SOFTWARE SUBSCRIPTION & SERVICES AGREEMENT
THIS SOFTWARE LICENSE & HOSTING SERVICE AGREEMENT (the “Agreement”) is entered into between Poly9 Inc, having its registered office at 1285 Koi Ter, Fremont, CA, 94536 (hereinafter referred to as “Poly9 Software”, “Licensor”, “We”, “Our”), and Clients (hereinafter referred to as “Client”, “Licensee”, & “You”). Poly9 Software hereby grants the right to use its Poly9 Software Program and Hosting Services (hereinafter referred to as “Product and Service”) to the “Client”, and the client acknowledges and agrees to comply with all of these Terms and consent to the transmission of certain information during Activation and for internet-based features of the software and hosting service. If you do not Accept and comply with these terms, you may not use the software and hosting service.
1) USAGE POLICY:
You will use the Poly9 Software’s Product and Service in a manner consistent with all local, states and Union regulations and laws. We reserve the right to suspend or cancel your access to any or all services provided by us when you are not in compliance to the terms of this agreement and/or we decide that your account has been inappropriately used.
2) DESCRIPTION OF SOFTWARE:
This agreement applies to the most recent release of Poly9 software program. Poly9 Software (hereinafter referred as Software) is a solution for manufacturers to create their product catalog, and manage their business. This software is available on website as well as on mobile app. In this software you have the option of choosing the features which you want to access and pay only for those features as agreed. The software accessible on compatible mobile devices will be available with limited features for its proper, easy and smooth functioning.
This agreement only gives you rights to use the Product and Service as per the features obtained and fees paid by you. You may use the Product and Service only as expressly permitted in this agreement. In doing so, you must comply with any technical limitations in the Product and Service that only allow you to use it in certain ways. Client has the exclusive right to use the Product and Service only for a license period or as per the rights granted under this agreement.
You may NOT distribute copies of or documentation of the software to others. THE ACTUAL SOFTWARE PROGRAM COMPONENTS REMAIN THE PROPERTY OF Poly9 Software. You may not sell, lease, rent, or otherwise distribute and/or sub-license the Software, including the manuals and documentation of same, to another person at any price. It is illegal to make copies of the Software Program, or Components. The Software Program and Components are protected by the copyright laws of United States pertaining to computer software. It is illegal to give copies of the Software Program, Components and Modules, or manuals and documentation of same to another person, or to duplicate the Software Program or Components and Modules by any other means, including electronic transmission. Software contains trade secrets and in order to protect such trade secrets you may not decompile, reverse engineer, disassemble, or otherwise reduce software program to human perceivable form. You may not modify, adapt, translate, rent, lease, or create derivative works based upon software program or any part thereof.
4) RIGHT TO USE:
Upon execution of this Agreement, you are granted right to use the Product and Service in accordance with the terms of this Agreement.
5) CLIENT’S RESPONSIBILITIES:
Effective use of Product and Service provided by Poly9 Software presumes a certain degree of knowledge and skill on the part of the Client. We will not be held responsible for your inability to use our Product and Service due to your lack of the requisite knowledge and skills. Poly9 Software will make reasonable effort in providing training and support for its Clients via user manual and online documentation
6) USE OF POLY9 SOFTWARE:
i) The software is licensed, not sold. Under this agreement, we grant you the right to access and use the software by authorized users on payment of certain fees and for the defined period but only if you comply with all the terms of this agreement. Poly9 Software grants you the license with right to use the software only upon the receipt of license fees as determined by Poly9 Software from time to time. The necessary instructions for operating the software are mentioned in the user manual available in the software after successful login.
ii) The components of the software are licensed as a single unit. You may not, however, transfer or sublicense the Licensed Programs to any third party, in whole or in part, in any form, whether modified or unmodified.
iii) Poly9 Software may use commercially reasonable efforts to provide corrections to Software errors. Any other upgrades or enhancements to the Software are not made available by Poly9 Software as part of this agreement and may be subject to additional charges.
7) LICENSE OF POLY9 SOFTWARE PROGRAM:
Poly9 Software grants you the license of Poly9 software program only upon receipt of license fee as determined by Poly9 Software, from time to time, in according to the terms of this Agreement.
i) In consideration of Poly9 Software providing the Product and Service as specified in this agreement, you shall make the payment of fee as per the invoice issued to you from time to time. The terms of invoice shall prevail over the terms of this agreement.
ii) Your right to use the Product and Service is limited to the license period. You may have the option to extend your Service upon paying of the requisite fees. If you extend your service, you may continue using the Product and Service until the end of your extended service period. After the expiration of the period, Product and Service will no longer be available for use.
iii) Poly9 Software shall make best efforts to install & activate the product and services from the date of receipt of fee into its bank account (subject to delay due to technical malfunctions). However, Poly9 Software will not be liable in any manner for any delay in activating your contract if it is due to reasons beyond the control of Poly9 Software / regulatory restrictions.
iv) You agree to pay the fee as specified in invoice copy. You may opt to pay the fees through
(B) Demand Draft
(C) RTGS (Real Time Gross Settlement);
(D) ECS (Electronic Clearing Service); and
(E) CCSI (Credit Card Standing Instruction).
Poly9 Software does not encourage/prefer that payments be made in cash. Any cash payments made by you, shall be at your sole risk, without any recourse to Poly9 Software.
v) In the event, if you fail to make any installments in time and as per the payment plan chosen by You, Poly9 Software may, in its sole discretion, suspend the services until necessary payments are made by you. The right of Poly9 Software to suspend the Service shall be without prejudice to Poly9 Software’s right to terminate the agreement, without any further notification.
vi) Poly9 Software shall be allowed to terminate the right to use the service to a particular licensor for non-payment of fees, for noncompliance, with any applicable rules, regulations or agreements regarding the use of the service or with applicable laws or regulations, or to exercise other remedies allowed at law or in equity. Poly9 Software will notify you of any such instance including the name of licensor and reason for termination.
vii) If any cheques are dishonored due to insufficient of funds, Poly9 Software may present the cheques before the banks until the cheques are honored or till the validity of cheques. You shall not raise any objection in this regards and also shall be responsible for any/all liability, if any incurred. Further you acknowledge that any dishonor of payments will attract provisions of Section 138 of the Negotiable Instruments Act 1881. You shall also be liable to pay interest @18 % per annum during that period. You will also be liable to reimburse dishonor charges as applicable for each default.
9) ISSUANCE OF INVOICE:
Poly9 Software will issue an invoice to you containing, inter-alia, the following details:
a) Client’s details
b) License Fees
c) Description of the features of Software, if required
d) Type of access chosen by you (either website or App or both) if required.
e) payment mode and payment schedule
Poly9 Software is entitled to levy you for all the statutory and local taxes and charges (now in force or enacted in future) that are or may be imposed on the said Services. You further agree that the taxes and charges payable under this Clause is in addition to the license fee paid by You for the Services rendered by Poly9 Software. The Taxes would include Service Tax & VAT (Value Added Tax) or other taxes as applicable. You will also be liable to deduct taxes as per the applicable laws of the country and provide the proof of taxes to Poly9 Software.
11) HOSTING SERVICE:
Poly9 Software agrees to host and maintain your website on its server(s), as outlined in this Agreement. Poly9 Software will take all reasonable precautions to implement data backup services on the data stored in your websites. Poly9 Software agrees to monitor hosting services and make sites available to Internet users. However, Poly9 Software is not responsible for unintentional damages or loss, either incidental or direct, caused by a loss of your information.
You shall acquire and maintain the Internet Protocol address and corresponding domain names for your website. Poly9 Software may help you in obtaining the domain names and Internet Protocol address and maintaining the same at additional cost decided by Poly9 Software from time to time. Poly9 Software shall execute the actions necessary to establish the address of your website, or to delete the address in the event your relationship is terminated or website cancelled in accordance with the rules, and regulations related to the product. Poly9 Software shall provide you the ability to access data on your Website and make changes with a password set by you. Your connection will be secured by the encryption.
You shall be solely responsible for providing, updating, uploading and maintaining your website or server and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through your website or server including, but not limited to, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, meta tags, domain names, software and text. The Clients shall indemnify and keep us indemnified in respect of any legal suits/issues arising out of contents uploaded by the client on our platform. You acknowledge and agree that in the course of providing you with technical assistance, it may be necessary for our support staff to modify, alter or remove the content of your hosted product. Your website or server content shall also include any registered domain names provided by you or registered on behalf of you in connection with the Services.
You acknowledge that responsibility for all content provided by you to Poly9 Software for the performance of the Services or otherwise included in the Website is the sole and exclusive responsibility of yours and that Poly9 Software will not be held responsible in any way for any copyright infringement or violation, or the violation of any other person’s rights or the violation of any laws, including but not limited to infringement or misappropriation of copyright, trademark or other property right of any person or entity, arising or relating to the Content.
a) Poly9 Software will use commercially reasonable efforts to make available Poly9 Software Support Center on Monday through Saturday, during Poly9 Software’s normal business hours, excluding Poly9 Software’ scheduled holidays. Poly9 Software will provide you all the customer and technical support via Poly9 Software, telephone at 080-800-POLY9 or through email email@example.com. However, our support services shall be limited to providing matter pertaining our software under this agreement not otherwise.
b) We shall not provide technical support for any third party products/software of any kind, incorporated by you into the website. On best effort basis, we will use all commercially reasonable means to resolve your issues in this Agreement.
c) Poly9 Software will have no obligation to provide Maintenance Services for any Software that are damaged, modified (by anyone other than Poly9 Software), incorporated into other software, or installed in any computing environment not supported by Poly9 Software program; or for any version of a software program other than the latest and immediately preceding version; or for any problems caused by your negligence, abuse, misuse, or by any causes beyond Poly9 Software’ reasonable control.
13) REFUND POLICY / RETURN POLICY:
All fees paid by you to Poly9 Software are billable based on your billing cycle. Refunds and returns are accepted and will be prorated based on the number of days of used from the last billing cycle. Until you terminate this Agreement, as specified in this agreement, you are responsible for paying the fee, regardless of whether you use our Product and Service or not.
13B) CANCELLATION POLICY:
You may cancel your service at any time. You will have access to your cancelled account for 30 days. After 30 days, all your data will be deleted from Poly9 servers.
14) NON-PERFORMANCE AND DELAYS:
Poly9 Software shall not be liable for any loss or damage resulting from non-performance by Poly9 Software or its suppliers under this Agreement or from any delay in delivery of the Product and Service due to fire, labour unrest or strikes, delays in transportation or shipping, acts of God, act of Nature, war, acts of a public enemy, accident, hacking, technical glitch or any other cause or causes beyond the control of Poly9 Software.
15) THIRD PARTY CONSULTANT:
Poly9 Software will not be liable for any costs incurred as a result of Client, for any reason, employing the services of a third party consultant or other technical personnel.
This agreement is non-transferable or assignable by the Client without the prior written consent of Poly9 Software.
17) FEES CHANGE:
Poly9 Software reserves the right to increase/raise the fees, at its discretion. The fees will only become effective from the next subscription invoice. For clarity, additional purchases of the service/ other features will be subject to the new pricing.
18) CLIENT’S OBLIGATION:
i) You represent and warrant that You would be solely responsible and liable for the information uploaded, edited, modified in the Software provided by Poly9 Software.
ii) You shall be solely responsible and liable for any third party disputes arising out of your usage of our services.
iii) You acknowledge and confirm that you will be subject to the rules, guidelines, policies, terms, and conditions applicable to the Poly9 Software. Poly9 Software reserve the right, at its discretion, to change, modify, add or remove portions of these Terms, at any time without any prior written notice to you.
iv) You undertake to provide a copy of the licenses/ registrations (in case of corporate body) including but not limited to valid Identity proofs such as ration card, adhar card, voter id card and residential proofs such as electricity bill, telephone bill etc., (in case of individual) required to use our services.
v) You acknowledge that any breach of the covenants set forth here may be a cause for termination of your service by Poly9 Software, at its sole discretion.
vi) You agree that at all times, you will maintain appropriate records relating to the usage of our services and shall allow Poly9 Software/ Government, /statutory authorities and any other appropriate entities to examine, inspect, audit and review all such records and any source document pertaining to the services.
vii) You hereby undertake to upload the terms and conditions on your website which will be applicable to the user of your websites who visit your website for any purposes including but not limited to buys the product/s or avails the services whether online or otherwise.
viii) You shall ensure and take all appropriate security measures to prevent unauthorized disclosure and/or access of any details such as user ids, passwords, sensitive personal information or any other information of any end-customers/ Customers, third party which are obtained by you in any manner whatsoever. You shall make good to us any losses incurred by us due to security breach at your end.
ix) You shall make available any and all customer assistance channels to assist and guide the end-customers/ Customers using your services and respond to any queries and address any issues that may arise in using Poly9 Software services.
x) You shall cooperate with Poly9 Software and render assistance to it for connecting the respective Poly9 systems with First party or third party services that are necessary for Poly9 Software to render its services to you.
xi) You shall take all such precautions and measures to ensure that there is no breach of security. You shall work upon developing and implementing various security mechanisms at your own cost and ensure that there are proper encryption and robust security measures to prevent any hacking into the information and other data store on your computer system.
xii) You acknowledge that responsibility for all content provided by you to Poly9 Software for the performance of the Services or otherwise included in the Website is the sole and exclusive responsibility of yours and that Poly9 Software will not be held responsible in any way for any copyright infringement or violation, or the violation of any other person’s rights or the violation of any laws, including but not limited to infringement or misappropriation of copyright, trademark or other property right of any person or entity, arising or relating to the Content.
xiii) You before providing the services to the end user through (Poly9), shall be liable to check VAT/any other tax rates applicable on each and every product sold or services provided by you. Poly9 Software shall not be liable for any error in any VAT/any other tax rates in the services provide through Poly9.
xiv) Poly9 Software shall not be liable to update any changes in the VAT/any other tax rates in Poly9. You shall be liable to update the VAT/ any other tax rates from time to time as per applicable laws on the products sold or services provided by you.
xv) You acknowledge and agree that we may elect at its sole discretion to monitor the Content. We shall have the right, but not the obligation, to remove the content which is deemed, in our sole discretion, harmful, offensive, in violation of any provision of this Agreement or breaches any law.
xvi) You agree to use the Services for legal purposes only. In the event that we become aware or reasonably believe, in its sole discretion, that the Services is being used for illegal purposes, we shall immediately terminate the Agreement and the Services as per our discretion, without notice, in addition to any remedies to which it (Poly9 Software) may be entitled under law.
xvii) Any attempt to undermine or cause harm to a server of ours is strictly prohibited. This includes, but is not limited to, attempting to gain access to password files other than your own, attempting to gain unauthorized access to other accounts on your server, or anything that causes server malfunction. Failure to comply is subject to immediate account deactivation without refund.
xviii) On the receipt of payment Poly9 Software grants you the right/access features of the Poly9 platform based on your subscription terms. If you intent to utilize additional Poly9 features and services you will have to make additional payment for availing Poly9 on the price/charges determined by Poly9 Software from time to time.
You acknowledge that you are not acquiring title to or any interest in any Poly9 Software Product and Service other than right to use the same. Your right to use of our Product and Service is conditioned upon your timely payment of the full amount of Fees due for Product and Service and your compliance with the terms of this agreement, including the following restrictions. When the Term expires, your rights to use the Product and Service also expire and you may no longer use the Product and Service.
Client will not make any unauthorized, false, misleading, or illegal statements in connection with this Agreement or regarding the Product and Service. Client will not make any representations or warranties concerning the Product and Service on behalf of Poly9 Software.
19) DISCLAIMER OF WARRANTY:
i) This Product and Service is available to you “as-is whereas basis.” Poly9 Software will make all reasonable efforts to provide uninterrupted access and hosting services subject to down time and regular maintenance. Poly9 Software shall not be responsible or liable if any unauthorized person hacks into or gains access to your website. In addition, Poly9 Software shall not be liable to you for any loss or damage whatsoever or howsoever caused or arising, directly or indirectly, including without limitation, as a result of loss of data or business; interruption or stoppage to the access to and/or use of our service; interruption or stoppage of services etc.
ii) Poly9 Software’s sole obligation and your sole and exclusive remedy in the event of interruption services, or loss of use and/or access to service, shall be to use all reasonable endeavors to restore the Services as soon as reasonably possible.
20) LIMITED WARRANTY:
i) Except for the above warranty, this software program, and components and modules are provided “as is whereas basis”. the entire risk as to results and performance of the software program, and components and modules is assumed by client. neither Poly9 Software, nor agents of Poly9 Software, nor the creators of the software program, and components and modules, warrant or guarantee the result to be obtained with the software program, and components and modules in terms of correctness, reliability or legality. the above is the only warranty of any kind, either expressed or implied, including but not limited to the implied warranty of the merchantability and fitness for a particular purpose
ii) the liability of Poly9 Software or any agent of Poly9 Software or any creator of this software program, and components and modules under the limited warranty set forth above shall be limited to and not exceed the amount paid by client for the program software media and related software and materials. in no event shall Poly9 Software, or any agent of Poly9 Software, or any creator of this software program, and components and modules, be liable for any loss of profits or any other damages including but not limited to special, incidental, consequential, or other damages. some states do not allow limitations or exclusions of liability of the above limitations or exclusions may not apply to client.
You shall defend, indemnify, and hold harmless Poly9 Software, its officers, employees, agents, Representatives from and against any claims, liability(ies), demands, losses, damage, deficiencies, actions, judgments or cause of action, assessments, interests, penalties and other costs or expenses incurred or suffered by Poly9 Software (including, without limitation, reasonable attorneys’ fees and expenses) arising out of or in relation to or in connection with:
i) breach of any provision of this Agreement or non-performance of any of its obligations under this Agreement by you; or
ii) anything done or omitted to be done by you due to gross negligence, willful default or willful misconduct you or any of your officers, directors, employees or agents.
iii) or resulting from Your business operations or use of Software provided by Poly9 Software.
i) The right to use our Product and Service hereunder shall continue subject to payment of fees as prescribed by Poly9 Software, time to time or unless and until terminated pursuant to Clause (ii) hereof and subject to your proper performance of its obligations hereunder.
ii) Poly9 Software has the right to terminate this Agreement upon any material breach of terms and conditions by you. In the event of termination by client for any reason, Poly9 Software will not refund the amount paid by you. On termination you shall forthwith return or destroy all data, information and software program and its updated versions, and provide written intimation of the same to Poly9 Software.
iii) You agree that any breach of one or more provisions of this Agreement that threatens to, or causes Poly9 Software substantial harm is a material breach. Furthermore, any breach of the confidentiality, or noncompetition provisions by you, or failure to make payments, shall be considered material breaches. Furthermore, any conduct or negligence that adversely affects the business or goodwill and brand name of Poly9 Software will be considered a material breach Poly9 Software Under such circumstances shall terminate the agreement without any further notice.
iv) Upon termination of this agreement, Poly9 Software shall retain all proprietary technology and services provided to you, and shall render inoperable all Subscriber websites and software after allowing for a commercially reasonable and orderly transition by you. Each Party shall return or destroy all originals and copies of any Confidential Information of the other Party regarding this agreement.
23) PROHIBITED ACTIVITIES:
i) The following content and activities may not be displayed or promoted by you and any person on your behalf nor Associated in any way with the Client’s account or Poly9 Software’ services. Poly9 Software shall be the sole arbiter as to what constitutes violation of this provision.
ii) You and any person on your behalf shall not host, display, upload, modify, publish, transmit, update or share any information on the website that belongs to another person and to which the user does not have any right to;
iii) You and any person on your behalf shall not host, display, upload, modify, publish, transmit, update or share any information on the website that is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, pedophilic, libelous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;
iv) You and any person on your behalf shall not host, display, upload, modify, publish, transmit, update or share any information on the website that infringes any patent, trademark, copyright or other proprietary rights; or that violates any law for the time being in force;
v) You and any person on your behalf shall not host, display, upload, modify, publish, transmit, update or share any information on the website that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource;
vi) You and any person on your behalf shall not host, display, upload, modify, publish, transmit, update or share any information on the website that threatens the unity, integrity, defense, security or sovereignty of USA, friendly relations with foreign states, or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any other nation.
vii) You and any person on your behalf shall not host, display, upload, modify, publish, transmit, update or share any information/contents on the website that promotes any illegal or prohibited activity.
viii) You and any person on your behalf shall not host, display, upload, modify, publish, transmit, update or share any information on the website that may be damaging to Poly9 Software’ servers or to any other server on the Internet.
ix) You and any person on your behalf shall not host, display, upload, modify, publish, transmit, update or share any information on the website that promotes or sale of unsolicited or bulk e-mail (SPAM) software or services or unsolicited or bulk e-mail or group posts (SPAM) which references and/or is traceable to Poly9 Software and/or any Client in any way.
x) Your sending any promotional emails/SMS to your consumers and Poly9 Software assumes no responsibility, liability including but not limited to the issues arising in connection with your customers being registered in DO NOT CALL/ DND registry with the Telecom Regulatory Authority of USA.
xi) You and any person on your behalf must vigilantly comply with all applicable law, including, without limitation to, Information Technology Act, 2000 as amended by the Information Technology (Amendment) Act, 2008, and the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 and rules and regulations made thereunder.
xii) You and any person on your behalf shall not, knowingly or intentionally conceal, destroy or alter or intentionally or knowingly causes another to conceal, destroy or alter any computer source code used for a computer, computer program, computer system or computer network of Poly9 Software, without the permission of Poly9 Software.
xiii) You and any person on your behalf shall not, fraudulently or dishonestly, make use of the electronic signature, password or any other unique identification feature of any other person and you shall not misuse the computer resource of Poly9 Software, without it permissions, and further shall not use the said devices for cheating by personating.
xiv) You and any person on your behalf shall not access or use of an Internet account or computer resources without the owner’s authorization and further shall not download, copy or extract any data, computer database or information from such computer network in any manner whatsoever;
xv) You and any person on your behalf shall not introduce or causes to be introduced any computer contaminant or computer virus into any computer system or computer network and damages or causes to be damaged any computer system or computer network, data, computer database or any other programs residing in such computer system or computer network.
xvi) You and any person on your behalf shall not, disrupt or causes disruption of any computer, computer system or computer network or denies or causes the denial of access to any person authorized to access any computer system or computer network by any means.
xvii) You and any person on your behalf shall not, destroy, delete or alter any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means and steel, conceal, destroy or alter or cause any person to steal, conceal, destroy or alter any computer source code used for a computer resource with an intention to cause damage. xviii) You agree that you and any person on your behalf shall not indulge or conspired, in any manner whatsoever in the aforesaid illegal activities. Poly9 Software shall have the right, but not the obligation, to remove the Content which is deemed, in Poly9 Software’s sole discretion, harmful, offensive, in violation of any provision of this Agreement or breaches any law.
xix) You are strictly prohibited from installing any third party software on our services without the express written authorization of Poly9 Software. In the event that you install third party software on Poly9 Software’s servers without the express written authorization of Poly9 Software, Poly9 Software at its discretion shall have the right to terminate the Services without any notice.
You may not copy or use any Software program in any manner that is not expressly allowed under this agreement; You may not use our Software program or its output to develop or enhance any product that competes with a Poly9 Software software; You may not disclose the results of any benchmarking of a Software program (whether or not the results were obtained with assistance from Poly9 Software) to any third party; or You may not use a Software program in the development of any product if the failure or malfunction of that product could reasonably be expected to result in personal injury, death, or catastrophic loss.
You are prohibited to use, publish, email, reproduce, disclose, furnish, reveal, communicate, transfer or make accessible to any other person for any purpose any information that you encounter, acquire or learn about in connection with this agreement and Poly9 Software has not given you written authorization to disclose or made available to the public, except as needed in the course of and for the benefit of the client. You are not indulging in any kind of piracy of software and also unauthorized, copying, downloading, sharing, selling, distribution or installing multiple copies onto personal or work computers of copyrighted software.
You are strictly prohibited from installing any third party software on our program without the express written authorization of Poly9 Software. In the event that you install third party software on Poly9 Software’s servers without the express written authorization of Poly9 Software, Poly9 Software at its discretion shall have the right to terminate the Services without any notice
24) CONTENT OWNERSHIP:
i) Poly9 Software maintains control and ownership of any and all IP numbers and addresses that may be assigned to Client and reserves in its sole discretion the right to change or remove any and all IP numbers and addresses. Client shall keep the rights of ownership and use of his own domain name(s) even if Client changes Poly9 Software. In case of disputes regarding authority over domain names, Poly9 Software will follow industry standard practice of giving ultimate authority to the domain name registrant. Poly9 Software maintain control and ownership of any copyright, proprietary and/or licensed software, scripts, programs, images, or other electronic data or media installed and or provided by Poly9 Software.
ii) All contents stored by you shall at all times remain the property of yours. You grant to Poly9 Software non-exclusive, world-wide license to the content to the extent necessary for Poly9 Software to host the website and provide services. Poly9 Software uses the information it collects through the software features to upgrade or fix the software and otherwise improves the products and services. Additionally, you agree that Poly9 Software may use and disclose the information and you would be deemed to have given your consent to contact you for any business promotion of Poly9 Software and its affiliates
During the term of this Agreement, and for a period of 3 (three) years after the termination of this Agreement, You agree not to develop or create any program of its own that is comparable in functionality or would compete with Poly9 Software’s service in any way. You shall not directly, or through third person(s) or entity(s), attempt to develop, engineer, reverse engineer, create or re-create, any service that is comparable in functionality or concept with our service as outlined in this agreement. You shall not decompile, disassemble, or reverse engineer Poly9 Software Materials or attempt to discover source code or other information concerning Poly9 Software Materials including, without limitation, its design. You will not create any derivative work, program or product based on, or derived from Poly9, or use any information learned from Poly9 to create any other program or product. You will not allow, encourage, facilitate, or assist any third party to do anything. You would be precluded from doing under this provision.
You shall not disclose to any third party or use, except in connection with the performance of Services hereunder, any confidential information of Poly9 Software’s business (“Confidential Information”) in the course hereof. Confidential Information shall include;
i) Poly9 Software program and plans for the Website
ii) Specifications of Poly9 Software’s software program and any future development plans
iii) Concepts relating to Poly9 Software program not disclosed from the operation of the Website
iv) Trade secrets of Poly9 Software
v) Information derived from providing the Services when Website is in operation, including but not limited to:
1) identities, contact information and credit card information of users (if applicable)
2) confidential information of the Website’s use, such as number of users, unique visitors and unique visits (if applicable)
3) Notwithstanding the forgoing, this confidentiality obligation shall not apply to any information which is already known to the public or produced in compliance with applicable
law or a court order, provided you shall promptly notify Poly9 Software so as to enable Poly9 Software to seek a protective order or other appropriate remedy. You will return all the confidential information to Poly9 Software within 30 (thirty) days from the expiry or the early termination of this agreement. The obligations contained in this Clause shall survive the termination of this Agreement.
Notwithstanding the forgoing, in the event Poly9 Software receives a validly issued administrative or judicial order, notice, warrant or other process that requires Poly9 Software to share/disclose the confidential information then it shall be free to disclose all or part of the Confidential Information or is otherwise required to disclose any Confidential Information in order to comply with any law.
Poly9 Software and Client will mutually keep the data private and not share or reuse the other party’s data, and put in place all normal reasonable security measures to protect each other’s data, including corresponding NDA agreements with employees and contractors. Client recognizes that Poly9 Software can be required to provide data to legal authorities upon valid legal injunction, and to comply to such injunctions with or without Client’s authorization or consent. Furthermore, Client understands there is no absolute security, and in order to limit consequences of any accidental exposure, Client agrees to not use the Hosting storage for data beyond the data required for the Hosting. Client authorizes Poly9 Software to backup and archive the Servers on-site and off-site, including Client’s data and Sites for the purpose of continuous Hosting operations, and to maintain Server logs required for Poly9 Software’ technical operations and legal compliance. This authorization does not imply that Poly9 Software must make or keep such backups, archives and logs. In case of suspected unauthorized use, or complaint, Poly9 Software can, but must not, inspect Client data and traffic for compliance check purposes, prior to his decision to take measures.
Client has taken adequate encryption and security measures to maintain its computer resources secured under this agreement. You must ensure that you use the software through a secure network that requires a protective security safeguards. You shall comply with the security standards, as prescribed by the governments and implements the security management and procedures, network architecture, software design, and other critical protective measures to protect data and information.
You shall be solely responsible for undertaking measures to:
i) prevent any loss or damage to your website or server content;
ii) maintain independent archival and backup copies of your website or server content; and
iii) ensure the security, confidentiality and integrity of all your website or server content transmitted through or stored on our servers.
iv) we shall have no liability to you or any other person for loss, damage or destruction of any of your content. You shall not use the Service in any way, in our sole discretion, that shall impair the functioning or operation of our services or equipment. Specifically, by way of example and not as a limitation, you shall not use the Services as:
i) a repository or instrument for placing or storing archived files; and/or
ii) placing or storing material that can be downloaded through other websites. You acknowledge and agree that we have the right to carry out a forensic examination in the event of a compromise to your server or account. Any attempts to undermine or cause harm to any server is strictly prohibited. This includes, but is not limited to attempting to gain access to password files other than your own, attempting to gain unauthorized access to other accounts on your Server, or anything that causes Server malfunction. Failure to comply is subject to immediate account deactivation.
Poly9 Software will exercise no control whatsoever over the content of the information passing through the network, email or website.
30) AUDIT AND COMPLIANCE:
Poly9 Software may audit (using its own employees and those of an independent auditing firm that is subject to appropriate confidentiality obligations) your use of the Software and Documentation to verify your compliance with this agreement. You agree to give Poly9 Software (or the auditing firm) reasonable access to your facilities and records for purposes of conducting these audits. Poly9 Software will give you reasonable advance notice before conducting an audit. Audits will be conducted during normal business hours and no more than once per year, unless Poly9 Software has a good-faith basis for believing that more frequent audits are warranted. Poly9 Software will bear all the costs it incurs (including the fees and expenses of the auditing firm, if any) in conducting an audit, unless the audit reveals that you have failed to comply with this agreement in a material way, in which case you agree to reimburse Poly9 Software for these costs, in addition to other Damages.
31) INTELLECTUAL PROPERTY RIGHTS:
i) This Software is owned and registered as per the laws of USA and is subject to protection under the copyright, patent and trademark laws of the USA and other countries. You shall not have any right to use or reproduce in any manner any intellectual property owned by Poly9 Software and its parent company Poly9 Inc (California, USA), including any trademarks, trade names, logos etc.
ii) Poly9 Software and its parent company Poly9 Inc owns and retains all ownership and proprietary rights relating to services and its programming architecture, including, but not limited to, HTML code, program code, graphical code, design, technique, and all proprietary rights in the Services and all software code and content relating to the Services etc.
iii) This Agreement does not transfer, sell, assign, or entitle you to any of our source codes, programming documentation, or trade secrets except as provided in this Agreement. During the term of this Agreement, Poly9 Software grants you, a right to use our services in connection with the use and maintenance of our service, consistent with the terms of this Agreement.
i) No Guarantee of Business: Poly9 Software does not guarantee that by installing and using of this software, your business/profit will increase.
ii) No Marketing: Poly9 Software is not obliged and does not promote your business. Poly9 Software’s obligation under the Contract is limited to the obligations of providing access to software upon the receipt of requisite payment from your end.
iii) Entire Agreement: This Agreement constitutes the entire Agreement and understanding between the Parties, and supersedes any previous agreement or understanding or promise between the Parties, regarding the Software.
iv) Supersession- This Agreement supersedes all prior agreements and understandings (whether written or oral) between Poly9 Software and the Clients, or any of them, with respect to the subject matter hereof.
v) Amendment – Poly9 Software is entitled to modify the Terms of Service as it deems fit and will not be required to provide a specific notice of such change to You. It shall be Your sole responsibility to visit Poly9 Software Website and update himself / herself of the changes to the Terms of Service.
vi) Severability: If any provision of this Agreement is or becomes, in whole or in part, invalid or unenforceable but would be valid or enforceable if some part of that provision was deleted, that provision shall apply with such deletions as may be necessary to make it valid. If any Court/Tribunal of competent jurisdiction holds any of the provisions of this Agreement unlawful or otherwise ineffective, the remainder of this Agreement shall remain in full force and the unlawful or otherwise ineffective provision shall be substituted by a new provision reflecting the intent of the provision so substituted.
vii) Waiver: Unless otherwise expressly stated in this Agreement, the failure to exercise or delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies, and no single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy.
viii) Survival of Provisions: The terms and provisions of this Agreement that by their nature and content are intended to survive the performance hereof by any or all Parties hereto shall so survive the completion and termination of this Agreement.
ix) Force Majeure: Poly9 Software shall not be responsible for any delay in the performance of any terms and conditions hereunder to the extent that such delay is caused by war, revolution, riot, act of public enemy, terrorism, sabotage, epidemic, quarantine restrictions, accident, fire flood, tempest, earthquake, civil commotion, governmental action, Acts of God (force majeure ) including, but not restricted to, strike, lock-out, fire, break-down, war, destruction of network, hacking, virus prone, technical glitch, defacement, sabotage, stoppage of display or transmission of the website, Act, or Regulation, or restriction of Government, inability to secure Government authorization, or approval, or any other cause beyond their reasonable control, including the breakdown of systems and any other causes beyond its reasonable control.
x) Arbitration: In the event a dispute arises between the parties under this AGREEMENT, the parties shall attempt to amicably resolve the dispute through mutual discussions. Where the dispute is not resolved for a period of 30 (thirty) days from the date of the dispute, either party can, upon giving a written notice to the other party, declare its intention to initiate arbitration proceedings. The arbitration will be conducted in English in accordance with the rules prescribed under the Arbitration and Conciliation Act, 1996. The venue for the arbitration shall be San Francisco, California. The arbitration shall be conducted by a sole arbitrator to be appointed by Poly9 Software at its sole discretion. The award of the arbitrator shall be final and binding on the parties. Each party shall bear its own cost of arbitration.
xi) Assignments: You shall not assign, in whole or in part, the benefits or obligations of this Agreement unless otherwise mutually agreed in writing.
xii) Notices: All notices, requests, demands and other communications hereunder shall be in writing and the same shall be deemed to be served, if personally delivered or sent by registered mail at the addresses as mentioned in the title to this document. Notices may also be sent through emails.
xiii) Non-Exclusive Right: It is expressly agreed and understood between the parties hereto that this Agreement is on a non-exclusive basis and Poly9 Software is free to provide similar services to third party.
xiv) Governing Law and Jurisdiction: This AGREEMENT shall be governed and construed in accordance with the laws in United States of America. Any dispute arising hereunder shall be subject to the exclusive jurisdiction of the courts in California, USA
THIS NON-DISCLOSURE AGREEMENT (the “Agreement”) is entered into between Poly9 Inc, having its registered office at 1285 Koi Ter, Fremont, CA, 94536(hereinafter referred to as “Poly9 Software”, “Licensor”, “We”, “Our”), and Clients (hereinafter referred to as “Client”, “Licensee”, & “You”)
“Clients” and “Poly9 Software” are individually referred to as Party and collectively as “Parties”
WHEREAS, Clients is desirous to take services of Poly9, and to take license of Poly9 software platform. During the course of this interaction, will disclose and receive information of a proprietary nature relating to the business concept, the business model and other services.
WHEREAS, the Party disclosing the information is hereinafter referred to as Disclosing Party and the Party to whom the information is disclosed to is hereinafter to as the Receiving Party.
WHEREAS, the Disclosing Party considers the information as proprietary and of confidential nature, and is willing to provide such information on a confidential basis to Receiving Party for the purpose of discussing mutual business opportunities related to business and financial business advisory;
NOW, THEREFORE, the Parties hereto agree as follows:
- For purposes of this Agreement, the term “Proprietary Information and/or Confidential Information” shall mean that information from the Disclosing Party under this Agreement which is in written, graphic, recorded, photographic or any machine readable form or oral information which is reduced in writing, conspicuously marked or otherwise labeled or identified as “Confidential”, “Proprietary” and/or “Company Private” or in any manner indicating its confidential and/or proprietary nature and delivered to the Receiving Party within ten (10) days of the initial disclosure. Any information related to setup, implementation, data and the way it is designed, processed shall be treated as Proprietary. Proprietary Information shall also include information that a Party knows, or has reason to know, is confidential, trade secret or proprietary information of the disclosing Party. Proprietary Information may only be reproduced upon written authorization of the Disclosing Party and only for a specified number of copies.
- All rights to the drawings, samples, information and other data, as well as the proprietary and novel features thereof, are proprietary to and reserved by the Parties. The Receiving Party shall not manufacture, use, sell, or disclose to others / any third party, such Proprietary Information unless and until expressly authorized to do so by the Disclosing Party.
- The drawings, data and other Proprietary Information are and remain the property of the Disclosing Party and no license or other rights to Proprietary Information is granted or implied hereby. The Proprietary information are not to be decompiled, reverse engineered, copied, disclosed, or reproduced without the express written permission of the Disclosing Party and are to be returned to the Disclosing Party upon request, at which time all use by the Receiving Party shall cease or at the time of termination of the Agreement.
- The Receiving Party covenants and agrees that it will use the Proprietary Information for its internal use consistent with this Agreement only and shall disclose such Proprietary Information to any person or persons exclusively on a ‘need to know’ basis for the purposes hereunder and it will safeguard the Proprietary Information with the same standard of care and precaution it shall use for its own confidential information and that it is bound by a nondisclosure agreement with terms and conditions in substance at least as strict as those contained in this Agreement.
- Subject to the foregoing each party shall restrict access to information received from another party to only those of its employees, officers, directors, affiliates, consultants, agents, professional advisors (sub recipient) to whom such access is necessary for carrying out the purpose and advise sub recipient of the obligations assumed herein. In case of breach of terms of the Agreement, the Receiving Party along with sub recipient shall be liable.
- The Receiving Party shall in no event use a lower degree of care in safeguarding the Confidential and/or Proprietary Information than it uses for its own information of like sensitivity and importance and upon discovery of any unauthorized disclosure of Proprietary Information in its possession, the Receiving Party shall use its best endeavors to prevent any further disclosure or unauthorized use thereof. The Receiving Party shall not reproduce in any form any Confidential and/or Proprietary Information, except as required for achieving the aforementioned purpose and all Confidential and/or Proprietary Information shall remain the property of the Disclosing Party.
- Either Party undertakes not to discuss, disclose or divulge to any competitor of the Disclosing Party or sub-contractor or any ancillary unit of such competitor or any company, firm or person which/who is likely to be a competitor or is a sub-contractor or ancillary unit of such competitor or commence any business using the skill and knowledge obtained under this Agreement.
- It is expressly understood that the Parties shall not be liable for disclosure of any such Confidential and/or Proprietary information if the same:
- was already in the public domain at the time it was disclosed;
- was known to the Receiving Party to be free of restriction at the time of disclosure;
- is disclosed with the prior written approval of the Disclosing Party;
- was independently developed by the Receiving Party and that it was not solely derived from the Proprietary Information;
- becomes known to the Receiving Party free of restriction from a source other than the Disclosing Party without breach of this Agreement;
- is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the Disclosing Party be given reasonable notice of such disclosure, if possible. So that the Disclosing Party may seek a court order to protect the Confidential Information.
- This document contains the entire agreement between the Parties as to the subject matter hereof and supersedes any previous or contemporaneous understandings, commitments, or agreements, oral or written, as to such subject matter. This Agreement may be amended or modified only with the mutual written consent of the Parties. Neither this Agreement nor any right granted hereunder shall be assignable or otherwise transferable.
- Either Party may terminate this Agreement forthwith upon the occurrence of any of the following events of default:
- If the other Party is liquidated or dissolved, except when such liquidation, dissolution is pursuant to a merger or corporate reorganization for tax purposes.
- If the other Party breaches any term of this Agreement.
- This Agreement shall be valid for two (2) year from its effective date. Upon expiration or termination of this Agreement, the rights and obligations of the Parties shall cease except any obligations incurred by either Party prior to the expiration of this Agreement shall survive for a period of one (1) year and be governed by the terms herein. Upon such termination or expiration, all use by the Receiving Party of Proprietary Information received shall cease and all exchanged Proprietary Information and (at the request of the Disclosing Party) all copies reproduced shall be returned to the Disclosing Party or destroyed (and written certificate of destruction provided by the Receiving Party to the Disclosing Party), or otherwise disposed of as mutually agreed in writing.
- If either Party shall be considered in breach of this Agreement or in default of its obligations hereunder because it fails to perform or observe any or all of the terms of this Agreement resulting directly or indirectly from causes beyond the reasonable control of such Party, such as but not limited to, acts of God, Civil or military authority, acts of the public enemy, war, riots, civil disturbances, insurrections, accidents, explosions, fires, earthquakes, floods, transportation embargoes, epidemics, acts of government, its agencies or officers, or any other legitimate cause beyond the reasonable control of the Parties, the Party whose performance is affected or is likely to get effected thereby, shall notify the other Party of the occurrence of such cause and the time allowed for performance by the affected Party will be extended for the duration of such cause.
- This Agreement does not require, nor may it be implied that either Party shall be required to disclose any information or data hereunder. No technical information or data will be disclosed by either Party hereto in violation of any applicable laws or regulations of USA.
- The Receiving Party acknowledges that if the Receiving Party fails to comply with any of its obligations hereunder, the Disclosing Party may suffer immediate, irreparable harm for which monetary damages may not be adequate. The Receiving Party agrees that, in addition to all other remedies provided at law or in equity, the Disclosing Party shall be entitled to injunctive relief hereunder.
- Any dispute or differences in relation to this Agreement shall be referred to mutually agreed arbitrator. The governing law shall be USA Law. The arbitration proceedings shall be conducted in English.
- This Agreement shall be governed by and construed in accordance with the laws of USA and Courts of California have the exclusive Jurisdiction
- It is the desire and intent of the Parties that the provisions of this Agreement shall be enforced to the fullest extent permissible under the applicable Laws and public policy. In the event that any one or more of the provisions of this Agreement is found to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby
- None of the Proprietary Information disclosed by the Parties constitutes any representation, warranty, assurance, guarantee, or inducement by either Party to the other with respect to the infringement of trademarks, patents, copyrights, or any right of third persons.
- No amendment or modification of this Agreement shall be binding on the Parties unless made in writing and duly executed by each of the Parties.
- The Parties are independent contractors. Neither Party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party except as specifically provided by this Agreement. Nothing in this Agreement shall be interpreted or construed to create an association or partnership between the Parties, deem them to be persons acting in concert or to impose any liability attributable to such relationship upon any of the Parties nor, unless expressly provided otherwise, to constitute any Party as the agent of any of the other Parties for any purpose.
- Neither this Agreement nor disclosure or receipt of Confidential and/or Proprietary Information shall constitute or imply any promise or intention to make any purchase/ marketing of products or services by either party hereto or any commitment by either party hereto with respect to the present or future purchase/ marketing of any product or service or any promise or intention to enter into any other business arrangement.
- This Agreement represents the entirety of the agreement of the Parties relating to the disclosure of the Confidential and/or Proprietary Information and shall not be waived, amended or assigned by either Party except by written consent of the other Party.