ESPY (the “Company“) provides you (the “Client“) with, and the Client accepts, a limited right to access and use the Company’s SaaS system named “ESPY” (the “System“), at the Company’s website https://espysys.com/ (the “Site“), pursuant and subject to these Terms of Use (these “Terms“), the additional terms and conditions set forth in the subscription form, under which the Client subscribes to the System the “Subscription Form“) and the Privacy Policy (these Terms, the Subscription Form and the Privacy Policy, together, the “Agreement“). By subscribing for, accessing, and/or using, the System and/or the Site, the Client agreed to the terms and conditions of these Terms and the Agreement.
- Definitions. In these Terms, each of the following capitalized terms shall have the meaning set forth next to it.
1.1 “Content” means any information, data, text, software, sound, photograph, graphic, video, message and/or other material and/or content.
1.2 The “Documentation” means the System technical and/or operational documentation provided to the Client by the Company, as updated by the Company from time to time; the Documentation shall be deemed part of the System.
1.3 The “Client Content” mean Content uploaded, posted, provided, generated, transmitted and/or stored by the Client and/or anyone on its behalf, through and/or in connection with the Client’s use of the System and/or the Site.
1.4 The “Term” means the term set forth in the Subscription Form, for which the Client actually pays to the Company pursuant to the Agreement, unless such term is terminated earlier pursuant to Section 10 below.
1.5 The “Privacy Policy” means the Company privacy and cookies policies, as updated by the Company from time to time.
1.6 The “Subscription Form” means the subscription form, under which the Client subscribed to the System.
1.7 The “Open Source Terms” means all terms and/or conditions of use as well as all other agreements in connection with open source software, shareware and/or the like, including, without limitation, the terms set. - License
2.1 Schedule. The time schedule for the delivery of access to the System to the Client shall be as set forth in the Subscription Form.
2.2 Right to Use. Subject to all the terms, conditions, limitations and restrictions set forth in the Agreement, the Company grants the Client a non-exclusive revocable non-transferable not sub-licensable royalty bearing limited right solely to access and use the System, during the Term only. The Client shall use the System and the Site in accordance with the Documentation and the Company’s instructions, as may be updated by the Company from time to time, and in a reasonable and proper manner. Other than the right to use the System as explicitly permitted thereto in the Agreement, the Client shall have no rights in connection with the System and/or the Site.
2.3 Title. The Client acknowledges that the Company is and shall remain the sole owner of all rights, title and interests, including, without limitation, any patents, copyrights, trademarks, trade names, service names, trade secrets, goodwill and other intellectual property and/or like rights, in, to and/or in connection with the System and/or the Site as well as any changes, developments, improvements, versions, variations and/or derivatives of any of the foregoing.
2.4 Various Restrictions. The Client shall not, directly or indirectly, (i) provide or allow access to, give, display, disclose, reproduce, duplicate, copy, sell, resell, license, sublicense, assign, transfer, lend, lease, share and/or dispose of the System and/or the Site in any manner whatsoever; (ii) change, develop, modify, reverse engineer, disassemble, decompile, deconstruct, reduce to human readable form, translate and/or make any derivatives of the System and/or the Site in any way and/or by any means; (iii) combine, incorporate and/or integrate the System and/or the Site with any other system, software, technology, site or item; (iv) hack and/or otherwise engage in a manner that may be detrimental to the System and/or the Site; (v) breach the security of the System and/or the Site and/or engage in identifying security vulnerabilities of any of the foregoing; (vi) interfere with, circumvent, manipulate, impair and/or disrupt the System and/or the Site and/or the operation and/or functionality of the System and/or the Site; (vii) work around and/or circumvent any technical limitations in the System and/or the Site; (viii) use any tool or otherwise act to enable features and/or functionalities that are otherwise disabled and/or inaccessible; (ix) use the System and/or the Site for any abusive, fraudulent and/or illegal activity; and/or (x) remove any notices, marks and/or logos the System and/or the Site and/or use any name, mark and/or logo that is identical or resembles the names, marks and/or logos used by the Company. If you are an individual, You hereby confirm that You are above the age of 18.
2.5 Compliance. The Client shall comply with all applicable law, including, without limitation, any export and/or import control law, in connection with the access to and/or use of the System, the Site and/or any Content. Without limitation of the foregoing, the Client shall comply with all applicable law related to the import and/or export of the System and/or any Client Content and/or any other Content.
2.6 Viruses. The Client undertakes that all equipment, hardware, devises, software, applications, websites and other items thereof and/or used thereby shall not (i) contain any viruses, Trojan horses, worms and/or any other harmful component; (ii) disable, override and/or otherwise interfere with the System and/or the Site alerts, warnings, display panels, consent panels, check box and/or the like; and/or (iii) facilitate or permit any disabling, hacking, circumventing and/or interference with any security and/or privacy mechanism of the System and/or the Site. The Client alone shall bear all responsibility and liability in connection with the all equipment, hardware, devises, software, applications, sites and other items thereof and/or used thereby.
2.7 Feedback License. The Client grants the Company a perpetual, irrevocable, worldwide, fully transferable, sub-licensable, fully paid-up, royalty free, license to use and/or exploit in any manner any and all feedbacks, suggestions and ideas of and/or provided by the Client in connection with the System and/or the Site.
2.8 Communication Providers. The Client’s access to the System and/or the Site shall be subject to their engagement of telecommunications providers, the terms and conditions of its agreements therewith and the rates and fees of such providers, all of which are the sole responsibility of the Client.
2.9 Open Source. The System and/or the Site may contain open source software, shareware and/or the like. The use of such software is subject, in addition to the Agreement, to the Open Source Terms. In the event of any inconsistency with respect to such open source software, shareware and/or the like between the Agreement and such Open Source Terms, the latter shall prevail. Notwithstanding any other provision, the Company provides no representations, warranties, undertakings and/or indemnities in connection with any open source software, shareware and/or the like and shall have no liability whatsoever in connection therewith.
2.10 System Changes. The Company shall be entitled, at any time, from time to time and at its sole discretion, make changes to, modify, develop, suspend, and/or discontinue, the System, the Site, any feature and/or functionality of any of the foregoing and/or the operation of any of the foregoing, in each case – whether in whole and/or in part. The Client shall have no claims and/or demands in connection with any of the foregoing. The Client acknowledges that the System and/or the Site may contain devices, codes, instructions and/or feature capable of accessing, modifying and/or disabling the System and/or the Site and/or any portion of any of the foregoing.
2.11 Third Party Items. The System and/or the Site may display, include, refer to, make available, or contain links to, third party Content, applications, websites, systems, products, services and/or items (“Third Party Items“). The Client acknowledges and agrees that the Company shall not be responsible for, and shall have no liability in connection with any Third Party Items, including, without limitation, their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency and/or quality and/or any other aspect of Third Party Items. Any access and use of Third Party Items is entirely at the Client’s own risk and subject to such third parties’ respective terms, conditions, policies and guidelines. - Content
3.1 Responsibility. The Client shall be fully responsible for all of the Client Content; the Company has no responsibility for the Client Content; the Company does not undertake to control the Client Content and does not have any obligation to monitor such Client Content for any purpose; the Client is solely responsible for any Client Content that may be lost and/or unrecoverable through its use of the System and/or the Site.
3.2 Content License. The Client grants the Company a perpetual, irrevocable, worldwide, fully transferable, sub-licensable, non-revocable, fully paid-up, royalty free license to host and use the Client Content and/or any information related to the Client’s access and/or use of the System and/or the Site in order to provide and/or improve the System and/or the Site for the Client, otherwise in connection with the Agreement, develop the System, develop other products, systems and/or services, analyze trends and/or conduct marketing and/or promotional activities. Notwithstanding any other provision, the Company may disclose any information, including, without limitation, any Client Content, necessary or appropriate, in the Company’s discretion, to satisfy its legal duties, protect the System and/or the Site, the Company’s clients, customers, distributors, resellers and/or end users and/or operate the System properly.
3.3 Content Restrictions. The Client shall not use the System to upload, reproduce, engage in, or transmit, any of the following: (i) illegal, fraudulent, deceptive, misleading, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate and/or objectionable information or communications of any kind; (ii) Content that would impersonate someone else and/or may falsely represent Client’s identity or qualifications and/or that constitutes a breach of any individual’s privacy; (iii) information which involves fraud, embezzlement, money laundering, insider trading, support for terrorism or any other activity prohibited by law; (iv) virus, Trojan horse, worm or other disruptive or harmful software or data; and/or (v) any Content which is not legally the Client’s without due permission from the applicable owner. In the event that the Company suspects any of the foregoing, the Company may erase the Client Content or any portion thereof and/or report the Client to law enforcement authorities. The Client is subject to limitations on storage, quantity, size and/or format of the Content permitted for upload to or through the System, as set forth in the Commercial Document.
3.4 Content Monitoring. The System and/or the Site do not necessarily perform any virus-checking or other scanning for harmful code. The Company may, but has no obligation to, monitor any Content and/or engage technological measures to detect and prevent use of the System and/or the Site not in compliance with the Agreement. The Company, in its sole discretion, may remove, or refuse to remove, any Content, in whole or in part, which the Company believes to be unacceptable, undesirable, inappropriate and/or in violation of the Agreement.
- Liability
4.1 Indirect Damages. The Company shall not be liable for incidental, indirect, special, consequential, punitive and/or exemplary damages, including, but not limited to, loss of profits, loss of revenues, loss of investment, loss of business, loss, damage, security, corruption and/or theft of and/or to data and/or information, loss of use and/or damage to reputation, whether in tort, contract and/or otherwise, whether or not the Company is made aware of the possibility of such damages.
4.2 Cap. In no event will the Company’s aggregate liability, whether in tort, contract and/or otherwise, under and/or in connection with an access package the Agreement, exceed 10% of the total amount of fees actually received thereby for such package pursuant to the Agreement (excluding any VAT and/or sales taxes).
4.3 Force Majeure. The Company shall have no liability for any failure not within its reasonable control, such as labor disputes, nature disasters, pandemics and accidents.
4.4 Certain Exclusions. The Company shall have no liability for DAMAGES RELATING TO TELECOMMUNICATIONS FAILURES, THE INTERNET, ELECTRONIC COMMUNICATIONS, VIRUSES, SPYWARE AND/OR HARDWARE. Further, it is hereby clarified that the Company shall have no liability in connection with: (a) use of the System and/or the Site not in full compliance with the Agreement; (b) any modification of the System and/or the Site not by the Company; and/or (c) incorporation, attachment and/or conjunction of the System and/or the Site with any other software, hardware, device, site, equipment, application and/or other item. - No Warranties
5.1 No Warranty. The System and/or the Site (and any portion of any of the foregoing) is provided “AS IS” without any warranties, including, without limitation, any warranty with respect to its performance, quality, accuracy, use, freedom of bugs, errors, interruptions, omissions, harmful components and/or viruses, immunity from damages, security from unauthorized access, fitness for a particular purpose, merchantability, the title and/or intellectual property therein and/or non-infringement.
5.2 Law Compliance. The Company DISCLAIMS ANY REPRESENTATIONS AND/OR WARRANTIES THAT ACCESS TO AND/OR USE OF THE SYSTEM AND/OR THE SITE WILL SATISFY OR ENSURE COMPLIANCE WITH ANY APPLICABLE LAW and/or any third party terms, conditions, rules, guidelines etc. THE Client IS SOLELY RESPONSIBLE FOR ENSURING THAT ITS USE OF THE SYSTEM AND/OR THE SITE AND/OR ANY DATA GENERATED THROUGH ANY OF THE FOREGOING IS IN ACCORDANCE WITH APPLICABLE LAW.
5.3 Certain Warranties. The Company MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, STATUTORY AND/OR IMPLIED, AS TO: (i) THE OPERATION, FUNCTIONALITY OR AVAILABILITY OF TELECOMMUNICATION SERVICES AND/OR ACCESS TO THE SYSTEM AT ANY PARTICULAR TIME OR FROM ANY PARTICULAR LOCATION; (ii) ANY LOSS, DESTRUCTION, DAMAGE, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING OR OTHER SECURITY INTRUSION OF THE TELECOMMUNICATION SERVICES; AND/OR (iii) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES, DELETION, MISDELIVERY AND/OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR PERSONALIZATION SETTINGS IN CONNECTION WITH the Client’s USE OF THE SYSTEM.
5.4 Data Accuracy. The Company provides no warranty, and shall have no liability whatsoever, in connection with the data generated through the Systems and the Site, its completeness and/or accuracy. - Indemnification
6.1 Indemnification by Company. Subject to the terms and conditions of the Agreement, the Company shall indemnify Client from and against damages to Client resulting from infringement of third party intellectual property rights by the System (excluding, for the avoidance of doubt, any open source software, shareware and/or the like therein), which damages are awarded against the Client by a court of competent jurisdiction in a final and not appealable adjudication and/or a definitive written settlement agreement, provided that (i) the Client immediately notifies the Company of any demand and/or claim in connection with such damages; (ii) the Company may assume the defense of and settlement negotiations regarding any demand and/or claim as aforesaid; (iii) the Client shall fully cooperate with the Company, as requested by the Company, in connection with any such claim and/or demand; and (iv) the damages are not resulting from use in breach of any provision of the Agreement, use by the Client of a version of the System and/or the Site that is not the last one made commercially available by the Company and/or the use of the System and/or the Site by the Client after it becomes aware of the applicable claim and/or demand. The indemnification pursuant to this Section 6.1 shall be the Client’s sole remedy in connection with any violation, misappropriation and/or infringement of any third party rights.
6.2 Indemnification by Client. The Client shall defend, indemnify and hold harmless the Company from any and all damages, losses, liabilities and expenses, including, without limitation, attorneys’ fees, arising out of and/or in connection with the Client Content, the Client’s access and/or use of the System and/or the Site and/or any breach of the Agreement. - Fees
7.1 Fees. The fees for the System access and use and their payment terms shall be as set forth in the Subscription Form. The prices in EURO, the Company shall be entitled to changes the prices, at any time, from time to time and its sole discretion, without any notice to anyone. The Client shall not deduce, withhold, set-off and/or the like anything from any payment and/or entitlement of the Company. The Client shall have no lien and/or the like rights in connection with the Agreement.
7.2 VAT. Any payment by Client to the Company shall be supplemented by VAT and/or sales tax pursuant to applicable law, to be paid by Client to the Company with such payment. All fees are exclusive of, and the Client shall bear, any and all taxes, customs, duties and other compulsory payments.
7.3 Payment shall be done by Client through outer payment systems; the Company does not collect or store any data on the Client’s payment means, rather such data is processed by the payment system (currently – https://www.tranzila.com/english.html; all except as otherwise determined from time to time by the Company, at the Company’s sole discretion.
- Confidentiality
8.1 Non-Disclosure. The Client shall keep strictly confidential any and all information and/or items (whether oral, written, computer based and/or in any other form) thereto disclosed, directly or indirectly, by the Company (the “Confidential Information“). The Client will not, without prior written consent from the Disclosing Party, use (except that the Client may, subject to the terms and condition of the Agreement, use the data generated through its use of the Systems solely as explicitly permitted thereto in the Agreement) or disclose such information. Upon expiration or termination of the Agreement, the Client shall return to the Company all tangible Confidential Information.
8.2 Exclusions. The Client shall have no obligations as set forth in this Section 8 with respect to information, which (i) is or become public domain through no breach of this Section 8; (ii) is in possession of the Receiving Party prior to receipt from Disclosing Party; or (iii) is received by the Client from a third party without restrictions. - Term
9.1 Term. The term of the Agreement is the Term.
9.2 Termination. The Client may, by written notice to the Company, terminate the Agreement after the expiration of forty five (45) days from provision by the Client to the Company with written notice of such breach, during which the Company does cure the breach. The Company, at its sole discretion, shall be entitled to freely terminate the Agreement, at any time and from time to time, whether in whole and/or in part.
9.3 Expiration Affects. Upon expiration or termination of the Agreement, the Client shall cease any access and use of the System and the Site.
9.4 Surviving Provisions. Sections 2.3- 2.7, 2.9, 2.11, 3 and 10, as well as all of the Client’s obligations and liabilities in connection with the Agreement, shall survive the expiration or termination of this Agreement for any reason.
9.5 The Company intends, but shall not be obligated in any manner, to grant the Client with access (with limitations and/or restrictions to be determined by the Company, at its sole discretion, at any time and from time to time) to the System for an additional two months following the expiration of the Term; the Client shall have no claims and/or demands in connection with such period and/or the disabling of access as aforesaid and/or earlier and/or later.
- General
10.1 Assignment. The Client shall not assign, transfer, pledge, charge, encumber, delegate or otherwise dispose of its rights and/or obligations under the Agreement, in whole or in part, without the prior written consent of the Company. The Company shall be entitled to assign or transfer any and/or all of its rights and/or obligations under the Agreement to any successor thereof, including, without limitation, any acquirer of all or substantially all of the Company’s assets and/or any surviving entity under a merger in which the Company participates.
10.2 Notices. All notices under the Agreement shall be in writing. A notice shall be deemed delivered on the first business day after being sent (with electronic sending approval) by the notifying Party to the other Party via facsimile or email, and within ten (10) business days from being deposited in the mail, postage prepaid and addressed to the other Party, at the respective address/number of the notified Party set forth in the Subscription Form (in case of the Client) and the Site (in the case of the Company). Notice provided by the Company in and/or through the System and/or the Website shall be deemed delivered to the Client upon posting thereof.
10.3 Entire Agreement. The Agreement is the complete agreement between the Parties with respect to the subject matters of the Agreement and supersedes all prior agreements between the Parties relating to such subjects. The Company only shall be entitled to update, amend and/or change the Agreement, at its sole discretion. The Client shall periodically review the Agreement.
10.4 Law & Venue. The Agreement, including, but not limited to, the validity and construction thereof, shall be governed by the laws of the Singapore (without its conflicts of laws rules). The courts of Singapore shall have sole and exclusive jurisdiction over any and all disputes which shall arise under and/or in connection with the Agreement.
10.5 Severability. To the extent any authorized court rules that any provision of the Agreement is invalid, such provision will be deemed removed from the Agreement without affecting the remainder of the Agreement, provided that the Agreement shall be interpreted, to the maximum extent permitted under applicable law, to give effect to purposes and intentions of the removed provision
10.6 Agreement Confidently. The Client shall not publish and/or disclose the Agreement and/or any of its contents. The Company may use the Client’s name and identification as a client of the System and/or the Site in any manner for promotional purposes.
10.7 Waiver. The waiver of a breach of the Agreement shall not constitute a waiver of the breach of any other provision or of any subsequent breach.
10.8 Third Parties. No third party shall have any rights under the Agreement. IT IS HEREBY CLARIFIED THAT THE AGREEMENT DOES NOT GRANT TO THE CLIENT ANY RIGHTS TOWARDS ANY THIRD PARTY.
10.9 Equitable Relief. The Client acknowledges that any breach of the Agreement thereby will cause material damages to the Company and that in the event of any breach or predicted breach as aforesaid, the Company shall be entitled to equitable relief, such as an injunction, in addition to any other remedies the Company may be entitled to under the Agreement and/or applicable law.