GENERAL TERMS AND CONDITIONS
These General Terms and Conditions together with the provisions and terms under the order form(s) (“Order Form”) and applicable appendix(es) (collectively the “Agreement”) constitute the entire agreement in relation to the provision of services by eBaoTech Corporation and/or its affiliates (“eBaoTech”) to the Client which is defined in details under the applicable Order Form (“Client”).
eBaoTech and Client are referred to individually as a “Party” and collectively as “Parties”.
ARTICLE 1: DEFINITIONS
In this Agreement or any of its Appendixes, unless otherwise specified explicitly in a particular Appendix, the following definitions will apply:
1.1 “Affiliate” shall mean and include any company in which either eBaoTech or Client, or their respective parent company or any subsidiary of such ultimate holding company in all cases owns and/or controls, directly or indirectly, more than fifty percent (50%) of the issued and outstanding share capital, or of the voting rights associated therewith.
1.2 Business Day” means a bank working day; consequently, not to be considered working days are Saturday, Sunday and holidays (including bank holidays) in the country or region of eBaoTech.
1.3 “Confidential Information” means and is not limited to, intellectual property right, computer software systems and programs, data, operational techniques, methodology, ideas, concepts and documents, all information and/or data with regard to personnel, the clients of either Party, its internal instructions and working procedures, its premises and infrastructures, designs, plans, diagrams and outlines, whether tangible or intangible and whether or not stored, compiled, or memorialized physically, electronically, graphically, in writing, or by any means now known or later invented, provided or made available or accessible by a Party to the other. For clarity, the Confidential Information does not include the information which (i) is or becomes published or public knowledge, other than as a result of receiving Party’s conduct or breach of this Agreement; (ii) is obtained from a Third Party being under no obligation of confidentiality to the disclosing Party; or (iii) is independently developed or obtained without breach of this Agreement.
1.4 “Documentation” means the operating manuals, user instructions and other related materials for aiding the Use of the Product and/or Deliverable, including any part or copy of them, to be made available from time to time during this Agreement by eBaoTech.
1.5 “Error” means any verifiable and reproducible failure or inability of the Product and/or Deliverable to perform any material functions set forth in the Documentation when the Product and/or Deliverable is Used. The term “Error” shall not include any failure or inability of the Product and/or Deliverable that (i) results from the misuse or improper use of the Product and/or Deliverable; (ii) does not materially affect the operation and Use of the Product and/or Deliverable; (iii) results from any modification made other than by eBaoTech or under eBaoTech’s consent in writing to the Product and/or Deliverable; and (iv) results from any modification in Third Party software connected to the Product and/or Deliverable not made approved by eBaoTech.
1.6 “Fees” means the fee as specified under this Agreement or Order Form to be charged by eBaoTech for the Services.
1.7 “Intellectual Property Rights” or “IPR” means all vested, contingent and future intellectual property rights, including but not limited to copyrights, design rights (whether registered or unregistered), trade marks, logos, patents (including utility models), service marks, know-how, trade secrets, rights of database design and other proprietary information and all other intellectual and industrial property rights whatsoever under law or international convention, including any applications for the protection or registration of these rights and all renewals and extensions thereof existing in any part of the world whether now known or in the future created.
1.8 “Order Form” means a document which set forth the Product to be subscribed for Use and the period, Territory and/or other limitations for the Use and/or other Services and any other deliverables (“Deliverables”) to be provided by eBaoTech, eBaoTech’s compensation, additional terms and conditions, if any, applicable to a particular engagement or project and such other details as the Parties deem appropriate. Order Form shall form an integral part of the Agreement as an Appendix.
1.9 “Product” means the eBaoTech’s standard software and computer programs as described in the Order Form including any copies of them or their enhancement, modification, amendment or update, if any.
1.10 “Representatives” means the employees of either Party involved on its behalf in the provision or using of the Product or the performance of this Agreement.
1.11 “Services” means providing the Product for Use and/or any platform, on-boarding, configuration, installation, analytic, consulting, implementation, support, maintenance or other services provided by eBaoTech to Client under the terms of this Agreement or applicable Order Form.
1.12 “Source Code” means all logic, logic diagrams, flowcharts, algorithms, routines, subroutines, utilities, models, file structures, coding sheets, codings, source codes, listings, functional specifications, program specifications and all other materials and documents, whether in eye or machine readable form, necessary to enable a reasonably skilled programmer to maintain, amend and enhance the Product without reference to any other person or document.
1.13 “Territory” or “Territories” means the country or region specified in the Order Form in which the Services can be used for Client’s business.
1.14 “Third Party” means any legal entity or person other than a Party to this Agreement. Personnel of eBaoTech or Client are not deemed Third Parties in the meaning of the above.
1.15 “Use” means to load and operate the Product in accordance with the terms of this Agreement or applicable Appendix and the Documentations.
Whenever the definition in an Appendix conflicts with the provisions of this Agreement, the definition in the Appendix take precedence over the definition hereof but only for purpose of this Appendix, while not otherwise amending, modifying, cancelling or releasing the terms and provisions of this Agreement.
ARTICLE 2: SERVICE SCOPE
2.1 Pursuant to this Agreement and applicable Order Form, eBaoTech will provide the Product for Client to Use in the Territory during the period set forth in Order Form thereof.
2.2 In case of any other Services, including customization and consulting services, to be provided by eBaoTech, a separate Order Form will be developed and agreed to by both Parties, which may provide a time schedule for completion of the Services required thereunder (“Schedule”) and Documentation for Deliverables to be provided. The Affiliates of Client, Client and eBaoTech expressly acknowledge and agree that any Schedules shall not be considered firm or fixed performance dates, are only to be regarded as estimated beginning and completion dates for the tasks and activities to be performed hereunder and are expected to be revised during the term of any engagement.
ARTICLE 3: CLIENT’S OBLIGATION AND COOPERATION
3.1 Client shall assist eBaoTech in the performance of the Agreement and be solely responsible for providing to eBaoTech and its personnel the working environment, condition and any other support, at the requested time and at no cost to eBaoTech, through providing, inclusive but not limited to, personnel, rooms, hardware and software, operation system, telecommunications facilities, printer as well as all the data documents, information and access code and authorization, if applicable, required by eBaoTech.
Both Parties agrees that eBaoTech’s performance is dependent upon the timely and effective satisfaction of Client’s responsibilities herein above and its timely decisions and approvals in connection with the Deliverables. Client’s failure to provide such assistance or assign its personnel having skills and authority commensurate with their role as reasonably required by eBaoTech could adversely affect eBaoTech’s ability to provide the Services and Deliverable. To the extent that Client’s failure to perform its obligations under this Agreement or any Appendix, interferes with eBaoTech’s ability to perform its obligations in accordance with Schedule, if applicable, specified in an Appendix, such Schedule shall be adjusted accordingly and additional efforts required shall be billed at eBaoTech’s standard rates on a time & material basis.
3.2 Client warrants that it shall not allow or cause any Third Party, without the prior written consent of eBaoTech, directly or indirectly, to:
a) use or operate the Product or Deliverable out of scope of this Agreement;
b) copy or reproduce any part of the Documentation other than for the Use within a reasonable extent;
c) directly or indirectly decompile, reverse engineer, disassemble or otherwise attempt to derive source code from all or any part of the Product or Deliverable;
d) modify, convert, enhance, adapt, copy or reproduce any part of the Product, and/or Deliverable;
e) alter, change, remove or obscure any notices or indications (including copyright notices, trademarks, or other proprietary rights notices) as to the ownership of the Product, Deliverable and/or Documentation placed on or contained in it; and
f) make or assist any person to make any unauthorized use of Product, Deliverable and/or Documentation.
3.3 Client warrants that it shall and cause its Representatives to:
a) keep confidential the Product, Deliverable and Documentation and limit access to the same to those of its Representatives who either have a need to know or who are engaged in the Use of the those or receipt of the Services;
b) take all steps as necessary from time to time to protect the Confidential Information and Intellectual Property Rights of eBaoTech or Third Parties in the Product, Deliverable and Documentation; and
c) ensure that the Product, Deliverable and Documentation are used in accordance with this Agreement.
3.4 Before putting the Deliverable or Product into Productive Use, Client shall test every part of the Deliverable or Product, whether or not within the scope of warranty and with maintenance services, thoroughly for Error and usability in Client’s day-to-day operations. Client shall take suitable precautions in case the Deliverable or Product should not function correctly, either wholly or in part, through methods, such as provisions of alternative procedures, data backup, Error diagnosis, regular checking of results, etc.
ARTICLE 4: PRICE AND PAYMENT
4.1 Fees. Client shall pay the Fee and expenses as set forth in this Agreement or the applicable Appendix and Order Form. eBaoTech shall provide Services upon receipt of an initial payment of Fees and expenses as set forth hereunder or in the Appendix and Order Form. If the Fee is charged on a time and material basis, the rate stipulated in the Appendix shall be subject to an increase of five percent (5%) on an annual basis or otherwise agreed by both Parties.
4.2 Payment Schedule. Client shall pay the Fee according to the invoicing schedule specified in the applicable Appendix and Order Form. Any anticipated significant out-of-pocket expenses as set forth in the applicable Appendix and Order Form, such as oversea travelling and lodge or other large-amount expenses, if any, shall also be paid in advance and be settled by both Parties according to relevant invoice or receipt. Unless otherwise specified in a particular Appendix or Order Form, Client shall pay to eBaoTech Fees within fifteen (15) days of the date of invoice. Any Fees not paid when due shall accrue interest at the rate of two percent (2%) per month until the date of payment, but not to exceed the maximum amount as allowed by the applicable law. eBaoTech reserves the right to immediately suspend or terminate its Services in the event of Client’s failure to make timely payment.
4.3 Taxes. Unless otherwise explicitly specified in the Appendix and Order Form, Fees and other charges do not include any federal, state or local sales, foreign withholding, use, property, excise, deed, service, or similar taxes (“Taxes”) now or hereafter levied, all of which shall be undertaken and paid by Client. If eBaoTech is required to pay Taxes, (i) Client shall reimburse eBaoTech for such amounts and indemnify eBaoTech for any Taxes and related costs, interest and penalties paid or payable by eBaoTech, or (ii) the amount paid or payable to eBaoTech shall be grossed-up to the extent necessary to ensure that eBaoTech receives and retains, free of liability, a net amount equal to the amount that eBaoTech would have received and retained had no tax deduction or withholding been made. Client agrees to provide all support, reasonably requested by eBaoTech, in obtaining tax exemptions in the applicable countries.
ARTICLE 5: ACCEPTANCE
Where the Product, Deliverable or Service under an applicable Appendix requires user acceptance test (“User Acceptance Test” or “UAT”), the Test Period shall be fifteen (15) days or otherwise agreed to by both Parties in the Appendix or Order Form upon provision of the Product, Deliverable or Service (“Test Period”). During the Test Period, Client will test and verify whether the Product, Deliverables or Services meet the Documentations set forth in the Appendix with the assistance of eBaoTech. If Client notifies eBaoTech of any material Error in any of the Product, Deliverable or Service in writing and describes the Error in reasonable details (“Non-Acceptance Notice”) within the Test Period, eBaoTech promptly shall use reasonable efforts to correct such alleged Error at its own expense and notify Client when the corrections are complete. Client then shall have the right to test the corrected Product, Deliverable or Service according to the initial User Acceptance Test. If, however, eBaoTech does not receive any Non-Acceptance Notice accompanied with sufficient details of the Error within the Test Period, or if Client uses the Product, Deliverable or Service in productive use or otherwise in connection with its conduct of its business, Client shall be deemed to have accepted the Deliverables (“Acceptance”).
ARTICLE 6: PROPRIETARY RIGHTS
6.1 All rights, title and interest in the Service, Product and Deliverable, including their amendment, modification and error correction associated therewith, and all Intellectual Property Rights in the foregoing, all are and shall remain the exclusive property of eBaoTech. eBaoTech retains the right to independently develop any enhancements and updates to the Product and Deliverable and own any IPR and other rights related therewith. No right or license is granted or implied under any of eBaoTech’s Intellectual Property Rights beyond the rights granted in this Agreement.
6.2 Protection of Intellectual Property Right. Client shall not copy, translate, disassemble, or decompile, nor create or attempt to create, by reverse engineering or otherwise, the Source Code or object code of the Product or Deliverable. Client is not permitted to make derivative works of the Products or Deliverable and ownership of any unauthorized derivative works shall vest in eBaoTech. eBaoTech and Client agree to take all reasonable steps and the same protective precautions to protect the IPR as with its own IPR.
ARTICLE 7: CHANGE PROCEDURE
7.1 If either Party wishes to change the Deliverables, Services, Documentations or Schedule, that Party shall notify the other Party giving full details of the changes requested (“Change Request”).
7.2 Within seven (7) Business Days upon receipt of a Change Request by Client, eBaoTech shall notify Client of the impact of the changes including their impact on the Schedule, the Fee and the Documentations (collectively, “Change Impact”). Any Change Request issued by eBaoTech shall be accompanied with a statement on Change Impact.
7.3 Client shall inform eBaoTech whether it wishes to proceed with the changes. If Client wishes to proceed with the changes, the Deliverables, Services, Documentations, Schedule and the Fee shall all be changed as provided in the Change Impact agreed between the Parties. eBaoTech shall continue to work pursuant to the existing Appendix, and neither Party shall be bound by any Change Request, until such change and the Change Impact has been accepted in writing by both Parties.
ARTICLE 8: WARRANTY AND REMEDY
8.1 Warranty. eBaoTech warrants that it will perform the Agreement with commercial reasonable care and skill and in accordance with professional standards. Any further warranty for the Product, Deliverable or Service to be agreed by both Parties shall be specified in the applicable Appendix.
8.2 Express Disclaimer. The warranty set forth above shall exclude and not apply and eBaoTech will not be responsible: (i) if the Product, Deliverable or Service is not used in accordance with the Documentation or this Agreement; or (ii) if the defect is caused by or attributable to an unauthorized modification by Client, Third Party products, or Third Party database not provided by eBaoTech, or (iii) Client’s failure to use or implement corrections, replacement or enhancements to the Product, Deliverable or Service made available by eBaoTech; (iv) Client’s distribution, marketing, or use of the Product, Deliverables or Service for the benefit of Third Party (including its associate or affiliate) not specified in the applicable Appendix; (v) the combination of the Product, Deliverables or Service with materials not supplied by eBaoTech; or (vi) use of information, materials or specifications provided by or on behalf of Client, or (vii) if the defect is caused by or attributable to any act, omissions, fault, default, breach or negligence of Client or its Representatives (collectively, “Exceptions”). EBAOTECH DOES NOT PROVIDE ANY OTHER WARRANTIES THAN THOSE ARE SET FORTH EXPRESSLY UNDER THIS AGREEMENT.
a) Client’s sole and exclusive remedies and eBaoTech’s sole liabilities to the warranty (Exceptions specified in Section 8.2 herein above are excluded expressively from the scope of warranty) for any damages or loss in any way connected with the Product, Deliverables or Service furnished by eBaoTech, whether due to eBaoTech’s negligence or breach of any other duty, shall be, at eBaoTech’s option: (i) to bring the performance of the Product, Deliverables or Service into substantial compliance with the Documentations; (ii) re-performance or re-provision of Product, Deliverable or Services; or (iii) if the above (i) or (ii) is not achievable, deduction or return of an appropriate portion of any payment made or to be made by Client with respect to the applicable portion of the Product or Deliverables. Any further performance under warranty on such part is hereby expressly excluded.
b) Client shall make its complaints in writing, giving a detailed description of the Error. Only the person designated in the appropriate Appendix shall be authorized to make complaints. Delayed, inadequate or unsubstantial complaints shall release eBaoTech from its warranty obligations.
c) If an Error cannot be attributed conclusively to eBaoTech, but could be the result of any of Exceptions specified in Section 8.2 above, Client shall remunerate eBaoTech for searches and Error correction activities, if any, in accordance with the eBaoTech’s standard rates then applicable.
ARTICLE 9: INDEMINIFICATION OF EBAOTECH
9.1 In the event of any alleged or justified claims, liabilities, losses, expenses, fines, penalties, taxes or damages (collectively “Liabilities“) asserted or brought against Client as Intellecutal Property Right infringement to the extent such Liabilities result from the infringement of the Product, Deliverables or Service upon any Third Party’s trade secret, trademark, service mark, copyright or patent issued as of the date of this Agreement (collectively, “Third Party IPR”), eBaoTech shall be entitled at his discretion, option and expense to, (i) obtain for Client the right to continue using the Product, Deliverables or Service; or (ii) make such alterations, modifications or adjustments to the Product, Deliverable or Service so that they become non-infringement without incurring a material diminution in performance or functionality; or (iii) replace the Product, Deliverable or Service with non-infringement substitutes, provided that such substitutes do not entail a material diminution of performance or functionality. If eBaoTech is not able to exercise any of the options or similar remedies set out above, then eBaoTech shall provide to Client a pro rata refund of the Fees relating to the applicable Product, Deliverables or Service or the relevant part, calculated on the remaining book value of each and every payment, based on a straight line five (5) year depreciation from the applicable date of Acceptance, and the applicable Appendix shall terminate forthwith.
9.2 If the above is not sufficiently enough to eliminate and compensate the Liabilities, eBaoTech hereby agrees to indemnify Client against any damages (including costs) that is awarded under the final judgement by a court of competent jurisdiction, or is agreed by eBaoTech in final settlement in respect of any the Liabilities, and defend Client from such Liabilities, provided that such Liabilities are solely attributable to eBaoTech and that Client: (i) promptly notifies eBaoTech of any claim of Third Party IPR subject to indemnification hereunder; (ii) gives eBaoTech full right to control and direct the preparation of the defense and any settlement of any such claim; (iii) gives full cooperation to eBaoTech for the defense of the same; (iv) not admitted liability at any time or otherwise settling or compromising, or attempting to settle or compromise, except upon the express written instructions of eBaoTech; (v) makes no statement or admission prejudicial to eBaoTech, or otherwise does anything, or does not omit to do anything, which may prejudice eBaoTech’s defence; and (vi) complies with eBaoTech’s direction to cease any use of the Product, Deliverables or Service which, in eBaoTech’s sole discretion, is likely to be ruled an infringement of a Third Party IPR.
9.3 The foregoing provisions in this Article 9 shall not apply to any infringement arising out of circumstance of Exceptions specified in Section 8.2 herein above. THE PROVISIONS OF THIS ARTICLE 9 STATE THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF EBAOTECH TO CLIENT, AND IS CLIENT’S SOLE REMEDY WITH RESPECT TO THE INFRINGEMENT OF THIRD-PARTY IPR.
ARTICLE 10: INDEMNIFICATION OF CLIENT
10.1 Client hereby agrees to indemnify, hold harmless and defend eBaoTech from and against all Liabilities incurred by or asserted against eBaoTech in connection with any third party claim to the extent that such Liabilities result from the Exceptions as specified in Section 8.2 herein above. eBaoTech agrees to provide same level and extent cooperation of Client as specified in Section 9.2.
10.2 In the event that Client provides eBaoTech with access to computer programs, specifications, content or other Client-provided materials (“Client Materials”), Client agrees to indemnify, hold harmless and defend eBaoTech from and against any and all Liabilities incurred by or asserted against eBaoTech in connection with any third party claim resulting from eBaoTech’s access to Client Materials in connection with the performance of the Agreement, including Liabilities resulting from the Third Party IPR.
ARTICLE 11: LIMITATION OF LIABILITY
11.1 NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR LOST OF DATA OR SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, NOR SHALL ANY OF THE TERMS OF THIS AGREEMENT BENEFIT OR CREATE ANY RIGHT OR CAUSE OF ACTION IN OR ON BEHALF OF ANY PERSON OR ENTITY OTHER THAN CLIENT AND EBAOTECH.
11.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY, UNDER NO CIRCUMSTANCES SHALL EBAOTECH BE LIABLE TO THE CLIENT OR ANY OTHER PERSON OR ENTITY FOR AN AGGREGATE AMOUNT IN EXCESS OF TWENTY-FIVE PERCENT (25%) THE FEES RECEIVED BY EBAOTECH FOR A PARTICULAR ORDER FORM GIVEN RISE TO THE LIABILITY. ANY ACTION AGAINST EBAOTECH MUST BE BROUGHT WITHIN TWENTY-FOUR (24) MONTHS AFTER THE EVENTS GIVING RISE TO THE CAUSE OF ACTION. THE PROVISIONS OF THIS ARTICLE 11 SHALL APPLY REGARDLESS OF THE FORM OF ACTION, DAMAGE, CLAIM, LIABILITY, COST, EXPENSE, OR LOSS, WHETHER IN CONTRACT OR LAW (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE.
ARTICLE 12: CONFIDENTIALITY
12.1 Each Party shall hold confidential the Confidential Information, the terms and conditions of this Agreement and Appendix or the pricing contained therein to any Third Party. Each Party agrees to protect the other’s Confidential Information at all times and in the same manner as each protects the Confidential Information of its own proprietary and confidential materials, but in no event with less than a reasonable standard of care. Neither Party shall, without the other Party’s prior written consent, disclose any of the Confidential Information of the other Party to any person or entity, except to its bona fide personnel whose access is necessary to enable such Party to perform this Agreement. Each Party agrees that prior to disclosing any Confidential Information of the other Party to any Third Party in the event that such disclosure has been permitted by the other Party, it will obtain from that Third Party a written acknowledgment that such Third Party will be bound by the same terms as specified in this Section hereof with respect to the protection of Confidential Information. The Third Party’s breach of its agreement or undertaking under the above metioned acknowledgement shall be deemed as breach of the Party which discloses Confidential Information to such Third Party. The Confidential term of this Agreement shall be the whole term of this Agreement and five (5) years thereafter.
12.2 Receiving Party may disclose the Confidential Information in compliance with legal requirements upon request of a governmental agency or court, where disclosure is required by operation of law. However, the receiving Party shall promptly notify the disclosing Party upon receiving such request for the disclosing Party to take actions to prevent such disclosure, with receiving Party’s reasonable assistance, unless not permitted by law.
ARTICLE 13: TERM AND TERMINATION
13.1 Term. This Agreement shall become effective as of the date upon first above set forth and shall continue in effect thereafter unless terminated upon the earliest occurrence of the following: (i) immediately upon that all Appendixes and Order Form are expired or terminated unless otherwise agreed by both Parties(ii) thirty (30) days after either Party receives the other Party notice of the first mentioned party’s material breach of any provision of the Agreement (other than Client’s breach of its obligations under Sections 3 or 11, which breach shall result in immediate termination), unless the Party in breach has cured the breach during such thirty (30) day period; or (iii) immediately if either Party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors and in such circumstance. All Appendix hereof shall terminate forthwith automatically.
13.2 End of Term Duties. Upon any termination hereunder, Client and its Affiliates shall immediately cease Use of all eBaoTech IPR or Confidential Information or any information which is proprietary to eBaoTech or any Product, Deliverables, Service or Documentations, unless otherwise set forth in this Agreement or in the applicable Appendix. Within fifteen (15) days after any termination, Client shall deliver to eBaoTech or destroy or erase all original copies or photocopies of eBaoTech’s IPR or Confidential Information or any information proprietary to eBaoTech or Product, Deliverables, Services or Documentations. Client agrees to certify in writing to eBaoTech that it and each of its Affiliates has performed the foregoing. In the event of any termination hereunder, either Party’s obligations incurred prior to the termination shall not be affected.
ARTICLE 14: FORCE MAJEURE
Any delay or nonperformance of any provision of this Agreement (other than for the payment of amounts due hereunder) caused by unforeseeable conditions beyond the reasonable control of the performing party shall not constitute a breach of this Agreement, and the time for performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance.
ARTICLE 15: INDEPENDENT CONTRACTOR
The relationship between eBaoTech and Client shall be that of a service provider and a client and not that of a principal and agent, partnership, joint venture or any other association. Neither Party shall make any warranties or representations, or assume any obligations on the other Party’s behalf except as may be expressly permitted hereby and none have been made except as set forth herein. Each Party shall be solely responsible for the actions of its respective personnel, agents and Representatives. No terms shall be implied or otherwise imposed except as explicitly set forth herein.
ARTICLE 16: DISPUTE RESOLUTION
16.1 Informal Resolution. If either Party believes in good faith that the other Party has breached any material terms of this Agreement, then such Party shall notify the other Party in writing, with reasonable details on the nature of the alleged breach (a “Notice of Breach”). If the other Party does not dispute the validity of the Notice of Breach, then it shall promptly undertake to cure the breach described therein. If, however, the other Party disputes the validity of the Notice of Breach, then the Parties shall conduct in accordance with the following steps or as otherwise specified in the applicable Appendix: (i) the dispute shall first be submitted for resolution to the Representatives of each Party then in charge of the administration of this Agreement, failure to resolve it within fifteen (15) Busines Days from the date on which the dispute is first submitted for resolution, (ii) the dispute shall be submitted to the Directors (or persons of comparable authority) of each Party who have responsibility for such matters, failure to resolve this within fifteen (15) Business Days after the date on which this event is submitted to the Directors, (iii) the dispute shall be submitted to the General Manager (or persons of comparable authority) of each Party for resolution, and failure to resolve this within (15) Busines Days after the date on which this event is submitted to General Manager, (iv) either Party shall be free to pursue to solve the dispute according to Section 16.2 hereof.
16.2 Arbitration. Except for the right of either Party to apply to a court of competent jurisdiction for an injunction or other relief available under applicable law to preserve the status quo or prevent irreparable harm pending the selection and confirmation of a panel of arbitrators, and for the right of eBaoTech to bring suit on an open account for any payments due eBaoTech hereunder, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in Singapore International Arbitration Center, in accordance with its then in effect arbitration rules. Arbitration shall be conducted in English language by a panel of three (3) arbitrators, one (1) arbitrator selected by eBaoTech, one (1) arbitrator selected by Client and the third one, who shall be chairman of the arbitration, selected by agreement of the other two (2) arbitrators. The arbitrators shall have background or experience in computer law, computer science, or marketing of computer industry products. The arbitration proceedings and the award shall be kept strictly confidential and that obligations under this Section shall survive termination or expiration of this Agreement. The arbitral award shall be final and binding upon the Parties.
ARTICLE 17: GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the law of the Republic of Singapore without reference to its conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
ARTICLE 18: MISCELLANEOUS
18.1 Notices. Both Parties shall designate a contact person to be its business contact in addition to its management. The contact persons shall ensure effective cooperation between the Parties. All notices, demands, correspondences or reports which are required or may be given pursuant to this Agreement shall be in writing and be deemed duly given when (i) delivered to the respective offices of eBaoTech and Client at the addresses first set forth above or as the Party may otherwise notify to the other Party, and (ii) notified to the respective contact person of the other Party through electronic mail.
18.2 Press Releases and Client List Reference. Neither party shall issue any press release concerning eBaoTech’s work without the other’s prior written consent. Nevertheless, eBaoTech may identify Client as a client of eBaoTech (using Client’s name and logo) and generally describe the nature of the Services and project in eBaoTech’s advertisement or promotional materials, presentations, and proposals to current and prospective clients.
18.3 Non-Solicitation of Employees. Neither Party shall, during the term of this Agreement and for two (2) years after its termination, solicit for hire as an employee, consultant or otherwise any of the other Party’s personnel who have had direct involvement with the Purpose, without such other Party’s express written consent.
18.4 Entire Agreement. This Agreement and any of its Appendixes, as a whole, constitute the entire agreement between eBaoTech and Client as to the subject matter hereof and supersedes all previous negotiations, proposals, commitments, communications, representations, understandings, writings and agreements (including but not limited to any letter of intent) of whatever nature, whether written or oral, unless they are expressly incorporated by reference in this Agreement. No amendments or changes to any of this Agreement shall be valid or binding unless both Parties agree to such amendments in writing, duly executed by legal representative or duly authorised representatives of both Parties.
18.5 Assignment. Either Party may not, without the other Party’s prior written consent, assign, delegate, pledge, or otherwise transfer this Agreement, or any of its rights or obligations hereunder, or the other Party’s Confidential Information, to any party, whether voluntarily or by operation of law, including by way of sale of assets, merger or acquisition. Notwithstanding the foregoing, eBaoTech may assign this Agreement to its Affiliates and may at any time and without prior consent or approval of Client to subcontract all or part of the Services to be provided under this Agreement. eBaoTech is at all times responsible for its careful selection in and instruction to be given to subcontractor. Nevertheless, any Affiliate of Client or eBaoTech may enter into a order form for eBaoTech or Affiliate of eBaoTech to provide Service(s) to that Affiliate of Client.
18.6 No Waiver. No delay or failure by either Party to exercise any of its powers, rights or remedies under this Agreement will operate as a waiver, nor will any single or partial exercise of any such powers, rights or remedies preclude any other or further exercise of them.
18.7 Severability. In case any of the provisions contained in this Agreement is held invalid, illegal or unenforceable in any respect by a competent count or other authority, such invalidity or unenforceability shall not affect the other provisions of this Agreement, and both Parties shall negotiate in good faith a provision, which is valid, legal and enforceable with the meaning closest to the invalidated provision.
18.8 Survival. The provisions of Sections 6.1, 9, 10, 11, 12, 16, 17 and 18 and any other provision which by its nature shall be continued shall survive the termination or expiration of this Agreement.
18.9 Appendices. Each Appendix shall be deemed to include all the terms and provisions of this Agreement and all capitalised terms which are defined in this Agreement shall have the same meaning in an Appendix. In the event of discrepancies between the contractual documents, they shall apply in the following order of precedence: Appendix, including its annexes (latest, ascending to oldest), and then, this Agreement. For purpose of avoidance of confusion, the part in the Appendix shall take precedence over the provisions of this Agreement but only for the purpose of this particular project subject to the Appendix, while not otherwise amending, modifying, cancelling or releasing the terms and provisions of this Agreement.