These terms and conditions (“Terms and Conditions”), together with the Proposal for Services, govern Awarathon’s provision and Customer’s use of the services set forth in the applicable Proposal for Services (the “Services”). As used in these Terms and Conditions, “Agreement” means, collectively, (1) these Terms and Conditions, and (2) the Proposal for Services. If a conflict exists between these Terms and Conditions and the Proposal for Services, the terms and conditions of the applicable Proposal for Services will control.
Subject to the terms and conditions of this Agreement, Awarathon agrees to provide Customer with the Services.
2.1 During the term of this Agreement, Awarathon hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to access and use Awarathon’s proprietary software (in object code format only) via the Services, all electronic data embodied therein, any upgrades thereto, as well as any user documentation provided by Awarathon to Customer (the “Software”), solely for Customer’s internal business use. This license to Customer grants Customer the right to allow third parties access to the Services for reading purposes only; no license is granted to Customer to allow third parties to create or guest author or create content for third parties or to use Customer’s license as if the Customer were a host provider at Customer’s site without a reseller license.
2.2 Customer shall not (and shall not allow any third party to): (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying ideas or algorithms of the Software or Services, (b) modify or create derivative works based on the Software or Services, (c) copy, rent, lease, distribute, time-share, or otherwise use the Software or Services for the benefit of a third party except as expressly permitted in this Agreement, (d) remove or alter proprietary notices from the Software or Services, (e) use the Software or Services to create any other product or service, (f) breach or circumvent any security or authentication measures of the Software or Services, (g) interfere with or disrupt any part of the Software or Services, or (h) use a robot or other automated means to access the Software or Services.
2.3 Awarathon is furnishing access to the Software for authorized use by Customer solely for the purposes of creating, editing, viewing and/or publishing a series of pages on a web site (each a “Presentation”) with content provided by Customer (“Customer Content”). The Customer Content may include information, data, text, music, sound, photographs, graphics, video, messages and/or other materials provided to Awarathon by Customer.
2.4 Depending on the terms as specified in the Proposal for Services, Customer may purchase a subscription which (i) specifies an upper limit on the total number of “Users,” defined as individuals with unique logins/credentials to access the Software or the Customer Content made available by the Software; and/or (ii) specifies an upper limit on the total number of Customer employees entitled to use the Software. Customer will have the ability to run report(s) to monitor and document the number of employees or Users entitled to use the Software per the subscription. If Customer after reviewing the report(s) finds it has exceeded the number of employees or Users entitled to use the Software, Customer may purchase additional entitlements to use for the number of employees or Users. If Customer fails to purchase additional entitlements, this will result in overage charges being assessed by Awarathon to Customer for exceeding the contracted number of employees or Users.
3.1 Awarathon or Awarathon’s licensors retain all ownership and intellectual property rights to the Software and Services. Except for the license granted to Customer in Section 2, Customer shall have no right, title or interest in the Software or Services. All rights not expressly granted herein are reserved to Awarathon.
3.2 Customer shall retain all ownership and intellectual property rights in the Customer Content or derivative works of Customer Content developed specifically for Customer by Awarathon during the term of this Agreement. Except for the limited license granted to Awarathon in Section 2 to use Customer Content to provide Services to Customer for this Agreement only, Awarathon shall have no right, title or interest in the Customer Content.
3.3 Each party agrees that information supplied by each to the other during the course of this Agreement may be of a competitively sensitive or proprietary nature and confidential to that party (“Confidential Information”). Each party shall (i) protect the Confidential Information disclosed hereunder to the same extent it protects its own proprietary information of similar importance but in any event with no less than reasonable due care; (ii) not disclose Confidential Information of the other party to any person or entity other than to an employee or agent of either party obligated to maintain the confidentiality of such information; and (iii) not use Confidential Information of the other party for any purpose other than to exercise its rights and fulfill its obligations under this Agreement. Confidential Information shall not include information which can be shown by a recipient to have (a) been known by such party at the time of disclosure; (b) entered the public domain by some action other than breach of this Agreement by the receiving party; (c) been independently developed by the recipient without access to the Confidential Information; or (d) been released in writing from the obligation of confidentiality by the owner or licensor of such Confidential Information. Each party’s obligation of confidentiality under this Agreement shall extend for a period of one (1) year following termination or expiration of this Agreement.
3.4 Each party may disclose the Confidential Information of the other party if required by law or regulation, provided that the receiving party provides prompt written notice to the disclosing party of such impending release and the releasing party cooperates to the fullest extent permitted by law or regulation with the disclosing party to minimize such release.
4.1 Customer agrees that Customer is solely responsible for all Customer Content (public or private) incorporated into Presentations which are posted, emailed or transmitted via the Services provided by Awarathon, including obtaining prior written consent for the use of any third-party materials contained in the Customer Content, and any associated payments. Customer agrees not to knowingly use the Services to upload, post, email or otherwise transmit any Customer Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise offensive or objectionable. Customer acknowledges that Awarathon does not pre-screen Customer Content, but that Awarathon and Awarathon’s designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Customer Content that does not comply with the terms contained in this Agreement, but Awarathon will not do so without first notifying Customer.
4.2 Non-public personal information (“NPPI”) is prohibited from Customer Content. Violations brought to Awarathon’s attention will result in suspension of the use of the Services until Customer has deleted the prohibited Customer Content. The resumption of use of the Services or termination of the Services due to NPPI content violation(s) are at Awarathon’s discretion.
Awarathon shall use commercially reasonable efforts to ensure that the Services are accessible to Customer via the World Wide Web twenty-four (24) hours a day, seven (7) days a week.
6.1 Customer will pay all fees set forth in this Agreement. All fees are non-cancellable and non-refundable, except as expressly specified in this Agreement.
6.2 Taxes and Currency. All fees are exclusive of, and Customer will be responsible for payment of taxes, levies, duties or similar local, state, provincial, federal or foreign jurisdiction governmental assessments on the Services. Customer is not responsible for any taxes based on Awarathon’s net income or property. Except as otherwise specified in the Agreement, all fees due hereunder will be paid in INR.
6.3 Invoices. All amounts are due and payable as specified in the Agreement. If no payment terms are specified in the applicable Provisioning Documents, payment terms are net 30 days from receipt of invoice. Unpaid invoices not the subject of a written good faith dispute are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection.
6.4 Expenses. Customer will be responsible for all travel expenses, hotel accommodations, and any other out-of-pocket expenses incurred by Awarathon according to Awarathon’s Expense Policy in connection with the Professional Services, as set forth in the Order or subject to Customer’s prior written approval (email shall suffice).
7.1 Awarathon may use data, servers, software, APIs, designs, utilities, tools, models, systems and other methodologies and know-how (“Materials”) that Awarathon owns in performing the Services. Notwithstanding the delivery of any Reports, Awarathon retain’s all intellectual property rights in the Materials (including any improvements or knowledge developed while performing the Services), and in any working papers that we compile and retain in connection with the Services (but not Customer Information reflected in them).
7.2 Customer will indemnify, defend, and hold harmless Awarathon, Awarathon’s subsidiaries, affiliates, officers, employees, agents, co-branders or other partners from and against any claim, demand, or judgment, made by any third party, due to or arising out of (i) Customer Content or (ii) Customer’s misuse of the Software or Services, and will pay all costs and damages including reasonable attorneys’ fees incurred as a result of such claim.
8.1 Awarathon warrants that (i) Awarathon is the owner or licensee of the Software and has the right to grant the license provided herein, (ii) the Services will be performed in a professional and workmanlike manner, and (iii) the Services will conform in all material respects to the applicable Awarathon help and training documentation or webpages provided to Customer by Awarathon, as modified from time to time.
8.2 THE WARRANTIES ABOVE ARE EXCLUSIVE AND AWARATHON HEREBY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS OR WARRANTIES NOT EXPRESSLY SET FORTH HEREIN AND ALL IMPLIED WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. AWARATHON DOES NOT WARRANT THAT (I) THE RESULTS THAT MAY BE OBTAINED BY USING THE SOFTWARE OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, (II) AN UNAUTHORIZED PERSON WILL NEVER GAIN ACCESS TO THE CUSTOMER CONTENT OR PRESENTATIONS, OR (III) THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
9.1 In the event of a breach of the warranty set forth in Section 8.1, Awarathon shall have a thirty (30) day period in which to cure the defect. In the event such defect is not cured by the conclusion of the cure period, then the Customer shall have the right to terminate the Proposal for Services for the affected Services and receive a pro-rata refund of the fees paid therefore for the remainder of the unused portion of the subscription term.
10.1 EXCEPT FOR LIABILITY ARISING FROM A (A) BREACH BY CUSTOMER OF THE LICENSE TERMS SET FORTH IN SECTION 2 ABOVE; (B) BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 3.3 ABOVE; OR (C) PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 7 ABOVE; NEITHER PARTY SHALL BE LIABLE, WHETHER IN AN ACTION IN NEGLIGENCE, CONTRACT, TORT OR BASED ON A WARRANTY OR OTHER LEGAL THEORY, IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT.
10.2 EXCEPT FOR LIABILITY ARISING FROM A (A) BREACH BY CUSTOMER OF THE LICENSE TERMS SET FORTH IN SECTION 2 ABOVE; (B) BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 3.3 ABOVE; (C) PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 7 ABOVE; OR (D) PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AS TO WHICH THE FOLLOWING LIMITATION OF LIABILITY SHALL NOT APPLY, EACH PARTY’S MAXIMUM LIABILITY FOR ANY DAMAGES, REGARDLESS OF FORM OF ACTION, SHALL NOT EXCEED THE LICENSE FEES ACTUALLY PAID OR PAYABLE BY CUSTOMER TO AWARATHON IN THE TWELVE (12) MONTHS PRIOR TO THE LAST EVENT GIVING RISE TO THE CLAIM OF LIABILITY FOR THE RELEVANT SERVICES.
11.1 This Agreement shall commence on the date that the Proposal for Services is executed by both parties, and Awarathon’s provision of the Services hereunder shall commence on the date set forth in the applicable Proposal for Services. This Agreement and each Proposal for Services shall renew automatically (unless earlier terminated in accordance with the terms of this Agreement) for additional periods of twelve (12) months unless Customer notifies Awarathon in writing at least thirty (30) days prior to the expiration date of the applicable Proposal for Services. If Customer fails to notify Awarathon in writing of its intent to terminate the Proposal for Services, the Proposal for Services will renew, and Customer will be invoiced at the then current prices for a renewal term.
11.2 Either party may terminate this Agreement at any time by providing thirty (30) days written notice to the other party if the other party materially breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of the breach from the non-breaching party.
11.3 Promptly upon the termination of this Agreement for any reason, each party shall deliver to the other party or destroy all copies in such party’s possession of the other party’s Confidential Information and, upon request, shall certify in writing that all such Confidential Information has been so delivered or destroyed. The parties shall not, in connection with the foregoing obligations, be required to deliver or destroy Confidential Information that is held electronically in archive or back-up systems in accordance with general systems archiving or backup policies provided that the retained Confidential Information shall remain subject to all confidentiality obligations under this Agreement and shall not be used for any other purpose.
11.4 For thirty (30) days following the termination date or until such earlier time as Customer requests, Awarathon shall continue to store, and Customer agrees to permit Awarathon to store, Customer Content on Awarathon’s server(s).
11.5 Termination of this Agreement shall be without prejudice to any rights of either party against the other and such termination shall not relieve either party of any of its obligations to the other existing at the time of termination.
11.6 Notwithstanding anything to the contrary in this Agreement, Sections 3, 6, 7, 8, 10, 11.3, 11.4 and 12 shall survive expiration or earlier termination of this Agreement.12. Refund and Cancellation
13.1 All notices to be given by either Party to the other shall be given in writing and shall be delivered by hand, fax, email, registered post or by courier to the address of that Party specified below
Customer’s Billing Address listed in Proposal for Services.
Awarathon Awareness Initiatives Pvt. Ltd.
4B Pleasant Palace, N. S. Road No. 5, Vile Parle (West), Mumbai-56
13.2 This Agreement may not be assigned or otherwise transferred by either party without the prior written consent of the other party except if such assignment or transfer is to an entity acquiring all or substantially all (51% or more) of a party’s assets by merger or purchase. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.13.3 Nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. The parties agree that the subject matter of this Agreement will be governed by the laws of India, with courts of competent authority at Mumbai to have exclusive jurisdiction over the issues, matters and disputes under the Agreement. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights. If any provision of this Agreement is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in force. This Agreement may be executed in any number of counterparts, all of which taken together will constitute a single instrument. This Agreement is the complete and exclusive Agreement between the parties with respect to the Agreement’s subject matter. This Agreement may only be modified by a written document executed by both parties. Any such modification will become part of this Agreement and will be governed by the terms and conditions of this Agreement.