TERMS OF SERVICE
Effective: December 1, 2019
Effective: December 1, 2019
These Terms of Service (“Agreement”) are entered into by and between the entity or person placing an order or accessing the Services (as defined below) (“Client”) and SamvadSocial Technologies Private Limited, for the services provided via and described in the website www.digitalsamvad.com. SamvadSocial and DigitalSamvad are the same for the scope of this document and represent SamvadSocial Technologies Private Limited, Pune, India.
The “Effective Date” of this Agreement is the date that is the earlier of (a) the effective date of the first Quote referencing this Agreement and (b) Client’s initial access to the Services through any DigitalSamvad online registration, provisioning, or order process.
If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this Agreement in which case the term “Client” shall refer to such entity. If you do not have such authority, or if you do not agree to the terms of this Agreement, do not accept this Agreement or use the Services. If you receive a trial or evaluation subscription to the Services, you are deemed a “Client” under this Agreement and are subject to its terms, including the restrictions and limitations in Section 6.4 (Trial Subscriptions) below. You may not use or access the Services if you are a direct competitor of SamvadSocial or if you are accessing or using the Services for the benefit of a direct competitor of SamvadSocial.
This Agreement permits Client to purchase a subscription to Services and related Professional Services from SamvadSocial pursuant to Quotes/Plans and sets forth the terms and conditions under which those Professional Services will be delivered. This Agreement shall govern Client’s initial purchase as well as any future purchases made by Client that reference this Agreement. This Agreement includes any and all Exhibits, referenced policies and attachments, and any and all Quotes/Plans and SOWs.
From time to time, SamvadSocial may modify this Agreement with two weeks (14 days)’ notice to Client. Unless otherwise specified by SamvadSocial, changes become effective for existing Clients upon posting of the modified Agreement. If Client does not agree to such changes, Client must notify SamvadSocial of such disagreement within the two week (14 day) notice period, and SamvadSocial (at its option and as Client’s exclusive remedy) may either: (i) permit Client to continue under the prior version of this Agreement until the next renewal of the current Order Term, after which the modified Agreement will apply (for example, if Client is on an annual Order Term, then the modified Agreement will apply starting from the beginning of Client’s next annual Order Term after it is posted) or (ii) terminate this Agreement and provide to Client a refund of any Service fees that Client already paid with respect to the terminated portion of the applicable Order Term. SamvadSocial will use reasonable efforts to notify Client of the changes through Client’s Account, email, or other means. Client may be required to click to accept the modified Agreement before using the Services in a renewal Order Term, and in any event continued use of the Services during the renewal Order Term will constitute Client’s acceptance of the version of the Agreement in effect at the time the renewal Order Term begins.
Each party expressly agrees that this Agreement is legally binding upon it.
1.1 Definitions – Capitalized terms not included in this Section are defined contextually in this Agreement.
“Account” means the online account and dashboard that SamvadSocial provides for Client to manage its use of the Services.
“Affiliate” means an entity that owns or controls, is owned or controlled by, or is under common ownership or control with Client, where “control” means the power to direct the management or affairs of an entity and “ownership” means the beneficial ownership of fifty percent (50%) or more of the voting securities or other equivalent voting interests of an entity.
“Client Applications” means Client’s and its Affiliates’ online websites, mobile applications, Social Accounts, and other properties that SamvadSocial is working on.
“Client Content” means any visual elements, images, text, or other content provided by Client use within Services (e.g., to customize Client’s accounts) as permitted by SamvadSocial and the functionality of the Services.
“Client Materials” means any Client materials (including Services Data or Client Content) reasonably required for SamvadSocial to perform the Professional Services.
“Contractors” means independent contractors and consultants who are not competitors of SamvadSocial.
“Deliverables” means any deliverables provided by SamvadSocial to Client in connection with the Professional Services.
“Design Deliverables” means any Deliverables provided by SamvadSocial as part of Digital Marketing Services that consist of and are expressly identified in the applicable SOW as visual design elements specific to Client (excluding any underlying SamvadSocial Technology).
“Digital Marketing Services” means strategic, advisory, design, and/or other consulting services related to digital marketing provided by SamvadSocial in connection with Client’s use of the Services.
“Laws” means all applicable local, state, federal, and international laws, regulations and conventions, including those related to data privacy and data transfer.
“Order Term” means the subscription term specified for each Service in the applicable Quote/Plan and, in the event that such Quote/Plan does not include a “start date”, the Order Term will commence on the date that SamvadSocial electronically confirms Client’s order to the applicable Service.
“Permitted Users” means Client’s employees, Contractors, and Affiliates (and its Affiliates’ employees and Contractors).
“Professional Services” means professional services provided by SamvadSocial under this Agreement, including configuration, implementation, or training services and Digital Marketing Services.
“Prohibited Data” means any personal data that could be legally considered sensitive in any applicable jurisdiction, including government issued identification, individual medical or health information (including PHI), financial account numbers, credit or debit card numbers, authentication factors (including security codes, passwords, biometric information, and answers to security questions), and special categories of personal data as defined in Article 8 of the EU Data Protection Directive.
“Purchased Units” means the specified usage metrics for the Services, which may include number of creatives or the duration of contract in months, or other events or metrics.
“Third Party Data” means non-personally identifiable analytics data retrieved by or on behalf of Client from Third Party Platforms through SamvadSocial’s access to Client’s credentialed accounts.
1.2 Interpretation – In this Agreement, the words “including” and “in particular” and any similar words or expressions are by way of illustration and emphasis only and do not operate to limit the generality or extent of any other words or expressions. Further, headings in this Agreement are for convenience only and do not affect its interpretation.
2.1 Overview – SamvadSocial offers various Services on a subscription basis for specified Order Terms. SamvadSocial may make available optional add-ons or code, which are also included in the “Services” under this Agreement and may be subject to supplementary terms specified by SamvadSocial.
2.2 Access and Use – Client may access and use the Services specified on the applicable Quote/Plan during the applicable Order Terms solely for its own internal business purposes and in accordance with the terms and conditions of this Agreement, the Documentation, and any scope of use restrictions designated in the applicable Quote. Use of the Services is charged based on, or limited to, the Purchased Units. The Purchased Units will be specified in the applicable Quote/Plan and will expire at the end of the applicable Order Term. Client will pay overage fees for exceeding its Purchased Units as set forth in the applicable Quote/Plan.
2.3 Permitted Users – Client may allow its Permitted Users to access and use the Services, provided (i) Client remains responsible for compliance by each Permitted User with all of the terms and conditions of this Agreement, the Documentation, and any scope of use restrictions designated in the applicable Quote, and (ii) any use of the Services by a Permitted User is for the sole benefit of Client or its Affiliates. Only Client and its Permitted Users may access and use the Services, and use of the Services by Client and its Permitted Users in the aggregate must be within the scope of use restrictions designated in the applicable Quote, including the specified number of Purchased Units. Client acknowledges that personal data of Permitted Users is used by SamvadSocial in accordance with SamvadSocial’s Privacy Statement.
2.4 Accounts – Each Permitted User shall receive a unique user ID, which may not be shared. Client shall require that all Permitted Users keep their authentication factors (such as user ID and user credentials) strictly confidential and not share such information. Client shall be responsible for any and all actions taken in Client’s Account by its Permitted Users, and shall immediately notify SamvadSocial of any unauthorized access to or use of its Account.
2.5 General Restrictions – Client shall not (and shall not permit any third party to):
(a) rent, lease, provide access to, or sublicense any Service to a third party, copy any Services, or use any Service for time sharing, hosting, service bureau, or like purposes;
(b) remove or obscure any proprietary or other notices contained in any Service (including notices contained in any reports or data presented through the Services);
(c) attempt to gain unauthorized access to any Service or other systems, networks, or data of SamvadSocial, or interfere with or disrupt the integrity or performance of any such Service, systems, networks, or data;
3.1 Rights in Services Data; Right to Use Services Data – As between the parties, Client shall retain all right, title, and interest (including any and all intellectual property rights) in the Client Data, and SamvadSocial claims no right, title or interest in Client’s Third Party Data. Subject to the terms of this Agreement, Client hereby grants to SamvadSocial a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of, and perform and display in Client’s Account the Services Data solely to the extent necessary to provide the Services to Client. Further, SamvadSocial may periodically access Client’s Account and Services Data to improve, support, and operate the Services (e.g., for quality assurance, benchmarking, technical support, or billing purposes).
3.2 Data Retention Policy – SamvadSocial retains Client Data in accordance with its Data Retention Policy. SamvadSocial expressly disclaims all other obligations with respect to data storage or delivery, including storage or delivery of any raw data included in Client Data.
3.3 Client Obligations
(a) Generally. Client is solely responsible for the accuracy, content, and legality of all Services Data and for its Client Applications. Client shall ensure that Client’s use of the Services and all Services Data is at all times compliant with Client’s and any applicable Third Party Platform’s privacy policies and all Laws. Subject to SamvadSocial’s obligations in Section 3.3(b) regarding Third Party Terms, Client shall obtain all third party licenses, rights, clearances, consents and approvals that may be required for Client (and SamvadSocial on behalf of Client) to collect and use Services Data and represents and warrants that such collection and use will not violate any Laws or any intellectual property, publicity, privacy, or other rights of any third party.
(b) Prohibited Data. The Services are not designed for processing of Prohibited Data. Notwithstanding any other provision included herein, Client will not configure the Services to collect, upload, retrieve, transmit, store, analyze, create, or deliver Prohibited Data and will not otherwise provide Prohibited Data to SamvadSocial. Notwithstanding anything to the contrary herein, SamvadSocial shall have no liability under this Agreement for Prohibited Data.
4.1 Services Security – SamvadSocial agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration, or disclosure of the Client Data. SamvadSocial shall have no responsibility for errors in transmission, unauthorized third-party access, or other causes beyond SamvadSocial’s control. Further, notwithstanding anything to the contrary herein, SamvadSocial is not responsible in any way for Services Data after such Services Data is transmitted, copied, extracted, or removed from SamvadSocial’s servers by Client or a Third Party Platform.
4.2 Protection of Personal Data – Subject to Section 3.3(b) (Prohibited Data), as part of its authorized use of the Services, Client may configure the Tagging Methods to collect certain personal data from users of Client Applications. Without limiting its obligations in Section 4.1 (Services Security), SamvadSocial agrees to process personal data only for the purpose of performing this Agreement and in accordance with Client’s instructions (as set forth in this Agreement, through the use of the selected regional option, and any applicable Order Form or SOW), and applicable Laws.
6.1 Order Term and Renewals – Unless otherwise specified on the applicable Quote, each Order Term shall automatically renew for additional twelve (12) month or three (3) month periods unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Order Term.
6.2 Fees and Payment – All fees are as set forth in the applicable Quote/Plan or SOW and shall be paid by Client in accordance with the invoice schedule and in the currency set forth in the applicable Quote/Plan or SOW (and if none, within seven (7) days of the date of applicable invoice). Except as expressly set forth in Section 7.2 (Termination for Cause), Section 8.1 (Limited Warranty), Section 9.4 (Limited Professional Services Warranty), and Section 11.1 (Indemnification by SamvadSocial), all fees are non-refundable. The rates in the applicable Quote or SOW are valid for the Order Term set forth in such Quote or SOW and thereafter shall be subject to an increase of no more than five percent (5%) per year (subject to Client retaining the same Services package, capacity and functionality levels). Client is required to pay any sales, use, Goods and Services Tax (GST), value-added, withholding, or similar taxes or levies, whether domestic or foreign (other than taxes based on the income of SamvadSocial), and all such taxes and levies are excluded from any rates or prices provided by SamvadSocial. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by Law, whichever is less.
6.3 Suspension of Services – If (a) SamvadSocial has sent Client a payment reminder for an overdue payment, and Client fails to pay the amount due within seven (7) days after receiving such payment reminder, or (b) Client has breached its obligations under Section 2.5 (General Restrictions) or Section 3.3 (Client Obligations), then, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), SamvadSocial reserves the right to suspend Client’s access to the applicable Service, content delivery and any related support, or Professional Services, without liability to Client, until payment has been made or the breach has been cured. Prior to suspending Client’s access for Client’s breach of Section 2.5 (General Restrictions) or Section 3.3 (Client Obligations), SamvadSocial will use reasonable efforts to provide Client with notice and a reasonable opportunity to cure, unless SamvadSocial reasonably determines that such breach may cause harm to other clients or threaten the security or integrity of a Service, in which case suspension may be immediate.
6.4 Trial Subscriptions – If Client receives free access or a trial or evaluation subscription to the Services (a “Trial Subscription”), then Client may use the Services in accordance with the terms and conditions of this Agreement and the applicable Quote/Plan for the period designated in such Quote or otherwise by SamvadSocial (“Trial Period”). Trial Subscriptions are permitted solely for Client’s use to determine whether to purchase a full subscription to the Services. Client may not use a Trial Subscription for any other purpose, including for competitive analysis. At the end of the Trial Period, the Trial Subscription will expire and Client will have the option to purchase a full subscription to the Services. If Client purchases a full subscription, all of the terms and conditions in this Agreement will apply to such purchase and the use of the Services unless otherwise specified in the Quote for the Trial Subscription.
7.1 Term – This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Order Terms.
7.2 Termination for Cause – Either party may terminate this Agreement (including all related Quotes) if the other party:
(a) fails to cure any material breach of this Agreement (including a failure to pay fees) within seven (7) days after written notice;
(b) ceases operation without a successor; or
(c) seeks protection under any bankruptcy, insolvency event, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
Upon termination by Client for SamvadSocial’s breach in accordance with this Section 7.2, SamvadSocial shall promptly refund to Client any such Service fees already paid with respect to the terminated portion of the applicable Order Terms. Upon termination by SamvadSocial for Client’s breach, Client shall pay SamvadSocial for the total fees contractually committed for all Order Terms.
7.3 Effect of Termination – Upon any expiration or termination of this Agreement, Client shall:
(a) immediately cease any and all use of and access to its Account and the Services (including any and all related SamvadSocial Technology);
(b) Erase any and all copies of the Documentation, any SamvadSocial -related passwords or access codes, and any other SamvadSocial Confidential Information in its possession; and
Upon request, Client shall certify to SamvadSocial in writing that it has fully complied with the foregoing requirements. Client acknowledges that, following termination, it shall have no further access to its Account or any Services Data, and that SamvadSocial may delete Client’s Account and Erase any Services Data in its possession at any time, except for backup copies kept for disaster recovery purposes or as required to comply with Laws. Neither party shall have any liability resulting solely from a permitted termination of this Agreement in accordance with its terms. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
7.4 Survival – The following Sections shall survive any expiration or termination of this Agreement: 2.5 (General Restrictions), 3.2 (Data Retention Policy), 5 (Ownership), 6.2 (Fees and Payment), 7 (Term and Termination), 8.2 (Warranty Disclaimer), 9.2 (Rights to Deliverables) (solely with respect to Design Deliverables, if applicable), 10 (Limitation of Remedies and Damages), 11 (Indemnification), 12 (Confidential Information), and 14 (General Terms).
8.1 Limited Warranty – SamvadSocial warrants, for Client’s benefit only, that the Services will operate in substantial conformity with the applicable Standards. SamvadSocial’s sole liability (and Client’s sole and exclusive remedy) for any breach of this warranty shall be, in SamvadSocial’s sole discretion and at no charge to Client, to use commercially reasonable efforts to correct the reported non-conformity or, if SamvadSocial determines (in its sole discretion) such remedy to be impracticable or fails to correct the non-conformity, either party may terminate the applicable Order Term and Client shall receive as its sole remedy a refund of any Service fees that Client already paid with respect to the terminated portion of the applicable Order Term.
The limited warranty set forth in the first sentence of this Section 8.1 shall not apply:
(a) unless Client notifies SamvadSocial within thirty (30) days following the date on which Client first noticed the non-conformity;
(b) if the error was caused by misuse, unauthorized modifications, or third-party hardware, software or services; or
(c) to any use of the Services provided on a no-charge basis (e.g., Trial Subscriptions).
8.2 Warranty Disclaimer – EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS AGREEMENT, THE SERVICES AND ALL RESULTS AND REPORTS GENERATED THEREFROM AND ANY PROFESSIONAL SERVICES ARE PROVIDED “AS IS”. NEITHER SAMVADSOCIAL NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT (BUT FOR CLARITY THIS DISCLAIMER OF WARRANTIES OF NONINFRINGEMENT DOES NOT LIMIT SAMVADSOCIAL’S INDEMNIFICATION OBLIGATIONS IN SECTION 11). WITHOUT LIMITING SAMVADSOCIAL’S EXPRESS OBLIGATIONS IN SECTION 4 (SERVICES SECURITY & PRIVACY), OR 8.1 (LIMITED WARRANTY) SAMVADSOCIAL DOES NOT WARRANT THAT CLIENT’S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT IT WILL REVIEW THE SERVICES DATA FOR ACCURACY, THAT IT WILL PRESERVE OR MAINTAIN THE SERVICES DATA WITHOUT LOSS, OR THAT THE SERVICES WILL MEET CLIENT’S BUSINESS GOALS OR OTHER REQUIREMENTS OR EXPECTATIONS (OR, IF ACHIEVED, THAT SUCH RESULTS WILL BE SUSTAINABLE). SAMVADSOCIAL SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF SAMVADSOCIAL (INCLUDING BUT NOT LIMITED TO ANY THIRD PARTY PLATFORM). CLIENT MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF SUCH STATUTORY RIGHTS, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
9.1 Provision and Payment – SamvadSocial shall provide a Consulting Account Manager and other Professional Services if purchased in the applicable Quote/Plan or SOW. The Professional Services may include (i) configuration, implementation and/or (ii) Digital Marketing Services. The scope of the Professional Services, and the fees for the Professional Services (whether on a fixed-fee or hourly rate basis), shall be as set forth in an applicable Quote/Plan or SOW.
9.2 Rights to Deliverables – Client may use any Deliverables solely in support of its authorized use, subject to the same terms and conditions that apply to such Service and any additional terms in the applicable Quote/Plan or SOW. As an exception to the preceding sentence, for any Design Deliverables, effective upon full and final payment of all fees and expenses owing to SamvadSocial, SamvadSocial grants Client a non-exclusive, perpetual, worldwide, non-transferable, royalty-free license to use, reproduce, publicly display and perform, distribute, and create derivative works of the Design Deliverables for Client’s business purposes. While Client may continue to use the Design Deliverables after termination or expiration of this Agreement, such continued use is “AS IS”, with no warranty or other obligation from SamvadSocial.
9.3 Client Materials – Client shall provide SamvadSocial with access to Client Materials and hereby grants SamvadSocial a limited right to use Client Materials solely for the purpose of performing the Professional Services hereunder. Client represents and warrants that it has all rights necessary in the Client Materials to provide them to SamvadSocial for such purpose.
9.4 Limited Professional Services Warranty – SamvadSocial warrants that the Professional Services will be of a professional quality and conform to generally prevailing industry standards. Client must give written notice of any material breach of the foregoing warranty within thirty (30) days from the date the Professional Services are completed. In such event, at SamvadSocial’s sole discretion, SamvadSocial shall either:
(a) use commercially reasonable efforts to re-perform the Professional Services in a manner that conforms to the foregoing warranty; or
(b) if SamvadSocial fails to re-perform or decides not to re-perform the Professional Services, refund to Client the portion of fees paid by Client to SamvadSocial for the nonconforming Professional Services.
The foregoing procedures shall constitute SamvadSocial’s sole liability (and Client’s sole and exclusive remedy) for any breach of the warranty in this Section 9.4.
10.1 Consequential Damages Waiver – NEITHER PARTY (NOR ITS LICENSORS) SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS, ANY LOSS OF USE, OR INTERRUPTION OF BUSINESS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
10.2 Liability Cap – EXCEPT FOR EXCLUDED CLAIMS, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EACH PARTY’S AND ITS LICENSORS’ ENTIRE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CLIENT TO SAMVADSOCIAL DURING THE PRIOR TWELVE MONTHS UNDER THIS AGREEMENT.
10.3 Excluded Claims – “Excluded Claims” means (a) amounts payable to third parties by Client pursuant to Section 11.2 (Indemnification by Client) or (b) any claim arising from Client’s breach of Section 2.5 (General Restrictions) or Section 3 (Services Data).
10.4 Failure of Essential Purpose – The parties agree that the limitations specified in this Section 10 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
11.1 By SamvadSocial – SamvadSocial shall defend Client from and against any claim by a third party alleging that SamvadSocial’ Services, when used as authorized under this Agreement, actually infringes copyright, or trademark, and shall indemnify and hold harmless Client from and against any damages and costs awarded against Client or agreed in settlement by SamvadSocial (including reasonable legal fees) resulting from such claim.
If Client’s use of any Service is (or in SamvadSocial’s opinion is likely to be) enjoined, if required by settlement, or if SamvadSocial determines such actions are reasonably necessary to avoid material liability, SamvadSocial may, in its sole discretion:
(a) substitute substantially functionally similar products or services;
(b) procure for Client the right to continue using the Service; or
(c) if (a) and (b) are not commercially reasonable, terminate the Agreement and refund to Client any Service fees that Client already paid with respect to the terminated portion of the applicable Order Terms.
The foregoing indemnification obligation of SamvadSocial shall not apply:
(1) if the Service is modified by any party other than SamvadSocial, but solely to the extent the alleged infringement is caused by such modification;
(2) if the Service/Deliverable is combined with products or processes not provided by SamvadSocial but solely to the extent the alleged infringement is caused by such combination;
(3) to any unauthorized use of the Services;
(4) if Client settles or makes any admissions with respect to a claim without SamvadSocial’s prior written consent.
11.2 By Client – Client shall defend SamvadSocial from and against any claim by a third party arising from or relating to:
(a) any Client Application; or
(b) any breach or alleged breach by Client of Section 3.3 (Client Obligations); or
(c) any service or product offered by Client through the Client Applications,
and shall indemnify and hold harmless SamvadSocial from and against any damages awarded against SamvadSocial or agreed in settlement by Client (including reasonable legal fees) resulting from such claim.
11.3 Indemnification Process – The obligations of each indemnifying party are conditioned upon receiving from the party seeking indemnification:
(a) prompt written notice of a claim (but in any event notice in sufficient time for the indemnifying party to respond without prejudice);
(b) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the claim; and
(c) all reasonable necessary cooperation of the indemnified party.
The indemnified party may participate in the defense of any claim with counsel of its own choosing at its expense. The indemnifying party may not settle a claim without the indemnified party’s prior written consent unless such settlement unconditionally releases the indemnified party from all liability and does not require the indemnified party to take or refrain from taking any action (except with respect to use or non-use of the Services or allegedly infringing materials).
(a) hold in confidence and not disclose any Confidential Information to third parties; and
(b) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement.
The Receiving Party may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know (including, for SamvadSocial, the subcontractors referenced in Section 14.10), provided that: (i) such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 12; and (ii) the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 12. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document:
(1) was rightfully in its possession or known to it prior to receipt of the Confidential Information;
(2) is or has become public knowledge through no fault of the Receiving Party;
(3) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or
(4) is independently developed by employees of the Receiving Party who had no access to such information.
The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore, that upon any such disclosure by the Receiving Party, the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
14.1 Assignment – This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party. Notwithstanding the foregoing, a party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets or voting securities, provided that, in Client’s case, the assignee is not a competitor of SamvadSocial. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 14.1 will be null and void.
14.2 Severability – If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
14.3 Governing Law; Jurisdiction and Venue – This Agreement shall be governed by the laws of the State of Maharashtra and India. without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the state and Indian courts and both parties hereby submit to the personal jurisdiction of such courts.
14.4 Attorneys’ Fees and Costs – The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
14.5 Notice – Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth on the Quote or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee:
(a) if given by hand, immediately upon receipt;
(b) if given by overnight courier service, the first business day following dispatch; or
(c) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.
Notices and communications may also be provided via electronic mail (which notices and communications shall be deemed to have been received immediately upon receipt), except that neither party shall provide any notice or communication related to Section 7 (Term and Termination), Section 8.1 (Limited Warranty) or Section 11 (Indemnification) via electronic mail.
14.6 Amendments; Waivers – Except as otherwise expressly set forth herein, no supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Client will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
14.7 Entire Agreement – 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 and communications relating to the subject matter of this Agreement. Each party acknowledges and agrees that it does not rely on, and shall have no remedy in respect of, any promise, assurance, undertaking, representation or statement made (whether innocently or negligently) by any other party or any other person except as expressly set out in this Agreement, in respect of which its sole remedy shall be for breach of contract. Nothing in this Section 14.7 shall operate or be construed to exclude or limit any liability of any person for fraud, including fraudulent misrepresentation.
14.8 Updates – Client acknowledges that the Services are on-line, subscription-based products and that, in order to provide improved customer experience, SamvadSocial may make changes to the Services, and SamvadSocial will post the updates accordingly.
14.9 Force Majeure – Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
14.10 Subcontractors – SamvadSocial may use the services of subcontractors and permit them to exercise the rights granted to SamvadSocial in order to provide the Services and Professional Services under this Agreement, provided that SamvadSocial remains responsible for:
(a) compliance of any such subcontractor with the terms of this Agreement; and
(b) the overall performance of the Services as required under this Agreement.
14.11 Independent Contractors – The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
14.12 Counterparts. This Agreement may be executed in counterparts (including execution by electronic signature, pdf or other electronic transmission), each of which will be deemed an original and legally binding and all of which together will be considered one and the same agreement.
Service Level Agreement (“SLA”)
This SLA sets forth the service level terms that apply to one or more of the following Services to be provided to Client under the Agreement during the applicable order term set forth in a Quote/Plan: SamvadSocial, SamvadSocial. Except as otherwise indicated, the defined terms in this SLA shall have the same meaning as in the Agreement.
User Interface Availability
Availability of the applicable Service’s user interface will average at least 99%, as measured monthly, subject to the Exclusions set forth below. Violation must be measured and verified by SamvadSocial’ approved third party reporting agency.
Service Credits are granted only for the specific Service that is in violation of the applicable SLA as per the individual plan.
The User Interface Availability SLA and the Data Collection Availability SLA do not apply to any interruption or unavailability
(i) caused by factors outside of SamvadSocial’s reasonable control, including any force majeure event, Internet access or related problems beyond the demarcation point of SamvadSocial’s servers;
(ii) caused by network intrusions or denial of service attacks;
(iii) caused by any action or inaction of Client or any Client User;
(iv) arising from SamvadSocial’s suspension and termination of Client’s right to use the Service in accordance with this Agreement.
In the event of a violation of this SLA, Client is entitled to receive (as the sole remedy) the Service Credits set forth herein. The aggregate Service Credits for a particular month shall not exceed 100% of the volume purchased for the applicable Service that is allocated for that month.