SOFTWARE AS A SERVICE AGREEMENT
BY CLICKING THE “I ACCEPT” BUTTON YOU AGREE TO BE BOUND BY THE TOU SET FORTH HEREIN. BY USING CLOUDCHERRY OR OUR OTHER PRODUCTS AND SERVICES, YOU AGREE TO BE BOUND BY THE TOU SET FORTH HEREIN WHETHER OR NOT YOU CLICK THE “I ACCEPT” BUTTOM.
BY CLICKING THE “I ACCEPT” BUTTON, OR SIMPLY USING CLOUDCHERRY OR ANY OF THE OTHER APPLICATIONS, PRODUCT OR SERVICES, AND/OR SUBSCRIBING TO THE SERVICES (A) OU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT (B) YOU HEREBY REPRESENT AND WARRANT THAT YOU HAVE THE LAWFUL AUTHORITY AND CAPACITY TO ENTER INTO THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, A LIMITED LIABILITY COMPANY, A PARTNERSHIP OR ANY OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY.
WE AGREE TO ALLOW YOU TO USE CLOUDCHERRY AND/OR OUR OTHER PRODUCTS AND SERVICES SUBJECT TO YOUR COMMITTMENT TO BE IN COMPLIANCE AND CONTINUE TO COMPLY WITH THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT.
FOR THE PURPOSES OF THIS AGREEMENT (I) CAT AND YOU SHALL SOMETIMES BE INDIVIDUALLY REFERRED TO AS “PARTY” AND COLLECTIVELY AS “PARTIES”; (II) ALL REFERENCES TO EITHER PARTY SHALL, UNLESS REPUGNANT TO THE CONTEXT, BE DEEMED TO INCLUDE THEIR RESPECTIVE SUCCESSORS, ASSIGNS, HEIRS OR LEGAL REPRESENTATIVES AS THE CASE MAY; (III) TO THE EXTENT THERE ARE ANY CAPITALIZED TERMS THAT NOT BEEN DEFINED IN THE BODY OF THIS AGREEMENT, THE SAME SHALL HAVE THE MEANINGS ASCRIBED TO THEM BY COMMON USAGE; AND (IV) ANY EXHIBITS OR ANNEXURES O THIS AGREEMENT SHALL BE DEEMED TO FORM PART OF THIS AGREEMENT
NOW, THEREFORE, IN CONSIDERATION OF THE TERMS, CONDITIONS AND COVENANTS HEREINAFTER CONTAINED THE PARTIES HERETO HEREBY AGREE AS FOLLOWS:
1. Background and the Engagement:
1.1. CAT is engaged in the business of product development, data analysis and research
1.2. CAT has developed Cloudcherry, a proprietary application programming interface product (“Product”) as described in our Product Page, will contain a non-exhaustive list of features.
1.3. Cloudcherry is available for download at the Apple App Store and the Android App on Google Play Store and the additional features of the Product can be accessed at the website url [getcloudcherry.com] and its subdomains (“Website”)
1.4. CAT makes no warranty or representation that Cloudcherry or our other Products will address your needs and requirements.
1.5. Subject to the terms and conditions as set out herein, CAT grants you a limited, personal, non-exclusive, non-transferrable and non-sub licensable license (“Licensed Material”) to use Cloudcherry and the other Products, in the manner set out herein, solely during the Term of this Agreement.
1.6 You understand and acknowledge that the Licensed Material is per Device (as defined hereinbelow) basis and is limited to the number of Devices as indicated in Product Page (“Users”). “Device” means a channel, PC, computer, smartphone or other device, usually electronic that processes data according to a set of instructions, which may include but not be limited to workstations, personal computers, laptops, netbooks, personal digital assistants, tablets, and smartphones. You may have access to our platform and collect feedback from multiple Devices.
1.7. You agree and acknowledge that We may create a client profile (“Client Profile”) from the Personal Information you provide during the sign up and that we may use and/or transfer such information to third parties for benchmarking, quality control and enhancing our Products and Services.
2. Services and Subscription Plan:
2.1. We agree to allow You to use Cloudcherry and any other Product and Services (explicitly set out in Our Product Page (“Services”) of CAT, on the terms and conditions set out herein.
2.2. You acknowledge and agree that the Services set out in Our Product Page are those which have been specifically chosen by You in Your sole discretion from the various services offered by CAT.
2.3. Acceptance: The features of the Services shall be deemed to be accepted by you when you begin to use them.
2.4. We agree that you, at your own discretion, may customize the Services by including your logo, brand colors and other such features, designing your own questionnaire and integrating with third party systems by using Our API.
2.5. Services chosen by you and your Users shall collectively be referred to as “Subscription Plan”.
2.6. The Subscription Plan as chosen by You may be modified during the Term of this Agreement. You may choose different Services and/or vary the Users and such modifications to the Subscription Plan shall be subject to and governed by the terms and conditions as set out in this Agreement.
2.7. Modifications to the Subscription Plan will take effect from the ensuing month of receipt of request for such modification by CAT. CAT may accept and give effect to the modifications to the Subscription Plan earlier, at its own discretion.
a) You acknowledges that from time to time during the Term of this Agreement, CAT may apply Upgrades (As defined hereinbelow) to the Product and/or the Services, and that such Upgrades may result in changes the appearance and/or functionality of the Product and/or the Services. “Upgrades” means new versions of, and updates to, the Product and/or the Services, whether for the purpose of fixing an error, bug or other issue in the Product and/or Services or enhancing the functionality of the Product and/or Services.
“Upgrades” means new versions of, and updates to, the Product and/or the Services, whether for the purpose of fixing an error, bug or other issue in the Product and/or Services or enhancing the functionality of the Product and/or Services.
b) Based on the Subscription Plan, You may receive a notification of any such Upgrades and You shall be entitled to download such upgraded version of the Product and/or Services.
c) You shall not be subject to any additional Subscription Fees arising out of the application of the Upgrades, except where:
i. the Upgrade introduces new functionality to the Product and/or Services; and
ii. We charge others for the Upgrade
3. Free Trials:
3.1. CAT, in their sole discretion, may offer free trials of the Services on a limited basis for a maximum of 15 days, commencing on the date that User’s application for a free trial is accepted by CAT. The Services are provided on “AS IS” basis during the free trial period. The free trial period only applies to prospective Users and does not apply to existing Users that have a Subscription Plan. CAT will also not honor a free trial period for Users who were once paying subscribers, cancelled, and have then decided to re-instate their subscription. On the expiry of the free trial period, if You does not wish to subscribe to the Services, this Agreement will automatically terminate upon expiry of the free trial period.
4. Effective Date and Duration:
4.1. This Agreement is effective from the date of acceptance (as indicated by clicking on the “I accept” button, using the Products or Services or otherwise accepting this Agreement) and shall remain in force until terminated in accordance with Section 6 of this Agreement (the “Term”). These TOU are superceded by any written agreement between the Parties with respect to any of the Products or Services or terms and conditions provided hereunder.
5. Fees, Invoicing and Payments:
5.1. Subscription Fees:
a) Based on the Subscription Plan chosen by you, CAT shall charge a monthly fee or annual fee as set out in Pricing (“Subscription Fees”).
b) Subscription Fees will be calculated on a pro-rated basis in respect of any modifications to the Subscription Plan. In processing your monthly or annual subscription fee, we will collect your credit card information, using a secure third party payment gateway (the “Payment Processors”), and we do not store your credit card information on our systems.
c) In case You chooses to switch to a lower Subscription Plan (calculated based on the Subscription Fees) during the currency of a billing period, the lower Subscription Fees shall take effect only from the subsequent billing period.
d) Notwithstanding anything contained herein to the contrary, the Subscription Fees payable by You shall be exclusive of all applicable taxes. You shall be required to make requisite tax deductions at source, if any, which will be paid directly to the appropriate statutory authorities by You. You shall promptly provide CAT with the applicable certificates evidencing its payments of taxes deducted at source to the appropriate statutory authorities.
5.2. Invoicing and Payment:
a) CAT shall send an invoice to You for the Monthly Subscription Fees at the end of each calendar month during the Term. Annual Fees shall be invoiced in the first month of the subscription year.
b) In the first invoice, the Subscription Fees will be calculated on a pro-rated basis from the date of subscription of the Services until the end of the calendar month.
c) The invoices will be sent to the e-mail address provided during the Sign Up and We shall debit Your credit card provided to us in the Sign Up. If the credit card is rejected, you will be given 10 days to pay the invoice through alternative means.
d) In addition to terminating this Agreement in the manner as set forth in Section 6.1, in the event that You delay in making payments due to CAT beyond a period of 15 days from the Invoice Payment Period, You agrees and acknowledges that CAT shall be entitled to:
(i) levy a penal interest for such delayed payment at the rate of 18% per annum for any period during which such default subsists and/or
(ii) suspend provision of the Services without any liability whatsoever for any period during which such default subsists.
(iii) suspend and/or delete Your account and any data associated with such account.
e) All payments shall be made to CAT unless otherwise specifically authorized by CAT.
f) We use Payment Processors to bill you through a payment account linked to your Account on the Services (your “Billing Account”) for use of the paid Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processors in addition to this Agreement. We are not responsible for error by the Payment Processors. By choosing to use paid Services, you agree to pay us, through the Payment Processors, all charges at the prices then in effect for any use of such paid Services in accordance with the applicable payment terms and you authorize us, through the Payment Processors, to charge your chosen payment provider (the “Payment Method”). You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
g) You authorize CAT and our Payment Processors to use your credit card information to invoice and charge your card for the Subscription and other applicable Fees. You agree to update your credit card information to keep it current.
6.1. By CAT: CAT shall be entitled to terminate this Agreement:
a) By providing 30 days prior written notice of such termination; or
b) At any time with immediate effect by notice in writing to You, in the event that You is in breach of any of the terms of this Agreement, and has failed to rectify such breach, within 10 (ten) days of notice of breach by CAT to You
6.2. By You: You shall be entitled to terminate this Agreement by providing 30 days prior written notice of such termination.
6.3. Free Trials: In case of Free Trials, if You do not choose to continue, this Agreement will automatically terminate on the expiry of the free trial period.
6.4. Consequences of Termination:
a) In the event that the Agreement is terminated in the manner as set forth hereinabove, CAT shall not be liable or be required to perform any obligation in any manner whatsoever from the effective date of such termination.
b) Notwithstanding the termination of this Agreement, You shall be liable to make all payments due to CAT (including any penalties for default) until the effective date of termination of this Agreement.
7. Representations and Warranties:
7.1. Each of the Parties hereby represents and warrants that it:
a) Has lawful authority and capacity to enter into this Agreement and in case of a company, is a company validly existing and in good standing under the laws of the country of its registration;
b) Is duly authorized to enter into and perform this Agreement and is not barred by any contractual obligations to any third party from entering into and fulfilling its obligations hereunder;
c) It holds all licenses, approvals and permits required by law to conduct its business;
d) There is no contract of any nature, operative and in force, to which it is a party or under which it may be otherwise bound or subject, which contain any terms or provisions that in any manner restrict, limit, prevent, prohibit or make unlawful the execution of this Agreement;
e) It has not in any manner breached the intellectual property of any third party in the set up and conduct of its business.
7.2. Your Representations and Warranties:
a) All information provided by You to CAT is and shall be true, correct and accurate in all respects
b) It will (i) not use the Services in a manner that: (x) is prohibited by any law or regulation, or to facilitate the violation of any law or regulation; or (yi) will disrupt a third parties’ similar use or (iii) violate the intellectual property rights of any third party (ii) not violate or tamper with the security of the Product. If CAT has reasonable grounds to believe that You is utilizing the Services for any such illegal or disruptive purposes, CAT shall be entitled to suspend the Services immediately with or without notice to You. CAT may terminate the Agreement as contemplated in Section 6.2 if You in fact fail to adhere to the foregoing acceptable use standards.
c) You acknowledges that:
(i) Complex software is never wholly free from defects, errors and bugs, and CAT gives no warranty or representation that the Product will be wholly free from such defects, errors and bugs; (ii) CAT shall not be liable for any failure or default to provide Services on account of any failure or delay by You to configure the Devices for access to the Services. Any configuration or set up of the Devices/operating software for access to the Website and the Services shall be the sole responsibility of You; (iii) CAT shall not be liable for any failure or default to provide Services on account of any failure or delay caused due to the customization of Services as set out in Section 2.4 of this Agreement. You agrees and acknowledges that there will be no reduction in Subscription Fees on account of such failure or delay.
8. CAT’s Rights & Obligations:
8.1. CAT shall have the right to (i) compile statistical and other information related to the performance, operation and use of the Product and Services, and (ii) use information provided by You to create and generate other reports and analyses, and for research, presentation and development purposes (Sections 8.1 (i) and (ii) are collectively referred to as “Analysis”).
8.2. CAT retains all intellectual property rights in its Products and Services and Analyses.
8.3. CAT expressly reserves all rights in the Product. You acknowledge that all rights, title and interest in the Product will remain with CAT and that the Product and Services are licensed on a subscription basis and not “sold” to You.
8.4. You acknowledge that the information provided by You may be used by CAT for any lawful purpose, provided that the information is used only in an anonymized and aggregated form and in a manner that does not permit the identification of You or Your Users.
8.5. During the Term of this Agreement and for a period of 1 (one) year thereafter, CAT shall be entitled to (i) display your name or our website or in promotional materials and use Your trademark for such purposes and (ii) mention your engagement of CAT under this Agreement on any medium (print, television, radio, video, terrestrial, website internet and such media which is in existence today for advertising, display, exhibition, relay, broadcast, transmission, communication). You agree to allow us to do this beginning the day you begin using our Products.
8.6. We may ask you for feedback on our Products and Services. You agree that We shall be entitled to post such feedback, at our sole discretion, on our Website and/or other medium (print, television, radio, video, terrestrial, website internet and such media which is in existence today for advertising, display, exhibition, relay, broadcast, transmission, communication) as a testimonial or otherwise.
8.7. CAT represents and warrants that it uses and shall continue to use Open Source software in some of its products, including software licensed under the GNU General Public License (“GPL”) and such further or other similar licenses, however CAT does not claim any right over the contents of the open source components/libraries used implied, or otherwise.
9. Yours Rights & Obligations:
9.1. You acknowledges that CAT’s performance and deliverables are subject to the timely provision of the requisite data, including but not limited to Your logo, business particulars, product customization choices, and access to social media sites in the format/manner required by CAT;
9.2. if You integrate with our system; You agree to provide CAT, access to and use of data, such as customer data, feedback data, social media data,
9.3. You agrees and undertakes to co-operate and provide all reasonable assistance, information, and documents to CAT from time to time as may be reasonably required to enable CAT to satisfactory perform the Services under this Agreement.
9.4. You agrees and acknowledges that the results and/or reports generated from the use of the Product and/or Licensed Material and/or Services are scientific hypotheses and are not intended to be statements of fact or truth and are starting points for further validation by You;
9.5. You shall procure the respective approvals from requisite persons and/or authorities including but not limited to its customers from whom the data is obtained to give effect to all the terms and conditions contained in this Agreement. Furthermore, You shall ensure that all such data including but not limited to customer information, questions, audio visual feedback, etc. are legitimate, valid and not unlawful, restrained under any jurisdiction.
9.6. You are solely responsible for the content of communications transmitted by You and/or customers of You using the Services.
9.7. You shall maintain at Your sole cost and expense Devices necessary to access our Platform.
9.8. You shall use the Product and/or Services only for lawful purposes. To the extent deemed necessary by You, You shall implement security procedures necessary to limit access to the Product and/or Services to Your authorized Users.
9.9. You also agrees to refrain from taking any steps, such as reverse assembly or reverse compilation, to derive a source code equivalent to the Licensed Material. All Licensed Material furnished to You under this Agreement shall be used by You only for Your internal business purposes, shall not be reproduced or copied in whole or in part, and shall not be removed/deleted from the Devices on which the Product is installed (unless such removal/deletion is pursuant to termination of this Agreement).
9.10. You shall be solely responsible for (i) procuring and maintaining its network connections and telecommunications links from its systems to CAT’s Systems , and (ii) all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Your network connections or telecommunications links or caused by the internet.
9.11. You shall not access, store, distribute or transmit any viruses, or any material during the course of its use of the Services that:
a) Is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; b) Facilitates illegal activity; c) Depicts sexually explicit images; d) Promotes unlawful violence; e) Is discriminatory based on race, gender, color, religious belief, sexual orientation, disability, or any other illegal activity; or f) Causes damage or injury to any person or property; and CAT reserves the right, with or without notice to You, to disable Your access to the Services.
9.12. You are responsible for establishing designated points of contact to interface with CAT.
10. Miscellaneous Provisions:
10.1. Indemnification: You shall defend, indemnify and hold CAT and its officers, directors, employees, harmless from and against all losses, damages including attorneys’ fees imposed on, incurred or arising from or in connection with or relating to, claims, actions and/or allegations in the following cases: a) Breach of representations and warranties (express and implied) contained in this Agreement; b) Any and all third-party claims based upon the content of any communications transmitted by You and/or customers of You using the Services; and c) Violation, infringement or misappropriation of any patent, trade secret, copyright or other intellectual, industrial or other proprietary rights;
10.2. Confidentiality: Except as otherwise provided under this Agreement (including but not limited to as set out in Sections 8.6 and 8.7) , the terms and conditions described in this Agreement including its existence shall be confidential information and shall not be disclosed to any third party other than to the respective professional advisors, employees, agents, consultants on a need basis and provided that in each case the person to whom such confidential information is disclosed undertakes to keep it confidential.
10.3. Survival: Any Section that by its nature should survive termination of this Agreement shall continue to remain in effect even after the termination of this Agreement including but not limited to Sections 7(Representations and Warranties),10.1(Indemnification), 10.2(Confidentiality), 10.4(Governing law and Dispute Resolution,10.10 (Disclaimer of Warranties) and 10.11(Limitation of Liability).
10.5. Further Assurances: Each Party shall, at its own cost and expense from time to time, on being required to do so by any other Party to this Agreement now or at any time in the future, execute and do (or procure to be executed and done by any other necessary party) all such deeds, documents, acts and things as any other Party may from time to time require whether on or after the execution of this Agreement may be necessary to give full effect to this Agreement.
10.4. Governing Law and Dispute Resolution: This Agreement shall be governed by the laws of Delaware and the courts in Delaware shall have the exclusive jurisdiction. Any claim, controversy or dispute (collectively referred to as “Disputes”) arising out of or under this Agreement, if not settled by mutual agreement between the Parties shall be referred to arbitration in accordance with the Arbitration Rules of the American Arbitration Association. The arbitration proceedings shall be conducted by a sole arbitrator to be mutually appointed by the Parties. The arbitral proceedings shall be conducted in English in Delaware and shall be governed by and construed in accordance with the laws of Delaware and such award shall be binding on the Parties.
10.6. Amendment: The Agreement may be amended, modified, superseded, or cancelled, and the same shall be updated online at in the Website. You undertakes to check and verify such amendments on a periodical basis during the Term of this Agreement. Your use of Services after the date of such amended terms shall be deemed to constitute acceptance of such amended terms.
10.7. Severability: If any provision of this Agreement is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision or part of such provision and the remaining part of such provision and all other provisions of this Agreement shall continue to remain in full force and effect
10.8. Assignment, resell, sub-license, transfer, etc.: No right or obligation under this Agreement may be assigned, resold, sub-licensed, and/or transferred by You without the prior written consent of CAT. Further, it is hereby explicitly stated that the CAT shall be entitled to assign, resell and/or transfer (in part or in full) this Agreement to any other person or entity without the consent of You.
10.9. Waiver: The failure of any Party to insist, in one or more instances, upon strict performance of the obligations of this Agreement, or to exercise any rights contained herein, shall not be construed as waiver, or relinquishment for the future, of such obligation or right, which shall remain and continue in full force and effect. Any waiver can only be made by a written instrument.
10.10. Disclaimer of Warranties: (A) CAT hereby explicitly and specifically disclaims any and all warranties, whether written, oral, expressed or implied including, without limiting the generality of the foregoing, any warranty of merchantability or fitness for a particular purpose. Notwithstanding anything contained in this Agreement, CAT does not warrant that the Product and/or Services: (i) will be performed error-free or uninterrupted, or that CAT will correct all Services errors, (ii) will operate in combination with Your Devices, or with any other hardware, software, systems or data not provided by CAT, (iii) will meet Your requirements, specifications or expectations. You further acknowledges that CAT does not control the transfer of data over communications facilities, including the internet, and that the Product and/or Services may be subject to limitations, delays, and other problems inherent in the use of such communications facilities; (B) CAT is not responsible for any (i) delays, delivery failures, or other damage resulting from such problems (collectively “Damages”); (ii) issues related to the performance, operation or security of the Product and/or Services that arise from Your content, applications or third party content. (C) CAT does not make any representation or warranty regarding the reliability, accuracy, completeness, correctness, or usefulness of third party content, and disclaims all liabilities arising from or related to third party content. (D) CAT is not responsible for any Damages caused by third parties, interruptions in connectivity to our Application or Services, third party hardware, software or tools.
10.11. Limitation of Liability: NOTWITHSTANDING ANYTHING CONTAINED ELSEWHERE IN THIS AGREEMENT: (I) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCT OR SERVICES, LOSS OF PROFITS, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. (II) UNDER NO EVENT, CAT’S TOTAL LIABILITY ARISING OUT OF OR UNDER THIS AGREEMENT OR FOR BREACH OF THIS AGREEMENT OR IN CONNECTION WITH THE PROVISION OF ACCESS TO THE PRODUCT AND/OR ANY SERVICES HEREUNDER, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, SHALL EXCEED THE TOTAL SUBSCRIPTION FEES RECEIVED BY CC FROM YOU IN THE CALENDAR MONTH IMMEDIATELY PRECEDING THE DATE OF DISPUTE OR SGD 500 WHICHEVER IS LESSER. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF A PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.(III) CAT OR ANYONE ELSE INVOLVED IN ADMINISTERING, DISTRIBUTING OR PROVIDING THE SERVICES FURTHER EXPLICITLY DISCLAIMS ANY AND ALL LIABILITY FOR ANY MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES COMPUTER VIRUSES OR OTHER HARMFUL, DISABLING COMPUTER CODE, COMPUTER INSTRUCTIONS, CIRCUITRY OR OTHER TECHNOLOGICAL MEANS WHOSE PURPOSE IS TO DISRUPT, DAMAGE OR INTERFERE WITH ANY COMPUTER AND COMMUNICATIONS FACILITIES OR EQUIPMENT (“HARMFUL CODE”) THAT MAY BE TRANSFERRED TO YOUR DEVICES WHEN DOWNLOADING OR OTHERWISE ACCESSING THE PRODUCT AND SERVICES. BY WAY OF CLARIFICATION, HARMFUL CODE SHALL INCLUDE, WITHOUT LIMITATION, ANY CODE CONTAINING VIRUSES, TROJAN HORSES, WORMS OR LIKE DESTRUCTIVE CODE OR CODE THAT WAS INTENTIONALLY WRITTEN TO SELF-REPLICATE. YOU IS ADVISED TO OBTAIN AND USE APPROPRIATE ANTI-VIRUS AND SECURITY SOFTWARE AND TO TAKE ALL OTHER APPROPRIATE MEASURES TO SAFEGUARD THE INTEGRITY OF THEIR DEVICES.
10.12. Intellectual Property: You hereby acknowledges that any and all intellectual property rights (including but not limited to all trademark, copyright, patent, service marks, etc.) and other proprietary rights in and in relation to the Product, Services, Licensed Material and any other materials and information CAT provides to You as part of this Agreement, including without limitation any derivatives, improvements or modifications of the foregoing shall vest wholly completely and fully with CAT throughout the territory of the world and You shall have no right or claim to such intellectual property in any manner whatsoever.
10.13. Non-exclusivity: This Agreement shall not be deemed to create an exclusive relationship between the Parties and CAT shall be entitled to enter into similar arrangements with any other entity without any restriction whatsoever.
10.14. Nature of Agreement: Nothing in this Agreement is to be construed to make either Party a partner, an agent or legal representative of the other Party for any purpose. Neither Party shall have any right or authority to accept any service of process or to receive any notices on behalf of the other Party or to enter into any commitments, undertakings, or agreements purporting to obligate the other Party in any way, or to amend, modify or vary any existing agreements to which the other Party may be a party.
10.15. Neither Party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including but not limited to acts of God, government restrictions, wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected (including mechanical, electronic, or communications failure).
10.16. Notices: Any notice to any Party shall be in writing and posted, delivered personally or sent by courier, registered or certified mail or facsimile transmission to the address as specified hereinbelow and for proving service by such Party it shall be sufficient to show that the envelope containing the notice was properly addressed and posted/delivered/sent to the said address/facsimile number. Additionally, CAT shall be entitled to send Notices by e-mail.
10.17. The Agreement, including any documents attached hereto, all of which are hereby incorporated by reference, constitutes the complete and exclusive statement of agreement between the Parties and supersedes all prior agreements, understandings and communication of any kind by and between the Parties, whether written or oral, with respect to the subject matter hereof.