1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement:
"Agreement" means the Purchase Order and these terms and conditions;
“AVCJ Content” means Content and Third Party Content;
“Content” means any content, formats, software and/or databases created by or on behalf of AVCJ, which is included in the Product, and any user manuals provided by AVCJ to the Subscriber or any Permitted User;
"Force Majeure" means circumstances beyond the relevant party’s control, including acts of God, war, civil unrest, terrorist attack, strike, lock-out or other industrial action and transport or computer failure including any failure or breakdown of related systems upon which the operation of the Product is dependant;
“IPR” means any and all intellectual property rights including trademarks, copyright, moral rights, know-how, and all other intellectual property and proprietary information rights (including confidential information) as may exist now or hereafter come into existence; all modifications, continuations, renewals and extension of any of the foregoing arising under the laws of any country, state or jurisdiction in the world;
"Initial Period" means the period specified as such in the Purchase Order;
"Password" means any unique words to be provided by AVCJ for Permitted Users to obtain access to certain parts of the Product;
"Permitted User" only means an employee of Subscriber who is in the team, department and/or office specified in the Purchase Order’s Permitted User section;
"Product" means all of the services and/or products listed on the Purchase Order, and includes the Website and all AVCJ Content ordered by and delivered to the Subscriber and/or any Permitted User;
"Purchase Order" means the purchase order attached to these terms and conditions;
"Start Date" means the start date for the Initial Period as stated in the Purchase Order;
"Subscriber" means the party detailed as such in the Purchase Order;
"Subscription Fee" means the fee specified in the Purchase Order, as amended from time to time in accordance with clause 2.3;
“Third Party Content” means any content, formats, software and/or databases created by third parties which is included in the Product; and
“Website” means any website operated by AVCJ from time to time for the purposes of providing the Product (or any part thereof).
1.2 In this Agreement (except where the context otherwise requires) reference to a clause means a clause of this Agreement; clause headings are included for convenience only and shall not affect the interpretation of this Agreement; use of the singular includes the plural and vice versa; use of any gender includes the other genders; any reference to a statute shall be construed as referring to such legislation as amended and in force from time to time; any phrase introduced by the term “including”, “include”, or any similar expression shall be construed as illustrative and shall not limit the sense of the words following those terms.
2. PAYMENT OF FEES
2.1 AVCJ shall send Subscriber an invoice for the Subscription Fee as soon as reasonably practicable after the date of the Purchase Order. This invoice shall become payable immediately and shall be paid in full by Subscriber within 30 days of receipt by Subscriber.
2.2 The amounts payable by Subscriber under this Agreement are exclusive of any applicable tax which (if applicable) shall also be paid by Subscriber. Subscriber shall pay all amounts payable by it under this Agreement free and clear of all deductions or withholdings unless the law requires a deduction or withholding. If a deduction or withholding is required by law, Subscriber shall pay such additional amount as will ensure that the net amount AVCJ receives (after account is taken of any such deduction or withholding in respect of the additional amount) equals the full amount which it would have received had the deduction or withholding not been required. AVCJ shall comply with all reasonable requests from Subscriber to file, or to provide Subscriber with, such forms, statements or certificates as shall enable AVCJ or Subscriber to claim a reduced rate of tax or exemption from tax in accordance with the applicable double tax treaty with respect to any withholding taxes required to be borne by the Subscriber pursuant to this Agreement.
2.3 If this Agreement continues in force after the Initial Period, the Subscription Fee shall become payable on a pro rata basis at the end of each month. AVCJ may increase the Subscription Fee on giving Subscriber not less than 30 days' written notice, provided that no such notice is given before the date 30 days prior to the first anniversary of the Start Date. If Subscriber is unwilling to accept the increase in Subscription Fee it may terminate this Agreement on 15 days’ written notice.
3. INTELLECTUAL PROPERTY RIGHTS
3.1 AVCJ grants to Subscriber a non-transferable, non-assignable, non-sublicenseable and non-exclusive licence to allow Permitted Users to access and use the Product on the terms of and for the duration of this Agreement.
3.2 AVCJ shall provide Subscriber with the Password on or before the Start Date.
3.3 All IPR subsisting in or used in connection with the Product are and shall remain the sole property of AVCJ and its licensors. All present and future rights in and title to the Product, including the right to grant access to it (or any part of it) via any present or future technology, are solely and exclusively reserved to AVCJ.
3.4 Subscriber acknowledges that each of the Website has been developed by AVCJ through substantial amounts of work, time and expense. Subscriber further acknowledges that the selection and arrangement of any such information is original to AVCJ.
3.5 AVCJ shall indemnify Subscriber from and against all claims and expenses (including reasonable legal expenses) actually incurred as a direct result of a claim that the use of the Content by the Subscriber infringes any third party’s IPRs provided that Subscriber promptly notifies AVCJ in writing of the claim, allows AVCJ exclusive control of the defence, and reasonably cooperates with AVCJ in the defence at AVCJ’s reasonable expense. AVCJ shall have no liability for any infringement claim to the extent based on (i) any use of the Product or software within it other than in accordance with AVCJ’s instructions or (ii) the combination, operation or use of software in the Product with products or data not furnished and/or approved by AVCJ.
4. RESTRICTIONS ON USE
4.1 Subscriber undertakes that it shall at all times:
4.1.1 only allow Permitted Users to make use of and have access to the Product;
4.1.2 only use the Product for the internal purposes of its own business. For the avoidance of doubt, it shall not forward (and shall procure that no Permitted User shall forward) via email, printed matter or any other means any AVCJ Content to anyone other than Permitted Users;
4.1.3 not copy or part thereof or any other part of the Product, nor transfer, sell, loan, rent, lease or assign any AVCJ Content;
4.1.4 not duplicate, modify or distribute, reverse engineer, create derivative works of, decompile, disassemble, translate, transmit, arrange, modify, copy, bundle, sell, sub-license, export, transfer, loan, rent, lease, assign or adapt any portion of any software within the Product, nor merge or incorporate it with any other software nor permit any third party to do so, except solely to the extent permitted by applicable law;
4.1.5 maintain all security measures as may be reasonably required to prevent unauthorised access to and use of the Product (or part thereof) and the Password, and disclose the Password only to Permitted Users;
4.1.6 not in any circumstances use, nor allow any third party to use, any automated software, process, programme, robot, web crawler, spider, data mining, trawling, “screen scraping” or other similar software (regardless of whether or not the resulting information would then be used for its internal purposes) to access any part of the Product and not disclose the Password to any third party for the purposes of using any such technology; and
4.1.7 promptly upon becoming aware of any breach of this clause 4.1 notify AVCJ thereof.
4.2 Subscriber acknowledges and accepts as reasonable that the undertakings given at clause 4.1 above are of material importance to AVCJ and that AVCJ has entered into this Agreement in reliance on these undertakings. Subscriber acknowledges that without affecting any rights or remedies that AVCJ may have, damages would not be an adequate remedy for any breach by Subscriber of clause 4.1 and that AVCJ shall be entitled to apply for the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of clause 4.1, and that no proof of special damages shall be necessary for the enforcement of this clause.
4.3 A breach of clause 4.1 shall include the occurrence of any usage patterns of the Product (or any part of it) reasonably deemed by AVCJ to indicate such a breach (including unidentified internet protocol ranges accessing, or attempting to access the Product, excessive conflicts on the usage and/or evidence of attempted simultaneous use of one set of access details by two or more parties).
4.4 The Subscriber may allow Permitted Users to republish aggregate information (being information that is not presented or broken down on an entry-specific basis) obtained from the Product, provided that it procures that the Permitted User expressly credits AVCJ as the source of the information used.
5. TERM AND TERMINATION
5.1 This Agreement shall commence on the Start Date, and shall continue for the Initial Period, unless terminated earlier in accordance with this clause 5. Either party may terminate this Agreement with effect from the end of the Initial Period by giving no less than 15 days’ prior written notice to the other party. Where no such notice is given, the Agreement will continue for successive periods of one calendar month after the end of the Initial Period until the earlier of (i) either party giving notice to terminate the Agreement; or (ii) the parties agreeing to enter into a new contract period.
5.2 Either party may terminate this Agreement forthwith if the other party:
5.2.1 is in material default of any obligation imposed upon it by this Agreement, a notice of default has been served, and the defaulting party has not cured such failure to the satisfaction of the non-defaulting party within fifteen (15) business days of receiving the notice of default; and/or
5.2.2 becomes insolvent; or enters into any kind of composition, scheme of arrangement, compromise or arrangement involving that party and its respective creditors generally (or any class of them) save for the purposes of a bona fide company reorganisation; or is unable to pay its debts; or is the subject of an order for the seizure of the assets or a substantial part thereof of that party made by any court having jurisdiction.
5.3 Subscriber may terminate this Agreement in accordance with clause 2.3.
5.4 Termination shall not relieve Subscriber of its obligations to make any payments due to AVCJ which are outstanding as at the date of termination. Termination shall not affect any accrued rights of either party existing as at the date of termination. Clauses 3.3, 5, 6, 7 and 9.6 shall remain in full force and effect notwithstanding termination.
5.5 AVCJ shall have the right to disable the Password, and cease providing any access to, or delivering any part of, the Product, immediately upon termination of this Agreement for any reason, or if Subscriber fails to pay the Subscription Fee when due.
6.1 Subscriber acknowledges and agrees as reasonable that save to the extent expressly stated otherwise in this Agreement (a) use of the Product by it and/or by any Permitted User is at Subscriber’s sole risk and (b) everything contained in the Product is provided “as is” and “as available” and that AVCJ makes no warranty or representation of any kind, whether statutory, express or implied in relation to the Product including merchantability, non-infringement, title or fitness for purpose and/or use.
6.2 Whilst AVCJ obtains information in good faith from sources which AVCJ considers to be reliable, Subscriber acknowledges that the AVCJ Content is based on information supplied to AVCJ by third parties and is not independently verified by AVCJ. AVCJ does not guarantee the sequence, accuracy, completeness and/or timeliness of the Product. The Product is not intended to and does not provide tax, legal or investment advice. Subscriber should seek independent tax, legal and/or investment advice before acting on information obtained from the Product. Consequently, AVCJ shall not be under, and excludes to the fullest extent permitted by law all liability to Subscriber for, any liability whatsoever in respect of (a) any mistakes, errors, inaccuracies or omissions in, or incompleteness of or in the Product (b) delays in updating any part of the Product or non-availability thereof (c) loss of profit, business revenue, goodwill and anticipated savings; (d) trading, investment or other losses which Subscriber may incur as a result of use of or reliance upon the Product; (e) internet failure, and/or failure of Subscriber to have in place any necessary software or equipment to access any part of the Product.
6.3 Each party excludes liability for any indirect, special, incidental and/or consequential loss and/or damage incurred by the other party in connection with this Agreement.
6.4 AVCJ’s total aggregate liability to Subscriber shall be limited to a sum equal to the Subscription Fees paid in the twelve month period immediately preceding the date when the events giving rise to Subscriber's claim occurred.
6.5 Notwithstanding any other provision of this Agreement, neither party excludes or limits liability to the extent that the same may not be excluded or limited under governing law.
Each party shall keep confidential all information of the other party as may reasonably be deemed to be confidential, and shall not disclose the same to any other party (save as specifically permitted by this Agreement, and/or save as required by law or regulatory authority). Subscriber agrees that AVCJ’s confidential information includes the terms of this Agreement (and any previous agreement between the parties concerning the product), the Password, the Subscription Fee, (including, in each case, any increase) the AVCJ Content and all details of the Product and the software contained in it.
8.1 AVCJ shall, during its normal business hours provide:
8.1.1 telephone assistance to Subscriber; and
8.1.2 email support to any Permitted Users, regarding any difficulties the Subscriber and/or Permitted User is having in using or operating the Product.
8.2 The Subscriber acknowledges that:
8.2.1 while AVCJ shall use reasonable endeavours to respond to all enquiries within 1 business day, AVCJ makes no representations or warranties as to a timely response;
8.2.2 AVCJ accepts no responsibility for any problems relating to hardware, internet, intranet, on-line access, operating system software or any other software other than the Product.
9.1 Neither party shall be under any liability to the other party for any breach of this Agreement which arises by reason of Force Majeure (provided that this shall not relieve any breach of any obligation to pay).
9.2 Neither party shall assign, transfer or sub-license any of its rights or obligations under this Agreement except (i) (in the case of AVCJ only) to any member of AVCJ’s corporate group, (ii) any entity acquiring all or substantially all of the assigning party’s assets, or (iii) the successor in a merger or acquisition of the assigning party. This Agreement shall not be deemed to create any rights or causes of action in or on behalf of any third parties or to create any obligations of the Subscriber or AVCJ to any such third parties.
9.3 Failure or neglect by either party to enforce any of the provisions of this Agreement at any time shall not be construed or deemed to be a waiver of that party's rights nor shall this in any way affect the validity of the whole or any part of this Agreement, nor prejudice that party's rights to take subsequent action. If any part of any provision of this Agreement shall be or become invalid, unlawful or unenforceable to any extent, then the remainder of such provision and all other provisions of this Agreement shall continue to be valid and enforceable to the fullest extent permitted by law. This Agreement represents the entire agreement of the parties in relation to the subject matter of this Agreement and supersedes any previous agreement between the parties in relation to the Product including any agreement relating to a trial period of the Product.
9.4 Any notice to be given by either party to the other shall be in writing and delivered by hand or sent by post to the address of the other party as set out in the Purchase Order or such other address as a party may from time to time have communicated to the other in writing. Any such notice shall take effect if delivered or posted, upon delivery
9.5 This Agreement may be executed in any number of counterparts and by the parties on separate counterparts. Variation of this Agreement may only be made in writing, executed by each party.
9.6 This Agreement is governed by Hong Kong law and subject to the exclusive jurisdiction of the courts of Hong Kong, SAR, China.