This CLOUD SUBSCRIPTION TERMS OF SERVICE (the "Agreement") is executed by Elmarqr Solutions LLP, a Limited Liability Partnership concern, registered at Flat 715, Kanakadhara Landmark, Saket road, Kapra, Hyderabad 500062 TS, India (hereinafter referred to as "Elmarqr") which expression shall, unless it be repugnant to the subject or context thereof, include its successors and assigns, of the First Part;
User or Client company
Elmarqr and Client are also referred to individually as a "party" and collectively as the "parties".
A. Elmarqr offers
B. Client has offered to avail, and Elmarqr agreed to provide, the Services to Client, mentioned in Sub- Clause 1.1 of this Agreement.
1.1 This Agreement governs all of Client's use of Elmarqr's Elmarqr.com service and all services connected to the Elmarqr.com service, provided by Elmarqr ("Services") whether Client accesses it from the site at https://elmarqr.com (the "Site"), or from any other application or access point Elmarqr makes available to Client. The Service from Elmarqr offers a cloud based solution for "Asset Tagging and Management".
1.2 The Elmarqr.com platform Service is licensed to Client, not sold. Except as expressly set forth herein, Elmarqr retains all rights in the Service, and all intellectual property rights therein. All rights in the Service not provided to Client under this Agreement are expressly retained by Elmarqr. Elmarqr's name and logo, the Elmarqr.com name and logo, and other product names associated with Elmarqr are trademarks of Elmarqr and no right or license is granted to use them, other than as set forth herein.
1.3 This Agreement governs all use Client makes of the Service, including its free or paid use (if any).
1.4 If Client is entering into this Agreement on behalf of an organization or other legal entity, Client represents that it has the authority to bind such entity to the terms of this agreement. In that case, the terms "Client" shall also refer to such entity, its staff and its affiliates, as applicable. If Client does not have such authority, or if Client does not agree with these terms of this Agreement, Client may not use the Services. Violation of any of terms of the Agreement may result in the termination of Client's account.
2. ACCESS TO THE SERVICES
2.1 Client will receive a password and account designation upon completing the registration process. Client is responsible for maintaining the confidentiality of the password and account and is fully responsible for all activities that occur under Client's password or account. Client agrees to (a) immediately notify Elmarqr of any unauthorized use of Client's password or account or any other breach of security; and (b) ensure that Client exits from its account at the end of each session.
2.2 During the term of Client's paid subscription to the Elmarqr.com Service, Elmarqr will (a) make the Services available to Client pursuant to this Agreement, and (b) provide Elmarqr standard support for the Services to Client at no additional charge, (collectively referred to as the "Support") and (c) use commercially reasonable efforts to make the Elmarqr.com Services available 24 (twenty four) hours a day, 7 (seven) days a week, except as specified in the Clause 3 hereof.
3. AVAILABILITY OF THE SERVICE
3.1 Client's access to and use of the Elmarqr.com may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Elmarqr.com platform for any reason, including as a result of power outages, system failures, problems inherent in the use of the Internet and electronic communications, failures of Elmarqr's service providers (including telecommunications, hosting, and power providers) or other interruptions. In such events, Elmarqr will credit back the amount for all such requests which have been submitted/ failed to be submitted by Client due to the downtime/ unavailability of Service, for which Client has not been able to download the results or reports. Elmarqr is entitled, without any liability to Client, to suspend access to any portion or all of the Elmarqr.com Service at any time, on a Service-wide basis: (a) for scheduled downtime to permit Elmarqr to conduct maintenance or make modifications to the Elmarqr.com; (b) in the event of a denial of service attack or other attack on the Elmarqr.com Service or other event that Elmarqr determines, in its sole discretion, may create a risk to the Elmarqr.com Service, to Client or to any of its other customers if the Elmarqr.com Service were not suspended; or (c) in the event that Elmarqr determine that the Elmarqr.com Service is prohibited by law or Elmarqr otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, "Service Suspensions"). Elmarqr has no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Client may incur as a result of any Service Suspension.
3.2 Elmarqr may install on the Elmarqr.com Service the upgrades, patches and service packs (collectively referred to as "Updates") which become available from time-to-time. Elmarqr makes no guarantee that an Update will be installed during the term of this Agreement. The Updates shall be considered part of the Elmarqr.com Service and governed by this Agreement.
4. TECHNICAL SUPPORT
4.1 Elmarqr shall provide technical support to allow Client designated maintenance services representatives to contact and to report problems and to seek assistance in the use of the Elmarqr.com Service during Elmarqr's support hours of operations as established from time-to-time. Problems may be reported through Elmarqr's help desk support. Elmarqr shall return support requests within a commercially reasonable time after receiving Client's request. Technical support does not include on-site or in-person assistance or consultation.
4.2 Client may not use the Service for any purpose which is illegal or violates any laws in its jurisdiction, in the jurisdiction of the Republic of India or in any way that intentionally or unintentionally violates any applicable local, state, national or international law.
4.3 Any software associated with the Services is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
4.4 Elmarqr may at its sole discretion modify the features of the Services from time to time without prior notice. Elmarqr reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. Client agree that Elmarqr shall not be liable to Client or to any third party for any modification, suspension or discontinuance of the Service.
5. CLIENT CONTENT AND DATA
5.1 Elmarqr shall not claim any intellectual property rights over the data Client shall upload to the Elmarqr.com platform to utilize the Services. All data uploaded by Client remains the property of Client.
5.2 "Data" means any data and content Client uploads, posts, transmits or otherwise makes available via the Services including anything Client enters or uploads into the Service. Elmarqr will make commercially reasonable efforts to ensure that all facilities used to store and process Client's Data meet a high standard for security. Elmarqr shall update the document as these practices and policies evolve over time.
5.3 In order for Elmarqr to provide Services to Client, Elmarqr requires that Client grants Elmarqr certain rights with respect to Client's Data. For example, Elmarqr needs to be able to transmit, store and copy Client's Data in order to display it to Client, to index it so Client is able to search it, to make backups to prevent data loss, and so on. Client's acceptance of this Agreement gives Elmarqr the permission to do so and grants Elmarqr any such rights necessary to provide the Service to Client, only for the purpose of providing the Service (and for no other purpose). This permission includes allowing Elmarqr to use third-party service providers (for example Amazon Web Services) in the operation and administration of the Service and the rights granted to Elmarqr are extended to these third parties to the degree necessary in order for the Service to be provided depending on the Service, which may involve moving Client data across servers.
5.4 Elmarqr will not share, disclose, sell, lease, modify, delete or distribute any Data provided by Client in any manner. Elmarqr will also not view the Data provided by Client except when given permission by Client for the purpose of support.
5.5 Client agrees that Elmarqr may include Client's business name in a list of Elmarqr's customers online and in print and electronic marketing materials in an appropriate fashion. Client may prefer not to include Client's details and shall notify the same to Elmarqr at firstname.lastname@example.org, following which Elmarqr will cease including Client's business name in a list of Elmarqr's customers online and in print and electronic marketing materials
6. CONDUCT ON Elmarqr.com
6.1 Client may not use the Elmarqr.com Platform to:
(i) Upload, post, transmit, or otherwise make available any of Client's Data that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically, or otherwise objectionable.
(ii) Upload or transmit images that contain nudity, weapons, violence or drugs.
(iii) Impersonate, or misrepresent Client's relationship with, any person or entity.
(iv) Upload or transmit any content that Client does not have a right to make available, or that infringes any patent, trademark, trade secret, copyright, privacy, or other proprietary rights of any party.
7. GENERAL RESTRICTIONS
Client may not: (i) modify, reverse engineer, disassemble, decompile or otherwise attempt to access or determine the source code of the Service, (ii) copy, or reproduce the Service in any way, in whole or in part, (iii) create any derivative work based on the Service, (iv) re-distribute or sublicense the Service, or any part thereof, to any third party, (v) "frame" or "mirror" any content available on the Elmarqr.com platform Service on any other server or wireless Internet-based device, (vi) operate the Elmarqr.com platform Service on a service bureau basis, without Elmarqr's express prior written consent, (vii) use the Elmarqr.com platform Service in circumstances in which errors or inaccuracies in the content, functionality, data or information provided by the Service or the failure of the Service could lead to death, personal injury, or severe physical or environmental damage, or (viii) allow, permit or assist any third party to do the foregoing.
Client shall not allow anyone working on its behalf to perform any technical security integrity review, penetration test, load test, denial-of-service simulation or vulnerability scan of the Elmarqr.com service without Elmarqr's prior written consent. Client shall not allow anyone working on its behalf to use any software tool designed to automatically emulate the actions of a human user (such tools are commonly referred to as "Robots") in conjunction with the Service.
9. NO COMPETITIVE USE
9.1 Client may not register for or use Elmarqr's Elmarqr.com Service to monitor or test its performance or for other benchmarking or competitive purposes.
9.2 Elmarqr's reserves the right to terminate any account that is in breach of these terms.
10.1 If Client elects to purchase Service packages or additional Services, Client may elect to provide a credit card or other payment mechanism selected by Client.
10.2 Client agrees to pay the fees in effect for Client's subscription at the time of purchase or renewal, along with any fees for additional services, which Client agrees to pay while using the Elmarqr.com Service (collectively, "Service Fees"). Unless Parties separately agree otherwise in writing, all Service Fees for subscriptions are payable in advance prior to the commencement of each subscription period. Other Service Fees become due and payable as described on Elmarqr's Site or in this Agreement.
10.3 Client agrees that Elmarqr may charge to Client's credit card or other payment mechanism selected by Client and approved by Elmarqr for Client account ("Client Account") and all amounts due and owing for the Services, including service fees, subscription fees or any other fee or charge associated with Client use of the Services. If there are any annual, monthly or similar periodic fees for Client' subscription, these fees will be billed automatically to the credit card designated during the registration process for the Services, or subsequently designated to Elmarqr at the start of the subscription period and at the start of each renewal period, unless Client terminates its subscription before the relevant period begins.
10.4 Prices of all Services are mentioned in the Schedule of Terms hereto and are subject to change at any time. Elmarqr will strive wherever possible to give advance notice. Such notice may be provided at any time by posting the changes to the Elmarqr.com website or the Service itself.
10.5 All payments authorized by Client into its account are final. There is no refunding of Client account regardless of whether Client uses the Services or not.
10.6 In connection with Client's purchase and/or use of the Service Client may be subject to taxes, including, without limitation, sales and use taxes, by any authority which has jurisdiction to impose such taxes. Client agrees that the obligation and payment of any such taxes shall be Client's sole and absolute responsibility, and Client agrees to indemnify Elmarqr to the extent that Elmarqr incurs any obligations or other liabilities in connection with such taxes.
10.7 Client agrees that in the event Elmarqr is unable to collect the fees owed to Elmarqr for the Services through its Account, Elmarqr may take any other steps it deems necessary to collect such fees from Client and that Client will be responsible for all costs and expenses incurred by Elmarqr in connection with such collection activity, including collection fees and legal costs. Client further agrees that Elmarqr may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due.
11. CHANGING SERVICE LEVEL
11.1 Some services provided by Elmarqr.com allows Client to upgrade or downgrade Client's service levels.
11.2 If Client upgrades its service level from one package to a higher priced package, Elmarqr will charge Client thus: 1) if Client pays monthly, its first payment will be the difference between the higher priced package and its current package price, whereby monies received by Elmarqr for Client's current package price is pro-rated based on the actual number of days until its scheduled monthly payment date. The regularly scheduled monthly payment date will remain the same as Client's initial purchase date, with subsequent monthly charges at the higher package price.
11.3 If Client purchases or upgrades additional services that are charged on a monthly basis, Client' first payment for those additional services will be the price of the additional services pro-rated based on the actual number of days until Client's next monthly payment date. Client scheduled monthly payment date will remain the same as its initial purchase date, with the full price of the additional services reflected in subsequent monthly charges. If Client purchase additional services that are charged on an annual basis, Client's first payment for those additional services will be the full price of the additional service. The renewal date for such annual additional services will be the date of upgrade the subsequent year.
11.4 There are limited package downgrade options available and no refunds. If Client wishes to move from a higher priced package to a lower priced package it must let the current service level expire then repurchase the lower priced package at the desired service level.
11.5 If Client wishes to remove additional services from their account it must let the current additional services expire first then repurchase any desired additional services. No refunds are available.
12. CANCELLATION OF ACCOUNT
12.1 Client is solely responsible for properly canceling its account. An email or phone request to cancel its account is not considered cancellation. Client can cancel its account at any time by sending a written notice to Elmarqr.
12.2 All of Client's content will be immediately be inaccessible from the Service upon cancellation. Within 30 days, all this content will be permanently deleted from all backups and logs. This information cannot be recovered once it has been permanently deleted.
12.3 Elmarqr, in its sole discretion, has the right to suspend or terminate Client's account and refuse any and all current or future use of the Service for any reason at any time. Such termination of the Service will result in the deactivation or deletion of Client's Account or its access to its Account, and the forfeiture and relinquishment of all content in its account. Elmarqr reserves the right to refuse service to anyone for any reason at any time.
13. ABUSE OF FEATURES
The features made available through the Elmarqr.com services are intended for the normal use of the software. Abuse of features may result in a ban or removal of Service. In extreme cases, Elmarqr reserves the right to temporarily suspend Client's account if Client's usage significantly exceeds the average usage of other Service customers and/or there's a danger that its usage of the Services is causing disruption to other users. Elmarqr shall always attempt to reach out to Client before taking any action except in rare cases where the level of use may negatively, immediately impact the performance of the Service for other customers.
14. NO RESELLING OR USE OUTSIDE OF PERMITTED TERMS
Other than using the Services as permitted under the terms and conditions of this Agreement or other written agreements between Client and Elmarqr, Client may not resell, distribute, make any commercial use of, or use on a time-share or service bureau basis.
15. USE OF THIRD PARTY APPLICATIONS AND API ACCESS
16. PROPRIETARY RIGHTS
Elmarqr and/or its suppliers, as applicable, retain ownership of all proprietary rights in the Services and in all trade names, trademarks and service marks associated or displayed with the Services. Client will not remove, deface or obscure any of Elmarqr's or its suppliers' copyright or trademark notices and/or legends or other proprietary notices on, incorporated therein, or associated with the Services. Client may not reverse engineer, reverse compile or otherwise reduce to human readable form any software associated with the Services.
17. WARRANTIES MADE BY Elmarqr
17.1 Elmarqr warrants that it has the legal power and authority to enter into this Agreement. Elmarqr further warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the then current documentation provided by Elmarqr in connection with the Service under normal use and circumstances. Client's exclusive remedy and Elmarqr's sole and exclusive liability for a breach of this warranty shall be for Elmarqr to re-perform any non-conforming Service brought to its attention within 30 (thirty) calendar days after the non-conforming Service is performed.
17.2 Notwithstanding anything provided above, Elmarqr makes no representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the Service. Elmarqr does not represent or warrant that (a) the use of the Elmarqr.com service will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (b) the service will meet Client's requirements or expectations, (c) any stored data will be accurate or reliable, (d) errors or defects will be corrected, or (e) the service or the server(s) that make the Elmarqr.com service available are free of viruses or other harmful components. Except to the extent prohibited by applicable law, Elmarqr disclaims all warranties not expressly set forth in this agreement, including, without limitation, any implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, non-infringement, quiet enjoyment, and any warranties arising out of any course of dealing or usage of trade. Elmarqr is not responsible for any service interruptions, including, without limitation, power outages, system failures or other interruptions. No advice or information obtained by Client from Elmarqr by or through the service shall create any warranty not expressly stated in this Agreement.
Provisions herein which by their nature extend beyond the termination of any license of the Service shall remain in effect until fulfilled.
No joint venture, partnership, employment, or agency relationship exists between Client and Elmarqr as a result of this Agreement or Client's use of the Service.
20. LIMITATION OF LIABILITY
Elmarqr assumes no liability for (i) infringements arising from combinations of the service with non-Elmarqr software or hardware products, (ii) modifications to the Elmarqr.com service made by any party other than Elmarqr or Elmarqr's authorized representatives, or (iii) trademark infringements involving any marking or branding not applied by Elmarqr.
21. EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES
21.1 In no event will either party have any liability to the other party for any lost profits, revenues or indirect, special, incidental, consequential, cover or punitive damages, whether an action is in contract or tort and regardless of the theory of liability, even if a Party has been advised of the possibility of such damages. The foregoing disclaimer will not apply to the extent prohibited by law.
21.2 Neither Party's liability with respect to any single incident arising out of or related to this agreement will exceed the amount paid by customer hereunder in the 12 (twelve) months preceding the incident, provided that in no event will either party's aggregate liability arising out of or related to this agreement exceed the total amount paid by customer hereunder. The above limitations will apply whether an action is in contract or tort and regardless of the theory of liability.
Client will defend Elmarqr against any claim, demand, suit or proceeding made or brought against Elmarqr by a third party alleging that its data, or Client's use of any service or content in breach of this agreement, infringes or misappropriates such third party's intellectual property rights or violates applicable law (a "claim against Elmarqr"), and will indemnify Elmarqr from any damages, attorney fees and costs finally awarded against Elmarqr as a result of, or for any amounts paid by Elmarqr under a court-approved settlement of, a claim against Elmarqr, provided Elmarqr (a) promptly give Client written notice of the claim against Elmarqr, (b) give Client sole control of the defense and settlement of the claim against Elmarqr (except that Client may not settle any claim against Elmarqr unless it unconditionally releases Elmarqr of all liability), and (c) give Client all reasonable assistance, at its expense.
This agreement may only be modified by a written agreement signed by duly authorized representatives of Client and Elmarqr.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
Elmarqr's failure to enforce any right or provision in this agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Elmarqr in writing.
This agreement may not be assigned by Client without Elmarqr's prior written approval but may be assigned without Client's consent by Elmarqr to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.
27. GOVERNING LAW AND DISPUTE RESOLUTION
27.1 This Agreement will be governed by the laws of the India, without regard to its conflict of laws principles.
27.2 Any dispute which may arise between the Parties out of or in relation to or in connection with this Agreement, shall first be resolved by amicable negotiations within 30 (thirty) days of the commencement of discussions, (i.e., on either of the Parties informing the other about such dispute, controversy or differences) failing which the matter shall be referred to a sole arbitrator as per the Indian Arbitration and Conciliation Act, 1996 or any statutory modification or reenactment thereof. The venue for the arbitration proceedings shall be Hyderabad. The existence of any dispute shall not release the Parties of their respective obligations under this Agreement. Subject to the provisions for reference to arbitration, the civil courts at Hyderabad shall have exclusive jurisdiction over any proceedings arising out of or in relation to this Agreement.