GENERAL TERMS AND CONDITIONS
These General Terms and Conditions together with the provisions under the order form(s) (“Order Form”) and applicable appendix(es) (collectively, “Agreement”) constitute the entire agreement in relation to the provision of the Platform and Services by eBaoTech (“eBaoTech”) to clients (“Client”). The specific entity of eBaoTech or Client shall be defined under an Order Form to be signed by eBaoTech and Client. eBaoTech and Client are referred to individually as a “Party” and collectively as the “Parties”.
SECTION 1: DEFINITIONS
In this Agreement, unless otherwise specified explicitly in a particular Order Form or appendix, the following definitions will apply:
1.1 “Affiliate” means and includes 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 “Working 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, clients of either Party, its internal instructions and working procedures, either Party’s premises and infrastructures, designs, plans, diagrams and outlines, whether tangible or intangible, and whether or not stored, compiled, or memorized physically, electronically, graphically, in writing, or by any means now known or subsequently invented, provided or made available or accessible by a Party to the other Party. 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 “Client Content” means content that Client or any Client’s End User transfers to eBaoTech for processing, storage or hosting by the Services in connection with Platform account and any computational results that Client or any Client’s End User derived from the foregoing through their Use of the Services.
1.5 “Documentation” means the operating manuals, user instructions, guidelines, release notes, and other related materials for aiding the Use of the Platform and/or Deliverable, including any part or copy of them, to be made available from time to time during this Agreement by eBaoTech.
1.6 “Error” means any verifiable and reproducible failure or inability of the Platform and/or Deliverable to perform any material functions set forth in the Documentation when the Platform and/or Deliverable is Used. The term “Error” shall not include any failure or inability of the Platform and/or Deliverable that (i) results from the misuse or improper Use of the Platform and/or Deliverable; (ii) does not materially affect the operation and Use of the Platform and/or Deliverable; (iii) results from any modification made to the Platform and/or Deliverable, other than by eBaoTech or under eBaoTech’s consent in writing; or (iv) results from any modification in Client’s or Third Party’s software or application connected to the Platform and/or Deliverable not authorized by eBaoTech.
1.7 “End User” means any individual or entity introduced and permitted by the Client to, directly or indirectly through another user (i) accesses or uses Client Content, or (ii) otherwise accesses or uses the Services under Client account. The term “End User” does not include individuals or entities when they are accessing or using the Services or any content under their own account, rather than under Client’s account.
1.8 “Fees” means the fee as specified under this Agreement or Order Form to be charged by eBaoTech for the Services or Platform.
1.9 “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), trademarks, 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 created in the future.
1.10 “Order Form” means a document which set forth the Services in relation to the Platform to be subscribed for Use by Client, which may include but not limited to Services to be rendered, scope of Services, Service period, Territory restrictions and/or limitations for the Use, and/or any deliverables (“Deliverables”) to be provided by eBaoTech, eBaoTech’s compensation, additional terms and conditions, if any, applicable to a particular engagement and such other details as the Parties deem appropriate. Order Form shall form an integral part of the Agreement.
1.11 “Personal Data” means any information relating to an identified or identifiable natural person (“Data Subject”) as defined under the applicable data protection law.
1.12 “Platform” means eBaoTech’s standard InsureMO platform services as described in the Order Form.
1.13 “Representatives” means the employees of either Party involved on its behalf in the provision or Use of the Platform, Deliverables, Services, or otherwise in the performance of this Agreement.
1.14 “Services” means the Platform to be provided and/or any other services to be performed and specified by the Parties in an Order Form containing a detailed description of and fees for such Services.
1.15 “Territory” means the country or region specified in the Order Form in which the Platform, Deliverable and/or Services can be Used by Client.
1.16 “Third Party” means any legal entity or person other than a Party to this Agreement. Personnel or Representatives of eBaoTech and/or Client are not deemed Third Parties in the meaning of the above.
1.17 “Use” means to access and operate the Platform or Deliverables in accordance with the terms of this Agreement, Order Form and/or the Documentations.
Whenever any definition in an Order Form or appendix conflicts with the term and provision of this Agreement, the definition in the Order Form or appendix shall take precedence over the definition hereof but only for the purpose of that Order Form or appendix, while not otherwise amending, modifying, cancelling, or releasing the term and provision of this Agreement.
SECTION 2: PROVISION OF SERVICES
eBaoTech will provide the Services for Client to Use in the Territory during the period according to these General Terms and Conditions, the applicable, Order Form and/or the appendix as entered into by the Parties.
SECTION 3: CLIENT’S OBLIGATIONS AND COOPERATION
3.1 Client shall assist eBaoTech in the performance of the Agreement and be solely responsible for providing to eBaoTech and its Representatives the requested conditions and any other support, at the requested time and at no cost to eBaoTech.
3.2 Client warrants that any business activities by itself and/or End User in connection with or arising from the Use of the Services are in compliance with all applicable legal and regulatory requirements and/or any agreements binding upon it. Client shall also be equipped with the administrative licenses, if required by the applicable laws and regulations, to conduct its business.
3.3 Client warrants that it shall not and shall not allow any Third Party, without the prior written consent of eBaoTech, directly or indirectly, to:
a) use or operate the Platform or Deliverables out of scope of the Agreement;
b) copy or reproduce any part of the Documentation other than for the Use;
c) modify, convert, enhance, adapt, or reproduce the Platform or Deliverables or any part thereof;
d) alter, change, remove, or obscure any indications (including copyright notices, trademarks, or other proprietary rights notices) as to the ownership of the Platform, Deliverables and/or Documentation placed on or contained thereon;
e) make or assist any person to make any unauthorized use or access of Platform, Deliverables and/or Documentation; and
f) sell, market, transfer or sublicense the log-in credentials and private keys
3.4 Client shall be deemed to have taken any action if Client permits, assists or facilitates its Representative or an End User to take related to this Agreement, Client Content, or Use of Services. The Client is responsible for its own Use or End Users’ Use of Client Content and the Services, and for their compliance with Client’s obligations under this Agreement. If Client becomes aware of any violation of its obligations under this Agreement caused by an End User, Client shall immediately suspend access to Client Content and the Services by such End User. eBaoTech shall not be obligated to provide any support or Services directly to End Users unless there is a separate agreement with Client or End User obligating eBaoTech to provide such support or Services
3.5 Client warrants that it shall and shall cause its Representatives and/or End User to:
a) keep confidential the Platform, Deliverables, and Documentation and limit access to those who have a need to know or are engaged in the Use of the same;
b) take all steps as necessary from time to time to protect the Confidential Information and IPR of eBaoTech or Third Parties in the Platform, Deliverables, and Documentation; and
c) ensure the Platform or Deliverables are Used pursuant to the Agreement.
3.6 Client shall and shall procure the End User to take suitable precautions in case the Deliverables or Platform should not function correctly, either wholly or in part, through methods, such as provisions of alternative procedures, Error diagnosis, regular checking of results, etc.
3.7 Client represents and warrants that it owns and/or has lawful right to possess and process the Client Contents, materials and data (including but not limited to Personal Data and transaction data) which runs on the Services or causes to interface with the Services or which is uploaded for the Services or posted or submitted or otherwise Used during availing of the Services by the Client and/or End User, and such Client Contents, materials and data do not and will not violate any terms of this Agreement, or any applicable laws, or infringe the legitimate rights or interests of any individual or any Third Party. Client further warrants that it has obtained consent from the respective Data Subjects prior to the provision of Personal Data or there is other legitimate basis for the provision of data. Client is solely responsible for the development, content, consent, operation, maintenance, and use of data and Client Content in relation to the Services. In the event Client breaches or eBaoTech has justified reasons to believe that Client is in breach of any provisions above, eBaoTech shall have the right to immediately delete any of the Personal Data, and/or Client Content, or to take other legitimate and appropriate actions and measures, and/or to suspend the provision of Platform or Services with a prior notice to the Client. Client shall be solely responsible for the losses and damages incurred as a result of its breach of the warranties and undertakings above, and shall indemnify eBaoTech for any and all the claims, damages, penalties and otherwise, losses so caused to eBaoTech.
3.8 Client shall be responsible for properly accessing and Using the Services and taking appropriate and routine actions to secure, protect, archive and backup Client’s accounts and Client Content and data in a manner that will provide appropriate security and protection, which might include use of encryption to protect Client Content and data from unauthorized access.
SECTION 4: ACCOUNT AND PASSWORD SECURITY
4.1 The Use of the Services by Client entails access to the Platform via account name and password. Client shall be responsible for keeping its account information and password in strict confidence (including but not limited to resetting the account password regularly) and shall remain responsible for any activities conducted in its account(s).
4.2 Client shall notify eBaoTech immediately if its account is used or accessed without authorization or if there is any other security breach. Client agrees that any unauthorized access or use of its account or password as a result of failure to keep confidential its account information shall be at the Client’s own risk.
SECTION 5: TEMPORARY SUSPENSION
5.1 eBaoTech may suspend Client’s right to access or Use any portion or all of the Services immediately upon notice to Client if it determines :
a) Use of the Services by Client and/or an End User: (i) poses a security risk to the Services or any Third Party; or (ii) could adversely impact Platform and/or the Services; or (iii) could subject eBaoTech, its Affiliates, or any Third Party to liability, or (iv) could be fraudulent;
b) Client is in breach of this Agreement;
c) Client is in breach of its payment obligations under Section 6; or
d) Client has ceased to operate in the ordinary course, filed for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors and in such circumstances.
5.2 If eBaoTech suspends Client’s right to access or Use any portion or all of the Services for the above reasons, Client remains responsible for all Fees and charges it incurs during the period of suspension.
SECTION 6: PRICE AND PAYMENT
6.1 The Fees and expenses to be paid by the Client and the respective invoicing schedules are set forth in the Order Form.
6.2 Unless otherwise specified in an Order Form, Client shall pay the Fees within fifteen (15) days of the date of invoice. Any Fees not paid when due shall be subject to interest at the rate of one point five percent (1.5%) per month (or the highest rate permitted by law, if less) until the date of full payment.
6.3 Unless otherwise explicitly provided in the Order Form, Fees and other charges do not include any federal, state or local sales, withholding, use, property, excise, deed, service, value-added taxes or similar taxes as per the applicable laws (“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 any 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 to ensure that eBaoTech receives and retains, free of liability, a net amount equal to the amount should no tax deduction or withholding have been made. Client agrees to provide all support reasonably requested by eBaoTech, in obtaining applicable tax exemptions and to provide eBaoTech with such tax forms as reasonably requested by eBaoTech in order to reduce or eliminate the amount of any withholding or deduction for Taxes in respect of payments made under this Agreement.
SECTION 7: ACCEPTANCE
Where the Platform or Deliverables under an Order Form requires user acceptance test (“UAT”), the Test Period shall be five (5) days (or otherwise a longer period as set forth in the Order Form) upon access to the Platform made available to Client or upon provision of the Deliverables (“Test Period”). During the Test Period, Client shall test and verify whether the Platform or Deliverables meet the Documentations set forth in the Order Form with the assistance of eBaoTech, if applicable. If Client notifies eBaoTech of any material Error in the Platform or Deliverables in writing and describes the Error in reasonable details (“Non-Acceptance Notice”) within the Test Period, eBaoTech shall use commercially reasonable efforts to correct such Error and notify Client when the corrections are complete. Client then shall test the corrected Platform or Deliverables according to the initial UAT. If eBaoTech receives no Non-Acceptance Notice accompanied with sufficient details of the Error within the Test Period, or if Client Uses the Platform or Deliverables in its operation or business, Client shall be deemed to have accepted the Platform or Deliverables (“Acceptance”).
SECTION 8: PROPRIETARY RIGHTS
8.1 All rights, title, and interest in the Services, Platform, Deliverables and eBaoTech’s Confidential Information, including their amendment, modification, and Error correction associated therewith, and all IPR in the foregoing, are and shall remain the exclusive property of eBaoTech. eBaoTech retains the right to independently develop any enhancements and updates to the Platform and Deliverables and own any IPR and other rights related therewith. No right or license is granted or implied under any of eBaoTech’s IPR beyond the rights granted in this Agreement.
8.2 Client shall not and shall not permit any Third Party (including any End User) to copy, translate, disassemble, or decompile, nor create or attempt to create, by reverse engineering or otherwise, the Platform or Deliverables or any derivative work associated therewith. Ownership and IPR 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.
8.3 Subject to Section 8.1 above, all rights in and title to Client Content, materials, applications, product, formulas, modules, functionality and developments and all their enhancement, modification and error correction solely initiated and developed by Client, all IPR in the foregoing, shall remain the property of Client (“Client IPR”).
8.4 To the extent Client provide any suggestions (“Suggestions”) to eBaoTech or its Affiliates, Client represents and warrants that: (a) Client or Client’s licensors own all right, title, and interest in and to such Suggestions; and (b) Client has all rights in the Suggestions necessary to grant the rights contemplated by this Agreement. eBaoTech and its Affiliates will be entitled to use the Suggestions without any restrictions. Client hereby irrevocably assigns to eBaoTech all right, title, and interest in and to the Suggestions and agrees to provide eBaoTech any assistance as reasonably required to document, perfect, and maintain its rights in the Suggestions.
SECTION 9: WARRANTY AND REMEDY
9.1 Warranty. eBaoTech warrants that it will provide the Deliverables and Services with reasonable care and skill and in accordance with professional standards.
9.2 Express Disclaimer. The warranty set forth above shall not apply and eBaoTech will not be responsible: (i) if the Service or Deliverables is not used according to the Documentation or this Agreement; or (ii) if any Error is caused by or attributable to the Client or the End User, Third Party products or database not provided by eBaoTech; or (iii) for Client’s failure to use or implement corrections, replacement or enhancements to the Platform or Deliverables made available by eBaoTech; or (iv) for Client’s or the End User’s distribution, marketing, or use of the Platform or Deliverables for the benefit of Third Party not specified in the Order Form; or (v) for combination of the Platform or Deliverables with materials or application not supplied or approved by eBaoTech; or (vi) for use of any materials, applications, product, formulas, modules, functionality provided, developed, implemented or configured by Client or End User and/or combination, integration or configuration of the foregoing with the Platform or Deliverables, or use of any information or materials provided by or on behalf of Client, or (vii) for consequence as a result of act, omissions, fault, default, breach or negligence of Client (collectively, “Exceptions”). EBAOTECH DOES NOT PROVIDE ANY OTHER WARRANTIES THAN THOSE SET FORTH EXPRESSLY UNDER THIS AGREEMENT.
a) Client’s sole and exclusive remedies and eBaoTech’s sole and entire liabilities to the warranty (except that the Exceptions set forth in Section 9.2 herein above are excluded expressively from the scope of warranty) for any damages or loss in any way connected with the Deliverables or Services furnished by eBaoTech, shall be, at eBaoTech’s option and cost: (i) to bring the performance of the Platform or Deliverables to substantial compliance with the Documentations; (ii) to replace or re-provide Deliverables or Services; or (iii) if the above (i) or (ii) is not achievable, to deduct or return the prepayment proportional to the unused Services or undelivered portion of the Deliverables.
b) If an Error is caused by any of the Exceptions in Section 9.2 above, Client shall remunerate eBaoTech for its efforts and costs in searches and Error correction in accordance with eBaoTech’s standard rates then applicable on a time and material basis.
SECTION 10: INDEMNIFICATION
10.1 In the event of any claims, demand, suit, proceeding, penalties, taxes or damages (collectively “Liabilities”) asserted or brought by a Third Party against Client as IPR infringement to the extent such Liabilities result from the Use of the Platform or Deliverables which are alleged to infringe or misappropriate such Third Party’s legitimate IPR (collectively, “Third Party IPR”), eBaoTech shall be entitled, at its option and expense, to, (i) obtain for Client the right to continue using the Platform or Deliverables; or (ii) alter, modify or adjust the Platform or Deliverables so that they become non-infringing without materially reducing its performance or functionality.
10.2 If the above is insufficient to eliminate the Liabilities, eBaoTech agrees to indemnify Client from the damages out of the Liabilities (including reasonable attorney fees) finally awarded against the Client, or as otherwise agreed by eBaoTech in a final settlement for the purpose of the Liabilities, provided that such Liabilities are solely attributable to eBaoTech and that the Client follows the process under Section 10.4 below. For purpose of clarity, the foregoing provisions shall not apply to any infringement arising out of circumstance of Exceptions provided in Section 9.2 above.
10.3 Client agrees to indemnify 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 (i) the Exceptions provided in Section 9.2 herein above, or (ii) Client’s or End User’s loading, processing or storage of any Client Content, Personal Data, information, data or materials which are prohibited by the applicable laws, regulations or rules or infringing or misappropriating any Third Party, or (iii) developing, engaging, implementing or configuring any materials, applications, product, formulas, modules, functionality and their development, enhancement, modification and error correction of the Client or any Client IPR on the Platform by Client or End User, or (iv) providing eBaoTech with access to Client Content, Client’s computer program, specification, content or other Client-provided materials, (iv) a dispute between Client and End User.
10.4 The obligations under this Section 10 will apply only if the Party seeking defense or indemnity: (a) gives the other Party prompt written notice of the claim of Third Party IPR; (b) permits the other Party to control the defense and settlement of the claim; and (c) reasonably cooperates with the other Party (at the other Party’s request and expense) in the defense and settlement of the Liabilities. In no event will a Party agree to any settlement of any claim that involves any commitment, other than the payment of money, without the written consent of the other Party.
10.5 THE PROVISIONS OF THIS SECTION 10 STATE THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF THE PARTIES WITH RESPECT TO THE INFRINGEMENT OF THIRD PARTY IPR
SECTION 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 EXCEPT FOR PAYMENT OBLIGATIONS UNDER SECTION 6, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY FOR AN AGGREGATE AMOUNT IN EXCESS OF TWENTY-FIVE PERCENT (25%) OF THE FEES RECEIVED BY EBAOTECH DURING THE PRIOR TWELVE (12) MONTHS FOR A PARTICULAR ORDER FORM GIVING RISE TO THE LIABILITY.
11.3 THE PROVISIONS OF THIS SECTION 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.
SECTION 12: CONFIDENTIALITY
12.1 Each Party shall hold the Confidential Information, this Agreement or any part thereof confidential and shall not disclose it to any Third Party. Each Party agrees to protect the other Party’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 provided in this Section hereof with respect to the protection of Confidential Information. The Confidential term of this Agreement shall be the whole term of this Agreement and for a period of five (5) years thereafter.
12.2 The receiving Party may disclose the Confidential Information in compliance with legal requirements upon request of a governmental agency, court or regulatory body, where such disclosure is required by the applicable laws. 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 such notification and/or assistance are prohibited by the applicable laws.
SECTION 13: TERM AND TERMINATION
13.1 This Agreement shall be effective from the time first above written and shall continue in effect unless terminated upon the earliest occurrence of the following: (i) expiration of all Order Forms, unless both Parties agree to keep this Agreement in effect; (ii) thirty (30) days after either Party receives the other Party’s notice of the first mentioned Party’s material breach of this Agreement (other than Client’s breach of its obligations under Sections 8 or 12, which may result in immediate termination), unless the breaching Party has cured such breach during the thirty (30) days period; (iii) immediately if either Party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors, which impact the performance of the Agreement; (iv) in order to comply with the applicable laws or requests of governmental entities. All appendixes and Order Forms shall be terminated at the time of termination of the Agreement.
13.2 Upon any termination hereunder, Client and its Affiliates shall immediately cease Using the Services, eBaoTech IPR, and/or Confidential Information, unless otherwise set forth in the applicable Order Form. Within fifteen (15) days after any termination, Client shall deliver to eBaoTech or destroy all original copies or photocopies of eBaoTech’s IPR or Confidential Information. Client agrees to certify in writing to eBaoTech that it and its Representatives have performed the foregoing. In the event of any termination hereunder, either Party’s obligations incurred prior to the termination shall not be affected.
13.3 Unless otherwise required under the applicable laws or specified in any valid agreement(s) between the Parties, eBaoTech will retain Client Content, Personal Data, and/or Client’s other data (if any) within thirty (30) days (the “Retention Period”) after the termination of Services or expiration or termination of this Agreement. Client shall be responsible for back-up of its data during this Retention Period. After the expiration of this Retention Period, eBaoTech will remove all Client Content and/or such other data in the Platform, including any cached or back-up copies, unless otherwise required by the applicable laws and regulations or mutually agreed by the Parties. Client agrees that eBaoTech has no additional obligation to continue holding, exporting or returning Client data.
SECTION 14: FORCE MAJEURE
1Any delay or nonperformance of any provision of this Agreement (other than for the payment of amounts due) caused by unforeseeable conditions beyond reasonable control of the performing Party shall not constitute a breach of this Agreement, and the time for performance of such provision shall be extended for a period equaling to the duration of the conditions preventing performance.
SECTION 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. Each Party shall be solely responsible for the actions of its respective Representatives. No terms shall be implied or otherwise imposed except as explicitly set forth herein.
SECTION 16: DISPUTE RESOLUTION; GOVERNING LAW
Except for the right for an injunction or other relief under the applicable laws to preserve the status quo or prevent irreparable harm pending the selection and confirmation of a panel of arbitrators, and for eBaoTech’s right to bring suit on an open account for any payments due to eBaoTech hereunder, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by the governing arbitration institution (see Appendix A – Guideline on Contracting Entity, Address, Governing Law and Arbitration Institution, and Arbitration Seat), subject to the location of the Client. The arbitration shall be conducted in accordance with the then-in-effect arbitration rules of the applicable arbitration institution. The language of the arbitration shall be in English. The arbitration shall be conducted by a panel of three (3) arbitrators (unless both parties agree otherwise on one (1) arbitrator), one (1) arbitrator selected by eBaoTech, one (1) arbitrator selected by Client and the third one, who shall be the chairman of the arbitration, selected according to the rules of the arbitration institution. The arbitration proceedings and the award shall be kept confidential and the obligations under this Section shall survive the termination or expiration of this Agreement. The arbitral award shall be final and binding upon the Parties.
This Agreement shall be governed by and construed in accordance with the laws subject to the location of the Client as more specifically set forth in Appendix A, 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.
SECTION 17: MISCELLANEOUS
17.1 Both Parties shall designate a contact person to be its point of contact. The contact persons shall ensure effective communication between the Parties. All notices, demands or reports which 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 under the Order Form, and (ii) notified to the respective contact person of the other Party through electronic mail.
17.2 Neither Party shall issue any press release concerning eBaoTech’s work without the other Party’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 in eBaoTech’s ads or promotional materials, presentations, and proposals to current and prospective clients.
17.3 Neither Party shall, during the term of this Agreement and for two (2) years thereafter, solicit for hire as an employee, consultant or otherwise who have involvement in the negotiation or performance of this Agreement.
17.4 These General Terms and Conditions, appendix, and applicable Order Form, as a whole, constitute the entire agreement between the Parties hereof and supersede all previous negotiations, proposals, communications and agreements of whatever nature, unless expressly incorporated into this Agreement. No amendments to this Agreement shall be valid or binding unless agreed upon in writing by both Parties.
17.5 Provided that it agrees to be bound by these General Terms and Conditions hereunder, any Affiliate of Client may place to and sign an Order Form with eBaoTech and/or its Affiliates, and eBaoTech and/or its Affiliate may provide Deliverables or Services to the Client’s Affiliate accordingly.
17.6 Neither Party may, without the other Party’s prior written consent, assign, or otherwise transfer the Agreement, or any part thereof, to any Third Party. Notwithstanding the foregoing, eBaoTech may assign this Agreement to its Affiliates and may, at any time and without prior consent or approval of Client, subcontract all or part of the Services under this Agreement to its Affiliates.
17.7 The Services may contain features designed to interoperate with other applications of a Third Party. eBaoTech will not guarantee the continued availability of such Services features, and may cease providing them without entitling Client to any refund, credit, or other compensation.
17.8 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 power, right or remedy preclude any other or further exercise of them.
17.9 In case any of the provision hereunder is held invalid, illegal or unenforceable in any respect by a competent court or other authority, such invalidity or unenforceability shall not affect the other provisions, and both Parties shall negotiate in good faith a provision, which is valid, legal and enforceable with the meaning closest to the invalidated provision.
17.10 The provisions of Sections 8, 9, 10, 11, 12, 13, and 16 and any other provision which by its nature shall be continued shall survive the termination of this Agreement.
17.11 Trade Compliance. Each Party will comply with legal and regulatory obligations and restrictions including, but not limited to, those arising from trade and economic sanctions laws and regulations of the United States, the European Union, the United Nations, other jurisdictions or any of its member states, or the resolutions or pronouncements of certain international bodies (the “Trade Restrictions”). In the event Client fails to comply with any provision of this Section or violates any Trade Restrictions in connection with the Services, eBaoTech shall have the right to cease Service and/or take action as required by the applicable laws.
Guideline on Contracting Entity, Address, Governing Law, Arbitration Institution, and Arbitration Seat
This Appendix provides guidelines on eBaoTech contracting entity, address of notices, governing law, arbitration institution and seat as related to the General Terms and Conditions.
|Client Locations||eBaoTech Contracting Entity||Address of Notices||Governing Law||Arbitration Institution||Arbitration Seat|
|Australia||TekInsure Pty Limited||Level 2, 299 Sussex Street, Sydney, New South Wales, Australia||Australia||Australian Centre for International Commercial Arbitration||Sydney, Australia|
|Brazil||eBaoTech Brasil Tecnologia da Informação LTDA||Rua Samuel Morse nº 120
Suite 92, Brooklin, São Paulo
SP CEP 04576-060, Brasil
|The State of New York||American Arbitration Association||New York, United States|
|China||eBaoTech Corporation||Building 3, KIC Plaza 270 Songhu Road, Shanghai China||The People’s Republic of China||Shanghai Arbitration Commission||Shanghai, China|
|Hong Kong||eBaoTech (Hong Kong) Limited||30/F Jardine House, One Connaught Place, Hong Kong||Hong Kong||Hong Kong International Arbitration Centre||Hong Kong, China|
|India||eBaoTech India Pvt. Ltd.||407, 4th Floor, “INIZIO”, Cardinal Gracious Road, Chakala, Andheri (East), Mumbai 400099, India||India||Delhi International Arbitration Centre.||Delhi, India|
|Japan||InsureMO Kabushiki Kaisha||Win Aoyama 14F, 2-2-15 Minamiaoyama, Minato- ku, Tokyo, Japan||Japan||Japan Commercial Arbitration Association||Tokyo, Japan|
|New Zealand||TekInsure Pty Limited||Level 2, 299 Sussex Street, Sydney, New South Wales, Australia||Australia||Australian Centre for International Commercial Arbitration||Sydney, Australia|
|Singapore||eBaoTech International Pte. Ltd.||16 Raffles Quay, #27-01 Hong Leong Building, Singapore 048581||Singapore||Singapore International Arbitration Centre||Singapore|
|Singapore||InsureMO Corporation Pte. Ltd.||17 Raffles Quay, #27-01, Hong Leong Building, Singapore (048581)||Singapore||Singapore International Arbitration Centre||Singapore|
|Switzerland||eBaoTech (Europe) AG||Beethovenstrasse 43, 8002 Zurich||Switzerland||London Court of International Arbitration||London, United Kingdom|
|Thailand||eBaoTech (Thailand) Co., Ltd.||No. 34 C.P. Tower 3, 4th Floor, PhayaThai Road, ThungPhayaThai Subdistrict, Ratchathewi District, Bangkok||Thailand||Thailand Arbitration Center||Bangkok, Thailand|
|United States of America||eBaoTech Inc.||101 Hudson Street, Suite 2100, Jersey City, NJ 07302, U.S.A.||The State of New York||American Arbitration Association||New York, United States|
|United Kingdom||eBaoTech (UK) Limited||1 Old Court Mews, 311 Chase Road, London, England, N14 6JS, United Kingdom||England & Wales||ICC International Court of Arbitration||London, United Kingdom|
|Any Country other than the above-mentioned countries||eBaoTech International Pte. Ltd.||16 Raffles Quay, #27-01 Hong Leong Building, Singapore 048581||Singapore||Singapore International Arbitration Centre||Singapore|