emporio analytics Pte. Ltd.
GENERAL TERMS OF SERVICE
Effective Date: 13 August 2020
These General Terms of Service (“EA GTS”) are a legal agreement between you, as a current or prospective customer (“Customer”) of services provided by Emporio Analytics Pte. Ltd. (“Services”) and Emporio Analytics Pte. Ltd. (“EA”) (Customer and EA hereinafter also referred to individually as “Party” and collectively as “Parties”), and govern the Customer’s use of the Services, including, without limitation, any and all online platforms, mobile applications, websites, software, hardware, consulting services or media products and other products and services which are part of or related to the Services. Online platforms, mobile applications and/or websites of the Services including, without limitation, EMPORIO SYNTIFY or EMPORIO CONNECT or EMPORIO.AI, are hereinafter referred to as “Platform”. The advertisement and promotion products provided by EA are hereinafter referred to as “Advertisement Products”. The Customer’s legal employees with authorisation to use the Platform and/or Advertisement Products shall be referred to as “Authorised Personnel”. By using any of the Services, you agree to the EA GTS and any policies referenced within the EA GTS, which are collectively incorporated herein by reference.
Please read all of the EA GTS carefully and ensure that the Authorised Personnel are aware of the EA GTS and comply with them at all times:
1. SPECIFIC TERMS FOR PLATFORM
(A) PLATFORM ACCOUNTS, PASSWORDS AND SECURITY
(1) When registering for the Platform, the Customer must complete the registration process by providing true, accurate, current and complete information as requested on the applicable registration form and is required to promptly update the registration data in case of any changes. The same applies to user login registrations.
(2) The Customer shall only allow its Authorised Personnel access to the Platform and each login must be individually assigned to only one employee. Any login credentials given to an Authorised Personnel to obtain access to the Platform, information or documents are non-transferable and must not be shared. Each Authorised Personnel is required to maintain the login credentials in strict confidence at all times and must logout from the account at the end of each session.
(3) The Customer is fully responsible for all activities that occur through the use of its account and shall not disclose or transfer any login credentials to any third party. The Customer is aware that the loss of login credentials may lead to unauthorised access to the Platform. If login credentials are accidentally disclosed or otherwise become known to a third party, the Customer shall immediately inform EA and take all measures to prevent the misuse of the account or any other breach of security. EA is not responsible or liable for any loss or damage incurred by the Customer as a result of a third party using the Customer’s login credentials or accounts, either with or without its knowledge. However, the Customer shall be liable for any and all damages or losses incurred by EA or any other party due to a failure to properly safeguard the login credentials or accounts.
(4) The Customer shall provide at any time when requested by EA, a list of employees of the Customer who are no longer authorised to access the Platform.
(5) The number of logins provided for an account will be in accordance with the plan subscribed by the Customer. EA may, at its sole discretion, provide the Customer with additional logins upon the Customer’s request. For any such additional login, additional fees apply which may be higher than the fees under the original plan subscribed by the Customer.
(6) The Customer acknowledges and agrees that EA may track the activity of each account and deactivate accounts with no activity within any continuous period of three (3) months.
(7) For subscription renewal, EA may, at EA’s sole discretion and without any legal obligation to do so, grant the Customer a grace period of two (2) weeks after the termination or expiration of the respective Services. During such grace period, certain users may still log into their account(s), but content will not be refreshed or updated. If the Customer does not renew its respective agreement(s) for Services within the grace period, all relevant user accounts will be removed.
(8) Subject to the Customer’s compliance with the EA GTS, and solely for so long as the Customer is permitted by EA to access and use the Platform and Services, the Customer may view content and the Customer may download and print the materials that EA specifically makes available for downloading from the Platform, in each case solely for the Customer’s internal business use and in accordance with the relevant service agreement(s) between EA and the Customer.
(9) In using the Services, the Customer agrees not to introduce into the Platform any viruses, worms, defects, Trojan horses or any other items of a destructive nature, or that are intended detrimentally interfere with, surreptitiously intercept or expropriate any system or data or may otherwise compromise the security and integrity of the Platform, and not to imitate, copy, modify, decompile, disassemble, reverse engineer, distribute, disseminate, reproduce, license or create any derivative works from, assign, transfer or sell, in full or in part and in any way, the Platform or any information, data, products or services obtained from the Platform.
(10) The Customer is not allowed to export Platform content or files, or share Platform screenshots or other material of or related to the Services with any third party without the prior written consent of EA.
(11) EA will share only content based on aggregated data through the Platform. Raw basket level data will not be provided to the Customer.
(12) EA reserves the right to suspend or terminate the Customer’s access to the Platform should EA in its sole discretion consider the Customer’s use of the Platform and/or other Services to be inappropriate in any way, in any case of breach of the EA GTS by the Customer, and/or in case of breach of any other service agreement(s) between EA and the Customer by the Customer.
(13) The Customer acknowledges and agrees that customer service requests with regard to the Platform must be submitted through firstname.lastname@example.org in order to be processed.
(B) PLATFORM AVAILABILITY, ERRORS
(1) EA will make commercially reasonable efforts to make its Platform available on a continuous basis, but does not offer any specific uptime guarantee whatsoever. EA does not make any declaration, representation or warranty whatsoever that the Customer’s use of the Platform will be uninterrupted or error free.
(2) The Platform may be, wholly or partially, suspended and/or the Customer’s access to the Platform restricted at EA’s sole discretion and without notice for technical reasons in connection with the integrity, operation and functioning of the Platform, for the protection of EA’s intellectual property rights, compliance with laws and regulations, or other unforeseen circumstances. The Customer agrees that there are no entitlements to any refunds or rebates for any such suspensions or restrictions.
(C) MODIFICATION AND AMENDMENTS
(1) EA reserves the right to make amendments to the Platform at any time, in its sole discretion, without notice, and for the Services, in its sole discretion with prior written notice.
(2) The Customer may choose to receive the upgrades or enhancements of the Platform and/or the Services made available by EA upon payment of applicable fees.
2. SPECIFIC TERMS FOR CONSULTANCY SERVICES
SCOPE OF SERVICES
(1) Upon the Customer’s acceptance of the scope of consultancy service provided by EA, if the Customer terminates the relevant agreement prematurely, the Customer remains obliged to pay the full sum of consultancy fees agreed.
(2) EA’s provision of consultancy services is conditioned on EA’s receipt of sufficient and relevant data from data provider(s) or partner(s). In the event that EA is unable to receive sufficient and/or relevant data to provide the consultancy services, EA shall discuss with the Customer on any adjustment(s) to the scope of consultancy services and/or consultancy fees. EA shall not, under any circumstances, be held responsible for the quality, relevance and/or sufficiency of the data. EA is obliged to preserve the anonymity of any data and shall only provide the Customer with aggregate data or otherwise anonymized data.
(3) The Customer shall reimburse EA for out of pocket expenses incurred by the EA in the performance of the Services.
(4) The consultancy fees and other charges by EA are due and payable within the payment term stipulated in EA’s invoices to the Customer. EA may issue additional invoices for each project, for example, without limitation, fees for Services not included in initial project invoices, fees for other additional Services, disbursements or expenses incurred on behalf of the Customer or payments by EA to third parties. For the avoidance of doubt, this shall not affect EA’s right to request the Customer to make adequate ongoing prepayments for consultancy fees, disbursements, expenses or payments to third parties, at any time.
(5) EA shall have a general lien on all documents in its possession or control for all sums due from the Customer to EA whether arising out of the Services or otherwise and such lien shall only be discharged upon the full settlement of all sums due to EA.
3. SPECIFIC TERMS FOR DATA PRODUCTS
DATA QUALITY AND ACCURACY
(1) In delivering the Services, EA reserves the full discretion to, without limitation, use, combine, clean and/or aggregate data sets it deems necessary to create data products (“Data Products”). EA reserves the full discretion to use (a) data provided by data partners and/or the Customer, and (b) research data owned by EA, and interpret the dataset(s) in a manner it deems most appropriate to create the Data Products.
(2) The Services and Data Products are strictly provided on a “AS-IS”, “AS AVAILABLE” basis. The Customer acknowledges and agrees that any and all data provided or made available to EA is subject to its availability, for example from retailers or other third parties. Such retailers or other third parties are not under EA’s control. EA makes no representation or warranty of any kind, express or implied, concerning this information, including but not limited to any warranties of merchantability, accuracy, fitness for any particular purpose, or non-infringement.
(3) While EA undertakes reasonable efforts to detect and prevent data manipulation and fraud, no representation is made that (a) the data sets it receives or owns or (b) the Data Products are accurate, complete and reliable.
(4) Data will be refreshed according to the subscription plan. EA will use reasonable efforts to deliver according to the timeline of the relevant subscription plan but makes no representation or warranty of any kind. Customer acknowledges and agrees that there may be delays due to unforeseen circumstances including, without limitation, data that requires extensive engineering.
(5) The Customer acknowledges and agrees that data may require masking at the request of supplying parties such as retailer etc and/or due to applicable laws and regulations.
4. SPECIFIC TERMS FOR ADVERTISEMENT PRODUCTS
(A) USE OF ADVERTISEMENT PRODUCTS
(1) In agreeing to use EA’s Advertisement Products, the Customer authorizes EA to place advertisement materials provided by the Customer (“Creative”) on any media and/or advertising channels (“Media Channel(s)”) controlled by EA or any of EA’s partners (“Partners”) provided always that the Customer shall remain fully responsible for (a) the contents and all aspects of the Creative, (b) ad trafficking or targeting decisions related to the Creative, (c) the destinations to which Creative directs viewers including without limitation any related URLs and redirects (“Destinations”), and (d) services and products advertised on the Destinations. EA reserves, at all times, the full discretion to reject or remove a specific Creative or target from the Advertisement Program for any reason whatsoever.
(2) The Customer agrees to be fully responsible for its use of the Advertisement Products, including without limitation:-
(i) Ensuring that all Authorised Personnel comply fully with the applicable EA policies in their use and access of the Advertisement Products. EA’s policies can be accessed at www.emporio.ai/ads/policies; and
(ii) Safeguarding the proper use and security of the usernames and passwords granted to the Customer to access and use the Advertisement Products.
(3) EA reserves the right to suspend or terminate the Customer’s use and access to the Advertisement Products, should EA in its sole discretion consider the Customer’s use of the Advertisement Products to be inappropriate in any way, in any case of breach of the EA GTS by the Customer, and/or in case of breach of any other service agreement(s) between EA and the Customer by the Customer.
(1) The Customer agrees to make full payment of all fees charged by EA for the Customer’s use of the Advertisement Products either (i) immediately upon receipt of the relevant invoice(s) or (ii) within a commercially reasonable period as specified by EA on the Advertisement Products user interface or any other platform as notified by EA from time to time. The charges for the use of the Advertisement Products are based on (i) EA’s measurements for the Advertisement Products, (ii) the applicable billing metrics (including but not limited to triggers and/or redemptions) and/or (iii) any other billing metrics that EA may, from time to time, notify the Customer of.
(2) The Customer agrees to pay EA in full any amount which is required by a Partner in relation to the Customer’s use of the Partner’s Media Channel(s) and such payment shall be made by the Customer to EA prior to the commencement of any advertising campaign. In the event that the amount paid by the Customer exceeds the amount eventually charged by the Partner, EA shall transfer to the Customer the amount in excess thereof.
(1) EA conducts commercially reasonable due diligence on its Partners for inclusion in the Advertisement Products. Notwithstanding thereof, the Customer remains fully responsible for all activities that occur on a Partner’s Media Channel(s). EA disclaims any and all liabilities with respect to any improper, negligent or erroneous conduct, and/or fraudulent and/or other criminal activities which may occur on a Partner’s Media Channel(s).
(2) While EA undertakes reasonable efforts to detect and prevent data manipulation and fraud on Partner’s Media Channel, no representation is made that the Partner’s data are accurate, complete and reliable. EA does not make any declaration, representation or warranty whatsoever that the Customer’s use of the Media Channel(s) will be uninterrupted or error free.
(1) Each Party undertakes that it shall not reveal, and shall use its reasonable efforts to ensure that its directors, officers, managers, partners, members, owners, employees, legal, financial and professional advisors and bankers (collectively the “Representatives“) do not reveal, to any third party any Confidential Information without the prior written consent of the concerned Party, as the case may be. The term “Confidential Information” as used in these EA GTS means (i) any information concerning the organization, business, technology, finance, transactions or affairs of any Party, or any of their respective directors, officers or employees (whether conveyed in written, oral or in any other form and regardless of when such information was or is furnished) and (ii) any information or materials prepared by a Party or its Representatives that contains or otherwise reflects, or is generated from, Confidential Information.
(2) The provision of § 5 (1) does not apply to:
(a) disclosure of Confidential Information that is or becomes generally available to the public other than as a result of disclosure by or at the direction of a Party or any of its Representatives in violation of these EA GTS;
(b) disclosure by a Party to its Representatives;
(c) disclosure, after giving prior notice to the other Party to the extent practicable under the circumstances and subject to any practicable arrangements to protect confidentiality, to the extent required under the rules of any stock exchange or by applicable laws or governmental regulations or judicial or regulatory process or in connection with any judicial process regarding any legal action, suit or proceeding arising out of or relating to these EA GTS and/or any other service agreement(s) between EA and the Customer.
6. INTELLECTUAL PROPERTY
(1) For the avoidance of doubt, nothing in the EA GTS or any other service agreement(s) between EA and the Customer will be construed to assign, transfer or license any present or future intellectual property rights of EA to the Customer or third parties. EA retains any and all of its intellectual property rights and other rights in and to any data, software, materials, content or information whatsoever, provided or disclosed by EA to the Customer under or in connection with the Services, through the Platform or otherwise.
(2) Should an invention or discovery be made by the Customer, either solely or in collaboration with others, relating to the Services, the Customer shall promptly give EA written notice thereof and shall furnish EA with complete information thereon including, as a minimum, a complete written disclosure of each such invention, and information concerning the date and identity of any public use, sale, or publication of such invention made by or known to the Customer or of any contemplated publication by the Customer. The Customer hereby grants, assigns, and conveys to EA all right, title, and interest in and to all inventions, works of authorship, and other proprietary data, and all other materials (as well as the copyrights, patents, trade secrets, and similar rights attendant hereto) conceived, reduced to practice, authored, developed, or delivered by the Customer or its employees, agents, consultants, contractors, and representatives either solely or jointly with others, during and in connection with the Services. The Customer agrees that it will not seek, and that it will require its employees, agents, consultants, contractors, and representatives not to seek patent, copyright, trademark, registered design, or other protection for any rights in any such inventions, works or authorship, proprietary data, or other materials. The Customer shall have no right to disclose or use any such inventions, works of authorship, proprietary data, or other materials for any purpose whatsoever and shall not communicate to any third party the nature of or details relating to such inventions, works of authorship, proprietary data, or other materials.
(3) EA reserves and retains all intellectual property rights in and to content developed by reproduction, redistribution or other use or exploitation of any data, software, materials, content or information whatsoever, provided or disclosed by EA to the Customer under or in connection with the Services, through the Platform or otherwise, in violation of this § 6. For the avoidance of doubt, EA owns all intellectual property rights in the Data Products and has the full unfettered rights to use and commercialise the Data Products at all times, even after the termination of EA’s provision of Services to the Customer.
7. NO ILLEGAL OR HARMFUL USE
(1) The Customer may not use, or encourage, promote, facilitate or instruct others to use, the Services for any illegal, harmful or offensive use or purpose, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, or offensive. The Customer warrants and represents that it will not, and procures that its Authorised Personnel and employees similarly will not share, divulge or leak in any form or manner (including screenshots) any datasets or Data Products to any unauthorised third party.
(2) If the Customer becomes aware of any illegal, harmful or offensive use of the Services, the Customer will notify EA immediately and provide EA with reasonable assistance, as requested, to stop or remedy the violation.
The Customer shall indemnify and defend EA, its directors, officers, and employees, and shall hold such parties harmless from and against any and all claims, liabilities, damages and expenses, including reasonable attorneys’ fees, arising from any third party claim in connection with (a) any Customer supplied intellectual property, (b) any functional specifications supplied or requested by the Customer, and/or (c) Customer’s transaction of business through the use of or otherwise on connection with the Services.
9. WARRANTY DISCLAIMER
(1) EA MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY OF THE SERVICES OR THEIR CONDITION, MERCHANTABILITY, ACCURACY OF DATA, OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE BY THE CUSTOMER.
(2) EA HEREBY FULLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY AND ACCURACY. THE SERVICES, DATA, CONSULTANCY AND ANY OTHER PERFORMANCE, DELIVERABLE OR INFORMATION WHATSOEVER PROVIDED BY EA ARE PROVIDED “AS IS” WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT LIES SOLELY WITH THE CUSTOMER.
10. EXCLUSION OF LIABILITY
(1) EA SHALL NOT BE LIABLE FOR ANY (A) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, ARISING FROM OR RELATED TO A BREACH OF CONTRACT OR THE OPERATION OR THE USE OF ANY OF THE SERVICES INCLUDING SUCH DAMAGES, WITHOUT LIMITATION, AS DAMAGES ARISING FROM LOSS OF DATA OR PROGRAMMING, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, DAMAGE TO EQUIPMENT, AND CLAIMS AGAINST THE CUSTOMER BY ANY THIRD PARTY, EVEN IF EA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (B) DAMAGES (REGARDLESS OF THEIR NATURE) FOR ANY DELAY OR FAILURE BY EA TO PERFORM ITS OBLIGATIONS DUE TO ANY CAUSE BEYOND EA’S REASONABLE CONTROL; OR (C) CLAIMS MADE A SUBJECT OF A LEGAL PROCEEDING AGAINST EA MORE THAN ONE (1) YEAR AFTER ANY SUCH CAUSE OF ACTION FIRST AROSE.
(2) EA’S LIABILITIES, WHETHER UNDER CONTRACT LAW, TORT LAW OR OTHERWISE SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNTS ACTUALLY RECEIVED BY EA FOR THE RELEVANT SERVICE IN THE SIX (6) MONTHS PRIOR TO THE DATE OF THE ACTION GIVING RISE TO THE CLAIM.
(3) NOTWITHTANDING THE FOREGOING, EA does not, and does not attempt to, exclude or restrict any liability:
– for death or personal injury resulting from negligence;
– for fraud or fraudulent misrepresentation;
– for any matter FOR which it would be illegal or unlawful for EA to exclude or restrict or attempt to exclude or restrict its liability or which is otherwise not permitted to be excluded or restricted under the applicable law.
Quotations issued by EA, comprising for example descriptions, technical features or prices of Services will not be considered as a binding agreement. Any errors or omissions in EA’s quotations or other related documents may be amended by EA without EA incurring any liability for damages or other compensation whatsoever. No order submitted by the Customer will be considered to be accepted by EA unless and until such order is duly confirmed in writing by EA.
12. AMENDMENTS TO EA GTS
(1) EA may amend the EA GTS at its sole discretion and at any time, with notice that EA deems to be reasonable under the circumstances, by posting the revised version on EA’s website www.emporio.ai or communicating it to the Customer through the Platform or otherwise.
(2) Such revised version of the EA GTS will be effective as of the time it is posted or otherwise communicated. The Customer’s continued use of the Services after the posting of or otherwise communicating a revised version of the EA GTS constitutes the Customer’s acceptance of such revised version of the EA GTS.
No Party shall, during the term of the Services, and for a period of twelve (12) months thereafter, solicit any of the other Party’s staff who has been employed or engaged in, or in relation to, the Services. For the purposes of this clause, “solicit” means the soliciting of any such person with a view to engaging such person as employee, director, consultant, contractor or otherwise, including through a legal entity providing services.
14. NO EXCLUSIVITY
For the avoidance of doubt, the Customer acknowledges and agrees that the Services are not provided on an exclusive basis and that EA has acted, is acting and may act in the future for other parties without limitations and provide the Services or other services or products to such other parties.
Neither Party will issue a press release regarding the parties’ relationship without the other’s written approval, however, EA may identify the Customer, by name and by logo/trademark, as a customer of the Services on EA’s website and other marketing materials.
16. FORCE MAJEURE
Except for monetary obligations hereunder, neither Party shall be liable for any failure or delay in performance due in whole or in part to any cause beyond the reasonable control of such Party or its contractors, agents or suppliers, including but not limited to utility or transmission failures, failures of internet, telephone or other IT infrastructure or equipment, power failure, strikes or other labour disturbances, epidemics, pandemics, acts of God, acts of war or terror, floods, sabotage, fire, natural or other disasters.
17. GOVERNING LAW AND DISPUTE RESOLUTION
(1) These EA GTS and all other agreements between EA and the Customer regarding the Services shall be governed by and construed in all respects in accordance with the laws of Singapore which shall also apply to the formation, validity and implementation of this these EA GTS and all other agreements between EA and the Customer regarding the Services, to the exclusion of (i) conflict of law rules and (ii) the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(2) Any dispute arising out of or in connection with these EA GTS and all other agreements between EA and the Customer regarding the Services, including any question regarding their existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (SIAC) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (SIAC Rules) for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat of the arbitration shall be Singapore. The Tribunal shall consist of three (3) arbitrators. The language of the arbitration shall be English. EA shall also be free at all times to pursue claims in any court of competent jurisdiction including, without limitation, the courts of the Customer’s place of business or domicile.
18. SURVIVAL ON TERMINATION
The Customer acknowledges and agrees that § 5, 6, 7 (1), 8, 9, 10, 13, 14, 15, 17 and 18 of these EA GTS remain in full force and effect in perpetuity also in any event of termination or expiration of the Customer’s use of the Services.
19. GOVERNING LANGUAGE
This EA GTS is made in 2 (two) version, Indonesian Language and English Language, if there are any inconsistency of the meaning of the word(s) or paragraph herein, then English Language version shall prevail, and Indonesian Language version shall be adjusted to fit the English Language version.