THIS ADAPPT AGREEMENT (“AGREEMENT”) CONTAINS THE TERMS FOR USE OF THE SERVICES AND IS BETWEEN ADAPPT INTELLIGENCE INC. (“ADAPPT”), AN ORGANIZATION HAVING A PLACE OF BUSINESS AT 301, ASHFORD CHAMBERS, CITY LIGHT CINEMA, LADY JAMSHEDJI ROAD, MAHIM WEST, MUMBAI, MAHARASHTRA 400016 AND THE PARTY AGREEING TO THE TERMS OF THIS AGREEMENT AND ITS AFFILIATES (“CUSTOMER”). BY COMPLETING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CLICKING AN “ACCEPT” OR SIMILAR BUTTON, OR OTHERWISE USING THE SERVICES, CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. CUSTOMER MAY NOT USE THE SERVICES WITHOUT AGREEING TO THIS AGREEMENT FIRST. IF A WRITTEN AGREEMENT REGARDING CUSTOMER’S USE OF THE SERVICES EXISTS BETWEEN AND HAS BEEN EXECUTED BY BOTH ADAPPT AND CUSTOMER, THE TERMS OF THAT WRITTEN AGREEMENT SHALL TAKE PRECEDENCE OVER THIS AGREEMENT.
“Affiliate” means, with respect to a party, any entity which directly or indirectly Controls, is Controlled by, or is under common Control with such party.
“Confidential Information” has the meaning set forth in Section 9.
“Control” means ownership or control, directly or indirectly, of more than 50% of the voting interests of the subject entity.
“Customer Equipment” means Customer’s and its Affiliates’ computer hardware, software and network infrastructure used to access the Services.
“Customer Data” means data, text, files, and the like that Customer inputs and/or loads into the Services or that Adappt otherwise processes on Customer’s behalf in connection with providing the Services.
“Documentation” means the description of the Services licensed by Customer contained in the official Adappt Services specifications.
“Effective Date” means the date this Agreement or an Order Form referencing this Agreement is first executed.
“Reseller” means a reseller authorized in writing by Adappt to provide the Services on Adappt’s behalf.
“Services” means any Adappt cloud solution, downloadable software, and APIs licensed by Adappt to Customer, together with all Updates, as further described in the Documentation and in an Order Form.
“Support” has the meaning set forth in Section 6.
“Taxes” means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes.
“Term” means the Term applicable to each of the Services specified on an Order Form, or if no such term period is defined, twelve (12) months, commencing on the effective date of the Order Form.
“Updates” means all Services updates and enhancements that Adappt generally makes available at no additional charge to its customers of the version of the Services purchased hereunder who are currently in payment of applicable fees.
“Users” means Customer’s and its Affiliates’ employees, agents, contractors, and consultants who are authorized by Customer to use the Services.
2.1 Subject to the terms of the Agreement, Adappt grants Customer and its Affiliates a non-exclusive, non-transferable (except to a successor in interest as permitted hereunder) license to access, use, and install (only for the portions of the Services that are available for download by Adappt) the Services listed under an Order Form during the Term. Customer’s right to use the Services is limited to the location and other restrictions contained in an Order Form and the Documentation.
2.2 Any example language or agreements offered in connection with the Services (e.g., example confidentiality agreements or terms for visitors) are provided solely as examples for informational purposes and Customer is solely responsible for ensuring that any language or agreement it deploys in connection with the Services are appropriately customized and fit for Customer’s purposes. There is optional functionality in the Services that allows Customer to send emails. For every email sent in connection with the Services, Customer acknowledges and agrees that the Services may add a source identifier for the Services (e.g., a small logo, a “powered by” tagline or the like).
2.3 Notwithstanding anything to the contrary in this Agreement, Adappt shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies, and Adappt will be free (during and after the term hereof) to
(i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Adappt offerings, and
(ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
3.1 As between the parties, Customer is responsible for,
(i) all activities conducted under its User logins,
(ii) obtaining and maintaining any Customer Equipment and any ancillary software and/or services needed to connect to, access, install (only for the portions of the Services that are available for download by Adappt) and,
(iii) ensuring that it has the proper third-party licenses to make use of the Services with.
3.2 Customer shall use the Services solely for its internal business purposes, in compliance with applicable law (including any and all privacy and spam laws), and shall not:
(a) resell, sublicense, lease, time-share or otherwise make the Services available to any third party (including customers of Customer).
(b) process, send, or store infringing or unlawful material using the Services.
(c) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Services or the data contained therein.
(d) modify, copy or create derivative works based on the Services.
(e) do any “mirroring” or “framing” of any part of the Services, or create Internet links to the Services which include log-in information, user names, passwords, and/or secure cookies.
(f) reverse engineer the Services
g) propagate any virus, worms, Trojan horses, or other programming routine intended to damage any system or data
(h) access or use the Services for the purpose of building a competitive product or service or copying its features or user interface; or
(i) use the Services, or permit it to be used, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication.
4.1 Customers shall retain all ownership rights in and to all Customer Data passing though or generated by the Services and Customer Confidential Information. Adappt shall have and retain all ownership rights in the Services and all work provided by Adappt during the course of providing Support to Customer (if any). Adappt hereby grants Customer a royalty-free, fully paid-up, nonexclusive, license to use the foregoing on the same terms and conditions as the Services during the Term.
4.2 Adappt shall own any suggestions, enhancement requests, recommendations, or other feedback provided by Customer or its Users relating to the operation of the Services.
5.1 The Fees for the Services are as stated in an Order Form. Unless otherwise stated in the applicable Order Form, Fees for the initial Term are due and payable net thirty (30) days from the date of electronic delivery of the Services by Adappt and are payable to Adappt or Reseller, as applicable. Fees for any renewal Terms are due in accordance with the above, except that they are due net thirty days from the effective date of the renewal.
5.2 Upon execution of this Agreement, payment obligations under any Order Form are non-cancelable and, except as expressly provided in this Agreement, upon payment, all payments made by Customer are non-refundable. If Customer is paying by credit card, Customer shall provide Adappt all relevant information regarding Customer’s credit card prior to the provision of the Services. Customer represents and warrants to Adappt that such information is true and that Customer is authorized to use such a payment instrument. Customer will promptly update its account information with any changes (for example, a change in Customer billing address or credit card expiration date) that may occur. Customer hereby authorizes Adappt to bill Customer’s payment instrument in advance on a periodic basis in accordance with the terms described in the Services, and Customer further agrees to pay any charges so incurred. Any payment not received from Customer by the due date may accrue (except for amounts then under reasonable and good faith dispute) late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. Failure to make payments in accordance with this Section may result in suspension of Customer’s ability to access or use the Services until payment is made. In the event Customer issues purchase orders in its normal course of business, Customer shall provide Adappt with a purchase order upon execution of this Agreement, or Order Form, or if Customer does not provide Adappt with such purchase order, Customer authorizes Adappt to accept this Agreement in lieu of a purchase order.
5.3 Customer is responsible for monitoring Customer’s use of the Services. If Customer is aware that its use of the Services is found to be greater than the number of locations licensed or other metrics licensed hereunder, Customer shall notify Adappt or Reseller of such excess use. Adappt or Reseller will invoice Customer for the additional Fees for the period commencing on the date of excess use as reported above or as otherwise identified by Adappt, through the remainder of the Term, and the unpaid Fees shall be payable in accordance with Section 5.1.
5.4 Unless otherwise provided, the fees do not include any Taxes. Customer is responsible for paying all Taxes, including, but not limited to sales, use, GST, and VAT taxes, associated with its purchases hereunder, excluding Taxes based on Adappt’s or Reseller’s net income or property. If an invoice includes Taxes, Customer is responsible for such Taxes, unless Customer provides a valid tax exemption certificate authorized by the appropriate taxing authority upon execution of this Agreement. Taxes not included on an invoice shall be the responsibility of the Customer to remit to the appropriate tax authorities as necessary.
As long as Customer is currently on the payment of Fees, Adappt shall provide Support in accordance with its standard Support services.
7.1 Each party represents and warrants that
(i) it has the legal power to enter into and perform under this Agreement; and
(ii) it shall comply with all other applicable laws in its performance hereunder.
7.2 Adappt warrants to Customer that the Services will substantially conform in all material respects to the Documentation (“Services Warranty”). The Services Warranty does not apply when:
(a) the Services that has been modified by any party other than Adappt; or
(b) the Services that has been improperly used and/or installed in a manner other than as authorized under the Agreement to the extent such modification(s) or improper installation cause the Services to be nonconforming. As Customer’s sole and exclusive remedy and Adappt’s entire liability for any breach of the foregoing warranty, Adappt will repair or replace any nonconforming Services so that it operates as warranted or, if Adappt is unable to do so, terminate the license for such Services and return or request the Reseller to return the license fees paid for the nonconforming Services, prorated from the date of termination, as Customer’s sole and exclusive remedy.
7.3 EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON INFRINGEMENT. Adappt DOES NOT WARRANT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
8.1 Adappt shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Customer by a third party alleging that the use of the Services, provided that Customer
(a) promptly gives written notice of the Claim to Adappt;
(b) gives Adappt sole control of the defense and settlement of the Claim (provided that Adappt may not settle any Claim unless it unconditionally releases Customer of all liability); and
(c) provides to Adappt, at Adappt’s cost, all reasonable assistance.
8.2 Adappt may, at its sole option and expense:
(i) procure for Customer the right to continue using the Services under the terms of this Agreement;
(ii) replace or modify the Services to be non-infringing without material decrease in functionality; or
(iii) if the foregoing options are not reasonably practicable, terminate the license for the Services and refund Customer or request the Reseller to refund the prepaid fees for the remainder of the then-current Term after the date of termination.
8.3 Adappt shall have no liability for any Claim to the extent the Claim is based upon (i) the use of the Services in combination with any other product, service or device not furnished, recommended or approved by Adappt, if such Claim would have been avoided by the use of the Services, without such product, service or device; or (ii) Customer’s use of the Services in breach of this Agreement.
8.4 The provisions of this Section 8 set forth Adappt’s sole and exclusive obligations, and Customer’s sole and exclusive remedies, with respect to infringement or misappropriation of third party intellectual property rights of any kind.
8.5 Customer shall defend, indemnify and hold Adappt harmless against any loss, damage or costs incurred in connection with any Claims made or brought against Adappt
(a) promptly gives written notice of the Claim to Customer;
(b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless it unconditionally releases Adappt of all liability); and
(c) provides to Customer, at Customer’s cost, all reasonable assistance.
9.1 As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed 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, including the terms and conditions of this Agreement (including pricing and other terms reflected under this Agreement), the Services, Documentation, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that:
(i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party;
(ii) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any obligation owed to Disclosing Party;
(iii) was independently developed by Receiving Party without breach of any obligation owed to Disclosing Party; or
(iv) is received from a third party without breach of any obligation owed to Disclosing Party.
9.2 Receiving Party shall not disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with Disclosing Party’s prior written consent. Receiving Party shall protect the confidentiality of Disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). Notwithstanding the foregoing, Adappt may use, for its business purposes, data generated by the use of the Services in anonymized format. Receiving Party shall promptly notify the Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party’s Confidential Information.
9.3 If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if Disclosing Party wishes to contest the disclosure.
9.4 Upon any termination of this Agreement, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party’s Confidential Information as long as it remains confidential and, upon request, return to the Disclosing Party or destroy (at the Disclosing Party’s election) all materials containing such Confidential Information.
(i) FOR CUSTOMER’S INDEMNIFICATION OBLIGATIONS;
(ii) FOR CUSTOMER’S FAILURE TO PAY ANY FEES DUE UNDER THIS AGREEMENT;
(iii) IN THE EVENT OF CUSTOMER’S UNAUTHORIZED USE, DISTRIBUTION OR DISCLOSURE OF Adappt’S INTELLECTUAL PROPERTY; OR
(iv) CUSTOMER’S MATERIAL BREACH OF SECTION 9 (“CONFIDENTIALITY”), IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE SUBSCRIPTION FEES PAID TO ADAPPT DURING SIX MONTHS PRIOR TO WHEN THE CLAIM ACCRUED.
10.2 IN NO EVENT SHALL ADAPPT HAVE ANY LIABILITY TO CUSTOMER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.1 This Agreement commences on the Effective Date and continues until all licenses granted in accordance with this Agreement have expired or have been terminated. The term of each Order Form shall be as set forth therein, which shall automatically renew, unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
11.2 A party may terminate this Agreement for cause:
(i) upon 30 days written notice to the other party of a material breach of this Agreement if such breach remains uncured at the expiration of such period;
(ii) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; and
(iii) as otherwise provided herein.
11.3 The parties’ rights and obligations under Sections 4, 5, 7.3, 8, 9, 10 shall survive termination of this Agreement.
11.4 Within thirty (30) days after termination of this Agreement, Customer shall certify in writing to Adappt that all copies of the Services (where applicable), Updates, and Documentation in any form, including partial copies within modified versions, have been destroyed or returned to Adappt.
If you have any questions or comments about our Terms of Service as outlined above, you can contact us at [email protected].
301, Ashford Chambers, City Light Cinema,
Lady Jamshedji Road, Mahim West,
Mumbai, Maharashtra 400016
No. 40 (Old No. 1 74, 36th F Cross Road
Jayanagar 9th Block, Jayanagar,
Bengaluru, Karnataka 560041