Master Product and Services Agreement (Hong Kong)
This Master Product and Services Agreement (“Agreement”) is entered by and between Yipit Company Limited, a limited liability company incorporated and existing under the law of Hong Kong Special Administrative Region (SAR) of the PRC (“Hong Kong SAR”) with its address at Unit 1901, 19/F, Cheung Kong Center 2 Queen's Road Central, Central, Hong Kong (“YipitData”) and the entity identified as Customer on the applicable Order Schedule (“Customer”), to provide the terms and conditions under which YipitData will provide any products and/or services to Customer (each, a “Product”) pursuant to one or more YipitData Product Pricing Schedules (attached to the relevant Order Schedule (“Order Schedule”), the “Pricing Schedule”) that specify the fees and other details of the products and/or services to be provided by YipitData.
1. Entire Agreement; Modification. This Agreement consists of this document, and all Order Schedules and Pricing Schedules to which the parties may agree in writing from time to time. If this document conflicts with any Order Schedule, this Agreement controls unless the Order Schedule expressly states that its term supersedes the conflicting term of this Agreement, in which case the Order Schedule term controls solely with respect to the Products purchased pursuant to such Order Schedule. This Agreement is the entire agreement of the parties and replaces all other understandings or agreements (whether oral or written) regarding the subject matter of this Agreement.
2. Data License. Subject to the terms and conditions of this Agreement, YipitData grants to Customer a non-exclusive, non-transferable license with respect to Products identified on the Order Schedules for its Authorized Users (defined in Customer’s applicable Order Schedule): (a) to make limited copies and excerpts from the Products for internal presentations and reports to be shared internally only with Authorized Users; and (b) to use the Products solely for lawful, internal purposes, for the benefit of Authorized Users and not for the benefit of a third party. Authorized Users must not reproduce or distribute Products or excerpts of Products externally without YipitData’s prior written consent.
3. Proprietary Rights; Feedback. Customer acknowledges that each Product, in whole or in part, remains at all times the property of YipitData and/or the third-party data owners from whom the data has been licensed, and Customer has no rights whatsoever in the Product, except as expressly provided in this Agreement. YipitData reserves to itself all rights, including intellectual property rights, in and to the Products not expressly granted to Customer under this Agreement. Customer and its Authorized Users agree that YipitData may freely use and incorporate into its Products, services, technologies, and other data Products, without liability or obligation to Customer or its Authorized Users, any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or its Authorized Users regarding any of the Products, including suggestions regarding the data to collect, the method to collect and analyze data, the data research and analysis to provide, and the format of the Products. Customer acknowledges and agrees that nothing in this Agreement prevents YipitData from providing Products or similar information to other customers of YipitData, and that YipitData may: (a) disclose a Product’s publication date to one or more Authorized Users, and/or other customers of YipitData or third parties, but not to all Authorized Users, other customers or third parties (including potentially the Authorized Users, as defined in this Agreement), and (b) provide certain Authorized Users access to YipitData’s analysts via telephone or email communication, without providing such access to all Authorized Users (including potentially the Authorized Users as defined in this Agreement). For the avoidance of doubt, YipitData is not obligated to provide such information, or access to its analysts, in any form to any particular Authorized User. YipitData will not provide notice to the Authorized Users of any arrangement whereby YipitData provides such information or access to another Authorized User, other customer or other third party.
4. Restrictions. Neither Customer nor its Authorized Users have any right to sell, license, display, transmit, publish or distribute in any manner the Product, in whole or in part, or any data contained therein, to any third party; thus, neither Customer nor its Authorized Users will provide the Product, in whole or in part, or any data contained therein, to any third party, or use the Product, in whole or in part, or any data contained therein, to build a database for resale or for access by a third party. Customer is restricted from sharing any Product with the sell-side research division of Customer, if applicable. In addition, Customer represents and warrants that there is a clear and well-defined separation between the Customer and the sell-side research division of Customer, if applicable. Further, except as expressly permitted herein, Customer and its Authorized Users will not, nor permit anyone else to: (a) publicly disseminate Product analysis relating to the Product except with YipitData’s prior written consent; (b) use the Product in violation of any applicable law; (c) interfere with or disrupt the integrity or performance of the Product or the systems or networks through which YipitData provides the Product; or (d) combine the Product with other data to create PII, or use, analyze, or otherwise process any Product to create PII; or (e) attempt to or actually re-identify any previously aggregated, deidentified, or anonymized data and will contractually prohibit downstream data recipients from attempting to or actually re-identifying such data. “Personally Identifiable Information” or “PII” means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer, device or household, including personal data as such term is defined by the Hong Kong Personal Data (Privacy) Ordinance, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (“EU GDPR”) and the EU GDPR as incorporated into the laws of the United Kingdom. Customer shall not directly or indirectly provide any Product to any person or entity (a) included on any list of sanctioned entities maintained by the United Nations, the United States, or the European Union; (b) owned or controlled by, or acting on behalf of, any such person or entity; or (c) organized, located or ordinarily resident in any country or territory subject to economic sanctions laws administered or enforced by the United States, the European Union or its member states, the United Nations, or Her Majesty’s Treasury.
5. Privacy. Customer acknowledges and agrees that in order to safeguard user privacy and PII, YipitData may need to redact, suppress or modify a portion of the following from any Product prior to delivery to Customer: certain transactions, certain data fields on some transactions and data from certain users. In addition, YipitData may take other commercially reasonable actions in connection with rendering services hereunder to safeguard user privacy and PII.
6. Security. Each party will use industry standard and, at a minimum, commercially reasonable efforts to safeguard all data relating to this Agreement and its performance, including without limitation any Product, from unauthorized or unlawful disclosure, use, or access or accidental loss, destruction, or damage. Each party represents and warrants that it has implemented administrative, technical, and physical safeguards to prevent the unauthorized or unlawful disclosure, access or accidental loss or damage of such information that are consistent with the safeguards used by companies in comparable businesses to protect sensitive data and valuable trade secrets. In the event a party experiences any unauthorized access to or disclosure or acquisition of data relating to this Agreement or any act or omission that materially compromises its security, confidentiality, or integrity, or receipt of a complaint in relation to the privacy and data security practices of each party, or a breach or alleged breach of this Agreement relating to such privacy and data security practices (a “Security Breach”), involving systems, technology or data exchanged between the parties hereunder, such party will (a) immediately notify the other party of the facts and circumstances of the Security Breach, and (b) work with the other party in good faith to take corrective action to stop and/or mitigate the Security Breach.
7. Product Subscription. At the start of each Authorized Product Term (as defined in the applicable Pricing Schedule), and any extension or renewal of such Authorized Product Term, YipitData will deliver a Pricing Schedule, detailing all Products currently subscribed to by Customer (“Current Subscribed Products”) pursuant to such applicable Order Schedule. Customer can add Products to their YipitData Product subscription (each an “Added Product”) at any time during the Authorized Product Term by providing YipitData with written notice, including via email (each, an “Added Product Request”). YipitData will deliver an updated Product Pricing Schedule via email following receipt of an Added Product Request from Customer confirming such Added Product has been added to Customer’s YipitData subscription, provided such Added Product can be delivered by YipitData to Customer under this Agreement and the applicable Order Schedule. For the avoidance of doubt, if there is any conflict between Pricing Schedules, the Pricing Schedule most recently received by Customer will control. The mix and content of specific Products may vary, and the availability of any specific Product at any given time is not guaranteed.
8. Payment Terms. Customer will pay all fees or charges pursuant to the Order Schedule. Unless otherwise provided in the applicable Order Schedule, fees for each Product are due in advance on a yearly basis. Except as otherwise provided in this Agreement or any Order Schedule, all fees are quoted and payable in Hong Kong dollars or United States dollars and are non-cancelable and non-refundable. Past due accounts are subject to suspension by YipitData and may be levied a finance charge of the lesser of (a) 1.5% per month or (b) the maximum permitted by law. Customer will reimburse YipitData for all costs and expenses attributable to any collection effort. Customer is responsible for all taxes and surcharges imposed on the Products and services provided pursuant to this Agreement, excluding taxes based on YipitData's income. Promptly upon termination of this Agreement and/or the Order Schedules, Customer will pay in full any balance due on Customer’s account.
9. Confidentiality. Customer and its Authorized Users will treat each Product and any information conveyed in connection therewith, the data and analysis contained in each Product, and the terms of this Agreement, as YipitData's confidential information, protecting it from unauthorized use or disclosure by exercising at least the same degree of care Customer and its Authorized Users use to protect its own similar information but in no event less than a reasonable degree of care. YipitData will treat the fact of Customer and its Authorized Users’ receipt of the Products from YipitData and all non-public information disclosed by Customer and its Authorized Users pursuant to this Agreement as Customer’s confidential information, protecting it from unauthorized use or disclosure by exercising at least the same degree of care YipitData uses to protect its own confidential information but in no event less than a reasonable degree of care. YipitData’s and Customer’s obligations do not apply to any information that: (1) is in the public domain at the time of its communication; (2) is independently developed; (3) enters the public domain through no fault of either party; or (4) is in either party’s possession free of any obligation of confidence when disclosed by the other party. In addition, this provision does not prohibit either party from disclosing the other party’s confidential information (a) in response to a court order or otherwise as required by law, provided that, if legally permissible, such party first provides the other party with reasonable prior notice and seeks, or provides the other party with an opportunity to seek, a protective order or confidential treatment of the confidential information; (b) for purposes of consultation with its attorneys and financial advisors; and (c) to enforce its rights in court. YipitData will not use Customer's name, either orally or in writing, for any marketing or promotional purposes. For the avoidance of doubt, YipitData and Customer and its Authorized Users agree that neither party owes any type of fiduciary duty to the other party.
10. Data Accuracy. The Product is provided on an "AS IS" and "AS AVAILABLE" basis. YipitData compiles, categorizes, and generates the Product in a variety of methods, using variable inputs, such that the Product is continually evolving. Data points, quality, format, and coverage may vary, as determined in YipitData's sole discretion, during the term of this Agreement. Any use or reliance upon the Product is at Customer’s and its Authorized Users’ own risk. YipitData does not verify the completeness, accuracy, or authenticity of the Product.
11. Investments. Customer and its Authorized Users acknowledge and agree that the information, methodologies and data that comprise the Products are provided for informational purposes only and (1) do not constitute investment advice; (2) cannot be interpreted as an offer or indication to buy or sell securities, to select a project or make any kind of business transactions; (3) do not represent an assessment of the economic performance, financial obligations or creditworthiness of any issuer of securities; and (4) are not a substitute for professional advice. Customer further acknowledges and understands that past performance is no guarantee of future results. Customer and its Authorized Users further agree that they will not disclose any information to YipitData in violation of any applicable law or regulation, including confidential or material non-public information with respect to any company or entity. Customer also agrees that Authorized Users will use the information provided in the Products only for purposes and in ways that are consistent with all applicable legal requirements. Customer will at all times maintain policies and procedures reasonably designed to comply with these provisions.
12. Representations/Warranties and Indemnification.
a. General. YipitData represents, warrants and covenants that: (i) it has all requisite legal and corporate power and authority to provide the Products to Customer for use as contemplated hereunder; (ii) it has taken all corporate action necessary for the authorization, execution and delivery of this Agreement; (iii) it has obtained and shall maintain all rights, approvals, licenses, certifications, accreditations and consents necessary to perform its obligations under this Agreement and disclose the Products to Customer for the uses contemplated hereunder; and (iv) it (a) has complied and will comply with all applicable laws governing bribery, money laundering, and other corrupt practices, including laws and regulations relating to anti-corruption and anti-commercial bribery in Hong Kong SAR, the US Foreign Corrupt Practices Act and the UK Bribery Act; and (b) shall not, directly or indirectly, offer, give, pay, promise to pay, or authorize the payment of any bribes, kickbacks, influence payments, or other unlawful or improper inducements, in whatever form (including gifts, travel, entertainment, contributions, or anything else of value), including without limitation, any compensation, whether cash or in-kind, to any sources to discuss information about their own employer or customer; and (v) it has complied and will comply with all the applicable laws and regulations on data protection and cybersecurity, including the Hong Kong Personal Data (Privacy) Ordinance.
b. Products. YipitData further represents, warrants and covenants that: (i) to the extent that YipitData engages in “scraping”, “spidering” “crawling” or similar practices, including using automated systems and/or software, to extract data, any such extraction of data is in compliance with all applicable laws; (ii) the Products and the use, disclosure and/or resale to Customer will comply with all applicable laws and regulations and does not violate any duty, covenant or obligation owed to any third-party; (iii) it will use commercially reasonable efforts to ensure any Products delivered to Customer do not contain any PII; (iv) the Products do not contain material non-public information as defined under the applicable securities related laws such as those of the Hong Kong SAR and the United States; (v) there are no approvals from any governmental agency or authority which are required for the execution, delivery and performance by YipitData of this agreement and the transactions contemplated hereby; (vi) to its knowledge, there is no material violation, conflict or infringement by any person or entity of any right of Customer with respect to the Products described herein; and (vii) to the best of its knowledge, the Products described herein do not contain any disabling devices or viruses that are intended to damage any system or data or could prevent Customer from using Customer’s system or data, and the Products described herein will be free of defects which materially affect their performance. YipitData shall use its commercially reasonable efforts to scan, identify and remove any viruses uploaded to or placed in the Products described herein or incorporated into them.
c. Indemnity. Subject to the limits defined herein, (i) YipitData shall indemnify, defend and hold harmless Customer from and against any third party claim alleging that Customer’s use of the Products in accordance with this Agreement violates or infringes the intellectual property rights of a third party, and (ii) Customer shall indemnify, defend and hold harmless YipitData from and against any third party claim arising out of Customer’s misuse of the Products in breach of this Agreement. The party seeking indemnification shall: (x) provide the indemnifying party with prompt written notice of any such claim, (y) reasonably cooperate with the indemnifying party, at the indemnifying party’s expense, and (z) give the indemnifying party sole control over the defense and/or settlement of any such claim.
13. Disclaimer of Warranty/Indemnification. EXCEPT AS OTHERWISE PROVIDED HEREIN, YIPITDATA EXCLUDES ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO ANY PRODUCT OR SERVICE PROVIDED PURSUANT TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY OF DATA, OR ANY IMPLIED WARRANTY ARISING FROM THE COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. EXCEPT AS OTHERWISE PROVIDED HEREIN, THE PARTIES AGREE THAT YIPITDATA IS NOT REQUIRED TO PROVIDE INDEMNIFICATION OF ANY KIND, ON ANY GROUND.
14. Limitation of Liability.
a. Liability Limit. THE ENTIRE LIABILITY OF YIPITDATA (INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ASSIGNEES, AND REPRESENTATIVES) IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING UNDER TORT LAW, CONTRACT LAW, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO YIPITDATA PURSUANT TO THE SCHEDULE OUT OF WHICH THE LIABILITY ARISES, OVER THE SIX (6) MONTHS PRECEDING THE TERMINATION OF THE AGREEMENT.
b. No Consequential Damages. EXCEPT IN CONNECTION WITH A PARTY’S BREACH OF SECTION 3 (PROPRIETARY RIGHTS; FEEDBACK), SECTION 4 (RESTRICTIONS) OR SECTION 9 (CONFIDENTIALITY) OF THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE, WHETHER UNDER TORT LAW, CONTRACT LAW, OR OTHERWISE, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS.
c. Reasonable Allocation of Risk. Customer acknowledges that the limitations of liability and disclaimer of warranties and indemnification obligations are a fundamental part of this Agreement, and YipitData would not enter into this Agreement absent such limitations.
15. Term and Termination. Each Pricing Schedule will remain in effect as provided therein. Either party may terminate any or all Pricing Schedules, the Order Schedule, and this Agreement, at any time upon thirty (30) days’ prior written notice for material breach, including failure to pay amounts owed, in which event such termination shall take effect unless cured during such thirty (30) day period. Customer is not entitled to refunds, credits or prorated prices for partial periods. Terms of this Agreement (including the Order Schedule and the Pricing Schedules) that contemplate a party’s performance after termination (including but not limited to confidentiality and payment obligations) shall survive and remain in effect notwithstanding such termination.
16. Governing Law; Venue. This Agreement is governed by the laws of Hong Kong SAR, not including its conflict of law principles. Neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to this Agreement. Any dispute, controversy, difference or claim arising out of or relating to this Agreement, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (HKIAC) under the HKIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted. The law of this arbitration clause shall be Hong Kong law. The seat of arbitration shall be Hong Kong. The number of arbitrators shall be three. The arbitration proceedings shall be conducted in English.
17. Force Majeure. The Products, and YipitData’s ability to provide the Products, may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. YipitData is not responsible for any delays, delivery failures, or other damage resulting from such problems or for any other event outside the reasonable control of YipitData, including without limitation acts of God, acts of third parties, government regulations, shortage of supplies, act of war, act of terrorism, earthquake, flood, wind damage, epidemic, pandemic, or electrical, internet or telecommunications outage.
18. Notices. Notices under this Agreement must be in writing and will be considered given when delivered personally, or by e-mail (with confirmation of receipt) or by courier or by conventional mail (registered or certified, postage prepaid with return receipt requested). Notices must be addressed to the parties at the addresses specified in the then-most recent Order Schedule, but each party may change its address by written notice in accordance with this paragraph.
19. Miscellaneous. Nothing in this Agreement shall be construed as constituting a partnership, joint venture, agency or employment relation between the parties, and neither party shall have any right whatsoever to incur any liability or obligation on behalf of the other party. Neither party may assign this Agreement or any rights or obligations under this Agreement without the prior written consent of the other party, except to any purchaser of all or substantially all of the assets or the majority of the stock of such party by merger, consolidation, or otherwise. Headings in this Agreement are for convenient reference only and have no effect in limiting or extending the language of the Agreement. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary to be enforceable. This Agreement will otherwise remain in full force and effect. This Agreement may be amended, or compliance with any term or condition may be waived, only if agreed to in executed writing by the parties (except with respect to modifications pursuant to Section 7 of this Agreement), or in the case of a waiver, by the party waiving compliance. Any modifications to this Agreement pursuant to Section 7 are deemed binding and enforceable. No waiver by any party of any provision of this Agreement will be deemed a waiver of any other provision or a waiver of the same provision at any prior or subsequent time. The parties to this Agreement agree that any electronic and/or digital signatures of the parties included in this Agreement are intended to authenticate this Agreement and to have the same force and effect as the use of manual signatures.
Last updated August, 2022
