Terms and Conditions
SOFTWARE AS A SERVICE
END USER LICENSE AGREEMENT
This End User License Agreement (“Agreement”) is a legal agreement between you (an individual and/or an entity or any other Person purchasing, subscribing, licensing and/or using as a trial) (“you”, your”, “User”, “Licensee”) and PEOL Technologies Private Limited (collectively “PEOL”, “Company,” “us”, “we” or “our”) governing your Use of the Software (as defined below) and our provision of related services.
Use of the Software is available only to Persons who can enter into legally binding contracts under Applicable Law. This Agreement applies to all Users of the Software, irrespective of the mode and the manner in which they have Used the Software. If you review, access, download, install, activate, or otherwise use the Software (collectively, “Use”), you are unconditionally accepting and agreeing to the terms of this Agreement. If you are Using the Software on behalf of an entity, company, or other organization/association, you represent and warrant that you: (i) have the authority to bind such entity, company, or organization/association to this Agreement; and (ii) agree to be bound by this Agreement on behalf of such entity, company, or organization/association. If you are using the Software on behalf of any other Person (whether under his authority or otherwise), you represent and warrant that you: (i) have the authority to bind such a Person to this Agreement; and (ii) agree to be bound by this Agreement on behalf of such Person.
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions: In this Agreement, the following words and expressions shall bear the meanings assigned to them below:
1.1.1 “Applicable Laws” or “Laws” means all applicable laws, statutes, enactments, acts of legislature or parliament, ordinances, judgments, decrees, injunctions, writs, rules, by-laws, regulations, notifications, circulars, guidelines, policies, directions, directives, demands, conventions, orders, interpretations, licenses, and/or permits of all Governmental Authorities of all relevant jurisdictions;
1.1.2 “Company’s Marks” means the trademarks, service marks, trade names, service names, brand names, brand marks, internet domain names, identifying symbols, logos, emblems, signs, or insignia owned by the Company and its affiliates and licensors;
1.1.3 “Company’s Partners” means a licensor, channel partner, reseller, value-added reseller, vendor, distributor, service provider, or systems integrator authorized by the Company to sell the Software and/or provide related services;
1.1.4 “Company’s Representatives” means the directors, officers, employees, consultants, contractors, sub-contractors, agents, and representatives of the Company;
1.1.5 “Company’s Technology” includes the algorithms, software (including the Software), hardware, code, applications, tools, technology, devices or other functional items, processes, systems, methods of operation, concepts, platforms (including the Platform), interfaces, web properties, communication pathways and/or protocols used by the Company to provide the Software;
1.1.6 “Company’s Trade Secret” includes the business idea, commercial secrets, commercial method, know-how, compilation of information, practice, pattern, technology, programs, systems, processes, compositions, technological data, technological prototypes, sales methods, distribution methods, profiles, advertising and marketing strategies, and other proprietary information developed by Company that: (i) provides Company with a competitive and economic advantage; (ii) is treated by Company in a way that can reasonably be expected to prevent the public or competitors from learning about it; and (iii) Company actively makes efforts to maintain as a secret;
1.1.7 “Confidential Information” means the Software (including its source code), the content of the Documentation, the Company’s Technology, any financial, statistical, business, technical, and confidential or proprietary information relating to the Software and the Company’s Technology, or the Company’s business, products and/or services, which is disclosed by the Company, the Company Partners, the Company’s Representatives or their respective affiliates to the User, or which is deduced from the Software or the services provided by the Company, the Company Partners, the Company’s Representatives or their respective affiliates to the User;
1.1.8 “Documentation” means the Company’s most recent authored and officially published online technical specifications and usage materials specifying the functionalities and capabilities of the Software, and user guides and manuals for the Software;
1.1.9 “Force Majeure” shall mean any event beyond the reasonable control of the Company including, but not limited to any act of God, act of Governmental Authorities, legislative changes, malicious third party attacks on the Platform and/or the Software, electrical power fluctuations or failures, electrical or electromagnetic stress, environmental factors, failure of public utilities, labour unrest, hostilities between nations, war, riot, civil commotions, civil war, insurrection, blockades, import or export regulations or embargoes, national emergency, rainstorms, earthquake, fires, flooding, explosion or other exceptional weather conditions or natural disasters, acts of terrorism, accidents, sabotages, strikes, shortages in material or supply, destruction of service facilities, infectious diseases, epidemics, pandemics as well as lockdowns, travel restrictions or travel warnings due to any such events or any other change in circumstances.
1.1.10 “Government” or “Governmental Authority” means the union, state, local or other governmental authority exercising executive, legislative, judicial, regulatory, or administrative functions of or pertaining to government, or any other governmental authority or statutory authority, department, agency, commission, organization, board, tribunal, court and/or other entity authorized to make Laws;
1.1.11 “Intellectual Property Rights” or “Intellectual Property” means all rights in and in relation to all intellectual property rights subsisting in current or future products or services and includes the following worldwide rights relating to intangible property, whether or not filed, perfected, registered or recorded and whether now or hereafter existing, filed, issued or acquired: (i) patents, patent disclosures, patent rights, know-how, including any and all continuations, continuations-in-part, divisions, reissues, re-examinations, utility, model and design patents or any extensions thereof; (ii) rights associated with works of authorship, including without limitation, copyrights, copyright applications, copyright registrations; (iii) rights in trademarks, trademark registrations, and applications therefor, trade names, service marks, service names, logos, or trade dress; (iv) rights relating to the protection of trade secrets and confidential information; (v) Internet domain names, Internet and World Wide Web URLs or addresses; and (vi) all other intellectual or proprietary rights anywhere in the world including rights of privacy and publicity, whether or not requiring registration and whether or not such registration has been obtained;
1.1.12 “Losses” means and include all losses, liabilities, damages, interest, penalties, claims, costs, and expenses (including those arising out of or based upon or in relation to any judgment, award, settlement, and reasonable attorneys’ fees and other costs related thereto);
1.1.13 “Person” means any natural person, limited or unlimited liability company, corporation, partnership (whether of limited liability or unlimited liability), proprietorship, Hindu undivided family, trust, union, association, Government or any agency or political subdivision thereof or any other entity that may be treated as a person under Applicable Law;
1.1.14 “Platform” means the Company’s online platform and all other internet domains, mobile applications, widgets, and other downloadable applications developed, owned, operated and/or controlled by Company and its affiliates/licensors, and branded or licensed exclusively under the Company’s Marks, whether now existing or hereinafter developed, made available by the Company, through which Company offers and provides the Software;
1.1.15 “Software” means the Company’s proprietary express lane invoice processing orbit software for streamlining accounts payable operations with optimized invoice processing (ELIPO) , and all products, modules and sub-modules, services (including all support, maintenance and professional services), contents, features, applications, tools, data, documentation, information, updates, upgrades, revisions, improvements, and modifications, related thereto, which are made available or enabled by the Company, including through the Platform (or through third party service providers or platforms of third parties);
1.1.16 “Support Services” has the meaning ascribed to the term in Paragraph 2.8 of this Agreement; and
1.1.17 “User’s Data” means any information, data, content and associated records or files, in any form or medium of the User (and any officer, employee, consultant, agent, representative, contractor, vendor or any other Person related to or associated with the User), its business, and its transactions including information and data pertaining to the User’s transactions with third parties: (i) that is provided to the Company by the User or by any Person on behalf of the User; or (ii) that is collected, controlled, created, accessed, entered, generated or processed in, with or in connection with, the Software and its Use or the services provided by the Company, all of which is owned in its entirety by the User.
1.2 Interpretation
1.2.1 Paragraph headings are for convenience only and do not affect the construction or interpretation of any provision of this Agreement.
1.2.2 In addition to the above terms, certain terms may be defined elsewhere in this Agreement and wherever such terms are used in this Agreement, they shall have the meaning so assigned to them.
1.2.3 Where a word or phrase is defined, other parts of speech and grammatical forms and the cognate variations of that word or phrase shall have corresponding meanings.
1.2.4 All references in this Agreement to statutory provisions shall be statutory provisions for the time being in force and shall be construed as including references to any statutory modifications, consolidation, or re-enactment (whether before or after the date of this Agreement) for the time being in force and all statutory rules, regulations and orders made pursuant to a statutory provision.
1.2.5 Words denoting singular shall include the plural and vice versa and words denoting any gender shall include all genders unless the context otherwise requires.
1.2.6 The term “includes” or “including” shall be construed to mean without limitation.
1.2.7 References to Paragraphs are, unless the context otherwise requires, references to the paragraphs of this Agreement.
2. THE SOFTWARE, ITS SUBSCRIPTION AND USAGE
2.1 Function: The Software is a SaaS based product that acts as a digital invoice management application designed for AP invoice operations. The Software helps: (i) businesses to digitize end to end processing of vendor invoices through automation and workflows with best practices; and (ii) the AP team to process all the incoming invoices automatically in a digital format with built-in integration to support any ERP.
2.2 Subscription and Access to Software
2.2.1 Evaluation License: If you receive the Software for evaluation purposes or other limited, temporary use as authorized by the Company (“Evaluation Software”), your Use of the Evaluation Software is only permitted for the period stated by the Company. If no evaluation period is identified by the Company, then the evaluation license is valid for 15 (fifteen) calendar days from the date the Software is made available to you. The Company does not assume any liability of any kind whatsoever arising from any Use of the Evaluation Software. Your Use of the Evaluation Software is subject to the terms and conditions of this Agreement and all provisions applicable to the Software are also applicable to the Evaluation Software.
2.2.2 Subscription of License: The Company (or the Company’s Partners) will charge a fee to the User for granting a license to Use the Software and such fee will be determined by the Company (or the Company’s Partners) at its/their sole discretion from time to time. The license fees are based on Software licensed and services purchased and not actual usage of the Software. Your Use of the Software is subject to the payment in full of all applicable fees and the nature of your subscription. All orders submitted by you for purchasing a license of the Software shall be governed by the terms contained in this Agreement, notwithstanding any additional or different terms which may be contained in your purchase order. All payments shall be made in accordance with the payment options and in the manner provided by the Company (or the Company’s Partners). The User shall be liable for all applicable taxes with respect to the Software and the services related thereto, including the Support Services and this shall be in addition to the licensee fee paid by the User. License fees are not refundable, except as determined by the Company (or the Company’s Partners) in its/their sole discretion. In addition to any other rights granted to the Company under this Agreement, the Company reserves the right to suspend or terminate your Use of the Software if you have not paid any amount of fees when due.
2.2.3 Limited Users & Usage: Usage rights in the Software are acquired on a subscription basis and Licensee’s usage of the Software is subject to usage limits and the numbers of users specified in the order form at the time of subscription. The Software may only be used by the number of unique users bought by the User. The Software or its license keys or access authorizations will have an expiration date, a user number limit, and other intentional limitations and that the Software may not function beyond these limitations. Licensee’s right to use the Software (including content generated with the Software) terminates with immediate effect at the expiration of license, unless renewed by the Licensee by paying the then applicable license fee. If the User fails to pay when due any payment required from the User to the Company or the Company’s Partners under this Agreement or otherwise, the license to the Software, the warranty, any applicable services, and the related remedies of the User will automatically become null and void and of no further force or effect.
2.2.4 Creation of Account: To access the Platform and Use the Software, the User will have to create an account with the Company (“Account”). The User must provide accurate and complete information as required by the Company to create the Account and shall keep the Account information updated. As part of the registration process, the User will be given a unique username and password. The password can be changed by the User from time to time. Log-in credentials are provided to you by the Company for your Use of the Software are for your internal use only and you shall not sell, transfer, share or sublicense them to any other Person. You shall: (i) be responsible for maintaining the confidentiality of your username and password and for backup, recovery and security of usernames and passwords; (ii) not share your username and password with third parties nor allow a third party to Use your Account or your username or passwords at any time; (iii) never publish, distribute, or post login information for your Account; and (iv) notify the Company promptly of any unauthorized use of your Account and of any loss, theft, or disclosure of your password. The Company reserves the right to terminate any username or password, which the Company reasonably determines may have been used by an unauthorized third party other than the User to whom such username and password was originally assigned. You are solely responsible for the usage, activity, management, and liability that occurs on your Account, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents), and for keeping your Account password secure. You shall never use another User’s account or registration information for accessing the Software without permission. You must notify us immediately of any change in your eligibility to use the Software (including any changes to or revocation of any licenses from any state, provincial, territorial, or other authorities), breach of security or unauthorized use of your Account. You shall have the ability to disable your Account either directly or by making a request to us. Failure to comply with these requirements shall constitute a breach of this Agreement and shall constitute grounds for immediate termination of your Account and your right to use the Software. The Company shall not be liable for any loss or damage as a result of your failure to provide us with accurate information or to keep your Account secure.
2.2.5 Termination of License for Breach: In addition to any other rights granted to the Company in this Agreement, the Company reserves the right to suspend or terminate your Use of the Software if you breach this Agreement.
2.3 Transactions with Company’s Partners: If you purchase a license of the Software from a Company’s Partner, the terms of this Agreement will apply to your Use of the Software and prevail over any inconsistent provisions in your agreement with the concerned Company’s Partner.
2.4 Supporting Environment: The ability of the User to Use the Software is expressly conditioned upon the User having the required supporting environment, including internet access, compatible hardware and software, facilities, systems, and other equipment and may also require periodic updates to your browser, hardware, and/or other software (“Supporting Environment”). The User shall be solely responsible to ensure that it provides the Supporting Environment for the purposes of Using the Software. The User shall properly train its staff in the Use and application of the Software and any hardware on which the Software is used or installed.
2.5 Modifications, Enhancements & Upgrades: Nothing in this Agreement shall limit in any way the Company’s right to develop, use, license, create derivative works of, or otherwise exploit the Software or the Documentation, or to permit third parties to do so. The Company may, at its discretion, from time to time, modify or make enhancements and upgrades to the Software, including for technical reasons such as updates, maintenance operations and/or to improve and/or optimize the Software. These enhancements and upgrades may be made available to the User, at the Company’s discretion, at no charge or at an additional charge.
2.6 Use of Software: The User shall Use the Software solely for its internal business purposes. As a condition of your Use of the Software, you promise and undertake not to use the Software for any purpose that is prohibited by this Agreement. You are responsible for all your activities in connection with the Software and the activities of any Person who uses your Account (as defined below) or who uses your computers, systems, mobiles, machines, communication devices, network and others’ applications and resources. By Using the Software, you specifically agree that: (i) you will use your own independent and informed judgement before: (a) making any transaction, interactions, or communication on or through the Software; (b) or using any information or data derived from the Software; and (ii) any decision taken by you pursuant to the Use of the Software are at your own will and risk and you are able to bear the loss after completely understanding the risks involved in such transactions. You acknowledge and agree that the Company has provided you with adequate opportunities to test the Software and make an informed judgement prior to purchasing the license and Using the Software.
2.7 Use with Third Party Products. The User expressly acknowledges that for the operation of the Software, the User has to obtain, at the User’s sole cost and expense, appropriate hardware, and third-party software and/or application licenses, such as (but not limited to) operating systems. If you Use the Software together with third-party products, such Use is at your risk. You are responsible for complying with any third-party provider terms, including its privacy policy. The Company does not provide support or guarantee or ongoing integration support for products that are not a native part of the Software.
2.8 Third-Party Technology & Services: To enjoy the license granted hereunder and to Use the Software or to enable the Company provide access to the Software, the Company is required to obtain additional third-party technology (“Third-Party Technology”) and third-party services (“Third-Party Services”). The Company will procure such Third-Party Technology and Third-Party Services for enabling it to provide the Software from any preferred vendor, which the Company may, in its sole discretion, determine. The rights and licenses with respect to Third-Party Technology and Third-Party Services shall be under the terms set forth in the pertinent purchase, license or services agreements between the Company and the vendors of such Third-Party Software or Third-Party Services. The Third-Party Technology Third-Party Services are provided on an “as is” basis. There does not exist any warranty, guarantee, declaration, or condition, express or implied, made by the Company, including implicit warranties as to merchantability, market quality, commercial value, and fitness for any particular purpose whatsoever relative to the Third-Party Services and Third-Party Technology and the Company specifically disclaims all warranties and indemnities, express, implied, or statutory with respect to the Third-Party Services and Third-Party Technology.
2.9 Scheduled Maintenance: The Company will perform scheduled maintenance of the Software, infrastructure, software and other applications used to provide the Software during which time you may experience some disruption in Using the Software.
2.10 Support and Maintenance: While the license for the Software remains effective during the applicable license term, the Company or the Company’s Partners will use commercially reasonable efforts to provide the User with the support and maintenance services for the Software or the service as described in the Company’s then-current support and maintenance program (“Support Services”), at the then applicable fees and charges, provided the Licensee Uses the Software strictly in accordance with the terms of this Agreement. The Support Services are provided on a subscription basis only and are not sold to the Licensee. The Company or the Company’s Partners may from time to time revise the fees for and the terms of the Support Services or terminate Support Services for the Software. The User shall follow the operation procedures published by the Company in connection with the Use of the Software, including, but not limited to, procedures for routine maintenance of the Software.
2.11 Limited Software Warranty
2.11.1 The Software will perform in substantial conformance with the Documentation from the date of license of the Software. The Software or any part thereof which has been subject to abuse, misuse (including any Use of the Software otherwise than in accordance with this Agreement or any other written and explicit instructions provided by the Company), accident, alteration, modification, neglect, or unauthorized use or access is not covered by this warranty. The warranty shall also not apply if any failure, error, defect or malfunction results from any act, omission or event that is not attributable to the Company and/or the Company’s Partners. The User must immediately notify the Company of any breach of the Software warranty.
2.11.2 Subject to the limitations set forth in this Agreement, including in Paragraph 2.9.1 above, the User’s exclusive remedy, and the Company’s and the Company’s Partners entire liability, arising from any breach of the warranty shall be, at the Company’s (or the Company’s Partners) option and at no cost to the User, to: (i) make commercially reasonable efforts to correct or provide a reasonable workaround for the failure, error, defect or malfunction that caused the breach of the warranty; or (ii) replace the (defective part of the) Software. If any claim made by the User for a breach of warranty falls within any of the exceptions listed in this Agreement, including Paragraph 2.9.1 above, the User shall pay the Company and/or the Company’s Partners for such assistance and services provided by the Company and/or the Company’s Partners as determined by the Company and/or the Company’s Partners at the Company’s and/or the Company’s Partners then current professional services rates and related expenses.
2.11.3 The Software warranty is in lieu of all other representations, warranties, and covenants, express or implied, with respect to the Software and Documentation. Except for foregoing limited warranty as expressly specified in Paragraph 2.9.1 above, all representations, warranties, conditions, guarantees, terms and indemnities with respect to the Software and the Company’s services, including the Support Services, which would otherwise be implied or included in this Agreement, whether by law, custom or otherwise, including without limitation, performance, security, integration, quiet enjoyment, satisfactory quality or any warranty of merchantability, fitness for a particular purpose, title, non-infringement or any other warranty arising from the course of performance or course of dealing with respect to the Software and the Company’s services, including the Support Services, are hereby overridden, excluded and disclaimed by the Company and the Company’s Partners. The Software and the Company’s services, including the Support Services, are provided on an “as is” basis and the Company does not warrant that: (i) the Software and the Company’s services, including the Support Services will: (a) meet your requirements; (b) be accurate, uninterrupted, timely, secure, or error-free; (ii) the results that may be obtained from the Use of the Software will be effective, accurate, or reliable; (iii) the quality of the Software purchased by you will meet your expectations; (iv) any errors or defects in the Software will be corrected; and (v) the Software is free of viruses or other harmful components. No oral or written advice or information provided by the Company or any of the Company’s Partners and Company’s Representatives shall create a warranty, and the Users are not entitled to rely on any such advice or information. Information about the Software, its functionality, or related services in any communication with a User constitutes technical information, not a warranty or guarantee. This disclaimer of warranties is an essential condition of this Agreement. You expressly acknowledge and agree that Use of the Software is at your own discretion and risk, and you are solely responsible for any damage to your systems or loss of data and information that results from the Use of and access to the Software or any related services, including the Support Services. You assume all responsibility for selecting the Software to achieve your intended results, and for the Use of, and results obtained from the Software. The Company specifically disclaims all liability for any actions resulting from your Use of the Software and the related services including the Support Services. The Company disclaims any and all liability with respect to any Losses, personal injury or other harm that may be caused by your reliance on any advice, suggestions, recommendations, or other information provided on the Software.
2.12 Users Licenses: The Company requires certain licenses from the Users to use their network, systems, tools, machines, data, and information in order to grant access to the Software and provide related services including the Support Services. When you Use the Platform and the Software, you grant us a nonexclusive right and license to use your network, systems, tools, machines, data, and information for the purposes of providing the Software and related services including the Support Services.
2.13 User’s Data: You represent that you have all necessary rights in the User’s Data. As owner of the User’s Data, you are solely responsible for obtaining all required consents, including under any Applicable Law, contract or otherwise for, and complying with all data protection laws applicable to, the license and use of the User’s Data, including for the purposes set out in this Agreement. Except as otherwise provided herein, the Company shall obtain no rights in or to the User’s Data under this Agreement. You hereby grant to the Company and the Company’s Partners a non-exclusive, perpetual, irrevocable, royalty-free, and worldwide right and license to backup, use, copy, adapt, reproduce, edit, modify, translate, store, disclose, share, transmit, display, and create derivative works of the User’s Data to the extent necessary to provide the Software and related services, including the Support Services. You acknowledge and agree that the foregoing right and license specifically includes the right to transfer, share and disclose the User’s Data to all such Persons and entities that the Company determines in its discretion (including to Persons and entities who are related to, or connected or associated or engaged with or who do business with, the User), through any medium, electronic (including by way SMS, email, phone calls or the mobile or other applications owned, licensed, or operated by the Company (whether now existing or hereinafter developed), including the Company’s applications or otherwise. The User shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the User’s Data. You acknowledge and agree that the Company will have no responsibility or liability for the existence, accuracy or content of the User’s Data accessed, used, processed, shared or transmitted with or in connection with the Software and related services. You acknowledge and agree that: (i) the Software functions only as a tool used by the User for the purposes set out in this Agreement; (ii) the Company cannot control, and disclaims responsibility for the jurisdictions across which the User may input, store, control, access, transmit and process the User’s Data; (iii) the User is responsible for compliance with all Applicable Laws pertaining to privacy and data protection, applicable to the User; (iv) the Company does not control the User’s Data in any manner whatsoever; and (v) the Company will handle the User’s Data to the extent necessary to fulfill its obligations under the Agreement and as per the Company’s policies.
2.14 Security, Backup and Retention: The User is responsible for all activities that occur under its Account, regardless of whether the activities are authorized by the User or undertaken by the User, its personnel or a third party. The User is responsible for taking appropriate action to regularly secure, protect, backup and validate the integrity of backups of its Account and all the User’s Data. The User shall implement, and is solely responsible for implementing procedures for the protection of User’s Data in the event of errors or malfunctions of the Software or hardware on which the Software is used. After the expiration or termination of the license, the Company will have no obligation to maintain the User’s Data of the User in any form, in any system or in its possession or control, and may destroy and dispose of such the User’s Data.
2.15 Disclaimer: While the Company shall continuously work towards keeping the Software functional, you hereby acknowledge that technical failures are a part of any program. We shall take adequate steps to keep the Software running and in the event of any unforeseen problems or technical malfunction of our network, servers, computer systems or equipment, or software on account of technical problems or traffic congestion on the internet or combination thereof, we will take the necessary measures to remedy the problem. However, we do not assume any liability whatsoever in respect of any Loss arising directly or indirectly to you, including but not limited to loss of profit, loss of data, or loss of opportunity arising out of such unforeseen events and/or technical malfunction.
2.16 Exclusions: The Company shall not be liable for any failure, delay, or deficiencies in providing access to the Software or in the performance of related services and such failure, delay, or deficiency shall not constitute the Company’s failure to meet the requirements detailed in this Agreement, to the extent that any such failure, delay, or deficiencies is attributable to: (i) Force Majeure; (ii) User’s acts or omissions (including, among other things, misuse of the Platform and the Software, usage of the Platform and the Software in a manner not approved by the Company, violations of law, willful misconduct, negligent acts or breach of this Agreement); (iii) User’s acts or omissions; (iv) acts or omissions of third parties related to User; (v) restrictions/constraints imposed by Applicable Laws; (vi) deficiencies or defects in materials, supplies, tools, equipment and other resources utilised or provided by the User; (vii) acts or omissions of the third party service providers, including providers of the Third-Party Technology and/or the Third-Party Services; (viii) deficiencies or defects in Third-Party Technology and/or the Third-Party Services; (ix) a failure by the User to provide the Company, within a reasonable time, with any information or other material reasonably requested by the Company for the performance of its services; (x) any inaccurate or misleading information supplied by the User to the Company and upon which the Company relies in performing its services; (xi) User’s failure to take such corrective action which forms a part of User’s responsibility, as may be reasonably requested and identified by the Company to the User; and (x) such other reasons solely attributable to User. Further, the Company shall not, in the aforesaid circumstances, be liable to provide any support and maintenance services for the Software, including the Support Services.
2.17 Supervision & Control: The User shall be solely responsible for undertaking the proper supervision, control and management of its access and Use of the Software, including, without limitation using Software in conformity with the terms of this Agreement. The Company does not assume any liability of any kind whatsoever arising from any Use of the Software. You shall be responsible and liable to the Company for all actions, claims, proceedings, and Losses incurred by the Company arising out of, or in any way connected with, your Use of the Software, or breach of this Agreement.
2.18 Monitoring, Inspection & Auditing: The Company does not and is not under an obligation to examine and verify the usage of the Software by the Users. However, the Company may, under the following among other circumstances, access and verify your Usage of the Software: (i) where required by Applicable Law; (ii) to provide the Support Services and other services related to the Software; (iii) to respond to support requests; (iv) to detect, prevent, or otherwise address fraud, security, unlawful, or technical issues; and (v) enforce the terms of this Agreement. Further, the Licensee understands, acknowledges, and agrees that the Software is programmed to track the number of authorized devices, users and other usage related data, and Licensee consents to such operations and shall not engage in any activity designed to circumvent or obstruct, or which has the effect of circumventing or obstructing, the Software’s tracking capabilities. Further, the User grants to the Company the right to monitor usage by the User of the Software. The User shall maintain accurate records of its Use of the Software sufficient to demonstrate its compliance with the terms of this Agreement.
3. GRANT OF LICENSE AND LIMITATIONS AND RESTRICTIONS
3.1 Limited Platform License: Subject to the terms and conditions of this Agreement, the Company hereby grants to the User, a non-exclusive, non-transferable, non-assignable, non-sublicensable, non-commercial, personal, revocable, restricted, and limited license to access and use the Platform solely for the purposes of using the Software for the purposes and in the manner specified therein.
3.2 Limited Software License:
3.2.1 Subject to the terms and conditions of this Agreement, the Company hereby grants to the User, a non-exclusive, non-transferable, non-assignable, non-sublicensable, non-commercial, personal, revocable, restricted, and limited license to Use the Software and the Documentation solely for the User’s internal (non-commercial) business purposes for such time until the User’s license expires or is terminated earlier in accordance with the terms of this Agreement. The Company grants no other license to the User with respect to the Software and the Documentation and no implied license shall arise by usage of trade, course of dealing, course of performance or under any other theory. Except for the express limited license granted to the User pursuant to this Paragraph 3.2.1, all right, title and interest (including all Intellectual Property and proprietary rights) in and to the Software and the Documentation shall remain exclusively in and with the Company and/or its licensors. All rights not expressly granted to you are reserved by the Company. Your rights to Use the Software and Documentation shall be limited to those expressly granted in this Agreement.
3.2.2 The Software is licensed, not sold. This Agreement shall not be interpreted or construed as an agreement between the Company and the User for the sale of the Software. Any references to “sale” or “purchase” (or similar language) of the Software, including in any related document or invoice shall be deemed to mean “license” in accordance with the terms of this Agreement.
3.3 Restrictions & Limitations
3.3.1 Except to the limited extent expressly permitted in this Agreement, the User shall not and shall not permit others to (either directly or indirectly): (i) copy, adapt, alter, modify, translate, localize, merge and/or create derivative works of the Software; (ii) reverse engineer, decrypt, disassemble, or decompile, the Software, its source code, structure, algorithms or ideas underlying the Software or reduce the Software to human perceptible form and/or otherwise attempt to determine its underlying source code; (iii) avoid, circumvent or disable any security device, procedure, protocol or mechanism that the Company may include, require or establish with respect to the Software; (iv) develop keys or license codes other than license keys provided by the Company for the Software or attempt to defeat or circumvent any such keys or any other access restrictions included in the Software or determine how any such keys are developed or bypass or delete protection methods provided for preventing unauthorized uses of the Software for any purpose whatsoever; (v) alter, obscure, deface, remove, conceal and/or otherwise interfere with any eye-readable or machine-readable marking on the Software which refers to the Company as the owner, author or developer of the Software and all proprietary and Intellectual Property Rights contained therein; (vi) distribute, provide, lease, lend, use and/or allow others to use the Software to or for the benefit of any third parties; (vii) provide the use of the Software in any service bureau, time-sharing or facilities management arrangement and/or otherwise use the Software to provide services to third parties; and/or (viii) transfer, transmit, export, or re-export of the Software or any portion thereof, in violation of any Applicable Laws.
3.3.2 You shall not and shall not permit others to: (i) Use the Platform and the Software in any manner or for any purpose other than as expressly permitted by this Agreement and the Documentation; (ii) Use the Software directly or indirectly in a manner inconsistent with its original design and intended purposes; (iii) modify, distort, block, abnormally burden, disrupt, slow down and/or hinder the normal functioning of all or part of the Software, the Platform or its accessibility to other Users, or the functioning of the partner networks or third-party platforms through which the Software is provided, or attempt to do any of the above or take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party service providers’) infrastructure; (iv) transmit any virus, trojan horse, worm, bomb, corrupted file and/or similar destructive device or corrupted data in relation to the Software, and/or organise, participate in or be involved in any way in an attack on the Company’s servers or Platform and/or the Software and/or those of its service providers and partners; (v) create, supply or use alternative methods of Using the Software or access any content on or of the Software through any technology or means other than those provided or authorized by the Company or bypass, circumvent or attempt to bypass or circumvent any measures the Company may use to prevent or restrict access to the Software (or other computer systems, resources or networks connected to the Software); (vi) obtain or attempt to gain unauthorized access to other computer systems, resources, materials, information or any services available on or through the Platform or the Software or the Company’s Technology through any means, including through means not intentionally made publicly available or provided for through the Software; (vii) install or Use Software or the Platform in any way that would subject the Company’s to any claim or action or infringe a third party’s Intellectual Property Rights; (viii) access the Platform and the Software to test or monitor availability, performance, penetration or vulnerability testing or functionality for any benchmarking or competitive purpose; and (ix) Use the Platform and the Software in a manner that violates any Applicable Laws or any of the Company’s Intellectual Property Rights.
3.3.3 You shall specifically not and shall not permit others to: (i) Use the Software for commercial purposes without obtaining a license to do so from the Company; (ii) Use the Software to build a competitive product or service or to build a product or service using similar ideas, features, functions or graphics of the Software; (iii) copy any ideas, features, functions or graphics of the Software or to create derivative works; (iv) publish, provide or disclose to any third party any opinions relating to, or test results, benchmarking or comparative study involving the Software without the prior written consent of the Company; (iv) take any action that would cause the Software (or any license or registration keys) to be placed in the public domain; (v) disparage, tarnish or otherwise harm the Company, including the Platform and the Software; and (vi) assert, authorize, assist, or encourage any third party to assert any right or interest in the Software or make any intellectual property infringement claim regarding the Software.
3.3.4 You shall not (directly or indirectly) submit, upload, provide, transmit, distribute, post, store, link, or otherwise share content, information, data, software, and/or materials on the Platform or through the Software that: (i) you do not have the right, authority or license to make available, whether under Law, contract or otherwise; (ii) is unlawful, threating, abusive, harassing, defamatory, libelous, deceptive, fraudulent, tortious, offensive, profane, obscene, or sexually explicit or contains or depicts pornography, or is otherwise inappropriate as determined by us, in our sole discretion; (iii) is invasive of another’s privacy; (iv) violates the publicity or proprietary or Intellectual Property Rights of third parties; (v) impersonates any person or entity, including any of the Company’s Partners or Company’s Representatives or falsely states or otherwise misrepresents your affiliation with any Person or expresses or implies that the Company endorses any statement you make; (vi) includes anyone’s identification documents or sensitive financial information or any personal information about another individual or any information that may be used to track, contact or impersonate that individual; (vii) discloses or provides information protected under any Law, agreement or fiduciary relationship, including but not limited to proprietary or confidential information of others, insider information or material, or non-public information; (viii) violates any Law; (ix) would give rise to criminal or civil liability (under tort or otherwise); (xii) encourages conduct that constitute an offense or that encourages or provides instructional information about illegal activities; (x) has the potential to create a liability for the Company; (xi) could cause us to lose, in whole or in part, our relationship with the Company’s Partners, the Company’s Representatives and our Users; (xii) interferes with or disrupts the operation of the Platform or the Software or the Company’s Technology or the servers or networks used to make the Platform and the Software available, or violate any requirements, procedures, policies or regulations of such networks; and (xiii) threatens the unity, integrity, defense, security or sovereignty of any country, friendly relations with foreign states, or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any other nation.
3.3.5 You shall not (directly or indirectly) use the Platform and the Software: (i) in violation of any Applicable Law or otherwise in violation of any Applicable Law which you may be subject to; (ii) in a manner which could cause loss, damage or personal injury to any Person; (iii) for any fraudulent or unlawful purpose or for the promotion of illegal activities; and(iv) if you are a competitor of the Company or for reasons that are in competition with the Company.
3.3.6 You shall abide by all Applicable Laws with respect to the Use of the Platform and the Software. The User expressly acknowledges and agrees that only the User, and not the Company and the Company’s Partners are responsible for verifying whether the Applicable Laws of the country/jurisdiction where the User intends to Use the Software and Documentation, allows the Use of the Software and Documentation, and for obtaining all necessary permits, licenses and authorizations required to be able to so Use the Software and Documentation.
3.3.7 Any activity that you are prohibited from performing under this Agreement is equally prohibited to anyone using your Account, computers, systems, mobiles, machines, communication devices, network and others’ applications and resources to access the Software.
3.3.8 You shall: (i) be fully responsible for the acts of others utilizing your access to the Software, and you will be held responsible for violations by Persons who gain access to the Software using your Account, computers, systems, mobiles, machines, communication devices, network and others applications and resources; (ii) utilize proper security protocols, such as setting strong passwords and access control mechanisms, safeguarding access to all logins and passwords, and verifying the trustworthiness of the Persons who are entrusted with access to your Account, computers, systems, mobiles, machines, communication devices, network and others applications and resources and information; (iii) notify all Persons who receive access to the Software of the provisions of this Agreement, and inform them that this Agreement are binding upon them; and (iv) notify the Company if and when you learn of security breaches regarding the Software, and shall aid in any investigation or legal action that is taken by authorities and/or the Company to cure the security breach.
3.3.9 You shall assume full legal responsibility for any access and Use of the Software, and in the event of any breach of this duty resulting in legal claim against the Company, you shall defend, indemnify, and hold the Company harmless from all claims and damages arising therefrom.
3.3.10 The enumeration of violations in this Paragraph 3.3 is not meant to be exclusive, and the Company has and will exercise its authority to take any action which is necessary to protect the Platform, the Software, the Company’s Technology, Users, and third parties from acts that would be inimical to the purpose of this Paragraph.
4. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP
4.1 The Platform, the Company’s Technology, the Software and the Company’s Trade Secrets (collectively, the “Company Intellectual Property”) constitute valuable trade secrets of the Company. All worldwide Intellectual Property Rights and other proprietary rights in and to the Company Intellectual Property and all improvements and developments in connection therewith shall be and remain the exclusive property of the Company. The Users shall not, either directly or indirectly, infringe, misappropriate, or violate the Company Intellectual Property in any manner whatsoever.
4.2 The Platform and all information and content available on the Platform and its “look and feel”, including but not limited to the Company’s Marks, copyrighted works, text, graphics, logos, button icons, images, audio/video clips, data compilations and software, and the compilation and organization thereof is the property of the Company, its affiliates, partners or licensors, or is used with consent of the owner and is protected by Laws, including Laws governing Intellectual Property. The reproduction and use of any of these by you is prohibited unless specific written permission is provided by us. Any unauthorized use shall violate applicable Intellectual Property Laws.
4.3 The Company and the Company’s Marks referenced in the Platform and the Software are the intellectual property rights of the Company. Any unauthorized use of the same is strictly prohibited and all rights in the same are reserved by the Company. No use of any of the Company’s Marks may be made by any third party without the express written consent of the Company.
5. INDEMNIFICATION
5.1 You shall indemnify, defend and hold harmless the Company, its affiliates, subsidiaries, and any related companies, the Company’s Partners, the Company’s Representatives from all Losses brought against or suffered by any of them resulting from, arising out of or relating to your (or any third party using your identity or your Account, computers, systems, mobiles, machines, communication devices, network and others applications and resources): (i) use or misuse of, or access to, the Platform, the Software and the Company’s Technology, or otherwise from your Use of the Software; (ii) violation or breach of this Agreement; (iii) violation or breach of any Applicable Law, whether or not referenced herein; (iv) violation of any rights of any third party; and (v) any dealings between you and any third parties. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (but doing so shall not excuse your indemnity obligations), in which event you will assist and cooperate with us in asserting any available defenses.
6. LIMITATION OF LIABILITY
6.1 The User specifically acknowledges and agrees that the Software and related services including the Support Services are provided hereunder with the expectation that the Company shall not assume any risks of the User. Accordingly, in no event shall the Company assume any risks of the User.
6.2 The User further acknowledges and agrees that every decision taken by it pursuant to the transactions contemplated hereunder represents an assumption of risk and that the Company does not and shall not underwrite or assume the User risk in any manner.
6.3 The Company shall not be held liable for any liabilities suffered by the User or any third party relating to or arising out of: (i) a failure by the User to adhere to this Agreement; (ii) negligent acts of the User; and/or (iii) breach by the User of any Applicable Law.
6.4 The Company expressly disclaims any liability for errors or non-compliance related to the Use and operation of the Software and related services by a Company’s Partner. Hence, the Licensee shall direct any such claims towards the concerned Company’s Partner.
6.5 In no event shall the Company, its affiliates, subsidiaries, and any related companies, the Company’s Partners, and the Company’s Representatives be liable for any Loss caused to the User, whether under contract, or for tort, strict liability, negligence, breach of statutory duty, misrepresentation (whether innocent or negligent) or any other legal or equitable theory with respect to the Software and related services, including: (i) special, indirect, incidental, punitive, compensatory or consequential damage of any kind whatsoever including for any loss of profits, revenue or other economic losses, loss of actual or anticipated business, loss of anticipated savings, loss of opportunity, loss of goodwill, business interruption, loss as a result of third party claims, loss and/or corruption of data and other programs, cost of procurement of substitute goods or services (for the avoidance of doubt, the types of loss and/or damage specified in (i) shall not constitute direct losses for the purposes of this Agreement. The foregoing limitation will apply even if the Company, the Company’s Partners, and the Company’s Representatives have been advised of the possibility of such damages or if such damages are foreseeable) or; (ii) for any bugs, viruses, trojan horses, or the like (regardless of the sources of origination), or (iii) for any direct Losses in excess of the actual license fee paid for the Software, even if the Company, the Company’s Partners, and the Company’s Representatives have been advised of, knew, or should have known, the possibility thereof or if such Losses are foreseeable (i.e. in no event shall we be liable to you for any Loss in excess of the license fee (excluding taxes) you have paid for the license of the Software). For the avoidance of doubt it is again clarified that notwithstanding any other provision of this Agreement, the Company’s, the Company’s Partners, and the Company’s Representatives aggregate liability of all kinds towards the User for any Losses arising from or related to the Software and related services including the Support Services, the Documentation, or this Agreement, whether for breach, infringement, in tort, indemnification or otherwise, shall be limited to an aggregate amount equal to the license fee in respect of the Software only (excluding any taxes) actually received by the Company or the Company’s Partner. You acknowledge and agree that the license fee paid by you reflects the allocation of risk set forth in this Agreement and that the Company would not enter into this Agreement without these limitations. You further agree that the limitations set out in this Agreement will apply notwithstanding the failure of the essential purpose of any limited remedy. You also acknowledge and agree that the fees, exclusions, disclaimers of warranties and limitations of liability and damages set forth in this Agreement are negotiated and agreed upon as essential components of this Agreement and the Company would not permit you to use of the Software and related services without such warranty, disclaimers, and limitations on its liability and damages. You agree that these disclaimers and limitations are not unconscionable. You hereby waive any and all claims against the Company, its affiliates, subsidiaries, and any related companies, the Company’s Partners, and the Company’s Representatives arising out of your use of the Software and related services including Support Services, or any conduct of the Company’s Partners, and the Company’s Representatives. Your sole and exclusive right and remedy in case of dissatisfaction with the Software or any other grievance shall be your termination and discontinuation of access to or use of the Software.
6.6 The Software and related services including Support Services are not designed or intended for use in life-dependent or hazardous environments in which the failure of the Software or service could lead to death, personal injury or physical or environmental damage. In no event shall the Company, its affiliates, subsidiaries, and any related companies, the Company’s Partners, and the Company’s Representatives be liable any bodily injury, loss of life, loss of property or any other accident that arise out of or is in any way connected with any use of the Software and related services.
6.7 All limitations and exclusions of liability, as well as indemnity stipulated under this Agreement are applicable to and are also stipulated for and on behalf of the Company’s Partners and the Company’s Representatives and other intermediaries and/or any other Person employed by it/them or delivering services to it/them, including within the framework of this Agreement.
7. INTELLECTUAL PROPERTY INFRINGEMENTS
7.1 In the event of a claim that the Software and/or Documentation, or the User’s permitted use thereof under this Agreement, infringes a third party’s Intellectual Property, proprietary or other right, or the Company believes that such claim is likely to arise, the Company shall have the right, at its sole option and expense to (i) procure for the User the right to continue using the affected Software and/or Documentation; (ii) replace or modify the affected part of the Software and/or Documentation so that it does not infringe; or (iii) terminate this Agreement. If the Company so terminates this Agreement, as the User’s sole remedy and the Company’s, the Company’s Partners, and the Company’s Representatives entire liability, the Company (or the Company’s Partners) will pay to the User, upon the User’s certified uninstallation and deletion of the Software, an amount equal to the license fee (excluding taxes) paid hereunder for the license in respect of the affected Software, prorated from the date of Use (including based on a straight line depreciation, as applicable), through the date the license is terminated over the original term of the license.
8. CONFIDENTIALITY
8.1 The User agrees to keep the Confidential Information of the Company confidential and not to disclose it to third parties, unless expressly otherwise agreed by a duly authorized representative of the Company. The User shall be entitled to disclose the Company’s Confidential Information only to those of its employees and personnel who have a reasonable need to know such Confidential Information for the purposes of this Agreement and provided the User has instructed such employees and personnel to keep the Confidential Information strictly confidential by using the same degree of care that it uses for its own confidential information and in no event, less than a reasonable degree of care. The provisions of this Paragraph 9 shall survive the termination of this Agreement for any reason.
9. PRIVACY AND DATA PROTECTION
9.1 The Company will collect, access, process and use your data in connection with your use of the Software and related services including the Support Services in accordance with applicable privacy and data protection laws. The Company’s privacy policy (the “Privacy Policy”) sets forth how the Company collects, uses, and protects any personal data which the User may provide to it. A copy of the Privacy Policy is available which is incorporated herein by reference and forms an essential part of this Agreement.
9.2 The Licensee shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and right to use Users Data, and Licensee agrees that the Company shall not be responsible or liable for the unauthorized access to, alteration of, or deletion, correction, destruction, corruption, damage, loss or failure to secure or store Users Data. The Licensee acknowledges and agrees that it bears sole responsibility for adequately controlling, processing, storing, and backing up its Users Data.
9.3 The Company reserves the right, but the obligation, to remove any information or materials, in whole or in part, that the Company believes to be unacceptable, undesirable, or in violation of this Agreement or the rights of third parties.
9.4 The Licensee represents, warrants, and covenant that: (i) it is the owner or authorized licensee of Users Data and has the right to grant the rights set forth herein; and (ii) it has obtained all consents and authorizations necessary under Applicable Law to disclose the Users Data to the Company, the Company’s Partners, and the Company’s Representatives.
9.5 To the extent your use of the Software requires it, you are responsible for providing notice to, and obtaining consents from, individuals regarding the collection, processing, transfer and storage of their data through your use of the Software.
10. TERM AND TERMINATION
10.1 Term: This Agreement and the license granted to you hereunder is effective from the date of your Use of the Product, until terminated in accordance with the terms of this Agreement.
10.2 Termination
10.2.1 You may stop using the Software at any time.
10.2.2 Your access to the Software will automatically terminate upon the completion of your period of subscription/license.
10.2.3 If we terminate this Agreement or your access to and use of the Software for reasons other than for cause, we will make reasonable efforts to notify you at least 30 (thirty) days prior to termination via the email address you provide to us with the required instructions.
10.2.4 We may, at any time, terminate your right to access to the Platform and Use of the Software if: (i) you breach any provision of this Agreement (or act in a manner that clearly shows you do not intend to, or are unable to, comply with the terms of this Agreement); (ii) you fail to make the timely payment of the license fees for the Software, if any; (iii) you physically, verbally, or through other means abuse, threaten, bully, or harass us or the Company’s Partners or the Company’s Representatives (in such circumstances, we may alternatively suspend or restrict your access to the Software); or (iv) you have repeatedly made complaints in bad faith or without a reasonable basis, and continue to do so after we have asked you to stop (in such circumstances, we may alternatively suspend or restrict your access to the Software).
10.2.5 The Company may terminate your right to Use any portion or all of the Software immediately if the Company determines that your Use of the Software: (i) poses a security risk to the Software or any third party; (ii) could adversely impact the Company’s or a third-party system, programs, or software; (iii) could subject the Company, its affiliates, or any third party to any liability; and/or (iv) could be fraudulent.
10.2.6 We may terminate this Agreement with immediate effect if any of the following events occur: (i) you make a general assignment for the benefit of creditors, or file a voluntary petition of bankruptcy, or become subject to any proceedings under any bankruptcy or insolvency law (whether domestic or foreign), or you have wound up or liquidated, voluntarily or otherwise; (iii) you have become insolvent or you cease or threaten to cease to carry on your business in the normal course; (iii) you suffer or permit the appointment of a receiver for your business or assets; or (iv) any other event analogous to those listed under (i) through (iii) occurs with respect to the User. The User shall promptly notify the Company in the event of the occurrence of any of the foregoing instances as per (i) through (iii).
10.2.7 We may, at any time, terminate your right to access and Use of the Software if we are required to do so by Applicable Law.
10.3 Consequences of Termination
10.3.1 Upon termination of this Agreement, or if the license ceases to be effective, any and all rights granted to the User will immediately be terminated and the Licensee shall immediately cease all use of all Software and return or (upon the Company’s request) destroy all copies of all Software and all portions thereof and so certify in writing to the Company.
10.3.2 Upon termination of your license, you shall destroy and remove from all computers, devices, equipment, and other storage media all copies of any intellectual property owned by the Company that you acquired through the Software.
10.3.3 Upon termination, all licenses, and any other rights and services provided by the Company (or the Company’s Partners) to the User shall cease immediately. Any such termination may result in the forfeiture and destruction of information associated with your Account.
10.3.4 Except as otherwise set forth hereunder or agreed with any User, any and all fees (if any) paid hereunder are non-refundable and any and all fees owed to the Company before such termination shall become immediately due and payable, including any liabilities that may have been incurred prior to termination such as, the Company’s costs for collection (including attorneys’ fees) of any such charges or other liabilities.
10.3.5 Termination of this Agreement, or any license, or User’s access to the Software shall not limit the Company from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve any User of its obligation to pay all fees that have accrued or are otherwise owed by such User.
10.3.6 The Company shall not be liable to the User for Losses of any kind solely as a result of terminating this Agreement in accordance with terms of this Agreement.
10.3.7 Termination of this Agreement by the Company shall be without prejudice to any other right or remedy that it may have under Applicable Law or in equity and shall not relieve the User of breaches occurring prior to the effective date of such termination.
10.4 Survival: All provisions of this Agreement (specifically the rights and obligations) which, by their nature should survive termination shall survive termination, including, without limitation, the provisions governing any licenses you have granted to us, ownership of intellectual property, warranty disclaimers, indemnity, limitation of liability and inspection and verification.
11. GOVERNING LAW, JURISDICTION AND DISPUTE RESOLUTION
11.1 This Agreement will be governed by the laws of India. Further, the courts of Bengaluru, Karnataka, India shall have exclusive jurisdiction for all matters arising out of or in connection with this Agreement and you agree to irrevocably submit to the exclusive jurisdiction of such courts.
11.2 The concerned parties shall amicably resolve any and all disputes arising out of or in connection with this Agreement, failing which the disputes shall be settled in accordance with provisions of the Arbitration and Conciliation Act, 1996. The parties will refer the dispute to a sole arbitrator to be appointed by the Company. Any arbitral award shall be final and binding on the parties. The venue and seat of the arbitration shall be Bengaluru, Karnataka, India. The language of arbitration shall be English. Regardless, the Company may seek interim injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of the Company’s Intellectual Property or proprietary rights.
12. MISCELLANEOUS PROVISIONS
12.1 Force Majeure: The Company shall not be liable to the User or any other Persons or be deemed to be in breach of this Agreement by reason of any delay or deficiency in performing, or any failure to perform, any of its obligations in relation to the Software or other obligations hereunder if the delay or deficiency or failure was due to Force Majeure.
12.2 Specific Relief: You acknowledge that your unauthorized use of the Software and/or the Company’s Intellectual Property will result in irreparable damage and injury to the Company and/or its affiliates or licensors for which money damages would be inadequate. Consequently, in the event of such unauthorized use, we, and our affiliates and/or licensors (as applicable) shall have the right, in addition to any other legal remedies available, to seek an immediate injunction against you prohibiting any further use of the Software and/or the Company’s Intellectual Property.
12.3 Feedback: The Company may, at its discretion, conduct a survey with its User either in person, or through any other mode or medium, electronic or otherwise, including through the tools available in Software tools or via email, SMS, phone calls or the mobile or other applications owned, licensed, or operated by the Company (whether now existing or hereinafter developed), to gain Feedback (as defined below) on the Software for the purposes of improving its product, services, and standards. You agree that the Company has the right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting you. For purposes of this Agreement, “Feedback” means and includes: (i) any suggestions, ideas or feedback on or for improving or otherwise modifying the Software; and (ii) any anonymized data about and derived from your Usage of the Software, problem resolution, troubleshooting, product functionality, enhancements and updates, of and relating to Software.
12.4 Marketing Activities: The Company may use the User’s name, photograph, likeness, logos, trademarks, service marks and brand names and refer to its relationship with the User in its business development and marketing efforts. For the foregoing purposes, the User hereby irrevocably, unconditionally and perpetually consents and authorizes and grants to the Company (without any further consideration whatsoever) the right to use, display, reproduce, transmit, exhibit, distribute, publicize and make any other uses (in whole or in part) of the User’s name, photograph, likeness, logos, trademarks, service marks and brand names on the Platform and in any other media now known or hereafter devised, throughout the world: (i) in connection with the User’s association with the Company; and (ii) in connection with the marketing, promotion, publicity, advertising, distribution or exploitation of the products and services of the Company.
12.5 Export and Government Restrictions: The User shall not export or re-export the Software in violation of any Applicable Laws. Moreover, if the User’s acquisition of the license of the Software is subject to any Applicable Laws, the User represents and warrants that it will comply with such Applicable Laws.
12.6 Electronic Signatures & Records: You agree to the use of electronic documents and records in connection with this Agreement and all future documents and records in connection with the Software and related services.
12.7 Governing Language: This Agreement is in the English language and you acknowledge that you fully understand the language and the content of this Agreement. You will, and may, not use any provision of any Applicable Laws to attempt to, or to invalidate this Agreement or any provisions hereof. If you prepare a version of this Agreement in a second language (“Second Language Version”), such Second Language Version is intended and permitted to be used only as a reference and convenience for you. If any difference in meaning or interpretation occurs between the language versions, the English language version shall prevail and govern in all respects.
12.8 Translations. The Company may provide local language translations of this Agreement in some locations. You agree that those translations are provided for informational purposes only and if there is any inconsistency, the English version of this Agreement will prevail.
12.9 Evidence: Subject to the Applicable Laws of evidence, you hereby agree not to object to admission of this Agreement as evidence in legal proceedings.
12.10 Proof: Any data in our systems can be used as proof for things that relate to your use of our Software and the Platform. This data can be used in legal proceedings, in the same way as any written document.
12.11 Third-Party Rights: Nothing in this Agreement is intended to confer any benefit on any third party or any right to enforce a term contained in this Agreement.
12.12 Covenant of Cooperation and Good Faith: You shall act in good faith in connection with this Agreement.
12.13 Representations: You represent and warrant to the Company that you have full authority to enter into this Agreement, that the execution and/or performance of this Agreement does not and will not violate or interfere with any other agreement by which the User is bound; and that the User will not enter into any agreement whose execution/performance would violate or interfere with this Agreement.
12.14 Further Assurances: You agree that you will, without any additional consideration, execute and deliver any further documents and instruments and perform any acts that are or may become necessary to effectuate the purposes of this Agreement.
12.15 Assignment: This Agreement is personal to you and is not assignable or transferable by you. We may assign, transfer, or delegate any of our rights and obligations hereunder to any Person without your consent.
12.16 Relationship of the Parties: Nothing contained in this Agreement shall be deemed or construed as creating a joint venture, partnership, agency, employment, or fiduciary relationship between you and the Company and a party has no authority of any kind to bind the other party in any respect whatsoever, and the relationship between you and the Company is, and at all times shall continue to be, that of independent contractors.
12.17 Independent Rights: Each of the rights of the Company are independent, cumulative and without prejudice to all other rights available to it under law, equity or otherwise, and the exercise or non-exercise of any such rights shall not prejudice or constitute a waiver of any other right by the Company, whether under this Agreement or otherwise. The rights of the Company with respect to any matter conferred under any provision of this Agreement shall be in addition to any other rights conferred under any other provision of this Agreement, in law or in equity.
12.18 Amendments: The Company reserves the right, in its sole discretion, to amend, change, modify, add, or remove portions of this Agreement at any time and from time to time and make such modified Agreement available to you through the Platform or through the Software, or both. Your use of the Software after modifications to the Agreement become effective constitutes your binding acceptance of such changes. If you do not agree to the Agreement as amended, you will be deemed to withdraw your acceptance of this Agreement, in which case you will need to uninstall and discontinue your use of the Software at that time.
12.19 Waiver: Failure of the Company to require performance of any provision of this Agreement shall not affect the Company’s right to full performance thereof at any time thereafter, and any waiver by the Company of a breach of any provision hereof shall not constitute a waiver of a similar breach in the future or of any other breach. No waiver shall be effective unless in writing and duly executed by an authorized representative of the Company.
12.20 Severability: If any provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future laws such provision shall be fully severable. Thereafter, this Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised a part of this Agreement and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid, or unenforceable provision or by its severance from this Agreement. Furthermore, in lieu of each such illegal, invalid, or unenforceable provision, we shall add as a part of this Agreement, a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable.
12.21 Entire Agreement: This Agreement constitutes the entire agreement between you and the Company related to the subject matter hereof.
12.22 Notices: Any notices, requests and other communications required or permitted hereunder to be provided by the User to the Company shall be in writing, in English language, and shall be given by hand against written acknowledgement or receipt, or sent by registered mail, or by email followed by a confirmation of receipt. All notices will be deemed to have been duly given when received by the Company. Unless otherwise specified in this Agreement, electronic notices should be sent to the Company at [email protected]. The Company will send its notices to the User by way of an email at the email address provided by the User.
If you have any questions or concerns regarding this Agreement, please contact us at [email protected]
India
Name: Baseer
Registered Address: #306, 2nd Floor, HRBR Layout, Poonam Chambers, Hennur Main Road,
3Rd Block, Near Hennur Bus Depot, Bengaluru, Karnataka 560043
Email: [email protected]
Contact Number: +91 84520 1207
US
Registered Address: 8655, Wilkerson ST. Arvada, CO 80007
Email: [email protected]
Contact Number: +91 84520 1207
