This Master Subscription Agreement (“Agreement”) governs the Customer’s acquisition and use of Services (as defined below).
If the Customer is entering into this Agreement on behalf of a company or other legal entity, the Customer represents that the Customer has the authority to bind such entity and its Affiliates to these terms and conditions, in which case the term “Customer” shall refer to such entity and its Affiliates. If the Customer does not have such authority, or if the Customer does not agree with these terms and conditions, the Customer must not accept this Agreement and may not use the Services (as defined below).
“Affiliates” means any entities which directly or indirectly control, are controlled by, or are under common control with the subject entity. “Control” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity;
“Applicable Laws” means all state, national and international laws, rules, regulations and standards including those imposed by any governmental or regulatory authority and all applicable industry standards and standards determined by any self-regulatory body in any jurisdiction which may apply from time to time to either party pursuant to this Agreement, including without limitation laws and regulations in any applicable jurisdiction relating to personal data, privacy and data protection, liability, confidentiality, intellectual property and warranties;
“Customer Data” means all data or information of any kind whatsoever of the Customer or of any User(s) (as defined below), employees, directors, officers, advisors and agents of the Customer as provided by the Customer, which data or information is uploaded, stored, downloaded, filed, backed up, entered or otherwise entered or made accessible to the Company or to the Customer or to User(s) or to employees, directors, officers, advisors or agents of the Customer or to all or any one or more of such parties;
“Losses” means all losses (direct and consequential), obligations, demands, proceedings, actions, claims, liabilities, costs, expenses (including legal expenses) and damages of any nature whatsoever and whether or not reasonably foreseeable or avoidable;
“Malicious Code” means viruses, worms, time bombs, Trojan horses and any other harmful or malicious codes, files, scripts, agents or programs;
“Non PayrollPlus Applications” means online applications and offline software products that are provided by entities or individuals other than the Company and that interoperate with the Services;
“PayrollPlus Application” means the web-based human resources software solution supplied by the Company.
“Services” means the products and services provided under this Agreement;
“Subscription Term” means the period for which the Customer has subscribed to Services hereunder.
“UAT” means user acceptance testing – the procedure of which the Parties shall mutually agree prior to commissioning of the solution hereunder.
“User(s)” means individuals identified as active employees by the Customer and who are authorized by the Customer to use the Services, and who have been supplied user identifications and passwords by the Company at the Customer’s request; and
“Works” means all intellectual property in any part of the world whose origination or discovery the Customer is responsible for (either alone or jointly), in the course of acting as a customer of the Company and in connection with this Agreement which includes without limitation, patents (including supplementary protection certificates), any materials, works, prototypes, inventions, discoveries, techniques, computer programs, source codes, data, technical information, trading business brand names, goodwill, style or presentation of goods or services, creations, inventions (or improvement upon or addition to an invention), know-how and research effort which is capable of protection by or of giving rise to letters patent, registered and unregistered trade and service marks, utility model, copyright and neighboring rights, design right, semi-conductor topography right, database right or other intellectual property or similar proprietary right in any part of the world whether or not capable of registration including applications and rights to apply for any of them and in each case rights of a similar or corresponding character and all applications and rights to apply for protection of any of the foregoing
2.1 Provision of Services. The Company shall make the Services available to the Customer pursuant to this Agreement and the relevant Statement of Work(s) pursuant to the Proposed Cloud Based PayrollPlus (SaaS HRIS) Solution during the Subscription Term. The Customer agrees that the Customer’s purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by the Company regarding future functionality or features. Any further functionality or features shall be provided by the Company subject to a separate agreement between the parties.
2.2 User Subscriptions. Unless otherwise specified in this Agreement, (i) Services are purchased as subscriptions for Users during the Subscription Term specified herein, and (ii) irrespective of the addition of further Users during the Subscription Term, all Services subscribed for under this Agreement shall terminate on the expiry of the Subscription Term.
2.3 The Company may with prior written approval of the Customer, at any time, for any reason, make any changes whatsoever to the Services, including without limitation, disabling of the Services (for the purpose of providing maintenance services or for the purposes of upgrading the Services or otherwise) or make any modifications (including, without limitation, to carrying out up-grades or bug fixes to the extent the Company has undertaken to do hereunder) to the Service.
2.4 The Company shall use commercially reasonable efforts to make the Services available with a monthly uptime percentage of at least 99.5% during any monthly billing cycle. Monthly uptime percentage measurements exclude planned downtime for the purpose of providing maintenance services for the purposes of patch updates, upgrading the services or otherwise.
03 USE OF THE SERVICES
3.1 The Company’s Responsibilities. The Company shall: (i) provide basic support (as specified in Annexure 1 – PayrollPlus service level agreement) for the Services to the Customer, (ii) use commercially reasonable efforts to make the Services available during the agreed working hours subject to any unavailability caused by circumstances beyond the Company’s reasonable control, including without limitation to, acts of God and/or force majeure , acts of government, community quarantines, floods, fires, earthquakes, civil unrest, acts of terror, traffic congestion or other logistics related issues preventing the Company’s personnel from reaching the Customer on time, strikes or other labour problems (other than those involving the Company’s employees), cloud service/infrastructure provider failures or uptime based on Microsoft Azure Cloud, internet service provider failures or delays, or denial of service attacks.
3.2 Protection by the Company of the Customer Data. The Company shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Customer Data. The Company shall not (a) modify the Customer Data, (b) disclose the Customer Data except as compelled by law in accordance with Clause 7.4 (Compelled Disclosure) or as expressly permitted in writing by the Customer, or (c) access the Customer Data except to provide the Services and prevent or address service or technical problems as required hereunder, or at the Customer’s request in connection with Customer support matters.
3.3 The Customer’s Responsibilities. The Customer shall (i) be responsible for User(s)’ compliance with this Agreement, (ii) be responsible for the accuracy, quality, and legality of the Customer Data and of the means by which the Customer acquired the Customer Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify the Company promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the applicable laws and government regulations. The Customer shall not (a) make the Services available to anyone other than User(s), (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks. In the event due to any breach by the Customer of the foregoing provisions the Company incurs any liability or any third party makes any claim against the Company, the Customer shall indemnify the Company against such claim, liability or loss, including any attorney’s fees borne by the Company, and defend the Company at the cost of the Customer.
The Customer shall allow personnel of the Company necessary access to the Customer’s premises to carry out their tasks hereunder. The Customer shall assign competent, computer literate personnel to coordinate and work with the Company during the implementation hereof.
3.4 Usage Limitations. Services may be subject to other limitations, including but not limited to, limits on disk storage space (the Customer shall make reasonable efforts not to misuse the amount of disk storage provided by the Company and may upload ONLY personal information of an employee (such as resume, certificates and letters/other documents) where attachments should be in .doc,.docx,.xls,.xlsx,.pdf,.txt,.jpg,.gif,.bmp,.jpeg extensions and each file be less than 3 MB in capacity), The Services provide real-time information to enable the Company to monitor the Customer’s compliance with such limitations. The Customer shall request support from the Company only by making a log via the system along with details of the issue to be resolved. The Company shall NOT be obliged to respond to/attend to any support requests made in any other manner.
04 THIRD PARTY PROVIDERS
4.1 Acquisition of Third Party Products and Services. The Company or third parties may subject to the written conformity of the Company from time to time make available to the Customer third-party products or services, including but not limited to Non PayrollPlus Applications and implementation, customization and other consulting services. Any acquisition by the Customer of such third party products or services, and any exchange of data between the Customer and any third party provider, is solely between the Customer and the applicable third party provider. The Company does not warrant or support third party products or services whatsoever. An upgrade is recommended by the Company or is otherwise required by the Customer – which upgrade necessitates an upgrade to the said Minimum Software and/or Version Requirement, as determined by the Company, the Customer shall, at its own cost, retain the Company to effect such an upgrade.
4.2 Non-PayrollPlus Applications and the Customer Data. If the Customer installs or enables Non-PayrollPlus Applications for use with Services subject to the written conformity of the Company, the Customer acknowledges that the Company may allow providers of those Non-PayrollPlus Applications to access the Customer Data as required for the interoperation of such Non-PayrollPlus Applications with the Services. The Customer shall hold the Company free and harmless from any liability whatsoever for any breach on its data or any effect on the PayrollPlus Application as a result of third-party providers of Non-ParyrollPlus Applications.
4.3 The Company shall not be responsible for the functionality of any third party products unless same are recommended by the Company, and the Company shall not be liable for any non-compatibility or other issues arising from the use of such products with Services.
4.4 The Company shall not be responsible for any disclosure, modification or deletion of the Customer Data resulting from any such access by third party providers. The Services shall allow the Customer to restrict such access by restricting User(s) from installing or enabling such Non-PayrollPlus Applications for use with the Services.
05 FEES AND PAYMENT FOR SERVICES
5.1 Fees. The Customer shall pay all fees specified herein. Except as otherwise specified herein (i) fees are based on services purchased or subscribed for and not actual usage, (ii) fees paid in keeping with payment terms hereunder are not refundable, (iii) the number of subscriptions purchased for User(s) and subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; (iv) further subscriptions for Services for additional User(s) may be added during a Subscription Term subject to a separate agreement between the Company and the Customer.
5.2 Invoicing and Payment. The Company shall provide the Customer with an invoice for the period of billing for all Services stipulated herein for the initial Subscription Term and any renewal Subscription Term(s) . Such charges shall be invoiced and settled in advance, either annually or in accordance with any different billing frequency stated herein. Invoiced charges are due net seven days (7) days from the invoice date. The Customer shall provide in writing complete and accurate billing and contact information to the Company immediately on execution of this Agreement, and notify the Company in writing of any changes to such information immediately on such change taking place. For the avoidance of doubt, incorrect addressing or delivery of an invoice by the Company due to accurate billing and contact information not being available to the Company at the time of issuance of the relevant invoice shall not absolve the Customer from its obligation to settle the invoice within the credit period stipulated herein.
5.3 Overdue Charges. If any charges are not received from the Customer by the due date, then at the Company’s discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month from the date such payment was due until the date paid, and/or (b) the Company may condition future subscription renewals and Statement of Work(s) on payment terms shorter than agreed.
5.4 Suspension of Service and Acceleration. If any amount owing by the Customer under this Agreement for the Company’s services is fifteen (15) or more days overdue the Company may, without prejudice to the Company’s other rights and remedies, the Company may demand immediate settlement of such unsettled sums and suspend the Company’s services to the Customer under this Agreement or otherwise, until such amounts are paid in full. The Company shall give the Customer at least 07 days prior notice (within the aforementioned fifteen days) that the Customer’s account is overdue, before suspending services to the Customer.
5.5 Payment Disputes. The Company shall not exercise the Company’s rights under Clause 5.3 (Overdue Charges) or 5.4 (Suspension of Service and Acceleration) if the Customer disputes within seven (7) days the applicable charges with reasonable evidence and in good faith and is cooperating diligently to resolve the dispute.
5.6 Taxes. Unless otherwise stated, the Company’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). The Customer is responsible for paying all Taxes associated with the Customer’s purchases hereunder. The Company has the legal obligation to pay or collect Taxes for which the Customer is responsible under this paragraph, therefore, the appropriate amount shall be invoiced to and paid by the Customer, unless the Customer provides the Company with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, the Company is solely responsible for taxes assessable against the Company based on the Company’s income, property, and employees.
06 PROPRIETARY RIGHTS
6.1 Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, the Company reserves all rights, title and interest in and to the Services; neither the Customer nor any User(s), employees, directors, officers, advisors and agents of the Customer shall acquire in any way any title or rights of ownership in any Intellectual Property Rights to the PayrollPlus Application or Services; all such interests and rights are and shall remain the exclusive and absolute property of the Company; and no such rights are granted to the Customer or to any User(s), employees, directors, officers, advisors and agents of the Customer hereunder other than as expressly set forth herein.
6.2 Restrictions. Except to comply with this Agreement, the Customer shall not allow, directly or indirectly, any user, its employees, directors, officers, advisors, and/or its agents to acquire or seek to acquire, through this Agreement or any activity under it or otherwise, during the pendency of this Agreement or at anytime thereafter, any rights or intellectual property rights relative to the PayrollPlus Application or from other services related thereto, the ownership of which shall solely remain under the Company, (ii) permit for any reason any third party to access the Services except as permitted herein or in a Statement of Work(s), (ii) create derivate works based on the Services except as authorized herein, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on the Customer’s own intranets or otherwise for the Customer’s own internal business purposes, (iv) reverse engineer the Services, (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services, (vi) make use of any of the Company’s Intellectual Property Rights without the Company’s prior written consent, (vii) omit to do, or do or say anything or use the Intellectual Property Rights in a manner which is or might reasonably be expected to be prejudicial, harmful, defamatory or embarrassing to the Company’s name, image, reputation, goodwill or business, and the Customer shall indemnify and shall keep the Company indemnified against any Losses arising out of any breach of these undertakings.
6.3 Confidentiality. The Customer acknowledges and understands that the PayrollPlus Application contains confidential and proprietary information and the Customer shall: (i) not provide or otherwise make the PayrollPlus Application available for any reason to any other person except as permitted by this Agreement or otherwise in accordance with express written authority signed by the Company’s authorized signatory; (ii)keep confidential the PayrollPlus Application and limit access to the PayrollPlus Application to the User(s); and (iii) ensure that all User(s) are advised that the PayrollPlus Application constitutes the Company’s Confidential Information and that all Intellectual Property Rights of the Company are the Company’s property and that they owe a duty of confidentiality to the Company.
6.4 Protection. The Customer shall, and shall ensure that all User(s), employees, directors, officers, advisors, and agents of the Customer shall take all necessary steps and abide by all instructions from the Company to ensure that the Intellectual Property Rights of the Company are protected. The Customer shall notify the Company if the Customer becomes aware of any use of the Intellectual Property of the Company which may infringe the Company’s rights and shall take all steps required by the Company in respect of such use.
6.5 Indemnity. The Customer shall, and shall ensure that all User(s), employees, directors, officers, advisors and agents of the Customer shall at all times whether during or after the termination of this Agreement indemnify and keep the Company indemnified from and against any and all Losses, incurred or suffered by them in relation to any infringement or unauthorized use by or on behalf of the Customer or by any User(s), employees, directors, officers, advisors and agents of the Customer of the Intellectual Property Rights of the Company and Works.
6.6 Works. (i) The Customer and any User(s) employees, directors, officers, advisors and agents of the Customer may make, conceive, develop and create Works while being allowed to access and use the PayrollPlus Application pursuant to this Agreement. The Customer shall disclose and shall procure that any User(s) employees, directors, officers, advisors and agents of the Customer disclose to the Company all such Works (together with any modifications, developments, enhancements or alterations thereto) immediately upon their creation or discovery. The Customer hereby assigns and shall procure that any User(s) employees, directors, officers, advisors and agents of the Customer assigns to the Company all present and future Works for the whole period during which such rights may subsist, including all extensions and renewals. (ii) The Customer shall and shall procure that any User(s) employees, directors, officers, advisors and agents of the Customer shall if and whenever required by the Company (whether during this Agreement or after its expiry or termination) and at the Customer’s expense: (a) apply or join with the Company (or its nominee) in applying for patent, registered design, trademark or other protection or registration in any part of the world for any Works; (b) execute all instruments and do all things necessary for vesting all the Works and all rights, title and interest in and to the same to the Company (or its nominee) absolutely and as sole beneficial owner; and (c) sign and execute all such documents and deeds and do all such things as the Company may reasonably require to protect, prosecute, maintain, defend and/or enforce any Works. (iii) the Customer hereby irrevocably and unconditionally waives all rights under any applicable laws relating to Intellectual Property Rights and any other rights of a similar nature in or relating to the Works, in whatever part of the world such rights may be enforceable. (iv) the Customer shall procure that all User(s) and any User(s), employees, directors, officers, advisors and agents of the Customer shall do all things for the Company’s benefit and is obliged to do pursuant to this Agreement, as if that person were a party to it.
6.7 The Customer’s Applications and Code. If the Customer, a third party acting on the Customer’s behalf, or any User(s) employees, directors, officers, advisors, and agents of the Customer, creates applications or program code using the Services, the Customer authorizes the Company to host, copy, transmit, display and adapt such applications and program code, solely as necessary for the Company to provide the Services in accordance with this Agreement.
6.8 Suggestions. The Company shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by the Customer, including User(s), relating to the operation of the Services.
07 DATA PROTECTION
7.1 For the purposes of Applicable Laws, the Customer consents and shall procure the consent of all User(s) whose data (ownership of the data remains with the Customer) is uploaded pursuant to the Services (including the PayrollPlus Application), for the Customer to access and process their personal data for the purposes of this Agreement and to process such personal data in Sri Lanka, Singapore, Hong Kong, Philippines or in any other location determined by the Company acting in the Company’s sole discretion.
7.2 The Company shall: (a) take all reasonable steps to prevent the personal data of either the Customer or of any User(s) that the Company processes, from being disclosed to or accessed by any unauthorized person; (b) comply with the Applicable Laws including Republic Act No. 10173 otherwise known as Data Privacy Act of 2012 when processing any of the Customer’s personal data and personal data of any User(s).
7.3 The Customer shall, and shall procure that all User(s) shall at all times whether during or after termination of this Agreement indemnify and keep the Company indemnified from and against any and all Losses, incurred or suffered by the Company in relation to any breach or unauthorized use by or on behalf of the Customer or User(s) of the Company’s Confidential Information.
08 WARRANTIES AND DISCLAIMERS
8.1 The Company’s Warranties. The Company warrants that (i) the Company has validly entered into this Agreement and has the legal power to do so, (ii) the functionality of the Services shall not be materially decreased during a Subscription Term, and (iii) the Company shall not intentionally transmit any Malicious Code to the Customer (iv) the Company shall maintain with this solution scheduled daily data backups of all Customer Data , through a disaster recovery set-up. (v) if the Customer or a User uploads a file containing Malicious Code into the Services and later downloads that file containing Malicious Code. For any breach of a warranty above, the Customer’s exclusive remedy shall be as provided in Clause 11.3 (Termination for Cause) and Clause 11.4 (Refund or Payment upon Termination) below. The Company warrants that the PayrollPlus Application is of industry standard and quality and in conformity with the functions described in the Statement of Work(s). The Company shall assure that the Company has taken reasonable administrative, physical, and technical precautions to safeguard the Customer Data uploaded to the system and reasonable efforts to ensure that there are no data loss.
8.2 The Customer’s Warranties. The Customer warrants that the Customer has validly entered into this Agreement and has the legal power to do so.
8.3 Exclusion of Warranties. the Company does not accept responsibility for updating Customer Data and material contained in the PayrollPlus Application and therefore it should not be assumed that the information contained shall necessarily be accurate, complete or up-to-date at any point in time.
9.1 Indemnification by the Company. The Company shall under no circumstance use the services of any third party violating the applicable law or infringing intellectual property rights and shall defend the Customer against any claim, demand, suit, or proceeding made or brought against the Customer by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a “Claim Against the Customer”), and shall indemnify the Customer for any Losses finally awarded against the Customer including any Losses arising as a result of, and for amounts paid by the Customer under a court-approved settlement of, a Claim Against the Customer; provided that the Customer (a) promptly gives the Company written notice of the Claim Against the Customer; (b) gives the Company sole control of the defense and settlement of the Claim Against the Customer (provided that the Company may not settle any Claim Against the Customer unless the settlement unconditionally releases the Customer of all liability); and (c) provide to the Company all reasonable assistance, at the Company’s expense.
9.2 Indemnification by the Customer. The Customer shall defend the Company against any claim, demand, suit or proceeding made or brought against the Company by a third party alleging that the Customer Data, or the Customer’s use of the Services (excluding the services provided by the Company) is in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates Applicable Law (a “Claim Against the Company”), and shall indemnify the Company for any Losses incurred by the Company including any Losses arising as a result of, or for any amounts paid by the Company under a court-approved settlement of, a Claim Against the Company; provided that the Company (a) promptly gives the Customer written notice of the Claim Against the Company; (b) gives the Customer sole control of the defense and settlement of the Claim Against the Company (provided that the Customer may not settle any Claim Against the Company unless the settlement unconditionally releases the Company of all liability); and (c) provides to the Customer all reasonable assistance, at the Customer’s expense
9.3 Exclusive Remedy. This Clause 9 (Indemnification) states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of claim described in this Clause.
10 LIMITATION OF LIABILITY
10.1 Exclusion of liability by Company. Subject to Clause 9.1 above, the Company shall be under no liability whatsoever to the Customer or to any User and hereby excludes all liability to the Customer, User(s) and the employees, directors, officers, advisors and agents of the Customer and any third party for any Losses arising to the Customer, User(s)and the employees, directors, officers, advisors and agents of the Customer or any third party in connection with this Agreement and the PayrollPlus Application. Nothing in this Agreement shall exclude or limit the Company’s liability in respect of any obligation of which any exclusion is prohibited by a mandatory provision of any Applicable Laws or violation of any third party intellectual property rights causing liability to the Customer.
10.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL THE COMPANY HAVE ANY LIABILITY TO THE CUSTOMER, USER(S) OR TO ANY EMPLOYEES, DIRECTORS, OFFICERS, ADVISORS OR AGENTS OF THE CUSTOMER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY ARISING FROM THE USE OF PAYROLLPLUS APPLICATION , AND WHETHER OR NOT THE CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
11 TERM AND TERMINATION
11.1 Term of User Subscriptions. User Subscriptions purchased by the Customer commences on the date of signing of the acceptance certificate after successful UAT, and continue for the Subscription Term specified therein. Except as otherwise specified in the applicable Statement of Work(s), all subscriptions for User(s) shall automatically renew for additional periods equal to the expiring Subscription Term. Initially the Customer shall agree with the Company for User Subscription for a period of two (2) years. If the Customer wishes to terminate prior to expiry of this period of two (2) years, the Customer shall pay to the Company the Subscription agreed upon for the balance period unless such termination is done by the Customer under Clause 11.2.
The Company may increase fees at the beginning of each renewal term. This increase will not exceed to 5% of the total subscription amount. Not raising fees is not a waiver of Company’s right to do so.
11.2 Termination for Breach. Either party may terminate this Agreement with immediate effect if the other Party commits a breach of any of the terms of this Agreement and is not cured within ninety (90) days of notice of the said breach by the non-defaulting Party to the defaulting Party, unless such time period allowed for curing of the breach is further extended by mutual agreement.
11.3 Termination at Will. The Company may terminate this Agreement with ninety (90) days prior written notice to the Customer.
11.4 Refund or Payment upon Termination. Upon any termination by the Company, the Customer shall pay any unpaid fees up to the effective date of termination. In no event, shall any termination relieve the Customer of the obligation to pay any fees payable to the Company for the period prior to the effective date of termination.
11.5 Return of the Customer Data. Upon request by the Customer made within 30 days after the effective date of termination of a subscription for Services, the Company will make available to the Customer for download a file of the Customer Data (this includes all master and transaction data for the entire period of subscription in MS SQL format). After such 30 day period, the Company shall have no obligation to maintain or provide any of the Customer Data and shall, unless legally prohibited, delete all of the Customer Data in the Company’s systems or otherwise in the Company’s possession or under the Company’s control. If the Customer wishes to obtain data back-ups from the Company (limited to four backups per calendar year), the Customer shall inform of same to the Company not less than five (05) working days in advance. This data backup shall be provided as a MS SQL database backup.
11.6 Surviving Provisions. Clauses 5 (Fees and Payment for Services), 6 (Proprietary Rights), 7 (Data Protection), 8.3 (Exclusion of Warranties), 9 (Indemnification), 10 (Limitation of Liability), 11.4 (Refund or Payment upon Termination), 11.5 (Return of the Customer Data), 12 (Notices, Governing Law and Jurisdiction) and 13 (General Provisions) shall survive any termination or expiration of this Agreement.
11.7 Consequences of Termination. Termination of this Agreement shall not prejudice any rights and liabilities of the Parties already accrued at the date of termination. Exercise of any right of either Party hereunder shall not prejudice its right to terminate this Agreement or to exercise any other right thereunder.
12 NOTICES, GOVERNING LAW AND JURISDICTION
12.1 General. All notices may be sent to a party either at its address (via hand delivery, courier or registered post), or facsimile number and for the attention of the individual set out below:
To the Company:
Attention: General Manager
Address: Mustard Seed Corporate Centre, No. 47 Kamias Road, Barangay Pinyahan Quezon City Philippines
Telephone: 632 8 535 7333
12.2 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the first business day after courier, (iii) the same business day after sending by confirmed email, or (iv) the second business day after sending by registered post. Billing-related notices to the Customer shall be addressed to the relevant billing contact designated by the Customer. All other notices to the Customer shall be addressed to the relevant Services system administrator designated by the Customer.
13 GENERAL PROVISIONS
13.1 Anti-Corruption. The Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of the Company’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If the Customer learns of any violation of the above restriction, the Customer shall use reasonable efforts to promptly notify: firstname.lastname@example.org.
13.2 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.
13.3 No Third-Party Beneficiaries. No third party shall have any right, claim or benefit of any nature whatsoever pursuant to this Agreement under any Applicable Laws.
13.4 Waiver. No failure or delay by either party in exercising any right under this Agreement and no grant of any extension of time by either party (whether with or without consideration thereof) shall constitute a waiver of that right or any other right under this Agreement. No waiver of any term or condition hereof by either party shall be deemed to be a subsequent waiver of such term/condition or a waiver of any other term or condition.
13.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
13.6 Attorney Fees. The Customer shall pay on demand all of the Company’s reasonable attorney fees and other costs incurred by the Company to collect any fees or charges due to the Company under this Agreement following the Customer’s breach of Section 5.2 (Invoicing and Payment), unless any delay in payment by the Customer is directly and solely attributable to a fault of the Company.
This Agreement shall be construed and governed in accordance with the laws of the Philippines and the parties agree that any dispute between the parties arising under, out of, in connection with, or in relation to this Agreement or any breach thereof (which the parties cannot amicably settle between themselves within thirty (30) days of either party serving a written notice on the other party of the existence of such a dispute) which shall be brought under the exclusive jurisdiction of the courts of Quezon City.
13.7 Assignment. The Customer may assign or sub-license any of the Customer’s rights or obligations hereunder, whether by operation of law or otherwise with the Company’s prior written consent. The Company may assign this Agreement in its entirety (including all Statement of Work(s)), without the Customer’s consent, to any third party.
13.8 Counterparts. This Agreement may be executed in each original counterpart shall constitute an original of this Agreement but together the counterparts shall constitute one document.
13.9 Force Majeure. Neither Party hereto shall be deemed to be in default of any provisions hereof for any delay, failure in performance or interruption of services resulting directly or indirectly from an act of God or military authority, acts of public enemy, civil disturbance, acts of war – whether declared or not, accident, fire, explosion, earthquake, flood or any other natural disaster or any other event beyond the reasonable control of any Party (hereinafter referred to as “Force Majeure Events”), provided the Party facing such Force Majeure Event shall within 24 hours issue a notice in writing to the other Party (a “Force Majeure Notice”) detailing the occurrence of such Force Majeure Event and its anticipated effect upon the performance of the Agreement. As appropriate the Force Majeure Notice shall also state any extension of time that is required by such Party and the details of any alternative method sought by such Party to fulfill its contractual obligations under the Agreement and additional cost, if any, involved in such alternate method.
13.10 Warranty of Authority. The Parties hereby warrant that they have full capacity in law and otherwise to enter into this Agreement and to carry out obligations/services hereunder, and that there is nothing legally or otherwise prohibiting them from doing so. Both Parties hereto represent and warrant to each other that the signatories of all Parties are entitled to sign on behalf of the respective Parties and the rights and obligations of all Parties shall be legally valid and binding and enforceable on all Parties.
13.11 Entire Agreement. This Agreement, including all Annexures and any addenda thereto and the Statement of Work(s), constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, Statement of Work(s) or representations, written or oral, concerning its subject matter. No modification or amendment, of this Agreement shall be effective unless in writing and signed by the Parties hereto. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Annexure thereto or any Statement of Work(s), the terms of this Agreement shall prevail (subject however, to Clause 5.2). Notwithstanding any language to the contrary therein, no terms or conditions stated in any of the Customer’s order documentation (i.e. purchase order or order form or letter of award) (excluding Statement of Work(s)) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.