; or (ii) any withholding or similar tax; or (iii) any VAT, GST, consumption, sales, use, excise, access, bypass, franchise, regulatory fees or other like taxes, fees, charges, surcharges, whether or not thereafter enacted, however designated, imposed on or based on the provision, sale, use of the Services (the “Taxes”).
7.3.2 Except for Our net income taxes, You will be responsible for payment of all applicable Taxes. We may invoice You and You shall reimburse Us, for any regulatory fees, assessments, contributions charged to Us by any Governmental Authority in connection with the Services. To the extent the Customer is or believes it is exempted from payment of certain Taxes, it shall provide to Us a copy of a valid exemption certificate. In the event Your exemption certificate is or becomes invalid during the Agreement Term, and if We are held responsible for payment of any additional Taxes, penalties or late charges, You shall be responsible for all such amounts and shall reimburse Us on an indemnity basis in accordance with this Clause 7.3.2.
8. Confidential Information
8.1 Each Party acknowledges and agrees that by reason of its relationship to the other Party to this Agreement it will have access to and acquire knowledge from the other Party’s Confidential Information. The Parties to this Agreement further acknowledge and agree, for the purpose of this Clause 8, Confidential Information shall be deemed to include all Parties’ Intellectual Property Rights.
8.2 The Parties agree that Confidential Information shall remain the sole and exclusive property of the disclosing party (the "Disclosing Party"), and the receiving party (the "Receiving Party") agrees to maintain the Confidential Information in strict confidence and to use Confidential Information solely for the purpose set forth in this Agreement.
8.3 The Parties warrant to each other: (i) that it will maintain and preserve the confidentiality of all Confidential Information, including but without limitation, taking such steps to protect and preserve the confidentiality of the Confidential Information as it takes to preserve and protect the confidentiality of its own Confidential Information; (ii) that it will disclose such Confidential Information only to its employees and designated personnel on a "need-to-know" basis only, and subject such recipients to obligations which are at least as stringent as those contained in this Clause 8; (iii) that it will not disassemble, "reverse engineer", "reverse compile" or analyze the inputs and outputs of any software or hardware provided under this Agreement for any purpose, including but not limited to, attempting to ascertain or deduce the functionality or workings of the SDK; and (iv) that it will not disclose such Confidential Information to any third party without the express written consent of the Disclosing Party, provided however, that the Receiving Party may disclose the financial terms of this Agreement to its legal and business advisors and to potential investors, so long as such third parties have entered into a confidentiality agreement with the Receiving Party, the obligations of which are at least as stringent as those contained in this Clause 8.
8.4 Confidential Information shall exclude any information that (i) has been or is obtained by the Receiving Party from a source independent of the Disclosing Party and the source has not received such information under any obligation of confidence; (ii) is or becomes generally available to the public other than as a result of an unauthorized disclosure by the Receiving Party; (iii) is independently developed by the Receiving Party without reliance in any way on the Confidential Information provided by the Disclosing Party; (iv) the Receiving Party is required to disclose under judicial order, regulatory requirement, or statutory requirement, provided that the Receiving Party provides written notice and an opportunity for the Disclosing Party to take any available protective action prior to such disclosure; or (v) is owned by the Receiving Party independent of the Disclosing Party.
8.5 After the termination of this Agreement, the Receiving Party shall continue to keep such Confidential Information in confidence and use the Confidential Information only for the purposes permitted under this Agreement.
8.6 Upon the request of the Disclosing Party, the Receiving Party shall return or destroy any Confidential Information on termination of this Agreement.
8.7 The Receiving Party acknowledges that a violation of this Clause 8 may cause irreparable harm to the Disclosing Party, for which monetary damages would be inadequate and injunctive relief may be available for a breach of this Clause 8.
9. Ownership and Security of Service Data
9.1 You, Your agents or End-Users shall retain ownership rights to all Service Data processed, provided, or stored under your Account under the terms of this Agreement.
9.2 We will never sell, rent, or lease Your Service Data to any third party. We will not share Your Service Data with third parties, except as permitted by this Agreement and in order to provide, secure, and improve the Services.
9.3 We will maintain commercially reasonable and appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Service Data.
10. Privacy and Personal Data Protection
10.2 You further acknowledge and agree that in order for Us to provide the Services, Personal Data may be transferred to jurisdictions/counties outside the contracting jurisdiction. You warrant to Us that You shall obtain the necessary consents from relevant authorities, Your End-Users or Your Staff for such transfer of Personal Data. Each Party represents and warrants to the other Party that it shall comply with its obligations under the relevant Applicable Law, in particular, the PDPO, and any rules and regulations in the applicable jurisdiction in connection with the Services under this Agreement. You further represent and warrant to Us that You shall provide proper notices to, and obtain necessary consents from, Your End-Users and/or Your Staff about how their Personal Data may be used, stored, transferred, processed and disclosed.
10.3 The Parties agree to be bound by any Applicable Law in relation to privacy, data protection and Personal Data protection, including but not limited to the Personal Data (Privacy) Ordinance (“PDPO”), and any applicable international data protection legislation with respect to performing the Services, such as the General Data Protection Regulation in the European Union, if applicable. The Parties shall ensure that any of its own personnel do not do or omit to do, anything which would cause either Party to breach or contravene, or become liable for any fines, penalties, liabilities or other amounts in accordance with the Applicable Law, in particular, the PDPO. In the event either Party becomes aware that it or any of its personnel is processing or has processed the Personal Data in contravention of this Clause 10 in connection with the Services. That Party shall promptly notify and give full details to the other Party of such data breach and contravention.
11. Intellectual Property Rights
11.1 Unless expressly stated in this Agreement, each Party shall at all times exclusively retain all right, title and interest in and to all their own Intellectual Property Rights. The rights granted to You, agents and End-Users to use the Service(s) under this Agreement do not convey any additional rights in the Service(s) or in any Intellectual Property Rights of Ours associated therewith. Subject only to limited rights to access and use the Service(s) as expressly stated herein, all rights, title and interest in and to the Services and all hardware, Software and other components of or used to provide the Services, including all related Intellectual Property Rights, will remain with Us and belong exclusively to Us.
11.2 We shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You, agents, End-Users, or other third parties acting on Your behalf. We also reserve the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by suggestions, enhancement requests, recommendations or other feedback We receive from You, agents, End-Users, or other third parties acting on Your behalf.
11.3 You are expressly prohibited from taking any action or procuring any third party to: (i) decompile, reverse engineer, disassemble or otherwise attempt to translate, reconstruct or discover the Code, underlying ideas or algorithms of any components used to provide the Services; (ii) alter, modify, translate, adapt in any way, or prepare any derivative work based upon any components used to provide the Services; (iii) rent, lease, network, loan, pledge, encumber, sublicense, sell, distribute, disclose, assign or otherwise transfer any components used to provide the Services or any copy thereof; (iv) use any components used to provide the Services in commercial timesharing, rental or other sharing arrangements; or (v) remove, obscure, or alter any proprietary notice of any Our trademark, service mark or other components used to provide the Services or any related documentation or other materials furnished or made available hereunder.
11.4 Nothing herein shall give You any right in respect of any trademarks or trade names, service marks, logos, widget shape or any other Intellectual Property Rights of any nature in the Our infrastructure or CINNOX platform or in relation to the Services provided under this Agreement or Our goodwill and You agree not to use or claim or modify any right in such proprietary property. You hereby acknowledge and agree that We shall retain all right, title and interest in and to all software, documentation, derivative works and other Intellectual Property Rights that are acquired, developed, designed or created under this Agreement.
12 Publicity and Marketing
12.1 The Parties, upon mutual agreement, agree to promote the relationship established herein throughout the Agreement Term. You agree to Our use of Your logo and/or trade name, and other intellectual properties for marketing purposes, including but not limited to permit Us to make or release public announcement(s), communications or circulars concerning Your use of the Services. You shall not attempt, now or in the future, to claim any rights in Our trademarks, degrade the distinctiveness thereof, or use such trademarks to disparage or misrepresent Us or Our Services.
12.2 Both Parties, upon mutual agreement, may execute a joint press release announcing the relationship established herein promptly after activation. Any joint press releases require mutual planning, review and approval by Us and the licensed intellectual property owner.
13. Representations, Warranties and Disclaimers
13.1 Warranties. Either Party warrants and represents that it has the full legal right and authority to enter into this Agreement and it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation.
13.2 We warrant and represent that the Services will perform materially in accordance with the applicable Documentation and conform to features and functionality contained herein. In the event of any breach by Us of a warranty under this Clause 13, Your sole remedies are those mentioned in Clause 5.2.2.
13.3 You warrant and represent that You shall not carry out any act or omission that results in Our breach of any Applicable Law, rules or regulations.
13.4 You warrant and represent You shall maintain, at Your own costs, the security of Your internal network from unauthorized access through the internet. We shall not be liable for unauthorized access to Your network or other breaches of Your network security.
13.5 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN CLAUSE 13, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND CINNOX EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF PERFORMANCE, SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR PARTICULAR USE OR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. We DO NOT WARRANT OR GUARANTEE CONTINUOUS OR UNINTERRUPTED SERVICES. We DO NOT WARRANT THAT THE SERVICES WILL BE SECURE, ERROR-FREE, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY Us WILL CREATE A WARRANTY.
14.1 Indemnification by Us. We will indemnify and defend You from and against any claim brought by a third party against You by reason of Your use of the Service as permitted hereunder, alleging that such Service infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (an “IP Claim”). We shall, at Our expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Us for such defence, provided that (a) You promptly notify Us of the threat or notice of such IP Claim; (b) We will have the sole and exclusive control and authority to select defence attorneys, and defend and/or settle any such IP Claim (however, We shall not settle or compromise any claim that results in liability or admission of any liability by You without Your prior written consent); and (c) You fully cooperate with Us in connection therewith. If use of the Service by You, agents or End-Users has become, or, in Our opinion, is likely to become, the subject of any such IP Claim, We may, at Our option and expense, (i) procure for You the right to continue using the Service(s) as set forth hereunder; (ii) replace or modify a Service to make it non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by Us, terminate Your subscription to the Service(s) and repay You, on a pro-rata basis, any Subscription Charges previously paid to Us for the corresponding unused portion of Your Subscription Term for such Service(s). We will have no liability or obligation under this Section 14.1 with respect to any IP Claim if such claim is caused in whole or in part by (x) compliance with designs, data, instructions or specifications provided by You; (y) modification of the Service(s) by anyone other than Us or Our authorised personnel; or (z) the combination, operation or use of the Service(s) with other hardware or software where a Service would not by itself be infringing. The provisions of this Section 14.1 state Our sole, exclusive and entire liability to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of a Service by You, agents or End-Users.
14.2 Indemnification by You. You will indemnify, defend and hold Us harmless against any claim brought by a third party against Us (a) arising from or related to use of a Service by You (not from or related to the Service itself), agents or End-Users in breach of this Agreement; or (b) alleging that Your use of the Service or Your Service Data infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret; provided that (i) We promptly notify You of the threat or notice of such claim; (ii) You will have the sole and exclusive control and authority to select defence attorneys, and defend and/or settle any such claim (however, You shall not settle or compromise any claim that results in liability or admission of any liability by Us without Our prior written consent); and (iii) We fully cooperate with You in connection therewith.
15 Limitation of Liability
15.1 Except for (a) personal injury or death resulting from the negligence on the part of Us or Our employees; (b) fraud or fraudulent misrepresentation; (c) willful misconduct; (d) infringement of the Your Intellectual Property Rights; or (e) breach by Us of its obligations under Clause 8, We shall not be liable for (i) any indirect, incidental, special, consequential, exemplary or punitive damages; or (ii) any damages for lost profits, lost revenues, loss of goodwill, loss of anticipated savings, loss of customers, loss of Service Data or other data, loss of opportunity, interference with business or cost of purchasing replacement services, arising out of the performance or failure to perform under this Agreement, whether or not caused by the acts or omissions or negligence (including gross negligence) of Our contractors, employees or agents, and regardless of whether You have been informed of the possibility or likelihood of such damages.
15.2 Notwithstanding anything to the contrary in this Agreement, Our aggregate liability to You, Your Affiliate, officers, directors, employees, agents and any third party in respect of all events giving rise to liability on Our part, for loss or damage, however caused (including by negligence) arising out of or in connection with this Agreement and the Services, shall in no event exceed the Subscription Fee paid by You during the twelve (12) months preceding the date of the event or occurrence giving rise to such liability.
15.3 Except for Your payment obligations accruing under this Agreement up to the date of a bona fide Force Majeure Event, neither Party shall be liable, nor shall any credit allowance or other remedy be owed, for any performance that is prevented or hindered due to a Force Majeure Event.
16 Third Party Services
16.1 We are not responsible or liable for, and does not endorse or make any warranty or representation with respect to any Third Party Services that You choose to access and use. Third Party Services are provided in accordance with their own terms and conditions, and We do not operate or control the information, data, services, opinions or other content from the third party (the “Third Party Services”). “Third Party Services” includes third party products, applications, services, systems and software which may be integrated directly into Your Account by You or at Your decision.
16.2 You agree that You shall make no claim whatsoever against Us in connection with any Third Party Services or with respect to any information, products, services or software ordered through the Third Party Services. We reserve the right to take such measures as may be reasonably necessary, in Our sole discretion, to ensure security, continuity and normal operation of Our network, including but not limited to identifying, blocking or filtering of internet traffic sources which We deem to pose a security or operational risk or a risk of violation of its policies.
17 Assignment, Entire Agreement and Amendment
17.1 Assignment. Neither Party may assign this Agreement without express written consent of the other Party; except, however, that either Party may assign this Agreement to an Affiliate or as part of a corporate reorganization, consolidation, merger or sale of substantially all of its assets by providing advance written notice to the other Party of any such proposed assignment. Any such assignment by You shall be conditioned on the determination by Us that the intended assignee is at least as creditworthy as You. Any purported assignment in contravention of this Clause 17 shall be void and the assigning Party shall remain bound by this Agreement. This Agreement will bind and inure to the benefit of each Party and each Party's successors and permitted assigns.
17.2 Entire Agreement. This Agreement constitutes the entire agreement and understanding between the Parties and supersedes all prior agreements between You and Us related to the subject matter hereof. This Agreement shall apply in lieu of the terms or conditions in any purchase order or other order documentation You, or any Entity which You represent, provides, except as expressly stated herein. There are no other agreements, representations, warranties, or commitments which may be relied upon by either Party with respect to the subject matter hereof. There are no oral promises, conditions, representations, understandings, interpretations, or terms of any kind between the Parties, except as expressly provided herein.
17.3 Amendment. We may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. We will publish and post the latest version of this Agreement on the CINNOX Website and Your continued use of the Services following the effective date of any such amendment may be relied upon by Us as Your consent to any such amendment.
18 Severability and Waiver
18.1 Severability. The provisions of this Agreement are severable. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. However, if the provision is not capable of being reformed, then the provision shall stand severed and the invalidity or unenforceability of such provision shall not affect any other provisions and all other provisions not affected shall remain legal, valid, binding and enforceable.
18.2 Waiver. The failure by either Party to exercise or enforce any right conferred by this Agreement shall not be deemed to be a waiver of any such right or to operate so as to bar the exercise or enforcement of any such or other right on any later occasion.
19 Export Compliance and Use Restrictions
The Services and other Our technology, and derivatives thereof, may be subject to export controls and economic sanctions laws and regulations of the United States and other jurisdictions. You agree to comply with all such laws and regulations as they relate to access to the Services and other M800 technology. You also represents that You are not named on any U.S. government restricted-party list, and shall not permit any agent or End-User to access or use any Service in a U.S. – embargoed country or region (currently Cuba, Iran, North Korea, Syria or Crimea), or for any prohibited end use (e.g., nuclear, chemical, or biological weapons proliferation, or missile-development purposes).
20 Relationship of the Parties & Third Party Rights
20.1 Relationship. This Agreement shall not form any relationship which constitutes a joint venture, legal partnership, agency, contract of employment or similar business arrangement between You and Us.
20.2 Third Party Rights. The Parties do not intend any term of this Agreement to be enforceable by any Person who is not a Party to this Agreement pursuant to the Contracts (Rights of Third Parties) Ordinance (Cap.623 of the Laws of Hong Kong) and similar laws in other jurisdictions
21.1 All notices required or permitted to hereunder will be given in writing to the respective Party by personal delivery, registered mail, return receipt requested, transmission by a nationally recognized private express courier or by email upon confirmation of receipt. Notices to Us shall be copied to [email protected], Attention: Legal Department.
21.2 This Clause shall not apply to any requirement relating to the provision of notice or service of legal documents in respect of any matter or proceeding.
22 Governing Law and Dispute Resolution
22.1 Governing Law. Unless otherwise subject to Clause 22,3 below, this Agreement shall be governed by and construed in accordance with the laws of Hong Kong S.A.R., without regard to conflict of laws principles, and shall be binding upon and inure to the benefit of You and Us and their respective successors and assigns.
22.2 Dispute Resolution. Unless otherwise subject to Clause 22,3 below, any dispute, controversy or claim arising out of or relating to this Agreement, including the existence, validity, interpretation, construction, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (the “HKIAC”) in accordance with the Hong Kong International Arbitration Centre Administered Arbitration Rules (the “ Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this Clause. The number of arbitrators shall be three. The arbitration proceedings shall be conducted in English.
22.3 Alternative governing laws and jurisdictions. If an issue arises out of or in connection with this Agreement and the applicable Service Order Form was signed by (a) Cinnox Asia Pacific Pte. Limited, then this Agreement is governed by the Republic of Singapore laws, and any dispute shall be resolved by arbitration administered by the Singapore International Arbitration Centre (the “SIAC”) in accordance with the Arbitration Rules of the SIAC (“SIAC Rules”) for the time being in force; (b) 台灣資信股份有限公司, then this Agreement is governed by the Republic of China (ROC) laws, and any dispute shall be resolved by arbitration administered by the Chinese Arbitration Association, Taipei (the “CAA”) in accordance with the Arbitration Law of ROC.
23 Ethical Conduct and Compliance
You represent that You have complied and shall continue to comply with all applicable anti-bribery laws and regulations, including, without limitation, the Prevention of Corruption Act (Cap. 241) of Singapore, U.S. Foreign Corrupt Practices Act, the UK Bribery Act, the Hong Kong Prevention of Bribery Ordinance and similar laws of any other Governmental Authority. If You learn of any violation of the above restrictions by Us, You will use reasonable efforts to promptly notify Our Legal Department at [email protected].
Clauses 3, 5.3, 7.3, 8 – 23 shall survive termination of this Agreement. with respect to use of the Services by You, Your Staff or End-Users. Termination of this Agreement shall not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.
Updated 10 months ago