1. Services and Support
Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services. All capitalized terms used but not defined herein shall have the meanings as defined in the Order Form.
2. General Definitions
- “API” means any Application Programming Interface provided by Company used to access the Online Services.
- Your usage details such as time, frequency, duration and pattern of use, features used and the amount of storage used will be recorded by us in order to enhance your experience of the Our Company Services and to help us provide you the best possible service.“Customer Data” means any photograph, video, information, concept, application, file, text or such other material that is uploaded, or generated through use of the Online Services by Customer.
- “CSM” means Customer Support Manager.
- “Data Provider” means any individual (including a third party with whom You transact any business) who generates Customer Data that is uploaded, transmitted, dealt with or handled in any manner by Use of the Online Services.
- “Host” means any physical or virtual machine which is controlled by the Customer.
- “Hosting Server(s)” means those physical or virtual servers and other hardware and software that shall be used to host the Online Services, Customer Data or any other information as determined by Company in its sole discretion whether present in India or elsewhere.
- “Online Services” online services delivered by the Company via the web, using software that is owned by the Company.
- “Order Form” means an ordering document executed by the parties that specifies any Online Services, Training Services and Support Services purchased by Client under this Agreement. Each Order Form shall incorporate this Agreement by reference.
- “Professional Services” shall mean the professional services to be delivered by Company which are identified and described in Order Form or a Statement of Work.
- “Services” shall mean the Online Services and/or Professional Services identified in an Order Form or a Statement of Work, as applicable, to be delivered by Company hereunder.
- “Use”, “Using” or “Used” means to directly or indirectly activate the processing capabilities of the Online Services, load, execute, access, utilize, store, employ the Online Services or its functionalities including in relation to the Customer Data
- “Confidential Information” means any information disclosed by one Party to the other, which, (i) if in written, graphic, machine readable or other tangible form is marked “Confidential” or “Proprietary” or which, if disclosed orally or by demonstration, is identified at the time of disclosure as confidential; or (ii) by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as confidential. Notwithstanding any failure to so identify them, all Customer Data and the technology or proprietary information underlying the Online Services shall be deemed Confidential Information, and the existence of this Agreement shall be deemed Confidential Information.
3. Grant of License
The Company grants Customer, for the duration of the Term, a revocable, royalty free, non-exclusive, non-transferable, global, limited license to Use the Online Services. Customer may only Use the Online Services only if Customer has internet access in order to connect to the Hosting Server(s) on which the Online Services are hosted. The Hosting Server(s) may only be accessed by Customer through use of an API key provided to Customer by Company. Except for the limited license set out in this Agreement, Company grants Customer no other license or right in the Online Services.
4. Proprietary Rights and Non-Exclusivity
- Customer shall own all right, title and interest in and to the Customer Data. Company shall own and retain all right, title and interest in and to (a) the Online Services and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Professional Services, and (c) all intellectual property rights related to any of the foregoing.
- Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Online Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Online Services and for other development, diagnostic and corrective purposes in connection with the Online Services and other Company offerings, and (ii) disclose such data solely in aggregate or other anonymized form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
5. Ownership of Customer Data and Related Terms
- Customer represents and warrant that Customer owns or has sufficient rights in the Customer Data that Customer uses with the Online Services. Customer grants to Company a non-exclusive, limited, world-wide, fully-paid, royalty-free license to view, use, and copy the Customer Data solely to the extent necessary to support the purposes of this Agreement.
- Customer represents and warrants that Customer has the necessary authorization to collect and transmit the Customer Data (including authorization from the Data Provider in relation to any personally identifiable or biometric information of such Data Provider in a manner as prescribed under applicable law) to Company and for its use in relation to the Online Services and/or its storage on the Hosting Servers.
- Customer is solely responsible for any Customer Data uploaded or processed by Customer by Using the Online Services.
6. Restrictions and Responsibilities
- By Using the Online Services, Customer agrees not to directly or indirectly (i) Use the Online Services for any illegal purpose or in a manner that it violates any law or rights of any person or third party; (ii) permit Use of the same Online Services in a manner not authorised by this Agreement; (iii) disassemble, decompile, unlock, reverse engineer, or decode the Online Services in any manner or create any derivative works based of the Online Services; (iv) rent, lease or lend the Online Services or Use the Online Services for commercial timesharing or bureau use. You may not sublicense, assign or transfer the license or Online Services except as expressly provided in this Agreement; (v) copy any features, functions or user interfaces of the Online Services; (vi) knowingly introduce any malicious code, virus, malware, or any other material that disrupts, slows down or causes the Online Services to malfunction; or (vii) knowingly upload any Customer Data that is unlawful, harassing, threatening, harmful, tortious, defamatory, libelous, abusive, violent, obscene, vulgar, hateful, racially or ethnically offensive, or otherwise violative of applicable law.
7. Payment of Fees
- Customer will pay Company the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the limits as set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Service Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 30 days after receipt of the applicable invoice, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
- Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email).
- Customer shall not be responsible for the procurement or cost of materials.
- Customer agrees that the Fees and any other charges, rates or levy made by Company are exclusive of all applicable taxes. Customer acknowledges thatCustomer shall be responsible for all transaction taxes levied on Customer’s Use of the Online Services or receipt of the Online Services, including without limitation any sales tax, use tax, excise tax, value added tax (VAT), goods and services tax (GST), consumption tax, business tax, service tax, product sales tax and similar taxes.
8. Term and Termination
- Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least 30 days prior to the end of the then-current term.
- In addition to any other remedies it may have, either party may also terminate this Agreement upon 90 days notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
- Each Party (each a “Receiving Party”) agrees that it (i) shall use and reproduce the Confidential Information of the other Party (the “Disclosing Party”) only for purposes of exercising its rights and performing its obligations under this Agreement and only to the extent necessary for such purposes, (ii) shall restrict disclosure of such Confidential Information to the Receiving Party’s employees, consultants, or advisors who have a bona fide need to know for such purposes, and (iii) shall not disclose such Confidential Information to any third Party without the prior written approval of the Disclosing Party. Notwithstanding anything to the contrary herein. the Receiving Party shall exercise at least the same degree of care used to restrict disclosure and use of its own information of like importance, but not less than reasonable care. All third Parties to whom the Receiving Party discloses Confidential Information must be bound in writing by obligations of confidentiality and non-use at least as protective of such information as this Service Agreement. Notwithstanding the foregoing, it shall not be a breach of this Service Agreement for the Receiving Party to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has given the Disclosing Party prior notice and reasonable assistance to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure.
- Notwithstanding anything to the contrary herein, neither Party shall be liable for using or disclosing information that such Party can prove: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Receiving Party; (ii) was rightfully known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information; or (v) becomes rightfully known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of this Service Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights.
- The Receiving Party agrees that a breach of this Section 9 may result in immediate and irreparable harm to the Disclosing Party that money damages alone may be inadequate to compensate. Therefore, in the event of such a breach, the Disclosing Party will be entitled to seek equitable relief, including but not limited to a temporary restraining order, temporary injunction or permanent injunction without the posting of a bond or other security.
10. Warranties and Disclaimers
- Customer acknowledges that Company’s ability to perform the Services is dependent upon Customer’s responsibilities under this Agreement. Therefore, Company shall not be liable for its failure to perform any Services where such failure is related to Customer’s inability to perform under Section 5, after notice to Customer and reasonable opportunity to cure such failure.
- Company shall use 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. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Company 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 COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused Fees for the Services.
12. Limitation Of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON OR WILLFUL MISCONDUCCT, COMPANY AND ITS SUPPLIERS AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 3 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.Neither Party’s election not exercise or enforce any legal right or remedy which is contained in this Agreement, or any other agreement (or which a Party has the benefit of under any applicable law), shall not constitute a waiver of rights and that those rights or remedies will remain available to the Parties.
- If any term or provision of this Agreement is to any extent held to be invalid, illegal, or unenforceable by any court of competent jurisdiction, the remainder of this Agreement will not be affected thereby, and each term and provision of this Agreement will be valid and enforced to the fullest extent permitted by law.
- Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party. Any such attempted assignment or transfer without such prior written consent shall be null and void. Notwithstanding the forgoing, either party may assign this Agreement together with all rights and obligations hereunder, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sales of all or substantially all of its assets not involving a direct competitor of the other party.
- This Agreement will be governed by and construed in accordance with the laws of the state of California, U.S.A., without regard to California’s conflict-of-laws principles. The parties expressly disclaim the United Nations Convention on Contracts for the International Sale of Goods, and the provisions thereof will not govern this Agreement. The parties agree that any claim asserted in any legal proceeding by one party against the other will be commenced and maintained exclusively in state or federal court located within the state of California. Both parties hereby submit to the jurisdiction of such courts over each of them personally in connection with such litigation, and waive any objection to venue in such courts and any claim that such forum is an inconvenient forum.
- Customer agrees that the remedy at law for any breach or threatened breach of this Agreement by Customer would, by its nature, be inadequate, and that in that event will be entitled, in addition to damages, to a restraining order, temporary or permanent injunctive relief, specific performance, and other appropriate equitable relief, without showing or providing that any monetary damage has been sustained.
- All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
- The obligations in Sections 6, 7, 8, 9, 10, 11 and 12 will survive any expiration or termination of this Agreement.
- Please send any feedback and suggestions that You have for the Online Services to firstname.lastname@example.org. You agree that Company is at liberty to use and incorporate those feedback and suggestions in the Online Services without affecting its rights and title in the Online Services.