PLEASE READ THIS AGREEMENT CAREFULLY.
The following terms and conditions (the “Terms of Service”) form an integral part of the Agreement (“Agreement”) between Schbang Digital Solutions Private Limited. (“Schbang”) and the customer identified in the Commercial Terms (“Customer”). Capitalized terms shall have the meanings set forth in Section 14 below or in the Section in which they first appear in these Terms of Service. Capitalized terms used but not defined herein shall have the meanings set forth in the Commercial Terms.
1. SERVICES AND SOFTWARE.
1.1 Access and Use. Subject to and conditioned upon Customer’s compliance with the terms and conditions of the Agreement, (a) Customer may access and use the Service during the Subscription Period solely for purposes of Customer’s internal business operations, and (b) if Customer downloads any Software, Schbang hereby grants Customer a limited license to install, access, and use the Software, in object code form only, in connection with Customer’s use of the Services.
1.2 Updates. Schbang may, from time to time in its sole discretion, develop and provide Software updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, “Updates”). Updates may also modify or delete in their entirety certain features and functionality of the Service. Customer acknowledges and agrees that Schbang has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality of the Service. If Customer downloads a Schbang-branded mobile application (“Application”) on a mobile device, when such mobile device is connected to the Internet, either (a) the Application will automatically download and install all available Updates, or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer agrees to promptly download and install all Updates and acknowledges and agrees that the Applications or portions thereof may not properly operate should Customer fail to do so.
1.3 Limitations and Restrictions. Customer shall not, and shall not permit any User or other person or entity to, access or use the Service or Schbang Materials except as expressly permitted in the Agreement. Without limiting the foregoing, Customer shall not, except as expressly permitted in the Agreement: (a) copy, modify, or create derivative works or improvements of the Service or Schbang Materials; (b)reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Schbang Materials, in whole or in part; (c) bypass or breach any security device or protection used by the Service or Schbang Materials or access or use the Service or Schbang Materials other than through the use of then valid Access Credentials; (d) input, upload, transmit, or otherwise provide to or through the Service or Schbang Systems any Customer Data or other information or materials that (i) contain, transmit, or activate any Harmful Code, or (ii) are unlawful, abusive, malicious, harassing, tortious, defamatory, vulgar, obscene, libellous, invasive of another’s privacy right or right of publicity, or racially or ethnically objectionable, or (iii) infringe upon or violate the Intellectual Property Rights of any third party; (e) remove, delete, alter, or obscure any Intellectual Property Rights notices from any Service or Schbang Materials; (f) access or use the Service or Schbang Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable law; (g) access or use the Service or Schbang Materials for purposes of competitive analysis of the Service or Schbang Materials, the development, provision, or use of a competing service or product, or any other purpose that is to Schbang’s detriment or commercial disadvantage.
2. CERTAIN CUSTOMER OBLIGATIONS.
2.1 Customer Control and Responsibility. Customer has and shall retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and Customer has and shall retain sole responsibility for: (a) all Customer Data, including its use, accuracy, quality, and reliability; (b) all information, instructions, and materials provided by or on behalf of Customer in connection with the Services; (c) the Customer Systems; (d) the security and use of Customer’s Access Credentials. Schbang is not liable for any loss or damage arising from Customer’s failure to protect its Access Credentials.
2.2 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 1.3 (Limitations and Restrictions), Customer shall, and shall cause its Users to, immediately (a) notify Schbang of any such actual or threatened activity, and (b) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects.
3.1 Customer Data. Customer represents, warrants, and covenants to Schbang that Customer owns or otherwise has (and, prior to Schbang’s receipt of Customer Data, will have) the necessary rights and consents in and relating to Customer Data, so that Schbang’s receipt and Processing of Customer Data in accordance with the Agreement does not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights or other rights of any User or other person or entity, or any applicable law.
3.2 Data Backup. The Service does not replace the need for Customer to maintain regular data backups or redundant data archives. SCHBANG HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.
4.4 Service Analyses. Schbang may (a) compile statistical and other information related to the performance, operation, and use of the Service, and (b) use data from the Schbang Systems in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes ((a) and (b) collectively, “Service Analyses”). Schbang may make Service Analyses publicly available and use the Service Analyses for its business purposes, however Service Analyses shall not incorporate Customer Data in a form that could serve to identify Customer or any individual. Service Analyses do not constitute Customer Data, and Schbang shall retain all right, title, and interest in and to Service Analyses, including all Intellectual Property Rights therein and thereto.
5. OTHER WEBSITES AND ANCILLARY SERVICES.
6. CHANGES AND SUSPENSION.
6.1 Changes to the Services. Schbang reserves the right to make changes to the Services and Schbang Materials, or any portion thereof, for any reason. Customer agrees that Schbang will not be liable to Customer or third party for any such change.
6.2 Suspension of Access. Schbang may suspend Customer’s and/or any of its Users’ access to or use of all or any part of the Services or Schbang Materials, without incurring any resulting obligation or liability, if: (a) Schbang receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Schbang to do so; (b) Schbang believes, in its good faith and reasonable discretion, that Customer or any of its Users have violated the provisions of the Agreement; or (c) Customer fails to pay any amount when due under the Agreement. Any such suspension shall not excuse Customer from its obligation to make the payment(s) contemplated under the Agreement to Schbang. If Schbang suspends the Service, Schbang shall promptly restore Customer’s (or the applicable User’s) access to and use of the Service after the event giving rise to the suspension has been resolved to Schbang’s satisfaction.
7.1 Disclaimer of Warranties. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SERVICES, EQUIPMENT, AND SCHBANG MATERIALS IS AT CUSTOMER’S SOLE RISK. ALL SERVICES, EQUIPMENT, AND SCHABNG MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND SCHBANG HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, TO THE EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, SCHBANG DOES NOT MAKE ANY WARRANTY OF ANY KIND THAT THE SERVICES, EQUIPMENT, OR SCHBANG MATERIALS, OR ANY RESULTS OF THE USE THEREOF, SHALL MEET CUSTOMER’S REQUIREMENTS OR THE REQUIREMENTS OF ANY OTHER PERSON, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, OR BE SECURE, ACCURATE, FREE OF HARMFUL CODE, OR ERROR FREE.
7.2 No Professional Advice. The information provided on or through any of the Service is for informational purposes only and should not be construed as legal, financial, accounting, or other professional advice. Customer should seek independent professional advice from a person who is licensed and/or knowledgeable in the applicable area before acting upon any information provided on or through any Service.
8. LIMITATION OF LIABILITIES.
8.1 Exclusion of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SCHBANG, ITS AFFILIATES,OR ITS OR THEIR RESPECTIVE OFFICERS, directors, employees, agents, licensors, OR service providers BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS, DAMAGE OR LOSS OF USE OF DATA, BUSINESS INTERRUPTIONS, AND LOST BUSINESS OPPORTUNITY), REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE OTHERWISE FORESEEABLE. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL SCHBANG, ITS AFFILIATES,OR ITS OR THEIR RESPECTIVE OFFICERS, directors, employees, agents, licensors, OR service providers BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH: (a) CUSTOMER’S USE, OR INABILITY TO USE, THE SERVICES, EQUIPMENT, OR SCHBANG MATERIALS; (B) ANY CUSTOMER DATA, INCLUDING ANY UNAUTHORIZED ACCESS TO OR USE OF ANY CUSTOMER DATA; (c) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; AND/OR (d) ANY HARMFUL CODE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES, EQUIPMENT, OR ANY SCHBANG MATERIALS.
8.2 Maximum Liability. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL THE COLLECTIVE AGGREGATE LIABILITY OF SCHBANG, ITS AFFILIATES,AND ITS AND THEIR RESPECTIVE OFFICERS, directors, employees, agents, licensors, and service providers UNDER OR RELATED IN ANY WAY TO THE AGREEMENT OR ITS SUBJECT MATTER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO SCHBANG UNDER THE AGREEMENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
8.3 Basis of the Bargain. THE LIMITATIONS OF LIABILITY HEREIN ARE A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN AND REFLECT A FAIR ALLOCATION OF RISK. THE SERVICES AND SCHBANG MATERIALS WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS, AND CUSTOMER AGREES THAT THE LIMITATIONS OF LIABILITY AND DISCLAIMERS SPECIFIED HEREIN WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
9. ADDITIONAL TERMS FOR CERTAIN APPLICATIONS.
The following additional terms and conditions apply to an Application only if it is designed for use on an Apple, Inc. (“Apple”) iOS-powered mobile device. Customer and Schbang acknowledge that the Agreement is concluded between Customer and Schbang only, and not with Apple, and Schbang, not Apple, is solely responsible for the Application and the content thereof. Customer agrees that its license to use the Application is limited to the Apple iOS mobile device that Customer owns or controls and that Customer’s use of the Application shall be subject to the usage rules set forth in Apple’s then-current App Store Terms of Service. Customer and Schbang agree that Apple shall have no obligation to provide maintenance and support services with respect to the Application. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the Application. Customer agrees that Schbang, and not Apple, shall be responsible for the investigation, defense, settlement and discharge of any third party intellectual property infringement claim related to the Application. Customer represents and warrants that Customer is not located in a country that is subject to an Indian Government embargo, or that has been designated by the Indian Government as a “terrorist supporting” country, and that Customer is not listed on any Indian list of prohibited or restricted parties. Schbang’s contact information for any questions or inquiries with respect to the Application is set forth in Section 13.3 below. Customer agrees to comply with all applicable third party terms of agreement when using the Application. Customer agrees that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service applicable to the Application. Upon Customer’s acceptance of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against Customer as a third party beneficiary thereof.
10.2 Geographic Restrictions. Schbang does not represent that the Service or any Schbang Materials are appropriate or available for use outside of India. Access to and use of the Service may not be legal by certain persons or in certain countries. If Customer accesses the Service from outside India, Customer does so on its own initiative and are responsible for compliance with all applicable laws.
10.3 Governing Law; Jurisdiction and Venue. The Agreement as well as any dispute or claim arising out of or related to the Agreement, its subject matter, or its formation (in each case, including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of Utah, without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to the Agreement shall be instituted exclusively in the federal or state courts located in Salt Lake City, Utah, and Customer further agrees that such courts shall have in personam jurisdiction and venue with respect to Customer. Customer hereby submits to the in personam jurisdiction and venue of such courts and hereby waives any and all objections to the exercise of jurisdiction over Customer by such courts and to venue in such courts.
13.4 Limitation on Time to File Claims; Waiver of Jury Trial. ANY CAUSE OF ACTION OR CLAIM CUSTOMER MAY HAVE ARISING OUT OF OR RELATING TO THE AGREEMENT MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION OR CLAIM ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED. CUSTOMER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THE AGREEMENT.
13.5 Miscellaneous. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under the Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Schbang’s prior written consent. The Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns. Any remedy of Schbang set forth in the Agreement is in addition to any other that may be available to Schbang at law, in equity, or otherwise. Schbang’s failure to exercise or enforce any right or provision of the Agreement will not constitute a waiver of such right or provision. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent possible, and the remaining provisions of the Agreement will continue in full force and effect. The relationship between the parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment or fiduciary relationship between the parties. Unless the context otherwise requires, for purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to the Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; (e) the headings in the Agreement are for reference only and do not affect the interpretation of this Agreement; and (f) the parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
“Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Service.
“Customer Data” means any and all information, data, and other content, in any form or medium, that is uploaded into the Software or otherwise provided to Schbang, directly or indirectly, by Customer or a User in connection with any of the Services.
“Customer Systems” means Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third party services.
“Schbang Materials” means the Schbang Systems, Software, and any and all other information, data, documents, materials, works, and other content that are provided or used by Schbang in connection with the Services or otherwise comprise or relate to the Services or Schbang Systems, including any third party materials contained therein, but excluding the Customer Data. For the avoidance of doubt, Schbang Materials include all modifications and derivative works of any of the foregoing and to anything developed or delivered by or on behalf of Schbang under this Agreement.
“Schbang Systems” means the information technology infrastructure used by or on behalf of Schbang in providing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Schbang or through the use of third party services.
“Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any User from accessing or using the Service or Schbang Systems as intended by this Agreement.
“Intellectual Property Rights” means all forms of industrial and intellectual property rights and protections throughout the world, including any: (a) patents (including any patent applications, together with all reissuances, continuations, continuations-in-part, revisions, extensions, and reexaminations thereof); (b) copyrights; (c) Internet domain names, trademarks, service marks, and trade dress, together with all goodwill associated therewith; (d) trade secrets; (e) rights in databases and designs (ornamental or otherwise); (f) moral rights, rights of privacy, rights of publicity, and similar rights; and (g) any other proprietary rights and protections, whether currently existing or hereafter developed or acquired arising under statutory or common law, including all applications, disclosures, and registrations with respect thereto.
“Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy, and “Processing” and “Processed” have correlative meanings.
“Software” means Schbang’s proprietary software applications (including the Applications) and any third party or other software, and all Updates, new versions, revisions, improvements, and modifications of the foregoing, that Schbang provides access to and use of as part of the Services.
“User” means an employee of Customer.