(Ahsay Backup Software License Agreement)
THE AGREEMENT is made between AHSAY SYSTEMS CORPORATION LIMITED whose registered office is situated at 28/F, Ford Glory Plaza, No. 37 Wing Hong Street, Lai Chi Kok, Kowloon, Hong Kong ("the Company") and the person whose name and address are described in the invoice/official receipt ("the Client").
WHEREAS The Company is in the business of selling online backup software, and the Client provides online backup services to its customers using the online backup software provided by the Company, resell the backup software or is an end user of the backup software.NOW IT IS AGREED as follows:
- Software license key(s) will be generated and sent to the Client when the total due amount has been received by Ahsay.
- The Client shall keep the software license key(s) confidential and shall never make them available to the public and/or any third party.
- No refund shall be made after the software license key has been made available to the Client.
- A license key can only be used on one computer at any given time. Violation to this restriction will be subjected to a penalty of fulfilling the legitimate license requirement at five times the nominal licensing rate.
- The term "Products" hereinafter appearing shall mean any of the software developed by the Company.
- The term "Services" hereinafter appearing shall mean any of the services offered by the Client using the Products.
- The term "Customers" hereinafter appearing shall mean any of the customers using the Services.
- This Agreement shall apply to all activities involving the provision of the Services by the Client.
- The Client shall:
- not incur any liability on behalf of the Company or in any way pledge or purport to pledge the Company's credit;
- conduct its business in a professional, ethical and lawful manner and not perform any act which will or may reflect adversely upon the business integrity or goodwill of the Company, or any affiliate of the Company or the image or the reputation of the Products;
- The Client shall:
- The Products is on an "as is" basis with no warranties of any kind and the Company will not be liable for any damages of any kind arising from the use. The Company further disclaims all warranties, express and implied, including without limitation, any implied warranties of merchantability or fitness for a particular purpose.
- The Products are the property of the Company and/or its software suppliers and are protected by international copyright laws. Any attempt of reverse engineering, disassembly, or de-compilation of programs, unless it is explicitly permitted, is prohibited by law.
- Redistribution of the Products, unless explicitly granted by the Company, is strictly prohibited.
- All activities of the Services conducted by the Client is subject to the Company's approval and acceptance and shall NOT be effective until accepted by the Company.
CHANGES OF PRICING SCHEDULE
- Market condition may require changes to the pricing schedule for the Products being made expeditiously and the Company reserves the right, at its absolute discretion, to make such changes. The Company may change the pricing schedule for the Software Licenses from time to time in any manner upon giving at least one month's prior written notice to the Client. Such revisions shall apply to sales orders received by the Company on or after the effective date of the revision.
- Licenses and Services purchased cannot be cancelled and payment will not be refunded.
- Licenses and Services purchased are not transferrable after activation.
- In consideration of the Company's provision of the Products to the Client hereunder, the Client hereby undertakes to indemnify and hold the Company harmless from and against all claims, suits, losses, liabilities (including the Company's reasonable attorney's fees), damages, cost and expenses from or in connection to the Products and/or the Services for whatever reason.
- The Company shall under no circumstances be liable to the Client for any loss (whether direct or indirect) of revenue, loss of profits or any consequential loss whatsoever under this Agreement.
- This Agreement shall not be assignable by the Client.
- The Company shall have the right to (at any time) assign all or part of its rights, benefits (including, without limitation, the benefits of this clause), and interests in connection with this Agreement to any other parties.
- The Client shall conduct all of its business in its own name and in such a manner as it may see fit. Nothing in this Agreement shall be construed as the Company granting the Client any exclusive rights of any nature whatsoever.
- Notwithstanding the use of the title of "Client" or "Agent", or "Partner", the Client and the Company are independent contractors under this Agreement and no other relationship is intended, including a partnership, franchise, joint venture, general agency, employer/employee, or master/servant relationship.
- The Client agrees to keep and procure to keep secret and confidential any and all written and/or oral information of any kind relating to the terms of this Agreement and the business of the Company obtained from the pursuant to this Agreement or prior to it and to disclose the same only to those of its employees or contractors directly involved with the marketing of the Products and/or the Services and only to the extent necessary for each of them to perform their duties. The Client shall impose the above obligation to these persons.
- In the event of termination of this agreement, there shall be no use or disclosure of any confidential information in its possession by the Client, and all confidential materials shall be returned to the Company or destroyed. The provisions of this section will survive the termination of the agreement for any reason. Upon any breach or threatened breach of this section, the Company shall be entitled to injunctive relief, which relief shall not be contested by the Client.
DISCLOSURE OF CLIENT'S INFORMATION
- The Company shall be entitled to disclose information concerning the Client to any Clients or sub-contractors appointed or engaged by the Company or any other persons for the purpose in connection with the Products and/or Services.
- The Client warrants to the Company that any information relating to the Client provided to the Company is complete and accurate and the Client shall forthwith inform the Company of any changes to such information.
- The Client grants the Company the right to put the Client's information, including but not limiting to the Client's logo, the Client's Name and the URL of the Client's website, on the Company's website or on any marketing materials or on any documents to indicate that the Client is one of the Company's registered "Clients" or "Partners". The Client shall submit a written notice to the Company if he/she does not want to grant this right to the Company.
- The Company reserves to itself the right notwithstanding anything to the contrary herein contained:
- to continue to sell and market the Products; and/or
- appoint other Clients in the sale and marketing of the Products.
- The Company reserves to itself the right notwithstanding anything to the contrary herein contained:
- This Agreement is intended as the complete statement of the terms of the agreement between the Company and the Client relating to subject matter hereof. This agreement supersedes all previous proposals, oral and written, and all negotiations, conversations or discussions heretofore had between the parties relating to this Agreement.
- There are no promises, terms, conditions or obligations, oral or written, expressed or implied between the parties other than those contained herein.
- The Company may make changes, including but not limiting, the revision of the reselling discount and the referral bonus, to the terms and benefits offered in this Agreement in any manner at its absolute discretion upon giving a thirty-day prior written notice to the Client advising of the changes and the effective date thereof.
- The Client shall have the right to terminate this Agreement on or before the effective date of such changes if he/she does not want to be abided by the changes made effective by the Company. The Client's act of not terminating this Agreement on or before the effective date would constitute acceptance by the Client of such changes.
- The Company shall be entitled to terminate the Agreement forthwith by written notice to the Client if the Client commits any breach of any of the provisions of this Agreement and, in the case of a breach capable of remedy, fails to remedy the same within 14 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied.
- Notwithstanding anything to the contrary herein contained, the Company reserves the right to terminate this Agreement at any time by giving a 30-day prior written notice to the Client. In the event of a termination in accordance with this clause 18ii, the Company shall refund to the Client as follows:
- for any fees paid under the purchase model, 100% of the total amount paid in respect of the Products by the Client;
- for any fees paid under the meter model with prepaid deposit, the balance of any unconsumed deposit paid (if any) in respect of the Products paid by the Client at the date of such termination; and
- for any fees paid under the meter model without prepaid deposit, no refund shall be made by the Company.
- Upon the termination of this Agreement by the Company as a result of any breach of the provisions in this Agreement by the Client, all outstanding unpaid invoices rendered by the Company to the Client in respect of the Products or otherwise shall become immediately due and payable by the Client forthwith upon the termination as aforesaid notwithstanding any other provisions in this Agreement to the contrary.
- The termination of this Agreement shall be without prejudice to any rights of the Company which have accrued prior to such termination. In particular, the liability of the Client to the Company for damages caused by the Client's breach of this Agreement shall not be affected by or waived as a result of the termination of this Agreement.
- For the avoidance of doubt, upon the termination of this Agreement, the Company shall be entitled, without any further notice, :
- to cause the software license key(s) to be cancelled and/or revoked; and
- to preclude the Client!|s access to any software maintenance and upgrade services (or any part thereof).
- Notices made by the Company may be sent by email, fax, or express mail to the email address, fax number, or address most recently provided and will be treated as received by the Client when delivered. Client has the responsibility of keeping its contact information up-to-date with the Company.
SOFTWARE MAINTENANCE AND UPGRADE FEE
- In order to get the support and the latest version of the software, the Client is required to pay the Software Maintenance and Upgrade Fee.
- If the Client is reselling the Products and/or the Services to their Customers, the Client is responsible to collect the Software Maintenance & Upgrade Fee from their Customers.
- If the Client is unable to fulfill, no support and software upgrade will receive from the Company, until all the outstanding Software Maintenance & Upgrade Fee has been settled.
- The heading of each clause is inserted for convenience only and shall not be taken into account when construing this Agreement.
- In case any provision of this Agreement is ruled invalid or unenforceable, the remaining provisions shall continue to be in full force and effects as if the provision ruled invalid or unenforceable as a foresaid had never been included in this Agreement.
- This Agreement shall be construed and enforced in accordance with the laws of the Hong Kong Special Administrative Region of the People's Republic of China ("Hong Kong") and the parties hereto hereby submit to the non-exclusive jurisdiction of the courts of Hong Kong.
- Where the context permits or requires, words denoting the singular shall include the plural and the masculine gender shall include the feminine and neuter gender.
- Where the Client consists of two persons or more, all the provisions contained herein are and shall be deemed to have been agreed to by such persons jointly and severally.