“Agreement” means this customer agreement, including sales order form, all statements of work, Service Plan SLA, Addendums and any other agreement relating to the Services entered into by UNBXD and the Customer; “Customer” means the Party subscribing to the Service Plan; “Contract Date” means the date on which the Parties duly execute this Agreement; “Fees” means the fees payable by the Customer to UNBXD; “Parties” shall mean UNBXD and the Customer together (each, individually, a “Party”); “Platform” means the UNBXD SmartEngage™ Platform; “Service Plan” means the package of services provided by UNBXD as set in the sales order form and Service Plan SLA and as may otherwise be agreed by UNBXD and the Customer from time to time; “Services” means the services offered by UNBXD to the Customer pursuant to the subscribed Service Plan, including the access to and use of the Platform; “Intellectual Property Rights” means all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any source code, software, patent, copyright, trademark, trade secret, database protection, know-how, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
2. ROLE AND RESPONSIBILITIES OF THE PARTIES:
- 2.1. UNBXD has and will retain sole control over the operation, provision, maintenance and management of the Platform and the Services. UNBXD will determine in good faith the selection, deployment, modification, support, maintenance, repair upgrades, updates, corrections, repairs, and replacement of the Platform and Services. UNBXD will have the right to (a) review and monitor the use of the Platform and Services by Customer and its users to ensure compliance with the terms of this Agreement and any applicable Service Plan; and (b) in its sole discretion, make any changes to the Platform and Services that it deems necessary or useful or requested by the Customer.
- 2.2. Subject to and conditioned on Customer’s payment of the Fees and Customer’s and users’ compliance with the terms and conditions of this Agreement, on subscription to a Service Plan and creation of account by the Customer, UNBXD shall provide the Customer a limited, non-exclusive, non-transferable, non-sublicensable, worldwide, revocable license to use and access the Platform, and shall provide Services as per the Service Plan subscribed to by the Customer;
- 2.3. The Customer shall upload the catalog data from the Customer’s website (as set out in the Sales Order Form) onto the Platform. Such data shall be non-infringing, authorized, categorized, indexed, and optimized by UNBXD;
- 2.4. The Customer may change the subscription to another Service Plan, subject to the volume of search sessions on the customer’s website (as set out in the Sales Order Form) in accordance with the Sales Order Form and execution of an addendum to this Agreement reflecting the change to subscription by the Customer (“Addendum”);
- 2.5. The Customer is responsible for updating and installing maintenance updates, if any, to its environment. UNBXD shall not cover any expenses related to Customer’s maintenance updates or be liable for any interruptions or issues with regards to the Services due to non-updation or non-installation of maintenance updates by the Customer.
- 2.6. The Services are intended to be used by the Customer for its internal business purposes only and the Customer shall be liable for any contravention of the terms of this Agreement, and any inappropriate, illegal, fraudulent, or misleading use of the Services;
- 2.7. The Customer shall obtain and maintain any required consents necessary to permit the processing of data by UNBXD under the Agreement;
- 2.8. The Customer shall take all reasonable measures to avoid any unauthorized or fraudulent use of the Services and will ensure that all its users adhere to the terms of this Agreement;
- 2.9. The Customer or its users shall not use the Platform for the following acts:
- a. to transmit, distribute or store any material, including any material that may be harmful to computer systems (such as viruses, worms, Trojans, or password-cracking programs), that may adversely affect the Services or other customers;
- b. in any manner that would violate the Intellectual Property Rights of UNBXD or any third party;
- c. to transmit any unsolicited email messages host inappropriate content or use any other service to send such unsolicited email messages (i) to promote the customer’s website (as set out in the Sales Order Form); (ii) to harass or annoy; (iii) containing malicious data or software, (iv) containing forged TCP/IP packet header information, or (v) addressed to people who have clearly indicated that they do not wish to receive any emails.
- d. shall not attempt to gain unauthorized access to any of UNBXD’s data centres, systems or networks;
- e. shall not interfere with or disrupt the integrity or performance of the Services or any third-party technology contained therein;
- 2.10. The Customer hereby grants UNBXD the right to access, collect, track and use user-behaviour data through the Platform, Services and customer’s websites (as set out in the Sales Order Form) for (i) performing the Services pursuant to this Agreement, and (ii) developing and providing UNBXD’s products and services, and conducting analytics with respect to the Platform and represents and warrants that it has the relevant permits, consents and authorizations to grant UNBXD this right, provided that for the purposes of this clause (ii), UNBXD will ensure that such data is used on an aggregated and anonymized basis, and shall not identify the Customer or its actual or prospective customers, or disclose any Customer Confidential Information in violation of its obligations hereunder.
- 2.11. The Customer shall not:
- a. license, sub-license, rent, loan, sell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Platform or Services, except as necessary to use the Platform and Services as permitted under this Agreement;
- b. modify, reverse engineer, decompile, disassemble, copy, make derivative works based on the Platform or any part thereof (including the Platform’s software), or otherwise derive or attempt to derive the source code of the Platform’s software, or access the Platform for any such purposes, use the Platform and Services in contravention of the terms of this Agreement; or
- c. remove or modify any trademarks, trade names, service marks, service names, logos or brands, or copyright or other proprietary notices on the Platform or Platform’s software or add any other markings or notices to the Platform or Platform’s software.
3. PAYMENT OF FEES:
- 3.1. The Customer shall pay Fees, upon receipt of invoice or notification from UNBXD, through an agreed mode of payment within the timelines set out in the Sales Order Form. In case of delay or non-payment of Fees, the Customer shall be liable to pay interest at the rate of 1.5% (one point five per cent) per month on the unpaid amounts from the due date till the date on which the entire amount is paid. Additionally, UNBXD may suspend its obligations under this Agreement till all undisputed amounts due from the Customer are paid. Any additional payment terms between UNBXD and Customer shall be agreed to in writing and set forth in an invoice, notification, or any other applicable document.
- 3.2. Fees for Services are exclusive of 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 sales orders and other applicable documents. If UNBXD is obligated by law to pay or collect Taxes for which Customer is responsible, UNBXD will invoice Customer and Customer will pay the entire amount set out in such invoice within the applicable timelines unless the Customer can provide a valid tax exemption certificate authorized by the appropriate taxing authority. Customer will provide UNBXD any information UNBXD reasonably requests to determine whether UNBXD is obligated to collect Taxes. UNBXD is solely responsible for taxes assessable against its income, property, and employees.
4. INTELLECTUAL PROPERTY, CONFIDENTIALITY AND WARRANTIES:
- 4.1. All Intellectual Property Rights in and title to the Platform, logo and any other software used in the provision of the Services by UNBXD, shall remain with and owned by UNBXD. All Intellectual Property Rights in and title to the customer’s website (as set out in the Sales Order Form) and data contained therein shall remain with and owned by the Customer. It is expressly understood by the Parties that this Agreement does not transfer any ownership or proprietary interest in any portion of the Platform or Services provided pursuant to this Agreement or to the customer’s website (as set out in the Sales Order Form) or data contained therein.
- 4.2. Any information including but not limited to proprietary or internal information related to the current, future and proposed products or services of the Parties, financial information, process/flow charts, business models, information related to customers, investors, employees, business and contractual relationships, business forecasts, sales and merchandising, marketing plans, information the Parties provide regarding third parties, that a receiving Party knows or has reason to know is confidential or proprietary (due to the nature of disclosure) is “Confidential Information”. The Parties understand that all Confidential Information exchanged between the Parties in connection with the Services, after the Contract Date, shall be received in strict confidence and will be used only for purposes of this Agreement. Any disclosure of Confidential Information to any other persons shall be subject to the condition that (i) such persons are bound by similar obligations of use and confidentiality as under this Agreement, and (ii) the disclosure is necessary for the exercise of its rights and performance of its obligations under this Agreement.
- 4.3. The restrictions on disclosure shall not apply to information which was: (i) generally available to the public at the time of disclosure, or later available to the public other than through fault of the Customer or UNBXD; (ii) already known to the Customer or UNBXD prior to disclosure pursuant to this Agreement; (iii) obtained at any time lawfully from a third-party under circumstances permitting its use or disclosure to others; or (iv) required by law or court order to be disclosed;
- 4.4. The terms of confidentiality and non-disclosure contained herein shall expire two (2) years from the date of the termination of this Agreement.
- 4.5. The Parties represent and warrant that they have the authority to enter into this Agreement.
- 4.6. UNBXD represents and warrants that (i) it either owns fully and outright its intellectual property for performing the Services, and/or possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to perform its obligations hereunder and to grant the licenses granted by it under this Agreement; and (ii) the Services, as used by the Customer in accordance with this Agreement, do not, and shall not, infringe, violate or misappropriate any third party’s rights.
5. TERM AND TERMINATION:
- 5.1. This Agreement shall commence on the Contract Date and shall continue to remain in full force and effect unless terminated by the Parties in accordance with this Agreement, or on the end date of the Agreement as per the Sales Order Form, as applicable ("Term”). This Agreement may be terminated (i) by the mutual consent of both Parties in writing; (ii) by the Customer by providing UNBXD at least ninety (90) days’ advance written notice of its intent not to renew the Contract prior to the expiration of the then-current Term; or (iii) by a non-breaching Party for breach of the provisions of this Agreement by the other Party, which breach is not rectified by the breaching Party within 30 (thirty) days of being notified of such breach; (iv) by the Customer due to UNBXD’s failure to meet the Service Level Agreement for Services Availability for 3 (three) consecutive months, notwithstanding anything in this Agreement, or (v) by UNBXD if the Customer (a) becomes the subject of a proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors to the extent permitted by applicable laws or governmental regulations, (b) goes out of business or (c) ceases its operations.
- 5.2. A Party will not be liable to the other Party for any delay or failure to perform any of its obligations under this Agreement due to any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, failures in telecommunications, internet, internet service provider or hosting facilities, power shortages and denial of service attacks (each, a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the Party claiming the Force Majeure Event will promptly give notice to the other Party and use its commercially reasonable efforts to perform its obligations under this Agreement despite the Force Majeure Event. The foregoing notwithstanding, if the Party claiming the Force Majeure Event is unable to deliver its obligations for 30 (thirty) consecutive days, the other Party shall have the right, at its sole option, to terminate this Agreement.
- 5.3. Upon termination of this Agreement based on Customer’s uncured breach (following any applicable cure period), Customer will pay UNBXD any unpaid amounts that would have been owed to UNBXD for the remainder of the then-current Term, without limiting UNBXD’s other rights and remedies. Upon termination of this Agreement based on UNBXD’s uncured breach (following any applicable cure period), UNBXD will refund Customer any amounts pre-paid pursuant to this Agreement on a pro rata basis for the remainder of the then-current Term for Services that have not been provided by UNBXD.
- 5.4. On expiration or termination of this Agreement, the licenses granted by UNBXD to Customer pursuant to this Agreement will cease immediately, Customer will immediately cease all use of the Platform and Services, and each Party shall delete or destroy (or, at the disclosing Party’s request, return) all Confidential Information in its possession or control.
- THE ACCESS TO AND USE OF THE PLATFORM AND SERVICES IS PROVIDED ON AN “AS IS” BASIS, AND ANY IMPLIED WARRANTY, INCLUDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW BY UNBXD. UNBXD DOES NOT WARRANT OR GUARANTEE THAT THE PLATFORM OR THE SERVICES WILL MEET CUSTOMER’S PERFORMANCE REQUIREMENTS, INCLUDING ANY OUTCOMES OR RESULTS.
7. INDEMNITY AND LIMITATION OF LIABILITY:
- 7.1. Notwithstanding Clause 7.4, Customer shall defend UNBXD and its officers, directors, employees, agents, successors, and assigns (each, a "UNBXD Indemnitee") from and against any and all allegations, action, suit or proceeding (“Claim”), and shall indemnify and hold harmless UNBXD Indemnitees from and against any loss, damages, costs, charges, expenses, and other liabilities incurred or awarded in such Claim, that are caused by, arise out of or relate to any: (i) allegation that data provided by Customer to UNBXD or any other materials, information documents, software, content, or technology provided by or on behalf of Customer infringe a third party’s Intellectual Property Rights; (ii) allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants, or obligations under this Agreement; or (iii) gross negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, or any third party on behalf of Customer in connection with this Agreement.
- 7.2. UNBXD shall defend Customer from and against any and all Claims and shall indemnify and hold harmless the Customer from and against any loss, damages, costs, charges, expenses, and other liabilities incurred or awarded in such Claim, that are caused by any breach or default by UNBXD under this Agreement; provided, however, that this Clause 7.2 shall not cover intellectual property infringement, violation, or misappropriation, which is governed by Clause 7.3.
- 7.3. UNBXD shall defend Customer from and against any proven third-party Claim brought against Customer so far as it is based on a claim that the Platform or Services directly infringe any patent or other third-party intellectual property right. Customer shall promptly notify UNBXD of such Claim in writing and shall give UNBXD authority, sole control, and assistance at UNBXD’s expense for defense and settlement of same. If UNBXD reasonably believes that Customer’s use of the Platform is likely to be enjoined, or if the Platform is held to infringe such patent or other intellectual property right and all use of the Platform by Customer is thereby enjoined, UNBXD shall, at its expense and at its sole option, (i) procure for Customer the right to continue using the Platform, (ii) replace the Platform with other non-infringing services or software of substantially equivalent functionality or (iii) modify the Platform so that there is no infringement, provided that such modified services or software provides substantially equivalent functionality. If, in UNBXD’s reasonable opinion, the remedies above are infeasible or commercially impracticable, UNBXD may, in its sole discretion, terminate this Agreement and UNBXD shall refund Customer a pro-rated amount of the applicable Fees pre-paid by Customer under this Agreement. Customer shall not settle any matter without the prior written approval of UNBXD. The indemnification obligation in this Clause 7.3 will not apply to the extent the infringement is caused by any of the following: (i) the Platform is modified in an unauthorized manner by Customer or its users and such infringement would not have occurred but for such modification, or (ii) the Platform is combined by Customer or its users with other software, hardware, application (including customer applications or systems), data or process not authorized by UNBXD and such infringement would not have occurred but for such combination. THIS CLAUSE 7.3 SETS FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND UNBXD’S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT, VIOLATION OR MISAPPROPRIATION.
- 7.4. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR CUSTOMER’S MISAPPROPRIATION OF UNBXD’S INTELLECTUAL PROPERTY RIGHTS, EACH PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID AND PAYABLE BY CUSTOMER FOR THE PLATFORM FOR THE 12 MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. FOR CLARITY, THE ABOVE LIMITATIONS SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER CLAUSE 3. The limitations of liability and exclusions of damages in this Clause 7.4 form an essential basis of the bargain between the Parties and shall survive and apply even if any remedy specified in this Agreement is found to have failed its essential purpose.
- 7.5. The Customer represents that it accepts sole and complete responsibility for: (a) the selection of the Services to achieve Customer’s intended results; (b) use of the Services; (c) the results obtained from Services; and (d) the terms of any contracts between Customer and authorized representative. UNBXD does not warrant that the Customer’s use of the Services will be uninterrupted or error-free.
- The headings given to the clauses herein are inserted only for convenience and are in no way to be construed as part of this Agreement or as a limitation of the scope of the particular clause to which the title refers. Clauses 2.9, 2.11, 3, 4, 5, 6, 7, and this Clause 8 shall survive termination. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California, USA. The Parties shall endeavor to resolve any dispute with respect to this Agreement in good faith within thirty (30) days of a controversy or claim (the “Dispute”) being raised by one Party with the other Party. The Parties agree that any unresolved Dispute shall be settled by mandatory and binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The Parties hereby waive any right that they might have to have the Dispute decided by a jury or by court judge. The venue of the arbitration shall be in Santa Clara County, California, USA, and the language shall be English. UNBXD may recover its expenses (including reasonable attorneys’ fees) incurred in connection with the dispute and any appeal from the Customer. This Agreement constitutes the entire understanding of the Parties and supersedes all prior understandings, negotiations, and agreements between them. This Agreement will be executed in two counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. UNBXD shall have the right to modify the terms of this Agreement at any time and at its sole discretion, provided that UNBXD shall notify such modification on its Platform or in any other way as deemed fit by UNBXD (“Notice”). Customer’s continued use of UNBXD’s Platform shall constitute Customer’s consent and acceptance to such changes. The changes shall be effective from the date they are posted. If any provision of this Agreement is held unenforceable, the remainder of this Agreement shall be enforced to the maximum extent permissible. This Agreement shall bind each Party’s successors and assigns. In the event of any conflict or inconsistency between the sales order form, all statements of work, Service Plans, SLA, and any other agreement relating to the Services entered into by UNBXD and the Customer and the terms of this Agreement, the terms provided herein shall prevail. Notwithstanding anything in this Agreement, the Customer shall not transfer or assign any of its rights, or obligations under this Agreement without the prior written consent of UNBXD. UNBXD shall freely transfer or assign any of its rights, or obligations under this Agreement without the prior written consent of the Customer. No failure or delay by either Party to exercise or enforce any right under this Agreement operates as a waiver of such right. Neither Party is the partner, agent, or representative of the other Party under this Agreement. All notices and communications under this Agreement shall be in writing and in English and shall be deemed given if personally delivered or mailed by prepaid courier with electronic copies to the addresses set forth in this Agreement.