“PingSafe AI” or “we” provide the Service to you the Client (“you” or “the Client”), being the company identified as the Client in the Order Form.
In this agreement We/we and You/you shall be “Party” and collectively “Parties”. We/we, You/you, our and your shall be construed accordingly.
Addendum means a document signed by the Parties, under which we amend aspects of this Agreement. Any Addendum shall be coterminous with and subject to the provisions of this Agreement
Affiliates means in relation to any company: (a) any subsidiary or holding company of such company or any subsidiary of such holding company; or (b) any other entity controlling or controlled by such company;
Effective Date means the earlier of the effective date specified in your Order Form or first access to the Service;
Fees means the amounts payable by you as specified in your Order Form (and any Addendum);
Initial Term has the meaning given to it in your Order Form;
Intellectual Property means patents, trade marks, service marks, trade names (including internet domain names and email address names), copyrights, authors rights, moral rights, know-how, rights in look and feel, database rights, rights in designs and inventions and all or any similar or equivalent rights arising or subsisting in any jurisdiction, whether or not any of the foregoing are registered, including without limitation the right to apply for registrations, renewals or extensions in respect of any of the foregoing;
Locations means the locations specified in your Order Form (or any Addendum) at which Users shall be entitled to use the Service;
Schedule means the Schedule forming part of this Agreement setting out details of the Services, each Service description, Fees and Service Levels and any other matters specific to the Services;
Service or Services means the service or services set out in the Schedule which we make available to you;
Order Form means a document signed by you under which you order the Services;
Renewal Period has the meaning given to it in the Order Form;
Term means the Initial Term and any subsequent Renewal Period or either of them as the context so requires;
User(s) means you and/or those of your individual employees, agents or contractors who have been authorised to access the Services;
User Conditions means the terms and conditions which each User must strictly observe when accessing any of the Services.
You means any natural person or legal entity specified on the Order Form subscribing to the Service provided under this Agreement on behalf of itself and/or the Users and ‘your’ shall be construed accordingly.
2. Grant of Rights
(a) In consideration of the payment of the Fees by you, we grant to you a non-exclusive, non-transferable right to access and use the Services solely for your internal business purposes for the duration of the Term, subject always to the limitations set out in this Agreement.
(b) You acknowledge and agree that you shall use (and shall ensure that Users use) the Services only in accordance with the terms of this Agreement and all applicable laws and regulations.
3. Extent of Rights
(a) The rights granted to you to the Services is for use by your Users only.
You shall be required to provide us with a list of the individuals you wish to designate as Users. This information shall comprise the following: name; current working location and e-mail address (“Registration Information”). Prior to providing such Registration Information, you shall ensure that you have obtained such consents from the designated Users as are necessary to ensure compliance with applicable data protection legislation. You shall ensure that the Registration Information in respect of each User is updated at appropriate times throughout the Term.
5. Restrictions on Use:
Except as specifically authorised by us, you shall not do the following and shall procure that Users do not do the following:
(i) directly or indirectly grant anyone that is not a designated User access to the Services;
(iii) modify or attempt to modify any part of the Services;
(iv) decompile, investigate, interrogate, copy, reverse engineer or otherwise interfere with or gain further access to any software used in the provision of the Services; and
(v) create a service or any product that competes with any of the Services.
6. User Conditions.
You shall pay the Fees set out in your Order Form (and any Addendum). Invoices will be issued on the 1st of every month (or on the following business day if the 1st is not a business day) for the Service to be provided in the following month. All amounts due from you under this Agreement are due and payable thirty (30) calendar days from the date of a corresponding invoice and are exclusive of any sales, value added or other taxes or duties which, if payable, shall be paid by you. If payments are made by direct debit, it is due on the 1st of every month, for Service to be provided in that month. All payments shall be made by cheque or bank transfer to an account nominated by us. We reserve the right to charge you interest on the late payment of any sum due at a rate of one per cent (1%) per month until such outstanding sums are settled in full. The order quantity will reflect the number of computers that are monitored by the Service on the date of invoice issue and the monthly fee will be adjusted in accordance with this.
We warrant as follows:
(a) the Service has two aspects (i) the first is “Active Checks” which connects to your security tools via API; we warrant that the Active Checks part of the Service will report the data into the dashboard accurately as long as the security tools’ APIs are functioning properly; and (ii) the second is “Operational Checks” where we warrant that the Service will record and display the “Operational Checks” data accurately; and
(b) the Service will comply in all material respects with the Service description. We do not warrant that the Services will be uninterrupted or error free. Further, we do not warrant that any of the tools, applications or programs forming part of your security tools that were not supplied by us will operate in accordance with their respective service descriptions. Any claims in respect of any such tools, applications or programs should be made directly to the provider. In the event of a claim under the warranties, we shall have the option to either modify or replace the Service. In the event that we fail to modify or replace the Service within a reasonable period you shall be entitled to terminate the Agreement and we shall return any Fees paid by you in respect of any period of time during which the Service failed to meet warranties.
9. Limitation of Liability and Disclaimer of Other Warranties.
(a) The warranties given in clause 8 above represent the sole warranties given in respect of the Services and to the extent permitted by law, all other warranties (whether express or implied) in respect of the Services are hereby excluded. We hereby exclude any liability in respect of your reliance on any warranty other than as set out in clause 8 above.
(b) In no event shall we be liable for any loss of business, loss of data, loss of revenue, or any interruption to any of the above or for any indirect or consequential loss or loss of profit arising out of or in connection with this agreement or its termination.
(a) By you: You agree to defend, indemnify and hold harmless us and our officers, directors, employees and agents from and against any liability, damage, loss or cost arising out of or related to any unauthorised use of the Service or breach of the provisions of this Agreement by you or any User. You shall have the reasonable right to control the defence and settlement of any such claim, lawsuit or proceeding provided that you shall not settle any claim or action in a manner that would impose any obligation on us without our prior written consent (which shall not be unreasonably withheld or delayed).
(b) By us: We agrees to defend, indemnify and hold harmless you and your officers, directors and Users from and against any liability, damage, loss or cost incurred by you or any User as a result of any third party claim or action that permitted use of the Services infringes that party’s Intellectual Property rights. We shall have the right to control the defence and settlement of any such claim, lawsuit or proceeding provided that we shall not settle any such claim, lawsuit or proceeding which would impose any obligation on you without your prior written consent (which shall not be unreasonably withheld or delayed). The foregoing states the entire liability to you or any other Indemnified Party with respect to Intellectual Property right infringement.
Unless otherwise agreed in the Order Form or terminated in accordance with this Agreement, we shall provide the Services to you on and from the Effective Date specified on your Order Form until the end of the Initial Term. During the first 30 days of the term, you shall have the right to cancel the Service without liability for payment, such cancellation to be given in writing and to be received by us within 30 days of the Effective Date. If no such cancellation is received within such period, the Service shall continue for the Initial Term and shall be deemed to have started on (and payment shall be due from) the Effective Date. Thereafter (unless otherwise terminated in accordance with this Agreement), your subscription to the Services shall automatically continue in force for successive Renewal Periods unless written notice terminating this Agreement is given by either party not less than 1 month before the end of the Initial Term or any subsequent Renewal Period as applicable.
12. Termination of User Access Rights.
13. Termination of Agreement
(a) Either party may terminate this Agreement immediately in the event of a material breach by the other party if such breach remains uncured for a period of fifteen (15) calendar days following written notification to the party in breach. Notwithstanding the foregoing, we may terminate the Agreement immediately upon discovery of any wilful or reckless breach of the provisions of this Agreement. We also reserves the right to terminate this Agreement in the event that you (i) become insolvent; (ii) fail to pay your debts as they fall due; (iii) make a general assignment for the benefit of creditors; or (iv) you or any of the Users becomes subject to sanctions that would lawfully prevent you from receiving the Services.
(b) Upon expiration or any termination of this Agreement the rights granted under it shall cease and you shall, at our request, return or certify that that you have destroyed all copies or materials related to the Services and that you no longer have any way of receiving the Services. Notwithstanding the foregoing, you shall be permitted to retain such copies of information related to receipt of the Services as are necessary for your internal compliance procedures or as may be required by any law, court or regulatory authority.
(c) The rights and obligations under clauses 9, 10 and 14 together with any payments obligations accrued prior to expiration or termination, shall survive the termination or expiration of this Agreement.
(b) Confidentiality: Each party shall maintain the confidentiality of the other party’s proprietary information during the Term and for three (3) years after the date of the last disclosure. These confidentiality obligations shall not apply to information: (i) lawfully in the public domain; (ii) lawfully possessed by the recipient before disclosure by the other party; (iii) lawfully disclosed to a party by a third party without obligation of confidentiality; (iv) independently developed by a party without reference to the other party’s proprietary information; or (v) whose disclosure is compelled by a court or other competent authority (provided in such case that the compelled party makes reasonable efforts to help the disclosing party oppose or limit such compelled disclosure).
(c) Severability: If any provision in this Agreement is held to be invalid or unenforceable, it shall be construed to reflect as closely as possible, its original intention, but all the remaining provisions shall remain in full force and effect.
(d) Assignment: Neither party may assign, transfer, declare a trust over the benefit of or otherwise dispose of this Agreement without the other party’s written consent, which shall not be unreasonably withheld or delayed, except that we may assign this Agreement to any Affiliate or successor in interest, or in connection with a merger, consolidation, sale of all or substantially all of its assets, change of name or like event.
(e) Amendments; Waiver: Save as expressly provided herein, amendments to this Agreement must be in writing and signed by authorised representatives of both parties. Neither course of conduct nor trade practice shall be taken to modify any provision of this Agreement. Any failure to enforce strict performance of any provision of this Agreement shall not prevent us from subsequently doing so. No provision of this Agreement may be waived except in writing signed by the party against whom enforcement of the waiver is sought.
(g) Force Majeure: We shall not be in breach of this Agreement or otherwise liable to you for any delay in performance or non-performance under this Agreement if such delay is due to any event or circumstance beyond its reasonable control including acts of God or nature, failure or shortage of power supplies, acts or omissions of government or other authorities or any telecommunications carrier, operator or administrator or Internet service provider, war, act of terrorism, riot, trade dispute, lock-out or labour disturbance (each a “Force Majeure Event”). If any Force Majeure Event continues for a period of one calendar month, then either party may terminate this Agreement with immediate effect.
(h) Equitable Relief: Both parties agree that monetary damages alone might not be a sufficient remedy for any breach of this Agreement and acknowledge that an aggrieved party shall be entitled to seek injunctive relief as a remedy for any breach. Such remedy will not be deemed to be the exclusive remedy for any breach of this Agreement but shall be in addition to all other remedies available at law or in equity to the aggrieved party.
(i) Notices: Each party may communicate with each other and send notices under this Agreement to the other party in the normal course of business using the address details specified in your Order Form (including, for the avoidance of doubt, any email address specified). Any communication or notice under clause 14 shall be in writing and shall be delivered personally or sent by pre-paid first class post (air mail if posted to or from a place outside the United Kingdom), or by signed for courier to the company secretary of the recipient of the communication or notice.
(j) Applicable Law; Venue: This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of the Republic of India. The parties irrevocably agree that English courts have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).