PLEASE CAREFULLY READ THESE SOFTWARE AS A SERVICE (“SaaS”) TERMS & CONDITIONS BEFORE ACCESSING OR USING THE PRODUCT. YOUR AFFIRMATIVE ACT OF ACCESSING OR USING THE PRODUCT SIGNIFIES THAT YOU (THE “CUSTOMER”) AGREE TO BE BOUND BY THESE SAAS TERMS & CONDITIONS (THE “AGREEMENT”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR COMPANY, EMPLOYER OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCESS OR USE THE PRODUCT.
This Agreement is entered into by and between the Customer and Diginex Solutions (HK) Limited, with offices at 501, Two ChinaChem Central, 26 Des Voeux Road, Central, Hong Kong (“DIGINEX”).
1.1 "Authorized Users" means Customer’s employees, agents, and/or independent contractors or others as otherwise authorized by Customer and approved by DIGINEX and who agree to be bound by terms and conditions no less restrictive than those contained in this Agreement and solely to the extent that they are acting on behalf of Customer.
1.2 "Confidential Information" means any and all information disclosed by a party (“DISCLOSER”) to the other party (“RECIPIENT”) in confidence that is labeled or identified as “confidential” or “proprietary”; and if disclosed orally or otherwise in tangible form, is confirmed as such in writing within 30 days of such disclosure; or otherwise is of such a type or disclosed in such a way that a reasonable person would understand that the information disclosed is confidential or proprietary under the circumstances. Confidential Information includes, without limitation, business and financial information, software, source code and specifications, trade secrets, technical information, business forecasts and strategies, personnel information, and proprietary information of third parties.
1.3 “Customer Content" means all information submitted, uploaded, entered or otherwise provided by Customer with regard to Customer’s use of the Product. 1.4 "Documentation" means any published technical manuals including any updates thereto, relating to the use of the Product made generally available by DIGINEX, including through its website.
1.5 "Force Majeure Event" means an event that arises out of causes beyond a party’s reasonable control, including, without limitation, war, civil commotion, act of God, pandemic, strike or other stoppage (whether partial or total) of labor, any law, decree, regulation or order of any government or governmental body (including any court or tribunal) and/or delays or outages caused by an internet service provider or independent hosting facility.
1.6 "Product" means diginexLUMEN™, a software tool that facilitates the supply chain due diligence, and any related updates, materials and documentation made available to Customer by DIGINEX in connection with this Agreement.
1.7 "SaaS Services" means DIGINEX’s internet-accessible services providing Customer and its Authorized Users access and use of the Product that is hosted by or on behalf of DIGINEX by its service providers, which may include, but is not limited to, hosting, management, and maintenance.
1.8 "SaaS Listing" means the operating parameters and availability standards for the SaaS Services as published or made available by DIGINEX.
2. CUSTOMER ORDER AND DELIVERY OF PRODUCT DIGINEX will make the Product available or otherwise accessible to Customer via user password and log-in details unique to the Authorized User(s) of the Company and intended strictly for purposes set forth in this Agreement.
3. RIGHTS AND RESTRICTIONS
3.1 CUSTOMER LICENSE. Subject to the terms and conditions of this Agreement, DIGINEX hereby grants Customer and its Authorized Users a non-sublicensable, non assignable, non-transferable, non-exclusive license to access and use the Product through SaaS solely for Customer’s own internal business purposes and in accordance with this Agreement and the Documentation.
3.2 RESTRICTIONS. Customer agrees not to and agrees not to permit anyone to: (i) rent, sell, lease, pledge, encumber, allow any lien or otherwise transfer the Product or any part thereof, or permit or enable the use thereof for the benefit of any third party; (ii) reverse assemble, reverse compile or reverse engineer the Product, or otherwise attempt to discover any Product source code or underlying DIGINEX Confidential Information; (iii) modify or create derivative works of the Product whether based upon the SaaS Listing or Documentation or otherwise, (iv) merge the Product with any other software; (v) use the Product on or with any system for which it was not intended; (vi) access the Product or use the Documentation in order to build a similar product or competitive product; or (vii) use the Product in a way which is not expressly authorized hereunder or which may be illegal.
4. FEES, PAYMENT, TERM AND TERMINATION
4.1 TERM. This Agreement shall be effective on the date the Customer first accesses or uses the Product
4.2 DIGINEX TERMINATION. DIGINEX may terminate this Agreement by providing written notice to Customer and specifying the date of termination. Notwithstanding any other terms in this Agreement, DIGINEX may terminate this Agreement immediately and without notice, and will be entitled to take immediate possession or control of the Product, if DIGINEX determines in its sole and absolute discretion that Customer is in breach of this Agreement or that the Product; (i) is being misused or used in breach of this Agreement; (ii) is in the possession of any third party not authorized by DIGINEX; or (iii) is in danger of being seized by others. In the event this Agreement is terminated for any reason other than for the expiration of the Term, D GINEX shall be entitled to restrict Customer’s access to the Product and delete any Customer Content entered into or stored on the Product.
4.3 CUSTOMER TERMINATION. Customer may terminate this Agreement by providing DIGINEX with written notice of its intention (including through the online customer service feature in the subscription management section, if available) not to renew the Agreement at least thirty days prior to the expiration of the subscription Term.
4.4 EFFECT OF TERMINATION. Upon the termination of this Agreement, all licenses granted hereunder shall immediately terminate and Customer shall return or destroy all Documentation and materials made available by DIGINEX in connection with this Agreement.
4.5 SURVIVAL. The Sections entitled Definitions, Restrictions, Effect of Termination, Survival, Ownership, Disclaimer of Warranty, Limitation of Liability, Confidentiality, and General shall survive any such termination or expiration.
5. SAAS, UPDATES, UPGRADES, AND SUPPORT
5.1 UPDATES AND UPGRADES. DIGINEX may from time to time at its sole discretion make changes or updates to the Product or infrastructure of the SaaS Services (such as computer infrastructure, storage technology, security, technical configurations, hosting facilities within the data center region, etc.). DIGINEX will use commercially reasonable efforts to provide Customer with at least twenty-four (24) hours advanced notice of any downtime required for such updates and upgrades to the Product and infrastructure of the SaaS Services (“Scheduled Downtime”).
5.2 SUPPORT. Customer Support will be provided in a timely and professional manner by qualified support engineers in accordance with DIGINEX’s applicable support policy. Customer Support shall consist of any one or more of the following:
i.Access to DIGINEX support website for 24x7x365 online support.
ii.Access to DIGINEX help desk and the ability to open and manage support incidents via DIGINEX support online or by telephone.
iii.Production environment support: 24x7 solely for high severity incidents; normal business hours for lesser severities as determined by Diginex in its sole discretion.
6.1. DIGINEX TITLE. DIGINEX retains all right, title and interest in and to the Product. This Agreement does not transfer any of DIGINEX’s right, title or interest in and to the Product and Confidential Information of DIGINEX, including any intellectual property rights therein. There are no implied licenses, and all rights not expressly granted hereunder are reserved to DIGINEX and its licensors.
6.2 CUSTOMER CONTENT. Customer exclusively owns all rights, title and interest in and to all Customer Content. Customer Content will be stored and processed in the data center region specified in the SaaS Documentation. DIGINEX shall not access Customer’s Authorized User accounts or Customer Content stored within such Authorized User accounts, except in response to SaaS or technical issues where Customer provides DIGINEX with the relevant credentials required to access such data. DIGINEX will collect, modify and analyze meta data and/or operations data which does not contain any Customer Content, such as log files and transaction counts. DIGINEX is not responsible for unauthorized access, alteration, theft or destruction of Customer Content arising from Customer’s own or its Authorized Users’ actions or omissions in contravention of the Documentation. Customer’s ability to recover any lost data resulting from DIGINEX’s misconduct is limited to restoration by DIGINEX from the most recent back-up.
Notwithstanding this Clause 6.2, DIGINEX may use de-identified or aggregate Customer Content for research and analysis purposes including, but not limited to, benchmarking to enhance the platform functionality and data accuracy for our customers and DIGINEX may share de-identified or aggregate Customer Content with any entity for the same purposes. De-identified data is data that is not linked or reasonably linkable to a particular person, Customer or device. Aggregate data is Customer Content that DIGINEX has combined with information from other customers so that the use of and recipient of the data does not identify any particular person, Customer or device from the data.
6.3 TRANSFER OF CUSTOMER CONTENT. If Customer’s Authorized Users provide any personal data to DIGINEX in connection with use of the Product, and/or provides DIGINEX access to any Customer Content, then Customer warrants that (i) it is duly authorized to provide personal data to DIGINEX and it does so lawfully in compliance with relevant legislation, (ii) DIGINEX and its Affiliates or its subcontractors, acting on behalf of DIGINEX, may use such data strictly for the purposes of performing its obligations under this Agreement, and (iii) DIGINEX may disclose such data to any DIGINEX entity and its subcontractors for this purpose and may transfer such data to countries outside of the country of origin.
6.4 SECURITY. DIGINEX will maintain and administer a security policy with physical and technical safeguards designed to protect the security, integrity and confidentiality of the Customer Content. DIGINEX runs security background checks on all operations staff. Security audits are conducted periodically to certify that security controls are in place and are being carried out. A copy of DIGINEX’s Data Security Protocol will be provided upon request. In the event that DIGINEX has determined that a security breach will or is likely to cause harm to the Customer or an Authorized User, DIGINEX will provide Customer with notice of the security breach as promptly as practicable but in no event later than five (5) working days from such determination, unless doing so would be detrimental to DIGINEX’s remediation efforts for such breach. After initial notification, DIGINEX will keep Customer updated on a regular basis and provide an incident report which may include the steps taken by DIGINEX to investigate the security breach and potential measures to be taken by the Customer to minimize potential damages. The parties understand and agree that DIGINEX may be prevented by law, regulation, or a third-party arrangement from providing such notice(s) and/or reports within the above time frames.
6.5. CUSTOMER RESPONSIBILITIES. Customer shall not and shall not allow any third party to: (i) make the Product available to any third party not authorized or as otherwise contemplated by this Agreement; (ii) send or store code that can harm or result in damage to the Product (including but not limited to malicious code and malware); (iii) willfully interfere with or disrupt the integrity of the Product or the data contained therein; (iv) attempt to gain unauthorized access to the Product or its related systems or networks; (v) use the Product to provide services to third parties except as expressly permitted by the Agreement; (vi) use the Product in order to cause harm, such as overload or create multiple agents for the purpose of disrupting operations of a third party; (vii) remove or modify any program markings or any notice of DIGINEX’ or its licensors’ proprietary rights; (viii) perform or disclose any benchmark or performance tests on the Product; or (ix) perform or disclose any of the following security testing of the SaaS environments or associated infrastructure: network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, penetration testing or any other test or procedure not authorized in the Documentation. A breach by Customer of its obligations under this section shall be considered a material breach of the Agreement.
7. DISCLAIMER OF WARRANTY
DIGINEX warrants that the Product will materially conform to the Documentation during the Term. If it is established that DIGINEX has breached such warranty, DIGINEX will, at its option, (a) use reasonable efforts to cure the defect; (b) in the event DIGINEX cannot, after commercially practicable attempts to do so, achieve the remedies in (a), where the breach relates to SaaS, DIGINEX may terminate the subscription to the Product and provide a refund of pre-paid, unused fees calculated against the remainder of the subscription term as of the effective date of such termination. Customer must report the alleged breach of warranty with reasonable specificity in writing within thirty (30) days of its occurrence to benefit from this warranty and the remedies stated herein. THE ABOVE WARRANTIES ARE DIGINEX’S ONLY WARRANTIES AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF SUCH WARRANTIES. TO THE EXTENT PERMITTED BY LAW, NO OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THIRD PARTY WARRANTIES, NON-INFRINGEMENT, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE MADE BY DIGINEX. DIGINEX DOES NOT WARRANT THAT THE PRODUCT OFFERED WILL MEET CUSTOMER’S REQUIREMENTS OR THAT USE OF THE SAAS WILL BE UNINTERRUPTED OR ERROR-FREE.
8. LIMITATION OF LIABILITY
EXCEPT FOR BREACHES OF THE GRANTS OF RIGHTS AND RESTRICTIONS AND THE OWNERSHIP SECTION BY CUSTOMER, OR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, (I) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY, WHETHER IN CONTRACT OR TORT, OR OTHERWISE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR UNFORESEEABLE LOSS, DAMAGE OR EXPENSE, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF OPPORTUNITY, LOSS OR CORRUPTION OF DATA, HOWEVER ARISING, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES BEING INCURRED, AND (II) EACH PARTY’S LIABILITY TO THE OTHER UNDER THE AGREEMENT, FOR DAMAGES, LOSSES, OR LIABILITY FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION WHETHER CONTRACTUAL OR NON-CONTRACTUAL, SHALL BE LIMITED TO A MAXIMUM OF THE FEES PAID AND OWED FOR THE PRODUCT PROVIDED TO CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM OR WHERE THE CLAIM RELATES TO SERVICES ONLY THE FEES PAID AND OWED FOR THE SERVICES GIVING RISE TO THE CLAIM. THE ABOVE LIMITATIONS WILL NOT IN ANY WAY LIMIT CUSTOMER’S OBLIGATION TO PAY.
9.1. RECIPIENT agrees: (1) to take reasonable measures to maintain the DISCLOSER’s Confidential Information in confidence; (2) not to disclose the DISCLOSER’s Confidential Information to any third parties, except as described below; and (3) not to use any Confidential Information except to perform its obligation and exercise its rights under this Agreement. RECIPIENT may disclose DISCLOSER’s Confidential Information to its officers, directors, or those of its employees, agents and contractors as are necessary for the use expressly set forth in the Agreement, and only after such employees and contractors have agreed in writing to be bound by terms no less restrictive than the provisions of this Agreement.
9.2. The restrictions set forth in this section shall not apply to any Confidential Information that the RECIPIENT can demonstrate (1) was known to it prior to its disclosure by the DISCLOSER; (2) is or becomes publicly known through no wrongful act of the RECIPIENT; (3) has been rightfully received from a third party authorized to make such disclosure without restriction; (4) is independently developed by the RECIPIENT without reliance upon the other party’s Confidential Information; or (5) has been approved for release by the DISCLOSER’s prior written authorization.
9.3. The parties agree that a breach of this section may cause immediate and irreparable harm for which monetary damages would be an inadequate remedy and therefore, the parties agree that in addition to any other remedies available at law or hereunder, the DISCLOSER shall be entitled to seek equitable relief, including injunctive relief, from any court having jurisdiction, to protect its rights and interests pursuant to this section.
10.1 GOVERNING LAW; INJUNCTIVE RELIEF. This Agreement shall be construed pursuant to the laws of the Special Administrative Region of Hong Kong without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on Contracts for the International Sale of Goods. The parties hereby consent to the exclusive jurisdiction of the Special Administrative Region of Hong Kong for resolution of any disputes arising out of this Agreement, provided that DIGINEX may seek injunctive relief to protect its ownership rights and Confidential Information in any court of law or equity of competent jurisdiction. The prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorney’s fees and costs in connection with such action.
10.2. WAIVERS; AMENDMENTS; ENTIRE AGREEMENT; PRIORITY. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. Any waivers or amendments shall be effective only if made in writing and agreed by both parties. This Agreement, the SaaS Listing or applicable Documentation, and the Subscription Order Form, together form the complete and 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. In the event of a conflict among this Agreement, the SaaS Listing or applicable Documentation, and the Subscription Order Form, the order of precedence from highest to lowest shall be (i) the Subscription Order Form, (ii) SaaS Listing or applicable Documentation, and (iii) this Agreement.
10.3 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 or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
10.4 NON-EXCLUSIVE SERVICE. Customer acknowledges that the Product is provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict DIGINEX’s ability to provide the Product, SaaS Services or other technology, including any features or functionality first developed for Customer, to other parties.
10.5 FORCE MAJEURE. Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or service, in whole or in part, as a result of a Force Majeure Event.
10.6 NO THIRD PARTY BENEFICIARIES. This Agreement is an agreement between the parties, and confers no rights upon either party’s employees, agents, contractors, partners of customers or upon any other person or entity.
Last Updated January 2022