REPRESENTATION AND WARRANTIES
General. Each Party represents and warrants that it has the right and authority to enter into this Agreement and that by entering into this Agreement, it will not violate, conflict with, or cause a material default under any other contract, agreement, indenture, decree, judgment, undertaking, conveyance, lien or encumbrance to which it is a party or by which it or any of its property is or may become subject or bound.
Compliance with the Laws. Each Party represents and warrants that no consent, approval, or authorization of or designation, declaration, or filing with any governmental authority is required in connection with the valid execution, delivery, and performance of this Agreement. Each Party shall, at its own expense, comply with all laws, regulations, and other legal requirements that apply to it and this Agreement, including copyright, privacy, and communications decency laws.
Acceptable Use. The client is solely responsible for the content of any postings, data, or transmissions using the Services, or any other use of the Services by Client or by any person or entity Client permits to access the Services. Client represents and warrants that it will: (a) not use the Services in a manner that: (i) is prohibited by any law or regulation, or to facilitate the violation of any law or regulation, or (ii) will disrupt a third parties’ similar use or Licensed Materials; (b) not violate or tamper with the security of any Supplier computer equipment or program. If Supplier has reasonable grounds to believe that the Client is utilizing the Services for any such illegal or disruptive purpose Supplier may suspend the Services immediately with or without notice to the Client. Supplier may terminate the Agreement as contemplated if Client in fact fails to adhere to the foregoing acceptable use standards.
DISCLAIMER. THE WARRANTIES SET FORTH IN THIS SECTION 3 ARE THE ONLY WARRANTIES MADE BY THE SUPPLIER. SUPPLIER MAKES NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, ANY RELATED SERVICE OR SOFTWARE. SUPPLIER HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE. NO ORAL OR WRITTEN INFORMATION GIVEN BY SOFFRONT, ITS EMPLOYEES, LICENSORS, OR THE LIKE WILL CREATE A WARRANTY.
LIMITATION OF LIABILITY
Excluding the liability under the section entitled “NO INFRINGEMENT” below, UNDER NO CIRCUMSTANCES, WILL SUPPLIER OR ANYONE ELSE INVOLVED IN ADMINISTERING, DISTRIBUTING, OR PROVIDING THE SERVICES, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR LOST PROFITS, OR DAMAGES THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, FAILURE OF PERFORMANCE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO SUPPLIER’S RECORDS, PROGRAMS OR SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT OF ANY BREACH BY THE SUPPLIER OF THIS AGREEMENT, THE SUPPLIER’S LIABILITY TO THE CLIENT WILL NOT EXCEED THE AMOUNT PAID TO THE SUPPLIER BY THE CLIENT DURING THE PREVIOUS THREE MONTHS.
NO INFRINGEMENT: Supplier warrants the Licensed Material will not infringe any patent, trademarks, copyright, or any proprietary rights of a third party or constitute a misuse or misappropriation of a trade secret. Client shall notify Supplier promptly in writing of any known action brought against Client based on an allegation that Client’s use of any materials infringes any patent, trademark, copyright, or infringes any right of a third party, or constitutes misuse or misappropriation of a trade secret (“Infringement”). The supplier will defend, indemnify, and hold the Client harmless from any such action at Supplier’s sole expense, provided that the Supplier shall have the sole control of the defense of any such action, all negotiations and/or its settlement, and the Client reasonably cooperate with Supplier in such defense. In the event that a final injunction is obtained against Client’s use of the Services by reason of an Infringement or Client is otherwise prohibited from using same, Supplier shall to the extent possible and at its expense, within sixty (60) days, either (a) procure for Client the right to continue to use the Services that are infringing, or (b) replace or modify the Services to make its use non infringing while being capable of performing the same function. If neither option is available to Supplier, then Client, at Client’s option, may terminate this Agreement without penalty or further payment other than payment of fees for use of the Services prior to said termination.
For purposes of this Agreement “Confidential Information” shall mean information including, without limitation, all Client data, computer programs, code, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial and product development plans, forecasts, strategies and information marked “Confidential”, or if disclosed verbally, is identified as confidential at the time of disclosure. In addition to the foregoing, Confidential Information shall include third-party software, if any, that may be provided to Client under this Agreement, including any related source or object codes, technical data, the data output of such software, documentation, or correspondence owned by the applicable licensor. Confidential Information excludes information that: (i) was or becomes publicly known through no fault of the receiving Party; (ii) was rightfully known or becomes rightfully known to the receiving Party without confidential or proprietary restriction from a source other than the disclosing Party; (iii) is independently developed by the receiving Party without the participation of individuals who have had access to the Confidential Information; (iv) is approved by the disclosing Party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing Party; and (v) the receiving Party is legally compelled to disclose; provided, however, that prior to any such compelled disclosure, the receiving Party will (a) assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and (b) cooperate fully with the disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event that such protection against disclosure is not obtained, the receiving Party will be entitled to disclose the Confidential Information, but only as, and to the extent, necessary to legally comply with such compelled disclosure.
During this, term of this Agreement and for a period of 1 (One) year thereafter, each Party agrees to maintain all Confidential Information in confidence to the same extent that it protects its own similar Confidential Information, but in no event using less than reasonable care, and to use such Confidential Information only as permitted under this Agreement; Each Party agrees to only disclose the other Party’s Confidential Information to its employees: (a) with a need to know to further permitted uses of such information; and (b) who are informed of the nondisclosure/ non-use obligations imposed by this Section
Both parties shall take steps each determines appropriate to implement and enforce such nondisclosure/non-use obligations.
Terms of Agreement Confidential
Each of the Parties agrees not to disclose to any third party the terms of this Agreement, including pricing, without the prior written consent of the other Party hereto, except to advisors, investors, and others on a need-to-know basis under circumstances that reasonably ensure the confidentiality thereof, or to the extent required by law.
In the event of an actual or threatened breach of the above confidentiality provisions, the non-breaching Party will have no adequate remedy at law and will be entitled to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.
The client is solely responsible for the content of communications transmitted by the Client using the Services and shall defend, indemnify and hold harmless the Supplier from and against all liabilities and costs (including reasonable attorneys’ fees) arising from any and all third-party claims by any person based upon the content of any such communications.
The client is not permitted to resell the Services.
Client shall use the Services only for lawful purposes. To the extent deemed necessary by Client, Client
shall implement security procedures necessary to limit access to the Services to Client’s authorized users and shall maintain a procedure external to the Services for the reconstruction of lost or altered files, data, or programs.
The client is responsible for establishing designated points of contact to interface with the Supplier.
All data is owned by the Client and is to be strictly held confidential. The supplier will delete and destroy all copies of data once the Agreement is terminated with or without default. The client has the option to receive a backup of data prior to deletion. The supplier will deliver a full backup of client Data in.BAK format and the Client can request to deliver in CD or flash drive at the Client’s cost.
All rights, title, and interest in and to the Licensed Material, and all copyrights, patents, trademarks, service marks, or other intellectual property or proprietary rights relating thereto, belong exclusively to Supplier. Any modification to the Software performed by Client directly or indirectly extending the current capabilities shall be the property of Supplier and all copyrights and other rights are hereby assigned to Supplier.
If a Party fails to perform or observe any material term or condition of this Agreement and the failure continues unremedied for 7 (seven) days after receipt of written notice, (1) the other Party may terminate this agreement, or (2) where the failure is a non-payment by Client of any charge when due, Supplier, may, at its option, terminate or suspend Services with or without any notice.
If a Party fails to perform or observe any material term or condition of this Agreement and the failure continues unremedied for thirty (30) days after receipt of written notice, the other Party may terminate this agreement; provided, however, that where the breach is the failure of payment by Client of any charge when due, Supplier, may, at its option, terminate or suspend Services if Client does not cure said breach within seven (7) days following notice to Client of the delinquency.
This Agreement may be terminated immediately upon written notice by either Party if the other Party becomes insolvent or involved in liquidation or termination of business, files a bankruptcy petition, has an involuntary bankruptcy petition filed against it (if not dismissed within thirty days of filing), becomes adjudicated bankrupt, or becomes involved in an assignment for the benefit of its creditors.
Client shall be responsible for payment of all charges under a terminated Agreement incurred as of the effective date of termination.
GENERAL PROVISIONS AND FORCE MAJEURE
(a) This Agreement, including any amendments and attachments hereto that are incorporated herein, constitutes the entire agreement between the parties and shall be binding on the parties when accepted by the Client. No modification, termination, or waiver of any provisions of this Agreement shall be binding upon a Party unless in writing signed by an authorized officer of the relevant Party(ies). No provision of any purchase order or other document issued by Client, which purports to alter, vary, modify, or add to the provisions of this Agreement, shall be binding upon Supplier or effective for any purpose unless accepted by Supplier in writing.
It is further expressly understood and agreed that there being no expectations to the contrary between the parties, no usage of trade or other regular practice or method of dealing either within the computer software industry, Supplier’s industry, or between the parties shall be used to modify, interpret, supplement, or alter in any manner the express terms of this Agreement or any part thereof.
(b) Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, or employment relationship between the parties, nor shall either Party have the right, power, or authority to create any obligation or duty, express or implied, on behalf of the other.
c) The Licensed Materials shall not be exported or re-exported in violation of any export provisions of the Indonesia or any other applicable jurisdiction.
(d) This Agreement may not be assigned, sublicensed, or transferred, in whole or in part, by Client without the prior written consent of Supplier. Any attempted assignment, subletting, or transfer shall be void.
(e) If any provision or provisions of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(f) No delay or failure of Supplier or Client in exercising any right herein and no partial or single exercise thereof shall be deemed of itself to constitute a waiver of such right or any other rights herein. Any waiver by the Supplier or Client of any breach of any provision of this Agreement shall not operate or be
(g) In the event that either Party is unable to perform any of its obligations under this Agreement or to enjoy any of its benefits because of natural disaster, terrorism, fire, explosion, power blackout, earthquake, flood, the elements, strike, embargo, labor disputes, acts of civil or military authority, war, acts of god, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, actions or decrees of governmental bodies or communication line failure not the fault of the affected Party or other causes beyond such Party’s reasonable control (a “Force Majeure Event”) the Party who has been so affected shall immediately give notice to the other Party and shall do everything possible to resume performance. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended. If the period of non-performance exceeds seven (7) days from the receipt of notice of the Force Majeure Event, the Party whose ability to perform has not been so affected may by giving written notice immediately terminate this Agreement as provided in Section 11 construed as a waiver of any subsequent or another breach.
(h) On Supplier’s request, no more frequently than annually, Client shall furnish Supplier with a signed certification (i) verifying that the Licensed Material is being used pursuant to the terms of this Agreement and (ii) listing the locations where the Licensed Material is being used.
(i) This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, and each of which together shall constitute a single instrument.
(j) This Agreement shall be governed by and construed under the laws of Indonesia applicable to contracts made in and wholly to be performed in Indonesia without regard to conflicts of law.