This End-User License Agreement (“EULA”) is a legal agreement between you and JPK Software Solutions Pvt. Ltd. [Website: https://www.visionhelpdesk.com]
This EULA agreement governs your acquisition and use of our Vision Helpdesk Software (“Software”) directly from JPK Software Solutions Pvt. Ltd. or indirectly through a JPK Software Solutions Pvt. Ltd. authorized re-seller or distributor (a “Reseller”).
Please read this EULA agreement carefully before completing the installation process and using the Vision Helpdesk software. It provides a license to use the Vision Helpdesk software and contains warranty information and liability disclaimers.
If you register for a free trial of the Vision Helpdesk software, this EULA agreement will also govern that trial. By clicking “accept” or installing and/or using the Vision Helpdesk software, you are confirming your acceptance of the Software and agreeing to become bound by the terms of this EULA agreement.
If you are entering into this EULA agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions. If you do not have such authority or if you do not agree with the terms and conditions of this EULA agreement, do not install or use the Software, and you must not accept this EULA agreement.
This EULA agreement shall apply only to the Software supplied by JPK Software Solutions Pvt. Ltd. herewith regardless of whether other software is referred to or described herein. The terms also apply to any JPK Software Solutions Pvt. Ltd. updates, supplements, Internet-based services, and support services for the Software, unless other terms accompany those items on delivery. If so, those terms apply.
GRANT OF LIMITED LICENSE
Subject to the terms and conditions of this EULA Agreement, JPK Software Solutions grants to you a non-exclusive, non-transferable, limited license to use the Software solely for the purpose of accessing and using the Service in accordance with these Terms and Conditions during the term of this Agreement. The Software and Service is provided on an “AS IS” and “AS AVAILABLE” basis. You agree not to do any of the following:
- Modify or create derivative copies of the Software Product.
- Modify or create derivative copies of the Software Product License.
- Copy the Software or its content.
- Translate the Software or its content.
- Reverse engineer (or make any attempt to discover the source code of the Software), disassemble, decompile, alter, duplicate, or make copies of the Software or the Service, or the VisionHelpdesk.com Web Site.
- Sublicense, rent, or lease any portion of the Software unless you are an authorized partner of VisionHelpdesk.com and then only pursuant to your Partners’ Agreement.
- Use the Software or the Service for unauthorized commercial purposes (that is, for the purpose of generating revenue from the Service itself) or for any purposes other than those set forth in this Agreement, unless you do so as an authorized partner of VisionHelpdesk.com pursuant to your Partners’ Agreement.
In case of Backup Copy of Software Product, you may make copies of Software Product as reasonably necessary for authorized use only, including as needed for backup and/or archival purposes. No other copies may be made. Each copy must reproduce all copyright and other proprietary rights notices on or in the Software Product.
In case of Backup Copy of Software Product License, you may install each Software Product License on a single domain name and make copies of the Software Product License as necessary only for backup and/or archival purposes. No other copies may be made. Each copy must reproduce all copyright and other proprietary rights notices on or in the Software Product License.
INTELLECTUAL PROPERTY AND OWNERSHIP
JPK Software Solutions Pvt. Ltd. shall at all times retain ownership of the Software as originally downloaded by you and all subsequent downloads of the Software by you. The Software (and the copyright, and other intellectual property rights of whatever nature in the Software, including any modifications made thereto) are and shall remain the property of JPK Software Solutions Pvt. Ltd..
JPK Software Solutions Pvt. Ltd. reserves the right to grant licences to use the Software to third parties.
Payment for the Software Product and/or Software Product License is on a pre-paid basis and is charged once each month in case of Vision Helpdesk Download Recurring License (unless otherwise specified in your payment terms). Similarly, for Vision Helpdesk Download One time License the payment is charged on a pre-paid basis.
IMPORTANT NOTICE: All Payments to VisionHelpdesk.com are Non-Refundable.
You are responsible for maintaining or providing us accurate billing information (Billing Contact Mail Address, Email Account, Phone, Fax number & “Payment Method”).
The accepted methods of payment are credit card (Visa, MasterCard, American Express, and Discover), PayPal, & Wire Transfer. Customers are responsible for any additional transaction fees that coincide with any payment methods. Wire transfers should be sent at least 7 days prior to the invoice due date to help ensure that the payment is received by VisionHelpdesk.com in a timely manner.
If for some reason you fail to pay the charges and/or the payment is not received by VisionHelpdesk.com, your use of the Software Product and/or Software Product License (“Account”) will be deactivated until receipt of the payment.
Your Software Product and/or Software Product License will be deactivated on accounts that reach past the due date. Accounts deactivated for any reason including non-payment, abuse, or requested cancellation is subject to a $25.00 reconnect charge.
VisionHelpdesk.com does not utilize paper or hard-copy invoices. All invoices are sent via email. Clients that normally pay via 2checkout.com/Credit Card and Paypal will have their invoices emailed, by default, 15 days prior to the invoice due date. Client can request these invoices to be sent prior to 15 days, but no more than 30 days, from the invoice due date.
This EULA agreement is effective from the date you first use the Software and shall continue until terminated. You may terminate it at any time upon written notice to JPK Software Solutions Pvt. Ltd.
It will also terminate immediately if you fail to comply with any term of this EULA agreement. Upon such termination, the licenses granted by this EULA agreement will immediately terminate and you agree to stop all access and use of the Software. The provisions that by their nature continue and survive will survive any termination of this EULA agreement.
DISCLAIMER OF WARRANTIES
The software product and/or software product license are provided “as is, as available” without warranty of any kind, either express or implied. Without limiting the foregoing, VisionHelpdesk.com specifically disclaims any and all warranties, including, but not limited to:
- any warranties concerning the availability, accuracy, security, usefulness, interoperability, or content of the software product and/or software product license; and
- any warranties of merchant-ability or fitness for a particular purpose. This disclaimer applies to any damages or injury caused by the software product and/or software product license, including without limitation as a result of any failure of performance, error, omission, interruption, deletion, defect, delay or error in operation or transmission, computer virus, communication line failure, theft or destruction or unauthorized access to, alteration of, or use of record. It is your sole responsibility to isolate the software product and/or software product license and execute anti-contamination software and otherwise take steps to ensure that software product and/or software product license or other information obtained from the service, if contaminated or infected, will not damage your information or system. VisionHelpdesk.com makes no warranty regarding any transactions entered into through the service. No advice or information, whether oral or written, obtained by you from VisionHelpdesk.com, shall create any warranty not expressly made herein. VisionHelpdesk.com assumes no responsibility for the deletion or failure to store, deliver or timely deliver any information, chat, records or email messages.
LIMITATION OF LIABILITY
In no event shall VisionHelpdesk.com, its officers, directors, employees, advisers, parents, subsidiaries, affiliates, agents, successors or assigns, be liable to any person
- for any indirect, special, punitive, incidental or consequential damages (including, without limitation, damages for loss of business profits, business interruption, loss of programs or information and the like), in any way arising out of the delivery, performance, or use of the software product and/or software product license or the service, even if VisionHelpdesk.com shall have been advised of the possibility of such damages, and regardless of the form of action, whether in contract, tort, or otherwise; or
- for any claim attributable to errors, omissions, or other inaccuracies in, or destructive properties of the software product and/or software product license, or any other software or other content. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, VisionHelpdesk.com liability shall be limited to the fullest extent permitted by law. You agree that in no event will VisionHelpdesk.com’s total liability exceed the total of the monthly fees, if any, paid by you for the service or software product and/or software product license during the 12-month period immediately preceding the alleged claim or alleged cause of action. If the service is provided at no charge to you, VisionHelpdesk.com shall have no liability whatsoever to you.
GENERAL CONDITIONS AND RESTRICTIONS
You agree to use the Software Product and/or Software Product License solely for your own personal or commercial use as an online communications platform.
While VisionHelpdesk.com strives to protect personal information and privacy, we cannot guarantee the security of any information you disclose online. You acknowledge by entering into this Agreement that you are aware of our limitations with respect to security and privacy. You agree to provide true, accurate, current and complete information as required by VisionHelpdesk.com. You agree not to transfer, assign, sub-license or resell the Software Product and/or Software Product License, in whole or in part, unless you are an authorized partner of VisionHelpdesk.com and only pursuant to a partners’ agreement entered into between you and VisionHelpdesk.com (“Partners’ Agreement”), and you further agree not to allow any third party unauthorized access to the Software Product and/or Software Product License. VisionHelpdesk.com may change the Terms and Conditions from time to time and at any time, with or without a release of a new version of the Software Product and/or Software Product License.
You agree to immediately notify us of any unauthorized use of the Software Product and/or Software Product License or any other breach of security known to or suspected by you. VisionHelpdesk.com assumes no responsibility for the deletion of or failure to store electronic messages, chat communications, or other information submitted by you or your clients using Software Product and/or Software Product License, whether submitted as part of the Service or otherwise. If you violate these Terms and Conditions, you may be permanently or temporarily banned from using the Service and Software Product and/or Software Product License, at VisionHelpdesk.com’s sole discretion. By way of example but not limitation, VisionHelpdesk.com reserves the right to terminate this Agreement at any time if VisionHelpdesk.com determines, in its sole discretion, that your site or activities are unsuitable for the Service. “Unsuitable” sites or activities may include, without limitation, those sites that VisionHelpdesk.com believes:
- display or promote obscene, indecent, pornographic or sexually explicit activities;
- promote abusive, threatening, hateful, harmful, harassing, libelous or violent behavior;
- promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
- promote illegal activities or fail to comply with applicable law; or
- Violate the intellectual property rights of third parties.
Requests for cancellation must be submitted by sending email to firstname.lastname@example.org A billing representative will contact you further to confirm cancellation.
Refund and Disputes: All Payments to VisionHelpdesk.com are Non-Refundable. This includes the license fee and subsequent charges regardless of usage. No refunds shall be issued for partial use or non-use of the Service(s) by You.
All overcharges or billing disputes must be reported within 30 days of the time the dispute occurred Subscription PayPal payments that are not cancelled at the time of your account cancellation will be refunded less any fees and the subscription payment will be cancelled by the VisionHelpdesk.com.
Download / On Premises License: We do not offer refund for “Vision Helpdesk Download Recurring or Onetime Licenses.” If you are unsure if the Software Product will run on your system, please download the 30 days free trial for our software, install and evaluate the product on your server before purchase.
A chargeback fee of $75.00 will be assessed for each credit card chargeback against VisionHelpdesk.com. Please note that your account will be terminated until the chargeback is resolved. If the chargeback is not resolved, you will be banned from buying services from VisionHelpdesk.com.
This EULA agreement, and any dispute arising out of or in connection with this EULA agreement, shall be governed by and construed in accordance with the laws of India.
If you have any questions about this EULA and/or terms and conditions please email us at: email@example.com
These Terms of Services define the terms by which subscribers may use the software platform and the accompanying software services and are an agreement between you (the “Subscriber’) and JPK Software Solutions Pvt. Ltd. (the “Company”), who may each individually be referred to as a ‘Party” or collectively as the “Parties.” By subscribing to use the software platform and the software services, you expressly acknowledge that you have read, accept, and agree to be bound by these Terms of Service, as well as any applicable laws hereunder. You should not enter into a subscription to use this software platform and the software services, if you do not agree to these Terms of Services.
Company may modify these Terms of Services at any time in its sole discretion, and any amendments will apply upon thirty (30) days prior written notice. Your continued use of the software platform and software services after any amendments shall signify your acceptance of the amendments. You should return to this page from time to time in order to ensure that you are aware of any updated terms.
For the Trial Period, Term, or any Renewal Term as defined in Section 6 below, Company grants to Subscriber the non-exclusive, non-transferable right to permit Authorized Users as listed in the applicable online order form (“Order Form”) and End Users to access, use, display, and run the Software Services. For the purpose of this Section, “Authorized User” shall be defined as any individual authorized by Subscriber to register a staff account identified through a unique login as a helpdesk staff member and/or administrator. “End User” shall be defined as any individual who seeks to interact with Subscriber or an Authorized User through the Software Services. “Software Service(s)” shall be defined as the Software Platform and any related services further described in Section 3 below, which are made available by Company to Subscriber. “Software Platform” shall be defined as the then-current version of the software solution developed and hosted by Company for use by Subscriber, along with any updates, upgrades, modifications, or improvements made available thereto.
Adding Authorized Users. In the event that Subscriber seeks to add additional Authorized Users beyond the number of Authorized Users listed in the applicable order form during the Term or Renewal Term, the additional Authorized Users required may be purchased for an additional subscription fee, which shall be pro-rated by the number of days remaining in the applicable Term or Renewal Term as defined below. Subscriber shall have the right to assign and reassign Authorized Users in its sole and absolute discretion.
Decreasing Authorized Users. Subscriber may not decrease the designated number of Authorized Users until the expiration of the current Term or Renewal Term as defined below. In the event Subscriber seeks to decrease the designated number of Authorized Users upon renewal, Subscriber shall provide to Company a written notice of its request at firstname.lastname@example.org at least thirty (15) days prior to the expiration of the then- current Renewal Term.
Ownership of Software Platform: Subscriber acknowledges and agrees that no title to the intellectual property in the Software Platform is transferred to Subscriber under this Agreement. Subscriber further acknowledges that all right, interest, title and full ownership rights to the Software Platform and all intellectual property rights therein will remain the exclusive property of Company and its licensors. Subscriber agrees not to remove any trademark, copyright, or other proprietary notices on the knowledge base as delivered, and to reproduce all such notices on and in all authorized copies.
Restrictions: Subscriber may not share, distribute, resell, rent, lease, sublicense, transfer, create derivative works of the Software Platform, or otherwise permit any unauthorized third party to access, use, or display the Software Platform. The Software Services and the Software Platform contain Company’s trade secrets, and in order to protect those trade secrets, Subscriber agrees not to take any action to reverse engineer, compile, translate, disassemble, copy, or create derivative works of the, Software Services or Software Platform in whole or in part, nor to permit any third party to do so. Any use of the Software Services or Software Platform by Subscriber that exceeds the scope of the subscription shall constitute a material breach of the subscription.
Ownership of Logos and Trademarks: Subscriber acknowledges and agrees that Company owns all right, title, and interest in the logos and trademarks used by Company in conjunction with the marketing and advertising of the Software Platform and Software Services, and that no right to use any such logos and trademarks is granted herein.
Ownership of Content: Subscriber acknowledges and agrees that Company owns all right, title, and interest in any text, images, other content that Company incorporates into the Software Platform (the “Content”), and any improvements or derivative works made thereto of such Content.
Ownership of Data: Subscriber shall retain all right, title, and interest in any data (i) imported into the Software Platform by Subscriber, Authorized Users, End Users or (ii) generated by Subscriber or Authorized Users from the Software Services (collectively, the “Data”).
SOFTWARE SERVICES MADE AVAILABLE TO SUBSCRIBER
Core Software Services: During the Trial Period, Subscriber and Authorized Users shall have option to select trial for respective products with complete functionality as is further described at https://www.visionhelpdesk.com/pricing During the Term and any Renewal Term, Subscriber and Authorized Users shall have access to the functionality comprising the plan selected in the Order Form (the “Designated Plan”), as well as any and all improvements, updates, or enhancements released thereafter as they are made available to subscribers. Company’s products and plan options currently made available to subscribers are further described at https://www.visionhelpdesk.com/pricing Company reserves the right to restrict the functionality of its core Software Services made available to Subscriber at any time upon prior written notice in its sole and absolute discretion.
Data Hosting: Company offers multiple location (U.S. Europe and U.K. data center) option for you to select while signing up for Vision Helpdesk SaaS trial and paid license. For the avoidance of doubt, if Subscriber designates the U.S. data center location, then all Subscriber data shall remain at all times at the U.S. data center location; in contrast, if Subscriber designates the alternative E.U. data center location then all Subscriber data shall remain at all times at the E.U. data center locations and so on. Company shall make commercially reasonably efforts to maintain the availability of the Software Platform on a twenty-four (24) hour basis, seven (7) days a week, excluding (i) planned downtime for upgrades and maintenance (of which Company will use commercially reasonable efforts to provide advance notice)(“Scheduled Downtime”) and (ii) for any unavailability caused by circumstances beyond our reasonable control, including for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike, or other labor problem (other than one involving Company employees), Internet service provider failure or delay, or acts undertaken by third parties, including without limitation, a denial of service attack. Further read our Data Hosting Policy.
Technical Support Services: Company makes available to Subscriber Standard technical support services via e-mail and live chat on a twenty-four (24) hour, seven (7) days a week basis. For further details please refer our Technical Support Policy.
Routine Back-Up and Disaster Recovery Services: Company maintains regular daily off-site, In addition to its routine backups, Company provides disaster recovery backup services in accordance with its business continuity plan currently in effect. Company shall make commercially reasonable efforts to maintain and test the consistency of these backups; notwithstanding the foregoing, however, Subscriber acknowledges and agrees that Company shall have no responsibility for the failure of any back-up or disaster recovery service. For further details please refer our Backup Policy.
Transitioning Services: During the Term and any Renewal Terms, Company will make available to Subscriber upon request a copy of Subscriber’s Data. All such copies of Data will be provided in MySql dump format and attachments folder in zip format.
Professional and Training Services: Company makes available to Subscriber both professional services and training services for an additional charge by separate agreements.
SUBSCRIBER, AUTHORIZED USER, AND END USER OBLIGATIONS
Maintain Security of Login IDs and Passwords: Subscriber, Authorized Users and End Users shall be solely responsible for maintaining the security of all login IDs and passwords and refraining from sharing such information with third parties.
Data Restrictions: Subscriber, Authorized Users and End Users shall refrain from importing personal health information (“PHI”), social security numbers, and credit card numbers into the Software Platform.
Competition Restrictions: Subscriber, Authorized Users and End Users acknowledge and agree that direct competitors are expressly prohibited from accessing the Software Services, except with Company’s prior written consent. Such prohibition includes but not limited to access for monitoring performance, availability, functionality, or benchmarking for competitive purposes.
Acceptable Use: Subscriber, Authorized Users and End Users shall be solely responsible for fully complying with the following Terms and Conditions:
No Illegal, Harmful, or Offensive Use or Content Subscriber, Authorized Users and End Users shall refrain from encouraging, promoting, facilitating or instructing others to use the Software Services for any illegal, harmful, fraudulent, infringing or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, fraudulent, infringing or offensive. Prohibited activities or content include:
- Illegal, Harmful or Fraudulent Activities: Any activities that are illegal, that violate the rights of others, or that may be harmful to others, our operations or reputation, including disseminating, promoting or facilitating child pornography, offering or disseminating fraudulent goods, services, schemes, or promotions, make-money-fast schemes, ponzi and pyramid schemes, phishing, or pharming.
- Infringing Content: Content that infringes or misappropriates the intellectual property or proprietary rights of others.
- Offensive Content: Content that is defamatory, obscene, abusive, invasive of privacy, or otherwise objectionable, including content that constitutes child pornography, relates to bestiality, ordepicts non – consensual sex acts.
- Harmful Content: Content or other computer technology that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, or data, including viruses, Trojan horses, worms, time bombs, or cancelbots.
No Security Violations Subscriber, Authorized Users and End Users shall refrain from using the Software Services to violate the security or integrity of any third party network, computer or communications system, software application, or network or computing device (each, a “System”). Prohibited activities include:
- Unauthorized Access: Accessing or using the System without permission, including attempting to probe, scan, or test the vulnerability of the System or to breach any security or authentication measures used by the System.
- No E-Mail or Other Message Abuse: Subscriber, Authorized Users and End Users shall refrain from distributing, publishing, sending, or facilitating the sending of unsolicited mass e-mail or other messages, promotions, advertising, or solicitations (like “spam”), including commercial advertising and informational announcements. For the avoidance of doubt, this specifically includes refraining from altering or obscuring mail headers or assuming a sender’s identity without the sender’s explicit permission. Neither Subscriber nor Users will collect replies to messages sent from another internet service provider if those messages violate this policy or the acceptable use policy of the applicable provider.
- No Processing Data on Behalf of a Third Party: Subscriber, Authorized Users and End Users shall refrain from using the Software Services to process data on behalf of any third party.
- No Using the Software Services to Discover the Source Code: Subscriber, Authorized Users and End Users shall refrain from using the Software Services to attempt to decipher, decompile, reverse engineer, or otherwise discover the source code of the software comprising the Software Platform.
- No Using the Software Services to Store or Transmit Protected Health Information: Subscriber, Authorized Users and End Users shall refrain from using the Software Services to store or transmit protected health information as the term is defined in 45 C.F.R. 160.103.
No Use of Automated Systems Subscriber, Authorized Users and End Users shall refrain from using or launching any automated system that accesses the Software Services in a manner that sends more request messages to the server in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser.
- No Use of Software Services for Multiple Parties Subscriber, Authorized Users and End Users shall refrain from using the Software Services to provide customer service, support, or other outsource business process services to more than one third party (other than affiliates) through a single account.
- Use of API Subscriber, Authorized Users and End Users shall adhere to any and all restrictions and policies relating to the API as communicated by Company in writing.
- Monitoring and Enforcement: Company reserves the right, but does not assume the obligation, to investigate any violation of or misuse of the Software Services. In particular, Company agrees to: a) Investigate violations of this acceptable use policy or misuse of the Services.b) Remove, disable access to, or modify any content or resource that violates this Policy or any other agreement that Company has with Subscriber or any User for use of the Software Services.
- Reporting Company shall have the right to report any activity that Company suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Company’s reporting may include disclosing appropriate customer information. Company also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of this acceptable use policy.
If Subscriber or Authorized Users or End Users become aware of any violation of this Policy, such party will immediately notify Company and provide Company with assistance, as requested, to stop or remedy the violation.
FEES AND PAYMENTS
Software Service Subscription Fee’s: During the Term and any Renewal Term(s), Subscriber shall pay to Company the Software Service subscription fees applicable to the Designated Plan and designated number of Authorized Users as set forth in the Order Form, If at any time during a Term or Renewal Term, Subscriber adds new Authorized Users or upgrades to a new plan then Subscriber will pay a pro-rated fee for the additional subscription fees incurred for the remainder of the Term or applicable Renewal Term.
Billing Information: You are responsible for maintaining or providing us accurate billing information (Billing Contact Mail Address, Email Account, Phone, Fax number & “Payment Method”). The accepted methods of payment are credit card (Visa, MasterCard, American Express, and Discover), PayPal, & Wire Transfer. Customers are responsible for any additional transaction fees that coincide with any payment methods. Wire transfers should be sent at least 7 days prior to the invoice due date to help ensure that the payment is received by VisionHelpdesk.com in a timely manner.
If for some reason you fail to pay the charges and/or the payment is not received by VisionHelpdesk.com, your use of the Software Product and/or Software Product License (“Account”) will be deactivated until receipt of the payment. Your Software Product and/or Software Product License will be deactivated on accounts that reach past the due date. Accounts deactivated for any reason including non-payment, abuse, or requested cancellation is subject to a $25.00 reconnect charge.
IMPORTANT NOTICE: All Payments to VisionHelpdesk.com are Non-Refundable.
We offer 30 days free trial for our software products with all features that you will receive in paid license. Please evaluate our products to make sure it satisfies your company requirements and then only purchase a paid license.
TERM AND TERMINATION
Term. The trial subscription commences on the date Subscriber signs up for a trial subscription and expires thirty (30) days thereafter (“Trial Period”). Upon submission of an Order Form, the subscription shall commence on the effective date designated therein (the “Effective Date”) and shall remain in effect during the subscription period indicated on the Order Form (the “Term”). Subscriber shall have the option of designating a monthly subscription period or an annual subscription period in its sole and absolute discretion. Upon expiration of the Term, the subscription will automatically renew for successive subscription periods (if you have set PayPal or Credit Card auto subscription) else you should receive a invoice which you can pay online manually, unless either Company or Subscriber provides prior written notice of its intent to terminate, at least thirty (15) days prior to the expiration of the then-current Renewal Term.
Termination at Will: Subscriber shall have the right to terminate at will during the Term or any Renewal Term for any reason at the sole and absolute discretion of Subscriber upon thirty (30) days’ prior written notice to Company. Subscriber shall have the right to terminate without notice during the Trial Period for any reason at the sole and absolute discretion of Subscriber.
Termination for Breach of Acceptable Use Policy Requirement: Company shall have the right to immediately terminate the subscription upon notice to Subscriber during the Trial Period, Term, or Renewal Term, upon any Subscriber, Authorized User, or End- User breach of Section 4(d).
Termination for Other Material Breach: Either Company or Subscriber may terminate the Term or any Renewal Term for material breach in the event that the other Party materially breaches any term or condition of these Terms of Service and fails to cure such breach within thirty (30) days prior written notice to the breaching Party of the breach and its intent to terminate and the breaching Party’s failure to cure during the thirty (30) day period. Upon any termination of the Term or Renewal Term for material breach, Company shall have the right to immediately suspend the performance of all Services.
Suspension of Services; Survival Clauses: Upon any expiration or termination of the Agreement, Company shall have the right to immediately and permanently suspend the performance of all Services. The following Terms of Services shall survive any expiration or termination of a subscription or renewal subscription until such time as they are exhausted: Sections 2 (a-e), 5 (a-c), 6 (e, g), 7, and 9-10.
Force Majeure: The failure of either Party to perform any obligation by reason of “acts of God,” acts of governments, terrorism, riots, wars, accidents, or deficiencies in materials or transportation, or other causes of any nature beyond its control shall not be deemed to be a breach of these Terms of Service, provided that the nonperforming or delayed Party provides to the other Party written notice of the existence and nature of such reason for the nonperformance and delay, and resumes performance immediately upon the elimination of the relevant force majeure. In the event that the force majeure event continues for more than thirty (30) days, then the non-delayed Party may terminate the subscription.
Data Expungement following Expiration of Termination: Company shall immediately delete any and all Data following the expiration or termination of the subscription.
During the Trial Period, Term, or Renewal Term, and for a period of five (5) years thereafter, Company and Subscriber may each disclose certain Confidential Information to the other Party. Company and Subscriber shall each refrain from using or exploiting any and all Confidential Information of the other Party for any purposes or activities other than those specifically authorized in these Terms of Service. Company and Subscriber each represent and warrant that they will each hold Confidential Information in confidence and protect Confidential Information to the same extent and by the same means they each use to protect the confidentiality of their own proprietary or confidential information that they do not wish to disclose. Neither Company nor Subscriber shall disclose or facilitate disclosure of Confidential Information of the other Party to anyone except its employees, independent contractors, vendors, or affiliates who have a “need to know such information.” Company and Subscriber shall each ensure that the employees, independent contractors, vendors, or affiliates to whom the Confidential Information is disclosed comply with their obligations under this Section 7 with respect to the Confidential Information. All Confidential Information made available hereunder, including copies thereof, shall be returned to the disclosing Party or shall be certified as destroyed at the request of the disclosing Party.
For the purposes of this Section, “Confidential Information” shall be defined as all of the proprietary, non-public information of either Party disclosed pursuant to or in furtherance of this Agreement, including but not limited to all Technical Information and any information relating to Data and future enhancements and improvements. Notwithstanding the foregoing, “Confidential Information” shall not include any information, that the recipient can demonstrate through its records (i) was in its knowledge or possession prior to disclosure by the discloser, (ii) was in the public domain at the time of disclosure or subsequently entered the public domain through no fault of recipient, or (iii) was disclosed to recipient by a third party with the right to make such a disclosure. “Technical Information” shall be defined as all proprietary or non- public information, know-how, trade secrets, data, materials, inventions, source code, or discoveries owned by company that are necessary or useful to the Software Platform and are in the possession of Company as of the Effective Date.
THE SOFTWARE PLATFORM, APPLICATION AND THE SOFTWARE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. USE AND RELIANCE ON THE SOFTWARE PLATFORM, APPLICATION, AND THE SERVICES ARE AT SUBSCRIBER’S OWN RISK. COMPANY EXPRESSLY DISCLAIMS ANY WARRANTY THAT USE OF THE SOFTWARE PLATFORM OR ACCESS TO THE SERVICES WILL BE CONTINUOUS, UNINTERRUPTED, BUG-FREE, ERROR-FREE, VIRUS-FREE, FREE OF DEFECTS, OR FREE OF TECHNICAL PROBLEMS; THAT THE SOFTWARE SERVICES WILL MEET ALL OF SUBSCRIBER’S NEEDS; THAT THE DATA UPLOADED TO THE SOFTWARE PLATFORM WILL BE COMPLETELY SECURE FROM THIRD PARTIES AND WILL NEVER BE SUBJECT TO ANY LOSS; OR THAT ANY PARTICULAR BACKUP MADE BY THE COMPANY WILL BE VIABLE. COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, GUARANTEES, OR REPRESENTATIONS WITH RESPECT TO THE SOFTWARE PLATFORM AND THE SOFTWARE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE OR SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, OR ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. COMPANY DOES NOT WARRANT THAT ALL ERRORS, BUGS, OR DEFECTS CAN OR WILL BE CORRECTED OR THAT THE SOFTWARE PLATFORM OR SERVICES WILL OPERATE BUG-FREE, ERROR-FREE, CONTINUOUSLY, OR UNINTERRUPTED.
Consequential Damages. NEITHER COMPANY NOR SUBSCRIBER SHALL IN ANY EVENT BE LIABLE TO EACH OTHER FOR ANY CONSEQUENTIAL, PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOSS OF DATA OR PROFITS, LOSS OF BUSINESS OPPORTUNITIES, COSTS OF PROCUREMENT OR REPLACEMENT GOODS AND SERVICES, COVER, OR RELIANCE DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE OR THE DELIVERY, USE, PERFORMANCE, OR INTERRUPTION OF THE SOFTWARE PLATFORM OR THE SOFTWARE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, THIRD PARTY CLAIMS, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES AGREE THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS OF SERVICE IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CONSEQUENTIAL DAMAGES; THIS SECTION APPLIES ONLY TO THE EXTENT AVAILABLE BY APPLICABLE LAW.
Limitation of Liability: Except for indemnification by Subscriber, each Party’s cumulative liability to the other Party from all claims and under all theories of liability shall be limited to the total amount of all subscription fees paid by Subscriber to Company in the twelve (12) month period immediately preceding the events from which arose the claim. This limitation shall apply notwithstanding the failure of the essential purpose of any remedy there under.
- Subscriber Indemnification: Subscriber shall indemnify, defend, and hold Company and its affiliates and their vendors, officers, employees, independent contractors, representatives, and agents harmless for any loss, liability, damage, or expense (including reasonable attorneys’ fees) arising from (A) any acts or omissions by Subscriber or an Authorized User; (B) any misappropriation of trade secrets by Subscriber or an Authorized User; or (C) any infringement by Subscriber or Authorized User of intellectual property in the Software Platform, the logos or trademarks, or the Content.
- Company Indemnification: Company shall indemnify, defend, and hold Subscriber, Authorized Users, and their officers, employees, independent contractors, representatives, and agents harmless for any loss, liability, damage, or expense (including reasonable attorney’s fees) arising from any infringement of third party copyright or patent rights.
- Indemnification Requirements: If either Party seeks indemnification pursuant to this Section 9(c), such Party shall (A) promptly notify the indemnifying Party in writing of the claim; (B) provide the indemnifying Party sole control of the defense and settlement; and (C) provide all reasonable assistance requested by the indemnifying Party in the defense and settlement of the claim.
- Entire Understanding: These Terms of Service contain the entire understanding of the Parties with respect to the subject matter contained herein, and shall supersede all prior agreements and understandings, whether written or oral.
- Governing Law: These Terms of Service and any dispute or claim arising out of, or related to them, shall be governed by and construed in accordance with the internal laws of the India without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of, or related to, these Terms of Service or the Website shall be instituted exclusively in the federal courts of India.
- Severance: If any provision of these Terms of Service is held unenforceable or in conflict with the law of any jurisdiction, the validity of the remaining provisions shall not be affected by such holding. The Parties agree to negotiate and amend in good faith such provision in a manner consistent with the intentions of the Parties as expressed in the Terms of Service if any invalid or unenforceable provision affects the consideration of either Party.
- Modifications: These Terms of Service may be modified at any time and will become effective with respect to a then-existing subscription upon thirty (30) days prior written notice to Subscriber.
- Assignment: These Terms of Service shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. Neither Party may assign any subscription or renewal subscription to a third party without the prior written consent of the other Party, except that each Party may transfer the Terms of Services of a subscription or renewal subscription to a successor in the event of a merger or a acquisition of all or substantially all of such Party’s assets; provided, however, that such transfer may only occur if the assignee in each case agrees to be bound by each of the Terms of Services set forth in the Terms of Service.
- Notices: All notices provided in connection with the Terms of Service will be in writing, and will be delivered by (i) certified or registered mail, postage prepaid and return receipt requested or (ii) courier and will be deemed effective upon receipt by the authorized representative in the case of Subscriber at Subscriber’s address listed on the Order Form or in the case of Company at Company’s address at 2nd Floor, Gajra Chambers, Kamod Nagar, Mumbai Agra Road, Nashik – 422009 MH, India., or at such other addresses as the Parties may designate by written notice to each other.
- Waiver: No waiver by either Party of any breach of these Terms of Service, no matter how long continuing or how often repeated, shall be deemed a waiver of any subsequent breach thereof, nor shall any delay or omission on the part of either Party to exercise any right, power, or privilege here under be deemed a waiver of such right, power, or privilege.
- Conflict: In the event of any conflict between the Terms of Services of this Terms of Service and the terms of any wdeeb page incorporated into this Terms of Service, the terms of this Terms of Service shall be controlling.