1.1. Company will provide the Customer and its affiliates the Services on a fully hosted basis and in accordance with any applicable law, this Agreement, and all Exhibits attached hereto. As part of the registration process, Customer will identify an administrative username and password for Customer’s Company account.
1.2. Subject to the terms hereof, Company will provide Customer with technical support services in accordance with Company’s standard practice and with the terms set forth in Section 10.
2.1. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); or remove any proprietary notices or labels.
2.2. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with the terms of this Agreement. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and by giving prior written notice of not less than seven (7) days, may prohibit any use of the Services that is in violation of the foregoing.
2.3. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non- public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). It is clarified that Customer Data can include without limitation personal data as identified under applicable law. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. If the Receiving Party is required to disclose Proprietary Information under a legal obligation the Receiving Party shall, to the extent legally permissible, provide the Disclosing Party with prompt notice of such request(s) so that the Disclosing Party may seek an appropriate protective order or other remedy and/or waive the non-disclosure obligations. In the event that such protective order or other remedy is not obtained, the Receiving Party may furnish only that portion of the Proprietary Information which the Receiving Party is legally compelled to disclose and will exercise reasonable efforts to obtain assurance that confidential treatment will be accorded to any such Proprietary Information so furnished.
3.2. Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services, during and after the term of this Agreement. During the term of the Agreement and thereafter, Customer shall own and retain all right, title and interest in and to (a) the Services, all improvements, enhancements or modifications thereto which have been made exclusively for Customer , (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support which have been solely and exclusively developed for Customer, and (c) all intellectual property rights related to any of the foregoing, except as mentioned in this clause.
3.3. Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the 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 Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.] No rights or licenses are granted except as expressly set forth herein.
4.1. Customer will pay Company the applicable fees along with statutory taxes described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees such as advertising (media buy), Custom development work (per the terms of this Agreement), Customer shall be billed for such usage on such terms and rates as mutually agreed by both Parties and Customer agrees to pay the additional fees in the manner provided herein. Company, upon prior written consent of the Customer, 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).
4.2. Company may choose to bill through an invoice, in which case, full payment for undisputed invoices issued must be received by Company thirty (30) days after the mailing date of the invoice. Customer shall be responsible for all taxes associated with Services.
5.1. Subject to earlier termination as provided below, this Agreement is for the Service Term as specified in the Order Form.
5.2. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of non- payment), if the other party materially breaches any of the terms or conditions of this Agreement. [Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days., but thereafter Company may, but is obligated to, delete stored Customer Data by providing prior written notice of not less than thirty (30) days to Customer.
5.3. 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.
Company shall use best efforts consistent with prevailing industry standards to maintain the Services in a manner which minimises errors and interruptions in the Services and shall perform the Implementation 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 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.
Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any patent or any copyright or any other third-party intellectual property right or misappropriation of any trade secret, breach of confidentiality, including Customer Data. 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) re- place 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 Service.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, GROSS NEGLIGENCE, INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, BREACH OF APPLICABLE LAW (INCLUDING ALL DATA PROTECTION LAWS), BREACH OF CONFIDENTIAlity OBLIGATION (INCLUDING PERSONAL DATA), COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT 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 UNDER TORT, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OF DATA OR CO S T O F 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 EITHER 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 12 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.EXCEPT FOR BODILY INJURY OF A PERSON, THE CUSTOMER OR ITS AFFILIATES SHALL NOT UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE COMPANY OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOST PROFITS, LOSS OF BUSINESS, LOSS OF GOODWILL OR DAMAGE TO REPUTATION ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT , WHETHER CAUSED BY BREACH OF WARRANTY, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE CAUSE OF ACTION, EVEN IF THE CUSTOMER IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. UNDER NO CIRCUMSTANCES WILL THE CUSTOMER OR ITS AFFILIATES TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAYABLE BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable by either party except with the other party’s prior written consent. Either party may transfer and assign any of its rights and obligations under this Agreement to its affiliates with prior notice to the other party. This Agreement and any exhibits attached hereto 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. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
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 recognised overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. The competent courts in the State of Delaware shall have the exclusive jurisdiction over any disputes arising in connection with this Agreement.
Company shall comply with all the applicable data protection laws and shall ensure that any personally identifiable information which has been shared by Customer shall be processed solely for the performance of its obligation under this Agreement. Such data shall not be shared with any sub-contractor of Company, unless Company has obtained prior written consent of the Customer. Company may, with the prior written consent of the Customer, share the data with 3rd party providers like data enrichment companies, ad exchanges. social media platforms for the delivery of account-based advertising service. The parties shall work together in good faith and Customer agrees to reasonably cooperate with Company to serve as a reference account upon request.
Company will provide Technical Support to Customer via both telephone and electronic mail on weekdays during the hours of 9:00 am through 6:00 pm IST, with the exclusion of National Holidays (“Support Hours”).
Customer may initiate a help desk ticket during Support Hours by emailing firstname.lastname@example.org
Company will respond to all Helpdesk tickets within one (1) business day.
The Services shall be available 99.9%, measured monthly, excluding holidays and weekends and scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. In connection with Service availability shall be that for each period of downtime Company will credit Customer 5% of Service fees for each period of 60 or more consecutive minutes of downtime. Downtime shall begin to accrue as soon as Customer (with notice to Company) recognises that downtime is taking place, and continues until the availability of the Services is restored. Customer may report the service unavailability incident via a help desk ticket by emailing email@example.com. The Company will duly update the Customer by replying to the same email id that was used to file the incident.