These terms of service (“Terms”) apply to any accompanying or future order form, online order or similar agreement, if and when entered between you (“Subscriber,” “Customer”, “you,” or “your” which expression shall unless repugnant to the context shall include its successors and permitted assigns) and Facets Cloud Inc. ( “Facets” or “we” which expression shall unless repugnant to the context shall include its successors and permitted assigns) and Facets and Customer shall collectively be referred to as “Parties” and individually as “Party”.
These Terms and any accompanying or future order form you enter into with Facets issued under these Terms (each an “Order” and, together with these Terms shall be referred to as the “Agreement”) govern your access to and use of the services provided to you by Facets (the “Facets Services”). As set forth in an Order or as otherwise agreed to by Facets in writing, the Facets Services may include one or more of the following: (a) platform subscription services, including any support services to which you may be subscribing (the “Subscription Services”), (b) any other services the parties agree that Facets shall provide.
Under these Terms, the word “Affiliate” shall mean, with respect to any entity, any other entity that owns or controls, is owned or controlled by, or is under common ownership or control with such entity. The Parties acknowledge that Facets’ Affiliates may provide Facets Services to Customer. In such event, Customer and the Facets’ Affiliates shall execute an Order for Facets Services. These Terms shall apply to the Order signed between Customer and Facets’ Affiliate, and the Terms shall be read, understood, and acted upon as if Facets’ Affiliate is Party to these Terms in place of Facets.
Any Order shall identify: (a) specific Facets product subscription and Services to be provided, (b) any limitations on permitted use that may differ from those set forth in these Terms, (c) the Service Term or other timing considerations, (d) Fees, payment terms and any additional terms, (e) any applicable limitations on number or type of Authorized Users (as defined below), (f) any additional terms relating to use of Facets Services during free trial period; and (g) any other applicable terms and conditions. To the extent any provision in an Order clearly conflicts with a provision of these Terms, the provisions in the Order shall be binding on the Parties.
a. Subscription Services
i) Authorized Users. You may select individuals (your employees or authorized personnel) to access and use the Subscription Services, and you will obtain separate credentials (user IDs and passwords) via the Facets Services for such individuals (each an “Authorized User”). Subject to these limitations, Authorized Users may be changed upon reasonable notice at your request during a Service Term or as otherwise agreed by the Parties. You will at all times be responsible for all actions taken under an Authorized User’s account.
ii) Provision of Subscription Services. Subject to your compliance with the terms and conditions of this Agreement (including your obligation to pay any Fees), Facets will provide you with the Subscription Services, and you and your Authorized Users may access and use the Subscription Services solely for your internal business purposes. Facets reserves the right to improve or otherwise modify its internal system architecture at any time. You retain all ownership rights in your Customer Cloud Environment (as defined below in Section (Customer Cloud Environment) and in any other information or materials you provide to Facets to enable Facets to perform any of the Facets Services, and in any output you generate from your use of the Subscription Services ("Customer Data”).
b) Feedback. You are under no duty to provide any suggestions, enhancement requests, or other feedback regarding the Facets Services (“Feedback”). If you choose to offer Feedback to Facets, you hereby grant Facets a perpetual, irrevocable, non-exclusive, worldwide, fully-paid, sub-licensable, assignable license to incorporate the said Feedback into the Facets Services or otherwise use any Feedback Facets receives from you.
c) Ownership of the Facets Services. Except as expressly set forth in this Agreement, Facets retains all worldwide intellectual property rights available under applicable law including, without limitation, rights with respect to patents, copyrights, trademarks, trade secrets, know-how, and databases (“Intellectual Property Rights”) and all other proprietary rights related to the Facets Services. You will not delete or alter the copyright, trademark, or other proprietary rights notices or markings appearing within the Facets Services as delivered to you. You agree that the Facets Services are provided on a non-exclusive, limited, non-sublicensable, non-transferable basis and not sold. You further acknowledge and agree that the Facets Services, including but not limited to the source code and the specific design and structure of individual modules or programs, constitute, or contain trade secrets and other Intellectual Property Rights of Facets and its licensors. You also acknowledge and agree that all Intellectual Property Rights in any work product, reports, custom component developed by Facets as part of the Facets Services shall remain with Facets and You would have a non-exclusive, limited, non-sublicensable, non-transferable license to use and access the same.
a) Customer Responsibilites. You:
(A) are responsible for taking reasonable steps at all times to maintain the security, protection and backup of all Customer Cloud Environments (defined below) residing within your Systems (as defined below in Section 3.b (Restrictions on Use)), including within your accounts held at any cloud service provider, with such steps to include without limitation the regular rotation of access keys and other industry standard steps to preclude unauthorized access;
(B) are responsible for ensuring that Facets at all times has updated accurately the contact information for the appropriate person for Facets to notify regarding data security issues relating to the Facets Services; and
(C) acknowledge that: (i) Facets does not provide data backup services; and that (ii) Facets is not responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Data caused by any third party not under the control of Facets. Notwithstanding the forgoing, in the event of any loss or corruption of Customer Data within the Facets Services, Facets will use commercially reasonable efforts to restore the lost or corrupted Customer Data from any backup of such Customer Data available to Facets.
b) Restriction on Use. You shall not:
(A) copy, modify, disassemble, decompile or reverse engineer the Facets Services, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by these Terms or by law notwithstanding this prohibition;
(B) sell, resell, license, sublicense, distribute, rent, lease, or otherwise provide access to the Facets Services to any third party except to the extent explicitly authorized in writing by Facets;
(C) use the Facets Services to develop or offer a service made available to any third party that could reasonably be seen to serve as a substitute for such third party’s possible subscription to any Facets product or service;
(D) transfer or assign any of your rights hereunder except as permitted under Section 11 (c) (Assignment);
(E) interfere with or disrupt (or attempt to interfere with or disrupt) the Facets Services, or gain (or attempt to gain) access to any Systems (as defined below) or networks that connect thereto (except as required to appropriately access and use the Facets Services);
(F) use the Facets Services to violate the security or integrity of, or otherwise abuse, any application, computing device, system or network (each a “System”) of any Party;
(G) use the Facets Services to distribute or facilitate the sending of unsolicited or unlawful (i) email or other messages, or (ii) promotions of any kind;
(H) use the Facets Services to engage in or promote any other fraudulent, deceptive or illegal activities;
(I) use the Facets Services to process, store or transmit material, including any Customer Data, in violation of any law or any third party rights, including without limitation privacy rights;
(J) disclose to any third party the results of any testing or benchmarking of the Facets Services that you might conduct unless preapproved by Facets in writing (except to a contractor bound to maintain the confidentiality of such information and solely for the purposes of supporting your use of the Facets Services);
(K) during any free trial period granted by Facets, use the Facets Services for any purpose other than to evaluate the desirability of entering into a paid subscription to the Facets Services (If Facets has reasonable knowledge of use of Facets Services for any purpose other than evaluation of Facets Services during the free trial period, Facets reserves the right to charge you for such use of the Facets Services at Facets’ standard rates without foregoing any other available remedies); or
(L) use the Facets Services in hazardous or mission-critical circumstances or for uses requiring fail-safe performance, or where failure could lead to death, personal injury or environmental damage, and you further acknowledge that the Facets Services are not designed or intended for such use.
c) Customer Cloud Environment. You understand that the cloud environments generated and maintained through Facets Services by you, consists of your first party (your) components and the third party (cloud, open distribution, paid software) (collectively, “Customer Cloud Environment”) shall
(A) Consists of possible third-party component distributed by Facets for which you agree to the third-party license or consent to their terms of usage. An illustration of such service is “Amazon Web Service Components” or open distribution components such as “elastic search”. You understand that Facets doesn’t create or maintain these third-party components and merely provide them as part of readily usable integrations.
(B) Come under your complete ownership rights including the first-party (your) components (Source code, Executables, Binaries) along with your Customer Data or databases.
a) Term of these Terms. These Terms shall be valid from the Effective Date and shall continue to be valid till the Terms are terminated as provided in these Terms ("Term”). These Terms may be terminated by either Party subject to thirty (30) days’ prior written notice if (i) there are no operative Orders outstanding; or (ii) the other Party is in material breach of the Terms and the breaching party fails to cure the breach prior to the end of the notice period. If these Terms terminate pursuant to Facets’ material breach which remains uncured, Facets shall refund to you that portion of any Fees which is prepaid by you related to Facets Services not yet provided for the proportionate unused period only. Either Party can immediately terminate the Agreement if the other Party becomes insolvent, makes an assignment for the benefit of its creditors, has a receiver or administrator of its undertaking or the whole or a substantial part of its assets appointed, or an order is made, or an effective resolution is passed, for its administration, receivership, liquidation, winding-up or other similar process, or has any distress, execution or other process levied or enforced against the whole or a substantial part of its assets (which is not discharged, paid out, withdrawn or removed within 30 days), or is subject to any proceedings which are equivalent or substantially similar to any of the foregoing under any applicable jurisdiction, or ceases to conduct business or threatens to do so.
b) Service Terms of Order(s). The Term of an Order shall be as specified in the Order ("Service Term”). An Order can be terminated by either Party subject to thirty (30) days’ prior written notice if the other Party is in material breach of the Order and the breaching party fails to cure the breach prior to the end of the notice period.
c) Suspension; Termination. Facets may temporarily suspend or terminate the Facets Services at any time without notice (i) if Facets reasonably suspects that you have violated Section 3 (Customer Obligations; Customer Cloud Environment), or (ii) if you fail to pay undisputed Fees after receiving notice that you are more than 30 days delinquent in payment. Upon termination for any reason, you will purge all stored elements of the Facets Services from your Systems, Facets will purge all your Confidential Information (defined below) from its Systems, and each Party, upon request by the other Party, shall provide certification of such action. All provisions of the Agreement that by their nature should survive termination shall so survive, including without limitation each Party’s confidentiality obligations under Section 6. (Confidentiality).
Customer shall be liable to pay the fees for the use of Facets Services ("Fees”) and any other amounts as per the payment terms mentioned in the Order. Except as otherwise specified in an Order: (a) all Fees owed to Facets shall be paid in U.S. Dollars/INR (Indian Rupees) as may be provided in the Order; (b) invoiced payments shall be due within 30 days of the date of your receipt of each invoice; and (c) Fees for all Facets Services shall be invoiced in full upon execution of the applicable Order. You shall be solely responsible for payment of any applicable sales, value added or use taxes, or similar government fees or taxes which shall be remitted by Facets to the relevant taxation authority. To the extent required by any applicable law, you may withhold from any payment to Facets an amount equivalent to any applicable withholding tax, and in no event shall Facets be required to be responsible for or pay any additional amount with respect to any such withholding. If the statutory authority or any governmental authority asserts a claim that Facets did not properly withhold tax from amounts paid to or for your accounts because the appropriate form was not delivered or was not properly executed or because you failed to notify Facets of a change in circumstances which rendered the exemption from or reduction of withholding tax ineffective or for any other reason, you shall indemnify Facets fully for all amounts paid, directly or indirectly, by Facets as tax or otherwise, including any penalties or interest and together with any expenses incurred and shall make payable in respect thereof within 30 days after demand therefor.
a) "Confidential Information" means any business or technical information disclosed by either Party to the other that is designated as confidential at the time of disclosure or that, under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary, including Customer Data, all non-public elements of the Facets Services. A receiving party will not use the disclosing party’s Confidential Information except as necessary for the performance or enforcement of this Agreement and will not disclose such Confidential Information to any third party except to is Authorized Users who have a bona fide need to know such Confidential Information for the performance or enforcement of these Terms; provided that each such Authorized User is bound by a written agreement that contains use and disclosure restrictions consistent with the terms set forth in this Section 6.a). Each receiving party will protect the disclosing party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to the efforts that the receiving party ordinarily uses with respect to its own Confidential Information and in no event less than a reasonable standard of care. Each Party’s duty of confidentiality under this Section 6.a) shall continue for a period of three years after termination of these Terms except solely with respect to any portion of the other Party’s received Confidential Information (i) that becomes publicly known through no fault of the receiving party; (ii); that is, when it is supplied, already known to whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; (iii) that is independently obtained by whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; or (iv) the receiving party can demonstrate through documentary evidence was independently developed by the receiving party without use of or reference to the Confidential Information; provided, however, that a Party may to the extent necessary disclose such Confidential Information as required by applicable law, regulation, court order or action by applicable regulatory authority, subject to the Party required to make such disclosure giving reasonable notice to the other Party to enable it to contest such order or requirement or limit the scope of such request. The provisions of this Section 6.a) shall supersede any non-disclosure agreement by and between the parties that would purport to address the confidentiality of Customer Data and such agreement shall have no further force or effect with respect to Customer Data.
a) Warranties. Facets warrants that Facets has employed and will continue to employ appropriate industry standards of practice designed to: (i) ensure that its provision of the Facets Services under this Agreement will not infringe any third party Intellectual Property Rights or other proprietary rights; (ii) prevent the transmission of malware or malicious code via the Facets Services; (iii) meet its performance, confidentiality and other obligations under this Agreement; and (iv) prevent unauthorized access to or disclosure of Customer Data.
b) Disclaimer. THE WARRANTIES IN SECTION 7.a) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING FACETS AND FACETS’ SERVICES PROVIDED HEREUNDER. FACETS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS AND OTHER TERMS INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES, CONDITIONS AND OTHER TERMS OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY OF THE FOREGOING. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN): (i) FACETS SERVICES PROVIDED UNDER ANY FREE TRIAL PERIOD ARE PROVIDED "AS-IS" AND WITHOUT WARRANTY OF ANY KIND BY FACETS; (ii) WITHOUT LIMITATION, FACETS DOES NOT MAKE ANY WARRANTY OF ACCURACY, COMPLETENESS, TIMELINESS, OR UNINTERRUPTABILITY, OF THE FACETS SERVICES; (iii) FACETS IS NOT RESPONSIBLE FOR RESULTS OBTAINED FROM THE USE OF THE FACETS SERVICES OR FOR CONCLUSIONS DRAWN FROM SUCH USE; AND (iv) FACETS’ EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER DATA PURSUANT TO SECTION (CUSTOMER RESPONSIBILITIES) WILL CONSTITUTE FACETS’ SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER DATA IN CONNECTION WITH THE FACETS SERVICES.
a) Indemnification by Facets. Subject to Section 8(e) (Conditions of Indemnification), and to the extent solely and entirely attributable to Facets, Facets (as “Indemnitor”) will defend, indemnify and hold you harmless from and against all third party liabilities, costs, damages and expenses (including settlement costs pre-approved by Facets and reasonable attorneys’ fees) incurred by you, including your officers, employees, directors (each as an “Indemnitee”), to the extent based upon such third party’s claim that the Facets Services, as provided by Facets to you pursuant to the Agreement, infringe such third party’s Intellectual Property Rights. Notwithstanding the foregoing, Facets will have no liability for any infringement claim of any kind if such claim arises from: (i) the combination, operation or use of the Facets Services with equipment, devices, software or data (including without limitation your Confidential Information) not supplied by Facets, if a claim would not have occurred but for such combination, operation or use; or (ii) your or an Authorized User’s use of the Facets Services other than in accordance with this Agreement; or (iii) any use of the Facet Services which breaches the provisions of these Terms.
b) Indemnification by You. Subject to Section (Conditions of Indemnification), you (as “Indemnitor”) will defend, indemnify and hold harmless Facets and its Affiliates from and against all liabilities, costs, damages and expenses (including settlement costs pre-approved by you and reasonable attorneys’ fees) incurred by Facets, including its officers, employees, directors, agents and affiliates (each as an “Indemnitee”) to the extent arising from or related to (i) your breach or other violation of Sections 3 (Customer Obligations; Customer Cloud Environment), 6 (Confidentiality), 2 (c) (Ownership of Facets Services); (iv) any Intellectual Property Rights infringement due to the Customer Data.
c) Injunction. If your use of the Facets Services is, or in Facets’ opinion is likely to be, enjoined due to the type of claim specified in Section 8.a), then Facets may at its sole option and expense: (i) replace or modify the Facets Services to make them non-infringing and of equivalent functionality; (ii) procure for you the right to continue using the Facets Services under the terms of the Agreement; or (iii) if Facets is unable to accomplish either (i) or (ii) despite using its reasonable efforts, terminate your rights and Facets’ obligation under the Agreement with respect to such Facets Services and refund to you any Fees prepaid by you for Facets Services not yet provided.
d) Sole Remedy. THE FOREGOING SECTIONS 8.a) (Indemnification by Facets) and 8.c) (Injunction) STATE THE ENTIRE OBLIGATION OF FACETS AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY THE FACETS SERVICES.
e) Conditions of Indemnification. As a condition to an Indemnitor’s obligations under this Section 8, an Indemnitee will: (i) promptly notify the Indemnitor of the claim for which the Indemnitee is seeking indemnification; (ii) grant the Indemnitor sole control of the defense and settlement of the claim; (iii) provide the Indemnitor, at the Indemnitor’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim; (iv) preserve and will not waive legal, professional or any other privilege attaching to any of the records, documents, or other information in relation to such claim without prior notification of consent by the Indemnitor. The Indemnitor will not settle any claim that involves a remedy other than payment without the Indemnitee’s prior written consent, which may not be unreasonably withheld or delayed. An Indemnitee has the right to retain counsel, at the Indemnitee’s expense, to participate in the defense or settlement of any claim. The Indemnitor will not be liable for any settlement or compromise that an Indemnitee enters into without the Indemnitor’s prior written consent.
a) Neither Party shall be liable under or in connection with these Terms to the other (whether for breach of contract, tort (including negligence), breach of statutory duty or otherwise) for (i) loss of profit or revenue, (ii) loss from damage to business or goodwill, (iii) loss of contracts, (iv) loss of customers, (v) device failure or malfunction, or (vi) any other indirect, incidental, consequential, or special loss, even if a Party has been advised of the possibility of such losses occurring.
b) Subject to Sections above, any payment obligation of Customer or indemnity obligation of Customer, the aggregate liability of either Party, its employees and its and each of their Affiliates' to the other Party arising out of or in connection with the Agreement (and whether such liability arises as a result of breach of contract, tort (including negligence), breach of statutory duty or otherwise) shall be limited in the aggregate in relation to all claims arising from, or in connection with, the Agreement, to the amounts payable to Facets as Fees (in the twelve months preceding the event giving rise to the claim) under the applicable Order or Orders for the Facets Services in relation to which a dispute arises.
c) Notwithstanding anything to the contrary in the Agreement, Facets disclaims all liability, direct or indirect (and whether for breach of contract, tort (including negligence), breach of statutory duty, or otherwise), in connection with Facets Services provided in any free trial period.
The Facets Services, and derivatives thereof, may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit your users to access or use any Facets Services in a U.S. embargoed country or in violation of any U.S. export law or regulation.
a) Governing Law. If not specified in the Order, the Agreement (including all Orders) will be governed by the laws of the state of Delaware, any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts of the state of Delaware.
b) Entire Agreement, Construction and Execution. If any provision of the Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect. The Agreement is the complete and exclusive understanding and agreement between the Parties regarding its subject matter. Nothing in the preceding sentence shall limit or exclude any liability for fraud or fraudulent misrepresentation. The headings in this Terms are solely for convenience, and shall not be taken into consideration in interpretation of the Terms. The Agreement may not be modified or amended except by mutual written agreement of the Parties. The Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. A Party’s electronic signature or transmission of any document by electronic means shall be deemed to bind such Party as if signed and transmitted in physical form.
c) Assignment. No assignment of a Party’s rights and obligations under the Agreement is permitted except with the prior written approval of the other Party, which shall not be unreasonably withheld; provided, however, that either Party may freely make such assignment to a successor in interest upon a change of control.
d) Notice. Any notice, demand or request required or permitted to be given under this Terms shall be in writing and shall be deemed sufficient when delivered personally or by overnight courier or sent by email, or 48 hours after being deposited in the mail as certified or registered mail with postage prepaid, addressed to the Party to be notified at such Party’s address as set forth on the signature page, as subsequently modified by written notice, or if no address is specified on the signature page, at the most recent address set forth in the Company’s books and records.
e) Force Majure. Notwithstanding anything herein to the contrary, Subscriber understands and agrees that its use of the Facets Services may be interrupted by circumstances beyond Facets' reasonable control, including, without limitation, acts of God, acts of government, changes in law or regulations, acts or omissions of third parties, pandemic, strikes or other actions taken by labor organizations, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Facets' possession or reasonable control, or any other cause, whether similar or dissimilar to any of the foregoing that is beyond Facets' reasonable control (individually or collectively as applicable, "Force Majeure"). Facets shall not be responsible or otherwise liable for any Force Majeure or any consequences thereof.
These Terms of Service were last updated on the 17th day of November 2022.
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