For the purposes of these terms, in addition to the capitalized terms
defined elsewhere in these terms, the following terms shall have the
meanings ascribed to them as follows:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “control”, for purposes of these terms, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity;
“Anonymous service data” means any and all data and information that is not personal information (including because it has been de-identified, aggregated or made anonymous by KG) created by KG through the operation of the service;
“Customer service-compatible application(s)” means (i) an application that has been developed using the service APIs by you or by a third party authorized by you to develop such an application for you, or (ii) a third-party cloud-based service that interoperates with the service through the use of the service APIs and that has been licensed by you from such third-party and which you wish to use with the service;
“Deliverable” means any software, studies, documentation and/or other materials prepared by KG for you as described in a pricing agreement or an order or sow for professional services;
“Malicious code” means viruses, worms, time bombs, trojan horses and other harmful or malicious code, files, scripts, agents or programs;
“Order” means any online order for the purchase of a subscription or subscriptions for the service or for the purchase of professional services that has been submitted by you using the electronic order forms (or any other order form accepted by KG) provided by KG on the KG website or over an email;
“Pricing agreement” means any agreement executed by you and KG (including through the use of digital signatures) for the purchase of a subscription or subscriptions for the service or for the purchase of professional services;
“Professional services” means professional services to be provided by KG to you for training, implementation services, development support, custom development and other services, all as described in a pricing agreement or an order and/or sow;
“Quote” means a quotation document provided to you by KG in respect to your purchase of a subscription or subscriptions for the service or professional services;
“Sandbox environment” means a part of the service that allows customers to test customer service-compatible application(s) and other uses of the service API(s);
“Service” means KG’s cloud-based asset and Field Operations Management Solution including in each case the service APIs. The “service” excludes all customer service-compatible applications;
“Service APIs” means the APIs that are made publicly available in the service for the purpose of integrating customer service-compatible applications with the service and for the purpose of entering and extracting data from the service;
“Service tier(s)” means the various categories of service access (which will specify the number of permitted users) provided by KG to customers depending on the type of subscription that has been purchased by such customers as further described on the Proposal Document, as such categories of service access may be updated by KG from time to time;
“Statement of work” or “SOW” means a statement of work for professional services and/or deliverables that is executed by the parties (including through the use of digital signatures), which professional services and/or deliverables may include, without limitation: training, implementation services, development support, custom development and/or other services;
“Subscription fee” means the monthly, annual or multi-year fees payable by you to KG for the right to receive access to the service as specified in your pricing agreement and/or your quote(s) and/or order(s);
“Subscription term” means an initial subscription term for the service and any renewal periods for the service as specified in your pricing agreement and/or your quote(s) and/or order(s);
“Term” has the meaning ascribed to that term in section 10.1;
“Terms” means these standard terms and conditions and any pricing agreement, quote(s), order(s) and/or SOW(s) into which this document may be incorporated;
“User” means an individual or entity who is authorized by you to use the service on your behalf, and who has been supplied a user account and password for the service by you (or by KG at your request);
“You” means the person, organization or entity (i) executing a pricing agreement with KG, the person, organization or entity identified by KG in a quote issued by KG or the person, organization or entity identified in an order submitted to KG and accepted by KG, or (ii) executing an agreement with a KG reseller that incorporates these terms by reference as contemplated in section 11.10 of these terms. “Your” shall have a correlated meaning. If an organization or entity name is specified in the “company name” or “customer name” portion of a quote, order or pricing agreement, then “You” means such organization or entity. “You” in the case of an organization or entity includes any of your affiliates; and
“Your data” means all electronic data or information submitted by you and/or your users to the service.
2.1 Commercial license grant. Subject to these terms, including payment of all
applicable subscription fees, FR grants you a limited, personal,
non-transferable, non-sub-licensable, internal license to use the service during
the subscription term in accordance with the service tier (including, without
limitation, the permitted number of users) for which you have subscribed, such
subscription term and service tier as set forth in your then-current pricing
agreement, quote(s) and/or order(s). The right to use the service is licensed,
not sold. You may also use customer service-compatible application(s) with the
service to the extent approved in writing by FR pursuant to your then-current
pricing agreement, quote(s) and/or order(s).
2.2 Free version license grant. If you register for the free version of the service made available by FR, then, subject to these terms, FR grants you a limited, personal, non-transferable, non-sub-licensable, internal license to use a reduced-feature version of the service (the “free service”). You will not be entitled to receive any support from FR for your use of the free service. FR may terminate your use of the free service at any time in FR’s sole discretion and may accept or decline any request to use the free service in FR’s sole discretion. Any data you enter into the free service and any customizations you make to the free service will be permanently lost unless you purchase a paid subscription to the service. Your data cannot be exported from the free service. Notwithstanding any other provisions in these terms, access to and use of the free service is on an “as-is” basis without any representations, warranties and/or conditions of any kind. Additional terms and conditions applicable to the free service may appear on the applicable registration page for the free service. Any such additional terms and conditions are incorporated into these terms by reference.
2.3 User accounts. User accounts are for use by designated users and cannot be shared or used by more than one user but may be reassigned to new users replacing former users who no longer require ongoing use of the service.
2.4 Sandbox environment. As part of your commercial subscription to the service or your subscription to the free service, you will be given access to the sandbox environment. The service capabilities provided in the sandbox environment may be limited or restricted in FR’s sole discretion. Except for pre-existing development and interoperability documentation that FR makes generally available to service subscribers, FR does not provide any support for the use of the sandbox environment or any service APIs as part of FR’s standard commercial subscriptions for the service or as part of any subscription for the free service. You may purchase development-related support from FR as a professional service. Notwithstanding any other provisions in these terms, access to the sandbox environment is on an “as-is” basis without any representations, warranties or conditions of any kind.
2.5 Third-party services. You acknowledge and agree that the service may present links to third-party websites or third-party products or services not owned or operated by FR that present service offerings, advertisements, promotional materials or product offers from such third parties. FR is not responsible for the availability of these third-party websites or third-party services or any other products or services that may be offered via such websites and/or services. Your dealings with any third-party or purchase of any third-party products or services that you may have become aware of through the service are solely between you and such third party and the terms and conditions governing such dealing, products or services are those that you agreed with the applicable third party and FR is not a party to any such terms or conditions. You agree that FR is not responsible or liable for any loss or damage of any type incurred by you as the result of any dealings with any third parties or as the result of the presentation of such third parties or their products and/or services via the service.
2.6 Your affiliates. Your affiliates may procure subscriptions for the service subject to these terms. You shall cause each of your affiliates to comply with these terms to the full extent as if such affiliate were a party hereto, and any act or omission relating to these terms by any such affiliate shall be deemed an act or omission by you. In addition, each party may use one or more affiliates to perform its obligations under these terms, provided that such use shall not affect such party’s obligations pursuant to this agreement and any act or omission by such affiliate relating to these terms shall be deemed an act or omission of such party.
3.1 FARMREACH (FR) responsibilities. FR shall use commercially reasonable
efforts to make the service available
in accordance with the FR service level agreement, which may be found at
https://www.pandoforce.com/terms.html except for (a) planned downtime, (b) any
unavailability caused by circumstances beyond FR’s reasonable control, including
without limitation, acts of god, acts of government, flood, fire, earthquakes,
civil unrest, acts of terror, strikes or other labour problems, internet service
provider failures or delays or other force majeure events, or (c) any downtime
caused by customer service-compatible applications(s). FR shall also provide
support to you for the service in accordance with the FR service level agreement
and the service tier purchased by you. FR does not warrant or support customer
service-compatible application(s). FR is not responsible for any disclosure,
modification or deletion of your data resulting from access to or use by you of
any customer service-compatible application(s)..
3.2 Your responsibilities. You are responsible for all activities that occur in your user accounts and for your users’ compliance with these terms. You shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all of your customer service-compatible application(s) and your data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the service and your customer service-compatible application(s), and notify FR promptly of any such unauthorized access or use, and in no case more than 72 (seventy two) hours from the time you become aware of any unauthorized access, use or disclosure; (iii) comply with all applicable local, provincial, state, federal and foreign laws in using the service and your customer service-compatible application(s); and (iv) be responsible for any customer service-compatible applications developed or purchased by you.
3.3 Use guidelines. You shall not: (i) use the service or your customer service-compatible application(s) to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) use the service or your customer service-compatible application(s) to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy or publicity rights; (iii) use the service or your customer service-compatible application(s) to send or store malicious code; (iv) interfere with or disrupt the integrity or performance of the service or the data contained therein; or (v) attempt to gain unauthorized access to the service or any related systems or networks.
3.4 Service changes. FR may change the service at any time upon reasonable notice of 90 (ninety) days before updating to you by posting the changes on the FR website; sending you notice via an email to the email address you provide on service registration; placing a message on your invoice; in writing; by electronic communication; or any other notice method likely to come to your attention. If you do not accept the change, your sole recourse is to terminate your subscription(s) to the service. Your continued access to and use of the service after the change has come into effect constitutes your acceptance of the change. If you terminate your subscription to the service due to a change in the service, you will not be entitled to any refunds. The service may contain features designed to interoperate with customer service-compatible applications. FR cannot guarantee the continued availability of such service features and may cease providing them without entitling you to any refund, credit or any other compensation.
3.5 Professional services. You may order custom professional services (such as custom development not part of the scope of modules offered) from FR at the rates mutually agreed by submitting an order to FR describing the custom professional services you wish to procure. If you submit an order for professional services, such order shall not be binding upon FR unless accepted by FR. FR will use commercially reasonable efforts to respond to orders submitted by you for professional services within five (5) business days following receipt thereof by FR. If FR does not respond to an order for professional services prior to the end of five (5) business days following receipt thereof by FR then such order shall be deemed to have been rejected by FR. Once an order for standard professional services has been accepted by FR, FR will provide such standard professional services in accordance with a time frame mutually agreed by the parties and such standard professional services shall be subject to these terms (including schedule A). Once an order for custom professional services has been accepted by FR, the parties will negotiate a mutually acceptable Proposal for such custom professional services. Each Proposal executed by the parties for custom professional services shall be subject to these terms (including schedule A). Upon execution by the parties of Proposal for custom professional services, FR will provide the custom professional services described in such Proposal to you. Any terms and conditions added or appended by you to any order submitted for professional services that are in addition to or inconsistent with these terms (including schedule A) will be deemed stricken from such order and will not be binding on FR. You may also order professional services by specifying them in a pricing agreement executed by you and FR. Purchased professional services (including training) are non-refundable and any unused professional services (including training) will expire twenty-four (24) months from the date of purchase.
3.6 Publicity. During the term, FR may use your corporate name and logo on the FR website and in presentations and other marketing materials created by FR for the purpose of identifying you as a customer of FR and the service. You hereby grant FR and its affiliates a license to use your corporate name and logo for the purposes described in this section. Neither party may issue press releases relating to these terms without the other party’s prior written consent.
3.7 Server Maintenance: FR uses third party cloud service from Amazon Internet Services Private Limited (AISPL), all cloud and data storage policy is subject to the AISPL Customer Agreement. This AISPL Customer Agreement (this "Agreement") contains the terms and conditions that govern your access to and use of the Service Offerings (as defined below) and is an agreement between Amazon Internet Services Private Limited ("AISPL "), having its registered office at Unit Nos. 1401 to 1421 International Trade Tower, Nehru Place, New Delhi 110019, India and Farmreach Technologies Private Limited (FR). For more details on service terms and agreement between FR and AISPL refer https://aws.amazon.com/agreement and https://aws.amazon.com/service-terms/
3.8 Information we collect about you - With regard to each of your visits to the Pando mobile application Platform, we will automatically collect and analyse the following demographic and other information:
i. Location information: Depending on the features that you use, and your app settings or device permissions, we may collect your real time information, or approximate location information as determined through data such as GPS, IP address; Features that use location capturing are as follows - planning activity, submitting activity, starting the day, stopping the day, reviewing activity location in history.
ii.Device Information: We may collect information about the devices you use to access our Services, including the hardware models, operating systems and versions, software, file names and versions, preferred languages, unique device identifiers, advertising identifiers, serial numbers, device motion information and mobile network information. Analytics companies may use mobile device IDs to track your usage of the Pando Application Platform;
iii. Stored information and files: Pando mobile application may also access metadata and other information associated with other files stored on your mobile device. This may include, for example, photographs, audio and video clips, personal contacts and address book information. If you permit the pando app to access the address book on your device, we may collect names and contact information from your address book to facilitate social interactions through our services and for other purposes described in this Policy or at the time of consent or collection. If you permit the Pando app to access the calendar on your device, we collect calendar information such as event title and description, your response (Yes, No, Maybe), date and time, location and number of attendees.
4.1 Fees. In consideration for the receipt of the service, you shall pay FR the
subscription fees, all as specified in your pricing agreement or any of your
quote(s) or order(s) and any professional services includes cost on
Infrastructure cloud ,SMS and Travel are claimable as specified in your pricing
agreement or any of your orders and/or Proposals. All amounts are payable in the
currency specified in your pricing agreement or an applicable quote, or, in the
case of orders submitted by you, the currency specified on the Proposal document
for your applicable jurisdiction.
4.2 Invoicing and payment. FR will invoice you electronically 30 days prior to the subscription / renewal date for minimum user slab agreed. Any additional license consumption will be invoiced pro-rata monthly at the end of renewal term under the same terms of purchase order generated by the client if applicable and you agree to accept FR’s invoices in that manner. Unless otherwise stated on an invoice sent to you by FR, all invoiced amounts for the service are due upon your receipt of FR’s invoices for such amounts. However, there will be 30 (thirty) days credit period will be considered from the date of invoice served. You shall: (i) keep the billing, banking information and payment information you provide to FR or its payment processors, including your name, banking information, mailing address, email address and telephone number, accurate and up to date, otherwise, FR may suspend provision of the service to you and/or interoperation of the service with any of your customer service-compatible application(s); (ii) promptly advise FR if your banking information changes due to loss, theft, cancellation or otherwise; (iii) be liable for your failure to pay any fees billed to you by FR caused by your failure to provide FR with up to date billing information; and (iv) upon termination of the service, provide FR with a forwarding address for all final invoices or correspondence if your mailing address differs from that which you provided in your registration information for the service. Fees for professional services will be invoiced as specified in any applicable pricing agreement, Proposal or order, but unless specified otherwise in a pricing agreement, Proposal or order will be due upon completion of the applicable professional service.
4.3 Taxes. Unless otherwise stated, FR’s prices for the service and for professional services do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, “taxes”). You are responsible for paying all applicable taxes associated with your purchases pursuant to these terms, excluding taxes based on FR’s net income or property. If FR has the legal obligation to pay or collect taxes for which you are responsible under this section, the appropriate amount shall be invoiced to and paid by you, unless you provide FR with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.4 Pre-authorized payment. Pre-authorized payment / auto-renewal on subscription is not applicable as per the Statement of Work (Proposal) between You and FR.
4.5 Fee changes. FR may change the fees FR charges for the service and professional services at any time through a revised offer. Changes to the fees will be communicated by being posted on the FR website and will become effective at the time of posting, provided, however, any fee changes will not change your subscription fees applicable to your current subscription term, however, such fee changes will be applicable to your next subscription renewal. If you do not wish to pay the changed fees, then your sole recourse is to not renew your subscription for the service. Your renewal of your subscription for the service (including by not providing notice of non-renewal in accordance with the time periods specified in section 10.1) after a fee change has come into effect constitutes your acceptance of the fee change.
4.6 Suspension of service. If your account is sixty (60) or more days overdue in the case of half-yearly or annual or multi-year subscription term, then in addition to any of its other rights or remedies, FR shall have the right to suspend provision of the service to you without liability until such amounts are paid in full.
5.1 Reservation of rights. Subject to the limited rights expressly granted
pursuant to these terms, FR reserves all right, title and interest in and to the
service, including all related intellectual property rights. No rights are
granted to you pursuant to these terms other than as expressly set forth in
5.2 License restrictions. You shall use the service and your customer service-compatible application(s) solely as contemplated in these terms and shall not license, sub-license, sell, resell, lease, transfer, assign, distribute, time share or otherwise make the service and your customer service-compatible application(s) available to any third party except to the extent expressly agreed by FR in writing. You shall not: (i) modify, reverse engineer, decompile, disassemble, or create derivative works based on the service except to the extent that enforcement of this restriction is prohibited by applicable law notwithstanding a contractual provision to the contrary; (ii) circumvent any user limits or other use restrictions that are built into the service; (iii) use the service and your customer service-compatible application(s) for an illegal purpose, criminal offence, intellectual property infringement, harassment (including annoying or offensive transmissions) or in a manner that would cause interference with network operations; (iv) interfere with the service or any of the hardware, software or other infrastructure used to provide the service; or (v) access the service in order to build competitive product(s) or service(s), or to copy any ideas, features or graphics of the service.
5.3 Lawful purposes. You will comply with all laws and regulations that may apply to your use of the service and/or any customer service-compatible applications. You may not: (i) use the service and/or any customer service-compatible applications to manage any illegal operations; (ii) use any type of spider, crawler, virus, worm, Trojan-horse, time bomb or any other codes or instructions that are designed to damage or disable the technology underlying the service; (iii) send any unsolicited communication not permitted by applicable law; or (iv) endanger any part of any system or internet connection of FR or any third party.
5.4 Your data and anonymous service data. As between FR and you, you exclusively own all right, title and interest in and to all of your data. Your data is deemed to be your confidential information. FR shall only access your user accounts, including your data, to respond to service or technical problems or as necessary for the operation of the service or billing. All data provided by you shall at all times belong to you and FR shall indemnify you and compensate you on actual basis as regards any adverse consequences which may arise due to mis-utilization of data on the part of FR.
5.5 You as controller. You agree that in the event that you or any data is subject to IT Act or related data protection laws in India including the Personal Data Protection Bill: (i) you are the controller of your data and that FR is a processor; and (ii) you further represent that you have undertaken all requirements to comply with all privacy and data protection laws including but not limited to the IT Act. Such requirements may include but are not limited to maintaining adequate records and registration requirements with supervising or other regulatory authorities. In view of above, all data provided by you shall at all times belong to you and FR shall indemnify you and compensate you on actual basis as regards any adverse consequences which may arise due to mis-utilization of data on the part of FR
5.6 Legitimate purpose / consent. You agree and represent that all personal information you collect, provide, or otherwise use in any way in relation to the service and/or any customer service-compatible application(s) is necessary for your legitimate interest, which is not overridden by fundamental rights of the subject individual, and otherwise that you have all rights and have obtained all necessary consents to collect, provide and manage all personal information you provide to FR for any purpose. You further represent that you will not collect, provide or otherwise use in any way in relation to the service any special category of personal data as described in the IT Act.
6.1 Definition of confidential information. As used in these terms,
“confidential information” means all confidential and proprietary information of
a party (the “disclosing party”) disclosed to the other party (the “receiving
party”), whether orally or in writing, that is designated as confidential or
that reasonably should be understood to be confidential given the nature of the
information and the circumstances of disclosure, including your data and any
business and marketing plans, technology and technical information, product
designs, and business processes. Confidential information shall not include any
information that: (i) is or becomes generally known to the public without any
prior confidentiality obligation; (ii) was known to the receiving party prior to
its disclosure by the disclosing party without breach of any obligation owed to
the disclosing party; (iii) was independently developed by the receiving party
without breach of any obligation owed to the disclosing party; or (iv) is
received from a third party without breach of any obligation owed to the
6.2 Confidentiality. The receiving party shall not disclose or use any confidential information of the disclosing party for any purpose outside the scope of these terms, except with the disclosing party’s prior written permission.
6.3 Protection. Each party agrees to protect the confidentiality of the confidential information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
6.4 Compelled disclosure. If the receiving party is compelled by law to disclose confidential information of the disclosing party, it shall provide the disclosing party with 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 disclosing party is not successful in opposing such compelled disclosure obligation, then the receiving party may disclose the confidential information required to be disclosed pursuant to such compelled disclosure obligation.
6.5 Remedies. If the receiving party discloses or uses (or threatens to disclose or use) any confidential information of the disclosing party in breach of the confidentiality and non-use protections in these terms, the disclosing party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
7.1 Warranties. You warrant that you have the legal power and authority to enter into these terms.
8.1 Indemnification by you. You shall, on demand from FR, indemnify, defend and
hold FR, its affiliates and its and their directors, officers, employees,
contractors and agents (the “FR indemnitees”) harmless from and against any and
all damages, liability and costs, including but not limited to fines, penalties,
and attorneys’ fees, incurred by any of the FR indemnitees in connection with or
arising out of: (i) your violation or breach of these terms or any applicable
law or regulation, whether or not referenced in these terms; (ii) your violation
of any rights of any third party; (iii) your misuse of the service; or (iv) your
data and/or any of your customer service-compatible application(s).
8.2 Indemnification by FR: FR shall, on demand from You, indemnify, defend and hold You , its affiliates and its directors, officers, employees, contractors and agents (the “You indemnitees”) harmless from and against any and all damages, liability and costs, including but not limited to fines, penalties, and attorneys’ fees, incurred by any of the You indemnitees in connection with or arising out of: (i) FR violation or breach of these terms or any applicable law or regulation, whether or not referenced in these terms; (ii) FR violation of any rights of any third party; (iii) FR misuse of the service, (iv) mis-use of data provided by me to FR and upon me suffering from any adverse consequences due to misuse or misutilization of data on part of FR.
9.1 Limitation of liability. Save and except clause 5.5 and clause 8.2 of the
agreement, neither FR nor any of its affiliates, licensors, suppliers,
subcontractors and/or distributors (including their directors, officers,
employees, contractors and agents) shall have any liability to you or any other
person or entity for any damages (whether arising from these terms or related to
the service or any professional services provided to you by FR (including its
affiliates, licensors, suppliers, subcontractors and/or distributors) for any
indirect, reliance, incidental, special, punitive, exemplary or consequential
damages, including, but not limited to, loss of revenue or profit, fines or
penalties, loss of or damage to data, business interruption, loss of data,
replacement or recovery costs, or other commercial or economic loss, whether
arising from contract, equity, tort (including negligence or strict liability)
or any other theory of liability, even if FR (including its affiliates,
licensors, suppliers, subcontractors and/or distributors) has been advised of
the possibility of such damages, or they are foreseeable. Save and except clause
5.5 and 8.2 of the agreement, in no event shall FR’s aggregate liability arising
out of or related to these terms or related to the service or any professional
services provided to you by FR (including its affiliates, licensors, suppliers,
subcontractors and/or distributors), whether in contract, tort (including
negligence or strict liability) or under any other theory of liability, exceed
the total amount paid by you pursuant to these terms or, with respect to any
single incident, the amount paid by you under the terms for the service and/or
any professional services in the twelve (12) months preceding the incident. The
limitations in this section shall apply whether or not the alleged breach or
default is a breach or default of a fundamental condition or term or fundamental
9.2 Essential terms. The disclaimer of representations, warranties and conditions and limitation of liability in these terms constitute an essential part of these terms.
9.3 Beneficiaries. Every right, exemption from liability, release, defiance, indemnity, immunity and waiver of whatsoever nature applicable to a party under these terms shall also be available and shall extend to benefit and to protect such party’s affiliates, subcontractors, agents, licensors, suppliers and the directors, officers, employees, contractors and agents of the foregoing and for such purposes such party is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of such companies and persons in respect to the rights, exemptions, releases, defiances, indemnification, immunities and waivers applicable to such companies and persons.
10.1 Term of these terms. Service subscriptions purchased by you will entitle
you to use the service for the subscription term(s) set forth in your pricing
agreement and/or your quote(s) or applicable order(s). Service subscriptions may
be purchased for annual or multi-year subscription terms and such subscription
terms are renewable as follows: (i) for an annual subscription term – for an
additional one (1) year period commencing at the end of your current annual
subscription term provided that neither you nor FR has provided notice of
non-renewal at least forty-five (45) days prior to the end of your then-current
annual subscription term; and (ii) for multi-year subscription term – for the
same multi-year period as your current multi-year subscription term commencing
at the end of your current multi-year subscription term provided that neither
you nor FR has provided notice of non-renewal at least forty-five (45) days
prior to the end of your then-current multi-year subscription term. These terms
will commence on the date of your acceptance of the first quote for the service
issued by FR to you, the date of FR’s acceptance of your first order for the
service or the effective date of your pricing agreement incorporating these
terms, whichever occurred earlier, and shall continue thereafter for as long as
you have an active subscription term (which period shall constitute the “term”
of these terms).
10.2 Termination by You. You may terminate these terms (including all of your then-current subscription terms) and all of You’s rights to use the service by emailing FR at [email protected] with your termination request. Termination will occur once FR has disabled your ability to access and use the service (which FR will do within two (2) business days of receipt of your termination request). Your termination will not entitle you to any refunds.
10.3 Termination or suspension by FR. Without limiting other remedies FR may have, FR may limit, suspend, if you are in arrears in your payment for the service by more than sixty (60) days for annual or multi-year subscription terms upon providing prior notice of 90 days. FR shall also be entitled to terminate these terms (including all of your subscription term(s)) and your rights to access and use the service if you are: in breach of these terms; creating problems in respect to the operation of the service; creating legal liabilities (actual or potential) through your use of the service; acting inconsistently or in violation of any of FR’s policies; ; engaging in fraudulent, immoral or illegal activities; or for other reasons that could have an adverse effect on FR, its service providers or any other customers of the service. FR shall provide you with 90 days’ prior notice of termination by sending an email to the email address provided by you when registering for the service.
Both Parties shall immediately return and redeliver all tangible material embodying any Confidential Information provided hereunder and all documents or materials and all computerized media in the form of image, data, word processing, or other types of files either manually or by image capture based on or including any Confidential Information, in whatever form of storage or retrieval, upon (i) the completion or termination of the dealings between the parties contemplated hereunder; (ii) the termination of this Agreement; or (iii) at such time as per request from both parties to the other provided however that both parties may retain such of its documents as is necessary to enable it to comply with its reasonable document retention policies. Alternatively, both parties with the written consent of the other may immediately destroy any of the Confidential Information reasonably nonrecoverable data erasure of computerized data and, upon request, certify in writing such destruction by an authorized officer of the concerned party, supervising the destruction.
10.4 Effect of termination. Upon termination or expiration of these terms or any subscription term for the service, your ability to access and use the service (including your data) will end unless you renew your subscription for the service. Upon written request from you, FR will use commercially reasonable efforts to provide you with a copy of your data in csv format, provided that your access to the service was not terminated pursuant to section 10.3 and further provided that such request is made to FR within thirty (30) days of such termination or expiration. If you request a copy of your data, a minimum two (2) hour professional services fee will be applicable and you must pre-pay such fee before FR will begin the professional services to provide you with a csv copy of your data.
10.5 Outstanding fees. Termination of these terms (and/or suspension of your rights to access and/or use the service) shall not relieve you of the obligation to pay any fees accrued or payable to FR prior to the effective date of any such termination or expiration. If these terms and/or any subscription term(s) are terminated (or if your rights to access and/or use the service are suspended), you will not be entitled to a refund for the unused portion of any of your subscription term(s).
10.6 Surviving provisions. The following provisions shall survive any termination or expiration of these terms: Section 1, Section 4 and Sections 6 through 11 along with any provisions that are identified as surviving in any pricing agreement, quote(s), order(s) and/or Proposal(s) into which these terms may be incorporated.
11.1 Relationship of the parties. The parties are independent contractors. These
terms do not create a partnership, franchise, joint venture, agency, fiduciary
or employment relationship between the parties.
11.2 No third-party beneficiaries. Except as expressly provided in these terms, there are no third-party beneficiaries to these terms.
11.3 Notices. All notices under these terms shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email. Notices to FR shall be addressed to the attention of the Chief Executive Officer (CEO). Notices to you shall be addressed to your contact specified in your pricing agreement or in the last quote or order between you and FR.
11.4 Waiver and Cumulative remedies. No failure or delay by either party in exercising any right under these terms shall constitute a waiver of that right. Other than as expressly stated in these terms, the remedies provided in these terms are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.5 Severability. If any provision of these terms is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these terms shall remain in effect.
11.6 Assignment. Both parties may not assign these terms or any of rights or obligations under these terms, whether by operation of law or otherwise, without the prior written consent of the other. Both parties may assign these terms to any third party in the discretion of the concerned party. Any attempt by a party to assign its rights or obligations under these terms in breach of this section shall be void and of no effect. Subject to the foregoing, these terms shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.7 Force majeure. Neither party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of god, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labour problems (other than those involving the employees of the affected party), computer, telecommunications, internet service provider or hosting facility failures or delays involving hardware, software or power systems not within a party’s possession or reasonable control, provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.
11.8 Entire agreement. These terms, including all schedules hereto, constitute the entire agreement between the parties, and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning their subject matter. No modification, amendment, or waiver of any provision of these terms shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. These terms will apply to all pricing agreements, quotes, orders and/or Proposals into which these terms are incorporated including all of the provisions of any such pricing agreements, quotes, orders and/or Proposals. To the extent of any conflict or inconsistency between the provisions in the body of these terms and any schedule, Proposal or order, the terms in the body of these terms shall prevail. To the extent of any conflict or inconsistency between the provisions in the body of these terms and the provisions in any pricing agreement or quote(s), the terms the pricing agreement or quote(s), as the case may be, shall prevail in respect to the service subscriptions and professional services procured pursuant to such pricing agreement and/or quote(s). Notwithstanding any language to the contrary therein, no terms or conditions stated in any of your purchase orders or in any other order or purchase documentation shall be incorporated into or form any part of these terms, and all such terms or conditions shall be null and void.
The following terms and conditions are incorporated into the terms. Capitalized
words not defined in this schedule shall have the meaning ascribed to such words in
FR is willing to provide professional services on a time and materials or fixed price basis according to the terms and conditions set forth in this schedule A. Such professional services may include: instruction and training on the use of the service; evaluation, design and implementation of the service; custom development; and service deployment consultations.
1.General. All professional services to be performed by FR at your request shall be described in a statement of work, pricing agreement or order that has been mutually accepted.. Upon acceptance of an order for professional services or upon execution by authorized representatives of each party of a Statement of Work, each such order and statement of work shall become a part of the terms between you and FR. Each such accepted order and executed Statement of Work will incorporate the terms and conditions of the terms and this schedule A. In the event of a conflict between an order or a statement of work and this schedule A or the body of the terms, this schedule A or the body of the terms, as the case may be, shall prevail.
2.FR’s Obligations. FR shall perform professional services for you as described in any orders accepted by FR and any Pricing Agreement(s) or Proposals executed by the parties. FR shall perform such Professional Services in a reasonable and workmanlike manner in keeping with reasonable industry standards and practices. FR shall be entitled, in its sole discretion, to determine the method and means for performing the professional services. You acknowledge and agree that FR may retain the services of independent consultants (“Subcontractors”) from time to time to perform, or to assist FR in performing professional services under this schedule A, a Pricing Agreement or an order or a Statement of Work. FR personnel and/or Subcontractors shall remain under the direction and control of FR and will be selected by FR in FR’s discretion. FR shall be responsible to pay all fees, salary and professional expenses for all FR personnel and Subcontractors employed by FR. If FR is performing any professional services at your facilities, then FR shall comply with all of your facility-related policies, procedures and rules that have been communicated to FR in writing in advance of providing such Professional Services.
3.Your Obligations. You shall provide timely performance of your obligations under this schedule A or any Pricing Agreement, Order or Statement of Work as required for FR to perform its obligations under this schedule A or any Order or Statement of Work. In support of such obligations, you shall provide sufficiently qualified personnel who are capable of completing your duties and tasks pursuant to this schedule A or any order or Statement of Work. You acknowledge and agree that any delay on your part in the performance of your obligations will have an effect on FR’s performance of the Professional Services.
FR may provide professional services at your facilities or at FR’s facilities as set forth in the relevant Statement of Work or Pricing Agreement. If Professional Services are to be provided at your facilities, you shall provide FR with access to your facilities during normal business hours and at such other times as may be reasonably requested by FR to facilitate the timely performance of the professional services. You shall also provide FR personnel with working space and office support (such as telephone access, network connectivity and photocopying) while such personnel are performing professional services at your facilities.
You shall designate a project management contact for the purposes of communication with FR. The project management contact shall be the primary point of contact for you with FR for matters relating to the provision of Professional Services.
You shall ensure no personal information is provided to FR in the course of the Professional Services and that should you provide FR with personal information you will be solely and fully responsible for ensuring that you have a legal and legitimate basis to provide such personal information. You assume all liability for damages, costs, fines and penalties in relation to the personal information and agree to indemnify FR for any liability for damages, costs, fines and penalties in relation to the personal information.
4.Price and Payment. You shall pay FR the fees set forth in the applicable Pricing Agreement, Order or Statement of Work either on a time and materials basis at FR’s then-current price, or on a fixed price per project basis to be negotiated between the parties. You shall reimburse FR for all reasonable out of pocket expenses (including travel, lodging and related expenses) incurred by FR in the performance of any Professional Services or development of any deliverables. The fees for professional services shall exclude all applicable taxes.
Unless otherwise specified in a Pricing Agreement, Order or Statement of Work, FR shall invoice you for fees for Professional Services and other other actuals cost on could infrastructure, SMS and travels as specified in such pricing agreement, Order or Statement of Work. Professional services fees will be due immediately upon invoicing by FR. Purchased professional services are non-refundable. Any unused professional services will expire 24 months from the date of purchase.
5.Term and Termination. Each party shall be entitled to immediately terminate an order or Statement of Work for cause in the event of: (i) A material breach by the other party of its obligations under the terms, any pricing agreement, this Schedule a or such Order or Statement of Work, provided that such material breach is notified to such party and is not cured within thirty (30) days of the date of such notice, (ii) The filing of a bankruptcy petition by or against a party, the filing of an assignment for the benefit of creditors, the appointment of a receiver or trustee, (iii) The assignment or attempt to assign a Pricing Agreement, Order or Statement of Work to a third party (except as permitted in the terms). In the event of termination for cause, the non-defaulting party may terminate any orders or Statements of Work. The non-defaulting party’s right to terminate shall be in addition to any other rights that it may have in law or in equity.
6.Intellectual Property Rights. FR shall own all right, title and interest and all Intellectual Property Rights to any deliverables or custom development created by FR as specified in any Pricing Agreement, this Schedule a or any Order or Statement of Work pursuant to this agreement. FR shall retain all right, title and interest and all Intellectual Property Rights to any and all FR proprietary information and FR software. Subject to payment of the fees set forth in the applicable Pricing Agreement, Order or Statement of Work, FR grants to you a non-exclusive, non-transferable (except as provided in section 11.6 of the terms) license to use the deliverables solely in connection with your permitted use of the service as set forth in section 2 of the terms. However any data divulged by you to FR in course of or pursuant to the agreement shall be owned by you at all times during the subsistence of this agreement.
7.Non-Solicitation. Both parties shall not enter into a contract for or of service with an employee of the other party who has been involved with, directly or indirectly, any of the Professional Services or development of any deliverables within twelve (12) months of such employee’s last involvement with such Professional Services. You shall be permitted to make generalized employment searches, by advertisements or by engaging firms to conduct searches which are not focused on the employees of FR
8.RESOLUTION OF DISPUTES AND JURISDICTION: In case of any dispute, controversy claims or difference arising out of or under this agreement, the same shall be resolved by way of arbitration under a sole arbitrator appointed mutually by the parties. The arbitration proceedings shall be in accordance with the provisions of the Arbitration Act, 1996. The decision of the arbitrator shall be conclusive, final and binding. The place of arbitration shall be Mumbai. The invalidity or unenforceable of any provisions of this terms and conditions in any jurisdiction shall not affect the validity, legality or enforce-ability of the reminder of this Agreement in such jurisdiction or the validity, legality or enforce-ability of this Agreement including any such provision in any other jurisdiction, it being intended that all rights and obligations of the parties here-under shall be enforceable to the fullest extent permitted by Applicable Laws. This clause will survive the expiration, cancellation or termination of this Agreement.