Terms of Service

“Affiliate” of a Party will mean and include any entity or association controlled by, controlling or under common control with such Party. For the purposes of this definition, the term “control” will mean the ownership of more than fifty percent (50%) of the voting shares in any entity or association.

“Data” refers to the User’s data and information provided by the User on the Website for the use of the Services.

“Documentation” shall mean any accompanying documents, content, data, user guides, online help, release notes, training materials, provided by the Company to the User along with the Licensed Material.

“Error(s)” shall mean any verifiable and reproducible failure or inability of the Licensed Material to perform any material functions set forth in the Documentation due to any programming defect in the Licensed Material, when used by the User as specified under this Agreement or the Documentation by the Company. The term “Error”, shall however, not include any failure or inability of the Licensed Material that (i) results from the misuse or improper use of the Licensed Material, (ii) does not materially affect the operation and use of the Licensed Material, (iii) results from any modification to the Licensed Material that is not the Company authorized change, (iv) results from any cause beyond reasonable control of the Company, including third party cloud environment, hardware, software, firmware, malicious code like virus, trojan or malware.

“Fees” refers to the fees payable by the Users to the Company for the use of Services and Licensed Materials.

“Fixes” shall mean any modification or addition to the Licensed Material that, when made or added to the solution or modules currently being used by the User, corrects Errors but does not change overall utility, functional capability, or application, where such modifications or additions are generally made available by the Company to all its customers.

“Intellectual Property Rights” means all rights including future rights in patents, designs, copyrights, trademarks, service marks, databases and typography rights (whether or not any of those is registered and including applications for registrations of the foregoing) together with all trade secrets, know-how and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of those which may subsist anywhere in the world.

“Licensed Material” refers to the library of reusable source codes, object codes, binaries, reusable components, templates package Licensed by the Company to the Users.

“Third Party Service Provider” will refer to those service providers providing Third Party Tools on the Website.

“Services” shall mean services provided by the Company to the User including providing the Licensed Material and providing any support and maintenance services.

“Permitted End Users” will refer to the employees, consultants, developers or any party permitted by the User to use and access the Website, Services and Licensed Material.

The Website allows Users, on payment of Fees, to access and use the Licensed Material. The Licensed Material can be used as a framework for further developing applications, codes, programs, solutions by a User (“User Solutions”). The License (defined below) and manner of use of the Licensed Material are governed by this Agreement.

Support and Maintenance Services: The Company shall provide support and maintenance services (including bug Fixes, online redressal of operational queries, etc.), if paid for by the User, in accordance with the terms agreed between the Parties. The Company may also provide additional services pertaining to the Licensed Material to the User, at term mutually agreed by the Parties.

Usage Limits: The License to Licensed Material and use of the Services are subject to usage limits to a limited number of Permitted End Users. If the User exceeds a contractual usage limit, Company may work with the User to seek to reduce the User’s usage so that it conforms to that limit. If, notwithstanding the Company’s efforts, the User is unable or unwilling to abide by a contractual usage limit, the User will pay additional Fees for increasing the number of Permitted End Users. Company shall have the right to audit the usage of the Services and Licensed Material as provided in Section 14 (Audit) below.

User’s Responsibilities.

User will (a) be responsible for Permitted End User’s compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of User’s Data and the means by which the User acquired the Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Licensed Material, and notify the Company promptly of any such unauthorized access or use, (d) use Services and Licensed Material only in accordance with this Agreement and applicable laws and government regulations, and (e) comply with terms of service of any Third Party Tools.

As a condition for using the Services, the Permitted End Users may be required to register with Company and select a password and enter his/her email address on the Website. This account management will be facilitated through an administrator appointed by User. User shall ensure that the Permitted End Users shall provide accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of Permitted End User's account. A Permitted End User’s password may not be shared with any other individual. A Permitted End User identification may only be reassigned to a new individual replacing one who will no longer use the Service.

User shall comply with all applicable local, state, national and foreign laws in connection with its use of the Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. User shall not upload, post, reproduce or distribute any information, or other material protected by copyright, privacy rights, or any other Intellectual Property Right without first obtaining the permission of the owner of such rights.

User shall: (i) notify Company immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, (ii) report to Company immediately and use reasonable efforts to stop any unauthorized use of the Services that is known or suspected by User or any Permitted End Users, and (iii) not provide false identity information to gain access to the Website or use the Services.

Creation of User Solution using Licensed Material: Parties hereby agree and acknowledge that the Licensed Material would be used by the Users and the Permitted End Users for the creation and development of the User Solutions. User hereby agrees and acknowledges that the User will have the right to develop the User Solutions with the Licensed Material. Notwithstanding the above, the Parties hereby agree and acknowledge that –

Company shall not be liable for any claims, losses, costs, expenses incurred by User due to the development of the User Solutions;

Company shall not be liable for any data breach or unauthorized access to confidential information of User or any third party or any other customer information or any personal information which is attributable to such User Solution;

The User Solution shall not infringe, misappropriate any third party Intellectual Property Rights.

Usage Restrictions: User and the Permitted End Users will not (a) except as otherwise provided in this Agreement, make any Service or Licensed Material available to, or use any Service or Licensed Material for the benefit of, anyone other than the Permitted End Users, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Licensed Material as-is to any third party, (c) use the Service to store or transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Service to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of any Service or Third Party Tools contained therein, (f) attempt to gain unauthorized access to any Service or Licensed Material or Third Party Tools, systems or networks, (g) permit direct or indirect access to or use of any Service or Licensed Material or Third Party Tools in a way that circumvents a contractual usage limit, or use any of Services to access or use any of Company’s intellectual property except as permitted under this Agreement, (h) copy or use Licensed Material except as permitted herein, (i) frame or mirror any part of any Service or Licensed Material, other than framing on User’s own intranets or otherwise for User’s own internal business purposes or as permitted in this Agreement, (j) access any Service or Licensed Material in order to build a competitive product or service, or (l) reverse engineer any Service. Any use of the Services in breach of this Agreement, by User or Permitted End Users that in Company’s judgment threatens the security, integrity or availability of Company’s services, may result in immediate suspension of the Services, however the Company will use commercially reasonable efforts under the circumstances to provide User with notice and an opportunity to remedy such violation or threat prior to such suspension.

Company or third parties may make available third-party tools along with the Services and Licensed Material (“Third Party Tools”). Any acquisition or use by User of such Third Party Tools, and any exchange of data between User and such Third Party Service Provider, shall be a sole transaction between User and the Third Party Service Provider. Company does not warrant or support Third Party Tools, whether or not they are designated by Company as “certified” or otherwise.

The Licensed Material may contain and is distributed with open source components that are covered by a different license. The User agrees that all such open source components shall be and shall remain subject to the terms and conditions under which such open source components are provided. For the sake of clarity, open source components mean certain portions of the Licensed Material, that are obtained from third party open source projects and embedded within the Licensed Material.

Integration with Third Party Tools: Services or Licensed Material may contain features designed to interoperate with Third Party Tools. To use such features, User may be required to obtain access to such Third Party Tools from their Third Party Service Providers, and may be required to grant Company access to User’s account(s) on such Third Party Tools. Company cannot warrant the continued availability of such Third Party Tools and may cease providing them without entitling User to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third Party Tools ceases to make the Third Party Tools available for interoperation with the corresponding Service features in a manner acceptable to Company.

Fees: User will pay all Fees in advance for the use of Services and Licensed Materials. Except as otherwise specified herein payment obligations are non-cancellable, and Fees paid are non-refundable.

The Licensed Material may contain and is distributed with open source components that are covered by a different license. The User agrees that all such open source components shall be and shall remain subject to the terms and conditions under which such open source components are provided. For the sake of clarity, open source components mean certain portions of the Licensed Material, that are obtained from third party open source projects and embedded within the Licensed Material.

Integration with Third Party Tools: Services or Licensed Material may contain features designed to interoperate with Third Party Tools. To use such features, User may be required to obtain access to such Third Party Tools from their Third Party Service Providers, and may be required to grant Company access to User’s account(s) on such Third Party Tools. Company cannot warrant the continued availability of such Third Party Tools and may cease providing them without entitling User to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third Party Tools ceases to make the Third Party Tools available for interoperation with the corresponding Service features in a manner acceptable to Company.

Reservation of Rights: Subject to the limited License expressly granted hereunder, the Company will own all rights, titles and interests in and to all copyright, trademark rights, patent rights, design rights and other Intellectual Property Rights to the Documentation, Licensed Material and any Enhancements. No rights are granted to User hereunder other than as expressly set forth herein.

License to Use Feedback: User grants to Company a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Services any suggestion, enhancement request, recommendation, correction or other feedback provided by User or Permitted End Users relating to the operation of Services.

“Confidential Information” shall mean information disclosed by one Party to the other and which includes, without limitation financial, business, technical and marketing information, business plans, methods, processes, inventions, techniques, designs, data, know-how, ideas, concepts, strategies, trade secrets, software product and services and such other information. Confidential Information does not include information which: a) is in the public domain; (b) was known to the Party of such disclosure or becomes known to the Party without breach of any confidentiality agreement; (c) is independently developed by either Party without violating any confidentiality obligations stated herein; (d) is disclosed pursuant judicial order or requirement of the governmental agency or by operation of law.

The receiving Party shall keep Confidential Information and proprietary information and data received from the disclosing Party in strict confidence and shall not disclose it to any third parties except to a limited group of receiving Party’s directors, officers, agents, authorized representatives on a need-to-know basis. Each Party will use the same degree of care and discretion (but in any event no less than a reasonable degree of care and discretion) to avoid unauthorized disclosure or use of the other Party’s Confidential Information as that receiving Party uses to protect its own information of a similar nature from unauthorized disclosure or use.

Upon request by the disclosing Party, the receiving Party shall immediately return to the disclosing Party, all Confidential Information disclosed by the disclosing Party and all copies thereof. All such information shall be and shall remain the sole property of the disclosing Party.

The confidentiality obligations stated herein shall survive for a period of five (5) years from the date of termination or expiration of this Agreement.

The receiving Party agrees that any violation of the confidentiality obligations will cause irreparable injury to the disclosing Party, entitling disclosing Party to obtain injunctive relief in addition to all legal remedies

Representations: The User represents and warrants that the execution, delivery and performance of this Agreement have been duly authorised by all necessary corporate actions on its behalf, and this Agreement has been duly executed and delivered and is a legal, valid and binding Agreement. The User hereby warrants that no Data or material provided by User for use with or in connection with the Services or the User Solution shall infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy, or violate any applicable law, statute or regulation for its subscription term.

DISCLAIMERS: EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE COMPANY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND THE COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. LICENSED MATERIAL AND SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. THE COMPANY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY SERVICES.

Indemnification: User shall indemnify, defend and hold the Company and its Affiliates and their respective representatives harmless from and against any and all loss, damage, liability, suits, actions, proceedings, demands, damages, judgments, liabilities, claims, and expenses (including, without limitation, reasonable attorneys' fees, expert fees and court costs and the costs of investigation and defense and settlement awards) (collectively, the "Losses") relating to, arising from, or in connection with: (i) User or any of their representatives' or the Permitted End Users’ breach or violation of any representation, warranty, covenant or obligation under this Agreement; or (ii) User or any of their representatives' or the Permitted End Users’ act or omission in connection with their actions, omissions, obligations and agreements hereunder; or (iii) infringement or misappropriation of any third party’s Intellectual Property Rights due to the following conduct of User: (a) development and use of the User Solution, (b) the User’s combination or use of the Licensed Material or the Services with software, services, or products developed by the User or third parties; (b) the User’s Data infringes any patent, copyright or trademark, or misappropriates any trade secret or (c) third party claim made against the Company for accessing the personal information or any other data of the Users.

To the fullest extent permitted by applicable law, in no event shall the Company be liable for any indirect, incidental, special or consequential damages, including but not limited to costs of procurement of substitute products or services, loss of profits or revenue, or loss of data or use, incurred by User or any third party, whether in an action in contract or tort or otherwise, even if it has been advised of the possibility of such damages. In no event shall the Company be liable to Users for any cause of action (contract, tort or otherwise) for more than the total Fees paid to Company by User in the three months preceding the time when the alleged claim arose, whether arising in a single or multiple causes of action.

Company shall have the right to audit User’s and Permitted End User’s use of the Services and Licensed Material in order to verify that it is being used in compliance with this Agreement. Notwithstanding anything to the contrary contained herein, Company shall be entitled to introduce patches and / or other programs to monitor User’s and Permitted End User’s usage of the Services and Licensed Material, in order to ensure that User’s and Permitted End User’s usage of the Services and Licensed Material is in accordance with the terms of this Agreement. In the event of User’s and Permitted End User’s usage exceeds permitted usage as set out under this Agreement, the patches and / or other programs introduced by Company might make the Services and Licensed Material unusable and, in such event, Company shall not be liable for any damages, expenses, losses, or any other consequence caused to User and Permitted Users as a result thereof.

Terms of Agreement: This Agreement commences on the date the User first accepts it and continues until the expiry of the term of the Services.

Termination: Either party may terminate this Agreement:

(i) upon 30 days’ written notice to the other party of a material breach of its obligations under this Agreement if such breach remains uncured at the expiration of such period, or

Refund or Payment upon Termination: If this Agreement is terminated by User in accordance with this Section 15.2 (Termination), User shall not be entitled to any refund but the User shall pay any unpaid balance sum. If this Agreement is terminated by Company in accordance with Section 15.2, User will pay any unpaid Fees. Subject to the foregoing in this Section, in no event will termination relieve User of its obligation to pay any Fees payable to Company for the period prior to the effective date of termination.

Governing Law: This Agreement shall be governed by and construed in accordance with law of California. All disputes arising out of or in connection with the present Agreement shall be finally settled in accordance with the provisions of the American Arbitration Association and any statutory amendment or re-enactment thereof ("Rules”) by one or more arbitrators appointed in accordance with the said Rules. The seat of arbitration shall be California. The tribunal shall consist of one arbitrator. The language of the arbitration shall be English.

Notices: Any notice required or permitted to be given under this Agreement must be in writing and will be deemed effective:

Addresses: The addresses for notice for each party are the respective addresses of the parties notified to each other. Either party may change its address for notice by written notification to the other party.

No Agency: For the avoidance of doubt, the Company is entering into this Agreement as principal and not as agent for any other company. The obligations owed by Company under this Agreement shall be owed to User solely by Company and the obligations owed by User under this Agreement shall be owed solely to Company.

Entire Agreement and Order of Precedence: This Agreement (together with the documents referred to herein) constitutes the entire agreement between Company and User in relation to the transactions referred to herein and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.

Assignment: Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety, without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

Relationship of the Parties: The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

Waiver: No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

Severability: If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall remain in full force.