Delightworx Inc reserves the right to update and change this Agreement from time to time without notice. Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to the Vendor’s sole discretion. Continued use of the Platform after any such changes shall constitute the Customer’s consent to such changes.
Violation of any of the terms below will result in the termination of Customer’s Access to the Platform and/or any services associated thereto. The Customer agrees to use the Platform and the services associated thereto at its own risk
WHEREAS, Delightworx Inc is engaged in the business of building and serving cloud based customer experience management software.
WHEREAS, the Customer desires to utilize the Platform along with consequent services associated thereto.
(Vendor and the Customer are individually and collectively referred to as “Party” and “Parties” respectively)
NOW, THEREFORE, in consideration of the premises and the mutual covenants of this Agreement, the parties hereto agree as follows:
“Applicable Law” shall mean any law, statute, order, decree, rule, injunction, license, permit, consent, approval, agreement and/or regulation of any government authority, and/or other legislative or administrative action of a government authority, and/or a final decree, judgment or order of a court which relates to and/or shall be rendered applicable, directly or indirectly, to the provisions of this Agreement, and/or Vendor.
“End User” shall mean any and all end users of the Customer whose information (be it personally identifiable or otherwise) is made available by the Customer under this Agreement.
“License Period” shall have the meaning ascribed to it in Clause 2.1.
“Vendor Group” shall have the meaning ascribed to it in Clause 4.1.
Vendor hereby grants to the Customer, a non-exclusive, non-assignable, right and license to use the Platform in connection with its internal customer feedback activity for a period of 1 year (hereinafter referred to as the “License Period”). Vendor will place the Platform and all the associated technologies on its own standalone cloud servers.
The Customer is prohibited from making any copies, archival or otherwise, of the Platform and/or associated technologies. The Customer is further prohibited from using the Platform in any manner other than as described above.
Notwithstanding anything contained herein, Vendor retains all rights in relation to the Platform not specifically granted to Customer herein.
Vendor reserves the right in its sole discretion to apply any hard limits on any specific attribute or resource on the Platform at any given time without notice in order to prevent degradation of the services provided under this Agreement, or in case of any breach or violation or threatened breach or violation of this Agreement, or in case Vendor learns of a possibility of breach or violation of this Agreement which Vendor in its sole discretion determines to be appropriate, or to protect the integrity and stability of the Platform and the services associated thereto, or to avoid any liability, civil or criminal, on the part of Vendor, or for any other appropriate reason. For clarification purposes, it is hereby stated that the Customer understands, affirms, acknowledges, appreciates and agrees that Vendor, is not liable for loss or damages that may result from any of the above
The Customer acknowledges, affirms, agrees and understands that the Platform uses various software codes which have their own licensing agreements associated with them (“Open Source Platform Licenses”). The Customer specifically represents that it is bound by the specifications, restrictions and liabilities stated, either explicitly or implicitly mentioned in the Open Source Platform Licenses.
Vendor reserves the right to discontinue any and all modules provided to the Customer under this License for any reason whatsoever. The Customer affirms, acknowledges, understands, and agrees that nothing in this Agreement expresses and/or implies in any manner whatsoever, any guarantee and/or warranty in relation to any of the modules made available herein
Vendor periodically provides updates, in relation to the Platform. The Customer shall obtain updates only from Vendor, and Vendor may need to update the Customer’s systems to provide it with those updates. By accepting this agreement, the Customer specifically agrees to receive these types of automatic updates without any additional notice. All the terms of this Agreement shall be applicable mutatis mutandis to such updating patches provided by Vendor.
Vendor reserves the right to amend, change, upgrade and/or downgrade any and all of the aspects of the Platform and/or the associated services at for any reason whatsoever.
EXCEPT FOR THE INDEMNITY OBLIGATIONS OF VENDOR IN CLAUSE 15, UNDER NO CIRCUMSTANCES SHALL VENDOR, OR THEIR PARENTS, AFFILIATES, DIRECTORS, EMPLOYEES, DISTRIBUTORS, SUPPLIERS, AGENTS OR RESELLERS (COLLECTIVELY, THE “VENDOR GROUP”) BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE LICENSED SOFTWARE BY THE CUSTOMER. THIS LIMITATION APPLIES WHETHER THE ALLEGED BREACH IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADDITIONALLY, UNDER NO CIRCUMSTANCES SHALL VENDOR GROUP BE HELD RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY LOSS OR DAMAGE CAUSED OR ALLEGED TO HAVE BEEN CAUSED TO THE CUSTOMER IN CONNECTION WITH THE USE OF OR RELIANCE ON ANY CONTENT, GOODS OR SERVICES AVAILABLE ON OR THROUGH ANY EXTERNAL SITES LINKED FROM THE SITE. VENDOR GROUP IS NOT RESPONSIBLE FOR, AND SHALL HAVE NO LIABILITY FOR, THE LOSS OF OR DAMAGE TO THE CUSTOMER’S CONTENT AND DOCUMENTS INCLUDING ANY LOSS OR DAMAGE RESULTING FROM THE SUSPENSION OR TERMINATION OF THE LICENSED SOFTWARE OR THIS AGREEMENT. EXCEPT FOR (I) CONFIDENTIALITY OBLIGATIONS IN CLAUSE 5, AND (II) INDEMNITY OBLIGATIONS IN CLAUSE 15, IN NO EVENT SHALL THE LIABILITY OF EITHER PARTY, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE (ALONGWITH ITS PERMITTED ASSIGNS, AGENTS, EMPLOYEES, HEIRS, SUCCESSORS AND/OR AUTHORISED REPRESENTATIVES) EXCEED THE TOTAL FEES PAID BY THE CUSTOMER GIVING RISE TO THE CLAIM.
THE CUSTOMER IS RESPONSIBLE FOR MAINTAINING THE SECURITY, INTEGRITY, HEALTH AND BACKUPS OF CUSTOMER’S DATABASE. VENDOR CANNOT AND WOULD NOT BE LIABLE FOR ANY LOSS OR DAMAGE OF THE CUSTOMER’S DATA FROM THE CUSTOMER’S FAILURE TO COMPLY WITH THIS OBLIGATION.
The Customer recognizes that the Platform is the proprietary and confidential property of Vendor. Accordingly, the Customer shall not, without the prior express written consent of Vendor, during the term of this Agreement and for THREE YEARS there after, disclose or reveal to any third party or utilize for its own benefit other than pursuant to this Agreement, any information provided by Vendor concerning the Platform, provided that such information (i) was not previously known to the Customer or to the general public, (ii) is not independently developed by Customer, (iii) does not become known to the general public through no fault of Customer, or (iv) is not provided to Customer by a third party that lawfully obtained the information and does not have any obligation to keep it confidential. The Customer further agrees to take all reasonable precautions to preserve the confidentiality of Vendor’s proprietary technologies and shall assume responsibility that its employees, sub licensees, and assignees will similarly preserve this information against third parties. The provisions of this clause shall survive termination of this Agreement.
The Vendor agrees, acknowledges, understands and affirms that any confidential information of the Customer which may be the subject matter, the derivative of or connected to this Agreement shall not be disclosed to any third party without the prior written approval of the Customer.
Notwithstanding anything contained herein, the Customer shall not disclose or reveal to any third party or utilize for its own benefit any information in relation to all the commercial details in relation to the transactions envisaged herein, including but not limited to the fee structures mentioned herein.
Subject to the obligations in relation to confidentiality more specifically laid down in this Clause 5, the Vendor shall have a right but not an obligation to disclose the existence of this contractual arrangement (not including the commercial terms mentioned herein) with the Customer to any and all Third Parties the Vendor deems fit
Vendor further represents and warrants that it has no actual knowledge that the Platform infringes any valid rights of any third party.
Vendor warrants that the Platform will perform in accordance with the specifications provided by Vendor to the Customer.
The warranty provided for herein is in lieu of all other warranties, express or implied, that may arise either by agreement between the parties or by operation of law, including the warranty of merchantability or fitness for a particular purpose.
The Customer understands, affirms, acknowledges and appreciates that the Vendor has applied reasonable practices and procedures as may be required by applicable law, including but not limited to the provisions of the Information Technology Act, 2000 from the protection of any and all sensitive information that is made available by the Customer in the due course of this Agreement and that the liability of the Vendor shall be limited to ensuring the said security measures remain in place at all times during the course of this Agreement.
The Customer understands, affirms, acknowledges and appreciates that the Vendor shall, to the best of its abilities ensure that (i) the Platform will meet the Customer’s specific requirements, (ii) the access to the Platforms and the associated services thereto will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the service will be accurate or reliable, (iv) the quality of any products, services, information, or other material purchased or obtained by the Customer through the Platform will meet Customer’s expectations, and (v) any errors in the Platform will be corrected. For clarification of doubt, it is hereby stated that the Vendor shall not liable for any damages caused to the Customer, whether direct, indirect, incidental or consequential in nature, as a result of any of the above instances when such an occurrence is a result of factors and/or circumstances beyond the control of the Vendor.
The Customer understands, affirms, acknowledges and appreciates that Customer is responsible for maintaining the security, integrity, health and backups of Customer’s database. Vendor cannot and would not be liable for any loss or damage from the Customer’s failure to comply with this obligation.
Notwithstanding anything contained herein, Vendor shall not be responsible for support, customization or development carried out by third party suppliers engaged by the Customer.
In the event of a claim by the Customer under this warranty, Vendor shall have the option to either repair or replace the Platform. In the event that Vendor fails to repair or replace the Platform within a reasonable period, the Customer’s sole recourse shall be to terminate the Agreement. In no event shall Vendor be liable for any incidental, consequential, or punitive damages as a result of its performance or breach of this Agreement.
The Customer specifically represents and warrants that the online environment used, either on premise or on cloud systems, by it to operate the Platform (including but not limited to the Operating System, the plugins and/or such other ancillary software) do not violate any applicable law and/or any other third-party license agreements.
The Customer specifically represents and warrants that the End User use of any and all Customer’s services and/or products shall be allowed under any applicable law.
The Customer acknowledges, affirms, agrees and understands that Vendor is induced to enter into this Agreement on the basis of the covenants, representations and/or warranties expressly and/or implicitly made herein by the Customer.
The Customer specifically represents and warrants that it has taken all the necessary consents, approvals and/or permissions from the End User and/or any other applicable Third Party in relation to any and all information made available to and/or procured from such End User and/or any other applicable Third Party through this Agreement. For the purposes of this Clause, “Consent” should mean a clear affirmative act (not being an omission) establishing a freely given, specific, informed and unambiguous indication of the End User’s agreement to the processing of personal data relating to him or her, such as by a written statement, including by electronic means, or an oral statement. This could include ticking a box when visiting an internet website, choosing technical settings for information society services or another statement or conduct which clearly indicates in this context the End User’s acceptance of the proposed processing of his or her personal data. Silence, pre-ticked boxes or inactivity should not therefore constitute consent. Consent should cover all processing activities carried out for the same purpose or purposes. When the processing has multiple purposes, consent should be given for all of them. If the End User’s consent is to be given following a request by electronic means, the request must be clear, concise and not unnecessarily disruptive to the use of the service for which it is provided. For clarification of doubt, the Customer understands, agrees, acknowledges and affirms that the Vendor disclaims all liability in relation to any unauthorised access to End User data and/or any other Third Party made available by the Company in due course of this Agreement.
The Customer has applied reasonable practices and processes in accordance with applicable law in relation to personally sensitive information of End User that is made available to the Vendor in due course of this Agreement and shall be solely responsible any data breach or leak in relation to such personal sensitive information from the Customer’s infrastructure, servers and/or any other storage location where the Customer has the rights of and/or similar to a data controller.
Any and all ancillary services provided in relation to the Platform shall be subject to following clauses: The Vendor shall provide all the ancillary services using commercially best efforts. The Customer reserves the absolute right in its sole discretion to approve or reject any and all of Vendor’s recommendations, programs, strategies, and proposals, and portions thereof
The Customer can pay by credit card, debit card, net banking and/or any other Reserve Bank of India approved payment method at the time of making such payment which is made available by the Vendor. The Customer understands, accepts, acknowledges and agrees that the payment facility provided by Vendor is neither a banking nor financial service but is merely a facilitator providing an electronic, automated online electronic payment, receiving payment for the transactions on the Platform using the existing authorized banking infrastructure and credit card payment gateway networks. Further, by providing payment facility, Vendor is neither acting as trustees nor acting in a fiduciary capacity in any manner whatsoever.
The Customer agrees, affirms, acknowledges and understands to pay Vendor the total amount for any of the license/service made available/provided, either directly and/or indirectly, in relation to the Platform. Vendor will collect the total amount in accordance with these Terms and the pricing terms as applicable in that particular transaction along with applicable taxes.
The Customer agrees, affirms, acknowledges and understands that Vendor cannot control any amount that may be charged to the Customer by its respective bank related to the collection of the total amount owed to Vendor, and Vendor disclaims all liability in this regard.
In connection with any payments in relation to any and all matters dealt with under these Terms, the Customer will be asked to provide customary billing information such as name, billing address and credit card information either to Vendor or Vendor’ third party payment processor.
The Customer hereby authorizes the collection of such amounts by charging the credit card/debit card provided, either directly by Vendor or indirectly, via a third party online payment processor.
1.1. Although the Customer is entitled to use Platform and the associated services, in whole or in part, all Intellectual Property thereon shall vest with the Vendor and shall also constitute the Vendor’s Confidential Information. The Customer hereby assigns and if so further required agrees to execute all assignment and other documents prepared by Vendor at its sole expense and take necessary steps at the Vendor’s request.
1.2. Notwithstanding anything contained herein, Vendor extends a non-transferable, revocable license to the Customer to use the Platform solely for the purposes mentioned herein.
1.3. Vendor acknowledges, agrees, understands and appreciates that all content and/otherwise information provided by the Customer is the sole property of the Customer. For clarification of doubt, it is hereby stated that Vendor shall not stake claim to any intellectual property right that may be associated with such content and/or information unless:
1.3.1. it is an analytical derivative of such content and/or otherwise information through which such content and/or otherwise information can be derived back, inferred and/or otherwise sourced,
1.3.2. such Customer expressly allows such exploitation, assigns and/or otherwise waives such right ordinarily under applicable law belonging to him.
2.1. The Customer understands, agrees, affirms and acknowledges that Vendor uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Platform. It is hereby clarified that Vendor shall not be liable for any action/inaction and/or otherwise deficiency of service from such third-party vendors and hosting partners.
2.2. At the instance, the Customer uses any third-party services in relation to any and all Modules of Platform made available through this Agreement or otherwise, Vendor shall not be liable to fulfil any and all obligations under this Agreement.
3.1. The Customer specifically covenants that it shall not modify, adapt or hack the Platform or modify another website so as to falsely imply that it is associated with Vendor and/or any of the services associated with Vendor.
3.2. The Customer covenants that it shall not reproduce, duplicate, copy, sell, resell or exploit any portion of the Platform, use of the Platform, or access to the Platform without the express written permission by Vendor.
3.3. Notwithstanding anything contained herein, the Customer is specifically forbidden from using the Platform for any commercial purpose other than those specifically mentioned herein.
3.4. The Customer shall not reverse engineer, attempt to decompile or disassemble the technologies exposed to it by the Vendor;
3.5. The Customer shall not allow any unauthorised third parties to access, use or support the Platform.
The following termination rights are in addition to the termination rights that may be provided elsewhere in the Agreement:
4.1. Right to Terminate Upon Notice. Either party may terminate this Agreement on one (1) months’ written notice written notice to the other party in the event of a material breach of any provision of this Agreement by the other party, provided that, during the 30-day period, the breaching party fails to cure such breach.
4.2. The Customer Right to Terminate. The Customer shall have the right to terminate this Agreement at any time on at least one (1) months’ written notice to Vendor for any reason.
5.1. Upon the expiration or termination of this Agreement, all rights granted to the Customer under this Agreement shall forthwith terminate and immediately revert to Vendor and the Customer shall discontinue all use of the Platform.
5.2. Upon expiration or termination of this Agreement, Vendor may require that the Customer transmit to Vendor, at no cost, all material relating to the Platform, provided, however, that the Customer shall be permitted to retain a full copy of all material subject to the confidentiality provisions of this agreement.
6.1. Vendor agrees to defend, indemnify, and hold the Customer, and its officers, directors, agents, and employees, harmless against all costs, expenses, and losses (including reasonable attorney fees and costs) incurred through claims of third parties against the Customer based on a breach by Vendor of any representation and warranty made in this Agreement as well as for any third-party claim for infringement of its intellectual property rights based on the Customer’s use of the Platform.
6.2. The Customer agrees to defend ,indemnify, and hold Vendor, and its officers, directors, agents and employees harmless against all costs, expenses, and losses (including reasonable attorney fees and costs) incurred through claims of third parties against Vendor based on a breach by the Customer of any representation and warranty made in this Agreement as well as for any third-party claim for infringement of its intellectual property rights based on the Customer’s mala fide use of the Platform.
7.1. Any notice required to be given pursuant to this Agreement shall be in writing and mailed by certified or registered mail, return receipt requested, or delivered by a registered post to the following address.
7.2. Either party may change the address to which notice or payment is to be sent by written notice to the other party pursuant to the provisions of this paragraph.
8.1. This Agreement and its performance shall be governed by and construed in all respects in accordance with the Laws of the Republic of India.
8.2. Subject to Clause 19.3 below, this Agreement shall be subject to the jurisdiction of the courts in Bangalore, India.
8.3. Any action, dispute or difference arising under or relating to this Agreement (“Dispute”) shall at the first instance be resolved through good faith negotiations between the Parties hereto, which negotiations shall begin promptly, within 15 (fifteen) days after a Party has delivered to the other Party a written request for such consultation. If the Parties are unable to resolve the Dispute in question within 15 (fifteen) days of the commencement of negotiations, the Dispute shall be referred to and finally and conclusively settled by arbitration in accordance with the Indian Arbitration and Conciliation Act, 1996.
8.4. The seat as well as the venue of arbitration at all times shall be Bangalore, India.
8.5. All proceedings, including issuance of an arbitration award, in any such arbitration, shall be conducted in English.
8.6. The arbitration shall be conducted by a tribunal of 3 (three) arbitrators. The Parties agree that the Customer shall appoint 1 (one) arbitrator, Vendor shall appoint 1 (one) arbitrator and the arbitrators so appointed shall appoint the third arbitrator. At the instance any Party is unable to appoint its respective arbitrator within 10 (ten) days from the date on which both Parties are aware of the Dispute in a written form of communication, it shall be deemed that both Parties have jointly appointed the sole arbitrator so appointed.
8.7. The arbitral tribunal will have the power to grant any remedy or relief that they deem just and equitable, including but not limited to injunctive relief, whether interim and/or final.
8.8. The arbitration award shall be final and binding on the Parties, and may be enforced by any court of competent jurisdiction.
8.9. The Parties agree to bear their own costs of arbitration until such time that the arbitral tribunal does not pass an award deciding on the costs. The arbitrators may, (but shall not be required to), award to a Party that substantially prevails on merits, its costs and reasonable expenses (including reasonable fees of its counsel).
8.10. When any dispute is under arbitration, the Parties shall continue to exercise their remaining respective rights and fulfil their remaining respective obligations under this Agreement
This Agreement shall be binding on and shall inure to the benefit of the parties hereto, and their heirs, administrators, successors, and assigns.
No waiver by either party of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of this Agreement.
If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision and such invalid provision shall be deemed to be severed from the Agreement.
The license granted hereunder is personal to the Customer and may not be assigned by any act of the Customer or by operation of law unless in connection with a transfer of substantially all the assets of the Customer or with the consent of Vendor.
This Agreement constitutes the entire understanding of the parties, and revokes and supersedes all prior agreements between the parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents that may be in conflict therewith.