1. DEFINITIONS
The terms that begin with an uppercase letter in these General Terms and Conditions of Try & Review For Brands (hereinafter “GTC”), either in their singular or plural form, shall be given the following meanings:
| Affiliate | means, with respect to any Party, any other person that, directly or indirectly: (i) Controls, (ii) is Controlled by or(iii) is under common Control with, such Party, provided that when the person is a natural person, a spouse and children, or any trusts (or the equivalent) solely for the benefit of the individual shall also be an Affiliate; |
| Business Day | means any day which is not a Saturday, a Sunday or a day observed as a gazetted public holiday in Singapore; |
| Clients | refers to the natural person, company or other legal entity for which the Customer has subscribed to use the Platform, notably in the event the Customer is an agent/agency; |
| Confidential Information | means information of whatever nature including (without limitations) all business, financial, technical, operational, engineering, commercial and staff management plans, software source code and object code, design materials, templates, preparatory materials and other information, data, experience and expertise and of whatever kind whether tangible or intangible, whether or not patentable, which is either directly or indirectly disclosed to one Party or received by one Party from the other Party and/or its employees, advisors or consultants or which should be reasonably understood by one Party as the confidential or proprietary information of the other Party. For the avoidance of doubt “Confidential Information” shall include the terms and existence of these GTC, the Platform, the Documentation, all Intellectual Property Rights of Try and Review and all the clients’ data collected through the Platform and belonging to Try and Review, in accordance with Clause 10; |
| Control, Controlled by, Controlling, and similar expressions | means (i) when applied to the relationship between any Party(ies) and a corporation, the ownership or control by such Party(ies) at the relevant time of shares of that corporation carrying the lesser of: (A) 50.01% of the voting rights exercisable at meetings of shareholders of that corporation; and (B) the percentage of voting rights ordinarily exercisable at meetings of shareholders of that corporation that are sufficient to elect a majority of the directors; (ii) when applied to the relationship between any Party(ies) and a partnership, trust or joint venture, means the beneficial ownership by such Party(ies) at the relevant time of more than 50% of the ownership interests of the partnership, trust or joint venture or the contractual right to direct the affairs of the partnership, trust or joint venture; and (iii) when applied to the relationship between any Party(ies) and a limited partnership, means that such Party(ies) is the general partner of the limited partnership; provided that any Party(ies) who Controls a corporation, partnership, limited partnership, trust or joint venture will be deemed to Control a corporation, partnership, limited partnership, trust or joint venture that is Controlled by such corporation, partnership, limited partnership, trust or joint venture; |
| Customer | refers to the natural person, company or other legal entity that has agreed to be bound by these GTC by accepting them; |
| Documentation | means the current version of the operating manuals, user instructions, technical literature and all other related materials in eye-readable form published from time to time by Try and Review relating to the access and the use of the Platform, accessible via www.platform.tryandreview.com; |
| Employee | means any person hired by the Customer or by its Affiliates, Subsidiaries or Clients; |
| GTC | means the General Terms and Conditions of Try & Review For Brands and refers to this document with the terms and conditions detailed herein; |
| Intellectual Property Rights | shall mean all legal and beneficial rights in any and all jurisdictions worldwide, title and interests (including all future and contingent rights) in any patents, trademarks, service marks, designs, trade secret, business or domain names, copyrights, computer software, topography rights, database rights, inventions, rights protecting goodwill or reputation and rights in the nature of unfair competition rights (whether or not any of these is registered and including applications for registration of any of the same) and rights under licenses and consents in relation to any such thing and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of the above which may subsist anywhere in the world; |
| License | refers to the non-exclusive and non-transferable license granted by Try and Review to the Customer to access and to use the Platform in the Territory, and where applicable, the Documentation; |
| Party (Parties) | refers to one or both parties to these GTC; |
| Personal Data | shall have the meaning attributed hereto in Clause 10; |
| Platform | means the Try & Review For Brands online platform developed by Try and Review, accessible at the following URL: https://platform.tryandreview.com/; |
| Privacy Policy Terms | means the terms of the Privacy Policy Terms set out at https://www.tryandreview.com/privacy-policy and as referred to in Clause 10.3 of these GTC. |
| Subsidiary | means, in relation to a corporate entity, any other corporate entity that is Controlled by such corporate entity; |
| Territory | means all countries, without exception; |
| Try and Review | refers to Try and Review Pte. Ltd., a company incorporated under the laws of Singapore whose principal place of business is at 787 Geylang Road, #02-01, Singapore 389674; |
| Update | means a new incremental release change in the Platform which allows for debugging, improving the Customer’s experience, as well as interoperability or compatibility necessary to run the Platform on all the devices. |
2. PURPOSE OF THE DOCUMENT
2.1. The purpose of these GTC is to set forth the general terms and conditions whereby Try and Review grants the Customer who accepts:
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An access right to access and to use the Platform under the conditions and terms defined herein; and
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A service maintenance and technical support related to the Platform.
3. SCOPE
3.1. The License granted by Try and Review to the Customer is non-exclusive and non-transferable and allows the Customer to access and use the Platform in the Territory, and, where applicable, the Documentation.
3.2. The Customer may only sub-license the License to its Affiliates, Subsidiaries and Clients in the Territory for them to use the Platform strictly in accordance with the Documentation. For the avoidance of doubt, nothing in these GTC shall prohibit Try and Review in granting licenses to use, copy, sub-license and distribute the Platform to any other third parties.
3.3. Sublicenses granted by the Customer shall be concluded on terms not more favorable than these GTC. Try and Review reserves the right to request from the Customer lists of the Customer’s sub-licensed Affiliates, Subsidiaries and Clients as well as a copy of the said sublicenses, and the Customer undertakes to provide Try and Review with such lists and copies immediately upon request.
4. DURATION
4.1. These GTC shall be effective and binding on the Customer upon the acceptance by the Customer of these GTC by creating an account on, and/or subscribing to the Platform and clicking the box indicating acceptance.
4.2. If the individual accepting this document is accepting on behalf of a company or other legal entity, such individual represents that he/she has the authority to bind such entity and its affiliates to these GTC, in which case the term “Customer” shall refer to such entity and its Affiliates.
4.3. The GTC shall continue during the whole duration of the access to and the use of the Platform and until all subscriptions hereunder have expired or have been terminated in accordance with Clause 11.
5. ACCESS TO AND USE OF THE PLATFORM AND CONTENT
5.1. Subscriptions, term and renewal
Unless otherwise provided herein, (a) access to and use of the Platform are purchased as subscriptions for that services stated in the applicable online purchasing portal (b) subscriptions for additional services may be added during a subscription term at the pricing stated in the applicable online purchasing portal for a new subscription term commencing at the time the subscriptions for such additional services are added, and (c) any subscriptions will terminate 12 months after its purchase in case the subscriptions automatic renewal are canceled by Customer.
The term of each subscription shall be as specified in the applicable online purchasing portal. Except as otherwise specified, subscriptions will automatically renew for additional periods equal to 12 months, unless either party gives the other notice of non-renewal at least 30 days before the end of the subscription term.
Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Try and Review regarding future functionality or features of the Platform.
5.2. Free trial
If Customer registers for a free trial of the Platform, Try and Review will make the Platform available to Customer on a trial basis free of charge until the earlier of (a) the free services for which the Customer registered to use on the Platform are fully used, or (b) the start date of any subscription purchased by Customer for such access and use, or (c) termination by Try and Review in its sole discretion.
Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this document by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE PLATFORM DURING CUSTOMER’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES SUBSCRIPTIONS TO THE SAME PLATFORM AS THAT COVERED BY THE TRIAL, OR EXPORTS SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD.
NOTWITHSTANDING THE “WARRANTIES” AND “DISCLAIMER, LIMITATION OF LIABILITY” ARTICLES BELOW, DURING THE FREE TRIAL, ACCESS TO AND USE OF PLATFORM ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND TRY AND REVIEW SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE LICENSE FOR THE FREE TRIAL PERIOD.
WITHOUT LIMITING THE FOREGOING, TRY AND REVIEW AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE PLATFORM DURING THE FREE TRIAL PERIOD WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” ARTICLE BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THESE GTC TO TRY AND REVIEW AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S ACCESS AND USE OF THE PLATFORM DURING THE FREE TRIAL PERIOD, ANY BREACH BY CUSTOMER OF THESE GTC AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER. CUSTOMER SHALL REVIEW THE APPLICABLE DOCUMENTATION DURING THE TRIAL PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE PLATFORM BEFORE MAKING A PURCHASE.
5.3. Changes to technical features
Try and Review may, at any time, change the technical features in respect of access and use of the Platform (including cancellation of a component of the Platform) as long as such change does not have any adverse effect on the Customer.
5.4. Obligations of Try and Review
5.4.1. Try and Review shall grant access to the Platform to the Customer pursuant to the Customer’s acceptance of the GTC and of the Documentation.
5.4.2. Try and Review shall grant access to and use of Platform with the latest operating systems Updates without any charges to the Customer. Any Update shall be deemed to be part of the Platform subject to these GTC.
5.4.3. Try and Review shall provide the Customer with standard technical support as well as remedial maintenance services for the Platform within 48 hours of the occurrence of any critical malfunction of the Platform in direct control of Try and Review and affecting all users at no additional charge, except for planned downtime (of which Try and Review shall give advance electronic notice) and any unavailability caused by circumstances such as described in Clause 12 below.
5.4.4. Try and Review shall use commercially reasonable efforts to rectify, anticipate, mitigate, resolve, and combat all technical incompatibility issues arising during the course of the License under these GTC.
5.5. Obligations of the Customer
5.5.1. Restrictions:
The Customer will not and will not permit any third party to:
(a) challenge Try & Review’s title to or rights in the Platform;
(b) use the Platform in any manner or commit any other act that would or might jeopardize or invalidate Try and Review’s right on the Platform;
(c) use, copy, modify, or distribute the Platform (electronically or otherwise), or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by Try and Review in a separate written agreement signed by Try and Review. The Customer may not reverse, assemble, compile, or otherwise translate the Platform ;
(d) use the Platform in a manner that is disparaging to, or that would otherwise harm the goodwill associated with, the Platform, or in any manner which implies or indicates a partnership or other relationship between the Parties other than the Parties’ relationship as contemplated under these GTC; or
(e) apply for any patent registration of any Intellectual Property Right deriving from the Platform anywhere in the world, unless authorized by Try and Review in advance in writing to do so.
5.5.2. When applicable, the Customer shall pay Try and Review the subscriptions fees in accordance with Clauses 5.1 and 6 of these GTC.
5.5.3. The Customer shall hold harmless and indemnify Try and Review, its officers, agents and employees against any actions, claims, costs, damages and expenses which it may suffer or sustain as a result of the use or sub-license of the Platform by the Customer and, as the case may be, by the Customer’s Affiliates, Subsidiaries and Clients.
6. FEES, PAYMENT AND TAXES
6.1. The Customer agrees to pay all fees specified in the applicable online purchasing portal. Invoices can be paid in cash, by credit or debit card (CB, Visa and Mastercard), bank transfer or Paypal. The actual processing of any online credit/debit card payments is done directly with the secure payment gateway STRIPE. Except as otherwise specified herein, (i) fees are based on the Platform subscriptions purchased and not actual usage, (ii) payment obligations are non- cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
6.2. Customer will provide Try and Review with valid and updated credit card information. If Customer provides credit card information to Try and Review, Customer authorizes Try and Review to charge such credit card for all subscriptions purchased and listed in the applicable online purchasing portal for the initial subscription term and any renewal subscription term(s) as set forth in Clause 5.1 of these GTC. Bank charges arising from the payment method used by the Customer shall be borne by the Customer.
Such charges shall be made in accordance with any billing frequency stated in the applicable online purchasing portal. If the applicable online purchasing portal specifies that payment will be by a method other than a credit card, Try and Review will invoice Customer in advance and otherwise in accordance with the relevant applicable online purchasing portal information. Unless otherwise stated in the applicable online purchasing portal, invoiced fees are due immediately from the invoice date.
Customer is responsible for providing complete and accurate billing and contact information to Try and Review through the Platform and updating of any changes to such information within the Platform.
6.3. If any fees subscriptions owing by Customer under this License is 30 days or more days overdue for invoices payment method other than credit card online, or 10 days or more days overdue in the case of amounts Customer has authorized Try and Review to charge to Customer’s credit card, Try and Review may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under this License so that all such obligations become immediately due and payable, and suspend the License until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, Try and Review will give Customer at least 10 days’ prior notice that its account is overdue, before suspending the access and the uses of the Platform to Customer.
6.4. Try and Review’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, accessible by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder.
If Try and Review has the legal obligation to pay or collect Taxes for which Customer is responsible under this Clause 6, Try and Review will invoice Customer and Customer will pay that amount. For clarity, Try and Review is solely responsible for taxes assessable against it based on its income, property and employees.
7. WARRANTIES
7.1. General warranties
Each Party represents to the other Party that it is duly incorporated and warrants that it has the full power, capacity and authority to enter into these GTC.
7.2. Try and Review warranties
7.2.1. Try and Review warrants that (i) it has full right and title in the Platform which is licensed hereunder, (ii) it is the beneficial owner of all technologies included in the Platform, (iii) to the knowledge of Try and Review, the Platform does not infringe upon any Intellectual Property Rights of any third party, and (iv) it has the right to grant a license on the Platform.
7.2.2. Try and Review warrants that the Platform shall be in all material respects, in compliance with all specifications, descriptions, standards, and requirements as stated in these GTC and Documentation provided by Try and Review.
7.2.3. Try and Review does not warrant or represent to the Customer that the Platform or any part thereof will be defect-free or error-free.
7.3. Customer warranties
7.3.1. The Customer warrants that it is in compliance, and shall remain in compliance during the whole duration of the License, with all applicable laws and regulations, including those relating to data protection, privacy, encryption, identity theft, data breach, consumer protection, and data security, and any applicable industry standards relating to privacy and data security.
7.3.2. The Customer warrants that it has got acquainted with the description of the Platform and the Documentation as referred to in Clause 1 of these GTC.
7.3.3. The Customer shall indemnify, hold harmless and defend Try and Review against any claim, suit or proceeding and any costs, expenses, damages and liability therefrom or settlement thereof (including but not limited to fees of attorneys, allocated costs for in-house legal services and other related costs) to the extent that the same is based on or in connection with a breach of a representation or warranty contained in these GTC by the Customer and, as the case may be, by the Customer’s Affiliates, Subsidiaries and Clients, and/or is based on or in connection with from any breach of these GTC by the Customer and, as the case may be, by the Customer’s Affiliates, Subsidiaries and Clients.
8. DISCLAIMER; LIMITATION OF LIABILITY
8.1. SUBJECT TO CLAUSE 8.3, IN NO EVENT WILL TRY AND REVIEW BE LIABLE TO THE CUSTOMER OR ANY OF ITS AFFILIATES, SUBSIDIARIES OR CLIENTS FOR:
(a) ANY LOST PROFITS (WHETHER DIRECT OR INDIRECT),
(b) LOST REVENUES (WHETHER DIRECT OR INDIRECT), OR
(c) ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSSES OF ANY KIND,
IN EACH CASE, HOWEVER ARISING (INCLUDING, WITHOUT LIMITATION, AS A RESULT OF NEGLIGENCE) OUT OF OR IN CONNECTION WITH THESE GTC.
8.2. SUBJECT TO CLAUSES 8.1 AND 8.3 HEREOF, IN NO EVENT SHALL TRY AND REVIEW’S LIABILITY IN RELATION TO AN EVENT FOR WHICH TRY AND REVIEW IS HELD LIABLE UNDER OR IN CONNECTION WITH THE LICENSE AND THESE GTC EXCEED THE AGGREGATE AMOUNT OF FEES SUBSCRIPTIONS COLLECTED BY TRY AND REVIEW HEREUNDER OVER THE [12] MONTHS PRECEDING SUCH EVENT AND IN NO EVENT SHALL TRY AND REVIEW’S MAXIMUM AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THESE GTC EXCEED THE AGGREGATE AMOUNT OF FEES SUBSCRIPTIONS COLLECTED BY TRY AND REVIEW HEREUNDER.
8.3. NOTHING IN THIS CLAUSE 8 SHALL EXCLUDE:
(a) LIABILITY FOR DEATH OR PERSONAL INJURY ARISING AS A RESULT OF TRY AND REVIEW’S (OR ITS OFFICERS', EMPLOYEES’ OR AGENTS’) NEGLIGENCE; OR
(b) LIABILITY FOR FRAUD OR WILLFUL MISCONDUCT.
8.4. THE FOREGOING EXCLUSIONS WILL APPLY REGARDLESS OF WHETHER CLAIMS BROUGHT UNDER OR IN CONNECTION WITH THE LICENSE AND THESE GTC ARE FORESEEABLE, WHETHER THEY ARE BROUGHT UNDER TORT, NEGLIGENCE, CONTRACT OR ANY OTHER LEGAL OR EQUITABLE THEORY AND WHETHER ANY REMEDY UNDER THESE GTC FAILS OF ITS ESSENTIAL PURPOSE.
9. INTELLECTUAL PROPERTY RIGHTS
The Parties understand and agree that:
9.1. Each Party retains ownership and title to any and all of its pre-existing Intellectual Property Rights. Except as expressly provided in Clause 9.4 below, these GTC intended to, and shall not, transfer or license any Intellectual Property from one Party to the other.
9.2. All Intellectual Properties developed by TRY AND REVIEW during the term of the License and under these GTC shall vest unconditionally in TRY AND REVIEW, unless otherwise agreed (including on the financial terms) in writing by TRY AND REVIEW and the Customer.
9.3. Unless otherwise stipulated in these GTC or agreed by the other Party in writing, neither Party may modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, data, software, products or services obtained from the Intellectual Property Rights of the other Party.
9.4. Subject to Customer’s express directions and specifications, Try and Review may include the name of Customer, their trademarks, logos and/or contact information in directories of Try and Review Platform for the purpose of promoting the use of Try and Review Platform. Customer hereby grants Try and Review a non-exclusive, royalty-free license to use, display and reproduce Customer’s trademarks, or service marks and logos solely in connection with Try and Review marketing of the Platform. Try and Review shall use the Customer’s trademarks in accordance with policies as provided by Customer from time to time.
9.5. Customer grants to Try and Review and its Affiliates a worldwide, perpetual, irrevocable, royalty free license to use and incorporate into the Platform any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer, its Employees and its Clients relating to the License and the usage of the operation of Try and Review’s or its Affiliates.
10. DATA PROTECTION AND PRIVACY POLICY TERMS
10.1. “Personal Data” means any information obtained in connection with the GTC and the Platform, that can reasonably be used to identify and/or rank an individual, including but not limited to an Employee or a Client, in respect, without limitation, to his/her name, contact details and precise location information.
10.2. The Parties acknowledge that Personal Data shall, at all time, remain the property of Try and Review.
10.3. The terms of the Privacy Policy Terms are hereby incorporated by reference and shall apply to the extent Customer data include Personal Data.
10.4. The Customer represents, warrants and covenants to Try and Review that it is in compliance, and shall remain in compliance during the whole duration of the License, with all applicable laws and regulations, including those relating to data protection, privacy, encryption, identity theft, data breach, consumer protection, and data security, and any applicable industry standards relating to privacy and data security, including the Personal Data Protection Act 2012 of Singapore and the General Data Protection Regulation (Regulation (EU) 2016/679.
10.5. The Customer agrees that it shall not disclose Personal Data to any third party, including subcontractors, Affiliates, Subsidiaries and Clients, except as permitted under these GTC. If the Customer is to use any third party to process Personal Data, the Customer shall ensure that any approved third party is subject to the terms of these GTC, including this Clause 10. If the Customer is to sub-license the App to its Subsidiaries, Affiliates and/or Clients, the Customer shall ensure that each of them is bound by this Clause 10.
10.6. The Customer represents, warrants, and covenants that it has developed and implemented, and will consistently update and maintain as needed: (i) a written and comprehensive information security program in compliance with applicable laws, rules, regulations and industry standards; and (ii) reasonable policies and procedures designed to detect, prevent, and mitigate the risk of data security breaches or identify theft in respect of the Personal Data.
10.7. The Customer shall provide appropriate training to its Employees and subcontractors to ensure their treatment of the Personal Data is in accordance with these GTC including without limitation this Clause 10. Such training shall be provided before Employees and subcontractors are allowed access to Personal Data. Such training shall be consistent with industry best practices. The Customer shall limit disclosure of and access to Personal Data to only those personnel who have a business need to access such Personal Data in order to fulfill the purposes of the License.
10.8. For the avoidance of doubt, Try and Review shall not be liable for and shall be held harmless and indemnified, without limitation, against any claims, demands, costs, expenses, damages and any other liability whatsoever by third parties, arising directly or indirectly from non-compliance of the Customer or any of its Subsidiaries, Affiliates and/or Clients with its obligations under this Clause 10.
10.9. This Clause 10 and all provisions herein shall survive so long as, and to the extent that, Try and Review and/or the Customer retains any Personal Data.
11. TERMINATION
11.1. Termination for convenience
Each Party may terminate these GTC for convenience at any time, subject to a [three (3) months] prior written notice to the other Party.
All subscriptions to the Platform shall be paid until the effective termination date.
This effective termination date shall be the later of (a) when the Customer has utilized all services included in its subscription(s) or (b) twelve (12) months after the date of each of the Customer's subscriptions.
11.2. Termination for breach
Try and Review shall be entitled to forthwith terminate these GTC by giving written notice to the Customer if the Customer substantially fails to perform its obligations under these GTC and such failure cannot be remedied or rectified within 15 Business Days' notice from Try and Review to the Customer.
11.3. Termination or suspension for another event
11.3.1. Try and Review shall be entitled to immediately terminate these GTC by giving written notice to the Customer in the event of the appointment of a receiver or manager over the whole or any part of the property or undertaking of the Customer or the commencement of any winding-up or liquidation proceedings against the Customer;
11.3.2. Notwithstanding the above, Try and Review may suspend the access to and the use of Platform pending the rectification of any failure by the Customer.
11.4. Consequences of the termination
11.4.1. Upon effective termination of these GTC (howsoever occasioned), the Customer agrees to discontinue immediately all accesses and all use of the Platform.
11.4.2. In the event that the access to and the use of the Platform and these GTC are terminated, the Customer shall procure that sublicenses relating to the Platform shall be, at the option of Try and Review, transferred and assigned by the Customer to Try and Review, and that a clause to this effect shall be included in any sublicense agreement relating to the Platform. To the extent permissible by law, consent of the sub-licensees will not be required for such transfer and assignment.
11.4.3. If Try and Review does not use the above option set out in Clause 11.4.2, the Customer warrants that the sub-licenses shall immediately cease on the effective date of termination. Therefore, the use of the Platform by any Customer's Affiliates, Subsidiaries and Clients shall be immediately discontinued from the effective date of termination.
11.4.4. Termination shall not prejudice or affect any right of action or remedy which shall have accrued or shall thereafter accrue to either Party and all provisions which are to survive these GTC or which are implied to survive shall remain in full force and effect. For the avoidance of doubt, the right to claim loss or damage arising from an event which caused a breach of contract is expressly reserved.
11.4.5. Upon termination pursuant to Clause 11, each Party shall at its own costs return or destroy, at the other Party's option any Confidential Information of such other Party, including, in respect of Try and Review, all Documentation (to the extent feasible). Any Confidential Information that is not returned or destroyed shall be kept in strict confidence in accordance with Clause 13.
11.4.6. For the avoidance of doubt, any termination of the access to and the use of the Platform, and thus of these GTC (howsoever occasioned) shall not affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
12. FORCE MAJEURE
Neither Party shall be responsible for any failure to perform due to unforeseen circumstances or to causes beyond the Parties' reasonable control, including but not limited to acts of God, fire, explosion, adverse weather conditions, flood earthquake, terrorism, riot, civil commotion, war, hostilities, strikes, work stoppages, slow-downs, or other industrial disputes, accidents, riots or civil disturbance, acts of government, lack of power and delays by suppliers or materials shortages of transportation, facilities, fuel, energy, labour, or materials but, for the avoidance of doubt, nothing shall excuse the Customer from any payment obligations under these GTC. In the event of any such delay, either Party may defer any access and usage dates for a period equal to the time of such delay.
13. CONFIDENTIALITY
13.1. Each Party agrees to maintain in strict confidence the Confidential Information of the other Party which is disclosed in the course of the License and to exercise reasonable care to safeguard the Confidential Information including, without limitation, those steps that it takes to protect its own Confidential Information of a similar nature. Each Party shall not, without the prior written consent of the other:
(a) use any portion of such Confidential Information for any purpose other than the performance of the Services and of its obligations under these GTC; or
(b) disclose any portion of such Confidential Information to any person or entity other than its officers, employees, agents, and its affiliates who reasonably need to have access to the Confidential Information for the use of the License of its obligations under these GTC.
13.2. In the event a Party discloses Confidential Information of the other Party pursuant to Clause 13.1, that Party shall procure that the recipient of the Confidential Information is bound by appropriate confidentiality agreements and commitments at least as restrictive as the provisions hereof.
13.3. For the purpose of these GTC, Confidential Information shall not include any information which:
(a) is or has become generally available to the public other than as a result of unauthorised disclosure by the recipient or persons to whom such recipient has made the information available;
(b) was received by its recipient on a non-confidential basis, prior to receipt from the other Party, from a third party lawfully possessing and lawfully entitled to disclose such information; or
(c) is required to be released by law, under a court order or an administrative proceeding, or by another appropriate regulatory body, provided however that the Party that is bound by such law, court order or administrative proceeding shall notify, to the extent legally permissible, the other Party promptly in writing of the existence, the terms and circumstances of such requirement so that the other Party may seek any appropriate protective order and/or take any other action (in respect of which it agrees to cooperate in good faith) to limit the potential disclosure of such Confidential Information.
13.4. The obligations under this Clause 13 shall remain in effect and shall survive the termination of the License and the access to and the use of the Platform.
14. AMENDMENT AND ASSIGNMENT
14.1. Try and Review may amend any of these GTC at any time with immediate effect to reflect any changes to applicable Taxes or to comply with any applicable laws and regulations. Any such changes shall be effective and binding on the Customer from the time at which Try and Review notifies the Customer of such changes.
14.2. In addition to Try and Review’s right to amend these GTC under Clause 14.1 above, Try and Review may amend any of these GTC by providing fifteen (15) calendar days’ prior written notice to the Customer.
14.3. If Try and Review makes any changes to these GTC in accordance with Clause 14.2 above and the Customer does not wish to be bound by such changes, the Customer will be entitled to terminate the License by way of written notice to Try and Review within fifteen (15) calendar days of Try and Review’s notice to the Customer amending the GTC. If Try and Review does not receive the Customer’s notification to terminate the License within fifteen (15) calendar days of Try and Review’s notice to the Customer amending these GTC, the Customer will be deemed to have accepted the amendments.
14.4. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld); provided, however, either Party may assign this License in its entirety, without the other Party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a Party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate the License upon written notice. In the event of such a termination, Try and Review will refund Customer any prepaid fees covering the remainder of all services included in all ongoing subscriptions for the period after the effective date of such termination. Subject to the foregoing, the License will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
15. WAIVER
No forbearance, delay or indulgence by either Party in enforcing the provisions of these GTC shall prejudice or restrict the rights of that Party nor shall any waiver of its rights in relation to a breach of these GTC operate as a waiver of any subsequent breach and no right, power or remedy given to or reserved by either Party under these GTC is exclusive of any other right, power or remedy available to that Party and each such right, power or remedy shall be cumulative.
16. ENTIRE AGREEMENT
These GTC set out the entire agreement and understanding between the Parties in respect of the subject matter hereof and supersedes and replaces any and all former warranties, representations, undertaking, understandings and agreement, whether oral or written, relating to such subject matter.
17. SEVERABILITY
If any provision of these GTC is held to be invalid or unenforceable, then such provision shall (so far as it is invalid or unenforceable) be given no effect and shall be deemed not to be included in these GTC but without invalidating any of the remaining provisions of these GTC. The Parties shall then use all reasonable endeavours to replace the invalid or unenforceable provisions by a valid and enforceable substitute provision the effect or which is as close as possible to the intended effect of the invalid or unenforceable provision.
18. SURVIVAL
Termination shall not prejudice or affect any right of action or remedy which shall have accrued or shall thereafter accrue to either Party and all provisions which are to survive the termination of the License or which are implied to survive shall remain in full force and effect. For the avoidance of doubt, the right to claim loss or damage arising from an event which caused a breach of contract is expressly reserved.
19. RIGHTS OF THIRD PARTY
These GTC do not create or confer any rights or benefits enforceable by any person not a party to it.
20. GOVERNING LAW AND COMPETENT JURISDICTION
20.1. These GTC, and all matters arising out of or in connection with them, shall be governed by and construed in all respects in accordance with Singapore law.
20.2. Each Party hereby irrevocably agrees that the Singapore Court shall have exclusive jurisdiction to hear and determine any suit, action or proceedings and to settle any dispute which may arise out of or in connection with the License and these GTC and for such purposes hereby irrevocably submits to the exclusive jurisdiction of such courts. Each Party irrevocably waives any objection which it may have now or in the future to the Singapore Court being nominated for the purpose of this clause on the ground of venue or otherwise and agrees not to claim that any such court is not a convenient or appropriate forum.
21. NOTIFICATION
Each notice, demand or other communication to be given or made under these GTC shall be in writing by electronic mail at the electronic mail address set out in the relevant features of the Platform (or to such electronic mail address as any Party may from time to time notify the others).
A notice so served by electronic mail shall be deemed to have been given, at the time such communication is sent provided that no notification was received by the sender that the electronic mail was undeliverable, provided that in case where delivery by electronic mail occurs after 6.00 pm on a Business Day or on a day which is not a Business Day, a service of electronic mail shall be deemed to occur at 9.00 am on the next following Business Day.
