Terms of Service Agreement

These Software as a Service Terms and Conditions for eResidue Pro (together with any applicable Order Form issued hereunder, the “Agreement”), effective as of the issue date set forth on the Order Form(s) (“Effective Date”), is between Quascenta Pte. Ltd, a corporation incorporated in Singapore, with an address at 10 Jalan Besar, #10-10, SIM LIM Tower, Singapore - 208 787 (“Quascenta”), and the Customer named in such Order Form (“Customer”).  Quascenta and Customer agree as follows:

1. DEFINITIONS AND INTERPRETATION

In this Annexure, the following terms shall have the respective meanings set out below and cognate terms shall be construed accordingly: 

1.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for the purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

1.2 “Agreement” means collectively, these Terms and each individual Order Form.

1.3 “Applicable Data Protection Law” means all applicable laws, regulations, and other legal or self-regulatory requirements in any jurisdiction relating to privacy, data protection, data security, communications secrecy, breach notification, or the Processing of Personal Data, including without limitation, to the extent applicable, the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq. (“CCPA”) and the General Data Protection Regulation, Regulation (EU) 2016/679 (“GDPR”).

1.4 “Authorized Use Limitation” or “Usage Limits” means the the limitation on usage of eResidue Pro as specified in the Order Form and paid for by Customer.

1.5 “Authorized Users” or “User” means any individual who is an active employee, consultant, contractor or agent of Customer (a) who is authorized by Customer to use eResidue Pro solely on behalf of Customer for Customer’s internal business purposes, (b) whom Customer has designated as a User of eResidue Pro in accordance with Section 2.4 (Users) and (c) to whom Customer has supplied a single-user (i.e. named user) log-in account, user ID and password for eResidue Pro. “User”

1.6 “Order Form” means the documents, i.e., Purchase or Sales Order, for placing orders for Subscription Services hereunder that are entered between Customer and Quascenta from time to time, including addenda and supplements thereto, as well as for describing the Services to be performed by Quascenta for Customer. By entering into a Order Form hereunder, an Affiliate of Customer agrees to be bound by the terms of this Agreement as if it were an original Party hereto. Order Forms shall be deemed incorporated herein by reference.

1.7 “Confidential Information” means any and all information disclosed by either party, Quascenta or Customer, which is marked “confidential” or “proprietary” or which should reasonably be understood by either Party to be confidential or proprietary, including, by way of example only, this Agreement, pricing and eResidue Pro software application (including source and object code and Documentation).

1.8 Controller“, “Data Subject“, “Personal Data Breach“, “Processor” and “Process” shall have the meaning given to them in the GDPR

1.9 “Customer” means the entity identified in the applicable Order Form.

1.10 “Customer Data” means all electronic data or information submitted by Customer to be stored or processed in eResidue Pro.

1.11 “Documentation” means online technical manual, including any updates thereto, relating to the use of eResidue Pro made generally available by Quascenta.

1.12 “Effective Date” means the date of Customer’s Order for eResidue Pro Subscription Services.

1.13 “eResidue Pro” means a Software as a Service application offered by Quascenta Pte. Ltd. that facilitates capture of the entire cleaning validation lifecycle related data for a Pharmaceutical Manufacturing site. 

1.14 “Exclusions” means the following events, which events shall be excluded from the calculation of Uptime: (i) Force Majeure Event; (ii) outages due to Scheduled Downtime; (iii) outages based on Customer networks or domain name server issues; (iv) outages due to Customer’s configuration, scripting, coding drafted by Customer without Quascenta’s authorization; (v) internet outages; (vi) Customer outages requested by Customer; (vii) Customer changes to its environment which hinder eResidue Pro Usage and (viii) inability for Customer to log in to eResidue Pro because of dependence on non Quascenta provided services or components (eg. Lightweight Directory Access Protocol (LDAP) in customer environment). “Force Majeure Event” means an event of force majeure and/or delays caused by an internet service provider or hosting facility that results in data center outages resulting from causes not within Quascenta’s control.

1.15 “GDPR” shall mean the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).

1.16 “Intellectual Property” means all: (a) trademarks, service marks, brand names, certification marks, collective marks, d/b/a’s, Internet domain names, logos, symbols, trade dress, assumed names, fictitious names, trade names, and other indicia of origin, all applications and registrations for the foregoing, and all goodwill associated therewith and symbolized thereby, including all renewals of the same; (b) inventions and discoveries, whether patentable or not, and all patents, registrations, invention disclosures and applications therefor, including divisions, continuations, continuations-in-part and renewal applications, and including renewals, extensions and reissues; (c) confidential information, trade secrets and know-how, including processes, schematics, business methods, formulae, drawings, prototypes, models, designs, customer lists and supplier lists; (d) published and unpublished works of authorship, whether copyrightable or not (including databases and other compilations of information), copyrights and database rights therein and thereto, and registrations and applications therefor, and all renewals, extensions, restorations and reversions thereof; and (e) moral rights, design rights, mask works, rights of privacy and publicity, and all other intellectual property rights.

1.17 “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful of malicious code, files, scripts, agents or programs.

1.18 “Non-Quascenta Applications” or “Non-Quascenta Services” means online applications and offline software products that are provided by entities or individuals other than Quascenta and are clearly identified as such, and that interoperate with the Subscription Services.

1.19 “Personal Data” shall mean any information relating to an identified or identifiable natural person as defined by the General Data Protection Regulation of the European Union (“GDPR” EC-2016/679) that is Processed by Processor as part of providing the services to Controller.

1.20 “Quantity” means Equipment, Products, Reports, Storage Space and any other metric that defines the Usage Limits

1.21 “Scheduled Downtime” means planned downtime of which Quascenta has notified Customer at least 72 hours in advance.

1.22 “Subscription Services” means eResidue Pro software and add-on modules along with services offered by Quascenta that Customer orders on a Order Form.

1.23 “Subscription Term” means the duration identified on an Order Form during which the eResidue Pro will be provided, and any subsequent renewals. 

1.24 "Supported Web Browser" means the latest release of Google Chrome, or any other web browser that Quascenta agrees in writing shall be supported.

1.25 “Uptime” means the time eResidue Pro is available for access and use, but subject to the Exclusions described herein.

1.26 “User Manual” means the manual for the Services, accessible via eResidue Pro application, as updated from time to time.

The word "include" shall be construed to mean include without limitation, and cognate terms shall be construed accordingly.

2. SUBSCRIPTION SERVICES

2.1 Provision of Subscription Service

Unless otherwise specified in the applicable Order Form:

2.1.1 Subscription Services are purchased as subscriptions and may be accessed only in accordance with the applicable Order Form(s);

2.1.2 During the Subscription Term, Subject to the terms of this Agreement, Quascenta hereby grants to Customer a nonexclusive, non-assignable, royalty free, worldwide right to access and use Subscription Services (i) up to the Usage Limits defined in the Order Form, (ii) for Customer’s internal business operations, (iii) in accordance with the User Guide and the applicable Order;

2.1.3 Additional quantities may be added during the applicable Subscription Term on terms defined by Quascenta and as noted in the Order Form; 

2.1.4 The added quantities shall terminate on the same date as the pre-existing subscriptions;

2.1.5 Customer agrees that Customer’s purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Quascenta regarding future functionality or features;

2.1.6 Customer acknowledges that this Agreement is a services agreement and Quascenta will not be delivering copies of the Software to Customer.

3. USE OF THE SERVICES

3.1 Service Level Agreement

The Service Level SaaS Agreement (“SLA”) for the Subscription Services is set forth in this document hereto. The SLA sets forth Customer’s sole remedies for availability or quality of the Subscription Services including any failure to meet any guarantee set forth in the SLA.

3.2 Customer Responsibility

During the Subscription Term, Customer shall be exclusively responsible for the following responsibilities:

3.2.1 Designating the Users who shall have access to the Subscription Services through the assignment of a single user ID, (each a “Named User”);

3.2.2 Providing Named Users, which may include Customer’s third-party vendors or suppliers (“Third Party Users”) with login credentials, unique email address and user name, to access the Service on Customer’s behalf under the terms of this Agreement;

3.2.3 A User log-in account may not be shared or used by more than one User, but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment with Customer or otherwise changed job status or function and no longer require use of Subscription Services. If a User is no longer authorized by Customer to access and use Subscription Services, Customer shall terminate or otherwise disable such access.  Where the former user is Customers’ SPOC/BPOC for eResidue Pro and, Quascenta should be notified promptly;

3.2.4 Customer and its Users are responsible for maintaining the confidentiality of all passwords and for ensuring that each password is used only by the assigned User;

3.2.5 Ensuring that all Named Users (including all Third Party Users) are informed about, and comply with, the terms and conditions of this Agreement.

3.3 Customer IT Requirements

Customer, at its own cost, shall:

3.3.1 Make all arrangements responsible for procuring and maintaining a high speed Internet connection that is required for proper access to Subscription Services (the speed of which may have a significant impact on the responsiveness of the Subscription Service). Quascenta recommends access to a second internet connection backup for redundancy.

3.3.2 Customer is responsible for obtaining and maintaining all computer hardware and supported web browser needed to access and use Subscription Services, as per Documentation.

3.3.3 Customer shall whitelist the email addresses that the Subscription uses for alert notification.  Email systems electronically filter for “spam” and/or “viruses.” This filtering process may result in email communications being quarantined (i.e., potentially not being received by the intended party) and/or delayed in reaching the intended party.

3.3.4 Quascenta has no control over, and is not liable for performance issues or downtime of Subscription Services to the extent caused by the above factors.

3.4 Restrictions on Subscription Services

Customer shall make no attempt to, and shall not permit any User to make attempt to: (i) license, sub-license, sell, rent, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Subscription Services in any way; (ii) copy, distribute, or disclose any part of the Subscription Services in any medium; (iii) alter or modify the Subscription Services in any way without the prior written consent of Quascenta; (iv) reverse engineer, reverse assemble, reverse compile or otherwise attempt to create the source code from the Subscription Services; (v) interfere with, or compromise the system integrity or security of, or decipher any transmissions to or from the servers running the Subscription Services; (vi) take any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vii) upload Malicious Software through the Subscription Services; (viii) impersonate another person or otherwise misrepresent your affiliation with a person or entity, conduct fraud, hide or attempt to hide your identity, or misrepresent the source or content of information transmitted through the Subscription Services; (ix) use the Subscription Services or the eResidue Pro website in any unlawful manner or in any other manner that could damage, disable, overburden or impair the eResidue Pro website; (x) bypass the measures we may use to prevent or restrict access to the Subscription Services; (xi) use any robot, spider, scraper, script, or other automated technology to access the Subscription Services for any purpose without our express written permission; (xii) gain unauthorized access to the Subscription Services, its user accounts, computer systems or networks through unauthorized means such as hacking or password mining; and (xiii) collect or harvest any personally identifiable information, including account names, from the Subscription Services; and (xiv) and otherwise use the Subscription Service not in accordance with this Agreement. 

3.5 Reserved Rights

Quascenta reserves the right in its sole discretion to terminate Customers’ access and use of the Subscription Services, at any time, for reasons including, but not limited to, a breach or other violation of the terms and conditions set forth in these Terms; abuse of the Subscription Services or Quascenta’s underlying systems; illegal or misrepresentative use of the Subscription Services or underlying systems; and acts or circumstances detrimental to Quascenta, whether or not such circumstances are directly under the control of Customer. Quascenta shall promptly communicate to Customer its decision to terminate Customer’s access to the Subscription Services pursuant to this Section as well as, if it so chooses, the relevant reason(s) for such termination. Customer agrees to provide any assistance reasonably requested by Quascenta in connection with such termination.

3.6 Intellectual Property Rights

3.6.1 General

All right, title, and interest in and to the Subscription Services, Quascenta’s Confidential Information, including, without limitation, all modifications, enhancements, and intellectual property rights thereto, shall belong solely to Quascenta and/or its applicable licensors.

3.6.2 Suggestions

Quascenta shall exclusively own all right, title, and interest in and to any suggestions, ideas, enhancement requests, recommendations, or other feedback provided by Customer relating to the Subscription Services.

3.6.3 Survival

The terms of this Section 3.6 shall survive termination or expiration of this Agreement.

4. NON-QUASCENTA APPLICATIONS

4.1 Addenda for Additional Services

Quascenta may from time to time make available to Customer add-on modules or third-party products or services, including but not limited to Non-Quascenta Applications and implementation, customization and other consulting services. Any acquisition by Customer of such Non-Quascenta Applications or services, and any exchange of data between Customer and any Non-Quascenta Application provider, would require an addendum to this Agreement.  We do not warrant or support Non-Quascenta Applications, except as specified.   Subject to Section 4.3 (Integration with Non-Quascenta Application) no additional services is required to use the Subscription Services except a supported computer, operating system, web browser and Internet connection.

4.2 Non-Quascenta Application and Your Data

Where Customer links Non-Quascenta Application with Subscription Services offered by Quascenta, Customer acknowledges that Quascenta may allow providers of these Non-Quascenta Application to access Data as required for the interoperation of such Non-Quascenta Application with Our Subscription Services. Quascenta shall not be responsible for any disclosure, modification or deletion of Customer data resulting from any such access by Non-Quascenta Application providers. Quascenta shall allow Customer to restrict such access by restricting Users from installing or enabling such Non-Quascenta Application for use with the Subscription Services.

4.3 Integration with Non-Quascenta Applications

Subscription Services offered by Quascenta may contain features designed to interoperate with Non-Quascenta Applications. To use such features, Customer may be required to obtain access to such Non-Quascenta Applications from their providers.  If the provider of any such Non-Quascenta Application ceases to make their Application available for interoperation with the corresponding Service features on reasonable terms, Quascenta may cease providing such Service features without entitling Customer to any compensation.

5. FEES FOR SUBSCRIPTION SERVICES

5.1 The fees payable for the Subscription Services and the payment period for such fees will be set forth in and paid in accordance with the Order. All invoices are due upon receipt of invoice. All fees are non-refundable and Quascenta will not provide any refunds or credits for partially used periods of the Quascenta Subscription Services.

5.2 The Subscription fees exclude tax and duties. If the Customer is required to pay or collect any federal, state, local, value added, tax, or duty on any fees charged under this Agreement, or any other similar taxes or duties levied by any governmental authority, excluding taxes levied on the Quascenta’s net income, such taxes and/or duties will be billed to and paid by the Customer.

6. TERM, SUSPENSION, TERMINATION

6.1 Subscription Term

This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 6.2 below, regardless of the billing frequency selected in the Order.

6.2 Termination for Convenience

Customer may terminate this Agreement by providing Quascenta with written notice at least 30 days prior to the beginning of the next Subscription term. Customer may notify Quascenta of its intent to terminate by emailing Quascenta at order_services@quascenta.com.

6.3 Termination for Cause

Either party may terminate this Agreement for cause: (i) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. (c) Suspension of Subscription Services for Cause. In addition to its other rights and remedies, Quascenta reserves the right, without liability to Customer, to immediately suspend any and all access to the Subscription Services if Customer commits a material breach of this Agreement or any relevant Order until such material breach is cured. If such material breach is (i) unable to be cured, or (ii) is not cured within 30 business days, then Quascenta may immediately terminate the Agreement and the affected Order. (d) Termination by Quascenta. Quascenta may terminate this Agreement if Quascenta generally discontinues its provision of the Quascenta Subscription Services to all customers.

6.4 Effects of Termination

Upon termination pursuant to 6.2 above, all rights granted herein will terminate and Customer will make no further use of the Subscription Services. Upon written request by Customer made within 30 days after the effective date of termination, Quascenta will make available to Customer access to Subscription Services in order to download Customer Data. After such 30-day period, Quascenta shall have no obligation to maintain or provide any Customer Data.

7. WARRANTIES AND DISCLAIMER

7.1 Warranties

Quascenta warrants, for Customer’s benefit only, that the Subscription Services will operate in in substantial conformity with the applicable Documentation.

7.2 Remedies

Quascenta shall use reasonable efforts consistent with prevailing industry standards to maintain the Subscription Service in a manner that minimizes errors and interruptions to the Service.  Quascenta warrants that, during the Subscription Term of the applicable Order Form, it will provide the Subscription Service in material conformance with the requirements and for the use identified and as set forth in the applicable Order Form and Documentation.  Quascenta, at its sole expense and as Customer’s sole remedy, will use commercially reasonable efforts to correct any material non-conformance within sixty (60) days after Quascenta receives written notice from Customer that includes information sufficient to permit Quascenta to recreate the non-conformance. Customer acknowledges that the Subscription services are complex with a variety of dependencies, and as such, Quascenta cannot guarantee that any services will be provided without error or interruption or accepted by any third party.  Quascenta’s warranty obligations are expressly subject to: (a) the Service being used in accordance with this Agreement, the applicable Order Form, the Documentation and any other instructions subsequently provided by Quascenta; and (b) Customer providing written notice to Quascenta of any alleged breach of such warranty promptly after Customer becomes aware of such breach. Notwithstanding anything else in this Agreement, Quascenta shall have no liability under this Agreement or any applicable Order Form, pursuant to the warranty in this Section or otherwise, arising out of or relating to: (1) any use, re-transmission or reliance on inaccurate or incomplete Customer materials, data or information by Customer; (2) the failure of Customer to provide the necessary information to Quascenta in a timely manner; or (3) non-Quascenta errors or omissions in use of, or input of any information or data in connection with, the Subscription Service.

7.3 Disclaimer

EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION, THE SUBSCRIPTION SERVICE IS PROVIDED “AS IS” AND QUASCENTA DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESSED OR IMPLIED. QUASCENTA EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS OR SUFFICIENCY FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, OR ARISING FROM THE COURSE OF DEALING BETWEEN THE PARTIES OR USAGE OF TRADE. QUASCENTA DOES NOT WARRANT THAT THE OPERATION OF THE SERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE.

8. CONFIDENTIALITY

8.1 A non-disclosure agreement by and between the Parties shall take precedence over this section. 

8.2 Both parties acknowledge that, in the course of this Agreement, certain confidential information may be disclosed solely for the purposes described herein.  Except as otherwise expressly permitted pursuant to this Agreement, each Party may use each other’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement and shall disclose such Confidential Information (a) solely to the employees who have a need to know such Confidential Information and who are bound by terms of confidentiality intended to prevent the misuse of such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation. 

8.3 Confidential Information: shall not include information which can be demonstrated to be public information on the date this Agreement is executed or becomes public information subsequent to such date through acts not attributable to Customer.

8.4 A party who receives such Confidential Information from the other party will not disclose the same to third parties, other than disclosure to its employees and contractors who have a duty to comply with this provision, with such disclosure being made for the sole purpose of the party performing its rights and obligations under this Agreement. Additionally, Customer shall require all Users to comply with the obligations of this Section. A party who receives such information from the other party will not use the same for any purpose other than for the purposes stated in this Agreement, and shall exercise the same degree of care and protection with respect to the disclosing party’s Confidential Information that it exercises with respect to its own confidential information of a similar nature and, in any event, shall use reasonable care and take all reasonable precautions to prevent unauthorized disclosure of such Confidential Information to third parties.

8.5 The obligation of non-disclosure and non-use with respect to Confidential Information shall survive the expiration or termination of this Agreement for a period of five (5) years and, with respect to any trade secret information, shall continue indefinitely as long as such information remains a trade secret of the disclosing party (or for so long as permitted by applicable law).

9. INTELLECTUAL PROPERTY INDEMNIFICATION

9.1 Quascenta Indemnification

9.1.1 Quascenta shall indemnify, defend, and hold harmless the Customer against any third-party claim that the Subscription Services infringes any patent, copyright, or trademark, or misappropriates any trade secret (except for claims which are specifically excluded under the terms of Section 9.2). If the Subscription Service becomes, or, in Quascenta’s opinion, is likely to become, the subject of a claim of infringement, Quascenta may, at its sole option, (a) obtain for Customer the right to continue using the Subscription Service; (b) replace or modify the affected Subscription Service so that it becomes non-infringing while providing substantially equivalent functionality; or (c) if such remedies are not available on commercially reasonable terms as determined by Quascenta, terminate the Subscription Services and refund any prepaid Subscription fees for the affected portion of the Subscription Service.

9.1.2 Notwithstanding any terms contained in this Section 9.1, Quascenta shall have no liability for infringement claims if the alleged infringement is based on or arises from (a) combination or use of the Subscription Service with software or other materials not provided or recommended for use by Quascenta or (b) the use of the Subscription Service not in accordance with the Documentation or this Agreement.

9.2 Customer Indemnification

Customer will indemnify, defend, and hold harmless Quascenta against all claims, actions or proceedings, arising out of any claim: (i) that any Customer data, Marks, or Materials inputted into the Subscription Service, or the permitted use of the same by Quascenta, infringes or violates any third party patent, copyright or trade secret right; (ii) related to taxes, fees, tariffs, levies, duties or charges imposed on Quascenta or any costs or expenses incurred by Quascenta as a result of customer’s failure to comply with its obligations under Section 5.2 (Taxes); or (iii) involving customer’s violation of confidentiality, Section 8, of this Agreement.

9.3 Indemnification Obligations

The indemnification provided in Sections 9.1 and 9.2 is conditioned on (i) the party to be indemnified (“Indemnified Party”) giving the indemnifying party (“Indemnifying Party”) prompt written notice of such claim; (ii) the Indemnified Party providing its full cooperation in the defense of such claim, if requested by the Indemnifying Party; and (iii) the Indemnified Party granting the Indemnifying Party the sole authority to defend or settle the claim. The Indemnified Party may engage legal counsel to monitor, but not control, any such claim at the Indemnified Party’s expense.

10. DATA MANAGEMENT

10.1 Ownership of Customer Data

Customer retains ownership of all Customer Data. Customer, not Quascenta, has sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and Intellectual Property ownership or right to use of all Customer Data, and Quascenta is not responsible or liable for Customer’s actions related to the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Customer acknowledges that when using eResidue Pro, only the Users, authorized by the Customer, can make permanent changes and edits to the Customer Data. 

10.2 Access and Processing of Customer Data

Customer acknowledges that with each use of eResidue Pro, initiated by its Users, Customer Data will be captured, retrieved, processed, edited and/or deleted based on its configuration of eResidue Pro. Quascenta and its employees have no access to Customer Data within the Subscription Service unless special access is granted by Customer for a specific purpose.

10.3 Data Security

Quascenta will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by Quascenta Authorized Personnel except (a) to provide the Services and prevent or address service, support or technical problems; (b) as compelled by law in accordance with Sections 8.2(b) or 8.2(c); (c) in accordance with the provisions of Section 8.4; or (d) as Customer expressly permits in writing. The benefit of encryption, protection features, compression or any other technology that advances the security or efficiency of Subscription Services is not considered modification.  Customer acknowledges that to provide Subscription Services, Customer Data could leave eResidue and that Quascenta is responsible for Customer Data resident within the Subscription Service.

10.4 Data Privacy

To the extent Customer Data constitutes Personal Data, Quascenta and Customer hereby agree that:

10.4.1 Customer shall be deemed to be the Data Controller and Quascenta shall be deemed to be the Data Processor as those terms are understood under the Applicable Data Protection Law.  Unless otherwise specifically agreed to by Quascenta, Customer Data is stored and maintained in Ireland (EU/EEA area).  Under no circumstances will any entity in Quascenta be deemed a Data Controller with respect to Customer Data under Applicable Data Protection Laws.

10.4.2 If Customer Data originates in the EEA, Quascenta will ensure, pursuant to Applicable Data Protection Law, to the extent that any Customer Data constitutes Personal Data, if Customer Data is transferred to a country or territory outside of the EEA (a “non-EEA country”), such transfer will only take place if: (a) the non-EEA country in question ensures an adequate level of data protection; (b) one of the conditions listed in Article 26(1) of Directive 95/46/EC (or its equivalent under any successor legislation) is satisfied; or (c) the transfer takes place pursuant to the EU-U.S. or Swiss-U.S. Privacy Shield Frameworks.

11. GENERAL

11.1 Authority

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. When executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligations of such party, enforceable against such party in accordance with its terms.

11.2 Non-Exclusive Service

Customer acknowledges that the Subscription Service is provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict Quascenta’s ability to provide the Subscription Services, including any features or functionality first developed for Customer, to other parties.

11.3 Governing Law

This Agreement is governed by and construed in accordance with the laws of Singapore. Any claim, dispute or controversy of whatever nature arising out of or relating to this Agreement shall be referred to and finally resolved by arbitration in Singapore administered by the Singapore International Arbitration Centre (SIAC) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this

The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply in any respect to this Agreement or the parties hereunder.

11.4 Compliance with Laws

Quascenta shall comply with all applicable local, state, national and foreign laws in connection with its delivery of the Subscription Services, including those laws related to data privacy, international communications, and the transmission of technical data.

11.5 Dispute Resolution

Customer’s satisfaction is an important objective for Quascenta in performing its obligations under this Agreement. Except with respect to intellectual property rights, if a dispute arises between the parties relating to the interpretation or performance of this Agreement or the grounds for the termination hereof, the parties agree to hold a meeting within fifteen (15) days of written request by either party, attended by individuals with decision-making authority, regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute prior to pursuing other available remedies. If, within 15 days after such meeting, the parties have not succeeded in resolving the dispute, either party may protect its interests by any lawful means available to it.

11.6 No Conflicts

Notwithstanding the content of the Order Form Issued by the Customer or any other Customer document or record, whether in writing or electronic, relating to the subject matter of this Agreement, the terms of this Agreement shall govern and any conflicting, inconsistent, or additional terms contained in such documents shall be null and void.

11.7 Communications

All communications required or otherwise provided under this Agreement shall be in writing and shall be deemed given when delivered (i) by hand, (ii) by registered or certified mail, postage prepaid, return receipt requested; (iii) by an internationally recognized overnight courier service to the respective addresses set forth either on the Order Form, or on the first page of this Agreement, as each may be amended by the parties by written notice to the other party in accordance with this Section.

11.8 Assignment

Customer may not assign its rights and duties under this Agreement without the prior written consent of Quascenta, which, in the case of a proposed assignment to affiliates or successors in interest, shall not be unreasonably withheld. Any assignment in violation of this Section 9.5 shall be void and of no effect. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.

11.9 Severability

In case any one or more of the provisions of this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.

11.10 Entire Agreement

This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto. All Schedules attached to this Agreement or subsequently added hereto by mutual consent of the parties are incorporated into this Agreement for all purposes.

11.11 Waiver

No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

11.12 Modifications

No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to or modification of this Agreement and signed by an authorized representative of each party. Notwithstanding the foregoing, Quascenta reserves the right, in its sole discretion, to make any changes to the Subscription Services and eResidue Pro Software that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Quascenta’s Subscription Services to its customers, (ii) the competitive strength of or market for Quascenta’s Subscription Services, or (iii) the Subscription Services’ cost efficiency or performance; or (b) to comply with applicable law; provided that no such changes have the effect of materially degrading the functionality of the Subscription Services.

11.13 Force Majeure

Neither party shall be liable for delay or failure in performing any of its obligations hereunder due to causes beyond its reasonable control, including an act of nature, war, natural disaster, governmental regulations, terrorism, communication or utility failures or casualties or the failures or acts of third parties.

11.14 No Third-Party Beneficiaries

This Agreement is personal to the parties and no third parties shall be considered beneficiaries hereof, for any purposes.