Tencent Cloud Marketplace End User License Agreement(Standard Version)
最后更新时间：2025-12-03 14:20:08
Tencent Cloud Marketplace End User License Agreement(Standard Version)
最后更新时间： 2025-12-03 14:20:08
This Tencent Cloud Marketplace End User License Agreement (Standard Version) (“Agreement”) is entered into by and between you (“you” or “User”) and [Auto insert Product Partner Company Name] (the “Product Partner”) regarding the authorization, license restrictions, rights and obligations of both Parties, and indemnification related to the Offering(s) [Offering Name] (the “Offering(s)”) provided by the Product Partner to you. This Agreement applies only to the Offerings explicitly provided under this Agreement. The Product Partner provides Offerings on the Tencent Cloud Marketplace (defined below) in accordance with this Agreement, and upon your purchase or Subscription of the relevant Offerings, you shall be deemed to have accepted and agreed to this Agreement, which forms a legally binding agreement between the Parties. This Agreement shall become effective from the date on which you purchase or subscribe to the relevant Offerings. You and the Product Partner are collectively referred to as the “Parties” or individually as a “Party.”
1. Scope of Agreement
1.1. Scope
Each Subscription or purchase of an Offering by the User shall be governed by this Agreement, the applicable Offering Listing, the NDA (if any is entered into, as defined in Section 0), and any amendments to the foregoing agreed by the Parties in accordance with Section 0. The foregoing documents collectively constitute the entire agreement between the User and the Product Partner. This Agreement legally binds the Product Partner and you only. As the provider of the Tencent Cloud Marketplace, Tencent Cloud International Pte. Ltd. (“Tencent Cloud” or “Tencent”) and its Affiliates are not parties to this Agreement and shall have no liability or obligations hereunder.
In the event of any conflict among the components of this Agreement, the order of precedence shall be: (a) the NDA (to the extent one is entered into between the User and the Product Partner pursuant to Section 0); and (b) this Agreement.
2. Definitions
Unless otherwise specified, the following terms shall have the meanings set forth below in this Agreement:
2.1. “Affiliate(s)” means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party. “Control” of a Party means ownership or control, directly or indirectly, of more than fifty percent (50%) of the voting rights or equity interests of such Party, or the ability to control such Party through contract, management agreement, voting trust, or otherwise;
2.2. “Confidential Information” means information that a Party discloses to the other Party under this Agreement, and that is marked as confidential or should reasonably be considered confidential based on the nature of the information and the circumstances of its disclosure;
2.3. “Contractor” means any third-party contractor of the User or other third party providing services to the User, including outsourcing vendors;
2.4. “Data Protection Laws” means all applicable data protection and privacy laws and regulations, whether existing or subsequently enacted, of any jurisdiction worldwide, that apply to the processing of Personal Data under this Agreement, including the Personal Data Protection Regulations 2021 of Singapore (“PDPR”), the General Data Protection Regulation (“GDPR”), the California Consumer Privacy Act (“CCPA”), and the California Privacy Rights Act (“CPRA”), in each case as amended, updated, re-consolidated and replaced from time to time;
2.5. “Offering Documentation” means user guides, manuals, instructions, specifications, notes, documentation, paper-based update materials, readme files, release notes, and other materials, and all enhancements, modifications, derivatives, and revisions thereof, that are published or provided by the Product Partner under this Agreement relating to the Offerings (including all information contained in or referenced by the Offering Listing) and their use, operation, or maintenance;
2.6. “Governmental Entity” means the government of any country or any political subdivision thereof (whether national, state, regional, provincial, municipal, or other level), including any agency, authority, regulatory body, court, central bank, or other governmental entity exercising governmental administrative, legislative, judicial, taxing, regulatory, or executive powers (including supranational bodies such as the European Union or the European Central Bank);
2.7. “Licensed Material(s)” means the Offerings, Offering Documentation, and any other items, materials, or deliverables that the Product Partner licenses to the User pursuant to this Agreement;
2.8. “Offering(s)” means any digital content, software, data, or related services independently developed by the Product Partner and, pursuant to the Tencent Cloud Marketplace Product Cooperation Agreement, offered for sale through the Tencent Cloud Marketplace and which are deployed, delivered, and managed with compatible Tencent Cloud services. Offerings are strictly screened in accordance with established rules and are marked with corresponding labels;
2.9. “Offering Listing” means the description of and other information about the Offerings listed on the Tencent Cloud Marketplace and provided by the Product Partner, including Support Services and the Product Partner’s policies and procedures contained in or referenced by the Offerings information. The Offering Listing may also describe, contain, or reference the Product Partner’s security practices or disclosures regarding Open Source Software;
2.10. “Open Source Software” means software that is distributed under publicly available licenses or distribution models and made available to users with source code for use, modification, and redistribution;
2.11. “Personal Data” means any information that identifies a specific natural person independently or in combination with other information, including equivalent terms defined under applicable Data Protection Laws (such as “personal information” as defined in the CCPA);
2.12. “Personnel” means the directors, officers, employees, non-employee workers, agents, auditors, consultants, and any other persons providing services on behalf of a Party or its Affiliates (but excluding the other Party and its foregoing Personnel);
2.13. “Privacy and Security Terms” means the Data Protection Addendum attached hereto, and any other terms and conditions relating to data privacy and security agreed by the Parties as part of this Agreement (whether set out in an appendix or amendment to this Agreement);
2.14. “Processing” means any operation or set of operations performed on Personal Data, whether or not by automated means, including but not limited to accessing, collecting, recording, organizing, structuring, using, storing, transferring, retaining, disclosing, selling, sharing, deleting, and destroying Personal Data;
2.15. “Proprietary Right(s)” means all intellectual property rights and proprietary rights worldwide (whether now existing or later discovered or invented, registered or unregistered), including but not limited to: (a) patents and patent applications; (b) copyrights and mask work rights; (c) trade secrets; (d) trademarks; (e) data and database rights; (f) moral rights; and (g) similar rights worldwide;
2.16. “Subscription” means a subscription for Offering(s) of specified usage capacity purchased by the User from the Product Partner, under which the Product Partner provides the license and the corresponding Offerings;
2.17. “Subscription Pricing” means the pricing model in which the User purchase by way of either a subscription plan, a one-time fee or other payment plan(s), for a certain usage capacity or access to relevant digital content, including prepaid and installment pricing models;
2.18. “Support Service(s)” means the support and maintenance services for the Offerings provided or to be provided by the Product Partner as described in the Offering Listing;
2.19. “Tencent Cloud Marketplace” means the Tencent Cloud International Marketplace service platform managed by Tencent Cloud for the display and sale of Offering(s) provided by Product Partners, a platform operated by Tencent Cloud for transactions between two or more parties to facilitate deployment, delivery, and management services relating to the Offering(s). The current website for the Tencent Cloud Marketplace is located at https://www.tencentcloud.com/market, and Tencent Cloud may update or change such URL from time to time;
2.20. “User Data” means any data, information, media, or other content submitted to the services by the User or on behalf of the User or its end users, including but not limited to text, audio, video, images, and software, but excluding any data provided to Tencent or its Affiliates as part of the User’s account. For the avoidance of doubt, User Data also includes the User’s Confidential Information; and
2.21. “User Materials” means any property, items, or materials, including User Data, provided by the User to the Product Partner for the Product Partner’s performance of its obligations under this Agreement.
3. License Restrictions
3.1. Licensed Materials
3.1.1. Offerings or Offering components purchased by the User on the Tencent Cloud Marketplace are restricted to deployment within the Tencent Cloud service computing environment. During the User’s Subscription term, and subject to Section 3.1.3, the Product Partner grants to User a non-exclusive, worldwide (subject to Section 13.4), non-transferable (except as permitted under Section 13.2) and non-revocable (except as provided in Section 12) license to deploy, install, access and use the Offerings and the corresponding Offering components in the Tencent Cloud service computing environment in accordance with the Offering Listing, the purchased usage in the Subscription, and the terms of the Agreement.
3.1.2. The scope of the Offering license in Section 3.1.1 only permits the User to: (a) use the Offerings to support the internal operations of the User and its Affiliates’ businesses or organizations; (b) use the Offerings in association with the products of the User and its Affiliates (for clarity, not as stand-alone products of the User or its Affiliates); and/or (c) use the Offerings in interactions between itself, its Affiliates and its customers.
3.1.3. The User may make a reasonable number of copies of Offering Documentation in order to use the Offerings as permitted under the Agreement, provided that the User includes all proprietary notices and other legends on all such copies. The Product Partner reserves all rights not expressly granted to the User under this Agreement.
3.2. Responsibility
With respect to “Affiliates”, “Contractors” of the User and any other third parties who are permitted to use the Licensed Materials: (a) the User shall remain responsible for all obligations under this Agreement relating to such Affiliates’, Contractors’ or permitted third party’s use of the Licensed Materials; and (b) the User agrees to be directly responsible for any acts or omissions of such Affiliates, Contractors or permitted third party to the same extent as if such acts or omissions were made by the User, and accordingly any breach of this Agreement by such Affiliates, Contractors or permitted third party shall be deemed a breach by the User. Any acts or omissions of Affiliates, Contractors or permitted third parties under this Agreement made on behalf of, through, or for the benefit of the User shall be deemed acts or omissions of the User.
3.3. LICENSE RESTRICTIONS
UNLESS OTHERWISE EXPRESSLY PERMITTED IN THIS AGREEMENT, NEITHER THE USER NOR ANY OTHER AUTHORISED AFFILIATE, CONTRACTOR OR PERMITTED THIRD PARTY USING THE LICENSED MATERIALS MAY: (A) COPY THE LICENSED MATERIALS IN WHOLE OR IN PART EXCEPT AS PERMITTED PURSUANT TO SECTION 3.1.3; (B) DISTRIBUTE COPIES OF THE LICENSED MATERIALS IN WHOLE OR IN PART TO ANY THIRD PARTY; (C) MODIFY, ADAPT, TRANSLATE OR ALTER THE LICENSED MATERIALS, OR CREATE DERIVATIVE WORKS BASED ON THE LICENSED MATERIALS OR ANY PART THEREOF; (D) UNLESS PERMITTED BY LAW, DECOMPILE, REVERSE ENGINEER, DISASSEMBLE, OR OTHERWISE ATTEMPT TO DERIVE THE SOURCE CODE , ALGORITHMS OR UNDERLYING STRUCTURE OF THE OFFERINGS OR OFFERING COMPONENTS; (E) USE, RENT, LEND, SUBLICENSE, LEASE, DISTRIBUTE, OR ATTEMPT TO GRANT ANY THIRD PARTY ANY OTHER RIGHTS TO ANY PART OF THE LICENSED MATERIALS; (F) USE THE LICENSED MATERIALS AS A CONSULTANT, SERVICE BUREAU, OR APPLICATION SERVICE PROVIDER; OR (G) PERMIT ANY THIRD PARTY (EXCEPT AFFILIATES, CONTRACTORS OR PERMITTED THIRD PARTIES) TO ACCESS THE LICENSED MATERIALS IN ANY WAY; OR (G) ENGAGE IN ANY BEHAVIOUR THAT VIOLATES THIS AGREEMENT OR APPLICABLE LAWS.
3.4. Open Source Software
Subject to the requirements of Section 7.1(d), the Offerings may contain or be accompanied by Open Source Software, which form part of the Offerings. To the extent license terms governing such Open Source Software apply to the User’s use of the Offerings, the Offering Listing or Offering Documentation shall identify such Open Source Software and the license terms applicable to the User. For the avoidance of doubt, the terms of this Agreement shall also apply to the Open Source Software which forms part of the Offerings. If the Open Source Software license imposes specific obligations on the User (e.g., attribution, source code disclosure, disclosure of modifications, reverse engineering, etc.), then such license terms shall prevail over the corresponding terms of this Agreement.
3.5. Disclaimer of Warranties
TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, THE OFFERINGS PROVIDED BY THE PRODUCT PARTNER ARE PROVIDED ON AN “AS IS,” AND “AS AVAILABLE” BASIS AND PRODUCT PARTNER MAKES NO WARRANTIES OF ANY KIND. PRODUCT PARTNER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING PRODUCT PARTNER, ANY OFFERING OR OFFERING COMPONENTS OR ANY USER DATA SUBMITTED, UPLOADED, STORED, TRANSMITTED OR DISPLAYED BY OR THROUGH THE OFFERINGS OR OFFERING COMPONENTS, INCLUDING ANY REPRESENTATION, WARRANTY OR UNDERTAKING ON MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, THAT THE OFFERINGS OR OFFERING COMPONENTS WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS, THAT THE LICENSED MATERIALS WILL MEET THE USER’S REQUIREMENTS; THAT USER DATA WILL NOT BE SUBJECT TO LOSS OR DAMAGE, THAT THE OFFERINGS OR OFFERING COMPONENTS WILL BE SECURE OR COMPATIBLE WITH YOUR NETWORKS, SYSTEMS, APPLICATIONS, HARDWARE OR DEVICES, AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES AND CONDITIONS ARISING FROM COURSE OF DEALING OR USAGE IN TRADE. ANY ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM THE PRODUCT PARTNER OR ELSEWHERE SHALL NOT CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.
4. Rights and Obligations of User
4.1. User Rights
4.1.1. The User is now and shall remain the exclusive owner of all User Materials, User Data, and other Confidential Information of the User. Nothing in this Agreement shall be construed as granting the Product Partner any ownership or other Proprietary Rights in the User Data or User Materials.
4.1.2. The Parties agree that the User Data and User Materials are the Confidential Information of the User. The User hereby grants the Product Partner a non-exclusive, sub-licensable, revocable license to access, copy and otherwise use User Materials and User Data to the extent necessary to perform the Product Partner’s obligations under this Agreement, including to provide the Offerings to the User.
4.1.3. The User shall have full access to the User Data contained in the Offerings and shall have the right to review and retain all User Data. Any computer or electronic records containing User Data, except for User Data backups stored and/or maintained at the User’s instruction or in accordance with the Offering Documentation and Privacy and Security Terms, shall not at any time be stored or maintained in any form or manner that is not readily accessible to the User through normal operation of the Offerings. The Product Partner shall provide the User with all passwords, codes, comments, keys, and other documentation necessary to access and use the Offerings, and the User shall have the right to delete or require the Product Partner to delete any User Data expressly designated by the User.
4.2. User Obligations
4.2.1. The User represents and warrants to the Product Partner that it has obtained or will obtain all necessary consents, authorizations, and rights, and has provided the necessary notices and disclosures, to provide the User Data to the Product Partner and to enable the Product Partner to use the User Data in the performance of its obligations under this Agreement in accordance with its terms, including any access to or transmission of User Data to third parties with whom the User shares or permits access to the User Data.
4.2.2. The User shall not knowingly use the Offerings or Offering components to: (a) store, download, or transmit infringing or unlawful content, or any viruses, “Trojan horses,” or other harmful code; (b) engage in phishing, spamming, denial of service attacks, or fraudulent or unlawful activities; (c) interfere with or disrupt the integrity or performance of the Offering, Offering components, or data contained therein, or interfere with the Product Partner’s systems or networks, or circumvent the security features of the Offerings; or (d) perform penetration testing, vulnerability testing, or other security testing of the Offerings, Offering components, or the Product Partner’s systems or networks, or otherwise attempt to gain unauthorized access to the Offerings or the Product Partner’s systems or networks.
5. Rights and Obligations of Product Partner
5.1. Rights of the Product Partner
5.1.1. The Product Partner may immediately suspend the User’s access to or use of any part or all of the Offerings upon written notice to the User: (a) if, after conducting reasonable due diligence on the nature and severity of the issue, the Product Partner reasonably determines that: (i) the User’s use of the Offerings poses a material risk to the security or operation of the Product Partner’s systems, the Offerings, or the systems or data of any other customer; or (ii) the User’s use of the Offerings violates Section 4.2.2 or applicable laws; or (b) if the User fails to pay any undisputed amounts within thirty (30) days after overdue notice; or (c) if the User uses the Offerings to store or process highly sensitive information without the Product Partner’s approval for the Offerings to handle such highly sensitive information. To the extent reasonably practicable, the Product Partner shall limit the suspension to the minimum necessary to mitigate the relevant risk. The Product Partner shall promptly restore the services to the User once the issue is resolved and/or the overdue amounts are paid, as applicable.
5.2. Obligations of the Product Partner
5.2.1. If System Data (individually or in combination) can identify the User, its customers, related parties, or devices (collectively, “Identifiable System Data”), the Product Partner may use such data internally only for the following purposes: (a) to identify opportunities to optimize the use of its Offerings (including providing additional training); and (b) to recommend other Offerings of the Product Partner to the User. The Product Partner shall not conduct any data analysis regarding the User and its Affiliates, their business, operations, finances, users, customers, prospects, suppliers, or other Personnel interacting with you and its Affiliates, nor otherwise use any Identifiable System Data to derive or attempt to derive information about the foregoing. The Product Partner shall not target any development work resulting from its use of Identifiable System Data at any person based on such person’s relationship with the User or its Affiliates, or based on such person being in the same industry or market as the User or its Affiliates. Unless otherwise agreed in writing by the Parties, the Product Partner shall not use any Identifiable System Data for any purposes other than those permitted under this Section, and shall maintain the confidentiality and security of such Identifiable System Data as Confidential Information, except to the extent use is permitted under this Section.
5.2.2. Nothing in this Agreement shall restrict: (a) the Product Partner’s use of System Data or data derived from System Data, provided that such data does not identify, or enable identification or association, alone or in combination with other data, of: (i) the User, its Affiliates, users, customers, suppliers, other Personnel interacting with you and its Affiliates, or any Confidential Information of the User; or (ii) any devices (such as computers, mobile terminals, browsers) used to access or use the Offerings that are associated with the User or its Affiliates; or (b) either Party’s use of any data, records, documents, content, or other information related to any third party, collected, received, stored, or maintained independently of this Agreement.
The Product Partner shall comply with the security practices included in or referenced by the Offering Listing and Offering Documentation (if any), and shall continuously implement physical, technical, and administrative security measures consistent with industry standards to: (a) maintain the security and confidentiality of User Data; and (b) maintain the availability and integrity of User Data, and protect User Data against known or reasonably anticipated threats or hazards to its security, including accidental loss, unauthorized use, access, alteration, or disclosure. The Product Partner shall promptly notify the User upon becoming aware of any material unauthorized access to, or any unauthorized loss, use, or disclosure of, User Data (“Security Incident”), provided that such notification is not prohibited by law. The Product Partner shall investigate the cause of the Security Incident and take reasonable measures to prevent further unauthorized access, loss, use, or disclosure of User Data. Upon the User’s request and at the User’s expense, the Product Partner shall reasonably cooperate with the User in fulfilling its obligations under applicable law in responding to the Security Incident. The Product Partner’s obligation to report or respond to a Security Incident under this Section does not constitute an admission of any fault or liability by the Product Partner with respect to such Security Incident.
6. Proprietary Rights
6.1. Licensed Materials
Subject to the license granted under this Agreement, the Product Partner (or its licensors) shall retain all rights and interests it may have in the Licensed Materials, including all Proprietary Rights. Nothing in this Agreement shall be construed as granting the User, its Personnel, Affiliates or Contractors ownership of the Licensed Materials or any Proprietary Rights therein.
6.2. Feedback
The User may, at its sole discretion, provide suggestions, ideas, enhancement requests, recommendations, or other feedback regarding the Licensed Materials or Support Services (collectively, “Feedback”), provided that such Feedback does not contain any Proprietary Rights of the User or its Affiliates, or any User Data or User Materials. The Product Partner may use and incorporate Feedback in its Offerings without compensation or notice to the User; however, the Product Partner and its use of the Feedback shall not identify the User as the source of such Feedback. Feedback shall not be considered Confidential Information of the User. The User is under no obligation to provide Feedback, and all Feedback is provided by the User based on existing usage, without any warranties of any kind.
7. Warranties
7.1. Licensed Materials
The Product Partner represents and warrants to the User that:
(a) for Subscriptions with Subscription Pricing, the Offering or Offering components shall, in all material respects, conform to the specifications in the Offering Documentation for: (a) a period of 30 days after the User’s purchase; or (b) during the Subscription term, whichever is shorter;
(b) it shall implement industry-standard security measures to prevent viruses, Trojan horses, worms, spyware, adware, or other malicious code from causing the following harm to the Offerings: (i) unauthorized access or use; (ii) data leakage, alteration, or destruction; or (iii) interference with or damage to the normal operation of the Offerings, systems, networks, or data. This includes, without limitation, scanning the Offering for malware and other security vulnerabilities using the latest scanning software or services prior to delivering the Offering to the User (including any Offerings provided through Support Services); and
(c) the User’s use of the Offering within the scope permitted by this Agreement is not subject to any license or term that: (i) requires disclosure or distribution in source code form of User Data, User Materials, or any software, documentation, information, or other materials (in whole or in part) integrated, networked, or used with the Offering; or (ii) grants rights for creating derivative works or free redistribution.
7.2. Support Services
The Product Partner represents, warrants and undertakes that any Support Services will be provided in a professional and workmanlike manner, in accordance with good industry practice, with reasonable care and skill, and in accordance with the Offering Listing and Offering Documentation.
7.3. Remedies
If any Offering does not conform to the above warranties, the Product Partner shall, at its own discretion, promptly correct the Offering or re-perform the service at its own expense. If the Product Partner fails to correct the Offering or re-perform the service within a reasonable period (not exceeding any period agreed by the Parties, hereinafter the “Remedy Period”) to meet the warranty, as the User’s sole remedy and the Product Partner’s exclusive liability (except as otherwise provided in Section 11), the User may, within 30 days after the end of the Remedy Period (or any other period agreed by the Parties), terminate the Subscription to the relevant Offering and this Agreement without further liability. The Product Partner shall refund the User any fees prepaid for the Offering, calculated on a pro-rata basis for the unused portion of the Subscription at the time the User reports the breach.
7.4. WARRANTY EXCLUSIONS
THE PRODUCT PARTNER SHALL HAVE NO LIABILITY OR OBLIGATION FOR ITS WARRANTIES TO THE EXTENT THAT THE NON-CONFORMANCE ARISES FROM: (A) THE USER’S USE OF THE OFFERING OR OFFERING COMPONENTS IN VIOLATION OF THIS AGREEMENT OR APPLICABLE LAWS AND REGULATIONS; (B) MODIFICATIONS TO THE LICENSED MATERIALS NOT MADE BY THE PRODUCT PARTNER OR ITS PERSONNEL; (C) COMBINING THE PRODUCT WITH THIRD-PARTY DEVICES OR SOFTWARE NOT PROVIDED BY THE PRODUCT PARTNER OR NOT CONTEMPLATED IN THE OFFERING LISTING OR OFFERING DOCUMENTATION; OR (D) THE USER’S USE OF THE OFFERING OR OFFERING COMPONENTS IN VIOLATION OF APPLICABLE LAWS THE OFFERING DOCUMENTATION, WHERE SUCH NON-CONFORMANCE WOULD NOT HAVE OCCURRED BUT FOR SUCH USE OR MODIFICATION.
7.5. Compliance
Each Party represents and warrants to the other that it will comply with all applicable international, national, state, and local laws, regulations, rules, and orders governing the performance of its respective obligations under this Agreement.
7.6. Power and Authorization
Each Party represents and warrants to the other that: (a) it has all necessary rights, power and authorization to enter into and perform this Agreement, and the execution and delivery of this Agreement has been duly authorized; and (b) this Agreement and its performance under this Agreement will not violate any other agreement to which it is a party, or any obligations to which it is bound, or any obligations to any third party.
8. Confidentiality
8.1. Confidential Information
Neither Party (the “Receiving Party”) shall disclose the other Party’s (the “Disclosing Party”) Confidential Information except to the Receiving Party’s Affiliates, employees, or Contractors who need to know such Confidential Information for the purpose of exercising the Receiving Party’s rights or performing the Receiving Party’s obligations under this Agreement, provided that such persons have agreed in writing to confidentiality obligations at least as protective as those set forth in this Agreement. The Receiving Party shall, and shall take appropriate measures to ensure that its Affiliates, employees, and Contractors: (a) exercise at least reasonable care to protect the confidentiality of the Disclosing Party’s Confidential Information; and (b) not use the Disclosing Party’s Confidential Information for any purpose other than exercising the Receiving Party’s rights and performing its obligations under this Agreement. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the extent required by applicable laws, regulations, or governmental orders, provided that, to the extent legally permitted, the Receiving Party uses commercially reasonable efforts to: (a) promptly notify the Disclosing Party of such disclosure requirement prior to disclosure; and (b) provide the Disclosing Party with any information reasonably requested to assist the Disclosing Party in seeking a protective order or other confidential treatment of such Confidential Information. Except for the rights expressly granted under this Agreement, each Party retains all rights to its Confidential Information. The Parties agree that the Licensed Materials constitute the Product Partner’s Confidential Information.
8.2. Confidentiality Obligations
Each Party shall maintain the confidentiality of the other Party’s Confidential Information and take reasonable precautions to avoid disclosure and unauthorized use. Each Party shall exercise the duty of care of a good administrator with respect to such Confidential Information and prevent its unauthorized or negligent use, disclosure, publication, or access. Each Party may disclose such information only to those persons who have a need to know and are bound by confidentiality obligations no less stringent than those set forth in this Section. Unless otherwise permitted under this Agreement, neither Party shall use the other Party’s Confidential Information for any purpose other than to perform its obligations or exercise its rights under this Agreement, or to reasonably use the Offerings. If either Party becomes aware of any unauthorized use or disclosure of the other Party’s Confidential Information, it shall promptly notify the other Party and reasonably cooperate with the other Party in efforts to limit such disclosure.
8.3. Mandatory Disclosure
If disclosure or production of Confidential Information is required by applicable law (including regulatory requirements), discovery requests, subpoenas, court orders, or governmental actions, the Receiving Party may disclose or produce such Confidential Information, provided that it gives the Disclosing Party reasonable prior notice (or, if prior notice is not legally permitted, as soon thereafter as legally permissible) so that the Disclosing Party may intervene and seek protective orders, confidential treatment, or other appropriate remedies. Any disclosure of Confidential Information required by law shall not cause such information to lose its confidential nature, and the Receiving Party’s obligations with respect to the Disclosing Party’s Confidential Information shall not be altered or diminished by such disclosure. If you are a Governmental Entity, you shall comply with all laws governing its disclosure of public information.
8.4. Non-Disclosure Agreement
If the User and the Product Partner agree to enter into a separate non-disclosure agreement (“NDA”) between them (or between your and Product Partner’s respective Affiliates), such agreement shall apply to disclosures made during the Subscription Term. In such case, its terms shall be incorporated into this Agreement by reference and shall supersede the provisions of Sections 8.1 to 8.3.
9. Data Protection
9.1. Data Protection Laws
To the extent the Parties process Personal Data in connection with the performance of their obligations under this Agreement, the Parties shall comply with all Data Protection Laws and the terms of the attached Data Processing Addendum.
9.2. Remedies
The Parties agree that if a breach or threatened breach of this Section 9occurs, the non-breaching Party, in addition to any other remedies available, shall be entitled to seek injunctive relief against the breaching Party.
10. LIMITATION OF LIABILTY
10.1. DISCLAIMER; GENERAL CAP
EXCEPT AS PROVIDED IN SECTIONS 10.2 AND 10.3, UNDER NO CIRCUMSTANCES SHALL: (A) EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY) EXCEED THE FEES AND OTHER AMOUNTS PAID AND PAYABLE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
10.2. Exception for Gross Negligence, Willful Misconduct, or Fraud
The exclusions and limitations of liability set forth in Section 10.1 shall not apply to a Party’s gross negligence, willful misconduct, fraudulent acts or other liabilities that cannot be excluded under applicable laws.
10.3. Exception for Certain Indemnification Obligations
The limitations of liability set forth in Section 10.1 shall not apply to the defense costs and indemnification amounts that a Party is obligated to pay under a final court judgment or settlement agreement pursuant to its indemnification and defense obligations under this Agreement.
11. Indemnification
11.1. Product Partner’s Indemnification Obligations
The Product Partner shall, at its own expense, defend, hold harmless and indemnify the User and its Affiliates, and each of their directors, officers, employees, agents, and representatives (collectively, the “User Indemnitees”), against any third-party claims (including those from governmental investigative authorities) arising from: (a) the Licensed Materials of the Product Partner, or the User’s compliant use of such Licensed Materials in accordance with the terms of this Agreement, infringing, misappropriating, or violating any third party Proprietary Rights; (b) the Product Partner’s violation of applicable laws; or (c) the Product Partner’s violation of Data Protection Laws resulting in unauthorized access, use, or disclosure of User Data. The Product Partner shall be responsible for costs and damages awarded in a court judgment or under a settlement agreement, as well as any government fines arising from such claims.
11.2. User’s Indemnification Obligations
The User shall, at its own expense, defend, hold harmless and indemnify the Product Partner and its Affiliates, and each of their officers, directors, employees, agents, and representatives (collectively, the “Product Partner Indemnitees”), from any claims arising out of: (a) the User Materials, User Data, or the Product Partner’s permitted use thereof under this Agreement, infringing, misappropriating, or violating any third party Proprietary Rights; (b) the User’s violation of applicable laws; and (c) unauthorized or unlawful processing of User Data by the Product Partner in performing its obligations under this Agreement, caused by the inaccuracy or breach of the User’s representations, warranties, and/or obligations under Section 4.2.1. The User shall pay all costs, damages, and amounts finally awarded by a court judgment or agreed under settlement (as set forth in Section 0 below), as well as any government fines imposed on the Product Partner in connection with such claims. If you are a Governmental Entity, this Section 11.2 shall not apply except to the extent permitted under applicable law.
11.3. Procedure
A Party seeking indemnification under this Section 11 (each, an “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) of each claim for which indemnification is sought. Failure or delay in providing such notice shall relieve the Indemnifying Party of its obligations only to the extent it is prejudiced by such failure or delay. The Indemnified Party shall reasonably cooperate, at the Indemnifying Party’s expense, in the defense of each claim. The Indemnifying Party shall keep the Indemnified Party informed of the status of each claim. The Indemnified Party may participate in the defense at its own expense. The Indemnifying Party shall control the defense or settlement of the claim, provided that it shall not, without the Indemnified Party’s prior written consent: (a) agree to any settlement that: (i) includes a guilty plea or admission of fault by the Indemnified Party; (ii) imposes monetary obligations on the Indemnified Party not covered under this Section; (iii) imposes non-monetary obligations on the Indemnified Party; or (iv) does not include a full release of the Indemnified Party group; and (b) consent to a judgment unless the claim is permanently dismissed with prejudice as to the Indemnified Party. The Indemnifying Party shall ensure that any settlement agreement relating to a claim remains confidential, except as required by applicable law.
11.4. Infringement Remedies
In addition to the obligations under Section 11.1, if an Offering or other Licensed Material is determined (or the Product Partner reasonably believes it is likely to be determined) to infringe third-party Proprietary Rights, or if an injunction is obtained (or likely to be obtained) that prevents the User from using the Licensed Materials as permitted, the Product Partner shall, at its own expense, choose one of the following actions: (a) obtain continued use rights: procure the relevant rights for the User to continue using the affected Offerings and Licensed Materials under this Agreement; or (b) modify/replace Offerings and Licensed Materials: modify or replace the Offerings and Licensed Materials such that the new versions are materially equivalent in functionality, system compatibility, security, and performance level, and are non-infringing. If the Product Partner, after using commercially reasonable efforts, cannot achieve either option, it shall notify the User in writing, and either Party may terminate the Subscription and this Agreement, in which case the Product Partner shall refund prepaid fees on a pro-rata basis for the unused term.
11.5. LIMITATIONS
11.5.1. THE PRODUCT PARTNER SHALL HAVE NO LIABILITY FOR INFRINGEMENT CLAIMS UNDER THIS SECTION 11 TO THE EXTENT THEY ARISE FROM: (A) UNAUTHORIZED MODIFICATIONS: MODIFICATIONS TO LICENSED MATERIALS NOT MADE BY THE PRODUCT PARTNER OR ITS PERSONNEL; (B) UNAUTHORIZED COMBINATIONS: USE OF THE OFFERINGS OR OFFERING COMPONENTS IN COMBINATION WITH THIRD-PARTY EQUIPMENT OR SOFTWARE NOT PROVIDED BY THE PRODUCT PARTNER OR EXPRESSLY LISTED IN THE OFFERING LISTING OR DOCUMENTATION; OR (C) UNAUTHORIZED USE BY USER: THE USER’S USE OF THE LICENSED MATERIALS IN VIOLATION OF THIS AGREEMENT (INCLUDING ANY OFFERING DOCUMENTATION). IF AN INFRINGEMENT CLAIM INVOLVES USE OF THIRD-PARTY EQUIPMENT OR SOFTWARE PROVIDED OR EXPRESSLY RECOMMENDED BY THE PRODUCT PARTNER, THE PRODUCT PARTNER’S LIABILITY SHALL BE LIMITED TO A PROPORTION CALCULATED AS THE LESSER OF: (A) VALUE RATIO: THE PROPORTION OF THE ACTUAL OR ALLEGED INFRINGING VALUE ATTRIBUTABLE TO THE LICENSED MATERIALS WITHIN THE COMBINATION; OR (B) TECHNICAL CONTRIBUTION RATIO: THE RELATIVE CONTRIBUTION OF THE PRODUCTS OR LICENSED MATERIALS TO THE INFRINGEMENT CLAIM (E.G., IF THE PRODUCTS OR LICENSED MATERIALS CONCERN ONLY ONE OF FOUR LIMITATIONS IN AN INFRINGEMENT CLAIM, THE PRODUCT PARTNER SHALL BEAR ONLY 25% OF THE DEFENSE AND INDEMNIFICATION OBLIGATIONS).
11.5.2. THE USER SHALL HAVE NO LIABILITY FOR INFRINGEMENT CLAIMS UNDER THIS SECTION 11 TO THE EXTENT THEY ARISE FROM: (A) UNAUTHORIZED MODIFICATIONS: MODIFICATIONS TO USER MATERIALS OR DATA NOT MADE BY THE USER OR ITS PERSONNEL, AFFILIATES OR CONTRACTORS; (B) UNAUTHORIZED USE BY PRODUCT PARTNER: THE PRODUCT PARTNER’S USE OF USER MATERIALS OR DATA IN VIOLATION OF THIS AGREEMENT.
11.6. Limitation Exceptions
The foregoing indemnification obligations shall not be limited by the availability of any compulsory or other insurance coverage held by a Party, and the Indemnifying Party shall remain fully responsible under this Agreement.
12. Term and Termination
12.1. Term
This Agreement shall remain in full force and effect until the expiration of the Subscription, unless earlier terminated by either Party in accordance with this Agreement.
12.2. Termination
Either Party may terminate a Subscription or this Agreement if the other Party commits a material breach of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of breach from the non-breaching Party. Termination of this Agreement by the Product Partner pursuant to this Section shall not affect the User’s right, after termination, to require the Product Partner to assist in retrieving and deleting User Data in accordance with Section 12.3.2, nor the Product Partner’s related obligations.
12.3. Effect of Termination
12.3.1. Upon expiration or termination of a Subscription or this Agreement, your right to use the Offerings obtained under such Subscription shall terminate, and your access to the Offerings provided under such Subscription may be disabled and terminated. The termination of any Offering Subscription purchased by you from the Product Partner shall not terminate or modify any other Offering Subscription purchased by you from the Product Partner.
12.3.2. Within forty-five (45) days after the termination or expiration of a Offering Subscription (or such other period as may be agreed by the Parties in writing), or if the Product Partner receives a written request from the User prior to termination/expiration, the Product Partner shall: (a) extract all User Data from the Offerings and/or the Product Partner’s computing environment (as applicable) and return it to the User; or (b) where the User is able to directly retrieve or delete User Data through the Offerings, cooperate with the User within forty-five (45) days after termination/expiration (or such other period as may be agreed in writing by the Parties) to complete the self-service data disposition. When the User performs data disposition by itself, the Product Partner shall reasonably assist in verifying whether such retrieval/deletion has been successfully completed. The User Data shall be delivered in a then-current, commonly used, non-proprietary format. Notwithstanding any other provision of this Agreement, delay in returning User Data caused by a Force Majeure Event (as defined in Section 0) shall not relieve the Product Partner of this obligation. Upon delivery of User Data to the User and confirmation by the User, or upon retrieval or deletion of User Data by the User and verification by the Product Partner, or upon the expiration of the applicable period (whichever occurs first), the Product Partner may permanently delete and remove User Data (if any) from its electronic and hard-copy records within a reasonable time, and upon the User’s request, provide written certification to the User confirming such deletion and removal. If the Product Partner is unable to delete any portion of the User Data or User Confidential Information, it shall remain subject to the confidentiality, privacy, and data security provisions of this Agreement.
12.3.3. Section 6 (Proprietary Rights), Section 8 (Confidentiality), Section 10 (Limitation of Liability), Section 11 (Indemnification), Section 12.3 (Effect of Termination), Section 13 (Miscellaneous), and any perpetual licenses granted under this Agreement, together with any other provisions of this Agreement which by their nature or reasonable interpretation should survive expiration or termination, shall survive the expiration or termination of this Agreement for any reason. Notwithstanding the foregoing, the non-use and non-disclosure obligations in Section 8 shall expire five (5) years after the expiration or termination of this Agreement, except that if any Confidential Information constitutes a trade secret, such obligations shall continue for so long as such Confidential Information remains a trade secret.
13. Miscellaneous
13.1. Governing Law and Dispute Resolution
13.1.1 Unless otherwise specified in the terms applicable to a particular region or service, this Agreement, including matters concerning its interpretation, validity, and performance, shall be governed by the laws of Singapore, excluding the application of the United Nations Convention on Contracts for the International Sale of Goods (1980). Any claim arising out of or in connection with this Agreement or the services, including disputes concerning contract formation, validity, interpretation, performance, breach, or termination, as well as any pre-contractual or non-contractual rights and obligations related thereto, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the SIAC Rules in effect at the time of the Notice of Arbitration. The seat of arbitration shall be Singapore, the language of arbitration shall be English, and the arbitral proceedings shall be confidential. The tribunal shall consist of a sole arbitrator. The award rendered by the tribunal shall be final and binding, and may be enforced in any court of competent jurisdiction. The prevailing Party shall be entitled to recover its costs of dispute resolution arising out of this Agreement from the losing Party.
13.2. Assignment
Neither Party may assign this Agreement or any of its rights, or delegate any of its obligations hereunder, without the prior written consent of the other Party (which shall not be unreasonably withheld, delayed, or conditioned). Notwithstanding the foregoing, the Product Partner may, without the other Party’s written consent, assign this Agreement in its entirety and delegate its obligations to an Affiliate, or any entity that acquires all or substantially all of its assets through asset sale, share sale, merger, or otherwise. The User may assign this Agreement in its entirety to an Affiliate, or any entity that acquires all or substantially all of the assets related to the User’s account, or all or substantially all of the User’s business, through asset sale, share sale, merger, or otherwise. Any assignment, transfer, or delegation in violation of this Section shall be null and void. This Agreement shall be binding upon and inure to the benefit of the Parties and their permitted successors and assigns.
13.3. Amendments
No terms of this Agreement may be changed, amended, modified, or waived except by a written instrument signed by duly authorized representatives of both Parties. Neither Party shall be bound by any terms that differ from or exceed the scope of this Agreement (whether such terms are oral or appear in any quotation, purchase order, invoice, shipping document, online terms and conditions, acknowledgment, confirmation, correspondence, or any other document), unless expressly agreed in writing by both Parties.
13.4. Export Laws
Each Party shall comply with all applicable customs and export control laws and regulations of China and/or (in the case of the User) the country or region where the User uses the Offerings, and (in the case of the Product Partner) the country or region where the Product Partner provides the Offerings or services. Neither Party shall export, re-export, transport, or otherwise transfer the Licensed Materials, services, or User Data to any country subject to embargo or other sanctions by the United States or any other applicable jurisdiction.
13.5. Force Majeure
Neither Party shall be liable for any failure or delay in performing its obligations under this Agreement, or for any breach, to the extent caused by a Force Majeure Event (whether or not foreseeable), including but not limited to: (a) natural disasters; (b) governmental actions; (c) enactment or amendment of laws, regulations, or policies (including sanctions, restrictive measures, or requirements); (d) strikes or civil disturbances; or (e) any other material change in circumstances (including changes in applicable law that would render the provision of the Offerings unlawful or materially different from the Parties’ expectations at the time of entering into this Agreement). The time for performance shall be extended accordingly. The affected Party shall notify the other Party in writing as soon as reasonably practicable. If such event prevents, hinders, delays, or restricts performance for more than thirty (30) days, either Party may terminate this Agreement or the affected order by providing fifteen (15) days’ prior written notice to the other Party, without liability.
13.6. Headings
The headings in this Agreement are for reference purposes only and shall not be used to interpret, modify, expand, or aid in the construction or understanding of any provision of this Agreement.
13.7. No Third-Party Beneficiaries
Except as expressly provided in Section 10 with respect to User Indemnitees and Product Partner Indemnitees, this Agreement is not intended to confer any rights or benefits upon any third party and a person who is not a party to this Agreement has no right under the applicable laws to enforce or enjoy the benefit of any term of this Agreement.
13.8. Notices
All notices under this Agreement must be sent in writing to be effective. Each Party agrees to receive electronic communications and notices relating to this Agreement from the other Party. Notices may be delivered by: (a) email to the address designated by a Party as its notice address for this Agreement; (b) personal delivery; or (c) registered or certified mail, return receipt requested. Notices shall be deemed received upon written acknowledgment of receipt.
13.9. Waiver and Severability
A waiver by either Party of any breach under this Agreement or any order shall not constitute a waiver of any other or subsequent breach. Failure (or delay) by either Party to exercise any right under this Agreement or any order shall not be deemed a waiver of such right. If any provision of this Agreement or an order (as applicable) is held unenforceable, the remaining provisions shall remain in full force and effect.
13.10. Publicity
Neither Party may issue any publicity materials or press releases referring to the other Party or its Affiliates, or use the other Party’s or its Affiliates’ trade names, trademarks, service marks, or logos in any advertising, promotion, or other activity, without the prior written consent of the other Party.
13.11. Relationship of the Parties
The Parties are independent contractors. Nothing in this Agreement shall create or imply any agency relationship between the User and the Product Partner, nor shall this Agreement be deemed to establish a joint venture, partnership, or employer-employee relationship between them. Each Party shall be solely responsible for its own acts and those of its Personnel. Neither Party has the authority to bind, commit, or otherwise obligate the other Party.
[Data Processing Addendum]
This Data Processing Addendum (the “Addendum”) forms part of the Agreement and applies to the relationship between the Product Partner (as the Data Processor) and the User (as the Data Controller). It governs the Product Partner’s processing of Personal Data in the course of providing the services. This Addendum applies only where the Parties have not separately executed a data processing agreement or similar arrangement. Terms not defined herein shall have the same meaning as set forth in the Agreement.
1. Definitions
1.1 “Controller” means the entity that determines the purposes and means of the processing of Personal Data, including equivalent concepts under other Data Protection Laws (e.g., “business” or “third party” as defined under the CCPA).
1.2 “Personal Data Breach” means a confirmed Security Incident involving the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data, or a reportable data breach as defined under applicable Data Protection Laws.
1.3 “Processor” means an entity that processes Personal Data on behalf of another entity, including equivalent concepts under other Data Protection Laws (e.g., “service provider” as defined under the CCPA).
1.4 “Sensitive Personal Data” includes categories of data defined as sensitive under applicable Data Protection Laws, such as racial or ethnic origin, political opinions, religious beliefs, trade union membership, genetic data, biometric data, health information, sexual orientation, government ID numbers, payment card information, non-public personal financial information, account access credentials, precise geolocation, etc.
2. International Data Transfers
If the User requires Personal Data to be transferred to the Product Partner or accessed by the Product Partner in a jurisdiction subject to cross-border transfer restrictions, the Parties shall cooperate in good faith to meet applicable legal requirements and implement appropriate international data transfer mechanisms.
3. Data Protection Obligations
3.1 Compliance: Each Party shall comply with its applicable Data Protection Laws and privacy policies.
3.2 Confidentiality: The Product Partner shall restrict access to Personal Data to authorized personnel who are subject to confidentiality obligations.
3.3 Security Measures: The Product Partner shall implement security measures appropriate to the technical risks, at least meeting the protection standards set forth in the Agreement.
3.4 Data Retention: Personal Data shall be retained only for the period necessary to fulfill contractual obligations or as required by law.
3.5 Cooperation: The Product Partner shall reasonably assist the User with data protection impact assessments, consultations with regulators, and responding to data subject rights requests (the Product Partner may charge reasonable fees).
3.6 Third-Party Requests: If the Product Partner receives a governmental or judicial request involving Personal Data, it shall promptly notify the User and cooperate in lawful action, to the extent permitted by law.
3.7 Processing Restrictions: The Product Partner shall only process Personal Data in accordance with the User’s written instructions, this Addendum, or as required by law; if an instruction violates law, the Product Partner shall promptly notify the User.
3.8 Scope of Processing: The Product Partner shall not (a) sell Personal Data; (b) process Personal Data beyond the User’s instructions; or (c) process Personal Data outside of the Parties’ direct business relationship. Notwithstanding the foregoing, the Product Partner may process Personal Data for internal purposes such as service improvement, Security Incident detection, or prevention of unlawful activity.
3.9 Sensitive Data: The User shall proactively inform the Product Partner of any Sensitive Personal Data involved.
3.10 Recordkeeping: Upon request of regulators, the Product Partner shall assist in providing records of processing activities, including categories of Personal Data, purposes, and technical and organizational measures.
3.11 Cross-Border Transfers: The User authorizes the Product Partner to transfer Personal Data to the United States or other jurisdictions where the Product Partner operates, provided the Product Partner ensures compliance with applicable law and contractual obligations.
3.12 Deletion or Return: Upon the User’s request, the Product Partner shall securely delete or return Personal Data, except where otherwise required by law.
3.13 Breach Notification: The Product Partner shall promptly notify the User upon becoming aware of a Personal Data Breach, including the nature of the breach, categories of affected data, and contact information.
3.14 Audit: The Product Partner shall reasonably cooperate with audits conducted by the User or its designated auditor limited to Personal Data processing activities. The User must provide at least sixty (60) days’ prior written notice. Audit materials shall be treated as Confidential Information. Additional audit costs shall be borne by the User.
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