Terms of Service
1. Services
(a) This Terms of Service (“Agreement”) will apply to Customer’s, or any of its subsidiary(ies) and affiliated entities (collectively, “Customer”), use of Tech Consultant (“Tech Consultant”) services (the “Services”), support services, Implementation Services (as defined below and as applicable) and the Supplementary Data (as defined below and as applicable) (the foregoing, collectively, the “Services”). Customer and Tech Consultant each a “Party” and collectively, the “Parties.”
(b) By accepting this Agreement, either through executing an Order Form that references this Agreement, or by signing this Agreement directly, Customer agrees that its use of the Services is subject to and bound by these terms and conditions; and is conditioned on Customer’s appropriate and lawful behavior and its use of Services in a manner that does not cause offense or danger to others, as determined by Tech Consultant in its reasonable discretion.
(c) If the signatory below is entering into this Agreement on behalf of a company or other legal entity, such signatory represents that it has the authority to bind such entity to this Agreement. Neither signatory nor Customer may use the Services if signatory does not have such authority.
(d) Tech Consultant shall provide implementation services, training services, certification, and other professional services (“Implementation Services”) as agreed by the Parties in an Order Form. The scope of such Implementation Services may be agreed to in a separate Declarations of Scope executed by the Parties (each a “DOS”). Upon execution of a DOS by the Parties, the DOS shall become a part of, and shall be subject to, the terms of this Agreement. Tech Consultant shall control the means, methods, and manner of its performance of the Implementation Services delivered under a DOS. If there is a conflict between a DOS and these Terms of Service, the Terms of Service shall prevail. Tech Consultant may utilize subcontractors in its provision of the Implementation Services, provided that Tech Consultant shall remain liable for all subcontractor acts and omissions related to providing such Implementation Services.
(e) “Customer Data” means all data, information, or material that Customer submits to the Services in the course of using the Services. Customer Data does not include the name and contact information of those Customer employees who are the business contacts responsible for interacting with Tech Consultant in connection with the Customer-Tech Consultant business relationship under this Agreement.
2. License
Tech Consultant hereby grants to Customer a non-exclusive, non-transferable, worldwide, non-sublicensable right and license to use the Services and the Supplementary Data for Customer’s internal business purposes for the term specified in the applicable Order Form, subject to the terms of this Agreement and the applicable Order Form. Tech Consultant reserves all rights, title, and interest in and to the Services, including all related intellectual property rights, subject to the limited rights expressly granted hereunder.
3. Availability and Support
(a) Tech Consultant will provide the Services on a best-efforts basis in a manner consistent with marketing technology industry standards, which includes reasonable service interruptions due to Excusable Delays or scheduled maintenance. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond Tech Consultant’ reasonable control (collectively referred to as “Excusable Delays”). Except for reasonable service interruptions due to Excusable Delays or regularly scheduled maintenance, the Online Services shall be available not less than 99.9% of the time, on a monthly basis.
(b) Tech Consultant will provide to Customer the following support services related to the Online Services for the duration of the Agreement: (i) support via customer support regarding operation and use of the Online Services during Tech Consultant’ normal business hours (M-F 8:00AM to 8:00PM IST); and (ii) programming to correct any demonstrated errors in the Online Services necessary to enable reasonable use of the Online Services. Customer should promptly report any errors in the operation of the Online Services to Tech Consultant. Tech Consultant may make modifications to its support offerings from time to time at its reasonable discretion.
4. Communications
(a) Customer will be exclusively responsible for the content of all communications sent using the Services.
(b) Tech Consultant does not own any Customer Data. Customer, and not Tech Consultant, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use all Customer Data, and except as expressly set forth herein and subject to any requirements of applicable law, Tech Consultant shall not be responsible or liable for the deletion, correction, destruction, damage, loss, or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of Customer’s breach), Tech Consultant will make available to Customer a file of the Customer Data within 30 days of termination if Customer so requests at the time of termination. Tech Consultant reserves the right to withhold, remove, and/or discard Customer Data without notice for any breach, including, without limitation, Customer’s non-payment. Upon Tech Consultant’ termination for cause, Customer’s right to access or use Customer Data immediately ceases, and Tech Consultant shall have no obligation to maintain or forward any Customer Data. The foregoing provisions of this Section 4(b) are subject to any requirements of applicable law.
(c) For users of Chat Services: Customer acknowledges and agrees that Tech Consultant cannot control the chat content posted by Customer or by third parties to the Services (“Chat Content”). Customer may be exposed to, and the Services may process, Chat Content that may violate applicable law or that Customer may find offensive, indecent, incorrect, or objectionable. Customer further agrees that under no circumstances will Tech Consultant or its affiliates or licensors be liable in any way for any Chat Content, including any errors or omissions in any Chat Content, or any loss or damage of any kind incurred as a result of any Chat Content. Customer must assess and bear all risks associated with the use of any Chat Content, including any reliance on the integrity or accuracy of such Chat Content.
5. Restrictions
Customer shall use the Services for internal business purposes only as contemplated by this Agreement and shall:
(a) not use the Services if, in Tech Consultant’ reasonable determination, Customer is or becomes a direct competitor of Tech Consultant, or in violation of or beyond the scope of the license granted herein;
(b) not use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party;
(c) not permit any third party to access the Services, or otherwise sell, rent, license, provide, or distribute the Services; provided, however, that Customer may authorize a contractor to process and implement the Services (“Third Party Contractor”), if such Third Party Contractor has entered into a written agreement with Customer to: (i) access and use the Services solely to perform services for Customer; (ii) treat the Services with confidentiality and not disclose or distribute the Services to any third party including any affiliates of the Third Party Contractor; and (iii) limit access to the Services only to employees or agents with a “need to know” in order to perform the Third Party Contractor’s agreed upon services for Customer;
(d) not use the Services to communicate any message or material that (i) is libelous, harmful to minors, obscene, or constitutes pornography; (ii) infringes the intellectual property rights of any third party or is otherwise unlawful; or (iii) would otherwise give rise to civil liability,(e) not create derivative works from the Services, or otherwise reverse engineer or access the Services to (i) build a product or service competitive with the Services; (ii) build a product using similar ideas, features, functions, or graphics of the Services; or (iii) copy any ideas, features, functions, or graphics of the Services; or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law;
(e) not create derivative works from the Services, or otherwise reverse engineer or access the Services to (i) build a product or service competitive with the Services; (ii) build a product using similar ideas, features, functions, or graphics of the Services; or (iii) copy any ideas, features, functions, or graphics of the Services;
(f) not use the Online Services in any manner that could damage, disable, overburden, impair, or otherwise interfere with Tech Consultant’ infrastructure, or interfere or attempt to interfere with the proper working of the Online Services;
(g) not attempt to gain unauthorized access to the Online Services or related systems or networks, or systematically access the Online Services using “bots” or “spiders”; and
(h) not use or distribute the Services in any manner that violates any applicable local, state, domestic and/or international laws, rules, and regulations.
6. Suspension
In the event of any breach or threatened breach of this Agreement by Customer (including non-payment of fees), without limiting Tech Consultant’ other rights and remedies, Tech Consultant may immediately, with written notice (email being sufficient) suspend Customer’s access to the Services.
7. Fees
Customer will pay the Services fee (the “Fee”) and all other fees due for Services according to the prices and terms listed in the Order Form. All fees are payable in US Dollars or INR and are non-cancelable and nonrefundable unless expressly otherwise set forth herein. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties (excluding taxes imposed on Tech Consultant net income). In the event Tech Consultant pays any such taxes and has not collected them previously from Customer, Customer shall promptly reimburse Tech Consultant.
8. Intellectual Property
Tech Consultant alone (and its affiliates and licensors, where applicable) shall own all right, title, and interest, including all related intellectual property rights, in and to Tech Consultant technology and the Services, as well as any and all suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or any other party relating to the Services (all of the foregoing being the “Rights”). To the extent that any such Rights are not deemed owned by Tech Consultant pursuant to the prior sentence, Customer hereby irrevocably assigns and transfers all such Rights to Tech Consultant. The Tech Consultant name, the Tech Consultant logo, the marks of Tech Consultant’ licensors, and the product names associated with the Services are trademarks of Tech Consultant or third parties, and no right or license is granted to use them.
Customer also hereby grants to Tech Consultant a non-exclusive, worldwide, royalty-free, fully paid-up, non-sublicensable (except to Tech Consultant’s contractors and service providers), perpetual and irrevocable license to copy, anonymize, de-identify, aggregate, process, and create derivative works of Customer Data for the purpose of deriving Anonymous Data. “Anonymous Data” means anonymous statistical and usage data, and data related to the functionality of the SAAS Services, provided such data cannot be used to identify Customer or its user. For clarity, Tech Consultant may use Anonymous Data for any and all purposes, including combining or incorporating the Anonymous Data with or into other data and information, using the Anonymous Data to create improved and new success vectors, models, products, and services and generating statistics for marketing purposes.
9. Representations and Warranties
Each Party represents and warrants that it has the legal power and authority to enter into this Agreement and there is no outstanding contract or commitment which may limit, restrict, or impair its ability to perform its obligations hereunder. In addition, Tech Consultant represents and warrants that (a) it will provide the Services in a manner consistent with marketing technology industry standards reasonably applicable to the provision thereof; (b) the Services will perform substantially in accordance with the online Tech Consultant help documentation under normal use and circumstances; and (c) it will utilize commercially reasonable efforts to establish and maintain appropriate administrative, physical, organizational, and technical safeguards that protect against the unauthorized destruction, loss, access, use, storage, alteration, or disclosure of Customer Data in the possession of Tech Consultant or to which Tech Consultant may have access; such safeguards will include, without limitation, (i) an information security program based on marketing technology industry-standard practices to safeguard Customer Data; (ii) industry-standard physical security of all premises in which Customer Data will be processed or stored; and (iii) an industry-standard network security program with respect to Customer Data (which includes, without limitation, encryption). Notwithstanding the generality of the foregoing, Tech Consultant will utilize the security standards set forth in Schedule 1 attached hereto.
In addition, Customer represents and warrants that (x) its use of the Services will comply with all applicable federal, state, and local laws and regulations, including those laws and regulations regarding telemarketing, customer solicitation, data protection, and privacy; and (y) it owns or otherwise has and will have the necessary rights in, and consents relating to, the Customer Data.
10. Confidentiality
(a) The Parties each acknowledge that the other Party treats its products, development processes, business methods, business information, and prices as confidential and that they constitute the commercially valuable proprietary products and/or services and trade secrets of the respective Party, regardless of whether they may be copyrighted, patented, or trademarked.
(b) During the term of this Agreement, each Party will learn or receive information about the other which the other treats as confidential, including but not limited to all business, marketing, financial and customer-related data (“Confidential Information”). Each Party agrees that Confidential Information received from the other shall be treated as confidential and protected in the same manner as the receiving Party treats its own confidential information (but in no event less than reasonable care). Each Party agrees not to use any disclosed Confidential Information for any purpose other than exercising its rights and fulfilling its obligations hereunder and will not transfer, distribute, or disclose to any third party any Confidential Information of the other Party, except as expressly authorized in writing by the other Party and shall confine knowledge and use of the Confidential Information received to its employees and contractors who require such knowledge and use of the information in the ordinary course of and scope of their employment pursuant to this Agreement. Notwithstanding the foregoing, Confidential Information shall not include information which (i) has entered the public domain by no action of the receiving Party hereunder; (ii) was already rightfully in the possession of the receiving Party when received from the disclosing Party; (iii) is received from a third party without breach of any obligation owed to the disclosing Party; or (iv) was developed independently by the receiving Party by individuals without access to the disclosing Party’s information.
(c) The receiving Party may disclose Confidential Information of the disclosing Party if it is compelled by law to do so, provided the receiving Party gives the disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing Party’s cost, if the disclosing Party wishes to contest the disclosure. If the receiving Party is compelled by law to disclose the disclosing Party’s Confidential Information as part of a civil proceeding to which the disclosing Party is a party, and the disclosing Party is not contesting the disclosure, the disclosing Party will reimburse the receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
(d) The obligations of the Parties, with regard to the Confidential Information of the other that constitutes trade secrets, shall remain in effect for as long as such Confidential Information shall remain a trade secret under applicable law. All other Confidential Information shall remain protected during the term of this Agreement and for three (3) years thereafter.
(e) Tech Consultant and Customer acknowledge that the damages for unauthorized and/or improper disclosure of the Confidential Information of the other Party may be irreparable; therefore, the Parties may seek equitable relief, including injunction and preliminary injunction, for such alleged breaches.
11. Term and Termination
(a) Initial Term. The Initial Term of this Agreement shall commence on the Contract Start Date agreed to in the applicable Order Form. Thereafter, unless either Party gives the other Party written notice of non-renewal at least sixty (60) days prior to the end of the then-current term, this Agreement shall renew for additional period(s) as provided in the applicable Order Form. If a renewal term is not provided in the applicable Order Form, the Agreement shall renew for the duration of the Initial Term.
(b) Termination for Cause. If a Party materially breaches the Agreement, the non-breaching Party may terminate the Agreement and any applicable Order Forms for cause upon thirty (30) days’ prior written notice if such breach remains uncured at the expiration of such thirty (30) day period.
(c) Termination for Insolvency. In the event that either Party hereto is adjudged insolvent or bankrupt, or upon the institution of any proceeding regarding insolvency, receivership, liquidation, or assignment for the benefit of creditors, then such Party will immediately give notice thereof to the other Party, and the other Party may terminate the Agreement upon written notice.
(d) Payment Upon Termination. Upon any Termination for Cause (as described in Section 12(b)) by Tech Consultant, Customer shall pay any unpaid fees for all applicable Order Forms, regardless of whether such fees were due before or after the effective date of termination. In no event shall termination by Customer or Tech Consultant relieve Customer of the obligation to pay any fees payable to Tech Consultant for the period prior to the effective date of termination.
(e) Assignment. This Agreement is binding on the Parties hereto and their respective successors and permitted assigns. Either Party may assign this Agreement to: (i) an affiliate controlled by, controlling, or under common control with the assigning Party; or (ii) in connection with a merger or consolidation (so long as the assignment is to the newly merged or consolidated entity, and such entity is not a competitor of the non-assigning Party) or the sale of all or substantially all of its assets (so long as the assignment is to the acquirer of such assets, and such acquirer is not a competitor of the non-assigning Party). Any assignment in violation of this section is void.
(f) Force Majeure. Tech Consultant’ failure to perform any term or condition of this Agreement as a result of conditions beyond its control, including but not limited to, acts of God, war, strikes, fires, floods, governmental restrictions, power failures, pandemics, or damage or destruction of any network facilities or servers, shall not be deemed a breach of this Agreement. In the event, but only to the extent, that Tech Consultant is not able to provide Services during a force majeure event, Customer’s obligation to pay for the Services shall be suspended.
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