Terms Of Service

These terms of services (the “General Terms”) govern the use of, and the subscription to, the Website and the Comute Platform provided by DataSmart eServices Pvt. Ltd.. By accessing the Website and/or the Comute Platform, you agree to the General Terms on behalf of yourself as a user and, as the case may be, on behalf of the organisation that you represent (“Customer”).

  1. DEFINITIONS AND INTERPRETATION

    The following capitalised terms shall have the meaning ascribed to them below:

    1. Privacy Policy” means Comute Privacy Policy available at https://datasmartes.com/privacy .
    2. Customer Data” means any content, which may include personal information of Users, that Customer or Users submit or transfer to Comute in conjunction with the Services, such as school information & details of vehicles, students, teachers, drivers, managers, etc.
    3. Comute Platform” means the vehicle tracking platform commercialised by DataSmart as “Comute” and accessed by Users;
    4. Parties” means Comute.io and Customer;
    5. Users” means you and any individual to whom Customer provides access to the Comute Platform, including any account administrators, company manager, group manager and any Survey Respondents;
    6. Website” means the website at www.comute.io and all the web-pages, content within, example, https://comute.io/white_paper/
  2. ACCESS AND USE OF THE COMUTE PLATFORM

    1. Services
      During the Term (starting from date of creation of account on Comute) and subject to Section 3.1, Comute grants to Customer and its Users the right to access and use the Comute Platform, and any related services, in accordance with the General Terms.
    2. Limitations to the Services
      Customer acknowledges and agrees that Comute does not control the Customer Data and does not guarantee the accuracy, integrity or quality of such Customer Data. Customer is solely responsible for evaluating the accuracy, reliability, completeness and usefulness of any information obtained through use of the Comute Platform and for making and implementing decisions based on such information and dealing with any related consequences. Customer further acknowledges and agrees that Comute assumes no liability for any Customer Data handled by Customer through the Comute Platform.
    3. Services Revisions
      Comute may revise the content, features and functions of the Comute Platform at any time without notice. Comute will provide Customer with prior notice if there is a change to the Comute Platform resulting in overall material decrease in functionality of the Comute Platform. In such cases, Customer may terminate its subscription in accordance with Section 9.2(i) (Termination).
    4. Temporary Suspension of the Services
      Comute may temporarily limit or suspend the Services from time to time at its discretion including to perform upgrades to, and maintenance of, the Comute Platform.
    5. Unacceptable Use
      Customer shall not, nor attempt to, nor permit third parties to: (a) share nonpublic features or content of the Comute Platform with any third party; or (b) copy, duplicate, reverse engineer, decompile, decode, decrypt, disassemble, record, alter, merge, adapt, translate, create any derivative works or otherwise reproduce any part of the Comute Platform. For clarity purposes, Customer shall not access the Comute Platform in order to build a product or service competing with the Services or to build a product using ideas, features, functions or graphics similar to those of the Comute Platform. In the event that it suspects any breach of this Section, Comute may suspend Customer’s access to the Services without advanced notice, in addition to such other remedies as Comute may have.
    6. Account Security and Access
      Customer shall take reasonable steps to prevent unauthorized access to the Comute Platform, including by protecting its passwords and other login information. Customer is responsible for any activity occurring in its account (other than activity that Comute is directly responsible for and is not performed in accordance with Customer’s instructions), whether or not Customer authorized that activity. Customer shall immediately notify Comute if it becomes aware of any unauthorized access to, or use of, its account.
    7. Customer Systems
      Customer is responsible for maintaining and updating any operating systems, Internet browsers, anti-virus software, or other software that its Users use to access and use the Services. Customer acknowledges that the Services may not work properly if its operating systems, Internet browsers and anti-virus software are not up-to-date.
    8. Unacceptable Conduct of Users
      To help ensure a safe and productive use of the Comute Platform, Customer shall ensure that Users do not have inappropriate conduct including (i) attempting to reveal the identity of a User, (ii) impersonating any other person or entity or (iii) allowing the submission of any Customer Data that is (or using the Customer Data in a way that is) illegal, harmful, threatening, abusive, harassing, defamatory, libelous, vulgar, obscene, offensive, indecent, hateful, or racially, ethically or otherwise objectionable. USERS SHALL BE RESPECTFUL OF THE SURVEY RESPONDENTS’ RIGHT TO REMAIN ANONYMOUS. It is Customer’s responsibility to monitor and control all activity conducted by Users on the Comute Platform. Comute is under no obligation to review how Users are using the Comute Platform (including how Survey Respondents answer surveys and polls and provide feedback and comments). Comute ASSUMES NO LIABILITY FOR ANY UNACCEPTABLE CONDUCT BY THE USERS OR FOR ANY CONTENT UPLOADED BY THE USERS IN THE Comute PLATFORM.
    9. Indemnification by Customer
      Customer shall defend, indemnify and hold harmless, Comute, against any claim, suit or proceeding arising out of, or related to (a) Customer Data; (b) the breach of any warranty, covenant or other obligation contained in these General Terms by Customer or any User or (c) Customer’s or any User's alleged or actual use of, misuse or inappropriate use of or failure to use the Services, including any Customer’s or User’s use in violation of Section 2.5 (Unacceptable Use) and 2.8 (Unacceptable Conduct of Users)
    10. Compliance with Laws
      When using the Services, Customer shall comply with all applicable laws, including laws governing the protection of personal information. Customer is also responsible to obtain any consent required by law from its Users to allow Customer to use the Services and to allow Comute to provide the Services in accordance with the General Terms and the Privacy Policy.
    11. Compliance by Users
      Customer must ensure that its Users comply with all applicable laws, including laws governing the protection of personal information, and that such Users are governed by, and comply with, the General Terms.
  3. SERVICE FEES OF THE Comute PLATFORM AND BILLING

    1. Service Fees
      Some features of the Services may only be accessed or used upon payment of service fees (the “Service Fees”(Need to define?)). The Service Fees are specified on the Website, unless other payment terms have been agreed to in writing between Customer and Comute. Customer further acknowledges and agrees that the Services Fees for the paid subscription are determined in accordance with the number of Users or number of Team and that if the number of Users / Teams changes, the Service Fees will be adjusted accordingly. Customer agrees that its subscription be automatically renewed at the Renewal Date for the same subscription term as the previous one, unless it cancels its subscription before the Renewal Date in accordance with Section 9.2(i). Customer is responsible for timely canceling its subscription in accordance with Section 9.2(i) regardless of whether it receives any renewal prior notice from Comute. For the purpose of the General Terms, a “Renewal Date” is the first day following the expiration of a subscription term.
    2. Revised Service Fees
      Comute reserves the right to revise the Service Fees applicable to a paid subscription in its sole discretion. The revised Service Fees will take effect as of the next Renewal Date for the next term of a paid subscription further to a prior notice from Comute to Customer.
    3. Downgrade
      In the event Customer downgrades any subscription from a paid subscription to a free subscription, Customer will remain responsible for any unpaid fees under the paid subscription. Customer acknowledges and agrees that a downgrade will result in a decrease in certain features and functionality.
    4. No Refunds
      Payments are nonrefundable and there are no refunds or credits for partially used periods.
    5. Free trial
      From time to time, Comute may offer trials of the paid subscription for a specified period without payment (a “Trial”). Comute reserves the right, in its absolute discretion, to determine Customer’s eligibility for a Trial and to withdraw or to modify a Trial at any time without prior notice and with no liability. Upon the expiration of the Trial period, Customer will only be able to access and use those features of the Service available under the free subscription, unless Customer subsequently upgrades to a paid subscription of the Services. If the customer chooses to NOT renew to a paid plan, the customer data will be irrevocably deleted within 30 days of end of tiral.
    6. Third Party Payment Processor
      Comute reserves the right to use a third party payment processor for all billing and receipt of payments hereunder.
    7. Taxes
      Unless otherwise stated, the Service Fees do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). Customer is responsible for paying Taxes except those assessable against Comute based on its income. Comute will invoice Customer for such Taxes if Comute believes it has a legal obligation to do so and Customer agrees to pay such Taxes if so invoiced.
  4. ACCESS AND USE OF THE WEBSITE

    1. Website
      The users of the Website may access and use the Website in accordance with the General Terms and the Privacy Policy.
    2. Limitations to the Website
      The users of the Website are solely responsible for evaluating the accuracy, reliability, completeness and usefulness of any information obtained through use of the Website and for making and implementing decisions based on the use of the Website and dealing with any related consequences.
    3. Unacceptable Use
      The users of the Website shall not, nor attempt to, nor permit third parties to copy, duplicate, reverse engineer, decompile, decode, decrypt, disassemble, record, alter, merge, adapt, translate, create any derivative works or otherwise reproduce any part of the Website, including any content available on the Website.
    4. Website Revisions
      Comute may revise the content, features and functions of the Website at any time without notice.
    5. Temporary Suspension of the Website
      Comute may temporarily limit or suspend the access to the Website from time to time at its discretion including to perform upgrades and maintenance to the Website.
  5. DATA

    1. Customer Data
      Customer represents and warrants that it has secured all rights in and to Customer Data. Customer grants Comute a perpetual, irrevocable and royalty-free right to access, use, process, copy, distribute, perform, export and display Customer Data, only to the extent permitted by law and as reasonably necessary (a) to provide, maintain and improve the Services; (b) to prevent or address service, security, support or technical issues; in accordance with the Privacy Policy or (d) as otherwise expressly permitted in writing by Customer. This right continues with respect to the de-identified data derived from Customer Data and any residual backup copies of Customer Data made in the ordinary course of business even after Customer stops using the Services. Comute retains the right to delete any copies of such Customer Data.
    2. Customer Data subject to Anonymity and Confidentiality
      The answers to surveys, answers to polls, comments, feedbacks and suggestions provided by a Survey Respondent are anonymous and confidential, unless the Survey Respondent opts to remove the anonymity and confidentiality with respect to such content. Customer acknowledges and agrees that its right to possess Customer Data and Comute’s ability to show or transfer the Customer Data to Customer is subject to the degree of anonymity and confidentiality set by Comute or specified by each Survey Respondent, as applicable.
    3. Protection of Customer Data
      Comute shall store and process the Customer Data in a manner consistent with industry security standards and in accordance with the Privacy Policy. Customer acknowledges and agrees that hosting data online involves risks of unauthorized disclosure, loss or exposure and that, in accessing and using the Comute Platform, Customer assumes such risks.
    4. Disclosure of Customer Data

      Unless it receives Customer’s prior written consent, Comute shall not intentionally grant any third party access to Customer Data, except to Comute’s third party service providers in connection with the performance or the improvement of the Services or in accordance with the Privacy Policy. Before sharing any Customer Data with any of its third party service providers, Comute will ensure that the third party maintains reasonable data practices for maintaining the confidentiality and security of Customer Data and preventing unauthorized access. Notwithstanding the foregoing, Comute may disclose Customer Data as required by applicable law or by proper legal or governmental authority or in accordance with the Privacy Policy. Unless prohibited by law or any court order, Comute shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.

    5. Utilization Data from the Website and the Comute Platform Utilization Data

      Customer acknowledges and agrees that to the extend permitted by law, the aggregated data derived from telemetric information and data related to how Users access and use the Website and the Comute Platform (including, but not limited to, feature and function of the Website and the Comute Platform being used by Users) is owned by Comute and does not constitute Customer Data.

    6. Personal Information

      In the course of using the Services, Customer may transfer to Comute Customer Data containing personal information. Comute agrees to collect, access or process any personal information in accordance with its Privacy Policy available at https://datasmartes.com/privacy . Customer agrees and consents to the transfer, processing and storage of personal information in accordance with the General Terms and the Privacy Policy.

    7. Confidential Information

      “Confidential Information” means any non-public, confidential and sensitive information, including Customer Data, disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) and excludes any information that is:

      1. subject to applicable data protection laws, publicly available or later becomes publicly available other than through a breach of the General Terms;
      2. known to the Receiving Party or its employees, agents or representatives prior to such disclosure or is independently developed by the Receiving Party or its employees, agents or representatives subsequent to such disclosure;

        or

      3. subject to applicable data protection laws, publicly available or later becomes publicly available other than through a breach of the General Terms;
    8. Use or Disclosure of Confidential Information

      The Receiving Party shall only use or disclose Confidential Information to exercise its rights and fulfill its responsibilities under the General Terms. The Receiving Party shall exercise the same degree of care and protection with respect to the Confidential Information that it exercises with respect to its own confidential information and in any event, at least diligent and prudent care. The Receiving Party shall not directly or indirectly disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information, except that Comute may disclose Confidential Information to its third party services providers in connection with the performance or the improvement of the Services, in which case Comute will ensure that the third party maintains reasonable data practices for maintaining the confidentiality and security of the Confidential Information and preventing unauthorized access. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. The Receiving Party shall give the Disclosing Party prompt notice of any such legal or governmental demand and reasonably cooperate with the Disclosing Party in any effort to seek a protective order or otherwise to contest such required disclosure, at the Disclosing Party’s expense.

  6. WARRANTY DISCLAIMERS

    1. Warranty Disclaimers

      COMUTE DOES NOT WARRANT THAT THE WEBSITE OR THE COMUTE PLATFORM WILL BE UNINTERRUPTED, TIMELY, DEFECT FREE AND ERROR FREE. CUSTOMER ACCEPTS THAT THE WEBSITE AND THE COMUTE PLATFORM ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL DEFECTS AND ERRORS, IF ANY. COMUTE MAKES NO REPRESENTATIONS AND NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

  7. LIMITATION OF LIABILITY

    1. Exclusion

      IN NO EVENT SHALL COMUTE BE LIABLE TO CUSTOMER FOR ANY LOST PROFITS OR REVENUES OR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THESE GENERAL TERMS, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT FOR FRAUD OR WILLFUL MISCONDUCT OF COMUTE.

    2. Exclusion

      Should Customer hire an external consultant, not an authorised Comute consultant, to perform services relating to the implementation and the use of the Comute Platform, Comute shall have no responsibility in relation to such services.

  8. INTELLECTUAL PROPERTY AND FEEDBACK

    1. No Rights granted

      Comute retains all right, title, and interest in and to the Website and the Comute Platform and the content Customer accesses through the Website and the Comute Platform, other than Customer Data. These General Terms do not grant Customer any intellectual property rights in or to the Website or the Comute Platform or in Comute’s logos and other trademarks.

    2. Indemnification

      Subject to Section 7 (Limitation of Liability), Comute will defend, indemnify, and hold harmless Customer and its officers, directors, shareholders, parents, subsidiaries, agents, successors and assigns against any Third Party Claim Losses, including any interest accrued, but excluding any Third Party Claim Litigation Expenses; provided, however, that Comute will have no liability if the Third Party Claim Losses against Customer arises from (a) Customer Data; or (b) any modification, combination or development of the Comute Platform that is not performed by Comute. Customer must provide Comute with prompt written notice of any Third Party Claim Indemnifiable Proceeding and allow Comute the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting Comute defense and settlement of such matter. For the purpose of this Section, the following definitions apply:

      1. Third Party Claim Indemnifiable Proceeding” means any judicial, administrative, or arbitration action, suit, claim, investigation, or proceeding brought against Customer arising out of a third party claim that the software used in the Comute Platform infringes any intellectual property rights of such third party;

      2. Third Party Claim Litigation Expenses” means any reasonable out-of-pocket expense incurred in defending a Third Party Claim Indemnifiable Proceeding or in any related investigation or negotiation, including court filing fees, court costs, arbitration fees, witness fees, and attorneys’ and other professionals’ fees and disbursements;and

      3. Third Party Claim Losses” means any amount finally awarded in, or paid in settlement of, any Third Party Claim Indemnifiable Proceeding.

    3. Feedback

      Any feedback or suggestions sent by Customer or shared by Customer with Comute to improve the Comute Platform or the Website may be implemented by Comute. In such case, Customer grants Comute an unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free right to use any such feedback or suggestions for any purpose without any obligation or compensation to Customer.

  9. TERM

    1. Term

      These General Terms are effective as of the first date that Customer or a user of the Website, as the case may be, accesses and uses the Comute Platform or the Website until they are terminated by any or both Parties in accordance with Section 9.2 (the “Term”)

    2. Termination

      These General Terms may be terminated:

      1. by Customer at any time if it cancels the Services through its Comute account or with a Comute customer representative;

      2. by Comute at any time if Customer materially breaches any of its obligations under these General Terms. In the event that the material breach is curable, the General Terms may be terminated if such breach is not cured within fifteen (15) days after Comute provides notice of the breach. For clarity purposes, any violation of Section 2.5 (Unacceptable Use) and 2.8 (Unacceptable Conduct of Users) by Customer shall be deemed a material breach of these General Terms;

      3. by Comute if Customer fails to make any payment of the Service Fees; or

      4. by Comute for convenience with a thirty (30) days prior notice for monthly subscription or with a ninety (90) days prior notice for an annual subscription.

    3. No Refund in the Event of Termination

      Section 3.4 (No Refunds) applies, regardless of the cause of termination.

    4. Survival

      Sections 2.5 (Unacceptable Use), 2.8 (Unacceptable Conduct of Users), 2.9 (Indemnification by Customer), 5.1 (Customer Data), 5.4 (Disclosure of Customer Data), 5.5 (Utilization Data), 5.6 (Personal Information), 5.7 (Confidential Information), 5.8 (Use or Disclosure of Confidential Information), 6 (Warranty Disclaimers), 7 (Limitation of Liability), 8 (IP & Feedback) and 9 (Term) and 10 (General) shall survive termination of these General Terms.

  10. GENERAL

    1. Publicity

      Customer grants Comute the right to use Customer’s company name and logo as a reference for marketing or promotional purposes. If Customer wishes to limit such right, it shall send an email to info@datasmartes.com

    2. Choice of Law, Jurisdiction and Venue

      These General Terms shall be governed solely by the laws of India, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the Parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The Parties agree that any litigation in any way relating to these General Terms shall be brought and venued exclusively in courts of India and waives any objection that such venue is inconvenient or improper.

    3. Specific Performance

      Notwithstanding any other provision in these General Terms, each Party acknowledges and agrees that a non-breaching Party may, upon any breach of these General Terms, immediately seek enforcement of these General Terms by means of specific performance or injunction, without any requirement to post a bond or other security.

    4. Force Majeure

      Except as expressly provided otherwise in these General Terms, Comute shall not be liable by reason of any failure or delay in the performance of its obligations on account of an unforeseeable and irresistible event, including external causes with the same characteristics (a “Force Majeure”), which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortgages, riots, fires, act of God, war, terrorism and governmental action.

    5. Time is of the essence of these General Terms and of every part thereof

    6. No Other Agreements

      These General Terms are the complete and exclusive statement of the Parties’ agreement relating to the subject matter hereof and supersedes all offers (oral or written), understandings, representations, conditions, warranties, covenants, and other communications between the Parties relating hereto.

    7. Notices

      Comute may send notices pursuant to these General Terms to Customer’s email contact points provided by Customer. Customer may send notices pursuant to these General Terms to Comute at info@datasmartes.com. Notices shall be deemed received 24 hours after they are sent.

    8. Assignment & Successors

      These General Terms shall be binding upon and inure to the benefit of the Parties’ respective successors and assigns.

    9. Waiver

      No waiver by either Party of any default in performance on the part of the other Party shall constitute a waiver of any subsequent breach or default by the defaulting Party.

    10. Severability

      To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of these General Terms invalid or otherwise unenforceable in any respect. In the event that a provision of these General Terms is held to be invalid or otherwise unenforceable, such provision shall be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of these General Terms shall continue in full force and effect.

    11. Amendments

      Comute reserves the right to amend these General Terms from time to time with reasonable notice prior to the effective date of the amendments by posting an amended version of the General Terms on its website. Customer’s continued use of the Services following the effective date of any such amendments may be relied upon by Comute as Customer’s consent to any such amendments.

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