Terms Of Service
CRESCO DATA TERMS OF SERVICE
These Terms of Service apply to the provision by Cresco Data Pte Ltd and in Australia, Cresco Data Australia Pty Ltd ("Cresco") of any and all Cresco's services ("Services") agreed between Cresco and its customer ("Customer"):
1.1. In these Terms of Service, the following words and expressions have the following meanings unless the context requires otherwise:
“Account” is defined as the Merchant’s Account on the Publishing Destination. A single Account is linked to a user name and password or an ID. A Merchant can have multiple Accounts on Publishing Destinations. An Account is linked to a single country
“Account Data” is the information required from the Merchant in order to deliver the Cresco Data services. This includes Customer and company information, Publishing Destination details and log-ins
"Affiliate” means, in relation to a party, any other entity which directly or indirectly Controls, is directly or indirectly controlled by or is under direct or indirect common Control with, that party from time to time.
“Activation Date” means the date set forth in the Statement of Work on which the first Service has been delivered to the requirements as set out in The Statement of Work and passed Cresco Data UAT.
“Active Merchants” are defined as Merchants that are set to Active in “The Cresco Data Management Portal”
"Business Day" as used in this Agreement means Monday to Friday, excluding gazetted public holidays in Singapore and Australia.
“Commerce Data” means the required range of data types that can include but are not limited to product, price, stock, order, order status updates, shipping labels and customer data and Personal Information that is required to deliver The Cresco Data Services.
"Control" means, in relation to a person, the direct or indirect ownership of more than 50% of the voting capital or similar right of ownership of that person or the legal power to direct or cause the direction of the general management and policies of that person, whether through the ownership of voting capital, by contract or otherwise, and "Controls" and "Controlled" is to be interpreted accordingly.
“Connectors” refers to the Cresco Data code that connects The Cresco Data Platform to Publishing Destinations or Sources. These are generally made available by Cresco Data to all its Customers.
"Cresco Data Platform" means Cresco’s cloud-based commerce software platform that allows The Customer and Merchants to automate, map and synchronize the transmission of Product and Order Data to and from Publishing Destinations, and all related Services.
“Cresco Data Management Portal” is defined as the online graphical user interface where Cresco Data Customers can view their Cresco Data Services.
“Cresco Data Management Portal Administrator” is a user access level that is created by Cresco Data. An Administrator must be a single person nominated by the Customer or Agency at the time of on-boarding via The Statement of Work. An Administrator has the ability to:
- Create new Merchant Accounts
- Create new Users related to that Customer Account
- The ability to reset passwords.
“Customer Data” is the information required from the Customer in order to deliver the Cresco Data services. This includes Customer and company information. Publishing Channel details and log-ins
“Customer Platform” means the Customer Platform that enables brands, retailers, marketplaces and manufacturers (“Merchants”) to manage their products and stock across multiple Publishing Destinations
“Deliverables” means any materials generated under or in connection with any Statement of Work.
“Documentation” means any and all documents, data, specifications, statistics, reports, manuals, diagrams or other materials provided or otherwise made available by Cresco Data to Customer or its Users in connection with the Cresco Data Platform or Services.
“Fees” has the meaning set forth in Section 8 (Fees).
“GMV” or gross merchandise volume means listing price shown on the website, multiplied by the number of items sold. This includes tax and discounts but excludes vouchers and shipping. This is also considered as Gross Revenue
"Intellectual Property Right" means: (a) copyright, patents, database rights and rights in trademarks, designs, know-how and confidential information (whether registered or unregistered); (b) applications for registration, and the right to apply for registration, for any of these rights; and (c) all other intellectual property rights and equivalent or similar forms of protection existing anywhere in the world.
“Merchants” are the sellers: brands, retailers and manufacturers that use The Customer Platform and may directly or indirectly utilise the Cresco Data Platform as a Service as part of the Merchant’s business arrangement with The Customer.
“Order Data” Order data is the data that is sent from a Publishing Destination surrounding the purchase of a product. This includes but is not restricted to Product ID, sale price RRP, shipping label information
“Order” An Order is defined as the purchase record of a product or multiple products sent from a Publishing Destination. This includes but is not restricted to orders that are fulfilled, cancelled or returned.
“Partner” refers to the partners or Systems Integrators that on-board Merchants to The Customer’s Platform
“Personal Information” takes its meaning from the applicable Data Protection Legislation which includes GDPR. Any reference to the term “personal data” is a reference to Personal Information for the purposes of this Agreement. Examples include name, address, email address, or phone number. Personal Information does not include information that has been anonymised such that it does not allow for the identification or re-identification of specific individuals.
"Product Data" means all information and materials related to Merchants’ products and brands that are uploaded, processed or otherwise stored in the Cresco Data Platform, or that The Customer directs Cresco to collect on its behalf of its Merchants, including image files, text, templates, product descriptions, order data, trade and service marks and other related information
“Professional Services” means the services set forth in a Statement of Work required by the Customer to enable the Customer’s systems to connect to The Cresco Data Platform
"Publishing Destination" means the third party commerce platforms, marketplaces, commerce sites, search engines, shopping sites, social commerce channels, digital ad networks and other third party channels supported by Cresco from time to time that is the subject of the Services, as set out in each Statement of Work
“Services” means collectively, the Services available via the Cresco Data Platform and associated API access modules
“Source Data” The Source Data is defined as the platform, website, system or files where Cresco Data obtains the Commerce Data. This could consist of The Customer Platform or a combination of The Customer Platform and other Sources
“Support Services” means the maintenance and support services set forth at ttps://crescodata.com/support-policy/
“Statement of Work” (SOW) means a statement of work that (a) is signed by Cresco and Customer pursuant to and incorporating these Terms of Service (b) identifies the Professional Services to be performed and any Deliverables to be provided by Cresco Data for Customer, and (c) sets forth the terms and conditions for the performance of such Professional Services.
“Term” has the meaning set forth in Section 11 (Term and Termination).
“User” means Customer’s directors, officers, employees, contractors and any other end users who are issued a user login and password pursuant for access and use of the Cresco Data Platform.
“User Acceptance Testing” means the set of pre-agreed user acceptance test cases that have been put together to test that the components or deliverables conform to the applicable specifications as set out in The Statement of Work
“Warranty Period” means the period of 14 days commencing on the Activation Date (as defined in Clause 3.5) or such other period stated in the SOW or otherwise agreed in writing by Cresco and Customer.
- APPLICATION OF THESE TERMS OF SERVICE
2.1. These Terms of Service set forth the terms and conditions applicable to Cresco's Services pursuant to each mutually agreed upon and executed SOW. The term "this Agreement" as used herein or in an SOW means collectively, these Terms of Service, each SOW, any Change Request (as defined in Clause 3.6) and any other guidelines and policies issued by Cresco from time to time (including the Cresco Basic Support Policy and the Cresco Security Policy). Each SOW executed by the parties must reference this Agreement and be made part of this Agreement and will form a separate agreement between Cresco and Customer such that the expiry or termination of any SOW will not affect the other then-current SOW executed by the parties. In the event of a conflict between any provision in these Terms of Service and any provision in an SOW and in the absence of any express agreement to the contrary, the conflict will be resolved in favour of the SOW if the SOW expressly states that it is intended to modify the conflicting provision in these Terms of Service.
2.2. To the extent that a Customer proposal, response to a request for a quotation or any similar Customer document ("Customer Proposal") is incorporated into any SOW (in whole or in part), notwithstanding language to the contrary, the Customer Proposal will only be used for purposes of describing the scope of Services thereunder and it will not modify any provision of this Agreement or the SOW.
2.3 Cresco reserves the right to amend, vary or supplement these Terms of Service, the Cresco Basic Support Policy and/or the Cresco Data Security Policy at any given point in time. Any such notice given by Cresco in accordance with this Agreement by posting on Cresco's website and/or in any other manner deemed appropriate by Cresco will constitute good and sufficient notice thereof to Customer and will be deemed to have been received by Customer in accordance with this Agreement.
- CRESCO OBLIGATIONS
3.1. Cresco will use commercially reasonable efforts to perform the Services as described in a mutually agreed and executed SOW, and to deliver any deliverables in accordance with agreed specifications as set out in the SOW ("Deliverables"). The manner and the means used by Cresco to perform the Services and to deliver the Deliverables, including the use of any subcontractors or agents, are in Cresco's sole discretion and control.
3.2. Cresco will use commercially reasonable efforts to meet the project schedules and time of performance of Services set out in an SOW. Customer hereby undertakes to cooperate in good faith to allow Cresco to achieve completion of the Services and any Deliverables in a timely and professional manner. Customer acknowledges that Cresco's delivery of the Services and any Deliverables may depend on completion of certain tasks by Customer or adherence to certain schedules by Customer, and consequently, the project schedules, time of performance and the Services may require adjustment or changes in the event such Customer tasks or schedules change, are modified, or are not completed as anticipated. Cresco will promptly notify the Customer if it becomes aware that the project schedules or time of performance will be so affected.
3.3. In collecting, processing, recording, storing, registering, disclosing, transferring and using Personal Data (as defined in Clause 4.1(c) below), and in maintaining records, Cresco will comply fully with all applicable laws and regulations.
3.4. Fees chargeable by Cresco under this Agreement are based on the Customer's completion of certain tasks or adherence to certain schedules as agreed in the applicable SOW. The customer acknowledges that if it does not complete such tasks or adhere to such schedules, Cresco is entitled, by written notice to Customer, to revise the Fees agreed in the applicable SOW and impose additional Fees. If the Customer does not agree to the additional Fees, then Cresco, without prejudice to its other rights and remedies, may suspend further performance of any obligations under this Agreement or terminate the applicable SOW.
3.5. After the date on which a Service or a Deliverable in an SOW is accepted by Customer ("Activation Date”), the Service will, under normal use and service, during the Warranty Period, substantially function in accordance with the specifications set out in the applicable SOW. If the Customer believes that a particular Service does not materially function in accordance with, or conform to, the specifications in the applicable SOW (an “Incident”), it must notify Cresco of such Incident and such notice must reach Cresco within the Warranty Period. As Customer’s sole remedy in respect of such Incident arising during the Warranty Period, Cresco will use reasonable endeavours to resolve the Incident. For the avoidance of doubt, Cresco has no obligation to resolve any Incident under this Clause that is notified to Cresco outside of the Warranty Period.
3.6. Customers have the right at any time to amend or vary an SOW by written notice to Cresco ("Change Request"). Cresco will evaluate the consequences of the Change Request including any increase or reduction in the Fees or any delay of delivery, and will immediately notify the Customer of such fact. Cresco is not obliged to, and will not, take action on the Change Request until all consequences have been approved by the Customer in writing.
- CUSTOMER OBLIGATIONS
4.1. General Obligations of Customer: Without limiting Cresco Data’s obligations under this Agreement, Customer acknowledges their obligation that:
(a) Customer will provide Cresco with full access to Customer’s premises, database, records, software, facilities and other resources, including access to applicable API keys and passwords, as are specified in the applicable SOW.
(b) Customer will provide all Product Data in the languages and the format(s) specified in the applicable SOW, including applicable tax rates and information relating to the products and services of Customer, for purposes of providing the Services, and ensure that all Product Data will at all times be complete, accurate, up-to-date and compliant with applicable law, and the use by Cresco of the Customer Materials will not infringe the Intellectual Property Rights of any other person.
(c) Customer will ensure that Product Data does not include any data, whether true or not, about an individual who can be identified from that data, or from that data and other information to which the organisation has or is likely to have access ("Personal Information"), and will ensure Cresco's collection, storage, processing, use and transfer of Personal Information will not breach or cause Cresco to breach the terms of Cresco Security Policy (which terms are deemed to be incorporated herein by reference and will be made part of this Agreement).
(d) Before making any changes to any information, detail or process that Customer has disclosed to Cresco (whether or not such change may affect the Services, including Account password changes, website upgrades, change in the platform or any other scheduled (non-emergency) changes to Customer's website), the Customer will notify Cresco of all and any such changes at least 30 days prior to the date any change is intended to take effect.
(e) Customer will be solely responsible for the goods and services that it offers for sale, including ensuring it has the right to sell all goods and/or services (which must not be counterfeit goods or otherwise infringe the copyright, trademark or other rights of third parties) and to use all Product Data, fulfilling all buyer orders, complying with its obligations to buyers (including by delivering all products and providing all services within the required time after Customer has received payment and providing buyer support in local languages), and the accounting and payment of all applicable taxes, levies and duties in connection with the sale, import, export and delivery of the products and services that it sells.
(f) Customer will not (and will procure that its directors, employees, agents and contractors will not) use any knowledge of the Cresco Data Platform and Cresco's business for their own benefit or the benefit of any other person or entity, or divulge to others such knowledge, or disparage Cresco or the Cresco Data Platform.
(g) In connection with its obligations under this Agreement, Customer will comply with applicable laws, including those governing the sale of goods and services, and those relating to anti-bribery and corruption (including the UK Bribery Act, the US Foreign Corrupt Practices Act and the Singapore Prevention of Corruption Act), and will have in place all policies and procedures needed to ensure compliance with such applicable laws.
(h) Customer will cooperate with Cresco in all matters relating to the Services, including signing all documents and doing all other acts which may be necessary to give full effect to this Agreement, and will punctually pay all Fees due and payable to Cresco under this Agreement.
(i) Customer will defend, indemnify and hold harmless Cresco and its Affiliates from any and all claims by any other party (including reasonable attorneys' fees and costs of litigation) resulting from Cresco’s use of the Customer Materials and Product Data provided by Customer in the manner contemplated under this Agreement; or any claims resulting from Customer's access to and use of the Cresco Data Platform in a manner that is inconsistent with or is otherwise not authorised by Cresco under this Agreement.
4.2. Publishing Destinations and Third Party Product Data Sources:
(a) Customer hereby authorises Cresco on Customer’s behalf to access the Publishing Destinations to retrieve and post information in the course of performing the Services.
(b) Customer is solely responsible for opening and maintaining in good standing all necessary Accounts with Publishing Destinations (including by paying all associated fees and expenses) and agreeing to and complying with all applicable requirements of and obligations imposed by such Publishing Destinations, regardless of whether Cresco has been provided with a limited agency power to agree to the terms on Customer’s behalf, as may be expressly stated in an SOW. Any fees and expenses payable to the Publishing Destinations will be payable by Customer directly to the relevant Publishing Destinations unless expressly stated otherwise in any SOW.
- PASSWORDS; SECURITY.
5.1. The Cresco Data Security Policy can be found here: https://crescodata.com/security-policy/
5.3. Customer, not Cresco Data, shall be solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and right to use all data and information that Customer and its Users input into the Cresco Data Platform or that are otherwise gathered by the Cresco Data Platform from Customer’s computer hardware, software, modems, routers and other communications equipment in the course of Customer and its Users use of the Cresco Data Platform (collectively, “Commerce Data ”). Cresco Data shall have the right to use Commerce Data (other than personally identifiable information) in individual or aggregate form (a) to the extent and in the manner required by applicable law or regulation, and (b) for purposes of data gathering for analysis and support services (c) product and service enhancement and (d) marketing; provided that Cresco Data shall not advertise, market or otherwise disclose to any third parties the name or logo of Customer, without the prior written approval of Customer.
5.4. Cresco Data will deploy reasonable security precautions intended to protect against unauthorised access to any Commerce Data and Product Data stored by Cresco Data in connection with Customer or its Users’ operation of the Cresco Data Platform. Cresco Data will exercise reasonable efforts to deploy corrections within the Cresco Data Platform for security breaches made known to Cresco Data.
5.5. Neither the Customer nor any Client may circumvent or otherwise interfere with any user authentication or security of the Cresco Data Platform. The customer will immediately notify Cresco Data of any breach, or attempted breach, of security known to the Customer.
5.6. Customer acknowledges that, notwithstanding the security precautions deployed by Cresco Data, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Cresco Data Platform and Commerce Data. Whilst Cresco Data cannot and does not guarantee the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet, Cresco Data will exercise reasonable commercial efforts to ensure data integrity and compliance with relevant security and privacy regulations (such as GDPR) where appropriate.
- ACCESS TO CRESCO DATA PLATFORM AND SUPPORT
6.1. Subject to Customer’s compliance with its obligations under this Agreement, including any conditions set out in the applicable SOW and payment of all applicable Fees, Cresco hereby grants to Customer a non-exclusive and non-transferable licence to access the Cresco Data Platform during the validity of this Agreement for the sole purpose of enabling the sale of the Customer’s products via the Publishing Destinations in the manner contemplated under this Agreement.
The customer acknowledges that its license to access and use the Cresco Data Platform under this Agreement is conditional upon its compliance with the following:
(a) Customer will be responsible for any activities carried out under Customer’s Account on the Cresco Data Platform.
(b) Customer will not access, store, distribute or transmit any viruses or any harmful or malicious code, or otherwise use the Cresco Data Platform or the Services in any way that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, or that facilitates illegal activity, or that is discriminatory, or that is otherwise illegal or causes damage or injury to any person or property, or that infringes the rights of any other person.
(c) Customer will not interfere with, restrict or limit the functionality or performance of the Cresco Data Platform or attempt to do so, or take any action that negatively affects Cresco’s ownership rights in and to the Cresco Data Platform.
(d) Customer will not place an unreasonable or disproportionately large load on the Cresco Data Platform, as determined by Cresco in its sole discretion (including by uploading a number of keywords and/or stock-keeping units in excess of the limits imposed by the applicable SOW).
(e) Customer will not attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, distribute, attempt to reverse compile, disassemble or reverse engineer all or any portion of the Cresco Data Platform.
(f) Customer will not access all or any part of the Cresco Data Platform in order to build a product or service which competes with the Services.
6.2. Customer further acknowledges that all rights (including Intellectual Property Rights), title and interest in and to the Cresco Data Platform belong to and remain the sole and exclusive property of Cresco. Cresco grants and Customer receives, no rights in and to the Cresco Data Platform by implication or otherwise, except those rights expressly granted in Clause 6.1. If Customer's access to and use of the Cresco Data Platform in the manner contemplated under this Agreement is found to infringe, or in Cresco’s opinion is likely to be found to infringe, any Intellectual Property Right of a third party, Cresco will, at its expense and option:
(a) obtain the right for Customer to continue to have access to and use of the Cresco Data Platform in the manner contemplated under this Agreement;
(b) modify Customer's access to and use of the Cresco Data Platform in the manner contemplated under this Agreement so that it becomes non-infringing; and
(c) if neither (a) or (b) is commercially feasible, terminate this Agreement and refund to Customer any pre-paid, but unused Fees.
6.3. Subject to Clause 6.4 below, Cresco will, at its expense defend a claim brought against Customer by a third party alleging that Customer's access to and use of the Cresco Data Platform in the manner contemplated under this Agreement infringes a patent, copyright or trademark registered (“Infringement Claim”) provided that Customer must notify Cresco promptly of any threatened or pending Infringement Claim and give Cresco reasonable assistance and information in the defence or settlement of the Infringement Claim. Cresco will have sole control over the defence and settlement of the Infringement Claim. The customer’s counsel will have the right to participate in the defence of the Infringement Claim, at the Customer’s own expense. Customer must not, without the prior written consent of Cresco, settle, compromise or consent to the entry of any judgment with respect to the pending or threatened Infringement Claim.
6.4. Cresco will have no obligation to Customer with respect to any Infringement Claim arising out of:
(a) any modification by Customer to its access to and use of the Cresco Data Platform that is unauthorised or not performed by Cresco and for which the Infringement Claim could have been avoided in the absence of such modification;
(b) any combination, operation, or use of Customer's access to and use of the Cresco Data Platform with any other tools or process and for which the Infringement Claim could have been avoided in the absence of such combination, operation, or use;
(c) any specifications that Customer provides to Cresco for any Services; or
(d) damages attributable to the value of the use of a Service or product provided by Cresco under this Agreement or any third party software.
- SUPPORT SERVICES
(a) Cresco offers, without additional cost to the Customer, "Basic Support" which is included in the monthly licensing fee
(c) Any support provided by Cresco under this Agreement is subject to these Terms of Service, and any guideline or policy issued by Cresco from time to time, including the Cresco Support Policy which is deemed incorporated herein by reference.
(c) Following the Activation Date, Cresco Data will use commercially reasonable efforts to provide the Support Services as per Cresco Support Policy.
(d) Customer shall designate a particular employee or support team of Customer (the “Designated Employee”) who will be trained and provided access to Cresco Data’s support team via email and help desk and will be responsible for reporting problems or issues with the Cresco Data Platform on behalf of Customer and its Merchants. Cresco Data will not provide Support Services to individual Merchants, and Users will be directed by the Customer to contact the Designated Employee or support team to report problems and issues with the Cresco Data Platform.
(e) The Support Services shall remain in effect on a year-to-year basis until terminated as part of the Termination of these Terms of Service to The Cresco Data Platform. Upon any termination, Cresco Data and the Customer shall have no further obligations hereunder with respect to the Support Services for the Cresco Data Platform.
8.1. Unless otherwise stated in the applicable SOW, the fees for the Services ("Fees") comprise (a) a Setup Fee and the fees for additional services, all of which are due and payable before work commences; (b) Monthly Licencing Fees which are payable monthly in advance through an automated payment facility (via credit card or GoCardless for Australia customers), or annually in advance via bank transfer due on the anniversary of The Activation Date (as more particularly specified in the applicable SOW); and (c) all other Fees which will be payable within 14 days from the date of Cresco’s invoice, pursuant to a signed Quote.
8.2. Unless Fees are expressly stated in any SOW to be fixed for any duration specified therein, the rate of the Fees invoiced by Cresco will be based on its prevailing price list for the Services which Cresco may change at any time. If there is any change in Cresco's prevailing price list for the Services, Cresco will notify the Customer, and if Customer does not agree to the said change, Customer may exercise its rights to terminate the applicable SOW or this Agreement in accordance with Clause 10.2.
8.3. All payments shall be made in US Dollars/SG dollars, or AU Dollars for Australian Customers, and paid in full on the date of Cresco's invoice without any set-off, counterclaim, deduction or withholding. The customer will be fully responsible and liable to pay any taxes in connection with its use of the Services and/or the Cresco Data Platform (excluding tax based upon Cresco's gross revenues or net income). If Customer is required to deduct or withhold any tax, Customer must pay the amount deducted or withheld as required by law and pay Cresco an additional amount so that Cresco receives payment in full as if there were no deduction or withholding.
8.4. If Customer is paying the Fees against Cresco's invoice, Customer must remit the full invoiced amount by electronic transfer to Cresco's bank account detailed in the applicable SOW or as notified by Cresco in writing to Customer from time to time, or by credit card (VISA/MasterCard). The customer will authorise Cresco to initiate a charge or debit entry to the Customer's designated credit card or bank account (as applicable) for the full amount of the Fees due and payable for the relevant Service on the payment due dates. The customer will sign all necessary forms with third parties as are necessary to ensure that such Fees will be punctually paid in full to Cresco. In case of payment by credit card, payment must be made from a payment source on which Customer (or its designated representative) is the named card holder.
8.5. Customer will keep its contact information, billing information and credit card information (where applicable) up-to-date, and maintain balances sufficient to pay all requested payments. Cresco will not be liable for any insufficient fund situation or charge, including finance charges, late fees or similar charges, caused by the Customer's failure to maintain funds sufficient to pay all payments issued through any recurring payment arrangement agreed with the Customer. In the case of suspected or fraudulent payment, including use of stolen credentials by anyone or any other fraudulent activity, Cresco reserves the right to suspend all Services and is entitled to inform any relevant authorities or entities (including credit reference agencies) of any payment fraud or other unlawful activity, and may employ collection services to recover payments. Any failure by Customer to honour charges or requests for payment may also result in immediate suspension of the affected Services and/or termination of the applicable SOW.
8.6. All payment obligations are non-cancellable and all amounts paid are non-refundable unless otherwise agreed in writing by Cresco (in which case all charges incurred by Cresco for refund must be at the Customer's expense).
8.7. Late payment of any Fees due and owing under this Agreement will, without prejudice to Cresco's other rights and remedies, result in Cresco being entitled at its sole discretion to suspend the Services and/or access to the Cresco Data Platform, and charge interest at the rate of 1.5% per month to all invoices not paid on time.
9.1. Each party (“Recipient”) undertakes to the other party (“Disclosing Party”) to treat as confidential all information, in any medium or format, which the Recipient receives from the Disclosing Party, either directly or from any other person, which concerns the business, operations, customers or suppliers of the Disclosing Party and which is marked as confidential; identified in advance of disclosure by the Disclosing Party as being confidential; or ought reasonably to be understood by the Recipient to be confidential (“Confidential Information”) but will not include (a) any information which is in or subsequently enters the public domain other than as a result of a breach of this Clause 9; (b) has been or is subsequently received by the Recipient from a third party which is under no confidentiality obligation in respect of that information; (c) has been or is subsequently independently developed by the Recipient without use of the Disclosing Party’s Confidential Information; or (d) was previously known to the Recipient free of any obligation to keep it confidential. The terms and conditions of this Agreement will constitute Confidential Information of each party. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Disclosing Party to its employees, consultants and advisors on a need-to-know basis, or where the Recipient is required to do so by applicable law or by any competent regulatory authority. This Clause 9 will remain in full force and effect notwithstanding the termination of any SOW or this Agreement.
- DISCLAIMER AND LIMITATION OF LIABILITY
10.1. Cresco will not be liable to Customer for any delay or non-performance of its obligations under this Agreement to the extent that it arises directly from any cause or causes beyond its reasonable control, or for any error, act or omission of Customer, its agents, subcontractors, consultants or employees, including a failure to provide the required Product Data, to establish or operate the necessary Publishing Destination Accounts, or to provide complete and accurate information. If and to the extent that Cresco’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer, its agents, subcontractors, consultants or employees, including a failure to provide the required Product Data or to establish or operate the necessary Publishing Destination Accounts, then (without prejudice to Cresco’s other rights and remedies) such failure or delay in performance on the part of Cresco will not constitute a breach of this Agreement and Cresco will not be liable for any costs, charges or losses sustained or incurred by Customer that arise from such failure or delay.
10.2. The Services will involve the transmission of Customer Material over networks that are not owned, operated or controlled by Cresco. Cresco is not responsible for any Customer Material lost, altered, intercepted or stored across such networks.
10.3. Subject to Clause 10.4 and to the maximum extent permitted by applicable law, the Services and the Cresco Data Platform are provided “as is” and “as available” and save for the warranties and remedies in this Agreement, Cresco makes no warranties, and specifically excludes all other warranties and remedies, whether in writing, oral, express, implied or statutory, with respect to the Services or the Cresco Data Platform, including any warranties of (a) merchantability, satisfactory quality or fitness for a particular purpose, (b) that the Services or the Cresco Data Platform will be uninterrupted, defect-free or error-free, (c) as to the accuracy, timeliness, truthfulness, completeness or reliability of any content obtained from any Publishing Destination or third-party interface, or (d) any warranties that the Services will generate any particular level of sales, revenues or exposure for Customer.
10.4. In no event will Cresco be liable to Customer or any other party for (a) any direct or indirect loss of use, revenue, actual or anticipated profits, business or goodwill resulting directly or indirectly from Customer's use of, or its inability to use, the Services and the Cresco Data Platform; and (b) any special, incidental or consequential damages of any nature, that may arise from any breach of warranty or condition or under any legal theory, whether in contract, tort (including negligence), breach of statutory duty or otherwise. Customer's sole and exclusive remedy for any cause of action whether in contract, tort (including negligence), breach of statutory duty or otherwise is a claim for damages which in no event will exceed USD10,000 or the Fees received by Cresco from Customer under this Agreement, whichever is the lower.
10.5. No action arising out of this Agreement, regardless of the form of action, may be brought by the Customer more than 12 months after the action accrued.
10.6. Nothing in this Agreement seeks to or will limit or exclude liability for death or personal injury caused by negligence, fraud or for any other type of liability that cannot be limited or excluded under applicable law.
- TERM AND TERMINATION
11.1. Each SOW, incorporating the terms hereof, will take effect when it is signed by Cresco and Customer and unless otherwise terminated in accordance with Clause 11.2, will continue thereafter for an initial term of 12 months ("Initial Term"). On expiry of the Initial Term and unless otherwise terminated in accordance with Clause 11.2, each SOW will automatically renew for successive terms of 12 months each (each, a "Renewal Term"). Each Renewal Term will be subject to this Agreement, except that the Fees that Cresco is entitled to charge for the Services rendered during the Renewal Term will be based on its then prevailing price list.
(a) Either party may terminate a SOW or this Agreement by providing to the other party at least 90 days’ written notice prior to the expiry of the Initial Term or Renewal Term (as the case may be) but if there is any SOW not yet completed at the date of such notice, this Agreement will only terminate upon completion of the final SOW by Cresco on the terms of that SOW.
(b) Either party may immediately terminate this Agreement (and any incomplete SOW) if the other party (a) becomes, threatens or resolves to become insolvent; or (b) ceases or threatens to cease conducting business in the normal manner.
(c) Either party may immediately terminate this Agreement if the other party breaches this Agreement or any applicable SOW and the breach has not been remedied within 30 days after receipt of the written notice of the breach.
11.2. Upon expiration or termination of an SOW or this Agreement:
(a) an invoice will be sent for the remainder of the SOW to be paid as per the payment terms in clause 8.1. All Fees payable to Cresco will, notwithstanding any provision in this Agreement, become due immediately and payable in full, and Customer will pay Cresco all Fees relating to the Services performed by Cresco prior to and including the date of termination, as well as any additional costs or expenses which Cresco has incurred or contracted for with respect to the Services and is unable to avoid; and
(b) all rights granted hereunder by Cresco to Customer will automatically terminate, and any property of each party in possession of the other party will be returned.
(c) Termination of this Agreement will not discharge or otherwise affect any pre-termination obligations of either party under this Agreement at the time of termination or any provisions hereunder which are intended to survive the termination of this Agreement and/or necessary for the interpretation or enforcement of any rights under this Agreement.
All communications (including notices, consents, approvals, requests and demands) between the parties in connection with this Agreement must be via email to email@example.com or addressed to the respective party’s email as nominated and as set forth in the signature block below in the case of the Customer. Each party may update its contact details from time to time during the Term by providing email notice to the other party in accordance with this Section.
12.1. Customer may not assign, sublicense, transfer or otherwise dispose of any of its rights, or subcontract, transfer or otherwise dispose of any of its obligations under this Agreement without Cresco's prior written consent.
12.2. Customer consents to Cresco’s display of the name and personal testimonials of Customer and/or identification of Customer as a customer of Cresco on its website, through a press release issued by Cresco and in any other promotional materials. Cresco will provide the Customer with a reasonable opportunity to review and request a revision of, or changes to, such materials with respect to the use of, placement, depiction and context of the Customer's name and/or logo.
12.3. Customer may, with Cresco’s prior review and approval of a “mark-up” or draft, identify itself as a customer of Cresco on its website and other promotional materials used by Customer. The customer will provide Cresco with a reasonable opportunity to review and request a revision of, or changes to, such materials with respect to the use of, placement, depiction and context of Cresco name and/or logo.
12.4. This Agreement, as may be revised from time to time, constitutes the entire agreement and understanding of Cresco and Customer relating to the subject matter of this Agreement, and supersedes any previous agreement or understanding between the parties in relation to such subject matter.
12.5. Nothing in this Agreement will be deemed to constitute a partnership between Cresco and Customer, nor constitute either party as the agent of the other party for any purpose.
12.6. The rights of each party under this Agreement may be exercised as often as necessary, are cumulative and not exclusive of rights or remedies provided by law and may be waived only in writing and specifically. Delay in the exercise or non-exercise of any right is not a waiver of that right.
12.7. If any provision of this Agreement is found to be invalid or unenforceable then such invalidity or unenforceability will not affect the other provisions of this Agreement, which will remain in full force and effect.
12.8. A person who is not a party to this Agreement has no right to rely upon or enforce any term of this Agreement.
12.9. Each party represents and warrants to the other party that it has the power to execute and deliver this Agreement and to perform its obligations under it and has taken all action necessary to authorise execution and delivery and the performance of its obligations.
12.10. Any notice or other communication to be given under this Agreement will be via email to the Customer's designated email account. Any such notice or communication addressed and so despatched to Customer is deemed to have been received by Customer (a) in the case of despatch by e-mail immediately upon transmission by Cresco;
12.11. This Agreement is subject to, and is construed in accordance with, the laws of Singapore or Australia.
12.12. Customer and Cresco agree that all claims and disputes relating to or arising from this Agreement, including any question regarding the existence, validity or termination of this Agreement or any SOW, will be resolved:
(a) by referring such dispute to the Small Claims Tribunal, if the dispute falls within the jurisdiction of the Small Claims Tribunal;
(b) if Cresco and Customer so agree, by jointly referring such dispute for final resolution by arbitration at the Singapore International Arbitration Centre ("SIAC") in accordance with SIAC's arbitration rules (“Rules”) for the time being in force, which Rules are deemed to be incorporated by reference into this Clause except as such Rules conflict with the provisions of this Clause, in which event the provisions of this Clause will prevail. The arbitration panel will comprise a single arbitrator to be nominated jointly by Cresco and Customer, or failing such joint nomination, by the Chairman for the time being of the SIAC. The language to be used and all written documents provided in any such arbitration will be in English. Nothing in this Clause precludes Cresco from applying for urgent interlocutory relief from any court of competent jurisdiction. Customer agrees that any arbitration award made pursuant to arbitration commenced pursuant to this Clause may be enforced by Cresco against assets of Customer wherever those assets are located or may be found, and a judgement upon any such arbitration award may be entered into by any court of competent jurisdiction thereof and for this purpose, Customer expressly submits to the jurisdiction of any such court; and
(c) by referring such dispute to any court of competent jurisdiction and, for this purpose, Customer hereby submits to the non-exclusive jurisdiction of the Courts of Singapore with respect to any and all claims and disputes between Cresco and Customer relating to or arising from this Agreement or any SOW provided that Customer will not without Cresco's prior written consent commence or prosecute any action or proceeding in any jurisdiction outside Singapore with respect to any such claim or dispute.
(d) Without prejudice to Cresco’s right to serve process in any other manner permitted by law, Cresco may effect service on Customer of any writ, summons or other process by sending it by way of registered post to Customer’s last known address which will be deemed validly served on Customer in the case of personal service, immediately and in the case of service by post, (a) to any address in Singapore, 2 days after it was posted by Cresco or (b) to any address outside Singapore, 14 days after it was posted by Cresco.
12.13. Each party agrees that, during the term of this Agreement, and for a period of one (1) year following the termination of this Agreement, it will not directly solicit for employment the employees of the other party without such other party’s prior written consent.