Please read these Terms of Service carefully before using any of the Services available at www.ematicsolutions.com (“Site”) or offered by or on behalf of Ematic Solutions Pte. Ltd., a company incorporated in Singapore, or any of its subsidiaries and affiliates, or any of the joint venture entities owned thereby and by any third party(ies) (“Ematic”).
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 into or collected through the Services by or from Customer, Customer’s Users, or any entities or persons doing business or transaction with Customer or that Customer has invited to access or use the Services.
1.2. “Documentation” means any written documentation provided to Customer by Ematic to facilitate Customer’s access or use of the Services under the terms and conditions of the Agreement.
1.3. “Order” means an order form, agreement, contract or document either created electronically through the Site when Customer opens an Ematic account or executed by both Ematic and Customer, including by electronic signature, for Customer’s purchase, access or use of the Services.
1.5. “Platform” means Ematic’s Email Intelligence Cloud Platform which includes Hi-IQ, Bye-IQ, and Retry-IQ.
1.6. “Services” mean the Platform, Third Party Platform, products, services, software, applications, tools and/or other resources provided or made available by Ematic, accessible at the Site (or other website(s) owned, operated or controlled by Ematic), or specified in the Order.
1.7. “Term” is defined in Section 11.1 (Term & Termination) below.
1.8. “Third Party Content” means any content or material, including but not limited to texts, images, audios, videos and animations, provided by third party licensors or providers to Ematic, which are incorporated into the Services.
1.9 “Third Party Platform” means third party platform, software, tool, application, website, product, service and/or resource.
1.10 “User” means any person who accesses or uses the Services on Customer’s behalf or through Customer’s accounts or passwords, whether authorized or not.
2. THE SITE & SERVICES
2.1. Use of the Site and Services. During the Term, Customer may access and use the Site and/or Services pursuant to: (a) these Terms of Service; (b) the terms and conditions of any Order; and (c) Ematic’s policies posted on its Site, as may be updated from time to time. The Customer acknowledges that the Site and/or the Services will be subject to scheduled maintenance and the Customer may not receive advance notification of downtime caused by any scheduled maintenance, emergency maintenance or Force Majeure Event.
2.2. Documentation. Customer may reproduce and use the Documentation solely as necessary to support Customer’s Users’ access and use of the Services.
2.3. Services Change. Ematic may change, suspend, remove or restrict the availability of all or any part of the Services for business, operational or legal reasons at any time without notice or liability to Customer. Customer agrees to be liable for any Fees, media budget (where applicable), along with any applicable taxes and other charges, incurred prior to such change, suspension, removal or restriction.
2.4. Platform Modifications. Ematic may modify Platform features and functions at any time, including without limitation by removing such features and functions. If any such modification to the Platform materially reduces features or functionality provided pursuant to an Order, Customer may within thirty (30) days of notice of the modification terminate the Agreement without cause.
3. SERVICES FEES, BILLING & PAYMENT
3.1. Fees. Customer shall pay Ematic the fees set forth in each Order (“Fees”) pursuant to the terms and conditions of the Agreement. Except as otherwise expressly set forth in the Agreement or required by applicable law, Ematic will not be required to refund the Fees under any circumstances.
3.2. Payment. Customer will make payment only by credit card, demand draft or wire transfer, unless otherwise specified in the Order (“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 changes in Customer’s invoicing address or changes related to the Payment Method, which will be effective five (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 Fees, media budget (where applicable), along with any applicable taxes and other charges Customer may incur in connection with its access and use of the Services. Customer acknowledges that it is solely responsible for any and all fees charged to Customer by its credit card issuer, bank, financial institution or other payment processing vendor.
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 authorized Payment Method. Customer may request an additional invoice or an invoice in a different format by emailing email@example.com. If Customer does not notify Ematic in writing of a billing problem or discrepancy within twenty (20) days of the relevant invoice’s date, Customer waives any right or dispute related to such problem or discrepancy.
3.4. Taxes and Bank Charges. All Fees, media budget and/or any charges, whichever applicable, are exclusive of taxes, levies and duties. Customer will be responsible for payment of and to bear all such taxes, levies and duties, including but not limited to value added tax (VAT), goods and services tax (GST), sales and services tax (SST), withholding tax (WHT), and/or other relevant taxes, whichever applicable, as well as all applicable bank charges and/or transfer fees. Ematic may calculate taxes based on the billing information Customer provides. For the avoidance of doubt, Customer must pay the full and final amount in Ematic’s invoice without any deduction of any taxes whatsoever.
3.5. Effect of Non-payment. Ematic may suspend Customer’s access or use to the Services without advance notice if Customer fails to pay any invoice in full when due. In addition to such other rights as Ematic may have, Customer shall continue to pay Fees, media budget (where applicable), along with any applicable taxes and other charges, due and owing to Ematic during any suspension period. 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 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 the Agreement for any reason or offset them against amounts that Customer asserts are owed to Customer by Ematic.
4. CUSTOMER DATA & PRIVACY
4.1. Use of Customer Data. Ematic requires all its employees to sign strict confidentiality agreements as part of their employment agreement. Unless it receives Customer’s prior written consent, Ematic: (a) shall not collect, access, store, process, transfer, disclose or otherwise use Customer Data other than as necessary to facilitate or provide the Services, to prevent or address service or technical problems, at Customer’s request in order to provide support, or to fulfill Ematic’s obligations or exercise its rights under the Agreement; and (b) shall not intentionally disclose, transfer or grant any access to Customer Data to any third party, including without limitation Ematic’s other customers or clients, except Ematic’s partners, vendors, suppliers, contractors, subcontractors, freelancers, agents, consultants, advisors or other representatives who need such access for purposes of provision of the Services or of fulfilling Ematic’s obligations or exercising its rights under the Agreement, and who are subject to a reasonable non-disclosure agreement. Notwithstanding the foregoing, Ematic may disclose Customer Data as required by applicable law, court order or by proper legal or governmental authority. Ematic shall give Customer prompt notice of any such legal or governmental requirement and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
4.2. Customer Responsible for Customer Data. Customer represents and warrants to Ematic that Customer has obtained and will maintain all valid consents, permissions, releases, rights, authority and/or licenses required for Ematic and Customer to collect, access, store, process, use, disclose and/or transfer, including but not limited to conduct international or cross-border transfer, the Customer Data, and/or to input Customer Data into the Services. Customer shall ensure that the Customer Data input into or collected through the Services has been obtained by Customer fairly, lawfully and in a transparent manner.
4.4. Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure, access, exposure or intrusion and that, in accessing and using the Site and/or the Services, Customer assumes such risks. Ematic makes no representation, warranty or guarantee that Customer Data will not be exposed, accessed or disclosed through errors, actions or omissions of third parties.
4.5. Data Accuracy and Completeness. Ematic shall have no responsibility or liability for the accuracy and completeness of data input into or collected through the Services by or from Customer, Customer’s Users, or any entities or persons doing business or transaction with Customer or that Customer has invited to access or use the Services, including without limitation Customer Data. Customer shall make reasonable effort to ensure that the Customer Data is accurate, complete and up-to-date before the Customer Data is input into or collected through the Services, and shall take steps to correct, rectify or update the Customer Data which contains errors or is inaccurate, incomplete or outdated as soon as practicable upon Ematic’s written request.
4.6. Treatment of Customer Data Following Termination or Expiration. Within thirty (30) days following termination or expiration of the Agreement, upon Customer’s written request and provided that Customer has paid all amounts due to Ematic, Ematic will provide Customer with a copy of the Customer Data in a format chosen by Ematic, subject to the availability of the Customer Data at the time of such request. Customer agrees that Ematic shall not be liable to Customer or to any third party for any deletion of the Customer Data after such thirty (30) days.
4.7. Aggregate Data. Notwithstanding the provisions above in this Section 4, Ematic may use, reproduce or analyze Aggregate Data (as defined below) for the maintenance, provision and improvement of the Services. (“Aggregate Data” refers to Customer Data with the following removed: personally identifiable information of individuals, the names and addresses of Customer and any of its Users or other parties with which it is doing business or transaction, and the identity of any such party linked to specific contractual terms or other business information.)
4.8. Compliance. Both parties shall comply with their respective duties and obligations under all relevant and applicable data protection and privacy laws and regulations, where applicable.
5. CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS
5.1. Acceptable Use. Customer shall not: (a) use the Platform and Third Party Platform for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Platform and Third Party Platform; (b) provide Platform and Third Party Platform credentials, passwords, access details or other log-in information to any third party; (c) share non-public Platform and Third Party Platform features, functions or content with any third party; or (d) access the Platform and Third Party Platform in order to build a competitive product or service, to build a product or service using similar ideas, features, functions or graphics of the Platform and Third Party Platform, or to copy or reproduce any ideas, features, functions or graphics of the Platform and Third Party Platform. In the event that Ematic discovers or suspects any breach of the aforementioned requirements of this Section 5.1, including without limitation by Users, Ematic may suspend Customer’s use or access of the Platform and/or Third Party Platform with or without advance notice, in addition to such other rights and remedies as Ematic may have. The Agreement does not require that Ematic take any action against Customer or any User or other third party for violating this Section 5.1 or the Agreement, but Ematic is free to take any such action it deems fit.
5.2. Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access or use of the Platform and Third Party Platform, including without limitation by protecting its credentials, passwords, access details and other log-in information. Customer shall notify Ematic immediately of any known or suspected unauthorized access or use of the Platform and Third Party Platform, or breach of its security, and shall use its best efforts to stop and remedy the said breach.
5.3. Compliance with Laws. In its access or use of the Platform and Third Party Platform, Customer shall comply with all applicable laws, including without limitation laws governing the privacy and protection of personally identifiable information and other laws applicable to the privacy and protection of Customer Data.
5.4. Users, Platform & Third Party Platform Access. Customer is responsible and liable for: (a) Users’ access or use of the Platform and Third Party Platform, including without limitation unauthorized User conduct and any User conduct that would violate the provisions of the Agreement applicable to Customer; (b) any access or use of the Platform and Third Party Platform through Customer’s account, whether authorized or unauthorized; and (c) obtaining all necessary permission or consent from the Users.
6. INTELLECTUAL PROPERTY & FEEDBACK
6.1. Intellectual Property Rights to the Platform and Site. Except for the limited rights granted to Customer under the Agreement, Ematic and/or its licensors retain all right, title and interest in and to the Platform and Site, including without limitation all software, tool, application and resource used to provide the Platform and Site, and all features, functions, graphics, user interfaces, logos, copyrights and trademarks reproduced through the Platform and Site. The Agreement does not grant Customer any intellectual property or proprietary licenses or rights in or to the Platform and Site as well as any of their components. Customer recognizes that the Platform and Site as well as their components are protected by copyright, trademark and other intellectual property or proprietary rights and laws.
6.2. Feedback. Ematic has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to Ematic, and nothing in the Agreement or in the parties’ dealings arising out of or related to the Agreement will restrict Ematic’s right to use, profit from, disclose, publish, keep secret or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. (“Feedback” refers to any feedback, comment, recommendation, plan, proposal, suggestion or idea for improving or otherwise modifying any of the Services.)
6.3. Limitations of Use. Customer must only use or access the Services for the purposes for which they are provided and in the form provided to the Customer under the Agreement. Customer acknowledges that Ematic may incorporate the Third Party Content into the Services subject to separate terms and conditions accompanying, or license agreements associated with, such Third Party Content. Third Party Content is owned by third party licensors or providers of such content and is protected in all forms by intellectual property laws, including without limitation copyright, trademark, patent, trade secret, design right and any other intellectual property or proprietary rights. Ematic makes no representation or warranty whatsoever regarding any Third Party Content. Ematic shall not be liable for any infringement of intellectual property or proprietary rights by Customer in respect of the Third Party Content. Unless otherwise permitted by the Agreement, the Third Party Terms (in respect of Third Party Platform only), the relevant third party licensors or providers (in respect of Third Party Content only), the terms and conditions of the applicable license or licensing agreement, and/or applicable law, Customer shall not:
(a) assign, grant or transfer any right, title or interest in or to the Services and/or the Third Party Content, or any derivative works thereof, to another individual, entity, person or third party;
(b) reverse engineer, decompile, copy, reproduce, modify, adapt, translate, disassemble or create any derivative works based on the Services and/or the Third Party Content;
(c) attempt to determine or extract any source code, object code, underlying structure, algorithms, methods or techniques embodied in the Services and/or the Third Party Content, or any derivative works thereof;
(d) remove, modify or obscure any copyright, trademark, patent, design right or other intellectual property or proprietary right notices, markings, designations or labels in or on the Services and/or the Third Party Content;
(e) use, or cause, encourage, promote, facilitate or instruct others to use, the Services and/or the Third Party Content in any way that will violate, infringe, plagiarize or misappropriate any rights including but not limited to copyrights, trademark or other intellectual property rights, third party’s rights of privacy or publicity, or any other applicable laws or regulations;
(f) disable, bypass, modify, defeat or otherwise circumvent, or attempt to disable, bypass, modify, defeat or otherwise circumvent, any rights management or protection system or mechanism applied to the Services and/or the Third Party Content;
(g) use, or cause, encourage, promote, facilitate or instruct others to use, the Services and/or the Third Party Content in any way that is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, slanderous, immoral, inflammatory, hateful, offensive, discriminatory, deceptive, misleading, dishonest, fraudulent, pornographic, political or otherwise objectionable;
(h) distribute, redistribute, license, sublicense, transfer, market, rent, lease, sell, resell, provide access to, share, assign, lend, gift, make available, broadcast, perform, publish, display or use the Third Party Content, in whole or in part, separate or apart from the Services into which the Third Party Content has been incorporated;
(i) extract, separate, split, dissociate or detach the Third Party Content from the Services as a standalone file or for standalone distribution;
(j) use, sell, license, sublicense, reproduce, distribute, display, publish, compile, incorporate into or otherwise make available the Third Party Content as, or as part of, a content gallery, content library, content collection or downloadable file;
(k) compile, reproduce or use the Third Party Content to replicate a product or service similar to or competing against the product or service of the third party licensors or providers of such Third Party Content;
(l) falsely represent, expressly or by way of reasonable implication, that the Third Party Content, in whole or in part, was created by Customer or a person other than the copyright holder(s) of such Third Party Content;
(m) use the Third Party Content or part thereof as, or incorporate the Third Party Content or part thereof into, a trademark, service mark, logo or other indication or origin, or part thereof;
(n) change, modify, edit or alter the language, harmonic structure or melody of the third party audios incorporated into the Services; and
(o) use “stills” derived from the third party videos incorporated into the Services, except solely in connection with the in-context marketing, promotion, and advertising of the Services incorporating the third party videos.
6.4. Customer Materials. Customer represents and warrants that it has the rights to use any intellectual property rights (including but not limited to all copyrights, trademarks, service marks, trade, business and domain names, patents, patent rights, design rights, database rights, moral rights, and rights in confidential information) when it provides any materials, contents, information, texts, images, photos, graphics, logos, brand names, audios, music, songs, videos, animations or representations (“Customer Materials”) to Ematic for incorporation into the Services. Customer hereby grants or agrees to procure the grant of (as applicable) an irrevocable, royalty-free license to Ematic to access and use the Customer Materials for the purposes of providing the Services.
6.5. Marketing and Training. Customer hereby grants to Ematic an irrevocable and royalty-free license and rights to use and display Customer’s entity name, business name, legal name, trade name, logo and/or brand as a reference on Ematic’s website, social media platforms as well as in marketing, training, pitch, advertising and promotional materials for the maximum period permitted by applicable law.
6.6. RAW Files. Customer shall only obtain the ownership of the end-product in a print ready format or a work ready format (i.e. a static format or a video format, whichever applicable) created by Ematic. Ematic shall be deemed the author and owner of the RAW files created by Ematic. If Customer intends to obtain the ownership of the RAW files, Customer shall notify Ematic of such intention in writing and Ematic shall have absolute discretion to decide whether Ematic is agreeable to hand the RAW files over to Customer. If Ematic is agreeable to hand the RAW files over to Customer, Customer shall pay Ematic an additional fee, as mutually agreed to by both parties in writing, for the handover of the RAW files. For the avoidance of doubt, the handover of the RAW files under this Section 6.6 is a right, and not an obligation, of Ematic, and if the parties fail to reach an agreement regarding the additional fee for the handover of the RAW files, Ematic is not obligated to hand the RAW files over to Customer.
7. CONFIDENTIAL INFORMATION
7.1. “Confidential Information” refers to the following items that one party to the Agreement (“Discloser”) discloses to the other party (“Recipient”): (a) any document and/or information marked as “Confidential”; (b) any information Discloser orally designates as “Confidential” at the time of disclosure, provided Discloser confirms such designation in writing within five (5) business days; (c) the Documentation, whether or not marked or designated confidential; (d) any technology incorporated into or used by the Services, as well as the Services’ non-public features, functions and content, for which Ematic will be Discloser; and (e) any other non-public, sensitive information disclosed by Discloser, whether or not marked or designated “Confidential.” Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Recipient’s possession at the time of disclosure; (ii) is independently developed by Recipient without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient’s improper action or inaction; or (iv) is approved for release in writing by Discloser.
7.2. Non-disclosure. Recipient shall not use Confidential Information for any purpose other than to fulfill Recipient’s obligations or exercise its rights pursuant to the Agreement (“Purpose”). Recipient: (a) shall not disclose Confidential Information to any employee, contractor, subcontractor, freelancer, partner, vendor, supplier, agent, consultant, advisor or other representative of Recipient or of Recipient’s parent companies, subsidiaries, affiliates, related corporations or companies, or of the joint venture entities owned thereby and by any third party(ies), unless such person needs access in order to facilitate the Purpose and executes a non-disclosure agreement with terms no less restrictive than those of this Section 7; and (b) shall not disclose Confidential Information to any other third party without Discloser’s prior written consent. Without limiting the generality of the foregoing, Recipient shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Recipient shall promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient’s attention. Notwithstanding the foregoing, Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Recipient shall give Discloser prompt notice of any such legal or governmental requirement and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser’s expense.
7.3. Injunction. Recipient agrees that breach of this Section 7 may cause irreparable injury to Discloser, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Discloser will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
7.4. Termination & Return. With respect to each item of Confidential Information, the obligations of Section 7.2 above (Non-disclosure) will terminate two (2) years after the date of termination or expiration of the Agreement; provided that such obligations related to Confidential Information constituting Ematic’s trade secrets shall continue so long as such information remains subject to trade secret protection pursuant to applicable law. Except as otherwise required by applicable law, professional standard, court or tribunal, and/or legal, governmental or regulatory authority or agency, within thirty (30) days from the termination or expiration of the Agreement, Recipient shall return or destroy all copies of Confidential Information, and upon written request by Discloser, certify in writing the destruction thereof.
7.5. Retention of Rights. All Confidential Information and any derivatives thereof, including without limitation any modifications thereto or improvements thereon, shall remain the property of the Discloser. The Recipient shall not remove markings of any kind whatsoever that indicate the proprietary nature of any Confidential Information of the Discloser, including patent and copyright notices, and the Recipient shall ensure that such markings are present in identical or equivalent form on each and every copy of any Confidential Information of the Discloser made by or for the Recipient. The Agreement does not transfer ownership of Confidential Information or grant any rights, by license or otherwise, therein or thereto. Discloser will retain all right, title and interest in and to all Confidential Information.
8. REPRESENTATIONS & WARRANTIES
8.1. From Ematic. Ematic 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 the Agreement without the further consent of any third party. Ematic’s 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 non-infringing; or (c) terminate the infringing features of the Platform 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 the Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform its obligations as required by the Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself in or through the Order and in connection with its use or access of the Services; and (c) it, if being a company, corporation, sole proprietorship, partnership, or other entity or legal person, is duly incorporated or registered, validly existing under the laws of its respective jurisdiction of incorporation or registration, in good standing, and having all necessary power and authority to do business pursuant to applicable law; (d) it, if being an individual or natural person, possesses the legal capacity (and in the case of a minor, valid parent or legal guardian consent), right and ability to enter into, execute and perform its obligations under the Agreement as well as to comply with its terms and conditions; (e) it will use the Services for lawful purposes only as well as in accordance with the Agreement and all applicable laws; and (f) it, and all Customer’s Users and all others acting on its or their behalf (including systems administrators) shall keep confidential and not share with any third party (or with other individuals except those with administration rights at the Customer’s organization as necessary for use or access of the Services) their credentials, passwords, access details or other log-in information for any of the Services.
8.3. Warranty Disclaimers. Except to the extent set forth in Section 8.1 (From Ematic) above, Customer accepts the Services “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 non-infringement 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 Site and/or the Services will be uninterrupted or error-free; and (c) Ematic does not represent or warrant that the Site and/or the Services are secure from hacking or other unauthorized intrusion or that Customer Data will remain private or secure; and (d) Ematic does not represent or warrant that the Platform (or any part thereof) and the servers on which the Platform is hosted or related software are free of viruses or other harmful components. The Customer acknowledges that the risks of the aforesaid items (b), (c) and (d) are inherent in cloud services and that Ematic shall have no liability for any such interruptions, errors, hacking, unauthorized intrusion, delays, viruses, harmful components or other problems.
Customer shall defend, indemnify and hold harmless Ematic and Ematic Associates (as defined below) against any “Indemnified Claim”, meaning any and all claims, suits, demands, actions, proceedings, losses, damages, costs, expenses or liabilities arising out of or related to any breach by Customer or Customer’s Users of this Agreement or of any obligations, representations or warranties under this Agreement, or arising out of or related to Customer’s or Customer’s Users alleged or actual use of, misuse of, or failure to use the Services, including without limitation: (a) claims by Users or by Customer’s employees, as well as by Customer’s own customers or clients; (b) claims related to unauthorized disclosure, access, use or exposure of personally identifiable information or other private information, including Customer Data; (c) claims related to contravention of any law, regulation, legislation, decency or marketing rules or related to infringement or violation of a copyright, trademark, trade secret, patent, design right, moral right or other intellectual property right, or privacy or confidentiality right by any materials, contents, information, texts, images, photos, graphics, logos, brand names, audios, music, songs, videos, animations or representations uploaded to the Platform through Customer’s account or provided by Customer to be used in or incorporated into the Services, including without limitation by Customer Data or Customer Materials; and (d) claims that use of the Services through Customer’s account harasses, defames, threatens or defrauds a third party or violates anti-spamming laws or any other law or restriction on electronic advertising. Indemnified Claims include, without limitation, claims arising out of or related to Ematic’s and Ematic Associates’ negligence. Customer’s obligations set forth in this Section 9 include retention of lawyers, payment of legal fees and expenses and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Ematic will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admits wrongdoing or liability or subjects it to any ongoing affirmative obligations. (“Ematic Associates” are Ematic’s employees, officers, directors, shareholders, agents, successors and assigns, parent companies, subsidiaries, affiliates, related corporations and companies, and the joint venture entities owned thereby and by any third party(ies).)
10. LIMITATION OF LIABILITY
10.1. Dollar Cap. EMATIC’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT WILL NOT EXCEED ALL AMOUNTS CUSTOMER PAID TO EMATIC IN THE THREE (3) MONTHS PRECEDING THE CLAIM THAT GAVE RISE TO THE LIABILITY.
10.2. Exclusion of Consequential Damages. IN NO EVENT WILL EMATIC BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES OR LOSSES (INCLUDING, WITHOUT LIMITATION, LOSS OF EARNINGS, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF INCOME, LOSS OF SAVINGS, LOSS OF PRODUCTION, LOSS OF VALUE OR DECREASE IN EARNINGS, LOSS OF USE, LOSS OF FINANCIAL ADVANTAGE, LOSS OF REPUTATION, LOSS OF BUSINESS, LOSS OF GOODWILL, BUSINESS INTERRUPTION OR DOWNTIME, OR DESTRUCTION, LOSS OF USE OR CORRUPTION OF DATA, SOFTWARE OR SYSTEM) ARISING OUT OF OR RELATED TO THE AGREEMENT.
10.3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS SECTION 10 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, MISREPRESENTATION OR OTHERWISE; (c) EVEN IF EMATIC HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES OR LOSSES IN QUESTION OR EVEN IF SUCH DAMAGES OR LOSSES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section 10, Ematic’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Ematic’s liability limits and other rights set forth in this Section 10 apply likewise to employees, officers, directors, shareholders, agents, successors and assigns, licensors, suppliers, vendors, contractors, subcontractors, freelancers, partners, advertisers, sponsors, consultants, advisors and other representatives of Ematic as well as of Ematic’s parent companies, subsidiaries, affiliates, related corporations and companies, and of the joint venture entities owned thereby and by any third party(ies).
11. TERM & TERMINATION
11.1. Term & Termination. The term of the Agreement shall begin on the Effective Date and continue for the duration as set out in the Order, including any renewals, unless earlier terminated in accordance with the Agreement; and Customer’s obligations pursuant to the Agreement shall continue to apply to any use and/or access of the Site and/or the Services by Customer (“Term”).
11.2. Effects of Termination. Upon termination or expiration of the Agreement, Customer shall cease all access and use of the Services and delete, destroy or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of the Agreement: (a) any obligations of Customer to pay Fees, media budget (where applicable), along with any applicable taxes and other charges, incurred before termination or expiration; (b) Sections 6 (Intellectual Property & Feedback), 7 (Confidential Information), 8.3 (Warranty Disclaimers), 9 (Indemnification) and 10 (Limitation of Liability); and (c) any other provision of the Agreement that must survive to fulfill its essential purpose.
12. THIRD PARTY PLATFORM
The following terms shall apply to and govern any access and use of Third Party Platform by Customer as provided under the Agreement:
12.1. Customer agrees and accepts that the access and use of Third Party Platform as provided under the Agreement is also subject to and governed by the respective Third Party Platform’s terms of service, use and/or conditions available at their website or platform (“Third Party Terms”). Customer agrees that any access and use by Customer of Third Party Platform is entirely at Customer’s own risk and discretion, and it is Customer’s responsibility to read and comply with the relevant Third Party Terms.
12.2. Customer acknowledges and agrees that the Third Party Platform is not owned by Ematic and Ematic shall not be responsible for any Third Party Platform’s functioning, performance and/or results of effects. Ematic makes no representation or warranty of any kind, express or implied, and shall have no liability, with respect to any Third Party Platform.
12.5. Ematic and any of the Ematic Representatives shall not be held liable for any direct, actual, indirect, incidental, special, consequential, punitive, extraordinary, exemplary loss or damage whatsoever which may be incurred by the Customer for the access and use of the Third Party Platform. Ematic shall also not be responsible for the Third Party Platform’s collection, access, storage, processing, disclosure, transfer or use, including but not limited to international or cross-border transfer, of any personal data that the Customer authorizes to disclose to the Third Party Platform or otherwise. Ematic is also not responsible for any disclosure, modification, loss, corruption, destruction, damage or deletion of personal data, or for any corresponding losses or damages, whether direct or indirect, Customer may suffer as a result of actions or omissions by Ematic and/or the Third Party Platform with respect to the personal data.
13.1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent, employer or employee of the other, and neither party may make commitments on the other party’s behalf. The parties agree that no employee or contractor of Ematic will be an employee of Customer.
13.2. Notices. Ematic may send notices pursuant to the Agreement to Customer at the email address designated by Customer, and such notices will be deemed received twenty-four (24) hours after they are sent. Customer may send notices pursuant to the Agreement to Ematic at firstname.lastname@example.org, and such notices will be deemed received twenty-four (24) hours after they are sent.
13.3. Force Majeure. No delay, failure or default, other than a failure to pay Fees and media budget (where applicable) when due, will constitute a breach of the Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, natural disasters, global health pandemic, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, any delays or problems associated with any public communications networks or with the internet, or other causes beyond the performing party’s reasonable control (each, a “Force Majeure Event”). For the avoidance of doubt, if Ematic is unable to deliver all or any part of the Services due to a Force Majeure Event, Ematic shall not be held liable to the Customer.
13.4. Assignment & Successors. Customer shall not assign, delegate, novate or transfer all or any of its rights, obligations and/or liabilities under the Agreement, and shall not subcontract or outsource all or any of its obligations under the Agreement, without Ematic’s express prior written consent. Ematic may assign, delegate, novate or transfer all or any of its rights, obligations and/or liabilities under the Agreement, and may subcontract or outsource all or any part of the Services and/or all or any of its obligations under the Agreement, without the Customer’s consent. The Agreement will be binding upon and inure to the benefit of the parties’ respective heirs, 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 the Agreement invalid or otherwise unenforceable in any respect. If any provision of the Agreement is held to be invalid or otherwise unenforceable in any jurisdiction, such provision shall, as to such jurisdiction, be modified so as to effect the original intent of the parties with respect to such provision as closely as possible to the fullest extent permitted by applicable law, without affecting the validity and enforceability of such provision in any other jurisdictions and of the remaining provisions of the Agreement.
13.6. No Waiver. Neither party will be deemed to have waived any of its rights, powers or remedies under the Agreement by failing to exercise any thereof, by lapse of time, or by any statement or representation other than by its authorized representative via an explicit written waiver. Any single or partial exercise of any right, power or remedy under the Agreement shall not preclude any other or further exercise thereof or the exercise of any other right, remedy or power under the Agreement. No waiver of a breach of the Agreement will constitute a waiver of any other breach of the Agreement.
13.7. Governing Law & Dispute Resolution. The 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 the 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 Section 13.7. This Section 13.7 governs all claims arising out of or related to the Agreement, including without limitation tort claims, unless otherwise provided in the Agreement.
13.8. No Third Party Rights. Unless otherwise provided in the Agreement, a person who is not a party to the Agreement may not enforce or enjoy the benefit of any terms hereof under the Contracts (Rights of Third Parties) Act (Cap. 53B) of Singapore, and no consent of any third party shall be required for any variation (including any release or compromise of any liability) or termination of the Agreement.
13.9. Non-solicitation. During the Term of the Agreement, and for a period of one (1) year thereafter, Customer shall not solicit for hire, on behalf of itself or any other organization, any employee or personnel of Ematic with whom Customer has had contact pursuant to the relationship established under the Agreement. If Customer violates this provision, Customer shall pay Ematic an amount equal to the aggregate compensation paid by Ematic to the solicited employee or personnel in the six (6) months preceding Customer’s solicitation of such employee or personnel.
13.10. Counterparts. The Order may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.
13.12. Entire Agreement. The Agreement constitutes the entire agreement of the parties and supersedes all previous discussions, negotiations, representations, arrangements or understandings, whether oral or written, between the parties in relation to its subject matter. In entering into the Agreement, neither party has relied on any statement, representation, understanding, undertaking, promise or assurance (whether negligently or innocently made) of any person (whether being party to the Agreement or not) other than as expressly set out in the Agreement. Any samples, drawings, descriptive matters, targets or advertisements issued or published by Ematic and any plans, descriptions, targets or illustrations contained in Ematic’s catalogues, brochures, plans, quotations, quotes, proposals or guides are issued or published for the sole purpose of giving an approximate idea and illustration of the Services described in them, and shall not form part of the Agreement or any other agreement between Ematic and Customer for the performance of Services.
Last Updated: 30 August 2023