MASTER SERVICE AGREEMENT
SECTION 1 – GENERAL INFORMATION
1.1 THIS MASTER SERVICE AGREEMENT (the “Agreement”), is by and between Cosmo System Pte Ltd (“Cosmo”), and the party which is signatory hereto (“You”), (jointly referred hereto as the “Parties”). BY SIGNING THE ORDER DOCUMENT OR SUBSCRIBING OUR SERVICE DIRECTLY THROUGH OUR WEBSITE OR ONLINE PORTAL,YOU HEREBY AGREE TO THE TERMS OF THIS AGREEMENT AND ACKNOWLEDGE THAT YOU HAVE THE REQUISITE AUTHORITY, POWER AND RIGHT TO FULLY BIND THE COMPANY, INDIVIDUAL, OR OTHER ENTITY WISHING TO USE THE SERVICE PURSUANT TO THIS AGREEMENT.
1.2 Services. Any services or products offered by Cosmo may be further outlined in additional attachments or orders agreed to (“Service Order”), or company policies referenced herein (“Policy”). Any and all Service Orders and Policies shall be incorporated herein by reference, and subject to this Agreement. The Service Order or Policy may provide the following information regarding the service or additional information as applicable:
1. A Detailed Description of the Service Offered.
2. Service Specific Definitions
3. Standard Service Features
4. Optional Service Features
5. Fee Structure for Standard and Optional Features
6. Surcharges and Governmental Fees
7. Service Level Agreement (“SLA”)
8. Cosmo Support Information
9. Coverage Maps (or reference website)
10. Any Additional Information Pertaining to the Service
11. Applicable Policies and Procedures
1.3 All clauses and sections within this Agreement are subject to any and all applicable Singapore’s law.
1.4 Any notices, requests, or other modifications or changes to any agreement, or Service Order must be submitted by an “Authorized Individual” as defined in Section 2.6.
1.5 Capitalized Terms. Exclusive of headings, capitalized terms within this Agreement shall refer to the term and its associated definition or meaning, as specified in Section 11.
SECTION 2 – DELIVERY OF SERVICES
2.1 Required Service Level Performance. Cosmo shall provide to You specific product and service descriptions, performance objectives and penalties in an SLA, or a section of the Service Order(s) and/or Amendments.
2.2 Service Specific Terms and Conditions. Any terms and conditions that are specific to a Service will be addressed in the Service Order. If the Service Order stipulates specific hardware or software which is no longer available, a more current product with equal or better specifications will be substituted.
2.3 Locations and Access. Cosmo guarantees You, the customer, the best possible service we can provide, and therefore, may need to make changes as to how and where various Services are distributed from. Therefore, unless otherwise specified in a Service Order, specific locations and access to the preceding may be altered, changed, or otherwise modified in Cosmo’s sole
2.4 Service Level Guarantee and Credits. Cosmo will issue You credit allowances for service outages as set forth in the SLA. Any applicable credits will appear on Your next invoice. A service outage begins when You contact Cosmo to report the problem, and a ticket is opened. The service outage ends when Cosmo notifies You via telephone, email, or in the original ticket that the service is fully operational. The duration of the service outage will be calculated as the elapsed time between the time the ticket is opened and notification is sent to You. If five (5) or more service outages determined by Cosmo to be guaranteed by the SLA for a particular service occur within a thirty (30) day period, and the cause is determined to be Cosmo’s responsibility, such service will be deemed a “Chronic Trouble Service,” if such term is defined in the applicable SLA.
2.5 Orders for Service, Cancellation or Modification. All new Service Orders must be submitted on the designated form provided by Cosmo in writing, via email, fax, or regular mail. Any cancellations or modifications to any Service Order(s) must be made in writing to Cosmo, via regular mail, email, fax, or opening a ticket through the Cosmo Customer Portal. You agree that only the individuals listed on the account as “Authorized Individuals,” as defined in Section 2.6, and Cosmo have authority regarding ordering, modifying, and terminating Services.
2.6 Authorized Individuals. Cosmo requires You to appoint or select individuals who are authorized to make any changes to Your account (“Authorized Individuals”), including submitting Service Order(s), Cancelling Service Order(s), and modifications to any Service Order(s). In order for an individual to be approved as authorized, You must either 1. identify the individual and their contact information at the time of establishing an account with Cosmo; or 2. Submit two (2) documents for account and identity verification along with the individual’s name and contact information. Cosmo reserves the right to require more documentation for verification purposes. Cosmo asks that You authorize a minimum of two (2) individuals, upon opening up an account with Cosmo. If there are not two (2) individuals available, You must indicate this in writing. The first person indicated as an Authorized Individual shall be considered the primary contact by Cosmo unless You indicate otherwise. If at any time, You do not have an authorized individual listed with Your account, no modifications to the account may be made, and the account may be suspended by Cosmo. No changes, modifications, or cancellations will be accepted or approved by Cosmo from an individual who is not an Authorized Individual. In the absence of an Authorized Individual, You will continue to be billed for all Services provided.
2.7 Authorized Contacts. You may appoint a maximum of ten (3) individuals to be Authorized Contacts for Your account with Cosmo. Authorized Contacts are authorized to correspond and communicate with Cosmo only in relation to technical support provided by Cosmo. Authorized Contacts may not modify Service Orders, submit new Service Orders, or cancel Service Orders. Your customers or clients may not be an Authorized Contact. Authorized Contacts are limited to Your employees or affiliates, or individuals responsible for maintenance and operation of Your use of Cosmo Services. Authorized Individuals are also considered Authorized Contacts, and any additional Authorized Contacts must be submitted and approved by an Authorized Individual.
2.8 Acceptance by You. Unless otherwise stipulated in a Service Order, Cosmo shall make available the Deliverables within thirty (30) days of the Execution Date. Material conformity with the description of services and its specifications, as stipulated in the Service Order, is the sole basis for determining Your Acceptance or rejection of the Deliverables. If You do not believe the Deliverables are within the specifications of the Service Order, You must, within two (2) business days of receipt of each Deliverable, notify Cosmo in writing with reasonable detail of Your rejection of the Deliverable. If Cosmo does not receive notice from You, the Deliverables will be considered acceptable and accepted by You. Cosmo will, upon receipt of notice of rejection and written authorization from You, within the above stated time period, promptly correct any deficiencies identified in writing by You. If a deficiency cannot be corrected to be in compliance with the Service Order within thirty (30) days of notification by You, Cosmo, in Cosmo’s sole discretion, may credit Your account for services equal to or less than the amounts paid to Cosmo or delay the Start Date to the date of Your Acceptance of the Deliverables.
2.9 Acceptance by Cosmo. Upon submission by You of this Agreement, any new requests for Service Orders, Modifications, or Cancellations to Service Orders (“Submission(s)”) received in writing by Cosmo must be accepted in writing by Cosmo, either via regular mail, email, fax or through the Cosmo Customer Portal. Requests for a new Service Order may be deemed accepted
upon Cosmo providing the requested Service. Except as otherwise stated in this Agreement, if Cosmo does not expressly give its acceptance of the Submission(s) in writing the Submissions shall be deemed not accepted, and Cosmo shall not be bound by such.
2.10 Maintenance and Ongoing Services. Cosmo shall support any and all hardware and software provided by Cosmo, as stipulated in the Service Order, which is necessary for You to fully access and utilize the Services in accordance with any applicable SLA. Cosmo shall 1. deliver or provide access to You the described Services, with the functionality and appearance specified at the time of order, and as described in any applicable Service Order or description. If the hardware, software, or other items specified in the Service Order are no longer available or supported by Cosmo, Cosmo will provide a substitute which is equal to or better than that which is listed, and 2. provide technical support for equipment and services described in the applicable Service Order and respond to Your inquiries on a reasonably prompt basis via regular mail, email, telephone, or the Cosmo Customer Portal. If at any time You make any changes to Cosmo supplied content, code, software, or hardware, or Cosmo is denied access to the hardware, software, or related, Cosmo shall not be responsible for any maintenance, regardless of whether such changes were authorized, inspected, or confirmed by Cosmo.
2.11 Professional Services. Cosmo may, although under no obligation to, assist You, by providing services or technical support, in repairing or remedying any problems in Your Services that are not covered by an applicable SLA or active Service Order, at the standard rates charged by Cosmo for such work. Cosmo makes no guarantee of work performed for maintenance and additional support services. All professional services and work is provided on an “As Is” “As Available” basis.
2.12 You acknowledge that the use of the Services may periodically require updates and/or changes to certain Licensed Software resident in the Cosmo Equipment. If Cosmo has agreed to provide updates and changes, Cosmo may perform such updates and changes remotely or on-site, at Cosmo’s sole option. You agree and consent to provide Cosmo free access for such updates deemed reasonably necessary by Cosmo. If for any reason, Cosmo does not have access to the Cosmo Equipment, including that You do not provide Cosmo with access, Cosmo shall not be liable for any and all maintenance, upgrades, or changes. If You deny access for any reason to Cosmo equipment, and Cosmo, in Cosmo’s sole discretion, requires access to provide contracted Services, maintenance or upgrades, Cosmo may, in Cosmo’s sole discretion, suspend or terminate Your Services, which termination shall be deemed “For Cause,” or take any actions as provided herein.
SECTION 3 – TERMS AND TERMINATION
3.1 Term. The term of this Agreement shall be for the period of 24 months or 2 years, unless another term is specified in an applicable Service Order (“Term”). If there are no applicable Service Orders, this Agreement shall automatically terminate within thirty (30) days of the termination of the last Service Order.
3.2 Agreement – Renewal. Absent issuance of written notice otherwise, this Agreement shall automatically renew for the entire term as listed in Section 3.1, or Cosmo may elect a shorter renewal term length of Cosmo’s choosing, by notifying You in writing.
3.3 Service Order(s) – Renewal. Absent issuance of written notice otherwise, Service Order(s) shall automatically renew for the entire previously stipulated term along with this Agreement. Cosmo may elect a renewal term length (e.g. monthly, six (6) months, one (1) year, etc.) of Cosmo’s choosing, by notifying You in writing. For all Service Orders, whose Term exceeds ninety (90) days in length, either Party may cancel or reject Renewal by issuing written notice to the other party of the decision to do so at least thirty (30) days prior to the expiration of the then current term. For all Service Orders, whose Term is equal to or less than ninety (90) days, either party may cancel or reject Renewal by issuing written notice to the other party of the decision to do so at least seven (7) days prior to the expiration of the then current term. Renewal of any and all Service Order(s) automatically renews this Agreement until the expiration of all Service Orders. This expiration and renewal procedure will also apply to the end of any subsequent Term. Cosmo may increase fees and charges associated with any applicable Service Order(s) at the time of Renewal. Upon termination of this Agreement, You have no right to order new Services, all current Service Orders shall be terminated, and Cosmo has no further obligations to furnish any Services, new or existing, to You.
3.4 Guarantee of Funds. None of the rights, duties, or obligations in this Agreement or applicable Service Order(s) will be binding on Cosmo, and at the sole discretion of Cosmo, Cosmo may withhold its performance, until Cosmo has received payment in accordance with the applicable Service Order(s).
3.5 Termination of the Agreement. Neither party may terminate this Agreement without cause, as defined in Section 3.8, prior to the expiration of the Term unless otherwise stated in this Agreement.
3.6 Termination of Service Order(s). Under this Agreement, Service Order(s) may not be terminated without cause, as defined in Section 3.8, prior to the expiration of the Service Order(s), unless otherwise stipulated in this Agreement. If a Service Order is terminated For Cause, You shall remain liable for charges accrued but unpaid as of the termination date. Unless specifically stated in the notice, the termination of one or more Service Order(s) (or portions thereof) will not terminate this Agreement. If the Service is terminated prior to expiration of the Service Order(s) by You, You shall be liable for a termination fee, which shall be equal to the remaining portion of the entire remainder of the terminated Service Order(s), payable within ten (10) days of notice of termination.
3.7 Poor Standing – If at any time You 1. fail to pay Your account charges within seven (7) days of the specified invoice due date; 2. deny access to Cosmo equipment; or 3. act in a manner which is inconsistent with this agreement or any Policies, Your account may, in Cosmo’s sole discretion, be given Poor Standing status. Your account will remain in Poor Standing for a minimum of three (3) months from the last occurrence of 1, 2, or 3. listed above in this Section, or until notified of an account status change by Cosmo. If Your account is considered in Poor Standing, Cosmo may, in Cosmo’s sole discretion, 1. suspend Your account until any outstanding issues have been resolved; 2. suspend any Services provided to You; 3. require a deposit or larger prepayment amount for future services for the remainder of the Term; 4. charge additional administrative, late, or other fees and penalties; 5. hold Your equipment as collateral for non-payment; or 6. take any actions necessary to prevent You from impeding, affecting, harming or otherwise disrupting Cosmo’s provision of Services to other customers, including terminate Your Service Order(s) or this Agreement in accordance with Section 3.8. In addition, Cosmo, may assess a late payment fee, and charge interest at the rate of 15% for each month payment is overdue (or the maximum legal amount if less than 15%). You shall be liable for all attorneys’ fees and any other incurred fee in relation to a collection action for unpaid fees and charges.
3.9 Termination by Default. If You materially default in the performance of any of Your duties or obligations under this Agreement or applicable Service Order(s), and You do not cure the default within thirty (30) days after written notice is given to You specifying the default, Cosmo may without further notice terminate this Agreement and/or any applicable Service Order(s). You will remain liable for charges accrued but unpaid as of the termination date, and in the case of termination for cause, any cancellation or termination fees outlined in the Service Order(s).
3.10 Termination for Convenience. You may terminate a Service Order for convenience at any time upon serving thirty (30) days advance written notice to Cosmo. If You terminate a Service Order for convenience, in addition to other amounts You may owe, You may be subject to an early termination fee equal to the monthly recurring fees for the remaining portion of the current Term.
3.11 Obligations Upon Termination. Upon termination or expiration of this Agreement or any particular Service(s) or Service Order(s):
(1) You, at Your own expense, will return to Cosmo or otherwise dispose of as Cosmo may instruct, any information (including any Confidential Information) and all other documents, papers and information whatsoever in Your possession and relating to the business of Cosmo (other than correspondence between the parties) and all property of Cosmo. Cosmo shall be entitled to retain a copy of any information from You for archival purposes only. Such records will not be treated as the owner’s Confidential Information in accordance with Section 8.
(2) Cosmo Obligations. Upon termination or expiration of this Agreement, or Service Order(s)or portion thereof, Cosmo, in addition to any other obligations of Cosmo on termination or expiration; 1. will cease all performance of the terminated Service Order(s); 2. may, at the sole discretion of Cosmo, maintain or hold back-up versions of Your content, code, materials, or information (“Your Content”) for ten (10) days; and 3. within a reasonable period of time provide a final accounting and invoice which itemizes all Services related to the terminated Services that have been performed in accordance with this Agreement but for which Cosmo has not yet received payment.
(3) Payments. All payments described under this Section 3 that have accrued prior to the termination or expiration of the Agreement will be payable in full within fifteen (15) days thereof.
(4) Transition Period. No transition period is generally provided by Cosmo. If You provide Cosmo with a written request at least ten (10) days before the date of the termination of the Service Order(s) or this Agreement, Cosmo may, in Cosmo’s sole discretion, for a period not to exceed ninety (90) days following termination or expiration (the “Transition Period”), provide You with reasonable assistance in the transition of the responsibility for the Services to You or to a party designated by You. Such assistance may consist of the following: 1. reasonable documentation and other materials relating to or used in the performance of the Services (excluding documentation belonging exclusively to Cosmo in which Cosmo claims in good faith a trade secret interest or other protected intellectual property rights), 2. other services or activities reasonably requested by You related to the smooth transition for performance of the Services which may be billed by Cosmo in accordance with all Transition Costs.
(5) Transition Costs. Any and all costs associated with the Transition Period shall be Your sole responsibility. Any quantity based Services will be billed in the minimum lowest whole unit, (e.g. month, gigabyte, etc.) and no fractions of a particular service shall be offered. All Transition Costs, including any and all Services provided under the continuation of any terminated or not renewed Service Orders (“Extended Services”), shall be billed at 150% of the then standard rate. You will be responsible for any and all costs incurred by Cosmo during the Transition Period (the “Transition Costs”). Cosmo, in Cosmo’s sole discretion, may request a deposit, from which Transition Costs will be deducted as incurred, before the start of the Transition Period. Any unused deposit monies will be returned to You within ten (10) days of the conclusion of the Transition Period. Transition Costs, in addition to Extended Services, may include 1. storage of data or equipment; 2. time and labor provided by Cosmo, Cosmo Employees, or third parties hired by Cosmo or billed to Cosmo by You; and 3. shipping, storage, or disposal of any equipment owned by You, unless otherwise agreed in writing.
(6) Deserted Material. Unless otherwise agreed in writing, Cosmo shall not be responsible or liable for care, storage, upkeep or other maintenance of any equipment owned by You and left in Cosmo’s possession (“Deserted Material) after fourteen (14) days of the termination of this Agreement, or fourteen (14) days after an applicable Transition Period. At that time, Cosmo, in Cosmo’s sole discretion, may 1. assume ownership of any Deserted Material, 2. dispose of the Deserted Material and charge You for any costs incurred, including shipping, storage, or disposal and 3. act in any manner with respect to the Deserted Material as Cosmo sees fit. Cosmo shall not be liable or responsible for the maintenance or preservation of any content, code, or data left in Cosmo’s possession after the termination of this Agreement or an applicable Transition Period.
Without authorization or agreement by You, Cosmo shall not modify this Agreement, change fees or charges of applicable Service Orders or modify an applicable SLA, unless otherwise expressly stated in this Agreement. Cosmo may modify any applicable Policies at any time, without authorization or agreement by You, and Cosmo is under no obligation to notify You of such changes. Cosmo recommends that You regularly review all applicable Policies to ensure compliance therewith.
3.13 Conflicting Terms
In the event of a conflict between this Agreement, Service Order(s), and/or any Policy, the conflict shall be resolved by the following order of precedence:
(1) Service Order(s), then
(2) this Agreement, then
(3) any Policy
3.14 Regulatory Changes
Cosmo may discontinue, limit or impose additional requirements to the provision of Service(s),including an increase of fees or service charges as required to meet regulatory or other lawfully imposed requirements, upon no less than thirty (30) days written notice to You.
SECTION 4 – CHARGES, FEES, AND PAYMENT
4.1 Charges. Applicable installation charges, monthly recurring charges, or usage charges are listed on the Service Order(s). The installation fees, setup charges, and the first payment, are due in advance of the Start Date. The recurring charge and usage charges will commence on the Start Date.
4.2 Taxes. To the extent that any sales, use, excise or any similar tax is imposed on Cosmo in connection with this Agreement, such will be Your sole responsibility, and You will pay such taxes (together with any interest and penalties not disputed with the appropriate taxing authority) whether they are imposed at the time Service is rendered or at a later time during the Term. You will pay any taxes, fees, surcharges or assessments, as outlined in the Service Order(s), to the extent You are not exempt from such taxes, surcharges or assessments, and will appear as a separate line item on the invoice.
4.3 Billing and Payment. Cosmo shall provide You with an invoice, detailing the charges to Your account, via email, fax, or through the Cosmo Customer Portal, and indicating a payment due date (“Due Date”). Payments are to be made by You on or prior to the Due Date. Cosmo recommends that You send payments at least seven (7) days in advance of the due date to ensure smooth delivery of Services, without interruption. Payments under this Agreement will be due prior to the providing of any Services, unless otherwise agreed in writing or as expressly stated herein. The date Cosmo receives the payment will be considered the date payment is made. If payment is not received prior to the providing of Services for the specified time period, the payment will be considered overdue, and subject to any applicable late fees or surcharges. At Cosmo’s option, if a payment is overdue, Your account will be considered in “Poor Standing” and subject to Section 3.7.
4.4 Billing Claims and Disputes. If you would like to dispute Your invoice, because You, in good faith, do not believe the charges are correct, You must pay all undisputed amounts set forth in Cosmo’s invoice by the specified Due Date. You may withhold payment for the disputed amounts provided You submit along with payment of the undisputed amounts and a documented claim for the disputed amount as detailed herein. Any disputes must be submitted within ninety (90) days of the disputed invoice. A good faith dispute requires You to provide a written claim to Cosmo (“Dispute Claim”). Dispute Claims shall be sent to Cosmo via the applicable address and contact information as listed in the Cosmo Dispute Policy. Dispute Claims must identify in detail the basis for the dispute, including 1. the applicable account number; 2. the date of the charges and the applicable invoice; and 3. the specific items being disputed, to permit Cosmo to investigate the merits of the dispute. The parties shall use their best efforts to resolve all disputes within fifteen (15) days of the submission of the dispute to Cosmo. Once the investigation into the disputed charges has been completed, (a) if the billing dispute is resolved in Your favor, Cosmo shall submit applicable credits within one invoice cycle of dispute resolution, or (b) if the billing dispute is resolved in favor of Cosmo, or if You have withheld payment, You shall submit payment to Cosmo within ten (10) days from receiving notification of the dispute resolution. Late payment penalties will apply to overdue or unpaid charges.
4.5 Time and Quantity Measured Services. Any measured services are recorded in whole units (e.g. minutes, months, gigabytes, etc.), with partial units rounded up to the next whole unit. If the computed charge for a time or quantity measured service or for taxes or surcharges includes a fraction of a cent, the fraction is rounded up to the nearest whole cent.
4.6 Cost Increases. Cosmo may change or increase recurring or usage charges during the term of the applicable Service Order only if, beyond the control of Cosmo, Cosmo’s utility costs increase, by providing You with thirty (30) days notice of the change or increase and reasonable documentation of the increase. In the event of such an increase, You have the right to terminate this Agreement and any relevant Service Order(s) without penalty to You by providing Cosmo with thirty (30) days notice of cancellation.
SECTION 5 – INTELLECTUAL PROPERTY
5.1 General Intellectual Property Limitations. Neither party shall use the other party’s proprietary marks in any manner that disparages the other party or its products or services, or portrays the other party or its products or services in a false, competitively adverse or poor light. Each party will comply with the other party’s requests as to the use of the other party’s proprietary marks and will avoid any action that diminishes the value of such marks. Either party’s unauthorized use of the other’s proprietary marks is strictly prohibited. This Section does not grant expressly or implicitly, any right or license to use Cosmo’s Intellectual Property.
5.2 Ownership Intellectual Property. Neither party grants any license to the other except as specifically set forth in this Section. Except as is expressly set forth under this Section, both parties expressly reserve all of their right, title and interest in their respective Intellectual Property Rights.
5.3 Promotional Use by You. Subject to the sole discretion and agreement by Cosmo, You may, at Your own expense, refer to Cosmo and the Services Cosmo provides to You in Your promotional materials as long as You limit the reference to You utilizing Cosmo Equipment and Services. You may not disclose any confidential or proprietary information in such reference. In no circumstance are You to refer to You offering or providing Cosmo Services in any of Your promotional material. Cosmo shall have the right to review and approve promotional material referencing Cosmo. Such approval may be withheld by Cosmo for any particular reason. You
shall not issue any press releases, advertisements or other public disclosures regarding Your relationship with Cosmo without the prior review and written consent of Cosmo, which consent shall be granted in Cosmo’s sole discretion. You may disclose any necessary information as may be required by applicable law or regulation subject to Cosmo’s prior review and Your agreement
to accept reasonable requests from Cosmo on the language provided pursuant to such laws or regulations.
5.4 Promotional Use by Cosmo. You agree that Cosmo may, at its own expense, refer to You and utilize Your logos and marks in promotional materials, press releases, advertisements, and other public disclosures, solely as a reference to representative customers of Cosmo services. No confidential or proprietary information shall be disclosed in such reference, however Cosmo may
disclose any necessary information as may be required by applicable law or regulation.
5.5 Any work or professional services performed or provided by Cosmo under this Agreement or any applicable Server Order(s) shall not be deemed “Work For Hire,” but Cosmo shall grant a non-exclusive, non-transferable license to You, for the duration of this Agreement, or the related Service Order(s) for all work performed by Cosmo, its employees, affiliates, and third parties commissioned by Cosmo.
SECTION 6 – WARRANTIES AND REPRESENTATIONS
6.1 Warranties. THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICES, COSMO EQUIPMENT, OR LICENSED SOFTWARE.ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED TO THE MAXIMUM EXTENT ALLOWED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COSMO DOES NOT WARRANT THAT THE SERVICES, EQUIPMENT, OR LICENSED SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF LATENCY OR DELAY, OR THAT THE SERVICES, EQUIPMENT, OR LICENSED SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES, EQUIPMENT, OR LICENSED SOFTWARE WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES. ALL SERVICES ARE PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS, SUBJECT TO ANY APPLICABLE SLA.
6.2 Preservation of Your Data. You acknowledge and agree that, unless stipulated otherwise in a Service Order, 1. You are responsible for developing and maintaining procedures (apart from any applicable Services) to protect Your content, including, without limitation, making appropriate backup copies of Your content as may be necessary for reconstruction of any data, files, informational materials, or electronic messages; 2. Cosmo is not responsible for backup and restoration of Your content or data; and 3. Cosmo’s responsibility is limited to the provided Services and not ensuring the integrity or completeness of any of Your content, data, or code.
6.3 If Your Service Order provides for the availability of backup services, Cosmo is responsible for the Services themselves and not for the completeness or integrity of Your content. It is Your responsibility to ensure that any and all backups occur regularly. Cosmo is limited to providing the Services as stipulated in the Service Order. If there are any concerns or malfunctions with any Services, including backups, it is Your responsibility to notify Cosmo, and Cosmo shall not be liable for any damages, without notice being provided to Cosmo. Damages shall be limited as specified herein.
6.4 Unauthorized Access to Data or Use of the Services. Cosmo is not responsible for unauthorized access to Your data or the unauthorized use of the Services. You are responsible for the use of the Services by any affiliate, employee, sub-contractor, or other party granted access by any of Your employees, or any person You have granted access to the Services, and any person who gains access to Your data or the Services as a result of Your failure to use reasonable security precautions, even if such use was not authorized by You.
6.5 By using the Services to publish, transmit or distribute material or content, You 1. warrant that the material or content complies with the provisions of the Agreement, 2. authorize Cosmo, its agents and affiliates to reproduce, publish, distribute, and display Your content solely in accordance with any applicable Service Order and 3. warrant that You have the right to provide authorization. You acknowledge that due to the inherent nature of the Internet and beyond the control of Cosmo, material posted or transmitted using the Services may be copied, republished or distributed by third parties, and You agree to indemnify, defend and hold harmless Cosmo, its agents and affiliates for any harm resulting from such actions. Cosmo shall not resell or otherwise license Your content.
6.6 Monitoring. Cosmo shall have no obligation to monitor postings, content or transmissions made in connection with the Services. Cosmo, without Your prior approval, will not monitor or grant access to any postings, content, or transmissions unless required by law, valid subpoena, or other required legal compliance. Cosmo may use and disclose such monitoring and postings as required.
6.7 Removal of Data. In the event that Cosmo becomes aware of any content, code, scripts, software, or other data provided or transmitted by You or equipment provided or owned by You, which is being used in violation of any applicable law or regulation, including but not limited to the CAN-SPAM Act and the DMCA (“Infringing Material”), Cosmo reserves the right to remove, destroy, or restrict access to the Infringing Material, solely to comply with applicable law. At which time, Cosmo shall notify You of the removal of the Infringing Material and shall promptly provide you with copies of any documentation related to the removal. You agree that You are solely responsible for any and all use of the Services provided by Cosmo, and that Cosmo may deem it necessary to remove all content or terminate any and all Services to You if you fail to follow any and all applicable laws and regulations. You shall hold Cosmo harmless for any and all good faith efforts by Cosmo to comply with any and all laws and regulations.
SECTION 7 – CLAIMS AND DISPUTES
7.1 Dispute Resolution. The parties will attempt to resolve any claim, or dispute or controversy (whether in contract, tort or otherwise) against Cosmo, its agents, employees, successors, assigns, or affiliates (collectively for purposes of this paragraph, “Cosmo”) arising out of or relating to this Agreement, Cosmo’s advertising, or any related purchase (a “Dispute”) through personal negotiation with individuals fully authorized to resolve the Dispute or through mediation utilizing a mutually agreeable mediator, rather than through litigation, as stipulated in the Cosmo Dispute Policy. The existence or results of any negotiation or mediation will be treated as confidential.
7.2 Service Order Disputes. Other than as stipulated in Sections 2 and 4, any dispute arising under a Service Order shall be considered by Cosmo within fifteen (15) days of receipt of a notice from either Party specifying the nature of the dispute. In the event Cosmo is unable to resolve, or does not anticipate resolving, the dispute within such fifteen (15) day period, then the Dispute will be resolved in accordance with Section 7.1.
7.3 Injunction. Notwithstanding the foregoing, Cosmo will have the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction or other equitable relief to preserve the status quo, prevent irreparable harm, avoid the expiration of any applicable limitations period, or preserve a superior position with respect to other creditors, although the merits of the underlying Dispute will be resolved in accordance with this paragraph. In the event the parties are unable to resolve the Dispute within thirty (30) days of notice of the Dispute to the other party, the parties shall pursue all remedies available in accordance with Cosmo’s Dispute Policy.
7.4 Disputes and Claims Continued Performance. Except where clearly prevented by the issue in dispute, or in relation to any Dispute arising out of Section 4, both Parties agree to continue performing their respective duties, obligations and responsibilities under this Master Services Agreement and any Service Agreement while the dispute is being resolved in accordance with this Section, unless and until such obligations are lawfully terminated or expire in accordance with the provisions hereof.
SECTION 8 – NON DISCLOSURE AND RESTRICTIONS
8.1 Non disclosure. All Confidential Information shall be kept by the receiving party in strict confidence and shall not be disclosed to any third party without the disclosing party’s express written consent. Notwithstanding the foregoing, such information may be disclosed 1. to the receiving party’s employees, affiliates, and agents who have a need to know for the purpose of performing this Agreement, using the Services, rendering the Services, and marketing related products and services (provided that in all cases the receiving party shall take appropriate measures prior to disclosure to its employees, affiliates, and agents to assure against unauthorized use or disclosure); or 2. as otherwise authorized by this Agreement. Each party agrees to treat all Confidential Information of the other in the same manner as it treats its own proprietary information, but in no case using a degree of care less than a reasonable degree of care.
8.2 Exceptions. Notwithstanding the foregoing, each party’s confidentiality obligations hereunder shall not apply to information that: 1. is already known to the receiving party without a pre-existing restriction as to disclosure; 2. is or becomes publicly available without fault of the receiving party; 3. is rightfully obtained by the receiving party from a third party without restriction as to disclosure, or is approved for release by written authorization of the disclosing party; 4. is developed independently by the receiving party without use of the disclosing party’s Confidential Information; or 5. is required to be disclosed by law or regulation.
8.3 You agree that You will not violate the license attributed to any Licensed software, which license may restrict Your ability to: 1. copy the Licensed Software (or any upgrades thereto or related written materials) except for emergency back-up purposes or as permitted by the express written consent of Cosmo; 2. reverse engineer, de-compile, or disassemble the Licensed Software; 3. sell, lease, license, or sub-license the Licensed Software; or 4. create, write, or develop any derivative software or any other software program based on the Licensed Software. If You would like to perform any of the above, and You are unsure of the license restrictions of the Licensed Software, carefully review the applicable license and if necessary, please consult an attorney.
SECTION 9 – LIMITATIONS ON LIABILITY
9.1 Limitation of Liability. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, OF ANY KIND INCLUDING BUT NOT LIMITED TO ANY LOSS REVENUE, LOSS OF USE, LOSS OF BUSINESS OR LOSS OF PROFIT, WHETHER SUCH ALLEGED LIABILITY ARISES IN CONTRACT OR TORT, PROVIDED, HOWEVER, THAT NOTHING HEREIN IS INTENDED TO LIMIT YOUR LIABILITY FOR AMOUNTS OWED FOR THE SERVICES, FOR ANY EQUIPMENT OR SOFTWARE PROVIDED BY COSMO OR FOR EARLY TERMINATION CHARGES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE ENTIRE LIABILITY OF COSMO AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS OR CONTRACTORS FOR LOSS, DAMAGES AND CLAIMS ARISING OUT OF THE DELIVERY OF THE SERVICES INCLUDING, BUT NOT LIMITED TO, DELAY IN THE INSTALLATION OF SERVICES OR THE PERFORMANCE OR NONPERFORMANCE OF THE SERVICES OR COSMO EQUIPMENT SHALL BE LIMITED TO A SUM EQUIVALENT TO THE APPLICABLE OUT-OF-SERVICE CREDIT. REMEDIES UNDER THIS AGREEMENT ARE EXCLUSIVE AND LIMITED TO THOSE EXPRESSLY DESCRIBED IN THIS AGREEMENT
9.2 IN NO EVENT SHALL COSMO, OR ITS ASSOCIATED PARTIES, SUPPLIERS, CONTRACTORS OR LICENSORS BE LIABLE FOR ANY LOSS, DAMAGE OR CLAIM
ARISING OUT OF OR RELATED TO: 1. STORED, TRANSMITTED, OR RECORDED DATA, FILES, OR SOFTWARE; 2. ANY ACT OR OMISSION BY YOU, YOUR USERS OR THIRD PARTIES; 3. INTEROPERABILITY, INTERACTION OR INTERCONNECTION OF THE SERVICES WITH APPLICATIONS, EQUIPMENT, SERVICES OR NETWORKS PROVIDED BY YOU OR THIRD PARTIES; OR 4. LOSS OR DESTRUCTION OF ANY OF YOUR EQUIPMENT, SOFTWARE, FILES OR DATA RESULTING FROM ANY VIRUS OR OTHER HARMFUL FEATURE OR FROM ANY ATTEMPT TO REMOVE IT.
9.3 Indemnification. Subject to Section 6, each Party (“Indemnifying Party”) will indemnify and hold harmless the other Party (“Indemnified Party”), its affiliates, officers, directors, employees, stockholders, partners, providers, independent contractors and agents from and against any and all joint or several costs, damages, losses, liabilities, expenses, judgments, fines, settlements and any other amount of any nature, including reasonable fees and disbursements of attorneys, accountants, and experts, arising from any and all claims, demands, actions, suits, or proceedings whether civil, criminal, administrative, or investigative (collectively, “Claims”) relating to: 1.any Claim of any third party resulting from the negligence or willful act or omission of Indemnifying Party arising out of or related to the Agreement, the obligations hereunder, and uses of Services, Cosmo Equipment, and Licensed Software; and 2. any Claim of any third party alleging infringement of a local/international patent or local/international copyright arising out of or related to this Agreement, the obligations here under, and the use of Services, Cosmo Equipment, and Licensed Software.
9.4 The Indemnifying Party agrees to defend the Indemnified Party for any loss, injury, liability, claim or demand (“Actions”) that is the subject of Section 9 hereof. The Indemnified Party agrees to notify the Indemnifying Party promptly, in writing, of any Actions, threatened or actual, and to cooperate in every reasonable way to facilitate the defense or settlement of such Actions. The Indemnifying Party shall assume the defense of any Action with counsel of its own choosing, but which is reasonably satisfactory to the Indemnified Party. The Indemnified Party may employ its own counsel in any such case, and shall pay such counsel’s fees and expenses. The Indemnifying Party shall have the right to settle any claim for which indemnification is available; provided, however, that to the extent that such settlement requires the Indemnified Party to take or refrain from taking any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed.
9.5 Remedies. Your sole and exclusive remedies under this Agreement are as expressly set forth in this Agreement. Certain of the above exclusions may not apply if the state in which a Service is provided does not allow the exclusion or limitation of implied warranties or does not allow the limitation or exclusion of incidental or consequential damages. In those states, the liability of
Cosmo and its affiliates and agents is limited to the maximum extent permitted by law.
SECTION 10 – GENERAL PROVISIONS
10.1 Headings. The headings herein are for convenience only and are not intended to have any substantive significance in interpreting this Agreement.
10.2 Export Laws and Regulations. You acknowledge that any products, software, and technical information (including, but not limited to, services and training) provided pursuant to the Agreement may be subject to Singapore export laws and regulations, and any foreign use or transfer of such products, software, and technical information must be authorized under those regulations. You agree that it will not use, distribute, transfer, or transmit the products, software, or technical information (even if incorporated into other products) except in compliance with Singapore export regulations. If requested by Cosmo, You also agree to sign written assurances and other export-related documents as may be required for Cosmo to comply with Singapore export regulations.
10.3 Relationship of Parties. The parties are independent contractors and nothing herein creates or implies an agency relationship or a joint venture or partnership between the parties.
10.4 Non-Exclusivity. This Agreement is non-exclusive. Nothing herein prevents either party from entering into similar agreements with other entities.
10.5 Severability. If any provision here under is declared or held invalid, illegal or unenforceable, this Agreement will be revised only to the extent necessary to make such provision(s) legal and enforceable, or if impossible, the unaffected portions of this Agreement shall remain in full force and effect so long as the Agreement remains consistent with the parties’ original intent.
10.6 Survival. The terms and conditions of this Agreement will survive the expiration or other termination of this Agreement to the fullest extent necessary for their enforcement and for the realization of the benefit thereof by the party in whose favor they operate.
10.7 No Waiver. Either party’s failure to enforce any provision or term of this Agreement shall not be construed as a future or continuing waiver of such provision or term of this Agreement.
10.8 Entire Agreement. This Agreement, together with any Service Orders, SLAs, and Policies, and all applicable tariffs incorporated herein by this reference, sets forth the entire agreement of the parties with respect to the subject matter hereof, and supersedes any prior agreements, promises, representations, understandings and negotiations between the parties. Nothing herein is intended to confer upon any person other than the Parties any rights or remedies here under.
10.9 Third Party Beneficiary Rights. The parties do not intend to create in any other individual or entity the status of third party beneficiary, and this Agreement shall not be construed as to create such status. The rights, duties and obligations contained in this Agreement shall operate only between the parties to this Agreement, and shall inure solely to the benefit of the parties to this Agreement. The provisions of this Agreement are intended only to assist the parties in determining and performing their obligations under this Agreement. The parties to this Agreement intend to expressly agree that only the signatory to this Agreement shall have any legal or equitable right to seek to enforce this Agreement, to seek any remedy arising out of a party’s performance or failure to perform any term or condition of this Agreement, or to bring an action for the breach of this Agreement.
10.10 Excusable Delay. Excluding performance in relation to Section 4, Neither party will be liable for any delay in its performance that arises from causes beyond its control and without its negligence or fault, including but not limited to reliance upon third party providers, products, and services. The delayed party will notify the other promptly of any material delay in performance and will specify in writing the proposed revised performance date or dates as soon as practicable after notice of delay. In the event of any such excusable delay, the dates of performance or of delivery affected by the delay will be extended for a period equal to the time lost by reason of the excusable delay. The delayed party must also describe the cause of the delay and what steps it is taking to remove the cause. The delayed party may not rely on a claim of excusable delay to avoid liability for a delay if the delayed party has not taken commercially reasonable steps to mitigate or avoid the delay.
10.11 Assignment. Cosmo may assign this Agreement to any affiliate or successor who acquires substantially all of its assets. Except as otherwise required by applicable law or regulation, all other attempted assignments shall be void without the prior written consent of the other party, provided, however, that Cosmo will not unreasonably withhold its consent to a request from You to assign this Agreement.
10.12 Governing Law. This Agreement will be governed by the laws of Singapore, and venue for any disputes will lie with the nearest appropriate court to Cosmo’s principal place of business in Singapore.
10.13 Force Majeure. Neither party shall be liable to the other party for any delay, failure in performance, loss, or damage to the extent caused by force majeure conditions such as acts of God, fire, explosion, power blackout, cable cut, acts of regulatory or governmental agencies, unavailability of right-of-way, unavailability of services or materials upon which the Services rely, or other causes beyond the party’s reasonable control, except that Your obligations to pay for Services provided shall not be excused. Changes in economic, business or competitive condition shall not be considered force majeure events.
10.14 Solicitation. During the Term of this Agreement and for a period of one (1) year thereafter, neither Party shall directly solicit any employee(s) of the other Party without such Party’s consent.
10.15 Mitigation. You have a duty to mitigate damages for which Cosmo is liable.
10.16 Limitation Period. Neither party may institute any action in any form arising out of this Master Service Agreement more than two (2) years after the cause of action has arisen, or in the case of nonpayment, more than two (2) years from the date of last payment.
Except as otherwise provided in this Master Service Agreement, all notices required or permitted to be given here under shall be issued by an Authorized Individual, in writing and shall be valid and sufficient if dispatched by a) registered or certified mail, postage prepaid, in any post office in the Singapore; b) hand delivery; c) overnight courier; d) facsimile transmission; e) customer web portal; f) ticket service; or g) email upon confirmation of receipt.
Last Updated: 04 Nov 2016
Cosmo System Pte Ltd
7 Temasek Boulevard
Suntec Tower 1 #08-10