Terms of Service

1. Engagement

1. Subject to these Terms and any applicable Order Form, Company will provide Customer a limited, revocable, non-transferable, non-sub-licensable, and non-exclusive right to access and use the Services during the Term in accordance with these Terms. Company will also provide reasonable technical support in accordance with Exhibit B attached hereto. This Agreement will also govern any statement of work covering additional services provided by Company to Customer (“Additional Services”).
2. This Agreement is on a non-exclusive basis. Company shall not have any exclusive obligation to provide access to the Services to Customer only. Customer shall be free to subscribe to any other service from any other person.

2. Restrictions and Responsibilities

1. Customer will not, directly or indirectly: (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms relevant to the Services or any documentation or data related to the Services; (b) modify, translate, or create derivative works based on the Services (except to the extent expressly permitted by Company); (c) use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (d) remove any proprietary notices or labels from the Services.
2. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with these Terms, any applicable Order Form, and all applicable laws and regulations.
3. Customer shall be responsible for maintaining its account credentials (including administrative and user passwords) in a secure manner to avoid any unauthorized access. Customer will cooperate with Company and provide all assistance as reasonably requested in connection with the provision of the Services.
4. Customer shall comply with all applicable law, including those regulating privacy or data protection and the collection, storage, use, and disclosure of personal data in connection with its use of the Services.
5. Customer consents to receive communications from Company through electronic means, including email or other such means, in connection with its use of and access to the Services.

3. Confidentiality

1. Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical, or financial information relating to its business that is marked as confidential or proprietary or that reasonably should be considered confidential based on the nature of the information and the circumstances surrounding the disclosure (“Proprietary Information”). Proprietary Information of Company includes information regarding features, functionality, and performance of the Services. Proprietary Information of Customer includes Customer Data and non-public data provided by Customer to enable the provision of the Services. “Customer Data” means the data submitted by Customer or its authorised users to the Services and any reports or other content produced by Customer or its authorised users using the Services (excluding any Company IP embodied in such content). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information; and (ii) not to use (except in performance of its obligations under this Agreement) or divulge to any third person any such Proprietary Information, other than to its employees, representatives, and agents with a need to know who are bound by written or statutory duties of confidentiality at least as onerous as this Agreement. The foregoing shall not apply to information that the Receiving Party can document: (a) is or becomes generally available to the public other than by a breach of this Agreement; (b) was in its possession prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; (d) was independently developed without use of any Proprietary Information; or (e) is required to be disclosed by law or court order, provided the Receiving Party notifies the Disclosing Party to the extent legally permitted and consults regarding the manner of disclosure.
2. Notwithstanding anything to the contrary, Company shall have the right to access, collect, use, process, store, and analyse metadata and other information relating to the provision, use, and performance of the Services and related systems and technologies, and Company will be free (during and after the Term) to use such information and data to: (i) improve and enhance the Services and for development, diagnostic, and corrective purposes; and (ii) produce data, information, or other materials that cannot be identified as relating to a particular individual or company (“Anonymised Data”). Company may use, process, store, disclose, and transmit Anonymised Data for any purpose without restriction or obligation to Customer, provided that the Anonymised Data is not reasonably capable of being linked to Customer.
3. Upon the Disclosing Party’s written request, the Receiving Party shall securely destroy or return all Proprietary Information (including copies thereof) in its custody or control.

4. Payment of Fees

1. The Services are offered on a pay-as-you-go basis. Customer will be charged based on actual usage of the Services during each billing cycle (“Fees”). There are no fixed subscription fees or minimum commitments. All Fees are calculated and invoiced in arrears unless otherwise agreed in writing. Company reserves the right to revise its pricing at any time, with notice to Customer. If Customer reasonably believes Company has billed Customer incorrectly, Customer must notify Company no later than 15 (fifteen) days after the closing date on the first billing statement in which the error appeared. Billing inquiries should be directed to [email protected].
2. Payment is due within 15 (fifteen) days of the invoice date. Unpaid amounts are subject to immediate suspension or termination of access to the Services at Company’s discretion. Customer shall be responsible for all taxes associated with the Services.
3. The Fees for the Services do not include any taxes, levies, duties, or similar governmental assessments of any nature, including goods and services tax (GST), value-added, sales, use, or withholding taxes (“Taxes”). Customer shall be responsible for all Taxes associated with the Services, other than Taxes assessable against Company based on Company’s income, property, or employees. If Company has the legal obligation to collect Taxes for which Customer is responsible, Company will invoice the Taxes to Customer, and Customer will pay them unless Customer provides a valid tax exemption certificate.

5. Intellectual Property Rights; Feedback

1. Customer shall retain all ownership and intellectual property rights in and to Customer Data. Customer hereby grants to Company and its affiliates a non-exclusive, transferable, sub-licensable, royalty-free licence to use, copy, transmit, modify, distribute, publish, display, process, and host Customer Data: (a) to provide the Services to Customer; (b) in accordance with Company’s Privacy Policy; and (c) to operate, improve, expand, and modify Company’s Services. Customer represents and warrants that it has obtained all necessary rights and consents to provide, store, transmit, or otherwise process Customer Data in or through the Services and to grant Company the licences set out above. Customer is solely responsible for the accuracy, quality, integrity, and legality of Customer Data.

2. Company Intellectual Property.

   In providing access to the Services, Company uses or includes Company IP licensed, procured, or developed by or for the Company, which shall at all times be owned and/or deemed to be owned by the Company. The Company shall at all times own and retain all right, title, and interest in and to: (a) the Services, any documentation made available by Company relating to the use and performance of the Services, and all derivative works, improvements, enhancements, modifications, or updates to any of the foregoing; and (b) any tools, developer codes, templates, platforms, or software used in connection with the Services.

   “Company IP” means all trade secrets, know-how, source code, object code, technical information, commercial and financial data, copyright, designs, inventions, patents, service marks, trademarks (whether registered or unregistered), and all other industrial or intellectual property rights of the Company.

3. Reservation of Rights. Each Party grants the other only the licences and rights to such Party’s intellectual property as expressly set out in this Agreement. No other licences or rights are granted, whether by implication or otherwise.
4. Customer may voluntarily submit questions, comments, suggestions, ideas, or other information about the Services (“Feedback”). Customer grants to Company a perpetual and irrevocable licence to copy, publicly perform, publicly display, modify, distribute, or otherwise use such Feedback for any purpose, commercial or otherwise, without acknowledgement or compensation to Customer.

6. Term and Termination

1. Subject to earlier termination as provided below, this Agreement commences on the Effective Date and continues for the initial subscription term as specified in the Order Form (“Initial Term”). Unless otherwise set forth in the Order Form, the term will automatically renew for successive renewal terms equal to the length of the prior term, unless either Party provides the other with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”).
2. Either Party may terminate this Agreement upon 30 (thirty) days’ written notice (or without notice in the case of non-payment) if the other Party materially breaches any term or condition of this Agreement and fails to cure such breach within the notice period. Company may forthwith terminate the Agreement if there is a material change of circumstances such that Company, acting reasonably, determines that continued provision of the Services is not feasible. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Provisions that by their nature should survive termination shall do so, including accrued payment obligations, confidentiality obligations, intellectual property rights, Company’s right to use Feedback, warranty disclaimers, and limitations of liability.
3. Upon termination or expiry: (a) Company shall cease and revoke all licences and access in respect of this Agreement; (b) Customer shall immediately stop using the Services; and (c) outstanding payments will be due and payable immediately. Customer will have restricted access to the Services for a period of 30 (thirty) days from the date of termination or expiry for the purpose of retrieving Customer Data. Company will make available restricted access to one data administrator identified and communicated by Customer.

7. Warranty and Disclaimers

1. Each Party represents and warrants that it has validly entered into this Agreement and has the legal power to do so.
2. Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimises errors and interruptions. The Services may be temporarily unavailable for scheduled maintenance or unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control. Company shall use reasonable efforts to provide advance notice of any scheduled service disruption.
3. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS MAKE ANY REPRESENTATION OR WARRANTY ABOUT THE SERVICES, INCLUDING ANY REPRESENTATION THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. COMPANY PROVIDES THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, COMPANY, ITS AFFILIATES, AND THEIR RESPECTIVE LICENSORS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF TITLE, ACCURACY OF DATA, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.

8. Indemnity

1. Indemnification by Company. Company will defend Customer against any claim made or brought against Customer by a third party alleging that Customer’s use of the Services in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, reasonable attorneys’ fees, and costs finally awarded as a result of, or for amounts paid under a settlement approved by Company in writing in respect of such claim, provided that Customer: (a) promptly gives Company written notice of the claim; (b) gives Company sole control of the defence and settlement; and (c) gives Company all reasonable assistance at Company’s cost. The foregoing obligations do not apply if: (i) the allegation does not state with specificity that the Services are the basis of the claim; (ii) the claim arises from Customer’s use of the Services other than in accordance with this Agreement or from Customer Data; or (iii) Customer continues allegedly infringing activity after being notified thereof.
2. Indemnification by Customer. Customer will defend Company and its affiliates against any claim made or brought against Company by any third party alleging that: (i) Customer Data or Customer’s use of Customer Data with the Services (a) infringes or misappropriates the intellectual property or other proprietary rights of a third party or (b) violates applicable law; or (ii) the combination of any software, application, hardware, or system with the Services infringes or misappropriates a third party’s intellectual property rights. Customer will indemnify and hold Company and its affiliates harmless from and against all damages, liabilities, fines, penalties, settlements, reasonable attorneys’ fees, costs, and expenses incurred in connection with any such claim.

9. Limitation of Liability

1. In no event will either Customer or the Company have any liability to the other Party or to any third party for any lost profits or revenues or for any indirect, special, incidental, consequential, cover, or punitive damages or losses, however caused, whether in contract, tort, or under any other theory of liability, and whether or not the Party has been advised of the possibility of such damages.
2. Save as otherwise mentioned in sub-clause (3) below, in no event will Company’s aggregate liability arising out of or related to this Agreement (whether in contract or under any other theory of liability) exceed the total amount paid by Customer in the billing period preceding the last event giving rise to the liability (“Standard Cap”).
3. Company’s aggregate liability arising out of or related to this Agreement due to any breach of confidentiality or intellectual property obligations shall not exceed, in the aggregate, three (3) times the Standard Cap.
4. Company shall not, in any manner, be held liable for any loss or damage the reasons for which are attributable to Customer.

10. Security and Data Handling

1. Company will implement and maintain commercially reasonable, industry-standard physical, technical, and organisational measures and safeguards designed to protect Customer Data against unlawful or accidental access to, or unauthorised processing, disclosure, destruction, damage, or loss. Company will promptly notify Customer of any incidents affecting the confidentiality, integrity, or availability of Customer Data.
2. To the extent Company processes any personal data on behalf of Customer in connection with the provision of the Services, the Data Processing Addendum (“DPA”) available at shivicx.com/dpa is hereby incorporated by reference and the Parties agree to comply with such terms.
3. Customer-collected data is stored in Company’s systems for as long as Customer is active. Once a Customer account is deactivated or terminated, data will be retained in active storage for a period of 30 (thirty) days, after which it will be securely deleted to prevent unauthorised access or recovery. Backup copies may be retained for a further period as required by law, and will be destroyed at the end of that period.

11. Miscellaneous

1. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
2. This Agreement is not assignable, transferable, or sub-licensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent.
3. This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in writing, except as otherwise provided herein.
4. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority to bind Company in any respect whatsoever.
5. Company may provide Customer with notices that affect Company’s customers generally via email or through the Services. All notices under this Agreement will be in writing and deemed duly given when received if personally delivered, or when transmitted if transmitted by email. Legal notices to Company must be sent to [email protected].
6. This Agreement shall be governed by the laws of India without regard to its conflict of laws provisions. If a dispute arises under this Agreement that cannot be resolved first through good faith negotiations between the Parties, such dispute shall be referred to arbitration to be conducted and resolved by a single arbitrator in accordance with the provisions of the (Indian) Arbitration and Conciliation Act, 1996 then in effect. All such arbitration shall be confidential and shall take place in New Delhi, India, or such other location mutually agreed to by the Parties in writing. The award or decision of the arbitrator shall be final, binding, and conclusive. Subject to the arbitration clause, the Courts in New Delhi shall have exclusive supervisory jurisdiction over any disputes under this Agreement.
7. Each Party acknowledges and agrees that the other may suffer irreparable damage in the event of a breach or threatened breach of any provision of this Agreement pertaining to the protection of intellectual property rights or Proprietary Information. Accordingly, either Party shall have the right, in addition to any other rights, to seek temporary, preliminary, and/or permanent injunctive relief in any court of competent jurisdiction to restrain any such breach.
8. If Customer has any questions about the Services or this Agreement, Customer may contact Company via email at [email protected].

Exhibit A — Service Level Terms

Exhibit B — Support Terms

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