DEFINITIONS

The capitalised terms used in this Agreement shall have the meaning set out in Schedule A of this Agreement.

SUBSCRIPTION & USE OF SERVICES

2.1 Toplyne shall provide the services within the context of the Agreement and the SLA.

2.2 The Client is granted a limited, non-exclusive, non-transferable and royalty-free access to and use of the Services for the Term, as may
be described in the SLA.

2.3 The Client will be provided with login details to its account for use of the Services. In the event of any unauthorised access or use of the account or Services, the Client shall ensure that such access and use is restricted and immediately reported to the Company. The Company may, at its sole discretion, lock or delete or otherwise restrict access and use of the account and Services till such time as the Company and the Client are able to verify that such restrictions are no longer required. The Client shall be liable to indemnify the Company for any losses, damages, claims, or otherwise any costs incurred as a result of such unauthorised access or use attributable to the action or inaction of the Client.

2.4 The Company will supply the Services set out in the SLA(s) to the Client on the basis and in the manner set out in SLA, which shall specify the payment terms, particulars of the Services, and such other terms and conditions as may be relevant to the access and use of
the Services.

2.5 The Company provides its Services and charges the Subscription Fees (as described in the SLA) based on certain Subscription Plans, as set out under Schedule B.

DATA PROTECTION IMPACT ASSESSMENT AND PRIOR CONSULTATION

Both parties shall provide reasonable assistance to the other party with regards to any data protection impact assessments which are
required under Article 35 GDPR in relation to processing of Personal Data.

PRIVACY 

3.1 The Company is committed to protecting the privacy of the Client, its users, and the End Customers in accordance with globally accepted standards. The Company’s policies relating to the collection, storage, usage, and handling of Personal Information are governed by the privacy policy available at https://www.toplyne.io/privacy-policy (the “Privacy Policy” ), as may be amended from time to time. 

3.2 The Client agrees and understands that it is responsible for ensuring compliance with any and all regulations and Laws relating to the collection and usage of the Personal Information of its End Customers, and any other individuals, as may be applicable, including without limitation any requirements relating to consent, purpose, usage, transfers (including cross-border transfers), and any other requirements as may be applicable. The Client shall, upon request from the Company, furnish evidence of such compliance no later than 10 (ten) days from the date of such request, or such shorter period as may be required under applicable Law. In the event of any non-compliance relating to privacy and/or data protection with any Laws, attributable to an act or omission by the Client, the Client shall indemnify the Company for any Claims incurred as a result of or in relation to such non-compliance.

4 Security
Without prejudice to any other security requirements agreed upon between the parties, the parties shall protect the processing of
Personal Data and ensure a level of security of the Personal Data appropriate to the risk in accordance with Article 32 of GDPR.

PARTIES’ RESPONSIBILITIES 

4.1 The Company will provide the Services specified in the SLA to the Client, which may include integrating with the Client’s existing marketing software, tracking engagement, analysing the usage patterns of End Customers and similar users, providing reports with analysis of the best working strategies and marketing channels, etc. The Client shall indemnify the Company for any Claims incurred as a result of or in relation to integration of the Company’s software with the Client’s marketing software. 

4.2 The Company will provide Client with timely and reasonably required technical support for Services in accordance with the
specifications set forth in the SLA. 

4.3 The Client shall obtain prior and specific written consent from the End Customers for the collection, usage, storage, transfer, analysis and handling of data and Personal Information as may be required in relation to the Services. The Company will not be responsible for any Claims arising out of infringement of any agreements and/or Laws relating to privacy or data protection.

4.3 The Client shall obtain prior and specific written consent from the End Customers for the collection, usage, storage, transfer, analysis and handling of data and Personal Information as may be required in relation to the Services. The Company will not be responsible for any Claims arising out of infringement of any agreements and/or Laws relating to privacy or data protection.

4.4 The Client shall provide all relevant data and Personal Information necessary for providing the Services, and shall ensure at its sole liability and obligation the accuracy, quality, integrity, reliability, completeness and the right without encumbrance to use all relevant data and Personal Information, including without limitation ownership and/or adequate right and title to any intellectual property to be provided by the Client.

PROVISION OF INFORMATION AND AUDITS

Client shall make available to the Company, upon its request, any relevant information that is reasonably necessary to demonstrate compliance with this agreement.

Processor shall provide all reasonable cooperation to Company in respect of any such audit and shall at the request of Company, provide the Company with evidence of its compliance with its obligations under the SLA and /or this agreement.

INTELLECTUAL PROPERTY RIGHTS

5.1 The Company will retain all right, title and interest in and to the Service, including but not limited to all the documentation,
modifications, improvements, upgrades, derivative works, and all other Intellectual Property rights in connection with the Service, including without limitation the Company's name, logos, and trademarks. 

5.2 The information and reports derived out of the analysis shall be the Intellectual Property of the Client and the Client shall have sole and exclusive ownership over such information and reports, subject to the rights granted to the Client in respect thereof in terms of this Agreement.

5.3 Each party will immediately give written notice to the other party of any actual, threatened or suspected infringement of the other party's created IPR of which it becomes aware of.

CONFIDENTIAL INFORMATION

6.1 Each party (the “Receiving Party” ) understands that the other party (the “Disclosing Party”  ) has disclosed or may disclose Confidential Information relating to the Disclosing Party’s business and operations, including business, technical, non-technical or financial information relating to the Services, Software, or this Agreement or any SLA. The Receiving Party may, from time to time, be exposed to and will be furnished with the Disclosing Party’s Confidential Information. During the Term and for a period of five (5) years thereafter, the Receiving Party shall keep confidential and not reveal or disclose to any third party any part or all of the Confidential Information and/or the terms of this Agreement, any SLA, the Services, and the Software. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public (except as a result of an act or omission of the Receiving Party); (b) was in its possession or demonstrably known by it, prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction or breach of any other agreement by a third-party; (d) was independently developed without use or reference to the Confidential Information of the Disclosing Party; or (e) is required to be disclosed by Law.  
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6.2 With respect to the Confidential Information of the Disclosing Party, the Receiving Party agrees to: (i) use the same degree of care to protect the confidentiality, and prevent the unauthorized use or disclosure, of such Confidential Information it uses to protect its own proprietary and confidential information of like nature, which shall not be less than a reasonable degree of care; (ii) hold all such Confidential Information in strict confidence and not use, sell, copy, transfer, reproduce, or divulge such Confidential Information to any third party; and/or (iii) not use such Confidential Information for any purposes whatsoever other than the performance of, or as otherwise authorized by, this Agreement or an SLA.

6.3 The Company may collect and use technical information gathered pursuant to this Agreement or an SLA for research, statistical analysis and business intelligence purposes in an aggregated, anonymised, pseudonymised, or non-personally identifiable form as it deems fit, to improve, market, support and operate the Services and otherwise for any legitimate business purpose during and after the Term. 

6.4 The Client shall not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services, or any software, documentation or data related to the Services ( "   Software   " ); (b) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized as a part of the Services); (c) use the Services or any Software for time sharing or service bureau purposes or otherwise for the benefit of a third-party; or (d) remove any proprietary notices or labels.

6.5 For the avoidance of doubt, all Personal Data shall be considered as Confidential Information in the Agreement.

REPRESENTATIONS AND WARRANTIES

7.1 The parties hereby represent and warrant the following: 

7.1.1 The parties are competent and authorised to enter into and perform this Agreement, including any SLA, and the same would not result in a breach or violation of Laws or any agreements, rights or obligations existing between them and any third-party.

7.1.2 The parties shall not, in relation to this Agreement, any SLA, the Services or Software, act or fail to act in a manner that: (i) is prohibited by or in violation of any Law or regulation; (ii) will infringe upon any third-party intellectual property rights; (iii) may result in any adverse impact whatsoever on the Company, Services and/or Software including any viruses, malware, etc.; (iv) would result in the inability of either party to perform this Agreement or any SLA; or (v) result in a breach of this Agreement or any SLA.

DISCLAIMER OF WARRANTIES

1. Company shall use reasonable efforts to maintain the Services and Software in a manner that minimizes errors and interruptions.
HOWEVER, THE SERVICES AND SOFTWARE ARE INHERENTLY PRONE TO POTENTIAL ERRORS AND INTERRUPTIONS, AND THE
COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED; NOR DOES IT MAKE ANY
WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES AND/OR SOFTWARE.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

LIMITATION OF LIABILITY

2. IN NO EVENT SHALL THE COMPANY’S TOTAL LIABILITY FOR ANY CLAIM ARISING OUT OF OR IN RELATION TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER LIABILITY WHATSOEVER, EXCEED IN THE AGGREGATE THE TOTAL FEES PAID OR PAYABLE DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM.‍

EXCLUSION OF DAMAGES‍

3. EXCEPT WITH RESPECT TO A PARTY’S WILFUL MISCONDUCT, INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, BREACH OF PAYMENT OBLIGATIONS, OR BREACH OF CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF USE, OR LOSS OF PROFITS, FAILURE OF SECURITY MECHANISM ARISING HEREUNDER OR FROM THE PROVISION OF SERVICES, EVEN IF THE OTHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.‍

MISCELLANEOUS

11.1 Governing Laws: This Agreement shall be governed by and construed in accordance with the laws of Singapore and the courts of Singapore shall have exclusive jurisdiction.

11.2 Notices: All notices, consents, and other communications between the parties under or regarding this Agreement must be in writing (which includes email and facsimile) and be addressed according to information provided hereinabove. All notices, consents and other communications between the parties will be sent to the recipient’s address herein specified. All communications will be deemed to have been received on the date actually received. Either party may change its address for notices by giving written notice of the new address to the other party in accordance with this section.

11.2.2 Any notice or other communication under this agreement or the SLA given by either Party to the other Party shall be deemed properly given if in writing and;

(i) When hand delivered during normal business hours of the recipient, acknowledgment taken;

(ii) If transmitted by facsimile during normal business hours of the recipient; proof of delivery taken. A copy sent by registered mail and/or
first class courier, return receipt requested should follow all fax notices;

(iii) If mailed by registered mail and/ or first class courier, return receipt requested, within five  working days of posting, properly
addressed and stamped with the required postage, to the intended recipient at its address specified hereinbelow:

For Toplyne/Company
Rishen Kapoor (rishen@toplyne.io)

For Client:
[-]

11.3 Assignment:

Neither party may assign this Agreement to any third party without the prior written consent of the other; provided that no consent is required in connection with an assignment by the Company to an affiliate or in connection with any merger.

11.4 Publicity: No amendment or modification shall take place under this Agreement or any SLA until and unless mutually agreed between the parties by the way of an addendum signed thereof. No waiver will be implied from conduct or failure
to enforce or exercise rights under this Agreement or any SLA, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.

11.6 Force Majeure: Neither party shall be responsible nor liable for any delays or failures in performance from any cause beyond its control, including, but not limited to acts of God, changes to law or regulations, embargoes, war, terrorist acts, acts or omissions of third-
party technology providers, riots, fires, earthquakes, floods, power blackouts, strikes, pandemics, weather conditions or acts of hackers, Internet service providers or any other third party.

11.7 Survival: In addition to any provisions of this Agreement and the SLA(s) which, by their nature, would survive the termination or expiry of this Agreement, the following provisions shall survive such termination or expiry: Clause 3 (Privacy), Clause 5 ( Intellectual Property Rights ), Clause 6 (Confidential Information), Clause 8 (Disclaimer of Warranties), Clause 9 (Limitation of Liabilities), Clause 10 (Exclusion of Damages), Clause 11 (Miscellaneous) of this Agreement, and the Effect of Termination and Payment Terms set out in the SLA,if any.

11.8 Severability: The unenforceability of any part of a provision or provisions of this Agreement shall not render unenforceable or impair its remainder. If any provision of this Agreement is deemed invalid or unenforceable in whole or in part, this Agreement shall be deemed to have been amended to delete or modify, as necessary, the offending provision to render it valid, enforceable, and, insofar as possible, consistent with the original intent of the parties.  

11.9 Relationship of Parties: The parties are entering into this Agreement and/or the SLA(s) on a principal-to-principal basis, and are not employees, agents, partners or joint ventures of each other.  Neither party shall have the right to enter into any agreement on behalf of the other.

11.10 Headings and Titles :  The headings and titles of this Agreement are not part of this Agreement, but are for convenience only and are not intended to define, limit or construe the contents of the various sections.

11.11 Entire Agreement :  The entire understanding between the parties hereto relating to the subject matter hereof is contained in this Agreement and in the SLA(s) executed between the parties in writing, and the parties make no warranties, representations or undertakings hereto except as expressly provided herein.  This Agreement cannot be changed except in a writing signed by the parties.

Schedule A

Definitions: 

Affiliates ” refers to any corporation, association, or other entity that directly or indirectly owns, is owned by, or is under common ownership with either party, respectively, either currently or during the term of this Agreement. 

Claim ” shall mean any claims by either party in respect of or pursuant to any liability, suits, claims, actions, proceedings, losses, damages, judgments, and reasonable costs incurred by either party.

“Confidential Information”   shall mean information including, without limitation, all data, computer programs, code, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial and product development plans, forecasts, strategies and information marked “Confidential”, or if disclosed verbally, is identified as confidential at the time of disclosure. In addition to the foregoing, Confidential Information shall include any related source or object codes, technical data, data output of such software.

Documentation ” shall mean and include any and all technical user documentation/guidelines concerning the services offered hereunder this Agreement.

Data ” means all personal data as per the Addendum, the above agreement and the Privacy Policy and includes such data falling under the ambit of the European Union General Data Protection Regulations.

End Customer ” or “User” shall mean and include the users, customers, participants, or other individuals in respect of the which the Client intends to avail the Services.

Intellectual Property ”” shall mean shall include collectively or individually, the following worldwide intangible legal rights, whether or not filed, perfected, registered or recorded and whether now or hereafter existing, filed, issued or acquired: (i) patents, patent disclosures, patent rights, know-how, including any and all divisions, re-issues, re-examinations, utility, model and design patents/ rights or any extensions thereof; (ii) software codes, internet domain names, trademarks, service marks, trade names, logos and corporate names; (iii) rights associated with works of authorships, including without limitation, copyrights, moral rights, copyright applications, copyright registrations; (iv) rights relating to the protection of trade secrets and confidential information; (v) all other intellectual property rights anywhere in the world including rights of privacy and publicity, whether or not requiring registration and whether or not such registration has been obtained; (vi) goodwill symbolized by or associated with any of the foregoing rights; and (vii) proprietary information, proprietary processes, software, technical information, data, databases (including but not limited to customer data, sales data, etc.), process technology, plans, formulae, algorithms and blue prints.

Laws ” shall mean and include all applicable local, state and international laws, including, without limitation, those related to data privacy and data security.

“New User” shall mean any new and unique User directed to the Company by the Client after the Product Qualified Lead (PQL) model is trained.

Personal Information ” shall mean and include all the variable of “personal information”; “personal data”; “personally identifiable information”, or such other similar expressions; the information identifies, relates to, describes, or is capable of being associated with, or could reasonably be linked, directly or indirectly, to an identified or identifiable living natural person, including but not limited to real name, alias, postal address, unique personal identifier, online identifier Internet Protocol address, email address, account name and such other information as defined under the applicable privacy or data security laws.

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Service Level Agreement ” or “ SLA ”: shall mean the agreement entered into and executed between the Company and the Client, setting out the terms of provision of Services, and which shall be governed by the provisions of this Agreement, such that this Agreement shall be deemed to form part of the SLA.

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“Training User” shall mean a User directed to the Company by the Client for the purpose of training the PQL model.

Schedule B

SUBSCRIPTION PLANS

As per the SLA or available at https://www.toplyne.io/pricing 

Terms and Conditions:

(i) Any Subscription Tier upgrades by the Client shall be charged on a pro-rata basis for the remaining Term of the SLA.

(ii) New Users will be counted against the Subscription Plan User limits.

(iii) Training Users will not be counted against the Subscription Plan User limits.(iv) Any New User directed during the Initial Subscription
Term of the SLA will not be recounted as a New User in an event of a renewal of the