Special Terms and Conditions (USA)
Effective Data: November 26, 2018
Special Terms and Conditions
These terms and conditions shall constitute an integral part of the Agreement between the Customer and the Company. These terms and conditions shall be read in conjunction with the General Terms and Conditions and other applicable guideline, policy, notice, etc. Any previous communications, representations or agreements are superseded by this Agreement.
1. RESPONSIBILITIES OF THE COMPANY
The Company agrees to conduct software and system development in accordance with the specifications which are set forth in the attached Schedule A or on the Service Order Schedule and other instructions and materials in written provided by the Customer from time to time during the terms of this STC (the “Specifications”), and the development schedule set forth in the attached Schedule B (the “Development Schedule”) or on the Service Order Schedule.
2. SOFTWARE AND SYSTEM DEVELOPMENT
2.1 Materials Provided by the Customer. Software and system development material, including but are not limited to relevant account name and password and relevant APIs which are requested by the Company (“Material”). The Customer shall take responsibility to make them accessible. The Materials shall be provided in soft format. The Customer shall provide all the material within ten (10) calendar days from the signing of the Agreement or the Service Order Schedule for the Company to timely meet the requirements of the Development Schedule or otherwise agreed by the Parties. The Materials for the software and system development shall not be obscene, offensive, abusive, defamatory, threatening, indecent, menacing, misleading or discriminatory, or otherwise intended to cause distress, annoyance, inconvenience, worry or upset to the public.
2.2 Accessibility during Development. Throughout the development of the software and system, the software and system shall be accessible to the Customer upon prior written request. Until the Customer confirms the final software and system development, none of the software and system function will be accessible to end users.
2.3 Delivery. Upon the Customer’s confirmation of the final software and system, the Company shall deliver such software and system to Customer. The Customer has only the right to use the software and system subject to other clause and terms contained herein. No source code will be delivered to the Customer unless otherwise agreed. The Company is entitled to refuse such delivery of software and system if all the payment has not been fully received.
3. SOFTWARE AND SYSTEM HOSTING
3.1 From and after the software and system delivery date, the Company will provide the Customer with the Services for hosting the software and system on the World Wide Web portion of the Internet (the “Hosting Services”). The Company’s server maintaining the software and system (the “Host Server”) will be located within the Company’s facility or a hosting provider or colocation facility subcontracted by the Company. The Company shall provide the Hosting Services so that the software and system is accessible to third parties via the World Wide Web portion of the Internet as specified herein.
3.2 The Company’s Responsibilities.
3.2.1 Availability. The Company will make the software and system available on the World Wide Web and the Company will use commercially reasonable efforts, pursuant to the terms and conditions set forth in the Agreement or in the Service Order Schedule, to make the software and system accessible via the World Wide Web portion of the Internet twenty-four (24) hours a day, seven (7) days a week, except for scheduled maintenance and required repairs, and will use its best efforts to ensure reasonable response times for users accessing the software and system. The Company shall incrementally backup the software and system and store the backup materials in a safe and secure environment.
3.2.2 Security. The Company shall endeavor to keep the development files and data as secure as possible, but makes no warranties about the security of any code or data. Should the software and system files or content, whether provided by the Company or the Customer, become compromised through any manner of security breach or exploit, the Company shall, at its sole discretion, take down the software and system, repair the files and data, and bill the Customer for the work at prevailing hourly rates. The Company will communicate with the Customer regarding the nature of the breach or exploit and the nature of the resolution.
3.2.3 Consequence of termination/expiration of the Agreement.
The Company may destroy all the development files and data immediately unless otherwise agreed by the Parties.
3.3 The Customer represents and warrants as follows: that
a) the Customer are lawfully entitled to use, display, posses, or access the data uploaded, linked to, framed, or otherwise posted on the Customer’s software and system by itself; and
b) the Customer’s software and system and its use of the Services will not infringe the intellectual property rights of the Company or any third party; and
c) the Customer’s software and system and its use of the Services will not violate any laws, including, without limitation, laws relating to unsolicited commercial email, child pornography, collection of identifying information, consumer protection, and privacy; and
d) neither the Customer nor those who access the Customer’s software and system will upload any worms, virus, or malicious code to the Hosting Server; and
e) the Customer acknowledges and agrees that any loss or corruption of data which occurs due to an interruption or hack in the software and system Hosting Server, regardless of the cause of the interruption or hack, shall not be the responsibility of the Company, and that the Customer may be required to upload the data to the Hosting Server.
f) the Customer’s software and system and its use of the Services will not subject the Company to any claims by any third party, including claims relating to infringement of intellectual property rights or claims relating to the products or Services which the Customer may provide or offer through the software and system hosted through the Services.
4. SOFTWARE AND SYSTEM DEVELOPMENT BASED ON WECHAT PLATFORM
The Customer acknowledges and agrees that for any software and system development based on WeChat platform shall also be governed by the WECHAT-TERMS OF SERVICE, available at https://www.wechat.com/mobile/htdocs/en/service_terms.html
The Services provided will be charged in accordance with the terms and conditions set forth on the attached Schedule C or on the Service Order Schedule.
6. INTELLECTUAL PROPERTY
6.1 Material provided by the Customer. The Company acknowledges, understands and agrees that the material provided by the Customer is proprietary, original work of authorship of the Customer, or licensed or duly assigned to the Customer. The Company is granted a right to use, such Material for the purpose of this STC.
6.2 The Customer acknowledges, understands and agrees that the Company may use its own preexisting work, open source, and/or may purchase third party license of certain product/service that are necessary for Company to develop the software and system. Such preexisting work, open source and/or license may include, but are not limited to server-side applications, plug-in, “back-end” applications, or any other copyrighted work (“Outside Content”). The Customer further acknowledges, understands and agrees that such Outside Content is owned by the Company and/or such third parties and cannot be transferred to the Customer and is hereby specifically not transferred to the Customer and shall remain the property of the Company and/or such third parties. Outside Content which is owned and/or purchased by the Company may be used in the development of other softwares and systems.
6.3 Subject to Clauses 6.1 and 6.2 above, the Customer is granted an exclusive, non-transferable right of using the software and system.
6.4 The Company retains all rights to the Hosting Services and any computer hardware, software, telecommunications or other equipment, including the Host Server. At no time shall the Customer have any ownership, property, or any other rights in, nor file any lien on, any of the Hosting Services or the Company equipment.
6.5 The Customer understands and agrees that the Company may make reference to the Customer in its website and/or display the delivered software and system for demonstration purposes.
7. LIMITATION OF LIABILITY
The Customer acknowledges and agrees that the Company will not be liable for any
a) suspension or loss of the Hosting Service, except to the limited extent that a remedy is provided under the Agreement;
b) interruption of business;
c) access delays or access interruptions to the software and system provided through or by the Hosting Services;
d) loss or liability resulting from acts of god;
e) data non-delivery, mis-delivery, corruption, destruction or other modification;
f) events beyond the Company’s control;
g) loss or liability resulting from the unauthorized use or misuse of the Customer’s software and system back-end account identifier or password.
8. WARRANTIES AND INDEMNIFICATION
8.1 Limited Warranty
a) Performance Warranty The Company warrants that the Service will perform substantially in accordance with the Service detail listed in the attached Schedule A or on the Service Order Schedule.
b) Warranty Disclaimer The Company does not guarantee that the Service will be error-free, virus-free, or uninterrupted. The Company will not be liable for any unauthorized alteration, theft, or destruction of any of the Customer’s data.
The Customer agrees to indemnify, defend and forever hold harmless the Company and any of its parent and affiliated companies, and the present and former officers, members, shareholders, directors, employees, representatives, attorneys, insurers and agents of any of these, and their successors, heirs and assigns (each, an “Indemnified Party”) from and against any and all losses liabilities, claims, costs, damages and expenses (including reasonable attorneys’ fees, disbursements and administrative or court costs) that (i) arise directly or indirectly out of any breach or alleged breach of its representations and warranties under this Agreement, or (ii) are the result of its willful misconduct. The Indemnified Party shall promptly provide the Customer with written notice of any claim which it believes falls within the scope of this paragraph and shall cooperate with the Customer in the investigation and defense of the same. The Indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that the Customer shall control such defense and all negotiations relative to the settlement of any such claim and that any settlement intended to bind the Indemnified Party shall not be final without the Indemnified Party’s written consent, which shall not be unreasonably withheld.