SECTION 1. SUBSCRIPTION.
FynMate hereby grants to the Subscriber the non-exclusive, non-transferable right to access and use the www.fynmate.com and provide access to its Authorized Users (as defined herein) subject to the terms and conditions of this Agreement.
Authorized Users arethe full-time and part-time employees of the Subscriber and individuals who are independent contractors or are employed by independent contractors of the Subscriber affiliated with the Subscriber’s organization and individuals using computer terminals for purposes of business
Each Authorized User may:
- access, search, browse and view the Subscribed Products;
- print, download and store a reasonable portion of individual items (reports etc.) from the Subscribed Products for the exclusive use of such Authorized User;
Restrictions on Use of Subscribed Products.
Except as expressly stated in this Agreement or otherwise permitted in writing by FynMate, the Subscriber and its Authorized Users may not:
- remove, obscure or modify in any way any copyright notices, other notices or disclaimers as they appear in the Subscribed Products;
- use any robots, spiders, crawlers or other automated downloading programs, algorithms or devices to continuously and automatically search, scrape, extract, deep link, index or disrupt the working of the Subscribed Products; or
- substantially or systematically reproduce, retain or redistribute the Subscribed Products.
Authorized Users who are individuals who are independent contractors or are employed byindependent contractors may use the Subscribed Products only for the purposes of the contracted work for the Subscriber.
Intellectual Property Ownership.
The Subscriber acknowledges that all right to the Subscribed Products remain with FynMate and its suppliers, except as expressly set forth in this Agreement, and that the unauthorized redistribution of the Subscribed Products could materially harm FynMate and its suppliers.
SECTION 2. FYNMATE PERFORMANCE OBLIGATIONS.
Access to Subscribed Products.
FynMate will make the Subscribed Products accessible to the Subscriber and its Authorized Users
Quality of Service.
FynMatewill use reasonable efforts to provide the Subscribed Products with a quality of service consistent with industry standards, specifically, to provide continuous service with an average of XX% up-time per year, with the XX% down-time including scheduled maintenance and repairs performed at a time to minimize inconvenience to the Subscriber and its Authorized Users, and to restore service as soon as possible in the event of an interruption or suspension of service.
SECTION 3. SUBSCRIBER PERFORMANCE OBLIGATIONS.
Access to the Subscribed Products will be authenticated by the use of usernames and passwords
Protection from Unauthorized Access and Use.
The Subscriber will use reasonable efforts to:
- limit access to and use of the Subscribed Products to Authorized Users and notify all Authorized Users of the usage restrictions set forth in this Agreement and that they must comply with such restrictions;
- issue any passwords or credentials used to access the Subscribed Products only to Authorized Users, not divulge any passwords or credentials to any third party, and notify all Authorized Users not to divulge any passwords or credentials to any third party; and
- promptly upon becoming aware of any unauthorized use of the Subscribed Products, inform FynMate and take appropriate steps to end such activity and to prevent any recurrence.
In the event of any unauthorized use of the Subscribed Products, FynMate may suspend the access and/or require that the Subscriber suspend the access from where the unauthorized use occurred upon notice to the Subscriber. The Subscriber will not be liable for unauthorized use of the Subscribed Products by any Authorized Users provided that the unauthorized use did not result from the Subscriber’s own negligence or willful misconduct and that the Subscriber did not permit such unauthorized use to continue after having actual notice thereof.
SECTION 4. FYNMATE WARRANTIES AND INDEMNITIES.
FynMatewarrants that use of the Subscribed Products in accordance with the terms and conditions herein will not infringe the intellectual property rights of any third party.
FynMatewill indemnify, defend and hold harmless the Subscriber and its Authorized Users from and against any loss, damage, costs, liability and expenses (including reasonable attorneys’ fees) arising from or out of any third-party action or claim that use of the Subscribed Products in accordance with the terms and conditions herein infringes the intellectual property rights of such third party. If any such action or claim is made, the Subscriber will promptly notify and reasonably cooperate with FynMate. This indemnity obligation will survive the termination of this Agreement.
EXCEPT FOR THE EXPRESS WARRANTIES AND INDEMNITIES STATED HEREIN AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SUBSCRIBED PRODUCTS ARE PROVIDED “AS IS” AND FYNMATE AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE SUBSCRIBED PRODUCTS AND ANY OTHER DATA, DOCUMENTATION OR MATERIALS PROVIDED IN CONNECTION WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY ERRORS, INACCURACIES, OMISSIONS, OR DEFECTS CONTAINED THEREIN, AND ANY IMPLIED OR EXPRESS WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Limitation of Liability.
Except for the express warranties and indemnities stated herein and to the extent permitted by applicable law, in no event willFynMate or its suppliers be liable for any indirect, incidental, special, consequential or punitive damages including, but not limited to, loss of data, business interruption or loss of profits, arising out of or in connection with this Agreement, or will the liability of FynMate and its suppliers to the Subscriber exceed a sum equal to the Fees paid by the Subscriber hereunderduring the subscription period immediately preceding the date on which the claim arose, even if FynMate or any supplier has been advised of the possibility of such liability or damages.
SECTION 5. GENERAL.
Neither party’s delay or failure to perform any provision of this Agreement as a result of circumstances beyond its control (including, but not limited to, war, strikes, fires, floods, power failures, telecommunications or Internet failures or damage to or destruction of any network facilities or servers) will be deemed a breach of this Agreement.
The invalidity or unenforceability of any provision of this Agreement will not affect any other provisions of this Agreement.
This Agreement contains the entire understanding and agreement of the parties and replaces and supersedes any and all prior and contemporaneous agreements, communications, proposals and purchase orders, written or oral, between the parties with respect to the subject matter contained herein.
No modification, amendment or waiver of any provision of this Agreement will be valid unless in writing and signed by the parties.
The Subscriber will not assign, transfer or license any of its rights or obligations under this Agreement unless it obtains the prior written consent of FynMate, which consent will not unreasonably be withheld.
The Subscriber and its employees, officers, directors and agents will maintain as confidential and not disclose to any non-affiliated third party without FynMate’s prior written consent or except as required by law the financial terms and commercial conditions of this Agreement.
This Agreement will be interpreted, enforced and construed in accordance with and governed by the laws of India, regardless of the place of its execution or performance and without regard to rules regarding the conflict of laws.
The parties agree that any dispute arising out of or in connection with this Agreement shall be resolved through arbitration in terms of Arbitration & Conciliation Act, 1996 (as amended) by a Sole Arbitrator who shall be appointed by the Partner of the Disclosing Party. Recipient shall have no objection with regard to such appointment. The seat of arbitration shall be at Delhi, India. The arbitration proceeding should be in English Language. Notwithstanding the foregoing, in the event of a breach by Recipient, nothing herein shall preclude the Disclosing Party from seeking injunctive relief or equitable remedies in any court of relevant jurisdiction.
Subject to the arbitration clause contained in 11 above, Courts at Delhi will have exclusive jurisdiction.