1. DEFINITIONS:
“Affiliate” means any entity which directly or indirectly owns or controls, is controlled by, or is under common control with, Donnelley Financial or the Client, as the case may be.
“Agreement” means these terms and conditions and any Proposal which was submitted to the Client.
“controls”, “controlled by”, or “under common control with” means either the beneficial or legal ownership of more than fifty (50) percent (%) of (i) the voting power of the entity; and/or (ii) the legal power to direct or cause the direction of general management and policies of the entity.
“Client” means the Party to which the Proposal is addressed.
“Parties” means Donnelley Financial and the Client, and the term “Party” shall refer to either of them.
“Personal Data Protection Legislation” means the PDPA and all other applicable law, from time to time, relating to the processing of personal data.
“Data Room” means the service through which the Client’s authorised End Users may process, store, reference and communicate information, documentation, or files in respect of a specific business transaction or project.
“Donnelley Financial” means Donnelley Financial Solutions Singapore Pte. Ltd. (Company Registration No.: 201114688G), a company incorporated in Singapore with registered office at 2 Battery Road #24-01 Maybank Tower Singapore 049907.
“Effective Date” means earlier of (i) the commencement date for the Services as set out in the Proposal; or (ii) the first date on which the Data Room is used by the Client or by an End User (other than for demonstration purposes).
“End User(s)” means those employees, professional advisors, contractors, customers and agents of the Client who have been granted permission to access Data Rooms.
“Force Majeure Event” means an event beyond the reasonable control of Donnelley Financial, which prevents, impairs or disrupts Donnelley Financial’s ability to provide the Services or comply with any of its obligations under this Agreement, or the ability for the Client or its End Users to access the Services, including but not limited to:
(a) act of God (such as, but not limited to, fires, explosions, earthquakes, drought, tidal waves, floods and severe weather conditions);
(b) war, hostilities (whether war is declared or not), invasion, act of foreign enemies, mobilisation, requisition, or embargo;
(c) general outbreak of disease, epidemic or pandemic;
(d) rebellion, revolution, insurrection, or military or usurped power, or civil war;
(e) contamination by radioactivity or other hazardous properties of any explosive nuclear assembly (or nuclear component thereof);
(f) riot, commotion, strikes or other labour disturbances, lock outs, sabotage, or disorder;
(g) interruptions, loss or malfunctions of utilities, transportation, communications or computer (software and hardware) or telephone communication services;
(h) failures or mechanical difficulties with information storage or retrieval systems and any computer, system or other equipment failure or malfunction caused by any computer virus or the malfunction or failure of any communications medium; or
(i) acts or threats of terrorism.
“PDPA” means the Personal Data Protection Act 2012.
“Permitted Use” means the specific business transaction (or set of business transactions) for which a Data Room is created.
“Proposal” means Donnelley Financial’s proposal accepted by the Client whether by written or oral acceptance by the Client, or by the use of the Data Room by the Client or an End User (other than for demonstration purposes).
“Services” means secure online document hosting, exchange, communication and related services (including without limitation access to Data Rooms) provided by Donnelley Financial to the Client.
2. LICENCE
Subject to the terms of this Agreement, Donnelley Financial hereby grants the Client a revocable, non-exclusive, non-sublicensable, non-transferable, limited right and licence to use the Services for the Client’s business transactions. Donnelley Financial authorises the Client to allow End Users to use the Data Rooms; provided always that the Client shall use (and shall ensure that each End User uses) each Data Room only for the Permitted Use and for no other use or purpose. The Client shall not allow any third party to use or access the Services provided to the Client hereunder, except third party End Users authorised by the Client to access the Data Room for the Permitted Use. Title and all ownership rights in the Services and any adaptation thereof, including all related patents, copyrights and other proprietary rights, are and shall at all times remain with Donnelley Financial or its licensors or suppliers. The Client shall not, and shall procure that its End Users do not, attempt to decompile, reverse-engineer or disassemble (except as permitted by law), duplicate, modify or distribute any element of the Services.
Before accessing the Services, authorized End Users shall register with Donnelley Financial and agree to the Terms of Use provided, which may be amended from time to time. Each End User shall receive login credentials for the Services. Login credentials are not transferrable and Client will ensure that all user names and passwords are used only by the applicable End User. Client will be responsible for all login credentials under its control and use of the Services by the End User(s) or any other person that improperly gains access to or uses the Services through any End User.
3. WARRANTIES
Donnelley Financial shall use reasonable endeavours to ensure that the Services are provided in a secure environment and without interruption, and that the Services will substantially conform to the descriptions of the features and functionality of the Data Rooms contained in this Agreement, which may be modified from time to time by Donnelley Financial in its sole and absolute discretion. Donnelley Financial does not warrant, nor does Donnelley Financial make any representations, that the Services will meet all of the Client’s business requirements, or that the Services will be free of errors, interruption, faults or delays. The Client acknowledges and agrees that scheduled downtime may be required for upgrades, backup or maintenance. If the Client notifies Donnelley Financial that its End Users are likely to be affected by scheduled downtime, Donnelley Financial shall use all reasonable efforts to provide notification of such scheduled downtime on the site.
Donnelley Financial’s sole liability, and the Client’s sole and exclusive remedy, under the foregoing warranties shall be limited to supplying, as soon as practicable, and at Donnelley Financial’s cost and expense, services that Donnelley Financial determines to be necessary to allow the Services to perform in accordance with the applicable specifications, provided however, that written notice of an asserted breach of warranty must be received by Donnelley Financial promptly after the Client first become aware of such asserted breach, and in any event, no later than thirty (30) calendar days after the Client first become aware of such asserted breach. The foregoing warranties will not apply to the extent that (i) the Services are used for any purpose other than the Permitted Use, (ii) the cause of a breach of warranty is due to a malfunction in the Client’s hardware, software, or communications network through which the Services are accessed, or (iii) the cause of a breach of warranty is due to any other cause outside of Donnelley Financial or its hosting facility’s sole and reasonable control.
Except as expressly provided in this Agreement, all warranties, conditions, representations, indemnities and guarantees with respect to the Services and the accuracy, operation, functionality, qualifications, or capabilities of the deliverables, Services, or resources provided hereunder, whether express or implied, arising by law, custom, prior oral or written statements by Donnelley Financial or any of its Affiliates, employees, representatives, agents, vendors or subcontractors, or otherwise (including, but not limited to any warranty of satisfactory quality, merchantability, fitness for particular purpose, title and non- infringement) are hereby overridden, excluded and disclaimed to the extent legally permissible.
4. LIMITATION OF LIABILITY
In the event of any loss, damage or destruction of documents, files or media caused by any breach of Donnelley Financial’s obligations hereunder, by Donnelley Financial or any of its Affiliates, employees, representatives, agents, vendors or subcontractors, Donnelley Financial's liability shall be limited to the cost of duplication of such documents or files from backup copies maintained by the Client and the cost of replacement media. Under no circumstances will Donnelley Financial, its Affiliates, employees, representatives, agents, or contractors be liable for the cost of recreating information for which no backup copies have been retained by the Client. Donnelley Financial, its Affiliates, employees, representatives, agents and contractors shall have no liability to the Client or any of the Client’s Affiliate or End Users for any consequential, indirect, special, punitive or incidental damages or lost profits, lost revenue or loss of opportunity, whether foreseeable or unforeseeable, whether based on claims of the Client, its Affiliates or End Users (including, but not limited to, claims for wasted costs, loss of goodwill, use of or reliance on the Services, stoppage of other work or impairment of or diminution in value of other assets/transactions), howsoever arising, even if advised of the possibility of such damage. Save where liability cannot be restricted by law, in no event shall the aggregate liability of Donnelley Financial or its Affiliates exceed the amount actually paid by the Client (excluding VAT) for the Services. No action, regardless of form, arising out of, in connection with or related to the use of the Services pursuant to this Agreement may be brought by the Client more than twelve (12) months after the cause of action first arose. Notwithstanding the foregoing, Donnelley Financial does not exclude or limit its liability in respect of claims for death or personal injury caused by Donnelley Financial’s negligence or for fraud.
5. THE CLIENT’S REPRESENTATIONS
The Client hereby represents to Donnelley Financial that:
(i) it has all rights necessary to utilise its Data Rooms and to otherwise perform its obligations under this Agreement;
(ii) any data, media, or other content placed into the Client’s Data Rooms does not violate the rights of any third party or the laws or regulations of any jurisdiction;
(iii) if any data, media, or other content placed into the Client’s Data Rooms is subject to export control restrictions of any country, it will be solely responsible for complying with all applicable export control, restrictions, obligations and requirements,
(iv) it will comply with any other local, state, federal or foreign laws, rules, regulations, directives and/or ordinances applicable to the performance of its obligations under (and use of the Services pursuant to) this Agreement;
(v) in using the Services it will not (and will ensure that End Users shall not) post, transmit, store, upload or distribute any a) documents, images or other materials which constitute advertising or b) material for the sole purpose of promoting to consumers any good or service from any business entity mentioned or described in the Data Room, c) marketing materials or d) materials which are defamatory, obscene, illegal or which contravene any applicable laws;
(vi) in using the Services it will not (and will ensure that End Users shall not), introduce any software, virus or other material which could interfere with the operation of the Services; and
(vii) it shall retain a hard and electronic copy of any document, image, file or other information provided to Donnelley Financial during and throughout the period in which the Services are provided so that if any such document, image, file or other information is lost, damaged or destroyed during period in which the Services are provided, the Client will be able to provide a replacement.
6. INDEMNITY
Donnelley Financial shall, at its sole cost and expense, release, defend, indemnify and hold harmless the Client, its Affiliates, directors, officers, agents, employees, and shareholders from and against all claims, demands, disputes, complaints, causes of action, suits, losses and damages (including attorneys’ fees) of any kind to the extent they in any way relate to or arise, in whole or in part, due to a claim that the technology used by Donnelley Financial for the Data Rooms or Services infringes a patent, copyright, trade mark, trade secret or other proprietary right of a third party, provided that this indemnity shall not apply to the extent that the infringement was caused by any modification of the Services or Data Rooms by or on behalf of the Client or any End User.
The Client shall, at its sole cost and expense, release, defend, indemnify and hold harmless Donnelley Financial, its Affiliates, directors, officers, agents, employees, and shareholders from and against all claims, demands, disputes, complaints, causes of action, suits, losses and damages (including attorneys’ fees) of any kind to the extent they in any way relate to or arise, in whole or in part, due to a breach of this Agreement (including without limitation, any breach of the Client’s representations in clause 5) or any claim that any document, image, file, data, media, or other content placed into the Client’s Data Rooms violates the intellectual property, privacy or other proprietary rights of any third party or violates any laws, rules, regulations, directives and/or ordinances.
The Party seeking indemnification shall notify the other Party promptly in writing of any such action, suit or proceeding and shall cooperate fully with the indemnifying Party in the defence of any such claim. The indemnifying Party shall have sole control of the defence of any such action and all negotiations for its settlement or compromise, provided that such settlement or compromise shall not interfere with Donnelley Financial's provision of the Services. The indemnified Party may participate, at its expense, in the defence of any such action, but shall make no admission of liability or settle any claim without the prior written agreement of the indemnifying Party.
7. CONFIDENTIALITY
Donnelley Financial and the Client shall keep as confidential and not disclose to any third party any information concerning each other’s business, Services (including without limitation any software, screen layouts, manuals and process workflows), Data Rooms, clients, investors, fees, software programs, trade secrets, data stored on servers under Donnelley Financial’s control, methods or processes which either Party obtains during the performance of this Agreement (“Confidential Information”), without the prior written consent of the other Party. The terms and pricing of the Services shall be considered Confidential Information.
Each Party will use the other Party's Confidential Information solely to fulfill its obligations under this Agreement. Neither Party will disclose, in whole or in part, the other Party's Confidential Information to any person, except (and only to the extent required) to End Users, Affiliates, employees or agents who require access to fulfill the purposes of this Agreement. The Client, on behalf of itself and its End Users further agrees not to reverse engineer the underlying technology of the Services. Where the Client discloses any of Donnelley Financial’s Confidential Information to End Users, Affiliates or agents, the Client shall procure that such End Users, Affiliates and agents agree to being bound by confidentiality obligations that are no less onerous than those in this Agreement.
Each Party acknowledges that any unauthorised use or disclosure of the Confidential Information may cause irreparable damage to the other Party. If an unauthorised use or disclosure occurs, such Party will take, at its expense, all steps that are necessary to recover the other Party's Confidential Information and to prevent its subsequent unauthorised use or dissemination, including availing itself of actions for seisure and injunctive relief. If such Party fails to take these steps in a timely and adequate manner, the other Party may take them at the expense of the first-mentioned Party.
Neither Party will have any confidentiality obligation with respect to any portion of the other Party’s Confidential Information that (i) it independently knew or develops, (ii) it lawfully obtains from a third party under no obligation of confidentiality or (iii) becomes available to the public other than as a result of its act or omission.
8. DATA PROTECTION
For the purposes of this clause 8, the terms “personal data”, “individual” and “processing” shall have the same meanings as ascribed to them in Data Protection Legislation.
For so long as this Agreement continues in force, each Party (“Recipient”) that receives any personal data from the other Party (“Discloser”) agrees that it shall:
(a) manage or process the personal data only in accordance with the written instructions from the Discloser and in accordance with the requirements under the Data Protection Legislation;
(b) only allow its personnel and agents access to the personal data if the Recipient determines that such access is necessary for the fulfillment of its obligations under this Agreement;
(c) not transfer the personal data to any of its sub-contractors without the prior written consent of the Discloser;
(d) not transfer the personal data to a place outside of Singapore without the prior written consent of the Discloser, and where such prior written consent is obtained, only in accordance with the Data Protection Legislation;
(e) have reasonable security measures in place to protect the personal data from any unauthorised or accidental access, collection, use, disclosure, copying, modification, disposal, destruction or similar risks, having regard to all relevant circumstances; and
(f) notify the Discloser within three (3) working days in the event that it receives:
(i) a request from an individual to correct that person’s personal data;
(ii) a request from an individual to have access to that person’s personal data; or
(iii) a complaint or request relating to the individual’s personal data;
(g) provide the Discloser with full cooperation and assistance in relation to any complaint or request made in relation to an individual’s personal data, including by:
(i) providing the Discloser with full details of the complaint or request;
(ii) providing the Discloser, to the extent that it is permitted, with information about the ways in which personal data has been or may have been used or disclosed by the Recipient; and
(iii) confirming the details of the personal data held by the Recipient; and
(h) return all originals, copies, reproductions and summaries of personal data in the Recipient’s possession, custody or control within five (5) working days from the date of the receipt of a written request to do so from the Discloser, or, at the Discloser’s option, destroy all such personal data and confirm destruction of the same, where requested in writing by the Discloser to do so.
Without limiting the foregoing, the Client shall:
(a) comply with Data Protection Legislation and ensure that any written instructions it issues to Donnelley Financial, including the transfer of personal data itself, shall comply with Data Protection Legislation;
(b) have sole responsibility for the accuracy, quality, and legality of the personal data that it discloses to Donnelley Financial, and the means by which the Client collects and discloses the personal data, and immediately notify Donnelley Financial upon becoming aware that personal data has become inaccurate or out of date;
(c) collect personal data in a manner compliant with Data Protection Legislation, including by providing all notices and obtaining all consents as may be requested under Data Protection Legislation in order for Donnelley Financial to lawfully and fairly process personal data in connection with, in relation to and/or arising out of the provision of the Services and as otherwise contemplated by this Agreement;
(d) ensure compliance with the security measures; and
(e) indemnify and hold harmless Donnelley Financial against any fines, costs, losses or expenses arising from any breach of Data Protection Legislation caused by an End User.
The Client warrants that:
(i) the disclosure of personal data to Donnelley Financial is limited to what is necessary in order for Donnelley Financial to perform its obligations under this Agreement;
(ii) such personal data is accurate and up-to-date at the time that it is provided to Donnelley Financial; and
(iii) it shall provide advance written notice to Donnelley Financial of its intention to disclose personal data to Donnelley Financial for use in conjunction with this Agreement.
9. TERM AND TERMINATION
This Agreement shall have an initial term commencing on the Effective Date and continuing for the period as set out in the Proposal, during which period neither Party may terminate this Agreement save as set out below. Unless otherwise stated in the Proposal, following the expiry of the initial term, this Agreement shall continue unless and until terminated by either Party, by giving to the other Party no less than one month’s written notice of termination.
Following the expiry of the initial term and up until the expiry of the Notice Period – the Client shall pay Donnelley Financial for the Services at the applicable extension pricing rate detailed in the Proposal.
Either Party may terminate this Agreement upon written notice in the event the other Party breaches any of the material terms of this Agreement and fails to cure such breach within thirty (30) calendar days of the breaching Party’s receipt of written notice from the non-breaching Party. In addition to its right to terminate, Donnelley Financial may deny the Client or any of its End Users access to the Services (including the ability to open Data Rooms) if: (i) the Client or any of its End Users use the Services beyond the scope of the Permitted Use or in violation of any law or regulation; (ii) the Client’s or any of its End Users’ use of the Services may, in Donnelley Financial’s reasonable opinion, unreasonably impair the ability of other End Users to access or use the Services; or (iii) the Client has failed to pay any overdue invoice after receipt of written or email notice of such failure and a thirty (30) calendar day opportunity to cure.
Upon termination or expiration of this Agreement, unless a winding-up period is specifically agreed in writing by the Parties, the Client will, on and from the date on which this Agreement terminates or expires, cease utilising the Services and immediately return all materials relating to, or constituting part of, the Services, and Donnelley Financial may, in its sole and absolute discretion, terminate the Client's and its End Users’ access to its Data Rooms and remove the Client's Data Rooms from the Services at anytime following such termination.
10. ASSIGNMENT
Neither Party may assign this Agreement without the other Party's prior written consent, such consent not to be unreasonably withheld, provided that Donnelley Financial may, without the Client’s consent, assign its right to payments hereunder to an Affiliate and/or may subcontract performance of its obligations to its Affiliates.
11. MODIFICATION
Donnelley Financial reserves the right at any time to modify the features, functionality or performance of the Services, and this Agreement shall be deemed to be amended accordingly so as to reflect such modification (if applicable).
12. SEVERABILITY
If any provision of this Agreement is held to be illegal, invalid or unenforceable, such illegality, invalidity or unenforceability will not affect the legality, validity and enforceability of the other provisions of this Agreement.
13. INDEPENDENT CONTRACTORS
This Agreement shall not be deemed to create any employment, partnership, or joint venture relationship between the Parties hereto. Neither Party shall have the authority or represent itself as having the authority to bind the other party to any agreement or commitment with a third party or otherwise.
14. GOVERNING LAW AND JURISDICTION
This Agreement will be governed and construed in accordance with the laws of the Republic of Singapore. The Parties hereby irrevocably submit to the exclusive jurisdiction of the Courts of Singapore.
In the event of any dispute or difference between the Parties arising out of or in connection with this Agreement (“Dispute”), the following dispute resolution procedure shall apply:
(a) The disputing Party shall serve on the other Party, written notice of the Dispute, setting out in full, the nature and particulars of the Dispute (“Dispute Notice”), together with any supporting documents. Upon receipt of the Dispute Notice, the Parties shall attempt, in good faith, to seek to resolve the Dispute by way of negotiations for a period of [30 calendar days] from the date of the Dispute Notice (“Negotiation Period”).
(b) If, upon the expiry of the Negotiation Period, the Parties are unable to resolve the Dispute, the Dispute shall be referred to and finally resolved by arbitration in Singapore, in accordance with the arbitration rules of the Singapore International Arbitration Centre (“SIAC”) for the time being in force, which rules are deemed to be incorporated by reference to this clause 14. The tribunal of the SIAC shall consist of one (1) arbitrator to be agreed upon between the Parties or in the event that such agreement cannot be reached, appointed by the chairman of the SIAC. The language of the arbitration shall be English and the decision of the arbitrator shall be final and binding on the Parties.
15. FORCE MAJEURE
The Client acknowledges and understands that Donnelley Financial does not and cannot control the flow of data to or from the Services, as such flow depends in large part on the performance of internet services and software provided or controlled by third parties and on the public internet infrastructure, as well as other events beyond the control of Donnelley Financial. At times, action or inaction of parties other than Donnelley Financial or events beyond Donnelley Financial’s reasonable control can impair or disrupt Donnelley Financial’s ability to provide the Services or the ability for the Client or its End Users to access the Services. Notwithstanding anything to the contrary in this Agreement, Donnelley Financial disclaims, and the Client shall not hold Donnelley Financial responsible for, any and all liability resulting from or related to one or more Force Majeure Events.
If Donnelley Financial is unable to perform its obligations under this Agreement as a direct result of one or more Force Majeure Events, it shall notify the Client in writing of such inability and describe the relevant Force Majeure Event(s). This Agreement shall be suspended during the period that the Force Majeure Event(s) continue(s) to have effect. If the Force Majeure Event(s) continue(s) for a period of: (a) more than [20 working days] from the date that Donnelley Financial notifies the Client of such Force Majeure Event(s); or (b) such other extended period as may be agreed between the Parties in writing, Donnelley Financial may issue a written notice to the Client to terminate this Agreement with immediate effect from the date of the termination notice (in which case clause 9 shall apply).
16. SURVIVAL
The provisions of clauses 1, 3-8, 13-14, this clause 16 and any other provision that should be expected to survive shall survive the termination or expiration of this Agreement.
17. THIRD PARTY RIGHTS
The Contracts (Rights of Third Parties) Act (Chapter 53B) of Singapore, as may be modified, amended or supplemented from time to time, shall not under any circumstances apply to this Agreement, and any person who is not a party to this Agreement shall not have any rights whatsoever to enforce this Agreement, save that for clauses of this Agreement that confer rights and benefits on Donnelley Financial’s Affiliates, directors, officers, agents, employees and/or shareholders, such persons may enforce those rights and benefits.
18. PUBLICITY
Following completion of the Permitted Use to the Client’s reasonable satisfaction, Donnelley Financial may: (i) include the Client in current customer lists on the Venue website and other promotional materials, which are shown to prospective users; (ii) display the Client’s logo in a rotating display of other companies’ logos on the Venue website; and (iii) use, reproduce and display testimonials, white papers and other materials approved by the Client on the Venue website and in other promotional materials.
19. PAYMENT OF INVOICES
Save as may be set out in the Proposal, the Client will pay Donnelley Financials invoices within 30 calendar days of the date of such invoice in full and without any deduction or set-off or withholding whether on account of any taxes or other levies or otherwise, save for deductions or withholdings required by applicable laws. In the event that the Client is required by applicable law to deduct or withhold amounts from any payments to Donnelley Financial, the fees shall be increased by an amount (and the Client shall increase the amounts paid to Donnelley Financial) such that the net amount received by Donnelley Financial is the same as it would have been had there been no deduction or withholding made.
20. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding of the Parties with respect to the Services and supersedes all other agreements with respect to the subject matter hereof.