TERMS OF SERVICE
1 GOCODE PROVISION AND CUSTOMER USE OF GOCODE CLOUD
Definition of “GOCODE” and “GOCODE CLOUD”
For the purposes of this agreement and any related documents, “GOCODE” and “GOCODE CLOUD” shall mean GOCODE PTE. LTD., including but not limited to all its products, services, and offerings provided to us. This definition expressly includes HyperGo and any other existing or future products, services, platforms, or solutions that may be developed, launched, or offered by GOCODE PTE. LTD. Unless otherwise specified, all references to “GOCODE” or “GOCODE CLOUD” shall be interpreted in this manner throughout this document and any associated agreements.
1.1 Provision of GOCODE Cloud. During the Term, and subject to the terms and conditions of this Agreement, GOCODE will provide to Customer, and Customer is hereby granted the right to access and use, GOCODE Cloud.
1.1.1 Compliance with Law. GOCODE will provide GOCODE Cloud in accordance with laws and regulations, including, without limitation, laws and regulations concerning data privacy and data transfer, that are directly applicable to its provision of GOCODE Cloud.
1.1.2 Service Level Agreement. If Customer purchases Credits pursuant to Section 2.2 below, the provision of GOCODE Cloud is subject to the Service Level Agreement. GOCODE may modify the Service Level Agreement from time to time, provided that no such modification will result in a material diminution during the Order Form Term of the service level described in the Service Level Agreement as of the start date on an applicable Order Form Term.
1.1.3 Suspension of Access to GOCODE Cloud. GOCODE may suspend Customer’s access to GOCODE Cloud if (i) amounts owed to GOCODE by Customer or Reseller are more than thirty (30) days past due, provided that such amounts are not subject to the payment disputes provision in Section 2.5 below, (ii) Customer’s use of GOCODE Cloud materially degrades the performance of GOCODE Cloud for other customers or presents a material security risk, or risks causing material harm to GOCODE or its other customers, (iii) Customer uses GOCODE Cloud in violation of Section 1.2.3, or (iv) where GOCODE is required to do so by applicable law. Notwithstanding the foregoing, GOCODE will use its commercially reasonable efforts to provide Customer with prior notice (email sufficient) of any suspension and to work diligently with Customer to resolve the underlying issue.
1.2 Customer’s Use of GOCODE Cloud.
1.2.1 Customer Account. In order to use GOCODE Cloud, you must first register for an account (“Account”). Subject to the security obligations of GOCODE set forth in Section 5.1, Customer is responsible for maintaining the security of Customer’s Account (including, but not limited to, login credentials and the correct configuration of access control lists), and remains fully responsible for all acts and omissions that occur under Customer’s Account, including any damages of any kind incurred as a result of such acts or omissions. Customer agrees to promptly notify GOCODE of any unauthorized use of its Account, or any other breaches of security related to Customer’s Account, of which Customer becomes aware.
1.2.2 Authorized Users. Customer’s Affiliates and contractors (“Authorized Users”) are also permitted to use GOCODE Cloud during the Term, provided that such use must be solely for the benefit of Customer, and Customer shall be responsible for all acts and omissions of Authorized Users in connection with their use of GOCODE Cloud, including any use of GOCODE Cloud by Authorized Users that is contrary to the terms and conditions of this Agreement.
1.2.3 Restrictions on Use of GOCODE Cloud. Customer shall not: (i) modify, make derivative works of, disassemble, decompile or reverse engineer GOCODE Cloud or any component thereof; (ii) access or use, or allow any other party to access or use, GOCODE Cloud for purposes of monitoring its availability or functionality for the purpose of designing and/or developing, in part or in whole, any competitive products or services; (iii) except for Authorized Users, make access to GOCODE Cloud through its Account available to any third party; (iv) sell, resell, rent, lease, offer any time sharing arrangement, service bureau or any service based upon, GOCODE Cloud; (v) use GOCODE Cloud to process any protected health information (as defined by the Health Insurance Portability and Accountability Act of 1996) without first entering into a BAA with GOCODE; (vi) use GOCODE Cloud to store or process any classified information (i.e., information given a security classification by a government body and protected against unauthorized disclosure under applicable law) or data subject to the Personal Data Protection Act in Singapore; (vii) use GOCODE Cloud for High Risk Activities, or (viii) otherwise use GOCODE Cloud in violation of the Acceptable Use Policy.
2 LICENSE PURCHASES; CREDIT PAYMENT; TAXES AND DISPUTES
GOCODE Cloud Operates on a “as licensed” basis, however if you are given an option to purchase services on a “Pay as You Go” or “Credits” basis by our affiliates or resellers, the terms below shall apply.
2.1 Pay as You Go. Provided that you have supplied GOCODE with a valid credit card, you may use GOCODE Cloud on a “pay as you go” basis, for which you will be billed monthly in arrears at the then-prevailing rates for use of the applicable tier of GOCODE Cloud, provided that GOCODE may bill you more frequently for fees accrued if GOCODE believe there is a risk of non-payment or that your Account may be fraudulent.
2.2 Purchase and Use of Credits. Credits. As an alternative to using GOCODE Cloud on a “pay as you go” basis as set forth in Section 2.1 above, you may purchase Credits in advance. Except as set forth in Section 2.6 below, orders for Credits may be placed by Customer through (i) the execution of one or more Order Forms with GOCODE or (ii) issuance by Customer of a Qualifying PO, which will be deemed to constitute, for the purposes of this Agreement, the execution by Customer of the Order Form referenced in the applicable Qualifying PO. Customer’s use of GOCODE Cloud will be charged against available Credits that have been purchased by Customer.
2.2.1 Overconsumption. Where Customer has used all Credits under an applicable Order Form prior to the end of the Order Form Term, Customer may purchase additional Credits under a new Order Form. In the event that prior to the end of an Order Form Term Customer uses GOCODE Cloud in excess of Credits purchased under the applicable Order Form, Customer will be charged the same per Credit price set forth on the such Order Form, and Customer will be billed for such usage monthly in arrears, provided that GOCODE may bill you more frequently for fees accrued if GOCODE reasonably believes there is a risk of non-payment.
2.2.2 Underconsumption. Unused Credits purchased under an Order Form expire and the end of an applicable Order Form Term, unless Customer enters into a new Order From prior to the expiration of the applicable Order Form Term, in which case such Credits will be rolled over to such new Order Form.
2.3 Payment. GOCODE will invoice Customer for the fees due under each Order Form or otherwise under this Agreement and, subject to Section 2.5 below, Customer will pay such fees within thirty (30) days after receipt of an applicable invoice. All invoices will be paid in U.S. dollars. Payments will be made without right of set-off or chargeback. Except as otherwise expressly provided in this Agreement, any and all payments made by Customer pursuant to this Agreement or any Order Form are non-refundable, and all commitments to make any payments hereunder or under any Order Form are non-cancellable.
2.4 Taxes. All fees stated on an Order Form are exclusive of any applicable sales, use, value added and excise taxes levied upon the delivery or use of the taxable components, if any, of any Credits purchased by Customer under this Agreement (collectively, “Taxes”). Taxes do not include any taxes on the net income of GOCODE or any of its Affiliates. Unless Customer provides GOCODE a valid sales/use/excise tax exemption certificate and provided that GOCODE separately states any such taxes in the applicable invoice, Customer will pay and be solely responsible for all Taxes. If Customer is required by any foreign governmental authority to deduct or withhold any portion of the amount invoiced for the delivery or use of GOCODE Cloud under this Agreement, Customer shall increase the sum paid to GOCODE by an amount necessary for the total payment to GOCODE to equal the amount originally invoiced.
2.5 Payment Disputes. Customer has thirty (30) days from receipt of an invoice from GOCODE to dispute such invoice by providing written notice to GOCODE stating the good faith basis for such dispute, and GOCODE agrees not to exercise its contractual remedies in connection with Customer’s failure to pay any amount that is disputed by Customer in good faith within such thirty (30) day period. The parties agree to work in good faith to resolve any such payment dispute, provided that if any such dispute is not resolved within thirty (30) days of the receipt by GOCODE of a dispute notice, and notwithstanding the foregoing sentence, each party shall be free to pursue any remedies available under this Agreement, in equity or at law.
2.6 Purchases Through Resellers. The parties agree that Customer may purchase Credits, Services, or Licenses through a Reseller (including third-party resellers), which may offer such Credits, Services, or Licenses using GOCODE’s name. However, when a purchase is made through a Reseller, all obligations related to pricing, payment terms, taxes, and any additional conditions will be between the Customer and the Reseller, and GOCODE shall not be liable for any such obligations. Orders for Credits, Services, or Licenses purchased through a Reseller, including multi-year commitments, are non-cancelable by the Customer. Separately, Reseller and Customer will enter into an agreement defining the fees, terms, and conditions applicable to their transaction. GOCODE’s responsibility to provide the Credits, Services, or Licenses applies only upon receipt of payment from the Reseller and is strictly limited to the terms outlined in this Agreement. Customer acknowledges that GOCODE bears no responsibility for any obligations, representations, warranties, or liabilities arising from the Reseller’s actions, omissions, or any additional third-party products or services provided by the Reseller. For the avoidance of doubt, Sections 2.3, 2.4, and 2.5 of this Agreement shall not apply where a Customer purchases through a Reseller, as all payment and tax obligations will be governed by the separate agreement between Reseller and Customer.
Subject to the timely payment of amounts owed hereunder, GOCODE will provide Customer with Support Services for its use of GOCODE Cloud in accordance with the Support Services Policy. GOCODE may modify the Support Services Policy from time to time, provided that no such modification will result in a material diminution of the overall level of support services during an applicable Order Form Term. Support Services are provided to Customer solely for Customer’s internal use in connection with the use of GOCODE Cloud under this Agreement and may not be used in connection with your use of GOCODE software licensed under any other license, including without limitation any open source or source available license. In addition, Customer agrees to not use the Support Services to supply any consulting, support or training services regarding GOCODE Cloud to any third party other than Authorized Users.
4 INTELLECTUAL PROPERTY RIGHTS
4.1 GOCODE Cloud. This Agreement grants Customer a limited right to use GOCODE Cloud. Nothing in this Agreement shall be understood to transfer from GOCODE to Customer any intellectual property rights, and all right, title and interest in and to GOCODE Cloud will remain (as between the parties) solely with GOCODE or its third-party suppliers. The GOCODE trademarks, service marks, graphics and logos used in connection with GOCODE Cloud are trademarks or registered trademarks of GOCODE or GOCODE’s third party suppliers. Other trademarks, service marks, graphics and logos used in connection with GOCODE Cloud may be the trademarks of other third parties. GOCODE grants to Customer no right or license to reproduce, or otherwise use any GOCODE or third-party trademarks under this Agreement.
4.2 Usage Data. GOCODE collects tracking and operational data related to Customer’s use of GOCODE Cloud, including query logs, metadata (object definitions and properties) and feature usage information (“Usage Data”). For the avoidance of doubt, Usage Data does not include any Confidential Information (including Content) of Customer, and will not be shared with third parties (excluding GOCODE Affiliates and contractors) in a form that identifies Customer. GOCODE owns all right, title and interest in and to Usage Data, which it reproduces, analyzes, modifies and adapts to provide, maintain, protect and improve GOCODE Cloud.
4.3 Customer Content. As between GOCODE and Customer, Customer owns all rights, title and interest in and to the Content, including all intellectual property rights therein and thereto. By submitting Content to GOCODE, Customer hereby grants GOCODE a sublicensable, worldwide, royalty-free, and non-exclusive right to process the Content solely for the purpose of enabling GOCODE to provide Customer with GOCODE Cloud and Support Services, to prevent or address service or technical problems, or as otherwise may be required by law. If Customer wishes to delete Content from Customer’s Account, GOCODE will use reasonable efforts to remove it, but Customer acknowledges that backups, caching or references to the Content may not be made immediately unavailable.
4.4 Feedback. Customer, Customer’s Affiliates, and their respective agents, may volunteer feedback to GOCODE, and/or its Affiliates, about GOCODE Cloud (“Feedback”). GOCODE and its Affiliates shall be irrevocably entitled to use that Feedback, for any purpose and without any duty to account, provided that, in doing so, they may not breach their obligations of confidentiality under Section 6 of this Agreement.
5 SECURITY; CUSTOMER CONTENT AND DATA PROCESSING
5.1 GOCODE Security. GOCODE will implement reasonable and appropriate security measures for GOCODE Cloud, in accordance with the GOCODE Security Standards, that are designed to protect Content against unauthorized access, modification, destruction or disclosure. GOCODE may modify the GOCODE Security Standards from time to time, but will continue to provide at least the same level of security as is described in the GOCODE Security Standards as of the Effective Date.
5.2 Customer Responsibility for Content and Content Retrieval. Customer is fully responsible for its Content, including for the content, accuracy and completeness of the Content, and any loss, liabilities or damages resulting therefrom. Customer is solely responsible for backing up or otherwise making duplicates of its Content. Customer is solely responsible for verifying that its use, and that of its Authorized Users, of GOCODE Cloud complies with any requirements under applicable law or regulation governing access to or use of the Content. Customer is solely responsible for deleting or retrieving Content from GOCODE Cloud prior to termination or expiration of this Agreement.
5.3 Data Processing. The parties agree to comply with the Personal Data Protection Act.
5.4 Malicious Code. GOCODE will make commercially reasonable efforts to use industry standard measures designed to scan, detect, and delete Malicious Code from GOCODE Cloud.
6 CONFIDENTIAL INFORMATION
6.1 Confidential Information. Both parties acknowledge that, in the course of performing this Agreement, they may obtain information relating to products (such as goods, services, and software) of the other party, or relating to the parties themselves, which is of a confidential and proprietary nature (“Confidential Information”). Confidential Information includes materials and all communications concerning GOCODE’s or Customer’s business and marketing strategies, including but not limited to employee and customer lists, customer profiles, project plans, design documents, product strategies and pricing data, research, advertising plans, leads and sources of supply, development activities, design and coding, interfaces with GOCODE Cloud, anything provided by either party to the other in connection with GOCODE Cloud and/or Support Services provided under this Agreement, including, without limitation, computer programs, technical drawings, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical plans and other information of the parties which by its nature can be reasonably expected to be proprietary and confidential, whether it is presented in oral, printed, written, graphic or photographic or other tangible form (including information received, stored or transmitted electronically) even though specific designation as Confidential Information has not been made. Confidential Information also includes any notes, summaries, analyses of the foregoing that are prepared by the receiving party. Content will be deemed Confidential Information of Customer without specific designation. GOCODE Cloud and Support Services will be deemed Confidential Information of GOCODE without specific designation.
6.2 Non-use and Non-disclosure. The parties shall at all times, both during the Term and thereafter, keep in trust and confidence all Confidential Information of the other party, using the same degree of care that the receiving party uses to protect its own Confidential Information of a similar nature or value, but in no event less than commercially reasonable care, and shall not use such Confidential Information other than as necessary to carry out its duties under this Agreement, nor shall either party disclose any such Confidential Information to third parties other than to Affiliates or as necessary to carry out its duties under this Agreement without the other party’s prior written consent, provided that each party shall be allowed to disclose Confidential Information of the other party to the extent that such disclosure is approved in writing by such other party, or necessary to enforce its rights under this Agreement.
6.3 Non-Applicability. The obligations of confidentiality shall not apply to information which (i) has entered the public domain or is otherwise publicly available, except where such entry or availability is the result of a party’s breach of this Agreement; (ii) prior to disclosure hereunder was already in the receiving party’s possession without restriction as evidenced by appropriate documentation; (iii) subsequent to disclosure hereunder is obtained by the receiving party on a non-confidential basis from a third party who has the right to disclose such information; or (iv) was developed by the receiving party without any use of any of the Confidential Information as evidenced by appropriate documentation.
6.4 Terms of this Agreement. Except as required by law or governmental regulation, neither party shall disclose, advertise, or publish the terms and conditions of this Agreement without the prior written consent of the other party, except that either party may disclose the terms of this Agreement to potential acquirers, referral partners involved in an applicable transaction, accountants, attorneys and Affiliates pursuant to the terms of a non-disclosure or confidentiality agreement.
6.5 Disclosure Required by Law. Notwithstanding anything to the contrary herein, each party may disclose the other party’s Confidential Information in order to comply with applicable law and/or an order from a court or other governmental body of competent jurisdiction, and, in connection with compliance with such an order only, if such party: (i) unless prohibited by law, gives the other party prior written notice to such disclosure if the time between that order and such disclosure reasonably permits or, if time does not permit, gives the other party written notice of such disclosure promptly after complying with that order and (ii) fully cooperates with the other party, at the other party’s cost and expense, in seeking a protective order, or confidential treatment, or taking other measures to oppose or limit such disclosure. Each party must not release any more of the other party’s Confidential Information than is, in the opinion of its counsel, reasonably necessary to comply with an applicable order.
7 REPRESENTATIONS, WARRANTIES AND DISCLAIMER OF WARRANTIES
7.1 Mutual Representations and Warranties. Each party represents and warrants to the other that: (i) it is a duly organized, validly existing, and in good standing as may be required under the laws of the jurisdiction of its organization; (ii) it has the full right, power, and authority to enter into, and perform its obligations under, this Agreement; (iii) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement and/or on an Order Form (as applicable) has been duly authorized by all necessary corporate or organizational action of such party; and (iv) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
7.2 Support Services Warranty. GOCODE warrants that it will perform the Support Services in a professional, workmanlike manner, consistent with generally accepted industry practice, and in accordance with the Support Services Policy. In the event of a breach of the foregoing warranty, GOCODE’s sole obligation, and Customer’s exclusive remedy, shall be for GOCODE to re-perform the applicable Support Services.
7.3 GOCODE Cloud Performance Warranty. GOCODE warrants that during the Term, GOCODE Cloud will perform in all material respects in accordance with the Documentation. In the event of a breach of the foregoing warranty, GOCODE’s sole obligation, and Customer’s exclusive remedy shall be for GOCODE to (i) correct any failure(s) of GOCODE Cloud to perform in all material respects in accordance with the Documentation or (ii) if GOCODE is unable to provide such a correction within thirty (30) days of receipt of notice of the applicable non-conformity, Customer may elect to terminate the applicable Order Form and GOCODE will promptly refund to Customer any pre-paid, unused fees paid by Customer to GOCODE under such Order Form.
7.4 Warranty Exclusions. The warranty set forth in the foregoing Section 7.3 does not apply: (i) to any trial use of GOCODE Cloud, (ii) to any non-production features of GOCODE Cloud (as may be designated by GOCODE from time to time), (iii) if GOCODE Cloud or any portion thereof has not been configured in accordance with the Documentation or has not been used in accordance with this Agreement and/or (iv) any bug, defect or error caused by or attributable to software or hardware not supplied by GOCODE. Additionally, the warranties set forth herein only apply when notice of a warranty claim is provided to GOCODE during the applicable Order Form Term.
7.5 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 7.2 AND 7.3, GOCODE CLOUD AND THE SUPPORT SERVICES ARE PROVIDED WITHOUT FURTHER WARRANTY OF ANY KIND AND GOCODE HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, REGARDING OR RELATING TO GOCODE CLOUD, AND/OR THE SUPPORT SERVICES OR ANY MATERIALS FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. FOR THE AVOIDANCE OF DOUBT AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, GOCODE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO GOCODE CLOUD AND THE SUPPORT SERVICES AND ANY MATERIALS FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. CUSTOMER UNDERSTANDS AND AGREES THAT GOCODE CLOUD AND THE SUPPORT SERVICES ARE NOT DESIGNED OR INTENDED FOR USE IN HIGH RISK ACTIVITIES.
8 INDEMNIFICATION
8.1 GOCODE Obligations. GOCODE will, at its expense, defend or settle any Infringement Claim and will indemnify Customer against and pay (i) any settlement of such Infringement Claim consented to by GOCODE or (ii) any damages finally awarded by a court of competent jurisdiction to such third party as relief or remedy in such Infringement Claim. GOCODE shall not enter into any settlement agreement with respect to an Infringement Claim if such settlement agreement requires any admission of liability or wrongdoing on the part of Customer or imposes on Customer any obligation other than the obligation to cease using GOCODE Cloud or Support Services that are subject to the Infringement Claim, unless Customer has first consented in writing to the applicable terms of such settlement agreement that are in conflict with the foregoing limitations.
8.2 Exclusions. GOCODE will have no obligation to Customer to the extent any Infringement Claim or resulting award is based upon or results from: (i) use of GOCODE Cloud other than in accordance with the terms and conditions of this Agreement, or (ii) the combination, operation, or use of GOCODE Cloud with any other applications, portions of applications, products or services not provided by GOCODE, where there would be no Infringement Claim but for such combination.
8.3 Certain Remedies. If GOCODE Cloud is, or in GOCODE’s reasonable opinion is likely to become, the subject of an Infringement Claim and/or an injunction as the result of an Infringement Claim, GOCODE may, at its expense and option: (i) obtain the right for Customer to continue to use GOCODE Cloud; (ii) modify GOCODE Cloud to make it non-infringing, but substantially functionally equivalent; or (iii) in the event that neither (i) or (ii) are, in GOCODE’s reasonable judgement, commercially reasonable options, terminate Customer’s right to use GOCODE Cloud, in which case GOCODE will promptly refund to Customer any pre-paid unused fees.
8.4 Obligations of Customer. Except with respect to a matter addressed under Section 8.1 of this Agreement, Customer will, at its expense (i) defend, or at its option settle, but subject to GOCODE’s prior written consent, not to be unreasonably withheld, a claim brought against GOCODE, its contractors, suppliers, licensors, and or respective directors, officers, employees and agents, arising out of or related to Customer’s use of GOCODE Cloud in violation of applicable law or which results in the alleged infringement of the intellectual property rights of any third party, and (ii) indemnify GOCODE against and pay (1) any settlement of such claim or (2) any damages finally awarded to such third party by a court of competent jurisdiction as the result of such claim.
8.5 Conditions. The obligations of the parties in this Section 8 are conditioned upon the indemnified party (“Indemnitee”) (i) notifying the indemnifying party (“Indemnitor”) promptly in writing of any threatened or pending claim for which indemnification is being sought (“Claim”), provided that failure to provide such notice will only relieve Indemnitor of its obligations under this Section 8 to the extent its ability to defend or settle an applicable Claim is materially prejudiced by such failure to provide notice, (ii) giving Indemnitor, at Indemnitor’s expense, reasonable assistance and information requested by Indemnitor in connection with the defense and/or settlement of the Claim and (iii) tendering to Indemnitor sole control over the defense and settlement of the Claim. Indemnitee’s counsel will have the right to participate in the defense of the Claim, at Indemnitee’s own expense. Indemnitee will not, without the prior written consent of Indemnitor, make any admission or prejudicial statement, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened Claim.
8.6 Exclusive Remedy. THE FOREGOING PROVISIONS OF THIS SECTION 8 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF GOCODE, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, OR TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT, OR MISAPPROPRIATION OF ANY TRADE SECRET, BY GOCODE CLOUD AND/OR THE SUPPORT SERVICES.
9 LIMITATION OF LIABILITY
9.1 Excluded Damages. IN NO EVENT SHALL CUSTOMER OR GOCODE, OR THEIR RESPECTIVE AFFILIATES, BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 Damages Caps. EXCEPT WITH RESPECT TO (I) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER (EXCLUDING A BREACH GIVING RISE TO A SECURITY INCIDENT), (II) THE PARTIES’ INDEMNIFICATION OBLIGATIONS HEREUNDER, (III) BREACHES ARISING OUT OF GROSS NEGLIGENCE OR WILFULL MISCONDUCT, (IV) VIOLATIONS OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS, (V) FEES OWED BY CUSTOMER TO GOCODE UNDER THIS AGREEMENT, (VI) CUSTOMER’S VIOLATIONS OF ITS OBLIGATIONS UNDER SECTION 1.2.3 AND (VII) SECURITY INCIDENTS, IN NO EVENT SHALL EITEHR PARTY’S TOTAL, CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO GOCODE UNDER AN APPLICABLE ORDER FORM FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE FIRST EVENT GIVING RISE TO LIABILITY. NOTWITHSTANDING THE FOREGOING SENTENCE, THE TOTAL LIABILITY OF GOCODE TO CUSTOMER RELATED TO OR ARISING OUT OF ANY TRIAL OR OTHER NON-PAID USE OF GOCODE CLOUD, OR THE USE OF ANY NON-PRODUCTION FEATURES OF GOCODE CLOUD, SHALL NOT EXCEED USD$10,000.
9.3 Enhanced Damages. NOTWITHSTANDING SECTION 9.2 ABOVE, GOCODE’S TOTAL, CUMULATIVE LIABILITY UNDER THIS AGREEMENT RELATED TO OR ARISING FROM A SECURITY INCIDENT SHALL NOT EXCEED THE GREATER OF USD$100,000 OR TWO TIMES THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO GOCODE UNDER AN APPLICABLE ORDER FORM FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE FIRST EVENT GIVING RISE TO THE SECURITY INCIDENT.
10 TERM AND TERMINATION
10.1 Order Form Term. Any Order Form entered into by the parties will commence upon the start date set forth therein, and will expire on end date set forth therein (“Order Form Term”).
10.2 Agreement Term. This Agreement will commence upon the Effective Date and continue for so long as you are using GOCODE Cloud(“Term”).
10.3 Termination. Either party may terminate this Agreement (and any active Order Form) upon giving notice in writing to the other party if the non-terminating party commits a material breach of this Agreement and has failed to cure such breach within thirty (30) days following a request in writing from the notifying party to do so. Termination of this Agreement in accordance with the foregoing sentence will automatically terminate any existing Order Forms. In addition, either party may terminate this Agreement upon written notice to the other party if no Order Form is or will be active under the Agreement on the effective date of such termination.
10.4 Survival. Upon the termination of this Agreement, (i) Customer shall have no further rights hereunder to use GOCODE Cloud; and (ii) the provisions of Sections 2, 4, 6, 7, 8, 9, 10.4, and 11 of this Agreement will survive such expiration or termination.
11 GENERAL
11.1 Anti-Corruption. Each party acknowledges that it is aware of, understands, and has complied and will comply with all applicable anti-corruption and anti-bribery laws in Singapore and other relevant jurisdictions, including but not limited to the Prevention of Corruption Act 1960 (Cap. 241) of Singapore, the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act 1992 (Cap. 65A), and any other applicable laws and regulations governing corruption and bribery (collectively, “Anti-Corruption Laws”).
Each party agrees that no one acting on its behalf will give, offer, agree or promise to give, or authorize the giving, directly or indirectly, of any money or other thing of value, including travel, entertainment, or gifts, to any person as an unlawful inducement or reward for favorable action, forbearance from action, or the exercise of unlawful influence, including but not limited to:
(a) Any public servant, government official, or employee, including employees of statutory boards, government-linked companies, or public international organizations;
(b) Any political party, official of a political party, or candidate;
(c) Any intermediary, agent, or third party for payment to any of the foregoing; or
(d) Any other person or entity in a corrupt or improper effort to obtain or retain business, secure an undue commercial advantage, or influence a decision, such as obtaining permits, licenses, or business opportunities.
Improper payments, bribes, kickbacks, influence payments, or any other form of unlawful inducements are strictly prohibited under this Agreement. Each party shall maintain accurate books and records and implement appropriate compliance controls to prevent any violation of Anti-Corruption Laws.
11.2 Assignment. Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other party, provided that no such consent will be required to assign this Agreement in its entirety to (i) an Affiliate that is able to satisfy the obligations of the assigning party under this Agreement or (ii) a successor in interest in connection with a merger, acquisition or sale of all or substantially all of the assigning party’s assets. Any assignment in violation of this Section shall be void, ab initio, and of no effect. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by, the parties and their respective permitted successors and assigns.
11.3 Attorneys’ Fees. If any action or proceeding, whether regulatory, administrative, at law or in equity is commenced or instituted to enforce or interpret any of the terms or provisions of this Agreement, the prevailing party in any such action or proceeding shall be entitled to recover its reasonable attorneys’ fees, expert witness fees, costs of suit and expenses, in addition to any other relief to which such prevailing party may be entitled. As used herein, “prevailing party” includes without limitation, a party who dismisses an action for recovery hereunder in exchange for payment of the sums allegedly due, performance of covenants allegedly breached, or consideration substantially equal to the relief sought in the action.
11.4 Customer Identification. Customer agrees that GOCODE may identify Customer as a user of GOCODE Cloud on its website, through a press release issued by GOCODE and in other promotional materials and may use Customer’s name. logo, trademarks and service marks in connection with such activities.
11.5 Export Control and Sanctions Compliance. Customer acknowledges that GOCODE Cloud, the Support Services, and related technologies are subject to Singapore’s Strategic Goods (Control) Act, the Regulation of Imports and Exports Act, and other applicable export control laws and regulations. Customer agrees to comply with all such laws and regulations, as well as any relevant international export control and economic sanctions laws, including those administered by the United Nations, the United States, and the European Union, to the extent applicable. Customer shall not export, re-export, transfer, or disclose any GOCODE goods, software, or technology to any person or entity in violation of such laws. Customer further acknowledges that remote access to GOCODE Cloud may, in certain circumstances, be deemed an export or re-export under these regulations and agrees to ensure compliance with all applicable requirements before granting such access.
11.6 Force Majeure. Except with respect to payment obligations, neither party will be liable for, or be considered to be in breach of, or in default under, this Agreement, as a result of any cause or condition beyond such party’s reasonable control.
11.7 Future Features and Functions. Customer understands and agrees that any features or functions of GOCODE Cloud referenced on any GOCODE website, or in any presentations, press releases or public statements, which are not currently available or not currently available as a GA release, may not be delivered on time or at all. The development, release, and timing of any features or functionality described for GOCODE Cloud remains at GOCODE’s sole discretion. Accordingly, Customer agrees that it is purchasing GOCODE Cloud based solely upon features and functions that are currently available as of the Effective Date, and not in expectation of any future feature or function.
11.8 Governing Law, Jurisdiction, and Venue. This Agreement will be governed by and construed in accordance with the laws of Singapore, without regard to its conflict of laws principles. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity, or termination, shall be referred to and finally resolved by the courts of Singapore. This Agreement shall not be governed by the 1980 UN Convention on Contracts for the International Sale of Goods. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any action or proceeding in the courts of Singapore, based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens, or any similar claim or defense. A breach or threatened breach by either party of Section 6 may cause irreparable harm for which damages at law may not provide adequate relief; therefore, the non-breaching party shall be entitled to seek injunctive relief from the courts of Singapore without being required to post a bond.
11.9 Non-waiver. Any failure of either party to insist upon or enforce performance by the other party of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be interpreted or construed as a waiver or relinquishment of such party’s right to assert or rely upon such provision, right or remedy in that or any other instance.
11.10 Notices. Any notice or other communication under this Agreement shall be in writing unless required or permitted otherwise elsewhere in this Agreement. It is the desire of the parties to receive all notices via e-mail. Notices for GOCODE will be sent to [email protected] Notices to Customer will be sent to the e-mail address provided by Customer when registering for an Account. Such notices will be deemed delivered if acknowledged received by return e-mail, or, if an Order Form exists, if followed within one day by a mailed copy of such notice to the physical address specified as the bill-to on an applicable Order Form. Either party may from time to time change its address or e-mail addresses for notices by giving the other party notice of the change in accordance with this Section.
11.11 Relationship of the Parties. The relationship of the parties hereunder shall be that of independent contractors, and nothing herein shall be deemed or construed to create any employment, agency or fiduciary relationship between the parties. Each party shall be solely responsible for the supervision, direction, control and payment of its personnel, including, without limitation, for taxes, deductions and withholdings, compensation and benefits, and nothing herein will be deemed to result in either party having an employer-employee relationship with the personnel of the other party.
11.12 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to give effect the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable.
11.13 Entire Agreement; Amendment
This Agreement, together with the Support Services Policy and the Data Processing Agreement (“DPA”), where applicable, constitutes the entire agreement between the parties concerning the subject matter hereof. It supersedes and governs all prior proposals, agreements, or other communications, whether oral or written, between the parties relating to such subject matter.
This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement. A scanned or electronically signed copy shall have the same legal effect as an original signature. The parties acknowledge and agree that this Agreement may be executed and delivered in the form of an “Electronic Record” and signed using an “Electronic Signature,” or executed electronically, including through online actions, email correspondence, or other digital communications evidencing mutual intent to be bound. The absence of a physical or electronic signature shall not affect the validity or enforceability of this Agreement. Any action taken by a party online or via email that demonstrates clear acceptance of the terms herein, including but not limited to clicking “I Agree,” submitting an online form, or continuing performance under this Agreement, shall constitute valid and binding acceptance. This agreement shall be enforced as recognized under the Electronic Transactions Act 2010 of Singapore (the “ETA”) or any equivalent laws in other jurisdictions. The fact that this Agreement is in electronic form and/or signed electronically or executed electronically shall not, in itself, be a basis for invalidating its enforceability.
In the event of any conflict between the terms of the documents incorporated herein, the order of precedence shall be as follows:
The applicable DPA; The applicable Order Form (but only for the transaction thereunder); This Agreement; and The Support Services Policy.
By entering into this Agreement, whether before or after receipt of any Customer purchase order or similar document, the parties expressly confirm that they do not intend to be bound by any terms in such purchase order or similar document.
Any such terms are hereby deemed rejected and extraneous to this Agreement. GOCODE’s performance under this Agreement shall not be construed as:
An acceptance by conduct of any terms set out in a purchase order or similar document; An amendment to this Agreement; or An agreement to amend this Agreement.
No modifications to this Agreement shall be valid unless set forth in a written amendment, expressly stating that it modifies this Agreement, and signed by duly authorized representatives of both GOCODE and the Customer.
The parties acknowledge that this Agreement results from mutual negotiations. Accordingly, the principle of contra proferentem (where ambiguities are interpreted against the drafter) shall not apply. Any ambiguity shall be reasonably construed in a fair and equitable manner without preference to either party.
