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Terms Of Service

Welcome to Betaout, Inc (the "Company"). The Company Services (as defined below) available through the Company website available at www.betaout.com (the “Website”) is an online platform that provides marketing and customer engagement software to our customer . By using the Services, you personally, or if on behalf of the entity entering into this Agreement, that entity (you and the entity, each a “Customer”) agree to and are subject to the following terms and condition for the Services (the “Agreement”). If you do not fully agree to the terms of this Agreement, you are not authorized to access or otherwise use the Services. If the parties have entered into a written and pen-signed license agreement regarding the subject matter hereof, that agreement will supersede this Agreement to the extent of any conflict.

Content

Clause

Schedule

SCHEDULE 1Subscription Fees
THIS AGREEMENT commences on the effective date
Parties
  • Betaout, Inc, a company incorporated under the laws of Delaware, having its registered office at 2711 Centerville Road, Suite 400, Wilmington, County of New Castle, Delaware, 19808 . Company
  • AND
  • You personally, or if on behalf of the entity entering into this Agreement, that entity (you and the entity, each a “Customer”)
Background
  • (A)The Company has developed certain software applications and platforms which it makes available to Customer via the internet on a pay-per-use basis for the purpose of online marketing personalization.
  • (B)The Customer wishes to use the Company’s service in its business operations.
  • (C)The Company has agreed to provide and the Customer has agreed to take and pay for the Company’s service subject to the terms and conditions of this agreement.
Agreed terms
  • 1.INTERPRETATION
  • 1.1
    The definitions and rules of interpretation in this clause apply in this agreement.
    Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 2.2(d).
    Billable Users: those Users which have been identified by the Customer through their Email and for which Company charges Customer fees as set forth at http://www.betaout.com/pricing.
    Business Day: any day which is not a Saturday, Sunday or public holiday in India.
    Change of Control: the direct or indirect acquisition of either the majority of the voting stock, or of all, or substantially all, of the assets, of a party by another entity in a single transaction or a series of transactions.
    Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.5.
    Customer Data: the data inputted by the Customer, Authorised Users, or the Company on the Customer's behalf for the purpose of using the Services or facilitating the Customer’s use of the Services. Customer Data does not include any user content uploaded to or created by users utilizing Company’s products or services.

    “Reports” means the reports, charts, graphs and other presentation in which the Results are presented to Customer; “Report Formats” means the formatting, look and feel of the Reports; and

    “Results” means the work products resulting from the Service that are delivered to Customer by Company through the Service, and which are based on the Customer Data. For the sake of clarity, Results shall expressly exclude all Background Materials.

    Documentation: the document made available to the Customer by the Company online via https://www.betaout.com/learn/product-guide/ or such other web address notified by the Company to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.
    Effective Date: the earlier of the date Customer accepts this Agreement or first uses the Services
    Initial Subscription Term: the initial term of this agreement as set out in Schedule 2.
    Normal Business Hours: 9.00 am to 6.00 pm local India time, each Business Day.
    Renewal Period: the period described in clause 13.1.
    Services: the subscription services provided by the Company to the Customer under this agreement via WWW.BETAOUT.COM or any other website notified to the Customer by the Company from time to time, as more particularly described in the Documentation.
    Software: the online software applications provided by the Company as part of the Services.
    Subscription Fees: the subscription fees payable by the Customer to the Company for the User Subscriptions, as set out in paragraph 1 of Schedule 1.
    Subscription Term: has the meaning given in clause 13.1.
    Support Services Policy: the Company's policy for providing support in relation to the Services as made available at WWW.BETAOUT.COM or such other website address as may be notified to the Customer from time to time.
    User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 9.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this agreement.
    Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
  • 1.2Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
  • 1.3A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) [and that person's legal and personal representatives, successors or permitted assigns].
  • 1.4Words in the singular shall include the plural and vice versa.
  • 1.5A reference to one gender shall include a reference to the other genders.
  • 1.6A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
  • 1.7A reference to writing or written includes faxes but not e-mail.
  • 1.8References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.
  • 2.USER SUBSCRIPTION
  • 2.1 Subject to the Customer purchasing the User Subscriptions in accordance with Schedule 1 the restrictions set out in this clause 2 and the other terms and conditions of this agreement, the Company hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer's internal business operations.
  • 2.2 In relation to the Authorised Users, the Customer undertakes that:
    • (a)the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
    • (b)each Authorised User shall keep a secure password for his use of the Services and Documentation, that each Authorised User shall keep his password confidential;
    • (c)it shall maintain a written, up to date list of current Authorised Users and provide such list to the Company within [5] Business Days of the Company’s written request at any time or times;
  • 2.3 In relation to the Billable Users, the Customer undertakes that:
    • (a)it shall permit the Company to audit the Services in order to establish the correct number of Billable Users. Such audit may be conducted such a manner as not to substantially interfere with the Customer's normal conduct of business;
    • (b)if any of the audits referred to in clause 2.3(a)reveal that the Customer has underpaid Subscription Fees to the Company, the Customer shall pay to the Company an amount equal to such underpayment as calculated in accordance with the prices set out in paragraph 1 of Schedule 1 within [10] Business Days of the date of the relevant audit.
  • 2.4 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
    • (a)is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
    • (b)facilitates illegal activity;
    • (c)depicts sexually explicit images;
    • (d)promotes unlawful violence;
    • (e)is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
    • (f)causes damage or injury to any person or property;
    and the Company reserves the right, without liability to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
  • 2.5 The Customer shall not:
    • (a)except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
      • (i)and except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
      • (ii)attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
    • (b)access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
    • (c)use the Services and/or Documentation to provide services to third parties; or
    • (d)subject to clause 18.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
    • (e)attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; and
  • 2.6 The Customer shall not do following
    • (a)harvest emails from web sites
    • (b)purchase lists (whether they are opt-in or not)
    • (c)rent lists
    • (d)borrow or lend lists
    • (e)have a subscription form that subscribes users to an unrelated list
    • (f)send out unrelated offers or unrelated content to your newsletter list
    • (g)add an email address into a list without the subscriber’s permission
  • 2.7 The Customer shall not do following:
    • (a)Provides, sells or offers to sell the following products or content (or services related to the same): pornography; escort services; illegal goods; illegal drugs; illegal drug contraband; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons
    • (b)Provides, lends, sells, or offers to sell or rents any mailing list
    • (c)Displays material that exploits children, or otherwise exploits children under 18 years of age
    • (d)Posts or discloses any personally identifying information or private information about children
    • (e)Provides material that is abusive, offensive, bigoted, prejudiced, racist, hateful, profane, obscene, lewd, lascivious, filthy, sexually explicit, violent, harassing, fraudulent, deceptive, misleading or otherwise objectionable or illegal content
    • (f)Violates the copyright, trademark, patent, trade secret, intellectual property or other rights of another
    • (g)Sells or promotes any products or services that are unlawful in the location at which the content is posted or received
    • (h)Promotes, solicits or participates in pyramid schemes
    • (i)Engages in any libelous, defamatory, scandalous, threatening, harassing activity
    • (j)Posts any content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or which provides instruction, information or assistance in causing or carrying out such violence.
    • (k)Sending unsolicited commercial email.
  • 2.8 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Company.
  • 2.9 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
  • 3.SERVICES
  • 3.1 The Company shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement.
  • 3.2
    The Company shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
    • (a)planned maintenance carried out during the maintenance window; and
    • (b)unscheduled maintenance performed outside Normal Business Hours, provided that the Company has used reasonable endeavours to give the Customer at least 1 Normal Business Hours notice in advance.
  • 3.3 Company will use commercially reasonable efforts to provide Customer with updates for the Service and technical support in accordance with its regular business practices. Customer agrees that Company may charge in accordance with its then current policies for any support service resulting from problems, errors or inquiries related to the Customer Data or Customer Systems.
  • 4.CUSTOMER DATA
  • 4.1 The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
  • 4.2 The Company shall follow its archiving procedures for Customer Data. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for the Company to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Company in accordance with the archiving procedure. The Company shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Company to perform services related to Customer Data maintenance and back-up).
  • 4.3
    If the Company processes any personal data on the Customer’s behalf when performing its obligations under this agreement, the parties record their intention that the Customer shall be the data controller and the Company shall be a data processor and in any such case:
    • (a)the Customer acknowledges and agrees that the personal data may be transferred or stored outside the country where the Customer and the Authorised Users are located in order to carry out the Services and the Company’s other obligations under this agreement;
    • (b)the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Company so that the Company may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer's behalf;
    • (c)the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
    • (d)the Company shall process the personal data only in accordance with the terms of this agreement and any lawful instructions reasonably given by the Customer from time to time; and
    • (e)each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
  • 4.4 General Learning; Aggregate Data. Customer agrees that Company is free to disclose aggregate measures of Service usage and performance, and to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) related to the Results or acquired during provision of the Service (including without limitation, that which it could have acquired performing the same or similar services for another customer under similar restrictions). Customer further agrees that (a) Company shall have the right to create compilations and analyses of Customer Data and Results (“Aggregate Data”) and to create reports, studies, analyses and other work product from Aggregate Data (“Analyses”) and (b) Company shall have exclusive ownership rights to, and the exclusive right to use such Aggregate Data and Analyses (but not the underlying data); provided, however, that Company shall not distribute Aggregate Data and Analyses in a manner that is identifiable as Customer Data or in a manner in which the identity of any individual Customer or person can be reasonably ascertained.
  • 5.THIRD PARTY PROVIDERS
  • The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. The Company makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not the Company. The Company recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. The Company does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
  • 6.COMPANY OBLIGATION'S
  • 6.1 The Company undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
  • 6.2 The undertaking at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Company’s instructions, or modification or alteration of the Services by any party other than the Company or the Company’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Company will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 6.1. Notwithstanding the foregoing, the Company:
    • (a)does not warrant that the Customer's use of the Services will be uninterrupted or error-free; nor that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; and
    • (b)is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
  • 6.3 This agreement shall not prevent the Company from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
  • 6.4 The Company warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
  • 7.CUSTOMER'S OBLIGATIONS
  • 7.1 The Customer shall:
    • (a)provide the Company with:
      • (i)all necessary co-operation in relation to this agreement; and
      • (iI)all necessary access to such information as may be required by the Company;
      in order to render the Services, including but not limited to Customer Data, security access information and configuration services;
  • (b)comply with all applicable laws and regulations with respect to its activities under this agreement;
  • (c)carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Company may adjust any agreed timetable or delivery schedule as reasonably necessary;
  • (d)ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;
  • (e)obtain and shall maintain all necessary licences, consents, and permissions necessary for the Company, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
  • (f)ensure that its network and systems comply with the relevant specifications provided by the Company from time to time; and
  • (g)be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Company’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
  • 8.CHARGES AND PAYMENT
  • 8.1 The Customer shall pay the Subscription Fees to the Company for the User Subscriptions in accordance with this clause 8 and Schedule 1.
  • 8.2 The Customer shall on the Effective Date provide to the Company valid, up-to-date and complete credit card details or approved purchase order information acceptable to the Company and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
    • (a)its credit card details to the Company, the Customer hereby authorises the Company to bill such credit card:
      • (i)on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
      • (ii)subject to clause 13.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;
  • 8.3 If the Company has not received payment within 15 days after the due date, and without prejudice to any other rights and remedies of the Company:
    • (a)the Company may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Company shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
    • (b)interest shall accrue on such due amounts at an annual rate equal to [18]% at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
  • 8.4 All amounts and fees stated or referred to in this agreement:
    • (a)shall be payable in USD
    • (b)are, subject to clause 13.4(b), non-cancellable and non-refundable;
    • (c)Customer will be responsible for payment of all such taxes (other than taxes based on Company’s income), fees, duties and charges, payable on Fees hereunder.
    • (d)Customer will, upon Company’s request, provide Company with official receipts issued by the appropriate taxing authority, or such other evidence as Company may reasonably request, to establish that such taxes have been paid.
  • 8.5 If, at any time whilst using the Services, the Customer exceeds the amount of number of records space specified in the Documentation, the Company shall charge the Customer, and the Customer shall pay, the Company’s then current excess number of records fees. The Company’s excess data storage fees current as at the Effective Date are set out in Schedule 1.
  • 8.6 The Company shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to Schedule 1and/or the excess storage fees payable pursuant to clause 8.5 at the start of each Renewal Period and Schedule 1 shall be deemed to have been amended accordingly.
  • 9.PROPRIETARY RIGHTS
  • 9.1 The Customer acknowledges and agrees that the Company and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
  • 9.2 The Company confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
  • 10.CONFIDENTIALITY
  • 10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party's Confidential Information shall not be deemed to include information that:
    • (a)is or becomes publicly known other than through any act or omission of the receiving party;
    • (b)was in the other party's lawful possession before the disclosure;
    • (c)is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
    • (d)is independently developed by the receiving party, which independent development can be shown by written evidence; or
    • (e)is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
  • 10.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this agreement.
  • 10.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
  • 10.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
  • 10.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Company’s Confidential Information.
  • 10.6 The Company acknowledges that the Customer Data is the Confidential Information of the Customer.
  • 10.7 This clause 10 shall survive termination of this agreement, however arising.
  • 11.INDEMNITY
  • 11.1 The Customer shall defend, indemnify and hold harmless the Company against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Documentation, provided that:
    • (a)the Customer is given prompt notice of any such claim;
    • (b)the Company provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
    • (c)the Customer is given sole authority to defend or settle the claim.
  • 11.2 The Company shall, subject to clause 11.5, defend the Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any India patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
    • (a)the Company is given prompt notice of any such claim;
    • (b)the Customer provides reasonable co-operation to the Company in the defence and settlement of such claim, at the Company’s expense; and
    • (c)the Company is given sole authority to defend or settle the claim.
  • 11.3 In the defence or settlement of any claim, the Company may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on [2] Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
  • 11.4 In no event shall the Company, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
    • (a)a modification of the Services or Documentation by anyone other than the Company; or
    • (b)the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Company; or
    • (c)the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from the Company or any appropriate authority.
  • 11.5 The foregoing states the Customer's sole and exclusive rights and remedies, and the Company’s (including the Company employees', agents' and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
  • 12.LIMITATION OF LIABILITY
  • 12.1 Subject to the provisions of clause 11, this clause 12 sets out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
    • (a)any breach of this agreement;
    • (b)any use made by the Customer of the Services and Documentation or any part of them; and
    • (c)any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
  • 12.2 Except as expressly and specifically provided in this agreement:
    • (a)the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Company shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Company by the Customer in connection with the Services, or any actions taken by the Company at the Customer's direction;
    • (b)all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
    • (c)the Services and the Documentation are provided to the Customer on an "as is" basis.
  • 12.3 Subject to clause 12.2:
    • (a)the Company shall not be liable whether in tort (including for [negligence or] breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
    • (b)the Company’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the [12] months immediately preceding the date on which the claim arose.
  • 13.TERMS AND TERMINATION
  • 13.1 This agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 1 months (each a Renewal Period), unless:
    • (a)either party notifies the other party of termination, in writing, anytime before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
    • (b)otherwise terminated in accordance with the provisions of this agreement;
    and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
  • 13.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other if:
    • (a)the other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
    • (b)an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or
    • (c)an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors .
    • (d)a receiver is appointed of any of the other party's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or
    • (e)the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
    • (f)the other party ceases, or threatens to cease, to trade; or
    • (g)there is a change of control of the other party ,
    • (h)the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
  • 13.3 On termination of this agreement for any reason:
    • (a)all licences granted under this agreement shall immediately terminate;
    • (b)each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
    • (c)the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
  • 14.FORCE MAJEURE
  • The Company shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Company or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
  • 15.WAIVER
  • 15.1 A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
  • 15.2 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
  • 16.SEVERANCE
  • 16.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
  • 16.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
  • 17.ENTIRE AGREEMENT
  • 17.1 This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
  • 17.2 Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.
  • 18.ASSIGNMENT
  • 18.1 The Customer shall not, without the prior written consent of the Company, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
  • 18.2 The Company may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
  • 19.NO PARTNERSHIP OR AGENCY
  • Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
  • 20.THIRD PARTY RIGHTS
  • This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns).
  • 21.NOTICES
  • 21.1 Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by registered post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in this agreement.
  • 21.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
  • 22.GOVERNING LAW AND JURISICTION
  • 22.1 This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of Republic of India
  • 22.2 This Agreement shall be governed by and construed solely and exclusively in accordance with the laws of the State of California, USA without giving effect to any law that would result in the application of the law of another jurisdiction.
  • 22.3 Arbitration: Parties agree that in the event of dispute arising out of or in connection with this agreement, the same shall be referred to arbitration by a sole arbitrator to be appointed by Company.
  • This agreement has been entered into on the date stated at the beginning of it.
Schedule 1
Subscription Fees
  • 1SUBSCRIPTION FEES
  • The Subscription Fees will be as per the Plan opted by Customer and as per the number of billable users of the Customer. Fees include all the charges of Server for Customer account, and respective emails credits per month, as mentioned in Pricing Plan page.
  • 2ADDITIONAL EMAIL CREDITS
  • Additional Email Credits may be purchased by the Customer at rate of $0.20 ( Twenty cents) per thousand emails.
  • 3EXCESS STORAGE FEES
  • Customer can store, track and map data of billable users on website and mobile app as per the plan opted by Customer. Any excess billable users than subscribed plan, will be charged at $.01 (one cent) per month per billable user.
Schedule 2
Subscription Terms
  • 1Initial Subscription Term: 1 (one) month