This Master Services Agreement (the “Agreement”) governs the Customer’s acquisition and use of the Services. 

 

This Agreement is effective as of the date of the Customer’s accepting this Agreement (the "Effective Date") pursuant to Section 1 below.

 

1. Acceptance. By accepting this Agreement, through one of the following means: (i) clicking a box indicating acceptance; (ii) executing an Order Form that references this Agreement; or (iii) paying the Fees set out in the relevant Order Form, the Customer agrees to the terms of this Agreement. If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its Affiliates to these terms and conditions, in which case the term “customer” shall refer to such entity and its Affiliates. If the individual accepting this Agreement does not have such authority, or does not agree with these terms and conditions, such individual must not accept this Agreement and may not use the Services.

 

2. Using the Services.

 

a) Use by the Customer. The Inclusive Company will provide the Customer with access to the applicable Services. The Services will be accessible upon the payment of the Fees by the Customer.  The Customer may only use the Services with databases and servers licensed and/or owned by the Customer. 

 

b) Subscriptions. Unless otherwise provided in the applicable Order Form, Services are purchased as subscriptions for the Order Term stated in the applicable Order Form. 

 

c) Beta Features. Beta Features made available by The Inclusive Company are provided to the Customer for testing purposes only, and The Inclusive Company does not make any commitment to provide Beta Features in any future versions of the Services. The Customer is not obligated to use Beta Features. The Inclusive Company may immediately and without notice remove Beta Features for any reason without Liability to the Customer. All Beta Features are provided "as-is" without warranty of any kind.

 

3. The Inclusive Company Obligations. 

 

a) Provision of Services. The Inclusive Company will: (i) make the Services available to the Customer pursuant to this Agreement and the applicable Order From; (ii) provide support for the Services to the Customer at no additional charge, and (iii) use commercially reasonable efforts to make the Services available during from 09:00 AM to 6:00 PM HKT, from Monday to Friday, excluding public holidays (the “Services Availability”).

 

b) Exceptions. The Services Availability will not apply to performance issues caused by the following: (i) planned downtime (of which The Inclusive Company shall give advance electronic notice); and (ii) any unavailability caused by circumstances beyond The Inclusive Company’s reasonable control, including unavailability resulting from: (1) a result of the Customer equipment or third-party computer hardware, software, or network infrastructure not within the sole control of The Inclusive Company, including outdated or incompatible browser versions; (2) user error; (3) overall Internet congestion, slowdown, or unavailability; (4) unavailability of generic Internet services due to virus or hacker attacks; (5) acts of God, fire, explosion, typhoon, storm, earthquake or other similar occurrence, orders of acts of military or civil authority, or national emergencies, insurrections, riots, protests, wars, strikes, pandemics, or other force majeure events; (6) actions or inactions of the Customer or third parties beyond the control of The Inclusive Company; and (7) subject to the Customer’s use of the Services in accordance with this Agreement and the applicable Order Form.

 

4. Customer Obligations.

 

a) Consents. The Customer is responsible for any consents and notices required to permit: (i) the Customer's use and receipt of the Services; and (ii) The Inclusive Company's accessing, storing, and processing of Customer Data provided by the Customer under the Agreement.

 

b) Competitors. The Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

 

c) Compliance. The Customer will: (i) ensure that the Customer and the Customer Users' use of the Services complies with the Agreement; (ii) use commercially reasonable efforts to prevent and terminate any unauthorized access or use of the Services; and (iii) promptly notify The Inclusive Company of any unauthorized use of, or access to, the Services of which the Customer becomes aware.

 

d) Customer Responsibilities. The Customer will be solely responsible, and The Inclusive Company disclaims responsibility for, any acquisition, implementation, support or maintenance of third-party products or services purchased by the Customer that may interoperate with the Services. The Customer shall also take reasonable care when disclosing any information to a third-party or participating in any activity organised by a third-party through the Services.

 

e) Use Restrictions. The Customer will not, and will not allow the Customer Users to: (i) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any of the source code of the Services (except to the extent such restriction is expressly prohibited by Applicable Law); (ii) sell, resell, license, transfer, or distribute the Services; (iv) access or use the Services in a manner intended to avoid incurring fees; (v) remove any copyright notices, trademarks or other proprietary notices or restrictions from the Services; (vi) provide the Services on a time sharing, hosting, service provider or other similar basis; (vii) copy any features, functions or graphics of the Services for any purpose other than what is expressly authorized under the Agreement; (viii) share the log-on credentials for each the Customer User with others; (ix) circumvent any of the Services technical measures; (x) use the Services, or permit it to be used, for purposes of evaluation benchmarking, performance tests or other comparative analysis intended for publication or disclosure to third parties; or (xi) post any links or information that refer volunteers to other websites or unrelated forms, whether in respect of volunteer opportunities or otherwise.

 

f) Information.  The Customer shall: (i) provide The Inclusive Company all information and content reasonably required by The Inclusive Company to enable The Inclusive Company to provide the Services and notify The Inclusive Company of any subsequent changes to such information in a timely manner; and (ii) respond to The Inclusive Company correspondence on a timely basis, and in any case, within three (3) days of receipt. 

 

g) Content. The Customer shall be fully responsible for the integrity and quality of the Content.  The Customer agrees that The Inclusive Company has no obligation to the Customer and undertakes no responsibility to review or monitor content posted by the Customer to determine whether any content may result in any liability to any Party. The Customer shall not, and shall procure that the Customer Users shall not, provide any content that:

 

i) contains any content that is illegal, libellous, defamatory, obscene, pornographic or sexually explicit, abusive or otherwise violates any law or regulation;

 

ii) infringes or violates any intellectual property right; or

 

iii) knowingly contains viruses, worms, logic bombs or other material which is malicious or technologically harmful, or any other codes, files or programs designed to damage, interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment.

 

h) Event Support. In the event that The Inclusive Company requests assistance from the Customer in respect of events, promotions, recruitment or otherwise, the Customer shall provide such assistance and support to The Inclusive Company as may be required from time to time.

 

i) Additional Obligations. Customer shall adhere to such other obligations as The Inclusive Company may require from time to time.

 

5. Privacy Policy. The following provisions apply with respect to Customer Data and any access given to The Inclusive Company of the same: 

 

a) Protection of the Customer Data. The Inclusive Company will only access or use the Customer Data to provide the Services ordered by the Customer to the Customer and will not use it for any other The Inclusive Company products, services, or advertising. The Inclusive Company has implemented and will maintain appropriate administrative, physical, and technical safeguards designed to protect the confidentiality, security, integrity, availability, and privacy of the Customer Data, further described in our Privacy Policy. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of the Customer Data (other than by the Customer or Customer Users). Notwithstanding any other provision of the Agreement or any other agreement related to the Services, The Inclusive Company will not be responsible for any breach or loss resulting from the Customer's security configuration or administration of the Services.

 

b) Consent. The Customer shall ensure that it is entitled to and has received all necessary consents in order to transfer all content including Customer Data to The Inclusive Company so that The Inclusive Company may lawfully use, process and transfer such Customer Data for the purposes of this Agreement.

 

c) Incorporation by Reference. The Privacy Policy and Terms of Use are incorporated by reference into this Agreement.

 

d) Parties’ Representation. Both The Inclusive Company and the Customer warrant that their use of Customer Data complies with applicable data privacy laws, including the Personal Data (Privacy) Ordinance (Cap 486), and that Customer Data will only be used as strictly necessary for the performance of its obligations under this Agreement.

 

e) Customer Representations. The Inclusive Company may transfer Customer Data to the Customer as part of its obligations under this Agreement. The Customer represents and warrants that it has a privacy policy in place conforming with the Personal Data (Privacy) Ordinance (Cap 486) and that the Customer shall take steps to erase Customer Data upon request by Customer Users or The Inclusive Company or when such Customer Data is no longer required for the purpose for which the data was given.

 

f) Disclosure of Customer Data. The Inclusive Company may disclose information provided under this Agreement (including any personal data and Customer Data) if required to do so by law or pursuant to any order issued by a court, tribunal or regulatory authority of competent jurisdiction. The Inclusive Company may also disclose such information to its legal counsel, governmental authorities or law enforcement if it believes that it is reasonably necessary to do so in order to enforce its legal rights; comply with a law or regulation; to protect the safety of any person; to address fraud, security or technical issues; or to protect The Inclusive Company's rights or property.

 

g) Breach. Any breach or potential breach of this Section shall be immediately notified in writing by the breaching party to the other party.

 

6. Updates to Services and Terms.

 

a) Changes to Services.

 

i) Limitations on Changes. The Inclusive Company may update the Services, provided the updates do not result in a material reduction of the functionality, performance, availability, or security of the Services.

 

ii) Discontinuance. The Inclusive Company will notify the Customer at least 3 months before discontinuing any Service (or associated material functionality), unless The Inclusive Company replaces such discontinued Service or functionality with a materially similar Service or functionality.

 

iii) Support. The Inclusive Company will continue to provide product and security updates until the conclusion of the applicable notice period under subsection (ii) (Discontinuance).

 

b) Changes to this Agreement. The Inclusive Company may update this Agreement, provided the updates do not: (i) result in a material degradation of the overall security of the Services; (ii) expand the scope of or remove any restrictions on The Inclusive Company's processing of the Customer Data as described in the Privacy Policy (if applicable); or (iii) have a material adverse impact on the Customer's rights under this Agreement. The Inclusive Company will notify the Customer of any material updates to this Agreement.

 

c) Permitted Changes. Sections 8(a) (Changes to Services) and 8(b) (Changes to this Agreement) do not limit The Inclusive Company's ability to make changes required to comply with Applicable Law or address a material security risk, or that are applicable to Beta Features or new or pre-general availability Services, offerings, or functionality.

 

7. Temporary Suspension.

 

a) Services Suspension. The Inclusive Company may Suspend Services if: 

 

i) necessary to comply with law or protect the Services or The Inclusive Company's infrastructure supporting the Services; 

 

ii) the Customer or any the Customer User's use of the Services does not comply with this Agreement, and it is not cured following notice from The Inclusive Company;

 

iii) upon the occurrence of an event which is beyond The Inclusive Company’s reasonable control (including server breakdown or electricity outage); or

 

iv) maintenance work is necessary for the proper performance of the Services.

 

b) Limitations on Services Suspensions. If The Inclusive Company Suspends Services under Section 9(a) (Services Suspension), then: (i) The Inclusive Company will provide the Customer notice of the cause for Suspension without undue delay, to the extent legally permitted; and (ii) the Suspension will be to the minimum extent and for the shortest duration required to resolve the cause for Suspension.

 

8. Payment Terms.

 

a) Fees. the Customer will pay all Fees specified in the relevant Order Form. Except as may be otherwise specified herein or in an Order Form: (i) Fees are based on Services and not actual usage; and (ii) payment obligations are non-cancellable and Fees paid are non-refundable.

 

b) Payment. The Inclusive Company will invoice the Customer for the Fees for the Services. The Customer will pay The Inclusive Company all invoiced amounts by the Payment Due Date. All payments are due in the currency described in the invoice. Wire transfer payments must include the bank information described in the invoice.

 

c) Taxes. The Inclusive Company's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, the “Taxes”). The Customer is responsible for paying all Taxes associated with its purchases hereunder. If The Inclusive Company has the legal obligation to pay or collect Taxes for which the Customer is responsible under this section, The Inclusive Company will invoice the Customer and the Customer will pay that amount unless the Customer provides The Inclusive Company with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, The Inclusive Company is solely responsible for taxes assessable against it based on its income, property and employees.

 

d) Invoice Disputes. The Customer must submit any invoice disputes to The Inclusive Company before the Payment Due Date. If the parties determine that Fees were incorrectly invoiced, then The Inclusive Company will issue a credit equal to the agreed amount.

 

e) Overdue Payments.

 

i) If the Customer's payment of the Fee is overdue, then The Inclusive Company may: (i) charge interest on overdue Fees at 10% per month (or the highest rate permitted by law, if less) from the Payment Due Date until paid in full; and (ii) Suspend the Services.

 

ii) The Customer will reimburse The Inclusive Company for all reasonable expenses (including legal fees) incurred by The Inclusive Company in collecting overdue Fees except where such payments are due to The Inclusive Company's billing inaccuracies.

 

iii) Suspension for Overdue Payment of Fees. The Inclusive Company may Suspend the Services under Section 10(f) (Overdue Payments) only if the Customer's payment of the Fee is overdue for more than 14 days after the Payment Due Date. The Inclusive Company will notify the Customer at least 7 days before suspension.

 

9. Proprietary Rights and Licenses

 

a) Reservation of Rights. Except as expressly described in this Agreement, the Agreement does not grant the Customer any rights, implied or otherwise, to The Inclusive Company's Intellectual Property. As between the parties, the Customer retains all Intellectual Property Rights in the Customer Data and The Inclusive Company retains all Intellectual Property Rights in the Services. 

 

b) License by the Customer to Use Feedback. The Customer grants to The Inclusive Company and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its Services any suggestion, enhancement request, recommendation, correction or other feedback provided by the Customer or Customer Users relating to the operation of the Services.

 

10. Confidentiality. 

 

a) Use of Confidential Information. The Recipient will only use the Disclosing Party's Confidential Information to exercise its rights and fulfil its obligations under the Agreement, and will use reasonable care to protect against the disclosure of the Disclosing Party's Confidential Information. 

 

b) Permitted Disclosures. Notwithstanding any other provision in the Agreement, the Recipient may disclose the Disclosing Party's Confidential Information: (i) to its Delegates who have a need to know and who are bound by confidentiality obligations at least as protective as those in this Section (Confidentiality); (ii) with the Disclosing Party's written consent; or (iii) as strictly necessary to comply with Legal Process, provided the Recipient promptly notifies the Disclosing Party prior to such disclosure unless the Recipient is legally prohibited from doing so. The Recipient will comply with the Disclosing Party's reasonable requests to oppose disclosure of its Confidential Information.

 

11. Marketing and Publicity. Each party may use the other party's Brand Features in connection with this section.  Provided prior written consent is obtained from the other party, a party may state publicly that the Customer is a The Inclusive Company customer and either party may display the Customer or The Inclusive Company Brand Features in accordance with the Brand Guidelines set-out by either party from time to time. The Customer and The Inclusive Company may work together on an announcement of the Customer being a The Inclusive Company customer, which would take place on a mutually agreed upon date. Additionally, with prior written consent, the parties may engage in joint marketing activities such as customer testimonials, announcements, press engagements, public speaking events, and analyst interviews. A party may revoke the other party's right to use its Brand Features with 14 days' written notice. Any use of a party's Brand Features will inure to the benefit of the party holding Intellectual Property Rights to those Brand Features.

 

12. Representations and Warranties. Each party represents and warrants that it (a) has full power and authority to enter into the Agreement and (b) will comply with all laws and regulations applicable to its provision, receipt, or use of the Services, as applicable.

 

13. Disclaimer and Limitation of Liability. 

 

a) You agree that The Inclusive Company, its Delegates and assigns shall have no responsibility or Liability for any fault, inaccuracy, omission, delay, or any other failure in the Service caused by your computer equipment or arising from your use of the Service on such equipment. 

 

b) You agree that your use of the Services is at your sole risk and acknowledge that the Services and anything contained within the Services, including, but not limited to, content, services, goods, or advertisements are provided “as is” and “as available,” and that The Inclusive Company makes no warranty of any kind, express or implied, as to the services, including, but not limited to, merchantability, non-infringement, title, or fitness for a particular purpose or use or those arising by law or otherwise in law from a course of dealing or usage of trade. The Inclusive Company does not warrant that the Services will be uninterrupted or  free of errors or viruses, worms or trojan horses, that defects will be corrected, or that the server that makes it available are free of viruses or other harmful components or that the Services does not violate any patent or other intellectual property rights of any person or entity. The Inclusive Company does not warrant or make any representations regarding the use or the results of the use of the Services in terms of their correctness, accuracy, reliability, or otherwise. You (and not The Inclusive Company) assume the entire cost of all necessary servicing, repair, or correction of equipment used to access the Services. Applicable Law may not allow the exclusion of implied warranties, so the above exclusion may not fully apply to you.

 

c) Insofar as permitted by law, The Inclusive Company and its Affiliates shall not be liable to you or any third person for damages of any kind, whether based in tort, contract, strict or otherwise, including, without limitation, any direct, indirect, incidental, consequential, special, punitive, exemplary damages or lost revenues, profits, savings or goodwill, even if The Inclusive Company has been advised specifically of the possibility of such damages, arising in any way from or in connection with the services, use of or inability to use the services or any links or items on the services, such as, but not limited to, loss of revenue or anticipated profits or lost business. Applicable Law may not allow the limitation or exclusion of liability or incidental or consequential damages. In no event shall The Inclusive Company’s total liability to you for all damages, losses and causes of action (whether in contract or tort, including but not limited to, negligence) exceed the amount paid by you, if any, for accessing the services during the 12 month period before the event giving rise to liability.

 

d) By accessing the Services, you understand that you may be waiving rights with respect to claims that are at this time unknown or unsuspected.

 

14. Indemnification.

 

a) The Inclusive Company Indemnification Obligations. Subject always to Section 16(c), The Inclusive Company will defend the Customer and its Affiliates participating under the Agreement (“Customer Indemnified Parties”), and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from (i) the provision of the Services by The Inclusive Company or its Affiliates in breach of this Agreement or Use Restrictions and (ii) an allegation that the Customer Indemnified Parties’ use of The Inclusive Company Indemnified Materials infringes the third party’s Intellectual Property Rights.

 

b) Customer Indemnification Obligations. The Customer will defend The Inclusive Company and its Affiliates and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from: (i) any the Customer Indemnified Materials or (ii) the Customer's or a Customer User's use of the Services in breach of this Agreement or the Use Restrictions.

 

c) Indemnification Exclusions. Sections 17(a) (The Inclusive Company Indemnification Obligations) and 17(b) (Customer Indemnification Obligations) will not apply to the extent the underlying allegation arises from: (i) the indemnified party's breach of the Agreement; or (ii) a combination of the The Inclusive Company Indemnified Materials or the Customer Indemnified Materials (as applicable) with materials not provided by the indemnifying party under the Agreement, unless the combination is required by the Agreement.

 

d) Indemnification Conditions. Sections 17(a) (The Inclusive Company Indemnification Obligations) and 17(b) (the Customer Indemnification Obligations) are conditioned on the following:

 

i) the indemnified party must promptly notify the indemnifying party in writing of any allegation(s) that preceded the Third-Party Legal Proceeding and cooperate reasonably with the indemnifying party to resolve the allegation(s) and Third-Party Legal Proceeding. If breach of this Section 17(d)(i) prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party's obligations under Section 17(a) (The Inclusive Company Indemnification Obligations) or 16(b) (the Customer Indemnification Obligations) (as applicable) will be reduced in proportion to the prejudice.

 

ii) The indemnified party must tender sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the following: (1) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (2) any settlement requiring the indemnified party to admit Liability, pay money, or take (or refrain from taking) any action, will require the indemnified party's prior written consent, not to be unreasonably withheld, conditioned, or delayed.

 

15. Disaster Recovery. The Inclusive Company shall implement, test and maintain disaster recovery and business continuity procedures in respect of its own systems and facilities used to provide the Services in accordance with industry standards. All Customer Data shall be backed up on a daily basis on Google Cloud Platform’s Hong Kong cloud region (the “Cloud”), unless the Cloud is not available, in which case The Inclusive Company will use its best endeavours to make alternative arrangements until the Cloud is available. 

 

16. Remedies.

 

a) If The Inclusive Company reasonably believes the Services might infringe a third party's Intellectual Property Rights, then The Inclusive Company may, at its sole option and expense: (i) procure the right for the Customer to continue using the Services; (ii) modify the Services to make them non-infringing without materially reducing their functionality; or (iii) replace the Services with a non-infringing, functionally equivalent alternative.

 

b) If The Inclusive Company does not believe the remedies in Section 19(a) are commercially reasonable, then The Inclusive Company may Suspend or terminate the impacted Services.

 

c) Sole Rights and Obligations. Without affecting either party's termination rights, this Section (Remedies) states the parties' sole and exclusive remedy under the Agreement for any third-party allegations of Intellectual Property Rights infringement covered by this Section (Remedies).

 

17. Term and Termination.

 

a) Term of Agreement. This Agreement commences on the Effective Date and continues until all subscriptions under the relevant Order Form have expired or have been terminated.

 

b) Term of Services. The term of the Services shall be as specified in the applicable Order Form. On expiry of the Initial Order Term, the Order Term and Agreement shall automatically renew for successive twelve (12) month periods (each a "Renewal Term") unless terminated by either party by giving at least thirty (30) days' written notice prior to the first day of the first Renewal Term or any Renewal Term thereafter.

 

c) Termination for Breach.

 

i) Termination of an Order Form. Either party may terminate an Order Form if the other party is in material breach of this Agreement and fails to cure that breach within 30 days after receipt of written notice.

 

ii) Termination of the Agreement. Either party may terminate the Agreement if the other party: (1) is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice; (2) ceases its business operations; or (3) becomes subject to insolvency proceedings and such proceedings are not dismissed within 90 days.

 

iii) Effects of Termination. If the Agreement terminates, then all Order Forms also terminate. If an Order Form terminates, then after that Order Form's termination or expiration effective date: (1) all rights and access to the Services under that Order Form will terminate; and (2) The Inclusive Company will send the Customer a final invoice for payment obligations under that Order Form. Termination or expiration of one Order Form will not affect other Order Forms.

 

18. Termination of Previous Agreements. If The Inclusive Company and the Customer have previously entered into an agreement with The Inclusive Company for products or services, then that agreement will terminate on the Services Start Date, and this Agreement will govern the provision and use of the Services going forward.

 

19. Rights of third parties. This Agreement is personal to the parties. The provisions of the Contracts (Rights of Third Parties) Ordinance (Cap 623) do not apply to this Agreement. No person who is not a party to this Agreement (whether or not such person is named, referred to, or otherwise identified, or form part of a class of persons so named, referred to, or identified in this Agreement) shall have any right under the Contracts (Rights of Third Parties) Ordinance to enforce this Agreement or to enjoy the benefit of any term of this Agreement.

 

20. Governing Law. This Agreement shall be governed and construed in accordance with Hong Kong law. Any dispute arising out of or in connection therewith (of a contractual or non-contractual nature such as claims in tort, breach of statute or regulation) shall be subject to the exclusive jurisdiction of Hong Kong courts.   

 

21. Miscellaneous.

 

a) Notices. Both parties shall provide notices under the Agreement to the other party by sending an email to the Notification Email Address. Notice will be treated as received when the email is sent. Both parties shall keep the Notification Email Address current throughout the Term.

 

b) Emails. The parties may use emails to satisfy written approval and consent requirements under the Agreement.

 

c) Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction

 

d) Assignment. The Customer may not assign the Agreement without the written consent of The Inclusive Company except to an Affiliate where: (i) the assignee has agreed in writing to be bound by the terms of the Agreement; and (ii) the assigning party remains liable for obligations under the Agreement if the assignee defaults on them. Any other attempt to assign is void

 

e) Change of Control. If a party experiences a change of Control other than an internal restructuring or reorganization, then: (i) that party will give written notice to the other party within 30 days after the change of Control; and (ii) the other party may immediately terminate the Agreement any time within 30 days after it receives that written notice. 

 

f) Force Majeure. Neither party will be liable for failure or delay in performance of its obligations to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, terrorism, riots, or war.

 

g) Subcontracting. The Inclusive Company may subcontract obligations under the Agreement but will remain liable to the Customer for any subcontracted obligations.

 

h) No Agency. The Agreement does not create any agency, partnership, or joint venture between the parties.

 

i) No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under the Agreement.

 

j) Severability. If any part of the Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.

 

k) No Third-Party Beneficiaries. The Agreement does not confer any rights or benefits to any third party unless it expressly states that it does.

 

l) Equitable Relief. Nothing in the Agreement will limit either party's ability to seek equitable relief.

 

m) Amendments. Except as specifically described otherwise in the Agreement, any amendment to the Agreement must be in writing, expressly state that it is amending the Agreement, and be signed by both parties.

 

n) Entire Agreement. The Agreement states all terms agreed between the parties, and supersedes any prior or contemporaneous agreements between the parties relating to the subject matter of the Agreement. In entering into the Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation, or warranty (whether made negligently or innocently), except those expressly described in the Agreement. The Agreement includes URL links to other terms (including the URL Terms), which are incorporated by reference into the Agreement.

 

o) Conflicting Terms. If there is a conflict among the documents that make up this Agreement, then the documents will control in the following order: the applicable Order Form, the Agreement, and the URL Terms.

 

p) Conflicting Languages. If the Agreement is translated into any other language, and there is a discrepancy between the English text and the translated text, the English text will control.

 

q) Counterparts. The parties may execute the Agreement in counterparts, including facsimile, PDF, and other electronic copies, which taken together will constitute one instrument.

 

r) Electronic Signatures. The parties consent to electronic signatures.

 

s) Headers. Headings and captions used in the Agreement are for reference purposes only and will not have any effect on the interpretation of the Agreement.

 

22. Definitions.

 

a) “Agreement” shall mean this Master Services Agreement, the Order Form, and all terms and policies incorporated herein by reference, including any additional terms and each update or amendment of any of the foregoing from time to time.

 

b) "Affiliate" means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.

 

c) “Applicable Law” means, as the context requires, all laws, statutes, subsidiary legislation, rules, codes, guidelines, regulations, orders, treaties or directives having force of law in any jurisdiction in which a party carries on business, to which a party may be subject, and/or which are or may become applicable to this Agreement;

 

d) “Beta Features” means any Services features or functionality which The Inclusive Company may make available to the Customer to try at no additional cost, and which is designated as beta, trial, non-production or another similar designation.

 

e) “Brand Features” means each party's trade names, trademarks, logos, domain names, and other distinctive brand features.

 

f) “Brand Guidelines” mean the guidelines in respect of the use of a party’s Brand Features.

 

g) “Control” of an entity means the ownership of, or the power to vote, at least 50% of the voting stock, shares or interests of such entity.

 

h) “Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into an Order Form.

 

i) “Customer Data” means all data in the Customer's databases provided to The Inclusive Company by the Customer or the Customer Users via the Services.

 

j) “Customer Indemnified Materials” means the Customer Data and the Customer Brand Features.

 

k) “Confidential Information” means information that one party or its Affiliate ("Disclosing Party") discloses to the other party ("Recipient") under the Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. The Customer Data is the Customer's Confidential Information. Confidential Information does not include information that is independently developed by the recipient, is shared with the recipient by a third party without confidentiality obligations, or is or becomes public through no fault of the recipient.

 

l) “Customer User” means an individual that the Customer permits to use the Services.

 

m) “Delegates” means the Recipient's employees, agents, professional advisors, suppliers, agents, directors, officers, employees, representatives and successors.

 

n) “Documentation” means the user guides and manuals for the Services provided by The Inclusive Company for the Customer's own internal use.

 

o) “Fees” means the fees in respect of the Services, plus any applicable Taxes, as set out in the Order Form.

 

p) “Initial Order Term” means the period of time starting on the Services Start Date for the Services and continuing for the period indicated on the Order Form unless terminated in accordance with the Agreement.

 

q) “including” means including but not limited to.

 

r) “Indemnified Liabilities” means any (a) settlement amounts approved by the indemnifying party, and (b) damages and costs finally awarded against the indemnified party and its Affiliates by a court of competent jurisdiction.

 

s) “Intellectual Property” or “IP” means anything protectable by an Intellectual Property Right.

 

t) “Intellectual Property Right(s)” means all patent rights, copyrights, trademark rights, rights in trade secrets (if any), design rights, database rights, domain name rights, moral rights, and any other intellectual property rights (registered or unregistered) throughout the world.

 

u) “Legal Process” means an information disclosure request made under law, governmental regulation, court order, subpoena, warrant, or other valid legal authority, legal procedure, or similar process.

 

v) “Liability” means any liability, whether under contract, tort (including negligence), or otherwise, regardless of whether foreseeable or contemplated by the parties.

 

w) “Notification Email Address” means the email address(es) designated by either party in the Order Form.

 

x) “Order Form” means an order form issued by The Inclusive Company specifying the Services The Inclusive Company will provide to the Customer under this Agreement.

 

y) “Order Term” means the Initial Order Term and Renewal Term (if any).

 

z) “Payment Due Date” means 30 days from the invoice date.

 

aa) “Privacy Policy” means the then-current terms describing data processing and security obligations with respect to the Customer Data, which shall be governed by the Personal Data (Privacy) Ordinance. (Cap. 486). 

 

bb) “Renewal Term” means the period of time following from the last day of the Initial Order Term and continuing for the period indicated on the Order Form unless terminated in accordance with the Agreement.

 

cc) “Services” means the Software and services that the Customer or the Customer’s Affiliate purchases under an Order Form

 

dd) “Services Start Date” means either the start date of the Services set-out in the Order Form or, if none is specified in the Order Form, the date The Inclusive Company makes the Services available to the Customer.

 

ee) “Software” means all cloud-based software components (and any associated APIs, if applicable) and any downloadable tools provided by The Inclusive Company to the Customer hereunder, and any copies, updates, modifications, derivative works or enhancements thereto.

 

ff) “The Inclusive Company” means Inclusive International Company Limited, with offices at Unit 20-135, 21/F, 14 Tai Koo Wan Road, Tai Koo, Hong Kong.

 

gg) “The Inclusive Company Indemnified Materials” means The Inclusive Company's technology used to provide the Services and The Inclusive Company's Brand Features.

 

hh) “Suspend” or “Suspension” means disabling access to or use of the Services or components of the Services.

 

ii) “Taxes” means all government-imposed taxes, except for taxes based on The Inclusive Company's net income, net worth, asset value, property value, or employment.

 

jj) “Third-Party Legal Proceeding” means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any appellate proceeding).

 

kk) “URL” means a uniform resource locator address to a site on the internet.

ll) “Use Restrictions” means the restrictions in Section 6(e).