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Terms of Service

PLEASE READ THESE TERMS OF SERVICE ("TOS”) CAREFULLY. BY CLICKING THE “ACCEPTED AND AGREED TO” TAB AT THE END OF THIS DOCUMENT, SUBSCRIBER AGREES TO THESE TERMS AND CONDITIONS.
THESE TOS TOGETHER WITH THE ORDER EXECUTED BY SUBSCRIBER WITH THE COMPANY (“ORDER”) CONSTITUTE AN AGREEMENT BY AND BETWEEN NIMBUSNEXT, INC., an entity incorporated under the laws of Delaware, United States of America and having its registered office at 651 N. Broad ST, Suite 201, Middletown, Delaware, 19709 (hereinafter referred to as the “Company” which expression shall, unless repugnant to the context or meaning thereof, be deemed to mean and include its successors and permitted assigns) and any natural or legal person licensing or accessing the PLATFORM (hereinafter referred to as THE “SUBSCRIBER”, which expression shall, unless repugnant to the context or meaning thereof, be deemed to mean and include its successors and permitted assigns), GOVERNING ACCESS AND/OR USAGE OF the COMPANY’S proprietary Platform which is offered on a “software as a service” or “SaaS” basis.
THESE TOS SHALL COME INTO EFFECT AS OF THE DATE SUBSCRIBER EITHER ACCESSES THE PLATFORM OR STARTS USING THE PLATFORM (“EFFECTIVE DATE”). The Company and the Subscriber are hereinafter, wherever the context requires, individually referred to as a “Party” and collectively as the “Parties”.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THESE TOS, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON ENTERING INTO THESE TOS ON BEHALF OF A CORPORATE ENTITY REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH CORPORATE ENTITY TO THESE TOS.

1. INTERPRETATION AND DEFINITIONS

Capitalized terms used in these TOS will have the definitions assigned below, or as indicated in context. Except as otherwise provided in the Agreement, technical terms commonly used in the industry will so be construed.
  • “Account(s)” means an account generated for the Subscriber to use the Subscription and manage its Permitted Users’ accounts during the Subscription Term. For the avoidance of doubt, an Account is specific to the Subscriber and under no circumstance may an Account be shared with any third-party.
  • “Affiliate(s)” shall mean any corporation, association, or other entity that directly or indirectly Controls, is Controlled by, or is under common Control with either Party, respectively, either currently or during the validity of the Agreement. As used in this definition, the terms “Control” or “Controlled” mean the direct or indirect ownership/possession of more than 50% of the voting interests of the subject entity.
  • “Agreement” shall mean these TOS together with the Order(s) executed by the Subscriber with the Company.
  • “AI Systems” shall refer to the suite of artificial intelligence and machine learning-driven technologies, software, systems, third-party services, frameworks, tools or open-source frameworks or integrations that are incorporated into and are integral to the Platform, including but not limited to natural language processing, deep learning algorithms, small language models (SLMs), large language models (LLMs) or other generative AI systems.
  • “Authorized Users” shall collectively mean and include Permitted Users and End Users, as defined hereunder in respect of the Platform and Widgets, respectively.
  • “Branding Elements” refers to any name, trade name, trademark, service mark, logo, symbol, acronym, or other distinctive identifier used to designate, advertise, or distinguish either Party’s goods, or services, including all associated goodwill and intellectual property rights.
  • “Cloud Hosting” means the provision of products and services by a third party, in a hosted, virtualized environment, accessible via the internet, utilized by the Company in providing Subscriber access to the Platform.
  • “Customer Business Offerings” shall mean customer-facing products, services, applications, instances, or solutions integrating the Widgets, whether or not commercialized by the Subscriber.
  • “Documentation” shall mean any accompanying documents, content, data, user guides, release notes, training materials, provided by the Company to the Subscriber that describes or supports the use of the Platform.
  • “Embedding Data” refers to the data generated by operating RAG Pipelines (defined below) upon the Pre-processed Data, which is suitable for further processing by the AI Systems.
  • “End-Users” shall mean the individuals accessing the Customer Business Offerings.
  • “Enhancements” shall mean any modification, update, upgrade, or addition to the Platform that, when made or added to the modules currently being used by the Subscriber, provides minor functionality enhancements, 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 as a part of their subscription to the Platform.
  • “Error” shall mean any verifiable and reproducible failure or inability of the Platform to perform any material functions set forth in the Documentation due to any programming defect in the Platform when used by the Subscriber as specified under the Agreement or the Documentation. The term “Error”, shall however, not include any failure or inability of the Platform that (i) results from the misuse or improper use of the Platform, (ii) does not materially affect the operation and use of the Platform, (iii) results from any modification to the Platform that is not a change authorized by the Company, (iv) results from any cause beyond reasonable control of Company including third party cloud environment, hardware, software, firmware, malicious code like virus, trojan or malware.
  • “Fees” shall mean the fees payable by the Subscriber to the Company for availing the Subscription as set forth in the applicable Order.
  • “Fixes” shall mean any modification or addition to the Platform that, when made or added to the solution or modules currently being used by the Subscriber, 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 as a part of their subscription.
  • “Inputs” refers to any data, information, instructions, prompts, or other materials provided or submitted to the AI Systems by the Subscriber for processing, analysis, or generation of Work Product. Inputs may include (but is not limited to) the Subscriber Data, Pre-processed Data, Embedding Data, configurations for fine-tuning of AI Systems towards generation of Widgets, and prompts provided by the Subscriber or its Authorized Users.
  • “Licensable Activity” shall mean any activity encompassed by any intellectual property rights and in the absence of a license, would give rise to liability for infringement (or inducement of infringement or contributory infringement) of such intellectual property rights.
  • “New Version” shall mean any modification, update, upgrade or addition that, when made or added to the Platform, provides major or minor functionality enhancements or changes the overall utility, functional capability, or application. New Versions are generally denoted by major version level (e.g., v1.0 to v1.1 or above) changes, as determined by the Company.
  • “Order” means a written order, that the Parties may enter into from time to time under these TOS to place an order for the Subscription, setting forth the details of the Platform to be provided by the Company, the Subscription Term, the applicable Fees, and such other terms as the Parties may agree related to the transactions contemplated by these TOS.
  • “Pre-processed Data” shall refer to Subscriber Data (defined below) uploaded to the Platform, which has undergone cleaning, transformation, structuring, enrichment, filtering and anonymization for optimal retrieval, storage, embedding generation and downstream processing by the Platform.
  • “Permitted User(s)” shall mean any employee and/or consultant of the Subscriber, who has been authorized by the Subscriber to use the Platform in accordance with the terms of the Agreement.
  • “Platform” shall mean the proprietary software of the Company known as “Yavi®”, which is more particularly described in the Annexure- A, annexed hereto including its Enhancements and New Versions (if any).
  • “RAG Pipeline” shall mean the Subscriber-configured pipeline for: (i) application of embedding and chunking methodologies to segment and transform the Pre-processed Data for further processing by the AI Systems; and (ii) storage in vector databases. The RAG Pipeline enables indexing, retrieval and analysis by the Platform’s AI Systems.
  • “Subscription” shall mean the license to use an internet accessible service offered by Company pursuant to an Order, under which the Platform provided by the Company through Cloud Hosting is made available for use to the Subscriber.
  • “Subscriber Data” refers to Input, Subscriber’s Brand Elements or any data, information, or material provided/uploaded by the Subscriber and/or its Authorized Users.
  • “Templates” refers to pre-configured AI-based modules provided by the Platform designed to deliver specific functionalities, including but not limited to chatbots, content summarization, question-and-answer systems, classification, translation, content creation, and search capabilities. For the sake of clarity, Templates may be understood as baseline modules which can be further customized or enhanced to build business-specific functionalities.
    • “Third-Party Integrations” shall mean technologies, software, tools, or services integrated into the Platform, which are furnished by third parties. Third-Party Integrations may include (but are not limited to) data connector APIs (for uploading Subscriber Data), Cloud Hosting, AI Systems, machine learning models and/or data processing frameworks which are utilized for creation of Pre-processed Data and in the RAG Pipeline, vector databases, open-source software components, or other external technologies or resources that are neither developed, owned, nor controlled by the Company.
    • “Widgets” shall mean AI-driven functional modules designed and configured by the Subscriber through the use of the Platform, which can be integrated into the Subscriber’s internal business applications, business workflows and/or Customer Business Offerings, encompassing use cases which include but are not limited to conversational chatbots, content summarization, question-and-answer systems, data classification, language translation, creative content generation, and search optimization. For the avoidance of doubt, while Widgets may be derived from Templates, not all Widgets are necessarily based upon or require the utilization of Templates.
    • “Work Product” refers to the Pre-processed Data, Embedding Data, Widgets or any data, text, images, code, analysis, recommendations, predictions, content, decisions or other content generated, produced, or provided by the Widgets. Work Product may include (but is not limited to) textual responses, data visualizations, summaries, analyses, code, programs, reports, charts, graphs, recommendations, predictive models, decision trees, interactive tools, automated content, synthetic media, personalized suggestions, documentation, templates, queries, user interfaces, videos, audio files, animations, infographics, interactive dashboards, personalized emails, content suggestions, and other AI-generated deliverables.

2. GRANT OF SUBSCRIPTION AND RESTRICTIONS

  • Grant of Subscription:
    • Upon the payment of Fees by the Subscriber, the Company grants to the Subscriber during the Subscription Term, a fixed-term, non-exclusive, non-transferable, revocable, non-sublicensable, worldwide and limited license to use the Subscription, for internal business use and/or commercial use of Widgets which is limited solely to integration under the Customer Business Offerings. subject to the terms and conditions of the Agreement. Nothing herein contained shall be construed as granting to the Subscriber any intellectual property right, including copyrights, regarding the Platform except as expressly provided for hereunder.
    • The Company may provide Enhancements to the Subscription that it generally provides to its other subscribers, without any additional or separate fee. Nothing under this provision, however, restricts the Company from charging a separate fee for New Versions of the Platform that it releases, subject to the Subscriber’s acceptance of availing the New Version.
  • Grant of license under the Widgets: The Company grants to the Subscriber a limited, fixed-term, revocable, non-transferable and worldwide license to sub-license the Widgets, during the Subscription Term, solely as a part of its Customer Business Offerings, subject to compliance with terms and conditions of the Agreement. For the avoidance of doubt, nothing under this Section 2b. shall be construed as a grant of license to the Platform which is in contravention to Section 2a.
  • Restrictions: The Subscriber itself shall not and shall ensure that its Permitted User shall not, directly or indirectly, i) copy, modify, adapt, translate, reverse engineer, decompile, disassemble, alter, reproduce or otherwise make any changes to the Platform; ii) use the Subscription in any manner to provide time-sharing, benchmarking or other computer services to third parties, or except as expressly provided herein, allow any third party to access or benefit from the functionality of the Platform; iii) use the Subscription or portion thereof in violation of any applicable laws or regulations (whether any local, state, federal, national or international laws); iv) allow use of the Subscription by its Affiliates or anyone other than the Permitted Users, unless otherwise agreed between the Parties in writing; v) use the Subscription to develop, market or sale any competing or similar product; vi) engage in any Licensable Activity; viii) use any of the Platform’s components, add-ons, files, modules, externals, contents including associated subscription material separately from the Platform; ix) itself or allow its Permitted Users to remove or modify any of the Company’s Branding Elements on the Platform or the Documentation or add any other markings or notices to the Platform or the Documentation; x) use the Platform to render and generate Work Product which facilitates, supports, or promotes: (i) gambling, betting, wagering or such similar activities; or (ii) facilitates creation and and/or dissemination of pornographic, obscene, or sexually explicit material, as may be restricted and/or regulated under applicable laws in all relevant jurisdictions. The Subscriber shall not use or permit the use of any software, hardware, application, or process that (i) interferes with the Platform, (ii) interferes with or disrupts servers, systems, or networks connected to the Platform, or (iii) accesses or attempts to access another customer’s accounts, servers, systems, or networks without authorization, or (iv) harasses or interferes with another subscriber’s use and enjoyment of the Platform, or (v) tamper with or breach the security of the Platform. All rights not specifically and unequivocally granted to the Subscriber are reserved by Company.
  • Restrictions regarding Subscriber Data:
    • The Subscriber is solely responsible for all the Subscriber Data transmitted on the Platform and/or the Customer Business Offering as applicable, and for ensuring that the Subscriber Data does not include anything that: (i) actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property rights of any third party; or (ii) constitutes personal data/ sensitive personal information under applicable laws; (iii) is restricted from disclosure pursuant to a third-party confidentiality obligation (including but not limited to price-sensitive information) or (iv) is obscene, defamatory, harassing, offensive, malicious or constitutes hate speech or other language inconsistent with generally accepted standards of decency and/or applicable laws; or (v) constitutes a breach of any contractual obligation the Company may have with a third party; or (vi) is incompatible with the Platform and/or introduces any software viruses or other harmful or deleterious computer code, files, or programs, such as trojan horses, worms, time bombs, or cancelbots; or (vii) violates or encourages violation of any applicable laws, rules or regulations.
    • The Subscriber hereby acknowledges and agrees that the Company shall: (i) at all times, possess the right to refuse to include and/or to cause the removal of any or all Subscriber Data for any reason at Company’s sole discretion; and (ii) have no obligation to retain any Subscriber Data on the Platform.
  • Usage-related restrictions: The Subscriber agrees and understands that the Platform shall be used solely for legal, ethical and constructive purposes. The Subscriber is restricted from using the Platform to generate any Work Product which: (i) violates applicable laws; or (ii) promotes harmful activities, including but not limited to incitement of violence, hate speech, discrimination, harassment; or (iii) is fraudulent, misleading or deceptive; or (iv) creates or distributes malicious code, virus, malware or other harmful software; or (v) breaches the privacy of third-parties (including other Subscribers). The Subscriber understands that the Company shall have no liability in respect of any Work Product which falls under this Section 2e. and further agrees to indemnify, keep indemnified, defend and hold harmless the Company and its Affiliates and their respective directors, officers, employees, representatives, against any and all claims, allegations, demands, costs or damages arising out of or in connection with the breach of this Section 2e.

3. SUBSCRIBER’S RESPONSIBILITIES

  • Account Management: The Subscriber shall have administrative rights to manage the accounts of its Permitted User(s), at its discretion. Solely the Subscriber shall be responsible for managing its Account and accounts of any of its Permitted User(s) and updating the same from time to time. As a condition for using the Subscription, the Subscriber and the Permitted Users shall be required to register with the Company and select a password and enter respective email addresses. The Subscriber will ensure that the Permitted Users shall provide the Company with accurate and complete information for registration and update it from time-to-time. The Subscriber understands that failure to do so shall constitute a breach of the Agreement, which may result in immediate termination of Permitted User’s account. The Subscriber and Permitted Users shall be responsible for maintaining the confidentiality of its Account and/or respective accounts. Such Accounts are non-transferable. Company shall not be liable for any loss of data or functionality caused directly or indirectly by the Permitted Users or any third party.
  • Responsibility for IT infrastructure: The Subscriber acknowledges and accepts full and exclusive responsibility for the management, operation, and security of its own information technology infrastructure, which includes but is not limited to computers, servers, software, databases, electronic systems (including database management systems), and networks, regardless of whether these are operated directly by the Subscriber or through third-party service providers. The Subscriber expressly agrees to assume full responsibility for ensuring that its information technology infrastructure is properly configured and maintained to enable seamless integration with any Work Product generated by the Platform, and acknowledges and accepts all risks, liabilities, and consequences arising from or related to such integration. The Company bears no obligation or liability for the Subscriber’s failure to configure or maintain its infrastructure appropriately, nor for any disruptions, data loss, or operational failures resulting from the Subscriber’s inability to manage its systems. To mitigate such risks, the Subscriber shall implement and maintain robust backup systems, covering all critical data, including any data derived from or related to Work Product, ensuring operational continuity and data preservation at all times.
  • Training and Operational Competence: The Subscriber acknowledges and agrees that it bears sole and exclusive responsibility for ensuring that its Permitted Users possess the requisite knowledge, training, and proficiency necessary to effectively and efficiently utilize the Platform’s functionalities. This includes, but is not limited to, activities involving choice of specific Third-Party Integrations (including the choice of Vector and Graph databases), the generation of Pre-processed Data and Embedding Data, configuration of RAG Pipelines (including but not limited to GraphRAG, VectorRAG and AgenticRAG), usage and fine-tuning and benchmarking of AI Systems, and the generation, customization, and deployment of Widgets. The Subscriber further acknowledges that the Company disclaims any responsibility or liability for any errors, inefficiencies, or failures arising from the Subscriber’s or its Permitted Users’ use or misuse of the Platform, including any deficiencies in training, competence, or understanding of the Platform’s capabilities or limitations.
  • Compliance with terms and conditions governing usage of Third-Party Integrations: The Subscriber understands that in the event any Third-Party Integrations are being incorporated into the Platform at the Subscriber’s choice, the Subscriber shall be solely responsible for complying with such applicable third-party terms and conditions. The Company shall have no liability in respect of any claims arising out of non-compliance or infringement of terms and conditions governing the use of such Third-Party Integrations.
  • Compliance with Laws: The Subscriber shall comply with all applicable local, state, national and foreign laws in connection with its use of the Subscription, including those laws related to data privacy, international communications, and the transmission of technical or personal data. The Subscriber acknowledges that Company exercises no control over the content of the information transmitted by the Subscriber or the Authorized Users through the Platform and/or Customer Business Offerings, as the case may be. The Subscriber 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.
  • Unauthorized Use; False Information: The Subscriber shall and ensure that its Permitted Users shall: (i) maintain confidentiality of Account credentials and passwords and not disclose the same to any unauthorized third parties, (ii) notify the Company immediately of any unauthorized use of its Account, Permitted User’s account or any other known or suspected breach of security, (iii) use reasonable efforts to stop such unauthorized use or security breach and (iv) not provide false identity information to gain access to the Platform or use the Subscription. The Subscriber understands that if Company suspects any breach of this provision, including without limitation by Permitted Users, Company may suspend Subscriber’s access to the Platform without prior notice, in addition to such other remedies at law or equity, as the Company may have.
  • Access: The Subscriber shall be solely liable for: (i) the usage of the Platform by all Permitted Users; and (ii) access/usage of the Customer Business Offerings (which integrate the Widgets) by Subscriber’s End Users. Further, the Subscriber shall ensure that the Permitted Users adhere to the terms of the Agreement. The Subscriber understands that the Company reserves its right to refuse or terminate: (i) any Permitted Users’ account in case of any Permitted Users’ breach of the Agreement; and (ii) any End Users’ access or usage of the Customer Business Offetings for such conduct which is non-compliant with these TOS. The Subscriber shall be solely liable for the usage of the Platform and Customer Business Offerings by all Permitted Users and End Users, as the case may be and shall indemnify and save harmless the Company from and against any claims in relation to usage of the Platform, Subscription or Customer Business Offerings by the applicable Authorized Users.
  • System requirements: The Subscriber acknowledges that, for accessing and use of the Platform, the Permitted Users may be required to use one or more compatible devices, internet services and certain software and may require obtaining updates or upgrades of the Platform from time to time.
  • Usage and Configuration Metrics and Analytics: The Company, and its third-party service providers that perform services in connection with the Subscription may collect information regarding number of Permitted Users, number of devices, per user storage capacity, aggregate storage usage of the Subscriber and may use such information only for Company’s internal business purposes, including to perform its obligations under the Agreement and to ensure compliance with the Agreement.

4. INTELLECTUAL PROPERTY RIGHTS

  • The Platform (and source code libraries, designs, methods, procedures, protocols thereunder), knowledge, experience, know-how and Platform customizations, Documentation, Enhancements, New Versions, Templates, Widgets, Company’s Branding Elements (collectively referred to as “Company Content”), and any and all rights thereto, including title, ownership rights and intellectual property rights such as copyrights, trademarks, service marks and patents therein is the sole and exclusive property of the Company. The Agreement does not grant the Subscriber or any of its Authorized Users any rights, title and interest in and to the Company Content, except where expressly and unequivocally granted herein.
  • From time to time, the Subscriber and/or its Permitted Users may provide feedback, suggestions, requirements, or recommendations (“Feedback”) regarding the Platform or the Subscription. The Subscriber hereby assigns to Company all right, title and interest into such Feedback and an exclusive right to create any developments based on such Feedback.
  • The Subscriber shall retain title to and all ownership rights in its Branding Elements, Inputs, Subscriber Data, Pre-processed Data and Embedding Data. The Subscriber grants to Company a worldwide, non-exclusive, and non-transferable, limited-term license to host, copy, transmit, analyse, process, display, store, and configure the Subscriber’s Branding Elements, Subscriber Data, Pre-processed Data and the Embedding Data, solely as necessary to provide the Subscription and generate/ customize Widgets.
  • The Subscriber agrees that the Subscriber shall not assert, or authorize, assist, or encourage any third party to assert, against Company or any of its Affiliates, vendors, business partners, or licensors, any infringement or misappropriation of intellectual property infringement claim regarding the Company Content.

5. NON-EXCLUSIVITY

The Subscriber understands and acknowledges that its right to generate specific Work Product (including Widgets) using the Platform is on a non-exclusive basis and it shall not prejudice the Company’s or its other subscribers’ right to build and commercially exploit same or similar Work Product.

6. USE OF THIRD-PARTY INTEGRATIONS

  • The Subscriber hereby acknowledges and agrees that the operation, performance, and availability of the Platform, inclusive of the AI Systems and any associated features or services, may be contingent, in whole or in part, upon the integration, utilization, or reliance on Third-Party Integrations.
  • Notwithstanding anything to the contrary in this Section or elsewhere in this Agreement, the Company neither grants nor purports to grant any rights, nor does it impose any obligations that would amend, modify, or otherwise conflict with the terms and conditions of any license governing Third-Party Integrations. In the event of any conflict or inconsistency between the terms of this Agreement and the terms of any such applicable third-party license, the terms of the applicable license shall prevail and govern with respect to the relevant Third-Party Integrations.

7. FEES

  • In consideration of the Subscription, the Subscriber shall pay the Fees as set forth in the applicable Order. The Fees shall be paid within fifteen (15) days of invoice being issued by the Company to Subscriber.
  • Except as otherwise specified in the applicable Order, the Fees is non-cancellable and non-refundable; and all the Fees and charges under the Agreement shall be exclusive of applicable taxes, cess, duties (“Taxes”) and such Taxes shall be borne by the Subscriber.
  • The Subscriber shall not set-off or offset against Company’s invoices, amounts that the Subscriber claims are owed to it by the Company under the Agreement, or any Order and the Subscriber will bring any claims or cause of action it may have in a separate action.
  • The Subscription shall commence only upon full payment of Fees and automatically terminate on the expiration of the Subscription Term.

8. SUSPENSION

In the event of any breach of Agreement by Subscriber (including non-payment of Fees), without limiting Company’s other rights and remedies and notwithstanding anything in the Agreement to the contrary, Company may temporarily suspend Subscriber’s use of the Platform. Company will provide at least ten (10) days’ notice prior to any suspension under this Section, except where Company reasonably believes immediate suspension is necessary. The Company shall resume providing access to the Platform as soon as possible after the event giving rise to the suspension is cured. If Subscriber does not fully address the reasons for the suspension within sixty (60) days after suspension, Company may terminate Subscriber's access to the Platform as per Section 8 of these TOS.

9. TERM AND TERMINATION

a. Term: The Agreement shall commence on the Effective Date and continue until the expiration of all Subscription Terms in accordance with the Agreement have expired or been terminated (“Term”).
The Subscription for the Platform is granted to the Subscriber for a subscription period subscribed by the Subscriber through an applicable Order, unless the Order is terminated in accordance with the Agreement ("Subscription Term").
b. Termination for cause: Either Party may terminate these TOS or the applicable Order in the event that the other Party is in default of any of its material obligations hereunder and such default is not remedied within sixty (60) days of receipt of written notice thereof.
Either Party may terminate these TOS and applicable Order immediately with a written notice to the other Party if the other Party is adjudicated bankrupt or becomes insolvent, makes any assignment for the benefit of creditors, proceedings are instituted by the other Party seeking relief, reorganization or rearrangement under any laws relating to insolvency, bankruptcy or similar laws of any jurisdiction, a receiver, liquidator or trustee is appointed in respect of any property or assets of the other Party or an order is made for the liquidation, dissolution or winding up of the other Party.
c. Consequences of termination: Upon the expiry or any termination of the Agreement or any Order the Subscriber’s right to use the Subscription shall immediately cease. Further, any Fees due for the Subscription or for the prior to the expiration or termination date shall be paid immediately but no later than seven (7) days from the receipt of the invoices thereof. Further, upon expiration or termination of the Agreement (other than termination by Company for Subscriber’s breach), Subscriber may access the Platform for a period of thirty (30) days to retrieve a backup of the Subscriber Data, Pre-processed Data and Embedding Data provided/uploaded by the Subscriber, beyond which such access to the Platform shall be provided at a rate equal to the Fees under the applicable Order, pro-rated to the duration of such access. The Company shall be under no obligation to maintain or provide access to the Subscriber Data, Pre-processed Data or Embedding Data after the above period has expired and will delete the same, unless legally prohibited.

10. CONFIDENTIALITY

  • “Confidential Information” shall mean information disclosed by one Party to the other and which includes, without limitation the Platform, Documentation, Enhancements, New Versions, Fixes, financial, business, technical and marketing information, business plans, methods, processes, inventions, techniques, designs, data, know-how, ideas, concepts, strategies, trade secrets, and such other information. Confidential Information does not include information which: (i) is or becomes available in the public domain without the disclosure by the receiving Party and without breach of any agreement or confidentiality obligation; (ii) was known to the receiving Party at the time such disclosure was made, or becomes known to the receiving Party from any third party without breach of any confidentiality agreement with such third party; (iii) is independently developed by the receiving Party without violating any confidentiality obligations stated herein or access or use of the disclosing Party’s Confidential Information, as evidenced by written records.
  • The receiving Party shall only use Confidential Information for the purpose in furtherance of which it is disclosed. Furthermore, the receiving Party shall keep Confidential Information received from the disclosing Party, in strict confidence and shall not disclose it to any third parties, except to a limited group of the receiving Party’s directors, officers, agents, authorized representatives on a need-to-know basis. In the event, the disclosing Party is required to disclose the Confidential Information of the disclosing Party pursuant to a court order or government authority, then the Confidential Information shall be disclosed by the receiving Party, but only to the extent so ordered, and provided that the receiving Party promptly notifies the disclosing Party of the pending disclosure in writing so that the disclosing Party may attempt to obtain a protective order or otherwise protect the confidentiality of the Confidential Information. In the event of a possible disclosure under this subsection, if requested by the disclosing Party, the receiving Party will provide reasonable assistance to the disclosing Party (at the disclosing Party’s expense) in obtaining a protective order or otherwise protecting the confidentiality of the Confidential Information.
  • 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. Notwithstanding the disclosure of Confidential Information, all Confidential Information shall be and shall remain the sole property of the disclosing Party.
  • 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.
  • The confidentiality obligations stated herein in this Section 8 (Confidentiality) shall survive for a period of three (3) years from the date of termination or expiration of the Agreement.

11. DATA SECURITY AND PRIVACY

  • The Company acknowledges the importance of the Subscriber Data uploaded by the Subscriber on the Platform and/or Confidential Information shared with the Company. The Company takes commercially reasonable administrative, physical and electronic measures for protecting the Subscriber Data from unauthorized access, disclosure or use of the Subscriber Data and/or Confidential Information collected from the Subscriber.
  • Subscriber agrees that, without limitation of Company’s obligations under this Section Data Security and Privacy, Subscriber is solely responsible for its use of the Platform, including: (a) making appropriate use of the Platform to ensure a level of security appropriate to the risk in respect of the Subscriber Data and any personal data contained therein; and (b) securing any account authentication credentials, systems, and devices Subscriber uses to access or connect to the Platform, where applicable. The Subscriber is responsible for reviewing the information made available by the Company relating to data security and making an independent determination as to whether the Platform meets Subscriber’s requirements and legal obligations under applicable laws.
  • The Subscriber acknowledges and understands that Subscriber Data shall be transmitted over the internet, including through the means of Cloud Hosting and over various networks, the absolute security of which cannot be warranted and guaranteed by the Company. Accordingly, the Company shall have no liability to the Subscriber for any unauthorized access, disclosure or loss of Subscriber Data and/or Confidential Information, except to the extent solely and directly attributable to Company’s gross negligence or willful misconduct.
  • Data backup: While the Company shall use commercially reasonable efforts to safeguard and accurately maintain Subscriber Data, consistent with industry security standards and backup procedures, the Company takes no responsibility for retention of the Subscriber Data, Pre-processed Data and/or Embedding Data. The Subscriber shall be solely responsible for creating and maintaining backups of Subscriber Data, Pre-processed Data and/or Embedding Data generated through use of the Platform, to avoid losses thereof.
  • Subscriber’s use of Platform for the processing of personal data will comply with all applicable data protection and privacy Laws. Subscriber has sole responsibility for the accuracy, quality, and legality of personal data and the means by which Subscriber acquired such personal data. The Subscriber is responsible for providing notice to, and obtaining consents from, individuals regarding the collection, processing, transfer and storage of such personal data through Subscriber’s use of the Platform.
  • The Subscriber acknowledges and understands that the Subscriber will not upload on the Platform or otherwise provide to the Company any sensitive data or information including, without limitation, (1) protected health information regulated under the Health Insurance Portability and Accountability Act of 1996 and related regulations (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”); (2) “cardholder data” as defined under the Payment Card Industry Data Security Standard (PCI DSS); or (3) “nonpublic personal information” as defined under the Gramm- Leach-Bliley Act of 1999, in each case as such Acts and standards have been or may be supplemented and amended from time to time. THE COMPANY EXPRESSLY DISCLAIMS ALL LIABILITY WITH RESPECT TO ANY SUCH DATA. If the Subscriber seeks to utilize the Platform for such data, the Subscriber must provide prior written intimation and request for authorization from the Company; the Subscriber must clearly identify and provide written details of the additional compliance requirements for such sensitive or regulated data. The Company may, in such scenarios, recommend usage of alternative services or Platform implementation methodology.
  • Subscriber is solely responsible for ensuring that any authorized transfer of Subscriber personal data or Subscriber Data across countries made by the Company at the Subscriber’s direction complies with all laws, including, but not limited to, any cross-border data transfer requirements or prohibitions
  • The Company respects privacy and data protection rights and will protect the Subscriber’s personal data in accordance with the Company’s Privacy Policy. The Company does not use any Subscriber Data for any purpose other than to provide the Purpose identified above. The Company does not train any models on Subscriber Data. The Company does not share Subscriber Data with any AI providers with the purpose of improving the Platform. Upon a request made by the Subscriber, the Company shall enter into appropriate data processing addendum to comply with personal data transfers and processing requirements under applicable data protection laws.

12. NON-SOLICITATION

The Subscriber agrees that it will not, during the term of the Agreement and for a period of two (2) years after the termination or expiration of the Agreement, directly or indirectly, solicit or hire the services of (for employment, consulting or otherwise), accept the services of, or employ or engage any person who is employed by the Company.

13. WARRANTY DISCLAIMERS

  • Limited Warranty: Company warrants that the Platform will perform substantially in conformity with the Documentation. This limited warranty is void if failure of the Platform has resulted from (i) failure to use the Platform in accordance with the Agreement or the Documentation, (ii) modifications made by the Subscriber, an Authorized User, or a third party not authorized by Company, (iii) a Force Majeure Event (as defined below), or (iv) any material breach of the Agreement by the Subscriber (other than non-payment of Fees); or (v) breach of the terms of the Agreement by a Permitted User. In the event of any Error in the Platform, the Subscriber’s sole and exclusive remedy, and Company’s entire obligation and liability shall be, at Company’s sole option, to either (i) provide Fixes to the Platform, (ii) correct or replace the Platform, or (iii) refund the Subscriber, a pro-rated amount of the applicable Fees pre-paid by the Subscriber covering the whole months that would have remained, absent such early termination, in the Subscription Term following the effective date of such early termination, and terminate the Agreement. Any corrected, upgraded or updated version of the Platform will be warranted for the remainder of the Subscription Term. All warranty claims must be made to Company in writing within such Subscription Term.
  • General disclaimer of warranties: EXCEPT AS SET FORTH IN THIS SECTION, THE SUBSCRIPTION, INCLUDING THE PLATFORM AND WORK PRODUCT, IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT ANY REPRESENTATIONS, CONDITIONS, WARRANTIES, OR COVENANTS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. THE COMPANY DOES NOT WARRANT THAT THE PLATFORM OR ANY WORK PRODUCT WILL BE ERROR-FREE, UNINTERRUPTED, OR SECURE, OR THAT ANY DEFECTS IN THE PLATFORM WILL BE CORRECTED. THE COMPANY DISCLAIMS ALL LIABILITY FOR ANY ISSUES ARISING FROM THE USE OR RELIANCE ON ANY GENERATED WORK PRODUCT, INCLUDING ANY INACCURACIES OR FAILURES IN ITS CONTENT, FUNCTIONALITY, OR PERFORMANCE. THE SUBSCRIBER ACKNOWLEDGES THAT COMPANY DOES NOT CONTROL THE ACCURACY OF THE SUBSCRIBER DATA PROVIDED BY SUBSCRIBER’S AUTHORIZED USERS, TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SUBSCRIPTION MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.
  • The Subscriber acknowledges and understands that COMPANY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR: (I) ANY UNAUTHORIZED ACCESS TO OR USE OF THE PLATFORM/WIDGET AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR, TECHNICAL INFORMATION STORED THEREIN, (II) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE PLATFORM BY ANY THIRD PARTY, (iii) the Cloud Hosting that makes the Platform available will be free of viruses or other harmful components or non-infringing or will function in accordance with the Documentation, AND/OR (IV) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, COMMUNICATED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE PLATFORM OR THE SUBSCRIPTION. COMPANY AND ITS LICENSORS CANNOT GUARANTEE AND DO NOT PROMISE ANY SPECIFIC RESULTS FROM THE USE OF SUBCRIPTION.
  • Specific disclaimer for AI use and Work Product: THE PLATFORM UTILIZES AI SYSTEMS, TO GENERATE THE WORK PRODUCT. THE NATURE OF AI-POWERED GENERATION INVOLVES INHERENT RISKS, INCLUDING BUT NOT LIMITED TO INACCURACIES, BIAS, ERRORS, OR INCOMPLETE INFORMATION IN THE WORK PRODUCT. THE COMPANY DOES NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR RELIABILITY OF ANY WORK PRODUCT AND DISCLAIMS ANY LIABILITY ARISING FROM RELIANCE ON SUCH WORK PRODUCT. THE SUBSCRIBER ACKNOWLEDGES THAT AI-ASSISTED RESULTS CAN VARY WIDELY, AND THE COMPANY IS NOT LIABLE FOR ANY LOSSES, DAMAGES, OR CONSEQUENCES ARISING FROM THE USE OF SUCH OUTPUT IN ANY CONTEXT, INCLUDING BUT NOT LIMITED TO DECISION-MAKING, AUTOMATION, OR INTEGRATION WITH THIRD-PARTY SYSTEMS. USERS ARE ADVISED TO REVIEW ACCURACY AND MAKE MANUAL CORRECTIONS AS APPROPRIATE.
  • Disclaimer for Subscriber Data: NOTWITHSTANDING ANYTHING CONTAINED UNDER THIS AGREEMENT, THE SUBSCRIBER UNDERSTANDS THAT THE COMPANY DOES NOT CONTROL, MONITOR, OR BEAR RESPONSIBILITY FOR THE SUBSCRIBER DATA UPLOADED, INTEGRATED, OR PROCESSED THROUGH THE PLATFORM, INCLUDING THE PRE-PROCESSED DATA AND EMBEDDING DATA THAT MAY BE USED TO GENERATE WIDGETS AND/OR CREATE CUSTOMER BUSINESS OFFERINGS. THE SUBSCRIBER REMAINS SOLELY RESPONSIBLE FOR ENSURING THAT SUBSCRIBER DATA COMPLIES WITH THESE TOS AND ALL APPLICABLE LAWS AND REGULATIONS AND DOES NOT VIOLATE ANY THIRD-PARTY RIGHTS OR CAUSE DAMAGE OR HARM. THE COMPANY SHALL NOT BE LIABLE FOR ERRORS OR OMISSIONS IN SUCH CONTENT AND ITS IMPACT ON THE WORK PRODUCT.
  • Specific disclaimer for Third-Party Integrations: THE PLATFORM MAY INCORPORATE OR RELY ON THIRD-PARTY INTEGRATIONS (INCLUDING SUCH THIRD-PARTY INTEGRATIONS INCORPORATED AT THE SUBSCRIBER’S BEHEST), WHICH MAY BE SUBJECT TO LIMITATIONS, DELAYS, OR OTHER INHERENT RISKS. THE COMPANY DISCLAIMS ALL LIABILITY FOR ANY ISSUES ARISING UNDER THE PLATFORM AND THE WORK PRODUCT, INCLUDING ANY INACCURACIES, UNAVAILABILITY, OR DAMAGE CAUSED BY SUCH THIRD-PARTY INTEGRATIONS.
  • Disclaimer for usage of Platform in performing Critical Activities: The Platform is not intended to be used for activities which involve high risk/hazard or performance in fail-safe scenarios, wherein the failure of Platform could result in death, bodily injury, significant harm to the environment or property damage (“Critical Activities”). Accordingly, the Company disclaims any express or implied warranties of fitness for Critical Activities.

14. INDEMNITY

The Subscriber shall indemnify, keep indemnified, defend and hold harmless Company and its Affiliates and their respective directors, officers, employees, representatives, against any and all claims, allegations, demands, costs or damages arising out of or in connection with (a) the Subscriber’s breach of any of the terms and conditions of the Agreement; (b) the Subscriber’s breach of or violation of applicable laws and regulations, (c) use of the Platform, or the Subscription other than as permitted under the Agreement; (iv) any acts or omissions on part of the Authorized Users; or (e) a third party claim for infringement or misappropriation of third-party intellectual property rights due to the acts or omissions of Subscriber or its Authorized Users, including but not limited to claims arising out of Subscriber Data uploaded to the Platform or the Customer Business Offerings.

15. LIMITATION OF LIABILITY

  • The Company shall have no liability for any losses, damages, or injury which results from the Subscriber’s or any third parties’ negligence, lack of training, use or misuse, or misapplication of the Platform.
  • Neither Party SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR SPECIAL DAMAGES (INCLUDING LOSS OF BUSINESS, GOODWILL, REVENUE, USE OR OTHER ECONOMIC ADVANTAGE, BUSINESS INTERRUPTION, OR ANY ALTERATION, COMPROMISE, CORRUPTION OR LOSS OF SUBSCRIBER DATA), HOWSOEVER CAUSED IN CONNECTION WITH the AGREEMENT EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
  • THE MAXIMUM LIABILITY OF COMPANY (WHETHER IN CONTRACT, TORT, OR UNDER LAW OR IN EQUITY) HEREUNDER FOR ALL DIRECT DAMAGES, UNDER OR IN CONNECTION WITH the AGREEMENT, REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO THE FEES RECEIVED BY COMPANY FROM THE SUBSCRIBER IN THREE (03) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT UNDER THE APPLICABLE ORDER IN RELATION TO WHICH SUCH CLAIM HAS ARISEN. THE FOREGOING EXCLUSIONS OR LIMITATIONS OF LIABILITY SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY OR REMEDY HEREIN. NO CLAIM AGAINST COMPANY MAY BE BROUGHT MORE THAN ONE (1) YEAR AFTER THE FACTS GIVING RISE TO SUCH CLAIM HAVE ARISEN.

16. AUDIT

  • The Company will have the right to audit the Subscriber’s use of the Platform during business hours by giving prior notice of five (05) days to verify that the Platform is being used in compliance with the Agreement.
  • The Subscriber will use its best efforts to promptly correct any deficiencies related to its performance under the Agreement discovered through any audit described hereunder. In the event the Company identifies a discrepancy of at least five percent (5%) (expressed as a percentage of total Fees for the Subscription reviewed, as further described in the Order in any audit of any of the Subscriber’s usage, then in addition to any other payments or reimbursements required to be made by the Subscriber pursuant to the Agreement, the Subscriber will also promptly reimburse the Company, or otherwise pay for the full cost and expense of the audit (including actual costs and expenses).
  • In addition to the same, in case the Fees are charged and if it is found during such audit by the Company that the Subscriber has authorized more users than the Subscriber has purchased accounts for, the Subscriber shall be liable to immediately pay the applicable Fees for such additional users (it shall be deemed that such unreported users have had an access during the full Subscription Term).

17. MISCELLANEOUS

  • Assignment: The Subscriber will not assign, transfer, license, franchise or otherwise convey the Agreement or any rights or services hereunder or delegate obligations hereunder to any third party without the Company’s prior written consent.
  • Binding Effect: Except as otherwise provided herein, the Agreement shall inure to the benefit of and bind the successors and permitted assigns of the Parties hereto.
  • Governing Law: The Agreement and its performance shall be governed by the laws of State of Delaware, United States of America, without reference to its choice of law provisions.
  • Dispute Resolution: The Parties will submit disputes out of or relating to the formation or performance of the Agreement to binding arbitration administered by JAMS under its Comprehensive Arbitration Rules and Procedures then in effect. The arbitration will be conducted in the English language, before a single arbitrator possessing expertise in the subject matter of the dispute. The results of such arbitration may be entered into in the competent courts of Delaware.
  • Export Laws: Subscriber understands that the Platform and/or Widgets and the export and re-export of data via the Platform and/or Widgets may be controlled by the laws, regulations and rules of one or more countries governing technology use and transfer, including U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and economic sanctions programs implemented by the Office of Foreign Assets Control. The Subscriber and its Authorized Users will not use the Platform and/or Widgets or transfer any technology or data via the Platform and/or the Widgets in violation of such laws, regulations or rules. The Subscriber represents that neither it nor its Authorized Users are on any denied or restricted party list.
  • Order of Precedence: If there is any conflict between an Order or any other terms and conditions executed between the Parties and the terms and conditions of the main body of these TOS, then the terms of the Order to the extent of the conflict shall govern.
  • Entire Agreement: The Agreement constitutes the entire agreement of the Parties as to the matters set forth herein and shall supersede any previous oral or written agreements between the Parties relating to the matters set forth herein. Any amendment to the Agreement must be in writing and signed by the authorized representatives of both Parties unless otherwise provided herein.
  • Force Majeure: Except for payments due hereunder, neither Party will be in default nor liable for any delay or failure to comply with the Agreement if such delay or default is caused by conditions beyond its reasonable control, including without limitation, acts of God, natural disasters, epidemics, pandemics, quarantine restrictions, lock downs, war or other hostilities, labor disputes, civil disturbances, governmental acts, orders or regulations (each a “Force Majeure Event”). In a Force Majeure Event persists consecutively more than thirty (30) days, Parties shall mutually decide the subsistence of the Agreement.
  • Use of name and logo: The Subscriber hereby grants Company a permission to use the Subscriber’s name and logo in Company’s marketing materials, website, case studies, etc. for promotional purposes or otherwise publicly announce or comment on the Agreement with prior written consent from the Subscriber, which shall not be unreasonably withheld.
  • Relationship of the Parties: Nothing in the Agreement is intended to or shall be deemed to; appoint one of the Parties as an employee or agent of the other or to constitute a partnership, joint venture or fiduciary relationship between the Parties.
  • Notices: All notices under this Agreement must be in writing and either mailed by certified or registered mail, express courier or hand delivered to each Party at the address set forth below:
  • Surviving Sections: If the Agreement is terminated for any reason before Subscriber has paid to Company all the sums due, the provisions of the Agreement and all amendments shall survive such termination to the extent necessary to protect Company rights until all sums owed to Company have been paid.
  • Waiver: A failure or delay of either Party to require strict performance to enforce a provision of the Agreement or a previous waiver or forbearance by either Party shall in no way be construed as a waiver or continuing waiver of any provision of the Agreement.
  • Severability: Any provision of the Agreement which may be determined by a court or other competent governmental authority to be prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions thereof, unless said prohibition or unenforceability materially alters the rights or obligations of either party.