Duration of Free Trial Period: 30 days
TERMS AND CONDITIONS
These Terms and Conditions are made a part of and incorporated by reference into the Free Trial Subscription Agreement (the "Agreement") by and between an individual or any entity (and its employees, agents, and contractors)("Client") and NxtSpark Consulting Private Limited ("NxtSpark"). These Terms & Conditions refer only and specifically to NxtSpark’s FeedForward application.
1. Definitions.
a) "Affiliate" means a party that partially (at least 50%) or fully controls, is partially or fully controlled by, or is under partial (at least 50%) or full common control with, another party.
b) "Client Data" means proprietary or personal data regarding Client or any of its users under this Agreement.
c) "Confidential Information" means any non-public information of NxtSpark or the Client disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, or to which the other party may have access, which a reasonable person would consider confidential and/or which is marked "confidential" or "proprietary" or some similar designation by the disclosing party. Confidential Information shall not, however, include any information which the recipient can establish: (i) was or has become generally known or available or a part of the public domain without direct or indirect fault, action, or omission of the recipient; (ii) was known by the recipient prior to the time of disclosure, according to the recipient’s prior written documentation; (iii) was received by the recipient from a source other than the discloser, rightfully having possession of and the right to disclose such information; or (iv) was independently developed by the recipient, where such independent development has been documented by the recipient.
d) "Free Trial" means a period, lasting the length of time and for the number of Subscribers specified during sign-up, whereby NxtSpark has allowed Client to use the Software on a provisional basis without payment for such use therefor.
e) "Implementation" means implementation, deployment, and/or training relating to the Software.
f) "Intellectual Property Right" means any patent, copyright, trade or service mark, trade dress, trade name, database right, goodwill, logo, trade secret right, or any other intellectual property right or proprietary information right, in each case whether registered or unregistered, and whether arising in any jurisdiction, including without limitation all rights of registrations, applications, and renewals thereof and causes of action for infringement or misappropriation related to any of the foregoing.
g) "Service" means any service rendered by NxtSpark specifically to Client, including, but not limited to: (i) hosting of the Software; (ii) Implementation; (iii) development of Software functionality specially requested by Client; and/or (iv) any consulting service.
h) "Software" means any and all of NxtSpark’s proprietary software offerings, including, without limitation, all updates, revisions, bug-fixes, upgrades, and enhancements thereto, as well as software that has been modified in any way by NxtSpark at the request of a client.
i) "Subscriber" means an employee, member, or customer of Client or one of its Affiliates who is permitted by Client to access the Software.
k) "Subscription" means a subscription purchased by Client for a Subscriber to access the Software.
l) "Term" means the Initial Term plus all Renewal Terms.
2. Support. NxtSpark will provide offsite support for the appropriate functioning (i.e. the product will function basis the way it has been conceptualized) of the Software on a best effort basis as per the scope mentioned below:
In no event shall NxtSpark be responsible or liable for any errors, bugs or other problems contained in or originating from hardware or software not provided by NxtSpark.
3. Fees and Payment.
a) Free Trial. If the Client is using the Software pursuant to a Free Trial, NxtSpark will begin billing Client on a recurring basis, via the payment method discussed before the expiration of the Free Trial unless NxtSpark has received written notice of cancellation from Client prior to Free Trial expiration. The free trial can be availed for upto 25 users. Please refer to the software features, as mentioned in the User Manual, for the scope of the product offered during the Free Trial Period.
4. NxtSpark Obligations. In accordance with the terms and conditions of the Agreement, NxtSpark will: (i) make the Software and Services available on a non-exclusive basis to Client and Subscribers via the Internet; (ii) maintain appropriate safeguards for protection of Client Data, including regular back-ups and security protocols; (iii) not access, modify, or disclose Client Data (except as compelled by law, to prevent or address service or technical issues, or if otherwise permitted by Client). (iv) NxtSpark is hosted on a cloud platform and is in no way responsible for any data loss due to failure of the server or the cloud platform.
5. Client Obligations. Client may only use the Software and Services for its own lawful, internal business purposes. Client shall not: (i) use or deploy the Software in violation of applicable laws or this Agreement; (ii) resell the Software or Services; create any derivative works based upon the Software or Services; (iii) reverse engineer, reverse assemble, decompile or otherwise attempt to derive source code from the Software or any part thereof (except to the extent that such restriction is not permitted under applicable law); (iv) make the Software or Services available to any unauthorized parties, including without limitation, competitors of NxtSpark; or (v) perform, or release the results of, benchmark tests or other comparisons of the Software or Services with other software, services, or materials. (vi) The Client cannot sub license the software to any subsidiary company or transfer license without knowledge of NxtSpark in case of merger and acquisition. Client will be responsible for Subscribers’ compliance with the Agreement and liable for Subscribers’ breach thereof. Client will ensure that it has obtained all necessary consents and approvals for NxtSpark to access and use Client Data for the purposes permitted under this Agreement, and that the provision of Client Data to NxtSpark hereunder does not violate or infringe any Intellectual Property Right of any third party. If Client is in breach of this section, NxtSpark may suspend Services, in addition to any other rights and remedies NxtSpark may have at law or in equity.
6. Intellectual Property. As between the parties, NxtSpark will and does retain all right, title and interest (including, without limitation, all Intellectual Property Rights) in and to the Software and Services. Client retains all ownership rights to Client Data. In an unlikely event of data loss, NxtSpark shall not be not accept any liability, obligation or responsibility.
7. Term and Termination.
a) Term. The term of this Agreement runs for the period mentioned at the beginning of this document. Unless otherwise agreed by the parties in writing, each Order will automatically commence for additional, consecutive one-year period, unless and until a party provides written notice to the other party, prior to the expiration of the Order, that the party does not wish to renew the Order.
b) Termination for Cause. Either party may immediately terminate this Agreement if the other party materially breaches its obligations hereunder, and, where capable of remedy, such breach has not been materially cured within forty-five (45) days of the breaching party’s receipt of written notice describing the breach in reasonable detail.
c) Bankruptcy Events. A party may immediately terminate this Agreement if the other party: (i) has a receiver appointed over it or over any part of its undertakings or assets; (ii) passes a resolution for winding up (other than for a bona fide scheme of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect and such order is not discharged or stayed within ninety (90) days; or (iii) makes a general assignment for the benefit of its creditors.
d) Effect of Termination. Immediately following termination of the Agreement, Client shall cease using the Software. Following termination of the Agreement, NxtSpark will maintain backups of Client Data for no more than one month, after which time all remaining Client Data will be destroyed.
8. Confidentiality. Each of the parties agrees: (i) not to disclose any Confidential Information to any third parties except as mandated by law and except to those subcontractors of NxtSpark providing Services hereunder who agree to be bound by confidentiality obligations no less stringent than those set forth in this Agreement; (ii) not to use any Confidential Information for any purposes except carrying out such party’s rights and responsibilities under this Agreement; and (iii) to keep the Confidential Information confidential using the same degree of care such party uses to protect its own confidential information; provided, however, that such party shall use at least reasonable care. These obligations shall survive termination of this Agreement. If a party breaches any of its obligations with respect to confidentiality or the unauthorized use of Confidential Information hereunder, the other party shall be entitled to seek equitable relief to protect its interest therein, including but not limited to, injunctive relief, as well as money damages.
9. Indemnification.
a) NxtSpark’s Indemnification Obligations. NxtSpark agrees to indemnify, defend, and hold harmless Client from and against any and all third party claims and causes of action, as well as related losses, liabilities, judgments, awards, settlements, damages, expenses and costs (including reasonable attorney’s fees and related court costs and expenses) incurred or suffered by Client which directly relate to or directly arise out of the violation or infringement of any third-party Intellectual Property Rights by Client’s authorized use of the Software. The foregoing provisions of this section shall not be applicable, with respect or related to, or in connection with: (i) Client Data; or (ii) unauthorized or negligent use and/or alteration of the Software.
b) Indemnification by Client. Client agrees to indemnify, defend, and hold harmless NxtSpark from and against any and all Damages incurred or suffered by NxtSpark which directly relate to or directly arising out of Client Data or Client Content. The foregoing provisions of this section shall not be applicable to the extent the Damages relate to or arise from NxtSpark’s use of Client Data or Client Content in violation of this Agreement.
c) Indemnification Procedures. To obtain indemnification, indemnitee shall: (i) give written notice of any claim promptly to indemnitor; (ii) give indemnitor, at indemnitor’s option, sole control of the defense and settlement of such claim, provided that indemnitor may not, without the prior consent of indemnitee (not to be unreasonably withheld), settle any claim unless it unconditionally releases indemnitee of all liability; (iii) provide to indemnitor all available information and assistance; and (iv) not take any action that might compromise or settle such claim.
d) Infringement Cures. Should the Software or any part thereof become, or in NxtSpark’s reasonable opinion be likely to become, the subject of a claim for infringement of a third party Intellectual Property Right, then NxtSpark shall, at its sole option and expense: (i) procure for Client the right to use and access the infringing or potentially infringing item(s) of the Software free of any liability for infringement; or (ii) replace or modify the infringing or potentially infringing item(s) of the Software with a non-infringing substitute otherwise materially complying with the functionality of the replaced system. If (i) and (ii) are not reasonably available in NxtSpark’s reasonable opinion, NxtSpark may terminate the Agreement in which case Client shall receive a refund of prepaid, unearned fees.
e) Exclusive Remedies. The remedies set forth in this section shall be exclusive with respect to any infringement claim hereunder.
10. Warranties. Each party represents and warrants to the other party that, as of the date hereof: (i) it has full power and authority to execute and deliver the Agreement; (ii) the Agreement has been duly authorized and executed by an appropriate employee of such party; (iii) the Agreement is a legally valid and binding obligation of such party; and (iv) its execution, delivery and/or performance of the Agreement does not conflict with any agreement, understanding or document to which it is a party. NXTSPARK WARRANTS THAT ANY AND ALL SERVICES PROVIDED BY IT HEREUNDER SHALL BE PERFORMED IN A PROFESSIONAL MANNER CONSISTENT WITH PREVAILING INDUSTRY STANDARDS, AND THAT THE SOFTWARE WILL PERFORM SUBSTANTIALLY IN MATERIAL ACCORDANCE WITH THE AGREEMENT AND APPLICABLE DOCUMENTATION PROVIDED BY NXTSPARK. CLIENT’S EXCLUSIVE REMEDY FOR ANY BREACH OF THESE WARRANTIES SHALL BE TO TERMINATE THE AGREEMENT FOR CAUSE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NXTSPARK DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT (EXCEPT FOR THE INFRINGEMENT INDEMNIFICATION PROVIDED HEREUNDER) AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. CLIENT UNDERSTANDS THAT THE SOFTWARE IS SOFTWARE-AS-A-SERVICE. ACCORDINGLY, SOFTWARE ENHANCEMENTS MAY BE MADE BY NXTSPARK ON A PERIODIC BASIS, AND CLIENT WILL ONLY HAVE ACCESS TO THE MOST RECENT VERSION OF THE SOFTWARE.
11. Liability. NXTSPARK’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY, WILL BE LIMITED TO THE TOTAL FEES PAID BY CLIENT TO NXTSPARK HEREUNDER FOR THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT EXPAND SUCH LIMIT. THE PARTIES ACKNOWLEDGE THAT THE FEES AGREED UPON BETWEEN CLIENT AND NXTSPARK ARE BASED IN PART ON THESE LIMITATIONS, AND THAT THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ANY ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. NXTSPARK WILL NOT BE LIABLE FOR LOST PROFITS, LOST REVENUE, LOST BUSINESS OPPORTUNITIES, LOSS OF DATA, INTERRUPTION OF BUSINESS, PROVIDING REPLACEMENT SOFTWARE (EXCEPT AS SET FORTH IN SECTION "RIGHT TO PROCURE OR SUBSTITUTE"), OR ANY OTHER INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. Communications. Neither party shall issue any publicly disseminated statement using the name of the other party as a customer or provider without the other party’s consent (not to be unreasonably withheld or delayed). Notwithstanding the foregoing, NxtSpark may mention Client by name during investor-related communications and list Client’s name and logo alongside NxtSpark’s other clients on the NxtSpark website and in marketing materials, unless and until Client revokes such permission.
13. Miscellaneous Provisions.
a) Governing Law; Jurisdiction. The Agreement will be governed by and construed in accordance with the laws of Hyderabad, Telangana, India, and the courts of Hyderabad, Telangana, India shall have exclusive jurisdiction in any proceedings relating to it
(b) Force Majeure. Neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation, acts of war, acts of God, earthquake, flood, weather conditions, embargo, riot, epidemic, acts of terrorism, sabotage, labor shortage or dispute, governmental act, failure of the Internet or other acts beyond such party’s reasonable control, provided that the delayed party: (i) gives the other party prompt notice of such cause; and (ii) uses reasonable commercial efforts to correct promptly such failure or delay in performance.
c) Counterparts; Facsimile. This Agreement may be executed in any number of counterparts and in facsimile or electronically, each of which shall be an original but all of which together shall constitute one and the same instrument
d) Entire Agreement. This Agreement contains the entire understanding of the parties in respect of its subject matter and supersedes all prior agreements and understandings (oral or written) between the parties with respect to such subject matter. The schedules and exhibits hereto constitute a part hereof as though set forth in full herein. Purchase orders submitted by Client are for Client’s internal administrative purposes only, and the terms and conditions contained in those purchase orders will have no force and effect.
Arbitration
e) Modifications. Any modification, amendment, or addendum to this Agreement must be in writing and signed by both parties. Any unresolved dispute or controversy arising under or in connection with this Agreement shall be settled exclusively by arbitration by a mutually acceptable arbitrator.
f) Assignment. Client may not assign this Agreement or any of its rights, obligations, or benefits hereunder, by operation or law or otherwise, without NxtSpark’s prior written consent; provided, however, Client, without NxtSpark’s consent, may assign this Agreement to an Affiliate or to a successor (whether direct or indirect, by operation of law, and/or by way of purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of such party, where the responsibilities or obligations of NxtSpark are not increased by such assignment and the rights and remedies available to NxtSpark are not adversely affected by such assignment. Subject to that restriction, this Agreement will be binding on, inure to the benefit of and be enforceable against the parties and their respective successors and permitted assigns.
g) No Third Party Beneficiaries. The representations, warranties and other terms contained herein are for the sole benefit of the parties hereto and their respective successors and permitted assigns, and they shall not be construed as conferring any rights on any other persons.
h) Aggregated Data Use. Without limiting the confidentiality rights and protections set forth in this Agreement, NxtSpark owns the aggregated, anonymized, and statistical data ("Aggregated Data") derived from the operation of the Software, and nothing herein shall be construed as prohibiting NxtSpark from utilizing the Aggregated Data for business and/or operating purposes, provided that NxtSpark does not share with any third party Aggregated Data which reveals the identity of Client, Client’s users, or Client’s Confidential Information.
i) Suggestions. NxtSpark shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Software any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Client or its Subscribers relating to the operation of the Software.
j) Integration with Third-Party Offerings. The Software may contain features designed to operate with third-party applications. To use such features, Client may be required to obtain access to such applications from a third-party provider. Client shall not be entitled to a refund, credit, or other compensation if NxtSpark ceases to offer certain features because the application provider ceases to make such application available for interoperation with the Software.
k) Minimum Technical Requirements for Software Use. Client understands that, in order to use the Software, a Subscriber must utilize a web browser
l) Severability. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be contrary to law, such provision shall be changed by the court or by the arbitrator and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions of this Agreement shall remain in full force and effect.
m) Notices. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by facsimile or mailed by registered or certified mail, return receipt requested, postage prepaid to the address for the other party first written above or at such other address as may hereafter be furnished in writing by either party hereto to the other party. Such notice will be deemed to have been given as of the date it is delivered, if by personal delivery; the next business day, if deposited with an overnight courier; upon receipt of confirmation of facsimile delivery (if followed up by such registered or certified mail); and five days after being so mailed. Notices to NxtSpark shall be delivered to NxtSpark Consulting Private Limited, C-501, Aparna Cyber Commune, Nallagandla, Hyderabad, India – 500019
n) Independent Contractors. Client and NxtSpark are independent contractors, and nothing in this Agreement shall create any partnership, joint venture, agency, franchise, sales representative or employment relationship between Client and NxtSpark. Each party understands that they do not have authority to make or accept any offers or make any representations on behalf of the other. Neither party may make any statement that would contradict anything in this section.
o) Headings. The headings of the sections of this Agreement are for convenience only and do not form a part hereof, and in no way limit, define, describe, modify, interpret or construe its meaning, scope or intent.
p) Waiver. No failure or delay on the part of either party in exercising any right, power or remedy under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise or the exercise of any other right, power or remedy.
q) Survival. Sections of the Agreement intended by their nature and content to survive termination of the Agreement shall so survive.