1. SAAS SERVICES AND SUPPORT
(a) Subject to the terms of this Agreement, Voltin will use commercially reasonable efforts to provide Customer Services in accordance with Service Level Terms attached hereto as 0. As part of the registration process, Customer will identify an administrative username and password for Customer’s Voltin account. Voltin reserves the right to refuse registration of or cancel passwords it deems inappropriate.
(b) Subject to the terms hereof, Voltin will provide Customer with reasonable technical support services in accordance with the terms set forth in Annex C.
2. RESTRICTIONS AND RESPONSIBILITIES
(a) Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to Services (“Software”); modify, translate, or create derivative works based on Services or any Software (except to the extent expressly permitted by Voltin or authorized within Services); use Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
(b) Customer represents, covenants, and warrants that Customer will use Services only in compliance with Voltin’s standard published policies then in effect (“Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Voltin against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Voltin has no obligation to monitor Customer’s use of Services, Voltin may do so and may prohibit any use of Services it believes may be (or alleged to be) in violation of the foregoing.
(c) Customer will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer will also be responsible for maintaining the security of Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or Equipment with or without Customer’s knowledge or consent.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
(a) Each party (“Receiving Party”) understands that the other party (“Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of Disclosing Party). Proprietary Information of Voltin includes non-public information regarding features, functionality and performance of Service. Proprietary Information of Customer includes non-public data provided by Customer to Voltin to enable the provision of Services (“Customer Data”).
(b) Receiving Party agrees:
(i) to take reasonable precautions to protect such Proprietary Information, and
(ii) not to use (except in performance of Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.
(c) Disclosing Party agrees that the foregoing will not apply with respect to any information after five (5) years following the disclosure thereof or any information that Receiving Party can document:
(i) is or becomes generally available to the public, or
(ii) was in its possession or known by it prior to receipt from Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or
(iii) was independently developed without use of any Proprietary Information of Disclosing Party or (e) is required to be disclosed by law.
(d) Customer will own all right, title and interest in and to Customer Data, as well as the data based on or derived from Customer Data and provided to Customer as part of Services, however, limited to the following data. Voltin will own and retain all right, title and interest in and to (a) Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
(e) Notwithstanding anything to the contrary, Voltin will have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Voltin will be free (during and after the term hereof) to (i) use such information and data to improve and enhance Services and for other development, diagnostic and corrective purposes in connection with Services and other Voltin offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
4. PAYMENT OF FEES
(a) Customer will pay to Voltin then applicable fees described in the Order Form for Services and Implementation Services in accordance with the terms therein (“Fees”). If Customer’s use of Services exceeds Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer will be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Voltin reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Voltin has billed Customer incorrectly, Customer must contact Voltin no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Voltin’s customer support department.
(b) Voltin may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Voltin thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer will be responsible for all taxes associated with Services.
5. TERM AND TERMINATION
(a) Subject to earlier termination as provided below, this Agreement is for Initial Service Term as specified in Order Form and will be automatically renewed for additional periods of the same duration as Initial Service Term (collectively, “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
(b) In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for Services up to and including the last day on which Services are provided. Upon any termination, Voltin will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Voltin may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. SOFTWARE WARRANTY AND DISCLAIMER
(a) Voltin will use reasonable efforts consistent with prevailing industry standards to maintain Services in a manner which minimizes errors and interruptions in Services and will perform Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Voltin or by third-party providers, or because of other causes beyond Voltin’s reasonable control, but Voltin will use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
(b) However, Voltin does not warrant that services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of services. Except as expressly set forth in this section, services and implementation services are provided “as is” and Voltin disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.
7. LIMITATION OF LIABILITY
Notwithstanding anything to contrary, except for bodily injury of a person, Voltin and its suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees will not be responsible or liable with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory:
(a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business;
(b) for any indirect, exemplary, incidental, special or consequential damages;
(c) for any matter beyond Voltin’s reasonable control; or
(d) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by customer to Voltin for the services under this agreement in the twelve (12) months prior to the act that gave rise to the liability, in each case, whether or not Voltin has been advised of the possibility of such damages.
8. INSPECTION REPORT WARRANTY AND DISCLAIMER
Voltin will not be liable for any loss, damage, cost or expense, whatsoever, suffered or incurred by any Person other than the Customer in connection with the use of the Inspection Report provided pursuant to this agreement for any purpose or in any way, including the use of this report for any purpose connected with the sale, purchase, or use of the Property or the giving of security over the Property, to the extent permissible by law.
The only Person to whom Voltin may be liable and to whom losses arising in contract or tort sustained may be payable by is the Customer named in this Agreement.
Voltin warrants that the Customer’s assessment documentation and report is not a guarantee but is an informed statement of the condition of the inspected portion of the building or facility. Voltin accepts no liability with respect to work carried out by other professionals, trades, consultants or practitioners as it is the End Customer’s responsibility to make appropriate contractual agreements with such person(s).
(a) If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Voltin’s prior written consent. Voltin may transfer and assign any of its rights and obligations under this Agreement without consent.
(b) This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
(c) No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Voltin in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement will be governed by the laws of the Republic of Singapore without regard to its conflict of laws provisions.
(d) The parties will work together in good faith to issue at least one mutually agreed upon press release within (ninety) 90 days of Effective Date, and Customer otherwise agrees to reasonably cooperate with Voltin to serve as a reference account upon request.