Terms and Conditions

This document is an electronic record and is generated by a computer system and does not require any physical or digital signatures.

Please carefully read the terms and conditions of the following agreement. It contains very important information about your rights and obligations, as well as limitations and exclusions that may apply to you.

TERMS OF SUBSCRIPTION

Published date: August 29, 2023

This Terms of Subscription (“Agreement”) is between 3FIVE8 TECHNOLOGIES, (“Service Provider”), and you, or the entity you represent (“Customer”) governing your use of the host of Products and Services of the Service Provider (“Product”). In the event if you are representing an entity, you hereby affirm that requisite approvals and authorization to bind the entity has been obtained.

Service Provider and Customer shall individually be referred as “Party” and collectively referred to as “Parties”.

1. Product License

1.1. Subject to the terms of this Subscription Agreement, Terms of Service, and payment of the fees as per the Order Form, the Service Provider hereby grants to the Customer, a non-sub licensable, limited, restricted, revocable, non-transferable, non-exclusive subscription to access and use the Product (as specified in Order Form/Purchase Order/Subscription Agreement jointly referred as (“Order Form” , solely for the availing of Service Provider’s Services. The Parties shall execute an Order Form with the Service Provider pursuant to which Services shall be rendered to Customer on the terms and conditions mentioned thereto. Services shall be facilitated through the Product. The Order Form shall form an integral part of this Agreement and in the event of conflict between this Agreement and the Order Form, the latter shall prevail.
1.2. The Customer shall ensure that its employees, users, account managers or anyone else acting on its behalf (“Personnel”), who are using the Product comply with the terms and conditions as set out in this Agreement.

2. Payment

2.1. In consideration for the Services and the usage of the Product, the Customer shall pay the Service Provider, the fees as agreed in respective order form accepted by Customer.
2.2. The Service Provider shall be entitled to present the invoices for the fees for the Product and Services on the terms and conditions mentioned in the Order Form.
2.3. In the event if the payment against Invoices have not been made by Customer within the stipulated time, Service Provider shall be entitled to discontinue to provide its Services and suspend Service Provider/ Personnel’s access to use the Product.

3. Taxes

Taxes The Customer shall be responsible for payment of its taxes, the withholding taxes and any other similar taxes and charges of any kind imposed by governmental entities on the transactions contemplated by these Terms of Service. Any delay in reporting or complying with the timeline for tax compliance leading to penalty or non-availability of credit or adjustment by the Service Provider shall be adjusted with the next invoice and shall be payable by Customer.

4. Restriction on usage of Product

4.1. Customer represents and warrants that:
i. it shall not rent, lease, distribute, license, sublicense, sell, resell, assign, transfer, timeshare, or otherwise make Product available to any third-party contrary to the terms stated herein;
ii. it shall ensure that the information which shall be provided to the Service Provider shall be true and shall not contain any information which is not obtained lawfully as per the applicable laws;
iii. it shall not reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Product;
iv. it shall not do any act which shall damage, disable, overburden or impair Service Provider’s servers or network, or interfere with any other party’s use and enjoyment of the Product;
v. it shall not access the Product in order to build a commercially available product or service which competes with the Product;
vi. it shall not use the Product in a manner that is prohibited by any law or regulation;
vii. it shall not copy any features, functions, integrations, interfaces or graphics which are part of the Product;
viii. it shall not wilfully tamper with the security of the Product, including attempting to probe, scan or test the vulnerability of the Product or to breach the security or authentication measures;
ix. it/ or its Personnel shall further not transmit any information through the Product, in any manner or avail Product in any manner, which may:
a. be unlawful, threatening, abusive, libellous, defamatory;
b. refute or is contrary to what is set out anywhere in the Agreement;
c. is considered “spam” (including machine or randomly-generated, constitutes unauthorized or unsolicited advertising, chain letters, any other form of unauthorized solicitation or any form of lottery or gambling);
d. violates the privacy of any third-party.
x. it shall not host, display, upload, modify, publish, transmit, update or share any information belonging to another person and to which the Customer does not have any right to.

5. Customer Data

5.1. The Customer is the owner of all information, data, and material that is generated, uploaded, accessed, interpreted, and/or analysed through the Product (collectively “Customer Data”).
5.2. The Service Provider is not and shall not be obliged to review the Customer Data for accuracy or potential liability, and the Customer shall fully indemnify, defend and hold Service Provider harmless from and against any and all damage, losses, costs, or liabilities that may be caused due to Customer Data.

6. Representations and Warranties

6.1. Each Party hereby represents, warrants and covenants that:
a. Each Party has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
b. Each representative of the Party executing this Agreement (electronically or physically) is authorized to bind the respective Party;
c. The Parties will comply with all applicable legal and regulatory requirements applying to the exercise of the party's rights and the fulfilment of the party's obligations under this Agreement; and
d. Each Party has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.

7. Availability of Services and Warranty limitations

7.1. Neither the Service Provider nor any of its representatives has made or will make any representation or warranty whatsoever, express, implied or statutory, including, without limitation, any implied representations or warranties of accuracy of the Product; merchantability; fitness for a particular purpose; title; enforceability or non-infringement of Product.
7.2. The Customer acknowledges that complex software, is never wholly free from defects, errors and bugs related to design, functionality, security and other aspects of the Product; and subject to the other provisions of this Agreement, the Service Provider gives no warranty or representation that the Product will always be wholly free from defects, errors and bugs.
7.3. The Customer acknowledges that the Product is designed to be compatible only with that software and those systems specified as compatible in the specifications provided by the Service Provider; and the Service Provider does not warrant or represent that the Product will be compatible with any other software or systems.
7.4. For any breach of either such warranty, the Customer’s exclusive remedy shall be termination of Subscription including refund of advance payments made for the Subscription Term. For integrations of the Product with third party software or hardware, the Service Provider will perform due diligence while selecting the third-party software or hardware. However, the Service Provider does not warrant error-free functioning or discontinuation of service by such 3rd Party software or hardware.

8. Confidential Information

8.1. Each Party may from time to time during the term of this Agreement, disclose to the other Party certain non-public, commercially proprietary or sensitive information, whether or not designated as “confidential” or “proprietary” or similar designation, that relates to the past, present or future business activities, including, inter alia, technical, marketing, financial, business, planning, and other confidential and proprietary information (“Confidential Information”).
8.2. The Party receiving Confidential Information (“Receiving Party”) will hold the Confidential Information in trust and confidence and, except as set forth in this Agreement or as otherwise may be authorized by the Party disclosing Confidential Information (“Disclosing Party”), in writing, will not disclose such information to any third party.
8.3. The Receiving Party may disclose Confidential Information, if required to do so under applicable law, rule or order, provided that the Receiving Party where reasonably practicable and to the extent legally permissible, provides the Disclosing Party, with prior written notice of the required disclosure so that the Disclosing Party may seek a protective order or other appropriate remedy, and provided further that the Receiving Party discloses no more Confidential Information of the Disclosing Party than is reasonably necessary in order to respond to the required disclosure.
8.4. Information shall not be considered “Confidential Information” to the extent, but only to the extent, that such information: (a) was already known to the Receiving Party free of any restriction at the time it is obtained from the Disclosing Party; (b) is subsequently learned from an independent third party free of any restrictions and without breach of this Agreement or any other agreements; (c) is or becomes publicly available through no wrongful act of the Receiving Party; or (d) is independently developed by the Receiving Party without reference to any Confidential Information.
8.5. At the request and option of the Disclosing Party, or in the event of termination or expiration of this Agreement (or any part thereof), the Receiving Party shall promptly: (a) return to the Disclosing Party the Confidential Information and all documentation, information, Services, and data related to the Agreement, even if not Confidential Information); or (b) destroy or permanently erase on all forms of recordation the Confidential Information and, if requested by the Disclosing Party, acknowledge in writing that all such Confidential Information has been destroyed or permanently erased.
8.6. The confidentiality obligation under this Agreement shall survive termination of this Agreement for a period of two (2) years.

9. Data Protection and Security

9.1. Parties hereby acknowledge and agree that they shall comply with all the applicable data protection laws in relation to collection of personal data, processing of personal data and shall ensure that there are organizational measures to safeguard such personal data.
9.2. The Customer represents and warrants that it shall obtain prior written consent of the individual whose personal data is being shared with the Service Provider.
9.3. Service Provider hereby agrees and acknowledges that any personal data which has been shared by the Customer shall be processed by Service Provider solely as per the terms and conditions stated in the data processing agreement which is made available at (“DPA”).

10. Intellectual Property Rights

10.1. The Service Provider retains all right, title and interest in the intellectual property rights in the Product and Services, including (but not limited to) all software, formats, interfaces, information and data, content and Service Provider’s proprietary information and technology used by Service Provider or provided to Service Provider in connection with the Services or usage of the Product and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by the Customer or learned as a result of the Customer’s use of the Services or Product and that the Services and the Product is protected by intellectual property rights owned by or licensed to Service Provider. Other than the limited permission to use the Services and Product as provided by Service Provider as expressly set forth in this Agreement, no other license or other proprietary rights in the Services and Product or Service Provider’s proprietary application are granted to the Customer and all such rights are hereby expressly reserved by Service Provider.
10.2. The Service Provider shall own all rights and title in any inventions, formulae, processes, algorithms, circuitry designs, computer programs, improvements to any of the preceding, including methods of determining dimensions, pattern matching, symbol recognition or computer learning, whether or not patentable or registrable under patent, copyright or similar statutes, that are generated, created, conceived or reduced to practice (collectively “Creatives”) by the Service Provider, either alone or jointly with others in connection with providing of the Services. The Customer shall have no right in whatsoever manner, in the intellectual property rights developed during availing Services.
10.3. The Customer herein shall at all times take necessary steps to prevent infringement of the copyright, trademarks and/or other intellectual property rights of the Service Provider by any third Party. Upon becoming aware of any such actual or attempted infringement, Customer so becoming aware shall promptly inform the Service Provider of such infringement and both Parties shall agree on measures necessary to prevent such infringement. In the event that any third party infringes or is likely to infringe any intellectual property rights, appearing in or on the Product, Customer becoming aware of this shall immediately upon its discovery notify the Service Provider thereof, and assist in instituting and taking such appropriate actions as may be reasonably required.

11. Compliance with Laws

Each Party shall at all times and at its own expense (a) strictly comply with all applicable Law, now or hereafter in effect, relating to its performance of this Agreement; (b) pay all fees and other charges required by such applicable laws; and (c) maintain in full force and effect all licenses, permits, authorizations, registrations and qualification from any regulatory authority to the extent necessary to perform its obligations hereunder.

12. Term and Termination

12.1. This Agreement shall be valid from the Subscription Start Date (as defined the Order Form), until the date it is explicitly terminated.
12.2. This Agreement is subject to review by either party at any time during the Subscription Term. Either Party shall have the right to terminate this Agreement, by giving prior written notice of not less than thirty (30) days, and the Customer data will be available for the Customer to be extracted during this period. The Notice period has to be within the Subscription Paid Duration (Subscription Term).
12.3. After such thirty (30) day’s period, access of the Customer will be discontinued. The Service Provider will retain the Customer’s data for ninety (90) days in case if the Customer desires to re-activate the Subscription by paying a re-activation fee. Post expiry of ninety (90) day’s period, the Service Provider shall have no obligation to maintain or provide any Customer data and shall thereafter, unless legally prohibited, or prohibited by the Data Subject, delete the Customer Data in Service Provider’s systems or otherwise in its possession or under its control.
12.4. Upon non-payment of Subscription dues within the subscription invoice due date, the Subscription is considered terminated and the Customer’s access to the Services shall be discontinued. In the event of termination, Service Provider shall revoke the rights granted under clause 1.1.
12.5. In the event of termination of this Agreement, Customer shall be liable to make payments to Service Provider for all the Services availed and for usage of the Product, till the date of such termination.
12.6. Refund can be claimed, due to cause as listed in Clause 6.4, for Advance Payments of Annual or more, if initiated within thirty (30) days of the acknowledgement of payment by Service Provider.
12.7. Notwithstanding anything to the contrary elsewhere contained in the Agreement, the Service Provider shall have the right to suspend the Customer’s usage of the Product and Services forthwith, if Customer is in breach of the terms and conditions stated in clause 3.1 of the Agreement.

13. Indemnification

13.1. The Service Provider, jointly and severally, agrees to indemnify, defend and hold Customer, its directors, officers and employees harmless from and against any and all losses, liabilities, claims, damages, costs and expenses, including reasonable legal fees and disbursements in connection with any claim asserted against or incurred by Customer (collectively "Claims") or on account of any damages, claims, liabilities fines, penalties (collectively “Losses”) which directly arise out of, result from or may be payable by virtue of any breach of any applicable laws; gross negligent act and willful misconduct. Service Provider shall further agree to indemnify defend and hold Customer harmless from and against any Claims and / or Losses incurred by Customer on account of any third-party claims arising out of infringement of any intellectual property rights of any third party by Service Provider from the usage of Product by Customer. However, Service Provider shall not have any liability to indemnify for any claim arising out of infringing any intellectual property rights of third-party to the extent that any infringement or claim thereof is attributable to (i) the combination, operation or use of Product with the equipment or software supplied by the Customer, where the Product would not itself be infringing; (ii) compliance with designs, instructions provided by Customer; (iii) use of Product in an application or environment for which it was not designed or contemplated under this Agreement.
13.2. The Customer, jointly and severally, agrees to indemnify, defend and hold Service Provider, its directors, officers and employees harmless from and against any and all losses, liabilities, claims, damages, costs and expenses, including reasonable legal fees and disbursements in connection with any claim asserted against or incurred by Service Provider (collectively "Claims") or on account of any damages, claims, liabilities fines, penalties (collectively “Losses”) which directly arise out of, or result from the infringement of any intellectual property rights; or breach of applicable laws by the Customer.
13.3. The foregoing is, however, conditional upon one Party (“Indemnified Party”) (i) notifying the other Party (“Indemnifying Party”) in writing and in detail without undue delay, (ii) authorizing the Indemnifying Party to conduct any judicial proceedings with such third party on its own, and (iii) providing the Indemnifying Party (at the expense of the Indemnifying Party) with any reasonable assistance so that the Indemnifying Party can defend such third-party claims.

14. Publicity

Neither Party shall have the permission to use name and logo of the other Party without the prior consent of the other Party. However, Service Provider shall have the permission to use Customer’s logo in identifying Customer as a client of Service Provider.

15. Force majeure

If either Party is unable to perform any of its obligations under this Agreement because of circumstances beyond the reasonable control of the Party, such as an act of God, fire, casualty, pandemic, flood, war, terrorist act, failure of public utilities, injunction or any act, exercise, labor or civic unrest, assertion or requirement of any governmental authority, epidemic, or destruction of production facilities (a “Force Majeure Event”), the Party who has been so affected shall immediately give notice to the other Party and shall do everything reasonably practicable to resume performance.

16. Notice

16.1. Notices, demands or other communication to be given or made under this Agreement shall be in writing and delivered personally or sent by prepaid post with recorded delivery, or by email to legal@3five8.com.
16.2. Any such notice, demand or communication shall, unless the contrary is proved, be deemed to have been duly served after receipt of transmission in the case of service by email.

76. Limitation of Liability

17.1. Excluding the indemnification obligations stated in the Agreement, fraud, criminal liability, death, damage to property, injury to person, gross negligence and willful misconduct, breach of terms and conditions stated in clause 41 of the Agreement, either Party’s aggregate liability under or in connection with this Agreement, whether in tort or contract, will be limited to the actual direct damages incurred but will not exceed the amounts actually paid to Service Provider by Customer in the three (3) months period immediately preceding the relevant Party’s formal written notice of the claim for liability hereunder.
17.2. Neither party will be liable to the other for any consequential or indirect damages, regardless of the form of action or the theory of recovery, even if it has been advised of the possibility of such damages.

18. Dispute Resolution

18.1 In the event of any dispute arising out of or in relation to this Agreement, the Customer and the Service Provider shall mutually discuss to resolve the disputes. In the event the dispute is unresolved with mutual discussion - 1) if the Customer has entered the order form with the Service Provider in India the dispute will be resolved by the Courts of Bangalore, India; 2) if the Customer has entered the order form with Service Provider in the USA the dispute shall be resolved by the Courts in Delaware, USA. 3) In the event if the Customer has entered the order form with the Service Provider in any location other than India and the USA, the Dispute will be submitted for Arbitration in Dubai, UAE. The Arbitration shall be governed as per the rules laid down by Dubai International Financial Centre (DIFC). The language of Arbitration shall be English.
18.2 Ownership of a database associated with the Services is sometimes disputed between one or more parties. While Service Provider shall have no obligation, Service Provider reserves the right, at any time and in its sole discretion, with or without notice to Customer, to determine rightful database ownership and to transfer a database to the rightful owner. If Service Provider can’t reasonably determine the rightful owner, Service Provider reserves the right to suspend access to a database until the disputing parties reach a resolution. Service Provider may also request joint instructions or certain documentation from the disputing parties, such as a government-issued photo ID, authorization letter and such other essential document, to help determine the rightful owner.

19. Miscellaneous

19.1. The Agreement, including Order Form, any annexures, schedules, exhibits, referred to therein and attached thereto, constitutes the entire agreement between the Parties and supersedes all previous agreements, promises, proposals, representations, understanding and negotiations, whether written or oral, between the Parties pertaining to the subject matter hereof.
19.2. No modification, amendment or supplement to this Agreement, or any provisions hereof or thereof will be binding upon the Parties unless made in writing and signed by a duly authorized representative of both Parties.
19.3. At no time will any failure or delay by either Party in enforcing any provisions, exercising any option, or requiring performance of any provisions, be construed to be a waiver of same.
19.4. If any term, provision or part of this Agreement is to any extent held invalid, void or unenforceable, the remainder of this Agreement will not be impaired or affected thereby, and each term, provision and part will continue in full force and effect, and will be valid and enforceable to the fullest extent permitted by law.
19.5. Any provision of this Agreement, which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive termination or expiration of this Agreement and continue in full force and effect.
19.6. Neither Party may assign the Agreement without the prior written consent of the other. Any assignment by operation of law, order of any court, or pursuant to any plan of merger, consolidation or liquidation, will be deemed an assignment for which prior consent is required and any assignment made without any such consent will be void and of no effect as between the Parties.
19.7. Nothing contained in this Agreement shall create, constitute or evidence any partnership, agency, joint venture, trust or employer/employee relationship between the Parties and a Party may not make, or allow to be made, any representation that such relationship exists between the Parties.
19.8. Neither Party shall be entitled to engage in any negotiations or make representations on behalf of the other Party unless so specifically authorized by the other Party.
19.9. Customer Research and Feedback
19.9.1 Service Provider frequently engages with the customers, to understand how they interact with the Services and how to better develop the Services to meet their evolving needs. Customer acknowledge and agree that no jointly owned intellectual property shall be created as a consequence of Service Provider’s customer or third party engagement process or practices, and that the Service Provider owns all right, title and interest in and to its intellectual property.
19.9.2 Customer and Customer’s authorized users may from time to time provide suggestions, comments, ideas or other feedback (“Feedback”) to us with respect to the Services. Customer agrees that the Service Provider is free to use, disclose, reproduce, license or otherwise distribute and exploit the Feedback, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
19.10. Service Provider reserves the right to (a) modify the Product and Services (or any part thereof) from time to time, and shall not be liable to the Customer or to any third party for any modification of the Product and Services.