AGORA PLATFORM SUBSCRIPTION – TERMS OF SERVICE
1. Services
1.1 Use of Services.
Agora develops, markets and makes available for use by its customers the Platform, which consists of certain proprietary software products and services for real investment management (the “Services”). Subject to compliance with the terms of this Agreement, Agora will use commercially reasonable efforts to provide Customer the Services during the Term (as defined below) of this Agreement.
1.2 Other Rights and Limitations
Other than the rights expressly licensed hereunder, no other rights or interests whatsoever in the Services and/or the software underlying the Services (the “Software”) are transferred or granted to you, on your own behalf as an individual and on behalf of your employer or other legal entity or any affiliate thereof. You may not, and may not permit or aid others to, translate, reverse engineer, decompile, disassemble, update, modify, reproduce, duplicate, copy, distribute or otherwise disseminate all or any part of the Software, or extract or attempt to extract source code from the object code of the Software or create any derivative works of the Software. You may not publicly display the Services or the Software, whether or not for consideration. You may not use the Software or Services for purposes of monitoring the availability, performance or functionality of the Platform or for any other benchmarking or competitive purposes. You may not use the Services or the Software for any illegal, unlawful or unauthorized purposes.
1.3 Account Registration
To register to access the Platform and use the Services for the first time, you shall create an account for the Services (“Account”). By creating an Account and registering to use the Services you become, either individually or on behalf of your employer or any entity, on behalf of whom you created the Account, an Agora customer. The first user of the Account is automatically assigned as an Account administrator (“Admin”). See Section 1.6 for additional details on Admins.
1.4 Your Registration Information
When creating an Account or when you are added into an Account and creating your user profile (“User Profile”), you: (i) agree to provide us with accurate, complete, and current registration information about yourself; (ii) acknowledge that it is your responsibility to ensure that your password remains confidential and secure; (iii) agree that you are fully responsible for all activities that occur under your Account, User Profile and password, including the input of any information about or related to Customer or any User (as defined below), and any integration or any other use of third party products or services (and associated disclosure of data) in connection with the Services; and (iv) undertake to promptly notify us in writing if you become aware of any unauthorized access or use of your Account or User Profile and any breach of this Agreement. We may assume that any communications we receive under your User Profile have been made by you. You will be solely responsible and liable for any losses, damages, liability and expenses incurred by us or a third party, due to any unauthorized usage of the Account by either you or any other User or third party, whether or not acting on your behalf.
1.5 User Verification
You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your Account and User Profile. We may also require you to provide information for investor accreditation purposes, for which we may use third party accreditation services; your provision of information is subject to the terms and conditions, including the privacy policy, of any such third party services. In the event that you or an Admin lose access to an Account or otherwise request information about an Account, we reserve the right to request from you or from an Admin (as the case may be) any verification and/or information, including in the form of a release, as we deem necessary in our sole discretion, before restoring or providing access to or providing information about such Account.
1.6 Account Admins
The Admin(s) of an Account are, severally and jointly, deemed as the authorized representatives of the Customer, and any decision or action made by any Admin, is deemed as a decision or action of Customer. An Admin may assign or add other members of the Account as Admins, which possess important privileges and controls over the use of the Services, Additional Services and the Account, including, without limitation: (i) control your (and other Users) use of the Account; (ii) purchase, upgrade or downgrade Services or Additional Services; (ii) create, monitor or modify Users’ actions and permissions; (iii) manage the access to, control, remove, share posts or otherwise change, all or part of the Customer Data (as defined below); (iv) assign certain privileges to such other Users; and (v) integrate or disable integration with Third Party Services. You also acknowledge that your Account can become managed by a representative of the entity that owns or controls the email address domain with which your Account was created or registered.
1.7 Account Users
There are several types of Account users, such as guests, viewers, members and other types of users, all of whom are designated within the Services and referred to herein, collectively with the Admin(s) as “Users”. The features, functionalities and privileges available to the Users are determined by the respective user role, Services, offering and Subscription Plan governing such Account. You shall be responsible for ensuring that Users are assigned the appropriate user type. If you assign Users not in accordance with the appropriate user type (for instance, assigning Users who are internal to your organization, your affiliates, subsidiaries and/or any other related entities as a guest user, such as having guests with such organization’s email domain) then Agora shall have the right, in its sole discretion, and without derogating from any other remedy available hereunder, to reassign such user types as appropriate, impose additional restrictions and/or charge additional fees.
1.8 Customer Responsible for Users
Customer is solely liable and responsible for understanding the settings, privileges and controls for the Services and for controlling whom Customer permits to become a User and what are the settings and privileges for such User, including without limitation, the right for a User to invite or add other Users (either paid or unpaid), the right to incur charges on the Account, the right to access, modify or share boards, etc. Customer is responsible for the activities of all of its Users, including Order Forms they may place and how Users use the Customer Data, even if those Users are not from Customer’s organization or domain. Further, Customer acknowledges that any action taken by a User of Customer’s Account, is deemed by us as an authorized action by Customer, hence Customer shall have no claim in this regard. A User, including Customer in its capacity as a User, shall be required to acknowledge the Agora Platform Users’ Terms of Use, a copy of which is available here www.agorareal.com/terms-conditions/. Customer hereby agrees to the terms and conditions of the Agora Platform User’s Terms of Use.
2. Additional Services.
2.1 Additional Services – General
Agora also offers access to a variety of additional services through the Platform, which may include: onboarding services (“Onboarding Services”), tax services (“Tax Services”), bookkeeping services (“Bookkeeping Services”), payment services (“Payment Services”), Deal Management Services (“Deal Management Services”) and such other additional ancillary services, as may be made available from time to time (the Onboarding Services, Tax Services, Bookkeeping Services, Deal Management Services and such additional ancillary services shall be collectively referred to as the “Additional Services”), all as will be set forth in an Order Form or one or more mutually agreed statements of work between the parties (each, an “SOW”). Some of the Additional Services are provided by Agora, others are provided by third parties. All Additional Services will be subject to this Agreement.
2.2 Additional Services Provided by Third Parties
With respect to Additional Services provided by a third party, they will additionally be subject to the terms and conditions of such third party provider, as listed below, in addition to any other terms and conditions that you may agree to or accept from time to time and that relate to the applicable Additional Service (collectively, “Additional Services Agreements”):
(i) Accreditation Services and AML Screening. Use of the accreditation services and/or AML Screening will be governed by the following terms: https://parallelmarkets.com/terms-of-service.
(ii) U.S. Payment Services. Use of the U.S. Payment Services will be governed by the following terms: Agora Payments Services – Terms of Service; Thread’s Electronic Disclosure & Consent https://agorareal.com/consent-electronic-disclosures/; and Thread’s Business Deposit Account Agreements https://agorareal.com//business-deposit-account-agreement/.
(iii) International Payment Services. Use of the International Payment Services will be governed by the following terms: Clearshift’s Tri-Party Addendum and Agora Payment Services – Terms of Service for International Payments.
(iv) Accounting and Tax Services. Use of the accounting and tax services will be governed by the following terms: https://agorareal.com/accounting-tax-services/
All third party services are provided by the applicable third party and not by Agora. Agora is simply providing a technological platform to connect Agora and the third party provider. Provision of certain of the services may require a license, which will be held by the third party provider and not by Agora. All third party services are provided “as is” without any warranty of any kind, and are additionally subject to the terms of use attached to such third party services. The type of information provided or requested, as well as the manner in which the third-party services uses, stores, and discloses information, may additionally be governed by the terms and conditions and policies of the third party providing such services, to which you may need to agree to in order to access such third party services, and we shall have no liability or responsibility for the third party software or services, including their policies, practices, actions, or omissions. If you use such third party software or services, such use is and shall be at all times at your sole and exclusive discretion and responsibility. The third party software or services may be replaced, disabled, or re-enabled at any time and in our sole decision and discretion. You agree to (and hereby do) defend, indemnify and hold us harmless, and expressly release us, from any and all responsibility or liability arising from the third party software or services. We shall not be liable for the actions or omissions of such third-party services.
3. CONSIDERATION
3.1 Consideration
In consideration for accessing the Platform and using the Services, Customer will pay to Agora the fees detailed in the applicable purchase order (the “Consideration”). Customers are invoiced based on the total EUM of their active entities. The invoice refers to the latest recorded total EUM during the period between the last and current invoice. The total EUM is a summation of the USD value of each relevant entity’s commitments. The fees for the Additional Services (“AS Fees”) shall be set forth in the Order Form or SOW. The AS Fees are non-refundable and non-cancellable.
3.2 Payment
The Consideration and the AS Fees will be invoiced as set forth in the applicable purchase order, or if none is set forth therein, then on an annual basis in advance and payment is due within 30 days of delivery of the applicable invoice. It is agreed that all past due amounts under this Agreement shall bear interest at the lower of (a) 10% per annum or (b) the maximum rate permitted by law, beginning with the date on which the applicable amount became due. If Agora refers any past due amounts to a collection agency or lawyer for collection, Customer agrees to pay Agora our reasonable costs of collection, including without limitation collection agency fees, court costs and attorneys’ fees actually incurred by us, to the fullest extent permitted by local, state and federal law. Agora may update the Consideration and the AS Fees on an annual basis.
3.3 Taxes
All payments under this Agreement are of net income. Customer shall bear all value added, state, local, withholding, and other taxes or other charges applicable to the Services and the Additional Services and support (but not any taxes based upon Agora’s gross revenues or net income such as corporate income taxes). Customer will pay any such taxes or charges no later than within thirty (30) days after Customer’s receipt of proper bills or statements from Agora or the taxing authorities.
4. TERM; TERMINATION
4.1 Term
This Agreement shall commence on the Effective Date, and shall continue in effect for a period of one year (or other period set forth in the applicable purchase order) unless terminated by a Party in accordance with Section 3.2 below (the “Initial Term”). This Agreement shall thereafter automatically renew for successive periods of one year each, or other period set forth in the applicable purchase order (each, an “Additional Term”) unless terminated by either Party effective as of the end of the Initial Term or the applicable Additional Term with at least ninety (90) days prior written notice or in accordance with Section 3.2 below (the Initial Term together with each Additional Term, the “Term”).
4.2 Termination For Cause.
Notwithstanding the foregoing, either Party may terminate this Agreement forthwith by providing written notice to the other Party:
- in case of material breach of the other Party that has not been cured within fifteen (15) days following a written notice thereof from the non-breaching Party.
- upon giving written notice to the other Party in the event the other Party should become insolvent, or upon the filing by or against the other Party of a petition in bankruptcy or reorganization, or upon the filing of a request for the appointment of a trustee, liquidator or receiver for such Party, or upon an assignment for the benefit of creditors by such Party, or such similar action, should said event continue for a period of thirty (30) days.
4.3 Effects of Termination
Upon termination of this Agreement for any reason, the Services and the Additional Services shall terminate automatically. The rights and obligations under Sections 2, and 4-7 hereof shall survive the termination of this Agreement.
5. CONFIDENTIALITY; PROPRIETARY RIGHTS
5.1 Confidentiality
A Party receiving Confidential Information from the other Party is referred to herein as “Receiving Party” and a Party disclosing Confidential Information to the other Party is referred to herein as “Disclosing Party”. Each Party may be either a Receiving Party or a Disclosing Party, or both. Receiving Party shall not disclose to third parties nor use for any purpose other than for the proper provision and use of the Services and the Additional Services any Confidential Information received from the Disclosing Party in whatever form under this Agreement or in connection with the Services and the Additional Services without the prior written permission of the Disclosing Party. “Confidential Information” shall mean all data and information, not made available to the general public, oral or written, regarding the Services and the Additional Services, including their respective functionality, methods, process and underlying technology, and the data input into the Services by the Customer and its Users. Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its personnel for whom such access is reasonably necessary for the proper provision and use of the Services and the Additional Services under this Agreement. Such personnel shall be bound by written confidentiality obligations not less restrictive than those provided for herein. Receiving Party shall be responsible for any breach of this Agreement by any of such Party’s personnel. Receiving Party shall protect the Confidential Information of the Disclosing Party with the same degree of care, but no less than a reasonable degree of care, to prevent unauthorized disclosure or use of such Confidential Information, as Receiving Party exercises in protecting its own proprietary information. The aforementioned limitations shall not apply to Confidential Information which the Receiving Party can demonstrate: (i) was in its possession prior to disclosure hereunder; or (ii) was in the public domain at the time of disclosure or later became part of the public domain without breach of the confidentiality obligations herein contained; or (iii) was disclosed by a third party without breach of any obligation of confidentiality; or (iv) is disclosed pursuant to administrative or judicial action, provided that Receiving Party shall use its best efforts to maintain the confidentiality of the Confidential Information. If only a portion of the Confidential Information falls under any of the above alternatives, then only that portion of the Confidential Information shall be excluded from the use and disclosure restrictions of this Agreement.
5.2 Proprietary Rights
Customer acknowledges and agrees that the Services and the Additional Services and Software are proprietary products of Agora and/or its licensors and/or the providers of the Additional Services, protected under patents, copyright laws and international treaties. Customer further acknowledges and agrees that all right, title and interest in and to the Services, the Additional Services and Software, including associated intellectual property rights and all improvements, modifications, revisions, derivative works, non-recurring engineering, customization and integration work product and white-label branded applications and extensions, are and shall remain the sole and exclusive property of Agora and/or its licensors and/or the providers of the Additional Services. This Agreement and the rights granted hereunder do not convey to Customer any interest in or to the Services, the Additional Services or Software. To the extent Customer provides any feedback, comments or suggestions to Agora with respect to the Services and/or Software (“Feedback”), Agora shall have a royalty-free, fully paid up, worldwide, perpetual and irrevocable license to incorporate the Feedback into any of its current or future products, technologies or services and disclosure or use the same for any commercial or other purpose.
6. DATA
6.1 Customer Data
Customer Data is any data, file attachments, text, images, reports, personal data, or any other content, that is uploaded or submitted, transmitted or otherwise made available, to or through the Services or the Additional Services by Customer or any of Customer’s Users and is processed by us on Customer’s behalf (“Customer Data”). For the avoidance of doubt, anonymous information is not regarded as Customer Data. Customer retains all right, title, interest and control, in and to the Customer Data, in the form submitted to the Services or the Additional Services. Subject to this Agreement, Customer grants Agora a worldwide, royalty-free, limited license to access, use, process, copy, distribute, perform, export, and display the Customer Data, and solely to the extent that reformatting Customer Data for display in the Services or the Additional Services constitutes a modification or derivative work, the foregoing license also includes the right to make modifications and derivative works. The aforementioned license is hereby granted solely: (i) to maintain and provide you the Services and the Additional Services; (ii) to prevent or address technical, fraud or security issues and resolve support requests; (iii) to investigate when we have a good faith belief, or have received a complaint alleging, that such Customer Data is in violation of this Agreement; (iv) to comply with a valid legal subpoena, request, or other lawful process; and (v) as expressly permitted in writing by you.
6.2 Responsibility for Customer Data Compliance
You represent and warrant that: (i) you have or have obtained all rights, licenses, consents, permissions, power and/or authority, necessary to grant the rights granted herein, for any Customer Data that you submit, post or display on or through the Services and the Additional Services; (ii) the Customer Data you submit, your use of such Customer Data, and our use of such Customer Data, as set forth in this Agreement, do not and shall not (a) infringe or violate any patents, copyrights, trademarks or other intellectual property, proprietary or privacy, data protection or publicity rights of any third party; (b) violate any applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer and exportation (“Laws”); (c) violate any of your or third party’s policies and terms governing the Customer Data. We assume no responsibility or liability for Customer Data, and you shall be solely responsible for Customer Data and the consequences of using, disclosing, storing, or transmitting it. As part of the onboarding process, the Company may, as a courtesy, provide assistance with the upload of documents. The Client acknowledges and agrees that the accuracy, completeness, and correctness of any such information remain the sole responsibility of the Client. It is hereby clarified that Agora does not monitor and/or moderate the Customer Data and there shall be no claim against Agora related thereto.
6.3 No Sensitive Data
You shall not submit to the Services or the Additional Services any data that is protected under a special legislation and requires a unique treatment, including, without limitations, (i) categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any similar legislation or regulation in other jurisdiction; (ii) any protected health information subject to the Health Insurance Portability and Accountability Act (“HIPAA”), as amended and supplemented, or any similar legislation in other jurisdiction, unless Customer and Agora separately enter into a data protection agreement; and (iii) credit, debit or other payment card data subject to PCI DSS or any other credit card schemes.
6.4 Analytics Information
It is hereby agreed that Agora shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services, Software and related systems and technologies, and Agora will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Agora offerings, (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. Agora will not disclose any personal or financial information regarding User’s investors, all of which will be processed by Agora in accordance with its privacy policy included within the Services.
6.5 Privacy
Agora’s privacy policy, available here https://agorareal.com/privacy-policy-portal-users/ sets forth how Agora collects, stores and uses personal information through the Agora platform. Agora’s Data Processing Agreement, available here sets forth how Agora processes Personal Data (as defined therein) on behalf of Customers. By using the Services, you accept and agree to the privacy policy.
7. WARRANTY; INDEMNIFICATION; LIMITATION OF LIABILITY
7.1 Limited Warranty
Agora warrants that: (a) the Services and the Additional Services will perform in accordance with the respective Services and Additional Services documentation made available to Customer from time to time in all material respects, unless the failure was caused by any of the circumstances listed in Section 6.2 below or by combination of the Services and the Additional Services with any other goods or services or by use not in accordance with Agora’s documentation; and (b) support services will be provided with the same level of service as Agora generally provides to its other customers (the “Warranty”). In the event of a breach of the Warranty that has not been remedied by Agora within 30 days of Customer’s written notice to Agora of a breach of the Warranty and Agora’s written confirmation that a Warranty breach has occurred, Customer’s sole remedy shall be to terminate this Agreement in accordance with Section 3 above and to receive a refund of amounts paid by Customer for use of the Services and Additional Services for the period following the effective date of termination, less a reasonable processing fee.
7.2 Warranty Disclaimer
THE SERVICES, ADDITIONAL SERVICES AND SOFTWARE ARE MADE AVAILABLE “AS IS” AND WITHOUT ANY OTHER WARRANTY OR CONDITION WHATSOEVER, EXPRESS OR IMPLIED. AGORA DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY AND NON-INFRINGEMENT.
7.3 Indemnification by Agora
Agora agrees to indemnify Customer from third party claims resulting from any infringement by the Software, Services or Additional Services of third parties’ intellectual property rights, and to pay all direct costs, settlements, or judgments finally awarded; provided, however, that (1) Customer shall have given Agora a prompt written notice of the relevant claim, suit, demand, notice or action alleging such infringement; (2) Customer shall reasonably cooperate with Agora in the defense and settlement thereof; and (3) Agora shall have sole control of the defense of such claim, suit, demand, or action and the settlement or compromise thereof. The foregoing shall not apply to the extent that the infringement arises: (i) from the use of the Services, Additional Services or Software in a manner for which they were not intended, (ii) from the use of the Services, Additional Services or Software not in compliance with the documentation or instructions provided by Agora, or (iii) where the infringement results from the alteration or modification of the Services, Additional Services or Software, or the combination of the Services, Additional Services or Software with a third party’s systems, services or applications, where the unaltered or unmodified Services, Additional Services or Software, or the Services, Additional Services or Software standing alone, as applicable, would not have infringed upon third party’s rights. In the event that an injunction is obtained against the Customer’s use of the Services or Additional Services arising from a suit, claim or proceeding, or if Agora anticipates that there is a likelihood of a claim of infringement, or determines that the following steps will assist in defending or settling a claim, suit, demand or action, Agora may, at its option and expense, either (a) procure for Customer the right to continue using the Services or Additional Services; or (b) replace or modify the Services or Additional Services so that use thereof no longer infringes upon such intellectual property rights, so long as the utility or performance of the Services is not materially adversely affected by such replacement or modification; or (c) where (a) or (b) are not practicable, to terminate this Agreement. This Section 7.3 sets forth Customer’s exclusive and entire remedy against Agora with respect to any action, suit, demand or claim for an alleged infringement of intellectual property rights by the Services, Additional Services or Software or any component thereof.
7.4 Limitation of Liability
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, AGORA’S AND, UNLESS STATED OTHERWISE IN THE APPLICABLE ADDITIONAL SERVICES AGREEMENT, EACH THIRD PARTY PROVIDER OF ADDITIONAL SERVICES’ CUMULATIVE LIABILITY TO CUSTOMER, ANY USER AND ANY THIRD PARTY FOR ANY LOSS, DAMAGE, LIABILITY, COST OR EXPENSE RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR USE OF THE SOFTWARE AND/OR SERVICES AND/OR ADDITIONAL SERVICES SHALL NOT EXCEED THE TOTAL CONSIDERATION ACTUALLY PAID BY CUSTOMER TO AGORA IN CONNECTION WITH MAKING THE SERVICES OR ADDITIONAL SERVICES HEREUNDER AVAILABLE TO CUSTOMER, DURING THE ONE-YEAR PERIOD PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE ALLEGED LIABILITY. NOTWITHSTANDING THE FOREGOING, AGORA’S CUMULATIVE LIABILTY TO CUSTOMER, ITS USERS AND ANY THIRD PARTY FOR ANY LOSS, DAMAGE, LIABILITY, COST OR EXPENSE RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIRD PARTY ADDITIONAL SERVICES AND COMPONENTS SHALL BE $0. IN NO EVENT SHALL AGORA OR ANY THIRD PARTY PROVIDER OF ADDITIONAL SERVICES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, LOST DATA, LOST OPPORTUNITY OR LOST PROFITS, EVEN IF AGORA OR SUCH THIRD PARTY PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.5 Allocation of Risks
The limited warranties, warranty disclaimers, exclusive remedies and limited liability provisions set forth herein are fundamental elements of this Agreement, the Services and Additional Services provided hereunder, and allocate risk under this Agreement between Customer and Agora and between Customer and Third Party Provider in light of the fees charged by Agora from Customer in connection with the provision of the Services and/or and Additional Services.
8. MISCELLANEOUS
8.1 Force Majeure
Neither Party shall be liable for any costs or damages due to nonperformance under this Agreement, arising out of any cause or event not within the reasonable control of such Party and without its fault or negligence, such as an act of God, act of war, labor disputes, reason of fire, floods, failure of the internet or any network used to access or provide the Services or Additional Services, failure of service attack, intentional blocking of the Services or Additional Services by any third party, including any messaging application or application store or marketplace, or inability to obtain necessary materials or services from suppliers if no equipment sources for such suppliers or services are readily available.
8.2 Governing Law and Jurisdiction
If Customer’s principal place of business is in the United States of America, this Agreement shall be construed and governed in accordance with the laws of the State of New York, regardless of its conflict of laws rules, and the competent federal or state courts located in the Southern District for the District of New York shall have sole and exclusive jurisdiction over any dispute under this Agreement. In all other cases, this Agreement shall be construed and governed in accordance with the laws of the State of Israel, regardless of its conflict of laws rules, and the competent courts of Tel Aviv-Jaffa shall have sole and exclusive jurisdiction over any dispute under this Agreement. Notwithstanding the foregoing, Agora shall have the right to bring any suit or claim against Customer in any competent court having jurisdiction over Customer.
8.3 Assignment.
Customer may not assign, sublicense or make available to any other person or entity, this Agreement, or any rights or obligation hereunder in whole or in part without the prior written consent of Agora, and any attempt by Customer to so assign, sublicense or make available shall be deemed null and void. Agora may transfer and assign its rights and obligations hereunder to an affiliate or to a third party that acquires all or substantially all of the assets subject to this Agreement or securities of Agora or any entity into which Agora shall merge or any affiliate thereof.
8.4 Updating This Agreement
We may modify this Agreement from time to time in which case we will update the “Last Revised” date at the bottom of this Agreement. If we make changes that are material, we will use reasonable efforts to attempt to notify you, such as by e-mail and/or by placing a prominent notice on the Site or within the platform. However, it is your sole responsibility to review this Agreement from time to time to view any such changes. The updated Agreement will be effective as of the time of posting, or such later date as may be specified in the updated Agreement. Your continued access or use of the Services after the modifications have become effective will be deemed your acceptance of the modified Agreement.
8.5 Modification or Amendment
This Agreement may not be modified or amended by Customer without a written instrument duly executed by each of Agora and the Customer. Agora may add features or functionality or improve or change or modify the Services at any time at its sole discretion. Agora will not intentionally remove material features or functionality, other than beta or test features or functionality, during the Term.
8.6 Severability
Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof, which shall be interpreted so as to give a maximum effect to the intention of the void or unenforceable term.
8.7 Entire Agreement
This Agreement, together with the Order Form(s) and SOW(s) executed between Customer and a member of the Agora Group, represents the entire agreement between the Parties with respect to the subject matter hereof and supersedes any prior proposal, representation, or understanding between the Parties regarding the subject matter hereof and thereof.
8.8 Third Party Beneficiaries; Third Party Rights
The third-party providers of Additional Services shall be deemed express thirdparty beneficiaries of the provisions of Sections 7.4 (Limitation of Liability), 7.5 (Allocation of Risks) and 8.1 (Force Majeure) of this Agreement, and shall be entitled to enforce such provisions as if they were a party to this Agreement with respect to such provisions. Other than the foregoing, no third party other than the applicable member of the Agora Group and the Customer shall have any rights under this Agreement, and this Agreement and the provisions of the Services shall not create any obligations on behalf of any member of the Agora Group towards any person or entity other than the Customer.
8.9 No Waiver
The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach hereunder shall not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
8.10 Notices
Notices to be given or submitted by either Party to the other pursuant to this Agreement shall be in writing, by email, certified mail or commercial courier, and shall be sent to the address for the receiving Party set forth in the Order Form, or at such other address as shall be notified by either party to the other in writing in accordance with this Section. Notice shall be considered effective on the earlier of actual receipt or: (a) the day following transmission if sent by email followed by a written or electronic confirmation of delivery; (b) two (2) days after posting when sent via an express commercial courier; or (c) five (5) days after posting when sent via certified mail.
Last Revised: August 5, 2025