1. Definitions

1.1 — “Services” shall mean the internet accessible service offered by Licensor through a Subscription (defined below) under which access to the Platform hosted by Licensor on a cloud is made available to the Employer and the Users pursuant to the terms of the Subscription Agreement (defined below) along with the support and maintenance services for the Platform as mentioned therein.

1.2 — “Subscription” means the limited license to use and access the Platform and its related Services in accordance with the Subscription Agreement executed between the Employer and Us.

1.3 — “Subscription Agreement” means the agreement signed between the Licensor and Employer in order to obtain Subscription to the Services.

2. Grant of License

Licensor hereby grants You a fixed term, non-exclusive, non-assignable/non-transferable, revocable, limited license to use, access, download, and install the Platform and use and access Services in accordance with this TOS and the documentation (if any) solely for the User’s internal business purposes.

3. Restriction on Use

Except to the extent permitted under Section 2 (Grant of License), You shall not directly or indirectly:

3.1 — offer the Platform for rent, lease, or otherwise transfer, sub-license, distribute, facilitate the distribution of or transfer the Platform in any manner;

3.2 — copy, modify, adapt, translate, reverse engineer, decompile, disassemble, alter, reproduce or otherwise make any changes to the Platform;

3.3 — export or re-export the Platform in any form in violation of any applicable laws and regulations regarding export control;

3.4 — use the Platform to create, develop, promote or market any competing or similar software/platform.

3.5 — defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others and Licensor, directors, employees or representatives, by using the Platform;

3.6 — try to hack, crash or sabotage the Platform;

3.7 — use any of the Platform’s components, add-ons, files, modules, externals, contents including associated license material separately from the Platform;

3.8 — use the Platform for performing comparisons, time-sharing, benchmarking activities or other computer services to third, either alone or in connection with any other software (and You will not publish or disclose any such performance information or comparisons) or allow any third party to access or benefit from the functionality of the Platform;

3.9 — exercise any right not specifically and unequivocally granted to User and are reserved by Licensor or should act in a manner detrimental to the Licensor.

4. Account Management

As a condition for Your use of the Services, You will be required to register with the Licensor and select a password and enter Your email address on the Licensor’s Platform. This account management will be facilitated through an admin appointed by the Employer. You must ensure to provide the Licensor with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this TOS, which may result in immediate termination of Your account. You shall be responsible for maintaining the confidentiality of Your account and password. By registering Your details with Licensor, You agree that we may contact You with important information relating to the Platform.

5. Compliance with Laws

The User shall comply with all applicable local, state, national and foreign laws in connection with its use of the Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. The User acknowledges that the Licensor exercises no control over the content of the information transmitted by the User through the Platform. The User shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.

6. Unauthorized Use; False Information

The User shall: (i) notify the Licensor immediately of any unauthorized use of password or user id or any other known or suspected breach of security, (ii) report to the Licensor immediately and use reasonable efforts to stop any unauthorized use of the Services that is known or suspected by the User, and (iii) not provide false identity information to gain access to or use the Services.

7. Access

The User shall be solely responsible for its acts and omissions. The Licensor shall not be liable for any loss of data or functionality caused directly or indirectly by the User.

8. User Content

The User is solely responsible for collecting, uploading and updating all the User content uploaded on the Platform, and for ensuring that the User content does not (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or (ii) contain anything that is obscene, defamatory, harassing, offensive or malicious. User acknowledges and agrees that Licensor uses certain third-party tools for analytical purposes and may use User’s content and track User’s usage of the Services for any purpose including but not limited to research, analytics, and to improve the Services.

9. Intellectual Property Rights

9.1 — Any and all rights to the Services, Platform, documentation, enhancements, and branding thereof including title, ownership rights and intellectual property rights such as copyrights, trademarks, service marks and patents therein is the sole and exclusive property of Licensor. This Agreement does not grant User any rights, title and interest in and to the Platform, documentation, enhancements, its contents and branding thereof including Licensor’s intellectual property rights except where expressly and unequivocally licensed herein.

9.2 — From time to time, User may provide feedback, suggestions, requirements or recommendations (“Feedback”) regarding the Platform or the Subscription. User hereby assigns to Licensor all right, title and interest into such Feedback and an exclusive right to create any developments based on such Feedback.

9.3 — User shall retain title to and all ownership rights in User content. User shall grant to Licensor a worldwide, non-exclusive, and non-transferable limited-term license to host, copy, transmit, analyze, process, display, store, configure, and perform User content solely as necessary to provide the Services to User.

9.4 — User acknowledges and agrees the Platform may generate certain reports (“Reports”) with the use of User content provided by User while availing the Services. All intellectual property rights including the ownership rights in all such Reports generated during the provision of Subscription shall vest solely with Licensor.

10. Confidentiality

10.1 — The Platform provided under this TOS contains valuable trade secrets and is the confidential information of the Licensor. You shall not disclose, provide or otherwise make available the Platform to any third party, except as expressly granted under this TOS.

10.2 — You agree to use all commercially reasonable precautions to protect the confidentiality of the Platform and shall secure from all third parties having access to the Platform, as per the terms of this TOS, and commit to maintain the Platform in confidence.

10.3 — You agree that under no circumstances the Licensor or its affiliates or subsidiaries shall be held responsible or liable for any loss, damage or harm caused due to Your reliance on information obtained from the Platform.

10.4 — The confidentiality obligations stated herein shall survive for a period of five (5) years from the date of termination or expiration of the Subscription Agreement along with this TOS.

11. Warranty Disclaimer and Liability

User acknowledges that the platform and its subscription are provided “as is” without any representations, conditions, warranties or covenants whatsoever, including without limitation, any express, statutory or implied representations, warranties or conditions of merchantability, merchantable quality, satisfactory quality or fitness for a particular purpose, or arising otherwise in law or equity or from a course of dealing or usage of trade, all of which are expressly disclaimed and excluded. The platform and its subscription may contain defects, bugs or errors. Licensor does not warrant that the functions contained in any of the platform and its subscription will meet user’s requirements, that the operation of the subscription will be uninterrupted or error-free or that defects in the subscription will be corrected. User acknowledges that licensor does not control the accuracy, transfer of data over communications facilities, including the internet, and that the subscription may be subject to limitations, delays, and other problems inherent in the use of such communications facilities.

Neither party shall be liable to the other for any direct or indirect, consequential, incidental, exemplary or special damages, howsoever caused in connection with this tos even if the other party has been advised of the possibility of such damage.

12. Reporting

You acknowledge that the Platform may contain automated reporting routines that will automatically identify and analyze certain aspects of Your use and performance of Platform and/or the systems through which the Platform is accessed (including problems and issues that arise in connection therewith) and provide information back to Licensor. Licensor will be free to use for development, diagnostic, compliance monitoring, and corrective purposes any such data and information it so collects.

13. Third Party Platform

Third-party product/platform (if any) used through the Platform shall be subject to separate terms and conditions provided by such third-party product/platform. The license restrictions contained in this TOS do not apply to third-party product/platform to the extent they are inconsistent with such third-party product/platform terms. The Licensor shall not be responsible for any third-party product/platform.

14. Indemnity

You agree to defend, indemnify and hold harmless Licensor and its affiliates, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) Your use of and access to the Platform and/or Services, including any data or work transmitted or received by You; (ii) Your violation of any term of this TOS; (iii) Your violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (iv) Your violation of any applicable law, rule or regulation; (v) any claim of damages that arise as a result of any of Your content shared by You or the other participants of the Conversation; or (vi) any other party’s access and use of the Platform or Services with Your unique username, password or other appropriate security code.

15. Termination

This TOS shall get terminated as soon as the Subscription Agreement gets terminated between Employer and the Licensor or upon deletion of the account by the User on the Platform, whichever is earlier. Upon the expiry or any termination of this TOS, Users’ right to use the Services shall immediately cease and at Licensor’s discretion, User will return/ delete/ destroy any materials provided by Licensor to Users as per the terms of the Subscription Agreement.

16. Audit and Inspection

Licensor shall have the right to audit User’s use of the Services in order to verify that it is being used in compliance with this TOS. Notwithstanding anything to the contrary contained herein, Licensor shall be entitled to introduce patches and / or other programs to monitor User’s usage of the Services, in order to ensure that User’s usage of the Services is in accordance with the terms of this TOS. In the event of User’s usage exceeds permitted usage as set out under this TOS, the patches and / or other programs introduced by Licensor might make the Platform unusable and, in such event, Licensor shall not be liable for any damages, expenses, losses, or any other consequence caused to User as a result thereof.

17. Governing Laws

This TOS shall be construed and governed by and construed and enforced in accordance with the laws of State of Delaware and the courts of New Castle County, Delaware shall have an exclusive jurisdiction to adjudicate any subject matter under this TOS.

18. Force Majeure

Neither party shall be in default or liable for any delay or failure to comply with this TOS due to any act beyond the control.

19. Interpretation

This TOS will in all events be construed as a whole, according to its fair meaning, and not strictly for or against a party merely because that party (or the party's legal representative) drafted the TOS. The headings, titles, and captions contained in this TOS are merely for reference and do not define, limit, extend, or describe the scope of this TOS or any provision herein. Unless the context requires otherwise, (a) the gender (or lack of gender) of all words used in this TOS includes the masculine, feminine, and neuter, and (b) the word "including"means "including, without limitation”.

20. Entire Agreement

This TOS constitutes the entire agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties pertaining to the subject matter hereof are inapplicable. Neither the rights nor the obligations arising under this TOS are assignable or transferable by You, and any such attempted assignment or transfer shall be void and without effect.

21. Independent Contract

No agency, partnership, joint venture, or employment is created between You and the Licensor as a result of this TOS, and You do not have any authority of any kind to bind Licensor in any respect whatsoever.

22. Severability

In the event that any of the provisions of this TOS shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this TOS shall otherwise remain in full force and effect and enforceable.

23. Waiver

Any waivers and modifications must be in writing and signed by both parties. No delay or omission by either party in exercising any right or remedy under this TOS or existing at law or equity shall be considered a waiver of such right or remedy.

24. General

You agree to use the Platform and Services at Your own risk. If You have any questions, complaints or claims with respect to the Platform or Services, You should contact Mr. Kuldeep Dhankar (CRO - kuldeep@last9.io).