Terms and Conditions

INTRODUCTION

This Master Subscription Agreement is effective as of December 1, 2020.

This agreement constitutes a binding contract on You and governs the use of and access to the Services by You and End-Users whether in connection with a paid or free trial Subscription to the Services.

By accepting this Agreement, either by accessing or using a Service, or authorising or permitting any End-User to access or use a Service, You agree to be bound by this Agreement as of the date of such access or use of the Service (the “Effective Date”).

If You are entering into this Agreement on behalf of a company, organization, or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to JFA that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “Subscriber,” “You,” “Your” or a related capitalized term herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not use or authorise any use of the Services.

The purpose of this Agreement is to establish the terms and conditions under which Subscriber may purchase John Foord Analytics’ Data and Services as described in an Order Form signed by You.

In the event of any inconsistency or conflict between the terms of the Agreement and the terms of any Order Form, the terms of the Order Form shall prevail.

Non-English translations of this Agreement are provided for convenience only. In the event of any ambiguity or conflict between translations, the English version is authoritative and shall prevail.

DEFINITIONS

When used in this Agreement with the initial letters capitalized, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:

“Account” means any accounts or instances created by or on behalf of a Subscriber or its Affiliates within the Services.

“Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.

“End-User Login” means a unique username and associated password provisioned to an identifiable individual to permit them to access the Services.

“Agreement” means the Master Subscription Agreement together with any and all Order Forms, Privacy Policy, and other documents.

“API” means the application programming interfaces developed, made available and enabled by John Foord Analytics that permit Subscribers to access certain functionality provided by the Services.

“Applicable Data Protection Law” means national laws regarding data protection law(s) as applicable to the John Foord Analytics Services.

“Associated Services” means products, services, features, and functionality designed to be used in conjunction with the Services that are not included in the Service Plan to which You subscribe.

“Beta Services” means a product, service or functionality provided by John Foord Analytics that may be made available to You to try at Your option at no additional charge which is clearly designated as beta, pilot, limited release, non-production, early access, evaluation or by a similar description.

“Confidential Business Information” means all Confidential Information that is not Service Data, including, without limitation, Your End-users’ Personal Data and Account information, which John Foord Analytics may store in its systems separate from the Service and Our security policies and procedures.

“Confidential Information” means all information disclosed by one Party to the other Party which is in tangible form and designated as confidential or is information, regardless of form, which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, the terms of this Agreement, Subscriber Service Data and Confidential Business Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving Party at the time of disclosure by the disclosing Party; (b) was or is obtained by the receiving Party from a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (d) was or is independently developed by the receiving Party without the use of the disclosing Party’s Confidential Information.

“Consulting Services” means consulting and professional services (including any training, success, and implementation services) provided by John Foord Analytics as indicated on an Order Form or other written document.

“Documentation” means any written or electronic documentation, images, video, text, or sounds specifying the functionalities or limitations of the Services or describing Service Plans, as applicable.

“End-User” means any person or entity other than Subscriber.

“Force Majeure Event” means any circumstances beyond Our reasonable control, including, but not limited to, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labour problem, internet service provider failure or delay, Non-John Foord Analytics Services, or acts undertaken by third parties, including without limitation, denial of service attack.

“Intellectual Property Rights” means any and all respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights.

“JFA” or “John Foord Analytics” means John Foord Analytics Pte Ltd, a Singapore corporation or any of its successors or assignees.

“John Foord Analytics’ Website” means the website located at: www.johnfoordanalytics.com.

“John Foord Group” means John Foord Holdings Pte Ltd, a Singapore corporation together with all its Subsidiaries and Affiliates.

“John Foord Analytics Marks” means any trademarks, service marks, service or trade names, logos or other designations of John Foord Analytics, the John Foord Group, or its or their Affiliates, whether registered or unregistered.

“Malicious Software” means any viruses, malware, Trojan horses, time bombs, or any other similar harmful software.

“Non-John Foord Analytics Services” means third party products, applications, services, software, networks, systems, directories, websites, databases, and information including services provided by other John Foord Affiliates.

“Order Form” means Our generated service order form(s) or process completed, executed, or approved by You with respect to Your subscription to a Service, which may detail, among other things, the number of End-users authorised to use a Service under Your subscription and the Service Plan applicable to Your subscription.

“Personal Data” means any information relating to an identified or identifiable natural person (‘data subject’) where an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, an online identifier or to one or more factors specific to their physical, physiological, mental, economic, cultural, or social identity of that natural person.

“Personnel” means employees and/or non-employee service providers and contractors of John Foord Analytics engaged by John Foord Analytics in connection with performance hereunder.

“Planned Downtime” means planned downtime for upgrades and maintenance to the Services scheduled in advance of such upgrades and maintenance.

“Privacy Policy” means John Foord Analytics’ privacy policy located at www.johnfoordanalytics.com.

“Processing/to Process/Processed” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction.

“Service(s)” means the products and services that are ordered by You via an Order Form referencing this Agreement, whether on a trial or paid basis, and made available online by Us. “Services” exclude (a) Services or Consulting provided by third parties including other affiliates within the John Foord Group; and (b) any Associated Services that are not provided under this Agreement or Your Service Plan. From time to time, the names and descriptions of the Services or any individual Service may be changed. To the extent Subscriber is given access to such Service as so described by virtue of a prior Order Form or other prior acceptance of this Agreement, this Agreement shall be deemed to apply to such Service as newly named or described.

“Service Data” means a subset of Confidential Information comprised of electronic data, text, messages, communications, or other materials submitted to and stored within a Service by You and End-Users in connection with Your use of such Service, which may include, without limitation, Personal Data (but shall not include the Personal Data of Your End-users in the context of Account Information as described in the Privacy Policy).

“Service Data Breach” means an unauthorised access or improper disclosure that has been verified to have affected Your Service Data.

“Service Plan(s)” means the packaged service plan(s) and the functionality and services associated therewith for the Services.

“Site” means a website operated by the John Foord Group, including www.JohnFoordAnalytics.com, as well as all other websites that the John Foord Group operates (but shall not include the Services).

“Software” means software provided by John Foord Analytics (either by download or access through the internet) that allows End-users or End-Users to use any functionality in connection with the applicable Service.

“Sub-processor” means any third-party data processor engaged by John Foord Analytics, including affiliates from the John Foord Group, that receives Service Data from John Foord Analytics for Processing on behalf of a Subscriber and in accordance with Subscriber’s instructions (as communicated by John Foord Analytics) and the terms of its written subcontract.

“Subscriber,” “You,” “Your” or a related capitalized term herein shall refer to such Entity and its Affiliates authorised by John Foord Analytics to access or use a Service or authorising or permitting any End-User to access or use a Service.

“Subscription Charges” means all charges associated with Your access to and use of an Account.

“Subscription Term” means the period during which You have agreed to subscribe to a Service.

“Supplemental Terms” means the additional terms and conditions that are included or incorporated on an Order Form.

“Taxes” means taxes, levies, duties, or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction.

“Usage Charges” means additional Subscription Charges that are incurred by Subscriber relating to the use of certain features and functionality that Subscriber enables within the Service.

“We,” “Us” or “Our” means John Foord Analytics as defined above.

SECTION 1. ACCESS TO THE SERVICES

1.1 Service. We will make the Services and Your Service Data available to You pursuant to this Agreement and the applicable Order Form(s) and Documentation in accordance with Your Service Plan. We will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except (a) during Planned Downtime (of which We will give advance notice via Our Site or to the Account owner); and (b) Force Majeure Events.

1.2 Support. We will provide customer support for the Services to You as detailed on the Order Form(s) and Documentation.

1.3 Modifications. You acknowledge that JFA may modify the features and functionality of the Services during the Subscription Term. JFA shall provide You with commercially reasonable advance notice of any deprecation of any material feature or functionality.

SECTION 2. USE OF THE SERVICES

2.1 Login Management. Access to and use of the Services is restricted to the specified number of individual End-Users permitted under Your subscription to the applicable Service. You agree and acknowledge that an End-User Login cannot be shared or used by more than one (1) individual. However, End-User Logins may be reassigned to new individuals replacing former individuals who no longer require ongoing use of the Services.

You and Your End-Users are responsible for maintaining the confidentiality of all End-User Login information for Your Account. Without a written license from JFA expressly stating otherwise, You agree and acknowledge that You may not use the Services, including but not limited to any API, to circumvent the requirement for an individual End-User Login for each individual. Further, a Subscriber shall not use any Software in such a way to circumvent applicable Service Plan restrictions. Should JFA discover that Your use of a Service violates this Agreement or the Service Plan features and limitations on Our Site or Documentation, JFA reserves the right to charge You, and You hereby agree to pay for said overuse, in addition to other remedies available to Us.

2.2 Compliance. As between You and JFA, You are responsible for compliance with the provisions of this Agreement by End-Users and for any and all activities that occur under Your Account, which JFA may verify from time to time. Without limiting the foregoing, You are solely responsible for ensuring that Your use of the Services is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements, or other obligations You may maintain or enter into with End-Users.

2.3 Content and Conduct. In Your use of the Services You agree not to (a) modify, adapt, or hack the Services or otherwise attempt to gain unauthorised access to the Services or related systems or networks; (b) falsely imply any sponsorship or association with JFA or the John Foord Group; (c) use the Services in any unlawful manner, including, but not limited to, violation of any person’s privacy rights; (d) attempt to bypass or break any security or rate limiting mechanism on any of the Services or use the Services in any manner that interferes with or disrupts the integrity, security or performance of the Services and its components; (e) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Services; (f) use or launch any automated system that accesses a Service (i.e., bot) in a manner that sends more request messages to a Service server in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser; or (g) launch or facilitate, whether intentionally or unintentionally, a level of traffic on any of the Services, or engage in any other conduct that materially and adversely impacts the security, availability, or stability of the Services.

2.4 System Requirements. A high-speed Internet connection is required for proper function of the Services. You are responsible for procuring and maintaining the network connections that connect Your network to the Services including, but not limited to, browser software that supports protocols used by JFA, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You or End-Users of any upgrades, fixes, or enhancements to any such software or for any compromise of data, including Service Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated, or controlled by JFA. We assume no responsibility for the reliability or performance of any connections as described in this Section.

2.5 Internal Business Purposes Only. Unless otherwise authorised by JFA in this Agreement or expressly agreed to otherwise in writing by JFA, You may not use the Services in any manner where You act as a service bureau or to provide any outsourced business process services on behalf of more than one (1) third party (other than Affiliates) through a single Account. Accordingly, You agree not to license, sublicense, sell, outsource, rent, lease, transfer, assign, distribute, time-share or otherwise commercially exploit or resell the Services to any third party, other than authorised End-Users in furtherance of Your internal business purposes as expressly permitted by this Agreement, unless expressly agreed to otherwise in writing by JFA.

2.6 No Competitive Access. You may not access the Services if You are a direct competitor of the John Foord Group, except with John Foord’s express prior written consent. You may not access the Services for competitive purposes.

SECTION 3. TERM, CANCELLATION AND TERMINATION

3.1 Term. Unless Your Account and subscription to a Service is terminated in accordance with the terms of this Agreement or unless otherwise provided for in an Order Form (a) Your subscription to a Service will renew for a Subscription Term equivalent in length to the then expiring Subscription Term and (b) the Subscription Charges applicable to any subsequent Subscription Term shall be Our standard Subscription Charges for the applicable Service Plan at the time such subsequent Subscription Term commences.

3.2 Cancellation. Either Party may elect to terminate Your Account and subscription to a Service as of the end of Your then current Subscription Term by providing notice, in accordance with this Agreement, no less than thirty (30) days prior to the end of such Subscription Term.

3.3 Mutual Termination for Cause. A Party may terminate this Agreement for cause (a) upon written notice to the other Party of a material breach if such breach remains uncured at the expiration of thirty (30) days from the date of the breaching Party’s receipt of such written notice; or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.

If this Agreement is terminated by You in accordance with this Section, We will refund You any prepaid fees covering the remainder of the Subscription Term as of the effective date of termination.

If this Agreement is terminated by Us in accordance with this Section, You will pay any unpaid fees covering the remainder of the Subscription Term pursuant to all applicable Order Forms. In no event will Our termination for cause relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.

3.4 Payment Upon Termination. Except for Your termination under Section 3.3, if You terminate Your subscription to a Service or cancel Your Account prior to the end of Your then effective Subscription Term, or if We terminate or cancel Your Account pursuant to Section 3.3, in addition to any other amounts You may owe JFA, You must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term.

3.5 No Refunds. Except for Your termination rights under Section 3.3, if You elect to terminate Your subscription to a Service or cancel Your Account prior to the end of Your then current Subscription Term, no refunds or credits for Subscription Charges or other fees or payments will be provided to You.

3.6 Export of Service Data. For thirty (30) days after the effective date of termination or expiration of this Agreement, upon Your request, We will make Service Data available to You for export or download. Thereafter, We will have no obligation to maintain or provide any Service Data, and We will, unless prohibited by law or legal order, delete Your Service Data in Our Services.

SECTION 4. BILLING, PLAN MODIFICATIONS AND PAYMENTS

4.1 Payment and Billing. All Subscription Charges are due in full upon commencement of Your Subscription Term, or with respect to an Additional Services, at the time such Service is purchased, subscribed to, or otherwise deployed, unless otherwise expressly set forth in this Agreement, an Order Form or as otherwise agreed. You are responsible for providing valid and current payment information and You agree to promptly update your Account information, including payment information, with any changes that may occur (for example, a change in Your billing address). If You fail to pay Your Subscription Charges or any other charges indicated on any Order Form within Fifteen (15) business days of Our notice to You that payment is delinquent, or if You do not update payment information upon Our request, in addition to Our other remedies, We may suspend or terminate access to and use of such Service by You and End-Users.

4.2 Upgrades. If You choose to upgrade Your Service Plan or increase the number of End-Users authorised to access and use a Service during Your Subscription Term, any incremental Subscription Charges associated with such upgrade will be charged in accordance with the remaining Subscription Term. In any future Subscription Term, Your Subscription Charges will reflect any such upgrades.

4.3 Downgrades. You may not downgrade Your Service Plan or reduce the number of End-Users during any Subscription Term. If You desire to downgrade Your Service Plan or reduce the number of End-users under any Service Plan for a subsequent Subscription Term, You must provide JFA with thirty (30) days advance written notice prior to the end of Your then current Subscription Term. You must demote any downgraded End-users prior to the beginning of the subsequent Subscription Term. Downgrading Your Service Plan may cause loss of content, features, or capacity of the Service as available to You under Your Account, and JFA does not accept any liability for such loss.

4.4 Taxes. Unless otherwise stated, Our charges do not include any Taxes. You are responsible for paying Taxes except those assessable against JFA measured by its net income. We will invoice You for such Taxes if We believe We have a legal obligation to do so, and You agree to pay such Taxes if so invoiced.

SECTION 5. CONFIDENTIAL INFORMATION

Each Party will protect the other’s Confidential Information from unauthorised use, access, or disclosure in the same manner as each Party protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, each Party may use the other Party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement and shall disclose such Confidential Information (a) solely to the employees and/or non-employee service providers and contractors who have a need to know such Confidential Information and who are bound by terms of confidentiality intended to prevent the misuse of such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation. The provisions of this Section 5 shall prevail over any other non-disclosure agreement by and between the Parties and any such non-disclosure agreement shall have no further force or effect with respect to the exchange of Confidential Information after the execution of this Agreement. To be clear, any exchange of Confidential Information prior to the execution of this Agreement shall continue to be governed by any such non-disclosure agreement.

SECTION 6. OWNERSHIP AND SECURITY OF SERVICE DATA

6.1 Ownership of Service Data. Subscriber shall retain ownership rights to all uniquely identifiable Service Data Processed under the terms of this Agreement.

6.2 No Sale of Service Data. JFA will never sell, rent, or lease Your uniquely identifiable Service Data to any third party. We will not share Your uniquely identifiable Service Data with third parties, except as permitted by this Agreement and in order to provide, secure and support the Services.

6.3 Safeguards. The John Foord Group will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of uniquely identifiable Service Data.

SECTION 7. PRIVACY PRACTICES

7.1 Subscriber as Data Controller. To the extent Service Data constitutes Personal Data, the Parties agree that You shall be deemed to be the Data Controller, and JFA shall be deemed to be the Data Processor, as those terms are understood under Applicable Data Protection Law.

7.2 Hosting and Processing. Unless otherwise specifically agreed to in writing by JFA, Service Data may be hosted by JFA, or their respective authorised third-party service providers, in the United States, the EEA or other locations around the world. Subject to the confidentiality terms set forth herein, You acknowledge and agree that JFA may receive, collect and/or Process Service Data, including but not limited to Personal Data within Service Data, based on Our legitimate interest under Applicable Data Protection Law to provide, secure and improve the Services.

7.3 Transfer of Personal Data. To the extent that Personal Data within Service Data originates from an End-User in the EEA, We will ensure that, pursuant to Applicable Data Protection Law, if Personal Data within Service Data is transferred to a country or territory outside of the EEA (a “non-EEA country”), then such transfer will only take place if: (a) the non-EEA country in question ensures an adequate level of data protection; (b) one of the conditions listed in Article 46 GDPR (or its equivalent under any successor legislation) is satisfied; or (c) the Personal Data is transferred on the basis of JFA’s approved corporate rules, which establish adequate protection of such personal information; or (d) the transfer takes place pursuant to the EU-U.S. or Swiss-U.S. Privacy Shield frameworks. We will further ensure that the transfer is subject to the standard contractual clauses designed to facilitate transfers of Personal Data from the EEA to all third countries that have been adopted by the European Commission, which have been incorporated into the DPA.

7.4 Sub-processors. You acknowledge and agree that JFA may use Sub-processors, who may access Service Data, to provide, secure and improve the Services. We shall be responsible for the acts and omissions of members of JFA and Sub-processors to the same extent that We would be responsible if JFA was performing the services of each JFA or Sub-processor directly under the terms of this Agreement.

7.5 End-user Personal Data. When JFA collects Personal Data of Your End-users, including in Our capacity as Data Controller, JFA processes such Personal Data in accordance with Our Privacy Policy. Our Privacy Policy explains how we collect and Process this Personal Data where necessary to provide the Services and in accordance with Our legitimate interests, including communicating with End-users in connection with their use of the Services. Where We rely on Our legitimate interest as described above, Your End Users may have certain rights relating to their Personal Data. These rights and how they can be exercised are explained in Our Privacy Policy.

7.6 In-Product Cookies. Whenever You, or Your End-Users interact with Our Services, We automatically receive and record information on Our server logs from the browser or device, which may include IP address, “cookie” information, and the type of browser and/or device being used to access the Services. When We collect this information, We only use this data to provide the Services or in aggregate form, and not in a manner that would identify Your End-Users personally.

SECTION 8. TEMPORARY SUSPENSION

We reserve the right to restrict functionalities or suspend the Services (or any part thereof), Your Account or Your and/or End-users’ rights to access and use the Services and remove, disable or quarantine any Service Data or other content if (a) We reasonably believe that You or End-Users have violated this Agreement; or (b) We suspect or detect any Malicious Software connected to Your Account or use of a Service by You or End-Users. This right includes the removal or disablement of Service Data or other content. Unless legally prohibited from doing so, We will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. We shall not be liable to You, End-Users or any other third party for any such modification, suspension, or discontinuation of Your rights to access and use the Services. Any suspected fraudulent, abusive, or illegal activity by You or End-Users may be referred to law enforcement authorities at Our sole discretion.

SECTION 9. FREE TRIALS

If You register for a free trial for any of the Services, We will make such Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Service(s); (b) the start date of any subscription to such Service purchased by You for such Service(s); or (c) termination of the trial by Us in Our sole discretion. Any Service Data you enter into a Service, and any configurations or customizations made to a Service by or for you, during your free trial will be permanently lost unless you purchase a Subscription to the same Service as covered by the trial, purchase the applicable Service, or export such Service Data, before the end of the trial period.

SECTION 10. BETA SERVICES

From time to time, We may make Beta Services available to You at no charge. You may choose to try such Beta Services in Your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to Supplemental Terms that will be presented to You. Beta Services are not considered “Services” under this Agreement; however, all restrictions, Our reservation of rights and Your obligations concerning the Service shall apply equally to Your use of Beta Services. Unless otherwise stated or communicated to You, any Beta Services trial period will expire upon the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time at Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.

SECTION 11. INTELLECTUAL PROPERTY RIGHTS

11.1 Each Party shall retain all rights, title, and interest in any Intellectual Property Rights. The rights granted to You and End-Users to use the Service(s) under this Agreement do not convey any additional rights in the Service(s) or in any Intellectual Property Rights of JFA associated therewith. Subject only to limited rights to access and use the Service(s) as expressly stated herein, all rights, title, and interest in and to the Services and all hardware, Software, and other components of or used to provide the Services, including all related Intellectual Property Rights, will remain with JFA and belong exclusively to JFA.

11.2 JFA shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable, and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services, or otherwise use any suggestions, enhancement requests, recommendations, or other feedback We receive from You, End-Users, or other third parties acting on Your behalf. JFA also reserves the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by suggestions, enhancement requests, recommendations, or other feedback We receive from You, End-Users, or other third parties acting on Your behalf.

11.3 You may only use the JFA or John Foord Group Marks only with the prior written consent of JFA or John Foord Group, provided You do not attempt, now or in the future, to claim any rights in the John Foord Group Marks, degrade the distinctiveness of the John Foord Group Marks, or use the John Foord Group Marks to disparage or misrepresent John Foord Group, JFA or Our Services. JFA’s ability to use Subscriber’s trademarks, service marks, service or trade names or logos will be by mutual agreement of the Parties.

SECTION 12. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS

12.1 Each Party represents and warrants to the other that (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery or performance of this Agreement; and (c) the execution, delivery and performance of the Agreement does not and will not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.

12.2 Warranties. We warrant that during an applicable Subscription Term (a) this Agreement and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Service Data; and (b) the Services will perform materially in accordance with the applicable Documentation. For any breach of a warranty in this section, Your exclusive remedies are those described in Section 3.3 herein.

12.3 Disclaimers. Except as specifically set forth in section 13.2, the Sites, and the Services, including all server and network components, are provided on an “as is” and “as available” basis, without any warranties of any kind to the fullest extent permitted by law, and we expressly disclaim any and all warranties, whether express or implied, including, but not limited to, any implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement. You acknowledge that we do not warrant that the Services will be uninterrupted, timely, secure, error-free, or free from viruses or other malicious software, and no information or advice obtained by you from us or through the Services shall create any warranty not expressly stated in this agreement.

SECTION 13. INDEMNIFICATION

13.1 Indemnification by Us. We will indemnify, defend, and hold You harmless from and against any claim brought by a third party against You by reason of Your use of a Service as permitted hereunder, alleging that such Service infringes or misappropriates a third party’s valid patent, copyright, trademark, or trade secret (an “IP Claim”). We shall, at Our expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by JFA for such defence, provided that (a) You promptly notify JFA of the threat or notice of such IP Claim; (b) We will have the sole and exclusive control and authority to select defence attorneys, and defend and/or settle any such IP Claim (however, We shall not settle or compromise any claim that results in liability or admission of any liability by You without Your prior written consent); and (c) You fully cooperate with JFA in connection therewith. If use of a Service by You, End-users or End-Users has become, or, in Our opinion, is likely to become, the subject of any such IP Claim, We may, at Our option and expense, (i) procure for You the right to continue using the Service(s) as set forth hereunder; (ii) replace or modify a Service to make it non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by JFA, terminate Your subscription to the Service(s) and repay You, on a pro-rata basis, any Subscription Charges previously paid to JFA for the corresponding unused portion of Your Subscription Term for such Service(s). We will have no liability or obligation under this Section 14.1 with respect to any IP Claim if such claim is caused in whole or in part by (x) compliance with designs, data, instructions or specifications provided by You; (y) modification of the Service(s) by anyone other than JFA or JFA Personnel; or (z) the combination, operation or use of the Service(s) with other hardware or software where a Service would not by itself be infringing. The provisions of this Section 14.1 state the sole, exclusive, and entire liability of JFA to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of a Service by You, End-users, or End-Users.

13.2 Indemnification by You. You will indemnify, defend and hold JFA harmless against any claim brought by a third party against JFA (a) arising from or related to use of a Service by You, End-users or End-Users in breach of this Agreement; or (b) alleging that Your use of the Service or Your Service Data infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret; provided that (i) We promptly notify You of the threat or notice of such claim; (ii) You will have the sole and exclusive control and authority to select defence attorneys, and defend and/or settle any such claim (however, You shall not settle or compromise any claim that results in liability or admission of any liability by Us without Our prior written consent); and (iii) We fully cooperate with You in connection therewith.

SECTION 14. LIMITATION OF LIABILITY

14.1 under no circumstances and under no legal theory (whether in contract, tort, negligence or otherwise) will either party to this agreement, or their affiliates, officers, directors, employees, end-users, service providers, suppliers or licensors be liable to the other party or any affiliate for any lost profits, lost sales or business, lost data (being data lost in the course of transmission via your systems or over the internet through no fault of JFA), business interruption, loss of goodwill, costs of cover or replacement, or for any other type of indirect, incidental, special, exemplary, consequential or punitive loss or damages, or for any other indirect loss or damages incurred by the other party or any affiliate in connection with this Agreement or the Services, regardless of whether such party has been advised of the possibility of or could have foreseen such damages.

14.2 Notwithstanding anything to the contrary in this Agreement, the John Foord Group’s aggregate liability to You, any Affiliate, or any third party arising out of this Agreement or the Services shall in no event exceed the Subscription charges paid by you during the twelve (12) months prior to the first event or occurrence giving rise to such liability. You acknowledge and agree that the essential purpose of this section 15.2 is to allocate the risks under this Agreement between the Parties and limit potential liability given the Subscription Charges, which would have been substantially higher if we were to assume any further liability other than as set forth herein. We have relied on these limitations in determining whether to provide you with the rights to access and use the Services provided for in this Agreement.

The limitations set forth in section 15.2 shall not apply to claims or damages resulting from JFA’s IP claims indemnity obligations in section 14.1 of this agreement.

14.3 The limitation of liability provided for herein will apply in aggregate to any and all claims by Subscriber and its Affiliates and shall not be cumulative.

14.4 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages or for personal injury or death, which means that some of the above limitations may not apply to You. In these jurisdictions, JFA’s liability will be limited to the greatest extent permitted by law.

14.5 Any claims or damages that You may have against JFA shall only be enforceable against JFA and not any other entity, nor any officers, directors, representatives or employees of John Foord Group or any other entity.

SECTION 15. THIRD-PARTY SERVICE PROVIDERS

Third-Party Service Providers. You agree that JFA, and the third-party service providers that are utilised by JFA to assist in providing the Services to You, shall have the right to access Your Account and to use, modify, reproduce, distribute, display, and disclose the Personal Data of Your End-users to the extent necessary to provide, secure or improve the Services. Any third-party service providers utilised by JFA will only be given access to Your Account as is reasonably necessary to provide the Services and will be subject to (a) confidentiality obligations which are commercially reasonable and substantially consistent with the standards described in Section 5; and (b) such third-party service provider’s agreement to comply with the data transfer restrictions applicable to Personal Data within Service Data as set forth in Section 7.

SECTION 16. ASSIGNMENT, ENTIRE AGREEMENT AND AMENDMENT

16.1 Assignment. You may not, directly, or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Your rights under this Agreement, or delegate performance of Your duties under this Agreement, without Our prior written consent, which consent will not be unreasonably withheld. We may, without Your consent, assign this Agreement to any member of the John Foord Group or in connection with any merger or change of control of JFA or the John Foord Group or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfil its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.

16.2 Entire Agreement. This Agreement constitutes the entire agreement and supersedes any and all prior agreements between You and JFA with regard to the subject matter hereof. This Agreement shall apply in lieu of the terms or conditions in any purchase order or other order documentation You or any entity which You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either Party with respect to the subject matter hereof. There are no oral promises, conditions, representations, understandings, interpretations, or terms of any kind between the Parties, except as may otherwise be expressly provided herein. The headings used herein are for convenience only and shall not affect the interpretation of the terms of this Agreement.

16.3 Amendment. We may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any such amendment and Your continued use of the Services following the effective date of any such amendment may be relied upon by JFA as Your consent to any such amendment. Our failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.

SECTION 17. SEVERABILITY

If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

SECTION 18. EXPORT COMPLIANCE AND USE RESTRICTIONS

The Services and other JFA technology, and derivatives thereof, may be subject to export controls and economic sanctions laws and regulations of the United States and other jurisdictions. Subscriber agrees to comply with all such laws and regulations as they relate access to the Services and other JFA technology. Subscriber represents that they are not named on any U.S. government restricted-party list, will not permit any End-user or End-User to access or use any Service in a U.S.-embargoed country or region, and will not permit the Service to be used for any prohibited end use (e.g., nuclear, chemical, or biological weapons proliferation, or missile-development purposes).

SECTION 19. RELATIONSHIP OF THE PARTIES

The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.

SECTION 20. NOTICE

All notices provided by JFA to You under this Agreement may be delivered in writing by (a) nationally recognized overnight delivery service (“Courier”) or mail to the contact mailing address provided by You on any Order Form; or (b) electronic mail to the electronic mail address provided for Your Account owner. You must give notice to JFA in writing to 80 Robinson Road #1504, Singapore 068898, Attn: Legal Department. All notices shall be deemed to have been given immediately upon delivery by electronic mail; or, if otherwise delivered upon the earlier of receipt or two (2) business days after being deposited in the mail or with a Courier as permitted above.

SECTION 21. GOVERNING LAW

This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the laws of Singapore.

 

Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity, or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this clause.  The seat of the arbitration shall be Singapore.  The Tribunal shall consist of one arbitrator.  The language of the arbitration shall be English.

SECTION 22. ANTI-CORRUPTION

You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at enquires@johnfoord.com.

SECTION 23. SURVIVAL

Sections 2.1, 3.5, 3.6, 4.4, 5 – 7, and 12 – 21 shall survive any termination of this Agreement with respect to use of the Services by You or End-Users. Termination of this Agreement shall not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.