THIS AGREEMENT (the "Agreement") is effective as of the date set forth in the Invoice (the “Effective Date”) by and between Prism4u (P4U), a Singapore company whose business address is VBox 881337, Sinapore 919191 and the party set forth in the related invoice incorporated herein by reference (together with any subsequent invoices presented, the "Invoice"), and applies to the purchase of all services (collectively, the "Services") ordered by Customer on the Invoice. ("Client"). PLEASE READ THIS AGREEMENT CAREFULLY. YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING P4U’s USAGE POLICY. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
WHEREAS, P4U is in the business of providing to various clients professional services and personnel to assist those clients with internet presence, computer programming, systems analysis, computer design, software analysis, project analysis, project management and facilities management. The Client desires to retain P4U to perform certain of such services, and P4U desires to accept such engagement, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the aforesaid and the terms and provisions of this Agreement, the parties hereto mutually consent, covenant, represent, warrant and agree as follows:
1. Services to be Provided.
1.1 During the term of this Agreement, P4U shall perform the services specified on the Invoice, and is hereby made part hereof (the "Services"). Client agrees to cooperate with P4U in every respect in order to enable P4U to perform the Services. Client will make available to P4U, at Client's expense, any and all materials and facilities reasonably necessary for P4U to perform such Services, including without limitation, the materials and facilities specified on Invoice. Services shall not include services for problems arising out of (a) modification, alteration or addition or attempted modification, alteration or addition of hardware undertaken by persons other than P4U or P4U’s authorized representatives, or (b) hardware supplied by Client.
2. Co-Location Facilities
2.1. The following terms and conditions will apply only if Invoice specifies that P4U is permitting Client to place any of Client’s computer hardware equipment (“Hardware”) at P4U’s facilities:
2.1.1 License to occupy. For purposes of agreement, "Space" means the P4U facilities where Client's Hardware and software are stored and operated. P4U grants to Client a non-exclusive license to occupy the Space. Client acknowledges that it has been granted only a license to occupy the Space and that it has not been granted any real property interests in the Space.
2.1.2 Services. P4U will provide Client with the services with respect to Client’s Hardware as specified in Invoice.
2.1.3 Services shall not include services for problems arising out of (i) modifications, alteration or addition or attempted modification, alterations or addition of Hardware undertaken by persons other than P4U or P4U’s authorized representatives, or (ii) Hardware supplied by Client.
2.1.4 Material and Changes. Client shall comply with all applicable rules and regulations, including equipment installation or de-installation, and alteration of the Space. Client shall not make any changes or material alterations to the interior or exterior portions of the Space, including any cabling or power supplies for its Hardware. Client agrees not to erect any signs or devices to the exterior portion of the Space.
2.1.5 Damage. Client agrees to reimburse P4U for all reasonable repair or restoration costs associated with damage or destruction caused by Client's personnel, Client's agents, Client's suppliers or contractors or Client's visitors during the term or as a consequence of Client's removal of its Hardware or property installed in the Space.
2.1.6 Insurance. Unless otherwise agreed, Client shall maintain, at Client's expense, (i) comprehensive general liability insurance per occurrence for bodily injury or property damage; (ii) employers liability per occurrence, (iii) workers compensation prescribed by statutory limits and (iv) property insurance on an all risk form covering equipment and personal property owned or leased by Client and used or stored on P4U's premises. Such comprehensive general liability insurance shall have an additional insured endorsement naming P4U, and shall be primary and non-contributing with any insurance policies carried by P4U. Client shall also maintain insurance covering the equipment or property owned or leased by Client against loss or physical damage. If so requested, Client will provide P4U written evidence of insurance coverage consistent with the requirements of this sub section.
2.1.7 Client Duties. Client shall document and promptly report all errors or malfunctions of the Hardware to P4U. P4U shall take all steps necessary to carry out procedures for the rectification of errors or malfunctions within a reasonable time. Client shall maintain a current back up copy of all programs and data. Client shall properly train its personnel in the use of the Hardware.
3.1 P4U agrees to provide such personnel as are necessary to fully perform the Services (the "Personnel"). Such Personnel may be employees of P4U or independent contractors engaged by P4U to perform the Services. The Personnel shall at all times be under the supervision and control of P4U; provided, however, that P4U may delegate from time to time such supervision and control to the Client with respect to certain daily activities of the Personnel in conjunction with performance of the Services. P4U agrees to cooperate with Client in assigning Personnel to perform the Services who are acceptable to the Client and in removing and replacing Personnel when warranted, such decisions, however, to be made by P4U in its sole and absolute discretion.
4.1 The initial term of this Agreement shall be as set forth in the Invoice (the "Initial Term"). The Initial Term shall begin upon commencement of the Services to Client. After the Initial Term, this Agreement shall automatically renew for successive terms of equal length as the Initial Term, unless terminated or cancelled by either party as provided in this section. The Initial Term and all successive renewal periods shall be referred to, collectively, as the "Term".
4.2 This Agreement may be terminated (i) by P4U in the event of nonpayment by Customer, (ii) by P4U, at any time, without notice, if, in P4U's judgment, Customer is in violation of any term or condition of the Usage Policy or Customer's use of the Service disrupts or, in P4U's judgment, could disrupt, P4U's business operations.
4.3 If P4U cancels this Agreement prior to the end of the Term or you cancel this agreement prior to the end of the Term, P4U shall not refund to you any fees paid in advance of such cancellation and (i) you shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation, (ii) you shall be obligated to pay 100% of all charges for all Services for each month remaining in the Term.
5. Fees and Expenses.
5.1 In consideration for the Services to be performed for Client by P4U, Client agrees promptly and fully to pay the setup fee and monthly fees specified on Invoice hereto.
5.2 Fees for Co-Location Facilities. Client shall pay the monthly fees set forth on Invoice “(Co-Location Fees”) if Co-Location Facilities are provided to Client.
5.3 Client shall pay a late charge of 5% for each month or partial month that payment is late, or, if lower, the maximum rate permitted by law. P4U may suspend its performance under this Agreement if any payment is not made when due.
5.4 Taxes and Duties. The prices stated are exclusive of income taxes, sales or use taxes, ad valorem taxes, duties, licenses, or levies imposed on the production, storage, sale, transportation or use of the Services, other than taxes on P4U’s net income. Client shall pay and hold P4U harmless from all such charges either as levied by taxing authorities, or in lieu thereof, Client shall provide an exemption certificate acceptable to the relevant taxing authorities.
6. P4U’s Warranties.
6.1 P4U agrees to perform the Services in a professional manner and as otherwise set forth in this Agreement. P4U warrants that custom software and/or web site design written for Client will perform substantially as specified in Invoice.
6.2 Internet Link. Client's access to the Internet shall be through a third-party Internet service provider, or through its own Internet connection. Except as otherwise provided in Invoice hereto, P4U is not responsible for the operation of such services or connections.
6.3 LIMITATION OF LIABILITY. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. P4U MAKES NO AND SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS GUARANTEES AND WARRANTIES TO ANY PERSON OR ENTITY REGARDING THE SERVICES.
7. Client’s Warranties.
7.1 Authorization. Client represents and warrants that no consent, approval or authorization of or designation, declaration or filing with any governmental authority is required in connection with the valid execution, delivery and performance of this Agreement.
7.2 Acceptable use. Client is solely responsible for the content of any postings, data or transmissions using the Services, or any it other use of the Services by Client or by any person or entity Client permits to access the Services. Client represents and warrants that it will: (a) not use any P4U equipment or Services in a manner that: (i) is prohibited by any law or regulation or P4U policy, or to facilitate the violation of any law or regulation or such policy; or (ii) will disrupt third parties use or enjoyment of any communications service or outlet; (b) not violate or tamper with the security of any P4U computer equipment or program; and (c) enter into an agreement with each of its end-users sufficient to comply with the terms herein.
8. Monitoring of content.
8.1 P4U, at its sole discretion, may elect to electronically monitor the P4U network and may disclose any content or records concerning Clients account as necessary to satisfy any law, regulation, or other governmental requests or to properly operate the P4U network and protect any of its customers. Client acknowledges and expressly agrees that the P4U will not be liable to Client or its customers for any action P4U takes to remove or restrict access to obscene, indecent or offensive content made available by Client, nor for any action taken to restrict access to material made available in violation of any law, regulation or rights of a third party, including but not limited to, rights under the copyright law and prohibitions on libel, slander and invasion of privacy.
8.2 If notified of any allegedly infringing, defamatory, damaging, obscene, illegal, or offensive use or activity, P4U may (but shall not be required to) investigate the allegation, or refer it to Client or a third party for
investigation, and P4U reserves the right to remove or request the removal of the applicable content from the Web page or any other text or item linked to the Internet. If Client refuses such request, P4U may, at its option, immediately remove the subject Web page or other text or item from the Internet, suspend the Services provided hereunder, or terminate this Agreement. P4U shall not be liable for any damages incurred by Client as a result of such action.
9.1 Client, at its own expense, shall defend, indemnify, and hold harmless P4U, its agents, affiliates, successors, and assigns with respect to any claim or action brought against P4U, its agents, affiliates, successors, and assigns arising out of or in connection with the operation, condition, or content of Client's Web page, website, or other Internet graphical or non-graphical interface; any use of Internet facilities conducted or permitted by Client; the conduct of any business, advertising, marketing, or sales in connection therewith; and any negligent or illegal act or omission of Client or any of its agents, contractors, servants, employees, or other users or accessees. P4U shall promptly notify Client of any such claim, shall provide reasonable assistance in connection with the defense and/or settlement thereof, and shall permit Client to control the defense and/or settlement thereof.
10. Confidential Information.
10.1 Confidential Information” shall mean all information that is not generally known to the public and in which a party has rights of any kind, including, but not limited to, proprietary technology, trade secrets, knowhow, inventions (whether or not patentable), ideas, improvements, works of authorship, derivative works, modifications, product development plans, forecasts, strategies, names and expertise of employees and consultants, techniques, processes, algorithms, schematics, software programs, designs, the method by which P4U has networked its computers and software used in its facilities together with all other business and technical information that a party discloses to the other party, and such other information as is deemed confidential by the disclosing party and identified as such at the time of disclosure, or which, under the circumstances surrounding the disclosure to the other party, ought reasonably to be treated as confidential.
10.2 P4U may disclose as part of its sales presentations to third parties the following: (a) the identity of Client and its employee responsible for computer operations; (b) size and nature of the network, what type of machines are connected with what type of network operating system; (c) rough traffic estimates and the impact of P4U work on performance and/or exposure of Client.
10.3 Information shall not be deemed “Confidential Information” for the purposes of this Agreement that (a) is already known to the non-disclosing party at the time of disclosure; (b) is or becomes publicly known through no wrongful act of the non-disclosing party, including by public announcement by the disclosing party; (c) is received from a third party without similar restrictions and without breach of this Agreement; (d) is independently developed by the non-disclosing party; or (e) is lawfully required to be disclosed by any governmental agency or otherwise required to be disclosed by law.
10.4 Each party shall hold in trust and confidence and shall not disclose any Confidential Information of the other party during the term of this Agreement, and for a period of three (3) years following termination of this Agreement other than its own employees who have a need to know and are bound in writing under an appropriate confidentiality agreement. In so doing, such party shall use the same degree of care, but no less than a reasonable degree of care, as such party uses to protect its own confidential information of a like nature.
11.1 Default. Each party has the right to terminate this Agreement for the following reasons or causes:
11.1.1 If a party breaches or is in default of any obligation hereunder, which default is incapable of cure or which, being capable of cure, has not been cured within thirty (30) days after service of written notice of such default from the non-defaulting party;
11.1.2 In the case of a breach of Section 7 (Client’s Warranties) termination shall be effective immediately upon notice;
11.1.3 For defaults in payment of money, if such other party materially breaches or is in material default of any obligation hereunder, which breach or default which has not been cured within fourteen (14) days after service of written notice of default of the non-breaching party;
11.1.4 In the event that Client fails to maintain a satisfactory credit rating or financial condition or if P4U reasonably concludes that, for any reason, Client is or will become unable to discharge its obligations hereunder, P4U may immediately suspend or terminate its Services immediately upon notice to Client. Alternatively, and without waiving its termination rights hereunder, if P4U deems that Client has failed to maintain a satisfactory credit rating or financial condition, P4U may require that that payment be secured by letter of credit or other form of security acceptable to P4U in its absolute discretion.
11.1.5 If a party becomes insolvent, is adjudicated bankrupt or if a receiver or trustee is appointed for a party for a substantial portion of its assets, or if a party institutes or becomes a party to any proceeding for the settlement of debts or an assignment for the benefit of creditors of such party, and the situation is not corrected within thirty (30) days after it received written notice from the non-defaulting party.
12.1 Compliance with Laws. Each party shall, at its own expense, comply with all laws, regulations and other legal requirements that apply to it and this agreement, including copyright, privacy and communications decency laws.
12.2 Independent Contractors. The parties are not employees or legal representatives of the other party for any purpose. Neither party shall have the authority to enter into any contracts in the name of or on behalf of the other party.
12.3 Employees. Each party acknowledges that the other party’s employees are critical to the servicing of its customers. Each party agrees not to employ or otherwise engage the other party’s employees for a period of one (1) year following any employee’s involvement in the performance of this Agreement. Should a party violate this provision, the hiring party will pay the other party the former employee’s annual salary.
12.4 Injunction. With respect to any breach of any agreement or covenant contained in this agreement, including without limitation, any agreement regarding P4U’s confidential information and trade secrets, Client agrees that P4U will be entitled to injunctive relief. Client agrees and recognizes that P4U will suffer immediate and irreparable harm and money damages will not be adequate to compensate P4U or protect and preserve the status quo. Therefore, Client consents to the issuance of a temporary restraining order or preliminary or permanent injunction to enforce compliance with all provisions regarding confidential information and trade secrets provided for herein and any such temporary relief shall remain in full force and effect during the time period of any litigation otherwise provided for herein, and this entitlement to injunctive relief shall be in addition to and shall not be superseded by the agreement of the parties otherwise to engage in arbitration.
12.5 Survival. The obligations of Section 6.3 (Limitation of Liability), Section 10 (Confidential Information), Section
12.4 (Injunction) and Section 12.9 (Consequential Damages) shall survive termination of this Agreement.
12.6 Force Majeure. Neither party hereto shall be liable for the failure to perform of any of its obligations under this Agreement, except an obligation to pay, if such failure is caused by the occurrence of any force majeure beyond the reasonable control of such party, including without limitation fire, flood, strikes and other industrial disturbances, failure of transport, accidents, wars, riots, insurrections or acts of God. If the period of nonperformance exceeds thirty (30) days from the Force Majeure Event, the party whose ability to perform has not been so affected may by giving written notice terminate this Agreement.
12.7 Assignment. Client shall not assign or subcontract all or any part of this Agreement, or any interest therein, without P4U's prior written consent, except that Client may assign to any corporate affiliate without P4U's consent provided that Client shall remain obligated to perform all of its obligations under this Agreement.
12.8 Notices. All notices and other communications hereunder must be in writing and shall be deemed to have been duly given when personally delivered or when placed in the Singapore mail, postage prepaid, addressed to the party to whom such notice is being given at the address set forth in this Agreement. A party may change the address to which such notices shall be given by notifying the other party in accordance with this section of such change of address.
12.9 LIMITATION OF LIABILITY; CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER OF THE PARTIES HERETO BE LIABLE TO THE OTHER FOR THE PAYMENT OF ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA, OR USE, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY, P4U SHALL NOT BE LIABLE UNDER THIS AGREEMENT FOR ANY AMOUNTS IN EXCESS OF THE AGGREGATE FEES PAID TO IT HEREUNDER. THE REMEDIES PROVIDED FOR HEREIN EMBODY THE ESSENTIAL PURPOSE OF THE PARTIES HERETO WITH RESPECT TO REMEDIAL ACTION IN THE EVENT OF BREACH OF THIS AGREEMENT.
12.10 Severability. Should any provision of this Agreement or part thereof be held under any circumstances in any jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of any other provision of this Agreement or other part of such provision.
12.11 Waiver. No term or provision hereof shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented.
12.12 Applicable Law. This Agreement shall be governed by the laws of The Republic of Singapore, without reference to conflict of laws principles. The sole jurisdiction and venue for any action with respect to this Agreement shall be in The Republic of Singapore. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly
12.13 Binding Effects; Benefits. This Agreement shall inure to the benefit of, and shall be binding upon, the parties hereto and their respective successors and assigns. Nothing herein is intended to confer on any person other than the parties hereto or their respective successors and assigns any rights, remedies, obligations or liabilities under, or by reason of, this Agreement.
12.14 Attorney's Fees. In the event of any controversy, claim or dispute between the parties hereto arising out of or relating to this Agreement, the prevailing party shall be entitled to recovery from the non-prevailing party its reasonable expenses including, but not by way of limitation, attorneys' fees.
12.15 Captions; Headings. The headings of articles, sections and other subdivisions hereof are inserted only for the purpose of convenient reference and it is recognized that they may not adequately or accurately describe the contents of the sections which they head. Such headings shall not be deemed to govern, limit, modify, or in any other manner affect the scope, meaning or intent of the provisions of this Agreement or any part or portion thereof, nor shall they otherwise be given any legal effect.
12.16 Entire Agreement. This Agreement, together with the Invoice or other attachments referenced herein, constitutes the entire agreement between the parties and supersedes all proposals, oral and written, between the parties on this subject. No changes or modifications to this agreement or waivers of any provisions of this agreement shall be effective unless made in writing and signed by the parties.
Customer hereby represents that he, she or it is either, an individual entering this Agreement for his or her personal use and is over 18 years of age, or a corporation, limited partnership or other legal entity, duly organized, validly existing and in good standing under the laws of the state of its organization and the person acting on behalf of Customer is duly authorized to accept, execute and deliver this Agreement on behalf of Customer.