Professional serviceS agreement
PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement is a legal agreement between you on behalf of a company or other entity as its representative (“You” or “Customer”) and TAFA Holdings (S) Pte Ltd or its affiliate for Customer’s primary jurisdiction as set forth in subsection 10A below (“TAFA”). Together You and TAFA are the “Parties” and individually a “Party”.
THIS AGREEMENT, AS FURTHER SPECIFIED BELOW, GOVERNS THE CUSTOMER’S PURCHASE AND RECEIPT OF TAFA PROFESSIONAL SERVICES, INCLUDING ANY DELIVERABLES.
CUSTOMER AGREES TO THESE TERMS AND CONDITIONS BY EITHER: (I) AGREEING TO AN ORDER WHERE THE AGREEMENT IS INCORPORATED BY REFERENCE; (II) ACCEPTING THE PROVISION OF PROFESSIONAL SERVICES OR DELIVERABLES (AS DEFINED BELOW), OR, (III), WHERE APPLICABLE, BY CLICKING ON THE “AGREE” OR “ACCEPT” BUTTON.
THE INDIVIDUAL ACCEPTING THIS AGREEMENT ON BEHALF OF CUSTOMER, REPRESENTS AND WARRANTS THAT: (I) THEY HAVE FULL AUTHORITY TO BIND THE CUSTOMER TO THIS AGREEMENT; AND (II) THE CUSTOMER IS BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF CUSTOMER DOES NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR IF THE INDIVIDUAL ASSENTING IS NOT AUTHORIZED TO ASSENT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF THE ENTITY THEY REPRESENT, DO NOT USE THE SERVICES OR DELIVERABLES (AS DEFINED BELOW).
1. Scope. This Agreement will govern TAFA’s performance of the professional services specified in an applicable order (placed either directly with TAFA or indirectly through a TAFA authorized reseller) which incorporates by reference these terms (“Order”). For clarity, the provision of any technical support by TAFA is outside the scope of this Agreement and is governed in accordance with the TAFA Solution License Agreement or any applicable master agreement between TAFA and Customer.
2. Services; Deliverables.
A. Subject to the terms and conditions of this Agreement, TAFA will provide Customer with the professional services (“Services”) and deliverables (“Deliverables”) outlined in the relevant program documents listed below (collectively the “Program Documents”):
a. the service details and terms described in any Order; and/or,
b. any statement of work associated with your order provided by TAFA to Customer (directly or through a TAFA authorized reseller).
B. Upon Customer’s payment of fees due to TAFA (or where applicable its authorized reseller), TAFA grants Customer, a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to copy and use (as applicable), solely for Customer’s internal and non-competitive business purposes, any Deliverables (including any summaries or reports, e.g. system heath check reports, cybersecurity reports, or migration plans), provided that, notwithstanding anything else herein, any software deliverables or tools or other TAFA products that are delivered as part of the Deliverables (including any products that are configured or installed in connection with the delivery of Services) may only be used in accordance with the licenses granted by TAFA to Customer in the TAFA Solution License Agreement available at <www.tafaholdings.sg/legal> or any other applicable master license agreement entered into between Customer and TAFA.
C. Services and Deliverables will be deemed accepted upon delivery unless acceptance criteria and/or procedures are outlined and agreed between the Parties in writing in the relevant Program Documents (“Acceptance Criteria”). Where applicable, Customer may reject the relevant Services and/or Deliverables in writing based on such Acceptance Criteria. Such rejection must include sufficient details of the alleged material defects. Where both Parties have agreed to Acceptance Criteria in writing, Customer shall have three (3) business days from delivery of the relevant Services and/or Deliverables (“Acceptance Period”) to inspect the Services and/or Deliverables and to provide written notification of rejection to TAFA. In absence of such written notification, such Services and/or Deliverables shall be deemed to be accepted at the end of the Acceptance Period. If the Services and/or Deliverables do not materially conform, TAFA, at its own expense, shall bring any rightfully rejected Services and/or Deliverables into conformity. Customer’s sole and exclusive remedy for any delivery of Services and/or Deliverables that do not meet the Acceptance Criteria shall be to: 1) redeliver conforming Services and/or Deliverables, or 2) if redelivery is not possible, to provide a pro-rata refund of the fees applicable to the non-conforming part of the Services and/or Deliverables.
D. Unless otherwise agreed to by Customer and TAFA all Services and Deliverables will be provided remotely.
E. Customer may request a change to the Program Documents by submitting a change request form as provided by TAFA. Upon receipt of such change request form, TAFA shall assess the impact of such request. No such requests shall be deemed accepted and no additional fees or a change in scope shall apply unless accepted in writing by both TAFA and Customer, prior to the change being carried out.
3. Customer Obligations; Customer License; Processing Data while Performing.
A. Customer Obligations. Customer agrees to reasonably cooperate with TAFA in its performance of Services and delivery of Deliverables, including by providing access to appropriate personnel, accurate and complete information and/or data, systems, necessary license rights (including third-party license rights), equipment, consents, approvals, responses, and/or as otherwise identified in the Program Documents and as reasonably necessary to timely provide the Services and Deliverables contemplated by the Parties. Customer agrees that TAFA shall not be liable hereunder for any deficiency in performing the Services or delivering Deliverables to the extent the deficiency results from Customer (or its personnel) or the failure by Customer to provide any of the foregoing. In addition, Customer represents and warrants that it is authorized to act on behalf of the owner or licensee of, or is the authorized representative of an individual, business or other legal entity having contractual usage rights granted by an internet service provider or web host owning or licensed to use, any and all internet protocol addresses and the associated computer hardware, network, storage, input/output, or electronic control devices, or software installed on such devices on which Customer directs those Services to be performed. Customer agrees to cooperate with TAFA to verify the identity of authorized representatives of Customer in connection with Customer’s use of the Services or Deliverables.
B. Customer Materials. “Customer Materials” shall include any data, content or other tangible or intangible systems, technology, or material provided by Customer (or its representatives) to TAFA either directly or indirectly through the Parties’ respective personnel or affiliates or otherwise collected or obtained by TAFA in connection with delivering Services (including Deliverables) under this Agreement. Customer grants TAFA a worldwide, sub-licensable, royalty-free, and non-exclusive license to use, reproduce, modify and adapt, distribute or otherwise exploit such Customer Materials but solely as needed for the purpose of this Agreement and Customer warrants and covenants that it has the right to grant to TAFA such a license.
C. Processing of Personal Data. “Personal Data” means information, which is provided by Customer to TAFA, or which is collected by TAFA in connection with the activities contemplated herein and which data protection laws applicable in the jurisdictions in which such person resides define such information as “Personal Data” or “Personal Information” or such other similar designation. Customer, agrees that TAFA (and its contractors performing Services on behalf of TAFA hereunder) may collect, aggregate, use, process, transfer, store, and disclose (collectively “Process” or “Processing”) Personal Data for the purposes set out in this Agreement and in TAFA’s Privacy Policy, as may be amended from time-to-time by TAFA and which is incorporated herein by this reference, the current version of which can be viewed at <www.tafaholdings.sg/legal>. Customer represents and warrants, on its own behalf and on behalf of its employees and/or independent contractors, that it has obtained all necessary consents to such Processing, including collection of Customer’s employees’ and/or independent contractors’ personal information as required for the delivery and use of the Services and/or Deliverables and as contemplated in this Agreement.
D. Compliance with Laws. Customer agrees to comply with and be responsible for any laws, regulations, filings, registrations, licenses, approvals and consents required in the relevant country or jurisdiction including without limitation import, export or data privacy laws and regulations applicable to Customer, the acceptance of this Agreement by Customer, and the receipt or use of the Services and Deliverables by Customer including without limitation the transfer or provision of information, technology, data or personal information to TAFA.
4. Fees; Invoicing; Taxes.
A. Fees. Customer shall pay TAFA (or its authorized reseller as applicable) the fees identified in the relevant Order, together with any approved expenses. Fees quoted in any Order are exclusive of any travel, living or other expenses or Taxes (as defined below), which, if due, shall be charged separately. Fees due hereunder are non-cancellable and non-refundable, unless otherwise expressly stated herein or agreed in writing.
B. Invoicing; Payment Terms; Taxes. This Section only applies if Customer has purchased Services directly from TAFA. If Customer has purchased Services from TAFA indirectly through an authorized TAFA reseller, this Section does not apply.
(i) Unless otherwise agreed by TAFA, all payments must be made in the currency used by the TAFA entity with which Customer has placed its Order in advance, or if approved by TAFA, within net thirty (30) days from the date of the invoice. If Customer has not paid TAFA in accordance with the applicable terms, TAFA reserves the right to refuse to provide the Services (including Deliverables) or complete the Services if such Services have commenced until it receives payment in full. Any sum not paid by Customer when due will bear interest from the due date until paid at a rate of: (a) ten percent (10%) per annum; or (b) the maximum rate permitted by law, whichever is less.
(ii) Customer may not withhold payment of any invoice on the basis of any dispute, including dissatisfaction with the Services (including Deliverables), other than on the basis of a clear error on the face of the invoice including, for example, a calculation error or a quantity error. Payment by Customer shall not preclude Customer from questioning any charges that Customer believes to be improper or incorrect, within a reasonable period of time.
(iii) All fees payable hereunder by Customer are exclusive of any Taxes. Customer shall be responsible for and shall pay all taxes due under or in relation to this Agreement, including, but not limited to, withholding taxes, charges, duties, levies, or other applicable amounts (“Taxes”). If Customer is required to withhold any amounts (including, without limitation, Taxes) from payments (“Withholdings”), then the amount payable by Customer shall be increased by the amounts of such Withholdings. Customer shall promptly furnish TAFA with all official receipts evidencing payment of Taxes due under or in relation to this Agreement.
5. Confidentiality.
A. “Confidential Information” is hereby defined as: (i) any information in whatever form or medium that is proprietary or confidential to the disclosing Party; (ii) which is disclosed to the recipient Party by the disclosing Party or its representatives, or otherwise obtained by the receiving Party; and, (iii) is related to the provision of the Services or delivery of Deliverables, in whole or in part. Confidential Information shall not include information that (A) is or becomes publicly available other than as the result of a disclosure in breach hereof, (B) becomes available to the receiving Party on a nonconfidential basis from a source not under obligations of confidentiality, (C) is already known by the receiving Party without any obligation of confidentiality with respect thereto, or (D) is developed by the receiving Party independent of any disclosures of such information to the receiving Party.
B. Duties. Neither Party (nor any of its representatives) shall use or reproduce the Confidential Information of the other Party for any reason other than as reasonably necessary to provide or use the Services and/or Deliverables, in whole or in part, as provided under this Agreement subject to and limited by the terms and conditions in this Agreement. Except as specifically permitted in this Agreement or with the prior express written permission, the Parties shall not disclose, allow access to, transmit, transfer or otherwise make available any Confidential Information of the other Party, to any third party, except as necessary to perform hereunder, provided that either Party may disclose Confidential Information to its personnel who are involved in performing this Agreement, have a need to know, and who are bound by obligations of confidentiality no less restrictive than the obligations stated herein. Each Party will use at least the same degree of care as it employs in maintaining in confidence its own confidential information of a similar nature, but in no event less than a reasonable degree of care. Notwithstanding the foregoing, the Parties may disclose Confidential Information if and only to the extent it is required to do so by law provided that the Party gives the other Party sufficient notice to enable the other Party to seek an order limiting or precluding such disclosure.
C. Survival. The obligations of non-use and confidentiality stated herein shall survive for five (5) years from the date of disclosure hereunder (except for trade secrets, which shall remain subject to the terms of this section for so long as it constitutes trade secrets).
6. Reservation of All Rights. TAFA has created or has licensed intellectual property, including general know-how, concepts, advice, techniques, methodologies, ideas, strategies, documentation, templates, trade secrets, software and/or other tools that it may use or disclose or provide in connection with the provision of Services (including Deliverables) under this Agreement (collectively “TAFA IP”). Customer understands and agrees nothing herein shall be construed to prohibit TAFA from entering into agreements with other customers for the provision of services similar to the Services (including Deliverables) contemplated hereunder which may require use or disclosure of similar or the same TAFA IP. All rights, title, and interest in and to TAFA IP, shall remain with TAFA and its licensors, except as expressly licensed herein.
7. Warranties; Disclaimers.
TAFA warrants to Customer that it will perform the Services in a professional and workmanlike manner, consistent with generally accepted industry standards. For any breach of this warranty, Customer’s exclusive remedy and TAFA’s entire liability will be the re-performance of the Services. If TAFA is unable to re-perform the Services as warranted, Customer will be entitled to recover the applicable Service fees paid to TAFA for the deficient Services. Customer must make any claim under the foregoing warranty to TAFA in writing in accordance with this Agreement within ninety (90) days of performance of such Services in order to receive warranty remedies.
EXCEPT AS EXPRESSLY WARRANTED, THE SERVICES AND DELIVERABLES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES, REPRESENTATIONS, OR CONDITIONS OF ANY KIND, INCLUDING IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT. NOTHING STATED IN THIS AGREEMENT WILL IMPLY THAT: (i) THE OPERATION OF ANY DELIVERABLES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ERRORS WILL BE CORRECTED; OR, AS APPLICABLE, (ii) THAT THE SERVICES OR DELIVERABLES WILL PROVIDE A COMPREHENSIVE OR EXHAUSTIVE ASSESSMENT OF THE CUSTOMER’S VULNERABILITIES OR THE NECESSARY REMEDIAL ACTIONS. OTHER WRITTEN OR ORAL STATEMENTS BY TAFA, ITS REPRESENTATIVES OR OTHERS DO NOT CONSTITUTE WARRANTIES OF TAFA.
8. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:
A. IN NO EVENT SHALL TAFA BE LIABLE FOR ANY: (i) INDIRECT, ECONOMIC, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL AND PUNITIVE DAMAGES; OR (ii) DAMAGES FOR LOST PROFITS, REVENUE OR EARNINGS, LOST OR CORRUPTED DATA, DELAYS OR FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION, FAILURE TO REALIZE EXPECTED SAVINGS AND COST OF SUBSTITUTE SOFTWARE OR SERVICES (INCLUDING DELIVERABLES).
B. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF TAFA TO CUSTOMER (AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES) FOR ANY DAMAGES, LOSSES OR COSTS OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS RECEIVED BY TAFA FROM CUSTOMER (OR ITS AUTHORIZED RESELLER) FOR THE SERVICES DELIVERED (INCLUDING DELIVERABLES) UNDER THE RELEVANT ORDER. THIS LIABILITY CAP IS TAFA’S TOTAL POTENTIAL LIABILITY IN THE AGGREGATE AND SHALL NOT IN ANY MANNER BE EXCEEDED, NO MATTER HOW MANY CLAIMS, COUNTERCLAIMS, CAUSES OF ACTION, SUITS, OR DEMANDS MAY BE ASSERTED.
C. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET OUT IN THIS AGREEMENT SHALL APPLY: (I) WHETHER AN ACTION, CLAIM OR DEMAND ARISES FROM A BREACH OF WARRANTY OR CONDITION, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTORY LIABILITY OR ANY OTHER THEORY OF LIABILITY; (II) WHETHER OR NOT SUCH DAMAGES COULD REASONABLY BE FORESEEN OR THEIR POSSIBILITY HAS BEEN DISCLOSED TO TAFA; AND (III) TO TAFA, AS WELL AS ITS AFFILIATES, SUCCESSORS, SUPPLIERS, OFFICERS, DIRECTORS AND EMPLOYEES.
9. Term; Termination; Survival.
A. Term. This Agreement shall commence on the effective date of the Order which incorporates this Agreement by reference and shall remain in effect unless terminated in accordance with the terms of this Agreement or replaced by a new or amended Agreement in accordance with Section 10(G).
B. Termination. By written notice to the other Party, a Party may terminate for cause this Agreement, or all or any portion of the Services pursuant to the applicable Program Documents, in the following circumstances:
i) Immediately, in the event of a material breach by the breaching Party in the performance of its obligations hereunder, which remains uncured by the breaching Party for thirty (30) calendar days after the non-breaching Party provides written notice; or
ii) Immediately, if the other Party is adjudged insolvent or bankrupt, or upon the institution of any proceedings by or against the Party seeking relief, reorganization or arrangement under any laws relating to insolvency, or upon assignment for the benefit of creditors, or upon the appointment of a receiver, liquidator or trustee of any of the Party’s property or assets related to the Services, or upon liquidation, dissolution or winding up of the Party’s business;
iii) Upon ninety (90) days’ written notice to the other Party, provided that, to the extent there are Orders still in effect when a Party terminates this Agreement, such Order shall continue to be governed by this Agreement, as if this Agreement had not been terminated.
C. Effects of Breach/Termination; Survival. If Customer breaches this Agreement, TAFA may, in addition to all other rights and remedies provided in this Agreement or by law, cease providing the Services. Notwithstanding anything else in this Agreement, Customer’s payment obligations and the provisions of Sections 2B, 3D, 4, 5, 6, 7, 8, 9C, and 10 of this Agreement will survive termination or expiration of this Agreement for any reason.
10. General.
A. Governing Law, Dispute Resolution. The governing law, dispute resolution and venue for this Agreement shall be as follows:
i) Applicable Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws as specified below (“Governing Law”), excluding conflicts of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods. Except as expressly provided herein, each Party irrevocably consents and submits to the exclusive jurisdiction of the courts as specified below and waives any objection thereto on the grounds of venue, forum non conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law. Where Customer’s primary address is located in:
c) Europe, the Russian Federation, Middle East or Africa: The Governing Law of this Agreement is English law and the courts of the city of London, England shall have exclusive jurisdiction; and
d) Asia-Pacific (including Pakistan and Kazakhstan): the Governing Law of this Agreement is the laws of the Republic of Singapore, and the courts of the Republic of Singapore shall have exclusive jurisdiction.
ii) Dispute Resolution.
a) Any dispute, claim or controversy (collectively “Claims”) arising out of or relating to this Agreement involving TAFA, including the determination of the scope, applicability or adjudicative process associated with this Agreement, shall be submitted to and determined by binding arbitration in the Republic of Singapore.
b) With respect to any dispute, claim or controversy arising out of or relating to this Agreement involving TAFA Holdings (S) Pte Ltd, the Parties waive any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to this Agreement.
B. Severability. To the extent any section, clause, provision or sentence or part thereof (“Part”) of this Agreement is determined to be illegal, invalid or unenforceable by a competent authority in any jurisdiction, then such determination of that Part will not affect: (i) the legality, validity or enforceability of the remaining Parts of this Agreement; or (ii) the legality, validity or enforceability of that Part in any other jurisdiction, and that Part will be limited if possible and only thereafter severed, if necessary, to the extent required to render this Agreement valid and enforceable.
C. Export. Customer agrees that the Services and/or Deliverables may include cryptographic technology, data or information and shall not be received, exported, imported, used, transferred, accessed, or re-exported except in compliance with the laws and regulations of relevant government authorities. Customer represents and covenants that: (i) Customer and Customer employees and/or independent contractors are eligible to receive, use and/or access the Services and Deliverables under applicable law; and
(ii)Customer shall ensure that its receipt and use of and/or access to the Services and/or Deliverables, or that of Customer’s employees and/or independent contractors, is in accordance with the restrictions in this Section.
D. Force Majeure. TAFA shall not be liable for its failure to perform or the delayed performance of its obligation under this Agreement if such failure results from circumstances beyond its reasonable control, including but not limited to supplier strikes, lock-outs and labour disputes, third party acts, war, riot, civil commotion, acts of terrorism, malicious damage, compliance with any law or governmental order, rule, regulation or direction not in force on the date this Agreement commence, accident, fire, flood, or severe weather conditions (“Event of Force Majeure”). TAFA agrees to give the Customer prompt notice of any Event of Force Majeure (containing sufficient details). If an Event of Force Majeure continues for more than thirty (30) working days, TAFA shall have the right to terminate, without liability to the Customer.
E. Notices. Any notice, request, demand, or other communication required or permitted under this Agreement shall be in writing and delivered by hand or sent by registered mail or courier, effective on the date of receipt, addressed as follows: if to You, at the billing address supplied to TAFA by You and, if to TAFA, addressed to TAFA Holdings (S) Pte Ltd at 11 BEACH ROAD #03-01 CRASCO BUILDING SINGAPORE (189675), Attention: Legal Department. A Party may from time-to-time change its address by notice in writing to the other Party delivered hereunder. In addition, TAFA may at its option deliver the foregoing notice or other communication to an e-mail address provided by You to TAFA, which shall be effective and deemed delivered when transmitted, and if You have provided TAFA with no such address or at TAFA’s option, notice may be duly given when prominently posted on <www.tafaholdings.sg/legal>.
F. English Language. If this Agreement is translated into a language other than English, the English version will prevail to the extent that there is any conflict or discrepancy in meaning between the English version and any translation thereof.
G. Entire Agreement; Modifications. The “Agreement” means these terms and conditions, together with any Program Documents and any other terms incorporated herein by reference. The Parties acknowledge and agree that they have not relied on any prior or contemporaneous communications, representations, warranties, conditions, or agreements whether oral or written, collateral or otherwise (collectively “Pre-Contractual Statements”) in entering into this Agreement and accordingly this Agreement between the Parties constitutes the entire agreement between the Parties. This Agreement prevails over any pre-printed terms or other conflicting or additional terms of any purchase order, ordering document, acknowledgement or confirmation or other document issued by Customer, even if signed and returned. This Agreement may be modified by a written document executed by the Parties. Additionally, TAFA reserves the right to amend or replace this Agreement; however, such amended or new Agreement will only apply to Orders placed after the date such Agreement is posted at <www.tafaholdings.sg/legal>. Customer should regularly visit the site to review the version of this Agreement applicable at the time of Order placement. This Agreement supersedes any prior or contemporaneous communications, representations, warranties, conditions or agreements between the Parties, whether oral or written, collateral or otherwise, regarding the subject matter of this Agreement. The Parties acknowledge and agree that they shall: (i) treat any such Pre-Contractual Statements as being withdrawn and having the effect that they were never made; and (ii) have no right or remedy in respect of such Pre-Contractual Statements. Nothing in this Section shall operate to limit or exclude any liability for fraud. If there is any conflict between this Agreement and any Program Documents, these terms and conditions shall apply except to the extent the conflict is applicable to the scope of Services or Deliverable, in which case the Program Documents shall prevail over the conflict.
H. Third Party Beneficiaries. The provisions of this Agreement are for the benefit of Customer and TAFA and not for any other person or entity, whether under statute or otherwise, except for TAFA’s affiliates.
I. Assignment and Subcontracting. TAFA may assign this Agreement with notice to Customer. Customer shall not assign this Agreement in whole or in part, by operation of law or otherwise, without the prior written consent of TAFA and any assignment in breach of this provision shall be void and of no effect. TAFA may perform its obligations under this Agreement directly or may have some or all of its obligations performed by any affiliate, contractor, subcontractor and/or services provider provided TAFA shall be responsible for the performance of such personnel and their compliance with TAFA’s obligations under this Agreement.
J. No Waiver. The waiver by either Party of any right provided under this Agreement must be in writing and signed by such Party and any waiver shall not constitute a subsequent or continuing waiver of such right or of any other right under this Agreement.
K. Marketing and Promotion. From time-to-time, TAFA lists and/or mentions its customers in its marketing and communications initiatives. Customer agrees that TAFA may use Customer’s name and logo worldwide, free of charge for such purpose. In addition, subject to applicable privacy law and TAFA’s Privacy Policy, Customer expressly consent to TAFA contacting Customer personnel for marketing or promotional purposes.
L. Feedback. TAFA welcomes the identification of problems, improvements, suggestions, comments or other changes to its products or services (e.g., regarding their utility, reliability, or performance) (“Feedback”). Any Feedback provided by Customer (or its representatives) to TAFA shall be owned by TAFA.
M. Non-Solicitation. Customer shall not solicit for employment any TAFA employees which perform work under this Agreement for one (1) year after the completion of the Services (including Deliverables).
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LICENSE AGREEMENT
TAFA SOLUTION LICENSE AGREEMENT
This TAFA Solution License Agreement (the “Agreement” or “TSLA”) is a legal agreement between you on behalf of a company or other entity as its representative (“You” or “Customer”) and TAFA Holdings (S) Pte Ltd or its Affiliate as set forth in subsection 13(a) below (“TAFA”) regarding the use of certain TAFA Software and TAFA Services (as defined below). Together You and TAFA are the “Parties” and individually a “Party”.
BY CLICKING ON THE APPROPRIATE BUTTON BELOW, OR BY INSTALLING, ACCESSING OR USING ANY TAFA SOFTWARE OR TAFA SERVICE, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR IF YOU ARE NOT AUTHORIZED TO ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF CUSTOMER, DO NOT COPY, INSTALL, ACCESS OR USE ANY TAFA SOFTWARE OR TAFA SERVICE.
1. Definitions. (a) “Affiliate” means, with respect to any legal entity, any other entity controlling, controlled by, or under common control with such entity.
(b) “Authorized Users” means Customer’s employees and independent contractors.
(c) “Anonymous Data” means data generated by processing and/or aggregating Customer Data so that results are non-personally identifiable with respect to Customer or its Authorized Users; and any results, logs, and/or other data regarding use of the TAFA Solution.
(d) “Beta Products” means any pre-commercial release or evaluation versions of TAFA Software or TAFA Services made available to Customer by TAFA under additional terms and conditions.
(e) “TAFA Services” means any paid service made available by or on behalf of TAFA hereunder and identified as a TAFA service, including cloud services made available via the TAFA Software, but excluding any Third Party Items.
(f) “TAFA Software” or “Software” means any TAFA proprietary enterprise software (and any licensed third party software embedded therein) in object code form only (and not source code) provided hereunder, including server software, client software, personal computer software and interfaces and Documentation. TAFA Software shall include any upgrades, updates or modified versions of the TAFA Software that may be provided to Customer by TAFA at its sole discretion but excludes any Third Party Items.
(g) “TAFA Solution” means TAFA’s proprietary enterprise solution or service comprised of any component(s) or portion(s) of TAFA Software and/or TAFA Services and applicable Documentation.
(h) “Customer Data” means any data, files, messages, executable files or code, system activity uploaded, inputted, or otherwise submitted by Customer and/or its Authorized Users to TAFA or collected from the Customer and/or its Authorized Users through the normal operation of the TAFA Solution, and any other Customer Data specified in the Documentation.
(i) “Documentation” means any applicable TAFA end user documentation provided by TAFA (excluding any marketing or promotional materials).
(j) “Endpoints” means wireless devices, desktops, computer systems and any other endpoints with which the TAFA Solution operates.
(k) “Intellectual Property Rights” means any patents, copyrights, trademarks, industrial designs, trade secret, confidential information, or other proprietary right.
(l) “Malware” means any software or content that contains any virus, trojan horse, worm, backdoor, shutdown mechanism, sniffer, bot, drop dead mechanism, spyware, malicious, or similar code.
(m) “Reverse Engineer” means any act of reverse engineering, translating, disassembling, decompiling, decrypting or deconstructing data, software (including interfaces, protocols, and any other data included in or used in conjunction with programs that may or may not technically be considered software code) or services or any method or process of obtaining or converting any information, data or software from one form into a human-readable form.
(n) “Technical Support Services” means technical support and maintenance services provided by TAFA.
(o) “Third Party Items” means Customer or any third party: (i) software; (ii) content; (iii) services, including internet connectivity, systems, wireless networks and non-TAFA websites; and (iv) devices, servers, equipment, and other hardware products.
2. License. (a) Limited License. Subject to this Agreement and Customer’s payment of all applicable fees, TAFA grants Customer a personal, revocable, non-exclusive, non-transferable license to internally install, access and/or use the TAFA Solution solely for the purpose specified in the Documentation and subject to the usage and time limitations based on the quantity and type of licenses and term of the licenses acquired by Customer pursuant to an accepted TAFA order. Customer may authorize its Authorized Users to exercise the foregoing rights provided that Customer shall be responsible for its Authorized Users’ use of the TAFA Solution.
(b) Trial License. If a TAFA Solution is provided by TAFA to Customer for internal testing purposes (“Trial”), the license set out above shall be of a sixty (60) day limited duration from when the TAFA Solution is made available by TAFA to Customer unless stated otherwise by TAFA in writing (“Trial Period”) and shall apply solely to the extent necessary to perform the Trial. Notwithstanding anything to the contrary in this Agreement, such license shall automatically terminate upon the expiry of the Trial Period, or earlier if Customer breaches any provision of this Agreement, and subsection 12 (d) of this Agreement shall apply. The Trial Period may be extended or terminated by TAFA in writing at any time in its sole discretion.
3. Technical Support Services. Any Technical Support Services acquired by Customer, including as part of a TAFA Software subscription, are provided subject to: (i) this Agreement; (ii) the Technical Support Services program description (or such other site as may be made available to Customer by TAFA from time-to-time), as may be amended by TAFA and which is incorporated herein by this reference; and (iii) Customer’s payment of all applicable fees for the requisite time period and number and type of licenses acquired by Customer pursuant to an accepted TAFA order. Customer agrees that it may be required to update TAFA Software and/or Third-Party Items to continue to access or use the TAFA Solution, Third Party Items or portions thereof.
4. Rules of Use for TAFA Solution. Customer acknowledges and agrees that: (a) Customer has the right and authority to enter this Agreement and has any necessary consents from its Authorized Users as may be required by applicable law;
(b) Customer shall not, or attempt to, sell, rent, lease, use for timeshare or service bureau purposes, sublicense or transfer the TAFA Solution;
(c) Customer and its Authorized Users shall not take any action to: (i) upload, transmit, or otherwise make available any Malware, unless expressly permitted by TAFA in writing as required to provide the TAFA Solution; (ii) gain unauthorized access to any component or portion of the TAFA Solution, other accounts, computer systems or networks connected to a TAFA Solution, or obtain or attempt to obtain any materials or information made available through any component or portion of the TAFA Solution not intentionally made available by TAFA to Customer; or (iii) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the TAFA Solution. In addition, Customer and its Authorized Users shall not permit any third party to take any of the actions outlined in (i) – (iii) above. If Customer becomes aware of the existence of any of such activities, Customer shall promptly notify TAFA in writing;
(d) Customer and its Authorized Users shall not copy, host, publish, distribute or modify the TAFA Software, or any content made available to Customer as part of the TAFA Solution, in whole or in part, except for copying as reasonably necessary for back-up purposes;
(e) Customer and its Authorized Users shall not disclose the results of any benchmark testing, technical results or other performance data relating to the TAFA Solution without TAFA’s prior written consent;
(f) The TAFA Solution contains valuable trade secrets, proprietary and confidential information of TAFA and/or its Affiliates. Customer and its Authorized Users shall not: (i) disclose or make available, directly or indirectly, the TAFA Solution (including any content made available to Customer related to the TAFA Solution) to any third party; (ii) use the TAFA Solution except as set forth herein; or (iii) alter, modify, adapt, create derivative works of, translate, deface, or Reverse Engineer any software, or any content, made available to Customer as part of the TAFA Solution, in whole or in part, or permit, acquiesce, authorize or encourage any other entity or person to do so;
(g) TAFA may monitor Customer’s and its Authorized Users’ use of the TAFA Solution to determine compliance with this Agreement and Customer and its Authorized Users shall provide information requested by TAFA necessary for such purpose. TAFA may, through an independent auditor and/or itself, audit Customer’s and its Authorized Users’ use of and/or access to the TAFA Solution. If Customer is found to have exceeded its authorized usage and/or access, Customer shall, among other things, pay to TAFA: (i) any additional amounts due based on TAFA’s then current price list; (ii) TAFA’s reasonable costs associated with such audit; and (iii) interest on the amounts due to TAFA at the maximum rate permitted by law. Any refusal by Customer to provide requested information and/or cooperate with an audit, or to promptly pay amounts found owing to TAFA as a result of such audit, shall be deemed to be a material breach of this Agreement;
(h) Subject to the terms of an applicable TAFA order or Documentation, an Authorized User will be considered provisioned where the Authorized User is assigned the ability to access the TAFA Software, regardless of whether an Authorized User has accessed or utilized the TAFA Software. Provisioned Authorized Users will be counted to determine whether a Customer is within (or has exceeded) its licensed usage of the TAFA Software. Customer is solely responsible for ensuring that it does not provision Authorized Users in excess of its license rights;
(i) Customer assumes sole responsibility and liability for: (i) the establishment of appropriate security measures to control access to the licensed TAFA Solution, including for Endpoints; (ii) Customer’s selection, use, access, cost or implementation of any Third Party Item, regardless of how Customer acquires or obtains access to the Third Party Item, or whether any such Third Party Items are required in order to use all or any part of, or operate in conjunction with, the TAFA Solution; and (iii) informing its Authorized Users of any functions to be performed on their devices;
(j) TAFA may, without any liability to Customer or any Authorized User, modify, suspend, discontinue or place limits on the TAFA Solution or any part thereof, including: (i) periodically suspending use of and/or access thereto, or otherwise taking it out of operation in order to do maintenance and support of TAFA Software or TAFA Services; (ii) if Customer's or its Authorized Users’ use of and/or access to the TAFA Solution or any part thereof poses a security or other risk to the software or service or any third party or adversely impacts the software or service; (iii) if required by law or regulation or in TAFA’s opinion it is or may be subject to liability as a result of operating the TAFA Solution or any part thereof; or (iv) if Customer and/or an Authorized User is in breach of this Agreement; and
(k) Customer and its Authorized Users shall comply with all applicable laws, ordinances, codes, regulations, and policies applicable to Customer’s receipt or use of and/or access to the TAFA Solution.
5. Ownership and Intellectual Property. (a) Customer acknowledges and agrees that it does not acquire any Intellectual Property Rights in or relating to the TAFA Solution or any translation or other derivative work thereof. Customer agrees that it shall not refute or otherwise challenge TAFA’s and/or any of its Affiliates’ ownership of any such Intellectual Property Rights. All comments, ideas, changes or other feedback provided by Customer and/or any Authorized User to TAFA regarding the TAFA Solution shall be owned by TAFA. All rights, title and interest not expressly granted herein are reserved by TAFA.
(b) As between the Parties, Customer retains the ownership (including any Intellectual Property Rights) in and to the Customer Data.
6. LIMITED WARRANTY AND DISCLAIMER. (a) If during the ninety (90) day period following TAFA making the Software available to Customer for electronic download, the TAFA Software is not capable of performing the material functions described in the Documentation when used as specified by TAFA in the Documentation applicable to the specific type and version of the TAFA Software, TAFA shall make reasonable efforts to correct or provide a workaround for such problem (which fix or workaround may be provided to Customer at TAFA’s reasonable discretion in one of a variety of forms).
(b) Any obligations of TAFA under this Section 6 shall not apply to trial software or Beta Products or if the failure of the TAFA Software to perform the material functions described in the Documentation is due to: (i) use of the TAFA Software in a manner inconsistent with any of Customer’s obligations set out in this Agreement or in a manner inconsistent with the instructions in the Documentation applicable to the specific type and version of the TAFA Software; (ii) a malfunction or other problem related to any Third Party Item; or (iii) any external causes affecting the TAFA Software, correction of errors attributable to software other than the TAFA Software, or defects due to repairs or modifications not authorized by TAFA in writing.
(c) CUSTOMER ACKNOWLEDGES AND AGREES THAT WHERE THE TAFA SOLUTION IS DESIGNED TO INTEROPERATE WITH OR FACILITATE CUSTOMER’S ACCESS TO THIRD PARTY ITEMS, TAFA HAS NO CONTROL OVER THE FUNCTIONALITY, DELIVERY, USE OR PERFORMANCE OF SUCH THIRD PARTY ITEMS.
(d) CUSTOMER ACKNOWLEDGES AND WARRANTS THAT CUSTOMER IS SOLELY RESPONSIBLE AND LIABLE FOR: (I) VERIFYING THE ACCURACY AND ADEQUACY OF ANY INPUT, OUTPUT OR ALERT INTO OR FROM THE TAFA SOLUTION; OR, (II) CUSTOMER’S DECISION TO ALLOW OR MAINTAIN ANY MALWARE OR VULNERABILITY ON OR TO CUSTOMER’S (OR ITS AUTHORIZED USERS’) ENDPOINTS, SYSTEMS OR NETWORKS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CUSTOMER WAIVES ANY AND ALL CAUSES OF ACTION OR CLAIMS AGAINST TAFA ARISING FROM OR RELATING TO THIS SUBSECTION (D).
(e) THE CUSTOMER ACKNOWLEDGES AND AGREES THAT THE TAFA SOLUTION IS NOT DESIGNED OR INTENDED FOR USE IN ANY HAZARDOUS ENVIRONMENT REQUIRING FAIL-SAFE PERFORMANCE OR OPERATION, NOR IS IT INTENDED FOR THE OPERATION OF NAVIGATION, NUCLEAR FACILITIES, WEAPONS SYSTEMS, LIFE-SUPPORT SYSTEMS, OR ANY APPLICATION OR INSTALLATION WHERE FAILURE COULD RESULT IN DEATH, SEVERE PHYSICAL INJURY OR PROPERTY DAMAGE.
(f) EXCEPT AS EXPRESSLY STATED HEREIN, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TAFA SOLUTION IS PROVIDED “AS IS” AND ALL CONDITIONS, ENDORSEMENTS, GUARANTEES, ASSURANCES, REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE TAFA SOLUTION ARE HEREBY DISCLAIMED AND EXCLUDED, INCLUDING THOSE OF FITNESS FOR A PARTICULAR PURPOSE OR USE, MERCHANTABILITY, NON-INFRINGEMENT, SATISFACTORY QUALITY AND TITLE. TAFA DOES NOT WARRANT OR PROVIDE ANY OTHER SIMILAR ASSURANCE WHATSOEVER: (I) OF UNINTERRUPTED OR ERROR-FREE USE OR OPERATION OF THE TAFA SOLUTION; (II) THAT ALL THREATS, VULNERABILITIES, ATTACKS OR MALWARE WILL BE DISCOVERED, REPORTED OR REMEDIED; (III) THAT CUSTOMER DATA, SYSTEMS OR NETWORKS SHALL BE FREE FROM LOSS OR CORRUPTION; OR, (IV) THAT CONTENT SHALL BE TRANSMITTED WITHIN A REASONABLE PERIOD OF TIME.
7. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (a) IN NO EVENT SHALL TAFA BE LIABLE FOR: (I) INDIRECT, ECONOMIC, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES; (II) LOST PROFITS, REVENUE OR EARNINGS, LOST OR CORRUPTED DATA, DELAYS OR FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION, FAILURE TO REALIZE EXPECTED SAVINGS AND COST OF SUBSTITUTE SOFTWARE OR SERVICES; AND (III) DAMAGES RELATED TO OR ARISING OUT OF ANY THIRD PARTY ITEMS; (b) NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF TAFA EXCEED THE AMOUNTS RECEIVED BY TAFA FROM CUSTOMER FOR THE PORTION OF THE TAFA SOFTWARE, OR THE RELEVANT PERIOD OF THE TAFA SERVICE, WHICH IS THE SUBJECT MATTER OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE INCIDENT GIVING RISE TO THE LIABILITY; AND
(c) THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET OUT IN THIS AGREEMENT SHALL APPLY: (I) WHETHER AN ACTION, CLAIM OR DEMAND ARISES FROM A BREACH OF WARRANTY OR CONDITION, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTORY LIABILITY OR ANY OTHER THEORY OF LIABILITY; (II) WHETHER OR NOT SUCH DAMAGES COULD REASONABLY BE FORESEEN OR THEIR POSSIBILITY HAS BEEN DISCLOSED TO TAFA; AND (III) TO TAFA, ITS AFFILIATES, AND THEIR RESPECTIVE SUPPLIERS, SUCCESSORS AND ASSIGNS.
8. Beta Products. Customer acknowledges and agrees that: (i) Beta Products may not be authorized for commercial use or certified by government or other authorities and TAFA makes no representation that such authorization or certification shall be obtained or that the Beta Products shall be commercially released or released without changes; (ii) Beta Products are not intended for use in any productive or other environment where Customer is relying on the performance of the Beta Products; (iii) Beta Products are not intended to represent or perform in the same manner as commercial software or services and Customer should ensure that it regularly backs up any data used with such materials; and (iv) all testing and evaluation that it conducts of Beta Products and related software and services is done entirely at Customer’s own risk. The Beta Products shall be made available for a period of up to ninety (90) days, unless stated otherwise by TAFA in writing. The period of availability of the Beta Products may be extended or terminated by TAFA at any time in its sole discretion. TAFA may require Customer to promptly return the evaluation or beta copies of the Beta Products and remove all copies of such Beta Products from its systems.
9. Data Use and Anonymous Data. Customer, on its own behalf and on behalf of its Authorized Users, grants TAFA a non-exclusive, sub-licensable, transferable, worldwide, royalty-free, perpetual right and license to collect, use, copy, store, transmit, modify, and create derivative works of the Customer Data (collectively “Process” or “Processing”) to the extent necessary to provide the TAFA Solution to Customer and in order to generate Anonymous Data. Customer agrees that TAFA has the right to generate Anonymous Data and that Anonymous Data is owned by TAFA, which TAFA may use for any lawful business purpose (including, without limitation, to develop and improve the TAFA Solution and to create and distribute reports and other materials). Customer warrants and covenants that it has the right to grant to TAFA such licenses.
10. Personal Data and Privacy Notice. Customer, on its own behalf and on behalf of its Authorized Users: (i) agrees that TAFA and its Affiliates and their respective service providers may Process Customer Data for the purposes set out in this Agreement and in TAFA’s Privacy Notice, as may be amended from time-to-time by TAFA and which is incorporated by reference herein, the current version of which can be viewed at www.tafaholdings.sg/legal; and (ii) represents and warrants that it has a lawful basis for such Processing, including collection of Authorized User’s personal data as required for the use of the TAFA Solution, products or services used with the TAFA Solution and as contemplated in this Agreement.
11. Indemnification. (a) Customer shall indemnify, hold harmless, and if requested by TAFA, defend, TAFA and its Affiliates and their successors and assigns and their respective directors, officers, employees, independent contractors and agents from and against any and all claims, proceedings, liabilities, losses, damages, costs and expenses (including reasonable legal fees and expenses) arising out of or in connection with any breach of this Agreement by Customer or an Authorized User. TAFA shall give Customer prompt written notice of any claim or proceeding. If TAFA has requested Customer to defend a claim or proceeding: (i) TAFA may at its option and expense participate in its defence or settlement; (ii) Customer shall not settle it in a manner that requires TAFA or any of its Affiliates to admit any liability; and (iii) if TAFA later has a reasonable basis to believe that Customer cannot or may not be able to fulfill its obligations under this subsection (a), then, without limiting Customer’s obligations hereunder, TAFA shall be entitled to provide Customer with notice of its decision to defend the claim or proceeding, and thereafter to assume control of its defence and/or settlement.
(b) TAFA shall defend, or at its option settle, any claim brought against Customer and/or its directors, officers and Authorized Users (“Customer Indemnitee(s)”) by a third party alleging that use of the TAFA Software infringes a third party copyright or patent right, and shall pay any damages finally awarded, to such third party by a court of competent jurisdiction or that is agreed to in a settlement by TAFA to the extent the TAFA Software is the basis of such a claim. This indemnification is conditional upon Customer Indemnitee(s) giving TAFA prompt written notice of any such claim and permitting TAFA to have sole control of the defence or settlement. TAFA shall not settle the claim in a manner that requires Customer to admit any liability. Customer shall provide TAFA all reasonable information and assistance in connection with any such claim. If such a claim occurs, or if in TAFA’s opinion is likely to occur, TAFA in its sole discretion may: (i) procure the right for Customer to continue to use the applicable TAFA Software; or (ii) modify or replace the applicable TAFA Software or infringing portion(s); or, if neither (i) nor (ii) is available or commercially practicable, (iii) terminate Customer’s license to the affected portion of the TAFA Software and refund or credit a portion of the license fees paid by Customer on a pro rata basis corresponding with the remaining portion of the license term. TAFA shall have no obligations or liability under this subsection (b) to the extent that any claim is based upon or arises out of: (i) any modification or alteration to the applicable TAFA Software not made by or on behalf of TAFA; (ii) any combination or use of the applicable TAFA Software with equipment, software, services, products or systems not provided by TAFA; (iii) Customer’s continued use of allegedly infringing TAFA Software after being notified; (iv) Customer’s failure to use software updates or upgrades made available by TAFA; or (v) use of the TAFA Software other than in accordance with the applicable Documentation or outside the scope of the license granted under this Agreement. The remedies set forth in this subsection (b) constitute Customer Indemnitees’ sole and exclusive remedies, and TAFA’s entire liability, with respect to infringement or violation of third-party intellectual property rights.
12. Term and Termination; Survival. (a) This Agreement commences upon Customer's agreement to be bound by the terms and conditions of this Agreement (as outlined at the beginning of this Agreement) and continues only for the term of the licenses acquired by Customer, subject to early termination as provided herein.
(b) This Agreement may be terminated by either Party: (i) if the other Party materially breaches this Agreement and fails to cure it within thirty (30) days after written notice of the breach; and (ii) if the other Party ceases to carry on business in the ordinary course, becomes insolvent or the subject of voluntary or involuntary bankruptcy or liquidation proceedings, has a receiver, trustee or similar officer appointed with respect to the whole or substantial part of its assets, or is the subject of any creditor protection or proposal or similar arrangement under applicable law.
(c) This Agreement may be terminated by TAFA upon a sale of all or substantially all the assets of Customer, any merger, consolidation, or acquisition of Customer with, by or into another corporation, entity or person, or any change in the ownership of more than fifty percent (50%) of the voting shares of Customer in one or more related transactions.
(d) Upon expiry or termination of either this Agreement or the provision of the TAFA Solution to Customer (which, for clarity, shall terminate this Agreement) for any reason: (i) all licenses, and rights provided to Customer under Section 2 of this Agreement shall immediately terminate and Customer shall not be entitled to any refund;
(ii) Customer and its Authorized Users shall immediately cease all use of and/or access to the TAFA Solution and delete and/or destroy all copies of TAFA Software that are in the possession or control of Customer and/or its Authorized Users and, on TAFA's request, confirm the same in writing signed by an officer of Customer;
(iii) TAFA shall have the right to block any use of and/or access to the TAFA Solution, and/or delete any files, programs, data and e-mail messages associated with any account of Customer or an Authorized User, without notice to Customer or the Authorized User;
(iv) TAFA may retain Customer Data pursuant to the terms of this Agreement, or for so long as may be required to comply with any law or regulation applicable to TAFA or any court, regulatory agency, or authority to which TAFA is subject; and,
(v) Customer shall remain liable for all amounts due and shall pay all such fees immediately upon expiration or termination of this Agreement. Where only a portion of the TAFA Solution expires or is terminated, the foregoing subsections (i) – (v) shall be limited to such portion and the Agreement shall continue for the remaining portion(s).
(e) The following Sections of this Agreement shall survive its expiry or termination: Sections 1, 4 - 7 inclusive and 9 - 13 inclusive.
13. General. (a) Applicable Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws as specified below (“Governing Law”), excluding conflicts of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods. Except as expressly provided herein, each Party irrevocably consents and submits to the exclusive jurisdiction of the courts as specified below and waives any objection thereto on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law. As set out below, the Customer’s primary address shall determine the Governing Law of this Agreement and, unless the TAFA entity is indicated on the TAFA order or binding quote, the contracting TAFA entity. Where Customer’s primary address is located in:
(ii) United States of America and Japan: The Governing Law is the laws of the State of California and the courts of the county of Santa Clara, California, U.S.A. shall have exclusive jurisdiction;
(iii) Europe, the Russian Federation, Middle East or Africa: The Governing Law is the laws of England and Wales and the courts of the city of London, England shall have exclusive jurisdiction; and
(iv) Asia-Pacific (excluding Japan): The Governing Law is the laws of the Republic of Singapore and the courts of the Republic of Singapore shall have exclusive jurisdiction.
(b) Dispute Resolution. (i) Any dispute, claim or controversy (collectively “Claims”) arising out of or relating to this Agreement involving TAFA (S) Pte Ltd or other TAFA entity the Parties associated with this Agreement, shall be submitted to and determined by binding arbitration in the Republic of Singapore.
(c) Force Majeure. TAFA shall not be liable for its failure or delay in the performance of its obligations under the Agreement if such failure results from circumstances beyond its reasonable control, including but not limited to supplier strikes, lock-outs, labour disputes or availability, third party acts, war, riot, civil disorder, acts of terrorism, curtailment of transportation, work stoppages, epidemic, compliance with any law or governmental order, prohibition, rule, regulation or direction not in force on the date the Agreement commences. (“Event of Force Majeure”). If an Event of Force Majeure continues for more than thirty (30) working days, TAFA shall have the right to terminate, without liability, to Customer.
(d) Injunctive Relief. Notwithstanding anything to the contrary, the Parties agree that Customer's or any of its Authorized Users' breach of certain terms of this Agreement may cause irreparable harm to TAFA and/or its Affiliates for which damages shall be an inadequate remedy and TAFA may therefore seek injunctive or equitable relief in any court of competent jurisdiction without the requirement of posting a bond, in addition to all other remedies available to it.
(e) Assignment. TAFA may assign this Agreement with notice to Customer. Customer shall not assign this Agreement in whole or in part, by operation of law or otherwise, without the prior written consent of TAFA and any assignment in breach of this provision shall be void and of no effect. TAFA may perform its obligations under this Agreement directly or may have some or all of its obligations performed by any Affiliate, contractor, subcontractor, services provider or third party.
(f) Notices. Any notice, request, demand or other communication required or permitted under this Agreement shall be in writing and delivered by hand or sent by registered mail or courier, effective on the date of receipt, addressed as follows: if to Customer, at the billing address supplied to TAFA by Customer and, if to TAFA, addressed to TAFA Holdings (S) Pte Ltd at 11 BEACH ROAD #03-01 CRASCO BUILDING SINGAPORE (189675), Attention: Legal Department. A Party may from time-to-time change its address by notice in writing to the other Party delivered hereunder. In addition, TAFA may at its option deliver the foregoing notice or other communication to an e-mail address provided by Customer to TAFA, which shall be effective and deemed delivered when transmitted, and if Customer has provided TAFA with no such address, notice may be duly given when prominently posted on www.tafaholdings.sg/legal.
(h) Third Party Beneficiaries. The provisions of this Agreement are for the benefit of Customer and TAFA and not for any other person or entity, whether under statute or otherwise, except for TAFA’s Affiliates and suppliers of TAFA and its Affiliates.
(i) Additional Terms. Customer’s Authorized Users must obtain through a third-party application store and install TAFA Solution client software for certain third-party wireless device software platforms and Customer is responsible for ensuring its Authorized Users' compliance with the applicable client end user license agreement. Such client end user license agreement shall automatically terminate on expiry or termination of this Agreement or the provision of the TAFA Solution to Customer hereunder.
(j) Entire Agreement. This Agreement, including any non-disclosure agreement and/or data protection agreement entered into by the Parties, is the complete agreement between the Parties concerning the subject matter hereof and supersedes any prior agreements and understandings between the Parties applicable to the TAFA Solution. This Agreement may only be modified by the Parties by a written document executed by the Parties. Except to the extent expressly precluded by applicable law, TAFA may also modify this Agreement, including to reflect changes in law or business practices. Notwithstanding subsection 13(g), TAFA shall notify Customer of the change by a reasonable means of notice, including posting the revised Agreement at www.TAFA.com/legal and Customer should regularly visit the site to review the most current version of this Agreement. Customer agrees that its continued use of the TAFA Solution after the changes become effective shall constitute Customer’s acceptance of the revised Agreement. If there is any inconsistency between this Agreement and any Documentation used with the TAFA Solution, the provisions of this Agreement shall apply to the extent of the inconsistency.
(k) Interpretation and Language. Headings are inserted herein for convenience only and do not form part of this Agreement. As used herein: (i) "days" means calendar days; (ii) “include” and “including” are not limiting; and (iii) use of a TAFA Solution shall be deemed to include active or inactive use. If this Agreement is translated into a language other than English, the English version shall prevail to the extent that there is any conflict or discrepancy in meaning between the English version and any translation thereof. Notwithstanding the foregoing, TAFA acknowledges and agrees that the Japanese version of this Agreement shall not be construed to include section 13(n).
(l) No Waiver. The waiver by either Party of any right provided under this Agreement must be in writing signed by such Party and any waiver shall not constitute a subsequent or continuing waiver of such right or of any other right under this Agreement.
(m) Severability. If any section, provision or part thereof of this Agreement is held to be illegal, invalid or unenforceable by a court of competent authority in any jurisdiction, that section, provision or part shall be limited if possible and only thereafter severed to the extent necessary to render this Agreement valid and enforceable in such jurisdiction.
(n) Marketing and Promotion. From time-to-time, TAFA lists and/or mentions its customers in its marketing and communications initiatives. Customer agrees that TAFA may use Customer’s name and logo worldwide, free of charge for such purpose for the duration of the Term. In addition, subject to applicable privacy law and TAFA’s Privacy Notice, Customer expressly consents to TAFA contacting the Customer for marketing or promotional purposes.
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This TAFA Solution License Agreement (the “Agreement” or “TSLA”) is a legal agreement between you on behalf of a company or other entity as its representative (“You” or “Customer”) and TAFA Holdings (S) Pte Ltd or its Affiliate as set forth in subsection 13(a) below (“TAFA”) regarding the use of certain TAFA Software and TAFA Services (as defined below). Together You and TAFA are the “Parties” and individually a “Party”.
BY CLICKING ON THE APPROPRIATE BUTTON BELOW, OR BY INSTALLING, ACCESSING OR USING ANY TAFA SOFTWARE OR TAFA SERVICE, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR IF YOU ARE NOT AUTHORIZED TO ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF CUSTOMER, DO NOT COPY, INSTALL, ACCESS OR USE ANY TAFA SOFTWARE OR TAFA SERVICE.
1. Definitions. (a) “Affiliate” means, with respect to any legal entity, any other entity controlling, controlled by, or under common control with such entity.
(b) “Authorized Users” means Customer’s employees and independent contractors.
(c) “Anonymous Data” means data generated by processing and/or aggregating Customer Data so that results are non-personally identifiable with respect to Customer or its Authorized Users; and any results, logs, and/or other data regarding use of the TAFA Solution.
(d) “Beta Products” means any pre-commercial release or evaluation versions of TAFA Software or TAFA Services made available to Customer by TAFA under additional terms and conditions.
(e) “TAFA Services” means any paid service made available by or on behalf of TAFA hereunder and identified as a TAFA service, including cloud services made available via the TAFA Software, but excluding any Third Party Items.
(f) “TAFA Software” or “Software” means any TAFA proprietary enterprise software (and any licensed third party software embedded therein) in object code form only (and not source code) provided hereunder, including server software, client software, personal computer software and interfaces and Documentation. TAFA Software shall include any upgrades, updates or modified versions of the TAFA Software that may be provided to Customer by TAFA at its sole discretion but excludes any Third Party Items.
(g) “TAFA Solution” means TAFA’s proprietary enterprise solution or service comprised of any component(s) or portion(s) of TAFA Software and/or TAFA Services and applicable Documentation.
(h) “Customer Data” means any data, files, messages, executable files or code, system activity uploaded, inputted, or otherwise submitted by Customer and/or its Authorized Users to TAFA or collected from the Customer and/or its Authorized Users through the normal operation of the TAFA Solution, and any other Customer Data specified in the Documentation.
(i) “Documentation” means any applicable TAFA end user documentation provided by TAFA (excluding any marketing or promotional materials).
(j) “Endpoints” means wireless devices, desktops, computer systems and any other endpoints with which the TAFA Solution operates.
(k) “Intellectual Property Rights” means any patents, copyrights, trademarks, industrial designs, trade secret, confidential information, or other proprietary right.
(l) “Malware” means any software or content that contains any virus, trojan horse, worm, backdoor, shutdown mechanism, sniffer, bot, drop dead mechanism, spyware, malicious, or similar code.
(m) “Reverse Engineer” means any act of reverse engineering, translating, disassembling, decompiling, decrypting or deconstructing data, software (including interfaces, protocols, and any other data included in or used in conjunction with programs that may or may not technically be considered software code) or services or any method or process of obtaining or converting any information, data or software from one form into a human-readable form.
(n) “Technical Support Services” means technical support and maintenance services provided by TAFA.
(o) “Third Party Items” means Customer or any third party: (i) software; (ii) content; (iii) services, including internet connectivity, systems, wireless networks and non-TAFA websites; and (iv) devices, servers, equipment, and other hardware products.
2. License. (a) Limited License. Subject to this Agreement and Customer’s payment of all applicable fees, TAFA grants Customer a personal, revocable, non-exclusive, non-transferable license to internally install, access and/or use the TAFA Solution solely for the purpose specified in the Documentation and subject to the usage and time limitations based on the quantity and type of licenses and term of the licenses acquired by Customer pursuant to an accepted TAFA order. Customer may authorize its Authorized Users to exercise the foregoing rights provided that Customer shall be responsible for its Authorized Users’ use of the TAFA Solution.
(b) Trial License. If a TAFA Solution is provided by TAFA to Customer for internal testing purposes (“Trial”), the license set out above shall be of a sixty (60) day limited duration from when the TAFA Solution is made available by TAFA to Customer unless stated otherwise by TAFA in writing (“Trial Period”) and shall apply solely to the extent necessary to perform the Trial. Notwithstanding anything to the contrary in this Agreement, such license shall automatically terminate upon the expiry of the Trial Period, or earlier if Customer breaches any provision of this Agreement, and subsection 12 (d) of this Agreement shall apply. The Trial Period may be extended or terminated by TAFA in writing at any time in its sole discretion.
3. Technical Support Services. Any Technical Support Services acquired by Customer, including as part of a TAFA Software subscription, are provided subject to: (i) this Agreement; (ii) the Technical Support Services program description (or such other site as may be made available to Customer by TAFA from time-to-time), as may be amended by TAFA and which is incorporated herein by this reference; and (iii) Customer’s payment of all applicable fees for the requisite time period and number and type of licenses acquired by Customer pursuant to an accepted TAFA order. Customer agrees that it may be required to update TAFA Software and/or Third-Party Items to continue to access or use the TAFA Solution, Third Party Items or portions thereof.
4. Rules of Use for TAFA Solution. Customer acknowledges and agrees that: (a) Customer has the right and authority to enter this Agreement and has any necessary consents from its Authorized Users as may be required by applicable law;
(b) Customer shall not, or attempt to, sell, rent, lease, use for timeshare or service bureau purposes, sublicense or transfer the TAFA Solution;
(c) Customer and its Authorized Users shall not take any action to: (i) upload, transmit, or otherwise make available any Malware, unless expressly permitted by TAFA in writing as required to provide the TAFA Solution; (ii) gain unauthorized access to any component or portion of the TAFA Solution, other accounts, computer systems or networks connected to a TAFA Solution, or obtain or attempt to obtain any materials or information made available through any component or portion of the TAFA Solution not intentionally made available by TAFA to Customer; or (iii) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the TAFA Solution. In addition, Customer and its Authorized Users shall not permit any third party to take any of the actions outlined in (i) – (iii) above. If Customer becomes aware of the existence of any of such activities, Customer shall promptly notify TAFA in writing;
(d) Customer and its Authorized Users shall not copy, host, publish, distribute or modify the TAFA Software, or any content made available to Customer as part of the TAFA Solution, in whole or in part, except for copying as reasonably necessary for back-up purposes;
(e) Customer and its Authorized Users shall not disclose the results of any benchmark testing, technical results or other performance data relating to the TAFA Solution without TAFA’s prior written consent;
(f) The TAFA Solution contains valuable trade secrets, proprietary and confidential information of TAFA and/or its Affiliates. Customer and its Authorized Users shall not: (i) disclose or make available, directly or indirectly, the TAFA Solution (including any content made available to Customer related to the TAFA Solution) to any third party; (ii) use the TAFA Solution except as set forth herein; or (iii) alter, modify, adapt, create derivative works of, translate, deface, or Reverse Engineer any software, or any content, made available to Customer as part of the TAFA Solution, in whole or in part, or permit, acquiesce, authorize or encourage any other entity or person to do so;
(g) TAFA may monitor Customer’s and its Authorized Users’ use of the TAFA Solution to determine compliance with this Agreement and Customer and its Authorized Users shall provide information requested by TAFA necessary for such purpose. TAFA may, through an independent auditor and/or itself, audit Customer’s and its Authorized Users’ use of and/or access to the TAFA Solution. If Customer is found to have exceeded its authorized usage and/or access, Customer shall, among other things, pay to TAFA: (i) any additional amounts due based on TAFA’s then current price list; (ii) TAFA’s reasonable costs associated with such audit; and (iii) interest on the amounts due to TAFA at the maximum rate permitted by law. Any refusal by Customer to provide requested information and/or cooperate with an audit, or to promptly pay amounts found owing to TAFA as a result of such audit, shall be deemed to be a material breach of this Agreement;
(h) Subject to the terms of an applicable TAFA order or Documentation, an Authorized User will be considered provisioned where the Authorized User is assigned the ability to access the TAFA Software, regardless of whether an Authorized User has accessed or utilized the TAFA Software. Provisioned Authorized Users will be counted to determine whether a Customer is within (or has exceeded) its licensed usage of the TAFA Software. Customer is solely responsible for ensuring that it does not provision Authorized Users in excess of its license rights;
(i) Customer assumes sole responsibility and liability for: (i) the establishment of appropriate security measures to control access to the licensed TAFA Solution, including for Endpoints; (ii) Customer’s selection, use, access, cost or implementation of any Third Party Item, regardless of how Customer acquires or obtains access to the Third Party Item, or whether any such Third Party Items are required in order to use all or any part of, or operate in conjunction with, the TAFA Solution; and (iii) informing its Authorized Users of any functions to be performed on their devices;
(j) TAFA may, without any liability to Customer or any Authorized User, modify, suspend, discontinue or place limits on the TAFA Solution or any part thereof, including: (i) periodically suspending use of and/or access thereto, or otherwise taking it out of operation in order to do maintenance and support of TAFA Software or TAFA Services; (ii) if Customer's or its Authorized Users’ use of and/or access to the TAFA Solution or any part thereof poses a security or other risk to the software or service or any third party or adversely impacts the software or service; (iii) if required by law or regulation or in TAFA’s opinion it is or may be subject to liability as a result of operating the TAFA Solution or any part thereof; or (iv) if Customer and/or an Authorized User is in breach of this Agreement; and
(k) Customer and its Authorized Users shall comply with all applicable laws, ordinances, codes, regulations, and policies applicable to Customer’s receipt or use of and/or access to the TAFA Solution.
5. Ownership and Intellectual Property. (a) Customer acknowledges and agrees that it does not acquire any Intellectual Property Rights in or relating to the TAFA Solution or any translation or other derivative work thereof. Customer agrees that it shall not refute or otherwise challenge TAFA’s and/or any of its Affiliates’ ownership of any such Intellectual Property Rights. All comments, ideas, changes or other feedback provided by Customer and/or any Authorized User to TAFA regarding the TAFA Solution shall be owned by TAFA. All rights, title and interest not expressly granted herein are reserved by TAFA.
(b) As between the Parties, Customer retains the ownership (including any Intellectual Property Rights) in and to the Customer Data.
6. LIMITED WARRANTY AND DISCLAIMER. (a) If during the ninety (90) day period following TAFA making the Software available to Customer for electronic download, the TAFA Software is not capable of performing the material functions described in the Documentation when used as specified by TAFA in the Documentation applicable to the specific type and version of the TAFA Software, TAFA shall make reasonable efforts to correct or provide a workaround for such problem (which fix or workaround may be provided to Customer at TAFA’s reasonable discretion in one of a variety of forms).
(b) Any obligations of TAFA under this Section 6 shall not apply to trial software or Beta Products or if the failure of the TAFA Software to perform the material functions described in the Documentation is due to: (i) use of the TAFA Software in a manner inconsistent with any of Customer’s obligations set out in this Agreement or in a manner inconsistent with the instructions in the Documentation applicable to the specific type and version of the TAFA Software; (ii) a malfunction or other problem related to any Third Party Item; or (iii) any external causes affecting the TAFA Software, correction of errors attributable to software other than the TAFA Software, or defects due to repairs or modifications not authorized by TAFA in writing.
(c) CUSTOMER ACKNOWLEDGES AND AGREES THAT WHERE THE TAFA SOLUTION IS DESIGNED TO INTEROPERATE WITH OR FACILITATE CUSTOMER’S ACCESS TO THIRD PARTY ITEMS, TAFA HAS NO CONTROL OVER THE FUNCTIONALITY, DELIVERY, USE OR PERFORMANCE OF SUCH THIRD PARTY ITEMS.
(d) CUSTOMER ACKNOWLEDGES AND WARRANTS THAT CUSTOMER IS SOLELY RESPONSIBLE AND LIABLE FOR: (I) VERIFYING THE ACCURACY AND ADEQUACY OF ANY INPUT, OUTPUT OR ALERT INTO OR FROM THE TAFA SOLUTION; OR, (II) CUSTOMER’S DECISION TO ALLOW OR MAINTAIN ANY MALWARE OR VULNERABILITY ON OR TO CUSTOMER’S (OR ITS AUTHORIZED USERS’) ENDPOINTS, SYSTEMS OR NETWORKS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CUSTOMER WAIVES ANY AND ALL CAUSES OF ACTION OR CLAIMS AGAINST TAFA ARISING FROM OR RELATING TO THIS SUBSECTION (D).
(e) THE CUSTOMER ACKNOWLEDGES AND AGREES THAT THE TAFA SOLUTION IS NOT DESIGNED OR INTENDED FOR USE IN ANY HAZARDOUS ENVIRONMENT REQUIRING FAIL-SAFE PERFORMANCE OR OPERATION, NOR IS IT INTENDED FOR THE OPERATION OF NAVIGATION, NUCLEAR FACILITIES, WEAPONS SYSTEMS, LIFE-SUPPORT SYSTEMS, OR ANY APPLICATION OR INSTALLATION WHERE FAILURE COULD RESULT IN DEATH, SEVERE PHYSICAL INJURY OR PROPERTY DAMAGE.
(f) EXCEPT AS EXPRESSLY STATED HEREIN, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TAFA SOLUTION IS PROVIDED “AS IS” AND ALL CONDITIONS, ENDORSEMENTS, GUARANTEES, ASSURANCES, REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE TAFA SOLUTION ARE HEREBY DISCLAIMED AND EXCLUDED, INCLUDING THOSE OF FITNESS FOR A PARTICULAR PURPOSE OR USE, MERCHANTABILITY, NON-INFRINGEMENT, SATISFACTORY QUALITY AND TITLE. TAFA DOES NOT WARRANT OR PROVIDE ANY OTHER SIMILAR ASSURANCE WHATSOEVER: (I) OF UNINTERRUPTED OR ERROR-FREE USE OR OPERATION OF THE TAFA SOLUTION; (II) THAT ALL THREATS, VULNERABILITIES, ATTACKS OR MALWARE WILL BE DISCOVERED, REPORTED OR REMEDIED; (III) THAT CUSTOMER DATA, SYSTEMS OR NETWORKS SHALL BE FREE FROM LOSS OR CORRUPTION; OR, (IV) THAT CONTENT SHALL BE TRANSMITTED WITHIN A REASONABLE PERIOD OF TIME.
7. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (a) IN NO EVENT SHALL TAFA BE LIABLE FOR: (I) INDIRECT, ECONOMIC, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES; (II) LOST PROFITS, REVENUE OR EARNINGS, LOST OR CORRUPTED DATA, DELAYS OR FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION, FAILURE TO REALIZE EXPECTED SAVINGS AND COST OF SUBSTITUTE SOFTWARE OR SERVICES; AND (III) DAMAGES RELATED TO OR ARISING OUT OF ANY THIRD PARTY ITEMS; (b) NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF TAFA EXCEED THE AMOUNTS RECEIVED BY TAFA FROM CUSTOMER FOR THE PORTION OF THE TAFA SOFTWARE, OR THE RELEVANT PERIOD OF THE TAFA SERVICE, WHICH IS THE SUBJECT MATTER OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE INCIDENT GIVING RISE TO THE LIABILITY; AND
(c) THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET OUT IN THIS AGREEMENT SHALL APPLY: (I) WHETHER AN ACTION, CLAIM OR DEMAND ARISES FROM A BREACH OF WARRANTY OR CONDITION, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTORY LIABILITY OR ANY OTHER THEORY OF LIABILITY; (II) WHETHER OR NOT SUCH DAMAGES COULD REASONABLY BE FORESEEN OR THEIR POSSIBILITY HAS BEEN DISCLOSED TO TAFA; AND (III) TO TAFA, ITS AFFILIATES, AND THEIR RESPECTIVE SUPPLIERS, SUCCESSORS AND ASSIGNS.
8. Beta Products. Customer acknowledges and agrees that: (i) Beta Products may not be authorized for commercial use or certified by government or other authorities and TAFA makes no representation that such authorization or certification shall be obtained or that the Beta Products shall be commercially released or released without changes; (ii) Beta Products are not intended for use in any productive or other environment where Customer is relying on the performance of the Beta Products; (iii) Beta Products are not intended to represent or perform in the same manner as commercial software or services and Customer should ensure that it regularly backs up any data used with such materials; and (iv) all testing and evaluation that it conducts of Beta Products and related software and services is done entirely at Customer’s own risk. The Beta Products shall be made available for a period of up to ninety (90) days, unless stated otherwise by TAFA in writing. The period of availability of the Beta Products may be extended or terminated by TAFA at any time in its sole discretion. TAFA may require Customer to promptly return the evaluation or beta copies of the Beta Products and remove all copies of such Beta Products from its systems.
9. Data Use and Anonymous Data. Customer, on its own behalf and on behalf of its Authorized Users, grants TAFA a non-exclusive, sub-licensable, transferable, worldwide, royalty-free, perpetual right and license to collect, use, copy, store, transmit, modify, and create derivative works of the Customer Data (collectively “Process” or “Processing”) to the extent necessary to provide the TAFA Solution to Customer and in order to generate Anonymous Data. Customer agrees that TAFA has the right to generate Anonymous Data and that Anonymous Data is owned by TAFA, which TAFA may use for any lawful business purpose (including, without limitation, to develop and improve the TAFA Solution and to create and distribute reports and other materials). Customer warrants and covenants that it has the right to grant to TAFA such licenses.
10. Personal Data and Privacy Notice. Customer, on its own behalf and on behalf of its Authorized Users: (i) agrees that TAFA and its Affiliates and their respective service providers may Process Customer Data for the purposes set out in this Agreement and in TAFA’s Privacy Notice, as may be amended from time-to-time by TAFA and which is incorporated by reference herein, the current version of which can be viewed at www.tafaholdings.sg/legal; and (ii) represents and warrants that it has a lawful basis for such Processing, including collection of Authorized User’s personal data as required for the use of the TAFA Solution, products or services used with the TAFA Solution and as contemplated in this Agreement.
11. Indemnification. (a) Customer shall indemnify, hold harmless, and if requested by TAFA, defend, TAFA and its Affiliates and their successors and assigns and their respective directors, officers, employees, independent contractors and agents from and against any and all claims, proceedings, liabilities, losses, damages, costs and expenses (including reasonable legal fees and expenses) arising out of or in connection with any breach of this Agreement by Customer or an Authorized User. TAFA shall give Customer prompt written notice of any claim or proceeding. If TAFA has requested Customer to defend a claim or proceeding: (i) TAFA may at its option and expense participate in its defence or settlement; (ii) Customer shall not settle it in a manner that requires TAFA or any of its Affiliates to admit any liability; and (iii) if TAFA later has a reasonable basis to believe that Customer cannot or may not be able to fulfill its obligations under this subsection (a), then, without limiting Customer’s obligations hereunder, TAFA shall be entitled to provide Customer with notice of its decision to defend the claim or proceeding, and thereafter to assume control of its defence and/or settlement.
(b) TAFA shall defend, or at its option settle, any claim brought against Customer and/or its directors, officers and Authorized Users (“Customer Indemnitee(s)”) by a third party alleging that use of the TAFA Software infringes a third party copyright or patent right, and shall pay any damages finally awarded, to such third party by a court of competent jurisdiction or that is agreed to in a settlement by TAFA to the extent the TAFA Software is the basis of such a claim. This indemnification is conditional upon Customer Indemnitee(s) giving TAFA prompt written notice of any such claim and permitting TAFA to have sole control of the defence or settlement. TAFA shall not settle the claim in a manner that requires Customer to admit any liability. Customer shall provide TAFA all reasonable information and assistance in connection with any such claim. If such a claim occurs, or if in TAFA’s opinion is likely to occur, TAFA in its sole discretion may: (i) procure the right for Customer to continue to use the applicable TAFA Software; or (ii) modify or replace the applicable TAFA Software or infringing portion(s); or, if neither (i) nor (ii) is available or commercially practicable, (iii) terminate Customer’s license to the affected portion of the TAFA Software and refund or credit a portion of the license fees paid by Customer on a pro rata basis corresponding with the remaining portion of the license term. TAFA shall have no obligations or liability under this subsection (b) to the extent that any claim is based upon or arises out of: (i) any modification or alteration to the applicable TAFA Software not made by or on behalf of TAFA; (ii) any combination or use of the applicable TAFA Software with equipment, software, services, products or systems not provided by TAFA; (iii) Customer’s continued use of allegedly infringing TAFA Software after being notified; (iv) Customer’s failure to use software updates or upgrades made available by TAFA; or (v) use of the TAFA Software other than in accordance with the applicable Documentation or outside the scope of the license granted under this Agreement. The remedies set forth in this subsection (b) constitute Customer Indemnitees’ sole and exclusive remedies, and TAFA’s entire liability, with respect to infringement or violation of third-party intellectual property rights.
12. Term and Termination; Survival. (a) This Agreement commences upon Customer's agreement to be bound by the terms and conditions of this Agreement (as outlined at the beginning of this Agreement) and continues only for the term of the licenses acquired by Customer, subject to early termination as provided herein.
(b) This Agreement may be terminated by either Party: (i) if the other Party materially breaches this Agreement and fails to cure it within thirty (30) days after written notice of the breach; and (ii) if the other Party ceases to carry on business in the ordinary course, becomes insolvent or the subject of voluntary or involuntary bankruptcy or liquidation proceedings, has a receiver, trustee or similar officer appointed with respect to the whole or substantial part of its assets, or is the subject of any creditor protection or proposal or similar arrangement under applicable law.
(c) This Agreement may be terminated by TAFA upon a sale of all or substantially all the assets of Customer, any merger, consolidation, or acquisition of Customer with, by or into another corporation, entity or person, or any change in the ownership of more than fifty percent (50%) of the voting shares of Customer in one or more related transactions.
(d) Upon expiry or termination of either this Agreement or the provision of the TAFA Solution to Customer (which, for clarity, shall terminate this Agreement) for any reason: (i) all licenses, and rights provided to Customer under Section 2 of this Agreement shall immediately terminate and Customer shall not be entitled to any refund;
(ii) Customer and its Authorized Users shall immediately cease all use of and/or access to the TAFA Solution and delete and/or destroy all copies of TAFA Software that are in the possession or control of Customer and/or its Authorized Users and, on TAFA's request, confirm the same in writing signed by an officer of Customer;
(iii) TAFA shall have the right to block any use of and/or access to the TAFA Solution, and/or delete any files, programs, data and e-mail messages associated with any account of Customer or an Authorized User, without notice to Customer or the Authorized User;
(iv) TAFA may retain Customer Data pursuant to the terms of this Agreement, or for so long as may be required to comply with any law or regulation applicable to TAFA or any court, regulatory agency, or authority to which TAFA is subject; and,
(v) Customer shall remain liable for all amounts due and shall pay all such fees immediately upon expiration or termination of this Agreement. Where only a portion of the TAFA Solution expires or is terminated, the foregoing subsections (i) – (v) shall be limited to such portion and the Agreement shall continue for the remaining portion(s).
(e) The following Sections of this Agreement shall survive its expiry or termination: Sections 1, 4 - 7 inclusive and 9 - 13 inclusive.
13. General. (a) Applicable Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws as specified below (“Governing Law”), excluding conflicts of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods. Except as expressly provided herein, each Party irrevocably consents and submits to the exclusive jurisdiction of the courts as specified below and waives any objection thereto on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law. As set out below, the Customer’s primary address shall determine the Governing Law of this Agreement and, unless the TAFA entity is indicated on the TAFA order or binding quote, the contracting TAFA entity. Where Customer’s primary address is located in:
(ii) United States of America and Japan: The Governing Law is the laws of the State of California and the courts of the county of Santa Clara, California, U.S.A. shall have exclusive jurisdiction;
(iii) Europe, the Russian Federation, Middle East or Africa: The Governing Law is the laws of England and Wales and the courts of the city of London, England shall have exclusive jurisdiction; and
(iv) Asia-Pacific (excluding Japan): The Governing Law is the laws of the Republic of Singapore and the courts of the Republic of Singapore shall have exclusive jurisdiction.
(b) Dispute Resolution. (i) Any dispute, claim or controversy (collectively “Claims”) arising out of or relating to this Agreement involving TAFA (S) Pte Ltd or other TAFA entity the Parties associated with this Agreement, shall be submitted to and determined by binding arbitration in the Republic of Singapore.
(c) Force Majeure. TAFA shall not be liable for its failure or delay in the performance of its obligations under the Agreement if such failure results from circumstances beyond its reasonable control, including but not limited to supplier strikes, lock-outs, labour disputes or availability, third party acts, war, riot, civil disorder, acts of terrorism, curtailment of transportation, work stoppages, epidemic, compliance with any law or governmental order, prohibition, rule, regulation or direction not in force on the date the Agreement commences. (“Event of Force Majeure”). If an Event of Force Majeure continues for more than thirty (30) working days, TAFA shall have the right to terminate, without liability, to Customer.
(d) Injunctive Relief. Notwithstanding anything to the contrary, the Parties agree that Customer's or any of its Authorized Users' breach of certain terms of this Agreement may cause irreparable harm to TAFA and/or its Affiliates for which damages shall be an inadequate remedy and TAFA may therefore seek injunctive or equitable relief in any court of competent jurisdiction without the requirement of posting a bond, in addition to all other remedies available to it.
(e) Assignment. TAFA may assign this Agreement with notice to Customer. Customer shall not assign this Agreement in whole or in part, by operation of law or otherwise, without the prior written consent of TAFA and any assignment in breach of this provision shall be void and of no effect. TAFA may perform its obligations under this Agreement directly or may have some or all of its obligations performed by any Affiliate, contractor, subcontractor, services provider or third party.
(f) Notices. Any notice, request, demand or other communication required or permitted under this Agreement shall be in writing and delivered by hand or sent by registered mail or courier, effective on the date of receipt, addressed as follows: if to Customer, at the billing address supplied to TAFA by Customer and, if to TAFA, addressed to TAFA Holdings (S) Pte Ltd at 11 BEACH ROAD #03-01 CRASCO BUILDING SINGAPORE (189675), Attention: Legal Department. A Party may from time-to-time change its address by notice in writing to the other Party delivered hereunder. In addition, TAFA may at its option deliver the foregoing notice or other communication to an e-mail address provided by Customer to TAFA, which shall be effective and deemed delivered when transmitted, and if Customer has provided TAFA with no such address, notice may be duly given when prominently posted on www.tafaholdings.sg/legal.
(h) Third Party Beneficiaries. The provisions of this Agreement are for the benefit of Customer and TAFA and not for any other person or entity, whether under statute or otherwise, except for TAFA’s Affiliates and suppliers of TAFA and its Affiliates.
(i) Additional Terms. Customer’s Authorized Users must obtain through a third-party application store and install TAFA Solution client software for certain third-party wireless device software platforms and Customer is responsible for ensuring its Authorized Users' compliance with the applicable client end user license agreement. Such client end user license agreement shall automatically terminate on expiry or termination of this Agreement or the provision of the TAFA Solution to Customer hereunder.
(j) Entire Agreement. This Agreement, including any non-disclosure agreement and/or data protection agreement entered into by the Parties, is the complete agreement between the Parties concerning the subject matter hereof and supersedes any prior agreements and understandings between the Parties applicable to the TAFA Solution. This Agreement may only be modified by the Parties by a written document executed by the Parties. Except to the extent expressly precluded by applicable law, TAFA may also modify this Agreement, including to reflect changes in law or business practices. Notwithstanding subsection 13(g), TAFA shall notify Customer of the change by a reasonable means of notice, including posting the revised Agreement at www.TAFA.com/legal and Customer should regularly visit the site to review the most current version of this Agreement. Customer agrees that its continued use of the TAFA Solution after the changes become effective shall constitute Customer’s acceptance of the revised Agreement. If there is any inconsistency between this Agreement and any Documentation used with the TAFA Solution, the provisions of this Agreement shall apply to the extent of the inconsistency.
(k) Interpretation and Language. Headings are inserted herein for convenience only and do not form part of this Agreement. As used herein: (i) "days" means calendar days; (ii) “include” and “including” are not limiting; and (iii) use of a TAFA Solution shall be deemed to include active or inactive use. If this Agreement is translated into a language other than English, the English version shall prevail to the extent that there is any conflict or discrepancy in meaning between the English version and any translation thereof. Notwithstanding the foregoing, TAFA acknowledges and agrees that the Japanese version of this Agreement shall not be construed to include section 13(n).
(l) No Waiver. The waiver by either Party of any right provided under this Agreement must be in writing signed by such Party and any waiver shall not constitute a subsequent or continuing waiver of such right or of any other right under this Agreement.
(m) Severability. If any section, provision or part thereof of this Agreement is held to be illegal, invalid or unenforceable by a court of competent authority in any jurisdiction, that section, provision or part shall be limited if possible and only thereafter severed to the extent necessary to render this Agreement valid and enforceable in such jurisdiction.
(n) Marketing and Promotion. From time-to-time, TAFA lists and/or mentions its customers in its marketing and communications initiatives. Customer agrees that TAFA may use Customer’s name and logo worldwide, free of charge for such purpose for the duration of the Term. In addition, subject to applicable privacy law and TAFA’s Privacy Notice, Customer expressly consents to TAFA contacting the Customer for marketing or promotional purposes.
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TERMS AND CONDITIONS of sale
Terms and Conditions of Sale
1.SCOPE.
These Terms and Conditions of Sale (the “Terms”), along with the terms and conditions applicable to the use of the specific TAFA good and/or the provision of the applicable TAFA service (excluding TAFA professional services, as noted below) purchased (referred to herein as the “TAFA Solution”) shall apply to all orders accepted by TAFA for the TAFA Solution unless expressly agreed otherwise by TAFA and the purchaser (the “Customer”) in a written agreement signed by TAFA and the Customer (each a “Party” and together the “Parties”). The terms and conditions applicable to the use of the specific good and/or the provision of the applicable service purchased can be viewed at www.tafaholdings.sg/legal. For clarity, the TAFA Solution does not include TAFA professional services. If an order between the Parties includes TAFA professional services, these Terms shall not apply to the TAFA professional services (and any associated deliverables) ordered but these Terms shall apply to the use and provision of the TAFA Solution. The provision of TAFA professional services (and any associated deliverables) is governed by the Professional Services Agreement and it can be viewed at www.tafaholdings.sg/legal. TAFA may resell or license third party goods and services which, for the purposes of these Terms only, shall be considered part of the TAFA Solution. TAFA is defined as the specific TAFA entity or TAFA affiliate with which your order is placed.
2. TAXES AND FEES.
All fees or amounts payable by Customer to TAFA or an authorized reseller of the TAFA Solution, as applicable, are exclusive of any Taxes. Customer shall be responsible for and shall pay all taxes due under or in relation to these Terms, including, but not limited to, withholding taxes, charges, duties, levies or other applicable amounts (“Taxes”). If Customer is required to withhold any amounts (including, without limitation, Taxes) from payments (“Withholdings”), then the amount payable by Customer shall be increased by the amounts of such Withholdings. Customer shall promptly furnish TAFA with all official receipts evidencing payment of Taxes due under or in relation to these Terms.
3. PAYMENT AND INVOICING.
a. Payment. Unless otherwise agreed by TAFA, all payments must be made in the currency used by the TAFA entity with which Customer has placed its Order and in advance, or if approved by TAFA, within net thirty (30) days from the date of the invoice. Any sum not paid by Customer when due will bear interest from the due date until paid at a rate of: (i) ten percent (10%) per annum; or (ii) the maximum rate permitted by law, whichever is less. b. Invoicing. Customer may not withhold payment of any invoice on the basis of any dispute, including dissatisfaction with the TAFA Solution, other than on the basis of a clear error on the face of the invoice including, for example, a calculation error or a quantity error. Payment by Customer shall not preclude Customer from questioning any charges that Customer believes to be improper or incorrect, within a reasonable period of time.
4. LIMITED WARRANTY.
TAFA’s warranty obligations are only as stated in the applicable goods and services terms and conditions. Any modifications to TAFA’s warranty obligations unique to Customer’s purchase will be stated by TAFA in the applicable sales transaction documents.
5. NO RETURNS.
Unless otherwise provided specifically in the applicable goods or service terms, no returns shall be accepted and no refunds or credits will be provided.
6. RESERVATION OF RIGHTS.
As between the Parties, Customer agrees that TAFA or its licensors retain ownership of all right, title and interest, including intellectual property rights, in all aspects of the TAFA Solution. Customer’s only rights with respect to any TAFA Solution shall be as provided under the terms of the TAFA Solution License Agreement set out at https://www.tafaholdings.sg/legal or other applicable license agreement specific to the TAFA Solution licensed.
7. APPLICABLE LAW AND JURISDICTION; DISPUTE RESOLUTION.
a. Applicable Law and Jurisdiction. These Terms shall be governed by and construed exclusively in accordance with the laws as specified below (“Governing Law”), excluding conflicts of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods. Except as expressly provided herein, each Party irrevocably consents and submits to the exclusive jurisdiction of the courts as specified below and waives any objection thereto on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law. Where Customer’s primary address is located in: i. Asia-Pacific (including Pakistan and Kazakhstan)) the Governing Law of these Terms are the laws of the Republic of Singapore and the courts of the Republic of Singapore shall have exclusive jurisdiction.
8. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW:
a. IN NO EVENT SHALL TAFA BE LIABLE FOR, AND CUSTOMER [ON ITS OWN BEHALF AND ON BEHALF OF ITS AUTHORIZED USERS (AS DEFINED IN SECTION 9 BELOW), HEREBY WAIVES ALL OF THE FOLLOWING DAMAGES DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, THE TAFA SOLUTION OR ANY RELATED SERVICES: (I) ALL INDIRECT, ECONOMIC, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL AND PUNITIVE DAMAGES; (II) ALL DAMAGES FOR LOST PROFITS, REVENUE OR EARNINGS, LOST OR CORRUPTED DATA, DELAYS OR FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION, FAILURE TO REALIZE EXPECTED SAVINGS AND COST OF SUBSTITUTE SOFTWARE OR SERVICES; AND (III) ALL DAMAGES RELATED TO OR ARISING OUT OF ANY THIRD PARTY ITEMS, ANY CUSTOMER FURNISHED GOODS, SOFTWARE, SERVICES OR CONTENT OR ANY FREE-OF-CHARGE SOFTWARE OR SERVICES; b. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF TAFA TO CUSTOMER, AUTHORIZED USERS, OR TO ANY THIRD PARTY CLAIMING THROUGH THEM FOR ANY DAMAGES OF ANY KIND UNDER THESE TERMS EXCEED THE AMOUNTS RECEIVED BY TAFA FROM CUSTOMER FOR THE PORTION OF THE TAFA SOFTWARE, OR THE RELEVANT PERIOD OF THE TAFA SERVICE, WHICH IS THE SUBJECT MATTER OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE INCIDENT GIVING RISE TO THE LIABILITY; AND c. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET OUT IN THESE TERMS SHALL APPLY: (I) WHETHER AN ACTION, CLAIM OR DEMAND ARISES FROM A BREACH OF WARRANTY OR CONDITION, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTORY LIABILITY OR ANY OTHER THEORY OF LIABILITY; (II) WHETHER OR NOT SUCH DAMAGES COULD REASONABLY BE FORESEEN OR THEIR POSSIBILITY HAS BEEN DISCLOSED TO TAFA; AND (III) TO TAFA, AS WELL AS ITS AFFILIATES, AND THEIR RESPECTIVE SUPPLIERS, AGENTS, SUCCESSORS, ASSIGNS, OFFICERS, DIRECTORS AND EMPLOYEES.
9. PRIVACY POLICY.
Personal information that is collected, used, processed, transferred, stored and disclosed (collectively, “Processed”) by TAFA and its service providers will be treated in accordance with TAFA’s Privacy Policy (which is incorporated by reference into these Terms and can be viewed at www.tafaholdings.sg/legal) and as further described in the relevant licensing document. For the purposes of these Terms, Authorized User shall mean Customer and Customer’s affiliates’ employees and independent contractors, Customer (on its behalf and on behalf of its affiliates and Authorized Users) consents to such Processing of personal information, including the transfer of such personal information outside of the Authorized Users’ jurisdiction, whether the initial collection of such personal information was: (a) from itself, from its affiliates and/or from the its Authorized Users directly; or (b) from network service providers or third parties with goods or services used with the TAFA Solution. Further, Customer represents and warrants (on its behalf and on behalf of its affiliates and Authorized Users) that it has obtained (or its affiliate has obtained) all necessary consents to such Processing, including collection of each Authorized User’s personal information as required for the use of the TAFA Solution, goods or services used with the TAFA Solution and as contemplated in these Terms.
10. ENTIRE AGREEMENT.
These Terms together with the agreements specific to the TAFA Solution ordered contain the entire agreement between the parties with respect to the subject matter hereof and supersede any and all prior oral or written agreements or representations. In absence of an express acceptance of these terms, Customer acknowledges that it has agreed to these Terms by acceptance or use of, or the payment for, the TAFA Solution ordered hereunder. For clarity, any additional or variant Customer purchase terms are inapplicable unless pursuant to a subsequent written agreement executed by both Parties. In the event of a conflict between these Terms and the license agreements, service terms or other terms of use specific to the TAFA Solution ordered, the terms and conditions specific to the TAFA Solution ordered shall prevail solely as to the use and scope of the applicable good or the provision and receipt of the applicable service.
11. DELIVERY TERMS APPLICABLE TO HARDWARE, ACCESSORIES AND/OR OTHER PHYSICAL GOODS.
Customer acknowledges and agrees that: (a) any shipment dates specified are estimates only and are subject to change; (b) any delay in Customer providing TAFA with any required pre-payment or required information may impact TAFA’s ability to ship the physical goods by a particular date; and (c) Customer shall Terms and Conditions of Sale Terms and Conditions of Sale Page 2 of 2 validate each shipment against attached packing slips for accuracy of items and quantities promptly upon receipt and notify TAFA immediately of any discrepancy between the attached packing slip and the shipment upon discovery of any nonconformity. Unless TAFA has received notice of any nonconformity from Customer within ten (10) business days of the shipment date, Customer shall be deemed to have accepted the shipment. Delivery shall be deemed complete and risk of loss shall pass to Customer at TAFA’s point of shipment. All shipping costs including, without limitation, insurance, brokerage, duties, freight are extra and are the responsibility of the Customer.
12. MISCELLANEOUS
a. Customer agrees that its use of the TAFA Solution shall be in accordance with all applicable federal, state, provincial and local laws, rules and regulations. b. TAFA may change the Terms at any time without notice. TAFA shall notify Customer of the change by a reasonable means of notice, including posting the revised Terms at www.tafaholdings.sg/legal and Customer should regularly visit the site to review the most current version of the Terms. The Terms in force at the time you place your order will govern your purchase. c. TAFA shall not be liable for its failure to perform or the delayed performance of its obligation under these Terms if such failure results from circumstances beyond its reasonable control, including but not limited to supplier strikes, lock-outs and labor disputes, third party acts, war, riot, civil disorder, acts of terrorism, curtailment of transportation, work stoppages, epidemic, malicious damage, compliance with any law or governmental order, prohibition, rule, regulation or direction not in force on the date these Terms commence, accident, fire, flood, or severe weather conditions. d. TAFA may assign the Terms and Customer may assign these Terms with TAFA’s prior written consent. e. To the extent any provision of these Terms is determined to be invalid or unenforceable by a competent authority in any jurisdiction, then such determination will not affect the legality, validity or enforceability of the remaining parts of these Terms. f. The provisions of these Terms are personal to the respective Parties and are not intended to confer any rights of enforcement on any third party. g. Nothing in these Terms shall be deemed to create an agency or employment relationship between the Parties. h. The waiver by either Party of any right provided under these Terms must be in writing signed by such Party and any waiver shall not constitute a subsequent or continuing waiver of such right or of any other right under these Terms.
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1.SCOPE.
These Terms and Conditions of Sale (the “Terms”), along with the terms and conditions applicable to the use of the specific TAFA good and/or the provision of the applicable TAFA service (excluding TAFA professional services, as noted below) purchased (referred to herein as the “TAFA Solution”) shall apply to all orders accepted by TAFA for the TAFA Solution unless expressly agreed otherwise by TAFA and the purchaser (the “Customer”) in a written agreement signed by TAFA and the Customer (each a “Party” and together the “Parties”). The terms and conditions applicable to the use of the specific good and/or the provision of the applicable service purchased can be viewed at www.tafaholdings.sg/legal. For clarity, the TAFA Solution does not include TAFA professional services. If an order between the Parties includes TAFA professional services, these Terms shall not apply to the TAFA professional services (and any associated deliverables) ordered but these Terms shall apply to the use and provision of the TAFA Solution. The provision of TAFA professional services (and any associated deliverables) is governed by the Professional Services Agreement and it can be viewed at www.tafaholdings.sg/legal. TAFA may resell or license third party goods and services which, for the purposes of these Terms only, shall be considered part of the TAFA Solution. TAFA is defined as the specific TAFA entity or TAFA affiliate with which your order is placed.
2. TAXES AND FEES.
All fees or amounts payable by Customer to TAFA or an authorized reseller of the TAFA Solution, as applicable, are exclusive of any Taxes. Customer shall be responsible for and shall pay all taxes due under or in relation to these Terms, including, but not limited to, withholding taxes, charges, duties, levies or other applicable amounts (“Taxes”). If Customer is required to withhold any amounts (including, without limitation, Taxes) from payments (“Withholdings”), then the amount payable by Customer shall be increased by the amounts of such Withholdings. Customer shall promptly furnish TAFA with all official receipts evidencing payment of Taxes due under or in relation to these Terms.
3. PAYMENT AND INVOICING.
a. Payment. Unless otherwise agreed by TAFA, all payments must be made in the currency used by the TAFA entity with which Customer has placed its Order and in advance, or if approved by TAFA, within net thirty (30) days from the date of the invoice. Any sum not paid by Customer when due will bear interest from the due date until paid at a rate of: (i) ten percent (10%) per annum; or (ii) the maximum rate permitted by law, whichever is less. b. Invoicing. Customer may not withhold payment of any invoice on the basis of any dispute, including dissatisfaction with the TAFA Solution, other than on the basis of a clear error on the face of the invoice including, for example, a calculation error or a quantity error. Payment by Customer shall not preclude Customer from questioning any charges that Customer believes to be improper or incorrect, within a reasonable period of time.
4. LIMITED WARRANTY.
TAFA’s warranty obligations are only as stated in the applicable goods and services terms and conditions. Any modifications to TAFA’s warranty obligations unique to Customer’s purchase will be stated by TAFA in the applicable sales transaction documents.
5. NO RETURNS.
Unless otherwise provided specifically in the applicable goods or service terms, no returns shall be accepted and no refunds or credits will be provided.
6. RESERVATION OF RIGHTS.
As between the Parties, Customer agrees that TAFA or its licensors retain ownership of all right, title and interest, including intellectual property rights, in all aspects of the TAFA Solution. Customer’s only rights with respect to any TAFA Solution shall be as provided under the terms of the TAFA Solution License Agreement set out at https://www.tafaholdings.sg/legal or other applicable license agreement specific to the TAFA Solution licensed.
7. APPLICABLE LAW AND JURISDICTION; DISPUTE RESOLUTION.
a. Applicable Law and Jurisdiction. These Terms shall be governed by and construed exclusively in accordance with the laws as specified below (“Governing Law”), excluding conflicts of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods. Except as expressly provided herein, each Party irrevocably consents and submits to the exclusive jurisdiction of the courts as specified below and waives any objection thereto on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law. Where Customer’s primary address is located in: i. Asia-Pacific (including Pakistan and Kazakhstan)) the Governing Law of these Terms are the laws of the Republic of Singapore and the courts of the Republic of Singapore shall have exclusive jurisdiction.
8. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW:
a. IN NO EVENT SHALL TAFA BE LIABLE FOR, AND CUSTOMER [ON ITS OWN BEHALF AND ON BEHALF OF ITS AUTHORIZED USERS (AS DEFINED IN SECTION 9 BELOW), HEREBY WAIVES ALL OF THE FOLLOWING DAMAGES DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, THE TAFA SOLUTION OR ANY RELATED SERVICES: (I) ALL INDIRECT, ECONOMIC, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL AND PUNITIVE DAMAGES; (II) ALL DAMAGES FOR LOST PROFITS, REVENUE OR EARNINGS, LOST OR CORRUPTED DATA, DELAYS OR FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION, FAILURE TO REALIZE EXPECTED SAVINGS AND COST OF SUBSTITUTE SOFTWARE OR SERVICES; AND (III) ALL DAMAGES RELATED TO OR ARISING OUT OF ANY THIRD PARTY ITEMS, ANY CUSTOMER FURNISHED GOODS, SOFTWARE, SERVICES OR CONTENT OR ANY FREE-OF-CHARGE SOFTWARE OR SERVICES; b. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF TAFA TO CUSTOMER, AUTHORIZED USERS, OR TO ANY THIRD PARTY CLAIMING THROUGH THEM FOR ANY DAMAGES OF ANY KIND UNDER THESE TERMS EXCEED THE AMOUNTS RECEIVED BY TAFA FROM CUSTOMER FOR THE PORTION OF THE TAFA SOFTWARE, OR THE RELEVANT PERIOD OF THE TAFA SERVICE, WHICH IS THE SUBJECT MATTER OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE INCIDENT GIVING RISE TO THE LIABILITY; AND c. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET OUT IN THESE TERMS SHALL APPLY: (I) WHETHER AN ACTION, CLAIM OR DEMAND ARISES FROM A BREACH OF WARRANTY OR CONDITION, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTORY LIABILITY OR ANY OTHER THEORY OF LIABILITY; (II) WHETHER OR NOT SUCH DAMAGES COULD REASONABLY BE FORESEEN OR THEIR POSSIBILITY HAS BEEN DISCLOSED TO TAFA; AND (III) TO TAFA, AS WELL AS ITS AFFILIATES, AND THEIR RESPECTIVE SUPPLIERS, AGENTS, SUCCESSORS, ASSIGNS, OFFICERS, DIRECTORS AND EMPLOYEES.
9. PRIVACY POLICY.
Personal information that is collected, used, processed, transferred, stored and disclosed (collectively, “Processed”) by TAFA and its service providers will be treated in accordance with TAFA’s Privacy Policy (which is incorporated by reference into these Terms and can be viewed at www.tafaholdings.sg/legal) and as further described in the relevant licensing document. For the purposes of these Terms, Authorized User shall mean Customer and Customer’s affiliates’ employees and independent contractors, Customer (on its behalf and on behalf of its affiliates and Authorized Users) consents to such Processing of personal information, including the transfer of such personal information outside of the Authorized Users’ jurisdiction, whether the initial collection of such personal information was: (a) from itself, from its affiliates and/or from the its Authorized Users directly; or (b) from network service providers or third parties with goods or services used with the TAFA Solution. Further, Customer represents and warrants (on its behalf and on behalf of its affiliates and Authorized Users) that it has obtained (or its affiliate has obtained) all necessary consents to such Processing, including collection of each Authorized User’s personal information as required for the use of the TAFA Solution, goods or services used with the TAFA Solution and as contemplated in these Terms.
10. ENTIRE AGREEMENT.
These Terms together with the agreements specific to the TAFA Solution ordered contain the entire agreement between the parties with respect to the subject matter hereof and supersede any and all prior oral or written agreements or representations. In absence of an express acceptance of these terms, Customer acknowledges that it has agreed to these Terms by acceptance or use of, or the payment for, the TAFA Solution ordered hereunder. For clarity, any additional or variant Customer purchase terms are inapplicable unless pursuant to a subsequent written agreement executed by both Parties. In the event of a conflict between these Terms and the license agreements, service terms or other terms of use specific to the TAFA Solution ordered, the terms and conditions specific to the TAFA Solution ordered shall prevail solely as to the use and scope of the applicable good or the provision and receipt of the applicable service.
11. DELIVERY TERMS APPLICABLE TO HARDWARE, ACCESSORIES AND/OR OTHER PHYSICAL GOODS.
Customer acknowledges and agrees that: (a) any shipment dates specified are estimates only and are subject to change; (b) any delay in Customer providing TAFA with any required pre-payment or required information may impact TAFA’s ability to ship the physical goods by a particular date; and (c) Customer shall Terms and Conditions of Sale Terms and Conditions of Sale Page 2 of 2 validate each shipment against attached packing slips for accuracy of items and quantities promptly upon receipt and notify TAFA immediately of any discrepancy between the attached packing slip and the shipment upon discovery of any nonconformity. Unless TAFA has received notice of any nonconformity from Customer within ten (10) business days of the shipment date, Customer shall be deemed to have accepted the shipment. Delivery shall be deemed complete and risk of loss shall pass to Customer at TAFA’s point of shipment. All shipping costs including, without limitation, insurance, brokerage, duties, freight are extra and are the responsibility of the Customer.
12. MISCELLANEOUS
a. Customer agrees that its use of the TAFA Solution shall be in accordance with all applicable federal, state, provincial and local laws, rules and regulations. b. TAFA may change the Terms at any time without notice. TAFA shall notify Customer of the change by a reasonable means of notice, including posting the revised Terms at www.tafaholdings.sg/legal and Customer should regularly visit the site to review the most current version of the Terms. The Terms in force at the time you place your order will govern your purchase. c. TAFA shall not be liable for its failure to perform or the delayed performance of its obligation under these Terms if such failure results from circumstances beyond its reasonable control, including but not limited to supplier strikes, lock-outs and labor disputes, third party acts, war, riot, civil disorder, acts of terrorism, curtailment of transportation, work stoppages, epidemic, malicious damage, compliance with any law or governmental order, prohibition, rule, regulation or direction not in force on the date these Terms commence, accident, fire, flood, or severe weather conditions. d. TAFA may assign the Terms and Customer may assign these Terms with TAFA’s prior written consent. e. To the extent any provision of these Terms is determined to be invalid or unenforceable by a competent authority in any jurisdiction, then such determination will not affect the legality, validity or enforceability of the remaining parts of these Terms. f. The provisions of these Terms are personal to the respective Parties and are not intended to confer any rights of enforcement on any third party. g. Nothing in these Terms shall be deemed to create an agency or employment relationship between the Parties. h. The waiver by either Party of any right provided under these Terms must be in writing signed by such Party and any waiver shall not constitute a subsequent or continuing waiver of such right or of any other right under these Terms.
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