Last Updated July 2020
Last Updated July 2020
BY CHECKING THE ACCEPTANCE BOX OR ACCESSING OR USING ALL OR ANY PORTION OF THE DELVIFY SMART PLATFORM (“SMART PLATFORM’), YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AS PUBLISHED ON DELVIFY’S WEBSITE AT WWW.DELVIFY.IO. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU AND LEGALLY BINDING BETWEEN YOU AND DELVIFY APAC LIMITED OR THE APPLICABLE DELVIFY AFFILIATE (“DELVIFY”). IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT ACCESS OR USE THE SMART PLATFORM IF YOU WISH TO USE THE SMART PLATFORM AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT AND AUTHORITY TO DO SO. IN THE EVENT YOU ARE REDIRECTED TO DELVIFY WEBSITE, YOU AGREE THAT YOUR USE IS SUBJECT TO ANY TERMS OF SERVICE POSTED THEREON. DELVIFY MAY MODIFY THIS AGREEMENT AS SET FORTH BELOW (MODIFICATIONS TO THIS AGREEMENT).
This Smart Platform Subscription Agreement (“Agreement”) is between Delvify and the customer (individual or entity) that has purchased a subscription to the SMART Platform (“you” or “your”). “Delvify” means the Delvify entity designated on the applicable Implementation Order. “i/o” means any order on a Delvify form which references this Agreement. Each i/o which references this Agreement shall be deemed a part of this Agreement. The “Effective Date” of this Agreement is the date which is the earlier of (a) your initial access to the SMART Platform through any online provisioning, registration or order process, or (b) the effective date of the first i/o referencing this Agreement.
1. SMART PLATFORM
1.1. Provision of SMART Platform. SMART Platform is a hosted service permitting you to access Delvify’s AI solutions and recommendation products, and any modifications, enhancements, and/or updates from time to time (“SMART Platform”). Provision of SMART Platform to you involves the ongoing operation, support and improvement of SMART Platform for all users. SMART Platform is described more fully in the then-current version of any supporting product help and technical specifications documentation provided by Delvify with SMART Platform to you (“Documentation”). SMART Platform is provided on a subscription basis for a set term designated herein or in the applicable i/o (each, a “Subscription Term”). This Agreement applies only to SMART Platform and does not grant you rights to any other Delvify services or software. All access rights and technical capabilities for each Authorized User are as set forth in the Documentation and Ordering Document. All undefined names of Software products have the meanings given to them in the Documentation.
1.2. Evaluation Access. If Delvify has made available to you free, trial or evaluation access to SMART Platform (“Evaluation Access”), you may use such access solely for the purpose of evaluating SMART Platform to determine whether to purchase a subscription from Delvify. You may not use Evaluation Access for any other purposes, including but not limited to competitive analysis, commercial, professional or for-profit purposes. Evaluation Access is limited to thirty (30) days from the date you activate your Evaluation Access, unless otherwise specified by Delvify (“Evaluation Period”). Unless you purchase a subscription for SMART Platform, your Evaluation Access may be terminated and, in any event your right to access and use SMART Platform automatically expires at the end of the Evaluation Period. Upon any termination or expiration of the Evaluation Period, your Evaluation Access will cease and you will no longer have access to any Data used in connection with such Evaluation Access. Notwithstanding any other provision of this Agreement, Evaluation Access is provided “AS IS” without warranty or support of any kind, express or implied. Delvify may terminate your Evaluation Access at any time for any reason and without liability of any kind. IF YOU SUBSEQUENTLY PURCHASE A SUBSCRIPTION TO SMART PLATFORM, YOUR EVALUATION ACCESS SHALL IMMEDIATELY TERMINATE AND YOU EXPRESSLY AGREE THAT, UNLESS YOU HAVE A SEPARATE SIGNED AGREEMENT GOVERNING YOUR ACCESS TO AND USE OF SMART PLATFORM, THIS AGREEMENT, AND THE TERMS AND CONDITIONS HEREIN, SHALL GOVERN YOUR USE OF SUCH NON-EVALUATION VERSION.
1.3. Access to SMART Platform. Subject to the terms and conditions of the Agreement, and except as set forth in Section 5 (Term and Termination) Delvify hereby grants to you a non-exclusive, non-transferable, non-sublicensable (except as permitted under Section 1.5), worldwide right during the applicable Subscription Term to access and use SMART Platform solely for your business purposes but only in accordance with: (i) the Documentation; (ii) the restrictions in Section 1.1 (Provision of SMART Platform), Section 1.7 (General Restrictions), and Section 2 (Customer Data and Customer Obligations) and (iii) any restrictions designated on the applicable Ordering Document, including, but not limited to the number of Authorized Users (“Access Grant”). You will use reasonable efforts to prevent any unauthorized access to or use of SMART Platform and the Documentation, and will promptly notify Delvify in writing of any unauthorized access or use of which you become aware and provide all reasonable cooperation to prevent and terminate such access or use.
1.4. Authorized Users. “Authorized Users” means those uniquely identified individuals subject to an Access Grant who are authorized by you to use and access SMART Platform for any purpose regardless of whether those individuals are actively using SMART Platform at any given time. The Authorized Users will receive user IDs and passwords to access SMART Platform. These credentials are granted to individual, named persons and may not be shared. You will ensure that all Authorized Users keep these credentials strictly confidential. You may allow your Contractors and Affiliates to access SMART Platform as Authorized Users in accordance with this Agreement, provided you shall remain liable for all acts and omissions of your Affiliates and Contractors as if their breach were your own. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with you (where “control,” means direct or indirect ownership or control of more than 50% of your voting interests). “Contractor” means those independent third parties who perform services related to this Agreement for you, but solely to the extent they are acting on your behalf.
1.5. Client Sublicensees. Subject to the terms and conditions of this Agreement, during the Subscription Term, you may permit third-parties (“Client Sublicensees”) to be Authorized Users of your account to SMART Platform, but only so the Client Sublicensees may (1) interact with the SMART Insights tool generated by you through your use of SMART Platform and based on Customer Data (as defined in Section 2.1) or (2) themselves create Insights using Customer Data, provided that in each case the Customer Data excludes Client Sublicensee data unless such Client Sublicensee data is combined with Customer Data or is relevant to your provision of services to that particular Client. In providing such access to Client Sublicensees, you may not act as “Marketing Service Provider”, “Service Bureau” or other entity with a similar business model. Client Sublicensees may not use or access SMART Platform for any other purposes except as expressly permitted in this Section 1.5. For the avoidance of doubt, Client Sublicensees may not access any AI Solutions or other features for any purpose. You shall ensure that all Client Sublicensees’ use of SMART Platform is limited as described in this Section 1.5 by designating the appropriate access levels for Client Sublicensees within SMART Platform. You shall be solely responsible for your relationships with Client Sublicensees and notify Client Sublicensees that Delvify shall have no warranty, support or other obligation or liability. You acknowledge that Delvify does not assume and should not be exposed to the business and operational risks associated with your business or any aspects of providing SMART Insights access to your Client Sublicensees, and therefore you shall be liable for all acts and omissions of Client Sublicensees as if their acts or omissions were your own.
1.6. Third-Party Code. SMART Platform may contain or be provided with components which are licensed from third parties (“Third Party Code”), including components subject to the terms and conditions of “open source” software licenses (“Open Source Software”). Open Source Software may be identified in the Documentation, or in a list of the Open Source Software provided to you upon written request. To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.
1.7. General Restrictions. As a condition to the rights granted to you hereunder, you shall not (and shall not allow any third party to): (a) decompile, disassemble, or otherwise reverse engineer SMART Platform or any Third Party Code or attempt to reconstruct or discover any source code, APIs, underlying ideas, algorithms, file formats or programming interfaces of SMART Platform or the Third Party Code by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions, or as permitted by an applicable Open Source Software license); (b) distribute, sell, sublicense, rent, lease or use SMART Platform or any Third Party Code (or any portion thereof) for time sharing, hosting, service provider or like purposes, except as expressly permitted under Section 1.5 of this Agreement; (c) remove any product identification, proprietary, copyright trademark, service mark, or other notices contained in SMART Platform or any Third Party Code (including any reports or data printed via the use of SMART Platform); (d) modify any part of SMART Platform or any Third Party Code, create a derivative work of any part of SMART Platform or any Third Party Code, or incorporate SMART Platform or any Third Party Code into or with other software, except to the extent expressly authorized in writing by Delvify or as permitted by an applicable Open Source Software license; (e) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to SMART Platform; (f) utilize any equipment, device, software, or other means designed to circumvent or remove any form of copy or other protection used by Delvify in connection with SMART Platform, or use SMART Platform together with any user credentials or other copy protection device not supplied by Delvify or through an Authorized Partner; (g) use SMART Platform to develop a product which is competitive with any Delvify product offerings; (h) use unauthorized user credentials or distribute or publish such credentials except as may be expressly permitted by Delvify in writing; (i) enable access to SMART Platform for a greater number of Authorized Users than the sum quantity of subscriptions purchased on the applicable Ordering Document(s); (j) reassign subscription access rights between Authorized Users so frequently as to enable a single subscription to be shared between multiple users; (k) assert, nor will you authorize, assist or encourage any third-party to assert, against Delvify or any of its affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding SMART Platform or any support you have purchased or used hereunder; (l) use SMART Platform to develop a product that converts any Delvify file format to an alternative report file format used by any general-purpose report writing, data analysis or report delivery product that is not the property of Delvify; or (m) automate processes, including without limitation, API calls, or refreshes of visualizations or dashboards, if such automation has a detrimental impact on Delvify’s ability to provide SMART Platform to its other customers.
2. CUSTOMER DATA AND YOUR OBLIGATIONS
2.1 Customer Data. “Customer Data” means any business information or other data which you input or permit to be gathered by or provide to Delvify for inputting, into SMART Platform.
2.2 Your Obligations
(a) General. You are solely responsible for the accuracy and content of all Customer Data. You represent and warrant to Delvify that (i) you have sufficient rights in the Customer Data to authorize Delvify to process, distribute and/or display the Customer Data as contemplated by this Agreement and the Documentation, (ii) the Customer Data and its use hereunder will not violate or infringe the rights of any third party, and (iii) your use of SMART Platform and all Customer Data is at all times compliant with your privacy policies and all applicable local, state, federal and international laws, regulations and conventions, including without limitation those related to data privacy, international communications and the exportation of technical or personal data.
2.3 Rights in Customer Data.
As between the parties, you shall retain all right, title and interest (including any and all intellectual property rights) in and to your Customer Data as published on SMART Platform. Subject to the terms of this Agreement, you hereby grant to Delvify a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, and distribute, perform and display (including publicly), modify and create derivative works of the Customer Data solely to the extent necessary to provide SMART Platform in accordance with this Agreement and the Documentation.
2.4 Storage of Customer Data.
Delvify does not provide an archiving service. Delvify agrees it shall not intentionally delete any Customer Data from SMART Platform prior to termination or expiration of your applicable subscription. Except as otherwise set forth herein, Delvify expressly disclaims all other obligations with respect to storage of Customer Data.
3.1. Delvify Technology.
Notwithstanding anything to the contrary contained herein, except for the limited access and use rights expressly provided herein, Delvify and its licensors retain all right, title and interest (including, without limitation, all patent, copyright, trade secret and other intellectual property rights) in and to SMART Platform, the Documentation, the Third Party Code, any other Delvify deliverables and any and all related and underlying software (including interfaces), databases (including data models, structures, and any other non-customer specific data and statistical data), technology, reports, documentation, as well as any related process or methodology provided or used by Delvify, and with respect to each of the foregoing, any copies, modifications, improvements, derivative works, or enhancements thereto however developed or provided (including any which incorporate any of your ideas Feedback or suggestions) (collectively, “Delvify Technology”). You acknowledge that you are obtaining only a limited right to access and use SMART Platform on a hosted basis and that irrespective of any use of the words “purchase”, “sale”, “sublicense” or like terms hereunder no ownership rights are being conveyed to you under this Agreement or otherwise, and further acknowledge that nothing contained in this Agreement shall be construed to convey to you ownership of any intellectual property rights in or to any Delvify Technology or any related methodologies or processes. Nothing in this Section 3.1 shall be deemed as granting Delvify ownership of Customer Data or in any way impacting your ownership of Customer Data.
From time to time, you or your Authorized Users may submit suggestions, enhancements, requests, recommendations, corrections, or other feedback relating to SMART Platform or other Delvify software or services (“Feedback”). You agree that all Feedback is and shall be given entirely voluntarily. Feedback, even if designated as confidential by you, shall not, absent a separate written agreement, create any confidentiality obligation for or upon Delvify. You will not give Feedback that is subject to license terms that seek to require any Delvify product, technology, service or documentation incorporating or derived from such Feedback, or any Delvify intellectual property, to be licensed or otherwise shared with any third party. Delvify may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner it sees fit without any obligation, royalty or restriction based on intellectual property rights or otherwise.
4. SUBSCRIPTION TERM, FEES & PAYMENT
4.1. Subscription Term.
Unless otherwise specified on the applicable i/o, each Subscription Term shall begin on the effective date of the applicable i/o and expire twelve (12) months thereafter. All applicable fees for such renewals will be at Delvify’s then-current rates. If your subscription is not renewed, your access to SMART Platform will terminate at the end of the then-current Subscription Term.
Customer shall pay Delvify the fees indicated on the i/o. Unless otherwise provided, all fees are to be paid to Delvify within thirty (30) days of the date of any invoice. Any late payment will be subject to any costs of collection (including reasonable legal fees) and will bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less. If Customer has set up a direct debit, Service Provider will not debit Customer’s designated account before seven (7) days have elapsed from the date of the invoice. If Customer is delinquent on a payment of fees for fifteen (15) days or more, Service Provider may suspend access to the Application. Complaints concerning invoices must be made in writing within thirty (30) days from the date of the invoice. Invoices will be sent by electronic delivery unless requested otherwise by Customer, additional fees will apply.
The license, service fees, and other amounts required to be paid hereunder do not include any amount for taxes or levy (including interest and penalties). Customer shall reimburse Delvify and hold Delvify harmless for all sales, use, VAT, excise, property or other taxes or levies which Service Provider is required to collect or remit to applicable tax authorities. This provision does not apply to Delvify’s income or franchise taxes, or any taxes for which Customer is exempt, provided Customer has furnished Delvify with a valid tax exemption certificate
5. TERM AND TERMINATION
5.1. Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of the Subscription Term(s).
5.2. Termination for Cause.
Either party may terminate this Agreement (including all related Ordering Documents) if the other party (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach including without limitation your failure to pay, provided that Delvify may terminate this Agreement immediately upon any breach of Section 1.7 (General Restrictions) or if you violate any other restrictions contained in Section 2 (Customer Data and Your Obligations), or Section 11 (Export Control); (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
5.3. Effect of Termination.
Upon any termination or expiration of this Agreement, you shall immediately cease any and all use of and access to SMART Platform and destroy (or, at Delvify’s request, return), any Delvify Confidential Information in its possession. You acknowledge that, except as exported or printed prior to termination or expiration by you as may be permitted through the functionality of SMART Platform, following termination or expiration it shall have no further access to any Customer Data input into SMART Platform, and that Delvify may delete any such data at any time. Except where an exclusive remedy is specified in this Agreement, the exercise by either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
The following Sections shall survive any expiration or termination of this Agreement: Sections 1.7 (General Restrictions), 3 (Ownership), 4.2 (Fees), 5 (Term and Termination), 6.3 (Warranty Disclaimer), 8 (Limitation of Remedies and Damages), 9.2 (Indemnification by You), 10 (Confidential Information) and 12 (General Terms).
6. LIMITED WARRANTY
6.1. Limited Warranty.
Delvify warrants to you that SMART Platform will operate in substantial conformity with the applicable Documentation. Delvify does not warrant that your use of SMART Platform will be uninterrupted or error-free, nor does Delvify warrant that it will review the Customer Data for accuracy or that it will preserve or maintain the Customer Data without loss. Delvify’s sole liability (and your sole and exclusive remedy) for any breach of this warranty shall be, in Delvify’s sole discretion and at no charge to you, to use commercially reasonable efforts to correct the reported non-conformity, or if Delvify determines such remedy to be impracticable, to allow you to terminate the applicable Subscription Term and receive as its sole remedy a refund of: (a) the monthly subscription fees specified in the applicable Ordering Document which are allocable to the thirty (30) day period prior to the date the warranty claim was made and (b) any fees you have pre-paid for use of SMART Platform or related services it has not received as of the date of the warranty claim.
The above warranty shall not apply: (i) unless you make a claim within thirty (30) days of the date on which the condition giving rise to the claim first appeared; (ii) if SMART Platform is used with hardware or software not authorized in the Documentation; (iii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services; (iv) to any Evaluation Access or other use provided on a no charge or evaluation basis.
6.3. Warranty Disclaimer.
THIS SECTION 6 IS A LIMITED WARRANTY AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6, SMART PLATFORM, INCLUDING WITHOUT LIMITATION THIRD-PARTY CODE IS PROVIDED “AS IS”. NEITHER DELVIFY NOR ITS LICENSORS MAKES ANY OTHER WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES SHALL BE LIMITED AS PROVIDED HEREIN. DELVIFY SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF DELVIFY.
7. SUPPORT AND SECURITY.
During the Subscription Term, SMART Platform is subject to the support terms and security procedures set forth in the then-current SMART Platform Technical Support Policy.
8. LIMITATION OF REMEDIES AND DAMAGES
8.1. BUT FOR: (1) BREACH OF SECTION 1.5 (CLIENT SUBLICENSEES), SECTION 1.7 (GENERAL RESTRICTIONS), OR SECTION 11 (EXPORT CONTROL), OR (2) DAMAGES ARISING OUT OF CLIENT SUBLICENSEE’S USE OF SMART PLATFORM, INCLUDING YOUR OBLIGATIONS UNDER SECTION 9.2, NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS,
INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
8.2. BUT FOR: (1) BREACH OF SECTION 1.5 (CLIENT SUBLICENSEES), SECTION 1.7 (GENERAL RESTRICTIONS), OR (2) DAMAGES ARISING OUT OF CLIENT SUBLICENSEE’S USE OF SMART PLATFORM, INCLUDING YOUR OBLIGATIONS UNDER SECTION 9.2, EACH PARTY’S ENTIRE LIABILITY AND OBLIGATION TO THE OTHER PARTY SHALL NOT EXCEED THE LESSER OF (A) FEES PAID OR OWED BY YOU TO DELVIFY UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRECEDING THE CLAIM OR (B) US $500,000. IN THE CASE WHERE NO AMOUNT WAS PAID FOR THE SERVICE GIVING RISE TO THE CLAIM, DELVIFY AND ITS LICENSORS’ ENTIRE LIABILITY TO YOU UNDER THIS AGREEMENT SHALL NOT EXCEED USD $100.
8.3. Failure of Essential Purpose.
The parties agree that the limitations specified in this Section 8 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
9.1. Delvify Indemnification. Delvify shall defend you from and against any claim by a third party alleging that SMART Platform, when used as authorized under this Agreement, infringes a U.S. patent, U.S. copyright, or U.S. trademark and shall indemnify and hold your harmless from and against any damages and costs awarded against you or agreed to in settlement by Delvify (including reasonable attorneys’ fees). Provided that Delvify shall have received from you: (i) prompt written notice of such claim (but in any event notice in sufficient time for Delvify to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (iii) all reasonably necessary cooperation from you. If your use of SMART Platform is (or in Delvify’s opinion is likely to be) enjoined, if required by settlement or if Delvify determines such actions are reasonably necessary to avoid material liability, Delvify may, in its sole discretion: (a) substitute for SMART Platform substantially functionally similar programs and documentation; (b) procure for you the right to continue using SMART Platform; or if (a) and (b) are not commercially reasonable, (c) terminate the Agreement and refund to you the subscription fees paid by you for the portion of the Subscription Term which was paid by you but not rendered by Delvify. The foregoing obligations of Delvify shall not apply: (1) if SMART Platform is modified by any party other than Delvify, but solely to the extent the alleged infringement is caused by such modification; (2) if SMART Platform is combined with other non-SMART Platform services or processes not provided or authorized by Delvify, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of SMART Platform; (4) to any action arising as a result of Customer Data or any third-party components contained within or uploaded to SMART Platform; or (5) if you settle or make any admissions with respect to a claim without Delvify’s prior written consent. THIS SECTION 8 AND 9 SETS FORTH DELVIFY AND ITS LICENSOR’S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
9.2. Indemnification by You.
Subject to this Section 9, you shall defend Delvify from and against any and all claims by third parties (including any Client Sublicensees and Contractors) resulting from or relating to: (i) the Customer Data, including without limitation any claim based on your breach or alleged breach of Section 2.2 (Your Obligations) or alleging that the Customer Data infringes upon any valid patent, copyright, trademark, trade secret, or other proprietary right of, or otherwise harms, such third party; (ii) any breach by you of Section 1.5 (Client Sublicensees); or (iii) a Client Sublicensee’s use of SMART Platform, and shall indemnify and hold Delvify harmless from and against any damages and costs awarded against Delvify or agreed in settlement by you (including reasonable attorney’s fees) resulting from such claims, provided that you shall have received from Delvify: (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (iii) all reasonably necessary cooperation from Delvify. You may not settle any such claim relating to SMART Platform without Delvify’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed.
10. CONFIDENTIAL INFORMATION.
10.1. Use of Confidential Information.
Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any software, pricing, documentation or technical information provided by Delvify (or its agents), performance information relating to SMART Platform, and the terms and conditions of this Agreement shall be deemed Confidential Information of Delvify without any marking or further designation. Customer Data shall be deemed your Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information to anyone other than its affiliates, employees and consultants (“Representatives”) who have a need to know and who agree in writing to keep the information confidential on terms no less restrictive than those contained in this Agreement. Both Delvify and you will ensure that their respective Representatives comply with this Agreement and will be responsible for any unauthorized use or disclosure of Confidential Information by such Representatives. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the Receiving Party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information could cause substantial harm for which damages alone would not be a sufficient remedy, and therefore upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
11. GENERAL TERMS
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Ordering Documents), without the other party’s consent to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, Delvify will refund you any prepaid fees covering the remainder of the Subscription Term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
11.3. Governing Law; Jurisdiction and Venue.
Excluding conflict of laws rules, this Agreement shall be governed by and construed under the laws of Singapore. All disputes arising out of or in relation to this Agreement shall be submitted to the exclusive jurisdiction of the courts of Singapore. Nothing in this section shall restrict Delvify’s right to bring an action (including for example a motion for injunctive relief) against you in the jurisdiction where your place of business is located. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act, as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction, do not apply to this Agreement.
12.4. Attorneys’ Fees and Costs.
The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
12.5. Delvify’s Customer List.
You agree that Delvify may disclose you as a customer of Delvify and use your name and logo on Delvify’s website and in Delvify’s promotional materials.
Any notice or communication required or permitted under this Agreement shall be in writing or in electronic format. If to Delvify by mail, such notice or report shall be sent to Delvify at 12019 Tower 535, 535 Jaffe Rd, Hong Kong to the attention of “Legal Department”. If to Delvify by email, such notice or report shall be sent to: firstname.lastname@example.org. If to you such notice or report shall be sent to the mailing or email address you provided upon placing your order. Notices and reports sent by mail shall be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if sent by certified or registered mail (return receipt requested); or (c) one day after it is sent if by next day delivery by a major commercial delivery service. Any notices and reports sent by email shall be effective upon receipt of the same.
12.7. Amendments; Waivers.
From time to time, Delvify may modify the SMART Platform Technical Support Policy referenced in Section 7, however Delvify shall not substantially reduce the overall level of beneficial service provided to you under the SMART Platform Support Policy existing as of commencement of the then-current Subscription Term, unless such reduction results from governmental regulation or requested modifications by you or is otherwise agreed to by you. Except as otherwise provided in this Agreement, no supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. All conflicting terms in any purchase order or other business form employed by you, including any electronic invoicing portals and vendor registration processes are void, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
12.8. Entire Agreement.
This Agreement (including each Ordering Document, and any other mutually agreed exhibits or attachments) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. You acknowledge that SMART Platform is an on-line, subscription-based product, and that in order to provide improved customer experience Delvify may make changes to SMART Platform (which may include making available different or substitute code compared to those available as of the Effective Date), and Delvify will update the Documentation accordingly.
12.9. Independent Contractors.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
12.10. Force Majeure.
Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost.
12.11. Authorized Partner. If you received SMART Platform under an agreement (“Partner Agreement”) with an authorized Delvify reseller, partner (“Authorized Partner”) then, notwithstanding anything to the contrary in this Agreement: (a) your use of SMART Platform is subject to any additional terms in the Partner Agreement, including any limitations on use of SMART Platform in conjunction with third-party applications; and (b) you agree to pay the Authorized Partner the fees agreed in the Partner Agreement and you have no direct payment obligations to Delvify for that purchase under Section 4 above. If your warranty and support terms stated in your Partner Agreement are different than what is stated in Section 6 or 7 herein, then Delvify has no warranty or support obligations to you under this Agreement (although the disclaimers of warranties in Section 6.3 still apply to you). If your warranty and support terms passed on in your Partner Agreement are as stated herein, then Section 6 and 7 shall apply to you as written. Notwithstanding anything in this Agreement to the contrary, (i) the Partner Agreement may not modify any of the remaining terms of this Agreement and (ii) the Partner Agreement is between you and the Authorized Partner and is not binding on Delvify. Delvify may terminate this Agreement (including your right to use SMART Platform) in the event Delvify fails to receive payment for your use of SMART Platform from the Authorized Partner or if you breach any term of this Agreement.
12.12. Third Party Beneficiaries.
There are no third-party beneficiaries under this Agreement.
Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
Regardless of any language into which this Agreement may be translated, the official, controlling and governing version of this Agreement shall be exclusively the English language version.
12.15. Modifications to this Agreement.
Delvify may modify this Agreement from time to time by giving notice to you through Delvify’s online user interfaces. Unless a shorter period is specified by Delvify (e.g. due to changes in the law or exigent circumstances), the modifications become effective upon renewal of your current Subscription Term or entry into a new Ordering Document. If Delvify specifies that the modifications to this Agreement will take effect prior to your next renewal or order and you notify Delvify in writing at email@example.com of your objection to the modifications within thirty (30) days after the date of such notice, Delvify (at its option and as your exclusive remedy) will either: (a) permit you to continue under the existing version of the Agreement until expiration of the then-current Subscription Term (after which time the modified Agreement will go into effect) or (b) allow you to terminate this Agreement and receive a refund of any pre-paid SMART Platform fees allocable to the terminated portion of the applicable Subscription Term. You may be required to click to accept or otherwise agree to the modified Agreement in order to continue using SMART Platform, and, in any event, continued use of SMART Platform after the modified version of this Agreement becomes effective will constitute your acceptance of such modified version.