Terms of Service

Embed Singapore Pte. Ltd. (UEN 202343311H) and its Affiliates (collectively, “Embed”) develop, manufacture, procure and sell entertainment technology software (both on-premise and cloud-based), hardware and firmware systems.

Any quote document signed between the Licensee and Embed (“Quote”) and this Terms of Service collectively form the “Agreement”. Except to the extent that the Licensee and Embed have executed a separate agreement varying the terms of the Agreement, these terms and conditions of the Agreement exclusively govern the Licensee’s access to and use of the products and services provided by Embed and constitute a binding legal agreement between the Licensee and Embed.

The Licensee acknowledges and agrees that, by accessing, purchasing or using the Products and Services (as defined in Clause 2.1), the Licensee indicates that it has read, understood and irrevocably agreed to be bound by the terms of the Agreement, and the Terms of Service shall be valid, legally binding and enforceable against it as of the date specified in the Quote (the “Effective Date”). If the Licensee does not agree to these Terms of Service, then the Licensee shall have no right to access or use any part of the Products and Services.

Embed reserves the exclusive right to periodically update the Agreement unilaterally at its discretion at any time, by posting the modified version at the following URL: https://www.embedcard.com/terms-of-service or otherwise provide the Licensee with notice of the modification. The Licensee’s continued access and use of the Products and Services after the posting of any modifications to the relevant terms shall constitute its acceptance of the modified Agreement without any further action being required on its part. If the terms of the modified Agreement are not acceptable to the Licensee, its only recourse is to cease using the Products and Services.

1. DEFINITIONS

“Affiliate” means, as to any person (the "Subject"), any person that, directly or indirectly, controls, is under common Control with, or is Controlled by, the Subject;

“Business Day” means any day (other than a Saturday, Sunday or public holiday) on which banks in Singapore are open for normal banking business;

“Confidential Information” means all and any data and information whether in written, machine readable or other tangible form, or obtained by the receiving party through observation or examination of such information and material or disclosed orally, that is proprietary, confidential and of value to the disclosing party, is not generally known to competitors of the disclosing party, including but not limited to (a) information concerning or relating in any way whatsoever to its business, distributorship, franchise or other arrangements, principals, any of the trade secrets or confidential operations, processes or inventions carried on or used by the disclosing party, any information concerning the organisation, business, finances, transactions or affairs of the disclosing party, its dealings, secret or confidential information which relates to its business or any of its principals’, clients’ or customers’ transactions or affairs, its technology, designs, documentation, manuals, budgets, financial statements or information, accounts, dealers’ lists, customer lists, marketing studies, drawings, notes, memoranda and the information contained therein, any information therein in respect of trade secrets, technology and technical or other information relating to the actual or proposed development, manufacture, clinical testing, analysis, marketing, sale or supply of any products or services by the disclosing party, and plans for the development or marketing of such products or services and information and material which is either marked confidential or is by its nature intended to be exclusively for the knowledge of the receiving party alone; (b) all information or materials prepared in connection with the Agreement or any related subsequent contract and includes, without limitation, all of the following: designs, software, programs, drawings, specifications, techniques, models, data, source code, object code, documentation, diagrams, flow charts, research, development, processes, procedures, ideas, data, “know-how”, new product or new technology information, product prototypes, product copies, manufacturing, development or marketing techniques and materials, development timetables, strategies and development plans, including trade names, trademarks, information related to customers, the disclosing party or its personnel, pricing policies and financial information, and other information of a similar nature, whether or not reduced to writing or other tangible form, and any other trade secrets or non-public business information; (c) the terms of the Agreement; (d) in the case of Embed as the disclosing party, without limiting the foregoing, the code, technology, Intellectual Property and business operations of Embed and the Documentation and (e) where the Licensee is the disclosing party, the Customer Data, and for the avoidance of doubt, “Confidential Information” shall exclude any item of information which (i) is or becomes available in the public domain without the fault of the receiving party; (ii) is disclosed or made available to the receiving party by a third party without restriction and without breach of any relationship of confidentiality; (iii) is independently developed by the receiving party without reliance on or use of the disclosing party’s Confidential Information; or (iv) is known to the receiving party prior to disclosure by the disclosing party;

“Control” when used with respect to any specified person means the possession, directly or indirectly, of power to direct or cause the direction of the management and policies of such specified person or entity, whether through the ownership of voting securities or by contract or otherwise;

“Core Firmware” means the core which is developed, owned and/or created by Embed including but not limited to all computer programs, frameworks, software, libraries, engines, crawlers, spiders, bots, scripts, functions, algorithms, electronic agents, encryption, plugins, APIs and/or all other forms of computer or object code comprised therein (including any Customisations, Updates or Upgrades);

“Core Software” means the core software which is developed, owned and/or created by Embed including but not limited to all computer programs, frameworks, software, libraries, engines, crawlers, spiders, bots, scripts, functions, algorithms, electronic agents, encryption, plugins, APIs and/or all other forms of computer or object code comprised therein (including any Customisations, Updates or Upgrades);

“Customer Data” means all and any data, facts, statistics and other information whatsoever (including, without limitation, Personal Data) generated in connection with the use by the Licensee, their employees and/or customers of the Embed System including, but not limited to all data, facts, statistics and other information concerning or relating to, or obtained or collected from, or otherwise provided by the Licensee, their clients and users of their services, pursuant to and in connection with the use of the Embed System, but excluding the Statistical Data;

“Customisation” means a customisation of any part or component of the Embed System, whether through the development, configuration, modification or integration of the Embed System, or otherwise;

“Documentation” means any and all documentation (in any form or medium including electronic documentation) made available to the Licensee by Embed for use with the Embed System or to assist or aid the Licensee in the use of the Embed System, including but not limited to operating manuals and user manuals;

“Embed System” comprises the Proprietary Hardware, the Core Firmware, the Core Software and the Optional Software;

“Force Majeure Event” means, in relation to the performance by any party of any obligation under or in connection with the Agreement, an event or condition (or a series of related events or conditions) that is beyond or falls outside the reasonable control of such party, including but not limited to failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, inability to secure products or services from other persons or entities (including the failure or performance of common carriers, interchange carriers, local exchange carriers, internet service providers, hosting infrastructure service providers, suppliers or subcontractors), power failures, strikes or industrial disputes, insurrections, riots, embargoes, changes to any applicable Law, earthquakes, floods, fires, epidemics or pandemics, explosions, fires, floods or other natural disasters, riots, terrorist attacks, wars or any other acts of enemies;

“Initial Term” has the meaning set out in Clause 10.1;

“Intellectual Property Rights” means intellectual property rights of any kind including, without limitation, all rights in or arising out of patents, trade, service and other marks, registered designs (and applications for all of the same), copyrights and rights affording equivalent protection to copyrights, database rights, mask work rights, design rights, moral rights, rights protecting trade secrets and confidential information, rights protecting goodwill and reputation, and all other similar corresponding proprietary rights and all applications for the same, trade, product, brand and business names, logos, get-ups, inventions, discoveries, improvements, derivative works, designs, techniques, computer programs, trade secrets, supply distributorship agency and other like agreements, technical and commercial know-how and confidential processes, and information including rights acquired under licences or other agreements in connection with any of the same, all derivatives and full right to all intellectual property and legal protection relating to the same and in every case (unless the context otherwise requires), whether presently existing or created in the future, anywhere in the world, whether registered or not, and all benefits, privileges, rights to sue, recover damages and obtain relief for any past, current or future infringement, misappropriation or violation of any of the foregoing rights;

“Law” means (a) any law (including common law), statute, bylaw, rule, regulation, ordinance, treaty, decree, judgment; and (b) any official directive, protocol, code, guideline, notice, approval, policy, or other requirement of any governmental authority having the force of law;

“License” has the meaning given to it in Clause 2.1(a);

“Optional Software” means the optional software which is developed, owned and/or created by Embed including but not limited to all computer programs, frameworks, software, libraries, engines, crawlers, spiders, bots, scripts, functions, algorithms, electronic agents, encryption, plugins, APIs and/or all other forms of computer or object code comprised therein (including any Customisations, Updates or Upgrades), which the Licensee can opt to subscribe for via a Quote;

“Permitted User” means the Licensee’s direct employees and/or franchisees, provided that the Licensee may not nominate any person or entity as a Permitted User if that person or entity is involved in the business of developing or providing products and/or services which are the same as or substantially similar to or competitive with the Products and Services;

“person” means any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization or government or other agency or political subdivision thereof;

“Personal Data” has the meaning given to that term in the applicable data protection Law from time to time;

“Proprietary Hardware” means the hardware which is developed, owned and/or created by Embed, which includes (but is not limited to) card readers and kiosks;

“Renewed Term” means the renewed term of the Agreement upon renewal of the Agreement by the parties pursuant to Clause 10.2;

“Statistical Data” has the meaning set out in Clause 7.1(a);

“Support Services” means the support and maintenance services provided by Embed to the Licensee in relation to the use of, and the identification and resolution of issues in, the Embed System;

“Taxes” includes all taxes, assessments, charges, duties, fees, levies and other charges of a governmental authority including income, franchise, capital stock, real property, personal property, tangible, withholding, employment, payroll, social security, social contribution, unemployment compensation, disability, transfer, sales, use, excise, gross receipts, stamp, value-added, and all other taxes of any kind for which a party may have any liability imposed by any governmental authority, whether disputed or not, any related charges, interest or penalties imposed by any governmental authority, and any liability for any other person as a transferee or successor by Law, contract or otherwise;

“Term” means the Initial Term and/or the Renewed Term, as the context may require;

“Update” means a hotfix, patch or minor version update to any part or component of the Embed System;

“Upgrade” means a major version upgrade of any part or component of the Embed System; and

2. PRODUCTS AND SERVICES.

2.1 Scope of Products and Services. During the Term, Embed shall provide the products and services set out in the Quote or relevant statement of work to the Licensee, including but not limited to:

a license to access and use the Embed System and Documentation on the terms and subject to the conditions set out in Clause 3;
delivery of Proprietary Hardware which has been purchased by the Licensee pursuant to the Quote;
Support Services including:
1. Online resources: access to online resources, to the extent they are available, including software applications and user guides;
2. Online support: remote troubleshooting and administration support services during normal business hours, Monday to Friday with the exception of recognized public holidays ("Normal Business Hours");
3. Email support: email support during Normal Business Hours and support outside Normal Business Hours in cases of critical system problems;
4. Equipment: service, repair, maintenance and replacement of any faulty Proprietary Hardware during the applicable warranty period; and
5. Updates and Upgrades: Updates and Upgrades to the Core Software, Core Firmware and any Optional Software acquired by the Licensee.
where applicable, such additional ad-hoc services (which may include, but are not limited to, Customisations) which may be requested by the Licensee, which shall be provided pursuant to and in accordance with the terms and conditions set out in a separate statement of work executed between Embed and the Licensee,

(collectively, the “Products and Services”). The license, access to and use of the Products and Services (including the Embed System and Documentation) is subject to Clause 3 and the Licensee shall comply, and shall procure and ensure that all Permitted Users comply, with Clause 3.

2.2 Changes to Offered Products and Services. Embed reserves the right, at its sole discretion, to modify, update, discontinue or terminate any part of the Products and Services at any time.

3. LICENSE; TERMS OF USE OF EMBED SYSTEM AND DOCUMENTATION

3.1 Grant of License. Embed grants to the Licensee a non-exclusive, world-wide, non-sublicensable and non-transferable licence to access and use the Core Firmware, Core Software, Optional Software and Documentation (the "License") during the Term solely in connection with the operation of the Embed System in connection with the Licensee's business operations, subject to and in accordance with the terms and conditions set out in the Agreement.

3.2 Term of License. The License shall be valid beginning from the Effective Date until the termination of the Agreement.

3.3 Embed's Rights to Modify the Embed System; Updates and Upgrades.

The Licensee acknowledges and agrees that Embed has the sole discretion to modify, alter or change any aspect of any part or component of the Embed System from time to time.
From time to time, Embed may issue Updates and Upgrades to any of the Core Firmware, Core Software, Proprietary Hardware and the Optional Software.
For so long as the Licensee has a valid License, they are eligible to receive such Updates and Upgrades the Licensee shall cooperate with Embed to ensure that the version of Core Firmware, Core Software and Optional Software that it is running on its designated equipment is the most up-to-date;
Embed will inform the Licensee of any Updates or Upgrades via the Embed Help Centre and the parties shall cooperate in good faith to roll out the relevant Update or Upgrade within a reasonable time.
If for any reason the Licensee does not implement the Update or Upgrade, the Licensee expressly acknowledges and agrees that Embed is not obliged to provide Support Services in connection with the Licensee’s use of a version of any part or component of the Embed System after a period of 12 months has elapsed from the date that such version used by the Licensee was superseded by an Update or Upgrade made available to the Licensee by Embed.
Embed shall be responsible for installing all such Updates or Upgrades for the Licensee.

3.4 Use of Open Source and Third-Party Software.

Embed may use open-source software or other third-party software in conjunction with the Embed System.
Each party shall (at its own cost and expense) comply with its respective obligations under the licensing conditions of the open-source software or the third-party software, where applicable.
If any portion of the Embed System constitutes third-party software, it is licensed to the Licensee subject to the terms and conditions of the software license agreement accompanying such third-party software whether in the form of a discrete agreement, shrink wrap license or electronic license terms accepted at time of download. Use of the third-party software by the Licensee shall be governed entirely by the terms and conditions of such license.
To the knowledge of Embed, the Embed System does not contain any components (including programs, applications, tools, utilities, libraries, and other programming code) that are made available from third parties under a free or open-source software licensing model ("Open-Source"). In the event that the Embed System includes any Open-Source component, the terms of the Open-Source license applicable to the relevant Open-Source component shall be applicable to that component to the extent required under that license. To the extent the terms of the Open-Source license applicable to Open-Source components prohibit any of the restrictions in the Agreement with respect to such Open-Source component, such restrictions will not apply to such Open-Source component. Embed shall provide the Licensee with a list of Open-Source components upon the Licensee's request.

3.5 Restrictions and Prohibitions. Except to the extent that such restriction is not permitted under applicable law, the Licensee:

shall not, and shall not permit any person to, access or use any part or component of the Embed System and/or the Documentation for any purpose or in any manner other than as set out in the Agreement;
shall not, and shall not permit any person to, access or use any part or component of the Embed System and/or the Documentation in any way that could damage the reputation of Embed or the goodwill or other rights associated with the Embed System;
shall not, and shall not permit any person to, do anything that will or might (whether directly or indirectly) affect, compromise, prejudice or conflict with Embed's Intellectual Property Rights in any manner;
shall not, and shall not permit any person to (save as otherwise expressly permitted in the Agreement), copy, reverse engineer, decompile, disassemble, attempt to derive the source code of, modify, create derivative works of, re-post or re-publish to other applications or websites, change, or distribute, license, sub-license, transfer or otherwise make available to any third party any part or component of the Embed System and/or the Documentation and any aspect of Embed's intellectual property in any manner;
shall not, and shall not permit any person to, use any part or component of the Embed System and/or the Documentation and any aspect of Embed's intellectual property or any materials incidental thereto to develop any products or services (including any software, hardware or firmware) that is competitive with the Embed System. Any such modifications shall immediately become the sole and exclusive property of Embed and Embed shall own all right, title and interests to such modified products, and any and all copyrights, patents and trade secrets related thereto;
shall not, and shall not permit any person to, make any technical improvements to any component of the Embed System and/or the Documentation. If for any reason this occurs, the Licensee shall advise Embed of any technical improvements or inventions made by the Licensee or any other party on its behalf relating to the Embed System and/or the Documentation and all such improvements or inventions shall become the property of Embed, and the End-Client agrees to execute any and all documents requested by Embed in order to perfect its rights thereof, and any and all Intellectual Property Rights relating thereto;
shall not allow nor use any third-party systems or software to connect to or integrate with any part or component of the Embed System or Embed's database except where expressly permitted in writing by Embed;
shall not modify or remove any copyright or proprietary notices on any part or component of the Embed System and/or the Documentation;
shall not, and shall not use services or products that, test or monitor the availability, performance or functionality of any part or component the Embed System (including benchmarking tests); and
shall not use the Documentation for any purpose other than as a reference to assist with the use of the Embed System in the ordinary course of business.

Unauthorized copying of the Embed System and/or the Documentation or failure to comply with these restrictions (or other breach of the License) will constitute a material breach of the Agreement and, without limiting Embed’s rights under Clause 10.4(a), the Licensee agrees that it will constitute immediate, irreparable harm to Embed for which monetary damages would be an inadequate remedy, and that injunctive relief will be an appropriate remedy for such breach.

3.6 Access to Embed Database. The license to the Embed System expressly excludes any right to access or use any part of the databases comprised in the Embed System and hosted on hardware owned or maintained by the Licensee (“Embed Databases”).

4. ADDITIONAL TERMS RELATING TO EMBED SYSTEM

4.1 Orders – Changes and Cancellations

Customers are required to sign an official Embed quote document. The products quoted and the delivery particulars on the quotation such as line items, Bill to address, ship to address etc. are changeable for a period of ten (10) calendar days following signoff. At the close of the ten (10) calendar days, Embed will convert the quotation to an official sales order. Changes to the official sales order are not permitted and are subject to the following cancellation policy. In the event that an urgent quotation and sales order is required such as next day shipment, the customer will agree to forgo the ten (10) calendar day changeable period and the cancellation policy will then apply should changes be required.

Customers requesting to cancel or change an order, either in its entirety or part thereof, such as the cancellation of any product in an order or a reduction in quantity from the quantity on the original order received by Embed from the Customer, are subject to the following Cancellation Policy:
a. The Customer is responsible for ensuring Embed receives a request of order cancellation in writing prior to Embed reviewing the Customer's order cancellation request.
b. For cancellations or changes regarding physical goods:
1. i. the order will be delivered in full as per the delivery instructions provided prior to quote signoff.
2. ii. If a customer has notified Embed of a change or cancellation relating to physical hardware, the customer will be responsible for following the Embed return policy. See 4.2.
3. iii. A 15% restocking fee will be charged to the customer to return the items. The 15% is calculated using the total sale value only of the items returned.
c. Where the change or cancellation relates to a service fee or labour charge, a 15% administration fee will be charged. The 15% is calculated using the total invoice value only of the fee cancelled.
d. Customer orders containing "Built-to-Order” or “Custom" products cannot be cancelled.
e. Changes made to the billing or delivery details of the entire order or part thereof will incur a 15% administration charge up to the maximum value of $500.
The Customer is liable for cancellation fees and restocking fees for work completed to the extent Embed suffers any loss or damage as a result of the Customer’s order cancellation.

4.2 Return Policy

Embed accepts returns within 30 days of the shipping date from Embed. Returns must be in the original undamaged packaging, not used, and in original sellable condition. Any credit offered by Embed to the Customer for returned products is subject to review and inspection of the returned product and restocking fees may apply. Most products are returnable with a few exceptions; items that are “Built-to-Order” or “Custom" products cannot be returned.

Embed has several return processing centers; therefore, the Customer is responsible for consulting with their local Embed office before returning product(s) to Embed. Also, the Customer is liable for all shipping fees of returned products.

4.3 Delivery, Installation and Designated Equipment.

1. Embed shall deliver the applicable parts or components of the Embed System and the Documentation to the Licensee on such date and in such manner as may be agreed by the parties in writing (whether via a Quote or otherwise).
2. Embed shall provide installation instructions to the Licensee and the Licensee shall be responsible for installing the Proprietary Hardware with and the Core Software on their designated equipment in accordance with such instructions.
3. Embed shall be responsible for installing any applicable Optional Software on the Licensee’s designated equipment.
4. The Licensee shall ensure that all designated equipment on which the Core Software and applicable Optional Software is to be installed are in good working order and meet all the required specifications as provided by Embed.
5. The Licensee shall be responsible for implementing and maintaining a fully functioning backup of any and all of their respective data (including Customer Data) prior to any installation of Core Software and applicable Optional Software. Embed shall not be responsible nor liable to the Licensee the extent that the Licensee suffers any loss or damage as a result of their failure to do so.
6. The Licensee understands and acknowledges that Embed adopts a roll forward installation strategy and Embed's adoption of such a strategy will not relieve it of any of its obligations under the Agreement.

4.4 Additional Warranty Terms relating to the Proprietary Hardware.

Embed warrants that the Proprietary Hardware will be free from defects in materials and workmanship under normal use for:
1. a period of twelve (12) calendar months for all Proprietary Hardware except for smartTouch hardware;
2. a period of twenty-four (24) calendar months for smartTouch hardware only.
3. If the Licensee intends to make a warranty claim in respect of any Proprietary Hardware, the Licensee shall comply with Embed's RMA procedure and will send such Proprietary Hardware to Embed by registered express mail or courier without tampering.
Where Embed is reasonably satisfied that the returned Proprietary Hardware qualifies for warranty, a repair, replacement or refund will be issued to the Licensee.
The Licensee acknowledges that the warranty is subject to additional conditions and restrictions as may be imposed by Embed from time to time.

5. ADDITIONAL TERMS RELATING TO SUPPORT SERVICES

5.1 Additional Conditions to Provision of Support Services. Embed's obligation to provide Support Services are subject to the conditions set out below. Embed is not obliged to provide Support Services unless all of the following conditions are met:

the Licensee must provide Embed with access to the information, system facilities and computer networks that are reasonably necessary to provide the Support Services;
the Licensee must follow any and all reasonable directions provided by Embed to resolve technical problems;
the Licensee must follow any reasonable operating instructions and procedures for the Embed System provided by Embed to the Licensee; and
the Licensee must notify Embed of any error or problem in any Embed System in accordance with any error reporting procedure as reasonably determined by Embed.

5.2 Exclusions. Embed is not obliged to provide Support Services in connection with:

any issues with the Embed System that are directly attributable to modifications undertaken without Embed's authorization, the incorporation of any part or component of the Embed System into other software, or the installation of the Software in any computing
environment which does not comply with the minimum requirements nominated by Embed at the time of installation; or
any issue with any part or component of the Embed System which is directly attributable to Licensee's negligence, abuse or misuse or breach of the Agreement or by any causes beyond Embed's reasonable control. The Licensee shall take reasonable steps to establish that
any disputed issues that require Embed's Support Services are not attributed to the Licensee;
the Licensee's use of a version of any part or component of the Embed System after a period of 12 months has elapsed from the date that such version used by the Licensee was superseded by an Upgrade made available to the Licensee by Embed;
any errors caused by the Licensee or the Licensee’s Personnel; and
any hardware, or any power or network failure or inaccurate or incomplete data caused by the Licensee’s erroneous action or inaction or that of any third party. For the avoidance of doubt the network and internet connection are the sole responsibility of the Licensee.

5.3 Additional Work. If the Licensee’s network, hardware, systems or software configuration does not comply with the Embed System requirements at the date or time that Embed initially installs the locally installed Core Software, additional fees may apply if further work is required for the installation of the locally installed Core Software.

6. FEES, INVOICING AND PAYMENT

6.1 Fees. The fees applicable to the Products and Services shall be as set out in the Quote and the Licensee agrees to pay all amounts due for the Products and Services in accordance with Embed payment terms and, if applicable, those of any payment processor.

6.2 Modification or Revision of Fees. Embed may increase or modify the Fees or add new fees and charges for any of the Products and Services from time to time and shall provide written notice of the same to the Licensee at least thirty (30) days in advance of such revised fees becoming effective. The Licensee’s continued access and use of the Products and Services after the effective date of any such revised fees shall be considered the Licensee’s deemed acceptance and agreement to the revised fees, as applicable.

6.3 Invoicing. Embed shall invoice the Licensee in accordance with the terms set out in the Licensee’s Quote, and the Licensee shall pay, in full, all undisputed invoices within thirty (30) days after the invoice date. All invoices are deemed to be valid, save in the case of manifest errors, which the Licensee must notify in writing to Embed within ten (10) calendar days of the date of such invoice (with an explanation of the Licensee’s reasons for dispute). In the event of any dispute regarding an invoice, the parties shall cooperate in good faith to resolve such dispute.

6.4 Taxes. All fees are exclusive of all Taxes. The Licensee is solely responsible for paying all Taxes applicable to the Products and Services provided by Embed. All payments by the Licensee hereunder shall be made in full without any deduction or withholding (whether in respect of any set-off, counter-claim, charges, Taxes, duties or otherwise whatsoever) unless the deduction or withholding is required by applicable laws, in which event the Licensee will pay such additional amounts as will result in the receipt by Embed of the net amount after such deduction or withholding equal to the amount which would otherwise have been receivable by Embed had no such deduction or withholding been required.

6.5 Overdue Payments. If any undisputed amount due to be paid by the Licensee to Embed under the Agreement remains unpaid as of the date falling thirty (30) days after the due date, Embed reserves the right to:

charge the Licensee interest on the overdue amount an interest rate of 3% per annum (calculated on a daily basis) for the period beginning on the payment due date and ending on the date that such overdue amount is received by Embed; and/or
suspend the performance of any of its obligations pursuant to the Agreement (including the suspension of any Products and Services and/or deactivation of the Licensee’s access to the Products and Services).

6.6 No Refund. Except as expressly provided otherwise, all fees are non-refundable.

7. COLLECTION AND USE OF DATA

7.1 Collection and Use of Statistical Data. The Licensee acknowledges and agrees that Embed may:

collect and use data regarding the Licensee’s use of the Embed System (including data collected in performing backup operations and technical information provided by the Licensee in relation to the receipt of the Support Services) to generate anonymised and
aggregated statistical and analytical data ("Statistical Data"); and
use the Statistical Data for internal purposes (including internal statistical analysis), research and product development purposes (including to improve the Embed System) and to conduct statistical analysis.

7.2 Customer Data. The Licensee grants to Embed a worldwide, irrevocable, royalty-free license for the Term to use the Customer Data for the purposes of providing the Embed System and the Support Services to the Licensee and fulfilling its obligations under the Agreement.

7.3 Feedback. The Licensee grants to Embed and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its products and/or services any suggestion, enhancement request, recommendation, correction or other feedback provided by the Licensee or users relating to the operation of Embed's or its Affiliates' products and/or services.

7.4 The Licensee acknowledges and agrees that Embed will export, import or replicate data from the Proprietary Hardware, Core Firmware, Core Software and Optional Software for the purpose of reporting and support services.

8. INTELLECTUAL PROPERTY RIGHTS

8.1 Ownership of Intellectual Property Rights. Notwithstanding anything to the contrary in the Agreement:

Products and Services. The Licensee hereby acknowledges and agrees that Embed is the sole legal and beneficial owner of all rights, title, benefits and interests in and to the Embed System, Documentation, Products and Services, including all Customisations, Updates,
Upgrades, modifications, derivative works and all Intellectual Property Rights relating thereto, any sales, marketing and promotional materials relating thereto, and all documents and other copies and tangible embodiments of all of the foregoing.
Proprietary Marks. Embed is the sole legal and beneficial owner of all rights, title, benefits and interests in and to its identifying logo, trademark, registered trademark, trade name, service mark, or any other identifying marks or proprietary designations, and patent markings (collectively, the "Proprietary Marks"), including all Intellectual Property Rights relating thereto, and all documents and other copies and tangible embodiments of all of the foregoing.
Customer Data. Embed hereby acknowledges and agrees that the Licensee is the legal and beneficial owner of all rights, title, benefits and interests in and to its respective Customer Data, modifications, derivative works and all Intellectual Property Rights relating thereto, and all documents and other copies and tangible embodiments of all of the foregoing.
Statistical Data. The Licensee hereby acknowledges and agrees that Embed is the sole legal and beneficial owner of all rights, title, benefits and interests in and to the Statistical Data, modifications, derivative works and all Intellectual Property Rights relating thereto, and all documents and other copies and tangible embodiments of all of the foregoing.

8.2 No Rights Granted. Except for rights expressly granted under the Agreement, nothing in the Agreement shall be construed to assign or grant to either party, and either party shall not claim, any rights, title, ownership or interest in and to the other party's intellectual property.

8.3 Further Assurance. Each party undertakes and agrees to cooperate with and assist each other in the protection of all Intellectual Property Rights owned by and/or licensed to the other party pursuant to the Agreement and shall inform the other party immediately of any infringements or other improper action relating thereto that may come to the attention of the party giving such assurance.

9. COMPLIANCE

9.1 To ensure compliance with the Agreement, the Licensee agrees that within ten (10) days from the date of Embed or its authorized representative’s request, the Licensee shall provide all pertinent records and information requested in order to verify that the Licensee’s access and use of any and all Products and Services is in compliance with the Agreement along with a signed verification that all such information is complete and correct. Embed or its authorized representatives may upon reasonable prior notice access and inspect the Licensee’s facilities and computer systems to review and verify the Licensee’s compliance with the Agreement. Any such inspection shall be conducted during regular business hours at the Licensee’s facilities or electronically via remote access.

10. TERM AND TERMINATION

10.1 Term. The Agreement commences on the Effective Date and shall continue in force for a period of three (3) years thereafter (the “Initial Term”) unless terminated earlier in accordance with this Clause 10.

10.2 Automatic Renewal. Upon expiry of the Initial Term, the Agreement shall automatically renew on the same terms and conditions for a two (2) year term thereafter (the "Renewed Term") until and unless terminated by either party by way of notice in writing issued to the other party no less than thirty (30) calendar days prior to the expiry of the existing Initial Term . Any further extension to the Term of the Agreement beyond the expiry of the Renewed term shall be subject to mutual discussions between the parties.

10.3 Early Termination for Convenience with Notice.

Subject to Clause 10.4, neither party may terminate the Agreement for convenience at any time during the Initial Term.
Notwithstanding Clauses 10.1 and 10.2, either party may, after the expiry of the Initial Term and during the Renewed Term, terminate the Agreement for convenience at any time by giving the other party thirty (30) calendar days' prior written notice to terminate.

10.4 Immediate Termination without Notice. Notwithstanding Clauses 10.1 and 10.2, Embed shall have the right to, in its sole discretion, terminate the Agreement without notice with immediate effect in the event that:

the Licensee is in material breach of any provision of the Agreement which is not capable of remedy or (where such breach is capable of remedy) fails to remedy such breach within thirty (30) days after receipt of a written notice from the non-breaching party requiring such breach to be remedied;
the Licensee repeatedly or continuously fails to meet the Licensee’s obligations under the Agreement and fails to remedy such failure within sixty (60) calendar days of receipt of a written notice from Embed requiring it to remedy such failure, irrespective of whether such failures collectively constitute a material breach;
the Licensee is in actual or potential breach of any legal or regulatory requirements;
the Licensee suspends or permanently ceases or threatens to cease conduct of its business;
the Licensee becomes the subject of any voluntary or involuntary bankruptcy, receivership, judicial management or any other insolvency proceedings whether in Singapore or elsewhere (other than for the purpose of a solvent company reorganisation where the resulting entity assumes all the obligations of the other party under the Agreement) or makes an assignment or other arrangement for the benefit of its creditors, or is otherwise unable to pay its debts; or
the Licensee has provided false, incorrect or misleading information, or otherwise withheld information, in either case which is material to the performance of its obligations hereunder.

10.5 Rights of Termination available at Law. For the avoidance of doubt, the rights of termination set out in the Agreement shall not exclude any rights of termination available at law.

10.6 Effects of Termination. Upon the expiration or termination of the Agreement:

Embed shall cease to provide, and the Licensee shall cease all use of, the Products and Services (including the Embed System, Documentation and the Support Services);
the Licensee may retain in their possession all Proprietary Hardware that it has purchased and, in this respect, the Licensee shall continue to comply with Clause 3 in relation to any retained Proprietary Hardware. The Licensee acknowledges that the Proprietary Hardware is designed to be used with the Core Firmware only and upon termination of the license to the Core Firmware, the Proprietary Hardware that remains in the Licensee's possession cannot and will not perform its commercial function;
each party shall be immediately released from their respective obligations under the Agreement except obligations that by their nature survive termination;
all rights and licences granted by each party to the other party under or in connection with the Agreement (including all licenses granted by Embed to the Licensee) shall automatically expire;
each party shall discontinue all uses of the other party's intellectual property immediately and shall within seven (7) calendar days following the termination of the Agreement return or destroy all materials containing the other party's intellectual property, and in particular The Licensee shall remove all components of the Embed System (other than the Proprietary Hardware and Core Firmware installed on the retained Proprietary Hardware) from their designated equipment and return all copies of the Documentation;
the Licensee shall within seven (7) calendar days following the termination of the Agreement remit to Embed all amounts due and payable to Embed pursuant to the terms of the Agreement without any further notice or demand by Embed, and The Licensee further agrees to reimburse Embed for and any reasonable attorneys' fees or legal expenses incurred for the collection of any such amounts due and payable by The Licensee;
each party shall return or destroy the other party's Confidential Information in accordance with Clause 14.3; and
all provisions of the Agreement that by their nature shall survive termination of the Agreement shall continue to have full force and effect.

10.7 Accrued Rights. Except to the extent provided otherwise herein, the termination of the Agreement shall not affect any rights, obligations or liabilities of either party which accrued before termination or which are intended to continue to have effect beyond termination.

10.8 No Refund. For the avoidance of doubt, the Licensee shall not be entitled to any refund in respect of any fees paid in respect of any Products and Services in any incomplete period.

11. DISCLAIMERS

11.1 Except as expressly provided herein and to the maximum extent permitted by applicable Laws, Embed makes no representation about the suitability or accuracy of the Products and Services (including the Embed System, the Documentation and the Support Services) for any purpose, and makes no warranties, whether express, implied or statutory, including but not limited to warranties of title and non-infringement, any implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, and of lack of viruses all with regard to the Products and Services. The Products and Services (including the Embed System, the Documentation and the Support Services) are provided "as-is" and Embed does NOT warrant that the functions contained in the Products and Services will meet the Licensee’s requirements or that the operation of the Products and Services will be uninterrupted or error free or that such errors will be corrected. Software and firmware are inherently subject to bugs and potential incompatibility with other software and hardware. The Licensee should not use the Products and Services for any applications in which failure could cause any significant damage or injury to persons or tangible or intangible property.

11.2 The warranties set out in the Agreement are the only warranties that Embed gives to the Licensee in respect of all matters contemplated in the Agreement. All other warranties, representations or terms of equivalent effect that might be implied by Law are excluded to the maximum extent permitted by applicable Laws. The Licensee acknowledges that it has not relied on any representation and/or warranty made by Embed which has not been expressly stated or referred to in the Agreement.

12. INDEMNITY

12.1 The Licensee agrees to indemnify, hold harmless and defend Embed and its officers, directors, employees, agents, representatives and licensors from and against any and all claims, demands, actions, suits, proceedings, damages, liabilities, losses, fines, penalties, judgments, awards, settlements, costs and expenses (including attorneys’ fees and court fees) (collectively, “Claims”) arising from or in connection with the Licensee’s (i) access and use or misuse of any of the Products and Services; (ii) breach or violation of the terms and conditions of the Agreement or any other agreement or license with Embed; (iv) violation of any laws, regulations or third-party rights; or (v) fraud, negligent act, omission or wilful misconduct.

13. LIMITATION OF LIABILITY

13.1 Limitation of Liability. Save for any liability in any way that would be illegal to limit and/or exclude under applicable laws, Embed shall not be liable to the Licensee for any claims, losses, disputes, suits or causes of action (collectively, "claims") based on, or arising out of any force majeure event, any physical injury to person or property or otherwise, any loss of data, any interruption of business and/or any loss arising from the Licensee’s use of any of the Products and Services. Save for any liability in any way that would be illegal to limit and/or exclude under applicable laws, Embed’s liability is limited to:

the replacement of the affected component of the Embed System by Embed; or
the rectification of the affected component of the Embed System by Embed.

If for any reason, the above remedies are not possible or appropriate and monetary damages are the most appropriate form of remedy, Embed’s aggregate liability to the Licensee arising out of or related to the Agreement, whether in contract, tort or under any other theory of liability, shall not exceed the aggregate amounts of Fees for the Products and Services paid and payable by the Licensee to Embed under the Agreement during the 6-month period immediately preceding the date on which the claim first arose. The existence of more than one claim during the Term will not enlarge the foregoing limits and Embed’s aggregate liability shall be reduced to the extent to which the Licensee contributed to the damage arising from such claim.

13.2 Consequential, etc damages. Except as provided herein, in no event will either party, or its Affiliates, independent contractors, employees, agents, or third-party partners, licensors, or suppliers be liable to the other party for any incidental, indirect, punitive, special or consequential damages (including lost profits or lost business opportunity) that the other party may incur or experience by reason of its having entered into or relied on the Agreement, or arising out of the performance of the Agreement, even if such party was advised or knew of the possibility of such damages. The foregoing limitation will apply regardless of the form of the claim(s), in which such liability may be asserted, whether in contract, tort (including negligence) or otherwise.

13.3 No liability. Without limiting the foregoing, Embed may interrupt its products or services at any time to perform maintenance, to address security breaches, or for any other reason provided that it acts reasonably and in good faith in doing so, with no liability to the Licensee whatsoever. The liabilities limited by this Clause 12 include without limitation liability for negligence.

13.4 Cyber Liability: Cyber Incident Definition means:

(a) unauthorized access to or use of Products or systems

(b) malicious code or ransomware attacks

(d) data breaches or unauthorized data disclosure

(e) system or security vulnerabilities

(f) any other cybersecurity event affecting Products or services

13.4.2 Licencee Obligations: Licensee shall:

(a) maintain cyber liability insurance with minimum coverage of USD 5,000,000

(b) implement industry-standard cybersecurity measures

(d) conduct regular security assessments

(e) maintain ISO 27001 certification or equivalent

(f) train personnel in cybersecurity practices

13.4.3 Cyber Incident Response: In the event of a Cyber Incident, Licensee shall:

(a) notify Embed within 24 hours

(b) cooperate with Embed’s investigation

(d) preserve forensic evidence

(e) assist with customer notifications

(f) bear costs of incident response

13.4.4 Cyber Liability Indemnification

Licensee shall indemnify Embed against all losses arising from:

(a) Cyber Incidents originating from Licensees systems

(b) Licensee’s failure to implement security measures

(d) third-party claims relating to Cyber Incidents

(e) regulatory fines or penalties

(f) incident response and remediation costs

13.4.6 Insurance Requirements

Licencee’s cyber liability insurance shall:

(a) name Embed as additional insureds

(b) be primary and non-contributory

(d) cover incident response costs

(e) include business interruption coverage

14. CONFIDENTIALITY

14.1 Confidentiality Obligations. Each party shall at all times keep confidential and not disclose to any third party the Confidential Information of the other party except as permitted by this Clause 14 and for the purposes of performing its obligations under the Agreement, and agrees to protect the Confidential Information with appropriate security measures and a degree of care that is at least equivalent to that which the relevant party would apply to its own Confidential Information, but in any event, no party shall exercise less than reasonable care in protecting such Confidential Information.

14.2 Permitted Disclosures. Notwithstanding Clause 14.1 above, the receiving party may disclose Confidential Information:

to its Affiliates;
to its and its Affiliates’ officers, directors, employees, auditors, advisors, subcontractors and other persons providing services to it (provided that such person is under a duty of confidentiality in relation to the Confidential Information, whether professional, contractual or otherwise) on a need-to-know basis and/or to the extent necessary for the receiving party to perform its obligations under the Agreement;
where requested or required by Law, regulation and/or any court of competent jurisdiction or any competent banking, taxation, judicial, governmental, supervisory, regulatory or equivalent body, and in this respect the receiving party shall (to the extent legally permitted) provide the disclosing party with prior notice of such compelled disclosure and reasonable assistance at disclosing party’s cost, if the disclosing party wishes to contest such compelled disclosure; and
to any other person where necessary for the performance of its obligations under the Agreement or with the consent of the disclosing party.

14.3 Return/Destruction of Confidential Information. Upon termination of the Agreement or upon the written request of the disclosing party, the receiving party shall, where technically practicable and within a reasonable time, return to the disclosing party or destroy (at the option of the receiving party) all copies of all the disclosing party's Confidential Information in the receiving party's possession and shall, upon request, provide the disclosing party with a written certification, signed by one of its officers, certifying the destruction or return of such Confidential Information.

14.4 Remedies. If the receiving party discloses or uses (or threatens to disclose or use) any Confidential Information of the disclosing party in breach of this Clause 14, the disclosing party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, without the necessity of posting bond, it being specifically acknowledged by the parties that any other available remedies are inadequate.

14.5 Survival. Notwithstanding any other provisions of the Agreement, the obligations of confidentiality under this Clause 14 shall survive the termination or expiration of the Agreement.

15. DATA PROTECTION

15.1 Compliance with Data Protection Laws. In respect of any Personal Data collected, used, disclosed or processed pursuant to the Agreement, each party shall ensure that it complies with all applicable data protection and privacy Laws that relate to its collection, use, disclosure and processing of such Personal Data, including the maintenance of an appropriate privacy policy.

15.2 Consent for Disclosure of Personal Data. By disclosing Personal Data to each other, each party warrants that it has obtained the necessary consent from the relevant individuals in accordance with applicable data protection and privacy Laws to disclose such Personal Data.

15.3 Security and Protection of Personal Data. Without limiting the foregoing, each party shall take appropriate technical and organisational measures (and, if applicable, maintain and enforce an information security policy) against any unauthorised or unlawful disclosure, or accidental loss or destruction of, or damage to, any such Personal Data.

15.4 Processing of Personal Data. In the event that Embed is deemed to be processing Personal Data on behalf of the Licensee (in such capacity, a “data processor”), the terms of the Schedule (Data Processing Provisions) shall apply and the Licensee consents to the processing by such data processor of such Personal Data for the purposes of performing (or enabling the performance of) any obligations under the Agreement and for the internal business purposes of Embed (including but not limited to data analytics, machine learning, improvement of its technology and systems), and the transfer of such Personal Data to any Affiliates of Embed and their respective agents, representatives and subcontractors, and to anywhere in the world.

16. THE LICENSEE’S REPRESENTATIONS AND WARRANTIES

16.1 The Licensee represents and warrants to Embed that:

it have full legal right and power and all authority and approvals required to execute and deliver the Agreement and to perform fully its obligations hereunder which constitute valid and binding obligations enforceable against it in accordance with the terms of the Agreement;
the entry, delivery and performance of the Agreement by the Licensee’s will not (i) require the approval or consent of any governmental body or the approval or consent of any other person; (ii) conflict with or result in any breach or violation of any of the terms and conditions of, or constitute (or with notice or lapse of time or both constitute) a default under, any applicable Law or order or any contract to which it is a party or by or to which it is bound or subject; (iii) violate any order against, or binding upon, it or upon the Licensee’s securities, properties or business; and (iv) violate any Law;
there are no litigation, arbitration or administrative proceedings current or pending or, so far as the Licensee is aware, threatened, which (i) restrain the Licensee’s entry into, exercise of the Licensee’s rights under or performance or enforcement of or compliance with
the Licensee’s obligations under the Agreement or (ii) has or could have a material adverse effect on such exercise, performance, enforcement or compliance;
it shall at all times comply with all Laws, rules and regulations applicable to it, the conduct of its business and the performance of the Licensee’s obligations under the Agreement, including, without limitation, Laws relating to anti-money laundering, data protection and consumer rights; and
it has obtained all material licenses, authorizations, approvals, consents, or permits required by applicable Laws (including the rules and regulations of all authorities having jurisdiction over it) to conduct the Licensee’s business generally and to perform the Licensee’s obligations under the Agreement.

17. MISCELLANEOUS

17.1 Consent to Specific Performance. The parties hereto agree that it might be impossible to measure in money the damages which would accrue to Embed by reason of failure to perform certain obligation hereunder. Embed shall, therefore, be entitled to seek injunctive relief, including specific performance, to enforce such obligation and if any action should be brought in equity to enforce any of the provisions of the Agreement, the Licensee shall not raise the defence that there is an adequate remedy at Law.

17.2 Notices. Any notice or other communication required or permitted hereunder shall be in writing and shall be delivered personally or sent by certified, registered or express mail, postage prepaid, or by distribution via electronic mail, to the addresses and email addresses set out in the Quote or to such other address as the parties may designate by written notice. Any such communication shall be deemed duly given, in the case of personal delivery and courier service, upon delivery and in the case of registered mail, fourteen (14) calendar days after posting, and in the case of electronic mail, upon the generation of an electronic confirmation of delivery generated by the sender's electronic mail system, provided that if such day is not a Business Day or such time not a normal business hour then delivery shall be deemed to have occurred on the following Business Day.

17.3 No Agency, Partnership etc. Nothing in the Agreement shall be deemed to constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in the Agreement. Neither party shall have, nor represent that it has, any authority to make any commitment on the other party's behalf.

17.4 Entire Agreement. The Agreement (including any Quotes, the Schedule and additional statements of work) constitutes the entire agreement between the parties with respect to the subject matter of the Agreement and supersede all prior oral and written agreements, memoranda, understandings and undertakings between the parties relating to the subject matter of the Agreement.

17.5 Force Majeure. If a Force Majeure Event gives rise to a failure or delay in Embed performing any obligation under the Agreement (other than an obligation to make payment), that obligation will be suspended for the duration of the Force Majeure Event. A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay on the part of that party performing any obligation under the Agreement (other than an obligation to make payment), must promptly notify the other party of that fact, and inform the other party of the period for which it is estimated that such failure or delay will continue. Notwithstanding the foregoing, a party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event. In the event a Force Majeure Event lasts for more than sixty (60) calendar days, the other party has the right to immediately terminate this Agreement upon giving written notice.

17.6 Waivers; Non-Contractual Remedies; Preservation of Remedies. No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any party of any such right, power or privilege, nor any single or partial exercise of any such right, power or privilege, preclude any further exercise thereof of the exercise of any other such right, power or privilege. The rights and remedies herein provided are cumulative and are not exclusive of any rights or remedies that any party may otherwise have at Law or in equity.

17.7 Successors and Assigns. The Licensee may not assign all or any part of the Licensee’s interest in the Agreement without the prior written consent of Embed. Embed has the right to assign all or any part of its interest in the Agreement without the Licensee’s prior written consent. Subject to the foregoing, the Agreement shall be binding upon and shall inure to the benefit of the parties and their successors and permitted assigns.

17.8 Subcontracting. The Licensee acknowledges that Embed may from time to time at its sole discretion use subcontractors (whether an Affiliate of Embed or an independent third-party service provider) to perform its obligations under the Agreement, provided, however, that Embed shall not be relieved of any of its obligations under the Agreement.

17.9 Severability of Provisions. If any provision or any portion of any provision of the Agreement or the application of any such provision or any portion thereof to any person or circumstance, shall be held invalid or unenforceable, the remaining portion of such provision and the remaining provisions of the Agreement, and the application of such provision of portion of such provision as is held valid or enforceable to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby.

17.10 Further Assurance. Each party shall do and execute or procure to be done and execute all such further acts, deeds, things and documents as may be necessary to give effect to the terms of the Agreement, and (so far as it is able) to provide such assistance as the other parties may reasonably request (including without limitation, exercising its power as shareholders) to give effect to the spirit and intent of the Agreement.

17.11 Time of Essence. Any date, time or period mentioned in any provision of the Agreement may be extended by mutual agreement between the parties but as regards any time, date or period originally fixed and not extended or any time, date or period so extended as aforesaid, time shall be of the essence.

17.12 Contracts (Rights of Third Parties) Act. Unless expressly provided to the contrary in the Agreement, a person who is not a party to the Agreement has no right under the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore to enforce or to enjoy the benefit of any term of the Agreement.

18. GOVERNING LAW

18.1 The Agreement shall be governed by, and construed, in accordance with, the laws of Singapore.

19. DISPUTE RESOLUTION

19.1 In the event of any disputes, controversies, or differences arising out of or in connection with the Agreement (a "Dispute"), the parties agree to first meet and discuss in good faith a possible resolution thereof.

19.2 If the parties are still not able to resolve the Dispute by good faith negotiations within thirty calendar (30) calendar days of the start of such discussions, then the Dispute shall be submitted to the Singapore Mediation Centre for resolution. The disputes, controversies or differences shall be referred within 14 Business Days thereafter in accordance with the Mediation Procedure for the time being in force, unless any of the parties serve a written notice on all the other parties and the Singapore Mediation Centre stating that it does not agree to submit the matter to mediation. The parties agree to participate in mediation in good faith and undertake to abide by the terms of any settlement reached.

19.3 In the event that the Dispute cannot be resolved by according to the procedure above, then the Dispute shall finally be submitted to the non-exclusive jurisdiction of the courts of Singapore.

SCHEDULE

DATA PROCESSING PROVISIONS

In this Schedule, “Personal Data”, “Processing”, “Data Controller”, “Data Processor” and “Data Subject” shall have the meaning given in the EU General Data Protection Regulation (“GDPR”).

1. The parties acknowledge that for the purposes of the applicable data protection Law, the Licensee is the Data Controller of any End-User Data and Embed is the Data Processor, except for Aggregate Data where Embed is the Data Controller.

2. Embed shall, in relation to any data of end-users of the Embed System (“End-User Data”) processed in connection with the performance by Embed of its obligations under the Agreement:

process that End-User Data only on the written instructions of the Licensee, or in accordance with its obligations under the relevant data protection Law;
ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of End-User Data and against accidental loss or destruction of, or damage to, End-User Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
ensure that all personnel who have access to and/or process Personal Data are obliged to keep the End-User Data confidential;
not transfer any End-User Data outside of the European Economic Area, US, Australia or Singapore unless appropriate protections are in place in compliance with Data Protection Legislation;
assist the Licensee in responding to any request from a Data Subject and in ensuring compliance with its obligations under the data protection Law with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
notify the Licensee without undue delay (and in any event within 24 hours) on becoming aware of a Personal Data breach;
at the written direction of the Licensee, delete or return End-User Data and copies thereof to the Licensee on termination of the agreement unless required by applicable Law to store the End-User Data;
appoint a data protection officer where required for the purpose of data protection Law and ensure compliance of such person with all tasks required to be carried out for such role;
maintain complete and accurate records and information as required by data protection Law and otherwise to demonstrate its compliance with this Schedule and allow for audits by the Licensee or the Licensee’s designated auditor; and
not appoint any third-party processor of End-User Data, without the Licensee’s written consent.

3. End-User Data to be processed by Embed will relate to end users of the Embed System and include email addresses (anonymised), names or other contact information where relevant, content preferences, location and nature of certain applications used such as calendar applications or card types and payment services. The nature and subject matter of the processing is to enable fulfilment of the Products and Services and other obligations under the Agreement, and such processing shall continue for the Term.

4. The parties shall notify each other of their respective data protection officers separately in writing.