SOFTWARE SUBSCRIPTION LICENSE AGREEMENT
This Software Subscription License Agreement (the “Agreement”) has been entered into by Nexinno Limited having an address at Flat 901, 9F, Po Yip Building 23 Hing Yip Street Kwun Tong, Hong Kong (“Nexinno”) and the recipient of the below-mentioned Services (the “Customer”) (hereinafter, Nexinno and the Customer are collectively referred to as “Parties” and each individually as a “Party”).
- The Services
1.1 Subject to the terms and conditions of this Agreement, Nexinno grants to the Customer the non-exclusive and non-transferable right to access and use the services provided through the data analytics platform “Soda” (the “Services”).
1.2 The Services are provided in accordance with two service plans, namely, a basic plan which includes up to 1 user account (the “Basic Plan”) and an agency plan which includes up to 5 user accounts (the “Agency Plan”).
1.3 Nexinno shall provide standard services to the Customer. If the Customer requests Nexinno to provide any custom modification of the Services, the terms of such Services shall be separately negotiated and agreed to by the Parties in writing.
- Subscription Fee
2.1 In consideration for the Services, the Customer shall pay to Nexinno the subscription fee specified in Appendix 1 to this Agreement (the “Subscription Fee”). The Subscription Fee varies depending on the chosen service plan and its duration.
2.2 The Subscription Fee can be paid via one of the following payment methods: (i) PayPal; (ii) Stripe; and (iii) bank transfer.
2.3 The Subscription Fee is non-refundable. There are no credits or refunds for plan downgrades or refunds for unused time if the Customer closes its account before the expiration of the relevant service plan.
2.4 The Subscription Fee does not include applicable taxes. The Customer shall be responsible for the payment of all applicable taxes.
- Upgrades and modifications of the Services
3.1 Nexinno reserves the right to upgrade or modify the Services at any time, provided that the Customer will receive at least five (5) days’ advance notice for changes that significantly affect the Services.
- Customer support
4.1 Nexinno provides customer support in relation to the Services via (i) email and (ii) text chat. The customer support will be provided between 9:30 (GMT +8) to 18:00 (GMT +8).
- Customer’s obligations
5.1 The Customer agrees to use the Services in accordance with this Agreement and all applicable laws.
5.2 The Customer agrees to use commercially reasonable efforts to prevent the unauthorized use of the Services and will notify Nexinno if it becomes aware of any such unauthorized use.
5.3 The Customer agrees not to, without the prior written consent of Nexinno, sublicense, license, rent, sell, loan, give, or otherwise distribute all or any part of the Services to any third parties.
5.4 The Customer agrees not to disassemble, reverse engineer, decompile, modify, or alter the data analytics platform “Soda” (the “Platform”) or any copy thereof, in whole or in part.
5.5 The Customer shall not use the Services and the Platform to store or transmit libelous or otherwise unlawful or tortious material or any material in violation of third party privacy rights. The Customer shall not knowingly interfere with or disrupt the integrity or performance of the Platform or third party data contained therein.
5.6 The Customer is solely responsible for obtaining all necessary rights and consents to enter Customer’s data (“Customer Data”) into the Platform and hereby warrants that entering such data into the Platform will not violate or infringe the rights of any third party. The Customer is responsible for the accuracy, truthfulness, consistency, and completeness of the Customer Data. Nexinno does not have the responsibility to review the Customer Data.
5.7 The Customer agrees not to use the Services to post political content. Nexinno reserves the right to immediately suspend the Services if the Customer uses the Services to post political content.
- Intellectual Property
6.1 The Platform contains materials that are owned by Nexinno (“Nexinno’s Content”). Such materials include, but are not limited to, text, images, and source code. Nexinno’s Content is intellectual property of Nexinno. Nexinno’s Content is protected by the intellectual property law of Hong Kong and the applicable international intellectual property laws.
6.2 The Customer shall not, without the prior written consent of Nexinno, use the “Nexinno” mark or logo, or any other mark or brand of Nexinno, in advertising, publicity, or external distributions or broadcasts.
6.3 Nexinno shall have a royalty-free, sub-licensable, worldwide, transferable, irrevocable and perpetual license to incorporate into the Services or otherwise use any suggestions, recommendations, enhancement requests, or other feedback Nexinno receives from the Customer.
6.4 Unless otherwise agreed by the Parties in writing, the Customer grants to Nexinno the right to use Customer’s trademarks, quotes, name, trade names and/or logos in product brochures, websites, press releases, and other advertising materials.
- Disclaimers of warranties
7.1 Nexinno offers the Services on an “as is” basis and is not making any representations, warranties, conditions, or guarantees of any kind, whether statutory, implied, express or otherwise, including all implied warranties of merchantability, design, title, fitness for a particular purpose, quality, and non-infringement that the Services will meet the requirements of the Customer or that the Services will be always timely, available, accessible, uninterrupted, secure, accurate, complete or error-free.
7.2 To the fullest extent permissible pursuant to applicable law, Nexinno disclaims all warranties in respect to the Services, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose.
7.3 The Platform is a software product and the Customer is aware that no software product is faultless in all situations and combinations. Nexinno shall not be liable for any defects in the Platform.
- Limitation of liability
8.1 You agree to use the Services at your own risk.
8.2 To the fullest extent permissible pursuant to applicable law, Nexinno shall not be liable for any damages, including incidental, punitive, special, consequential, exemplary, multiple or other indirect damages or for lost profits, loss of goodwill or data, or loss of use damages that result from the use of, or the inability to use, the Services, or any other aspect of this Agreement, even if Nexinno has been advised of the possibility of such damages.
8.3 To the fullest extent permissible pursuant to applicable law, in no event shall Nexinno’ total liability to the Customer for all damages, losses and causes of action, whether in contract, tort (including, but not limited to, negligence) or otherwise, that result from the use of, or the inability to use of, the Services exceed the total amount of USD 100.
8.4 The Customer hereby releases Nexinno and Nexinno’s affiliates, directors, officers, agents, employees, service providers from any claims, known or unknown, the Customer has against them.
8.5 No information or advice, whether written or oral, obtained from Nexinno will create any condition or warranty not expressly stated in this Agreement.
8.6 The Subscription Fee is based on limitations of liability and the disclaimers of warranties in this Section 8. You acknowledge that they will survive and apply even if found to have failed their essential purpose.
8.7 If you are dissatisfied with our Services or believe that you have been harmed by your use of our Services, you may terminate your use of the Services in accordance with this Agreement. That termination is your sole and exclusive remedy (and our sole and exclusive liability) under this Agreement.
8.8 Under no circumstances will Nexinno be liable for any third party services or activities of third parties, any connection to or transmission from the Internet, or for any loss, damage or injury resulting from theft, hacking, tampering or other unauthorized access to or use of the Services or the Customer’s account or the information contained in the Customer’s account.
8.9 The limitation of liability in this Section 8 also applies (i) to Nexino’s affiliates, directors, officers, agents, employees, and service providers and (ii) to claims brought based on any cause of action, including breach of contract, tort (including negligence), statute, or other legal or equitable theory.
8.10 If there is a law that limits how the limitation of liability in this Section 8 applies to the Customer, Nexino’s liability will be limited to the fullest extent permitted by law.
9.1 The Customer shall defend, indemnify and hold harmless Nexinno against damages, losses, claims, actions, expenses, proceedings, and costs (including, but not limited to, reasonable attorney’s fees and court costs) arising out of or in relation to the use of the Services by the Customer.
10.1 Once the duration of the selected subscription plan expires, the plan will be renewed automatically unless the Customer chooses not to renew the plan prior to the renewal date. This Agreement shall be automatically terminated on the date when the selected subscription plan expires, without being renewed.
10.2. Any breach of this Agreement by the Customer may result in Nexinno immediately suspending the Services. The Customer shall be notified about such a suspension and provided with the opportunity to remedy the breach of this Agreement. If the Customer does not remedy the breach within a time period of 7 days commencing on the date of the notification, Nexinno shall have the right to terminate this Agreement. If Nexinno exercises its right to suspend the Services or terminate this Agreement in accordance with this Section 10.2, Nexino shall not be required to provide any partial or full refund of the Subscription Fee for any Services which the Customer was not able to use as a result of the suspension or termination.
10.3 Upon the termination of this Agreement, irrespective of the reason for termination, the Customer shall immediately stop using the Services.
11.1 Any information furnished or disclosed to the Customer by Nexinno in relation to this Agreement (hereinafter, referred to as the “Confidential Information”) shall be deemed the property of Nexinno. Unless such Confidential Information was previously known to the Customer free of any obligation to keep it confidential, or has been or is subsequently made public by Nexinno or a third party which had the right to do so, it shall be held in confidence by the Customer, shall be used only for the purposes of using the Services and may be used for other purposes only upon such terms and conditions as may be mutually agreed upon by both Parties hereto in writing.
11.2 For the purposes of this Agreement, Confidential Information includes, but is not limited to: (1) any business plans, marketing strategies, financial information, business operations, projections, sales estimates, performance results concerning the business activities (past, present or future) of Nexinno, its affiliates, partners, and subsidiaries; (2) list(s) of suppliers and/or customers; (3) any technical information, such as formula, methods, inventions, designs, and processes; (4) any data, databases, images, video files, audio files, flow charts, know-how, software (source code and object code), specifications, and trade secrets; (5) the terms and conditions of this Agreement; and (6) other information that should be reasonably understood as confidential information of Nexinno.
11.3 The Customer agrees and acknowledges that the Confidential Information does not need to be copyrightable, novel, patentable, unique, or constitute a trade secret in order to be protected as Confidential Information under this Agreement.
11.4 Section 11 must survive the expiration or the termination of this Agreement for any reason.
- Force Majeure
12.1 Neither Nexinno nor the Customer hereunder shall be liable for any delay or failure to perform its obligations hereunder so long as that delay or failure is the result of an event beyond its reasonable control, including, without limitation, civil disobedience, rebellions, explosions, storms, earthquakes, floods, brown-outs or black-outs, electrical disturbances, accidents, governmental acts, work stoppages, riots, fire, satellite malfunctions, communications line or equipment failures, provided that the Party hampered by such an event uses commercially reasonable efforts to fulfil its obligations under this Agreement.
13.1 Notices. Any notice required to be given under this Agreement shall be given in writing.
13.2 Governing law. This Agreement shall be read, construed and take effect in accordance with the laws of Hong Kong.
13.3 Dispute resolution. Any dispute, controversy, difference or claim arising out of or relating to this Agreement, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (HKIAC) under the HKIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted. The seat of arbitration shall be in Hong Kong.
13.4 Independent contractors. The Parties are independent contractors, and this Agreement does not make the Customer an employee, partner, agent of, or joint venturer with, Nexinno for any purpose. The Customer is, and will remain, an independent contractor in the Customer’s relationships to Nexinno.
13.5 Entire understanding and amendment. This Agreement is the entire agreement of the Parties. No amendment, change, or modification of the Agreement is valid unless expressly agreed upon by both Parties.
13.6 Binding effect. This Agreement shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and permitted assigns of the Parties.
13.7 Waiver. No waiver of this Agreement shall be valid unless expressly agreed upon by both Parties.
13.8 Severability. All provisions contained herein are severable, and in the event of any being held invalid by any competent court, this Agreement shall remain intact except for the omission of the invalid provision.
13.9 Further Assurances. The Parties shall reasonably cooperate with each other to provide such further assurances required in order to enable compliance with their obligations under this Agreement.
13.10 Assignment. Nexinno may assign its rights and obligations under this Agreement to third parties without the prior written consent of the Customer. The Customer may assign its rights and obligations under this Agreement to third parties only after receiving the prior written consent of Nexinno.
13.11 Third Party Beneficiaries. Except as expressly set forth in this Agreement, no provisions of this Agreement are intended nor will be interpreted to provide or create any third party beneficiary rights or any other rights of any kind in any other party.