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Ethixbase360 Terms and Conditions for the Supply of Services 2021
Terms & Conditions active from 1 January 2021 to 2 August 2022. Please see below for the current and previous versions.
This is a legal agreement between ethiXbase and you (the Customer), in respect of certain services, software applications and platforms which ethiXbase will supply to you.
Affiliate: another entity (including subsidiaries) that controls, is controlled by, or is under common control of the Party. For purposes of this Agreement control of an entity means ownership, whether directly or indirectly through the control of one or more intervening entities of more than 50% of the entire ownership interest in the entity, control of the entity’s voting stock, or the right and power to direct the entity’s affairs.
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation for the Permitted Purpose.
Business Day: a day other than a Saturday, Sunday or public holiday.
Confidential Information: information that is proprietary or confidential, including the ethiXbase Data and the Customer Data, and is either clearly labelled as such or reasonably considered to be confidential information in clause 11.
Customer Data: the data inputted into the Services by the Customer, Authorised Users, or ethiXbase on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
Data Protection Legislation: all applicable data protection and privacy legislation, regulations, guidance and codes of practice, including (i) the Regulation (EU) 2016/679 (the “GDPR“) and the Privacy and Electronic Communications (EC Directive) Regulations; and (ii) any guidance or codes of practice issued by Working Party 29, the European Data Protection Board or the Information Commissioner from time to time (all as amended, updated or re-enacted from time to time); (iii) the Singapore Personal Data Protection Act 2012 (No. 26 of 2012); and any guidance or codes of practice issued by the Personal Data Protection Commission of Singapore.
Deliverables: the deliverables ancillary to the supply of the Services including but not limited to any benchmarking reports or the Reports.
Documentation: the documents and materials containing information regarding the Software and/or the Services made available to the Customer by ethiXbase from time to time.
Effective Date: the earlier of the Order Effective Date or the date on which the Customer begins to receive the Services.
ethiXbase: means the ethiXbase entity defined in Section 19
ethiXbase Data: the data and other information disclosed by ethiXbase to the Customer as contained within the Reports.
ethiXbase Platform 360: the due diligence and third party management platform including the ethiXbase ‘Forms Portal’ owned and operated by ethiXbase in which part or all of the Services may be delivered, including any further versions or adaptations of such.
Force Majeure: an event or sequence of events beyond a party’s reasonable control (after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements) preventing or delaying it from performing its obligations under this agreement including an act of God, fire, flood, lightning, earthquake or other natural disaster, war, riot or civil unrest, interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service, or material required for performance of this agreement, strike, lockout or boycott or other industrial action including strikes or other industrial disputes involving ethiXbase’s or its suppliers’ workforce, but excluding the Customer’s inability to pay or circumstances resulting in the Customer’s inability to pay.
Order: means an ordering document or online order specifying the Services ordered by you and to be provided by ethiXbase hereunder that is entered into between ethiXbase and Customer
Order Effective Date: means the effective date specified on such Order (or if no such date specified the date of countersignature of an Order).
Modern Slavery Module: means those Services in relation the provision of a Modern Slavery Due Diligence module made available from time to time as part of the Subscription Services
Prices: the price for the Services that are chargeable to the Customer as agreed between the Customer and ethiXbase in writing from time to time.
Permitted Purpose: as defined within clause 2.1.
Project Services: means professional services, implementation services, consulting services or other project-based services. Project Services are not Subscriptions
Reports: any reports and information generated and delivered to the Customer as part of the Services.
Services: means the services ordered by the Customer on an Order, as specified on such Order, including but not limited to Subscription Services and/or Project Services.
Software: the online software applications provided by ethiXbase as part of the Services.
Subscription Services: those ethiXbase services made available by ethiXbase as a subscription.
Term: has the meaning given in clause 14.1.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Website: ethiXbase’s websites including https://ethixbase.com/, https://eb2.ethixbase.com/index? and any other web domains owned by ethiXbase or any of its Affiliates as updated from time to time.
1.2. Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular, and a reference to one gender shall include a reference to the other genders.
1.6. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement and shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.7. References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.
2.1. Subject to the terms of this agreement, ethiXbase hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicenses, to permit the Authorised Users to use the Services and the Documentation during the Term solely for the purposes of the Customer’s usual business operations in assessing and managing third party risks (the “Permitted Purpose”).
2.2. The Customer shall not, and shall procure that the Authorised Users do not, access, store, distribute or transmit any Viruses, or any material during the course of its or their use of the Services that:
2.2.1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2.2.2. facilitates illegal activity;
2.2.3. depicts sexually explicit images;
2.2.4. promotes unlawful violence;
2.2.5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
2.2.6. is otherwise illegal or causes damage or injury to any person or property; and
ethiXbase reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
2.3. The Customer shall not, and shall procure that its Authorised Users will not:
2.3.1. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
2.3.1.1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software, Services and/or Documentation (as applicable) in any form or media or by any means; or
2.3.1.2. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software, Services and/or Documentation; or
2.3.1.3. use the Services or the Documentation for any other purpose other than the Permitted Purpose;
2.3.2. access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
2.3.3. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services, Deliverables and/or Documentation available to any third party (including resellers, remarketers, brokers) except Authorised Users, or
2.3.4. attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2;
2.4. The Customer shall, and shall procure that its Authorised Users shall:
2.4.1. ensure that it monitors and controls access to the ethiXbase Data, the ethiXbase Platform 360 and the Reports, and implements appropriate security measures not less than the standard of its own security measures in relation to the protection of its own confidential information to ensure that only Authorised Users may view, retrieve and download the ethiXbase Data and Reports;
2.4.2. make copies of the ethiXbase Data pursuant to the Permitted Purpose and for no other purpose;
2.4.3. immediately notify ethiXbase if any unauthorised use, access or transmission is made;
2.4.4. agree and comply with ethiXbase’s Terms of Use (and any other applicable ethiXbase policies) as updated and notified to the Customer and/or the Authorised Users from time to time;
2.5. The Customer is prohibited from reproducing, republishing or otherwise disclosing or transferring the Enhanced Due Diligence reports, including the ethiXbase Data contained within in whole or in part, to any third party outside the Customer’s organisation, unless required to do so by applicable law.
2.6. The Reports are provided to the Customer solely as part of the Customer’s background screening, due diligence, anti-money laundering/corruption and/or fraud prevention programs and should not be exclusively relied upon by the Customer to make decisions, whether about entering into any form of business relationship with the subject of any Report or any related parties, or otherwise.
3. FCRA Restrictions
3.1. Notwithstanding anything to the contrary in this agreement, the parties specifically agree not to use information from the Services (including the ethiXbase Data) in whole or in part for any “permissible purpose” specified in 15 U.S.C. § 1681b, including, without limitation, (i) to establish a consumer’s eligibility for credit, insurance, employment, government benefits or licenses, or any other transaction initiated by the consumer; (ii) to collect an account; or (iii) to determine whether a consumer continues to meet the terms of an account. Notwithstanding the immediately foregoing, Customer may use information from the Services in connection with an investigation of its employees as described in 15 U.S.C. § 1681a(x). A permitted employee investigation is an investigation of suspected misconduct relating to employment, or of compliance with Federal, State, or local laws and regulations, the rules of a self-regulatory organization, or any pre-existing written policies of the employer.
3.2. Further to clause 3.1, the Customer shall ensure that:
3.2.1. the ethiXbase Data is not used for the purpose of investigating a consumer’s credit worthiness, credit standing, or credit capacity; and
3.2.2. the ethiXbase Data is not provided to any person except: (a) to the employer or an agent of the employer, (b) to any Federal or State officer, agency, or department, or any officer, agency, or department of a unit of general local government, (c) to any self-regulatory organization with regulatory authority over the activities of the employer or employee, (d) as otherwise required by law; or (e) to government agencies under 15 U.S.C. § 1681f.
3.3. The Customer shall cause each Affiliate to whom the Services have been provided pursuant to this Agreement to comply with Clause 3.2.
3.4. Nothing in this clause 3 shall be construed as limiting the Customer’s rights as part of the Permitted Purpose from using, transmitting, receiving or sharing the ethiXbase Data for the purposes of identifying and reporting activities that may involve bribery, corruption, terrorist acts or money laundering activities.
4. Services
4.1. ethiXbase shall, during the Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement.
4.2. Subject to clause 7.2, ethiXbase shall use commercially reasonable endeavours to make any online elements of the Services available 24 hours a day, seven days a week, except for unscheduled maintenance performed.
4.3. The Customer acknowledges that ethiXbase shall be entitled to modify the features and functionality of the Services.
4.4. The ethiXbase Services may from time to time include the provision of the Modern Slavery Module as part of the Subscription Services. The Modern Slavery Module provides an indicative risk rating only. The accuracy of the risk score generated by the module (“risk rating”) is dependent on a number of external factors which are outside the control of ethiXbase, including third-party data sources and supplier inputs. ethiXbase excludes all liability associated with these external factors and any impact they may have on a risk rating.
4.5. None of the Modern Slavery Module and its outputs constitutes legal advice or creates a lawyer-client relationship between ethiXbase and or any author or contributor to the module and any user.
5. Customer data
5.1. The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
5.2. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for ethiXbase to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by ethiXbase in accordance with its relevant internal policies. ethiXbase shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by ethiXbase to perform services related to Customer Data maintenance and back-up).
5.3. ethiXbase shall, in providing the Services, comply with its Privacy Policy available on the Website. The Privacy Policy may be amended from time to time by ethiXbase in its sole discretion.
5.4. For the purposes of this clause, “Data Controller”, “Data Processor”, “Data Subject”, “Personal Data” and “processing” shall have the meanings attributed to them in the Data Protection Legislation.
5.5. During the Term and in the provision of the Services, ethiXbase may process Personal Data on the Customer’s behalf. ethiXbase acknowledges that the Customer is the Data Controller in relation to all Personal Data and ethiXbase shall be the Data Processor of such Personal Data.
5.6. Instructions. ethiXbase shall process Personal Data only in accordance with the Customer’s instructions.
5.7. Security. Taking into account the state of technical development and the nature of processing, ethiXbase shall implement and maintain the technical and organisational measures to protect the Personal Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.
5.8. Sub-processing. ethiXbase shall, prior to any sub-processor carrying out any processing activities in respect of the Personal Data, appoint such sub-processor under a written agreement containing materially the same obligations as under this clause.
5.9. Personnel. ethiXbase shall ensure that all employees, agents or other persons completing work in relation to this agreement:
5.9.1. are informed of the confidential nature of the Personal Data and are subject to a binding written contractual obligation to keep the Personal Data confidential;
5.9.2. have undertaken training in the laws relating to handling Personal Data;
5.9.3. are aware both of ethiXbase’s duties and their personal duties and obligations under such laws and this agreement; and
5.9.4. shall only have access to such part or parts of the Personal Data as is strictly necessary for performance of that person’s duties.
5.10. International transfers. ethiXbase shall not transfer the Personal Data outside the European Economic Area (EEA) (or, where relevant, Singapore) where the Customer has instructed ethiXbase in writing not to do so. Where ethiXbase does transfer the Personal Data outside of the EEA (or, where relevant, Singapore), it shall ensure that the appropriate safeguards are place in accordance with the Data Protection Legislation.
5.11. Breach. ethiXbase shall promptly inform the Customer if it becomes aware that any Personal Data is lost or destroyed or becomes damaged, corrupted, or unusable.
5.12. Audits. ethiXbase shall, in accordance with the Data Protection Legislation, make available to the Customer such information it has as is necessary to demonstrate the ethiXbase’s compliance with the obligations placed on it under Article 28 of the GDPR and allow for and contribute to audits, including inspections, by the Customer.
5.13. Assistance. ethiXbase shall:
5.13.1. promptly provide such reasonable information and assistance as the Customer may require in relation to the fulfilment of the Customer’s obligations to respond to requests for exercising the Data Subjects’ rights under the Data Protection Legislation; and
5.13.2. provide such information, co-operation and other assistance to the Customer as the Customer reasonably requires (taking into account the nature of processing and the information available to ethiXbase) to ensure compliance with the Customer’s obligations under Data Protection Legislation, including with respect to:
5.13.2.1. security of processing;
5.13.2.2. data protection impact assessments;
5.13.2.3. prior consultation with a supervisory authority regarding high risk processing; and
5.13.2.4. any remedial action and/or notifications to be taken in response to any Personal Data breach and/or any complaint or request relating to either party’s obligations under Data Protection Legislation relevant to this agreement, including (subject in each case to the Customer’s prior written authorisation) regarding any notification of the Personal Data breach to supervisory authorities and/or communication to any affected Data Subjects.
5.14. Deletion/return. At the end of the provision of the Services relating to the processing of Personal Data, at the Customer’s cost and the Customer’s option, ethiXbase shall either return all of the Personal Data to the Customer or securely dispose of the Personal Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires ethiXbase to retain such Personal Data.
5.15. The Customer is solely responsible for the completeness and accuracy of Personal Data that ethiXbase processes on the Customer’s behalf. The Customer warrants to ethiXbase that it has all consents or other legal justifications necessary for ethiXbase to process the Personal Data and deliver the Services in accordance with the agreement and the Customer agrees to indemnify and keep indemnified and defend at its own expense ethiXbase against all costs, claims, damages, fines or expenses incurred by ethiXbase as a result of the Customer’s breach of this warranty.
6. Third-party providers
The Customer acknowledges that the Services or Website may enable or assist it to access the website content of, correspond with, and/or purchase products and services from, third parties via third-party websites (for example, Twitter, Facebook etc.) and that it does so solely at its own risk. ethiXbase makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not ethiXbase. ethiXbase recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. ethiXbase does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services or the Website.
7. ethiXbase’s obligations
7.1. ethiXbase warrants that:
7.1.1. the Services will be performed with reasonable skill and care;
7.1.2. it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement; and
7.1.3. it will comply with all applicable laws and regulations with respect to its activities under this agreement.
7.2. The warranties and undertakings given by ethiXbase under this agreement shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to ethiXbase’s instructions, or modification or alteration of the Services by any party other than ethiXbase or ethiXbase’s duly authorised contractors or agents.
7.3. If the Services do not conform with the undertakings or warranties contained within this agreement, ethiXbase will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of any warranty in this agreement. Notwithstanding the foregoing, ethiXbase:
7.3.1. does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the ethiXbase Data obtained by the Customer through the Services will meet the Customer’s requirements; and
7.3.2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.4. This agreement shall not prevent ethiXbase from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
8. Customer’s obligations
8.1. The Customer warrants that it shall:
8.1.1. provide ethiXbase with:
8.1.1.1. all necessary co-operation in relation to this agreement; and
8.1.1.2. all necessary access to such information as may be required by ethiXbase;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
8.1.2. comply with all applicable laws and regulations with respect to its activities under this agreement;
8.1.3. carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, ethiXbase may adjust any agreed timetable or delivery schedule as reasonably necessary;
8.1.4. ensure that the Authorised Users use the Services and the Documentation in accordance with ethiXbase’s instructions including the terms and conditions of this agreement and shall be responsible for any breach of this agreement which results from an Authorised User’s act or omission;
8.1.5. not use the Services to violate the privacy and confidentiality of the Customer’s clients or third parties;
8.1.6. obtain and shall maintain all necessary licences, consents, and permissions necessary to enable ethiXbase, its contractors and agents to perform their obligations under this agreement, including without limitation any necessary consents or permissions to use the Customer Data in conjunction with the Services;
8.1.7. ensure that its network and systems comply with the relevant specifications provided by ethiXbase from time to time.
9. Charges and payment
9.1. The Customer shall pay the Prices to ethiXbase in accordance with this clause 9.
9.2. Payment of the Prices shall be made by the Customer within thirty (30) days from receipt by Customer of an invoice from ethiXbase.
9.3. If ethiXbase has not received payment by the due date, and without prejudice to any other rights and remedies of ethiXbase:
9.3.1. ethiXbase may, without liability to the Customer, disable the Customer’s access to all or part of the Services and shall be under no obligation to provide any or all of the Services, commencing on the due date and continuing until fully paid, whether before or after judgment; and or all of the Services while the invoice(s) concerned remain unpaid;
9.3.2. ethiXbase may charge Customer interest on overdue payments at the rate specified in the Contracting Entity Table in Section 19 on the amount overdue; and
9.3.3. terminate this agreement in accordance with clause 14.2.1.
9.4. All amounts and fees stated or referred to in this agreement:
9.4.1. shall be payable in U.S. dollars unless stated or agreed otherwise;
9.4.2. are non-cancellable and non-refundable;
9.4.3. are exclusive of all taxes or duties, which the Customer shall be responsible for paying.
9.5. Some of the Services are provided free of charge to the Customer at ethiXbase’s sole discretion.
9.6. ethiXbase reserves the right to increase the Prices, or begin charging for any free Services, at any time upon giving the Customer reasonable notice of such increases.
10. Proprietary rights
10.1 The Customer acknowledges and agrees that ethiXbase and/or its licensors own all intellectual property rights in the Software, Services and the Documentation. Except as expressly stated herein, this agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Software, Services or the Documentation.
10.2 ethiXbase confirms that it has all the rights in relation to the Software, the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
11. Confidentiality
11.1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:
11.1.1. is or becomes publicly known other than through any act or omission of the receiving party;
11.1.2. was in the other party’s lawful possession before the disclosure;
11.1.3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
11.1.4. is independently developed by the receiving party, which independent development can be shown by written evidence.
11.2. Subject to clause 11.4, each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.
11.3. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
11.4. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
11.5. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
11.6. ethiXbase acknowledges that the Customer Data is the Confidential Information of the Customer.
11.7. The above provisions of this clause 11 shall survive termination of this agreement, however arising.
12. Indemnity
12.1. The Customer shall defend and indemnify ethiXbase, and its respective directors, officers, agents, representatives, employees, and its successors and assigns from and against any and all third party claims, losses, damages, costs, charges, expenses, liabilities, demands, proceedings and actions (collectively, “Claims”) which they (or any of them) may sustain or incur, or which may be brought or established against them (or any of them) as a result (whether direct or indirect, and whether wholly or in part) of, or arising from: (i) any breach of this agreement by the Customer, its Authorised Users, agents or subcontractors; or (ii) any act or omission of the Customer or its Authorised Users, customers, agents or subcontractors in using the Services in an unauthorized manner and which gave rise to such Claims.
12.2. The Customer assumes sole responsibility for results obtained from the use of the Services by the Customer and its Authorised Users, and for conclusions drawn from such use and any consequences of doing so. Any reliance placed upon the information and results provided by ethiXbase in connection with the Services, including the Reports, will be at the Customer’s own risk and ethiXbase shall have no liability for any Claims incurred by the Customer as a result of placing such reliance, and the Customer shall indemnify ethiXbase and its respective directors, officers, agents, representatives, employees, and its successors and assigns from and against any Claims which arise as a result such reliance or use of the Services including, but not limited to, Claims brought by those who are identified (or mistakenly identified) within any information or results provided by ethiXbase.
13. Limitation of liability
13.1. Except as expressly and specifically provided in this agreement:
13.1.1. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
13.1.2. the Services and the Documentation are provided to the Customer on an “as is” basis and ethiXbase does not make any warranties or representations regarding the accuracy or completeness of all data provided during the provision of the Services, including but not limited to the ethiXbase Data.
13.2. Nothing in this agreement excludes either party’s liability for:
13.2.1. death or personal injury caused by a party’s negligence; or
13.2.2. fraud or fraudulent misrepresentation.
13.3. Subject to clause 13.1 and clause 13.2:
13.3.1. ethiXbase shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
13.3.2. ethiXbase’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Prices paid by the Customer for the Services during the twelve (12) months immediately preceding the date on which the claim arose.
14. Term and termination
14.1. This agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue for twelve (12) months and, thereafter, this agreement shall be automatically renewed for successive periods of twelve (12) months (each a Term) unless terminated by either party giving not less than ninety (90) days written notice to terminate this agreement.
14.2. Without affecting any other right or remedy available to it, EthiXbase may terminate this agreement with immediate effect by giving written notice to the Customer if:
14.2.1. the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than ninety (90) days after being notified in writing to make such payment;
14.2.2. the Customer commits a material breach of any other term of this agreement which is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so; or
14.2.3. the Customer repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement.
14.3. Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
14.3.1. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
14.3.2. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
14.3.3. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
14.3.4. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
14.3.5. the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
14.3.6. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
14.3.7. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within fourteen (14) days;
14.3.8. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.3.1 to 14.3.7 (inclusive); or
14.3.9. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
14.4. On termination of this agreement for any reason:
14.4.1. all licences granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
14.4.2. each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
14.4.3. EthiXbase may destroy or otherwise dispose of any of the Customer Data in its possession in accordance with good industry practice unless EthiXbase receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. EthiXbase shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by EthiXbase in returning or disposing of Customer Data; and
14.4.4. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
15. Force Majeure
15.1. A party shall not be liable if delayed in or prevented from performing its obligations due to Force Majeure, provided that it:
15.1.1. promptly notifies the other of the Force Majeure event and its expected duration; and
15.1.2. uses best endeavours to minimise the effects of that event.
15.2. If, due to Force Majeure, a party:
15.2.1. is or shall be unable to perform a material obligation; or
15.2.2. is delayed in or prevented from performing its obligations for a continuous period exceeding 14 days or a total of more than 30 days in any consecutive period of 60 days, the other party may, within 30 days, terminate this agreement on immediate notice.
16. Publicity
16.1 Neither party shall issue any press releases regarding this agreement without the express prior written consent of the other party. In addition to (and without limitation of the foregoing), neither party nor its directors, officers nor employees, shall publish or disseminate any commercial advertisements, opinions, or feature articles using the name of the other party, any party’s Affiliates or any party’s customers without the express prior written consent of the other party.
17. General
17.1. ethiXbase shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of ethiXbase or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
17.2. ethiXbase may vary this agreement from time to time upon giving the Customer notice in writing.
17.3. No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17.4. Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
17.5. If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
17.6. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
17.7. This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
17.8. Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
17.9. The Customer shall not, without the prior written consent of ethiXbase, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
17.10. ethiXbase may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
17.11. Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability 1and the exercise of any right or power).
17.12. Other than as expressly stated within this agreement, this agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
18. Notices
18.1. Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes. Any notice to ethiXbase shall be sent to ethiXbase’s registered office marked for the attention of the CEO Office.
18.2. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at 9am on the first Business Day following transmission.
19. Contracting Entity
19.1. Contracting Entity Table: In the table below, “Customer Location” refers to where Customer is located (as determined by customer’s business address on the Order, if specified) and determines which table row applies to Customer.
|
Contracting Entity Table |
|||
|
Customer Location |
Contracting Entity |
Overdue Payments |
Governing Law & Jurisdiction |
|
United Kingdom & the EU |
Ethixbase UK Limited incorporated and registered in England & Wales with company number 10651805 whose registered office is at 27 Old Gloucester Street, London, United Kingdom, WC1N 3AX |
3% per annum above Bank of England Base rate |
England & Wales |
|
Rest Of World |
ethiXbase 360 Pte. Limited incorporated and registered in Singapore with company number 201131414M whose registered office is at 151 Chin Swee Road, #02-20 Manhattan House, Singapore 169876 |
3% per annum above the Monetary Authority of Singapore Base rate |
Singapore |
19.2. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law specified in the Contracting Entity Table.
20. Arbitration
20.1. Any dispute arising out of or in connection with this agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this clause.
20.2. The seat of the arbitration shall be Singapore.
20.3. The Tribunal shall consist of one arbitrator.
20.4. The language of the arbitration shall be English.
20.5. The governing law shall be as specified in the Contracting Entity Table
21. English Language
In the event that this agreement is translated into a language other than English, the English-language version of this agreement shall take precedence in the event of any conflict in interpretation or translation.
