Storeganise Subscription Terms of Service

BACKGROUND:

(A) Storeganise has developed certain software that facilitates the provision of storage solutions services and the Customer wishes to use the Software.

(B) These terms of service are an agreement between the Customer and Storeganise (the “agreement”) which regulates the relationship between the Customer and Storeganise.

1. DEFINITIONS AND INTERPRETATION

1.1. The definitions and rules of interpretation in this clause apply in this agreement.

“API” means any application programming interface provided by Storeganise to the Customer, including all related documentation, code, and protocols, that enables software applications to communicate with or access the functionality, data, or features of another software, service, or platform.

“Applicable Laws” means the laws of Hong Kong and any other laws or regulations, regulatory policies, guidelines or industry codes (in any jurisdiction) which apply to the provision of the Services, including those laws relating to anti-bribery, anti-corruption and data protection and data privacy.

“Authorised Users” means those End Users, employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation.

“Business Day” means a day other than a Saturday, Sunday or public holiday in Hong Kong when banks in Hong Kong are generally open for business.

“Confidential Information” means information, however conveyed or presented, that is proprietary or confidential to the disclosing party or is either clearly labelled as such or identified as Confidential Information in clause 10.5 or clause 10.6.

“Contract Year” means a 12-month period commencing on the Start Date or any anniversary of it.

“Customer” means the person or organisation that purchases a subscription to access the Services from Storeganise.

“Customer Data” means the data inputted by: (i) the Customer; (ii) Authorised Users; or (iii) Storeganise on the Customer’s behalf, for the purpose of using the Services.

“Data Protection Laws” means all laws or regulations relating to the collection, use, storage, transfer or processing of personal data, personally identifiable data or privacy, in any jurisdiction in which Storeganise operates.

“Documentation” means any documentation in whatever form made available to the Customer by Storeganise in connection with the Services and which sets out a description of the Services and the user instructions for the Services.

“End User” means an individual who is a customer of the Customer or who is a member of staff of a customer of the Customer or any individual that the Customer allows to access the Software.

“Free Trial” refers to any trial granted by Storeganise to the Customer pursuant to which the Customer can use the Services free of charge for an agreed period of time so that the Customer can evaluate whether the Services meet its needs.

“Free Trial Period” means the duration of the Free Trial as agreed to by Storeganise (in its sole discretion) and as communicated to the Customer.

“Initial Subscription Term” means the date that is 3 months from the Start Date.

“Intellectual Property Rights” refers to patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, 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.

“Order Details” refer to the information and order details which Storeganise sends to the Customer (from time to time) or which is otherwise available on Storeganise’s website or platform.

“Renewal Period” means the period described in clause 12.1.

“Services” means the services provided by Storeganise to the Customer under this agreement as referred to in the Order Details or as otherwise agreed by written approval of the parties.

“Set-Up Fees” means the fees payable by the Customer to Storeganise for Storeganise to set up the Customer’s access to the Software as referred to in the Order Details.

“Software” means the software applications (including any API) provided by Storeganise to the Customer as part of the Services including any updates, new releases and improvements.**

“Start Date” means the date which is the earlier of: (a) the Customer’s initial access to the Services (including any access granted as part of a Free Trial); or (b) the date of the first invoice issued by Storeganise to the Customer pursuant to this agreement.

“Storeganise” means Storeganise Limited, a company incorporated in Hong Kong and having its registered office at Unit 1503-06, 15/F, Tower 1, Ever Gain Plaza, 88 Container Port Road, Kwai Chung, NT, Hong Kong.

“Storeganise’s DPA” means Storeganise’s data processing addendum which governs, amongst other things, Storeganise’s processing of the Customer Data as provided to or made available to the Customer from time to time.

“Subscription Fees” means the subscription fees referred to in the Order Details, payable by the Customer to Storeganise in accordance with this agreement.

“Subscription Term” has the meaning given in clause 12.1.

“Support and Service Levels” means the support and service levels set out in Schedule 1.

“Virus” means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

1.2 Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular.

1.3 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.4 A reference to reasonable commercial endeavours shall include such endeavours as determined reasonable by Storeganise (in its sole discretion) from time to time, and shall not, for the avoidance of doubt, include the payment of any monies, incurring any liabilities or undertaking any legal proceedings (unless otherwise determined by Storeganise).

1.5 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.

1.6 Any reference to writing or written includes email.

1.7 Any words following the terms including, include, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.8 The schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the schedules.

1.9 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.

1.10 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.

2. ACCESS RIGHTS

2.1 Subject to the Customer paying the Subscription Fees in accordance with this agreement, or subject to Storeganise granting the Customer a Free Trial, Storeganise grants to the Customer a non-exclusive, non-transferable licence to permit the Authorised Users to use the Services and the Documentation during the Subscription Term or the Free Trial Period (as applicable) on the terms and conditions set out in this agreement.

2.2 The licence granted in clause 2.1 is granted solely to the extent necessary for performing the Customer’s business operations (in their ordinary course) and to enable the End Users or the organisations that they work for to receive services from the Customer.  The Customer shall not use the Services or the Documentation for any other purpose.

2.3 In the event of the termination or expiry of this agreement, the licence referred to in clause 2.1 shall terminate automatically and the Customer shall deliver to Storeganise all materials licensed to the Customer pursuant to this agreement that are in its possession or control.

2.4 In relation to the Authorised Users, the Customer undertakes that:

  ( a ) each Authorised User shall keep a secure password for his or her use of the Software, Services and the Documentation and that each Authorised User shall keep his or her password confidential;

  ( b ) it shall permit Storeganise or Storeganise’s designated auditor to audit the Services to check compliance with this agreement; and

  ( c ) if any of the audits referred to in clause 2.4(b) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Storeganise’s other rights under this agreement, the Customer shall promptly disable such passwords and comply with Storeganise’s reasonable directions with respect to disabling such passwords and underlying accounts.

2.5 The Customer shall not, and shall ensure that the Authorised Users shall not, access, store, distribute or transmit any material during the course of its or their use of the Services that:

  ( a ) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

  ( b ) facilitates illegal activity;

  ( c ) depicts sexually explicit images or promotes unlawful violence;

  ( d ) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

  ( e ) is otherwise in breach of any applicable law or causes damage or injury to any person or property;

and Storeganise reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s (and the Authorised Users’) access to any material that breaches the provisions of this clause.

2.6 The Customer shall not and shall ensure that its Authorised Users shall not:

  ( a ) except to the extent expressly permitted under this agreement:

      ( i ) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or the Documentation in any form or media or by any means; or

      ( ii ) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

  ( b ) breach any Applicable Laws; or

  ( c ) access all or any part of the Services, the Software and/or the Documentation in order to build a product or service which competes with the Services, the Software and/or the Documentation; or

  ( d ) except to the extent expressly permitted under this agreement use the Services, the Software and/or the Documentation to provide services to third parties; or

  ( e ) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services, the Software and/or the Documentation available to any third party except the Authorised Users; or

  ( f ) attempt to obtain, or assist third parties in obtaining, access to the Services, the Software and/or the Documentation, other than as provided under this clause 2; or

  ( g ) introduce, or permit the introduction of, any Virus into Storeganise’s network and information systems.

2.7 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services, the Software and/or the Documentation and, in the event of any such unauthorised access or use, must immediately notify Storeganise.

2.8 The rights provided under this clause 2 are granted to the Customer only and shall not be considered granted to any employee, contractor, related party, assignee, subsidiary or holding company of the Customer.

3. API USAGE

3.1. Storeganise grants the Customer a limited, non-exclusive, non-transferable, and revocable license to access and use the API solely in accordance with Storeganise’s documentation and for lawful, authorised purposes related to the Customer’s use of the Services. Storeganise reserve the right to monitor usage and to suspend, restrict, or revoke API access at any time if they believe, in their sole discretion, that the Customer has violated this clause 3.1, are using the API inefficiently, or are otherwise engaging in abusive or harmful behaviour with respect to the API.

3.2. The Customer agrees to use the API in a manner that is secure, efficient, and in line with industry best practices. The Customer must:

  ( a ) use the API only as documented;

  ( b ) comply with any usage limits (such as rate limits) set by Storeganise;

  ( c ) avoid excessive, unnecessary, or inefficient API calls (e.g., polling without caching);

  ( d ) not use the API in any way that could harm, disable, or impair Storeganise’s systems or interfere with other users; and

  ( e ) not use the API to create a product or service that competes with Storeganise.

3.3. The Customer is responsible for maintaining the confidentiality of its API credentials (e.g., keys or tokens) and for all activity conducted using them. The Customer must implement appropriate security measures to protect its systems and prevent unauthorized access. The Customer must notify Storeganise immediately if it suspects any unauthorized use of its credentials or any security breach.

3.4. Storeganise may update, modify, or discontinue the API or any part of it at any time, with or without notice. Where possible, Storeganise will provide advance notice of changes that could significantly impact the Customer’s use of the API.

3.5. All rights, title, and interest in and to the API, including all Intellectual Property Rights, remain the sole property of Storeganise. The Customer may not copy, distribute, reverse engineer, or create derivative works of the API, except as expressly authorized by Storeganise in writing.

3.6. The API is provided by Storeganise to the Customer “as is” and “as available.” Storeganise make no warranties or representations regarding the availability, performance, or results of using the API.

4. SERVICES

4.1 Storeganise shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the provisions of this agreement.

4.2 Storeganise shall use all reasonable commercial endeavours to make the Services available in accordance with the Support and Service Levels.

5. CUSTOMER DATA

5.1. As between the parties, the Customer shall be the data controller of the Customer Data and Storeganise shall be a data processor of the Customer Data. The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.

5.2. Subject to clause 5.3, In the event of any loss or damage to Customer Data, caused exclusively by Storeganise or the Software, the Customer’s sole and exclusive remedy against Storeganise shall be for Storeganise to use reasonable commercial endeavours to restore the lost or damaged Customer Data.

5.3. Storeganise shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.

5.4. If any loss or damage to Customer Data is caused by the Customer, any of its Authorised Users or any of its employees, agents or contractors then Storeganise may charge the Customer for the reasonable costs of restoring the Customer Data.

5.5. Both parties will comply with Storeganise’s DPA in connection with the processing of the Customer Data.

5.6. The Customer undertakes that the performance of their obligations under this agreement will be in accordance with all applicable Data Protection Laws.

6. STOREGANISE’S OBLIGATIONS

6.1. Storeganise undertakes that: (a) the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care; and (b) that the Software will function substantially in accordance with the Documentation.

6.2. The undertaking in clause 6.1 shall not apply to the extent of any non-conformance or action which is caused by use of the Services or the Software contrary this agreement or to Storeganise’s instructions, or modification or alteration of the Services or the Software by any party other than Storeganise or Storeganise’s duly authorised contractors or agents.

6.3. If the Services or the Software do not conform with the undertaking in clause 6.1, Storeganise will use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 6.1.

6.4. Storeganise:

  ( a ) does not undertake, represent or warrant that the Customer’s use of the Services or of the Software will be uninterrupted or error-free; or that the Services, the Software, the Documentation and/or the information or functionality obtained by the Customer through the Services will meet the Customer’s requirements; and

  ( b ) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services, the Software and the Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

6.5. This agreement shall not prevent Storeganise 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.

7. CUSTOMER’S OBLIGATIONS

7.1. The Customer shall:

  ( a ) provide Storeganise with:

      **( i )**all necessary co-operation in relation to this agreement; and

      **( ii )**all necessary access to such information as may be required by Storeganise in order to provide the Services, including but not limited to Customer Data, security access information and configuration services and any other licences that may be required;

  ( b ) without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;

  ( c ) carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Storeganise may adjust any agreed timetable or delivery schedule as reasonably necessary;

  ( d ) ensure that the Authorised Users use the Services, the Software and the Documentation in accordance with this agreement and shall be responsible for any Authorised User causing a breach of this agreement;

  ( e ) obtain and shall maintain all necessary licences, consents, and permissions necessary for Storeganise to perform its obligations under this agreement, including, without limitation the Services;

  ( f ) ensure that its network and systems comply with the relevant specifications provided by Storeganise from time to time; and

  ( g ) be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Storeganise’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.

7.2. The Customer warrants and represents that it is an organisation, not an individual. No individual is permitted to enter into a contract with Storeganise to receive any of the Services.

8. CHARGES AND PAYMENT

8.1. The Customer shall pay the Set-Up Fees and the Subscription Fees to Storeganise in accordance with this agreement.

8.2. All Subscription Fees are to be paid upfront and in advance.

8.3. Unless otherwise specified in the Order Details or on the relevant invoices, the Customer shall pay the payments due under each invoice raised by Storeganise within 15 days of receipt of the relevant invoice.  Storeganise may use any payment method of the Customer that it has stored on file (including credit cards) for the settlement of each invoice.

8.4. Storeganise shall not be under any obligation to provide any Services or to set up the Customer’s access to the Software until it has received payment of the Set-Up Fees.

8.5. If Storeganise has not received a payment due to it under this agreement by its due date, then, without prejudice to any other rights and remedies of Storeganise:

  ( a ) Storeganise may, without liability to the Customer, disable the Customer’s and the Authorised Users’ passwords, accounts and access to all or part of the Services and the Software and Storeganise shall be under no obligation to provide any or all of the Services or the Software while the invoice(s) concerned remain unpaid; and

  ( b ) interest shall accrue on a daily basis on such due amounts at a monthly rate of 10% per annum, calculated daily and compounded monthly, from (and including) the due date until the date the amount is paid in full. Any interest payable under this clause is without prejudice to any other rights or remedies available to Storeganise.

  ( c ) if non-payment continues for a period of more than 60 days, Storeganise may, at its option, delete all the Customer Data.

8.6. All amounts and fees stated or referred to in this agreement:

  ( a ) shall be payable in the currency in which they are invoiced;

  ( b ) are non-cancellable and non-refundable; and

  ( c ) are exclusive of value added tax or other applicable taxes, which shall be added to Storeganise’s invoice(s) at the appropriate rate, if applicable.

8.7. Storeganise shall be entitled to increase the Subscription Fees by up to 10% each year at the start of each Renewal Period upon 30 days’ prior notice to the Customer.

9. PROPRIETARY RIGHTS

9.1. The Customer acknowledges and agrees that Storeganise and/or its licensors own all Intellectual Property Rights in the Services, the Software and the Documentation including in the product of any development and/or integration work that Storeganise may carry out for the Customer including where any elements of such product were developed as a result of or using the Customer’s ideas, suggestions or other feedback supplied by the Customer.

9.2. Except for the licence granted pursuant to clause 2.1, the Customer shall not acquire any right, title or interest in or to any Intellectual Property Rights in or any other rights or licences in respect of the Services, the Software, the Documentation or the product of any development and/or integration work that Storeganise may carry out for the Customer.

9.3. Storeganise confirms that it has all the rights in relation to the Services, the Software and the Documentation that are necessary to grant all the rights it purports to grant under this agreement.

9.4. Where the Customer acquires, by operation of law, title to any Intellectual Property rights referred to in Clause 9.1 or 9.2 and this acquisition is inconsistent with the allocation of title set out in Clause 9.1 or 9.2, then such Intellectual Property Rights shall be assigned by the Customer to Storeganise on the request of Storeganise, whenever that request is made and in the form set out by Storeganise.

10. CONFIDENTIALITY

10.1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:

  ( a ) is or becomes publicly known other than through any act or omission of the receiving party;

  ( b ) was in the other party’s lawful possession before the disclosure;

  ( c ) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

  ( d ) is independently developed by the receiving party, which independent development can be shown by written evidence.

10.2. Subject to clause 10.4, each party shall treat the other party’s Confidential Information as confidential and not disclose the other’s party’s Confidential Information to any third party or use the other party’s Confidential Information for any purpose other than the implementation of this agreement.

10.3. Each party shall take all reasonable steps to ensure that the other party’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the provisions of this agreement.

10.4. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 10.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

10.5. The Customer acknowledges that details of the Services constitute Storeganise’s Confidential Information.

10.6. Storeganise acknowledges that the Customer Data is the Confidential Information of the Customer.

10.7. Storeganise may compile statistical information related to the performance of the Services for the purposes of improving the Software and Services, provided that such information does not identify any individual End User or personal data.

10.8. Unless the Customer requests otherwise in writing, Storeganise may include the Customer’s name and logo in its marketing materials and on its website.

10.9. The above provisions of this clause 10 shall survive termination of this agreement, however arising.

10.10. Except as expressly stated in this agreement, Storeganise makes no express or implied warranty or representation concerning the Services or any of its Confidential Information.

11. LIMITATION OF LIABILITY

11.1. Except as expressly and specifically provided in this agreement:

  ( a ) the Customer assumes sole responsibility for results obtained from the use of the Services, the Software and the Documentation by the Customer, and for conclusions drawn from such use. Storeganise shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Storeganise by the Customer in connection with the Services, or any actions taken by Storeganise at the Customer’s direction;

  ( b ) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and

  ( c ) the Services and the Documentation are provided to the Customer on an “as is” basis.

11.2. Nothing in this agreement shall limit or exclude the liability of Storeganise:

  ( a ) for fraud or fraudulent misrepresentation; or

  ( b ) for any matter in respect of which it would be unlawful to limit or exclude liability.

11.3. Subject to clause 11.2, Storeganise shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement.

11.4. Storeganise’s total aggregate liability in respect of all claims, losses or damages, whether arising from breach of contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising under or in connection with this agreement shall in no event exceed the Monetary Cap.

11.5. In clause 11.4 and in this clause 11.5:

  ( a ) the “Monetary Cap” is an amount equal to one hundred per cent (100%) of the Total Charges in the Contract Year in which the claim, breach of contract, tort, duty, misrepresentation or other default attributable to Storeganise occurred; and

  ( b ) The “Total Charges” means all sums paid to Storeganise by the Customer under this agreement in the Contract Year in which the claim, breach of contract, tort, duty, misrepresentation or other default attributable to Storeganise occurred.

12. TERM AND TERMINATION

12.1. This agreement shall, unless otherwise terminated as provided in this clause 12, commence on the Start Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 3 months (each a “Renewal Period”), unless:

  ( a ) with respect to a Free Trial, the Customer notifies Storeganise in writing at least 7 days before the expiry of the Free Trial Period that it does not wish to receive the Services beyond the expiry of the Free Trial Period; or

  ( b ) either party provides not less than three months’ written notice to terminate this agreement, provided that such termination shall only take effect at the end of the Initial Subscription Term or the relevant Renewal Period in which the notice is served. For the avoidance of doubt, the Customer is obligated to complete the full period of the Initial Subscription Term or any Renewal Period, even after giving the three months’ written notice; or

  ( c ) otherwise terminated in accordance with the provisions of this agreement;

and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the “Subscription Term”.

12.2. Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:

  ( a ) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 15 days after being notified in writing to make such payment;

  ( b ) the other party commits a material breach of any other provisions of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 15 days after being notified in writing to do so; or

  ( c ) the other party becomes insolvent or makes a resolution for its winding up, makes an arrangement or composition with its creditors or makes an application to a court of competent jurisdiction for protection from its creditors or an administration or winding-up order is made or an administrator or receiver is appointed.

12.3. Without affecting any other right or remedy available to it, Storeganise may terminate this agreement with immediate effect by giving written notice to the Customer if:

  ( a ) the Customer breaches any of its obligations or undertakings under clauses 2.4, 2.5, 2.6, 2.7, 3.2, 3.3 and 8.4; or

  ( b ) there is a change in the underlying legal or beneficial ownership or control of the Customer

12.4. On termination of this agreement for any reason:

  ( a ) all licences granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Software and/or the Documentation;

  ( b ) the Customer shall immediately and permanently erase any Software made available or supplied by Storeganise to the Customer and contained within any of the Customer’s platforms, networks or systems;

  ( c ) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;

  ( d ) Storeganise may destroy or otherwise dispose of any of the Customer Data in its possession unless Storeganise receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Storeganise shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Storeganise in returning or disposing of Customer Data; and

  ( e ) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this agreement which existed at or before the date of termination shall not be affected or prejudiced.

13. INDEMNITY

The Customer shall indemnify Storeganise against all damages, losses, claims, expenses costs (including legal costs) and liabilities which Storeganise may incur or suffer or which may be asserted against Storeganise by any person as a result of or arising from: (a) any breach or non-performance by the Customer of the Customer’s obligations or warranties under this agreement; (b) any fraud, gross negligence or wrongful omission, act or default of the Customer; and © any third party claim of infringement of Intellectual Property Rights alleged to have occurred in relation to the provision of Services under this Agreement.  The indemnities referred to in this clause shall survive the expiry or termination of this agreement.

14.FORCE MAJEURE

Storeganise shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions accidents  or non-events beyond its reasonable control, including, without limitation, epidemic, pandemic, strikes, lock-outs or other industrial disputes (whether involving the workforce of Storeganise or any other party), failure of a utility service or transport or telecommunications network, acts of God, war, riots, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

15. VARIATION

15.1. Storeganise may amend or vary this agreement by notice to the Customer at any time during the term of this agreement. The variation shall apply 30 days after the date of the notice by the Storeganise.  If the Customer does not agree to any material variation, it may terminate this agreement by giving written notice to Storeganise within 30 days after receiving notice of the change.

15.2. Except for an amendment or variation made pursuant to Clause 15.1, no variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

16. WAIVER

No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

17. SEVERANCE

17.1. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.

17.2. If any provision or part-provision of this agreement is deemed deleted under clause 17.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

18. ENTIRE AGREEMENT

18.1. This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

18.2. Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.

18.3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

19. ASSIGNMENT

19.1. The Customer shall not, without the prior written consent of Storeganise, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

19.2. Storeganise may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

20. THIRD PARTY RIGHTS

This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Ordinance (Cap. 623).

21. NO PARTNERSHIP

Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other party, or authorise either party to make or enter into any commitments for or on behalf of the other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

22. NOTICES

22.1. Any notice given to a party under or in connection with this agreement shall be in writing and shall be: (a) delivered by hand to its registered office (if a company) or its principal place of business (in any other case); (b) sent by email to (for Storeganise) hello@storeganise.com or (for the Customer) one of the email addresses registered on the Customer’s account with Storeganise.

22.2. Any notice shall be deemed to have been received if (a) delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; or (b) if sent by email at the time of the transmission provided that no bounceback message is received. This clause 20 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

23. COUNTERPARTS

This agreement may be executed in any number of counterparts (including electronic counterpart) each of which when executed and delivered shall constitute an original.

24. GOVERNING LAW AND JURISDICTION

24.1. This agreement and any dispute or claim 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 law of Hong Kong.

24.2. Each party irrevocably agrees that the courts of Hong Kong shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

EXECUTION

By clicking “Submit” or otherwise indicating assent through the online platform, or by accessing or using the Services, the Customer confirms that they have read, understood, and agree to be bound by this agreement, as updated from time to time. The Customer’s electronic acceptance of this agreement and any amendments is deemed to be binding and enforceable, and to have the same legal force and effect as a physical signature.

Schedule 1 – Support and Service Levels

1. INTERPRETATION

The following definitions apply in this Schedule in addition to the definitions and rules of interpretation in clause 1 of the main body of this agreement.

1.1 Definitions:

Commercially Reasonable Efforts: the same degree of priority and diligence with which Storeganise meets the support needs of its other customers.

Customer Cause: any improper use, misuse or unauthorised alteration of the Software, the Documentation or the Services by the Customer or any of the Authorised Users or any use by the Customer or any of the Authorised Users of any software not provided or approved by Storeganise.

Fault: any failure of the Software to operate in all material respects in accordance with its specification.

Maintenance Release: a release of the Software which corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version.

New Version: any new version of the Software which from time to time is publicly marketed and offered for access by Storeganise in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.

Service Levels: the service level responses and response times referred to in the Service Level Table.

Service Level Table: the table set out in paragraph 2.1.

Solution: either of the following outcomes:

  ( a ) correction of a Fault; or

  ( b ) a reasonable workaround in relation to a Fault.

Out-of-scope Technical Support Services: any services provided by Storeganise in connection with any apparent problem regarding the Software or the Services reasonably determined by Storeganise (i) not to be a Fault, or (ii) to have been caused by a Customer Cause or a cause outside Storeganise’s control (including any investigational work resulting in such a determination).

Support Year: a 12-month period during the term of this agreement commencing with the Start Date or any anniversary of it.

Technical Support Manager: a technical support manager of a party whose name and contact details are provided by a party to the other in advance of them dealing with any Technical Support Request.

Technical Support Request: a  request made by the Customer for the correction of a Fault.

2. SERVICE LEVELS

2.1 Storeganise shall:

  ( a ) prioritise all Technical Support Requests based on its reasonable assessment of the severity level of the problem reported; and

  ( b ) respond to all Technical Support Requests in accordance with the responses and response times specified in the table set out below:

Severity level of Fault	Definition	Service Level response and response time
1	Business Critical Failures: An error in, or failure of, the Software that: (a) materially impacts the operations of the Customer’s business; or (b) disables major functions of the Software.	Level 1 Response: Acknowledgment of receipt of a Technical Support Request within six (6) hours. Level 2 Response: Storeganise shall, within forty-eight (48) hours after the Level 1 Response time has elapsed, provide: (a) an emergency fix or workaround; or (b) temporary release or update release, which allows the Customer to continue to use all functions of the Software or the Services in all material respects. Level 3 Response: Storeganise shall work on the problem continuously and implement a Solution to be released at the next relevant version update. If Storeganise delivers a Solution by way of a reasonable workaround, the severity level assessment shall reduce to a severity level 2 or lower.
2	System Defect with Workaround: a non-critical error in the Software that affects the operations of the Customer’s business.	Level 1 Response: Acknowledgment of receipt of a Technical Support Request within twelve (12) hours. Level 2 Response: Storeganise shall, within six (6) Business Days after the Level 1 Response time has elapsed, provide: (a) an emergency fix or workaround; or (b) temporary release or update release, which allows the Customer to continue to use all functions of the Software or the Services in all material respects. Level 3 Response: Storeganise shall work on the problem continuously and implement a Solution to be released at the next relevant version update. If Storeganise delivers a Solution by way of a reasonable workaround, the severity level assessment shall reduce to a severity level 3 or lower.
3	Minor Error: An isolated or minor error in the Software that: (a) does not significantly affect the Software; or (b) may disable only certain non-essential functions.	Level 1 Response: Acknowledgment of receipt of the Technical Support Request within three (3) Business Days. Level 2 Response: Storeganise shall provide a permanent Fault correction and implement a Solution to be released at the next scheduled relevant version update.

2.2 The parties may, on a case-by-case basis, agree in writing to a reasonable extension of the Service Level response times.

2.3 Storeganise shall give the Customer regular updates of the nature and status of its efforts to correct any Fault.

2.4 The Customer acknowledges that Storeganise’s ability to fix Faults is dependent upon the full and timely co-operation of the Customer (which the Customer agrees to provide).

2.5 Prior to notifying Storeganise of any Fault, the Customer shall follow Storeganise’s operating and troubleshooting procedures for addressing issues with the Software or the Services.

3. FIXING FAULTS

3.1 Storeganise shall use Commercially Reasonable Efforts to correct all Faults notified to it by the Customer.

3.2 Storeganise may reasonably determine that any services are Out-of-scope Technical Support Services. If Storeganise makes any such determination, it shall promptly notify the Customer of that determination and suggest a way forward.

3.3 Storeganise shall use its reasonable endeavours to provide Out-of-scope Technical Support Services. In respect of any such services that it provides, additional charges may apply which will be agreed in advance with the Customer.

3.4 Storeganise shall prioritise all Technical Support Requests based on its reasonable assessment of the severity level of the problem reported in accordance with this Schedule.

3.5 Storeganise shall give the Customer regular updates of the nature and status of its efforts to correct any Fault.

3.6 All Technical Support Requests shall be made by one of the Customer’s Technical Support Managers who shall liaise with Storeganise’s Technical Support Manager in connection with the fixing of any Fault.

4. MAINTENANCE RELEASES AND NEW VERSIONS

From time to time during the Subscription Term, in addition to the services referred to above, Storeganise may modify and/or upgrade the Software with Maintenance Releases and New Versions. The Customer shall provide such assistance as reasonably required by Storeganise to implement any such Maintenance Releases and New Versions. Some features included in New Versions which the Customer may select to access may be subject to additional fees.

5. DEVELOPMENT WORK

The Customer acknowledges that any customised requirements or features which do not already form part of the Software and which would require separate development work to be carried out by Storeganise may be subject to separate fees and will be considered and agreed to separately on a case-by-case basis.

6. SUPPORTED BROWSERS

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.

7. SYSTEM AVAILABILITY

Storeganise will achieve System Availability of at least 99.7% during each Support Year. “System Availability” means the number of minutes in a Support Year that all key components of the Software 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 or its Authorised Users’ computing devices, local area networks or internet service provider connections, or ( e ) inability to deliver services because of acts or omissions of the Customer or any of the Authorised Users including because of any Customer Cause. Storeganise reserves the right to take the Software offline for scheduled maintenance for which the Customer has been provided reasonable notice and Storeganise reserves the right to change its maintenance window upon reasonable prior notice to the Customer. If Storeganise fails to meet 99.7% System Availability in any Support Year, upon written request by the Customer within thirty (30) days after the end of each Support Year, Storeganise will issue a credit against Customer’s next invoice in an amount equal to the Subscription Fees for the relevant Support Year multiplied by the inverse of System Availability of 99.7% for the relevant Support Year, up to a maximum of the Subscription Fees for the relevant Support Year. This paragraph 7 sets out the Customer’s sole remedy and Storeganise’s entire liability for failing to meet System Availability.