4SURE Subscription Terms & Conditions
Posted on: 01-Jan-2019
These Subscription Terms (“Terms”) govern the access to and use of the cyber insurance pre-risk assessment automation tool – 4SURE(“Software”) and shall be binding contract between any subscriber of the Software as identified in an order form executed between such subscriber (“Client”) and Risk Quotient Private Limited or any of its affiliates which executes such order form (“Licensor”).
Such order form (“Order”) shall contain the details regarding the subscription to Software including the term of the subscription (“Term”), territory where Software can be accessed (“Territory”), number of users authorized to access the Software (“Users”), the purpose/scope of use of the Software (“Permissible Purpose”), applicable fees and expenses (collectively, “Fees”) and payment terms associated with such subscription and any other terms and restrictions as applicable. In case of a conflict between these Subscription Terms and the Order, the terms in the Order shall prevail. These Terms and the Order shall be collectively referred to as the ‘Agreement’.
- ACCESS TO SOFTWARE.
1.1 License. Subject to and conditioned on Client’s and its Users’ compliance with the terms and conditions of the Agreement and payment of Fees, Licensor hereby grants to Client, a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable license to access Software and use it for the Permitted Purpose during the Term. The license granted hereunder shall apply to Client in the Territory only.
The Software shall be strictly for Client’s internal, personal and non-commercial use, provided however that solely in connection with filling up the questionnaires generated in the Software, Client may provide access of the Software to its end-clients who shall be considered as Users. Licensor grants Client a perpetual license to use the deliverables or reports generated using the Software (“Deliverables”) internally within its organization, provided however that Licensor shall not provide access to the Software to Client after expiration of the Term or termination of the Agreement and Client is advised to download the Deliverables before expiration of the Term. Client understands and acknowledges that the Deliverables may contain intellectual property belonging to Licensor and agrees to protect Licensor’s rights to such intellectual property consistent with the terms and conditions of the Agreement (specifically Sections 2 and 5 of the Terms). Client agrees not to commercially exploit the Deliverables in any way or share the Deliverables with any third party other than with its end-customers and re-insurers as reasonably required for insurance policy sale and servicing.
1.2 Account Privacy. Client shall ensure that Users keep all passwords confidential to keep its account safe. Client is responsible for notifying Licensor immediately if it becomes aware of any unauthorized use of or access to its account. Client understands and agrees that Licensor may require Client to provide information that may be used to confirm the identity of the Users and help ensure the security of its account. Licensor shall not be liable for any loss, damages, liability, expenses or attorneys’ fees that Client may incur as a result of any unauthorized use of User’s password or account, either with or without Client’s knowledge and/or authorization, and regardless of whether Client has or has not advised Licensor of such unauthorized use. Client shall be liable for losses, damages, liability, expenses and attorneys’ fees incurred by Licensor or a third party due to someone else using Client’s account.
1.3 Restriction on Use. Client’s access to and use of the Software shall be subject to the restrictions in this Section 1.3. Client agrees to be bound by the actions of its Users and shall not permit any User to access or use the Software except as expressly permitted by the Agreement. Without limiting the generality of the foregoing, Client or its Users shall not, except as the Agreement expressly permits:
- reverse-engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part;
- copy, modify or create derivative works or improvements of the Software;
- bypass or breach any security device or protection used by the Software or access or use the Software other than by a User through the use of his or her own valid access credentials provided by Licensor;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Software or Deliverables to any third party, including on or in connection with the Internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
- damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Software, or Licensor’s provision of Software to any third party;
- access or use the Software to communicate any message or material that is harassing, libelous, threatening, obscene or would violate the copyright or other intellectual property right or privacy right of any person or is otherwise unlawful or that would give rise to civil liability or that constitutes or encourages conduct that could constitute a criminal offense under any applicable law or regulation;
- access or use the Software for purposes of competitive analysis of the Software or Deliverables, the development, provision or use of a competing software service or product or any other purpose that is to the Licensor’s detriment or commercial disadvantage;
- otherwise access or use the Software beyond the scope of the authorization set forth in the Agreement or in any manner or for any purpose that is unlawful under applicable law.
- The Software and all materials and contents contained therein (including all software, design, text, editorial materials, informational text, photographs, illustrations, audio clips, video clips, artwork and other graphic materials, names, logos, trademarks and services marks) are exclusively owned and operated by Licensor and its partners or licensors, and is protected by copyright laws, trademarks, service marks and other intellectual property laws. Client agrees to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained in the Software. All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including without limitation rights in and to all applications and registrations relating to the Software shall at all times be and remain the sole and exclusive property of Licensor. Client agrees to notify Licensor immediately upon becoming aware of any claim that the Software infringes upon any copyright, trademark, or other contractual, statutory, or common law rights.
Client hereby unconditionally and irrevocably grants to Licensor an unrestricted license to use any feedback or suggestions given to Licensor regarding the Software, including all intellectual property rights relating thereto.
Client’s rights to the Software shall be strictly restricted to the license granted in Section 1.1.
Client’s Users may upload, submit, store, send or receive content through the Software and shall retain ownership of any intellectual property rights that it holds in that content. Client hereby gives Licensor (and its licensors and subcontractors) a worldwide license to host, store, modify, and create derivative works of such content solely in order to enable Licensor to provide the Deliverables and meet its obligations under the Agreement. Licensor shall also have a perpetual right to use such content in an anonymized format and subject to confidentiality obligations herein for analytical and research purposes including improving the performance of the Software.
- CHANGES TO THE SOFTWARE. Licensor reserves the right, in its sole discretion, to make any changes to the Software that it deems necessary or useful: (a) maintain or enhance (i) the competitive strength of or market for the Software or (ii) the Software’s quality, cost efficiency or performance; or (b) to comply with applicable law. If any such changes result in any material adverse impact on the Client’s use of Software, Client may terminate the Agreement by providing at least one month’s written notice to Licensor and Licensor shall refund the proportionate portion of any Fees prepaid by Client for the remainder of the Term.
- FEES AND TAXES. The Fees shall be paid in accordance with the payment terms specified in the Order.
All sales, use, excise, withholding or value added taxes or customs duties, but excluding income, franchise or other corporate taxes will be borne by Client. If any such tax or duty has to be withheld or deducted from any payment under the Agreement, Licensor shall increase payment under the Agreement by such amount as shall ensure that after such withholding or deduction Licensor shall have received an amount equal to the payment otherwise required.
Failure of Client to make any payment when due shall constitute sufficient cause for Licensor to immediately suspend its performance under this Agreement. Payments of amounts made under this Agreement after their due date will incur interest at a rate equal to one percent (1%) per month (i.e., 12% per annum) or the highest rate permitted by applicable law, whichever is less.
- CONFIDENTIALITY. “Confidential Information” means and includes the proprietary and valuable information of the respective parties which the parties desire to protect against disclosure or competitive use and which is disclosed either in written / electronic / machine-readable form and designated as “proprietary” or “confidential” or which, under the circumstances a reasonable person would consider to be confidential. Licensor’s Confidential Information includes, without limitation and regardless of whether designated “proprietary” or “confidential”, source code, trade secrets and know-how embodied in the Software, any access codes or passwords required to access the Software, any content or other materials included within the Software (other than Client’s content), pricing information and proposals.
The party receiving Confidential Information (“Receiving Party”) will exercise the same degree of care and protection for the Confidential Information of the party that has disclosed Confidential Information (“Disclosing Party”) that it exercises with its own Confidential Information or like importance but no less than a reasonable degree of care. The Receiving Party shall not directly or indirectly disclose, copy, distribute, republish, sell, license or otherwise allow any third party access to such Confidential Information or use such Confidential Information for any purpose other than the purpose of this Agreement and as expressly permitted under this Agreement. Notwithstanding the above, the Receiving Party may disclose Confidential Information: (1) to its employees, contractors or agents who have a need to know in order to achieve the purpose of this Agreement and are subject to substantially similar obligations of confidentiality; and (2) if required by law (including a court order or subpoena), provided, the Receiving Party, where lawfully permitted, promptly notifies the Disclosing Party in time to review and challenge the potential disclosure. In the event of any termination or expiration of this Agreement, the Receiving Party will either return or, at the Disclosing Party’s request, destroy the Confidential Information of the Disclosing Party.
The obligations of this Section shall not be applicable oninformation which: (a) is or becomes generally available to the public other than as a result of disclosure by the Receiving Party in breach of this Agreement; (b) was known by the Receiving Party prior to its disclosure by the Disclosing Party; (c) was independently developed by the Receiving Party without use of the Confidential Information; or (d) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party, provided that such source is not bound by a confidentiality agreement, confidentiality obligation or fiduciary duty which prohibits disclosure and the Receiving Party has no reason to believe that such source may be restricted from making such disclosure.
- WARRANTIES. Each party represents and warrants to the other that it has the right and power to enter into and fully perform the obligations it has undertaken in this Agreement.
Licensor warrants that the Software shall substantially conform to the corresponding specifications. Licensor shall strive to achieve and maintain 99 percent uptime of the Software.
- LIMITATION OF LIABILITY. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS IN SECTION 8, NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES, INCLUDING, LOST PROFITS, REVENUES, GOODWILL, BUSINESS INTERRUPTION, OPPORTUNITY COST, ARISING OUT OF OR RELATED TO THIS AGREEMENT REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON A BREACH OF CONTRACT, TORT, STRICT LIABILITY, WARRANTIES, FAILURE OF ESSENTIAL PURPOSE, OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
LICENSOR SHALL IN NO EVENT BE LIABLE FOR ANY LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SOFTWARE SECURITY OR ANY IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY IN USING THE SOFTWARE OTHER THAN AS MAY BE SPECIFICALLY PROVIDED HEREIN. MOREOVER, LICENSOR SHALL HAVE NO LIABILITY FOR ANY LOSS, HARM, DAMAGE, COSTS AND EXPENSES INCURRED BY CLIENT IN CONNECTION WITH CLIENT’S RELIANCE ON THE SOFTWARE OR DELIVERABLES OR ANY BUSINESS DECISION TAKEN BY CLIENT BASED ON THE USE OF THE SOFTWARE OR DELIVERABLES.
EXCEPT FOR LICENSOR’S INDEMNIFICATION OBLIGATIONS IN SECTION 8, IN NO CASE SHALL LICENSOR’S AGGREGATE LIABILITY FOR ANY MATTERS ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING BUT NOT LIMITED TO NEGLIGENCE CLAIMS, EXCEED THE AMOUNTS ACTUALLY RECEIVED BY LICENSOR UNDER THE APPLICABLE ORDER FOR THE PRIOR SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
- INDEMNIFICATION. Licensor agrees to indemnify, defend and hold harmless Client and its Users from and against all losses, expenses, damages, liabilities, and costs, including reasonable attorneys’ fees resulting for a third party claim alleging that the Software or Deliverables or the use thereof (as such use is specifically contemplated by the parties in the Agreement) infringe upon the proprietary rights of such third party. In no event shall Licensor have any obligations or liability under this Section arising from: (i) use of the Software or Deliverables in a modified form or in combination with materials not furnished by Licensor; or (ii) any content, information, or data provided by Client, Users, or other third parties. THIS INDEMNITY IS CLIENT’S ONLY REMEDY UNDER THE AGREEMENT FOR ANY VIOLATION BY LICENSOR OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
Client agrees to indemnify, defend, and hold harmless Licensor and its affiliates, officers, directors, employees, affiliates, agents, licensors, and suppliers from and against all claims, losses, expenses, damages, liabilities, and costs, including reasonable attorneys’ fees, resulting from or arising in connection with (i) Client’s or its Users’ use of the Software or Deliverables in violation of this Agreement, (ii) any data or content posted or stored in the Software by Client or its Users or through use of Client’s account, or (iii) any dispute between the Client and its Users or any third parties (including end users or customers).
- TERMINATION AND SUSPENSION. The Agreement shall be valid for the term specified in the Order.
Either party may terminate this Agreement upon written notice if the other party (i) ceases doing business and its business is not continued by another corporation or entity which has agreed to assume such party’s obligations; (ii) files for or becomes a party to any involuntary bankruptcy, receivership or similar proceeding, and such proceeding is not dismissed within 45 calendar days after filing; (iii) makes an assignment for the benefit of creditors, or (iv) fails to perform any material term or provision of this Agreement and such failure to perform continues for a period of thirty (30) days after receipt of such written notice.
Client acknowledges that a violation of Section 1 shall be deemed a material breach of this Agreement and Licensor may terminate the Agreement immediately without the requirement to provide a cure period to Client. In addition to any other remedies that may be available to Licensor for such breach, Licensor reserves the right to immediately suspend Client’s account or your access to the Software upon notice and without liability for Licensor should Client fail to abide by the terms of Section 1.
Upon the termination of this Agreement, (i) all of Client’s rights under this Agreement shall immediately terminate (except for the right to use Deliverables as provided in Section 1 hereof), (ii) Client shall remain responsible for all unpaid Fees due to Licensor Under the Order (except in case of termination by Client for material breach of Licensor, in which case Client shall be responsible for payment of Fees for performance of Licensor’s obligations until the effective date of termination) and (iii) Client shall immediately return or, if instructed by Licensor, destroy all passwords, license keys and Licensor content or materials in its possession.
Those obligations and limitations which by their nature and meaning should survive expiration or termination of the Agreement shall so survive including Sections 1 (except for license granted in Section 1.1 which shall terminate along with the expiration or termination of the Agreement), 2, 4, 5, 6, 7, 8, 9, 10, 11 and 12.
- CHANGES TO THESE TERMS. Licensor may modify these Terms (including any policies and other terms referred herein) at any time by posting a revised version on its website or by otherwise notifying Client of such changes; provided, however, that Licensor will provide at least 30 days’ advance notice for adverse changes to the Service Level Agreement. Subject to the 30 day advance notice requirement with respect to adverse changes to Service Level Agreements, the modified terms will become effective upon posting or, if Licensor notifies Client by email, as stated in the email message. By continuing to use the Software after the effective date of any modifications to these Terms, Client shall be deemed to agree to be bound by the modified terms. It is Client’s responsibility to check Licensor’s website regularly for modifications to these Terms. We last modified these Terms on the date listed at the end of these Terms.
- GOVERNING LAW, DISPUTE RESOLUTION.
The governing law and dispute resolution mechanism shall be dependent on the Territory. If under the Order the Territory identified is India, then the Agreement shall be governed by the laws of India.
If the Territory identified in the Order is United States, then the Agreement shall be governed by the laws of the State of New York.
If the Territory identified is the United Kingdom, then the Agreement shall be governed by the laws of England and Wales.
For any other Territory identified in the Order, the Agreement shall be governed by the laws of Singapore.
The parties agree that most disputes can be resolved without resort to arbitration or litigation. The parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with each other, and good faith negotiations shall be a condition to either party initiating a dispute resolution mechanism as below.
For the Territory of India, the parties agree to finally settle any dispute under the Agreement through binding arbitration in Mumbai under the Arbitration and Conciliation Act, 1996 by a sole arbitrator nominated by the parties.
For any Territory other than India, the parties agree to finally settle any dispute under the Agreement through binding arbitration under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The seat of arbitration shall be Singapore and language to be used shall be English.
12.1. Relationship of the Parties. The parties are and shall be independent contractors with respect to all obligations under the Agreement and shall have no right to assume or create any obligation or responsibility on behalf of the other party.
12.2. Non-exclusivity:Client hereby acknowledges and agrees that nothing in the Agreement shall prohibit Licensor from continuing to provide license to the Software to other companies (whether or not a competitor of Client) or otherwise use the Software as it pleases.
12.3. Non-solicitation. During the Term and for a period of twelve (12) months after the expiration or termination of Agreement, Client shall not directly or indirectly solicit for employment, any person then employed by Licensor, provided, however, that Client shall be prohibited from making a general solicitation of employment not specifically directed towards employees of Licensor and employing any employee of Licensor who responds thereto.
12.4. Force Majeure. Except for payment obligations, neither Licensor nor Client shall be liable for inadequate or delayed performance to the extent caused by a condition that is beyond the party’s reasonable control, including but not limited to natural disaster, civil disturbance, acts of terrorism or war, labor conditions, governmental actions and interruption or failure of the Internet or any utility service.
12.5. Assignment.Neither the Agreement nor any of the rights and licenses granted hereunder, may be transferred or assigned by either party without the other party’s express written consent; provided, however, that Licensor may assign the Agreement without Client’s consent to an affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets. Any other attempt to transfer or assign the Agreement will be null and void.
12.6. Entire Agreement.These Terms and the Order together with the exhibits appended herewith and any terms referenced herein, shall constitute the entire agreement of the parties concerning the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter hereof. If a court of competent jurisdiction deems any provision of the Agreement invalid, the invalidity of such provision shall not affect the validity of the remaining provisions hereof, which shall remain in full force and effect.
12.7. No Waiver.No waiver of any term of the Agreement shall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under the Agreement shall not constitute a waiver of such right or provision.
12.8. Construction. Both parties acknowledge and agree that the Agreement has been jointly prepared and its provisions will not be construed more strictly against either party as a result of its participation in such preparation. Each party acknowledges and represents that, in executing the Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms and provisions of the Agreement.
12.9. Importand Export Requirements. Client acknowledges and agrees that the Software is subject to export control laws and regulations. Client may not download or otherwise export or re-export the Software or any underlying information or technology except in full compliance with all applicable laws and regulations, in particular, but without limitation, United States export control laws. The Software and applicable information or technology may not be downloaded or otherwise exported or re-exported: (a) into, or to a national or resident of, any country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of specially designated nationals or the U.S. Commerce Department’s list of prohibited countries or debarred or denied persons or entities. Client hereby agrees to the foregoing and warrants that Client is not located in, or under the control of, or a national or resident of any such country or on any such list.
12.10. InjunctiveRelief.The parties agree that money damages may not be a sufficient remedy for any breach of Sections 1 or 5 of these Terms. As such, each party shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach without having to post a bond.
12.11. Notice. Any notice, demand, or request with respect to the Agreement shall be in writing and shall be effective only if it is delivered by personal service, by air courier or emailed to the address set forth above. Such communications shall be effective when the addressee receives them.
12.12. Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of the Agreement, nor shall such headings otherwise be given any legal effect.