Important: This is a legal agreement (“Agreement”) between you (the “Customer”) and Factana Computing Private Ltd (“Factana”). This Agreement governs Customer’s use of the Services (defined below).
By accepting this Agreement by either (1) selecting a box indicating acceptance, (2) executing an order form that references this Agreement, or (3) using free Community Edition Platform Services, Customer agrees to the terms of this Agreement. Customer represents that Customer has full power, capacity and authority to accept the terms of this Agreement. If Customer is accepting the terms of this Agreement on behalf of an employer or another entity, Customer represents that Customer has full legal authority to bind such employer or such other entity to this Agreement.
“Affiliate” means any entity not under sanctions or embargo restrictions by the India Government that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Confidential Information” has the meaning given to it in Section 4.1.
“Documentation” means Fogwing Platform usage guides and/or manuals, operating instructions and technical specifications necessary to enable Customer to properly configure and use the Services, updated from time to time, and made available through cloud platform of the Services.
“Services” means the Community Edition version of Fogwing platform that is made available as cloud service by Factana.
“Term” has the meaning given to it in Section 3.1.1.
This Agreement shall govern the use of Services.
Factana grants to Customer a limited, non-exclusive, non-transferable, personal, revocable, right to access and use the Fogwing Platform Services in amounts provisioned for Customer by Factana solely for Customer’s internal use in connection with Customer’s ordinary business operations, for the term described in Section 3 below. Customer agrees to operate the Services in compliance with the terms of this Agreement and any applicable laws, including but not limited to the Privacy Laws (as defined in Section 9 below).
(1) a natural person, in which case, Customer may only use the Services on Connecting 5 devices; and prototype purpose”, in which case the Customer, may only send data upto the limit provided per month and there may only be up to one (1) user of the Community Edition. A Customer’s organization is considered an Individual if: a) the customer using the community version for personal needs such as education, experiment, exploration and research. A Customer can access the Community Edition by following the applicable instructions provided by Factana.
Except as otherwise provided in this Agreement or as required by law or by the terms of a third-party license, Customer shall not, and shall not permit any employees, agents, or representatives to: (a) disclose, sell, assign, lease, commercially exploit or market any part of the Services or Factana Confidential Information in any way or manner; (b) copy, modify, enhance, translate, supplement, create derivative works from, or remove any proprietary notices or labels from any part of the Services or Factana Confidential Information; (c) disassemble, decompile, reverse engineer or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any Factana Confidential Information; or (d) use any Services which have not been provisioned by Factana for Customer’s use under this Agreement. Except as expressly permitted in this Agreement, Customer shall not cause or permit competitive analysis, benchmarking, or the use, evaluation or viewing of the Services for the purpose of testing, designing, modifying, or otherwise creating any software program, or any portion thereof, that performs functions similar to the functions performed by the Services. Any use of the Services in breach of the foregoing by Customer that in Factana’s judgment threatens the security, integrity or availability of the Services, may result in Factana’s immediate suspension of the Fogwing Services, however Factana will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.
Customer is responsible for use of the Services by all users that access the Services with Customer’s account credentials. Therefore, Customer is responsible for:
Ensuring it uses utmost discretion in granting administrator privileges.
Ensuring that its users do not share their passwords.
Ensuring and maintaining security of its systems and the machines that connect to and use the Services, including implementation of necessary patches and operating system updates.
Customer also agrees that it will not, and will not engage or authorize any third party to, perform any penetration testing of the Services without obtaining Factana’s prior written permission.
Intellectual Property Protection. Subject to the limited rights expressly granted hereunder, Factana, its Affiliates and its licensors reserve all of their right, title and interest in and to the Services, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. The placement of a copyright notice on any part of the Services or Factana Confidential Information will not constitute publication or otherwise impair the confidential or trade secret nature of the Services or Factana Confidential Information.
The term of this Agreement (the “Term”) will begin when Customer clicks “Get Started” and will end twelve (12) months after the Effective Date, unless extended by Factana, in its sole and absolute discretion. In addition, Factana may, in its sole and absolute discretion, terminate this Service immediately with or without written or electronic notice to Customer. Upon termination of this Service, Customer will cease all use of the Services provided hereunder and return, or destroy upon Factana’s request, all copies of any part of the Services then in Customer’s possession or under Customer’s control. The terms in Sections 2.3, 2.5, 3, 4, 5.2, 6, 7, 9 and 11 – 16 will survive any termination of this Agreement.
As used herein, “Confidential Information” shall mean any non-public, confidential or proprietary information, including trade secrets, of a party hereto disclosed to the other party hereto, whether disclosed orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” or “proprietary”.
Confidential Information shall not include information that: (a) is or becomes known or available to the public, other than through a breach of an obligation hereunder by the receiving party; (b) is lawfully acquired by the receiving party from a third party without breach of a confidentiality restriction; (c) the receiving party can demonstrate by written proof was (i) already in its possession at the time it was disclosed hereunder by the disclosing party or (ii) was independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (d) has been approved for disclosure by the disclosing party.
The receiving party will hold and maintain the disclosing party’s Confidential Information in confidence, exercising at least the same degree of care as the receiving party customarily exercises to protect its own proprietary information, but in no event with less than reasonable care. The receiving party will not, without the disclosing’s party prior written consent: (a) disclose any portion of the Confidential Information to any person or entity other than its and its Affiliates’ directors, officers, employees, agents or consultants who reasonably need access to the Confidential Information to fulfill the permitted uses described herein and who are bound to protect the Confidential Information on terms substantially similar to those in this Agreement; or (b) use Confidential Information except as permitted in this Agreement. Notwithstanding the foregoing, the receiving party may produce or disclose Confidential Information as required pursuant to applicable laws, regulations or court order, provided that it first gives the disclosing party notice of the request, if permitted, such that the disclosing party has an opportunity to defend, limit or protect such production or disclosure.
Factana will defend, indemnify and hold Customer harmless from any damages or losses that it may incur by reason of or arising out of any third-party claim that any part of the Enterprise Services (exclusive of Community Service) infringes any patent or copyright which is enforceable in the India. or misappropriates any trade secret. In any action based on a claim of infringement, Factana may, at its sole option and expense: (a) procure for Customer the right to continue using the applicable Services under the terms of this Agreement; (b) replace or modify the affected portion of the Services with a replacement or modification that permits the Services to function in substantially equivalent form as with the infringing portion of the Services; or (c) if options (a) and (b) above are not reasonably commercially available or practicable, then Factana may terminate Customer’s rights and Factana’s obligations hereunder with respect to the affected portion of the Services, in which case Factana will refund a pro rata portion of any prepaid fees (if any) for such affected portion of the Services equal to the period of time from the date of termination to the end of the then-current Term. Factana’s indemnification obligations under this Section 5.1 (Indemnification by Factana) are conditioned upon Customer: (a) promptly notifying Factana in writing of the claim; (b) granting Factana sole control of the defense and settlement of the claim; and (c) providing Factana with all assistance (at Factana’s expense), information, and authority reasonably required for the defense and settlement of the claim.
Customer will defend, indemnify, and hold Factana harmless from and against any loss, cost (including all legal fees), claim, injury, or other liability asserted by any person not a party to this Agreement, which relates to, or arises out of, directly or indirectly: (i) any breach by Customer of the Privacy Laws relating to Customer’s provision of Personal Data (as defined in Section 9.1 below) or any failure by Customer to comply with its obligations as set forth in Section 9.3 below; (ii) any breach by Customer of the terms contained in Section 2 (Use of Services) or the warranties contained in Section 9 (Data Privacy) of this Agreement; or (iii) Customer’s use of Factana Confidential Information in violation of this Agreement or (iv) Customer’s use of the Services in violation of any applicable laws, regulations, or policies.
Factana will have no liability for any claim described in Section 5.1, and Customer will defend and indemnify Factana against any such claim, to the extent that it would not have occurred but for: (a) modifications to the Services made by Customer or a party acting on Customer’s behalf; (b) the combination, operation or use of the Services with equipment, devices, software or data not supplied by Factana (including, without limitation, using the Services to Community Edition platform or processes); (c) Customer’s failure to use updated or modified forms of the Services provided by Factana; (d) Customer’s use of the Services other than in accordance with this Agreement; or (e) compliance by Factana with designs, plans or specifications furnished by or on behalf of Customer.
Upon reasonable notice, Factana shall have the right to audit Customer’s account in compliance with the use of the Services under this Agreement.
SUBJECT TO THE EXCLUSIONS LISTED IN 7.2 BELOW, NEITHER PARTY SHALL BE LIABLE FOR: (A) ANY PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING ANY COST OF PROCUREMENT OF SUBSTITUTE SERVICES AND LOSS OF USE, DATA, BUSINESS, OR PROFITS), REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER THE LIABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) AGGREGATE DAMAGES.
The limitations of liability set forth in Section 7.1 (Limitation of Liability) above do not apply to: (a) damages related to claims that are the subject of indemnification under this Agreement, (b) claims based on either party’s breach of its obligations set forth in Section 4 (Confidentiality), (c) either party’s unauthorized use, distribution, or disclosure of the other party’s intellectual property, and (d) Customer’s payment obligations (if applicable).
Because some jurisdictions do not allow liability or damages to be limited to the extent set forth above, some of the above limitations may not apply.
OTHER THAN THE ENTERPRISE WARRANTIES MADE BY FACTANA HEREIN, THE PARTIES ACKNOWLEDGE THAT THE SERVICES PROVIDED TO CUSTOMER PURSUANT TO AND FOR THE PURPOSES OF THIS AGREEMENT ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND WITHOUT ANY WARRANTY WHATSOEVER. FACTANA DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, OR ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS. NO FACTANA AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS WARRANTY. TO THE EXTENT THE LAWS OF CUSTOMER’S JURISDICTION DO NOT PERMIT SUCH DISCLAIMER WITH RESPECT TO THE SERVICES HEREUNDER, FACTANA PROVIDES ONLY THE MINIMUM LAWFUL WARRANTY BEYOND THAT WARRANTY EXPRESSLY MADE ABOVE AND DISCLAIMS ALL WARRANTIES TO THE EXTENT PERMITTED BY APPLICABLE LAW. THE PARTIES ACKNOWLEDGE THAT THE DISCLAIMERS IN THIS SECTION 8 (WARRANTY DISCLAIMER) ARE A MATERIAL PART OF THIS AGREEMENT, AND FACTANA WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR SUCH DISCLAIMERS.
For the purposes of this Agreement, “Privacy Laws” means all state, federal, and international laws and regulations, including (without limitation): the California Consumer Protection Act of 2018 (“CCPA”), the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and its implementing regulations and the Health Information Technology for Economic and Clinical Health Act (HITECH) and its implementing regulations (collectively, the “HIPAA Rules”); and laws and regulations of the European Union, the European Economic Area, their member states and the United Kingdom, related to data privacy, including (without limitation) the EU General Data Protection Regulation (2016/679) (“GDPR”) and any applicable national implementing laws. The terms “Personal Data,” “Special Categories of Personal Data,” “Data Subject(s),” and “Controller” as used in this Agreement shall have the meanings given to them in the GDPR. The terms “Protected Health Information,” “Covered Entity,” and “Business Associate” as used in this Agreement shall have the meaning given to it in the HIPAA Rules.
The parties acknowledge and agree that (i) with respect to Customer’s Personal Data and/or Special Categories of Personal Data processed by Factana for the provision of Services under this Agreement, Factana shall be a Processor (or a ‘Service Provider’ for purposes of CCPA) and Customer shall be a Controller (or a ‘Business’ for purposes of CCPA), and (ii) with respect to any other Personal Data and/or Special Categories of Personal Data including (without limitation) such data processed for the Factana Research Purpose, each party shall be a separate Controller (and each party shall be responsible for its compliance with the applicable Privacy Laws with respect to the Customer Personal Data and/or Special Categories of Personal Data.
Notwithstanding any provision to the contrary herein, with respect to any Personal Data and/or Special Categories of Personal Data, Customer represents and warrants that: (i) the Personal Data and/or Special Categories of Personal Data have been collected in strict compliance with the applicable Privacy Laws; (ii) it has properly notified, and will continue to properly notify on not less than an annual basis, Data Subjects concerned that their Personal Data and/or Special Categories of Personal Data will be transferred to third parties including Factana, and will be processed for the purposes set forth in this Agreement (including, without limitation, the Factana Research Purpose as defined below in Section 9.4); and (iii) Customer has all necessary rights to transfer any Personal Data and/or Special Categories of Personal Data to Factana for the purposes set out in this Agreement and such transfer of the Personal Data and/or Special Categories of Personal Data and processing by Factana is and shall be in compliance with the Privacy Laws. Customer shall provide Factana with evidence to demonstrate it has such rights to transfer Personal Data and/or Special Categories of Personal Data to Factana on request by Factana. To the extent Factana is acting as a Processor under this Agreement (a) Customer further represents and warrants that it has a lawful basis for processing (and instructing Factana to process) Personal Data and/or Special Categories of Personal Data as set forth in this Agreement, and (b) Customer and Factana acknowledge and agree that the terms set forth in the Agreement (i) shall apply with respect to Factana’s processing of Personal Data and/or Special Categories of Personal Data on Customer’s behalf, and (ii) are hereby incorporated into this Agreement by reference.
Factana shall inform Customer about any request by a Data Subject to exercise his or her rights pursuant to the Privacy Laws in relation to any Customer Protected Health Information, Personal Data, or Special Categories of Personal Data (“Data Subject Request”). Customer shall use its commercially reasonable efforts to assist Factana in responding to a Data Subject Request as directed by Factana including the provision of additional data as required by Factana to identify Protected Health Information, Personal Data, or Special Categories of Personal Data processed by Factana relating to the Data Subject.
Subject to the terms of this Agreement, Factana makes the following transfer mechanisms available, in corresponding order of precedence, to any transfer of Personal Data or Special Categories of Personal Data pursuant to this Agreement from the European Union, the European Economic Area, their Member States and the United Kingdom and Switzerland to countries which are not deemed to ensure an adequate level of data protection within the meaning of the Privacy Laws, to the extent such transfers are subject to such Privacy Laws: (i) Factana’s EU – U.S. and Swiss – U.S. Privacy Shield Framework self-certifications, and (ii) where Factana is a Controller, the Standard Contractual Clauses for the transfer of Personal Data or Special Categories of Personal Data from the European Economic Area to third countries (controller to controller transfers), approved by the European Commission in Decision 2004/915/EC, dated 27 December 2004, and where Factana is a Processor, the Standard Contractual Clauses for the transfer of Personal Data or Special Categories of Personal Data from the European Economic Area to third countries (controller to processor transfers), approved by the European Commission in Decision 2010/87/EU, dated 5 February 2010.
From time to time, Factana may update the Services to introduce or include new features, versions, or functionality. To the extent an update requires additions or modifications to the terms of this Agreement, Factana will notify Customer accordingly. Factana reserves the right to charge a reasonable fee for the Services in the future.
Customer will not export, or re-export, either directly or indirectly, any Services, hardware, or technical information, or portions thereof, if provided, without first obtaining written permission from Factana and any and all necessary licenses from the United States government and any other applicable government. Customer will be deemed to be the importer of record of any Services provided to Customer outside of the U.S., and will be responsible for any related import filings, requirements, documentation, fees, taxes, duties, or other compliance obligations imposed by the applicable destination country or jurisdiction.
Each party shall be relieved of its obligations under this Agreement, and neither party shall be liable to the other party under this Agreement, for any liability, loss, damage, fine, penalty, sanction, cost or expense incurred by a party as a result of any event or condition that directly or indirectly prevents the party from performing an obligation hereunder, is beyond the reasonable control of the party, and could not, by the exercise of due diligence, have been avoided in whole or in part by the party, including, without limitation: any act of God, natural disaster, war, riot, blockade, insurrection, terrorism, sabotage, denial of service attacks (including, but not limited to, state or nation-sponsored denial of service attacks), virus or hacking attacks for which there is no commercially reasonable, known solution (including, but not limited to, intentional/targeted hacking by or on behalf of nation states), acts of public enemies, civil disturbances or general restraint or arrest of government and people, boycott, strike (including a general strike), lockout or other similar industrial disturbance.
Any software incorporated in the Services and its accompanying Documentation are “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212, and may only be provided to or obtained by the United States government (1) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (2) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227-7201.1 and 227.7202-3. If a government agency needs additional rights, it must negotiate a mutually acceptable written addendum to this Agreement specifically granting those rights.
The Factana software incorporated in the Services contains and is distributed with open source software that is covered by a different license. Factana’s obligations set forth in this Agreement do not extend to any such open source software. Customer agrees that all such open source software shall be and shall remain subject to the terms and conditions under which it is provided. Any such open source software, and the notices, license terms and disclaimers applicable to such open source software shall be identified to Customer from time to time in writing (email or a notice visible within the software to suffice).
This Agreement is governed by the laws of the Singapore International Arbitration Court (SIAC), without regard to its conflict of laws principles. The parties agree that the International Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement. The parties submit to exclusive jurisdiction and venue in an appropriate court sitting in SIAC, Singapore.
All notices related to this Agreement shall be made in writing in English and shall be effective upon (a) personal delivery, (b) the second business day after mailing, and (c) the day of emailing (provided that notices of termination and indemnifiable claims shall also be sent by the processes described in (a) and (b) in addition to email). Notices sent to Factana shall be addressed to Factana’s Bangalore Facility, ., ATTN: Operations Head, and emailed to: [email protected] . Notices sent to Customer shall be sent to the Customer address on the applicable Order Form, unless Customer has notified Factana of another address in accordance with this Section. Any notice given in conformance with this Section shall be effective upon actual delivery or refusal of delivery.
Neither party may assign this Agreement or any right or obligation hereunder without the other party’s prior written consent; provided, however that Factana may assign this Agreement to a subsidiary or Affiliate or a successor in interest in case of a merger or acquisition of Factana or in case of a transfer of all or substantially all of its assets, or the assets of a major division, to another entity. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
No person or entity other than the parties hereto will have any right to enforce or seek enforcement of this Agreement. There are no third-party beneficiaries to this Agreement. Each party will perform its obligations hereunder as an independent contractor and not as an agent or representative of the other party. Nothing in this Agreement will be deemed or construed as creating a partnership, joint venture, or any similar relationship between the parties.
This Agreement, together with applicable Order Forms, the documents linked hereto and any exhibit(s) (as applicable) referenced herein, constitutes the entire understanding between Customer and Factana with respect to the subject matter hereof. No terms or conditions set forth in any purchase order or other document provided by Customer to Factana shall be part of any agreement between Factana and Customer unless specifically accepted by Factana in writing. In the event of a conflict between the terms of this Agreement and the terms of an Order Form, a document linked hereto or any exhibit(s) (as applicable) referenced herein, the terms of this Agreement shall take precedence and control unless the Order Form or other document explicitly references and overrides a provision of this Agreement.
No modification of this Agreement will be binding, unless in writing and signed by an authorized representative of each party. Any express waiver or failure to exercise promptly any right under this Agreement will not create a continuing waiver or any expectation of non-enforcement. If any provision of this Agreement shall for any reason be held illegal or unenforceable, such provision shall be deemed severable from the remaining provisions of this Agreement and shall in no way affect or impair the validity or enforceability of the remaining provisions of this Agreement, unless such omission would frustrate the intent of the parties, in which case this Agreement may be reformed to give effect to the other provisions hereof.