Storeganise Subscription Terms of Service

Last updated: 01 July 2017

This Storeganise Subscription Terms of Service (“Agreement”) is entered into by and between Storeganise Limited (“Storeganise”) and the entity or or person placing an order for or accessing any Services (“Customer” or “you”), each a Party and collectively the Parties. If you are accessing or using the Services on behalf of your company, you represent that you are authorised to accept this Agreement on behalf of your company, and all references to "you" or "Customer" reference your company.

The "Effective Date" of this Agreement is the date which is the earlier of (a) Customer's initial access to any of the Services through any online provisioning, registration or order process or (b) the date of the first invoice from Storeganise.

1. DEFINITIONS

Material” shall include Software, documents, advice, education and training material, images and brand files, and any other such items provided by Storeganise to Customer under this Agreement.

Services” means any and all technical and non-technical services provided by Storeganise to Customer under this Agreement, including but not limited to the provision of Software, software services, consulting services, implementation services and other professional services, training and education.

Software” means the object code version of any software to which Customer is provided access as part of this Agreement, including any updates or new versions.

Subscription” means the right to access the Services during the Term.

2. SERVICES

2.1 During the term of this Agreement, Customer will receive a nonexclusive, non-assignable, non-transferable right to access and use the Services solely for the purpose of running Customer’s own operations and providing Services to Customer’s own end customers.

2.2 Customer acknowledges that this Agreement is a services agreement and Storeganise will not be delivering copies of the Software to Customer as part of the Services.

2.3 Customer is solely responsible for the content of any postings, data, or transmissions using the Services, or any other use of the Services by Customer or by any person or entity Customer permits to access the Services (“Customer Data”). Customer represents and warrants that it will: (a) not use the Services in a manner that: (i) is prohibited by any law or regulation, or to facilitate the violation of any law or regulation; or (ii) will disrupt a third party’s similar use of the Material; (b) not violate or tamper with the security of any Storeganise’s computer equipment or any Material. If Storeganise has reasonable grounds to believe that Customer is utilizing the Services for any such illegal or disruptive purpose Storeganise may suspend the Services immediately with or without notice to Customer and has right to terminate this Agreement.

2.4 Storeganise may make all or part of the Software and Services available to Customer on a trial basis free of charge (the “Free Trial”). The Free Trial shall begin when You submit a registration for the same to Storeganise, and shall terminate on the earlier of (i) the Free Trial expiration date as specified by Storeganise upon receiving your registration, or (ii) the date You become a paying customer for a Subscription under this Agreement. Access to the Software and Services is provided “as-is” and without warranty of any kind during the Free Trial. Your data entered, and any specific settings or preferences you or your end users make, during the Free Trial will be permanently deleted unless you purchase a subscription or export such data/settings prior to the expiration of the Free Trial.

3. RESTRICTIONS

3.1 Customer shall not, and shall not permit anyone to: (i) copy or republish any Material; (ii) make the Material or Services available to any person other than authorised users; (iii) modify or create derivative works based upon the Services or Material; (iv) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the software used to provide the Services or in the Material; (v) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software used to provide the Services; or (vi) access the Services or use the Material in order to build a similar product or competitive product. Subject to the limited licenses granted herein, Storeganise shall own all right, title and interest in and to the Software, Services, Material, and other deliverables provided under this Agreement, including all modifications, improvements, upgrades, derivative works and feedback related thereto and intellectual property rights therein. Customer agrees to assign all right, title and interest it may have in the foregoing to Storeganise.

4. FEES TERMS OF PAYMENT

4.1 Storeganise shall invoice Customer for all fees due based on the pricing agreed to between the parties. Storeganise may increase the fees at a rate of up to 10% per year by providing no less than 30 days notice to the Customer. Customer is required to pay any setup fees and the first month service fee before Storeganise starts any of the setup process for the Customer.

4.2 Customer shall settle all invoices within 15 days after the invoice date. Except as expressly provided otherwise, fees are non-refundable. All fees must be settled in the currency in which they are invoiced. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.

4.3 If Customer’s outstanding invoices are thirty (30) days or more overdue, in addition to any other rights and remedies (including the termination rights set forth in this Agreement), Storeganise reserves the right to suspend Customer’s access to the Software and Services, until the outstanding invoices are paid in full. In the event of nonpayment for more than 60 days, Storeganise reserves the right to delete all Customer Data and Customer will be responsible for paying setup fees again in order to receive access to the Software and Services again.

5. LIMITATION OF LIABILITY

5.1 Under no circumstances shall Storeganise or anyone else involved in administering, distributing or providing the Services, be liable for any indirect, incidental, special or consequential damages that result from the use of or inability to use the Services, including but not limited to loss of revenue or lost profits, or damages that result from mistakes, omissions, interruptions, deletion of files or email, errors, defects, viruses, delays in operation or transmission, even if such party has been advised of the possibility of such damages. In the event of any breach by Storeganise of this agreement, Storeganise’s liability to customer will not exceed the amount paid to Storeganise by customer during the previous three months.

6. CONFIDENTIALITY

6.1 Each party (“Recipient”) understands and agrees that during the Term it may be furnished with or otherwise have access to information, whether disclosed in writing, orally or by other means, that the other party (“Discloser”) considers to be confidential, including but not limited to Customer Data and the personal data of Customer employees, customers and Affiliates (“Personal Data”), software, code, algorithms, know-how, processes, ideas, inventions (whether patentable or not), operational or technical information, pricing, vendor information, whether tangible or intangible and whether or not stored, compiled or memorialised physically, electronically, graphically or in writing (the “Confidential Information”). In addition to the foregoing, Confidential Information shall include third party software, if any, that may be provided to Customer under this Agreement, including any related source or object codes, technical data, data output of such software, documentation, or correspondence owned by the applicable licensor.

6.2 Each party shall use such Confidential Information solely to fulfil its obligations under this Agreement and shall secure, protect and maintain the confidentiality of the Confidential Information of Discloser using at least as great a degree of care as it uses to maintain the confidentiality of its own information of a similar nature or importance, but in no event less than reasonable care. The Recipient shall not divulge, furnish, make available or in any manner disclose such information to any third party without the prior written authorization of Discloser except as required by law or to those of its directors, officers, employees, independent contractors, agents or attorneys who need to know the same in furtherance of the purposes of this Agreement. This obligation shall survive the expiration or termination of this Agreement. Both Parties further undertake to observe all laws, rules and regulations concerning safety and privacy and the handling of Confidential Information.

6.3 Any Customer Data shall be the full responsibility of Customer. Customer retains ownership and intellectual property rights in and to its Customer Data. Customer may at any point request the Customer Data to be provided to Customer in a format decided upon by Storeganise. Such provision of the Customer Data may be subject to a processing fee as advised separately. For the avoidance of doubt, Customer Data does not in any way relate to Software.

7. AGREEMENT TERM AND TERMINATION

7.1 The term of this Agreement (“Term”) commences on the Effective Date and continues until the latest of: (i) the expiration or termination of your Free Trial; (ii) in the case of a monthly Subscription, expiration of such Subscription or termination as provided for in section 7.2; or (iii) the termination as set forth in sections 7.3 and 7.4 below.

7.2 You may cancel a monthly Subscription (unless otherwise agreed) at any time by providing notice by email to hello@storeganise.com with no less than 60 days notice.

7.3 If a Party fails to perform or observe any material term or condition of this Agreement and the failure continues unremedied for thirty (30) days after receipt of written notice, the other Party may terminate this agreement; provided, however, that where the breach is the failure of payment by Customer of any charge due, Storeganise, may, at its option, terminate or suspend Services if Customer does not cure said breach within seven (7) days following notice to Customer of the delinquency.

7.4 This Agreement may be terminated immediately upon written notice by either Party if the other Party becomes insolvent or involved in a liquidation or termination of business, files a bankruptcy petition, has an involuntary bankruptcy petition filed against it (if not dismissed within thirty days of filing), becomes adjudicated bankrupt, or becomes involved in an assignment for the benefit of its creditors.

7.5 Customer shall be responsible for payment of all charges incurred up until the expiration or termination of this Agreement.

7.6 The following provisions shall survive any termination or expiration of this Agreement: Sections 4 to 8.

8. MISCELLANEOUS

8.1 Enforceability. If any provision of this Agreement shall be found by any court or arbitration or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect. If any provision of this Agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be reasonably necessary to make it valid and which reflect(s) the intention of the parties.

8.2 Non-Exclusive Service. Customer acknowledges that Services are provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict Storeganise’s ability to provide the Services or other technology, including any features or functionality first developed for Customer, to other parties.

8.3 Personal Data. Customer hereby acknowledges and agrees that Storeganise’s performance of this Agreement may require Storeganise to process, transmit and/or store Personal Data. By submitting Personal Data to Storeganise, Customer agrees that Storeganise and its Affiliates may process, transmit and/or store Personal Data only to the extent necessary for, and for the sole purpose of, enabling Storeganise to perform its obligations under this Agreement.

8.4 Suggestions. Storeganise shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendation or other feedback provided by Customer, including any users of the Software, relating to the operation of the Services.

8.5 Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, communication line failures, and power failures.

8.6 Publicity. Storeganise may include Customer’s name and logo in its customer lists and on its website unless otherwise expressly requested by Customer.

8.7 Statistical Information. Storeganise may anonymously compile statistical information related to the performance of the Services for purposes of improving the Software and Services, provided that such information does not identify Customer’s data or include Customer’s name.

8.8 Disputes and Arbitration. Should any dispute or claim arise out of or in connection with the Services or this Agreement, both Parties will attempt to resolve the dispute or claim in good faith in the first instance by negotiation. If such negotiation is unsuccessful, either Party may agree to seek to resolve the dispute or claim by mediation. If it is not possible to resolve the dispute or claim by negotiation or mediation, then it may be dealt with by legal proceedings or arbitration. The arbitration proceedings shall be conducted in English. This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Hong Kong.

8.9 Entire Agreement. This Agreement, including any of the Annexes attached herein, is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that the Services are on-line, subscription-based products, and that in order to provide improved customer experience Storeganise may make changes to the Services, and Storeganise will update the applicable Materials accordingly.

ANNEX 1: Support and SLA

Support and Maintenance Services

Customer is entitled to the following support and maintenance services:

- Telephone or electronic support in order to help Customer locate and correct problems with the Software.

- Bug fixes and code corrections to correct Software malfunctions in order to bring such Software into substantial conformity with the operating specifications.

- All extensions, enhancements and other changes that Storeganise, at its sole discretion, makes or adds to the Software and which Storeganise furnishes, without charge, to all other subscribers of the Services.

Response and Resolution Goals

Issue Severity: High: An issue in the production system is creating a significant impact to the Customer’s business function preventing that function from being executed; Resolution Goal: Storeganise support personnel will work on the issue once it has been reported and acknowledged. Customer must make available a resource at any time to assist with issue determination. Storeganise will provide reasonable effort to identify a workaround or fix within 24 hours, once the issue is reproducible or once the Software defect has been identified.

Issue Severity: Medium: The production system or application is moderately affected. There is no workaround currently available or the workaround is cumbersome to use; Resolution Goal: Storeganise will provide reasonable effort for a workaround or fix within 7 business days, once the issue is reproducible.

Issue Severity: Low: The issue has been identified and does not hinder normal operation, or the situation may be temporarily circumvented using an available workaround; Resolution Goal: Customer Support will provide reasonable effort for a workaround or fix within 10 business days, once the issue is reproducible.

* Business hours shall mean 9am-6pm GMT, Monday thru Friday, except public holidays.

Supported Internet Browsers

As of the Effective Date, the Software will be compatible with the latest versions of internet browsers such as Google’s Chrome and Apple’s Safari. Due to limitations in the browsers themselves and changes beyond the control of Storeganise, the supported internet browsers may change from time to time and some functionality of the Software may not work as expected in some internet browsers, particularly older browser versions.

Service Level Agreement (SLA)

- Storeganise will achieve System Availability of at least 99% during each calendar year. “System Availability” means the number of minutes in a year that the key components of the Services are operational as a percentage of the total number of minutes in such year, excluding downtime resulting from (a) scheduled maintenance, (b) events of Force Majeure, (c) malicious attacks on the system, (d) issues associated with the Customer’s computing devices, local area networks or internet service provider connections, or (e) inability to deliver services because of acts or omissions of Customer.

- Storeganise reserves the right to take the Service offline for scheduled maintenance for which Customer has been provided reasonable notice and Storeganise reserves the right to change its maintenance window upon prior notice to Customer.

- If Storeganise fails to meet System Availability in the year, upon written request by Customer within 30 days after the end of the year, Storeganise will issue a credit in Customer’s next invoice in an amount equal to 1% of the yearly fee for the affected Services for each 1% loss of System Availability below stated SLA, up to a maximum of the Customer’s fee for the affected Services.