SensorFlow Pte. Ltd. (“SensorFlow“) is the developer and provider of certain data monitoring and technology control solution to manage power consumption in buildings, including Software-as-a-Service (“SensorFlow Software”), proprietary hardware (“SensorFlow Hardware”) and support services (collectively, the “Services”). SensorFlow may provide any of the Services hereunder through any of its subsidiaries and/or affiliates (each, a “SensorFlow Group Entity” and together with SensorFlow, the “SensorFlow Group”).
Any purchase order signed between you and SensorFlow (“Purchase Order”), this SensorFlow Terms of Service and all Specific Terms referenced in Section 1.1 below, collectively form the “Agreement”. Except to the extent that you and SensorFlow have executed a separate agreement varying the terms of the Agreement, these terms and conditions of the Agreement exclusively govern your access to and use of the Services and constitute a binding legal agreement between you and SensorFlow.
If you accept or agree to the Agreement on behalf of a company, organization or other legal entity (a “Legal Entity”), you represent and warrant that you have the authority to bind that Legal Entity to the Agreement and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
You acknowledge and agree that, by accessing, purchasing or using the Services, you are indicating that you have read, understand and irrevocably agree to be bound by the terms of the Agreement whether or not you have created an account with SensorFlow, and the SensorFlow Terms of Service shall be valid, legally binding and enforceable against you as of the date on which you purchased or commenced access or use the Services, whichever is the earlier (the “Effective Date”). If you do not agree to these SensorFlow Terms of Service and all applicable Specific Terms, then you shall have no right to access or use any of the Services.
SensorFlow reserves the exclusive right to periodically update the Agreement unilaterally at its discretion at any time, by posting the modified version on its official website or otherwise provide you with notice of the modification. You are encouraged to review these SensorFlow Terms of Service periodically for changes. Your continued access and use of the Services after the posting of any modifications to the relevant terms shall constitute your acceptance of the modified Agreement without any further action being required on your part. If the terms of the Modified Agreement are not acceptable to you, your only recourse is to cease using the Services.
1. USE OF SERVICES
1.1 Specific Terms. Your use of the Services is subject to the applicable additional terms as shown below (collectively, the “Specific Terms”), each of which supplements this SensorFlow Terms of Service and is incorporated into the Agreement:
If there is any conflict between this SensorFlow Terms of Service and the Specific Terms, the Specific Terms govern in relation to the relevant Service.
1.2 Changes to Offered Services. SensorFlow reserves the right, at its sole discretion, to modify, update, discontinue or terminate any component of the Services at any time.
1.3 Changes to Subscribed Services via Addendum. At any time, you may request to change or supplement any of the Services and in such event, the parties shall execute an addendum to your Purchase Order (the “Addendum”) to revise the scope of the Services which you are subscribing for and the applicable fees accordingly. The Addendum will only be effective, and the proposed changes will only be binding on the parties, when the Addendum has been duly signed by each party. For the avoidance of doubt, as of the effective date of the Addendum, such Addendum shall form part of, and be subject to the provisions of, the Agreement and shall have the same force and effect as if expressly set out in the Agreement.
1.4 Consent to Use of Data. You acknowledge and agree that SensorFlow may:
(b) use the Data for SensorFlow’s internal research and product development purposes (including to improve the Services) and to conduct statistical analysis.
1.5 Your Rights to Data. You shall be granted a royalty-free license, for the duration of the Agreement, to extract, utilize or re-utilize, exploit, analyze, share, disclose, copy, distribute the Data for your internal purposes only. For the avoidance of doubt, the license granted under this Section 1.5 does not include or otherwise relate to the Services or any of its components.
2. SENSORFLOW ACCOUNT
2.1 Each end-user nominated and authorised by you (including but not limited to your directors, officers, employees, representatives, consultants and agents) is required to create an account with SensorFlow to use the Services (each, an “Authorised User”). You are responsible for the activities of all your Authorised Users who access or use the Services and you agree to ensure that any such Authorised User will comply with the terms of the Agreement and any SensorFlow policies. SensorFlow assumes no responsibility or liability for violations. If you become aware of any breach of the Agreement, account terms or SensorFlow policies in connection with use of the Services by any person, please contact us. SensorFlow reserves the right to, with or without notice, in appropriate circumstances and in our sole and absolute discretion, conduct investigations and suspend or terminate all accounts associated with you or the accounts of specific Authorised Users if there is any actual or suspected breach of the Agreement, f copyright infringement, or offensive, abusive or illegal conduct. If any account associated with you is terminated for cause, you are not entitled to any refund for any amounts paid to SensorFlow for any Services.
2.2 Authorised Users may terminate their accounts at any time and for any reason, by notifying us by email at [email protected] but any such termination will be effective only after SensorFlow has processed the request.
3. INTELLECTUAL PROPERTY RIGHTS
3.1 Services. You hereby acknowledge and agree that SensorFlow and/or the SensorFlow Group are the sole legal and beneficial owner of all rights, title, benefits and interests in and to the Services (including the SensorFlow Software and SensorFlow Hardware) and deliverables provided under the Agreement, including all customisations, updates, upgrades, modifications, derivative works and all Intellectual Property Rights relating thereto, any sales, marketing and promotional materials relating thereto, and all documents and other copies and tangible embodiments of all of the foregoing.
3.2 Data. All rights (including Intellectual Property Rights), title, benefits and interests in and to the Data shall be and remain the property of SensorFlow and/or the SensorFlow Group.
3.3 Trademarks. All trademarks, service marks, logos, trade names and any other proprietary designations of used herein are trademarks or registered trademarks of SensorFlow and/or the SensorFlow Group. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
3.4 No Rights Granted. Except for rights expressly granted under the Agreement, nothing in the Agreement shall be construed to assign or grant to you, and you shall not claim, any rights, title, ownership or interest in and to the Services, SensorFlow Software, SensorFlow Hardware, and/or any deliverables provided under the Agreement, including all modifications, upgrades, derivative works and all intellectual property relating thereto, or any sales, marketing and promotional materials relating thereto.
3.5 Additional Restrictions. Your use of the Services may be subject to additional restrictions as set out in the relevant Specific Terms applicable to such Services.
3.6 Feedback. The SensorFlow Group shall have a royalty-free, worldwide, irrevocable, perpetual licence to use and incorporate into the Services any suggestions, enhancement requests, recommendation or other feedback provided by you relating to the Services.
3.7 Marketing and Promotional Material. The SensorFlow Group may use your identifying logo or trademark or any other of your identifying marks, and patent markings (collectively, the “Licensed Marks”), in connection with the sale, marketing and promotion of the Services in all marketing or promotional material, including but not limited to, flyers and website advertising or marketing and you hereby grant SensorFlow a limited and restrictive licence in respect of the Licensed Marks for the foregoing purposes only. You shall assist in providing testimonials and statistics when required.
3.8 Restrictions and Prohibitions. In relation to any SensorFlow Group Entity’s intellectual property:
(a) you shall not, and shall not permit any person to, access or use any part or component of the Services for any purpose or in any manner other than as set out in the Agreement;
(b) you shall not, and shall not permit any person to, access or use any part or component of the Services in any way that could damage the reputation of any SensorFlow Group Entity or the goodwill or other rights associated with the Services;
(c) you shall not, and shall not permit any person to, do anything that will or might (whether directly or indirectly) affect, compromise, prejudice or conflict with any SensorFlow Group Entity’s Intellectual Property Rights in any manner;
(d) you shall not, and shall not permit any person to (save as otherwise permitted in the Agreement), copy, reverse engineer, decompile, disassemble, attempt to derive the source code of, modify, create derivative works of, re-post or re-publish to other applications or websites, change, or distribute, license, sub-license, transfer or otherwise make available to any third party any aspect of any SensorFlow Group Entity’s intellectual property in any manner;
(e) you shall not, and shall not permit any person to, use any SensorFlow Group Entity’s intellectual property or any materials incidental thereto to develop any products or services (including any software, hardware or firmware) that is competitive with the SensorFlow Software. Any such modifications shall immediately become the sole and exclusive property of SensorFlow and/or the SensorFlow Group, and SensorFlow and/or the SensorFlow Group shall own all right, title and interests to such modified products, and any and all copyrights, patents and trade secrets related thereto; and
(f) you shall advise SensorFlow of any technical improvements or inventions made by you or any other party on your behalf relating to the SensorFlow Software. All such improvements or inventions shall become the property of SensorFlow and/or the SensorFlow Group, and you agree to execute any and all documents requested by SensorFlow in order to perfect its rights thereof, and any and all intellectual property relating thereto.
3.9 Your Undertakings. You agree that you will not, directly or indirectly, challenge or contest the validity of any SensorFlow Group Entity’s Intellectual Property Rights, or any registrations thereof and/or applications therefore in any jurisdiction, or the right, title and interest of any SensorFlow Group Entity therein and thereto, nor will you claim or register any interest in any SensorFlow Group Entity’s Intellectual Property Rights in any jurisdiction, other than the rights expressly granted under the Agreement. All present and future right in and to any intellectual property rights of any kind including without limitation all rights arising out of trade secrets, patents, copyrights, trademarks, service and other marks, know-how and any other proprietary rights of any type under any applicable laws shall, at all times be and remain the sole and exclusive property of SensorFlow and/or the SensorFlow Group and their licensors and affiliates, as the case may be.
3.10 Further Assurance. You undertake and agree to cooperate with and assist the SensorFlow Group in the protection of all Intellectual Property Rights (including but not limited to trademarks, patents, or copyrights) owned by and/or licensed to you (including any rights relating to the Services) and shall inform SensorFlow immediately of any infringements or other improper action relating thereto that may come to your attention.
3.11 For the purposes of this Section 3:
“Data” means all and any data, facts, statistics and other information whatsoever concerning or relating to, or obtained or collected from, the use of the Services, or developed by or on behalf of any party in connection with the Services, whether in the form of electrical signals and recorded on magnetic, optical or mechanical recording media or other intangible form, or any written, machine readable or other tangible form, or obtained by recipient through observation or examination of such information and material, or disclosed orally by any party, and including any such data that is loaded into, or located in, any data files, tables, objects or other storage medium developed or maintained by or on behalf of any party, including all derivative works of, based on, derived from or otherwise using any of the foregoing; and
“Intellectual Property Rights” means intellectual property rights of any kind including, without limitation, all rights in or arising out of patents, trade, service and other marks, registered designs (and applications for all of the same), copyrights and rights affording equivalent protection to copyrights, database rights, mask work rights, design rights, moral rights, rights protecting trade secrets and confidential information, rights protecting goodwill and reputation, and all other similar corresponding proprietary rights and all applications for the same, trade, product, brand and business names, logos, get-ups, inventions, discoveries, improvements, derivative works, designs, techniques, computer programs, trade secrets, supply distributorship agency and other like agreements, technical and commercial know-how and confidential processes, and information including rights acquired under licences or other agreements in connection with any of the same, all derivatives and full right to all intellectual property and legal protection relating to the same and in every case (unless the context otherwise requires), whether presently existing or created in the future, anywhere in the world, whether registered or not, and all benefits, privileges, rights to sue, recover damages and obtain relief for any past, current or future infringement, misappropriation or violation of any of the foregoing rights.
4. FEES, INVOICING AND PAYMENT
4.1 Fees and Payment Terms. The fees and payment terms applicable to the Services shall be as set out in your Purchase Order and the applicable Specific Terms and you agree to pay all amounts due for the Services in accordance with SensorFlow payment terms and, if applicable, those of any payment processor.
4.2 Fee Modification. SensorFlow reserves the right to revise, increase or modify the Fees (by a reasonable amount, taking into account factors such as inflation and supply costs and provided that the increase in such fees shall not exceed 10% year on year for the same invoicing volume and Services provided) or add new fees and charges for any of the Services from time to time and shall provide written notice of the same to you in advance of such revised fees becoming effective. Your continued access and use of the Services after the effective date of any such revised fees shall be considered your deemed acceptance and agreement to the revised fees, as applicable. If you do not agree to any amended or additional fees, your only recourse is to cease using the Services and terminate the Agreement in accordance with the termination provisions herein.
4.3 No Refund. Except as expressly provided otherwise in your Purchase Order or the relevant Specific Terms, all fees are non-refundable.
5.1 To ensure compliance with the Agreement, you agree that within ten (10) days from the date of SensorFlow or its authorized representative’s request, you shall provide all pertinent records and information requested in order to verify that your access and use of any and all Services is in compliance with the Agreement along with a signed verification that all such information is complete and correct. Furthermore, if you are a Legal Entity, SensorFlow or its authorized representatives may upon reasonable prior notice access and inspect your facilities and computer systems to review and verify your compliance with the Agreement. Any such inspection shall be conducted during regular business hours at your facilities or electronically via remote access.
6. TERM AND TERMINATION
6.1.1 The Agreement commences on the effective date specified in your Purchase Order and shall continue in force unless terminated earlier in accordance with this Section 6.
6.1.2 The subscription term(s) applicable to your subscribed Service(s) shall be as specified in your Purchase Order and the relevant Specific Terms applicable to such subscribed Service.
6.2 Immediate Termination without Notice. Notwithstanding Section 6.1, SensorFlow shall have the right to, in its sole discretion, suspend or terminate the Agreement or any of the Specific Terms and/or your right or ability to access or use any of the Services without prior notice and with immediate effect in the event that:
(a) you are in material breach of any provision of the Agreement which is not capable of remedy or (where such breach is capable of remedy) you fail to remedy such breach within thirty (30) days after receipt of a written notice from SensorFlow requiring such breach to be remedied;
(b) you are in actual or potential breach of any legal or regulatory requirements;
(c) you become the subject of any voluntary or involuntary bankruptcy, receivership, judicial management or any other insolvency proceedings whether in Singapore or elsewhere (other than for the purpose of a solvent company reorganisation where the resulting entity assumes all the obligations of the other party under the Agreement) or makes an assignment or other arrangement for the benefit of its creditors, or is otherwise unable to pay your debts;
(d) you sell or assign any of your rights and obligations under the Agreement without SensorFlow’s prior written consent or if you undergo a change in control; or
(e) you have provided false, incorrect or misleading information, or otherwise withheld information, in either case which is material to the performance of your obligations hereunder.
6.3 Rights of Termination available at Law. For the avoidance of doubt, the rights of termination set out in the Agreement shall not exclude any rights of termination available at law.
6.4 Effects of Suspension or Termination. Upon the suspension, expiration or termination of the Agreement:
(a) all rights and licences granted by SensorFlow to you under or in connection with the Agreement shall immediately and automatically cease;
(b) SensorFlow will terminate and close your account (where applicable);
(c) SensorFlow shall have no further obligation to provide, and shall terminate the provision of, any or all Services to you;
(d) you shall discontinue all uses of any ongoing Services and any SensorFlow Software and SensorFlow Hardware immediately and shall within seven (7) days following the termination of the Agreement return (i) all materials containing the SensorFlow Software and (ii) the SensorFlow Hardware to SensorFlow;
(e) you shall within seven (7) days following the termination of the Agreement remit to SensorFlow all amounts due and payable without any further notice or demand by SensorFlow, and you further agree to reimburse SensorFlow for and any reasonable attorneys’ fees or legal expenses incurred for the collection of any such amounts due and payable by you to SensorFlow;
(f) each party shall discontinue all uses of the other party’s intellectual property immediately and shall within seven (7) days following the termination of the Agreement return all materials containing the other party’s intellectual property;
(g) each party shall return or destroy the other party’s Confidential Information in accordance with Section 10.3; and
(h) all provisions of the Agreement which by their nature are intended to survive expiration or termination of the Agreement (including, without limitation, Sections 3, 8, 9, 10, 11, 13, 14) shall survive the termination or expiry of the Agreement and shall continue to have full force and effect.
6.5 Accrued Rights. Except to the extent provided otherwise herein, the termination of the Agreement shall not affect any rights, obligations or liabilities of either party which accrue before termination or which are intended to continue to have effect beyond termination.
6.6 No Refund. Except as expressly provided otherwise in your Purchase Order or the relevant Specific Terms, you shall not be entitled to any refund in respect of any fees paid in respect of any Services in any incomplete period.
7.1 THE SERVICES ARE ALL PROVIDED BY THE SENSORFLOW GROUP ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OF ANY KIND. THE SENSORFLOW GROUP MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO ANY HARDWARE OR ANY PART THEREOF AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, THE SENSORFLOW GROUP DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW OR STATUTE, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING (WITHOUT LIMITATION) ANY AND ALL (A) WARRANTIES OF MERCHANTABILITY; (B) WARRANTIES REGARDING FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT ANY SENSORFLOW GROUP ENTITY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); (C) WARRANTIES REGARDING NON-INFRINGEMENT OR CONDITION OF TITLE; (D) WARRANTIES THAT THE SERVICES ARE VIRUS-FREE, WILL OPERATE UNINTERRUPTED OR ERROR-FREE OR SUCH ERRORS WILL BE CORRECTED, AND THE SENSORFLOW GROUP DISCLAIMS ALL LIABILITY WITH RESPECT TO ANY FAILURES OF THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ANY SENSORFLOW GROUP ENTITY OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THE AGREEMENT. Some states / jurisdictions do not allow exclusion of implied warranties or limitations on the duration of implied warranties, so the above disclaimer may not apply to User in its entirety. To the extent applicable law requires any SensorFlow Group Entity to provide warranties, you agree that the scope and duration of such warranty shall be to the minimum extent permitted under such applicable law.
7.2 YOU AGREE THAT THE USE OF THE SMARTALLOC SOFTWARE IS AT YOUR SOLE RISK AS TO SATISFACTORY QUALITY PERFORMANCE, ACCURACY AND EFFORT. YOU UNDERSTAND THAT YOU MUST EVALUATE AND BEAR ALL RISKS ASSOCIATED WITH YOUR USE OF THE SERVICES, OR YOUR RELIANCE ON THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE SERVICES.
7.3 IN NO EVENT DOES THE SENSORFLOW GROUP PROVIDE ANY WARRANTY OR REPRESENTATIONS WITH RESPECT TO ANY THIRD-PARTY HARDWARE OR SOFTWARE WITH WHICH THE SERVICES ARE DESIGNED TO BE USED, AND THE SENSORFLOW GROUP DISCLAIMS ALL LIABILITY WITH RESPECT TO ANY FAILURES THEREOF. USE OF THE SERVICES, SENSORFLOW SOFTWARE AND/OR SENSORFLOW HARDWARE MAY ADVERSELY AFFECT THE OPERATION OF OTHER SOFTWARE AND DEVICES. SOFTWARE IS INHERENTLY SUBJECT TO BUGS AND POTENTIAL INCOMPATIBILITY WITH OTHER SOFTWARE AND HARDWARE. YOU SHOULD NOT USE THE SERVICES, SENSORFLOW SOFTWARE AND/OR SENSORFLOW HARDWARE FOR ANY APPLICATIONS IN WHICH FAILURE COULD CAUSE ANY SIGNIFICANT DAMAGE OR INJURY TO PERSONS OR TANGIBLE OR INTANGIBLE PROPERTY.
7.4 BY INSTALLING AND USING ANY SERVICES, SENSORFLOW SOFTWARE AND/OR SENSORFLOW HARDWARE, YOU UNDERSTAND AND ACCEPT THAT THE OPERATION OF THE SERVICES, SENSORFLOW SOFTWARE AND SENSORFLOW HARDWARE AND THEIR PERFORMANCE MAY BE SUBJECT TO A VARIETY OF FACTORS OUT OF THE CONTROL OR BEYOND THE KNOWLEDGE OF ANY SENSORFLOW GROUP ENTITY (SUCH FACTORS INCLUDE, BUT ARE NOT LIMITED TO, ENVIRONMENTAL CONDITIONS, OVERALL DESIGN OF YOUR SYSTEMS, SUFFICIENT KNOWLEDGE POSSESSED BY YOU OR YOUR STAFF, WHETHER IN RELATION TO THE INSTALLATION AND OPERATION OF THE SERVICES, SENSORFLOW SOFTWARE OR SENSORFLOW HARDWARE OR OTHERWISE). YOU ACKNOWLEDGE THAT CERTAIN PERFORMANCE PARAMETERS OF THE SERVICES, SENSORFLOW SOFTWARE AND/OR SENSORFLOW HARDWARE MAY BE AFFECTED BY SUCH FACTORS AND THE SENSORFLOW GROUP HAS NO MEANS OF PREDICTING, ASSESSING OR PREVENTING THE OCCURRENCE OR EFFECTS OF SUCH FACTORS. YOU EXPRESSLY AGREE THAT YOU UNDERSTAND THE SERVICES, SENSORFLOW SOFTWARE AND/OR SENSORFLOW HARDWARE ARE ONLY A PART OF A PROGRAMMING SYSTEM, AND OTHER COMPONENTS OF THE PROGRAMMING SYSTEM ARE NOT PROVIDED BY THE SENSORFLOW GROUP, BUT SUCH OTHER COMPONENTS MAY AFFECT THE OVERALL OPERATION AND FUNCTIONALITY OF THE SERVICES, SENSORFLOW SOFTWARE AND/OR SENSORFLOW HARDWARE. YOU HEREBY UNDERTAKE NOT TO MAKE ANY CLAIM AGAINST ANY SENSORFLOW GROUP ENTITY FOR ANY FAILURE OR COMPROMISED PERFORMANCE OF ANY SERVICES, SENSORFLOW SOFTWARE AND/OR SENSORFLOW HARDWARE OR ANY DIRECT OR INDIRECT CONSEQUENCE OF SUCH FAILURE OR COMPROMISED PERFORMANCE.
8.1 Indemnity. Subject to the provisions of Article 10, you and SensorFlow (each, an “Indemnifying Party“) shall indemnify, hold harmless and, at no expense to the other party, defend such other party and its respective directors, officers, employees, and authorized agents and other representatives (and in the case of SensorFlow, includes the other SensorFlow Group Entities and their respective directors, officers, employees, and authorized agents and other representatives) (each an “Indemnified Party“) from and against any and all third-party claims, demands, actions, suits, proceedings, damages, liabilities, losses, fines, penalties, judgments, awards, settlements, costs and expenses (including attorneys’ fees and court) arising from, or related in any manner whatsoever to (a) any actual or alleged breach of this Agreement; and (b) any actual or alleged infringement or other violation of a third-party’s intellectual property rights by the Indemnifying Party.
8.2 Exercise of Indemnity Rights. The right of the Indemnified Party to indemnification and/or a defense (collectively, “Indemnity“) hereunder by the Indemnifying Party shall be conditioned on the following:
(a) the Indemnified Party must give the Indemnifying Party prompt written notice of any third-party claim, for which it is seeking Indemnity, although the Indemnified Party’s failure to provide such prompt notice will not relieve the Indemnifying Party of any obligation or liability under this Section except to the extent the Indemnified Party has been materially prejudiced by such failure;
(b) the Indemnifying Party shall have sole control of the defense and any settlement or other resolution of such third-party claim with legal counsel approved by both parties, so long as the representation is zealous, legal counsel is reputable, there is no conflict of interest in representing the Indemnified Party, and the Indemnified Party is recognized as the client of legal counsel;
(c) the Indemnified Party shall at all times fully cooperate with, and at the Indemnifying Party’s expense, provide such assistance as reasonably requested by the Indemnifying Party, in connection with any investigation or defense of such third-party claim; and
(d) the Indemnified Party shall not enter into any settlement, compromise or other resolution of such third-party claim, without the Indemnifying Party’s prior written consent, which shall not be unreasonably withheld or delayed.
8.3 Settlement of Third-Party Claims. Notwithstanding anything to the contrary herein, no compromise or settlement of any such third-party claim may be committed to by the Indemnified Party without the Indemnifying Party’s prior written consent, unless:
(a) it includes a full discharge and release of liability for the Indemnifying Party; and
(b) it involves no admission or commitment by or on behalf of the Indemnifying Party other than the payment of money to be fully indemnified hereunder by the Indemnified Party.
9. LIMITATION OF LIABILITY
9.1 Limitation of Liability. SAVE FOR THE LIABILITY OF ANY PARTY ARISING FROM SECTIONS 3, 8, 10 and 11 OR ANY GROSS NEGLIGENCE, FRAUD, OR WILLFUL OR INTENTIONAL MISCONDUCT ON THE PART OF SUCH PARTY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY CLAIMS, LOSSES, DISPUTES, SUITS OR CAUSES OF ACTION (COLLECTIVELY, “CLAIMS”) BASED ON, OR ARISING OUT OF (I) THE AGREEMENT, (II) ANY LOSS, SUSPENSION OR INTERRUPTION OF SERVICE IN RELATION TO THE SOFTWARE OR, AS THE CASE MAY BE, THE SENSORFLOW HARDWARE, (III) THE PERFORMANCE OF SERVICES OR OTHER OBLIGATIONS AND/OR THE EXERCISE OF RIGHTS UNDER THIS AGREEMENT, (IV) ANY INJURY TO PROPERTY OR OTHERWISE, (V) ANY FAILURE OF EITHER PARTY’S WEBSITE OR ONLINE SERVICE TO OPERATE, (VI) ANY ERRORS IN OR IN CONNECTION WITH EITHER PARTY’S WEBSITE, (VII) ANY LACK OF ACCESS TO EITHER PARTY’S WEBSITE OR ONLINE SERVICE, (VIII) ANY BREACH OF SECURITY RESULTING IN LOSS OF USER DATA, OR (IX) ANY LOSS ARISING FROM ANY USE OF THE SOFTWARE OR, AS THE CASE MAY BE, THE SENSORFLOW HARDWARE. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY SUCH PARTY HEREUNDER. EACH PARTY MAY INTERRUPT ITS WEBSITE OR ONLINE SERVICE AT ANY TIME TO PERFORM MAINTENANCE, TO ADDRESS SECURITY BREACHES, OR FOR ANY OTHER REASON, OR NO REASON AT ALL, WITH NO LIABILITY TO THE OTHER PARTY WHATSOEVER. THE LIABILITIES LIMITED BY THIS SECTION INCLUDE WITHOUT LIMITATION LIABILITY FOR NEGLIGENCE.
9.2 Consequential, etc Damages. EXCEPT AS PROVIDED HEREIN, IN NO EVENT WILL EITHER PARTY, OR ITS AFFILIATES, INDEPENDENT CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR LOST BUSINESS OPPORTUNITY) THAT THE OTHER PARTY MAY INCUR OR EXPERIENCE BY REASON OF ITS HAVING ENTERED INTO OR RELIED ON THIS AGREEMENT, OR ARISING OUT OF THE PERFORMANCE OF THIS AGREEMENT, EVEN IF THE PARTY TO BE CHARGED WAS ADVISED OR KNEW OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION WILL APPLY REGARDLESS OF THE FORM OF THE CLAIM(S), IN WHICH SUCH LIABILITY MAY BE ASSERTED, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. FOR THE AVOIDANCE OF DOUBT, THE LIMITATIONS IN THIS SECTION 9.2 DO NOT APPLY TO THE INDEMNITY GIVEN BY YOU PURSUANT TO SECTION 9.1.
9.3 Limitation on Amount of Damages. EXCEPT AS PROVIDED HEREIN, IN NO EVENT WILL THE CUMULATIVE DAMAGES TO WHICH EITHER PARTY MAY BE ENTITLED UNDER THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH DAMAGES MAY BE BASED, EXCEED WHICHEVER OF THE FOLLOWING AMOUNTS IS APPLICABLE: (I) THE TOTAL AMOUNT PAID AND OWED BY ONE PARTY TO THE OTHER PARTY AFTER THE ACCEPTANCE DATE HEREOF AND DURING THE TWELVE CALENDAR MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED OR, (II) IF LESS THAN TWELVE CALENDAR MONTHS AFTER THE ACCEPTANCE DATE AND PRIOR TO THE DATE ON WHICH THE CLAIM FIRST ACCRUED, THEN THE AVERAGE AMOUNT PAID OR OWED BY A PARTY TO THE OTHER PARTY DURING APPLICABLE NUMBER OF SUCH MONTHS PRIOR TO ACCRUAL OF THE CLAIM, MULTIPLIED BY TWELVE. THE EXISTENCE OF MORE THAN ONE CLAIM DURING THE TERM HEREOF WILL NOT ENLARGE THIS LIMIT. FOR THE AVOIDANCE OF DOUBT, THE LIMITATIONS IN THIS SECTION 9.2 DO NOT APPLY TO THE INDEMNITY GIVEN BY YOU PURSUANT TO SECTION 9.1.
10.1 Confidentiality Obligations. Each party to the Agreement shall at all times keep confidential and not disclose to any third party the Confidential Information except as permitted by this Section 10 and for the purposes of performing their obligations under the Agreement, and agrees to protect the Confidential Information with security measures and a degree of care that would apply to its own confidential information, but in any event, no party shall exercise less than reasonable care in protecting such Confidential Information.
10.2 Permitted Disclosures. Notwithstanding Section 10.1 above, the receiving party may disclose Confidential Information:
(a) to its affiliates (including, in the case of SensorFlow, the SensorFlow Group Entities);
(b) to its and its affiliates’ officers, directors, employees, auditors, advisors, subcontractors and other persons providing services to it where (provided that such person is under a duty of confidentiality in relation to the Confidential Information, whether professional, contractual or otherwise) on a need-to-know basis and/or to the extent necessary for the receiving party to perform its obligations under the Agreement;
(c) where requested or required by law, regulation and/or any court of competent jurisdiction or any competent banking, taxation, judicial, governmental, supervisory, regulatory or equivalent body, and in this respect the receiving party shall (to the extent legally permitted) provide the disclosing party with prior notice of such compelled disclosure and reasonable assistance at disclosing party’s cost, if the disclosing party wishes to contest such compelled disclosure; and
(d) to any other person where necessary for the performance of its obligations under the Agreement or with the consent of the disclosing party.
10.3 Return/Destruction of Confidential Information. Upon termination of the Agreement or upon the written request of the other party, each party shall, where technically practicable and within a reasonable time, return to the other party or destroy (as the other party shall specify) all copies of all the other party’s Confidential Information in the receiving party’s possession and shall, upon request, provide the other party with a written certification, signed by one of its officers, certifying the destruction or return of such Confidential Information.
10.4 Remedies. If the receiving party discloses or uses (or threatens to disclose or use) any Confidential Information of the disclosing party in breach of this Section 10, the disclosing party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, without the necessity of posting bond, it being specifically acknowledged by the parties that any other available remedies are inadequate.
10.5 Survival. Notwithstanding any other provisions of the Agreement, the obligations of confidentiality under this Section 10 shall survive the termination or expiration of the Agreement.
10.6 For the purposes of this Section 10, “Confidential Information” means all and any data and information whether in written, machine readable or other tangible form, or obtained by recipient through observation or examination of such information and material or disclosed orally, that is proprietary, confidential and of value to the disclosing party, is not generally known to competitors of the disclosing party, including but not limited to (a) information concerning or relating in any way whatsoever to its business, distributorship, franchise or other arrangements, principals, any of the trade secrets or confidential operations, processes or inventions carried on or used by the disclosing party, any information concerning the organisation, business, finances, transactions or affairs of the disclosing party, its dealings, secret or confidential information which relates to its business or any of its principals’, clients’ or customers’ transactions or affairs, its technology, designs, documentation, manuals, budgets, financial statements or information, accounts, dealers’ lists, customer lists, marketing studies, drawings, notes, memoranda and the information contained therein, any information therein in respect of trade secrets, technology and technical or other information relating to the development, manufacture, clinical testing, analysis, marketing, sale or supply or proposed development, manufacture, clinical testing, analysis, marketing, sale or supply of any products or services by the disclosing party, and plans for the development or marketing of such products or services and information and material which is either marked confidential or is by its nature intended to be exclusively for the knowledge of the recipient alone; (b) all information or materials prepared in connection with the Agreement or any related subsequent contract and includes, without limitation, all of the following: designs, software, programs, drawings, specifications, techniques, models, data, source code, object code, documentation, diagrams, flow charts, research, development, processes, procedures, ideas, data, “know-how”, new product or new technology information, product prototypes, product copies, manufacturing, development or marketing techniques and materials, development timetables, strategies and development plans, including trade names, trademarks, customer, the disclosing party’s name or personal names and other information related to customers, the disclosing party or its personnel, pricing policies and financial information, and other information of a similar nature, whether or not reduced to writing or other tangible form, and any other trade secrets or non-public business information; and (c) in the case of SensorFlow as the disclosing party, without limiting the foregoing, the code, technology, intellectual property and business operations of SensorFlow. For the avoidance of doubt, “Confidential Information” shall exclude any item of information which (i) is or become available in the public domain without the fault of the receiving party; (ii) is disclosed or made available to the receiving party by a third party without restriction and without breach of any relationship of confidentiality; (iii) is independently developed by the receiving party without access to the disclosing party’s Confidential Information; or (iv) is known to the receiving party prior to disclosure by the disclosing party.
11. DATA PROTECTION (WHERE APPLICABLE)
11.2 Consent. By disclosing personal data to SensorFlow, you warrant that you have obtained the necessary consent from the relevant individuals in accordance with applicable data protection and privacy laws to disclose such personal data.
11.3 Compliance with Laws. In respect of any personal data collected, used, disclosed or processed pursuant to the Agreement, SensorFlow shall ensure that it complies with all applicable data protection and privacy laws that relate to its collection, use, disclosure and processing of such personal data. Without limiting the foregoing, SensorFlow shall take appropriate technical and organisational measures (and, if applicable, information security policy) against any unauthorised or unlawful disclosure, or accidental loss or destruction of, or damage to, any such personal data.
11.4 Data Processor. In the event that SensorFlow is deemed to be processing personal data on your behalf (in such capacity, a “data processor“), you consent to the processing by such data processor of such personal data for the purposes of performing (or enabling the performance of) any obligations under the Agreement and for the internal business purposes of SensorFlow (including but not limited to data analytics, machine learning, improvement of its technology and systems), and the transfer of such personal data to any affiliates of SensorFlow and their respective agents, representatives and subcontractors, and to anywhere in the world.
12. REPRESENTATIONS AND WARRANTIES
12.1 Representations and Warranties. You and SensorFlow each represent and warrant that:
(a) you are/it is a corporation duly incorporated, organized or operating under the laws of your/its jurisdiction of incorporation;
(b) you have/it has full legal right and power and all authority and approvals required to enter into the Agreement and to perform fully your/its obligations hereunder which constitute valid and binding obligations enforceable against in accordance with its terms;
(c) your/its entry into and performance of the Agreement will not (i) conflict with or result in any breach or violation of any of the terms and conditions of, or constitute (or with notice or lapse of time or both constitute) a default under, any applicable law or order or any contract to which you are/it is a party or by or to which it is bound or subject; (ii) violate any order against, or binding upon, it or upon your/its securities, properties or business; and (iii) violate any law;
(d) you/SensorFlow shall at all times comply with all laws, rules and regulations applicable to you/SensorFlow, the conduct of its business and the performance of its obligations under the Agreement, including, without limitation, laws relating to anti-money laundering, data protection and consumer rights; and
12.2 SensorFlow’s Additional Representations and Warranties. SensorFlow additionally represents and warrants that all Services to be provided hereunder will be performed in a diligent, professional, and workmanlike manner in good faith and according to good industry practices. The services provided under this agreement shall be warranted during the term of the Agreement.
13.1 Entire Agreement. The Agreement read in conjunction with your Purchase Order constitutes the entire agreement between yourself and SensorFlow with respect to your use of the Service and supersedes all prior oral and written agreements, memoranda, understandings and undertakings between the parties relating to the subject matter of the Agreement, unless you and SensorFlow have executed a separate written agreement governing your use of the Services, in which case such separate agreement(s) will control in relation to the relevant Services.
13.2 No Agency, Partnership etc. Nothing in the Agreement shall be deemed to constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between you and SensorFlow other than the contractual relationship expressly provided for in the Agreement. Neither party shall have, nor represent that it has, any authority to make any commitment on the other party’s behalf.
13.3 Consent to Specific Performance. You agree that it might be impossible to measure in money the damages which would accrue to SensorFlow by reason of failure to perform certain obligation hereunder. SensorFlow shall, therefore, be entitled to seek injunctive relief, including specific performance, to enforce such obligation and if any action should be brought in equity to enforce any of the provisions of the Agreement, you shall not raise the defence that there is an adequate remedy at law.
13.4 Force Majeure. In the event of a “Force Majeure”, neither party will be held liable for any failure or delay in performing its obligations as under this Agreement. A Force Majeure event means, in relation to either party, any event or circumstance beyond the reasonable control of that party including act of God, fire, explosion, natural disasters, epidemic, power failure, governmental actions, war or threats of war, acts of terrorism, national emergency, riot, civil disturbance, sabotage, labor disputes and strikes (other than in respect to the workforce of the party affected). A party affected by the Force Majeure (the “Affected Party”) shall immediately notify the other party (“Non-Affected Party) in writing of the event, giving sufficient details thereof and the likely duration of the delay. The Affected Party shall use all commercially reasonable efforts to recommence performances of its obligations under this Agreement as soon as reasonably possible, or at a time mutually agreed by both parties.
13.5 Waivers; Non-Contractual Remedies; Preservation of Remedies. No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any party of any such right, power or privilege, nor any single or partial exercise of any such right, power or privilege, preclude any further exercise thereof of the exercise of any other such right, power or privilege. The rights and remedies herein provided are cumulative and are not exclusive of any rights or remedies that any party may otherwise have at law or in equity.
13.6 Severability of Provisions. If any provision or any portion of any provision of the Agreement or the application of any such provision or any portion thereof to any person or circumstance, shall be held invalid or unenforceable, the remaining portion of such provision and the remaining provisions of the Agreement, and the application of such provision of portion of such provision as is held valid or enforceable to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby.
13.7 Successors and Assigns.
13.7.1 Save for any assignment contemplated in Sections 13.7.2 and 13.7.3 below, no party shall not have the right to assign all or any part of its interest in this Agreement without the prior written consent of the other party.
13.7.2 The parties expressly agree that SensorFlow may, at its sole discretion, sell, transfer, novate or assign its legal and beneficial interests in all or any of the Service fees or any other receivables due from you to SensorFlow under the Agreement, to any third party whatsoever, whether for the purpose of receivables financing or otherwise, provided that SensorFlow shall have given written notice to you in connection with such sale, transfer, novation or assignment.
13.7.3 Either party may transfer this Agreement and all or any part of its rights and obligations hereunder to any party or entity: (i) that acquires all or substantially all of the assets of the party, (ii) into which either party mergers, (iii) to whom a majority equity interest in either party is sold,
13.7.4 This Agreement shall be binding upon and shall inure to the benefit of the parties and their successors and permitted assigns.
13.8 Notices. Except as otherwise specified in writing, any notice or other communication required or permitted hereunder shall be in writing and shall be delivered personally or sent by certified, registered or express mail, postage prepaid, or by distribution via electronic mail, to the addresses and email addresses set out in your Purchase Order or to such other address as the parties may designate by written notice. Any such communication shall be deemed duly given, in the case of personal delivery and courier service, upon delivery and receipt of written acknowledgement thereof and in the case of registered mail, 14 days after posting, and in the case of electronic mail, upon confirmation of delivery and receipt, provided that if such day is not a business day or such time not a normal business hour then delivery shall be deemed to have occurred on the following business day. Notices of termination or an indemnifiable claim (“Legal Notices“) shall clearly be identifiable as Legal Notices.
13.9 Further Assurance. Each party shall do and execute or procure to be done and executed all such further acts, deeds, things and documents as may be necessary to give effect to the terms of the Agreement, and (so far as it is able) to provide such assistance as the other parties may reasonably request (including without limitation, exercising its power as shareholders) to give effect to the spirit and intent of the Agreement.
13.10 Time of Essence. Any date, time or period mentioned in any provision of the Agreement may be extended by mutual agreement between the parties but as regards any time, date or period originally fixed and not extended or any time, date or period so extended as aforesaid, time shall be of the essence.
13.11 Contracts (Rights of Third Parties) Act. Unless expressly provided to the contrary in the Agreement, a person who is not a party to the Agreement has no right under the Contracts (Rights of Third Parties) Act 2001 of Singapore to enforce or to enjoy the benefit of any term of the Agreement.
14. GOVERNING LAW AND JURISDICTION
14.1 This Agreement shall be governed by, and construed, in accordance with, the laws of Singapore and all disputes shall be submitted to the non-exclusive jurisdiction of the courts of Singapore.