This Centenal Online Subscription Agreement is made between the Customer and Centenal. It consists of the terms and conditions by which the Online Service is provided. It is effective on the date on which you first activate your access to the Online Service (“Effective Date”).
“Centenal” means Centenal Pte Ltd a corporation having its principal place of business at 1 Raffles Place, 20-61 Singapore 048616 and “we”, “us”, or “our” shall be construed accordingly.
“CRS” means the OECD Common Reporting Standard including any derivative or implementing laws, regulations and/or directives whether taking effect at a national or supra-national level as well as the Commentaries on the Common Reporting Standard (second edition) and the Implementation Handbook (second edition) and the OECD CRS FAQs (as the same may be amended from time to time).
“CRS Avoidance Arrangement” has the same meaning as ‘CRS Avoidance Arrangement’ has in the OECD Model Mandatory Disclosures Rules for CRS Avoidance Arrangements and Opaque Offshore Structures (published 9th March 2018).
“Customer” means a natural person, legal entity or legal arrangement that has entered into this Agreement and related Subscription to access the Online Service and “you” or “your” shall be construed accordingly.
"Customer Data" means all electronic data or information submitted by the Customer and/or Users to or in connection with the Online Service.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Offer Details” means the pricing and related terms applicable to a Subscription offer, as published on the Portal.
"Online Service" means the online Web-based application to which a Customer has Subscribed under this agreement.
“Prohibited Activity” means any arrangement or series of arrangements involving use of, reference to or marketing of the Online Service to facilitate or offer to facilitate a CRS Avoidance Arrangement.
“Subscription” means an enrollment (whether or not by renewal) of the Online Service for a defined Term as specified on the Portal, and “Subscribe” shall be construed accordingly.
“Term” means the duration of a Subscription.
"User Guide" means the online user guide for the Online Service, accessible via http://www.centenal.com, as updated from time to time. The User Guide and any amendments or updates thereto is hereby incorporated into and forms part of this Agreement.
"User" means a natural person authorized by the terms of a Subscription to use the Online Service, and who has been supplied a user identification and password by the Customer (or by Centenal at the Customer's request) and “Users” shall be construed accordingly.
2. Online Service
2.1 Provision of Online Service. Centenal shall make the Online Service available to the Customer and its Users pursuant to this Agreement and related Subscription. The Customer agrees that its purchase or renewal of a Subscription is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Centenal with respect to future functionality or features.
2.2 Users. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Online Service.
2.3 Service Upgrade. Where you upgrade or add additional functionality to your Subscription, this Agreement shall terminate and your Subscription will thereafter be governed by the terms and conditions set forth in the Portal on the date on which your Subscription is upgraded (the “Upgrade Terms”). If you do not agree to any Upgrade Terms, you may decline to upgrade your Subscription.Where and in so far as you have made a prepayment in respect of your original Subscription a prorated credit, based on the remainder of the original Subscription Term on the date on which you upgrade your Subscription, will be applied to the cost of your upgraded Subscription.
3. Use of the Online Service
3.1 Centenal Responsibilities. Centenal shall:
(ii) maintain the security and integrity of the Online Service and the Customer Data;
(iii) use commercially reasonable efforts to make the Online Service available 24 hours a day, 7 days a week, except for:
(a) planned downtime (of which Centenal shall give at least 8 hours notice via the Online Service and which Centenal shall schedule to the extent reasonably practicable during the hours from 6:00 p.m. GMT Friday to 10 pm GMT Sunday); or
(b) any unavailability caused by circumstances beyond Centenal's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Centenal employees), computer, telecommunications, Internet Online Service provider or hosting facility failures or delays involving hardware, software or power systems not within Centenal's possession or reasonable control, and denial of Online Service attacks.
3.2 The Customer Responsibilities. The Customer is responsible for all activities that occur in User accounts and for Users' compliance with this Agreement.
The Customer shall:
(i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all the Customer Data;
(ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Online Service, and notify Centenal promptly of any such unauthorized access or use; and
(iii) comply with all applicable local and foreign laws in using the Online Service.
3.3 Use Guidelines. The Customer shall use the Online Service solely for its internal training, compliance and/or audit purposes (as the case may be) and shall not:
(i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Online Service available to any third party, other than to Users or as otherwise contemplated by this Agreement;
(ii) store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights;
(iii) send or store Malicious Code;
(iv) interfere with or disrupt the integrity or performance of the Online Service or the data contained therein; or
(v) attempt to gain unauthorized access to the Online Service or its related systems or networks
(vi) use or market the Online Service or permit a User to use or market the Online Service for or in connection with a Prohibited Activity.
3.4 Third-Party Providers. Certain third-party providers, some of which may be listed on pages within Centenal's website, offer products and Online Services related to the Online Service, including implementation, customization and other consulting Online Services related to the Customers’ use of the Online Service and applications (both offline and online) that work in conjunction with the Online Service, such as by exchanging data with the Online Service or by offering additional functionality within the user interface of the Online Service through use of the Online Service's application programming interface. Centenal does not warrant any such third-party providers or any of their products or Online Services, whether or not such products or Online Services are designated by Centenal as "certified," "validated" or otherwise. Any exchange of data or other interaction between the Customer and a third-party provider, and any purchase by the Customer of any product or Online Service offered by such third-party provider, is solely between the Customer and such third-party provider. In addition, from time to time, certain additional functionality (not defined as part of the Online Service) may be offered by Centenal to the Customer, for an additional fee, on a pass-through basis pursuant to terms specified by the licensor and agreed to by the Customer in connection with a separate purchase by the Customer of such additional functionality. The Customer's use of any such additional functionality shall be governed by such terms, which shall prevail in the event of any inconsistency with the terms of this Agreement. No purchase of such third-party products or Online Services is required to use the Online Service.
4. Subscription services and payments
4.1 User Fees. By purchasing a Subscription, you agree to the terms contained in the Offer Details for the relevant Subscription, and to pay all fees specified in the Offer Details. Except as otherwise provided, all fees are quoted and payable in United States dollars. Except as otherwise specified, fees are based on the Online Service purchased and not actual usage, payment obligations are non-cancelable, fees paid are non-refundable, and the number of Subscriptions purchased cannot be decreased during the relevant Subscription Term. Except as otherwise specified, fees are based on monthly units, fees for Subscriptions purchased in the middle of a monthly period will be charged for that monthly period in full and going forward based on the number of monthly periods remaining in the Subscription Term.
4.2 Invoicing & Payment. Fees for the Online Service will be invoiced in advance and otherwise in accordance with the relevant Offer Details. Unless otherwise stated in the Offer Details, initial charges are due at the date of the relevant Subscription. The Customer is responsible for maintaining complete and accurate billing and contact information on the Online Service.
4.3 Overdue Payments. Any payment not received from the Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at Centenal's discretion, late charges at the rate of 5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
4.4 Taxes. Unless otherwise stated, Centenal's fees do not include any direct or indirect national or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, "Taxes"). The Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Centenal's net income or property. If Centenal has the legal obligation to pay or collect Taxes for which the Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by the Customer, unless the Customer provides Centenal with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. Proprietary Rights
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Centenal reserves all rights, title and interest in and to the Online Service, including all related intellectual property rights. No rights are granted to the Customer hereunder other than as expressly set forth herein.
5.2 Restrictions. The Customer shall not
(i) modify, copy or create derivative works based on the Online Service;
(ii) frame or mirror any content forming part of the Online Service, other than on the Customer's own intranets or otherwise for its own internal training, audit or business purposes;
(iii) reverse engineer the Online Service; or
(iv) access the Online Service in order to
(A) build a competing product or Online Service, or
(B) copy any ideas, features, functions or graphics of the Online Service.
5.4 The Customer Data. As between Centenal and the Customer, the Customer exclusively owns all rights, title and interest in and to all the Customer Data. The Customer Data is deemed Confidential Information under this Agreement. Centenal shall not access the Customer's User accounts, including the Customer Data, except to respond to Online Service or technical problems or at the Customer's request.
5.5 Suggestions. Centenal shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Online Service any suggestions, enhancement requests, recommendations or other feedback provided by the Customer or its Users relating to the operation of the Online Service.
6.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in any Offer Details), the Customer Data, the Online Service, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information (except for the Customer Data) shall not include any information that:
(i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party;
(ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party;
(iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or
(iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission.
6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
6.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
6.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
7. Warranties, Assumptions, Exclusions and Disclaimer
7.1 Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. Centenal represents and warrants that
(i) it will provide the Online Service in a manner consistent with general industry standards reasonably applicable to the provision thereof;
(ii) the Online Service shall perform materially in accordance with the User Guide;
(iii) the functionality of the Online Service will not be materially decreased during a subscription term;
(iv) the Online Service will not contain or transmit to the Customer any Malicious Code (except for any Malicious Code contained in User-uploaded attachments or otherwise originating from Users);
(v) it owns or otherwise has sufficient rights in the Online Service to grant to the Customer the rights to use the Online Service granted herein; and
(vi) the Online Service does not infringe any intellectual property rights of any third party.
7.2 Assumptions and Exclusions. The Customer hereby expressly confirms, acknowledges and agrees that use of the Online Service is subject to the assumptions and exclusions contained in the “Assumptions, Exclusions, Qualifications and Disregards” section of the CRS analysis report section of the Online Service (as the same may be amended from time to time).
7.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, CENTENAL MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8. Mutual Indemnification
8.1 Indemnification by Centenal. Subject to this Agreement, Centenal shall defend, indemnify and hold the Customer harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with claims, demands, suits, or proceedings ("Claims") made or brought against the Customer by a third party alleging that the use of the Online Service as contemplated hereunder infringes the intellectual property rights of a third party; provided, that the Customer
(a) promptly gives written notice of the Claim to Centenal;
(b) gives Centenal sole control of the defense and settlement of the Claim (provided that Centenal may not settle or defend any Claim unless it unconditionally releases the Customer of all liability); and
(c) provides to Centenal, at Centenal's cost, all reasonable assistance.
8.2 Indemnification by the Customer. Subject to this Agreement, the Customer shall defend, indemnify and hold Centenal harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with Claims made or brought against Centenal by a third party alleging that the Customer Data, or the Customer's use of the Online Service in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party; provided, that Centenal
(a) promptly gives written notice of the Claim to the Customer;
(b) gives the Customer sole control of the defense and settlement of the Claim (provided that the Customer may not settle or defend any Claim unless it unconditionally releases Centenal of all liability); and
(c) provides to the Customer, at the Customer's cost, all reasonable assistance.
9. Limitation of Liability
9.1 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF $250,000 OR THE AMOUNTS ACTUALLY PAID BY AND DUE FROM THE CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
9.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Term, Suspension, Renewal and Termination
10.1 Term of Agreement. This Agreement commences on the Effective Date and will remain in effect until the expiration or termination of your Subscription, whichever shall first occur.
10.2 Suspension. Without prejudice to any other rights or remedies, we may suspend your use of the Online Service if:
(i) it is reasonably needed to prevent unauthorized access to Customer Data;
(ii) your account is 15 days or more overdue;
(iii) you do not abide by the use provisions contained in Clause 3.3, or you violate any other terms of this Agreement. We will give 30 days notice before we suspend, except where we reasonably believe we need to suspend immediately. We reserve the right to terminate this Agreement if your use of the Online Service is suspended more than twice in any consecutive 12 month period pursuant to sub-clause (ii) and/or (iii) of this Clause 10.2.
10.3 Renewal. This Agreement shall terminate upon expiration of the Term. We shall provide you with notice before expiration of the Term. You may renew your Subscription at any time prior to expiration of the Term, your Subscription will thereafter be governed by the terms and conditions set forth in the Portal on the date on which your Subscription is renewed (the “Renewal Terms”). If you do not agree to any Renewal Terms, you may decline to renew your Subscription.
10.4 Termination for Cause. Either party may terminate this Agreement for cause:
(i) upon 21 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or
(ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.5 Termination. Centenal may terminate this Agreement without cause:
(i) upon 30 days written notice being given to the other party, and
(ii) upon prorated repayment of prepaid fees for any Subscription Term then remaining at expiration of the notice to terminate
10.6 Outstanding Fees. Termination shall not relieve the Customer of the obligation to pay any fees accrued or payable to Centenal prior to the effective date of termination.
10.8 Post Expiration Access. The Customer may for a period of 30 days commencing on expiration of the Customer’s Subscription Term access the Online Service to which the Customer had previously subscribed for viewing purposes only, all other functionality to which the previous subscription related and allowed will be disabled or partially enabled as Centenal in its absolute discretion may determine. Without prejudice to clause 10.9, the provisions of clause 3.3 shall survive expiration of this Agreement.
10.9 Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 4 through 11.
11. General Provisions
11.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.2 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.3 Notices. Notices must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, email transmission date, or date on the courier or fax confirmation of delivery. Notices to Centenal must be sent to the following address:
Head of Legal, Centenal Pte. Ltd, 1 Raffles Place, 20-61 Singapore 048616.
Notices to you will be sent to the address that you identified on your account as your contact for notices.
11.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
11.6 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.7 Governing Law. This Agreement shall be governed exclusively by the laws of the Republic of Singapore.
11.8 Venue. The courts located in the Republic of Singapore shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts.
Dated : 8 Oct 2019