PLEASE READ THESE TERMS AND
CONDITIONS (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY NZYME
EXPRESSIONS. (“ZIGYAASA”). BY CHECKING “I ACCEPT THE TERMS AND CONDITIONS “,
YOU OR THE ENTITY THAT YOU REPRESENT (“CUSTOMER” OR “YOU”) ARE UNCONDITIONALLY
CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THE SERVICES AGREEMENT
CONSISTING OF ONE OR MORE ONLINE OR PRINTED ORDER FORMS REFERENCING THESE TERMS
(“ORDER FORM”), THIS PARAGRAPH AND THESE TERMS (THE “AGREEMENT”) WITH RESPECT
TO THE SERVICES BEING PROVIDED BY ZIGYAASA. IF A SEPARATE SIGNED WRITTEN
AGREEMENT WITH RESPECT TO THE SERVICES EXISTS BETWEEN CUSTOMER AND ZIGYAASA,
THE TERMS OF THAT SIGNED WRITTEN AGREEMENT (EXCLUDING THE PRE-PRINTED TERMS OF
ANY PURCHASE ORDER, CONFIRMATION OR SIMILAR DOCUMENT, WHICH WILL HAVE NO EFFECT
AND WILL NOT BE CONSIDERED AGREED TO BY ZIGYAASA) SHALL TAKE PRECEDENCE OVER
THIS AGREEMENT, AND YOU ACKNOWLEDGE THAT CUSTOMER IS BOUND BY THE TERMS OF THAT
SIGNED WRITTEN SERVICES AGREEMENT. PROVISION OF THE SERVICES IS CONDITIONED ON,
AND CUSTOMER’S INSTALLATION OR USE OF THE SERVICES SHALL CONSTITUTE, CUSTOMER’S
ASSENT TO THE TERMS OF THIS AGREEMENT OR OF SUCH EXISTING SEPARATE WRITTEN
AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF YOU DO NOT CHECK “I ACCEPT
THE TERMS AND CONDITIONS” YOU WILL HAVE NO RIGHT TO USE THE SERVICES. IF THESE
TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS
TO THE EXCLUSION OF ALL OTHER TERMS.
1. Services
1.1 Subject to the terms and conditions of this
Agreement, Zigyaasa will use commercially reasonable efforts to provide
Customer with access to the Services described in the applicable Order Form.
The Services are subject to modification (including, without limitation, to
provide new features, implement new protocols, maintain compatibility with
emerging standards or comply with regulatory requirements) from time to time at
Zigyaasa’s discretion.
1.2 Through the Services, Zigyaasa
may obtain access to a set of data provided by Customer in the course of the
Customer’s use of the Service (“Customer Data”). Through the Services, Customer
may obtain access to a set of data or a report provided by Zigyaasa in the
course of the Customer’s use of the Service (“Report”). Reports are considered
part of the Services for purposes of this Agreement.
2. Restrictions and Responsibilities
2.1 Customer represents and warrants that: (i) it will not use the Services or any product thereof in
any manner that violates any law or governmental regulation; (ii) it will
prevent any unauthorized use of or access to the Services and promptly notify Zigyaasa
of any such use or access; and (iii) Customer Data (including Customer’s
provision thereof to Zigyaasa and Zigyaasa’s use
thereof) will not violate or infringe the rights of others, including, without
limitation, any patent, copyright, trademark, trade dress, trade secret,
privacy, publicity, or other personal or proprietary right. Customer will not,
and will not permit any third party to: reverse engineer, decompile,
disassemble or otherwise attempt to discover the source code, object code or underlying
structure, ideas or algorithms of the Services or any software, documentation
or data related to the Services (except to the extent applicable law prohibits
such a restriction); modify, translate, or create derivative works based on the
Services; use the Services for timesharing or service bureau purposes or for
any purpose other than its own internal business purposes (including providing
any Report to a third party); or use the Services other than in accordance with
this Agreement and in compliance with all applicable laws and regulations.
2.2 Customer may be permitted,
through the functionality of the Services, to access the Services through a third party platform or to link its Services account with
its third party platform account (each such platform, a “Third Party
Platform”). If Customer accesses the Services through a Third Party Platform,
it understands and agrees that information in its account on the Third Party
Platform may be transferred or made available to Zigyaasa during the term of
this Agreement (“Third Party Platform Information”), and information in its Zigyaasa
account may be transferred or made available in its Third Party Platform account
(and/or to the third party that controls the Third Party Platform), and
Customer hereby consents to all such transfers and to Zigyaasa using and
exploiting Third Party Platform Information in connection with its provision of
the Services (and as described in Section 3.5).
2.3 Customer will cooperate
with Zigyaasa in connection with the performance of this Agreement by making
available such personnel and information as may be reasonably required, and
taking such other actions as Zigyaasa may reasonably request. Customer’s use of
the Services may be limited to a certain number of users, as described in the
Order Form; Customer will establish a username and password (or any other means
required by Zigyaasa) for verifying that only designated employees of Customer
have access to the Services as users under Customer’s account unless another
means of verification is explicitly provided on the Order Form. Customer will
be responsible for maintaining the security of all Customer accounts, passwords
(including but not limited to administrative and user passwords) and files, and
for all uses of Customer accounts with or without Customer’s knowledge or
consent.
2.4 Customer will designate an
employee who will be responsible for all matters relating to this Agreement (“Primary
Contact”). Customer may change the individual designated as Primary Contact at
any time by providing written notice to Zigyaasa. The Primary Contact will be
responsible for the transmission of all Customer Data to Zigyaasa. Zigyaasa
will disregard and take no action regarding Customer Data submitted by anyone
other than the Primary Contact.
3. Privacy and Confidentiality
3.1 Each party (the “Receiving Party”)
understands that the other party (the “Disclosing Party”) has disclosed or may
disclose information relating to the Disclosing Party’s technology or business
(hereinafter referred to as “Proprietary Information” of the Disclosing Party).
3.2 The Receiving Party agrees:
(i) not to divulge to any third person any such
Proprietary Information (except as allowed in subsection (ii)), (ii) to give
access to such Proprietary Information solely to its employees and contractors
with a need to have access thereto for purposes of this Agreement, (iii) to
take the same security precautions to protect against disclosure or
unauthorized use of such Proprietary Information that the party takes with its
own proprietary information, but in no event will a party apply less than
reasonable precautions to protect such Proprietary Information, and (iv) not to
use such Proprietary Information except to exercise its rights and fulfill its
obligations under this Agreement. The Disclosing Party agrees that the
foregoing will not apply with respect to any information that the Receiving
Party can document (a) is or becomes generally available to the public without
any action by, or involvement of, the Receiving Party, or (b) was in its
possession or known by it prior to receipt from the
Disclosing Party, or (c) was rightfully disclosed to it without restriction by
a third party, or (d) was independently developed without use of any
Proprietary Information of the Disclosing Party. Nothing in this Agreement will
prevent the Receiving Party from disclosing the Proprietary Information
pursuant to any judicial or governmental order, provided that the Receiving
Party gives the Disclosing Party reasonable prior notice of such disclosure to
contest such order. Customer Data shall be considered Proprietary Information
of Customer.
3.3 Customer acknowledges that Zigyaasa
does not wish to receive any Proprietary Information from Customer that is not
necessary for Zigyaasa to perform its obligations under this Agreement, and,
unless the parties specifically agree otherwise, Zigyaasa may reasonably
presume that any unrelated information received from Customer is not
confidential or Proprietary Information.
3.4 For clarity, the Services
(including any Reports) are also Zigyaasa’s
Proprietary Information, as are any Feedback (defined below) and the terms of
this Agreement (which, in the case of Feedback and these terms (including any
pricing terms), shall be deemed disclosed by Zigyaasa, and to which the
exceptions set forth in Section 3.2(b) and (d) do not apply).
3.5 Notwithstanding anything to
the contrary, Zigyaasa may de-identify any information collected from Customer
in the course of this Agreement (including any Third Party Platform Information),
and use and freely exploit such information, provided that Zigyaasa aggregates
and/or de-identifies such information prior to disclosure to a third party such
that the information does not individually identify Customer or Customer’s
clients (except that Zigyaasa may disclose individually identifiable
information to its third party contractors who are subject to confidentiality
obligations).
4. Intellectual Property Rights
4.1 Except as expressly set forth herein, Zigyaasa
alone (and its licensors, where applicable) will retain all intellectual
property rights relating to the Services, and to any suggestions, ideas,
enhancement requests, feedback, recommendations or other information provided
by or on behalf of Customer relating to the Services (“Feedback”), and Customer
hereby makes all assignments necessary to accomplish the foregoing with respect
to Feedback.
4.2 Customer hereby grants Zigyaasa
a non-exclusive, worldwide, royalty-free, perpetual and irrevocable license to
use all Customer Data as permitted by this Agreement.
4.3 Pursuant to the terms and
conditions of this Agreement, Customer is hereby granted (1) a limited,
non-exclusive, nontransferable, revocable right to use the Services (excluding
Reports) for its internal purposes only solely for the term of the Agreement,
and (2) a limited, non-exclusive, nontransferable, perpetual right to use
Reports for its internal purposes only. This Agreement is not a sale and does
not convey to Customer any rights of ownership in or related to the Services
(including any Reports), or any intellectual property rights. All rights not
expressly granted herein are reserved by Zigyaasa.
5. Fees and Payments; Taxes
5.1 The Services are provided on a subscription
basis. The term of Customer’s subscription is set forth in the applicable Order
Form (the “Subscription Term”). Subscription fees for each Subscription Term
(the “Subscription Fees”) must be paid in full on or before the first day of
the applicable Subscription Term. Customer shall pay all such Subscription Fees
via the payment method set forth in the applicable Order Form.
5.2 Zigyaasa may automatically
bill Customer’s payment method on or about the first day of each Subscription
Term if Customer’s payment method allows for such automatic billing, and
Customer has not opted out of such automatic billing in writing. To opt out of
such automatic billing, Customer can email Zigyaasa at: zigyaasacompany@gmail.com. Zigyaasa
reserves the right to change the timing of such automatic billing.
5.3 Customer is responsible for
keeping all payment information accurate and up-to-date; failure to do so may
prevent Zigyaasa from collecting amounts due hereunder. Zigyaasa may suspend
access to the Services or any portion thereof if Customer is late in making any
payment when due. Late payments will bear interest at the rate of 1.5% per
month (or the highest rate allowed by applicable law, whichever is lower) until
paid. All amounts paid hereunder are non-refundable and non-creditable.
5.4 Customer is responsible for
withholding, filing, and reporting all taxes, duties, and other governmental
assessments associates with its activity in connection with the Services.
6. Term and Termination; Suspension
6.1 The term of this Agreement shall be as
described in the applicable Order Form, unless earlier terminated as described
in this Section 6 (the “Term”). The Order Form may provide that the initial
term of this Agreement (“Initial Term”) will automatically renew for an
additional term that is equal in length to the Initial Term (and continue to
automatically renew in the same manner thereafter) (each, a “Renewal Term”);
either party may prevent such auto-renewal by giving the other party thirty
(30) days written notice of its intent not to renew prior to the end of the
then-current Initial or Renewal Term (as applicable).
6.2 Zigyaasa may also suspend
or limit Customer’s access to or use of the Service if Customer’s use of the
Service results in (or is likely to result in, in Zigyaasa’s
discretion) damage to or material degradation of the Service which interferes
with Zigyaasa’s ability to provide access to the
Service to other customers. If Zigyaasa knows that Customer’s use is likely to
result in such damage or degradation, Zigyaasa will use reasonable efforts to
(a) provide Customer with notice and (b) work with Customer, prior to any such
damage or degradation in order to resolve the issue without resorting to
suspension or limitation. Zigyaasa may reinstate Customer’s use of or access to
the Service, as applicable, if Customer remediates the issue within thirty (30)
days of receipt of such notice.
6.3 Either party may terminate
this Agreement for a party’s material breach of this Agreement, upon fifteen
days’ prior written notice to the non-breaching party (provided such breach
remains uncured at the end of such fifteen (15) days period). Zigyaasa may
terminate this Agreement for Zigyaasa’s convenience
upon thirty days’ prior written notice to Customer. Upon expiration or
termination of this Agreement, Customer’s right to use the Services will
immediately cease, provided that to the extent any Report has been provided to
Customer hereunder Customer may continue to use such Report for its own
internal business purposes, and for no other reason. The following Sections
shall survive any termination of this Agreement: 3, 4.1, 4.2, 4.3 (except for
the first sentence thereof), 5 (as it relates to amounts due hereunder incurred
prior to termination), 6, 8-10, and 12.
7. Support
Zigyaasa offers email-based support. Customer may contact the support
desk at support@Zigyaasa.com. Zigyaasa
does not make any promises regarding how quickly it will respond to a request
for support, or that it will be able to fix any problems Customer may be
having. Any suggestions by Zigyaasa regarding use of the Services shall not be
construed as a warranty.
8. Warranty Disclaimer
THE SERVICES AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE
PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. ZIGYAASA HEREBY DISCLAIMS
(ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS) ALL WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
9. Limitation of Liability
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT WILL ZIGYAASA
(OR ITS LICENSORS OR SUPPLIERS) BE LIABLE FOR (I) ANY INDIRECT, PUNITIVE,
INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH
THIS AGREEMENT, (II) THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING
PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS
AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OR CORRUPTION OF DATA, ERROR OR
OMISSION IN THE SERVICES, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST
BUSINESS OR LOST SALES, (III) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE
GREATER OF (A) ONE-THOUSAND US DOLLARS ($1000) OR (B) THE AMOUNTS PAID AND/OR
PAYABLE BY CUSTOMER TO ZIGYAASA IN THE TWELVE (12) MONTH PERIOD PRECEDING THE
APPLICABLE CLAIM; IN EACH CASE WHETHER BASED IN CONTRACT, TORT (INCLUDING
NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, AND WHETHER OR NOT ZIGYAASA HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Indemnification
Customer shall defend, indemnify, and hold harmless Zigyaasa, its
affiliates, and each of its, and its affiliates, employees, contractors,
directors, supplier and representatives, from and against any liabilities,
losses, claims, and expenses, including reasonable attorneys’ fees, arising
from Customer’s actions in connection with any breach of this Agreement and/or
unauthorized use of the Services or Software, including any claim that such
actions violate any applicable law or third party right.
11. U.S. Government Matters
11.1 Notwithstanding anything else, Customer may
not provide to Zigyaasa or any other person (whether through the Services or
any other means), or export or re-export, or allow the export or re-export of
the Services, any data or information, or any software or anything related
thereto or any direct product thereof (collectively “Controlled Subject
Matter”), in violation of any restrictions, laws or regulations of the United
States Department of Commerce, the United States Department of Treasury Office
of Foreign Assets Control, or any other United States or foreign agency or authority.
Without limiting the foregoing Customer acknowledges and agrees that the
Controlled Subject Matter will not be used or transferred or otherwise exported
or re-exported to countries as to which the United States maintains an embargo
(collectively, “Embargoed Countries”), or to or by a national or resident
thereof, or any person or entity on the U.S. Department of Treasury’s List of
Specially Designated Nationals or the U.S. Department of Commerce’s Table of
Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed
Countries and Designated Nationals are subject to change without notice. Use of
the Services is representation and warranty that the user is not located in,
under the control of, or a national or resident of an Embargoed Country or
Designated National. The Controlled Subject Matter may use or include
encryption technology that is subject to licensing requirements under the U.S.
Export Administration Regulations.
11.2 As defined in FAR section
2.101, any software and documentation provided by Zigyaasa are “commercial
items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to
be “commercial computer software” and “commercial computer software
documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212,
any use modification, reproduction, release, performance, display, or
disclosure of such commercial software or commercial software documentation by
the U.S. Government will be governed solely by the terms of this Agreement and
will be prohibited except to the extent expressly permitted by the terms of
this Agreement.
12. Miscellaneous
If any provision of this Agreement is found to be unenforceable or
invalid, that provision will be limited or eliminated to the minimum extent
necessary so that this Agreement will otherwise remain in full force and effect
and enforceable. This Agreement is not assignable, transferable or
sublicensable by Customer except with Zigyaasa’s
prior written consent; Zigyaasa may transfer and assign any of its rights and
obligations under this Agreement freely and without consent. Both parties agree
that this Agreement is the complete and exclusive statement of the mutual
understanding of the parties and supersedes and cancels all previous written
and oral agreements, communications and other understandings relating to the
subject matter of this Agreement. Zigyaasa reserves the right to change this
Agreement at any time, but if Zigyaasa does, Zigyaasa will bring it to
Customer’s attention by placing a notice on the website, by sending Customer an
email, and/or by some other means. If Customer does not agree with such changes
to the Agreement, Customer may reject such changes, provided Customer no longer
uses or accesses the Services. If Customer uses or accesses the Service in any
way after a change to the Agreement is effective, that means Customer agrees to
all of the changes. Except for changes by Zigyaasa as described here, no other
amendment or modification of this Agreement will be effective unless in writing
and signed by both Customer and Zigyaasa. No agency, partnership, joint
venture, or employment is created as a result of this Agreement and Customer
does not have any authority of any kind to bind Zigyaasa in any respect
whatsoever. All notices under this Agreement will be in writing and will be
deemed to have been duly given when received, if personally delivered; when
receipt is electronically confirmed, if transmitted by facsimile or e-mail; and
upon receipt, if sent by certified or registered mail (return receipt
requested), postage prepaid. Zigyaasa will not be liable for any loss resulting
from a cause over which it does not have direct control. This Agreement will be
governed by the laws of the Karnataka, INDIA, without regard to its conflict of
laws provisions. Any dispute arising from or relating
to the subject matter of this Agreement shall be finally settled in Karnataka, INDIA,
in English. Judgment upon the award rendered by such arbitrator may be entered
in any court of competent jurisdiction. Notwithstanding the foregoing
obligation to arbitrate disputes, each party shall have the right to pursue
injunctive or other equitable relief at any time, from any court of competent
jurisdiction. Without limiting the foregoing, for all purposes of this
Agreement, the parties consent to exclusive jurisdiction
and venue in the state or federal courts located in, respectively, Bengaluru, Karnataka
INDIA. Any arbitration under this Agreement will take place on an individual
basis: class arbitrations and class actions are not permitted. CUSTOMER
UNDERSTANDS AND AGREES THAT BY ENTERING INTO THESE TERMS, CUSTOMER AND ZIGYAASA
ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS
ACTION. Customer agrees to participate in press announcements, case studies,
trade shows, or other forums reasonably requested by Zigyaasa. Zigyaasa is
permitted to disclose that Customer is one of its customers to any third-party
at its sole discretion (including without limitation in its publicity and
marketing materials).