SOCIAL POWER INTELLIGENCE SUBSCRIPTION AND LICENSING AGREEMENT

This Licensing Agreement (the “Licence Agreement”) is between SOCIAL POWER LIMITED (“SPL”), the reseller from whom you acquired SPIRAS (“Reseller”) and you.  This Licence Agreement establishes the terms and conditions for your subscription and usage of SOCIAL POWER INTELLIGENCE and its related analytical services (“SPIRAS”) and SPL’s supply of SPIRAS during the Licence Term.

 

PRODUCT LICENCE AGREEMENT

Carefully read the following TERMS AND CONDITIONS CONTAINED IN this LICENCE Agreement. Use of SPIRAS and any updates thEreto, including hardware appliances, SPIRAS and firmware and standalone software sold OR PROVIDED by SPL OR RESELLER, constitutes acceptance by you of the provisions in this LICENCE Agreement. We shall not be bound by any additional and/or conflicting provisions in any order, release, acceptance or other written correspondence or other written or verbal communication unless expressly agreed to in writing signed by the a duly authorized officer of SPL. Your Installation or use of SPIRAS or any part thereof, represents YOUR agreement to the terms AND CONDITIONS herein, as amended or updated from time to time in SPL’s discretion by SPL publishing an amended or updated version. If you do not agree to all of the terms AND CONDITIONS of this LICENCE agreement, do not start install SPIRAS OR ANY PART OF IT or use ANY ANCILLARY SOFTWARE, PLATFORM, ETC. INCORPORATED OR ASSOCIATED WITH SPIRAS. If you do not agree to the provisions, you should immediately, notify SPL or the Reseller, return the SPIRAS and delete any installation or any part thereof from your system and DISCONTINUE USE OF SPIRAS.

 

1)  Grant of Licence

This is a Licence Agreement and not a sales agreement between you and the Reseller or SPL, for the duration of the Term, set out below. This Licence grants to you a non-exclusive and non-transferable right to use SPIRAS together with any ancillary software, platforms, etc incorporated or associated with SPIRAS. This Licence Agreement governs your use of SPIRAS. SPL agrees to supply SPIRAS to you upon the conditions set out in this Licence Agreement.  If you are acting on behalf of an entity, then you warrant and represent that you have the authority to enter into this Licence Agreement on behalf of that entity. 

 

2)  Effective Date

The Effective Date of this Licence Agreement is the earlier of the date of first use of SPIRAS or any other date specified in any Accepted Sales Order between the you and the Reseller or SPL.

 

3)  Term

a)  Licence Term

The Licence Term for use of SPIRAS is as set out in the Accepted Sales Order.

 

b)  Early Termination.

This Licence Agreement may be terminated at any time:

  i.  by either SPL or Reseller, if you materially breach any of the terms and conditions contained in this Licence Agreement or the Accepted Sales Order and which is not remedied within thirty (30) days of a written notice of the material breach from either the Reseller or SPL;

 ii.  by either Reseller or SPL if you are late in paying any fees when it becomes due; or

    iii.  immediately if you use the SPIRAS in any manner other than as set out in this Licence Agreement.

 

4)  Services

SPL provides maintenance, update, and technical support services for SPIRAS (as defined below) either directly to you or through Reseller.

  a. Provision and suspension of services

During the Licence Term for which you subscribed for SPIRAS and/or support services:

  1. SPL will provide SPIRAS to you either directly or through Reseller or by both SPL and Reseller SPIRAS is provided specifically on a non-exclusive basis for the benefit of your use only and you may not grant or sub-Licence its use, either in whole or in part to any other third party or provide or facilitate its use, either in whole or in part for the benefit of any third party without our prior written approval; and

  2. you agree to comply with all the terms and conditions contained in this Licence Agreement and the Accepted Sales Order. Failing which SPL or the Reseller may suspend or terminate the Services provided to you without notice.

 

  b.    Warranty

SPL warrants to you that within sixty (60) days after commencement of the Licence Term, that SPIRAS will perform in all material respects in accordance with SPL’s published specifications. During this period, SPL shall use all reasonable efforts to correct any part of SPIRAS that fails to meet this warranty by use of a workaround, temporary or permanent fix.

 

    c. Updates

SPL will, during the Licence Term, make available to you, subject to applicable media distribution charges, extensions, enhancements, modifications, updates, error corrections, bug fixes and patches to SPIRAS that SPL generally makes available to all its other licensees on similar terms.

 

    d. Technical Support

SPL will, during the Licence Term, provide technical support for SPIRAS by:

   i.    providing email support between 9:30 A.M. to 6:30 P.M. Hong Kong time Monday through Friday;

  ii.    acknowledge your support queries when received and responding by the next business day in the form of “workarounds” or an estimate of time to fix, or request for additional information on the problem submitted;

 iii.    making available an internet query capability for you to ask product questions, submit problems and known access problem “workarounds”; and

 iv.    making available the ability to request temporary fixes in cases where waiting for the next release would severely impair your ability to use the product according to specifications.

 

 e. Your Obligations

SPL has no obligation to provide Services for problems in SPIRAS to the extent that such problems are caused by:

 i.  software or hardware not provided by SPL;

   ii.  unauthorized or improper use of SPIRAS; or

  iii.  earlier versions of the SPIRAS that are not currently supported by SPL.

 

5)  SPIRAS

Means SPIRAS together with any ancillary software, platform, etc. incorporated or associated by SPIRAS as subscribed by you under this Acknowledged Sales Order, including your account documentation, error corrections, bug fixes, patches, extensions, enhancements, modifications and updates provided under this Licence Agreement. During the Licence Term, you may run SPIRAS on any of your computers as you see fit subject to required minimum specifications and the limitations of the type of Licence purchased by you (e.g., per-user, per-server, site license, etc

 

6)  Additional Use Limitations.

You acknowledge that SPIRAS contain valuable proprietary information owned by SPL and it is provided on the condition that it will not be used for any purpose other than as set out in this Licence Agreement and in the Acknowledged Sales Order. Without limiting the foregoing, you agree that you will not use nor assist any agent, affiliate or third party to use the source code or any part of it, or any information, material or knowhow obtained through use of SPIRAS, to supply services that compete with SPIRAS.

 

7)  Audit

SPL reserves the right to audit your use of SPIRAS to ensure compliance with this License Agreement and the Acknowledged Sales Order. Any such audit will be conducted during regular business hours upon 3 days prior notice to you and is not expected to unreasonably interfere with your business activities.

 

8)  Termination

Unless you extend the Licence Term, neither SPL nor Reseller has any obligation to provide further access to SPIRAS after the Licence Term. Sections, 10, 13-14 and the restrictions contained in Sections 5 and 6 shall survive expiration of the Licence Term or termination of this Licence Agreement.

 

9)  Non-Infringement Indemnity.

SPL will defend you against any suit brought against you by a third party to the extent the suit alleges that SPIRAS infringes any copyright or patent rights in Hong Kong or incorporates any misappropriated trade secrets of any third party, and SPL will indemnify and hold you harmless from and against any damages, costs and reasonable expenses payable to the third party as a result of the suit; provided that you (i) give SPL prompt written notice of any such threatened claim before any summons or writ has been served against you; (ii) provides SPL with the authority, information and assistance that SPL deems necessary for the defense and settlement of the claim or proceeding; and (iii) grants SPL authority and control of the defense or settlement of such claim or proceeding. THE FOREGOING IS YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF INFRINGEMENT OF ANY THIRD PARTY COPYRIGHT OR PATENT RIGHTS IN HONG KONG. IN NO EVENT WILL SPL’S LIABILITY UNDER THIS LICENCE AGREEMENT EXCEED THAT SET OUT IN SECTION 11 OF THIS LICENCE AGREEMENT.

 

10)  Disclaimer of Warranty

EXCEPT AS PROVIDED IN SECTION 3(B) AND 10, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SPIRAS IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSE OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SPL DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OF SPIRAS WILL BE UNINTERRUPTED OR ERROR-FREE.

 

11)  Limitations of Liability

NOTWITHSTANDING ANYTHING IN THIS LICENCE AGREEMENT, IN NO EVENT WILL SPL’s TOTAL CUMULATIVE LIABILITY TO YOU, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED FEES RECEIVED BY RESELLER OR SPL FROM YOU UNDER THIS LICENCE AGREEMENT DURING THE TWELVE MONTHS PRECEDING THE ISSUE OF A SUMMONS OR WRIT AGAINST YOU. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS FOR ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL SPL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY GENERAL, COMPENSATORY, SPECIAL, INCIDENTAL, PUNITIVE NEGLIGENCE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR THE COST OF COVER IN CONNECTION WITH THIS LICENCE AGREEMENT OR THE SOFTWARE OR SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SPL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

 

You agree that the limitations of liability and disclaimers set forth herein will apply upon acceptance of this Licence Agreement regardless of whether or not you have commenced use of SPIRAS. You agree that SPL and Reseller have set their fees and entered into this Licence Agreement in reliance upon the disclaimers of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail for its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.

 

12)  Non-Transferable

You may not assign or otherwise transfer the rights under this Licence Agreement or any SPL Services or source code, by operation of law or otherwise, without SPL’s express prior written consent. Any dissolution, merger, consolidation or other reorganization, the sale or other transfer of all or substantially all of your assets or properties, or the sale or other transfer of a controlling interest, constitutes an assignment for all purposes of this Section 12. Any attempt to assign this Licence Agreement, without such consent, will be null and of no effect. Subject to the foregoing, this Licence Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.

 

13)  General

  1. This Licence Agreement will be governed by the laws of Hong Kong, and the parties agree to submit to the exclusive jurisdiction of the courts of Hong Kong.

  2. If a court of competent jurisdiction finds any provision of this Licence Agreement invalid or unenforceable, that provision of the Licence Agreement will be enforced to the maximum extent permissible, if possible, otherwise shall be deemed to be deleted and the other provisions of this Licence Agreement will remain in full force and effect.

  3. The failure by either party to enforce any provision of this Licence Agreement will not constitute a waiver of future enforcement of that or any other provision.

  4. All notices under this Licence Agreement will be in writing or electronic form, and delivered by facsimile transmission, by courier or overnight delivery services, by registered mail, or by email or similar electronic transmission, and in each instance will be deemed given upon the later of the receipt of the notice if delivered by courier, overnight delivery services or registered mail or five days after transmission if sent by electronic means or facsimile. 

  5. No party will be responsible for any failure or delay in its performance under this Licence Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, terrorism, riot, acts of God or governmental action.

  6. The parties to this Licence Agreement are independent contractors and this Licence Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties.

  7. You agree to comply fully with all relevant laws and regulations of the Hong Kong SAR. Regardless of any disclosure made by you to Reseller or SPL of an ultimate destination of the Platform, you represent, warrant and agree that you will not, directly or indirectly, export, re-export or transmit the Software or any part thereof to any country in which such export, re-export or transmission is restricted by any applicable Hong Kong regulation or statute, without the prior written consent of both SPL and, if required, the Hong Kong Trade Development Council or Customs and Excise Department, or such other governmental entity as may have jurisdiction over such export or transmission.

  8. You acknowledge and agree that unauthorized use of SPIRAS could cause SPL irreparable harm that could not be compensated by monetary damages. Accordingly, you agree that SPL will be entitled to seek injunctive and preliminary relief to remedy any actual or threatened unauthorized use of SPIRAS. SPIRAS is protected by Hong Kong copyright law and international treaty.  Unauthorized reproduction or distribution is subject to civil and criminal penalties.

 

14)  Additional Provisions

Notwithstanding anything to the contrary in Sections 8, payment obligations to Reseller for SPIRAS provided under this Licence Agreement will be governed by the Reseller Agreement (the “Reseller Agreement”) by and between SPL and Reseller.

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