This End User License Subscription Agreement (“Agreement”) is made and entered into as of the date of electronic acceptance (“Effective Date”). This Agreement constitutes a binding agreement between Aventis Technologies Pte. Ltd. (“Aventis,” “we,” or “our”), a company incorporated in the Republic of Singapore and having its principal place of business at 2 Venture Drive, #13-26, Vision Exchange, Singapore 608526, and [End User legal name], a company incorporated under the laws of [●], having its registered office at [●] (“End User”).
Aventis and the End User are each referred to as a “Party” and together as the “Parties.”
IMPORTANT! PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCEPTING THIS AGREEMENT, THE END USER ACKNOWLEDGES THAT IT HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT. THE END USER’S ACCESS TO AND USE OF THE PRODUCT IS EXPRESSLY CONDITIONED UPON SUCH ACCEPTANCE. IF THE END USER DOES NOT AGREE TO ANY PART OF THIS AGREEMENT, IT MUST NOT ACCESS OR USE THE PRODUCT.
1.1“Affiliate” means, in relation to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with that Party, where “control” means the ownership of more than 50% of the voting securities of an entity or the power to direct its management and policies.
1.2“Aventis Technology” means technology owned by Aventis or licensed to Aventis by a third party (including the Products and Services, Reports, the decisioning engine, rules and arbitration logic, models in trained and untrained form including architectures and weights, software in source and object forms, user interface designs, architecture, toolkits, plug-ins, connectors, all Customisations and Integrations built under Clause 5, objects and Documentation, network designs, processes, know-how, methodologies, trade secrets, and any related intellectual property rights throughout the world), as well as any modifications or extensions of the above, whenever or wherever developed.
1.3“Business Day” means a day (other than a Saturday, Sunday, or public holiday) on which banks are open for general business in Singapore.
1.4“Confidential Information” means non-public information disclosed by one Party to the other that is designated as confidential or that ought reasonably to be understood as confidential given its nature, including the Aventis Technology, Aventis’s pricing and security architecture, and, for the End User, its business strategy, pricing methodology, and offer economics.
1.5“Claim” means a claim, action, complaint or regulatory, administrative or judicial proceeding filed against a party.
1.6“Cloud Services” means the On-demand and Managed Services.
1.7“Computer” means a virtual or physical device for storing or processing data, such as servers, desktop computers, laptops, mobile devices and hardware products. Where a device contains more than one virtual environment, each virtual environment will be counted as a separate Computer.
1.8“Customer Affiliate” means an entity that controls, is controlled by, or is under common control with Customer.
1.9“Customer Data” means (1) any information or (2) any material that is imported into the Cloud Services by or on behalf of Customer, from Customer’s internal data stores or other third-party data providers, or is collected via the Distributed Code, in connection with Customer’s use of the Products and Services, including Subscriber Personal Data, decision logs, offer catalogues and campaign configuration. For the avoidance of doubt, Customer Data does not include Aggregated Data, Anonymised Data, or Product Usage Data.
1.10“Customisation and Integration” have the meanings given to them in Clause 5.
1.11“Customer Profile” means a unique addressable subscriber or customer record or MSISDN held in the Prezio profile store.
1.12“Decision” means a single evaluation by the decisioning engine of a Customer Profile against one or more eligibility, prioritisation or arbitration rules, returning an outcome.
1.13“Distributed Code” means SDKs, APIs, connectors, agents, object code, plug-ins or other code provided by Aventis for Customer to deploy and as required for use of the applicable Cloud Services.
1.14“Documentation” means the applicable technical specification and usage documentation for the Products and Services as such materials are made generally available by Aventis, and in which references to “Aventis” will mean Aventis (except when relating to (a) the proprietary nature of the Products and Services, and (b) Aventis’s servers or data processing role).
1.15“DPA” means Republic Act No. 10173 (Data Privacy Act of 2012) of the Republic of the Philippines, its Implementing Rules and Regulations, and all circulars, advisories and issuances of the National Privacy Commission (“NPC”), each as amended.
1.16“Effective Date” means the effective date stated in the Order Form.
1.17“Managed Services” means the technology services hosted by or on behalf of Aventis and provided to Customer as a dedicated instance, as set out in the Statement of Work (SOW).
1.18“Order Form” means an order form executed by Aventis and the End User setting out the applicable Product, Services, Subscription Term, fees and other applicable commercial terms.
1.19“On-demand Services” means the technology services hosted by or on behalf of Aventis and provided to Customer as a shared instance, as set out in the Order Form.
1.20“On-premise Software” means the Aventis software that is deployed by or on behalf of Customer on hardware designated by Customer, as set out in the Order Form.
1.21“Services” means the professional, implementation, configuration, customisation, integration, technical support, maintenance and other services provided by Aventis to the End User, as set out in the applicable order form or Statement of Work.
1.22“Product Specific Licensing Terms” or “PSLT” means the Product Specific Licensing Terms document published by Aventis that describes the additional licensing terms for specific Products and Services.
1.23“Professional Services” means any consulting, training, implementation, configuration or technical services provided by Aventis to Customer, as set out in the Statement of Work (SOW).
1.24“Product” means Aventis’s Prezio, a dynamic-pricing and customer-personalisation software product, licensed to the End User as an off-the-shelf software solution and provided, as applicable, through on-premise deployment, cloud-based deployment or deployment in the End User’s designated environment, and configured, customised and integrated by Aventis, as applicable, for the End User’s specific environment.
1.25“Report” means any graphical or numerical display of Customer Data that contains Aventis’s proprietary design, look and feel, and is generated by the Cloud Services.
1.26“Statement of Work” or “SOW” means a document, signed by both Parties, setting out the scope of a Customisation and Integration, or other professional services, and any associated fees, timeline, and acceptance criteria.
1.27“Sensitive Personal Data” means Sensitive Personal Information as defined in Section 3(l) of the DPA, together with an individual’s financial account information, biometric data (for purposes of uniquely identifying an individual), medical or health information protected under any health data protection laws, government-issued identifiers (including those collected under Republic Act No. 11934), personal information of children protected under any child protection laws, and any additional types of information included within this term or any similar term as used in applicable data protection or privacy laws.
1.28“Subscriber Personal Data” means Personal Information and Sensitive Personal Information under the DPA relating to Customer’s subscribers and prospective subscribers, processed within the Products and Services.
1.29“Subscription Term” means the period during which the End User is authorised to access and use the Product, as specified in the applicable Order Form, unless earlier terminated or expired in accordance with this Agreement.
1.30“User” means an individual (either an employee, contractor or temporary worker of Customer or a Customer Affiliate) who may use or access the Products and Services on behalf of Customer under a unique credential.
2.1This Agreement is a direct agreement between Aventis and the End User. It is not intended, and must not be construed, to create any partnership, joint venture, agency, or employment relationship between the Parties. Aventis and the End User each act as independent contractors, and neither Party has authority to bind the other or to incur any obligation on the other’s behalf, except as expressly stated in this Agreement.
2.2This Agreement, together with the Order Form and any Statement of Work, sets out the complete terms on which Aventis licenses the Product to the End User. No reseller, distributor, or other intermediary is party to, or has any rights or obligations under, this Agreement; Aventis contracts with, and is directly responsible to, the End User under the terms set out in this Agreement.
3.1On-premise Software is deemed to be delivered and accepted by Customer on the earlier of the date the On-premise Software is made available for electronic download or physical shipment, if applicable. Cloud Services are deemed to be delivered and accepted by Customer on the Subscription Term start date. In the event Customer is given access to the Products and Services prior to the Subscription Term start date, such access is granted solely for implementation and testing purposes.
3.2Account and Administration. Access to the Product is provided through User accounts issued by Aventis or provisioned by the End User’s designated administrator(s). The End User is responsible for ensuring that account information provided to Aventis is accurate, complete, and kept up to date. The End User is responsible for maintaining the confidentiality of all User login credentials and for all activities that occur under those credentials, save to the extent such activities result from Aventis’s own breach of this Agreement or negligence. The End User must notify Aventis promptly if it becomes aware of any unauthorised access to, or use of, a User account or the Product. Aventis may suspend or deactivate a User account where the End User requests it, where the relevant individual ceases to be an employee, contractor, or temporary worker of the End User or its Affiliate, or where Aventis reasonably believes the account is being used in breach of this Agreement.
4.1License Grant for Cloud Services. Subject to the terms and conditions of this Agreement, Aventis grants End User, for its direct beneficial business purposes, during the Subscription Term, a non-transferable, non-exclusive license to:
Unless otherwise specifically limited in the Order Form, user login IDs and passwords will be provided to End User in a quantity mutually agreed upon by the Parties.
4.2License Grant for On-premise Software. Subject to the terms and conditions of this Agreement, Aventis grants End User, for its direct beneficial business purposes, during the Subscription Term, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to:
4.3This licence is granted for the End User’s own consumption and internal use of the Product only. Aventis retains ownership of the Product or Services and the Aventis Technology at all times, and nothing in this Agreement transfers any ownership interest in them to the End User. The relationship between the Parties in this respect is analogous to that of a lessor and a lessee of the equipment. The End User is permitted to operate and derive the benefit of the Product or Services for so long as this Agreement remains in force, but does not thereby acquire any proprietary interest in the Product or Services, and may not deal with the Product as though it were the End User’s own property. The End User may use the outputs, scores, recommendations, and Reports generated by the Product in the ordinary conduct of its own business, including to inform its own marketing, retention, and pricing decisions. This right is personal to the End User and does not extend to making the Product, or any output of the Product, available to any third party as a stand-alone product, service, or data feed. Except for the licence expressly granted in this Clause 4, Aventis and its licensors reserve all rights in and to the Product and the Aventis Technology. For the avoidance of doubt, the End User’s right to use such outputs does not grant any right to access, extract, reproduce, reverse engineer, train upon, commercialise, or otherwise exploit any underlying model, algorithm, methodology, source code, model weights, or other Aventis Technology used to generate such outputs.
4.4Entitlements. End User’s use will not exceed the Customer Profile ceiling or the monthly Decision ceiling set out in the Order Form. Aventis will notify End User when usage exceeds 85% of either ceiling in any month. Sustained excess over three consecutive months entitles Aventis to invoice overage at the rates set out in the Order Form. Neither Aventis nor End User will throttle, degrade, or suspend the Products and Services for entitlement overage alone without 30 days’ prior written notice and a reasonable opportunity to true up.
4.5License Conditions. Except to the extent expressly permitted under this Agreement, End User agrees, as a condition of the licenses, that it must not:
Aventis and its licensors reserve all other rights not expressly granted in this Agreement.
4.6Third-Party Providers. End User is responsible for complying with any applicable terms and conditions of any third-party data, products, services and platforms used by End User in conjunction with the Products and Services. End User acknowledges that at End User’s request and on End User’s instruction, Aventis may send Customer Data to such third-party providers, and that End User is responsible for establishing a lawful basis for that transmission.
4.7Regional Service Limitations. Unless otherwise specifically authorized in the Order Form, the Products and Services are licensed for use in the Republic of the Philippines only. Customer is not permitted to use, or allow its Users to use, the Products and Services in any territory, or to make them available to any person, in breach of applicable export control or economic sanctions laws of the Republic of the Philippines, the Republic of Singapore, the United States, the United Kingdom, the European Union or the United Nations. The End User shall be responsible for ensuring that its use of the Product and Services, and any access thereto by its Users, complies with all applicable export control, trade and economic sanctions laws.
4.8Free Versions. Aventis may provide, at no additional cost, access to Aventis software or services hosted by or on behalf of Aventis and provided to End User as a shared instance (“Free Versions”). At its option, End User may use the Free Versions, subject to the terms of this Agreement.
4.9Third Party Beneficiary. Aventis shall be deemed an express third-party beneficiary of all rights to enforce the licenses to the Aventis Technology granted under this Agreement and shall have the right to enforce any terms of this Agreement directly against the End User to protect its intellectual property rights, including sections 4.4, 5, 6 and the Data Processing Terms.
5.1The Product is provided by Aventis as a standard, off-the-shelf software product which Aventis then configures, and where agreed, adapts, so that it operates correctly with the End User’s own technology environment. Where set out in an Order Form or a separate statement of work (a “Statement of Work”), Aventis will: (a) build the connectors and integrations needed to connect the Product with the End User’s existing systems, which may include marketing-technology, CRM, or data platforms (each, an “Integration”); and (b) make configuration changes, rule sets, or workflows requested by the End User (each, a “Customisation”).
5.2The Parties acknowledge that the underlying Product remains a standard Aventis offering, and that Customisations and Integrations are adaptations of that standard offering to the End User’s particular environment, in the same way that a tailor may alter a ready-made garment to fit an individual customer without thereby changing the ownership of the garment’s underlying design. Accordingly, as between the Parties, Aventis owns all right, title, and interest in and to every Customisation and Integration, as part of the Aventis Technology, regardless of the fact that it is built to the End User’s specifications or is unique to the End User’s environment. The End User does not acquire any ownership interest in any Customisation or Integration.
5.3Nothing in this Clause 5 gives Aventis any right, title, or interest in the End User’s own systems, infrastructure, underlying data, or business processes, pricing strategy, or offer economics, all of which remain the sole property of the End User. Where the End User provides Aventis with materials, requirements, or feedback in connection with a Customisation or Integration, the End User grants Aventis a non-exclusive, perpetual, irrevocable, royalty-free licence to use those materials, requirements, and feedback to build, operate, maintain, and improve the Product generally, without disclosing the End User’s Confidential Information or using its Customer Data other than as permitted under Clause 10.
5.4The End User will provide Aventis with reasonable, timely co-operation, access, and information needed to perform any Customisation or Integration work; a delay caused by the End User’s failure to do so does not put Aventis in breach.
5.5Acceptance Testing. Where a Customisation, Integration, or other Services deliverable is being built under a Statement of Work, Aventis will make the configured Product or deliverable available to the End User for acceptance testing in accordance with the acceptance criteria and timeline set out in that Statement of Work. The End User must identify, in a written notice to Aventis specifying the material non-conformity in reasonable detail, any material non-conformity within 10 Business Days of the deliverable being made available for testing (the “Acceptance Period”). If no such written rejection is received within the Acceptance Period, the deliverable is deemed accepted.
5.6Change requests and additional services. Any End User request for a new Customisation, Integration, or other change beyond the scope of the then-current Order Form or Statement of Work will be evaluated by Aventis and, if agreed, documented in a new or amended Statement of Work specifying the additional scope, fees, and timeline. No additional work is binding on Aventis until the corresponding Statement of Work is signed by both Parties, and fees for it are additional to the subscription fees.
6.1Outsourcing and Third-Party Access. End User may allow a third-party contractor to operate, use or access the Products and Services solely on End User’s behalf, provided such use or access is only for End User’s direct beneficial business purposes. End User is responsible for ensuring that any third party operating, using or accessing the Products and Services on End User’s behalf complies with the terms of this Agreement, and Aventis, or Aventis’s third-party provider of Products and Services, has the right to enforce this Agreement directly against such person or entity. End User is responsible and liable for the acts or omissions of such third party as if they were End User’s acts or omissions.
6.2End User Affiliates. End User may permit End User Affiliates to use the Products and Services as Users, provided that their usage counts toward End User’s entitlements and End User remains responsible and liable for their acts and omissions as if they were End User’s own. Use by any entity that is not an End User’s Affiliate requires Aventis’s prior written consent.
7.1Except as expressly and specifically set out in this Agreement, the Product, Documentation, Customisations, Integrations, Reports, outputs, recommendations, scores and other results generated through or in connection with the Product are provided on an “AS IS” and “AS AVAILABLE” basis. To the maximum extent permitted by applicable law, Aventis disclaims all representations, warranties, conditions and guarantees, whether express, implied, statutory or otherwise, including any warranties or conditions of merchantability, satisfactory quality, fitness for a particular purpose, accuracy, completeness, non-infringement, uninterrupted availability or error-free operation.
7.2Aventis does not warrant or represent that the Product and Services will be uninterrupted, error-free, secure, complete or available at all times, or that all defects, bugs, vulnerabilities or performance deficiencies will be identified or corrected. Except as expressly provided in this Agreement, Aventis shall have no liability for any failure, interruption, delay, error, defect or performance deficiency in the Product and Services.
7.3The Product and Services may incorporate or interoperate with third-party software, open-source software, libraries, APIs, cloud services or other third-party components (“Third-Party Components”), which may be subject to separate licence terms. To the maximum extent permitted by applicable law, Aventis makes no representation or warranty regarding the performance, availability, security, functionality or continued availability of any Third-Party Component and shall not be liable for any failure, interruption, defect, vulnerability, loss or damage arising from or attributable to any Third-Party Component, except to the extent directly caused by Aventis’s wilful misconduct or breach of its express obligations under this Agreement.
7.4The End User acknowledges that the Product and Services are a technology and decision-support solution and that any pricing recommendations, customer segments, scores, predictions, offers, reports, analytics or other outputs generated by the Product and Services are based on the data, parameters, configurations and models available to the Product and Services. Aventis does not warrant or guarantee the accuracy, completeness or suitability of such outputs or any particular commercial, financial, revenue, customer-retention, conversion or other business outcome. The End User remains solely responsible for reviewing, validating and making all business, pricing, marketing, customer-retention and other commercial decisions based on or in connection with the Product and Services or its outputs.
7.5The End User is solely responsible for the accuracy, quality, legality, integrity and completeness of all Customer Data and for obtaining and maintaining all rights, permissions, consents and lawful bases necessary for Aventis to access, process and use such Customer Data in accordance with this Agreement. Aventis shall not be responsible for any loss, damage or adverse outcome resulting from inaccurate, incomplete, unlawful or improperly supplied Customer Data.
7.6Aventis does not warrant that the Product and Services will be free from all security vulnerabilities, malware or other security risks, or that the Product and Services will prevent all unauthorised access to the End User’s systems, networks or data. The End User remains responsible for maintaining appropriate security controls within its own systems and infrastructure, including its cloud environment, networks, credentials, access controls, firewalls and other security measures.
7.7The End User is solely responsible for ensuring that its use of the Product and Services, including its use of any outputs or recommendations generated by the Product and Services, complies with all applicable laws, regulatory requirements and industry-specific requirements applicable to its business. Aventis shall not be liable for any claim, loss, penalty, fine, liability or expense arising from the End User’s unlawful, unauthorised or non-compliant use of the Product and Services.
7.8Except as expressly agreed otherwise in the applicable Order Form or Statement of Work, Aventis does not undertake to provide any particular level of support, maintenance, updates, upgrades, enhancements, fixes or new functionality. Where any support, maintenance or service levels are agreed, such services shall be governed exclusively by the applicable Order Form, Statement of Work or Service Level Schedule.
7.9Aventis may modify, enhance, update, replace or discontinue particular features or components of the Product and Services from time to time, provided that Aventis shall not materially reduce the core functionality of the Product and Services during the applicable Subscription Term, except where such modification is reasonably necessary for security, legal, regulatory, technological or operational reasons.
7.10The End User acknowledges that the Product and Services may depend upon the End User’s infrastructure and third-party services, including AWS, Databricks, telecommunications networks, APIs, connectivity services and other systems outside Aventis’s direct control (“Third-Party Services”). Aventis does not warrant uninterrupted availability of the Product and Services to the extent any failure, delay, degradation or unavailability results from the End User’s infrastructure or any Third-Party Service, and Aventis shall not be liable for any resulting loss, damage or interruption, except to the extent directly caused by Aventis’s breach of its express obligations under this Agreement.
7.11Nothing in this Clause 7 shall limit or exclude any warranty, representation, condition or liability that cannot lawfully be excluded or limited under applicable law.
The End User represents and warrants that:
9.1The End User’s right to use the Product is granted on a subscription basis, for the Subscription Term set out in the Order Form, and not on a perpetual basis.
9.2The End User will pay the subscription fees and any usage-based fees set out in the Order Form, payable annually in advance, exclusive of applicable taxes, and non-refundable except as this Agreement expressly provides. Fees for any Statement of Work under Clause 5.6 are additional to the subscription fees. All payments will be made without set-off, counterclaim, deduction, or withholding, except as required by applicable law.
9.3Aventis will invoice in accordance with the Order Form. The End User will pay each undisputed invoice within 30 days, or notify Aventis of a good-faith dispute within 15 days and pay the undisputed portion by its due date. A billing dispute over part of an invoice does not entitle the End User to withhold the undisputed balance.
9.4Overdue amounts accrue interest at 1.5% per month (or the maximum rate permitted by law). Aventis may suspend access for amounts overdue more than 30 days, on 14 days’ prior notice.
9.5Aventis may increase fees on renewal on no less than 90 days’ prior written notice; if the End User does not agree, it may elect not to renew.
10.1Ownership. End User owns (or where applicable, must ensure it has a valid license to) the Customer Data. Aventis does not acquire any right, title or interest in the Customer Data other than the limited rights expressly granted under this Agreement and the Data Processing Terms.
10.2Permitted Use. End User agrees that Aventis and its Affiliates may use, copy, transmit, store, index and display Customer Data solely for one or more of the following: (1) to perform their obligations in relation to the Products and Services; (2) to provide support, security monitoring and incident response; and (3) to enforce their rights under this Agreement or to comply with applicable law.
Neither Aventis nor any subprocessor or third-party model provider will use Customer Data to train, fine-tune or improve any machine learning model made available to any party other than End User, except where End User has expressly opted in by signed change order.
Aventis may compile and use aggregated statistical and performance information relating to the operation of the Products and Services, provided that such information contains no Customer Data and no personal data, does not identify End User, its Affiliates or its subscribers, and is not published externally without End User’s prior written consent.
10.3Responsibility.
10.4Third-Party Infrastructure and Service Availability. The Product may be deployed within cloud infrastructure owned, operated, or licensed by the End User (including AWS, Databricks, or similar) (“End User Infrastructure”). The End User is solely responsible for procuring, licensing, and maintaining that infrastructure. Aventis will use commercially reasonable efforts to maintain the availability of the Product components within its direct control, with any specific uptime commitment set out in the Order Form or a service-level schedule. Aventis has no liability whatsoever for any unavailability, malfunction, or data loss caused by, or arising from, the End User Infrastructure or any third-party cloud, hosting, or connectivity provider outside Aventis’s direct operational control, and Aventis’s obligations are suspended for so long as such unavailability persists.
10.5Data Protection. The End User is the Personal Information Controller in respect of Subscriber Personal Data under the Philippines DPA, and Aventis is the Personal Information Processor to the extent Aventis processes such data on behalf of and on the documented instructions of the End User. The Data Processing Addendum forms part of this Agreement and sets out the Parties’ respective rights and obligations in relation to the processing of Subscriber Personal Data, including the applicable requirements under the Philippines DPA, its Implementing Rules and Regulations, and other applicable Data Protection Law.
10.6Where Aventis processes Subscriber Personal Data solely on the End User’s documented instructions and for the End User’s purposes, Aventis acts as a “data intermediary” under the Singapore PDPA and, to the extent permitted by applicable law, is subject to the obligations applicable to a data intermediary in respect of such processing, including the Protection Obligation and the Retention Limitation Obligation.
10.7Cross-Border Transfer. The Parties acknowledge that Subscriber Personal Data relating to individuals in the Philippines will be transferred to, and processed by, Aventis in Singapore. The End User, as the entity transferring such data outside the Philippines, is responsible for ensuring that the transfer complies with the cross-border transfer requirements of the Philippines DPA and applicable NPC issuances (including NPC Circular 16-01), and Aventis agrees to provide the End User with such information about its data protection practices as the End User reasonably requires to satisfy those requirements, including confirming that Aventis will process Subscriber Personal Data under this Agreement and the Data Processing Addendum in a manner consistent with the standard of protection required under the Philippines DPA. Aventis will comply with the Transfer Limitation Obligation under section 26 of the Singapore PDPA in respect of any onward transfer of Subscriber Personal Data outside Singapore.
10.8Usage Information. Aventis may develop, modify, improve, support, customize and operate its products and services based on information that it collects on Users’ interactions with the Products and Services. Such information does not include any Customer Data or any personal data.
10.9Claims. To the maximum extent permitted under applicable law, End User shall only raise Claims against Aventis. This section does not limit (a) any non-waivable statutory right of End User or of any data subject, (b) the powers or jurisdiction of the NPC or any other competent regulator, or (c) Aventis’s own obligations under the Data Processing Terms.
11.1For On-premise Software and Cloud Services deployed within an Aventis admin console, both Aventis and End User have access to data regarding usage (which, depending on the relevant Product and Service, may include number of Users, End User Profiles, Decisions, API calls, data limits, etc.) recorded by this console.
11.2Aventis will have the right, no more than once every 12 months, to use other means to verify that End User’s use, installation, and deployment of the Products and Services (or other Aventis Technology used in conjunction with the Products and Services) comply with the terms of this Agreement. For On-premise and Cloud Services, the verification will require End User to provide within 30 days of request (A) raw data from a software asset management tool of all On-premise Software and Distributed Code installed or deployed by or on behalf of End User; (B) all valid payment documentation for the On-premise Software and Cloud Services; and (C) any information reasonably requested by Aventis to determine End User’s use of the On-premise Software and Cloud Services.
11.3If the verification provided in accordance with section 11.2 above is not sufficient to demonstrate End User’s compliance, Aventis may conduct an on-site audit at End User’s relevant places of business upon 14 days’ prior notice, during regular business hours, and will not unreasonably interfere with End User’s business activities. Such verification may be conducted by an appointed independent third party, and will not extend to End User’s subscriber records beyond what is necessary to establish entitlement counts.
11.4If any verification shows End User is using the Products and Services (or other Aventis Technology used in conjunction with the Products and Services) (A) beyond the quantity that was legitimately licensed, or (B) in non-compliance with this Agreement, so that additional fees apply, without limiting Aventis’s rights at law or in equity, Aventis will invoice End User accordingly and End User must pay the additional fees within 30 days of invoice date. If use, deployment, or installation exceeds 5% of that which is permitted, End User must pay the reasonable costs of conducting the verification, in addition to paying the additional fees. Any information shared between the Parties during such verification is considered Confidential Information.
12.1License to Deliverables.
12.1.1Without limiting or modifying any license granted to End User for the Cloud Services, Aventis grants End User a non-exclusive, non-sublicensable, and non-transferable license to use the materials developed and provided to End User by Aventis in performing the Professional Services (“Deliverables”) solely in connection with use of the Products and Services for End User’s direct beneficial business purposes during the Subscription Term.
12.1.2Aventis retains all rights, title and interest (including intellectual property rights) in and to the Deliverables and the Aventis Technology. End User retains all right, title and interest in its own commercial know-how, offer economics, segmentation strategy, pricing logic and campaign design, and nothing in this section assigns any of the foregoing to Aventis. To the extent that End User participates in the creation or modification of any Aventis Technology or Deliverables, End User grants Aventis a perpetual, irrevocable, royalty-free license to use that contribution, provided that Aventis neither discloses End User’s Confidential Information nor uses any Customer Data in doing so.
12.2Employment Taxes and Obligations. As between Aventis and End User, Aventis is responsible for all taxes and any employment obligations arising from its employment of personnel and contractors to perform the Professional Services.
12.3Use of Subcontractors. End User agrees that Aventis may use subcontractors in the performance of the Professional Services. Where Aventis subcontracts any of its obligations concerning the Professional Services, Aventis will not be relieved of its obligations to End User under this Agreement. Any subcontractor with access to Subscriber Personal Data must be recorded in the Data Processing Terms.
13.1Term. This Agreement applies to each of the Products and Services from the effective date of the Order Form until the expiration of the applicable Subscription Term or the term for Professional Services, unless terminated earlier under this Agreement. If End User commits a material breach of this Agreement, Aventis may give written notice describing the nature and basis of the breach to End User. If the breach is not cured within 30 days of the notice date, Aventis may immediately terminate the Order Form, in whole or in part. Aventis may terminate the Order Form, in whole or in part, immediately upon written notice to End User, if required by law, or if End User breaches any provision of this Agreement.
13.2Effect of Termination or Expiration. Upon termination or expiration of this Agreement or any Subscription Term for the Products and Services:
13.3Survival. The termination or expiration of this Agreement will not affect any provisions of this Agreement which by their nature survive termination or expiration, including the provisions that deal with the following subject matters: definitions, payment obligations, confidentiality, term and termination, effect of termination, intellectual property ownership, permitted use, license compliance, data protection, privacy, usage information, the Data Processing Terms to the extent of continued retention, and the “General Provisions” section of this Agreement.
14.1The End User will indemnify, defend, and hold harmless Aventis, its Affiliates, and their officers, employees, and agents from and against any claims, losses, damages, liabilities, costs, and expenses (including reasonable legal fees) arising out of or in connection with: (a) any breach by the End User of Clause 4 (License and Restrictions) or Clause 5.2 (Customisation ownership); (b) any resale or unauthorised commercial exploitation of the Product and Services; (c) the End User’s Customer Data or its provision to Aventis; (d) the End User’s violation of applicable law, including in connection with its pricing or marketing decisions; and (e) infringement of a third party’s rights arising from materials supplied by the End User.
14.2Aventis will give the End User prompt written notice of any indemnified claim, control of its defence and settlement (provided no settlement admitting Aventis’s liability may be made without Aventis’s consent), and reasonable cooperation at the End User’s expense. This indemnity survives termination of this Agreement.
14.3Limitation of Liability. Nothing in this Agreement limits or excludes either Party’s liability for death or personal injury caused by negligence, fraud, or any liability that cannot be limited under applicable law. Neither Party will be liable to the other, whether in contract, tort, or otherwise, for any loss of revenue, profits, or anticipated savings, loss of business opportunity, loss of or damage to goodwill or reputation, business interruption, loss or corruption of data, cost of procuring substitute goods or services, any loss arising from the End User’s own pricing or marketing decisions, or any indirect, special, or consequential loss. Subject to this Clause, Aventis’s total aggregate liability arising out of or in connection with this Agreement will not exceed the fees actually paid by the End User to Aventis for the affected Product or Services under the applicable Order Form during the 12 months immediately preceding the event giving rise to the claim.
15.1Order Form Conflicts. Any terms or conditions in the Order Form or any other related documentation submitted by or on behalf of End User to Aventis that conflict with this Agreement do not form part of this Agreement and are void.
15.2Assignment. End User may not assign its rights under this Agreement without the prior written consent of Aventis if the assignment expands the scope of the licenses granted.
15.3Confidentiality. Each party will protect the other’s Confidential Information with no less than reasonable care and will not use or disclose it except as necessary in connection with the Products and Services. Confidential Information includes login credentials, security architecture, pricing, offer logic, segmentation strategy, subscriber analytics, product roadmap and the terms of the End User Order. These obligations continue for five years from disclosure, save that obligations in respect of Subscriber Personal Data, security architecture and source code continue indefinitely. Disclosure compelled by law, court order or a regulator is permitted provided prompt notice is given where lawful.
15.4Counterparts. This Agreement may be executed in counterparts, including electronically, each of which is an original.
15.5Notices. Any notice or communication under this Agreement shall be made in writing and sent by email to the contact details set out in the Order Form or signature page. Notices sent by email shall be deemed received 24 hours after transmission, provided no delivery failure notification is received.
15.6Governing Law. This Agreement is governed by the laws of the Republic of Singapore, excluding its conflict of laws rules and the United Nations Convention on Contracts for the International Sale of Goods. Any dispute will be finally resolved by arbitration administered by the Singapore International Arbitration Centre under the SIAC Rules, seat Singapore, before one arbitrator, in the English language. Either party may seek urgent injunctive or other interim relief from any court of competent jurisdiction. The choice of Singapore law does not displace the DPA or any other mandatory law of the Republic of the Philippines applicable to the processing of Subscriber Personal Data, or the jurisdiction of the NPC, and the Data Processing Terms will be construed and performed to give effect to the DPA.
15.7Electronic Execution and Delivery. A facsimile, electronic or other reproduction of this Agreement may be executed by one or more Parties hereto and delivered by such Party by facsimile or any similar electronic transmission device. Such execution and delivery shall be considered valid, binding and effective for all purposes.
15.8Entire Agreement. This Agreement, the Order Form, and any Statement of Work constitute the entire agreement between the Parties.
This Agreement is entered into by the Parties, or their duly authorised representatives, as of the Effective Date stated in the applicable Order Form. For a copy of this Agreement countersigned on behalf of Aventis, or for any questions about its terms, please contact legal@aventistechnology.com.