EULA | Main Arcstone Site

Arcstone End-User License Agreement (“EULA”)

PLEASE READ CAREFULLY BEFORE USING THIS PRODUCT. This end-user license agreement (the "EULA") is a legal agreement between (a) the End-User (as defined below) and (b) Arcstone Pte. Ltd. (the "Licensor") that governs your use of the Product (as defined herein), made available by the Licensor to you.

BY INSTALLING OR USING THE PRODUCT, THE END-USER AGREES TO BE BOUND BY THE TERMS OF THIS EULA IF THE END-USER DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE PRODUCT.

It is agreed as follows:

1.Definitions and Interpretation

In this Agreement and the Schedule to this EULA, unless the context otherwise requires:

1.1Definitions

“Arcstone Services” shall mean the professional services specified in the Purchase Order(s), including, as applicable, installation services, implementation services, maintenance and technical support services relating to the Arcstone Software Subscription, including the Annual IaaS Subscription, Implementation Services and the Technical Support.

“Arcstone Software Subscription” or “Arcstone Software” shall mean any Software purchased by the End-User from Arcstone or an approved third-party as specified in the Purchase Order(s).

“Affiliate” shall mean, with respect to a party, any entity which now or hereafter is directly or indirectly Controlling or Controlled by, or under direct or indirect Control with, such party.

For the purpose of this definition, the term “control” shall mean: (a) possession, direct or indirect, of the power to direct or cause the direction of the management or policies of a party, whether by contract, trust or otherwise; or (b) direct or indirect ownership of more than fifty percent (50%) of the voting rights of the said party;

“Applicable Laws” means all applicable laws, treaties, ordinances, statutes, enactments of any governmental authority or body, including rules, regulations, orders, by-laws, notifications, guidelines, policies, directions, directives and orders, decrees, administrative interpretations, judgments, decrees, injunctions, writs and orders or consents of, with or to any governmental authority or body as may be in force from time to time;

“Business Day” means any day (other than a Saturday, Sunday or gazetted public holiday) on which banks in Singapore are open for business;

“Charges” shall mean the fees payable by the End-User to the Licensor or a Licensor approved third-party in accordance with any Purchase Order(s) for the Product;

“Commencement Date” shall mean the earlier of the date of commencement of the subscription term for the Product as set out in the Purchase Order, or the date on which the license key of the Product is provided to the Licensor at the Licensor’s request, or the date on which the project relating to the installation, deployment, configuration and overall implementation of the Product formerly starts (the “Project Kickoff Date”) as signed off by the Licensor in writing.

“Commercial Timesharing” means the serial use of the Product by two or more users;

“Confidential Information” shall bear the meaning ascribed to it in the NDA as entered into between the End-User and the Licensor. For the purposes of the EULA, “Confidential Information” shall include any information generated by the End-User which contains, reflects or is derived from any Confidential Information of the End-User. If an NDA has not been entered into between the End-User and the Licensor, then the following definition of “Confidential Information” shall apply: “Confidential Information” means any data or information that is proprietary to the Licensor and not generally known to the public, including, but not limited to: (i) any marketing strategies, plans, financial information, or projections, operations, sales estimates, business plans and performance results relating to the past, present or future business activities of the Licensor, its Affiliates, subsidiaries and affiliated companies; (ii) plans for products or services, and customer or supplier lists; (iii) technical information, inventions, designs, processes, procedures, formulae, improvements, technology, concepts, reports, data, know-how, works-in-progress, designs, development tools, specifications, computer software, source code, object code, flow charts, databases and trade secrets; (v) any other information that should reasonably be recognized as confidential information of the Licensor; and (vi) any information generated by the End-User that contains, reflects, or is derived from any of the foregoing;

“Documentation” means the then current technical and/or functional documentation for the Product produced by the Licensor and delivered or made available by the Licensor to the End-User;

“End-User” means the individual and/or the entity that is licensed or authorised by the Licensor to use the Product and/or the Licensed Technology;

“End-User Data” means any electronic data or information submitted or uploaded to the Product by the End-User, and any reports generated by the End-User through the Product using such electronic data or information submitted or uploaded to the Product by the End-User.

“EULA” means this End-User License Agreement read together with the Quotation and where the context so admits shall include any amendments and supplementals made to it from time to time

"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the Party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third Party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

“Intellectual Property Rights” means all inventions, innovations, improvements, developments, methods, patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, trade names and domain names, rights in industrial designs, drawings and plans, rights in software (including source code or object code), database rights, rights in Confidential Information and any other legally-recognized intellectual property rights, in each case whether registrable, registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

“Licensed Technology” shall mean all tangible or intangible know-how, trade secrets; techniques and processes, methodologies, operations, and activities; Source Code; software designs, algorithms, formulas and protocols, data and technical information which has been developed or acquired (with the right to disclose and sublicense) by the Licensor in relation to the Product;

“Minimum Term” means, in respect of this EULA, the period of 12 months beginning on the Commencement Date;

“Open Source Software” shall mean any Software: (a) that is licensed or distributed as “free software” (as defined by the Free Software Foundation) or “open source software” (subject to a license approved by the Open Source Initiative at www.opensource.org), or that is under a similar licensing or distribution model, including but not limited to the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), BSD License, Apache License, MIT License, Artistic License (Perl), Eclipse Public License, and Microsoft Reciprocal License; or (b) that requires as a condition of its use, modification and/or distribution, that the Software be (i) disclosed, made available or distributed in Source Code form, (ii) licensed for the purpose of making derivative works, (iii) licensed under terms that allow reverse engineering, reverse assembly or disassembly of any kind, and/or (iv) redistributable free from enforceable intellectual property rights;

“Parties” means the Licensor and the End-User and “Party” means any one of them;

“Product” shall mean the “Arcstone Software Subscription” or “Arcstone Software”. For the avoidance of doubt, “Product” shall exclude any and all software, technology or other Intellectual Property Rights owned by or licensed to the End-User and/or its Affiliates on which the Product operates, with which the Product interoperates or into which the Product is integrated;

“Product Specification” shall mean the specifications for the Product (including all technical, functional and other relevant specifications) as mutually agreed between the Licensor and End-User as at the Commencement Date, including any updates, amendments and supplements thereto which may be provided by the Licensor to the End-User from time to time and as mutually agreed between the Licensor and End-User. If no specifications have been agreed between the Licensor and End-User, then “Product Specification” shall mean the specification for the Product set out in the Documentation;

“Purchase Order” shall mean any written or electronic purchase order or service order for Arcstone Software and/or any Arcstone Services issued by the End-User to Arcstone or an approved third-party in reference to and incorporating a Quotation issued by Licensor or an approved third-party to the End-User.

“Quotation” shall mean any written or electronic quotation for Arcstone Software and/or any Arcstone Services issued by Licensor or an approved third-party to the End-User and accepted by the End-User via the issuance of a Purchase Order in reference to and incorporating the Quotation;

“Regular Business Hours” means the business hours of the Licensor from 9 a.m. to 6 p.m. Singapore Standard Time during Business Days, but may be revised at the sole and absolute discretion of the Licensor;

“Representatives” shall mean, with respect to a party, its directors, officers, employees, subcontractors, consultants, and professional advisers.

“SIAC” means the Singapore International Arbitration Centre;

“Software” shall mean: (a) any software, computer or program code, or other materials, including that which contains, is derived from, or statically or dynamically links to the foregoing software, computer or program code, or other materials; (b) any new releases, updates or versions thereof; and (c) any complete or partial copies of the foregoing;

"Source Code" means (i) computer programs expressed in a source language or form which can be interpreted or compiled and then executed by a computer as commands; and (ii) all documentation and tools reasonably required to enable a person having commercially available computer programming skills to read, understand and modify such computer programs;

“Tax” means all forms of taxation whether direct or indirect and whether levied by reference to income, profits, gains, net wealth, asset values, turnover, added value or other reference and statutory, governmental, state, provincial, local governmental or municipal impositions, duties, contributions, rates and levies, whenever and wherever imposed (whether imposed by way of a withholding or deduction for or on account of tax or otherwise) and in respect of any person and all penalties, charges, costs and interest relating thereto;

“Technical Support” shall mean the remote helpdesk and technical support services to be provided by the Licensor to the End-User in relation to their use of the Product as well as the identification, diagnosis and resolution of errors in the Product, but shall exclude any on-site support, remote back-end support, implementation services and IaaS Subscription;

“Third Party License” shall mean the license granted by the proprietor of the Third Party Software to the Licensor or End-User;

“Third Party Software” shall mean any Software licensed by any third party to the Licensor or End-User which is used in conjunction with the Product, interoperates with the Product or is integrated into the Product;

“Third Party Hardware” means hardware provided by the Licensor’s third party suppliers and used in conjunction with the Product;

“Updates” means incremental releases between version releases of the Product and/or the Licensed Technology to deal with bug fixes, minor corrections or minor refinements to the Product and/or the Licensed Technology; and

“Upgrades” means any major corrections, additions, amendments or enhancements to the Product and/or the Licensed Technology which change its utility, efficiency, functional capability or application, of the Product and/or the Licensed Technology that significantly add value and utility to the Product and/or the Licensed Technology and includes new version releases of the Product and/or the Licensed Technology.

1.2Unless the context otherwise requires:

words importing the singular number include the plural number, and vice versa;
the words “hereof”, “herein”, “hereon” and “hereunder” and words of a similar import, when used in this EULA, refer to this EULA as a whole and not to any particular provision of this EULA;
the headings to the Clauses hereof shall not be deemed to be a part thereof or be taken in consideration in the interpretation or construction thereof or of this EULA;
references herein to Clauses and Schedules are references to Clauses of and Schedules to this EULA;
references herein to documents include variations and replacements thereof and supplements thereto;
references herein to statutes and other legislation include re-enactments and amendments thereof and include any subordinate legislation made under any such statute; and
references herein to a party include its permitted assigns and transferees, and its successors-in-title and personal representatives.

2.Grant of License

2.1License. The Licensor hereby grants to the End-User a limited, non-exclusive, non-transferable, and revocable right and license to use the Product and the Licensed Technology during the term of this EULA in accordance with the terms and conditions set out herein. Licenses are issued on a per manufacturing site basis. Multiple Licenses are required for each individual manufacturing site.

A single manufacturing site is defined as a distinct physical location encompassing a single building where all manufacturing activities are concentrated. This includes the production, assembly, or processing of goods within the confines of the designated structure. However, if any of the below parameters in the single building are exceeded, customized per site license and pricing would apply on a case-by-case basis:

One production instance of arc.ops, excluding instances for high availability or backup purposes
100 Machines or 300 Concurrent users

2.2Exclusions. Subject to Clause 2.3, the license granted under Clause 2.1 shall not include any right, whether express or implied, in favor of the End-User:

2.2.1 to sublicense, assign, transfer, sell, lease, rent, or distribute the Product and/or the Licensed Technology or to grant any right relating thereto to any party without the prior written consent of the Licensor; and/or

2.2.2 to commercialise or exploit the Product and/or the Licensed Technology, or use the Product and/or the Licensed Technology for purposes other than for the End-User’s business.

2.3Restrictions. Except as expressly provided in this EULA, the End-User shall not without the Licensor’s prior written consent, directly or indirectly: (i) reverse engineer, decompile, disassemble, hack or otherwise attempt to discover the Product, Licensed Technology or any part thereof (including the Source Code or underlying components thereof); (ii) copy, modify, translate, or create derivative works based on the Product and/or the Licensed Technology, including to adapt or reduce the Product and/or the Licensed Technology to human readable form; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer rights to the Product and/or the Licensed Technology to any other party; (iv) use the Licensed Product and/or the Licensed Technology for Commercial Timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) remove any proprietary notices from the Product; or (vi) publish or disclose to third parties any evaluation of the Product and/or the Licensed Technology.

2.4Reservation of Rights. The Product is licensed, not sold, to the End-User by the Licensor and the Licensor owns all right, title and interest in and to the Product and reserves all rights not expressly granted to the End-User in this EULA. Nothing contained herein shall be construed, expressly or implicitly, as transferring any right, license or title to the End-User other than those explicitly granted under the terms and conditions of this EULA. The End-User hereby agrees that any material breach of Clause 2.3 of this EULA will constitute substantial and irreparable harm to the Licensor for which monetary damages would be an inadequate remedy, and that injunctive relief will be an appropriate remedy for such breaches.

2.5Source Code. Nothing in this EULA shall give to the End-User or any other person any right to access or use the Source Code or constitute any license of the Source Code.

3.Technical Support

3.1Technical Support for the Product will be provided free of charge by the Licensor to the End-User during the full subscription term. Technical Support will be available via e-mail or online chat during Regular Business Hours. Any maintenance and technical support services outside the scope of the Technical Support may be offered by the Licensor or an officially authorized representative of the Licensor as a separate paid support service.

3.2The Licensor shall provide Technical Support in accordance with all warranties given by the Licensor in relation to the Arcstone Services.

3.3For the avoidance of doubt, the Technical Support does not include the following (hereinafter referred to as “Excluded Services”):

correction of any errors resulting from any unauthorized modification of the Product or the Licensed Technology by the End-User;
maintenance of the Product or the Licensed Technology previously repaired or modified by any person other than the Licensor’s officially authorized representatives or without the Licensor’s prior written consent; and
maintenance necessitated by any material breach by the End-User of any of the obligations hereunder.

Where the End-User requires the Licensor to perform any Excluded Services, except where the Excluded Services are included within an IaaS Subscription, the Licensor shall be entitled to charge the End-User additional fees at the Licensor’s prevailing rates.

4.Product Hosting

4.1The Product may be hosted by the End-User or its third-party hosting service provider. The hosted services shall be subject to the terms of service, service level agreements and privacy and data protection policies as agreed between the End-User and its third-party hosting service provider. The Licensor shall not be responsible or liable and the End-User shall have no claim whatsoever against the Licensor for all or any breaches of such terms of service, service level agreements and privacy and data protection policies, actions, defaults, omissions or negligence of the End-User’s third-party hosting service provider in the provision of the hosted services. For the avoidance of doubt, the hosted services are independent from and shall not in any way limit or diminish the Licensor’s obligations to perform the Arcstone Services and, further, shall not prejudice or derogate from any warranties given by the Licensor in relation to the Arcstone Services.

4.2As part of the Licensor’s obligations to support and maintain the Product and the Licensed Technology, the End-User agrees and undertakes to grant and to procure the relevant hosting service provider to grant to the Licensor the necessary access to the Product and the Licensed Technology for the performance of the Arcstone Services.

5.Updates and Upgrades

5.1Unless otherwise agreed in writing between the Licensor and the End-User, during the full subscription term, the Licensor shall make available to the End-User, on a free-of-charge basis, all available Updates, Upgrades, supplements and add-on components (if any) of the Product and/or the Licensed Technology, including bug fixes, service upgrades (in part or in whole), patches, updates, modifications, enhancements, improvements and changes to any features of the Product and/or the Licensed Technology (including entirely new versions) (collectively “Update/Upgrade”. Unless otherwise agreed in writing between the Parties, this EULA shall apply to any and all components of the Update/Upgrade. The End-User shall have access to an Update/Upgrade only if this EULA remains valid and enforceable at the time when any such Update/Upgrade is available.

6.Proprietary Rights

6.1Exclusive Ownership. Unless otherwise agreed between the Licensor and the End-User in writing, all or any Intellectual Property Rights (“IPR”) in and to the Product and the Licensed Technology are and shall remain the exclusive property of the Licensor. Nothing in this EULA shall or intends to transfer any Licensor IPR to, or to vest any such Licensor IPR in, the End-User, except for the license granted by the Licensor to the End-User under this EULA. Subject to the license rights expressly granted to the End-User under this EULA, the Licensor reserves all rights, title, benefit and interest in and to the Licensor IPR. All rights in respect of any modifications to the Product and/or the Licensed Technology, whether carried out by the Licensor or the End-User or their authorized Representatives, shall be and remain the sole property of the Licensor. End-User acknowledges and agrees that this EULA shall not in any way prevent the Licensor from providing services to other clients using the ideas, concepts, techniques, know-how and experience used hereunder or from developing products or services which might be similar to or competitive with the Product.

6.2Trade Marks. The Licensor is the beneficial owner of all rights, title, interest and benefits in and to the Trade Marks as the Licensor may designate or develop from time to time in the future for the purpose of identifying the Product and/or Licensed Technology for the public. The End-User acknowledges that the Licensor owns, or has the exclusive license to use, the Trade Marks, and may from time to time apply for registration of other trade marks and service marks. The End-User agrees not to at any time contest the Licensor’s ownership of the Trade Marks and undertakes not to use the Trade Marks in derogation of the rights of the Licensor.

6.3Not to Interfere Licensor’s Intellectual Property Rights. The End-User’s use of the Product and/or the Licensed Technology does not give the End-User any ownership interest or other interest in or to the Product, the Licensed Technology or the Trade Marks. The End-User shall not take any action to jeopardize, limit or interfere with the Licensor’s Intellectual Property Rights in and to the Product, the Licensed Technology or the Trade Marks. Any unauthorized use of the Licensor’s Intellectual Property Rights is a violation of this EULA and may further amount to a violation of the applicable law governing the protection of intellectual property in the relevant jurisdiction(s).

6.4No Removal of Notices. The End-User agrees and undertakes not to remove, obscure, make illegible or alter any notices or indications of the Licensor’s Intellectual Property Rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to the Product, the Licensed Technology or any materials relating thereto.

6.5Third Party Software.

6.5.1 With respect to Third Party Software (including any Open Source Software) licensed to the Licensor and integrated into the Product, the Licensor represents and warrants to the End-User that the Licensor has the full right, power and authority to grant the licence of the Product under this EULA to the End-User and that save for the restrictions set out in Clause 2.3 of this EULA, there are no other restrictions under the Third Party Licence or otherwise which may jeopardise, limit or interfere with the End-User’s rights as licensee under this EULA. Notwithstanding the integration of such Third Party Software, the Licensor shall remain fully liable to the End-User for any breach of the warranties under this EULA.

6.5.2 With respect to Third Party Software licensed to the End-User which interoperates with the Product (such as Windows Server Operations System and Microsoft SQL Server) or which will be integrated with the Product, the Parties agree to accept and comply with all terms and conditions of the Third Party Licence. If the End-User requires the Licensor, in the provision of the Technical Support hereunder, to use any Third Party Software and/or other Intellectual Property Rights licensed to the End-User by a third party, the End-User shall ensure that the End-User has the right to provide the Licensor with access to or use of the Third Party Software and/or other Intellectual Property Rights for the purpose of providing the Technical Support to the End-User. The Licensor agrees and undertakes to use such Third Party Software only in the provision of the Technical Support under this EULA. The Licensor shall not acquire any right, title or interest in or to any Intellectual Property Rights of the proprietor of the Third Party Software by virtue of the foregoing.

6.6End-User Data. The Licensor acknowledges that any and all End-User Data shall remain the property of the End-User. The Licensor and its Representatives shall each comply with the provisions of the NDA as entered into between the End-User and the Licensor.

6.7Contributions. In this Clause 6.7, “Contributions” shall mean all feedback, comments, information, ideas, suggestions, documents, and/or proposals in respect of the Product and/or the Licensed Technology, excluding any and all Confidential Information disclosed by or on behalf of the End-User and/or its Affiliates, given by the End-User to the Licensor. The End-User acknowledges and agrees that the Licensor shall be free to use, for any purpose, any ideas, concepts, techniques or know-how contained in such Contribution, and any use, adaptation, modification, reproduction or distribution of the Contributions shall be property of the Licensor without any obligation to the End-User.

7.Beta and Trial Use

Beta or trial versions of the Product may contain bugs, errors, or other issues. Therefore, they may not be used in the End-User’s production environment(s) unless otherwise permitted by the Licensor in writing. If the Licensor provides the End-User access to the Product for limited, temporary trial use, the End-User’s use is permitted for the period limited by the license key or by the Licensor in writing. If the End-User fails to either cease using the Product by the end of the trial period, the End-User will be invoiced for the applicable subscription price of the Product. Notwithstanding the foregoing, the Licensor, in its discretion, may end the beta or trial at any time, at which point the End-User will no longer have access to any related data, information, and files and the End-User should immediately cease any further use of the Product. Furthermore, beta and trial version of the Product is provided on an “as-is” basis without support or any express or implied warranty or indemnity for any problems or issues, and the Licensor shall not have any liability relating to the End-User’s use of the Product.

8.End-User’s Responsibilities

8.1The End-User shall comply in all material respects with all Product Specification and reasonable instructions provided by the Licensor in respect to the use of the Product and/or the Licensed Technology, and shall use the Product and/or the Licensed Technology solely in conjunction with the End-User’s business for lawful purposes. In this respect, the End-User agrees not to do any of the following:

wilfully use the Product and/or the Licensed Technology in violation of any applicable laws in the local jurisdiction where the End-User has installed the Product;
intercept or monitor, damage or modify any of the Licensor’s communication with the Product and/or the Licensed Technology (except to the extent necessary for the implementation or use of any cybersecurity tools, including Software, by the End-User and/or its Affiliates);
use any type of spider, virus, worm, trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage or disassemble the Product and/or the Licensed Technology or the communication between the Licensor and the Product/Licensed Technology; or
use any Third Party Software with the Product and/or the Licensed Technology without the prior written consent of the Licensor, except in respect of the use of any Third Party Software which must be interoperated with the Product as stated in the Product Specification.

8.2Where the Product is hosted by the End-User or End-User’s designated hosting service provider, Licensor shall not be liable for any data, content and materials which End User uploads or allows to be uploaded to the cloud server used for the Product (if any), whether such data, content or material constitutes text, graphics, audio files or other file formats.

8.3The End-User shall notify the Licensor in writing without undue delay if the End-User becomes aware of any actual or suspected infringement of the Intellectual Property Rights of the Product or the Licensed Technology by any third party. The End-User shall not commence litigation in respect of such infringement by any third party without the Licensor’s prior approval.

8.4The End-User shall be responsible for acquiring all hardware and software compatible with the Product as described in the Product Specification and all equipment necessary to make connections to the World Wide Web, including a computer and Internet access, to access and use the Product.

9.Confidentiality of Information

The Parties agree that the Mutual Non-Disclosure Agreement (“NDA”) entered into by and between Licensor and End-User, shall govern any Confidential Information (as defined in the NDA) disclosed by End-User pursuant to or for the purposes contemplated under this EULA. To the extent that the NDA is due to expire earlier than this EULA, the Parties mutually agree to extend the validity period of the NDA until the date of expiry or termination of this EULA.

If the Parties have not entered into an NDA, then the following sub-clauses 9.1 to 9.4 shall apply with respect to confidentiality of information.

9.1The Licensor and the End-User shall and shall procure their Affiliates and partners at all times treat as confidential and not disclose Confidential Information of the Licensor or the End-User.

9.2Exceptions. Clause 9.1 shall not prohibit disclosure or use of any information if and to the extent:

2. 1. the disclosure or use is required by law or any regulatory body;
  2. the disclosure or use is required for the purpose of any judicial proceedings arising out of this EULA or any other agreement entered into under or pursuant to this EULA or the disclosure is reasonably required to be made to a Tax authority in connection with the Tax affairs of the Licensor or the End-User, as the case may be, save that such disclosure shall not be made if and to the extent that the information is protected by legal professional privilege;
  3. such disclosure of information is to the Licensor’s or End-User’s professional advisers, employees and agents on a need-to-know basis and subject to strict confidentiality obligations;
  4. the information becomes publicly available (other than by a breach of this EULA); or
  5. the Licensor or the End-User, as the case may be, has given prior written approval to the disclosure or use,

provided that prior to disclosure or use of any information pursuant to Clause 9.2.1 or Clause 9.2.3 (except in the case of disclosure to a Tax authority), the Party attempting to make the disclosure shall promptly notify the other Party of such requirements with a view to providing the other Party, upon receipt of the notification and within a reasonable timeframe, the opportunity to contest such disclosure or use or otherwise agree to the timing and content of such disclosure or use.

9.3A breach of this Clause 9 by the Licensor or the End-User, as the case may be, shall amount to a material breach of this EULA.

10.Access to Information

10.1The End-User shall provide the Licensor and their authorized Representatives reasonable access to its premises (such access being limited to the endpoints where any Product(s) are installed) and make available with the Purchase Orders, invoices and transactional records relating to the End-User purchase of the Products and render any other reasonable assistance as the Licensor may reasonably require, in each case as requested by the Licensor at any time in order to comply with any mandatory legal and regulatory requirements that the Licensor is subject to from time to time, provided that (a) prior written notice of at least seven (7) Business Days is given by the Licensor to the End-User, (b) such inspection is conducted at a mutually agreed time during the normal business hours of the End-User, and (c) the Licensor and/or its authorized Representatives are each bound by confidentiality obligations which are as restrictive as those under Clause 9.1 of this EULA.

11.Consent to Use of Data

11.1The End-User hereby agrees that the Licensor, its Affiliates and suppliers may collect and use aggregated and statistical data derived from the Product and/or the Licensed Technology, including any data derived from the use of the Product by the End-User, backup operations and technical information that the End-User provides in relation to support services related to the Product, (collectively “Aggregated Data”). Nothing herein shall be construed as prohibiting the Licensor from utilizing the Aggregated Data for purposes of operating the Licensor’s business, provided that the Licensor’s use of Aggregated Data will not reveal the identity, whether directly or indirectly, of any individual or specific data entered by any individual into the Product and/or the Licensed Technology. In no event does the Aggregated Data include any personally identifiable information.

12.Data Protection

12.1The End-User shall put in place such measures as may reasonably be required by the Licensor to comply with Applicable Laws to protect against unauthorized or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data held or processed by it and undertakes to allow the Licensor access to any relevant premises on reasonable notice to ensure that such measures are in place.

13.Term

13.1Unless earlier terminated by the Licensor or the End-User in accordance with this EULA, the term of this EULA shall be the subscription period as set out in the Quotation commencing on the Commencement Date.

13.2Subject to the End-User’s payment of the applicable renewal fees prior to the commencement of the renewal period in accordance with the Quotation, the subscription of the Product shall automatically renew for the renewal period (if applicable) set out in the Purchase Order (“Renewal Term”) upon the same terms and conditions unless the End-User notifies the Licensor in writing at least ninety (90) days before the end of the then-current term of the End-User’s intention not to renew.

14.Fees

14.1End-User shall pay to Licensor or a Licensor approved third party the respective fees for the Arcstone Software and Arcstone Services, as determined in accordance with the terms laid out in the Quotation and Purchase Order (the “Fees”).

15.Warranties

15.1Each Party represents and warrants to the other Party that, as at the effective date of this EULA:

1. 1. it has full power and authority and has been duly and validly authorized by all necessary corporate action to enter into, perform, exercise its rights and comply with its obligations under this EULA;
  2. the execution, delivery and performance of its obligations under this EULA shall not (a) result in any breach of its constitutive documents, (b) amount to any breach or constitute any default under any agreement, contract or instrument to which it is a party or by which it is bound, or (c) result in any breach of any applicable laws, regulations, rules, orders or judgments to which it is bound; and;
  3. upon execution of this EULA, its obligations hereunder shall be legally valid, binding and enforceable in accordance with the terms hereof.

15.2The Licensor represents and warrants to the End-User that the Product as provided shall conform fully in all material respects with the Product Specification (including but not limited to all technical and functional specifications of the Product); and

Save for the warranties expressly stated in this EULA, to the maximum extent permitted by Applicable Law, the Licensor hereby disclaims all other warranties relating to the Product, whether express, implied or statutory, including but not limited to any implied warranties of merchantability or fitness for a particular purpose

15.3Third-Party IP Claim

1. The Licensor shall indemnify the End-User (including the Representatives of the End-User) (collectively, “End-User Indemnitees”) from and against all Losses directly or indirectly resulting from or in connection with any third-party claim that any Product or Licensed Technology, whether alone or in any combination, or the use of any Product or Licensed Technology in accordance with this EULA, infringes any Intellectual Property Rights (“Third-Party IP Claim”). If so directed by the End-User, the Licensor shall defend the Third-Party IP Claim at the Licensor’s own cost and expense. Notwithstanding the above, the indemnity in this Clause 15.3 shall not apply where the Third-Party IP Claim is reasonably determined to be caused by any breach of the obligations under Clause 2.3 by End-User;
2. In the event that the Licensor or any End-User Indemnitee receives notice of any Third-Party IP Claim, or if any End-User Indemnitee reasonably believes that a Third-Party IP Claim is likely, or if the use of any Product or Licensed Technology is enjoined, Licensor shall, as directed by End-User, but at Licensor’s own cost and expense:
3. If the Licensor fails to comply with the requirements under Clause 15.3.2 within ninety (90) days after being notified in writing by the End-User, the End-User may terminate this EULA with immediate effect by giving written notice to the Licensor, without prejudice to the Licensor’s indemnification obligations under Clause 15.3.1.

15.4All of the parties' warranties and representations in respect of the subject matter of this EULA are expressly set out in this EULA. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this EULA will be implied into this EULA or any related contract.

16.Acknowledgements and warranty limitations

16.1The End-User acknowledges that complex Software is never entirely free from defects, errors and bugs and, subject to the other provisions of this EULA (including the warranties under Clause 15), the Licensor gives no warranty or representation that the Product will be wholly free from defects, errors and bugs. The Licensor is not aware of any major defects, errors and/or bugs in the Product which would render it unusable by the End-User or which jeopardizes, limits or interferes with the functionality of the Product to a material degree.

16.2The End-User acknowledges that complex Software is never entirely free from security vulnerabilities and, subject to the other provisions of this EULA (including the warranties under Clause 15), the Licensor gives no warranty or representation that the Product will be entirely secure.

16.3The End-User acknowledges that the Product is only designed to be compatible with the hardware and software specified as compatible in the Product Specification; and the Licensor does not warrant or represent that the Product will be compatible with any other hardware or software.

16.4The End-User acknowledges that the Licensor will not provide any legal, financial, accountancy or taxation advice under this EULA or in relation to the Product.

17.Limitations and exclusions of liability

17.1Neither Party excludes or limits its liability for death or personal injury arising from its own negligence, fraud or for any liability that cannot by law be excluded or limited.

17.2SUBJECT TO CLAUSE 17.1 AND TO THE MAXIMUM EXTENT PERMITTED BY LAW:

2. 1. IN NO EVENT SHALL END-USER (AND/OR ITS AFFILIATES, REPRESENTATIVES, SUCCESSORS OR ASSIGNS) BE LIABLE TO LICENSOR (AND/OR ANY OF ITS AFFILIATES, REPRESENTATIVES, SUCCESSORS OR ASSIGNS) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOSSES, WHETHER OR NOT SUCH DAMAGES OR LOSSES ARE BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED, IS AWARE, OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; AND
  2. THE AGGREGATE LIABILITY OF ARCSTONE ARISING OUT OF OR IN CONNECTION WITH ALL TRANSACTIONS BETWEEN THE PARTIES AS CONTEMPLATED UNDER THIS EULA, THE ARCSTONE SOFTWARE AND/OR THE ARCSTONE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT, OR OTHERWISE, SHALL NOT EXCEED THE LESSER OF (A) THE AGGREGATE AMOUNT PAID BY END-USER TO LICENSOR IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM; OR (B) ONE MILLION UNITED STATES DOLLARS (USD 1,000,000).
  3. THE AGGREGATE LIABILITY OF END-USER ARISING OUT OF OR IN CONNECTION WITH ALL TRANSACTIONS BETWEEN THE PARTIES AS CONTEMPLATED UNDER EULA, THE ARCSTONE SOFTWARE AND/OR THE ARCSTONE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY END-USER TO LICENSOR IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

18.Suspension

18.1Without prejudice to the Licensor’s rights to terminate this EULA, the Licensor may, in accordance with the terms of this EULA and to the maximum extent permitted by applicable law, modify or discontinue or suspend the End-User’s use of the Product and/or the Licensed Technology, and/or disable the Product, upon the occurrence of any of the events set out in Clause 19 of this EULA, or where it has been reasonably determined that the End-User is using the Product or the Licensed Technology to carry out any fraudulent, immoral or illegal activities

19.Termination

19.1The Licensor may terminate this EULA by giving prior written notice of termination of at least thirty (30) days to the End-User if the End-User commits a material breach of this EULA but fails to remedy such breach within thirty (30) days after receiving written notice from the Licensor requiring the breach to be remedied.

19.2The Licensor may terminate this EULA immediately by giving written notice to the End-User if:

2. 1. the End-User unreasonably withholds or delays payment of the Fees beyond sixty (60) days from the date of the invoice issuance and the Fees remains unpaid upon the date that the written notice of termination is given; and
  2. the Licensor has given to the End-User at least 30 days' written notice, following the failure to pay, of its intention to terminate this EULA

20.Effects of Termination

20.1Upon the termination of this EULA, all of the provisions of this EULA shall cease to have effect, save that the following provisions of this EULA shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 2.3, 2.4, 6, 9, 11, 14, 16, 17, 18, 19, 22, 23 and 24.

20.2Except to the extent that this EULA expressly provides otherwise, the termination of this EULA shall not affect the accrued rights of either Party.

20.3For the avoidance of doubt, the licenses of the Product and the Licensed Technology in this EULA shall terminate upon the termination of this EULA; and, accordingly, the End-User must immediately cease to use the Product and the Licensed Technology upon the effective date of termination of this EULA.

20.4Within 10 Business Days following the termination of this EULA, the End-User must:

4. 1. irrevocably delete from all computer systems in its possession or control all copies of the Product and the Licensed Technology; or
  2. at the written request of the Licensor, and at a mutually agreed time, grant to the Licensor reasonable access to the End-User’s premises to remove the Product and the Licensed Technology from the endpoints where the Product and/or Licensed Technology have been installed.

21.Force Majeure

21.1Each Party shall be excused for any failure or delay to perform its obligations under this EULA to the extent and for the period that such performance is affected by any Force Majeure Event, provided that the affected Party shall: (i) use its best endeavors to avert, limit or mitigate the consequences of such Force Majeure Event, including to minimize any disruption to the End-User’s use of the Product and/or Licensed Technology and the Licensor’s provision of any Technical Support under this EULA; and (ii) notify the other Party promptly in writing following the occurrence of such Force Majeure Event (such notice to include all relevant evidence and supporting documents). In this Clause 21, “Force Majeure Event” shall mean events which are beyond the reasonable control of such Party and without any fault or negligence by such Party, including the following: (a) war, invasion, rebellion, revolution, insurrection or civil war; (b) act of government in its sovereign capacity; (c) earthquakes, fire, lightning, storms, floods or any other occurrence caused by the operation of the forces of nature; (d) strikes, lockouts or boycotts which are not caused by the affected Party; (e) terrorism, sabotage or arson; (f) outbreak of any epidemic; or (g) cyberwarfare, ransomware, cyberattack, failure of the internet or any public telecommunications network.

21.2If a Force Majeure Event continues, or is reasonably expected to continue, for a consecutive period of ninety (90) days, either Party shall be entitled to terminate this Agreement in whole or in part.

22.Miscellaneous

22.1Any notice required or permitted by this EULA shall be in writing and shall be delivered as follows, with notice deemed to be given as indicated: (a) by courier or by certified or registered mail, upon verification of receipt; (b) by facsimile or electronic mail transmission, upon acknowledgment of receipt; or (c) by hand, upon acknowledgement of receipt. Notices shall be sent to the addresses set forth above or to such other correspondence address as either Party may provide in writing to the other Party, as the case may be.

22.2No amendment, modification, variation or rescission of this EULA or any Quotation or Purchase Order shall be effective unless in writing and duly executed by the authorized representatives of both End-User and Licensor, for any amendment, modification, variation or rescission of this EULA.

22.3If any provision of this EULA shall be held invalid, unlawful or unenforceable, whether in whole or in part, such provision shall be substituted by a provision of similar import reflecting the original intent of the clause to the extent permissible under the applicable law, but the validity, legality or enforceability of the other provisions of this EULA shall not be affected in any way.

22.4The rights and remedies reserved to either Party are cumulative with and in addition to any other right or remedy. The exercise of any right or remedy under this EULA shall not preclude the exercise of any other right or remedy that may now or subsequently exist at law or in equity or by statute or otherwise. Any failure or delay by either Party to exercise any right or remedy under this EULA shall not operate as a waiver of that right or remedy, nor shall it be deemed or construed as a waiver of either Party’s right at any later time to exercise such right or remedy.

22.5Licensor and End-User are each acting as an independent contractor. Nothing in this EULA shall be deemed or construed as constituting or creating a partnership, joint venture, employment relationship, or relationship of principal and agent between the Parties. Neither party to this EULA shall have any right or authority to act for, represent or bind the other party in any manner.

22.6This EULA (including any appendices, schedules and documents incorporated by reference herein) shall constitute the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces all prior agreements, understandings, acceptances, undertakings, declarations and communications between the Parties with respect to the same subject matter.

22.7 This EULA may be executed in any number of counterparts and by the Parties on separate counterparts, each of which shall be an original but all of which together shall constitute one and the same instrument. This EULA and any counterpart may be executed and delivered by electronic communications in portable document format (.pdf), each of which shall be deemed as an original.

23.Governing Law and Dispute Resolution

23.1This EULA shall be governed by and construed in accordance with the laws of Singapore without reference to its conflict of laws principles.

23.2Any and all disputes arising out of or in connection with this EULA (including any question regarding its existence, validity or termination) which cannot be amicably resolved between the Parties shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre for the time being in force at the commencement of the arbitration, which rules are deemed to be incorporated by reference in this clause. The arbitral tribunal shall consist of one (1) arbitrator appointed by the President of the SIAC Court of Arbitration. The seat of the arbitration shall be Singapore and the venue of the arbitration shall be Singapore. The language of the arbitration shall be English. The award of the arbitrator shall be final and binding upon the Parties and may be entered and/or enforced in a court of competent jurisdiction. This clause shall not in any way prevent a Party from pursuing specific performance or injunctive relief in a court of competent jurisdiction.

24.Interpretation

24.1The headings in this EULA are used for convenience and ease of reference only and do not affect the construction or interpretation of this EULA. Except where the context otherwise requires, words denoting the singular shall include the plural and vice versa.

24.2With respect to the interpretation of this EULA, no rule of construction shall apply to the disadvantage of any party on the basis that such party drafted this EULA (or any part thereof) or seeks to rely on this EULA (or any part thereof).

24.3Unless otherwise stated, a reference to a Clause or Schedule is a reference to a clause of, or schedule to, this EULA. All Schedules are expressly incorporated into and shall form an integral part of this EULA.