MASTER USER AGREEMENT : LICENSE AND SERVICES AGREEMENT
This Master License and Services Agreement (“Agreement”) is entered as of Subscription date.
“Delivery” shall mean, (i) in the case of Software, when the Software is made available by Tree AMS for End User to electronically download; (ii) in the case of Services, when the Service has been provisioned and made available to End User to access;
“Documentation” means Tree AMS’s standard technical specifications that accompany and describe the installation, use and operation of a Product.
“Tree AMS’s Activities” means the Products and any other obligations which Tree AMS is or may be required to provide or carry out and complete under this Agreement or any Order Form.
“Intellectual Property Rights” means all existing and future copyright, trade mark, design, patent, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of this Agreement both in Singapore and throughout Asia.
“Licensed Volume” means the volume or other measurement of permitted use for the Products as agreed to by Tree AMS.
“Order Form” means a purchase order (in the form specified by End User) submitted by End User and accepted by Tree AMS or a Reseller which specifies Products to be provided by Tree AMS under this Agreement, or provided by a Reseller.
“Personal Information” means information or an opinion (including information or an opinion forming part of a database) whether true or not, and whether recorded in material form or not, about an individual whose identity is apparent, or can be reasonably ascertained, from the information or opinion.
“Product” means Appliances, Software or Services, as the case may be.
“Template” means any form of process, checklist, workflow or methodology created within TreeAMS software that can be reused
“related body corporate” means
(a) a holding company of another body corporate; or
(b) a subsidiary of another body corporate; or
(c) a subsidiary of a holding company of another body corporate;
“Reseller” means any authorized third-party reseller of Tree AMS.
“Software” means Tree AMS’s or its licensors’ software (in object code format) or content specified in Attachment A, or an Order Form, including any updates or upgrades thereto provided to End User by Tree AMS or a Reseller and any Documentation pertaining thereto. Software may be delivered to End User on Appliances or on a standalone basis. The term “Software” does not include Open Source Software.
“Services” means the subscription services, specified in Attachment A or an Order Form, including content, updates and upgrades thereto, offered by Tree AMS or that may be made available to End User by Tree AMS directly or through a Reseller or Tree AMS’s partners and suppliers. Services include, without limitation, and Tree AMS offered services.
“Third Party Software Integration” means services offered to create new code to integrate TreeAMS system with end user’s software.
“Support and Maintenance” means the technical support services for the Products and periodic bug fixes and updates that Tree AMS may make generally available at an annual subscription cost to other end users.
“Use” includes install, run, copy, support, maintain and anything reasonably incidental to such activities.
Tree AMS acknowledges and agrees that, where Products are purchased by End User from a Reseller:
a. the purchase order issued by End User to the Reseller for the Products is an Order Form for the purposes of this Agreement;
b. the terms and conditions of this Agreement (including without limitation the licenses, warranties and indemnities) apply to the Products specified in an Order Form issued to a Reseller; and
c. full payment by End User of the agreed fees for the Products to the Reseller will constitute a full discharge of End User’s payment obligations for the relevant Products, and Tree AMS will have no claim against End User for the payment of fees with respect to Products.
3. Order Forms, Prices and Payment Terms.
Products shall be ordered by End User pursuant to Order Forms. Each Order Form shall include at a minimum a description of the Product being ordered, number of units (locations) (franchisee owned and franchisor owned), and the fees therefor. Each Order Form shall be subject to the terms and conditions of this Agreement. Unless expressly stated in this Agreement or agreed to in writing by the parties, termination of any given Order Form shall not affect other Order Forms.
Sections 3.a to 3.f will apply to the parties except in relation to Products which are supplied to End User directly by a Reseller, in which case, the relevant terms set out in the End User’s agreement with the Reseller will apply. Where Products are purchased by End User directly from Tree AMS:
a. End User shall pay Tree AMS the applicable fees designated by Tree AMS in the relevant Order Form;
b. Any fees payable to Tree AMS are non-refundable and payable in Singapore Dollars;
c. before Tree AMS issues an invoice for the applicable fees, the parties shall agree in writing on which party is responsible for the payment of any sales, use, value-added and other taxes, tariffs and duties of any type assessed against End User;
d. fees shall be invoiced as follows: (i) fees for all Services and Support and Maintenance shall be invoiced in advance of the applicable Service and Support and Maintenance period, (ii) fees for Software licenses shall be invoiced upon Delivery; (iii) fees for third party software integration will be communicated separately and agreed upon by the end user, and invoiced in advance of applicable period
e. all payments from End User to Tree AMS are due by the end of the calendar month after the month in which the invoice is received by End User. If End User’s account for Services and Support and Maintenance is thirty (30) days or more overdue, in addition to any of its other rights or remedies, Tree AMS reserves the right to suspend the Services and Support and Maintenance provided to End User, without liability to End User, until such amounts (excluding any amounts which are the subject of a dispute) are paid in full, provided a written demand for payment has been made which clearly states Tree AMS’s intention to suspend the Services and Support and Maintenance at the expiration of the thirty (30) day period following the demand if the demand is not met; and
f. the fees referred to in Section 3.a and Attachment A are inclusive of all costs and expenses incurred by Tree AMS and no further amounts are payable by End User under this Agreement unless otherwise specified in an Order Form.
4. Licenses and Restrictions.
a. Software. Conditioned on the terms and conditions of this Agreement, Tree AMS grants End User, subject to the termination provisions of this Agreement, a perpetual, royalty-free, irrevocable, non-exclusive, nontransferable (subject to the assignment provisions of this Agreement), non-sub licensable (subject to Section 4.a(ii) below) license to Use the Software only for End User’s internal business purposes in the Licensed Volume licensed by End User. If End User licenses Software on a standalone basis, the license granted herein shall include the right to copy the Software up to the Licensed Volume. Upon payment of an additional fee to be agreed in advance, End User may (i) allow its contractors, agents, franchisees, sub-franchisees, suppliers or other third parties to Use the Software or Services for the purpose of providing services to End User provided such party is subject to the confidentiality provisions of Section 7.c(i); and (ii) sublicense any of its rights under this Section 4.a to any related body corporate of End User; provided that End User shall be fully responsible for the actions of any sublicensee as if they were the acts of End User.
b. Services. Subject to the terms and conditions of this Agreement, Tree AMS grants End User a nonexclusive, nontransferable, non-sub licensable, revocable license to use and access the Services only for End User’s internal business purposes, subject to the number of licenses issued as per the Attachment A towards End User and Franchisees of End User.
c. Restrictions. Except as otherwise expressly provided in this Agreement, End User may not permit any third party to: (i) modify, incorporate or use in any other works, translate, reverse engineer (except to the limited extent applicable statutory law expressly prohibits reverse engineering restrictions), decompile, disassemble, otherwise attempt to derive source code from or create derivative works based on the Products; (ii) make unauthorized copies of the Products; (iii) distribute or market the Products to third parties; (iv) remove or modify any proprietary notices, labels or marks on or in any copy of the Products; (v) disclose, distribute, transfer, sell, sublicense, rent, lease or use the Products (or any portion thereof) for time sharing, hosting, service provider or other computer services to third parties or otherwise make the functionality of the Software available to third parties; (vi) publicly disseminate performance information or analysis (including, without limitation, benchmarks and performance tests) from any source relating to the Products; (vii) access the embedded database or any other third party product as part of the Software with applications other than the Software; or (viii) use the Products other than as permitted herein.
5. Additional Terms for Services.
a. Accessing Services. Except as explicitly set forth herein, End User is solely responsible for acquiring and maintaining all of the equipment, software, services and items necessary to access and make use of the Services, including without limitation paying all charges, taxes, and other costs and fees related to the Internet access. End User may access the Services only through the interfaces and protocols provided or authorized by Tree AMS, or Tree AMS’s partners and agrees to set up, maintain and use the Services in strict compliance with Tree AMS’s, and Tree AMS’s partners’ instructions. End User is solely responsible for maintaining the confidentiality of any passwords and account information required to access Services, for all acts that occur in connection with End User’s account and to immediately notify Tree AMS of any unauthorized use of End User’s account.
Training End User and employees must attend minimum of 2 trainings or a total of 5 hours of training conducted either by Tree AMS Pte Ltd or its partners to understand the nuances of Tree AMS software platform
b. Service Availability: TreeAMS’s Service Availability commitment for a given calendar month is 95% Service Availability is calculated per month as follows:
((Total – Unplanned Outage – Planned Maintenance). x 100 > 95%
(Total – Planned Maintenance))
• Total is the total minutes in the month
• Unplanned Outage is total minutes unavailable in the month outside of the Planned Maintenance window
• Planned Maintenance is total minutes of planned maintenance in the month.
Currently, Planned Maintenance is eight (8) hours for monthly maintenance, TreeAMS current monthly maintenance begins at 6:00 pm (Indian Time) on last Saturday of the month; All times are subject to change upon thirty (30) days’ notice provided in the TreeAMS Website and any such change shall not lengthen the duration of the associated maintenance window.
6. Support and Maintenance.
The purchase of one year of Support and Maintenance is required with each Product or Services order. Where End User wishes to acquire Support and Maintenance after such one-year term, it will issue an Order Form Tree AMS will provide Support and Maintenance in accordance with its standard Support and Maintenance terms in effect at the time such Support and Maintenance is ordered.
a. Each party (“Receiving Party”) agrees to hold in confidence any and all confidential information of the other party (“Disclosing Party”) disclosed under this Agreement (“Confidential Information”). Confidential Information includes, without limitation, the Products, their performance (including any benchmarking information) and Tree AMS’s pricing of the Products, and information about either party’s business, operations, strategy, administration, technology, affairs, clients, customers, employees, contractors or suppliers.
b. Subject to Sections 7.c and 7.d, the Receiving Party shall neither use the Confidential Information of the Disclosing Party except as necessary to fulfill its obligations or exercise its express rights hereunder, nor disclose the Confidential Information of the Disclosing Party to any person without the prior written consent of the Disclosing Party.
c. Notwithstanding any other provision of this Section 7, the parties agrees that the Receiving Party may disclose the Confidential Information of the Disclosing Party: (i) only to its related bodies corporate, personnel, officers, agents, professional advisers, contractors, franchisees, sub-franchisees, subcontractors, auditors and insurers having a need to know, provided every person to whom disclosure is made pursuant to this Section 7.c is required to use the Confidential Information solely for the purpose for which it was disclosed and to treat the Confidential Information as confidential; and (ii) to the extent required by law or court order, provided the Receiving Party uses diligent reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and allows the Disclosing Party to participate in the proceeding. To the extent permitted by law, the Receiving Party shall promptly notify the disclosing Party of any disclosure of the Confidential Information in violation of this Agreement or in response to any subpoena or other legal process requiring production or disclosure of the Confidential Information.
d. Without granting any right or license, the parties agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (i) is or becomes (through no improper action or inaction by the Receiving Party or any affiliate, agent, consultant or employee of the Receiving Party) generally available to the public, or (ii) was in the Receiving Party’s possession or known by it without restriction prior to receipt from the Disclosing Party.
e. The parties agree that the Disclosing Party will suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise used or disclosed in breach of this Agreement and that the Disclosing Party shall be entitled to obtain injunctive relief against a threatened breach or continuation of any such breach without the necessity of posting a bond or any other security and, in the event of such breach, an award of actual and exemplary damages from any court of competent jurisdiction.
To the extent that Tree AMS accesses, collects, stores, handles and uses information obtained from End User, including, but not limited to, information about End User’s employees and customers that constitutes Personal Information, Tree AMS must ensure that such Personal Information is accessed, collected, used, stored, handled and disclosed by Tree AMS and its subcontractors in accordance with the Personal Data Protection Act 2012, and any other applicable laws relating to the protection of personal information to the extent such laws apply to Tree AMS’s and its subcontractors’ access, collection, use, storage, handling or disclosure.
9. Customer Data and Templates.
a. Ownership of Customer Data: TreeAMS acknowledges that the Customer/End user is the owner of the customer data
b. Ownership of Templates: TreeAMS acknowledges that the Customer/End user or the producer/partner servicing the End user is the owner of the template. Tree AMS does not entertain any dispute between either parties regarding ownership of the templates. Either parties would have to sign separate agreements between themselves to protect their interests.
c. On termination or normal expiry of contract: TreeAMS will allow Customers to download or export their data within 30 days after expiry. Post 30 days, TreeAMS will delete all the data and customer accounts. TreeAMS will not be responsible for the customer data or entertain any requests for data retrieval after this period.
d. Protection and Security. During the Term of this Agreement, TreeAMS shall maintain a formal security program materially in accordance with industry standards that is designed to: (i) ensure the security and integrity of Customer Data; (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data.
e. TreeAMS designs its Service to allow Customers to achieve differentiated configurations, enforce user access controls, and manage data categories that may be populated and/or made accessible on a country-by-country basis. Customer understands that its use of the Service and compliance with any terms hereunder does not constitute compliance with any Law. Customer understands that it has an independent duty to comply with any and all Laws applicable to it.
f. TreeAMS shall make periodic backups of Customer Data and restore Customer Data lost due to TreeAMS error or disaster In the event that Customer deletes Customer Data and requires TreeAMS’s assistance to restore it, TreeAMS will provide reasonable assistance at its then-current rates for such services. Throughout the Term, Customer shall have the right to access and extract Customer Data through the Service using the methods described in the Documentation.
g. Unauthorized Disclosure. If either party believes that there has been a disclosure of Customer Data to anyone other than an Authorized Party or TreeAMS, such party must promptly notify the other party. Additionally, each party will reasonably assist the other party in remediating or mitigating any potential damage, including any notification which should be sent to individuals impacted or potentially impacted, or the provision of credit reporting services to such individuals. Each party shall bear the costs of such remediation or mitigation to the extent the breach or security incident was caused by it.
10. Liability Limitation.
a. Subject to Section 10.c, to the maximum extent permitted by applicable law, in no event will either party’s liability for damages under this agreement or an order form (whether in contract, tort (including negligence), statute, equity or otherwise) exceed the total value of amounts paid and payable by end user to Tree AMS or any reseller under all order forms.
b. Except for Tree AMS’s liability to indemnify End User under Section 11.a, to the maximum extent permitted by applicable law, in no event shall either party have any liability to the other party for any lost profits or revenues, loss of data or use, interruption of the services or costs of procurement of substitute goods or services (in this Agreement, “consequential loss”), or for any punitive damages arising hereunder (whether in contract, tort (including negligence), statute, equity or otherwise), regardless of whether the party has been advised of the possibility of such damage.
c. The limitations in Section 10.a shall not apply to: Tree AMS’s liability under Section 11.a (Indemnity); or liability arising from (i) death or personal injury; (ii) loss of, or damage to, any tangible property; (iii) breach of Section 7 (Confidentiality); (iv) breach of applicable law; or (v) any act or omission of fraud, dishonesty, reckless or willful misconduct or misrepresentation.
a. Subject to the other provisions of this Section 11, Tree AMS shall defend End User, its related bodies corporate and each of their directors, officers, employees and agents (“those indemnified”) against any third party claim that the Product (including the use of the Product) infringes the Intellectual Property Rights of that third party (“Infringement Claim”) and indemnify those indemnified from the resulting costs (including any legal costs incurred by End Users in connection with assistance provided under Section 11.a(ii)) and damages awarded against End User to the third party making such Infringement Claim, by a court of competent jurisdiction or agreed in settlement, provided that End User must: (i) promptly notify Tree AMS of any and all threats, claims and proceedings of such Infringement Claim, (ii) give reasonable assistance in response to Tree AMS’s request for assistance, and (iii) grant Tree AMS sole control over defense and settlement thereof. The foregoing obligations do not apply with respect to Products or portions or components thereof, (iv) that are modified after delivery, unless such modification is authorized in writing by Tree AMS, (v) combined with other products, processes or materials, where the alleged infringement relates to such combination, unless such combination is authorized by Tree AMS, (vi) where End User continues allegedly infringing activity after being notified thereof or of modifications that would have avoided the alleged infringement, or (vii) where End User’s use of such Product is not strictly in accordance with this Agreement, unless such use has been authorized by Tree AMS. In the event that Products are held to or believed by Tree AMS to infringe, Tree AMS at its discretion, will have the option to (A) modify the allegedly infringing Products to be non-infringing, (B) obtain for End User a license to continue using the Products, or (C) request the return of the Product and upon receipt thereof terminate this Agreement as to the infringing Product and refund, or procure the relevant Reseller to refund, to End User the unused portion of the fees paid under this Agreement or the End User’s agreement with the relevant Reseller, as the case may be, for such infringing Product, depreciated on a straight-line basis over a three (3) year period.
b. End User shall indemnify Tree AMS against any damages awarded by a court of competent jurisdiction or agreed in a settlement, and expenses (including attorneys’ fees), which Tree AMS may suffer or incur as a result of an Infringement Claim to the extent that the claim is based on (i) an unauthorized modification of the Products by End User after Delivery; (ii) an unauthorized combination of the Products with other products, processes or materials; or (iii) use of the Products by End User in the manner specified in Sections 11.a(vi) to 11.a(vii).
c. This Section 11 sets forth the sole obligations and sole and exclusive remedies of both parties in the event of violation of third party intellectual property rights.
12. Term and Termination.
a. The term of this Agreement will commence upon execution of this Agreement by both parties and will continue in effect for a period of One (1) year, unless terminated in accordance with this Agreement (Term).
b. Support and Maintenance for Software and/or Appliances will automatically renew at the end of the applicable Support and Maintenance term unless either party gives the other at least thirty (30) days notice of non-renewal prior to the end of the then current term of this Agreement under which the Software and/or Appliance was purchased, is terminated or expires. The fees for support and maintenance for Software and/or Appliances will continue to be in accordance with this agreement unless a new agreement or order form is agreed by both parties.
c. Either party may terminate this Agreement due to a material breach of this Agreement by the other party if such material breach remains uncured for a period of thirty (30) days following receipt of written notice by the breaching party; provided that Tree AMS may terminate this Agreement and/or licenses granted to End User hereunder by providing thirty (30) days’ prior written notice to End User if End User breaches any provision of Section 4 (Licenses and Restrictions), Section 5 (Additional Terms for Services) or Section 7 (Confidentiality). In addition, Tree AMS may terminate any trial, evaluation or demonstration rights granted to End User at any time, by providing three (3) days’ notice to End User.
d. End User may at any time on at least thirty (30) days written notice to Tree AMS terminate this Agreement, for convenience and without any requirement to give reasons, in which case End User’s sole liability will be to pay Tree AMS for all Products, Services and Support and Maintenance provided by Tree AMS (excluding, for the avoidance of doubt, Products purchased by End User directly from a Reseller) up to the date of termination.
e. Upon the earlier of expiration or termination of this Agreement, Tree AMS will cease providing Services and Support and Maintenance, End User shall return all Products to Tree AMS and each party shall promptly return or destroy all copies of the other party’s Confidential Information upon the Disclosing Party’s request, with the reservation that:
(i) neither party shall be liable to return or destroy such Confidential Information and elaborations thereof as have been saved to electronic carriers under automatic archiving or data security procedures so long as no attempt is made to recover such information,
(ii) the Receiving Party shall be allowed to retain one copy of Confidential Information for audit, insurance or regulatory compliance purposes,
(iii) Confidential Information which is contained in the minutes or supporting papers relating to any board or committee meeting of the Receiving Party, or in any reports, analyses, compilations, studies or other documents or data prepared by, on behalf of, or for, the Receiving Party, must not be returned or destroyed, and
(iv) the Receiving Party may retain such Confidential Information which is required to be retained for the purposes of complying with any judicial, governmental, supervisory or regulatory body or any applicable rule, regulation or law (including the rules of a professional body) or the rules of any stock exchange on which any securities of the Receiving Party or any of its affiliates may be listed,
provided that to the extent that any Confidential Information is not so returned or destroyed, the Confidential Information shall remain subject to the terms of this Agreement, and provided further that the Receiving Party shall in any event ensure that none of its (or its affiliates’) directors, officers or employees retains access to any Confidential Information, except strictly for the purposes set forth from (i) to (iv) above. Termination shall not relieve End User of the obligation to pay any fees accrued or payable to Tree AMS prior to the effective date of expiration or termination and, for the avoidance of doubt, this obligation does not apply in respect of any fees accrued or payable by End User to a Reseller. The following sections of this Agreement shall survive termination or expiry of this Agreement: Section 3, Section 5 (unless Tree AMS terminates the license under Section 12.c) and Section 12.
13. Proprietary Rights.
All title and Intellectual Property Rights in and to the Products and Tree AMS’s Confidential Information is owned exclusively by Tree AMS and its partners and suppliers. Other than as expressly set forth in this Agreement, no license or other rights in or to the Products and Intellectual Property Rights thereto are granted to End User, and all such licenses and rights are hereby expressly reserved.
a. Force Majeure. Neither party will be liable to the other party for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events, which occur after the signing of this Agreement and which are beyond the reasonable control of the parties, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost.
b. Miscellaneous Provisions. The parties are independent contractors under this Agreement and nothing in this Agreement authorizes a party to act as an agent of the other or bind the other to any transaction or agreement. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign or transfer this Agreement in whole or in part by operation of law or otherwise, without other party’s prior written consent. Any attempt to transfer or assign this Agreement without such written consent will be null and void. Notwithstanding the foregoing, however, each party (“first party”) may assign or transfer this Agreement without the consent of the other party to the acquiring or surviving entity in a merger or acquisition in which the first party is the acquired entity (whether by merger, reorganization, acquisition or sale of stock) or to the purchaser of all or substantially all of the first party’s assets. Tree AMS agrees that End User may assign or transfer this agreement in whole to any related body corporate of End User. Tree AMS’s licensors are intended third party beneficiaries of this Agreement. In the event any provision of this Agreement shall be determined to be invalid or unenforceable under law, all other provisions of this Agreement shall continue in full force and effect. This Agreement contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written between the parties with respect to said subject matter. This Agreement may be modified or waived only in a written instrument signed by both parties. A waiver of any breach under this Agreement shall not constitute a waiver or any other breach or future breaches. Any additional or inconsistent terms on an Order Form issued to Tree AMS shall be null and void. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered or mailed by certified mail, return receipt requested or by any other means of delivery which generates a written receipt at the addresses set forth in Attachment B. This Agreement will be interpreted and construed in accordance with the laws of the Singapore without regard to conflict of law principles. The provisions of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply to this Agreement in any manner whatsoever. Tree AMS will be liable to End User for all acts and omissions of any subcontractor of Tree AMS as fully as if they were the acts and omissions of Tree AMS.
c. Arbitration. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (SIAC Rules) for the time being in force, which rules are deemed to be incorporated by reference in this Section 14.c. The Tribunal shall consist of one (1) arbitrator. The language of the arbitration shall be the English language.
d. Counterparts. This Agreement may be executed in counterparts, each of which will constitute an original and together shall constitute one instrument.