Please read these terms of service carefully.
Each party acknowledges that it has read this agreement, understands it, and agrees to be bound by its terms, and that the person signing on its behalf has been authorized to do so. the person executing this agreement on customer’s behalf represents that he or she has the authority to bind customer to these terms and conditions.
The following capitalized terms shall have the following meanings whenever used in this Agreement.
1.1. “Customer Data” means data in electronic form input or collected through the Platform by or from Customer, including without limitation by Customer’s Users or from individuals or business entities doing business with Customer or that Customer has invited to use the Platform.
1.2. “Documentation” means any written documentation provided to Customer by Ematic to facilitate Customer’s use of the Platform under the terms of this Agreement.
1.3. “Order” means an order for access to the Platform created either electronically through the Platform when Customer opens an Ematic account or in the form of a document signed by both Ematic and Customer, including by electronic signature.
1.5. “Platform” means Ematic’s Email Intelligence Cloud Platform which includes Bye-IQ, Hi-IQ, and Retry-IQ.
1.6. “Term” is defined in Section 11.1 below.
1.7. “Third Party Platform” means third party software product and service.
1.8. “User” means any individual who uses the Platform on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.
2. THE PLATFORM
3. PLATFORM FEES, BILLING & PAYMENT
3.1. Subscription Fees. Customer shall pay Ematic the fee set forth in each Order (the “Subscription Fee”) for each Term. Ematic will not be required to refund the Subscription Fee under any circumstances.
3.2. Payment. Customer will make payment only by credit card, demand draft or wire transfer (the “Payment Method”). Customer authorizes Ematic to transmit Customer’s Payment Method information to Ematic’s third-party payment processing vendor, which may store such information in order to facilitate payments. Customer shall promptly notify Ematic in writing of any change in Customer’s invoicing address or changes related to the Payment Method, which will be effective 5 days after Ematic’s receipt of Customer’s notification. Customer authorizes Ematic or its payment processing vendor to bill Customer, through Customer’s authorized Payment Method, for the applicable subscription fees, along with any applicable taxes and any other charges Customer may incur in connection with its use of the Platform. Customer acknowledges that it is solely responsible for any and all fees charged to Customer by its credit card issuer, bank, or other financial institution.
3.3. Invoices. Ematic may: (a) send invoices generated through the Platform, via email, or such other means as it may select from time to time; and (b) invoice Customer through Customer’s Payment Method at the beginning of each Billing Period. Customer may request an additional invoice or an invoice in a different format by emailing email@example.com. Increases in Subscription Fees based on increases in customer database size will be effective and invoiced at the time of the increase, on a pro-rated basis if the change is made during a Billing Period. Decreases in paid subscription plan tiers will be effective upon renewal of the next Billing Period. If Customer does not notify Ematic in writing of a billing problem or discrepancy within 20 days of the relevant invoice date, Customer waives any right or dispute related to such problem or discrepancy.
3.4. Taxes. All fees are exclusive of taxes, levies, and duties, and Customer will be responsible for payment of all such taxes, levies, and duties, including value-added tax (VAT), goods and services tax (GST), sales and services tax (SST), withholding, or similar taxes. Ematic may calculate taxes based on the billing information Customer provides.
3.5. Effect of Non-payment. Ematic may suspend Customer’s access to the Platform without advanced notice if Customer fails to pay any invoice in full when due. In addition to such other rights as Ematic may have, including without limitation pursuant to Section 11.2 (Termination for Cause) and Section 11.3 (Termination without Cause) below, Customer shall continue to pay fees during any suspension. Customer will reimburse any costs or expenses (including, but not limited to, reasonable legal fees) incurred by Ematic to collect any overdue amount. Ematic may accept any check or payment in any amount without prejudice to its right to recover the balance or to pursue any other right or remedy. Customer may not withhold amounts due to Ematic under this Agreement for any reason or offset them against amounts that Customer asserts are owed to Customer by Ematic
4. CUSTOMER DATA & PRIVACY
5. CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS
6. IP & FEEDBACK
7. CONFIDENTIAL INFORMATION
8. REPRESENTATIONS & WARRANTIES
8.1. From Ematic. Ematic represents and warrants that it is the owner of the Platform and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. Ematic’s representations and warranties in the preceding sentence do not apply to use of the Platform in combination with hardware or software not provided by Ematic. In the event of a breach of the warranty in this Section 8.1, Ematic, at its own expense, will promptly take the following actions: (a) secure for Customer the right to continue using the Platform; (b) replace or modify the Platform to make it noninfringing; or (c) terminate the infringing features of the Service and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination. In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states Ematic’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 8.1 and for potential or actual intellectual property infringement by the Platform.
8.2. From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the Platform; and (c) it is a company, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
8.3. Warranty Disclaimers. Except to the extent set forth in Section 8.1 above, Customer accepts the platform “as is” and as available, with no representation or warranty of any kind, express or implied, including without limitation implied warranties of merchantability, fitness for a particular purpose, or noninfringement of intellectual property rights, or any implied warranty arising from statute, course of dealing, course of performance, or usage of trade. without limiting the generality of the foregoing: (a) ematic has no obligation to indemnify or defend customer or users against claims related to infringement of intellectual property; (b) ematic does not represent or warrant that the platform will perform without interruption or error; and (c) ematic does not represent or warrant that the platform is secure from hacking or other unauthorized intrusion or that customer data will remain private or secure.
10. LIMITATION OF LIABILITY
11. TERM & TERMINATION
11.1. Term. The Term of this Agreement shall begin on the Customer Requested Start Date and continue for the duration as set out in the Order, including any auto-renewals.
11.2. Termination for Cause. Ematic may terminate this Agreement (including without limitation Customer’s access to the Platform) without advanced notice if Customer fails to pay applicable fees when due. Either party may terminate this Agreement for any other material breach by the other party via written notice, effective in thirty (30) days unless the other party first cures such breach.
11.3. Termination without Cause. Either party may terminate this Agreement without cause by providing at least thirty (30) days written notice of termination prior to the end of the then-current term.
11.4. Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the Platform and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Sections 6 (IP & Feedback), 7 (Confidential Information), 8.3 (Warranty Disclaimers), 9 (Indemnification), and 10 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
12. THIRD PARTY SOFTWARE PRODUCT AND SERVICE
13.1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no Ematic employee or contractor will be an employee of Customer.
13.2. Notices. Ematic may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to firstname.lastname@example.org, and such notices will be deemed received 24 hours after they are sent.
13.3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
13.4. Assignment & Successors. Customer may not assign and transfer any of its rights or obligations under this Agreement without Ematic’s express written consent. Ematic may transfer and assign any of its rights and obligations under this Agreement to any third party without the Customer’s consent. Except to the extent forbidden in this Section 13.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
13.5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any provision of this Agreement and the Order invalid or otherwise unenforceable in any respect. If any provision of this Agreement and the Order is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
13.6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
13.7. Choice of Law & Jurisdiction. This Agreement will be governed solely by the laws of Singapore without regard to the conflict of law principles. Any claim, dispute or controversy of whatever nature arising out of or relating to this Agreement shall be referred to and finally resolved by arbitration in Singapore administered by the Singapore International Arbitration Centre (SIAC) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (SIAC Rules) for the time being in force, which rules are deemed to be incorporated by reference in this clause. This Section 13.7 governs all claims arising out of or related to this Agreement, including without limitation tort claims.
13.9. Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
13.10. Entire Agreement. This Agreement constitutes the entire agreement of the parties and supersedes all previous discussions or understanding, whether oral or written, between the parties in relation to such subject matter. In entering into this Agreement, neither party has relied on any statement, representation, understanding, undertaking, promise or assurance (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement.