eBaoTech Collaborus Terms and Conditions
This eBaoTech Collaborus Terms and Conditions (the “Terms”) together with applicable Order Form(s) and its applicable Annex(es) comprise the agreement (“Agreement”) between customer identified on the Order Form (“Customer”) and TekInsure Pty Ltd, trading in Australia as eBaoTech Australia (ABN 39 131 473 017) (“eBaoTech”) for the purchase of subscriptions to eBaoTech Collaborus and/or other services (the “Services”) and govern Customer’s access to and use of the Services. By signing an Order Form, Customer shall acknowledge and agree to be bound by the Terms.
eBaoTech and Customer are referred to individually as a “Party” and collectively as “Parties”.
eBaoTech and Customer are referred to individually as a “Party” and collectively as “Parties”.
1. Service Scope1.1 Pursuant to the Terms and applicable Order Form, eBaoTech will provide the Product for Customer to Use in the Territory during the period set forth in Order Form thereof.
1.2 In case of any other Services, including customization and consulting services, to be provided by eBaoTech, a separate Order Form will be developed and agreed to by both Parties, which may provide a time schedule for completion of the Services required thereunder (“Schedule”) and Documentation for the deliverables specified in the Order Form (“Deliverables”) to be provided. Customer and eBaoTech expressly acknowledge and agree that any Schedules shall not be considered firm or fixed performance dates, are only to be regarded as estimated beginning and completion dates for the tasks and activities to be performed hereunder and are expected to be revised during the term of any engagement.
2. Licence2.1 Subject to the Terms and during the period of Services, eBaoTech grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable and limited right and licence to access and use the Services for Customer’s internal business purposes
2.2 By submitting Customer data to the Services, Customer grants to eBaoTech a non-exclusive, non-transferable, sub-licensable, irrevocable, terminable and limited licence to (i) use Customer data for purposes of delivering the Services to Customer.
2.3 If Customer activates any Third Party applications to interoperate with the Services, Customer authorises eBaoTech to (i) allow Third Party providers to access Customer data and (ii) access and use Customer data residing on the Third Party applications. Customer acknowledges and agrees that Customer’s use of any Third Party applications is governed by that Third Party provider’s terms, and that eBaoTech is not responsible for any Third Party application or liable for any loss resulting from or related to any Third Party provider’s access to or use of any Customer data.
2.4 The Services may contain certain embedded applications licenced to eBaoTech. The right to access and use the embedded applications granted hereunder shall be subject to any underlying licence to eBaoTech from the third party licensor of the applicable embedded application, including any open source licence terms with respect to open source code.
3. Licence Restrictions3.1 Unless otherwise expressly permitted by eBaoTech, Customer will not and Customer has no right to:
3.1.1 copy any eBaoTech materials (except as required to run the eBaoTech materials and for reasonable backup purposes);
3.1.2 modify, adapt, or create derivative works of any eBaoTech materials;
3.1.3 rent, lease, loan, resell, transfer, sublicense, distribute, disclose or otherwise provide any eBaoTech materials to any Third Party;
3.1.4 decompile, disassemble or reverse-engineer any eBaoTech materials, or determine or attempt to determine any Source Code, algorithms, methods or techniques embodied in any eBaoTech materials, except to the extent expressly permitted by applicable law notwithstanding a contractual prohibition to the contrary;
3.1.5 access or Use any disabled materials;
3.1.6 provide to any Third Party the results of any benchmark tests or other evaluation of any eBaoTech materials without eBaoTech’s prior written consent;
3.1.7 attempt to disable or circumvent any license key or other technological mechanisms or measures intended to prevent, limit or control use or copying of, or access to, any eBaoTech materials (including in order to gain access to any disabled materials);
3.1.8 remove or obscure any copyright, trademark, patent, or other proprietary notices, legends or symbols from any eBaoTech materials;
3.1.9 exceed the licensed capacity;
3.1.10 otherwise access or use any eBaoTech materials except as expressly authorized in the Terms; or
3.1.11 encourage or assist any Third Party to do any of the foregoing.
3.2 Customer acknowledges that the eBaoTech materials may be configured to display warnings, reduce available functionality, and/or cease functioning if unauthorized or improper use is detected, including if Services expire or the licensed capacity is reached or exceeded.
4. Price and Payment4.1 Fees. Customer shall pay the Fee and expenses as set forth in the applicable Order Form. eBaoTech shall provide Services upon receipt of an initial payment of Fees and expenses as set forth in Order Form. If the Fee is charged on a time and material basis, the rate will be stipulated within the Order Form.
4.2 Payment Schedule. Customer shall pay the Fee according to the invoicing schedule specified in the applicable Order Form. Any anticipated significant out-of-pocket expenses as set forth in the applicable Order Form, such as oversea travelling and lodge or other large-amount expenses, if any, shall also be paid in advance and be settled by both Parties according to relevant invoice or receipt. Unless otherwise specified in a particular Order Form, Customer shall pay to eBaoTech Fees within fifteen (15) days of the date of invoice. Any Fees not paid when due shall accrue interest at the rate of two percent (2%) per month until the date of payment, but not to exceed the maximum amount as allowed by the applicable law. eBaoTech reserves the right to immediately suspend or terminate its Services in the event of Customer’s failure to make timely payment.
4.3 To the fullest extent permitted by Law, Fees paid are non-refundable.
4.4 eBaoTech reserves the right to suspend Services and performance of its obligations under certain Order Form(s) for any period during which any Fees are overdue. If Customer has a valid dispute with any invoice or amount due, Customer must communicate such dispute to eBaoTech in writing describing the amount, issue and the reason for any dispute by the invoice due date. Any amounts not disputed within this timeframe will be deemed to be valid.
4.5 Customer will notify eBaoTech immediately of any change in Customer’s trade name, address, telephone number or billing information.
4.6 Taxes. Unless otherwise explicitly specified in the Order Form, Fees and other charges do not include any federal, state or local sales, foreign withholding, use, property, excise, deed, service, or similar taxes (“Taxes”) now or hereafter levied, all of which shall be undertaken and paid by Customer. If eBaoTech is required to pay Taxes, (i) Customer shall reimburse eBaoTech for such amounts and indemnify eBaoTech for any Taxes and related costs, interest and penalties paid or payable by eBaoTech, or (ii) the amount paid or payable to eBaoTech shall be grossed-up to the extent necessary to ensure that eBaoTech receives and retains, free of liability, a net amount equal to the amount that eBaoTech would have received and retained had no tax deduction or withholding been made. Customer agrees to provide all support, reasonably requested by eBaoTech, in obtaining tax exemptions in the applicable countries.
5. Proprietary Rights5.1 All rights, title and interest in the Services, Product and Deliverables, including their amendment, modification and error correction associated therewith, and all Intellectual Property Rights (“IPR”) in the foregoing, all are and shall remain the exclusive property of eBaoTech. eBaoTech retains the right to independently develop any enhancements and updates to the Product and Deliverable and own any IPR and other rights related therewith. No right or license is granted or implied under any of eBaoTech’s Intellectual Property Rights beyond the rights granted in this Agreement.
5.2 Customer shall not copy, translate, disassemble, or decompile, nor create or attempt to create, by reverse engineering or otherwise, the Source Code or object code of the Product or Deliverable. Customer is not permitted to make derivative works of the Products or Deliverable and ownership of any unauthorized derivative works shall vest in eBaoTech. eBaoTech and Customer agree to take all reasonable steps and the same protective precautions to protect the IPR as with its own IPR.
5.3 All Customer’s Confidential Information is, or shall be, and shall remain the property of Customer. Without Customer written approval (in its sole discretion), Customer’s Confidential Information shall not be (i) used by eBaoTech or eBaoTech agents other than as required to provide the Services, (ii) disclosed, sold, assigned, leased or otherwise provided to Third Parties by eBaoTech or eBaoTech agents, (iii) monitored, analyzed, individualized, anonymized, aggregated, stored, or copied, except for the purpose for performing Services or the Agreement, or (iv) commercially exploited in any form (including any individualized, anonymized, or aggregated form) by or on behalf of eBaoTech or eBaoTech agents except for the purpose for performing the Services or the Agreement. Customer hereby grants a right eBaoTech to use the Customer’s Confidential Information for the purpose of performing the Service and the Agreement.
6. Customer Responsibilities.Customer agrees to:
6.1 assist eBaoTech in the performance of Services and be solely responsible for providing to eBaoTech and its personnel the working environment, condition and any other support, at the requested time and at no cost to eBaoTech, through providing, inclusive but not limited to, personnel, rooms, hardware and software, operation system, telecommunications facilities, printer as well as all the data documents, information and access code and authorization, if applicable, required by eBaoTech.
6.2 independently obtain and pay for any services, hardware and software not included as part of, but necessary for the use of, the Services, including all communications, computers and devices;
6.3 comply with all applicable Laws in connection with Customer’s and its users’ Use of the Services, including, but not limited to, data privacy and protection Laws, including Laws pertaining to the Use and collection of Customer data and any user or personal information;
6.4 comply, and ensure each user accepts and complies, with the Terms, which may be modified by eBaoTech from time to time provided that any modifications which materially adversely impact Customer or the user, as applicable, shall first be subject to acceptance by user;
6.5 allocate to each user a unique user name and password, protect and secure all user names and passwords from unauthorised use and ensure that each user maintains the secrecy of their user name and password for accessing the Services, in connection with which Customer agrees to be responsible for all use of the Services made using any user names and passwords registered by, or allocated to, Customer, whether or not the use is made by Customer or someone else using Customer’s and its users’ user names or passwords;
6.6 take all reasonable security precautions to prevent unauthorised access to, or copying, use or disclosure of, the Services or any part thereof and notify eBaoTech immediately in the event that Customer or any User becomes aware of the possibility of a breach of security related to the Services;
6.7 establish proper operating methods consistent with the instructions contained in the online help documentation provided within the Services;
6.8 comply with any requirements of telecommunications authorities or Internet service providers;
6.9 to provide accurate, complete and current information where required for eBaoTech to provide Customer with the Services.
6.10 warrant that it shall not allow or cause any Third Party, without the prior written consent of eBaoTech, directly or indirectly, to:
6.10.1 Use or operate the Product or Deliverable out of scope of this Agreement;
6.10.2 copy or reproduce any part of the Documentation other than for the Use within a reasonable extent;
6.10.3 directly or indirectly decompile, reverse engineer, disassemble or otherwise attempt to derive Source Code from all or any part of the Product or Deliverable;
6.10.4 modify, convert, enhance, adapt, copy or reproduce any part of the Product, and/or Deliverable;
6.10.5 alter, change, remove or obscure any notices or indications (including copyright notices, trademarks, or other proprietary rights notices) as to the ownership of the Product, Deliverable and/or Documentation placed on or contained in it; and
6.10.6 make or assist any person to make any unauthorized use of Product, Deliverable and/or Documentation.
6.11 warrant that it shall and cause its representatives to:
6.11.1 keep confidential the Product, Deliverable and Documentation and limit access to the same to those of its representatives who either have a need to know or who are engaged in the Use of the those or receipt of the Services;
6.11.2 take all steps as necessary from time to time to protect the Confidential Information and Intellectual Property Rights of eBaoTech or Third Parties in the Product, Deliverable and Documentation; and
6.11.3 ensure that the Product, Deliverable and Documentation are used in accordance with this Agreement.
6.12 Before putting the Deliverable or Product into Productive Use, Customer shall test every part of the Deliverable or Product, whether or not within the scope of warranty and with maintenance services, thoroughly for Error and usability in Customer’s day-to-day operations. Customer shall take suitable precautions in case the Deliverable or Product should not function correctly, either wholly or in part, through methods, such as provisions of alternative procedures, data backup, Error diagnosis, regular checking of results, etc.
7. Party Acknowledgement7.1 Both Parties agrees that eBaoTech’s performance is dependent upon the timely and effective satisfaction of Customer’s responsibilities herein above and its timely decisions and approvals in connection with the Deliverables. Customer’s failure to provide such assistance or assign its personnel having skills and authority commensurate with their role as reasonably required by eBaoTech could adversely affect eBaoTech’s ability to provide the Services and Deliverable. To the extent that Customer’s failure to perform its obligations under this Agreement interferes with eBaoTech’s ability to perform its obligations in accordance with Order Form(s), such Schedule shall be adjusted accordingly and additional efforts required shall be billed at eBaoTech’s standard rates on a time & material basis.
8. Acceptance8.1 Where the Product, Deliverable or Service under an applicable Order Form requires user acceptance test (“User Acceptance Test” or “UAT”), the Test Period shall be agreed to by both Parties in the Order Form upon provision of the Product, Deliverable or Service (“Test Period”). During the Test Period, Customer will test and verify whether the Product, Deliverables or Services meet the Documentations set forth within the Order Form with the assistance of eBaoTech. If Customer notifies eBaoTech of any material Error in any of the Product, Deliverable or Service in writing and describes the Error in reasonable details (“Non-Acceptance Notice”) within the Test Period, eBaoTech promptly shall use reasonable efforts to correct such alleged Error and notify Customer when the corrections are complete. Customer then shall have the right to test the corrected Product, Deliverable or Service according to the initial User Acceptance Test. If, however, eBaoTech does not receive any Non-Acceptance Notice accompanied with sufficient details of the Error within the Test Period, or if Customer uses the Product, Deliverable or Service in productive use or otherwise in connection with its conduct of its business, Customer shall be deemed to have accepted the Deliverables (“Acceptance”).
9. Change Procedure9.1 If either Party wishes to change the Deliverables, Services, Documentations or Schedule, that Party shall notify the other Party giving full details of the changes requested (“Change Request”).
9.2 Within seven (7) Working Days upon receipt of a Change Request by Customer, eBaoTech shall notify Customer of the impact of the changes including their impact on the Schedule, the Fee and the Documentations (collectively, “Change Impact”). Any Change Request issued by eBaoTech shall be accompanied with a statement on Change Impact.
9.3 Customer shall inform eBaoTech whether it wishes to proceed with the changes. If Customer wishes to proceed with the changes, the Deliverables, Services, Documentations, Schedule and the Fee shall all be changed as provided in the Change Impact agreed between the Parties. eBaoTech shall continue to work pursuant to the existing Order Form, and neither Party shall be bound by any Change Request, until such change and the Change Impact has been accepted in writing by both Parties.
10. Support10.1 eBaoTech will provide online documentation at http://eBaoTech.com for technical assistance arising out of the Services. In addition, Customer may contact eBaoTech service desk. Customer must provide eBaoTech with all reasonable assistance necessary for eBaoTech to reproduce, diagnose and address any issues.
10.2 eBaoTech may suspend the Services: (i) in connection with any required maintenance; (ii) at any time to prevent damage to the Services; or (iii) at any time if eBaoTech reasonably suspects that the Services, or any eBaoTech site used to deliver the Services is being used, accessed or attacked in an unauthorised or illegal manner. If for any reason it is necessary to make the Services unavailable for an extended period of time other than for Customer’s non-payment of Fees, eBaoTech will use reasonable efforts to notify Customer in advance by publishing the details of such maintenance within the Services.
10.3 The maintenance and support services shall be arranged 9:00 a.m. to 5:00 p.m. Australia Time; Monday through Friday, except Australian Holidays.
10.4 Support services (and the deliverables thereof, including relevant documents) will be provided in English.
11. Warranty and Remedy11.1 Warranty. eBaoTech warrants that it will perform the Agreement with commercial reasonable care and skill and in accordance with professional standards. Any further warranty for the Product, Deliverable or Service to be agreed by both Parties shall be specified within the Order Form.
11.2 Express Disclaimer. The warranty set forth above shall exclude and not apply and eBaoTech will not be responsible: (i) if the Product, Deliverable or Service is not used in accordance with the Documentation or this Agreement; or (ii) if the defect is caused by or attributable to an unauthorized modification by Customer, Third Party products, or Third Party database not provided by eBaoTech, or (iii) Customer’s failure to use or implement corrections, replacement or enhancements to the Product, Deliverable or Service made available by eBaoTech; (iv) Customer’s distribution, marketing, or use of the Product, Deliverables or Service for the benefit of Third Party (including its associate or affiliate); (v) the combination of the Product, Deliverables or Service with materials not supplied by eBaoTech; or (vi) use of information, materials or specifications provided by or on behalf of Customer, or (vii) if the defect is caused by or attributable to any act, omissions, fault, default, breach or negligence of Customer or its Representatives (collectively, “Exceptions”). EBAOTECH DOES NOT WARRANT THAT ANY OF THE PRODUCT, SOFTWARE, DOCUMENT, CONTENT, DELIVERABLE, SERVICE OR INFORMATION PROVIDED BY EBAOTECH WILL MEET CUSTOMER’S PARTICULAR PURPOSE OR REQUIREMENTS, NOR THAT THE OPERATION OF ANY SUCH PRODUCT, SOFTWARE, DELIVERABLE, DOCUMENT OR SERVICE WILL BE UNINTERRUPTED AND/OR ERROR-FREE. ALL WARRANTIES PROVIDED HEREIN ARE PERSONAL TO, AND INTENDED SOLELY FOR BENEFIT OF, CUSTOMER AND DO NOT EXTEND TO ANY THIRD PARTY. EXCEPT AS OTHERWISE SET FORTH HEREIN, COMPUTER INFORMATION, EBAOTECH’S EFFORTS, SOFTWARE, PRODUCT, SERVICE AND DELIVERABLES ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATSIFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH CUSTOMER. THE EXPRESS WARRANTIES IN THIS AGREEMENT SHALL BE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, INTEROPERABILITY.
11.3.1 Customer’s sole and exclusive remedies and eBaoTech’s sole liabilities to the warranty (Exceptions specified in Section 11.2 herein above are excluded expressively from the scope of warranty) for any damages or loss in any way connected with the Product, Deliverables or Service furnished by eBaoTech, whether due to eBaoTech’s negligence or breach of any other duty, shall be, at eBaoTech’s option: (i) to bring the performance of the Product, Deliverables or Service into substantial compliance with the Documentations; (ii) re-performance or re-provision of Product, Deliverable or Services; or (iii) if the above (i) or (ii) is not achieveable, deduction or return of an appropriate portion of any payment made or to be made by Customer with respect to the applicable portion of the Product or Deliverables. Any further performance under warranty on such part is hereby expressly excluded.
11.3.2 Customer shall make its complaints in writing, giving a detailed description of the Error. Only the person designated in the appropriate Order Form shall be authorized to make complaints. Delayed, inadequate or unsubstantial complaints shall release eBaoTech from its warranty obligations.
11.3.3 If an Error cannot be attributed conclusively to eBaoTech, but could be the result of any of exceptions specified in Section 11.2 above, Customer shall remunerate eBaoTech for searches and Error correction activities, if any, in accordance with the eBaoTech’s standard rates then applicable.
12. Indemnification of eBaoTech12.1 In the event of any alleged or justified claims, liabilities, losses, expenses, fines, penalties, taxes or damages (collectively “Liabilities”) asserted or brought against Customer as Intellecutal Property Right infringement to the extent such Liabilities result from the infringement of the Product, Deliverables or Service upon any Third Party’s trade secret, trademark, service mark, copyright or patent issued (collectively, “Third Party IPR”), eBaoTech shall be entitled at his discretion, option and expense to, (i) obtain for Customer the right to continue using the Product, Deliverables or Service; or (ii) make such alterations, modifications or adjustments to the Product, Deliverable or Service so that they become non-infringement without incurring a material diminution in performance or functionality; or (iii) replace the Product, Deliverable or Service with non-infringement substitutes, provided that such substitutes do not entail a material diminution of performance or functionality. If eBaoTech is not able to exercise any of the options or similar remedies set out above, then eBaoTech shall provide to Customer a pro rata refund of the Fees relating to the applicable Product, Deliverables or Service or the relevant part, calculated on the remaining book value of each an every payment, based on a straight line five (5) year depreciation from the applicable date of Acceptance, and the applicable Order Form shall terminate forthwith.
12.2 If the above is not sufficiently enough to eliminate and compensate the Liabilities, eBaoTech hereby agrees to indemnify Customer against any damages (including costs) that is awarded under the final judgement by a court of competent jurisdiction, or is agreed by eBaoTech in final settlement in respect of any the Liabilities, and defend Customer from such Liabilities, provided that such Liabilities are solely attributable to eBaoTech and that Customer: (i) promptly notifies eBaoTech of any claim of Third Party IPR subject to indemnification hereunder; (ii) gives eBaoTech full right to control and direct the preparation of the defense and any settlement of any such claim; (iii) gives full cooperation to eBaoTech for the defense of the same; (iv) not admitted liability at any time or otherwise settling or compromising, or attempting to settle or compromise, except upon the express written instructions of eBaoTech; (v) makes no statement or admission prejudicial to eBaoTech, or otherwise does anything, or does not omit to do anything, which may prejudice eBaoTech’s defence; and (vi) complies with eBaoTech’s direction to cease any use of the Product, Deliverables or Service which, in eBaoTech’s sole discretion, is likely to be ruled an infringement of a Third Party IPR.
12.3 The foregoing provisions in this Article 12 shall not apply to any infringement arising out of circumstance of Exceptions specified in Section 11.2 herein above. THE PROVISIONS OF THIS ARTICLE 12 STATE THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF EBAOTECH TO CUSTOMER, AND IS CUSTOMER’S SOLE REMEDY WITH RESPECT TO THE INFRINGEMENT OF THIRD-PARTY IPR.
13. Indemnification of Customer13.1 Customer hereby agrees to indemnify, hold harmless and defend eBaoTech from and against all Liabilities incurred by or asserted against eBaoTech in connection with any third party claim to the extent that such Liabilities result from the Exceptions as specified in Section 11.2 herein above. eBaoTech agrees to provide same level and extent cooperation of Customer as specified in Section 12.2.
13.2 In the event that Customer provides eBaoTech with access to computer programs, specifications, content or other Customer-provided materials (“Customer Materials”), Customer agrees to indemnify, hold harmless and defend eBaoTech from and against any and all Liabilities incurred by or asserted against eBaoTech in connection with any third party claim resulting from eBaoTech’s access to Customer Materials in connection with the performance of the Agreement, including Liabilities resulting from the Third Party IPR.
14. Limitation of Liability14.1 NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR LOST OF DATA OR SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, NOR SHALL ANY OF THE TERMS OF THIS AGREEMENT BENEFIT OR CREATE ANY RIGHT OR CAUSE OF ACTION IN OR ON BEHALF OF ANY PERSON OR ENTITY OTHER THAN CUSTOMER AND EBAOTECH. WITHOUT LIMITING THE FOREGOING, EBAOTECH SHALL NOT BE LIABLE FOR ANY LOSS OF CUSTOMER’S DATA FOR ANY REASON, INCLUDING BUT NOT LIMITED TO CUSTOMER’S FAILURE TO BACK UP SUCH DATA.
14.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, UNDER NO CIRCUMSTANCES SHALL EBAOTECH BE LIABLE TO THE CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR AN AGGREGATE AMOUNT IN EXCESS OF TWENTY-FIVE PERCENT (25%) THE FEES RECEIVED BY EBAOTECH FOR A PARTICULAR ORDER FORM GIVEN RISE TO THE LIABILITY. ANY ACTION AGAINST EBAOTECH MUST BE BROUGHT WITHIN TWENTY-FOUR (24) MONTHS AFTER THE EVENTS GIVING RISE TO THE CAUSE OF ACTION. THE PROVISIONS OF THIS ARTICLE 11 SHALL APPLY REGARDLESS OF THE FORM OF ACTION, DAMAGE, CLAIM, LIABILITY, COST, EXPENSE, OR LOSS, WHETHER IN CONTRACT OR LAW (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE.
15. Confidentiality15.1 Each Party shall hold confidential the Confidential Information, the Terms and Order Form or the pricing contained therein to any Third Party. Each Party agrees to protect the other’s Confidential Information at all times and in the same manner as each protects the Confidential Information of its own proprietary and confidential materials, but in no event with less than a reasonable standard of care. Neither Party shall, without the other Party’s prior written consent, disclose any of the Confidential Information of the other Party to any person or entity, except to its bona fide personnel whose access is necessary to enable such Party to perform this Agreement. Each Party agrees that prior to disclosing any Confidential Information of the other Party to any Third Party in the event that such disclosure has been permitted by the other Party, it will obtain from that Third Party a written acknowledgment that such Third Party will be bound by the same terms as specified in this Section hereof with respect to the protection of Confidential Information. The Third Party’s breach of its agreement or undertaking under the above mentioned acknowledgement shall be deemed as breach of the Party which discloses Confidential Information to such Third Party. The Confidential term of this Agreement shall be the whole term of this Agreement and five (5) years thereafter.
15.2 Receiving Party may disclose the Confidential Information in compliance with legal requirements upon request of a governmental agency or court, where disclosure is required by operation of law. However, the receiving Party shall promptly notify the disclosing Party upon receiving such request for the disclosing Party to take actions to prevent such disclosure, with receiving Party’s reasonable assistance, unless not permitted by law.
16. Term and Termination16.1 Term. This Agreement shall become effective as of the date upon first Order Form and shall continue in effect thereafter unless terminated upon the earliest occurrence of the following: (i) immediately upon that all Order Forms are expired or terminated unless otherwise agreed by both Parties(ii) thirty (30) days after either Party receives the other Party notice of the first mentioned party’s material breach of any provision of the Agreement (other than Customer’s breach of its obligations under Sections 6 or 15, which breach shall result in immediate termination), unless the Party in breach has cured the breach during such thirty (30) day period; or (iii) immediately if either Party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors and in such circumstance. All Order Forms shall terminate forthwith automatically.
16.2 Each subscription term begins on the date identified on the Order Form as the subscription start date and continues for the period set forth therein (“Subscription Term”). If there is no subscription start date identified on the Order Form, the Subscription Term begins on the Customer’s execution of the Order Form. The Subscription Term for additional users shall start when Customer registers such additional users within the Services and shall continue for the remainder of the Subscription Term under the Order Form.
16.3 Unless otherwise set forth on the Order Form, the Subscription Term for all users registered within the Services as of the renewal date will automatically renew for successive periods of one (1) year each (“Renewal Term”). If either Party does not want the Services to automatically renew, it must provide the other Party with written notice of non-renewal by date and method specified on the Order Form. Such notice of non-renewal will be effective upon the conclusion of the then-current Subscription Term.
16.4 Customer agrees that eBaoTech may change the amount of Fees due per user at the start of each Renewal Term by giving no less than thirty (30) days’ notice prior to the end of the expiring Subscription Term.
16.5 End of Term Duties. Upon any termination hereunder, Customer and its Affiliates shall immediately cease Use of all eBaoTech IPR or Confidential Information or any information which is proprietary to eBaoTech or any Product, Deliverables, Service or Documentations, unless otherwise set forth in this Agreement or in the applicable Order Form. Within fifteen (15) days after any termination, Customer shall deliver to eBaoTech or destroy or erase all original copies or photocopies of eBaoTech’s IPR or Confidential Information or any information proprietary to eBaoTech or Product, Deliverables, Services or Documentations. Customer agrees to certify in writing to eBaoTech that it and each of its Affiliates has performed the foregoing. In the event of any termination hereunder, either Party’s obligations incurred prior to the termination shall not be affected.
17. Force Majeure17.1 Any delay or nonperformance of any provision of this Agreement (other than for the payment of amounts due hereunder) caused by unforeseeable conditions beyond the reasonable control of the performing party shall not constitute a breach of this Agreement, and the time for performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance.
18. Independent Contractor18.1 The relationship between eBaoTech and Customer shall be that of a service provider and a Customer and not that of a principal and agent, partnership, joint venture or any other association. Neither Party shall make any warranties or representations, or assume any obligations on the other Party’s behalf except as may be expressly permitted hereby and none have been made except as set forth herein. Each Party shall be solely responsible for the actions of its respective personnel, agents and Representatives. No terms shall be implied or otherwise imposed except as explicitly set forth herein.
19. Dispute Resolution19.1 Informal Resolution. If either Party believes in good faith that the other Party has breached any material terms of this Agreement, then such Party shall notify the other Party in writing, with reasonable details on the nature of the alleged breach (a “Notice of Breach”). If the other Party does not dispute the validity of the Notice of Breach, then it shall promptly undertake to cure the breach described therein. If, however, the other Party disputes the validity of the Notice of Breach, then the Parties shall conduct in accordance with the following steps or as otherwise specified in the applicable Order Form: (i) the dispute shall first be submitted for resolution to the Representatives of each Party then in charge of the administration of this Agreement, failure to resolve it within fifteen (15) Working Days from the date on which the dispute is first submitted for resolution, (ii) the dispute shall be submitted to the Directors (or persons of comparable authority) of each Party who have responsibility for such matters, failure to resolve this within fifteen (15) Working Days after the date on which this event is submitted to the Directors, (iii) the dispute shall be submitted to the General Manager (or persons of comparable authority) of each Party for resolution, and failure to resolve this within (15) Working Days after the date on which this event is submitted to General Manager, (iv) either Party shall be free to pursue to solve the dispute according to Section 19.2 hereof.
19.2 Arbitration. Except for the right of either Party to apply to a court of competent jurisdiction for an injunction or other relief available under applicable law to preserve the status quo or prevent irreparable harm pending the selection and confirmation of a panel of arbitrators, and for the right of eBaoTech to bring suit on an open account for any payments due eBaoTech hereunder, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by Arbitrators & Mediators Australia (“IAMA”), in accordance with arbitration rules. Arbitration shall be conducted in English language. The arbitration proceedings and the award shall be kept strictly confidential and that obligations under this Section shall survive termination or expiration of this Agreement. The arbitral award shall be final and binding upon the Parties.
20. Governing Law20.1 This Agreement shall be governed by and construed in accordance with the law of New South Wales without reference to its conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
21. Miscellaneous21.1 Notices. Both Parties shall designate a contact person to be its business contact in addition to its management. The contact persons shall ensure effective cooperation between the Parties. All notices, demands, correspondences or reports which are required or may be given pursuant to this Agreement shall be in writing and be deemed duly given when (i) delivered to the respective offices of eBaoTech and Customer at the addresses first set forth above or as the Party may otherwise notify to the other Party, and (ii) notified to the respective contact person of the other Party through electronic mail.
21.2 Press Releases and Customer List Reference. Neither Party shall issue any press release concerning eBaoTech’s work without the other’s prior written consent. Nevertheless, eBaoTech may identify Customer as a Customer of eBaoTech (using Customer’s name and logo) and generally describe the nature of the Services and project in eBaoTech’s advertisement or promotional materials, presentations, and proposals to current and prospective Customers.
21.3 Non-Solicitation of Employees. Neither Party shall, during the term of Services and for two (2) years after its termination, solicit for hire as an employee, consultant or otherwise any of the other Party’s personnel who have had direct involvement with the Purpose, without such other Party’s express written consent.
21.4 Entire Agreement. The Terms and any Order Form, as a whole, constitute the entire agreement between eBaoTech and Customer as to the subject matter hereof and supersedes all previous negotiations, proposals, commitments, communications, representations, understandings, writings and agreements (including but not limited to any letter of intent) of whatever nature, whether written or oral, unless they are expressly incorporated by reference in this Agreement.
21.5 Assignment. Either Party may not, without the other Party’s prior written consent, assign, delegate, pledge, or otherwise transfer this Agreement, or any of its rights or obligations hereunder, or the other Party’s Confidential Information, to any party, whether voluntarily or by operation of law, including by way of sale of assets, merger or acquisition. Notwithstanding the foregoing, eBaoTech may assign this Agreement to its Affiliates and may at any time and without prior consent or approval of Customer to subcontract all or part of the Services to be provided under this Agreement. eBaoTech is at all times responsible for its careful selection in and instruction to be given to subcontractor.
21.6 No Waiver. No delay or failure by either Party to exercise any of its powers, rights or remedies under this Agreement will operate as a waiver, nor will any single or partial exercise of any such powers, rights or remedies preclude any other or further exercise of them.
21.7 Severability. In case any of the provisions contained in the Terms is held invalid, illegal or unenforceable in any respect by a competent count or other authority, such invalidity or unenforceability shall not affect the other provisions of the Terms.
21.8 Survival. The provisions of Sections 5, 11, 12, 13, 14, 15, 19, 20 and 21 and any other provision which by its nature shall be continued shall survive the termination or expiration of this Agreement.
21.9 Order Form. Each Order Form shall be deemed to include the Terms and all capitalised terms which are defined in the Terms shall remain full force and effect in an Order Form. In the event of discrepancies between the contractual documents, they shall apply in the following order of precedence: Order Form, including its annexes (latest, ascending to oldest), and then, the Terms. For purpose of avoidance of confusion, the part in the Order Form shall take precedence over the provisions of the Terms but only for the purpose of this particular project subject to the Order Form, while not otherwise amending, modifying, cancelling or releasing the terms and provisions of the Terms.
22. Definitions22.1 “Affiliate” shall mean and include any company in which either eBaoTech or Customer, or their respective parent company or any subsidiary of such ultimate holding company in all cases owns and/or controls, directly or indirectly, more than fifty percent (50%) of the issued and outstanding share capital, or of the voting rights associated therewith.
22.2 “Working Day” means a bank working day; consequently, not to be considered working days are Saturday, Sunday and holidays (including bank holidays) in the country or region of eBaoTech.
22.3 “Confidential Information” means and is not limited to, intellectual property right, computer software systems and programs, data, operational techniques, methodology, ideas, concepts and documents, all information and/or data with regard to personnel, the clients of either Party, its internal instructions and working procedures, its premises and infrastructures, designs, plans, diagrams and outlines, whether tangible or intangible and whether or not stored, compiled, or memorialized physically, electronically, graphically, in writing, or by any means now known or later invented, provided or made available or accessible by a Party to the other. For clarity, the Confidential Information does not include the information which (1) is or becomes published or public knowledge, other than as a result of receiving Party’s conduct or breach of this Agreement; (2) is obtained from a Third Party being under no obligation of confidentiality to the disclosing Party; or (3) is independently developed or obtained without breach of this Agreement.
22.4 “Documentation” means the operating manuals, user instructions and other related materials for aiding the Use of the Product and/or Deliverable, including any part or copy of them, to be made available from time to time during the period of Services by eBaoTech.
22.5 “Error” means any verifiable and reproducible failure or inability of the Product and/or Deliverable to perform any material functions set forth in the Documentation when the Product and/or Deliverable is Used. The term “Error” shall not include any failure or inability of the Product and/or Deliverable that (i) results from the misuse or improper use of the Product and/or Deliverable (ii) does not materially affect the operation and Use of the Product and/or Deliverable, (iii) results from any modification made other than by eBaoTech or under eBaoTech’s consent in writing to the Product and/or Deliverable, (iv) results from any modification in Third Party software connected to the Product and/or Deliverable not made approved by eBaoTech.
22.6 “Fees” means the fee as specified under applicable Order Form to be charged by eBaoTech for the Services.
22.7 “Intellectual Property Rights” or “IPR” means all vested, contingent and future intellectual property rights, including but not limited to copyrights, design rights (whether registered or unregistered), trade marks, logos, patents (including utility models), service marks, know-how, trade secrets, rights of database design and other proprietary information and all other intellectual and industrial property rights whatsoever under law or international convention, , including any applications for the protection or registration of these rights and all renewals and extensions thereof existing in any part of the world whether now known or in the future created.
22.8 “Order Form” means a document which set forth the Product to be subscribed for Use and the period, Territory and/or other limitations for the Use and/or other Services and any other deliverables (“Deliverables”) to be provided by eBaoTech, eBaoTech’s compensation, additional terms and conditions, if any, applicable to a particular engagement or project and such other details as the Parties deem appropriate. Order Form shall form an integral part of the Agreement.
22.9 “Product” means the eBaoTech’s standard software and computer programs as described in the Order Form including any copies of them or their enhancement, modification, amendment or update, if any.
22.10 “Representatives” means the employees of either Party involved on its behalf in the provision or using of the Product or the performance of this Agreement.
22.11 “Services” means providing the Product for Use and/or any consulting, implementation, support, maintenance or other services provided by eBaoTech to Client under the terms of this Agreement or Appendix.
22.12 “Source Code” means all logic, logic diagrams, flowcharts, algorithms, routines, subroutines, utilities, models, file structures, coding sheets, codings, source codes, listings, functional specifications, program specifications and all other materials and documents, whether in eye or machine readable form, necessary to enable a reasonably skilled programmer to maintain, amend and enhance the Product without reference to any other person or document.
22.13 “Territory” or “Territories” means the country or region specified in the Order Form in which the Services can be used for Customer’s business. For clarity, the Territory shall be Australia unless otherwise agreed by eBaoTech.
22.14 “Third Party” means any legal entity or person other than a Party to this Agreement. Personnel of eBaoTech or Customer are not deemed Third Parties in the meaning of the above.
22.15 “Use” means to load and operate the Product in accordance with the terms of this Agreement or applicable Appendix and the Documentations.