THESE TERMS OF SERVICES (“AGREEMENT”) GOVERN CUSTOMER’S USE OF THE CRUNCHMETRICS’ ARTIFICIAL INTELLIGENCE ENABLED ANOMALY DETECTION SERVICE WHICH CRUNCHMETRICS OFFERS AS A SOFTWARE-AS-A-SERVICE (“SERVICE” OR “SERVICES”).
THE INDIVIDUAL (A) CLICKING A BOX INDICATED ACCEPTANCE OR CLICKING – I AGREE TO THE TERMS; (B) EXECUTING AN SUBSCRIPTION FORM THAT REFERENCES THIS AGREEMENT; OR (C) USING THE SERVICES (I) AGREES ON BEHALF OF THE CUSTOMER THAT SUCH INDIVIDUAL HAVE READ, UNDERSTOOD AND ACCEPT THESE TERMS AND CONDITIONS; AND (II) REPRESENTS THAT SUCH INDIVIDUAL HAS THE AUTHORITY TO BIND THE CUSTOMER AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF SUCH INDIVIDUAL DOES NOT HAVE SUCH AUTHORITY OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
THESE TERMS OF SERVICES GOVERN BOTH USE BY THE CUSTOMER OF THE SERVICES UNDER ACCEPTED COMMERCIAL TERMS OR AS A FREE TRIAL.
CRUNCHMETRICS’ COMPETITORS ARE PROHIBITED FROM ACCESSING THE SERVICES, EXCEPT WITH SUBEX’S PRIOR WRITTEN CONSENT. THE TERM “COMPETITORS” OR “COMPETITION” SHALL MEAN ANY ENTITY, BODY CORPORATE, FIRM, ASSOCIATION, INDEPENDENT CONTRACTOR, CONSULTANT WHO ARE ACCESSING SERVICES WITH THE INTENT OF:- (I) DEVELOPING COMPETITORS OWN SERVICES, SIMILAR TO SERVICES OFFERED BY CRUNCHMETRICS, AND/OR (II) IMPROVING EXISTING SERVICES, AND/OR (III) ADDING CRUNCHMETRICS FUNCTIONALITY TO COMPETITORS EXISTING SERVICES. IN ADDITION, THE SERVICES MAY NOT BE ACCESSED BY SUCH COMPETITORS FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
CUSTOMER(S) DOMICILED OR HAVING BUSINESS TRANSACTIONS IN U.S EMBARGO NATIONS LISTED UNDER U.S. EXPORT REGULATIONS, ARE PROHIBITED FROM ACCESSING & USING THE SERVICES.
THIS AGREEMENT IS EFFECTIVE BETWEEN CUSTOMER AND CRUNCHMETRICS AS OF THE DATE OF CUSTOMER’S ACCEPTING THIS AGREEMENT. CRUNCHMETRICS RESERVES THE RIGHT TO CHANGE THE TERMS OF SERVICE FROM TIME-TO-TIME.
1. DEFINITIONS
Capitalized terms have the definitions as set forth below or inline in this Agreement.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means these Terms and Conditions.
“Content” means information obtained by CrunchMetrics from publicly available sources or its third-party content providers and made available to Customer through the Services or pursuant to a Subscription Form, as more fully described in the Documentation.
“Customer” the company or other legal entity for which an individual is accepting this Agreement together with Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Subscription Forms.
“Customer Data” means electronic data and information submitted by or for Customer to the Services, excluding Content.
“Documentation” means the applicable Service’s documentation, and its usage guides and policies, as updated from time to time and made available on CrunchMetrics.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Subscription Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Customer and CrunchMetrics or any of their Affiliates, including any addenda and supplements thereto. By entering into an Subscription Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Pilot Subscription” or “Pilot Phase” means Services which Customer or Customer’s Affiliate can register for a trial, free of charge by signing a Subscription Form.
“Purchased Services” means paid Services that Customer or Customer’s Affiliate purchases under a Subscription Form or online purchasing portal, as distinguished from those provided pursuant to a free trial.
“Services” means the products and services that are ordered by Customer under an Subscription Form or online purchasing portal, or provided to Customer under a Pilot Subscription or Purchased Services and made available online by CrunchMetrics. “Services” exclude Content.
“User” means an individual who is authorized by Customer to use a Service, for whom Customer has purchased a subscription (or in the case of any Services provided by CrunchMetrics without charge, for whom a Service has been provisioned), and to whom Customer (or, when applicable, CrunchMetrics at Customer’s request) has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business.
2. CRUNCHMETRICS RESPONSIBILITIES
2.1 Account Opening. The individual representing a Customer can open an account in CrunchMetrics website. Upon creation of an account, in CrunchMetrics website, the Customer will have an option to register for a Pilot Subscription or Purchased Services. If Customer decides to register for a Pilot Subscription, CrunchMetrics will make the applicable Service(s) available to Customer on a trial basis, free of charge, until the earlier of (a) the end of the trial period for which Customer registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by Customer for such Service(s), or (c) termination by CrunchMetrics in its sole discretion.
2.2 Purchased Services. If the Customer decides to register for Purchased Services, Subex will (a) make the Services available to Customer pursuant to this Agreement, and the applicable Subscription Forms and Documentation, (b) use commercially reasonable efforts to make the online Purchased Services available twenty (24) hours a day, seven (7) days a week, except for: (i) planned downtime (of which CrunchMetrics shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Subex’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving CrunchMetrics employees), Internet service provider failure or delay, or denial of service attack, and (d) provide the Services in accordance with laws and government regulations applicable to Subex’s provision of its Services to its customers generally (i.e., without regard for Customer’s particular use of the Services), and subject to Customer’s use of the Services in accordance with this Agreement, the Documentation and the applicable Subscription Form.
2.3 Protection of Customer Data. CrunchMetrics will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users). The Customer acknowledges that Customer Data does not include any personal data and further agrees not to process any personal data, while using the Services. If Customer intent to process any personal data as part of the Services, the same shall be intimated to CrunchMetrics by giving advance electronic notice, to enable CrunchMetrics to take adequate technical and organizational measures to ensure compliance to applicable Data Protection Legislation.
2.4
ANY DATA CUSTOMER ENTERS INTO THE SERVICES, AND BY OR FOR CUSTOMER, DURING PILOT PHASE WILL BE PERMANENTLY LOST AT THE END OF PILOT PHASE UNLESS CUSTOMER AGREES TO EXTEND THE ENGAGEMENT BY PURCHASES OF SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE PILOT PHASE. ANY RETENTION OF CUSTOMER DATA IN CRUNCHMETRICS WILL BE BASED ON THE TERMS OF SUBSCRIPTION PURCHASE BY THE CUSTOMER.
NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS” SECTION AND “INDEMNIFICATION BY CRUNCHMETRICS ” SECTION BELOW, DURING THE PILOT PHASE THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND CRUNCHMETRICS SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE PILOT PHASE UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE SUBEX’S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE PILOT PHASE SHALL NOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, CRUNCHMETRICS AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE SERVICES DURING THE PILOT PHASE WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE SERVICES DURING THE PILOT PHASE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE PILOT PHASE WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO CRUNCHMETRICS AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SERVICES DURING THE PILOT PHASE, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.CUSTOMER SHALL REVIEW THE APPLICABLE SERVICE’S DOCUMENTATION DURING THE PILOT PHASE TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SERVICES BEFORE MAKING A PURCHASE.
3. USE OF SERVICES AND CONTENT
3.1 Subscriptions. Unless otherwise provided in the applicable Subscription Form or Documentation, Pilot Subscription and access to Content are purchased as subscriptions for the term stated in the applicable Subscription Form or in the applicable online purchasing portal. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by CrunchMetrics regarding future functionality or features.
3.2 Usage Limits. Services and Content are subject to usage limits specified in Subscription Forms and Documentation. If Customer exceeds a contractual usage limit, Customer will execute an Subscription Form for additional quantities of the applicable Services or Content promptly upon Subex’s request, and/or pay any invoice for excess usage in accordance with the “Invoicing and Payment” section below.
3.3 Customer Responsibilities. Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation and Subscription Forms, (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify CrunchMetrics promptly of any such unauthorized access or use, and (d) use Services and Content only in accordance with this Agreement, Documentation, Subscription Forms and applicable laws and government regulations. Any use of the Services in breach of the foregoing by Customer or Users that in Subex’s judgment threatens the security, integrity or availability of Subex’s services, may result in Subex’s immediate suspension of the Services, however CrunchMetrics will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.
3.4 Usage Restrictions. Customer will not (a) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (b) use a Service to store or transmit Malicious Code, (c) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (d) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (e) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access or use any of CrunchMetrics intellectual property except as permitted under this Agreement, an Subscription Form , or the Documentation, (f) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, (g) copy Content except as permitted herein or in an Subscription Form or the Documentation, (h) frame or mirror any part of any Service or Content, other than framing on Customer’s own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (i) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Content or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of any patent.
4. FEES AND PAYMENT
4.1 Fees. Customer will pay all fees specified in Subscription Forms. Customer agrees that payment obligations are non-cancelable and fees paid are non-refundable.
4.2 Invoicing and Payment. Customer may issue a valid purchase order in accordance with the relevant Subscription Form, but the same will not constitute a mandatory requirement for invoicing. CrunchMetrics will invoice Customer in advance and otherwise in accordance with the relevant Subscription Form. Unless otherwise stated in the Subscription Form, invoiced fees are due net seven (7) days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to CrunchMetrics and notifying CrunchMetrics of any changes to such information.
4.3 Overdue Charges. If any invoiced amount is not received by CrunchMetrics by the due date, the same will have a negative impact on creditworthiness of such Customer and then without limiting CrunchMetrics’ rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) CrunchMetrics may at its sole discretion, suspend such Customer’s right to access & use any or all Services, without any notice, and/or (c) CrunchMetrics may at its sole discretion will have a right to refuse any request for a future subscription from such Customer, and/or (d) CrunchMetrics may condition future subscription renewals and Subscription Forms on payment terms shorter than those specified in the “Invoicing and Payment” section.
4.4 Payment Disputes. CrunchMetrics will not exercise its rights under the “Overdue Charges” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
4.5 Taxes. Subex’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If CrunchMetrics has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, CrunchMetrics will invoice Customer and Customer will pay that amount unless Customer provides CrunchMetrics with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, CrunchMetrics is solely responsible for taxes assessable against it based on its income, property and employees.
5. PROPRIETARY RIGHTS AND LICENSES
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Subex, its Affiliates, its licensors and content providers reserve all of their right, title and interest in and to the Services and Content, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. As between the parties, Customer owns all intellectual property rights in Customer Data and CrunchMetrics shall own all intellectual property rights in and to the Services and Content.
5.2 Access to and Use of Content. Customer has the right to access and use applicable Content subject to the terms of applicable Subscription Forms, this Agreement and the Documentation.
5.3 License by Customer to Use Feedback. Customer grants to CrunchMetrics and its Affiliates a worldwide, perpetual, irrevocable, royalty- free license to use and incorporate into its Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of Subex’s or its Affiliates’ Services. CrunchMetrics will be entitled to retain or store any Customer Data used for consumption of Services, for the sole purpose of billing and support investigation and Customer hereby consent for such retention or storage. CrunchMetrics will also be entitled to closely monitor use of Services by the Customer, for the sole purpose of improving the Service offering by CrunchMetrics.
6. CONFIDENTIALITY
6.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“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. Confidential Information of Customer includes Customer Data; Confidential Information of CrunchMetrics includes the Services and Content, and the terms and conditions of this Agreement and all Subscription Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does 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) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional CrunchMetrics services.
6.2 Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Subscription Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, CrunchMetrics may disclose the terms of this Agreement and any applicable Subscription Form to a subcontractor to the extent necessary to perform Subex’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
6.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the 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, unless the Receiving Party is legally duty bound to disclose.
7. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
7.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
7.2 CrunchMetrics Warranties. CrunchMetrics warrants that during an applicable subscription term (a) this Agreement, the Subscription Forms and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, and (b) CrunchMetrics will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with the applicable Documentation. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
7.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8. MUTUAL INDEMNIFICATION
8.1 Indemnification by Subex. CrunchMetrics will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by CrunchMetrics in writing of, a Claim Against Customer, provided Customer (a) promptly gives CrunchMetrics written notice of the Claim Against Customer, (b) gives CrunchMetrics sole control of the defense and settlement of the Claim Against Customer (except that CrunchMetrics may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives CrunchMetrics all reasonable assistance, at Subex’s expense. If CrunchMetrics receives information about an infringement or misappropriation claim related to a Service, CrunchMetrics may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching CrunchMetric’s warranties under “CrunchMetrics Warranties” above, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer; (2) a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by CrunchMetrics , if the Services or use thereof would not infringe without such combination; (3) a Claim Against Customer arises from Services under an Subscription Form for which there is no charge; or (4) a Claim against Customer arises from Content or Customer’s breach of this Agreement, the Documentation or applicable Subscription Forms.
8.2 Indemnification by Customer. Customer will defend CrunchMetrics and its Affiliates against any claim, demand, suit or proceeding made or brought against CrunchMetrics by a third party alleging (a) that any Customer Data or Customer’s use of Customer Data with the Services, infringes or misappropriates such third party’s intellectual property rights, or arising from Customer’s use of the Services or Content in an unlawful manner or in violation of the Agreement, the Documentation, or Subscription Form (each a “Claim Against CrunchMetrics ”), and will indemnify CrunchMetrics from any damages, attorney fees and costs finally awarded against CrunchMetrics as a result of, or for any amounts paid by CrunchMetrics under a settlement approved by Customer in writing of, a Claim Against CrunchMetrics , provided CrunchMetrics (a) promptly gives Customer written notice of the Claim Against CrunchMetrics , (b) gives Customer sole control of the defense and settlement of the Claim Against CrunchMetrics (except that Customer may not settle any Claim Against CrunchMetrics unless it unconditionally releases CrunchMetrics of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against CrunchMetrics arises from Subex’s breach of this Agreement, the Documentation or applicable Subscription Forms.
8.3 Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.
9. LIMITATION OF LIABILITY
9.1 Limitation of Liability: IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE THREE (3) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
9.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
10. TERM AND TERMINATION
10.1 Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.
10.2 Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Subscription Form. Except as otherwise specified in an Subscription Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. CrunchMetrics reserves the right to increase or add new fees to any of its Services by giving thirty (30) days advance electronic notice, prior to the renewal term. The Customer will have an option not to renew the Services, with the change in pricing. Except as expressly provided in the applicable Subscription Form, renewal of promotional or one-time priced subscriptions will be at Subex’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re¬pricing at renewal without regard to the prior term’s per-unit pricing.
10.3 Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such material breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors which petition or proceeding is not dismissed within ninety (90) days.
10.4 Payment upon Termination. If this Agreement is terminated by CrunchMetrics in accordance with the “Termination” section above, Customer will pay any unpaid fees covering the remainder of the term of all Subscription Forms to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to CrunchMetrics for the period prior to the effective date of termination.
10.5 Surviving Provisions. The sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement, and the section titled “Protection of Customer Data” will survive any termination or expiration of this Agreement for so long as CrunchMetrics retains possession of Customer Data.
11. GENERAL PROVISIONS
11.1 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Both parties shall always act in accordance with applicable law including, without limitation, all applicable anti-corruption laws including the UK Bribery Act. A breach of this paragraph shall be considered a material breach of this Agreement entitling the non-breaching party, without regard to any other clause in this Agreement MOU: (a) to immediately terminate this Agreement and any other agreement between parties without prior notice; and (b) to compensation for any and all damages caused by such breach without regard to any limitation of liability clause in this Agreement.
11.2 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between CrunchMetrics and Customer regarding Customer’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any pre-printed terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Subscription Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) this Agreement, (2) the applicable Subscription Form, and (3) the Documentation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
11.3 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
11.4 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
11.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
11.6 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Subscription Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, CrunchMetrics will refund Customer any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.7 Notices, Governing Law, and Venue. CrunchMetrics is a division of Subex Digital LLP, a wholly owned subsidiary of Subex Limited. The address to which Customer should direct notices under this Agreement, the law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and the courts that have jurisdiction over any such dispute or lawsuit, depend on where Customer is domiciled.
| If Customer is domiciled in: | Contracting entity for CrunchMetrics | Notices should be addressed to: | Governing law is: | Courts with exclusive jurisdiction are: |
| The United States of America, Mexico, Central America, South America, Canada and the Caribbean other than Cuba | Subex Digital LLP | RMZ Ecoworld Outer Ring Road Devarabisanahalli Bangalore, Karnataka, 560103, India. Attn: Legal | Laws of New York | New York, NY |
| A Country in Europe, Africa, Middle East other than Israel | “Same as above” | “Same as above” | Laws of England & Wales | London, England |
| Australia, New Zealand or a country in Asia (other than North Korea) | “Same as above” | “Same as above” | Laws of Singapore | Singapore, Singapore |
| India | “Same as above” | “Same as above” | Laws of Republic Of India | Bangalore, Karnataka, India |
| Any country not listed | Please contact CrunchMetrics governing law and jurisdiction. | |||
11.8 Modification of this Agreement. CrunchMetrics reserves the right to update and change the terms of this Agreement from time to time at its sole discretion; an updated version will be published CrunchMetrics website. Any new features that augment or enhance the current Service, including the release of new tools and automatic updates, shall be subject to this Agreement. The Customer may terminate the Services, if the terms of Services are modified in a manner that substantially affects Customer’s rights in connection with use of the Services. Customer’s continued use of the Service after any such changes shall constitute Customer’s consent to such changes. If Customer choose to terminate the Services, Customer shall be entitled to retain its account as a dormant account for a period of six (6) months from the date of termination (“Dormant Phase”). Also, all Customer Data entered by the Customer, as part of the Purchased Services will be retained and made available in Customer’s account during Dormant Phase. Notwithstanding the foregoing, CrunchMetrics reserves the right to delete Customer Data at its sole discretion at any time, without any further notice or declaration.
11.9 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon the third day following deposit in an overnight or expedited courier with signature required except that billing related notices shall be effective on the day sent to an email address designated by the Customer as the relevant billing contact.
11.10 Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
