This document is an electronic record and is generated by a computer system and does not require any physical or digital signatures. Please carefully read the terms and conditions of the following agreement. It contains very important information about your rights and obligations, as well as limitations and exclusions that may apply to you.
The Service Provider and the Client shall be individually referred to as the “Party” and collectively as the “Parties”.
A. The Service Provider is engaged in the business of providing deskless workforce management and execution solutions.
B. The Client has evaluated the services of the Service Provider and wishes to engage the Service Provider to provide certain Software Service(s) (defined below), in accordance with the Subscription Agreement executed between the Parties (each a “Subscription Agreement” and the date of execution of the Subscription Agreement being the “Execution Date”).
NOW, THEREFORE, in consideration of the representations, mutual covenants, and conditions contained herein, the Parties agree as follows:
Unless the contrary intention appears and/or the context otherwise requires, in addition to the terms defined elsewhere, the definitions listed in Clause 1 shall apply throughout these Terms. Capitalised terms used herein but not defined herein shall bear the meanings ascribed to them in these Terms. Any capitalized terms which have not specifically been defined under these Terms shall have the meaning as ascribed to them under the Subscription Agreement.
“Applicable Law(s)” means all mandatory federal, state and local laws, statutes, ordinances, regulations, rules, executive orders, circulars, opinions, , directive, guideline, policy, judgment, interpretive letters and other official releases of or by any government, or any applicable central, national, state or local governmental authority or department having competent jurisdiction over, or application to the Parties or subject matter in question, whether in effect as of the Execution Date or thereafter.
“Confidential Information” means information and technical data derived from or disclosed to a receiving Party by the disclosing Party or its employees, vendors, customers, advisors, representatives, affiliates, agents and other independent contractors during the performance of obligations under these Terms and which is not generally known to the public, including such information pertaining to the disclosing Party’s customers or competitors or any customers or competitors of any affiliate of the disclosing Party. Confidential Information shall include, but is not limited to, the Service Provider Materials, Client Data, Deliverables, information or data disclosed in oral, written, graphic or machine-readable form, or in forms otherwise embodying or displaying such information, over official or unofficial channels of communication or which is visible or audible to receiving Party by virtue of having access to the disclosing Party’s systems including, but not limited to, business plans, specifications, designs, methods, processes, ideas, concepts, drawings, business methods, business policies, reports, records, all content, source code software, pricing, operational plans and know-how, employee information, vendor information, customer information, and consumer information.
“Client Data” means any or all of the following, and all copies thereof, regardless of the form or media in which such items are held: (a) personal information of Client and (b) any data and/or information provided or submitted by or on behalf of the Client to Service Provider, including but not limited to trademarks, service marks, logos, insignia, trade names and other designations of origin of Client, Client software, text, graphics, music or other material in any form or media provided by the Client.
“Documentation” means all operating manuals, user manuals, training and marketing materials, guides, product descriptions, product specifications, technical manuals, supporting materials, and other information relating to the Software Services and provided by or on behalf of Service Provider to the Client.
“Intellectual Property” means, with respect to any thing, material or work (hereinafter, a “Work”): (a) any and all worldwide copyrights, trademarks, trade secrets and any other intellectual property and proprietary rights and legal protections in and to such Work including but not limited to all rights under treaties and conventions and applications related to any of the foregoing; (b) all patents, patent applications, registrations and rights to make applications and registrations for the foregoing; (c) all goodwill associated with the foregoing; (d) all renewals, extensions, reversions or restorations of all such rights; (e) all works based upon, derived from, or incorporating the Work; (f) all income, royalties, damages, claims, and payments now or hereafter due or payable with respect thereto; (g) all causes of action, either in law or in equity for past, present or future infringement based on the Work; (h) all rights corresponding to each of the foregoing throughout the world; and (i) all the rights embraced or embodied therein, including but not limited to, the right to duplicate, reproduce, copy, sell, distribute, publicly perform, display, license, adapt, prepare derivative works from the Work, together with all physical or tangible embodiments of the Work.
“Malicious Software” means any type of software or program which is designed to: (a) cause unauthorized access to or intrusion upon; or (b) otherwise disrupt and/or damage, any computer equipment, software, and/or data (commonly referred to as a virus, worm, Trojan horse, or spyware).
“Software Services” means the proprietary Service Provider’s software provided on a hosted or software- as-a-service basis as specified in a Subscription Agreement.
“Services” means, collectively, the Software Services and the Support Services.
“Service Level Terms and Conditions” means the minimum levels of service, as may be communicated by the Service Provider to the Client from time to time.
“Service Provider Materials” means any and all completed or in-progress patentable or non-patentable inventions, original works of authorship, discoveries, ideas, technology, computer programs, application programming interfaces, formulas, algorithms, systems (and all source code and object code related to any of the foregoing), techniques, know-how, data, writings, compositions, content, literary properties, documents, designs, illustrations, processes, procedures, protocols, service marks, trade secrets, copyrights, patents, and all other items, materials or works (and all improvements, modifications, derivatives and Intellectual Property related to any of the foregoing) that are made, conceived, developed, acquired or otherwise obtained by the Service Provider independently from the provision of Services or Deliverables to Client by Service Provider under these Terms or any Subscription Agreement.
“Pazo After-Developed Intellectual Property” means all Intellectual Property that are developed by Service Provider and/or the Client through the utilization, use or development of the Software Services or Service Provider Materials, excluding any intellectual property in any copy, modification, adaptation or translation of the Client Data resulting from the use of the Software Services. All Pazo After-Developed Intellectual Property shall be owned by Service Provider.
“Terms of Service” shall mean the terms and conditions available at https://www.gopazo.com/terms-of-services/ and any additional terms and conditions specific to accessing and using the Services herein, as modified from time to time.
2. LICENSE GRANT AND RESTRICTIONS
(a) License Grant
Subject to Client’s compliance with these Terms, Terms of Service and the Subscription Agreement, including receipt by the Service Provider of the payments specified in the Subscription Agreement, the Service Provider hereby grants to the Client, a limited, revocable, non-exclusive, non-assignable, non-transferable, non-sublicensable, royalty-free, worldwide right and license to access and use the Services and any related Documentation within the Client’s organisation, during the Term of the Subscription Agreement and for its internal business purposes in connection with the authorised purpose set out in the Subscription Agreement (the “Authorised Purpose”).
(b) Reservation of Rights
Neither the license rights granted nor any other provision of these Terms or the Subscription Agreement is intended, nor shall it be interpreted to transfer or assign any right, title, or interest (including any Intellectual Property) in any Intellectual Property of the Service Provider, the Service Provider Materials or the Pazo After-Developed Intellectual Property with the sole exception of the license expressly granted herein under Clause 2(a) above. The Service Provider retains any and all rights not expressly granted herein to Client, including in all Pazo After-Developed Intellectual Property.
(c) Client Restrictions
The Client shall not and shall ensure that its employees, directors, agents, contractors, consultants, outsourcers, suppliers or other individuals (including third parties) or any other party who is permitted by the Client to lawfully use the Services in connection with the Authorised Purpose (collectively, the “Client Licensees”) shall not: (a) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure, ideas, algorithms, or associated know-how of the software used in the Service Provider’s Services or reconstruct or discover any hidden elements of the Software Services or reconstruct or discover any hidden or non-public elements of the Software Services or results provided in connection with the Services (except to the extent expressly permitted by applicable law); (b) provide, sell, lease, sublicense, transfer, assign, distribute, grant a security interest in or lend the Services to any third party except as expressly authorized hereunder and only for the Authorised Purpose and with the explicit written consent of the Service Provider; (c) remove any proprietary notices, trademarks or labels displayed on the Software Services; (d) create a derivative work of any part of the Software Services; (e) use the Software Services for any unlawful purpose or (f) create Internet ‘links’ to or from the Service Provider’s Software, or "frame" or "mirror" any of Service Provider’s content which forms part of the Service Provider’s Software or sell, export or distribute any content or portion thereof for the benefit of, or allow access to the Services by any third persons other than the Client Licensees; (g) introduce, post, transmit or upload to the Service Provider’s Software any Prohibited Content; (h) write or develop any program based on the Software Services, or any portion software applications thereof, or otherwise use the Software Services in any manner for the purpose of developing, distributing, or making accessible products or services that compete with the Software Services; (i) translate, adapt, modify the Software Services or any results of the Services, or any portion thereof; (j) circumvent or otherwise interfere with any authentication or security measures of the Software Services or otherwise interfere with the integrity thereof; (k) use any application programming interface provided as part of the Services for developing or providing any service to third parties without obtaining the Service Provider’s prior consent for such use; (l) use the Services in violation of the Terms of Service unless such use is expressly permitted by these Terms; or (m) otherwise use the Software Services in a manner which is not permitted by these Terms or a Subscription Agreement. For the purposes of these Terms, “Prohibited Content” means content that: (i) is illegal under applicable law; (ii) violates any third party’s intellectual property rights, including, without limitation, copyrights, trademarks, patents, and trade secrets; (iii) contains libellous, slanderous, or defamatory material, or material constituting an invasion of privacy or misappropriation of publicity rights; (iv) promotes unlawful or illegal goods, services, or activities; or (v) contains or stores material containing software viruses, worms or other harmful computer files, codes, scripts, programs or Malicious Software.
3. PROFESSIONAL SERVICES, UPDATES AND MAINTENANCE
In connection with these Terms, the Service Provider will provide Services in accordance with the Subscription Agreement. Each Subscription Agreement shall, upon execution, be binding upon the Parties hereto and shall be deemed to constitute a part of these Terms as if fully set forth herein, and all rights and obligations of the Parties hereunder shall be deemed to apply to such Subscription Agreement as if fully set forth therein. In the event of a conflict between these Terms and the attachments hereto, including the Subscription Agreement, these Terms shall prevail, except to the extent that specific language in an executed Subscription Agreement expressly states that it supersedes particular language in these Terms. Any changes to the Services shall be made pursuant to a change order mutually agreed upon by the Parties, which shall be considered part of the applicable Subscription Agreement. Notwithstanding the foregoing, at the sole discretion of the Service Provider, the Services may be modified from time to time, provided that such modifications are reasonably likely to be generally perceived by the Client as improving and building upon the Services, and so long as such modifications do not eliminate any material functionality of the Services. The Service Provider shall keep the Client informed of service updates, scheduled maintenance and other developments that may affect the Client’s use of the Services. Such updates will not trigger any changes to the fee structure unless otherwise agreed to by the Parties hereto. The Service Provider will provide support, updates and maintenance for the Software Services in accordance with the terms, as may be communicated from time to time (the “Support Services”). The Service Provider may use the Client’s logo on its website, presentations and any other marketing materials without any prior consent or intimation, and the Client hereby authorises such usage.
4. APPLICABILITY OF TERMS OF SERVICE
All terms and conditions of the Terms of Service are applicable to the Client to the extent such terms and conditions are not contrary to these Terms and in case of any conflict between the terms of the Terms of Service and the terms of these Terms, these Terms shall prevail. The Service Provider may modify its Terms of Service and/or these Terms upon notice to the Client at any time though a service announcement or by sending email to the Client’s primary email address. The Client’s continued use of the Services after the effective date of any change to the Terms of Service and/or these Terms will be deemed to be the Client’s agreement to the modified Terms of Service and/or these Terms.
5.THIRD PARTY COMPONENTS
In order to use or supplement the Services, the Service Provider may make available certain software and components provided by third parties, including open-source libraries (collectively, the “Third-Party Components”). The Client is granted no license or right whether by implication, estoppel or otherwise in or to any Third-Party Components. Notwithstanding anything to the contrary in these Terms, the Service Provider assumes no liability for and grants no rights to such Third-Party Components.
6. PAYMENT TERMS AND INVOICING
(a) In consideration for the Services rendered by the Service Provider herein, the Client shall pay to the Service Provider the fees for the Services, and any mutually agreed additional services provided under the applicable Subscription Agreement (the “Fees”).
(b) The Client shall be required to pay additional service fees for additional functions or users at the rate designated on the Subscription Agreement or as otherwise mutually agreed by the Parties. If the Client’s use of the Services exceeds any Service limitations set forth in the Subscription Agreement or otherwise requires the payment of additional fees, the Client shall be billed for such usage and the Client agrees to pay the additional fees in the manner provided.
(c) The Service Provider reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Term, upon sixty (60) days prior notice to the Client (which may be sent by email). The Client may ask for additional changes or product features to be developed specifically to its requirements (“Additional Changes”). Prior to implementing any Additional Changes, the Service Provider shall provide an estimate of the fees for the Additional Changes based on the specific changes requested. If the Client elects to proceed, the Service Provider shall keep records of the hours and costs and expenses allocated to development of the Additional Changes and the Service Provider shall invoice the Client for any fees and expenses associated therewith in accordance with the Subscription Agreement executed thereon.
(d) The Service Provider will submit invoices for the Software Services as set forth in the applicable Subscription Agreement. The fees and terms of payment of the fees, (including applicable timelines) for the Software Services shall be specified in the applicable Subscription Agreement.
(e) The Client shall notify the Service Provider of any invoice dispute by email or in writing no later than 30 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to the Service Provider in accordance with Clause 17 (Notices). The Parties shall work in good faith to resolve any invoicing disputes as quickly as reasonably possible and in any case within 20 days of such dispute being raised (“Resolution Period”). The non-payment of any disputed items during the Resolution Period shall not constitute a breach under these Terms. The Client shall pay all amounts due that are not in dispute within the time frame specified above. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. For the avoidance of doubt, any invoice which is not disputed within 30 (thirty) days from the date of its issuance will be deemed accepted by the Client.
With respect to a Client, these Terms shall come into effect as of the Execution Date and continue in full force and effect until the date of expiration or termination set forth on the Subscription Agreement (the “Term”), unless otherwise terminated earlier pursuant to the terms set out under Clause 15 (Termination).
Expiry or termination of these Terms and/or the Subscription Agreement shall not affect any rights and obligations accrued prior to said expiry or termination.
8. OWNERSHIP AND DELIVERABLES
(a) As between the Parties: (i) the Service Provider shall own and retain all right, title and interest in and to: (1) Software Services, Documentation, Service Provider Materials and Pazo After-Developed Intellectual Property; (2) any software, applications, inventions or other technology developed by the Service Provider in connection with the Services or additional services; and (3) all Intellectual Property rights related to any of the foregoing. The Client acknowledges and agrees that the Client does not have or acquire pursuant to or as a result of these Terms or the Subscription Agreement, any ownership interest, license, lease or other right or interest in or with respect to the Services or any Intellectual Property in or to the Services or Software or Service Provider Materials or Pazo After-Developed Intellectual Property other than as expressly provided in these Terms or the Subscription Agreement.
(b) The Client owns and shall continue to own all right, title and interest in and to the Client Data. The Service Provider agrees and acknowledges: (A) that it shall not acquire any right, title or interest to the Client Data by virtue of these Terms, other than the limited license expressly granted to the Service Provider; (B) that it shall not allow access to such Client Data to any third party (other than its employees, officers, subcontractors on a need-to-know basis); (C) that upon the expiration or termination of these Terms or the Subscription Agreement, as the case may be (or earlier upon the request of Client), the Service Provider shall, at the option of the Client, return the Client Data to Client in substantially the same condition as provided to the Service Provider or destroy the same post the Retention Period.
(c) The Service Provider shall retain the Client Data for a period of 30 (thirty) days post termination or expiry of the Subscription Agreement (“Retention Period”) post which the Client Data shall be dealt with in accordance with Clause 15 (Termination). The Client Data shall be made available to the Client for electronic retrieval during the Retention Period. The Service Provider may retain the Client Data for an additional period where the Client has expressly requested the Service Provider to do so and at an additional cost that will be mutually agreed between the Parties hereto.
(d) Neither Party shall have any right or interest, in each other’s Intellectual Property rights except as expressly provided for in these Terms or in the Subscription Agreement. The Client does not acquire and may not claim any lien, encumbrance or other security interest in any Software Services, Documentation and Service Provider Materials and Pazo After-Developed Intellectual Property. The Client shall not remove any proprietary notices or legends from any copies of Documentation made by the Client. The Client hereby grants to the Service Provider a limited, non-exclusive, non-sublicensable right to access and use the Client Data for the sole purpose of rendering Services and providing Deliverables under these Terms.
(e) The Service Provider shall own all right, title and interest, in and to all Deliverables and without the need for payment of any royalty or other consideration to Client. The Service Provider hereby grants to the Client a non-exclusive, royalty-free, license to use, distribute, modify, copy and adapt any Deliverable in connection with use of the Software Services provided hereunder, solely for the Authorised Purpose for the Term. As used in these Terms, “Deliverables” means all materials, including documents, flow charts, listings, calculations, sketches, notes, reports, data, models, and samples created or developed for, or otherwise provided to the Client which may include any Pazo After-Developed Intellectual Property (whether created or developed solely by Service Provider or created or developed jointly by Service Provider and the Client or its personnel or agents, and including any modifications, enhancements or derivative works thereof or based thereon) in the course of performing Services. To the extent that the ownership of any Pazo After-Developed Intellectual Property does not automatically vest in the Service Provider as per Applicable Law, the Client hereby irrevocably, absolutely, perpetually, wholly and without any limitation whatsoever, assigns all worldwide rights, title and interest in and to any and all Pazo After-Developed Intellectual Property as may vest in the Client, free from encumbrances of any kind and such assignment shall be effective automatically and without the need for any further writing or action or consideration. So far as the rights relate to copyrightable material, they shall not lapse nor shall the rights transferred therein revert to Client, even if Service Provider does not exercise the rights under the assignment. To the maximum extent permissible by Applicable Law, Client waives all moral rights in relation to any works of authorship that may form part of such assigned works.
(f) The Service Provider shall be free to use in other engagements its general skills, know-how, and expertise, whether pre-existing or gained under these Terms, so long as it does not disclose any Confidential Information of Client unless expressly consented to by the Client.
(g) Either Party acknowledges that any remedy for money damages for any violation of this Clause shall be inadequate and either party may suffer immediate and irreparable damage through any breach or threatened breach. Accordingly, each Party shall, in addition to all other legal remedies, specifically enforce this Clause and seek injunctive relief to prevent any threatened or continuing breach without requirement of notice or posting of bond.
(h) Specifically subject to confidentiality provisions contained under Clause 10 (Confidentiality), the Service Provider shall have the right to collect and analyse data and other information relating to the provision, use and performance of various aspects of the Services, Software, and related systems and technologies (including, without limitation, anonymous and aggregated information concerning use of Client Data in the Services), and the Service Provider 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 Service Provider offerings, and (ii) disclose such data solely in aggregate, anonymized or other de-identified form in connection with its business. No rights or licenses are granted in the Client Data except as expressly set forth herein.
(i) Any triggers, web-hook, report customization shall be done at the time of setup of the Services, as per requirements. For the same, the Service Provider’s engineering team shall need a point-of-contact from the local IT team of the Client.
(j) The Service Provider may render certain services including, inter alia, sales, billing, payment collections and customer support through identified channel partners. Notwithstanding the replacement, removal or discontinuation of any such channel partner for any whatsoever reason, the Service Provider shall continue to provide the Services to the Client and the Client shall continue to be bound by the terms hereof.
(k) In case the Client wishes to sub-license the Software Services (in full or partly), the Client shall first obtain the written consent of the Service Provider and shall enter into a separate agreement to document the applicable terms and conditions. For the avoidance of doubt, it is expressly clarified herein that the Service Provider shall have the right, at its own discretion, to permit or not permit any request for sub-licensing or any terms attached to the sub-licensing.
9. REPRESENTATIONS AND WARRANTIES
(a) Representations and Warranties by Service Provider: The Service Provider represents and warrants that:
(i) the Services and Deliverables shall be performed in a timely and professional manner consistent with industry standards, exercising due skill and care;
(ii) the Deliverables shall materially conform to any relevant specifications in the applicable Subscription Agreement or other written documentation;
(iii) all data shared by the Client under these Terms including any Client Data shall only be stored and/or processed for the purpose of providing the Services as contemplated hereunder. The Service Provider shall use all data received from the Client strictly for the purpose agreed herein and shall be deleted in accordance with Clause 15(c).
(iv) The Service Provider may retain Personal Data comprised in the Client Data (if any) only to the extent and for such period as required by Applicable Laws, provided that the Service Provider shall ensure the confidentiality of all such Personal Data and shall ensure that such Personal Data is only processed as necessary for the purpose(s) specified in the Applicable Laws requiring its storage and for no other purpose. “Personal Data” means any information relating to an identified or identifiable individual, regardless of the media in which it is contained, that may be disclosed to or processed by the Service Provider in connection with or incidental to the performance of these Terms or the Subscription Agreement.
(b) Representation and Warranties by the Client: The Client represents and warrants that:
(i) the Client will be responsible to obtain consent from the providers of Personal Data as required by Applicable Law to enable Service Provider to process such Personal Data in connection with the Services in the manner agreed herein. By submitting any Personal Data while using the Services, the Client shall be deemed to be representing and warranting that it has obtained all such necessary consent from the owners / providers of the Personal Data to enable Service Provider to provide the Services in accordance with the terms of these Terms and Applicable Law;
(ii) the Client is responsible to ensure that all Client Licensees comply with all of the terms of these Terms and the Client shall be responsible and liable for the actions of all Client Licensees in violation of these Terms; The Client shall ensure that access is revoked to such Client Licensee who leaves the employment (or any other relationship) of the Client by informing the Service Provider to either remove such Client Licensee or to change the credentials of the common account etc. The Client shall be liable for any losses that may arise by reason of not revoking the access rights for any particular Client Licensee.
(iii) The Client represents and warrants that its performance under these Terms and/or the Subscription Agreement, including but not limited to any use of the Services, will be in compliance with all Applicable Laws and regulations;
(iv) The Client represents, warrants and covenants that it and the Client Licensees have and will have the legal right to possess, store and transmit all Client Data (as defined hereinafter) stored on and transmitted through the Services;
(v) the Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). The Client shall also be responsible for maintaining the security of the Equipment, the Client’s user account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Client’s account or the Equipment with or without the Client’s knowledge or consent.
(c) Mutual Representations and Warranties. Each Party represents and warrants that: (a) it is a validly organized entity under the laws of the jurisdiction of its incorporation and has the authority to enter into these Terms and the Subscription Agreement; (b) it has all right, power, and authority necessary to enter into these Terms and the Subscription Agreement, perform its obligations hereunder and grant the rights it grants to the other Party hereunder; and (c) its performance of these Terms and the Subscription Agreement, and the other Party’s exercise of its rights under these Terms and the Subscription Agreement, will not conflict with or result in a breach or violation of any of the terms or provisions or constitute a default under any agreement by which it is bound or any Applicable Law.
(a) The Parties acknowledge that, in the course of performance of these Terms and/or the Subscription Agreement, one Party (“Disclosing Party”) may find it necessary to disclose or permit access to Confidential Information to the other Party (“Receiving Party”) and its personnel. The Disclosing Party's disclosure of, or provision of access to, Confidential Information to Receiving Party’s personnel is solely for the purposes agreed under these Terms and/or the Subscription Agreement. Confidential Information disclosed to a Receiving Party shall be held in confidence by the Receiving Party and not disclosed to others or used except as expressly permitted under these Terms or as expressly authorized in writing by the Disclosing Party. Each Party will use the same degree of care to protect the other Party’s Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care.
(b) Notwithstanding anything to the contrary in this Clause 10, Confidential Information may be disclosed by a Receiving Party: (a) to those of its employees, agents, consultants and professional advisors who require it in connection with their duties in performing such Party’s obligations under these Terms and/or the Subscription Agreement and who are contractually or legally obligated to hold such Confidential Information in confidence for perpetuity and restrict its use consistent with the Receiving Party’s obligations under these Terms; and (b) to the extent required by law, pursuant to a duly authorized subpoena, court order or government authority, provided that (i): the Receiving Party provides the Disclosing Party with sufficient advance notice of such disclosure requirement or obligation to permit Disclosing Party to seek a protective order or other appropriate remedy protecting its Confidential Information from disclosure; and (ii) Receiving Party limits the release of the Confidential Information to the greatest extent possible under the circumstances.
(c) Obligations under Clause 10 shall not apply to information which: (a) was in the public domain or generally available to the public prior to receipt thereof by the Receiving Party from the Disclosing Party, or which subsequently becomes part of the public domain or generally available to the public, except due to any wrongful act of the Receiving Party or an employee or agent of the Receiving Party; (b) was in the possession of the Receiving Party without breach of any obligation hereunder to the Disclosing Party prior to receipt from the Disclosing Party; (c) is later received by the Receiving Party from a third party, unless the Receiving Party knows or has reason to know of an obligation of secrecy of the third party to the Disclosing Party with respect to such information; (d) is developed by the Receiving Party independent of such information received from the Disclosing Party and can be evidenced by written records; or (e) has previously been disclosed by the Disclosing Party to third parties without obligation of secrecy.
(d) If the Receiving Party or its personnel has disclosed, or is threatening to disclose, any Confidential Information in breach of these Terms, the Disclosing Party shall be entitled to seek an injunction to prevent the Receiving Party personnel from disclosing Confidential Information, or to prevent the Receiving Party personnel from providing any services to any third party to whom such Confidential Information has been or may be disclosed. The Disclosing Party shall not be prohibited by this provision from pursuing other remedies, including a claim for losses or damages.
11. PRIVACY AND SECURITY
(c) The Service Provider shall not: (i) modify Client Data; (ii) disclose Client Data except as compelled by Applicable Law in accordance or as expressly permitted in writing by the Client; or (iii) access the Client Data except to provide the Services or prevent or address service or technical problems, or at the Client’s request in connection with customer support matters. Notwithstanding anything contained herein, the Service Provider may compile general statistics about use of the Services and effectiveness of various other processes to better understand the Client’s market and to provide feedback about the effectiveness of the Services. The Service Provider may use non-personally identifiable information/anonymized information to improve Services and AI models, during and after the term of these Terms. The Service Provider may monitor use of Client’s account individually or as accumulated with other accounts to gain an understanding of which features and capabilities are being used with respect to the Services so that the Service Provider may design better features for future revisions or to provide support to Client in using the Services. While doing so, the Service Provider shall be subject to the obligations contained in Clause 10 (Confidentiality).
(d) The Client represents that, during the Term and in connection with the Services, to the extent that Services involve collection or processing of any personal information from outside of India, the Parties shall enter into further agreements or addendums governing the transfer and/or processing of such data as may be required under applicable law.
(f) The Client acknowledges that email is an insecure medium that is generally not encrypted in transit and security of information transmitted through the internet can bever be guaranteed. The Service Provider is not responsible for any interception or interruption of ay communications through the internet or for changes to or loss of Client Data.
12. WARRANTIES IN RELATION TO SERVICES
(a) The Service Provider shall use commercially reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner.
(b) The Service Provider further represents that except in case of deprecation, the Service Provider will not materially decrease the functionality of the Services. The Service Provider will announce deprecations at least 3 months before such deprecations are effective and provide clear instructions for migration, unless such deprecation is owing to factors beyond the reasonable control of the Service Provider including deprecation of any third-party systems or servers crucial to the Software Services, in which case the Service Provider shall provide a 45 days’ notice to the Client. The Client may terminate these Terms with immediate effect during the 3 months or 45 days period (as the case may be) following announcement of deprecation and be entitled to refund of subscription fee proportionate to the unused portion of the Term.
(c) Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by the Service Provider or by third-party providers, or because of other causes beyond the Service Provider’s reasonable control, but the Service Provider shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, EXCEPT AS OTHERWISE SET FORTH HEREIN, THE SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND THE SERVICE PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION OBTAINED BY THE CLIENT FROM THE SERVICE PROVIDER OR FROM ANY THIRD PARTY SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
(a) Client Indemnity Obligation:
The Client shall hold harmless and defend the Service Provider and its employees, officers and directors against any actual and direct claims, suits, demands or proceedings and indemnify the Service Provider for any damages finally awarded against the Service Provider and for reasonable fees of attorneys incurred by the Service Provider as a result of a claim, action or legal proceeding by any third party (including governmental authorities) based on, resulting from or arising out of:
(i) any gross negligence, willful default, breach of confidentiality and/or breach of Intellectual property rights of the Service Provider by the Client and/or Client Licensees.
(ii) any claim alleging that the Client Data used by the Service Provider in connection with providing Services hereunder or the Client’s use of the Services in breach of these Terms, infringes or misappropriates the intellectual property rights of a third party or violates applicable law.
(iii) any material breach of these Terms or the Subscription Agreement.
(b) Service Provider’s Indemnity Obligations:
Service Provider shall defend and hold harmless the Client and its directors and officers against any actual and direct claims, suits, demands or proceedings and indemnify the Client for any damages finally awarded against and for reasonable fees of attorneys incurred by the Client as a result of a claim, action or legal proceeding by any third party based on, resulting from or arising out of:
(i) any gross negligence, willful default or breach of confidentiality by the Service Provider;
(ii) any third-party claim that the use of the Services in accordance with the terms of these Terms, infringes the Intellectual Property of that third party.
The Party indemnifying the other Party (the “Indemnifying Party”) shall promptly give the party being indemnified (the “Indemnified Party”) prompt notice of the claim of indemnity (“Claim”), which in any case shall be within 15 (fifteen) days from the Claim arising. The Indemnifying Party shall have sole control of the defense and settlement of the Claim (provided that the Indemnifying Party shall not settle any Claim without consent being obtained from the Indemnified Party). The Indemnified Party shall provide all reasonable assistance to the Indemnifying Party. The above shall constitute the Indemnifying Party’s sole liability for and the Indemnified Party’s sole remedy against the Indemnifying Party for the Claims.
14. LIMITATION OF LIABILITY
Except with respect to: (i) the indemnification obligations of the Parties set out herein; (ii) direct payment obligations as set out under these Terms or applicable Subscription Agreement; or (iii) infringement of each other’s Intellectual Property rights, neither Party shall be liable to the other Party or any third party for any special, indirect, incidental, consequential, multiple, or punitive damages of any kind, including without limitation, for cost of procurement of substitute goods, services or technology or error or interruption of use, for inaccuracy or corruption of data or loss of business or lost profits, even if advised of the possibility thereof. Except with respect to: (i) the indemnification obligations of the Parties set out herein; (ii) direct payment obligations as set out under these Terms or applicable Subscription Agreement; or (iii) infringement of each other’s Intellectual Property rights, in no other event will the liability of either party to the other for any claim or action arising under these Terms or applicable Subscription Agreement exceed the aggregate of all amounts paid by the Client to the Service Provider in the 6 (six) month period preceding the date of the claim (“Maximum Liability”). Except as to the carved-out provisions mentioned herein, the Parties agree that this Maximum Liability cap on damages represents the aggregate amount of all combined liability and is not to be misconstrued as a damage cap per each claim.
(a) Termination For Cause: These Terms and/or any Subscription Agreement may be terminated immediately upon written notice by the non-breaching Party if the breach is not capable of being cured or, if capable of being cured, is not cured within thirty (30) days (“Cure Period”) after receipt of written notice. Notwithstanding the foregoing, these Terms and/or any Subscription Agreement may be terminated immediately (without an opportunity to cure) upon written notice by the non-breaching Party in the following cases: (a) if any of the Parties files bankruptcy or has an involuntary petition in bankruptcy filed against it; (b) if the other party is declared insolvent, makes an assignment for the benefit of creditors, appoints a receiver, conservator, or trustee to operate its business, or liquidates all or substantially all of its business assets, or the equivalent of any of the foregoing, or (c) in its performance hereunder, the other party recklessly or wilfully materially violates Applicable Law. In the event the Client defaults in making the payment of the fees by the expiry of the Cure Period, the Service Provider reserves the right to block certain functions or material features of the Software Services against the Client until the Client has paid the fee for the Software Services or terminate the Subscription Agreement immediately and without notice.
(b) For Convenience: These Terms and any Subscription Agreement may be terminated for convenience by either Party upon thirty (30) days’ prior written notice.
(c) Effect of Termination Notice: Termination of these Terms by the Client will also terminate any then-current Subscription Agreement unless otherwise directed by the Client. The Service Provider shall be paid for all Services rendered to the Client through the effective date of termination of these Terms and/or the Subscription Agreement. Upon termination of these Terms or any Subscription Agreement, the Service Provider will, subject to the Retention Period, use commercially reasonable efforts to permanently and irrevocably remove, purge or overwrite all Client Data still remaining on the servers used to host the Software Services to the extent possible, unless and to the extent Applicable Laws and regulations require further retention of such data. Notwithstanding the foregoing, upon expiration of the Term of these Terms or prior termination of these Terms, the Client shall (i) immediately stop accessing or using the Services and Documentation; and (ii) shall return or at the request of the Service Provider, destroy all Confidential Information of the Service Provider in its possession.
(d) Survival. The following provisions shall survive any expiration or termination of these Terms: Clause 6 (Payment Terms and Invoicing), Clause 8 (Ownership and Deliverables) Clause 9 (Representations and Warranties), Clause 10 (Confidentiality), Clause 11 (Privacy and Security), Clause 12 (Warranties), Clause 13 (Indemnification), Clause 13 (Indemnification), Clause 14 (Limitation of Liability), Clause 15(c) (Effect of Termination Notice), Clause 15(d) (Survival), Clause 18 (Governing Law and Dispute Resolution) and Clause 19 (General Provisions).
It is understood by the Parties that one Party is an independent contractor with respect to the other Party, and that neither these Terms, nor any Subscription Agreement forms a partnership, agency, joint venture or employment relationship between the Parties. Neither Party shall act or represent itself, directly or by implication, as an agent of the other or in any manner assume or create any obligation on behalf of, or in the name of, the other The Parties acknowledge and agree that all personnel of one Party involved in the activities hereunder are not and will not be considered employees of the other Party for any purpose. The Parties agree that they will not represent to any person or entity that such personnel are employees of the other Party for any purpose. Each Party acknowledges and agrees that it is solely responsible and liable for the payment of all salaries, fringe benefits and other employer contributions, worker's compensation and unemployment insurance and benefits to its respective personnel as required by Applicable Law or regulation.
Any notices, requests or other communications required or permitted by these Terms shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by courier service upon written verification of receipt; (iii) by email, twenty-four (24) hours after the date and time of transmission; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to the addresses set forth in the Subscription Agreement or such other address as either Party may specify in writing by notice.
18. GOVERNING LAW AND DISPUTE RESOLUTION
(a) Governing Law.
(i) If the Client is based in India or if the Subscription Agreement provides for it: These Terms and the Subscription Agreement shall be governed and interpreted exclusively in accordance with the laws of India and shall be subject to the exclusive jurisdiction of competent courts in Bengaluru, Karnataka.
(ii) If the Client is based outside India or if the Subscription Agreement provides for it: These Terms and the Subscription Agreement shall be governed and interpreted exclusively in accordance with the laws of the United States of America and shall be subject to the exclusive jurisdiction of competent courts in Delaware.
(b) Dispute Resolution.
(i) If the Client based in India or if the Subscription Agreement provides for it: Any dispute or difference of any nature whatsoever arising out of or in relation to these Terms or the Subscription Agreement shall be referred to a sole arbitrator to be mutually appointed by both Parties and the arbitration shall be held in accordance with the provisions of the Arbitration and Conciliation Act 1996 or any statutory modification or re-enactment thereof for the time being in force. If the Parties fail appoint to a sole arbitrator within thirty (30) days from the date when either Party’s request for arbitration has been received by the other Party, the sole arbitrator shall be appointed as per provisions of Arbitration and Conciliation Act 1996 or any statutory modification or re-enactment thereof and the rules made there under. The seat and venue of arbitration shall be Bengaluru and the conduct of the arbitration proceedings shall be in English. The award of the arbitrator so nominated / appointed shall be in writing, which would be final, conclusive and binding on both the Parties, subject to the provisions of the Arbitration and Conciliation Act 1996 or any statutory modification or re-enactment thereof and the rules made there under. To the extent practical, decisions of the arbitrator shall be rendered no more than 90 (ninety) days following commencement of proceedings with respect thereto.
(ii) If the Client based outside India or if the Subscription Agreement provides for it: Any dispute, controversy or claim arising out of, relating to or in connection with these Terms or the Subscription Agreement, including the breach, termination, or validity thereof, shall be resolved by final and binding arbitration. The arbitral tribunal shall have the sole power to rule on any challenge to its own jurisdiction and all issues regarding arbitrability shall be decided solely by the arbitral tribunal. The place and seat of arbitration shall be Wilmington, Delaware. The language of the arbitration shall be English. The claimant shall commence the arbitration by delivering a notice of arbitration to the respondent setting out the nature of the claim(s) and the relief requested. Within 30 (thirty) days of the receipt of the notice of arbitration, the respondent shall deliver to the claimant its answer and any counterclaim(s), setting out the nature of such counterclaims(s) and the relief requested. The tribunal shall consist of 1 (one) arbitrator, appointed as follows: (i) The claimant and respondent shall mutually appoint an arbitrator within 30 (thirty) days of delivery of the answer; (ii) If any arbitrator is not selected within this time period, such arbitrator shall be appointed at the request of any Party by the American Arbitration Association; and (iii) Any challenge of an arbitrator for lack of impartiality or other ground shall be decided by the American Arbitration Association. If a vacancy of an arbitrator arises, the vacancy shall be filled by the same procedure set forth above. The Parties agree to keep confidential the existence of the arbitration, the arbitral proceedings, the submissions made by the Parties and the decisions made by the arbitral tribunal, including its awards to the extent not already in the public domain, except in judicial proceedings related to the award or where required by Applicable Law. The tribunal shall decide the procedures to be followed in the arbitration after consultation with the Parties. The tribunal shall have the power to grant any provisional or final remedy or relief that it deems appropriate, including conservatory measures and an award of attorneys’ fees.
19. General Provisions
(a) Headings: The headings of the several clauses are inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of these Terms.
(b) Amendments: No amendment or modification of these Terms shall be valid or binding upon the Parties unless made in writing and signed by the Parties hereto.
(c) Entire Agreement: These Terms, including all other documents incorporated herein by reference (including the Subscription Agreement) constitute the entire understanding of the Parties and supersedes all previous communications, representations or understandings, either oral or written, between the Parties relating to the subject matter thereof. The Parties acknowledge that there has been no influence to enter into these Terms in any manner, nor has any Party relied upon any verbal warranties or representations not set forth in these Terms.
(d) Severability: If any provision of these Terms is held to be invalid or unenforceable by a court of competent jurisdiction, then such invalid or unenforceable provision will be automatically revised or reformed to be a valid or enforceable provision that comes as close as permitted by law to the Parties’ original intent and the remaining provisions of these Terms will remain in full force and effect, unless the invalid or unenforceable provisions are of such essential importance to these Terms that it is to be reasonably assumed that the Parties would not have entered into these Terms without the invalid or unenforceable provisions.
(e) Certification: Each individual executing these Terms on behalf of a Party does hereby represent and warrant that he or she has been duly authorized to execute these Terms on behalf of such Party.
(f) Non-Solicitation: The Parties agree that during the term of these Terms and/or the Subscription Agreement and for twelve (12) months immediately following the date of expiration or termination of these Terms and/or the Subscription Agreement, neither Party shall directly or indirectly, induce or attempt to induce any employee, agent or independent contractor of the other Party to sever ties or to diminish its/their relationships with that Party, or to solicit, hire or assist any person or entity in soliciting, retaining or hiring any agent, consultant, person used or employed by the other Party.
(g) Assignment: These Terms and/or the Subscription Agreement is not assignable or otherwise transferable by either Party without the express written consent of other Party.
(h) Waiver: No waiver by either Party hereto of any breach or default of any of the covenants or agreements herein set forth shall be deemed a waiver as to any subsequent and/or similar breach or default. No waiver shall be effective unless made in writing signed by the authorized representative of the Party making such waiver.
(i) Force Majeure: Neither Party shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control including but not limited to fires, floods, earthquakes, pandemic or epidemic illness, strikes (of other employees), insurrection or riots, embargoes, or requirements or regulations of any civil or military authority (“Force Majeure”). Each Party hereto agrees to give reasonable notice to the other upon becoming aware of an event of Force Majeure. If a default due to an event of Force Majeure shall continue for more than 30 days (extendable at the option of the non-defaulting Party) then the Party not in default shall be entitled to terminate these Terms and/or the Subscription Agreement. Neither Party shall have any liability to the other in respect of the termination of these Terms and/or the Subscription Agreement as a result of an event of Force Majeure, other than any outstanding payments due to the Service Provider.
(j) Drafting and Representation of Counsel: Each Party acknowledges and agrees that: (i) in deciding whether or not to enter into these Terms or provide the Services, rights and obligations herein, it did so without reliance upon any oral or written representations made to it by the other Party, its employees or agents that are not included in these Terms and hereby waives any claims of reliance upon any such oral or written representations that are not expressly set forth in these Terms; and (ii) these Terms has been the subject of active and complete negotiations, and these Terms should not be construed in favor of or against any Party based on such Party’s or its advisors’ participation in the preparation of these Terms.
(k) Remedies: Except as expressly provided in these Terms, a Party’s exercise of any right or remedy under these Terms or under applicable law is not exclusive and shall not preclude such Party from exercising any other right or remedy that may be available to it. If either Party seeks monetary damages from the other Party, and a final judgment is entered entirely in favor of the Party defending the monetary damages claim, then the Party who brought such monetary claim shall reimburse the defending Party for its reasonable attorney’s fees and costs paid defending that claim. Otherwise, each Party shall bear its own fees and expenses unless otherwise provided by statute.
(l) Third Party Beneficiaries: These Terms is for the sole benefit of the Parties and is not intended to, and shall not be construed to, create any right or confer any benefit on or against any third party, except as expressly provided in these Terms.