(i) To have been known by the recipient prior to the time of disclosure by the disclosing party,
(ii) To have become part of the public domain through no fault or breach of this Agreement by the recipient,
(iii) To have been disclosed to the recipient in good faith by a third party who is not under any obligation of confidence or secrecy to the disclosing party at the time such third party discloses the information to the recipient or
(iv) To have been compelled to be produced by a court of competent jurisdiction, provided that the recipient shall first give notice to the disclosing party of any such request or order of the court to give the disclosing party an opportunity to contest or limit said request or order of the court.
(a) Rights associated with works of authorship, including without limitation, copyrights, copyrightable rights, moral rights and mask work rights;
(b) Trademark, service mark and trade name rights and any similar rights recognized under applicable law;
(c) Rights in Confidential Information and trade secrets;
(d) Patents and patentable rights;
(e) All rights with respect to inventions, discoveries, improvements, know-how, formulas, algorithms, processes, technical information and other technology;
(f) All other intellectual and industrial property rights of every kind or nature, whether arising by operation of law, contract, license or otherwise; and
(g) All international, national, foreign, state and local registrations, applications for registration and any renewals and extensions thereof (including, without limitation, any continuations, continuations-in-part, divisions, reissues, substitutions and re-examinations), all goodwill associated therewith, and all benefits, privileges, causes of action and remedies relating to any of the foregoing (including, without limitation, the exclusive rights to apply for and maintain all such registrations, renewals and extensions; to sue for all past, present and future infringements or other violations relating thereto; and to settle and retain all proceeds from any such actions).
(i) Name, address, location data, telephone number, social security/national identifying number, IP address, account numbers, account balances, account histories; or one or more factors specific to the physical physiological, genetic, mental, economic, cultural or social identity of a natural person; and
(ii) Any equivalent term under any applicable Data Privacy Laws..
Customer shall not, and shall not allow its Users or others to:
(i) Copy, reverse engineer, modify, decompile or attempt to derive the source code for any aspect of the Services or any data related thereto or attempt to or do anything that could interfere with their functionality;
(ii) Resell, rent, distribute, sublicense or share the Services with or for the benefit of any third party or for any purpose other than its own use as expressly permitted in this Agreement;
(iii) Attempt to probe, scan, penetrate, breach or test the vulnerability of the Services or disable or circumvent any security or authentication measures;
(iv) Access the Services for the purpose of building a competitive product or service; or
(v) Use the Services in violation of this Agreement, any Applicable Laws, or the rights of any third parties.
Customers will
(a) Remain fully responsible for its Authorized Users’ compliance with this Agreement;
(b) Use commercially reasonable efforts to prevent unauthorized access to or use of the Product; and
(c) Notify VoiceOwl immediately of any unauthorized access or use of the Product.
VoiceOwl may, at any time, suspend the Customer’s right to use the Product and/or the Services if, in the reasonable opinion of VoiceOwl:
(i) The Customer or any of its Authorized Users have breached this Agreement;
(ii) Suspension is required for safety purposes or to prevent a security breach;
(iii) Suspension is necessary to prevent any damages or loss to VoiceOwl or any other third party; or
(iv) Payments are more than thirty (30) days overdue.
(A) Taken by the disclosing party to protect its own Confidential Information and
(B) Which the disclosing party or its authorized representative may reasonably request from time to time. Neither party shall allow the removal or defacement of any confidentiality or proprietary notice placed on the Confidential Information disclosed by the disclosing party.
Upon written request by the disclosing party at any time, the receiving party shall:
(a) Promptly turn over to the disclosing party all Confidential Information of the disclosing party, all documents or media containing the Confidential Information, and any and all copies or extracts thereof, that the receiving party possesses or controls; or
(b) Promptly destroy the Confidential Information, and any and all copies or extracts thereof that the receiving party possesses or controls, and provide the disclosing party with written certification of such destruction signed by an authorized representative of the receiving party.
Confidential Information shall remain confidential for three (3) years from the date of disclosure or until and unless it falls under one of the exclusions, except for trade secrets which shall remain confidential for so long as such Confidential Information remains a trade secret. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. The disclosing Party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section.
Customer owns its Customer Data and all Intellectual Property Rights contained therein. Customer is solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of Customer Data, and Customer represents and warrants that it will make all notifications and has and will maintain all rights, consents and permissions necessary to collect, store, transmit and use such Customer Data as contemplated by this Agreement, and to grant VoiceOwl the rights in this Agreement, all without violating or infringing
(i) Laws,
(ii) Third-party rights (including intellectual property, confidentiality or privacy rights), or
(iii) Any Data Privacy Laws or privacy policies that apply to the Customer Data. Customer agrees to indemnify, defend and hold VoiceOwl harmless for any and all third party claims arising from an allegation that Customer Data was not collected in compliance with any applicable Laws, including Data Privacy Laws.
Subject to any limitations contained herein, Customer grants VoiceOwl a non-exclusive, worldwide, royalty-free license to collect, copy, store, access, analyze, and use the User Data only as necessary for VoiceOwl to provide the Products and/or Services to the Customer and, on an anonymized and/or aggregated basis, if Customer utilizes the self-optimizing artificial intelligence capabilities of the Products, to further improve, enhance train or develop the capabilities of the Products, to track the User’s usage of the Products and to track performance of the Products. VoiceOwl shall process the data according to its internal data management policies.
- Either party may terminate a Purchase Document immediately upon written notice of 30 days if the other Party.
- Either party commits a material breach of this Agreement and fails to cure such breach within thirty (30) days of receipt of written notice by the non-breaching Party.
- the Customer does not meet its obligation to make payment as per agreed terms
- If any party files for bankruptcy, becomes insolvent, makes an assignment for the benefit of creditors, or otherwise has a receiver appointed to handle its assets or affairs.
- VoiceOwl may terminate this agreement immediately in case of breach of clause 2 , 3 and 4 of this agreement.
Upon termination of a Purchase Order, Customer’s right to use the Products and/or Services as licensed under such Purchase Order shall immediately end. Upon termination of this Agreement, Customer’s right to use VoiceOwl’s Products and/or Services shall immediately end. Customer will permanently delete any and all instances of the Product from its and its Authorized Users’ computer systems and/or devices and Customer will return or destroy VoiceOwl’s Confidential Information in accordance with the terms of this Agreement Within ten (10) business days following termination, Customer shall pay any outstanding Fees and non-cancellable expenses due under the applicable Purchase Documents(s).
Notwithstanding other legal remedies that may be available to, Licensor may in its sole discretion limit Customer activity by immediately removing Customer access either temporarily or indefinitely or suspend or terminate Customer membership, and/or refuse to provide Customer with access to the Software:
(a) If the Customer is in breach any of the terms and conditions of this EULA and/or the terms and conditions of usage of Licensor;
(b) If the Customer has provided wrong, inaccurate, incomplete or incorrect information;
(c) If any of Customer’s actions may cause any harm, damage or loss to the other Customers, users or Licensor;
(d) Illegal and/or unauthorized use of the Software.
All Fees are exclusive of taxes and levies. Any transaction taxes that arise from use of the Product or on receipt of the Services under this Agreement shall be borne by the Customer, other than taxes based on VoiceOwl’s net income. If VoiceOwl has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides VoiceOwl with a valid tax exemption certificate authorized by the appropriate taxing authority.
Customer will defend VoiceOwl against any third party claims and indemnify VoiceOwl for any resulting costs or damages resulting from claims in respect of the Products and/or Services arising due to or in connection with
(i) Any modifications of the Products and/or Services or any parts thereof by any party other than VoiceOwl or its authorized agents;
(ii) Usage of the Products and/or Services in combination with any program, equipment or device not supplied, authorized or recommended, in writing by VoiceOwl;
(iii) Where Customer continues allegedly infringing activity after being notified or Customer fails to install any Updates or Maintenance Releases as provided by VoiceOwl; or
(iv) Where Customer’s use of the Products and/or Services is not materially in compliance with the terms of this Agreement.
- Each Party is responsible, at its cost and expense, for obtaining and maintaining in force all necessary regulatory approvals, licenses, and permits applicable to its and its affiliates’ business or necessary for the Party to perform its obligations and exercise its rights under this Agreement.
- Each Party represents and warrants that it will comply at all times with all Laws relevant or applicable to its business and obligations under the Agreement.
- Each Party will bear the risk of and have financial responsibility for any change in Laws applicable to its business or the performance of its obligations under the Agreement.
VoiceOwl may, but is not required to, monitor or audit Coustomer’s usage of the SaaS to ensure compliance with this Agreement and the applicable Order Form, including without limitation Coustomer’s compliance with the SaaS Usage Restrictions. Additionally, upon written notice VoiceOwl may require Customer to attest to its compliance with the SaaS Usage Restrictions. If such verification or attestation process reveals any noncompliance with this Agreement or the applicable Order Form by Customer or its Affiliates or Authorized Users, Customer shall pay the applicable Fees, and Customer shall promptly cure, and shall cause Customer’s Affiliates and Authorized Users to promptly cure, any such noncompliance; provided, however, that the obligations under this Section are not a waiver VoiceOwl’s other rights under this Agreement, at law, in equity, or otherwise.
Each Party to this Agreement represents and warrants to the other Party that
10.1 it is an entity which has been duly formed and is validly existing and in good standing under the laws of the jurisdiction where it is formed,
10.2 it has all requisite power and authority to execute, deliver and perform its obligations under this Agreement and each statement of work in accordance with their respective terms; he execution, delivery and performance of this Agreement and each
(a) Has been duly authorized by its requisite officials,
(b) Shall not conflict with, remit in a breach of, or constitute a default order any other agreement to which it is a party or by which it is bound, and shall not constitute an event that would, with notice and/or lapse of time, constitute such a default, and
(c) To its knowledge, will not result in a violation of of conflict with any applicable law, and
(d) There is no proceeding pending or, to the knowledge of the Party, threatened, which challenges or may have a material adverse affect on this Agreement or the transactions contemplated by this Agreement,
10.3 it is duly licensed, authorized or qualified to do business and is in good standing in every jurisdiction in which a license, authorization or qualification is required for the ownership or leaning of its assets on the transaction of business of the character transacted by it, except where the failure to be so licensed, authorized or qualified would not have a material adverse effect on its ability to fulfill its obligations under this Agreement.
10.4 There is no outstanding (or, to the best of its knowledge, pending or threatened) litigation, arbitrated matter or other dispute to which it is a Party that if, decided unfavorably to it, would reasonably be expected to have a material adverse effect on its ability to fulfill its obligations under this Agreement , and it has not violated any applicable laws or regulations.
Each Party to this Agreement represents and warrants to the other Party that
11.1 IN NO EVENT SHALL VOICEOWL BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUES OR COSTS OF PROCUREMENT OR SUBSTITUTE GOODS, SERVICES, RIGHTS OR TECHNOLOGY, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOSS OF BUSINESS, GOODWILL, REPUTATION OR LOSS OR CORRUPTION OF DATA), HOWEVER CAUSED AND WHETHER ARISING FROM CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, IRRESPECTIVE OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, VOICEOWL WILL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY THE PRODUCTS AND/OR SERVICES IF SUCH PRODUCTS AND/OR SERVICES ARE PROVIDED FOR NO FEE.
11.2 EXCEPT AS PROVIDED IN SECTION 11.3, THE MAXIMUM AGGREGATE LIABILITY OF VOICEOWL UNDER OR IN RELATION TO THIS AGREEMENT FOR ANY AND ALL CLAIMS, LOSSES OR DAMAGES SHALL, IN NO EVENT, EXCEED, THE ACTUAL FEES PAYABLE BY CUSTOMER UNDER THE RELEVANT PURCHASE DOCUMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE FIRST CLAIM ARISES.
11.3 EXCLUSIONS.
THE LIMITATIONS OF LIABILITY SET FORTH IN SECTION 11.2 SHALL NOT APPLY WITH RESPECT TO (I) ANY DAMAGES ARISING FROM INTENTIONAL MISCONDUCT OR FRAUD (II) CUSTOMER’S OBLIGATIONS UNDER SECTION 2 (PRODUCT LICENSE), OR (III) TO ANY FEES OWED BY THE CUSTOMER UNDER THIS AGREEMENT OR RELEVANT PURCHASE DOCUMENT.
12.1 Force Majeure means and includes an event beyond the control of the Parties, which prevents a Party from complying with any of its obligations under this Agreement, including but not limited to act of God (such as, including but not limited to, fires, explosions, earthquakes, drought, tidal waves and floods), war, hostilities (whether war be declared or not), invasion, act of foreign enemies, mobilization, requisition, embargo, rebellion, revolution, insurrection, or military or usurped power, acts or threats of terrorism, lockouts, strikes, lockdowns, government sanctions, epidemic, pandemic, quarantine, Governments prohibitory orders/notifications/rules.
12.2 Neither Party will be in breach of this Agreement, or otherwise liable to the other Party, as a result of any delay or any non-performance of any actions if, but only to the extent that, the delay or non-performance is owing to a Force Majeure Event, provided the Party affected by the Force Majeure Event promptly notifies the other Party of the nature and extent of the circumstances giving rise to the Force Majeure Event; (b) uses appropriate measures to mitigate the effect of the Force Majeure Event; (c) invokes its disaster recovery arrangements immediately (where the Service Provider is affected by the Force Majeure Event) and explores all possible options and arranges for alternative supplies to be sourced from elsewhere or from back-up service providers, with approval of Client , to ensure the Service Provider continues to meet its obligations under this Agreement and maintain continuity of Services under the Agreement; (d) throughout the Term, the Service Provider must have in place contingency and disaster recovery arrangements, sufficient/appropriate insurance covered that will minimize any interruption or disruption to the supply of the Services (including interruptions and disruptions caused by Force Majeure Event), subject to payment of Insurance by first party, If the Force Majeure Event continues for more than thirty (30) calendar days, then either Party may terminate the Agreement upon written notice to the other Party. There will be no obligation of one Party to pay the other Party in case uninterrupted Services are not rendered by the other Party as agreed under this Agreement during the continuity of Force Majeure Event.
This Agreement is governed by the laws of the State of Madhya Pradesh India without reference to conflicts of law rules. For any dispute relating to this Agreement, the Parties consent to personal jurisdiction and the exclusive venue of the courts in Indore, India. Any notice provided by one Party to the other under this Agreement will be in writing and sent by electronic mail to the official email address. If any provision of this Agreement is found unenforceable, this Agreement will be construed as if it had not been included.
If a dispute between the named Parties arises and leads to legal action, the prevailing Party shall be entitled to any court costs, including, but not limited to reasonable attorneys’ fees.
This Agreement shall insure to and be binding upon the undersigned and their respective heirs, representatives, successors and permitted assigns. This Agreement may not be assigned by either party without the prior written consent of the other party.
Any legal notice or other communication required or permitted to be made or given under the Agreement will be in writing and sent by (a) personal delivery, in which case notice shall be deemed to have been given on the date of delivery; (b) by a nationally-recognized overnight delivery service, in which case notice shall be deemed to have been given the business day after deposit of such notice with such service, or (c) email, in which case notice shall be deemed to have been given upon the earlier of confirmed receipt (e.g., a party receiving an email response) or the next business day after confirmed sending of such email. All Notices will be sent to 165, RNT MARG, Indore – 452001, Madhya Pradesh with a cc to [email protected] and all notices to the Customer shall be sent to such address and email as designated by the Customer in the Purchase Document. Each Party may change its notice address upon five (5) business days’ notice, with notice given in accordance with this Section.
The illegality, invalidity or unenforceability of any provision of this Agreement under the law of any jurisdiction to which any Party is subject shall not affect the legality, validity or enforceability of the other provisions hereof.
No failure of either Party to exercise, and no delay by it in exercising, any right, power or remedy in connection with this Agreement (each a “Right”) will operate as a waiver thereof, nor will any single or partial exercise of any Right preclude any other or further exercise of such Right or the exercise of any other Right. Any express waiver of any breach of this Agreement shall not be deemed to be a waiver of any subsequent breach.