Terms and Conditions
Terms
Nexagate, “The Service Provider” is the provider of the services outlined in Customer’s Sales Order (the Services).
The Service Provider has agreed to provide the Services to the Customer in accordance with Customer’s Contract/Purchase Order and this agreement.
The Customer by subscribing to the Service has agreed to the following terms and conditions governing the use of the Service including the Acceptable Use Policy in Schedule 2. The Service Provider reserves the right to update the Acceptable Use Policy at any time, effective upon a notification via the Service or via an email address Customer have registered with the Service Provider.
The Service Provider reserves the right to change these terms at any time in the absence of any other agreement in writing between the Customer and the Service Provider. Any change shall become effective upon a notification via the Service or via an email address Customer have registered with Nexagate on the Sales Order Form or an email address that Customer have subsequently provided to the Service Provider. It is Customer’s obligation to ensure that Customer have read, understood, and agree to any changes in the terms if notified.
1. Defined terms & interpretation
1.1 Defined terms
In this terms and conditions:
Account
means an account enabling a person to access and use the Service including both Administrator accounts and user accounts.
Agreement
means a contract between the parties incorporating the Sales Order Form, these Terms and Conditions, Nexagate Acceptable Use Policy, Nexagate Support SLA and Nexagate Privacy Policy and any amendments to that contract from time to time.
Authorised User
means the employees or contractors as nominated by the Customer to have an Account.
Confidential Information
includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Software, that is marked confidential or should have been reasonably understood by the disclosing party to be confidential, but does not include information which is, or becomes, publicly available other than through unauthorized disclosure by the other party.
Consequential loss
means any loss or damage which, although in the contemplation of the parties at the time they entered into this Agreement, is not a loss or damage which may fairly and reasonably be considered to arise naturally (that is, in the usual course of things) from the breach or other act or omissions (including loss of contract, business opportunity, profit or anticipated profit, or any other loss of a similar nature).
Customer
means the named party on the Sales Order and any Related Body Corporate from time to time of the named party and their respective Employees.
Customer Data
means any data and materials inputted by the Customer into the Software or stored by the Service or generated by the Service as a result of the Customer’s use of the Service.
Data Breach
means any unauthorized access to, use or disclosure of Personal Information held by or on behalf of the Customer.
Fees
means those fees payable to the Service Provider as set out in the Purchase Order or corresponding to the services selected subsequently by the Customer
Force Majeure Event
means an event or series of related events that is outside the reasonable control of either party and without the fault or negligence of either party and which by the exercise of reasonable diligence either party was unable to prevent (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars).
Infringement Claim
means a Claim which would, if true, constitute a breach of a warranty in clause 3.3(e)
Intellectual Property Right
means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
Modules
means optional modules that the Customer may add to or delete from their main subscription during the term of this Agreement.
Party or Parties
means a party or parties to this Agreement, its successors and assigns or any person acting on behalf of and with the authority of the parties to this Agreement.
Online API
means any Application Programming Interface provided by the Service Provider that enables a Customer to operate its own ecommerce booking platform by reading data from and writing data to the Customer’s database within the Software and Services.
Personal Information
means information or an opinion about an identified individual, or an individual who is reasonably identifiable:
(a) whether the information or opinion is true or not; and
(b) whether the information or opinion is recorded in a material form or not.
Privacy Law
means any requirement under law, industry code or policy relating to the handling of Personal Information.
Purchase Order
means any document, including one completed online, that records the Services and the fees purchased by the Customer.
Software
means the software available (as may be changed or updated from time to time by The Service Provider via the Service.
Support Services
means support in relation to the use of, and the identification and resolution of errors in, the Service, but shall not include the provision of training services.
Supported Web Browser
means the current release from time to time of Google Chrome or any other web browser that the Service Provider agrees in writing shall be supported.
Schedules
means each of the schedules annexed to this agreement.
Services
means the software and support services as set out in Purchase Order.
2. Commencement
This agreement begins on the Commencement Date.
3. The Services
3.1 Terms of Engagement
(a) The Customer appoints the Service Provider as its provider of the Services, and the Service Provider accepts the appointment and agrees to provide the Services to the Customer, in accordance with the terms and conditions of this Agreement.
(b) The Service Provider hereby grants the Customer a non-transferable, non-exclusive License to use the Service by means of a Supported Web Browser from any computer or mobile device during the Term.
(c) The Customer will provide the Service Provider with such information, resources and authorities that the Service Provider reasonably requires to carry out the Services.
3.2 The Service Provider agrees to provide Services to the Customer as set out in the Sales Order and in accordance with:
(a) the terms of this Agreement; and
(b) the Scope of Works (as specified during project’s kick-off briefing).
3.3 The Service Provider warrants to the Customer that, in connection with the provision of the Services:
(a) It is legally able to enter into this Agreement;
(b) It will comply with all applicable laws;
(c) It will use reasonable skill and diligence;
(d) The use of the Software and any documentation in accordance with this agreement will not result in a breach of any law or mandatory code of conduct;
(e) the provision of the Software and the Services to the Customer and the use of any documentation by the Customer, will not:
(i) infringe any person’s rights (including Intellectual Property Rights and Moral Rights); or
(ii) constitute a misuse of any person’s Confidential Information.
(f) It will adhere to best practice policies and procedures to prevent data loss, including a system data back-up regime.
3.4 The Customer warrants to the Service Provider that, in connection with the provision of the Services:
(a) It will comply with Schedule 2 (Acceptable Use Policy) and will ensure that all persons using the Service with its authority or by means of an Account will comply with Schedule 2 (Acceptable Use Policy).
(b) It is responsible for obtaining and maintaining all equipment, computer hardware and software and all telecommunications services required by it to access and use the Services and will ensure that all such equipment and services comply with the technical specifications provided by the Service Provider.
(c) It will take all reasonable precautions to ensure the security of access to the Services and must not, under any circumstances, allow any third party or any person other than an Authorised User to access or use the Services for any purpose without the prior written consent of the Service Provider.
(d) It agrees to inform the Service Provider immediately if it becomes aware of any unauthorised use of the Services by any person.
(e) It will not use the services in any way that will contravene any legal or regulatory provision including any provision resulting from an international agreement applicable to them.
4. Fees
4.1 In return for the provision of the Services by the Service Provider in accordance with clause 4.2 of this terms and conditions, the Customer agrees to pay the Fees as set out in the Purchase Order and any fees for Modules activated by the Customer during the term that are additional to the original Purchase Order.
4.2 The Fees shall be invoiced to the Customer in advance for each billing period for the amount and frequency as set out in the Sales Order or as subsequently subscribed for unless otherwise stated. Modules activated with usage charges may be invoiced in arrears. Minimum terms may apply to Modules activated by the Customer during the term and will be advised to the Customer at the time of activation. The Fees are exclusive of Sales Taxes and similar taxes. The Service Provider invoices will be generated electronically and transmitted by email. Payment is by direct debit or credit card authority. The Service Provider may enter into alternative payment conditions by mutual agreement.
4.3 If during the term the product mix of the Services is amended by agreement between the parties, and the provision of any agreed new Services to the Customer will incur a third party or additional cost, the Service Provider will provide the Customer with notice if any of these third party or additional costs (and the amount of such costs) are to be passed on to the Customer.
4.4 In the absence for any other agreement in writing between the Customer and the Service Provider, the Service Provider may elect to vary any element of the Fees by giving Customer notice of the variation via the Service or via an email address that Customer have registered with the Service Provider.
5. Availability of the Services
5.1 The Service Provider may, in its sole discretion, make enhancements, updates or new releases of the Software available through the Service from time to time in order to enhance or improve the functionality or operation of the service or comply with legislative requirements.
5.2 The Service Provider will use its best endeavours to maintain the reliability and efficiency of the Services subject to unscheduled interruptions to the availability of the Services due to factors beyond the control of the Service Provider - including any actions by the Customer or third parties, including telecommunications providers.
5.3 The Customer will communicate any difficulties encountered with the Services to the Service Provider as soon as is reasonably practicable following detection.
6. Scheduled maintenance
6.1 The Service Provider may from time to time suspend the Services for the purposes of scheduled maintenance to the Services.
6.2 The Service Provider shall give to the Customer prior written notice of scheduled maintenance that will, or is likely to, affect the availability of the Services.
6.3 The Service Provider shall ensure that all scheduled maintenance is carried out outside Business Hours.
7. Support Services
7.1 The Service Provider shall provide the Support Services to the Customer throughout the contract period.
7.2 The Service Provider shall make available to the Customer a helpdesk email address.
7.3 The Service Provider shall provide the Support Services in accordance with the standards of skill and care reasonably expected from a leading service provider in the cybersecurity services.
7.4 The Customer may use the helpdesk email for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.
7.5 The Service Provider shall respond promptly to all requests for Support Services made by the Customer through the helpdesk email.
7.6 The Service Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Service Provider has given to the Customer at least 30 days written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.
8. Termination, and change of service
8.1 The service period shall terminate in advance if any of the following circumstances occurs:
(a) The Parties have agreed to terminate the service period in advance.
(b) If Customer seriously violate this Agreement (including, Customer’s serious violation of the provisions of applicable laws and regulations or Customer’s serious violation of any of the commitments under this Agreement), Service Provider is entitled to terminate the service in advance until all Customer’s data is cleared.
8.2 Service Provider may terminate this Agreement by making an announcement on Service Provider Website or sending an internal notice or written notice to Customer 30 days in advance; at that time, Service Provider shall refund the amount that Customer have paid in advance but not consumed to Customer’s account.
8.3. Customer understand and acknowledge that Service Provider does not guarantee the permanent provision of certain services and is entitled to change the forms, specifications, and other aspects (for example, the price of the service and the billing mode) of services provided due to technical upgrades, service system upgrades, or adjustments to business strategies or cooperation with major changes in national technical or regulatory policies. Before terminating such service or making such changes, Service Provider will make the greatest effort to notify Customer in advance through one or more of the notice methods such as website announcement, email, or internet messaging.
9. Notification
9.1. When Customer use Service Provider services, Customer shall provide Service Provider with true and effective contact methods (including Customer’s email address, contact telephone number, and contact address). If Customer’s contact methods change, Customer are obligated to update relevant information in a timely manner and ensure that Customer can be contacted at any time. Your member account (including the sub-account) to receive in-station letters and system messages is also treated as Customer’s effective contact method.
9.2. Service Provider will send various notices to one or some of Customer’s above contact methods. The content of such notices may have a significant beneficial or adverse impact on Customer’s rights and obligations, so pay attention to them in a timely manner.
9.3. When Service Provider sends Customer a notice by means of the above contact methods in which the written notice is sent in a electronic manner, including announcements, sends Customer a text message to the contact telephone number that Customer provide, sends an email to Customer’s email address, or sends a system message and in-station letter information to Customer’s account, they shall be deemed to have been served upon successful transmission; when Service Provider sends a written notice through a paper-based carrier, such written notice shall be deemed to have been served on the fifth calendar day after delivery to the contact address provided.
9.4. Customer shall ensure that the contact methods provided are accurate, valid, and updated in a real-time manner. If the contact methods that have been provided are inaccurate, or Customer fail to notify Service Provider of the changed contact methods, thereby resulting in that legal instruments cannot be served or served in a timely manner, Customer will be liable for the legal consequences arising therefrom.
10. Data Backup
10.1 The Service Provider will perform regular backups of Customer data, and provide routine and emergency recovery of Customer content from its archives. The backup schedule will include at least daily, weekly and monthly full backups. In the event of loss or corruption of Customer data, The Service Provider will use reasonable commercial efforts to restore such Customer data, based on its most recent backup.
10.2 The Service Provider shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer data caused by any third party.
11. Customer service data
11.1 Service Provider understands and acknowledges that the data Customer process, store, upload, download, distribute, and otherwise process through the services that Service Provider provides is Customer’s user service data, and Customer have full ownership of Customer’s user service data.
11.2 With respect to user business data, Service Provider does not perform any unauthorized use and disclosure other than the implementation of Customer’s service requirements, except for the following circumstances:
(a) When the relevant State organs inquire or access user business data according to law, Service Provider is obligated to provide assistance in accordance with the requirements of applicable laws, regulations or policies and to disclose it to a third party or administrative, judicial, and other organs.
(b) Customer and Service Provider have otherwise reached a separate agreement.
11.3 Customer may delete, change, or otherwise operate Customer’s user business data on Customer’s own. If Customer release the service or delete the data, Service Provider will delete Customer’s data and will not retain the data according to Customer’s instructions. Customer shall exercise caution when deleting, changing, and performing other data operations.
11.4 When the service period expires, the service is terminated in advance (including early termination after the Parties have so agreed, early termination due to other reasons, etc.) or when Customer are in arrears, except as otherwise expressly required by applicable laws and regulations, required by a competent authority or agreed to by the Parties, Service Provider will only continue to store Customer’s user business data (if any) within a certain buffer period (subject to the time limit stated in the special terms, product documentation, and service descriptions applicable to the service that Customer ordered). Upon expiration of the buffer period, Service Provider will delete all user business data, including all cached or backup copies, and will not retain any of Customer’s user business data.
11.5 Once the user business data is deleted, it cannot be recovered; Customer shall assume the consequences and responsibilities resulting from the deletion of such data. Customer understand and agree that Service Provider has no obligation to continue to retain, export, or return the user business data.
11.6 The Service Provider shall ensure proper data segregation of Customer’s data and private information from that of other Service Provider’s customer data.
11.7 The Service Provider shall implement logical controls, including logical separation and access controls, to segregate Customer’s Personal Data from other Customer and Service Provider’s data in the Software. The Service Provider shall additionally ensure that production and non-production data and systems are separated.
12. Intellectual property rights
12.1. The intellectual property rights in any information, technology or technical support, software, and services provided by either Party to the other Party hereunder are owned by the providing party or its legal rights owner. Unless otherwise expressly agreed to by the providing party or legal rights owner, the other Party is not entitled to copy, disseminate, transfer, license, or let others use the above-mentioned intellectual property rights; otherwise, the other Party shall be liable accordingly.
12.2. Customer shall ensure that the materials submitted to Service Provider, the use of Service Provider services and the results arising from the use of Service Provider services do not infringe upon the legitimate rights and interests of any third party. Service Provider shall ensure that the services provided to Customer do not infringe upon the legitimate rights and interests of any third party.
12.3. If a third-party institution or individual challenges or lodges a complaint against the ownership of the intellectual property rights of the relevant materials involved in Customer’s use of Service Provider services, or challenges or lodges a complaint against the ownership of the intellectual property rights in the Service Provider service that Customer are using, both Customer and Service Provider are responsible for issuing relevant certificates concerning the intellectual property rights and cooperating with each other to handle the relevant complaint. In the event of a claim, litigation, or possible lawsuit against the defaulting party, the defaulting party shall be responsible for settling such claim, be liable for relevant costs and losses, and waive the other Party’s liability.
13. Confidentiality
13.1. “Confidential information” referred to herein means trade secrets (including financial secrets), technical secrets, know-how of business operation, and other information and materials that shall be kept confidential (including product information, product plans, prices, financial and marketing plans, business strategies, customer information, customer data, R&D, software, hardware, APIs, technical descriptions, designs, special formulas, and special algorithms) obtained or known by one party (hereinafter referred to as the “Receiving Party”) from the other party (hereinafter referred to as the “Disclosing Party”) or resulting from the Parties’ performance of this Agreement, regardless of the form or carrier of the aforesaid information and data, or whether the Disclosing Party has indicated that such information and data shall be kept confidential by oral, graphic, or written means at the time of disclosure.
13.2. Both Customer and Service Provider shall take appropriate measures to properly preserve the confidential information provided by the other Party. The degree of prudence of such measures shall not be lower than that used to protect its own confidential information. Both Parties can only use the confidential information for the purpose hereunder or purpose associated with this Agreement.
13.3. Both parties shall guarantee that the confidential information shall only be disclosed to directors or employees involved in this business, and shall strictly restrict the staff with access to the above confidential information, so as to comply with the confidentiality obligations set forth in this article.
13.4. The above limits in this article do not apply to the following situations:
(a) The confidential information is already legally owned by the Receiving Party at the time of or prior to the signing of this Agreement.
(b) The confidential information has been disclosed to the public or can be obtained from the public domain.
(c) The confidential information is obtained by the recipient from a third party having no confidentiality or non-disclosure obligations.
(d) The confidential information has been disclosed or can be obtained from the public domain on the premise that the contractual obligations hereunder are not violated.
(e) The confidential information is developed independently by the recipient or its associated or affiliated companies without any benefit from the discloser or its associated or affiliated companies.
(f) The Receiving Party discloses the confidential information (based on oral questions, inquiries, requests for information or documents, subpoenas, civil or criminal investigations, or other procedures) in response to requests by the court or other legal or administrative authorities.
(g) When the Receiving Party applies to the administrative department, industry association, or other institutions for a certain business qualification, obtains a certain certification, or abides by the national and industrial standards/certifications, the Receiving Party shall submit materials or disclose information required by explanations to the above-mentioned institutions in accordance with the other Party’s situation. In such cases, the Receiving Party shall, if necessary, abide by the minimum disclosure principle and require the institution obtaining the confidential information as a result to keep confidential such confidential information under standards not lower than those under this Agreement.
13.5. Customer and Service Provider shall make the greatest effort to protect the above confidential information from disclosure. If any of the aforesaid confidential information is disclosed, the parties shall cooperate to take all reasonable measures to avoid or mitigate the consequences of damage. If any loss is sustained by either Party as a result, the other Party shall compensate for direct economic losses arising therefrom.
