Last Updated : 4th August, 2018
Climbax Entertainment Private Limited doing business as Digicuro (“Digicuro” or “We”) provides a software as a service technology platform (“Platform”) that empowers coworking spaces and enterprise organizations with tools to manage their workplace in the Platform (“Service”). Access to the Platform and the Services are provided through Digicuro’s websites at WWW.digicuro.com, digicuro.space, digicuro.work (the “Websites”), through subdomains of the Websites and the white-labelled Digicuro mobile app (“App”). This Agreement applies to anyone signing up to create an account in order to access and use the Services provided under the terms of this Agreement and, to the extent applicable, users who simply view the content on or available through the Website or App (“You”/”Administrator”).
THIS AGREEMENT CONTAINS IMPORTANT LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES AND LIABILITIES THAT ARE APPLICABLE TO THE SERVICES SO YOU SHOULD READ IT CAREFULLY BEFORE USING THE SERVICES. BY EXECUTING A SUBSCRIPTION FORM THAT REFERENCES THIS AGREEMENT (“SUBSCRIPTION FORM”), YOU AGREE TO THE TERMS HEREOF. IF YOU ARE AN AGENT OR EMPLOYEE OF AN ENTITY YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER. IF YOU DO NOT ACCEPT THESE TERMS, THEN DO NOT USE THE WEBSITE OR ANY OF ITS CONTENT OR SERVICES.
CAPITALISED TERMS USED IN THIS AGREEMENT ARE DEFINED IN SECTION 14.
1. THE SERVICE
1.1. Who the Service is for. The Service has been created for use by:
1. Entities managing a place of work (“Workplace”) for their own staff, employees, contractors and sub-contractors (“Enterprise Administrators”).
2. Entities operating a Workplace as a co-working space (“Co-working Administrators” and, together with Enterprise Administrators, “Administrators”); and Individuals (“Users”) who work in or otherwise use those Workplaces, whether as employees, contractors, tenants or otherwise.
1.2. The Service for Enterprise Administrators. The Service may be used by Enterprise Administrators for the purposes more particularly described in the Website from time to time, and the scope for the Services that may be used by Enterprise Administrators will depend on the subscription selected by the Enterprise Administrator in the accepted Subscription Form. Typically, such subscription shall:
1. Include the branding of the App in the Enterprise Administrator’s name and colors.
2. Include release on the Apple App store and Google Play store under the name of the Enterprise Administrator – for this purpose an Enterprise Administrator may be required to register for its own developer account on such stores, in which case it shall be required to register Digicuro as an authorized developer or equivalent, and grant Digicuro such access to enable Digicuro to release the white-labelled app on such stores on the Enterprise Administrator’s behalf or as otherwise agreed between Digicuro and Enterprise Administrator under the applicable Subscription Form.
1. Allow for the collection and analysis of patterns of usage of the Enterprise Administrator’s Workplace by Users.
2. Allow for the managed scheduling and booking of working spaces, and
3. Such other service modules as may be selected in the accepted Subscription Form.
1.3. The Service for Co-working Administrators. The Service may be used by Co-working Administrators for the purposes more particularly described in the Website or on the App from time to time, and the scope for the Services that may be used by Co-working Administrators will depend on the subscription selected by the Co-working Administrator in the accepted Subscription Form. Typically, such subscription shall:
1. Include the branding of the App in the Co-working Administrator’s name and colors.
2. Include the release on the Apple App store and Google Play store under the name of the Co-working Administrator – for this purpose an Co-working Administrator may be required to register for it’s own developer account on such stores, in which case it shall be required to register Digicuro as an authorized developer or equivalent, and grant Digicuro such access to enable Digicuro to release the white-labelled app on such stores on the Enterprise Administrator’s behalf or as otherwise agreed between Digicuro and Co-working Administrator under the applicable Subscription Form.
1. Enable the booking of and payment for spaces within the Co-working Working Place by Users.
2. Allow for the collection and analysis of patterns of usage of the Co-working Administrator’s Workplace by Users.
3. Allow for the managed scheduling and booking of rooms, desks and work spaces, and
1.4.The Service for Users. The functionality of the Service will be determined by the Administrator of each Workplace for which such User is registered. Typically, the Service may be used by Users to:
1. “check-in” to any Workplace where they are registered.
2. Reserve spaces within those Workplaces, including any meeting rooms, hot desks or other shared spaces.
1. Communicate with other Users in a Workplace.
2. Locate other Users in a Workplace who are using the App, and
3. Such other functionality as may have been subscribed for and enabled by the Administrator of that Workplace.
1.5. Use of hardware. Effective implementation and use of aspects of the Service may include the installation and use by Administrators in Workplaces of certain hardware, such as Bluetooth beacons, internet-of-things enabled devices, or such other technology as may be recommended by Digicuro from time to time. Use of any hardware provided by Digicuro shall be subject to the provisions of section 6 below.
1. Effectively managing shared spaces within a Workplace.
2. Effectively managing shared spaces within a Workplace.
1. Allowing for communication between multiple Users and between Users and Administrators in respect of use of the Workplace
2. Using aggregated data to create benchmarks and industry reports to support the community.
1. Allowing for communication between multiple Users and between Users and Administrators in respect of use of the Workplace
2. Using aggregated data to create benchmarks and industry reports to support the community.
Administrator will have the ability to set the extent of information that is requested for collection from Users, and Administrators may determine whether or not Users can provide anonymous date through the App. Use of an App by Users cannot be enforced by Digicuro, and is a matter for Administrator to administer.
2 Subscription to the Service.
2.2. Custom Services. Through the capabilities of the Service, Administrators will be able to manage their Administrator experience management and other features offered as part of the Services. Initial setup by Digicuro will include branding the white-labelled App in the Administrator’s colors and brand. Administrator grants Digicuro a non-exclusive, non-transferable, royalty-free, license to use their brand, logo and any other material provided by Administrator solely for the purpose of customizing the appearance of the Administrator’s white-labelled App on behalf of Administrator.
2.3. Trial License. Administrators may use certain specified modules in the Platform on a trial, evaluation basis for the period of time indicated at the time of selecting Administrators’ subscription plan. For greater certainty, trials are at the discretion of Digicuro and Digicuro reserves the right to cancel or terminate a trial immediately at any time on provision of written notice to You. Digicuro hereby grants to Administrator and Administrator hereby accepts a non-exclusive, non-transferable, royalty-free, license, during the trial evaluation period, to use the Service for evaluation purposes only, subject to the terms and conditions of this Agreement. Digicuro shall provide to Administrator without charge, reasonable email support requested by Administrator for the trial evaluation period in connection with the use and operation of the Service.
2.4. Commercial License. Subject to submission and acceptance of a Subscription Form and payment of the applicable Fees, Digicuro hereby grants to Administrator and, to the extent authorized by Administrators, Users a non-exclusive, non-transferable internal license to use and access the Platform and user interface for the purpose of using the Service during the Term. Administrator shall be entitled to use the modules provided in the subscription plan selected and purchased by Administrator.On creation of your account, if you are an Administrator you will be able to create your own login details enabling direct access to Services for multiple levels of access by Administrator’s permitted users. Administrator will have the ability to trial, subscribe, suspend and unsubscribe from modules (both paid and free modules depending on Administrator’s subscriptions) of the Service.
2.5. License Restrictions. All software provided is licensed; not sold. You shall use the Services (including any Code, as defined below, if you are granted access to such Code) solely as contemplated in this Agreement and shall not license, sublicense, sell, resell, lease, transfer, assign, distribute, time share or otherwise make the Service or any Code available to any third party. You shall not: (a) modify, translate, reverse engineer, decompile, disassemble, copy, re-use, re-create or create derivative works based on the Service or any software or code (whether compiled, object code, source code or otherwise) provided to you or uploaded to any application store on your behalf (together, the “Code”) except to the extent expressly agreed upon in writing by Digicuro or to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (b) circumvent any user limits or other use restrictions that are built into the Services (c) access or use the Services or any Code in order to (i) build a competitive product or Services; or (ii) copy any ideas, features, functions or graphics of the Service. Code is only made available to Administrators for the purpose of their use of the Service and release of the white-labelled App on the applicable application store – no further rights are granted to any party in respect of the Code, and any other use is strictly prohibited. Any further restrictions set out in this Agreement in respect of the Services shall, for the avoidance of doubt, include the same restrictions on the use of the Code or any of it.
2.6. Restrictions on Use of the Services. You shall not (a) use, or permit the use of, the Services for an illegal purpose, criminal offence, intellectual property infringement, harassment (including annoying or offensive transmissions), or in a manner that would cause interference with network operations; (b) resell, remarket, transfer or share the Services or receive any charge or other benefit for the use of the Services; attempt to bypass Digicuro’s network, or re-arrange, disconnect, remove, repair or otherwise interfere with any Services or facilities; or (c) remove any proprietary notices, labels, or marks from the Digicuro Technology or modify, alter, or deface any of the trademarks, service marks, or other intellectual property made available through the Services nor use any of the foregoing except for the specific purpose for which such intellectual property is made available to You.
2.7. Lawful purposes. You will at any and all times meet Your obligations hereunder, as well as any and all laws, regulations and policies that may apply to the use of the Services in Your country, including applicable rules that govern the export or import of software and laws relating to collection and use of personal information. You agree to use the Services solely for lawful purposes only. In this respect You may not, without limitation (i) use the Services to manage any illegal operations, (ii) use any type of spider, virus, worm, trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage or disassemble the technology underlying the Services (including our proprietary software which may be available for download on the Website), (iii) send any unsolicited commercial communication not permitted by applicable law; or (iv) endanger any part of any system or Internet connection of Digicuro or any third party through your use of the Service.
2.8.Third Party Software. The technology underlying the Service may incorporate and embed software and other technology owned and controlled by third parties.Any such third party software or technology that is incorporated in the Digicuro Technology falls under the scope of this Agreement. Such third party software is licensed; not sold and will be provided to You on the license terms of this Agreement unless additional or separate license terms apply as indicated at the time of account access.
2.9.Pilot. Digicuro may from time to time agree to license the Services to Administrators on a pilot basis (a “Pilot”), where expressly provided for in the applicable Subscription Form. In such case: (i) the Subscription Form will state the duration of such Pilot (the “Pilot Period”); (ii) no fees will apply, except for any Pilot use fee(“Pilot Use Fee”) specified in that Subscription Form, which Pilot Use Fees shall be non-refundable; (iii) the Services are provided “AS IS” and no warranty obligations of Digicuro will apply for the duration of the Pilot Period, and (iv) Administrator may terminate this Agreement and all of its rights hereunder by providing Digicuro written notice thereof no less than 10 days prior to the end of the Pilot Period; otherwise, this Agreement shall continue in effect for the remainder of the Initial Service Term and any Renewal Term (subject to earlier termination as provided in the Agreement).
3. SERVICE, SUPPORT AND MAINTENANCE TERMS.
3.1. Provision of Service. Conditioned on the terms and conditions of this Agreement and payment of the Fees, Digicuro shall make the Service available to Administrator and its authorized Users during the term of the Administrator’s subscription.
3.2. Service Responsibilities. The Service has built in help features to assist Administrator in troubleshooting and resolving problems encountered while using the Service.Additional support services may be purchased directly from Digicuro by separate agreement.
3.3. Security. Digicuro shall use commercially reasonable efforts to maintain the security and integrity of the Service and the Administrator Data.
3.4. Availability. Digicuro shall use commercially reasonable efforts to make the Service available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime; or (b) any unavailability caused by circumstances beyond Digicuro’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Digicuro employees), or Internet Services provider failures or delays. Digicuro will provide updates and upgrades to the technology underlying the Website from time to time to provide new features and improvements, bug fixes and error corrections which will be available across the Digicuro platform.
3.5. Incremental Services. From time to time, additional Digicuro or third-party functionality (such functionality being deemed not to be part of the Service) may be made available by Digicuro to Administrator (in the case of third-party functionality, such functionality being made available on a pass-through basis pursuant to terms specified by the third-party provider of such functionality), and which additional functionality may be purchased by Administrator for additional fees in accordance with any additional terms and conditions specified by Digicuro.
3.6. Service Limitations. The Service is not a back-up service and accordingly Digicuro will not be responsible for any lost data due to server crashes or other events outside Digicuro’s reasonable control. However, Digicuro maintains backup of data on its servers to minimize the impact of any server crashes.
4. LINKS & THIRD-PARTY WEBSITES AND INTEGRATIONS.
The Website and App may contain links to other websites that are not owned or controlled by Digicuro or may make it possible for you to elect to use third party services with the Service where such third party service providers have integrated with the Service (“Third Party Integration Partners”). In no event shall any reference to any third party, third party product or service be construed as an approval or endorsement by Digicuro of that third party, third party product or service. Digicuro is also not responsible for the content of any linked websites or for the delivery of any product or service offered by third parties including Third Party Integration Partners. In order to receive access to a Third Party Integration Partner’s products or services, you will need, in most cases, to sign-up directly with the Third Party Integration Partner. For certain services offered by Third Party Integration Partners, you will be required to pay a fee to Digicuro to turn on the third party service. Any third-party websites or services (including those offered by Third Party Integration Partners) are subject to the terms and conditions of those websites and or services and You are responsible for determining those terms and conditions and complying with them. The presence of a link to any other website(s) does not imply that Digicuro endorses or accepts any responsibility for the content or use of such websites, and You hereby release Digicuro from all liability and/damages that may arise from Your use of such websites or receipt of services from any such websites. While Digicuro does not prohibit linking to third party websites and content, it does not wish to be linked to or from any third-party web site which contains, posts or transmits any of the content which infringes any third parties rights or any applicable law, or which would otherwise bring Digicuro into disrepute. Digicuro reserves the right to prohibit or remove (or require You to remove) any link to the Website, including, without limitation, any link which contains or makes available any content or information of the foregoing nature, at any time.
5. PAYMENTS THROUGH THE SERVICE.
5.1. Payment Solutions. The Service may include access to a payment solution, which assists Administrators with accepting and processing payments from Users, and which is provided by one of Digicuro’s third party service providers, such as Stripe, Razorpay or other payment processing services or platforms, on behalf of Digicuro. This service is made available to Administrators in good standing, and at the sole discretion of Digicuro. Digicuro reserves the right to collect certain additional information from Administrators in order to provide this service. Payment fees are set forth on the Website or as otherwise agreed from time to time. We reserve the right to revise our Fees at any time, subject to a fourteen (14) day notice period to you.
5.2. Payment Services Features. If you register for Digicuro Payments, Digicuro Payments will be able to process credit card or ACH payments through your Digicuro account, process full credit card and ACH payment refunds, and allow your end users to process payment via email. Digicuro Payments will also store and manage end user credit cards, permit you to view transactions, deliver automated receipts, and receive notification of payment disputes.
5.3. Agreement for Payment Gateways:
i. STRIPE CONNECTED ACCOUNT AGREEMENT. IN ORDER TO USE THE PAYMENTS SERVICE, YOU MUST FIRST AGREE TO THE STRIPE CONNECTED ACCOUNT AGREEMENT AND THE STRIPE SERVICES AGREEMENT, WHICH YOU CAN REVIEW HERE: HTTPS://STRIPE.COM/US/CONNECT-ACCOUNT/LEGAL, AND WHICH ARE HEREBY INCORPORATED BY REFERENCE INTO THESE TERMS OF SERVICE. BY ORDERING OR REGISTERING FOR DIGICURO PAYMENTS, YOU HEREBY REPRESENT AND WARRANT THAT YOU HAVE READ THE STRIPE CONNECT AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS.
1. Razorpay other platforms In order to use the respective payment gateways, you must create accounts, agree to their terms, agreements and perform the verification procedures as outlined by the respective payment gateway providers.
5.4. Accuracy of Information. As between You and Digicuro, you are responsible for all the information you provide in connection with registering for, and using the Payments features of the Services. You hereby represent and warrant that you are providing true, accurate, and complete information to Digicuro, and shall fully indemnify Digicuro for any losses, costs, expenses incurred by Digicuro or any third party arising as a result of your failure to provide accurate, timely and complete information.
5.5 No Liability for Third Party Services. The Stripe Connected Account Agreement or the Razorpay agreement or any other third party payment gateway agreement is between the respective payment gateway provider and You, and Digicuro shall not have any liability or responsibility for any breach of the Stripe Connected Account Agreement/Razorpay Agreement/ any other third party payment gateway agreement, or any losses, damages, expenses costs or other injuries incurred by You in connection with such agreement.
5.6 User Authorization. If you subscribe to Payments, You hereby authorize Digicuro to collect certain payment information and data (including account and transaction data, and certain personal information about your end users), and to store, use and process such information data for the purposes of providing the Payments service.
5.7 User Covenants. You hereby covenant, represent and warrant that you will not use the Payments for any illegal, deceptive or fraudulent activity, including for any illegal businesses, including, without limitation, the Stripe Prohibited Business list, found here: https://stripe.com/us/prohibited-businesses https://razorpay.com/terms/ . Digicuro hereby reserves the right, in its sole discretion, at any time, to suspend or terminate Your account if We have a good faith reason to believe You or any end user has engaged in any fraudulent or illegal activities, or are engaging in prohibited business activity, and to provide any relevant information to the applicable authorities in connection with any investigation of the same.
5.8. Payment Disputes. As between You and Your end users, all payment disputes between You and Your end users arising in connection with Your use of Digicuro Payments are between You and such end users and not you and Digicuro or Digicuro and your end users. Digicuro shall not be liable or responsible in any way for any payment dispute between you and any third party that uses the Digicuro Payments feature to process payments via your subscription for the Service. You hereby agree to indemnify, defend and hold Digicuro harmless for any costs, damages, claims, losses, expenses, liabilities incurred by Digicuro in connection with any payment dispute arising between You and any end user or other third party.
5.9 Digicuro limitation of Liability. Because the Payments feature is provided and hosted by a third party service provider, we are not responsible for, and expressly disclaim all direct and indirect, incidental, consequential, punitive, exemplary, special or other damages in connection with (i) any technical issues, errors,unavailability or failures, losses, damages, loss of data, lost profits or other losses or claims originating from or arising in connection with the Stripe Connected Account Platform, The Razorpay Integration or any other third party payment gateway integration; (ii) any unauthorized access, hacking, tampering with or to your account or the Stripe/Razorpay/Third-Party Payment Gateway Services by third parties; or (iii) any software, bugs, viruses, Trojan horses, or other harmful and malicious code that may be transmitted via the Stripe/Razorpay/ Third-Party Payment Gateway platform. In certain circumstances detailed in the Stripe Services Agreement, located at https://stripe.com/us/legal , (which is incorporated by reference into the Stripe Connected Account Agreement), Stripe may withhold or delay processing transfers and transactions and Digicuro shall not be responsible in any way for any such action taken by Stripe. Similar terms can be found at Razorpay and other third-party payment gateway providers. You must contact the respective payment gateway provider to know their policies.
6.1. If you are an Administrator, Digicuro will provide you with the hardware set out in the subscription form (such as Bluetooth beacons) that are necessary for use in connection with the Service (the “Hardware”), or you can purchase your own Hardware and configure it to operate with the Platform. During the Term, Administrator is responsible for safe keeping, maintenance, operation and the ongoing costs associated with the Hardware. Administrator acknowledges and agrees that the Hardware must be installed, operated and maintained in accordance with the specifications as communicated by Digicuro to you from time to time. ALL HARDWARE IS PROVIDED AS IS” WITH NO WARRANTIES WHATSOEVER; DIGICURO DOES NOT MAKE ANY EXPRESSED, IMPLIED OR STATUTORY WARRANTIES, CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE HARDWARE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, INTEGRITY OF DATA, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE FOR A PARTICULAR PURPOSE. DIGICURO FURTHER DOES NOT REPRESENT OR WARRANT THAT THE HARDWARE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES DIGICURO WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET.
7 PROPRIETARY RIGHTS AND DATA TERMS.
7.1. Exclusive Ownership. Except for the rights and licenses granted in this Agreement, You acknowledge and agree that any and all intellectual property rights to or arising from the software and technology used to provide the Website and Service are and shall remain the exclusive property of Digicuro and its licensors. Nothing in this Agreement is intended to transfer any such IP rights to, or to vest any such intellectual property rights in, You. You are only entitled to the limited use of the intellectual property rights granted to You in this Agreement. You will not take any action to jeopardize, limit or interfere with Digicuro’s intellectual property rights. Any unauthorized use of Digicuro ‘s intellectual property rights is a violation of this Agreement as well as a violation of intellectual property laws and treaties, including without limitation copyright laws and trademark laws.
7.3. Content License. You hereby grant Digicuro a perpetual, worldwide, royalty-free, and non-exclusive license to access Administrator Data in order to: (i) provide the Services, including storing, hosting and management of such content; and (ii) create Pattern Data. Together Sections 7.3(i) and (ii) constitute the “Content License”). You understand that Digicuro, in performing the required technical steps to provide the Services, may (a) transmit or distribute Administrator Data over various public or privatenetworks and in various media; and (b) make such changes to Administrator Data as are necessary to conform and adapt that Administrator Data to the technical requirements of connecting networks, devices, Services or media. You confirm and warrant to Digicuro that you have all the rights, power and authority necessary to grant the above Content License and that use of the Content in the manner contemplated will not breach the rights of any third party. You further understand that we may share Administrator Data (with any personally identifiable information anonymized) to our third-party partners from time to time.
7.4. Content Responsibilities. Administrator is responsible for any and all content provided hereunder and for compliance with this Agreement including obtaining all necessary licenses, permissions and consents to enable all material comprising Client Data to be made available to Digicuro for Digicuro to transmit, host and store. For greater certainty, Administrator shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Administrator Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service and notify Digicuro promptly of any such unauthorized access or use; and (iii) comply with all applicable local, provincial, state, federal and foreign laws in using the Service.
7.5. Suggestions. Digicuro shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use and/or incorporate into its products, services and business any suggestions, enhancement requests, recommendations or other feedback provided by You relating to the operation of the Services.
8.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, the Administrator Data, the Software, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
8.2. Obligations. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
8.3. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
8.4. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections contained in this Agreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
9 TERM AND TERMINATION
9.1. Services Period and Renewals. Subscriptions are for periods of time selected at the time you create your account with Digicuro (such as monthly, quarterly and annual subscriptions). Subscriptions will only renew at the end of the then current term if the parties agree in writing to such renewal (the initial term and any additional term together referred to as the “Term”). You may update your subscription preferences at any time through Your account.
9.2. Termination by Administrator. Without limiting section 9.1, You may terminate the Service with effect from the end of any current Term by giving not less than 30 days advance written notice. Termination of the Services will not entitle you to a refund of any amounts prepaid for the Services.
9.4. Effect of Termination. Upon termination of this Agreement, the Services shall terminate and Digicuro will terminate Your account thirty (30) days after a failure to renew your subscription, if You have closed your account or if this Agreement is terminated for any other reason. Digicuro will not be liable in respect of any damage caused by the termination of this Agreement or closure of your account.
10 PAYMENT TERMS
10.1 Fees. Services are purchased by Administrators for subscription terms with payment for the specific period being due and payable in advance. Professional Services may be available on a time and materials or fixed or variable quote basis as agreed with Digicuro in an order form or quotation provided by Digicuro to You. Users are not charged any Fees by Digicuro, but Administrator may use the Service to monitor fees that may be charged by Administrator to User.
10.2. Payment & Charges. Your access to and use of the Services is subject to Your payment of the applicable fees due for the Services selected by You (“Fees”) set out on the Website and all other applicable amounts, charges and taxes indicated to You when You purchase Services (or otherwise notified to You by Digicuro from time to time) when you use the Service or noted on Your invoice and viewable in Your account profile. Unless otherwise stated on the Invoice, all invoiced amounts are due upon receipt and may be processed immediately using the credit card on file for You. Receipts for purchased Services will be delivered to You electronically. You shall: (i) keep the billing, credit ard and payment information You provide to Digicuro or its suppliers or payment processors, including name, credit card number and expiry date, mailing address, email address and telephone number, accurate and up to date; otherwise, we may suspend the Services; (ii) promptly advise Digicuro if Your credit card information changes due to loss, theft,cancellation or otherwise; (iii) be liable for Your failure to pay any Fees billed to You by Digicuro caused by Your failure to provide Digicuro with up to date billing information.offset its additional processing costs, Digicuro may charge You for administrative charges as set from time to time for administrative or account activities, including: collection efforts due to non-payment or having a balance over Your credit limit; returned or rejected payments; or changes in personal identifier information. All administrative charges charged to You will be indicated to You on Your invoice or receipt and You shall pay all such charges.
10.3. Taxes. You are responsible for paying any applicable governmental sales, use, value-added, commodity, harmonized and other taxes imposed on Your purchase or use of the Services. To the extent Digicuro is required to collect such taxes, the applicable tax will be added to Your billing account.
10.4. Transaction Processing. Digicuro will cause transactions in respect of Your purchase of Services to be processed, and applicable fees owing by You to be collected. All subscriptions will automatically renew, and the relevant fees will be processed and charged to You in full unless You notify Digicuro at least thirty (30) days in advance of the anniversary of a renewal period that you wish to discontinue the Services. Recurring payments for periodic subscriptions are processed on the account anniversary date for any subscriptions.
10.5. Pre-authorized Payment. By providing a credit card to Digicuro as part of your account set-up for pre-authorized payments, You authorize Digicuro to charge Your credit card for all outstanding Fees, taxes and charges and outstanding account balances due under the Agreement, and this constitutes Digicuro’s good and sufficient authority for so doing. If Your pre-authorized payment method fails, Digicuro will provide notification to you of payment failure. If you fail to rectify the payment failure within 10 days of written notice,Digicuro may immediately deactivate Your account without notice to You and collect Fees owing using other collection mechanisms. If you have not paid applicable fees within 30 days ofthe due date, Digicuro will automatically terminate your account and all Administrator Data from our servers. You are solely responsible for all charges incurred under Your account by You or third-parties.
11 CHANGES TO SOFTWARE, SERVICES AND AGREEMENT
11.1 Changes to Digicuro Technology. Digicuro may alter, update or upgrade the Digicuro Technology from time to time. Updates and upgrades to core framework and plug-ins will be processed automatically.
11.2. Changes to Fees and Services. Digicuro may change the Services, any Services fees, amounts, charges (including one-time charges), and/or other aspect of any of the Services at any time upon reasonable notice to You by posting the change on the Website, sending notice via an email to the email address You provide on registration, a message on Yourinvoice, in writing, or any other notice method likely to come to Your attention. If You do not accept the change, Your sole recourse is to terminate the Services with effect from the end of the then-current Term. Your continued access to and use of the Services after the change has come into effect constitutes Your acceptance of the change and You acknowledge and agree that (i) You will be deemed to have accepted the change, with no additional written agreement or express acknowledgement required; and (ii) You will continue to be responsible to pay for the Services unless You terminate in accordance with Section 9.2.
11.3. CHANGES TO SOFTWARE, SERVICES AND AGREEMENT
12 LIABILITY PROVISIONS
12.1 NO WARRANTIES. DIGICURO CANNOT GUARANTEE THAT THE SERVICES WILL ALWAYS BE AVAILABLE, THAT THEY WILL OPERATE WITHOUT FLAW OR THAT THEY WILL NOT CAUSE ANY DATA LOSS. THE SOFTWARE, SERVICE AND ALL DIGICURO TECHNOLOGY ARE PROVIDED “AS IS” WITH NO WARRANTIES WHATSOEVER; DIGICURO DOES NOT MAKE ANY EXPRESSED, IMPLIED OR STATUTORY WARRANTIES,CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, EGRITY OF DATA, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE FOR A PARTICULAR PURPOSE. DIGICURO FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR DIGICURO TECHNOLOGY WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES DIGICURO WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET. DIGICURO CANNOT GUARANTEE THE ACCURACY OF ANY INFORMATION OBTAINED FROM THE SERVICE AND DOES NOT ACCEPT ANY RESPONSIBILITY FOR ANY DECISION MADE BY YOU ON THE BASIS OF ANY INFORMATION OR DATA PROVIDED BY THE SERVICE.
12.2 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY NOR ANY OF THEIR RESPECTIVE AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS SHALL HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES (WHETHER ARISING FROM THIS AGREEMENT, RELATED TO THE SOFTWARE, OR TO ANY SERVICES PROVIDED TO YOU BY DIGICURO (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS)) FOR ANY INDIRECT, RELIANCE, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOSS OF OR DAMAGE TO DATA, BUSINESS INTERRUPTION, LOSS OF DATA, REPLACEMENT OR RECOVERY COSTS, OR OTHER COMMERCIAL OR ECONOMIC LOSS, WHETHER ARISING FROM CONTRACT, EQUITY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, EVEN IF THE OTHER PARTY (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT THE AMOUNT PAID BY YOU HEREUNDER FOR THE SERVICES IN THE 12 MONTHS PRECEDING THE INCIDENT.
12.3 THE LIMITATIONS IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM OR FUNDAMENTAL BREACH. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THESE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE TOTALCUMULATIVE LIABILITY OF DIGICURO (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS) TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES ARISING FROMTHIS AGREEMENT, RELATED TO ANY SERVICES PROVIDED TO YOU BY DIGICURO (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS) IN RELATION TO THE SERVICES, EXCEED THE FEES PAID BY YOU TO DIGICURO FOR THE SERVICES COMPONENT GIVING RISE TO THE CLAIM.
12.4THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. YOU ACKNOWLEDGE THAT BUT FOR THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY, NEITHER DIGICURO NOR ANY OF ITS LICENSORS OR SUPPLIERS WOULD GRANT THE RIGHTS GRANTED IN THIS AGREEMENT. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SERVICES IS TO IMMEDIATELY CEASE USE OF SUCH SERVICES.
13 INDEMNIFICATION .
13.1. Administrator Indemnity. You agree on demand to indemnify, defend and hold Digicuro, its affiliates and Digicuro staff harmless from and against any and all liabilityand costs, including reasonable attorneys’ fees incurred by such parties, in connection with or arising out of Your (a) violation or breach of any term of this Agreement or any applicable law or regulation, whether or not referenced herein, or (b) violation of any rights of any third party (including without limitation the rights of any User, whether in respect of their rights under applicable privacy legislation or otherwise), (c) misuse of the Services, or (d) violation or breach of any law, regulation or guideline. The provisions of Section 12.2 apply his Section 13.1.
13.2. Digicuro Indemnity. Digicuro shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney’s fees incurred by, You in connection with any such claim; provided, that You (a) promptly give Digicuro written notice of the claim; (b) give Digicuro sole control of the defense and settlement of the claim; and (c) provide to Digicuro all reasonable assistance, at Digicuro ‘s expense.
“Administrator Data” has the meaning given in Section 7.2.
“Documentation” means “how to” user guides and reference materials on the Website and App for the Service.
“Fees” means the applicable subscription fees payable by Administrator to Digicuro for the right to receive access to the Service, all as further described on the Website and in the Documentation.
“Intellectual Property” means all rights in any invention, discovery, improvement, utility model, patent, copyright, trademark, industrial design or mask work right, and all rights of whatsoever nature in computer software and data, Confidential Information, trade secrets or know-how and all intangible rights or privileges of a nature similar to any of the foregoing, in every case in any part of the world whether or not registered, and shall include all rights in any applications and granted registrations for any of the foregoing rights;
“Pattern Data” means non-personally identifiable information, data and reports derived from or compiled through the Service, including but not limited to demographics data,mobility patterns, geolocation data and trend data such as aggregated data and statistics indicating frequency of use and popularity of the services. For greater certainty, Pattern Data is data that does not identify a specific Administrator or its end users and is data which does not relate to a specific Administrator’s business (including data relating to a specific Administrator’s locations that receive the Services).
“Service” means the core Digicuro Software as a Service (SaaS) offering made available on a subscription-basis through Digicuro’s proprietary SaaS technology and platform. The Service includes access to core modules and optional modules and features made available by Digicuro from time to time.
“Subscription Form” means a subscription form for Administrators to the Service as published by Digicuro from time to time.
“Term” has the meaning given in Section 9.16.1.
“Websites” means https://www.digicuro.com, digiuro.space, digicuro.work, subdomains of such URLs or such other URL as indicated by Digicuro from time to time where information and access to the Service is available.
15 GENERAL TERMS
15.1. Force Majeure. Except for each party’s obligations to pay money, neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to acts of God, earthquakes, wars, terrorism, communication failures, strikes or shortages of materials.
15.2 Administrator Services. For assistance with questions regarding this Agreement or the Services, if You have other enquiries, or if You require further assistance regarding use of the Services provided by us, please contact us using the contact details located here: https://support.digicuro.com
15.3 Logos. Digicuro may refer to You in Digicuro’s Administrator list and may use Your corporate name and logo for this purpose.For the avoidance of doubt, Digicuro will not use Your name, logo, any other trademark or trade-name of Yours for any other purposes without Your prior consent.
15.4 Third Party Relationships. Digicuro or its business partners may present Services offerings, advertisements or promotional materials via the Services. Your dealings with, or participation in promotions of any third-party business partners via the Services are solely between you and such third party and your participation is subject to the terms and conditions associated with that offering, advertisement or promotion. You agree that Digicuro is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of thepresence of such third parties via the Services.
15.5 Third-party Services. The Services may present links to third-party Web sites or third-party Services not owned or operated by us. We are not responsible for the availability of these third-party sites or Services or their contents. You agree that we are not responsible or liable, directly or indirectly, for any damage or loss caused by or in connection with your use of or reliance on any content of any such third-party site or Services or goods or Services available through any such third-party site or Services.
15.6 Entire Agreement. The terms and conditions of this Agreement constitute the entire agreement between You and Digicuro with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter.
15.7 Severability & Waiver. Should any term or provision hereof be deemed invalid, void or un-enforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect and the invalid, void or unenforceable portion will be severed from the Agreement. If Digicuro does not take action against all breaches of thisAgreement, it does not mean that it waives its right at a later time to enforce the same.
15.8 Assignment. You are not allowed to assign this Agreement or any rights hereunder without the prior written consent of Digicuro, such consent not to be unreasonably withheld. Digicuro is allowed at its sole discretion to assign this Agreement or any rights hereunder to any third party, without giving prior notice.
15.9 Applicable Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of New Delhi, India without giving effect to any conflict of laws or provisions whether contained in Indian law or the laws of Your current state or country of residence. Any legal proceedings arising out of or relating to this Agreement will be subject to the jurisdiction of the courts of the province of New Delhi, India. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.