This Customer Agreement (“ Agreement ”) is an agreement between BytePlus Pte. Ltd. (“ BytePlus ” or “ us ”) and you or your Organization (collectively “ Customer ” or “ you ”), and governs your access to and use of the Platform and Services provided by BytePlus.
This Agreement includes and incorporates by reference: (1) the Order Form; (2) our Policies (including the Acceptable Use Policy ); and, (3) the Service Specific Terms , depending on the Specific Service(s) that you are subscribing to and/or using.
Each Order Form submitted by you to BytePlus is an offer by you to purchase Services under the terms of this Agreement. BytePlus shall be deemed to have accepted an Order Form if it indicates to you that it has accepted the relevant Order Form in writing or if BytePlus does any act consistent with fulfilling the Order Form, at which point this Agreement shall commence and take effect (the “ Effective Date ”).
By submitting to BytePlus an Order Form which references these terms, or by accessing or using the Platform and/or Services, you hereby represent, warrant, acknowledge and agree that you have read and understood the terms of this Agreement and that you agree to be bound by them.
1.1 License to Use
1.1.1 Subject to your compliance with this Agreement, BytePlus grants to you during the Term a limited, non-exclusive, non-transferable, revocable, non-perpetual, terminable and non-sublicensable license to, and to permit Authorized Users to, access and use the Platform and Services (together with all associated Documentation) solely for your internal business purposes.
1.1.2 All rights, whether now existing or which may come into existence after the Effective Date, with respect to or in relation to the Platform and Services in the Territory which are not specifically granted to you are reserved exclusively to BytePlus.
1.1.3 You shall ensure that your Content and use of the Platform and Services will not violate any of the Policies or any Applicable Laws.
1.2 Beta Features
1.2.1 From time to time, BytePlus may make available to you Beta Services at no charge.
1.2.2 You acknowledge and agree that:
(a) the decision to access and use any Beta Services is at your sole discretion;
(b) Beta Services are intended for evaluation purposes and not for production use, are not fully supported and may be subject to additional terms and fees that may be presented to you;
(c) Beta Services are provided on an “as-is” and “as available” basis without any warranty, support, maintenance, storage, service-level agreement or indemnity obligation of any kind;
(d) we may discontinue Beta Services at any time in our sole discretion;
(e) we shall have no liability for any harm or damage arising out of or in connection with a Beta Service; and
(f) any Beta Services (including the existence thereof) may be considered Confidential Information and you will not disclose (including, but not limited to, in a press release or public statement) any information about, involving or regarding Beta Services (including the existence thereof), except as agreed by BytePlus in writing.
BytePlus may Update the Platform and Services from time to time at its sole discretion in order to enhance your user experience, improve and/or ensure the security of the Platform and Services. BytePlus may notify you of such Updates in ways including but not limited to system prompts, announcements, internal messages, and updating the Documentation. If you do not accept and use the Updated version of the Platform and/or Services, some functions may become restricted or unavailable to you .
1.4 User Equipment and Third Party Software
1.4.1 You acknowledge and agree that you (and on behalf of each Authorized User):
(a) may require your own Equipment and certain Third Party Software, as well as internet connection, to access and use the Platform and/or the Services;
(b) shall be solely responsible for (i) all costs of obtaining such Equipment and/or Third Party Software, (ii) all costs incurred arising out of your internet connection (including without limitation to data plan fees and internet connection fees), and (iii) all risks in relation to the use of your Equipment or Third Party Software;
(c) if you or an Authorized User uses any Third Party Software or other third party services in conjunction with the Platform or Services, you or such Authorized User must also comply with the applicable terms under which such Third Party Software or third party services are provided to you;
(d) in the event any Third Party Dispute arises between you or an Authorized User and any providers of Third Party Software or third party services, such Third Party Dispute shall be solely resolved between you or such Authorized User and such third party providers, and you shall release BytePlus from all such Third Party Disputes; and
(e) BytePlus makes no representations or warranties whatsoever, and shall not be liable for any damage, liabilities, Losses (including any loss of data or profits), or any other consequences that you or an Authorized User may incur arising out of or in relation to the installation and/or use of any Equipment and/or Third Party Software. ****
2.1 This Agreement shall, unless otherwise terminated in accordance with Clause 13, commence on the Effective Date and shall continue for 12 (twelve) months (the " Initial Term ") and, thereafter, this Agreement shall be automatically renewed for successive periods of 12 (twelve) months (each a " Renewal Period "), unless:
either Party notifies the other Party of termination, in writing, at least 30 days before the end of the Initial Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period; or
otherwise terminated in accordance with the provisions of this Agreement;
and the Initial Term together with any subsequent Renewal Periods shall constitute the " Term ".
3.1 In relation to each Authorized User, you undertake that:
3.1.1 only Authorized Users shall be granted access to the Platform and Services as anticipated by this Agreement;
3.1.2 each Authorized User shall comply with the Acceptable Use Policy ;
3.1.3 each Authorized User is required to comply with the terms of this Agreement in relation to its use and access of the Platform and Services and you are responsible for any Authorized User's breach of this Agreement; and
3.1.4 if you become aware, or should reasonably be aware, that any password has been provided to any individual who is not an Authorized User, then without prejudice to BytePlus's other rights, you shall promptly disable such passwords and that individual shall not be granted access to the Platform and Services and failure to do so shall be deemed a material breach.
4.1 Without limitation to the generality of the foregoing, you shall co-operate with BytePlus in all matters relating to the provision of the Platform and/or Services by BytePlus to you, including without limitation (and in each case only to the extent necessary) to doing the following:
4.1.1 providing to BytePlus in a timely manner all documents, information, items and materials in any form (whether owned by you or a third party) as is required or specified, whether express or implied, or otherwise required by BytePlus in connection with the provision of the Platform and/or Services by BytePlus to you and ensure that they are accurate and complete; and
4.1.2 ensure that all your Equipment is in good working order and suitable for the purposes for which it is used in relation to the provision of the Platform and/or Services by BytePlus to you and conforms to all relevant industry standards or requirements.
4.2 You acknowledge and agree that if you fail to perform or breach any of your obligations under Clause 4.1 above:
4.2.1 if BytePlus’s performance of any obligations (including without limitation its provision of the Platform and/or Services to you) is prevented or delayed by such failure or breach, without prejudice to any other right or remedy it may have, BytePlus shall be entitled to an extension of time to perform its obligations at least equal to the delay caused by you; and
4.2.2 if you require BytePlus to expedite progress to make up for any failures or delays of BytePlus caused by or attributable to your failure or breach, the Parties shall enter into consultation to separately agree upon additional manpower requirements and increase in costs (if any).
5.1 Personal Data belonging to you
5.2 Customer Data
5.2.1 To the extent your use of the Website, Platform and/or the Services results in BytePlus processing Personal Data on your behalf, the Parties shall comply with the terms and conditions oftheData Processing Addendum which is expressly incorporated into this Agreement by reference hereto.
5.3 Technical Data
5.3.1 ****It may be necessary for BytePlus or its Affiliates to obtain, receive, or collect Technical Data from you to provide you access to and use of the Platform and Services.
5.3.2 You hereby grant to BytePlus and its Affiliates a non-exclusive, worldwide, royalty-free, perpetual, irrevocable license to:
(a) compile, use, distribute, display, store, process, reproduce, or create derivative works of the Technical Data;
(b) aggregate the Technical Data with other data for use in an anonymous manner for BytePlus’s marketing and sales activities; and
(c) exploit aggregated Technical Data and/or provide aggregated Technical Data to third parties, so long as such data is presented in the aggregated format and does not identify you or your customers.
6.1 You warrant, represent, acknowledge and agree that:
6.1.1 you shall be solely responsible for taking adequate security measures to protect and back up your Content, website/application content or source site data; and
6.1.2 you shall be solely responsible and liable for any security vulnerabilities caused by or attributable to your Content, including Harmful Codes and other harmful programs, or any security vulnerabilities caused by or arising from your failure to use the Platform and/or the Services in accordance with this Agreement.
6.2 BytePlus will use commercially reasonable efforts to maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of your Data.
6.3 Notwithstanding the foregoing, you acknowledge and agree that:
6.3.1 BytePlus cannot guarantee any transmissions made on or through the Internet by you will be secure or confidential; and
6.3.2 any Content you submit or transmit to us via the Internet (including but not limited to e-mails) are not protected by encryption, and may be vulnerable to interception during transmission.
7.1.1 You acknowledge and agree that all IP Rights in and to:
(a) the Platform and Services;
(b) any works developed or derived therefrom, including without limitation to any software, source and object codes, algorithms, data models (whether or not any of the foregoing have been developed using your Data), technology, web pages, text, pictures, images, audio, video, charts, layout design, and electronic documents, any Updates or customizations to the Platform and Services, and any Documentation created by BytePlus;
(c) any reports or data generated by BytePlus in the course of providing the Platform or Services to you or from algorithms, models, Data or Content uploaded by you to the Platform;
(d) any intangible ideas, residual knowledge, concepts, know-how and techniques related to or learned from BytePlus’s provision of the Platform or Services; and
(e) any operational and technical data relating to the Platform and Services (including without limitation to user login information, operation records, and service orders, etc.);
belong to and vest in BytePlus and remain the sole and absolute property of BytePlus.
7.2 Unless otherwise permitted by law or consented in writing to by BytePlus in advance, you shall not, in your use of the Website, Platform or Services, do any of the following:
7.2.1 hold yourself out as an original equipment manufacturer (“ OEM ”), Software as a Service (“ SaaS ”) provider, service provider, reseller, or distributor of the Platform and/or Services, or engage in any OEM, SaaS (or service bureau), time-sharing, outsourcing, application service provider, reseller or other distribution arrangements or activities in connection with the Platform and/or Services; or
7.2.2 represent or imply that the Platform and/or Services was developed, owned by, or proprietary to you or any other third party, or hold yourself or any other third party out as the developer, owner or proprietor of the Platform and/or Services.
7.3 Trade Marks
7.3.1 You shall not, without BytePlus’s prior written consent:
(a) use any trade marks, service marks, trade names, domain names, website name, other significant brand features or specific descriptions which will allow a third party to identify BytePlus and/or its Affiliates, including without limitation to “字节跳动”, “BytePlus”,"ByteHouse", “头条”, “今日头条”, “头条号”, “ toutiao.com ”, “Top Buzz”, “抖音”, “微播视界”, “Tik Tok”, “ douyin.com ”, “西瓜视频”, “ ixigua.com ”, “ 365yg.com ”, “BuzzVideo”, “火山小视频”, “ huoshan.com ”, “Vigo Video”, and “Musical.ly” (hereinafter collectively referred to as “ Proprietary Markings ”) belonging to BytePlus and/or its Affiliates;
(b) display, use, apply for registration of trademarks, apply for registration of domain names any of the aforementioned Proprietary Markings (whether in itself or in combination with any other elements), or represent to any other persons, whether expressly or impliedly, that you have the right to display, use or to otherwise dispose of the Proprietary Markings;
(c) modify, alter, remove, delete or destroy any BytePlus proprietary markings or proprietary legends placed upon or contained within the Website, Platform, Services or any related materials or any Documentation; or
(d) take any action which would cause the Website, Platform and/or Services or any part thereof to be placed in the public domain or to become open source software or permit any third party to do so.
7.4.1 **Any Feedback provided by you to BytePlus shall be the sole and exclusive property of BytePlus and BytePlus shall have the right to use and disclose any ideas, know-how, concepts, techniques, or other IP Rights contained in such Feedback in any manner and for any purpose in BytePlus’s discretion without remuneration, compensation or attribution to you, provided that the foregoing shall not create or imply any obligation on the part of BytePlus to use such Feedback. **You now assign to BytePlus with full title guarantee and free from all encumbrances the IP Rights in the Feedback together with the right to sue for and recover damages or other relief in respect of the infringement those rights and you are required to take all reasonable actions to effect such assignment. In relation to future copyright, the assignment under this Clause 7.4.1 shall take effect as a present assignment of future copyright. **
7.4.2 If and to the extent that, for whatever reason, the aforementioned IP Rights in Feedback cannot be vested in BytePlus despite your best endeavours to ensure and procure the same, you shall grant to BytePlus a perpetual, worldwide, irrevocable, non-exclusive, sub-licensable, transferable and license fee / royalty-free right and license to use such Feedback for any purposes whatsoever without any obligation of attribution or consent.
7.5 Customer IPR
7.5.1 You shall grant to BytePlus and its Affiliates, for the Term of this Agreement, a non-exclusive, non-transferable and royalty-free license to use the name, logos, trademarks, Data, Content or any other IP Rights of your Organization (“ Customer** IPR ”) for the purpose of providing the Services to you and the purposes set out in this Clause 7.5.1. To the extent that any such IP Rights are owned by a person other than you, you shall have and represent and warrant that you have entered into such arrangements with such persons as may be required for the grant of these rights and licenses to BytePlus.
7.5.2 Notwithstanding anything herein to the contrary, you acknowledge and agree that BytePlus may during the Term:
(a) display the name, trade marks, brand, logo and content of a similar nature of yourself on BytePlus’s website and related marketing assets as a customer of the Services;
(b) use and publish your testimonials, Feedback, and case study regarding the Services in publications, presentations and marketing assets used by BytePlus; and
(c) include you as BytePlus’s reference in its quotations, bidding documents, tender documents, submissions for accreditations or awards or other documents of a similar nature.
8.1 BytePlus will use commercially reasonable efforts to make the Platform and Services available to you.
8.2 You acknowledge and agree that the Platform and/or Services shall not be considered unavailable, and BytePlus shall not be deemed to have failed to make the Platform and/or Services available or be held responsible or liable in the event your ability to access or use the Platform and/or Services is impaired due, in whole or in part to any of the following:
Force Majeure Event;
Third Party Actions;
any disabling, suspension, or termination of the Services by BytePlus pursuant to this Agreement, including without limitation to Clause 9; or
any failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other items that are not supplied by BytePlus.
9.1 Invoice and Payment
9.1.1 BytePlus will invoice you for the Service Fees in accordance with the then current price, terms and frequency as set out in the Order Form-.
9.1.2 Subject to Clause 9.2, you shall make payment for Service Fees in accordance with the terms and by such date as set out in the Order Form.
9.2 Disputed Invoice
9.2.1 If you dispute any amount in an invoice issued under this Agreement, you shall issue a written notice to BytePlus within fifteen (15) calendar days from the invoice date (“ Dispute Notice ”).
9.2.2 A Dispute Notice shall specify the amount in dispute, and the grounds of the dispute.
9.2.3 If you do not issue any Dispute Notice within such period, you shall be deemed to have accepted the accuracy of the invoice and waived your right to dispute the same.
9.2.4 Notwithstanding any Dispute Notice, you shall pay any balance of the invoice which is not in dispute in accordance with the terms set out on the Website.
9.2.5 Within ten (10) business days of the date of receipt of the Dispute Notice, the Parties shall consult each other, negotiate in good faith and use best efforts to promptly resolve any disputed amounts.
9.2.6 If the dispute is not resolved within twenty (20) business days from the first day of such consultation (or such longer period as may be agreed by the Parties), either Party may refer the dispute for resolution in accordance with Clause 17.
9.3 Late Payment
9.3.1 If any amount owed by you under this Agreement or any other agreement for any BytePlus Platform and/or Services is thirty (30) or more days overdue (or ten (10) or more days overdue in the case of amounts you have authorized BytePlus to charge to its bank account), BytePlus may, without prejudice to its other rights and remedies:
(a) charge interest of 1.5% per annum (or the highest rate permitted by law, if less), on the overdue sum from and including the date such sum becomes due and payable up to and including the date of actual payment (“ Late Payment Interest Rate ”);
(b) accelerate all unpaid fee obligations of you under such agreements so that all such obligations become immediately due and payable; and/or
(c) disable your Account and/or suspend your access to the Platform and the Services, until such amounts are paid in full.
9.4 Tax and Gross Up
9.4.1 Unless otherwise stated, BytePlus’s fees and pricing do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (collectively, “ Taxes ”). You are responsible for paying all Taxes associated with your purchases or orders hereunder.
9.4.2 If required by Applicable Law to set-off, counter-claim, deduct or withhold, you will gross up the relevant amount to ensure that BytePlus receives the full cash amount that it would have received without such deduction or withholding.
9.5 Set Off
9.5.1 All amounts payable under this Agreement must be paid free and clear of, and without set-off, counter-claim, deduction or withholding for, any taxes, currency control restrictions or other withholdings.
10.1 Subject to Clause 10.2, each Party shall treat all Confidential Information as strictly confidential and shall not disclose Confidential Information to any person.
10.2 A Party may disclose Confidential Information:
(a) if and to the extent required by law or order of the courts, or by any securities exchange or regulatory or governmental body to which such party is subject, wherever situated; or
(b) on a necessary basis and under conditions of confidentiality to the professional advisers, auditors and bankers of such Party; or
(c) if such Confidential Information has come into the public domain other than by a breach of any obligation of confidentiality; or
(d) with the prior written approval of the other Party.
10.3 The restrictions contained in this Clause 10 shall continue to apply after the termination or expiry of this Agreement (however arising) without limit in time.
11.1 Each of the Parties represents and warrants that:
11.1.1 it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted hereunder, and to fully perform its obligations hereunder;
11.1.2 this Agreement, when executed, will constitute valid and binding obligations on such Party (and in the case of the Authorized User, on Authorized User’s Organization), in accordance with the terms herein; and
11.1.3 it has and will maintain all necessary licenses, consents, and permissions necessary for the performance of its obligations under this Agreement.
11.1.4 It will comply with Applicable Laws applicable to its provision or use of the Platform and Services, as applicable
11.2 This Agreement shall not prevent BytePlus from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
12.1 You acknowledge and agree that:
12.1.1 BytePlus may suspend your access to, or use of, the Platform and/or Services (“ Suspension ”) if BytePlus is directed to do so by any governmental or regulatory authority, or if BytePlus reasonably believes or determines that:
(a) you are in breach of this Agreement, any Policies or any Applicable Law, or if any other grounds for suspending your Account and your access to, or use of, the Platform and/or Services under this Agreement or any Policies had been satisfied;
(b) your access to, or use of, the Platform and/or Services disrupts or poses a significant threat to the functionality, security, integrity, or availability of the Platform and/or Services or any content, data, or applications in the Platform and/or Services or to any customer or vendor of BytePlus (including yourself); or
(c) you are in breach of the payment obligations under Clause 9.
12.1.2 While BytePlus will use commercially reasonable efforts to re-establish the Services promptly after BytePlus determines that the issue causing the Suspension has been resolved, BytePlus shall not be liable for any damage, liabilities, Losses (including any loss of data or profits), or any other consequences that you may incur as a result of a Suspension.
12.1.3 You shall remain responsible for all fees and charges you incur during the period of Suspension and shall not be entitled to any reductions in such fees and charges or service credits for the period of Suspension.
13.1 Termination for Convenience
13.1.1 You may terminate this Agreement at any time for any reason by giving at least thirty (30) days prior written notice to us and closing your Account for all Services which we provide.
13.1.2 BytePlus may terminate this Agreement at any time without reason and without any liability whatsoever by giving at least fourteen (14) days prior written notice to you.
13.2 Termination for Cause
13.2.1 Either Party may by written notice to the other Party terminate this Agreement forthwith immediately if:
(a) the other Party commits a material breach of any term or condition of this Agreement and which in the case of a breach capable of being remedied has not been remedied within thirty (30) days of a written request to remedy the same;
(b) the other Party has committed a material breach of this Agreement which is not capable of remedy;
(c) the other Party becomes subject to an Insolvency Event;
(d) the other Party is prevented or prohibited by law from performing its obligations under this Agreement; or
(e) either Party is prevented by a Force Majeure Event from performing its obligations in accordance with this Agreement for more than thirty (30) days.
13.2.2 We may also terminate this Agreement immediately upon notice to you:
(a) if we have the right to suspend your Account;
(b) if we are directed to do so by any governmental or regulatory authority; or
(c) if we discontinue the Platform or Service.
13.3 Effects of Termination
13.3.1 Upon termination of the Agreement:
(a) all licenses granted by BytePlus to you and all your rights under this Agreement shall immediately terminate;
(b) you shall immediately close all Authorized User Accounts in respect of the Platform and all Services and cease to use, and ensure each Authorized User ceases to use the Platform and/or Services;
(c) any and all of the software supplied hereunder by BytePlus or its Affiliates, including any copies or translations thereof, in any format, shall be at BytePlus’s sole election and at your expense, immediately returned to BytePlus or destroyed by you;
(d) you shall upon written request by BytePlus, return or destroy securely all Confidential Information you received from BytePlus and certify to BytePlus that this has been done;
(e) you shall remove all Content (including your Confidential Information) from the Platform within such period of time as is informed to you by BytePlus, provided that BytePlus shall be entitled to make your access to your Content conditional upon your payment of any outstanding monies to BytePlus.
For the avoidance of doubt, any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of any Party (including payment obligations under Clause 9) **nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
13.3.2Termination Fees. Notwithstanding anything to the contrary in this Agreement, Customer shall, within thirty (30) days of such termination, pay BytePlus the Termination Fees in the event that:
(a) this Agreement or any Order Form is terminated by BytePlus due to material breach, Insolvency Event or change of Control of Customer; or
(b) this Agreement or any Order Form is terminated by Customer without cause.
13.3.3 The following clauses shall survive any termination or expiration of this Agreement: Clauses 5 **(Data Protection), **7 **(IP Rights), **10 **(Confidentiality), **14 **(Disclaimer), 15 **(Limitation of Liability), 16 (Indemnity), 17 **(Governing Law and Dispute Resolution), and **18 **(General Terms).
14.1 BytePlus does not make any representations or warranties, whether express, implied, statutory or otherwise regarding the Platform and/or Services, and specifically disclaims and excludes all implied warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law including any implied warranty of merchantability, of satisfactory quality, of timeliness, of effectiveness, of accuracy, or of fitness for a particular purpose. In particular, BytePlus does not warrant that the Platform and/or Services will meet your requirements, operate without interruption, achieve any intended result, be compatible or work with any software system or other services, will not infringe any person’s rights (including IP Rights), will be secure, accurate, complete, up to date, effective, uninterrupted or error-free, or will not contain any harmful code. No oral or written information or advice given by BytePlus or its representatives shall create any warranty. Your use of the Platform and Services is entirely at your own risk.
14.2 This Clause 14 shall apply to the fullest extent permitted by Applicable Laws.
15.1 BytePlus or its Affiliates shall not be liable for any failure to provide the Platform and/or Services (or any part thereof) to the extent that such failure is attributable to your failure to fulfil your obligations under this Agreement, or any other act or omission of you.
15.2 Nothing in this Agreement excludes the liability of BytePlus for:
death or personal injury caused by BytePlus's negligence:
fraud or fraudulent misrepresentation; and
any other liability which cannot be excluded by law.
15.3 Subject to Clauses 15.1 and 15.2, under no circumstances shall BytePlus be liable to you for any indirect, incidental, consequential, special, exemplary, punitive, enhanced, or other damages (including without limitation to damages for loss or interruption of business, loss of data, loss of goodwill, loss of business reputation, lost profits or third party costs), under any theory of liability, including without limitation contract, negligence, strict liability, or other theory arising out of or relating in any way to your use of the Platform or Services, even if BytePlus has been advised of the risk of such damages.
15.4 Subject to Clauses 15.1 to 15.3 (inclusive) and to the maximum extent permitted by Applicable Law:
15.4.1 BytePlus’s maximum aggregate liability to you arising out of or relating in any way to your use of the Platform and Services; and
15.4.2 your maximum aggregate liability to BytePlus;
whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise shall be limited to direct damages and shall not exceed the aggregate amount that you have paid to BytePlus for the use of the Platform and/or Services for the twelve (12) month period prior to the first claim.
15.5 The Parties acknowledge and agree that the disclaimers in Clause 14, limitations of liability in this Clause 15 ****and in the other provisions of this Agreement and the allocation of risk herein are essential elements of the bargain between the parties, without which BytePlus would not have entered into this Agreement.
16.1 You shall indemnify and at all times hereafter keep BytePlus and its Affiliates (including their respective officers, employees and agents) (each an “ Indemnified Party ”) indemnified against any and all direct and indirect Losses, damages, actions, proceedings, costs, claims, demands, liabilities (including full legal costs on a solicitor and own client basis) which may be suffered or incurred by the Indemnified Party or asserted against the Indemnified Party by any person or entity (including you) whatsoever, in respect of any matter or event whatsoever arising out of, in the course of, by reason of or in respect of or related to your use (or misuse) of the Platform or any Services, any violation by you of this Agreement or any Policies, any breach by you of the applicable Data Protection Laws, or any breach of the representations, warranties and covenants made by you herein.
16.2 Subject to Clause 16.4, BytePlus shall defend you against a claim that your use of the Platform and/or Services infringes the IP Rights or other proprietary rights of any person and shall indemnify you for all amounts awarded against you in final judgment or settlement of such claim provided that:
BytePlus is given prompt notice of any such claim;
you provide all reasonable co-operation to BytePlus in the defence and settlement of such claim;
BytePlus is given sole authority to defend or settle the claim; and
the claim for alleged infringement is not based on any of the circumstances listed in Clause 16.4.
16.3 Should the Platform and/or Services become or, in BytePlus’s reasonable opinion be likely to become, the subject of any claim, BytePlus may, in its sole discretion and at its option and expense, either:
procure for you the right to continue to use the Platform and/or Services as contemplated by this Agreement;
replace or modify the Platform and/or Services to make its use in accordance with this Agreement non-infringing; or
with thirty (30) days’ notice to you, terminate this Agreement, and refund to you, in the same currency the fees were paid, any Services Fees already paid by you covering the remainder of the Term after the effective date of termination, and you shall be responsible for all applicable bank transaction fees.
16.4 In no event shall BytePlus, its employees, agents and sub-contractors be liable to you to the extent that the alleged infringement is based on:
a Customer Failure;
a modification of the Platform, Services or Documentation by anyone other than BytePlus;
your use of the Platform, Services or Documentation in a manner contrary to the instructions given to you by BytePlus; or
your use of the Platform, Services or Documentation after notice of the alleged or actual infringement from BytePlus or any appropriate authority.
16.5 Clauses 16.2 to 16.4 (inclusive) state BytePlus’s sole liability to, and your sole and exclusive remedies against BytePlus for claims of infringement of third party IP Rights in relation to the Platform and/or Services.
17.1Governing Law. This Agreement and any non-contractual rights or obligations arising out of or in connection with it shall be governed by and construed in accordance with laws of the Republic of Singapore without giving effect to any choice or conflict of law provision or rule whether of the Republic of Singapore (or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the Republic of Singapore.
17.2Dispute Resolution. The Parties hereby irrevocably agree that any claim, controversy or dispute (“ Dispute ”) arising out of or relating to this Agreement or any Order Form, including with respect to the existence, formation, validity, interpretation, performance or termination of this Agreement or any Order Form or the consequences of its nullity and also including any Dispute relating to any non-contractual rights or obligations arising out of, relating to, or having any connection with this Agreement or any Order Form, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre in accordance with the Arbitration Rules of the Singapore International Arbitration Centre for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat of the arbitration shall be Singapore. The tribunal shall consist of three (3) arbitrators and the language of the arbitration shall be English. Nothing in this clause shall prevent the Parties from applying to a court of competent jurisdiction for provisional or interim measures or injunctive relief as may be necessary to safeguard a Party’s Intellectual Property Rights or other rights that are the subject matter of the Dispute. The decision of the tribunal shall be final and binding on the Parties and neither Party shall appeal against such decision.
18.1. Assignment and Subcontracting.
18.1.1 Subject to Clause 18.1.2, neither Party may assign, novate, transfer or delegate any right, duty or obligation hereunder to any third party without the prior written consent of the other Party.
18.1.2 You acknowledge and agree that we shall have the right to, at any time at our sole discretion, delegate the operation and provision of the Website, Platform and/or Services (or any part thereof) to any of our Affiliates, successors or any other third parties (“ Alternative Provider ”). We will inform you of such delegation. By continuing to access the Website, Platform and use the Services after being informed of such delegation, you acknowledge and agree that this Agreement shall apply mutatis mutandis to govern the relationship between you and the Alternative Provider and your use of and access to the Website, the Platform and/or the Services, save that all references in this Agreement to “BytePlus”, “we”, or “us” shall be replaced with a reference to such Alternative Provider instead.
18.2 Anti-bribery and Corruption. The Parties warrant and represent that they and their Affiliates will not, nor will any of their respective officers, employees, shareholders, representatives, agents or contractors (“ Associated Parties ”) commit, authorize or permit any action in connection with the negotiation, conclusion or the performance of this Agreement or any related agreement which would cause the other Party and/or its Associated Parties to be in violation of any Anti-Bribery Laws. This obligation applies, inter alia, to illegitimate payments including facilitation payments to Public Officials or their associates, families or close friends.
18.3 Export Control and Sanctions.
(a) The Parties shall comply with all economic sanctions and export control laws and regulations ("International Trade Compliance") applicable to the collaboration based on this Agreement, including the laws and regulations where products or services relating to this Agreement are available, and (for enterprise Customers) you represent to procure your Associated Parties compliance as the same.
(b) You represent that, at the time of signing this Agreement, you are not subject to any sanctions or relevant program maintained by applicable government authorities, not a military related agency, and is not owned, controlled by, or acting for or on behalf of, one or more of such persons/entities.
18.4 Without limiting the foregoing, any violation of the above commitments and representations shall be a material breach of this Agreement. Non-Waiver. A waiver of a breach or default under this Agreement shall not be a waiver of any subsequent default. Failure of either Party to enforce compliance with any term or condition of this Agreement shall not constitute a waiver of such term or condition.
18.5 Conflicts. In the event of any conflict or inconsistency between this Agreement and any Policies, the terms of this Agreement shall control and prevail to the extent of such conflict or inconsistency except to the extent that the Policy expressly and specifically states an intent to supersede this Agreement on a specific matter. In the event of any conflict or inconsistency between this Agreement and any Service Specific Terms applicable to any of the Services, the Service Specific Terms shall control and prevail to the extent of such conflict or inconsistency. **
18.6 Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions shall not in any way be affected or impaired thereby.
18.7 Force Majeure. No Party hereto shall be liable for any delay or failure to perform its obligations under this Agreement resulting from a Force Majeure Event. The Party affected by the Force Majeure Event shall give notice forthwith to the other Party upon becoming aware of a Force Majeure Event with such notice to contain details of the circumstances giving rise to the Force Majeure Event. If such delay or failure to perform due to a Force Majeure Event shall continue for more than thirty (30) days, then either Party shall be entitled to terminate this Agreement. Neither Party shall have any liability to the other in respect of the termination of this Agreement as a result of a Force Majeure Event.
18.8 Independent Parties. Parties acknowledge and agree that they are dealing with each other under this Agreement as independent contractors. Nothing contained in this Agreement shall create or be deemed to create a partnership, agency, joint venture or the relationship of employer and employee between the Parties and no Party shall have the express or implied authority to bind or represent the other in any way whatsoever.
18.9 Notices. Any notice given under this Agreement from you to BytePlus shall be in writing and signed by or on behalf of your organization, and shall be served by delivering it personally or sending it by pre-paid recorded delivery to BytePlus at the address as set out in the Order Form, or an alternative address as otherwise notified to you in writing during the Term. Any notice given under this Agreement to you by BytePlus shall be in writing and:
18.9.1 You shall be responsible for ensuring that the contact information set out in your Account details is true, accurate, complete and up to date. BytePlus shall not be liable to you if you are unable to obtain any business notification, customer service, complaint handling, dispute coordination, technical support, etc from us in a timely manner because your contact information is untrue, inaccurate, incomplete, outdated or any other similar circumstances.
18.9.2 You acknowledge and agree that BytePlus shall be entitled to send notifications to you via one or more commercially feasible means, including without limitation to web announcements, emails, system messages, text messages, telephone calls, push notifications, etc. Such notice shall be deemed to be received by you after it has been sent.
18.10 Amendments. This Agreement may not be released, discharged, supplemented, interpreted, amended, varied or modified in any manner except in writing signed by a duly authorized officer or representative of each of the Parties hereto.
18.11 Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all previous agreements and all previous undertakings, representations, warranties and conditions made or given by or on behalf of either Party to the other, relating to the subject matter of this Agreement, whether oral or written, express or implied. Each party acknowledges that, in entering into this Agreement, it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement.
18.12 Counterparts. This Agreement may be executed in any number of counterparts, each of which taken together and when delivered to the Parties hereto shall constitute one and the same document. Either Party may enter into this Agreement by executing any such counterpart but this Agreement shall not be effective until each Party has executed at least one (1) counterpart.
18.13 Rights of Third Parties** . Any person who is not a party to this Agreement (whether or not such person shall be named, referred to, or otherwise identified, or shall form part of a class of persons so named, referred to, or identified, in this Agreement) shall have no right whatsoever under the Contracts (Rights of Third Parties) Act to enforce this Agreement or any of its terms.
In this Agreement, the following words and expressions shall have the meanings respectively assigned to them hereunder:
“ Affiliate ” means, in relation to a Party, any business entity which directly or indirectly controls, is controlled by, or is under common control with that Party. For the purposes of the foregoing, “ control ” shall mean the direct or indirect ownership of more than fifty (50) percent of the outstanding voting securities or capital stock of such business entity or other comparable equity or ownership interest.
“ Anti-Bribery Laws ” means the Prevention of Corruption Act (Chapter 241 of Singapore), the UK Bribery Act 2010, the United States Foreign Corrupt Practices Act, the French Sapin II law (Law No. 2016-1691) and any other anti-corruption or anti-bribery laws or regulations applicable to either Party.
“ Applicable Laws ” means any law, regulation and order, including at the state and local levels, which is mandatory in the Territory.
“ Beta Services ” means any products, services or functionalities provided by BytePlus to Customer clearly designated as beta, pilot, limited release, early access, or by a similar description.
“ Acceptable Use Policy ” means the policy located at: https://docs.bytehouse.cloud/en/docs/acceptable-use-policy (and any successor or related locations designated by us), as it may be updated by us from time to time.
“ Confidential Information ” means all non-public confidential information in oral, written, graphic, electronic, or other form including, but not limited to, past, present, and future business, financial and commercial information, business concepts, prices and pricing methods, marketing and customer information, financial forecasts and projections, technical data and information, formulae, analyzes, trade secrets, ideas, inventions, discoveries, methods, processes, know-how, computer programs, source code, products, equipment, product road maps, prototypes, samples, designs, data sheets, schematics, configurations, specifications, techniques, drawings, and any other data or information disclosed, whether orally, visually, or in writing. Among other things, BytePlus regards the source and object code, software programs, processes, algorithms, methods, and related know-how and residual knowledge developed, created or used by BytePlus or its agents in connection with the performance of the Services, including, without limitation, any software products, processing platforms or other tools named in this Agreement, and any documentation relating thereto including any modifications, enhancements, new versions or derivative works thereof, and all trade secrets, copyrights, patents and other intellectual and proprietary rights therein as BytePlus Confidential Information.
“ Content ” means any files, documents, information, algorithms, models, Data or other content in any format which are fed, connected or uploaded onto the Website or Platform by you or an Authorized User, or created, developed and/or published by you or an Authorized User using any Content.
“ Customer Failure ” means any failure or inability to access or use the Platform, Documentation and/or Services that is attributable to you, including without limitation (i) the use of the Platform, Documentation and/or Services by you which is not in accordance with this Agreement (including any terms incorporated by reference and the Documentation) (ii) your delay in performing, or failure to perform any of your obligations under this Agreement, (iii) connectivity issues with your internet connection; or (iv) failure of your Equipment.
“ Data ” means any data which have been uploaded to the Platform by you for processing, storage or otherwise (including without limitation to Personal Data).
“ Data Protection Laws ” means any laws or regulations applicable to a Party relating to Personal Data, privacy or data protection, as such laws and regulations may be introduced, amended or revised from time to time.
“ Documentation ” means the installation guides, manuals and other documentation made available to you by BytePlus which are related to the Services, including, but not limited to, the user materials that describe the functionality of the Services.
" Authorized User " means those employees, agents and independent contractors who are authorized by you to use the Platform, Services and the Documentation.
“ Equipment ” means computer equipment, mobile phones, servers and computer systems, and other tangible equipment or other tangible personal property on which the Platform and/or Services are to be accessed, software are to be installed and used.
“ Feedback ” means any of your feedback or comments related to the Platform or Services, including without limitation questions, suggestions, recommended changes, suggestions for new features or functionality relating thereto.
“ Force Majeure Event ” means circumstances that are unavoidable, beyond a Party’s reasonable control (whether or not reasonably anticipated), and which renders impossible the performance of any material obligation or the exercise of any material right under this Agreement by either of the Parties including without limitation, including without limitation:
(a) acts of God, flood, fire, earthquake, or explosion;
(b) pandemic, onset of infectious diseases, issuance of quarantine or other prohibition or restrictive orders by any governmental or public authority;
(c) war, terrorism, invasion, or act of insurgency;
(d) national or regional emergency;
(e) strikes, labour stoppages or slowdowns or other industrial disturbances, riot or other civil unrest;
(f) embargoes or blockades in effect on or after the Effective Date, or passage of a law or any action taken or regulations imposed by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition;
(g) any complete or partial government shutdown;
(h) national or regional shortage of adequate power or telecommunications or transportation; or
(i) cyber-attacks, internet service provider failures or delays, or denial of service attacks.
“ Harmful Code ” means any computer code, including any malware and/or software, that is intended or known to be harmful, destructive, disabling or which assists in or enables theft, alteration, denial of service, unauthorized disclosure or destruction or corruption of data including viruses, worms, spyware, adware, keyloggers, trojans, and any new type of threats.
“ Insolvency Event ” means, in relation to a Party:
(a) that Party disposes of all or substantially all of its assets, operations or business (other than a voluntary liquidation for the purpose of amalgamation or reconstruction if the new company assumes all of that Party’s legal obligations);
(b) that Party has taken any step to enter into any arrangement between that Party and its creditors;
(c) that Party ceases to be able to pay its debts as they become due;
(d) that Party ceases to carry on business;
(e) a mortgagee of that Party has taken any steps to enter into possession or dispose of the whole or any part of that Party’s assets or business; or
(f) **any steps have been taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator or other like person of the whole or any part of that Party’s assets or business.
“ IP Rights ” means all copyright, patents, trade marks, service marks, or rights in databases, inventions or trade secrets, know-how, rights in designs, topographies, trade and business names, domain names, marks and devices (whether or not registered) and all other similar or corresponding proprietary rights, intellectual property rights and applications for any of those rights (where such applications can be made) capable of protection in any relevant country of the world.
“ Losses ” means all losses, damages, liabilities, and costs including reasonable legal fees.
“ Organization ” means the business entity with which BytePlus has entered into this Agreement.
“ Order Form ” means a written order for Services submitted by you to BytePlus.
“ Party ” shall mean each of BytePlus and your Organization (as the case may be), and “ Parties ” shall be construed accordingly.
“ Personal Data ” means all information (including for the avoidance of doubt opinions) which identifies, or which relates to an individual, whether true or not, in any form, including:
(a) all data which is defined to be “Personal Data” under any Data Protection Laws; and
(b) **all information, the collection, disclosure, use or processing of which is subject to any Data Protection Laws.
“ Platform ” **means the section(s) of the Website provided by BytePlus through which the Services may be accessed and purchased, subject to the terms of this Agreement.
“ process ”, in relation to Personal Data, has the meaning given to it in applicable Data Protection Laws.
“ Public Official ” means an officer or employee of (i) a government (including its agencies and departments); (ii) a government-owned or government-controlled entity; (iii) a regulatory entity; (iv) a public international organization; (v) a political party; or (vi) any person acting in an official capacity on behalf of any of the above.
“ Service Fees ” means the applicable fees and charges specified on the Website for the provision of the Services.
“ Services ” **means the services to be provided by BytePlus and its Affiliates via the Platform under the terms of this Agreement.
“ Technical Data ” means system specific data or information and other technical data relating to the Services.
“ Territory ” means any country or region of the world set out under the Order Form.
“ Third Party Actions ” includes but is not limited to services provided by third parties, actions or omissions of third parties and/or content created or owned by third parties which you may access or use via the Platform and/or Services.
“ Third Party Disputes ” means all claims, demands and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, foreseeable or unforeseeable, arising out of or in any way connected to such disputes you may have with any Third Party Software providers or third party service providers.
“ Third Party Software ” means any third party software (including without limitation a compatible third party web browser) which is not incorporated into Services.
“ Termination Fees ” means the fees or charges payable by Customer to BytePlus in accordance with Clause 14.6 ( Termination Fees ), such fees or charges of which is without prejudice to all other rights and remedies available to BytePlus under the Agreement and Applicable Laws and shall include: (i) the full amount of the Service Fees that Customer would have been charged for the remainder of the Service Term and all third party charges and any other costs and expenses incurred for or on behalf of Customer in connection with the terminated Services; (ii) reimbursement to BytePlus for all volume, term or other credits provided in anticipation of full performance of Customer’s obligations; and (iii) any additional termination charges set forth in the applicable Order Form or this Agreement.
“ Update ” means any modification to the Documentation, Website, Platform or Services, including without limitation (i) updating or changing the Documentation, Website, Platform or Services (or any part thereof) from time to time (including but not limited to modifying, upgrading, migrating, enhancing functions, or developing new Services), (ii) carrying out server migration, and (iii) changing, suspending or removing some of the Services or some of their specifications, features, functions or API interfaces, as the case may be. “ Updated ” shall be construed accordingly.
" Website " means the website at: https://bytehouse.cloud/.
“ Website Terms ” means the Website Terms of Service located at: https://docs.bytehouse.cloud/en/docs/terms-of-service (and any successor or related locations designated by us), as it may be updated by us from time to time.
19.2.1 Words referring to the singular only shall also include the plural and vice versa where the context requires.
19.2.2 Any word or expression defined in this Agreement shall, unless the context otherwise requires, have the same meaning in the annexes to this Agreement.
19.2.3 Words referring to the masculine gender shall include the feminine and neutral genders.
19.2.4 Words referring to a person shall include bodies of such person, whether corporate or unincorporated.
19.2.5 ****References to any legislation (including subordinate legislation) are to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it.
This Agreement may be translated into other languages. The English language version of the Agreement shall be controlling in all respects and shall prevail in case of any inconsistencies with translated versions.
Updated over 1 year ago