Terms and Conditions

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SMART Platform

Last Updated: September 2020

 

These Terms and Conditions (“Terms” of “Agreement”) are between Delvify APAC Ltd., its subsidiaries, affiliates, licensors and agents (“Delvify”, “us”, “we”, or “our”) and the customer, individual or entity (“Client”, “you”, or “yours”) and apply to the provision of and the use of services and tools on our website and other online services and tools (collectively the “Services”) owned and operated by Delvify.  By using the Delvify website (“Website”) and/or Services, you confirm that you agree to become bound by these Terms and that you agree to comply with them. If you do not agree to all the Terms, you may not access the Site or use the Services.

IMPORTANT NOTICE OF SUBSCRIPTION

BY CHECKING THE ACCEPTANCE BOX OR ACCESSING OR USING ALL OR ANY PORTION OF THE DELVIFY SMART PLATFORM (“SMART PLATFORM’), YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU AND IS LEGALLY BINDING. IF YOU DO NOT AGREE TO ALL OF THE 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 OTHER ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY TO THE TERMS OF THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT AND AUTHORITY TO DO SO.

 

1. SMART PLATFORM

1.1. Provision. The SMART Platform is a Delvify Service permitting you to access other Services, and any modifications, enhancements, and/or updates made from time to time.  The SMART Platform is described more fully in the most current version of any supporting product help and technical specifications documentation provided by Delvify to you (“Documentation”).  The SMART Platform and all other Services are provided on a subscription basis for a set term designated herein or in the applicable agreement (each, a “Subscription Term”). This Agreement does not grant you rights to any other Delvify services or software unless specified in writing.  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 short-term, trial or evaluation access to the SMART Platform or other Services (“Evaluation Access”), you may use such access solely for the purpose of evaluating the Services 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 the Services, your Evaluation Access may be terminated and, in any event your right to access and use of the Services automatically expires at the end of the Evaluation Period.  Upon any termination or end of an Evaluation Period, you will no longer have access to any Data used in connection with such Evaluation Access.  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 with or without notification to you of such termination.

1.3. Access.  Subject to the terms and conditions of the Agreement, and except as set forth in Section 6 (Term and Termination) Delvify hereby grants to you a non-exclusive, non-transferable, non-sublicensable, worldwide right during the applicable Subscription Term to access and use the SMART Platform solely for your business purposes but only in accordance with: (i) the Documentation; (ii) the restrictions in Section 1.1 (Provision), Section 1.7 (General Restrictions), and Section 2 (Customer Data and Customer Obligations) and (iii) any other written restrictions, 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 the SMART Platform and the Documentation, 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.  Uniquely identified individuals subject to an Access Grant who are authorized by you to use and access the SMART Platform or other Services for any purpose regardless of active use will be called “Authorized Users”.  Authorized Users will receive user IDs and passwords to access the SMART Platform.  These credentials are granted to individual, named persons and may not be shared and you will ensure that all Authorized Users keep these credentials confidential.  Any Contractors or Affiliates accessing the SMART Platform as Authorized Users will remain your liability for all acts and omissions of this Agreement as if their breach were your own.  “Affiliate” means any entity that directly or indirectly controls or is controlled by you.  “Contractor” means any independent third party who performs services related to this Agreement for you to the extent they are acting on your behalf.

1.5. Third-Party Code and Sites.  The provision of Services may contain or be provided with components which are licensed from third parties or direct to third party website (“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.  Delvify will not be responsible for the availability of or the content located on or through any third-party website.

 

2. CUSTOMER DATA

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 use in or support of any of the Services. 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, 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.

2.2 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 is accessible through the 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 the Services in accordance with this Agreement and the Documentation.

2.3 Storage of Customer Data. Delvify does not provide an archiving service. Delvify agrees it shall not intentionally delete any Customer Data from the SMART Platform prior to termination or expiration of your applicable subscription.

 

3. INTELLECTUAL PROPERTY AND OWNERSHIP

3.1. Delvify Technology. 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 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 and all rights not expressly granted under these terms are reserved by Delvify.

3.2. General Restrictions. As a condition to the rights granted in the Agreement you shall not nor allow any third party to: (a) decompile, disassemble, or otherwise reverse engineer the SMART Platform, Services or any Third Party Code or attempt to reconstruct or discover any source code, APIs, underlying ideas, algorithms, file formats or programming interfaces of any of the Services 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 the SMART Platform, Services or any Third Party Code; (c) remove any product identification, proprietary, copyright trademark, service mark, or other notices contained in the provision of Services or any Third Party Code (including any reports or data printed via the use of SMART Platform); (d) modify any part of the SMART Platform, Services or any Third Party Code, create a derivative work of any part of the Services or any Third Party Code, or incorporate the SMART Platform, Services 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 the Services; (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 the Services, or use the SMART Platform together with any user credentials or other copy protection device not supplied by Delvify or through an Authorized Partner; (g) use the Services 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 the Services 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 the Services to its other customers.

 

4. FEES, PAYMENT AND TAXES

4.1. Fees.  Unless otherwise provided for in writing agreed to by both parties, 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 (2.0%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less.  OUR CONTRACT IS DIRECTLY THE CLIENT.  THE CLIENT AGREES TO PAY INVOICES IN FULL REGARDLESS OF ANY THIRD-PARTY PAYMENTS.  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 Services. Complaints concerning invoices must be made in writing within thirty (30) days from the date of the invoice after which all invoices will become valid, due and payable in full.  Invoices will be sent by electronic delivery unless requested otherwise by Customer, additional fees may apply.

4.2. Taxes. 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 customer 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).  If an expiration is not designated, the Subscription shall continue until terminated by six month’s prior notice in writing.

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 3.2 (General Restrictions) or if you violate any other restrictions contained in Section 2 (Customer Data); (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. Following termination or expiration you shall have no further access to any Customer Data input into the 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.

5.4. Survival. The following Sections shall survive any expiration or termination of this Agreement: Sections 3 (Ownership), 4.1 (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. WARRANTY

6.1. Limited Warranty. Delvify warrants to you that SMART Platform will operate in substantial conformity with the applicable Documentation.  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 outstanding subscription fees specified in the applicable Invoice which are allocable to the thirty (30) day period prior to the date the warranty claim was made until and (b) any fees you have pre-paid for use of SMART Platform or Services you has not received as of the date of the warranty claim.

THE SERVICES AND WEBSITE ARE PROVIDED BY DELVIFY ON AN “AS IS, AS AVAILABLE” BASIS, DELVIFY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE USE OR THE RESULTS OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, SERCURITY OR FITNESS FOR A PARTICULAR PURPOSE. DELVIFY MAKES NO GUARANTEES THAT YOUR USE OF THE SITE OR SERVICES WILL INCREASE YOUR SALES OR PRODUCTS OR SERVICES. WE MAY CHANGE, RESTRICT ACCESS TO, SUSPEND OR DISCONTINUE OUR SERVICES OR SITE OR ANY PART OF IT AT ANY TIME. DELVIFY SHALL HAVE NO LIABILITY FOR ANY INTERRUPTIONS IN THE USE OF THE SITE OR SERVICES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, DELVIFY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE INFORMATION PROVIDED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES; THEREFORE, THE ABOVE-REFERENCED EXCLUSIONS MAY BE INAPPLICABLE TO SOME USERS.

DELVIFY DOES NOT WARRANT THAT ITS SITE OR SERVICES WILL BE UNINTERUPTED OR OPERATE ERROR FREE OR THAT ITS SERVICE, SITE AND SERVER ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL GOODS AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTTIONS OR ERRORS. IF THE USER`S USE OF THE SITE OR SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, DELVIFY IS NOT RESPONSIBLE FOR THOSE COSTS. WHEN YOU USE OUR SERVICES OR SITE, YOU UNDERSTAND AND AGREE THAT SUCH USE IS AT YOUR OWN RISK.

DELVIFY SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, AND IN PARTICULAR DELVIFY SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOSS OF REVENUE, OR LOSS OF USE, ARISING OUT OF OR RELATED TO THE SITE, THE SERVICES OR THE INFORMATION CONTAINED IN THE SITE OR THE SERVICES, WHETHER SUCH DAMAGES ARISE IN CONTRACT, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW, OR OTHERWISE, EVEN IF DELVIFY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE SOME OF THE ABOVE LIMITATIONS MAY BE INAPPLICABLE.

7. MUTUAL LIMITATION ON REMEDIES AND DAMAGES

7.1. But for a breach of Section 3.2 (General Restrictions), 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.

7.2. But for a breach of Section 3.2 (General Restrictions), each party’s entire liability and obligation to the other party shall not exceed the lesser of (A) fees paid or owed by your to Delvify under this agreement during the 12 months preceding the claim or, (B) five-hundred thousand US Dollars (USD 500,000).

7.3. Failure of Essential Purpose. The parties agree that the limitations specified in this Section 7 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

 

8. MUTUAL INDEMNIFICATION

8.1. 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; (ii) the exclusive right to control and direct the investigation, defense, and any settlement 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 the SMART Platform substantially functionally similar Services; (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.

8.2. Indemnification by You. Subject to this Section 8, 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 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 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.

 

9. CONFIDENTIAL INFORMATION.

9.1. 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 Services, and 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.

9.2. Privacy Policy: Your use of SMART Platform is subject to Delvify Software’s Privacy Policy, a current version of which is available on its website.

 

10. GENERAL TERMS

10.1. Assignment. 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.

11.2. Severability. 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. These Terms shall be governed by and construed in accordance with the substantive laws of Singapore. Any dispute, controversy or difference which may arise between the parties out of, in relation to or in connection with this Agreement is hereby irrevocably submitted to the exclusive jurisdiction of the courts of Singapore, to the exclusion of any other courts without giving effect to its conflict of laws and provisions of your actual state or country of residence. Any dispute arising under this Agreement shall be finally settled on an individual basis in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in Singapore, in the English language and the arbitral decision may be enforced in any court.  In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and legal fees.

11.4. 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.

11.5. Notice. 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: info@delvify.io.   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.

11.6. Amendments; Waivers. 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.

11.7. 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.

11.8. 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.

11.9. 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.

11.10. Anti-Corruption. 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.

11.11. Language. 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.

11.12. 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.  If Delvify specifies that the modifications to this Agreement will take effect prior to your next renewal and you notify Delvify in writing at info@delvify.io 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.

Programmatic AI

Last Updated: September 2020

These Terms and Conditions (“Terms” of “Agreement”) are between Delvify APAC Ltd., its subsidiaries, affiliates, licensors and agents (“Delvify”, “us”, “we”, or “our”) and the customer, individual or entity (“Client”, “you”, or “yours”) and apply to the provision of and the use of services and tools on our website and other online services and tools (collectively the “Services”) owned and operated by Delvify.  By using the Delvify website (“Website”) and/or Services, you confirm that you agree to become bound by these Terms and that you agree to comply with them. If you do not agree to all the Terms, you may not access the Site or use the Services.

IMPORTANT NOTICE OF SUBSCRIPTION

BY CHECKING THE ACCEPTANCE BOX OR ACCESSING OR USING ALL OR ANY PORTION OF THE DELVIFY PROGRAMMATIC AI (“PROGRAMMATIC AI’), YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU AND IS LEGALLY BINDING. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS, DO NOT ACCESS OR USE THE PROGRAMMATIC AI.  IF YOU WISH TO USE THE PROGRAMMATIC AI AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR OTHER ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY TO THE TERMS OF THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT AND AUTHORITY TO DO SO.

1. PROGRAMMATIC AI

1.1. Provision. The Programmatic AI is a Delvify Service permitting you to access advertising and other Services, and any modifications, enhancements, and/or updates made from time to time.  The Programmatic AI is described more fully in the most current version of any supporting product help and technical specifications documentation provided by Delvify to you (“Documentation”).  The Programmatic AI and all other Services are provided on a subscription basis for a set term designated herein or in the applicable agreement (each, a “Subscription Term”). This Agreement does not grant you rights to any other Delvify services or software unless specified in writing.  All undefined names of software products have the meanings given to them in the Documentation.

1.2. Insertion Order. Delvify will perform the Services and provide the deliverables (“Deliverables”) described on any Insertion Order (“Insertion Order” or “IO”) that the parties may enter into from time to time.  The IO may be delivered electronically using a third-party email server.

1.3. Access.  Subject to the terms and conditions of the Agreement, and except as set forth in Section 6 (Term and Termination) Delvify hereby grants to you a non-exclusive, non-transferable, non-sublicensable, worldwide right during the applicable Subscription Term to access and use the Programmatic AI solely for your business purposes but only in accordance with: (i) the Documentation; (ii) the restrictions in Section 1.1 (Provision), Section 1.7 (General Restrictions), and Section 2 (Customer Data and Customer Obligations) and (iii) any other written restrictions, 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 the Programmatic AI and the Documentation, 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.  Uniquely identified individuals subject to an Access Grant who are authorized by you to use and access the Programmatic AI or other Services for any purpose regardless of active use will be called “Authorized Users”.  Authorized Users will receive user IDs and passwords to access the Programmatic AI.  These credentials are granted to individual, named persons and may not be shared and you will ensure that all Authorized Users keep these credentials confidential.  Any Contractors or Affiliates accessing the Programmatic AI as Authorized Users will remain your liability for all acts and omissions of this Agreement as if their breach were your own.  “Affiliate” means any entity that directly or indirectly controls or is controlled by you.  “Contractor” means any independent third party who performs services related to this Agreement for you to the extent they are acting on your behalf.

1.5. Third-Party Code and Sites.  The provision of Services may contain or be provided with components which are licensed from third parties or direct to third party website (“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.  Delvify will not be responsible for the availability of or the content located on or through any third-party website.

2. DATA

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 use in or support of any of the Services. 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 Programmatic AI and all Customer Data is at all times compliant with your privacy policies and all applicable local, 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.

2.2 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 is accessible through the Programmatic AI. 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 the Services in accordance with this Agreement and the Documentation.

2.3 Storage of Customer Data. Delvify does not provide an archiving service. Delvify agrees it shall not intentionally delete any Customer Data from the Programmatic AI prior to termination or expiration of your applicable subscription.

2.4 Data Rights and Retailer Privacy

In consideration for use of our Services, you agree that we may collect data related to any customer or user of your website (the “End User”) using our Services including an End User’s sharing of Publisher Content (referred to as the “ Publisher Data”). Our data collection, use and disclosure practices are described more fully in our Privacy Policy and include the use of log information and cookies that record anonymous (i.e., non-personal) information about End Users. In addition, we may aggregate your Non-Personally Identifiable Information with the Non-Personally Identifiable Information of others and share that aggregated information with third parties without restriction. When an End User downloads a page that contains our JavaScript code, we may deploy a cookie on our own behalf or on behalf of one of our data partners, to record information about how an End User uses the web, such as the web search that landed the End User on a particular page or categories/products that the End User is in-market for. We may use the Publisher Data to target advertising toward the End User or authorize others to do the same. If you allow us to place our cookies, you grant us a non-exclusive, irrevocable, worldwide and perpetual right and license to collect, use and disclose the Publisher Data as provided in our Privacy Policy and to allow our third-party data partners to do the same. We will retain custody and ownership of all data and information collected or obtained by us from users through our network of widgets and we provide any data to you as a service. You own all data that you collect directly from the users of our services. You may not share, disclose, license or otherwise provide analytics data to any third-party advertising networks without our prior written consent.

3. INTELLECTUAL PROPERTY AND OWNERSHIP

3.1. Delvify Technology. 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 Programmatic AI, 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 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 and all rights not expressly granted under these terms are reserved by Delvify.

3.2. General Restrictions. As a condition to the rights granted in the Agreement you shall not nor allow any third party to: (a) decompile, disassemble, or otherwise reverse engineer the Programmatic AI, Services or any Third Party Code or attempt to reconstruct or discover any source code, APIs, underlying ideas, algorithms, file formats or programming interfaces of any of the Services 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 the Programmatic AI, Services or any Third Party Code; (c) remove any product identification, proprietary, copyright trademark, service mark, or other notices contained in the provision of Services or any Third Party Code (including any reports or data printed via the use of Programmatic AI); (d) modify any part of the Programmatic AI, Services or any Third Party Code, create a derivative work of any part of the Services or any Third Party Code, or incorporate the Programmatic AI, Services 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 the Services; (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 the Services, or use the Programmatic AI together with any user credentials or other copy protection device not supplied by Delvify or through an Authorized Partner; (g) use the Services 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 Programmatic AI 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 the Services or any support you have purchased or used hereunder; (l) use Programmatic AI 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 the Services to its other customers.

4. FEES, PAYMENT AND TAXES

4.1. Fees.  Unless otherwise provided for in writing agreed to by both parties, 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 (2.0%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less.  OUR CONTRACT IS DIRECTLY THE CLIENT.  THE CLIENT AGREES TO PAY INVOICES IN FULL REGARDLESS OF ANY THIRD-PARTY PAYMENTS WITHOUT SET-OFF.  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 Services. Complaints concerning invoices must be made in writing within thirty (30) days from the date of the invoice after which all invoices will become valid, due and payable in full.  Invoices will be sent by electronic delivery unless requested otherwise by Customer, additional fees may apply.

4.2 Guarantees.  Delvify does not guarantee that any budget set up in the Insertion Order will be reached. Unless specified otherwise in the Insertion Order, the Client shall pay all amounts due, without set-off, within 30 days from the invoice date.

4.3. Taxes. 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 customer 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 as indicated on the IO.

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 3.2 (General Restrictions) or if you violate any other restrictions contained in Section 2 (Customer Data); (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 Programmatic AI and destroy (or, at Delvify’s request, return), any Delvify Confidential Information in its possession. Following termination or expiration you shall have no further access to any Customer Data input into the Programmatic AI, 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.

5.4. Survival. The following Sections shall survive any expiration or termination of this Agreement: Sections 3 (Ownership), 4.1 (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. WARRANTY

6.1. Limited Warranty. Delvify warrants to you that Programmatic AI will operate in substantial conformity with the applicable Documentation.  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 outstanding subscription fees specified in the applicable Invoice which are allocable to the thirty (30) day period prior to the date the warranty claim was made until and (b) any fees you have pre-paid for use of Programmatic AI or Services you has not received as of the date of the warranty claim.

THE SERVICES AND WEBSITE ARE PROVIDED BY DELVIFY ON AN “AS IS, AS AVAILABLE” BASIS, DELVIFY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE USE OR THE RESULTS OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, SECURITY OR FITNESS FOR A PARTICULAR PURPOSE. DELVIFY MAKES NO GUARANTEES THAT YOUR USE OF THE SITE OR SERVICES WILL INCREASE YOUR SALES OR PRODUCTS OR SERVICES. WE MAY CHANGE, RESTRICT ACCESS TO, SUSPEND OR DISCONTINUE OUR SERVICES OR SITE OR ANY PART OF IT AT ANY TIME. DELVIFY SHALL HAVE NO LIABILITY FOR ANY INTERRUPTIONS IN THE USE OF THE SITE OR SERVICES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, DELVIFY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE INFORMATION PROVIDED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES; THEREFORE, THE ABOVE-REFERENCED EXCLUSIONS MAY BE INAPPLICABLE TO SOME USERS.

DELVIFY DOES NOT WARRANT THAT ITS SITE OR SERVICES WILL BE UNINTERUPTED OR OPERATE ERROR FREE OR THAT ITS SERVICE, SITE AND SERVER ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL GOODS AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. IF THE USER`S USE OF THE SITE OR SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, DELVIFY IS NOT RESPONSIBLE FOR THOSE COSTS. WHEN YOU USE OUR SERVICES OR SITE, YOU UNDERSTAND AND AGREE THAT SUCH USE IS AT YOUR OWN RISK.

DELVIFY SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, AND IN PARTICULAR DELVIFY SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOSS OF REVENUE, OR LOSS OF USE, ARISING OUT OF OR RELATED TO THE SITE, THE SERVICES OR THE INFORMATION CONTAINED IN THE SITE OR THE SERVICES, WHETHER SUCH DAMAGES ARISE IN CONTRACT, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW, OR OTHERWISE, EVEN IF DELVIFY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE SOME OF THE ABOVE LIMITATIONS MAY BE INAPPLICABLE.

7. MUTUAL LIMITATION ON REMEDIES AND DAMAGES

7.1. But for a breach of Section 3.2 (General Restrictions), 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.

7.2. But for a breach of Section 3.2 (General Restrictions), each party’s entire liability and obligation to the other party shall not exceed the lesser of (A) fees paid or owed by your to Delvify under this agreement during the 12 months preceding the claim or, (B) five-hundred thousand US Dollars (USD 500,000).

7.3. Failure of Essential Purpose. The parties agree that the limitations specified in this Section 7 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

8. MUTUAL INDEMNIFICATION

8.1. Delvify Indemnification. Delvify shall defend you from and against any claim by a third party alleging that Programmatic AI, 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; (ii) the exclusive right to control and direct the investigation, defense, and any settlement of such claim; and (iii) all reasonably necessary cooperation from you. If your use of Programmatic AI 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 the Programmatic AI substantially functionally similar Services; (b) procure for you the right to continue using Programmatic AI; 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 Programmatic AI is modified by any party other than Delvify, but solely to the extent the alleged infringement is caused by such modification; (2) if Programmatic AI is combined with other non-Programmatic AI 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 Programmatic AI; (4) to any action arising as a result of Customer Data or any third-party components contained within or uploaded to Programmatic AI; or (5) if you settle or make any admissions with respect to a claim without Delvify’s prior written consent.

8.2. Indemnification by You. Subject to this Section 8, 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 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 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 Programmatic AI without Delvify’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed.

9. CONFIDENTIAL INFORMATION.

9.1. 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 Services, and 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.

9.2. Privacy Policy: Your use of Programmatic AI is subject to Delvify Software’s Privacy Policy, a current version of which is available on its website.

10. GENERAL TERMS

10.1. Assignment. 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.

10.2. Severability. 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.

10.3. Governing Law; Jurisdiction and Venue. These Terms shall be governed by and construed in accordance with the substantive laws of Singapore. Any dispute, controversy or difference which may arise between the parties out of, in relation to or in connection with this Agreement is hereby irrevocably submitted to the exclusive jurisdiction of the courts of Singapore, to the exclusion of any other courts without giving effect to its conflict of laws and provisions of your actual state or country of residence. Any dispute arising under this Agreement shall be finally settled on an individual basis in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in Singapore, in the English language and the arbitral decision may be enforced in any court.  In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and legal fees.

10.4. 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.

10.5. Notice. 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: info@delvify.io.   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.

10.6. Amendments; Waivers. 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.

10.7. 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 Programmatic AI is an on-line, subscription-based product, and that in order to provide improved customer experience Delvify may make changes to Programmatic AI (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.

10.8. 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.

10.9. 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.

10.10. Anti-Corruption. 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.

10.11. Language. 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.

10.12. 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.  If Delvify specifies that the modifications to this Agreement will take effect prior to your next renewal and you notify Delvify in writing at info@delvify.io 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 Programmatic AI 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 Programmatic AI, and, in any event, continued use of Programmatic AI after the modified version of this Agreement becomes effective will constitute your acceptance of such modified version.

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