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”).
The following capitalised terms shall have the meaning ascribed to them below:
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.
“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:
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.
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.
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.
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.
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.
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:
“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;
“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
“Third Party Claim Losses” means any amount finally awarded in, or paid in settlement of, any Third Party Claim Indemnifiable Proceeding.
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.
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”)
These General Terms may be terminated:
by Customer at any time if it cancels the Services through its Comute account or with a Comute customer representative;
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;
by Comute if Customer fails to make any payment of the Service Fees; or
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.
Section 3.4 (No Refunds) applies, regardless of the cause of termination.
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.
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 email@example.com
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.
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.
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.
Time is of the essence of these General Terms and of every part thereof
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.
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 firstname.lastname@example.org. Notices shall be deemed received 24 hours after they are sent.
These General Terms shall be binding upon and inure to the benefit of the Parties’ respective successors and assigns.
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.
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.
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.