The terms and conditions that follow set forth a legal agreement between You – the end user (either an individual or named company) (“User” or “You”), and Germinait Solutions Private Limited, a company incorporated under the Companies Act, 1956 and having its registered office at 20, Sheila Mahal, 1st Pasta Lane, Colaba, Mumbai 400 005 and another office at 501-502, Eco House, Vishweshwar Colony, Goregaon (East), Mumbai 400063 (“Germin8″ or “We”), relating to Germin8’s software application known as Social Intelligence (the “software application “) that you wish to access and use. These terms also apply to any Germin8 updates, supplements, Internet-based services, and support services, unless other terms accompany those services, in which event, those terms will apply.
Unless otherwise defined in the Order Form, the following terms have the following meanings in this Agreement:
Client : Germin8’s Client who has entered into an Agreement with Germin8 or filled up an Order Form to subscribe to the Services
Documentation: the document made available to the User by Germin8 online viz. at www.germin8.com or such other web address notified by Germin8 or emailed to the User from time to time which sets out a description of the Services and the instructions for use of the Services.
Mention: an individual post or excerpt of Raw Content
Order Form: means the form which the User or the Client has to fill up and forward to Germin8, setting down the number of Subscriptions he / it wishes to purchase or renew and the Services that he / it wishes to avail of, by reason of which the User is entitled to access and use the Services.
Raw Content: means User generated content and news content that is publicly available and obtained by Germin8 from the internet.
Services: means and includes the software application and any services that Germin8 may provide to enable the use of the software application or any Services that the User or the Client may have ordered under an Order Form.
Subscription : The User subscription for the software application purchased by the User or the Client which entitles the User to access and use the Services and the Documentation in accordance with this Agreement.
“Subscription Fees” means the fees payable by the User or the Client to Germin8 for the Subscriptions and Services and as set out in the Order Form.
Third Party Social Platform : a third Party social-media or news website from which Germin8 receives Raw Content for providing the Services, such as Facebook, Twitter, LinkedIn or YouTube.
Virus: anything or device (including any software, code, file or program) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience , including worms, Trojan horses, viruses and other similar things or devices.
Website: The term “Website” shall mean www.explic8.com, being the Website where the software application is presently available.
BY REGISTERING AND ACCESING OR OTHERWISE USING THE SOFTWARE APPLICATION AND SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THIS END USER LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS OR USE THE APPLICATION. “YOU” MEANS THE NATURAL PERSON THAT IS AGREEING TO BE BOUND BY THESE TERMS,
IF YOU REGISTER FOR A FREE TRIAL FOR THE SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
IF YOU COMPLY WITH THE TERMS OF THIS END USER LICENSE AGREEMENT, YOU HAVE THE RIGHTS BELOW FOR THE SUBSCRIPTION YOU PAY FOR.
You are only permitted to use the software application under the terms of this, Agreement, subject to your prior acceptance. Germin8 reserves all rights not expressly granted to you.
1. RIGHT TO USE:
2. FREE TRIAL:
If You register on our Website for a free trial, We will make one or more Services available to You on a trial basis, free of charge until the earlier of (a) the end of the free trial period for which You registered or are registering to use the applicable Services or (b) the start date of any Services subscribed by You. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
3. USAGE LIMITATION:
A. The Subscriptions purchased by the User hereunder are neither contingent on the delivery of any future upgrades or updates nor, dependent on any oral or written public comments made by Germin8 regarding future functionality or features or suitability for a particular purpose.
B. The Services may be subject to other limitations as specified in the Documentation or an Order Form.
4. RAW CONTENT AND THIRD PARTY SOCIAL PLATFORMS :
A. Germin8 does not own or control Raw Content. Raw Content shall not be considered User/Customer Data under any circumstances, including pursuant to the terms of any agreement Germin8 may enter into with the User for any other Services. Raw Content may be indecent, offensive, inaccurate, unlawful, or otherwise objectionable. Germin8 shall have no obligation to preview, verify, flag, modify, filter, or remove any Raw Content, even if requested to do so, although Germin8 may do so in its sole discretion, RAW CONTENT IS PROVIDED “AS IS”, EXCLUSIVE OF ANY WARRANTY WHATSOEVER. The use of Raw Content is at the sole risk of the User, and Germin8 shall not be liable to the User or any third party based on Raw Content.
B. The User shall enable Germin8 to access the User’s Third-Party Social Platform accounts and any websites operated by it or on its behalf with respect to the Services. Subject to the terms of this Agreement, the User acknowledges and agrees that Germin8 may access, collect, process, and/or store information or content, regardless of whether such content is User Data as defined hereinafter or Raw Content, from such Third-Party Social Platform accounts and/or websites in connection with providing the Services.
5. USER’S RESPONSIBILITY:
User is responsible for all activity occurring under his User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with User’s use of the Services, including those related to data privacy, international communications and the transmission of technical or personal data. User shall: (i) notify Germin8 immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Germin8 immediately and use reasonable efforts to stop immediately any copying or distribution of Raw Content that is known or suspected by User or (iii) not impersonate another User or provide false identity information to gain access to or use the Service, (iv) User shall not remove, suppress or modify any proprietary marking, including any trademark, service mark or copyright notice, logo or branding, appearing on the software application, Services and Website.
6. ACCOUNT INFORMATION AND DATA:
Germin8 does not own any data, information or material that User submits/ uploads to the software application in the course of using the Services (“User Data”). The User shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness or right to use of all User Data, and Germin8 shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any User Data except to the extent the same arises because of acts or omissions of Germin8 and/or related to malfunctioning of the software application Germin8 reserves the right to withhold, remove and/or discard/ destroy User Data without notice, for any breach of the terms of this Agreement.
7. SUSPENSION OF SUBSCRIPTION:
8. INTELLECTUAL PROPERTY RIGHTS:
A. Germin8 alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights such as inventions, patents, copyrights, design rights, trademarks, service marks, trade secrets, know-how, database rights and actual property rights, whether registered or not registered (collectively “Intellectual Property Rights”), in and to the Germin8’s Technology as defined hereinbelow as well as to the application and the Services and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by User or any other Party relating to the Services. This Agreement does not convey to the User any rights of ownership in or related to the Services, the Germin8 Technology or the Intellectual Property Rights owned by Germin8. This Agreement conveys to the User only the rights expressly granted to the User to access the Services and to use the software application within the limits and subject to the restrictions established by this Agreement. All other rights in the Services, the Website/ software application, including, but not limited to, all Intellectual Property Rights shall remain with Germin8.
B. Germin8 shall have royalty-free, worldwide, perpetual subscription to use or incorporate into the Services any suggestions, ideas, enhancement requests, feedback or recommendation provided by any User relating to the Website/ software application and the Services.
C. Despite anything to the contrary contained in this Agreement, User shall own and be entitled to use, license, distribute, assign and transfer any reports created by the User through the use or provision of the Services or the software application or the Website without being in breach of any Intellectual Property Rights of Germin8 and the Intellectual Property Rights in the such reports created shall vest always in the User.
9. CONFIDENTIAL INFORMATION:
9.1 “Confidential Information” means this Agreement and all trade secrets, business information, designs, algorithms, workflows, methodologies, business processes, details of the Services and results of any performances tests of the Services, and other information of any kind whatsoever that either Germin8 discloses to You or You disclose to Germin8, in writing, orally, visually, digitally or in any other medium.
9.2 Each party shall hold in confidence, and not use except for the purposes of this Agreement, all Confidential Information of the other party and must protect that Confidential Information as if it was their own Confidential Information so as to prevent its unauthorised disclosure or use, both during and after the term of this Agreement.
9.3 The provisions of this clause shall not apply to Confidential Information to the extent that it (i) becomes known to the general public without breach of the non-disclosure obligations of this Agreement; (ii) is obtained from a third party without breach of a non-disclosure obligation and without restriction on disclosure; or (iii) is required to be disclosed in connection with any suit, action or other dispute related to this Agreement, to the extent of the disclosure required.
9.4 The provisions of this clause will survive the termination of this agreement howsoever arising.
10 FEES :
10.1 You must pay Germin8 the Subscription Fees specified in the Order Form and in the manner set out in the Order Form in advance along with the duly filled Order Form.
10.2 In case of renewal of Subscription, the Order Form accompanied by the Subscription Fees shall be submitted at least 15 days before expiry.
10.3 If any Subscription Fees are payable upon invoice, you must pay all such invoices within 30 days. If you fail to do so we may, without prejudice to any other rights we may have, terminate or suspend your access to the Services.
10.4 Unless specifically stated otherwise, all invoices will be net of any withholding tax or other amounts that You are required to pay under applicable law (such as, but not limited to, foreign, national, state or local sales, use, service, value added, withholding or other taxes, customs duties or similar tariffs and fees).
11. TERM AND TERMINATION:
11.1 This Agreement allows use of the Services from the date We have received a signed Order Form from You or the Client for the duration specified in the Term of Contract section of that Order Form or until terminated. Unless otherwise stated on the applicable Order Form, this Agreement shall renew on the same terms on payment of renewal fees, 15 days prior to expiry.
11.2 Germin8 may terminate your right to use the software application if you commit a breach of the terms of this Agreement and shall prevent access to the same with immediate effect. You / The Client will however be liable to pay the balance Subscription Fees, if any, upto date of termination. All amounts paid to Germin8 are nonrefundable, even in the event of termination, Germin8 shall have no obligation to maintain or forward any User Data and may delete the same from the software application / Website.
11.3 All disclaimers of warranties and limitations of liability shall survive any termination of this Agreement.
12.1 We warrant that we have the right to provide the software application and Services in accordance with this Agreement, and subject to receiving Your immediate notification of any claim, Your full co-operation, and sole control of the action, We will at our own cost defend, or at our option settle, any action against You based on a claim that Your use of the Service in accordance with this Agreement infringes the intellectual property rights of any third party.
12.2 Germin8 provides the Software Application to you AS IS and without a warranty of any kind. Germin8 does not warrant that the operation of the software application and Services will be uninterrupted or error free.
13.1 You are responsible for ensuring that the software application and Services meet your requirements. You acknowledge that the internet is not a totally stable or secure environment, and that We will not be liable for any defects or delays in the Services, or anything else, which arise as a result of any problem associated with the internet.
13.2 In no event will We be liable to You or any other person whether in contract, tort (including negligence) or otherwise:
(a) for any indirect or consequential loss, or any loss of time, business, money, goodwill or data, or any failure to process data adequately or at all; or
(b) for any other loss which may arise from the use, loss of use, operation or modification of the Services or any defect therein or otherwise in an amount exceeding the amount that you have paid under this Agreement as Subscriptions Fees with regard to which such cause of action has arisen .
13.3The software application and Services are dependent on information obtained via the internet, and we cannot guarantee its accuracy, completeness or correctness. The Services, and any information that you receive through the software application, does not constitute professional advice of any sort. Any action taken by you as a result of your use of the Services is entirely your responsibility. Accordingly, we exclude all liability arising from your use of the Services.
13.4 The limitations on liability set out in this clause 13 shall not apply to any liability arising from death or personal injury caused by our negligence or for fraud.
14. SECURITY AND DATA PROTECTION:
The software application and Services must be used in conjunction with a unique ID (which may include user names, passwords etc.) supplied by Germin8 to you, which you must keep safe and confidential. You are responsible for all use of the Services made using such ID.
While we will use reasonable endeavours to ensure that no bug or virus is transmitted to you through the software application and Services, you are responsible for taking all appropriate measures to prevent harmful agents or components from entering your systems, and for backing up all your data.
Germin8 has the right to monitor, record and store all User activity in connection with each User’s use of the Service, and to extract logs from the recorded activity. Germin8’s employees may at all times access all of the stored information to the extent necessary to conduct maintenance and provide support services and to ensure that the User is using Explic8 in the manner and for the purpose provided under this Agreement and to ensure that there is no disruption to the Services.
16. GOVERNING LAW; COMPLETE AGREEMENT:
This Agreement constitutes the complete agreement between the parties with respect to the Services and Documentation and is governed by the laws of the Republic of India and the exclusive jurisdictions of the Courts of Mumbai, India.
17. ALTERATION AND MODIFICATION:
Germin8 may change the terms of this Agreement from time to time, as it deems fit.