These Standard ECAL SaaS Terms form a binding legal agreement (Agreement) between HyperKu Pte Ltd of 160 Robinson Road, #14-04 Singapore Business Federation Centre, Singapore 068914 incorporating its subsidiaries (ECAL Marketing Pty Ltd, ECAL Marketing Ltd and ECAL Marketing LLC) (ECAL) and you (the Client), and explain your rights and obligations, as a Client, in relation to the Services offered by ECAL, including the ECAL™ calendar marketing software delivered as a service. “Client” or “you” means either (a) you as an individual or (b) your company, if you are using the Services in your capacity as an employee or agent of a company. You identify as the specific “Client” during the registration process.

By checking the “I accept the Agreement terms” box, or by installing, subscribing for or using any Services (whether via online registration or otherwise), the Client agrees to be bound by this Agreement in the absence of any separate written contract between the parties. If you do not agree to this Agreement, then do not install, subscribe for, or use any of the Services.

From time to time, ECAL may modify this Agreement, whether by updating the terms of this Agreement on the Website, by notice to you by email, or by electronic alert via the Service (e.g. admin notification). Any modified version will take effect at the end of the then current billing period (usually by month). The latest version of this Agreement is available at www.ecal.com and within your admin.

1. Terminology

Aggregated Data means de-identified information about End-Users and End-User behavior that is collected and aggregated by ECAL for the purposes of improving the Services, for use in any other products or services, or for any other purpose.

Annual Fee means the fee payable by the Client to ECAL, in accordance with the agreed pre-paid contract or order or invoice relevant to the Client (and includes any payment for additional products or services or user subscriptions as defined by the contract or order or invoice).

Authorized User means those persons authorized by the Client to use the Services on the Client’s behalf (for example, certain employees or agents of the Client).

Client Data means information supplied by the Client to ECAL via the Software for provision of the Services, including Event & Schedule information, logos and image assets.

Data means Client Data, End-User Data and Aggregated Data.

ECAL IP means the title, copyright, patent and other intellectual property rights in the Software and all copies, modifications and derivative works of the Software and Services, as well as the ECAL™, BEAT THE INBOX™, RIGHT-TIME COMMUNICATIONS™ and HYPER ID™ brands, the Dynamic-E logo, and anything else ECAL develops or delivers under this Agreement.

End User means any person or entity that benefits from the Services to receive digital calendar information in the form of an Event or Schedule directly into their PDC.

End User Data means Personal Information collected from or about End Users and information collected about how individual End Users have used the Software (such as which specific Schedules or Events have been synced, device-specific information, click-stream data, location, etc.), but excludes Aggregated Data.

Event means a single calendar entry in a PDC.

Free Plan means a licence-free Service Plan.

Marketing Agency means an ECAL approved agency responsible for managing advertising, sponsorship or third party promotion on the ECAL application widget.

Monthly Fee means the fee payable by the Client to ECAL, in accordance with the pricing for the Service Plan relevant to the Client (and includes any payment for additional products or services or user subscriptions under that Service Plan).

PDC means the personal digital calendar of an End User.

Permitted Subscriptions means the number of user subscriptions the Client is entitled to in accordance with the relevant Service Plan and Monthly Fee or Annual Fee paid by the Client.

Personal Information means information or an opinion about an identified individual, whether the information is true or not and whether the information is recorded in a material form or not, which ECAL collects or handles whilst performing the Services under this Agreement.

Price Guarantee means there are no extra fees for additional user subscriptions over the Permitted Subscriptions limit for the term.

Privacy Policy means the privacy policy published from time to time on www.ecal.com.

Schedule means a series of linked Events in a PDC.

Services means the online calendar marketing services provided by ECAL (or via an ECAL partner) via the Website, as defined by the relevant Service Plan.

Service Plan means one of the plans set out on the Website which defines the particular scope of Services that a client may access from ECAL, or otherwise by arrangement by contract or order or invoice.

Software means the digital code and end products of the digital code used by ECAL to deliver the Services.

Website means www.ecal.com or any other site operated by ECAL.

2. Right to Services

ECAL grants the Client a non-exclusive, non-assignable, royalty free, worldwide right to access the Services on a monthly basis provided the Client pays the relevant Monthly Fee. ECAL may also grant the Client a non-exclusive, non-assignable, royalty free, worldwide right to access the Services on an annual basis provided the Client pays the relevant Annual Fee.

The Client may allow Authorized Users to access the Services but the Client remains at all times responsible for the compliance by all Authorized Users with this Agreement.

The Client acknowledges that ECAL has no delivery obligation and will not ship or deliver copies of the Software or any other software programs to the Client as part of the Services. Instead, ECAL will host the Software on its own servers and the Client will have access to the Software via the admin portal or an Application Program Interface (API).

ECAL reserve all rights not expressly granted to the Client in this Agreement. ECAL or its licensors own the ECAL IP and the Client does not acquire any ownership or intellectual property rights in ECAL IP.

3. Service Period

The Services will be provided on a monthly basis, provided the Monthly Fee is properly paid at the start of each monthly period, unless otherwise agreed in writing with the Client. If the Client at any time ceases to pay the Monthly Fee, all rights to access or use the Services and Software shall cease.

The Services may also be provided on an annual basis, provided the Annual Fee is properly paid at the start of each annual period, unless otherwise agreed in writing with the Client. If the Client at any time ceases to pay the Annual Fee, all rights to access or use the Services and Software shall cease.

For Clients that order, register or subscribe to the Services offline (including those that by arrangement pay in advance upon invoice), the service period begins on the date that the ECAL account is created for you (at the sole determination of ECAL) and continues for the period that the Client has elected to pre-pay (normally 12 months), unless otherwise agreed to in writing.

In the absence if a written contract or order, the Client understands, accepts and is bound by this Agreement.

4. Renewal

For Clients that use Services monthly via a Monthly Fee, your Service Period will automatically renew every month on its monthiversary. Continued use of the Services after the monthiversary will constitute acceptance of Services renewal.

For Clients that use Services annually via an Annual Fee, your Service Period will automatically renew every year on its anniversary. Continued use of the Services after the anniversary will constitute acceptance of Services renewal.

5. Services

ECAL reserves the right to change the Service Plans from time to time, including to add new features or to vary the delivery of existing features, but ECAL will consult with the Client via general email before any key features are removed.

As part of the Services, ECAL will:

• Host and maintain the Software and provide cloud-based access for the Client via the admin portal or an API (if API access is included in the relevant Service Plan) to enable remote administration of Schedules and Events;
• Continue to improve the ECAL platform including keeping up to date with calendar formats (including Google Calendar, Apple iCal, Outlook, iOS, Android and others) and adding or removing functionality or features; and
• Maintain reasonable security measures to protect all Data held within the Software.

For those Service Plans that include a service level feature, ECAL will maintain the service levels set out in the relevant SLA including providing online support. Phone support may also be offered depending on your Service Plan.

6. Privacy

ECAL will collect, use, disclose and store End-User Data strictly in accordance with applicable data protection and privacy laws including EU GDPR (EU General Data Protection Regulation), UK GDPR (UK General Data Protection Regulation) and CCPA (California Consumer Privacy Act), and in accordance with the ‘Data Processor Provisions’ detailed in Schedule A.

For the purposes of EU GDPR and UK GDPR compliance, ECAL is a Data Processor and the Client is a Data Controller, except for a Free Plan where ECAL is both a Data Processor and Data Controller.

All End Users must agree to our Privacy Policy prior to using the Services.

If a particular End User no longer wishes to receive ECAL-related Events or Schedules in their PDC, the End-User may contact ECAL and ECAL will direct them to delete their ECAL subscription from within the settings in their PDC. ECAL will also delete the relevant End-User Data from its database within a reasonable timeframe (maximum 30 days).

It is a condition of this Agreement that the Client also agrees to comply with, and not do anything inconsistent with, our Privacy Policy. The Client must also comply with the Client’s own privacy policies and all domestic, foreign and international laws and regulations, including those relating to data privacy, data storage, international communications, and the exportation of technical or personal data.

7. Fees & Payment

For Clients that use Services monthly, the Monthly Fee for the Services is set out in the Service Plan. If, during any month of service, the Client exceeds its Permitted Subscriptions, the Client’s Monthly Fee will be automatically increased for additional user subscriptions required to be added to the limit (min. 1,000 users) at the advertised standard rate (as per the website) for the following month to ensure End-Users are able to continue subscribing to the Events and Schedules of the Client. The Client will pay all Monthly Fees automatically at the start of each month of service via ECAL’s online billing software or otherwise (eg: by invoice) within 7 days of ECAL’s invoice.

For Clients that use Services annually, the Annual Fee for the Services is set out in the latest contract or order or invoice. If, during any month of service, the Client exceeds its Permitted Subscriptions, the Client will be separately invoiced for additional user subscriptions required to be added to the limit (min. 1,000 users) at the advertised standard rate (as per the website) for the remaining months until the next service anniversary to ensure End-Users are able to continue subscribing to the Events and Schedules of the Client, except where the Client has been provided with a Price Guarantee. The Client will pay all Annual Fees automatically at the start of each month of service via ECAL’s online billing software or otherwise (eg: by invoice) within 30 days of ECAL’s invoice. Monthly Fees are due for payment within 7 days of ECAL’s invoice.

Late payments are subject to interest charges of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all collection expenses.

If the Service Plan includes Sponsorship Rights then the Client will be entitled to sell advertising, branding and promotional benefits (Sponsor Benefits) made available by ECAL via the Services as a dedicated sponsorship package to sponsors. A media and implementation fee equivalent to 15% of the agreed value of the sponsorship package is payable to ECAL (Media Fee), provided that ECAL must approve any such sponsor in writing prior to implementation, such approval not to be unreasonably withheld. ECAL may also propose certain sponsors to the Client (along with any reasonable Media Fee) and the Client may accept or not accept such proposed sponsor at its sole discretion.

In the event of any termination, the Client will pay the unpaid balance due for the then current billing period, calculated in accordance with this Agreement. ECAL may charge such unpaid fees and charges to the Client’s credit card or otherwise invoice the Client for such unpaid Fees and charges.

Monthly Fees, Annual Fees and Media Fees exclude any taxes (including GST) or duties payable in respect of the Services in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by ECAL, the Client must pay to ECAL the amount of such taxes or duties in addition to any fees owed under this Agreement.

ECAL may offer a Free Plan that does not require a Client to pay a licence fee, such fee may be subsidized by an ECAL Marketing Agency or by ECAL itself.

8. Client obligations and restrictions

The Client is responsible for its own Internet connection and must use software, systems and equipment compatible with the Services, as ECAL specifies in its published policies. Any Client web browsers and other software must support the Secure Socket Layer (SSL) protocol or other protocols accepted by ECAL. ECAL is not responsible for any Client Data lost, altered, intercepted or stored across networks not owned or operated by ECAL.

To enable ECAL to properly communicate with the Client, the Client will provide accurate, current and complete information when registering with ECAL and ordering Services, and will update its information if it changes. The Client will ensure all its Authorized Users’ passwords and usernames are kept confidential and will not share them with third parties. The Client is responsible for all actions taken through its accounts.

The Client must not:

• deviate from the ECAL brand guidelines (as published and varied from time to time) when using ECAL branding, logos, designs (including icons, buttons, etc.), or trademarks;
• use the Services other than in accordance with ECAL’s documentation and policies;
• make the Software or any other ECAL software or materials available to any third party (unless such access is expressly permitted for the specific Service Plan you have subscribed for);
• modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Software (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access the Services in order to build or support, and/or assist a third party in building or supporting, products, software or services competitive to ECAL; or
• license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services (including the Software and all ECAL products and materials) available, to any third party other than, as expressly permitted under the terms of this Agreement.

9. Contact Standards

Both ECAL and the Client agree to comply with the following Contact Standards:

• Each party will only ever send Event or Schedule-related information directly to an End-Users PDC if it is deemed, in ECAL’s sole opinion, ‘specific and relevant’ to the End User (based on their known profile) or one of the Client’s Schedules or Events.
• Neither party will use, or permit use of the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may:
• menace or harass any person or cause damage or injury to any person or property;
• involve the publication of any material that is false, defamatory, harassing or obscene;
• violate privacy rights or promote bigotry, racism, hatred or harm;
• constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters;
• constitute an infringement of intellectual property or other proprietary rights; or
• otherwise violate applicable laws, ordinances or regulations.

ECAL reserves the right to remove or disable access to any material that violates the above Contact Standards. ECAL shall have no liability to the Client in the event that ECAL takes such action. Each party agrees to defend and indemnify the other against any claim arising out of a violation of its obligations under this section 9.

10. Data

The Client retains ownership of all Client Data and is solely responsible for the accuracy, content and legality of all Client Data. The Client will not submit any Client Data:

• that is obscene, defamatory, libelous, threatening, harassing, pornographic, racially or ethnically offensive, encourages conduct that would be considered a criminal offence or gives rise to any civil liability, or that is in conflict with the terms of this Agreement;
• that includes any virus, bot, worm, scripting exploit or other harmful code that is likely to harm or corrupt any part or all of the Software, Services or any computer systems or data;
• which infringes the rights of any third party; or
• that otherwise breaches the Contact Standards.

ECAL may delete or remove any Client Data at any time, with or without notice, if in ECAL’s reasonable opinion, such Client Data does not comply with the above restrictions. ECAL may also edit any Event and Schedule information in order to keep such information up to date.

The Client acknowledges that ECAL may add a tracking code to one or more links (e.g. ticket purchase links) within the Client’s Events in order to track clicks or purchases that an End-User may make as a result of clicking on that link. The Client further acknowledges that ECAL may receive an affiliate fee from a third party as a result of such end-purchases made by End-Users.\

The Client grants ECAL a non-exclusive, royalty-free, worldwide license to copy, distribute, perform, display, store, modify, and otherwise use Client Data in connection with providing the Services (including the distribution of the Client’s Schedules and Events via ECAL’s network).

For all Service Plans except the Free Plan, all rights in the End-User Data are owned and retained by the Client unless otherwise agreed by contract or order. The Client grants ECAL a non-exclusive, royalty-free, worldwide licence to use the End-User Data during the Agreement to:

• provide the Services, including storing the End-User Data on ECAL’s servers; and
• provide service and product support to End-Users.

For all Free Plans or otherwise agreed by contract or order, all rights in the End-User Data are owned and retained by ECAL. ECAL grants the Client a non-exclusive, royalty-free, worldwide licence to basic usage data (such as user subscription totals) during the Agreement. ECAL may use such End-User Data at its sole discretion (however within the boundaries of all applicable laws and its Privacy Policy) either during or after the expiry of this Agreement.

For all Service Plans, the Client grants ECAL the right to create Aggregated Data to measure general Service usage patterns and characteristics of its user base and otherwise to improve its products and services, or for use in other products and services, and may include such Aggregated Data about its audience in promotional materials or reports to third parties. Aggregated Data will be owned and retained by ECAL after termination of the Agreement, and ECAL may use such Aggregated Data at its sole discretion for whatever purposes (within the boundaries of applicable laws) either during or after the expiry of this Agreement.

11. Marketing and advertising

For Free Plans only or otherwise agreed by contract or order, ECAL may allow a Marketing Agency to display advertising, sponsorship or a third party marketing offer on the ‘success’ screen of the ECAL application widget, following user subscription.

At no time will ECAL deliver, or allow to be delivered, third party marketing or advertising messages into the user’s PDC, unless expressly authorized by the Client to do so.

At any time, the Client may object to any advertising, sponsorship or offer that may appear on the ECAL application widget, with any objection not to be unreasonably withheld. ECAL or the Marketing Agency as appropriate will endeavor to remove such advertising, sponsorship or offer within seven (7) days. Please send any requests to support@ecal.com or directly to your assigned Account Manager.

12. Limited warranties

Each party represents and warrants that:

• it has the full power and authority to enter into and perform its obligation under this Agreement and, if the Client is not an individual, this Agreement and each order is entered into by an employee or agent with authority to bind the Client to this Agreement or order; and
• it has not entered into any other agreement, arrangement or understanding which would restrict or prevent it from performing its obligations under this Agreement.

ECAL does not guarantee that the Services will be performed error-free or uninterrupted, or that ECAL will correct all Services errors. The Client acknowledges that the Services may be subject to limitations, delays, and other problems inherent in the use of communication networks such as the internet, and ECAL will not be liable for any delays, delivery failures or other damage resulting from such problems.

TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND ECAL DOES NOT PROVIDE ANY OTHER EXPRESS OR IMPLIED WARRANTIES INCLUDING FOR HARDWARE, SOFTWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.

13. Termination

If either party breaches a term of this Agreement and fails to correct the breach within 30 days of written notice, the other party may terminate the Agreement immediately by written notice. Upon termination, the party in breach will not be entitled to credits or refunds for any unused or prepaid portion of this Agreement, including but not limited to unused maintenance and support.

On expiry or termination of this Agreement for any reason, the Client must immediately:

• pay all accrued and unpaid Fees;
• cease using and promoting (and require all Authorized Users, and anyone else, to cease using and promoting) the Services, including the Software, and all ECAL IP; and
• remove all access to the Services from the Client’s systems.

For Clients that use Services monthly via a Monthly Fee, you may request to terminate the Services at any time via email (support@ecal.com) or via your Account Manager, and your account will be terminated at the next monthiversary. All fees will be due and payable up until the termination date, and no refunds or pro rata fees are provided.

For Clients that use Services annually via an Annual Fee, you may request to terminate the Services by providing minimum 30 days written notice prior to the next Service anniversary to ECAL via email (support@ecal.com) or via your Account Manager, and your account will be terminated at the next anniversary. All fees will be due and payable up until the termination date, and no refunds or pro rata fees are provided.

Unless this Agreement was terminated due to Client breach, the Client may request, and ECAL will use reasonable efforts to, make the End-User Data available for download within 7 days of the request, in accordance with your particular Service Plan. ECAL may then delete the End-User Data and Client Data. Termination of this Agreement does not affect any accrued rights or remedies of either party.

14. Confidentiality

Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (Receiving Party) from the disclosing party (Disclosing Party) constitutes the confidential property of the Disclosing Party (Confidential Information). Any ECAL IP, Data, and the terms and conditions of this Agreement shall be deemed Confidential Information. Except as expressly authorized herein, the Receiving Party will not use or disclose any Confidential Information. The Receiving Party’s non-disclosure obligation shall not apply to information which the Receiving Party can show: (i) was rightfully in its possession or known to it prior to receipt; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party).

 

15. Limitation of liability

NEITHER PARTY IS TO BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, OR DATA USE. ECAL’S MAXIMUM LIABILITY FOR ANY DAMAGES RELATED TO THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE LESSER OF US$10,000 OR THE TOTAL AMOUNTS ACTUALLY PAID TO ECAL BY THE CLIENT FOR THE PARTICULAR SERVICE THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

16. Indemnification

The Client will indemnify and defend ECAL from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to (a) any breach by the Client (including any Authorized Users) of this Agreement, or (b) any representations or warranties made by the Client (including any Authorized User) regarding the Services (including ECAL) to third parties. This indemnification obligation is subject to the Client receiving (i) prompt written notice of such claim; (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim, provided that ECAL may participate in the claim at its own expense and the Client may not settle any claim without ECAL’s prior written consent; and (iii) all reasonable necessary cooperation of ECAL at the Client’s expense.

17. General

Any term of this Agreement that is either wholly or partly unenforceable will be severed to the extent necessary to make the remaining terms of this Agreement enforceable.

The Client may not assign part or all of this Agreement or give or transfer the Services or an interest in them to another individual or entity.

This Agreement is governed by the substantive and procedural laws of Singapore and ECAL and the Client agree to submit to the exclusive jurisdiction of the courts in Singapore in any dispute arising out of or relating to this Agreement.

Should you have any questions concerning this Agreement, or if you desire to contact ECAL for any reason, please contact us via email at sales@ecal.com

 

Schedule A: Data Processor Provisions

In this Schedule, ‘Personal Data’, ‘Processing’, ‘Data Controller’, ‘Data Processor’ and ‘Data Subject’ shall have the meaning given in the EU GDPR and UK GDPR.

Both parties will comply with all applicable requirements of the EU GDPR, UK GDPR, CCPA and other applicable data protection and privacy legislation having effect from time to time (Data Protection Legislation).

The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the Data Controller of any End User Data and ECAL is the DataProcessor (except for a Free Plan where ECAL is both the Data Processor and Data Controller).

In such a case where the Client is the Data Controller, ECAL shall, in relation to any End User Data processed in connection with the performance by ECAL of its obligations under this agreement:

(a) process that End User Data only on the written instructions of the Client, or in accordance with its obligations under the relevant Data Protection Legislation;

(b) ensure that it has in place appropriate technical and organizational measures to protect against unauthorized 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 unauthorized 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;

(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the End User Data confidential;

(d) not transfer any End User Data outside of the European Economic Area, US, UK or Australia unless appropriate protections are in place in compliance with Data Protection Legislation;

(e) assist the Client in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(f) notify the Client without undue delay (and in any event within 24 hours) on becoming aware of a Personal Data breach;

(g) at the written direction of the Client, delete or return End User Data and copies thereof to the Client on termination of the agreement unless required by applicable English law to store the End User Data;

(h) appoint a Data Protection Officer where required for the purpose of Data Protection Legislation and ensure compliance of such person with all tasks required to be carried out for such role; and

(i) maintain complete and accurate records and information as required by Data Protection Legislation and otherwise to demonstrate its compliance with this Schedule and allow for audits by the Client or the Client’s designated auditor;

(j) not appoint any third party processor of End User Data, without the Client’s written consent.

End User Data to be processed by ECAL will relate to End Users and may include email address, name or other contact information where relevant, content preferences, location (only at time of subscription) and nature of certain applications used such as calendar applications. The nature and subject matter of the processing is to enable fulfilment of the Services which concern delivery of events and promotional information into an End User’s calendar, and such processing shall continue for the Term.

The appointed Data Protection Officer is:
Mr. Dumindu Madithiyagasthenna
Email: itadmin@ecal.com