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 and its affiliates (“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, including any data and analysis contained therein, 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, the Order Schedule controls. 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. Product License. Subject to the terms and conditions of this Agreement, YipitData grants to Customer a non-exclusive, non-transferable, non-sublicensable license with respect to Products identified on the Order Schedules for its Authorized Users (as defined in Customer’s applicable Order Schedule): (a) to make limited copies and excerpts from the Products solely 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 in accordance with the user restrictions set forth in this Agreement. Authorized Users must not reproduce or distribute Products or excerpts of Products externally without YipitData’s prior written consent in each instance.
3. Proprietary Rights in Products; Feedback. Customer acknowledges that each Product, and all intellectual property rights therein and relating thereto, in whole and in part, remain the exclusive property of YipitData and/or YipitData’s third-party data licensors. Nothing in this Agreement shall be interpreted to provide Customer with any rights in the Products except as expressly provided herein. 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. Customer acknowledges and agrees that nothing in this Agreement prevents YipitData from providing the Products or similar information to other customers of YipitData. YipitData is not required to provide notice to Customer of any arrangement whereby YipitData provides any information or access to another customer, or to a third party.
4. Restrictions; Additional Terms.
a. General. Customer may not, and will not permit any third party to: (a) sell, offer to sell, license, display, transmit, publish, or distribute in any manner, any Product, in whole or in part, to any third party for any purpose, (b) use any Product, in whole or in part, to build a database for resale or for access by or for a third party, (c) publicly disseminate Product analysis relating to any Product except with YipitData’s prior written consent in each instance, (d) use any Product in violation of any applicable law, (e) interfere with or disrupt the integrity or performance of any Product or the systems or networks through which YipitData provides the Products, (f) incorporate any Product, in whole or in part, into a third-party or open large language model that may be used for any purpose other than Customer’s internal use, (g) use any Product, in whole or in part, to train any software or algorithm that may be used by any party other than Customer, or (h) provide any Product to any person or entity that is: (i) included on any list of sanctioned entities maintained by the United Nations, the United States, or the European Union; (ii) owned or controlled by, or acting on behalf of, any such person or entity; or (iii) 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 the United Kingdom.
b. Sell-side Restriction. Customer may not share any Product with the sell-side research division of Customer, if applicable.
c. Privacy Restrictions. Customer will not, and will not enable or assist any third party to, attempt to or actually re-identify any natural person from the Products or take any actions with respect to the Products that would make it likely that one could identify a natural person from the Products. In particular, Customer will not (i) attempt to re-identify any previously aggregated, deidentified, or anonymized data, or (ii) combine the Products with other data or otherwise process the Products to create “personal data” or “personal information,” as defined in applicable law.
d. YipitData Portal. To the extent Customer is accessing one or more Products via YipitData’s portal (the “YipitData Portal”), the terms of use for the YipitData Portal at https://portal.yipitdata.com/ (“YipitData Portal Terms”) shall be incorporated herein by reference. To the extent there is an inconsistency between a term in the YipitData Portal Terms and a term in this Agreement, the YipitData Portal Terms shall govern.
5. Privacy.
a. Customer acknowledges that with respect to the Products, YipitData may take commercially reasonable steps to safeguard user privacy and handle personal data in compliance with applicable data protection law and best practices. In particular, and without limitation, YipitData may need to redact, suppress or modify some or all of the following from any Product prior to delivery to Customer: certain transactions, certain data fields on some transactions, and data from certain users.
b. The terms of this Agreement are subject to the terms of any data privacy addendum (or analogous data protection agreement) (“DPA”) between the parties. If the parties determine after entering into this Agreement that a DPA is required, they will cooperate in good faith to enter into a DPA that complies with applicable law.
6. Security. Each party will use industry standard and, at a minimum, commercially reasonable administrative, technical, and physical safeguards to protect the Products from unauthorized or unlawful disclosure, use, or access or accidental loss, destruction, or damage (a “Security Breach”) that are comparable to the measures such party implements to protect its own sensitive data and valuable trade secrets. If a party experiences a Security Breach involving systems, technology or data exchanged between the parties hereunder, or becomes aware of any act or omission that materially compromises the security, confidentiality, or integrity of the Products, such party will (a) promptly notify the other party of the facts and circumstances of the Security Breach or the relevant act or omission, and (b) work with the other party in good faith to take corrective action to stop and/or mitigate the Security Breach or the relevant act or omission.
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 Pricing 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 a written request, 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 stated in the Pricing Schedule (“Fees”). 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 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 already in the receiving party’s possession free of any obligation of confidentiality 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 as otherwise 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. YipitData compiles, categorizes, and generates the Products in a variety of methods, using variable inputs, such that each 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 Products is at Customer’s and its Authorized Users’ own risk. YipitData does not verify the completeness, accuracy, or authenticity of the Products.
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.
12. Representations and Warranties; Indemnification.
a. General. Each party represents, warrants and covenants that: (i) it has all requisite legal and corporate power and authority to perform its obligations under this Agreement; (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 (iv) it 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.
b. Customer Representations and Warranties. Customer further represents and warrants that: (i) it and its Authorized Users 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, (ii) it and its Authorized Users will use the information provided in the Products only for purposes and in ways that are consistent with all applicable legal requirements, (iii) if applicable, there is a clear and well-defined separation between the division of Customer that will be using the Products (including its Authorized Users) and the sell-side research division of Customer and (iv) it will at all times maintain policies and procedures reasonably designed to comply with each of the foregoing and the other use restrictions set forth in this Agreement.
c. 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 do 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 ”personal data” or “personal information,” as defined in applicable law, provided that certain Products may contain pseudonymized “personal data” or “personal information”; (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; and (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.
d. YipitData Indemnity. Subject to the limits defined herein, YipitData shall indemnify, defend and hold harmless Customer from and against any third-party claim, action, suit, demand, judgment, settlement, loss, fine, cost, or expense (including reasonable attorneys’ fees and expenses) (each, a “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. YipitData’s obligations under this Section 12(d) do not apply to any Claims arising out of or relating to any of the following: (a) the combination of a Product with any other software, products, equipment, component, process or material in a manner not provided by YipitData; (b) any modification to a Product to the extent the alleged infringement arises from such modification; or (c) use of a Product in a manner not permitted by or in breach of this Agreement. If any of the Products are, or in YipitData’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party intellectual property right, or if Customer's use of any Product or portion thereof is enjoined or threatened to be enjoined for an alleged violation of a third-party intellectual property right, YipitData may, at its option and sole cost and expense: (i) obtain the right for Customer to continue to use the affected portion of the Product materially as contemplated by this Agreement; (ii) modify or replace the Product, in whole or in part, to seek to make the Product (as so modified or replaced) non-infringing while providing materially equivalent features and functionality; or, (iii) if YipitData determines that neither of the foregoing two options are reasonably available, YipitData may, in its sole discretion, by written notice to Customer, terminate this Agreement as to the affected Product and require Customer to immediately cease all use of the affected Product or part or feature thereof, provided that YipitData will refund to Customer a pro rata portion of the Fees prepaid and unused by Customer as of the termination date. This Section 12(d) constitutes YipitData’s sole liability and Customer’s sole remedy for any Claims relating to infringement of intellectual property rights by a Product.
e. Customer Indemnity. Customer shall indemnify, defend and hold harmless YipitData and its officers, directors, employees and agents from and against any Claim arising out of Customer’s use of the Products in violation of applicable law or breach of contract.
f. Indemnity Procedures. 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, provided that the indemnifying party shall not settle a Claim that results in an admission of wrongdoing or any liability to the indemnified party without the indemnified party’s consent.
13. Disclaimer of Warranty. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, YIPITDATA DOES NOT WARRANT THAT THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PRODUCTS (OR ANY PART THEREOF). ALL PRODUCTS PROVIDED BY YIPITDATA TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND YIPITDATA DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE PRODUCTS (OR ANY PART THEREOF) CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER. YIPITDATA MAKES NO WARRANTIES UNDER THESE TERMS WITH RESPECT TO ANY THIRD-PARTY SOFTWARE, HARDWARE OR OTHER PRODUCTS USED BY CUSTOMER IN CONNECTION WITH THE PRODUCTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS OTHERWISE PROVIDED HEREIN, YIPITDATA DISCLAIMS 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.
14. Limitation of Liability.
a. Liability Limit. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YIPITDATA’S MAXIMUM AND AGGREGATE LIABILITY (INCLUDING THAT OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ASSIGNEES, AND REPRESENTATIVES) ARISING OUT OF OR 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 PRICING SCHEDULE OUT OF WHICH THE LIABILITY ARISES, OVER THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.
b. No Consequential Damages. EXCEPT IN CONNECTION WITH A PARTY’S BREACH OF SECTION 4 (RESTRICTIONS; ADDITIONAL TERMS), SECTION 5 (PRIVACY), SECTION 6 (SECURITY), SECTION 9 (CONFIDENTIALITY) OR IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12 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. This Agreement will remain in place so long as there are any Pricing Schedules and/or Order Schedule then in effect. Each Pricing Schedule will remain in effect for the time period as provided therein. Either party may terminate any or all Pricing Schedules, the Order Schedule, and/or 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. Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Proprietary Rights in Products; Feedback), Section 4 (Restrictions; Additional Terms), Section 8 (Payment Terms), Section 9 (Confidentiality), Section 12 (Representations/Warranties; Indemnification), Section 13 (Disclaimer of Warranty), Section 14 (Limitation of Liability), Section 16 (Governing Law; Venue), Section 18 (Notices), Section 19 (Survival) and Section 20 (Miscellaneous).
20. 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; provided that such purchaser is not, in the case of an assignment by Customer, an entity that is, as YipitData determines in its sole discretion, a competitor of YipitData 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 July 2023
