GENERAL TERMS AND CONDITIONS
These General Terms and Conditions together with the provisions under the order form(s) (“Order Form”) and applicable appendix(es) (collectively, “Agreement”) constitute the entire agreement in relation to the provision of the Platform and Services by eBaoTech (“eBaoTech”) to the Client (“Client”) as defined under the applicable Order Form. eBaoTech and Client are referred to individually as a Party and collectively as the Parties.
Client agrees that upon signing the Order Form, or Use of the Platform or Deliverables, or upon taking receipt of the Services, the General Terms and Conditions shall take effect and be applicable and binding upon the Parties.
ARTICLE 1: DEFINITIONS
In this Agreement or any of its Appendixes, unless otherwise specified explicitly in a particular Appendix, the following definitions will apply:
1.1 “Affiliate” shall mean and include any company in which either eBaoTech or Client, or their respective parent company or any subsidiary of such ultimate holding company in all cases owns and/or controls, directly or indirectly, more than fifty percent (50%) of the issued and outstanding share capital or of the voting rights associated therewith.
1.2 “Business Day” means a bank working day; consequently, not to be considered working days are Saturday, Sunday and holidays (including bank holidays) in the country or region of eBaoTech.
1.3 “Confidential Information” means and is not limited to, intellectual property right, computer software systems and programs, data, trade secrets, operational techniques, methodology, ideas, concepts and documents, all information and/or data with regard to personnel, the clients of either Party, its internal instructions and working procedures, its premises and infrastructures, designs, plans, diagrams and outlines, whether tangible or intangible and whether or not stored, compiled, or memorialized physically, electronically, graphically, in writing, or by any means now known or later invented, provided or made available or accessible by a Party to the other. For clarity, the Confidential Information does not include the information which (i) is or becomes published or public knowledge, other than as a result of receiving Party’s conduct or breach of this Agreement; (ii) is obtained from a Third Party being under no obligation of confidentiality to the disclosing Party; or (iii) is independently developed or obtained without breach of this Agreement.
1.4 “Documentation” means the operating manuals, user instructions and other related materials for aiding the Use of the Product and/or Deliverable, including any part or copy of them, to be made available from time to time during this Agreement by eBaoTech.
1.5 “Error” means any verifiable and reproducible failure or inability of the Product and/or Deliverable to perform any material functions set forth in the Documentation when the Product and/or Deliverable is Used. The term “Error” shall not include any failure or inability of the Product and/or Deliverable that (i) results from the misuse or improper use of the Product and/or Deliverable; (ii) does not materially affect the operation and Use of the Product and/or Deliverable; (iii) results from any modification made other than by eBaoTech or under eBaoTech’s consent in writing to the Product and/or Deliverable; and (iv) results from any modification in Third Party software connected to the Product and/or Deliverable not made approved by eBaoTech.
1.6 “Fees” means the fee as specified under this Agreement or Order Form to be charged by eBaoTech for the Services.
1.7 “Intellectual Property Rights” or “IPR” means all vested, contingent and future intellectual property rights, including but not limited to copyrights, design rights (whether registered or unregistered), trademarks, logos, patents (including utility models), service marks, know-how, trade secrets, rights of database design and other proprietary information and all other intellectual and industrial property rights whatsoever under law or international convention, including any applications for the protection or registration of these rights and all renewals and extensions thereof existing in any part of the world whether now known or in the future created.
1.8 “Order Form” means a document that set forth the Product to be subscribed for Use and the period, Territory and/or other limitations for the Use and/or other Services and any other deliverables (“Deliverables”) to be provided by eBaoTech, eBaoTech’s compensation, additional terms and conditions, if any, applicable to a particular engagement or project and such other details as the Parties deem appropriate. Order Form shall form an integral part of the Agreement as an Appendix.
1.9 “Personal Data” means any information relating to an identified or identifiable natural person (“Data Subject”) as defined under the applicable data protection law.
1.10 “Product” means the eBaoTech’s standard software and computer programs as described in the Order Form including any copies of them or their enhancement, modification, amendment or update, if any.
1.11 “Representatives” means the employees of either Party involved on its behalf in the provision or using of the Product or the performance of this Agreement.
1.12 “Services” means providing the Platform for Use and/or any on-boarding, configuration, installation, analytic, consulting, implementation, support, maintenance or other services provided by eBaoTech to Client in accordance with this Agreement or the applicable Order Form. eBaoTech’s direct competitors shall not access to the Services, except with eBaoTech’s prior written consent.
1.13 “Territory” means the country or region specified in the Order Form in which the Platform, Deliverable or Services can be used for Client.
1.14 “Third Party” means any legal entity or person other than a Party to this Agreement. Personnel of eBaoTech or Client are not deemed Third Parties in the meaning of the above.
1.15 “Use” means to access and operate the Platform or Deliverables in accordance with the terms of this Agreement or Order Form and the Documentations.
1.16 “User” means, in the case of an individual accepting this Agreement, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by Client to use the Services, and to whom Client has supplied a user identification and password. Users may include employees, consultants, contractors and agents of Client, and third parties with whom Client transacts business.
Whenever the definition in an Appendix conflicts with the provisions of this Agreement, the definition in the Appendix take precedence over the definition hereof but only for purpose of this Appendix, while not otherwise amending, modifying, cancelling or releasing the terms and provisions of this Agreement.
ARTICLE 2: SERVICE SCOPE
Pursuant to this Agreement, eBaoTech will provide the Platform for Client to Use in the Territory during the period set forth in the Order Form thereof.
ARTICLE 3: CLIENT’S OBLIGATION AND COOPERATION
3.1 Client shall assist eBaoTech in the performance of the Agreement and be solely responsible for providing to eBaoTech and its personnel the condition and any other support, at the requested time and at no cost to eBaoTech.
3.2 Client warrants that any business activities in connection with or arising from the use of the Services are in compliance with any applicable legal and regulatory requirements and agreements binding on it. Client shall also be equipped with the administrative licenses required by the aforesaid laws and regulations to conduct business.
3.3 Client warrants that it shall not and shall not allow any Third Party, without the prior written consent of eBaoTech, directly or indirectly, to:
a) use or operate the Platform or Deliverables out of scope of the Agreement;
b) copy or reproduce any part of the Documentation other than for the Use;
c) directly or indirectly decompile, reverse engineer, disassemble or otherwise attempt to make derivative from all or any part of the Platform or Deliverables;
d) modify, convert, enhance, adapt, or reproduce the Platform or Deliverables or any part thereof;
e) alter, change, remove or obscure any indications (including copyright notices, trademarks, or other proprietary rights notices) as to the ownership of the Platform, Deliverables and/or Documentation placed on or contained thereon;
f) make or assist any person to make any unauthorized use or access of Platform, Deliverables and/or Documentation; and
g) sell, market, transfer or sublicense the log-in credentials and private keys.
3.4 Client warrants that it shall and cause its Representatives to:
a) keep confidential the Platform, Deliverables and Documentation and limit its access to those who have a need to know or are engaged in the Use of the same;
b) take all steps as necessary from time to time to protect the Confidential Information and IPR of eBaoTech or Third Parties in the Platform, Deliverables and Documentation; and
c) ensure the Platform or Deliverables are used pursuant to the Agreement.
3.5 Client shall take suitable precautions in case the Deliverables or Platform should not function correctly, either wholly or in part, through methods, such as provisions of alternative procedures, Error diagnosis, regular checking of results, etc.
3.6 Should Client upload any data (including but not limited to Personal Data and transaction data) to the Platform or otherwise provide any data to eBaoTech (collectively the “Provision of Data”), Client hereby warrants and represents that all data are collected or generated in accordance with the applicable data protection law. Client further warrants that it has obtained consent from the respective Data Subjects prior to the Provision of Data or there is other legitimate basis for the Provision of Data, and it has not and will not infringe the legitimate rights or interests of any individual or any Third Party.
ARTICLE 4: ACCOUNT AND PASSWORD SECURITY
4.1 The use of the Services by Client entails access to the Platform via account name and password. Client shall be responsible for keeping its account information and password in strict confidence (including but not limited to resetting the account password regularly) and shall remain responsible for any activities conducted in its account(s).
4.2 Client shall notify eBaoTech immediately if its account is used or accessed without authorization or if there is any other security breach. Client agrees that any unauthorized access or use of its account or password as a result of failure to keep confidential its account information shall be at the Client’s own risk.
ARTICLE 5: TEMPORARY SUSPENSION
5.1 eBaoTech may suspend Client’s right to access or use any portion or all of the Services immediately upon notice to Client if it determines :
a) Client’s use of the Services: (i) poses a security risk to the Services or any third party; or (ii) could adversely impact eBaoTech’s systems and the Services; or (iii) could subject eBaoTech, its affiliates, or any third party to liability, or (iv) could be fraudulent;
b) Client is in breach of this Agreement;
c) Client is in breach of its payment obligations under Article 6; or
d) Client has ceased to operate in the ordinary course, filed for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors and in such circumstance.
5.2 If eBaoTech suspend Client’s right to access or use any portion or all of the Services, Client remains responsible for all fees and charges it incur during the period of suspension.
ARTICLE 6: PRICE AND PAYMENT
6.1 Client shall pay the Fees and expenses as set forth in the Order Form.
6.2 Client shall pay the Fees according to the invoicing schedule specified in the Order Form. Unless otherwise specified in an Order Form, Client shall pay to eBaoTech Fees within fifteen (15) days of the date of invoice. Any Fees not paid when due shall accrue interest at the rate of one point five percent (1.5%) per month until the date of full payment. eBaoTech reserves the right to immediately suspend its Services if Client fails to timely pay the Fees.
6.3 Unless otherwise explicitly specified in the Order Form, Fees and other charges do not include any federal, state or local sales, withholding, use, property, excise, deed, service, or similar taxes (“Taxes”) now or hereafter levied, all of which shall be undertaken and paid by Client. If eBaoTech is required to pay Taxes, (i) Client shall reimburse eBaoTech for such amounts and for any related costs, interest and penalties paid or payable by eBaoTech, or (ii) the amount paid or payable to eBaoTech shall be grossed-up to the extent to ensure that eBaoTech receives and retains, free of liability, a net amount equal to the amount should no tax deduction or withholding have been made. Client agrees to provide all support, reasonably requested by eBaoTech, in obtaining applicable tax exemptions.
ARTICLE 7: ACCEPTANCE
Where the Platform or Deliverables under an Order Form requires user acceptance test (“UAT”), the Test Period shall be five (5) days or otherwise agreed to by both Parties in the Order Form upon access to the Platform made available to Client or upon provision of the Deliverables (“Test Period”). During the Test Period, Client shall test and verify whether the Platform or Deliverables meet the Documentation set forth in the Order Form with the assistance of eBaoTech, if applicable. If Client notifies eBaoTech of any material Error in the Platform or Deliverables in writing and describes the Error in reasonable details (“Non-Acceptance Notice”) within the Test Period, eBaoTech shall use reasonable efforts to correct such alleged Error and notify Client when the corrections are complete. Client then shall have the right to test the corrected Platform or Deliverables according to the initial UAT. If eBaoTech receives no Non-Acceptance Notice accompanied with sufficient details of the Error within the Test Period, or if Client uses the Platform or Deliverables in its conduct of business, Client shall be deemed to have accepted the Platform or Deliverables (“Acceptance”).
ARTICLE 8: PROPRIETARY RIGHTS
8.1 All rights, title and interest in the Services, Platform, Deliverables and eBaoTech’s Confidential Information, including their amendment, modification and error correction associated therewith, and all IPR in the foregoing, all are and shall remain the exclusive property of eBaoTech. eBaoTech retains the right to independently develop any enhancements and updates to the Platform and Deliverables and own any IPR and other rights related therewith. No right or license is granted or implied under any of eBaoTech’s IPR beyond the rights granted in this Agreement.
8.2 Client shall not copy, translate, disassemble, or decompile, nor create or attempt to create, by reverse engineering or otherwise, the Platform or Deliverables. Client is not permitted to make derivative works of the Platform or Deliverables and ownership of any unauthorized derivative works shall vest in eBaoTech. eBaoTech and Client agree to take all reasonable steps and the same protective precautions to protect the IPR as with its own IPR.
8.3 Subject to Section 8.1 above, all rights in and title to materials, product, formulas, modules, functionality and development and all their enhancement, modification and error correction solely initiated and developed by Client, all IPR in the foregoing, shall remain the property of Client (“Client IPR”).
8.4 If Client provide any suggestions (“Suggestions”) to eBaoTech or its affiliates, eBaoTech and its affiliates will be entitled to use the Suggestions without restriction. Client hereby irrevocably assign to eBaoTech all right, title, and interest in and to the Suggestions and agree to provide eBaoTech any assistance it require to document, perfect, and maintain its rights in the Suggestions.
ARTICLE 9: WARRANTY AND REMEDY
9.1 Warranty. eBaoTech warrants that it will provide the Platform, Deliverables and Services with reasonable care and skill and in accordance with professional standards. Any further warranty for the Platform, Deliverables or Services to be agreed by both Parties shall be specified in the applicable Order Form.
9.2 Express Disclaimer. The warranty set forth above shall not apply and eBaoTech will not be responsible: (i) if the Platform or Deliverables is not used according to the Documentation or this Agreement; or (ii) if the defect is caused by or attributable to unauthorized modification by Client, Third Party products or database not provided by eBaoTech; or (iii) Client’s failure to use or implement corrections, replacement or enhancements to the Platform or Deliverables made available by eBaoTech; or (iv) Client’s distribution, marketing, or use of the Platform or Deliverables for the benefit of Third Party not specified in the Order Form; or (v) combination of the Platform or Deliverables with materials not supplied by eBaoTech; or (vi) for use of any materials, product, formulas, modules, functionality and their development, enhancement, modification and error correction provided, developed, implemented or configured by Client and/or combination, integration or configuration of the foregoing with the Platform or Deliverables, or use of any information or materials provided by or on behalf of Client, or (vii) if the defect is attributable to any act, omissions, fault, default, breach or negligence of Client (collectively, “Exceptions”). EBAOTECH DOES NOT PROVIDE ANY OTHER WARRANTIES THAN THOSE ARE SET FORTH EXPRESSLY UNDER THIS AGREEMENT.
9.3 Remedies.
a) Client’s sole and exclusive remedies and eBaoTech’s sole and all liabilities to the warranty (Exceptions specified in Section 9.2 herein above are excluded expressively from the scope of warranty) for any damages or loss in any way connected with the Platform, Deliverables or Services furnished by eBaoTech, shall be, at eBaoTech’s option: (i) to bring the performance of the Platform or Deliverables to substantial compliance with the Documentations; (ii) replace, re-perform or re-provide Platform, Deliverables or Services; or (iii) if the above (i) or (ii) is not achievable, deduction or return of an appropriate portion of any payment to be made by Client with respect to the applicable portion of the Platform, Deliverables or Services.
b) Client shall make its complaints in writing, giving a detailed description of the Error. Only the person designated in the applicable Order Form shall be authorized to make complaints. Delayed, inadequate or unsubstantial complaints shall release eBaoTech from its warranty obligations.
c) If an Error is not attributed conclusively to eBaoTech, but is caused by any of Exceptions in Section 9.2 above, Client shall remunerate eBaoTech for searches and Error correction activities in accordance with eBaoTech’s standard rates then applicable.
ARTICLE 10: INDEMNIFICATION OF EBAOTECH
10.1 In the event of any alleged or justified claims, liabilities, losses, expenses, penalties, taxes, or damages (collectively “Liabilities”) asserted or brought against Client as IPR infringement to the extent such Liabilities result from the infringement of the Platform or Deliverables upon any Third Party’s trade secret, trademark, service mark, copyright or patent issued as of the date of the Agreement (collectively, “Third Party IPR”), eBaoTech shall be entitled at its discretion, option and expense to, (i) obtain for Client the right to continue using the Platform or Deliverables; or (ii) alter, modify or adjust the Platform or Deliverables so that they become non-infringement without materially reducing its performance or functionality; or (iii) replace the Platform or Deliverables with non-infringement substitutes, provided that such substitutes do not materially reducing its performance or functionality. If eBaoTech fails to exercise any of the above options or similar remedies, then eBaoTech shall provide to Client a pro-rata refund of the Fees related to the applicable Platform or Deliverables or the relevant part, calculated on the remaining book value of each and every payment, based on a straight line five (5) year depreciation from the applicable date of Acceptance, and the applicable Order Form shall terminate forthwith.
10.2 If the above is not sufficient to eliminate the Liabilities, eBaoTech agrees to indemnify Client against the damages (including costs) that is awarded under the final judgment by a court of competent jurisdiction, or is agreed by eBaoTech in a final settlement in respect of the Liabilities, and defend Client from such Liabilities, provided that such Liabilities are solely attributable to eBaoTech and that Client: (i) promptly notifies eBaoTech of any claim of Third Party IPR subject to indemnification; (ii) gives eBaoTech full right to control and direct the preparation of the defense and any settlement of such claim; (iii) gives full cooperation to eBaoTech for the defense; (iv) not admit liability at any time or otherwise settle or compromise, or attempt to settle or compromise, unless upon the express written consent of eBaoTech; (v) makes no statement or admission prejudicial to eBaoTech, or otherwise does anything, which may prejudice eBaoTech’s defense; and (vi) complies with eBaoTech’s direction to cease Use of the Platform or Deliverables which, in eBaoTech’s discretion, is likely to be ruled an infringement of a Third Party IPR.
10.3 The foregoing provisions in this Article 10 shall not apply to any infringement arising out of circumstance of Exceptions specified in Section 9.2 herein above. THE PROVISIONS OF THIS ARTICLE 10 STATE THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF EBAOTECH TO CLIENT WITH RESPECT TO THE INFRINGEMENT OF THIRD-PARTY IPR.
ARTICLE 11: INDEMNIFICATION OF CLIENT
11.1 Client agrees to indemnify, hold harmless and defend eBaoTech from and against all Liabilities incurred by or asserted against eBaoTech in connection with any third party claim to the extent that such Liabilities result from (i) the Exceptions as specified in Section 9.2 herein above, or (ii) loading or storage of any information, data or materials which are prohibited by the applicable laws, regulations or rules or infringing against any Third Party, or (iii) developing, engaging, implementing or configuring any materials, product, formulas, modules, functionality and their development, enhancement, modification and error correction of the Client or any Client IPR on the Platform, or (iv) providing eBaoTech with access to Client’s computer program, specification, content or other Client-provided materials.
11.2 eBaoTech agrees to provide same level of cooperation to Client as specified in Section 10.2.
ARTICLE 12: LIMITATION OF LIABILITY
12.1 NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR LOST OF DATA OR SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, NOR SHALL ANY OF THE TERMS OF THIS AGREEMENT BENEFIT OR CREATE ANY RIGHT OR CAUSE OF ACTION IN OR ON BEHALF OF ANY PERSON OR ENTITY OTHER THAN CLIENT AND EBAOTECH.
12.2 UNDER NO CIRCUMSTANCES SHALL EBAOTECH BE LIABLE TO THE CLIENT OR ANY OTHER PERSON OR ENTITY FOR AN AGGREGATE AMOUNT IN EXCESS OF TWENTY-FIVE PERCENT (25%) OF THE FEES RECEIVED BY EBAOTECH DURING THE PRIOR TWELVE (12) MONTHS FOR A PARTICULAR ORDER FORM GIVING RISE TO THE LIABILITY. ANY ACTION AGAINST EBAOTECH MUST BE BROUGHT WITHIN TWENTY-FOUR (24) MONTHS AFTER THE EVENTS GIVING RISE TO THE CAUSE OF ACTION. THE PROVISIONS OF THIS ARTICLE 12 SHALL APPLY REGARDLESS OF THE FORM OF ACTION, DAMAGE, CLAIM, LIABILITY, COST, EXPENSE, OR LOSS, WHETHER IN CONTRACT OR LAW (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE.
ARTICLE 13: CONFIDENTIALITY
13.1 Each Party shall hold confidential the Confidential Information, this Agreement or any part thereof to any Third Party. Each Party agrees to protect the other’s Confidential Information at all times and in the same manner as each protects the Confidential Information of its own proprietary and confidential materials, but in no event with less than a reasonable standard of care. Neither Party shall, without the other Party’s prior written consent, disclose any of the Confidential Information of the other Party to any person or entity, except to its bona fide personnel whose access is necessary to enable such Party to perform this Agreement. Each Party agrees that prior to disclosing any Confidential Information of the other Party to any Third Party in the event that such disclosure has been permitted by the other Party, it will obtain from that Third Party a written acknowledgment that such Third Party will be bound by the same terms as specified in this Section hereof with respect to the protection of Confidential Information. The Confidential term of this Agreement shall be the whole term of this Agreement and five (5) years thereafter.
13.2 Receiving Party may disclose the Confidential Information in compliance with legal requirements upon request of a governmental agency or court, where disclosure is required by operation of law. However, the receiving Party shall promptly notify the disclosing Party upon receiving such request for the disclosing Party to take actions to prevent such disclosure, with receiving Party’s reasonable assistance, unless not permitted by law.
ARTICLE 14: TERM AND TERMINATION
14.1 This Agreement shall be effective upon execution of the Order Form and shall continue in effect thereafter unless terminated upon the earliest occurrence of the following: (i) immediately upon that all Order Forms are expired unless otherwise agreed by both Parties;(ii) thirty (30) days after either Party receives the other Party’s notice of the first mentioned party’s material breach of any provision of the Agreement (other than Client’s breach of its obligations under Sections 8 or 13, which may result in immediate termination), unless the Party in breach has cured the breach during such thirty (30) day period; or (iii) immediately if either Party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors, which impact the performance of the Agreement.
14.2 Upon any termination hereunder, Client and its Affiliates shall immediately cease Use of the Platform or any eBaoTech IPR or Confidential Information, unless otherwise set forth in the applicable Order Form or agreed by the Parties. Within fifteen (15) days after any termination, Client shall deliver to eBaoTech or destroy or erase all original copies or photocopies of eBaoTech’s IPR or Confidential Information or any information proprietary to eBaoTech. Client agrees to certify in writing to eBaoTech that it and its Representatives have performed the foregoing. In the event of any termination hereunder, either Party’s obligations incurred prior to the termination shall not be affected.
14.3 Unless otherwise provided under the applicable laws and regulations or otherwise specified under any valid agreement(s) between the Parties, eBaoTech will retain Client data (if any) within thirty (30) days (the “Retention Period”) after the termination of Services or expiration of this Agreement. Client remains responsible for back-up of its data during this Retention Period. Following the expiration of this Retention Period, eBaoTech will delete or destroy all Client data in the Platform, including any cached or back-up copies (if any), after the expiry of the Retention Period, unless otherwise provided by the law. Client agrees that eBaoTech has no additional obligation to continue to hold, export or return Client Data and that eBaoTech has no liability whatsoever for deletion of Customer data pursuant to this Section.
ARTICLE 15: FORCE MAJEURE
Any delay or non-performance of any provision of this Agreement (other than for the payment of amounts due) caused by unforeseeable conditions beyond reasonable control of the performing party shall not constitute a breach of this Agreement, and the time for performance of such provision shall be deemed to be extended for a period equaling to the duration of the conditions preventing performance.
ARTICLE 16: INDEPENDENT CONTRACTOR
The relationship between eBaoTech and Client shall be that of a service provider and a client and not that of a principal and agent, partnership, joint venture or other association. Neither Party shall make any warranties or representations, or assume any obligations on the other Party’s behalf. Each Party shall be solely responsible for the actions of its respective personnel, agents and Representatives. No terms shall be implied or otherwise imposed except as explicitly set forth herein.
ARTICLE 17: DISPUTE RESOLUTION
Except for the right for an injunction or other relief under applicable law to preserve the status quo or prevent irreparable harm pending the selection and confirmation of a panel of arbitrators, and for the right of eBaoTech to bring suit on an open account for any payments due to eBaoTech hereunder, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in Singapore International Arbitration Centre, in accordance with its then in effect arbitration rules. Arbitration shall be conducted in English language by a panel of three (3) arbitrators, one (1) arbitrator selected by eBaoTech, one (1) arbitrator selected by Client and the third one, who shall be chairman of the arbitration, selected according to the rules of the arbitration center. The arbitration proceedings and the award shall be kept confidential and that obligations under this Section shall survive termination or expiration of this Agreement. The arbitral award shall be final and binding upon the Parties.
ARTICLE 18: GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the law of the Republic of Singapore without reference to its conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
ARTICLE 19: MISCELLANEOUS
19.1 Both Parties shall designate a contact person to be their point of contact. The contact persons shall ensure effective cooperation between the Parties. All notices, demands or reports which may be given pursuant to this Agreement shall be in writing and be deemed duly given when (i) delivered to the respective offices of eBaoTech and Client at the addresses under the Order Form, and (ii) notified to the respective contact person of the other Party through electronic mail.
19.2 Neither Party shall, during the term of this Agreement and for two (2) years thereafter, solicit for hire as an employee, consultant or otherwise who have involvement in the Agreement.
19.3 These General Terms and Conditions, the Order Form and any other appendixes, as a whole, constitute the entire agreement between the Parties hereof and supersedes all previous negotiations, proposals, communications and agreements of whatever nature, unless they are expressly incorporated into this Agreement. No amendments to any of this Agreement shall be valid or binding unless both Parties agree to such amendments in writing.
19.4 Neither Party may, without the other Party’s prior written consent, assign, or otherwise transfer the Agreement, or any part thereof, to any other party. Notwithstanding the foregoing, eBaoTech may assign this Agreement to its Affiliates and may at any time and without prior consent or approval of Client to subcontract all or part of the Services to be provided under this Agreement. Nevertheless, any Affiliate of Client or eBaoTech may enter into an order form for eBaoTech or Affiliate of eBaoTech to provide Platform, Deliverables or Services to the Affiliate of Client.
19.5 The Services may contain features designed to interoperate with other applications of a third party. eBaoTech cannot guarantee the continued availability of such Services features, and may cease providing them without entitling Client to any refund, credit, or other compensation.
19.6 No delay or failure by either Party to exercise any of its powers, rights or remedies under this Agreement will operate as a waiver, nor will any single or partial exercise of any such powers, rights or remedies preclude any other or further exercise of them.
19.7 In case any of the provisions hereunder is held invalid, illegal or unenforceable in any respect by a competent court or other authority, such invalidity or unenforceability shall not affect the other provisions, and both Parties shall negotiate in good faith a provision, which is valid, legal and enforceable with the meaning closest to the invalidated provision.
19.8 The provisions of Sections 8, 10, 11, 12, 13, 17, and 18 and any other provision which by its nature shall be considered to be continued and shall survive the termination of this Agreement.
19.9 Each Order Form or appendix shall be deemed to include all these General Terms and Conditions hereunder and all capitalised terms defined hereunder shall have the same meaning in that Order Form or appendix. In the event of discrepancies between the contractual documents, the following order of precedence shall apply: these General Terms and Conditions, the Order Form, appendix, latest, ascending to oldest, and the part in the Order Form or appendix shall take precedence over the provisions of these General Terms and Conditions but only for the purpose of that particular Order Form or appendix, while not otherwise amending, modifying, cancelling or releasing the terms and provisions of this Agreement.