Master Subscription Agreement
This Master Agreement (the “Agreement”) is made and entered as of the date 1st January 2022, this Agreement is fully executed between the parties (the “Effective Date”), by and between ThinkBumblebee Analytics Private Limited. A Company incorporated under the Companies Act, 2013, CIN – U74999PN2016PTC165758, (Propellor) and the party (“Client”) that subscribes for the Services, as defined below. Between Propellor and each Client the Agreement consists of these terms, each signed order form or online enrollment (including any notes, pricing or other terms listed therein) (the “Order Form”), including any exhibits, and any updates or amendments to each of the foregoing. This Agreement is effective as of the date of Client’s initial Order Form (the “Effective Date”). By executing the initial Order Form or accessing the Services, Client agrees to all the terms set forth below.
1. DEFINITIONS
1.1. Services. Propellor will use commercially reasonable efforts to provide to Client the Services (as defined below) identified on each Order Form and Client may have use and access such Services, each according to the terms of the Agreement. Client’s use case will be described on the Order Form or separate schedule
1.2. “Client Data” means any data, information, or content (including text, image, graphs, statistics, or otherwise) provided or made available by Client to Propellor to conduct an analysis or query.
1.3. “SLA” means the service level agreement made with the client
1.4. “Third-Party Content” means any data, information, or content originating from or belonging to any Third-Party Platform.
1.5. “Third-Party Platform” means a third-party application of the client whose data may be ingested in the Propellor platform
2. CONDITIONS AND RESTRICTIONS OF USE
2.1. Use of Software Underlying Services. Client will not and will not allow Users to, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (the “Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Propellor in writing or authorized within the Services); frame, mirror or use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; remove any proprietary notices or labels; or use the Services in violation of any applicable laws and regulations.
2.2 Compliance. Client is solely responsible for (a) the accuracy, content and legality of all Client Data and (b) any consents and notices required to permit: (i) Customer’s use and receipt of the Services and (ii) Propellor’s access to and processing of Client Data pursuant to this Agreement.
2.3. Appropriate Use of Services. Client will not, and will not permit its Users to:
(a) Post, upload, forward, or otherwise transmit any file or software code which contains, facilitates, or launches viruses, worms, trojan horses or any other contaminating or destructive features, or that otherwise interfere with the proper working of the Services; or
(b) Attempt to access any other Propellor systems that are not part of the Services;
(c) Use the Services to upload, post, process, distribute, link to, publish, reproduce, or transmit any of the following, including but not limited to:
(i) Illegal, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate, or objectionable information or communications of any kind, including without limitation conduct that would encourage or constitute an attack or “flaming” others, or criminal or civil liability under any local, state, federal or foreign law; or
(ii) Any information, software or content Client does not have the legal right to process or transmit.
(a) Post, upload, forward, or otherwise transmit any file or software code which contains, facilitates, or launches viruses, worms, trojan horses or any other contaminating or destructive features, or that otherwise interfere with the proper working of the Services; or
(b) Attempt to access any other Propellor systems that are not part of the Services;
(c) Use the Services to upload, post, process, distribute, link to, publish, reproduce, or transmit any of the following, including but not limited to:
(i) Illegal, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate, or objectionable information or communications of any kind, including without limitation conduct that would encourage or constitute an attack or “flaming” others, or criminal or civil liability under any local, state, federal or foreign law; or
(ii) Any information, software or content Client does not have the legal right to process or transmit.
2.4. In its reasonable discretion Propellor may do so and may prohibit any use of the Services it believes may be in violation of the foregoing. Client is responsible for the use of the Services by its employees, consultants and Users and for compliance by each User with this Agreement.
2.5. The Services are provided for the period defined in the Order Form (“Term”), along with the subscription details and financial conditions, only to Client and its authorized users, unless otherwise approved by Propellor in writing. The Order Form sets out the fees for the Services and Client must pay the fees in accordance with the conditions defined therein and in accordance with the Agreement.
2.6. The Services are provided under certain conditions as detailed in the SLA and further in this Agreement. Client understands and acknowledges that the Services are dependent upon the availability and completeness of content and data provided by Third-Party Platforms.
2.7. Client must access and use the Services in accordance with the content limitations and all applicable laws or regulations, including regulations on sanctioned countries, and data protection regulations, including all applicable privacy and data protection laws. Client shall not use the Services for a purpose other than analytics of their own customers and business. Client shall not sell, resell, re-publish, or distribute the Deliverables and/or Services without Propellor’s prior express written consent.
3. CONFIDENTIALITY, PUBLICITY and PROPRIETARY RIGHTS
3.1. Neither Party may use the other’s Confidential Information, as defined below, or disclose it to any other person, other than to its affiliates, for any purpose other than performing its obligations under this Agreement. “Confidential Information” includes Client Data, trade secrets, any source code of any software used within or in relation to the Services, any financial information concerning the Parties, any information regarding either Party’s business or activities, as well as any information that, by nature or given the circumstances of its disclosure, should be understood to be confidential. Client acknowledges that Propellor does not wish to receive any Confidential Information from Client that is not necessary for performing its obligations under this Agreement, and, unless the Parties specifically agree otherwise, Propellor may reasonably presume that any unrelated information received from Client is not Confidential Information.
3.2. Confidential Information does not include any information that (a) was already lawfully in the receiving party’s possession before receipt from the disclosing party; (b) is or becomes publicly available through no fault of the receiving party; (c) is rightfully received by the receiving party from a third party who possessed the same information lawfully and without a duty of confidentiality; (d) is disclosed by, or is disclosed with the permission of, the disclosing party to a third party without a duty of confidentiality on the third party; or (e) is independently developed by the receiving party without a breach of this Agreement.
3.3. Unless Client objects in writing, Propellor may disclose that Client is a Client of Propellor and Client hereby grants Propellor the right to use its name and logo may use Customer’s name and logo in Propellor’s Client list, press releases, blog posts, advertisements, and website.
3.4. Ownership Rights. “Client Data” refers to any data provided by or on behalf of Client or Users for processing by the Services. Client owns all right, title and interest in and to the Client Data, and all intellectual property rights related thereto. Client grants Propellor all necessary rights to process Client Data in accordance with the terms of this Agreement. “Service Data” refers to (a) data generated from Client’s or User’s use and configuration of the Services (e.g., Customer’s path through the Services, login frequency, query logs, suggestions, feedback, etc.), and (b) all other data not defined as Client Data. Propellor owns and retains all right, title and interest in and to (a) the Service Data, (b) the Services and Software, and all documentation to use Software, improvements, enhancements or modifications thereto, (c) any software, applications, inventions or other technology developed by or on behalf of Propellor in connection with the Services, and (d) all intellectual property rights related to any of the foregoing
4. WARRANTIES AND ANTI-CORRUPTION
4.1. General Warranties. We warrant that during the Term we will: (a) provide the Services with reasonable skill and care; (b) maintain all licenses and permissions necessary to perform our obligations under this Agreement; and (c) not make a material adverse change to the functionality of the Services, unless required by a change in legal environment or the terms and conditions of a Third-Party Platform. Propellor and its licensors and suppliers disclaim all other warranties for the Services, whether express, implied, statutory, or otherwise, including any warranty of merchantability, fitness for a particular purpose, title, quiet enjoyment or from a course of dealing, course of performance or usage in trade. Any access by Client of any Third-Party Platform or other website via hyperlink from the Services is subject to the terms of service of such Third-Party Platform(s) or website(s) and at Client’s sole risk. Propellor makes no warranty whatsoever with respect to the accuracy, availability, completeness, functionality, reliability, security, timeliness, usefulness, or any other aspect of any Third-Party Platform or Third-Party Content or website and the data and information contained thereon or obtained therefrom.
5. LIMITATION OF LIABILITY
5.1. To the maximum extent permitted by applicable law, Propellor shall not be liable under or in connection with this agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for: (a) any indirect, incidental, consequential, special or punitive damages; and (b) loss of goodwill, loss of business, loss of revenue, loss of data or loss of profits (in each case whether direct or indirect), however caused and based on any theory of liability, and even if Propellor has been advised of the possibility of such damages.
5.2. Under no circumstances shall Propellor be liable in the event a third-party platform restricts, either temporarily or permanently, access to third-party content in such a manner that would cause any part of the content provided through the services to no longer be accessible to client. Client is solely responsible for obtaining, subscribing, installing, maintaining, and operating all adequate software (such as a browser), hardware, computer equipment, or otherwise necessary to use of the services. Propellor may not be held liable for any defects or delays in the service arising because of any problem associated with the internet.
6. INDEMNIFICATION
6.1. Client Indemnity Responsibility. Client will indemnify, defend, hold harmless, and/or settle any third-party claim against Propellor arising out of any of the following: (a) Client’s use of the Services, Third-Party Content, and/or Third-Party Platforms to which the Services provide access, in breach of this Agreement; (b) Client non-compliance with any term of this Agreement, including non-compliance with the Content Limitations; and/or (c) Client’s violation of any applicable laws or regulations, including applicable privacy and data protection laws.
6.2. In the event of a claim, Propellor reserves the right to: (a) discontinue Client’s use of the Services, (b) block access to the Services, and/or (c) make inaccessible or delete all or part of the data on our systems that Client entered into the Services or that have been added to our systems as a result of Client’s use of the Services.
7. TERMINATION AND SUSPENSION
7.1. Either Party may immediately terminate this Agreement in the event of a material breach by the other Party upon (a) written notification indicating the nature of the breach and (b) if such breach is capable of being cured and not remedied within fifteen (15) business days from receipt of such notification (“Cure Period”). During the Cure Period, Propellor reserves the right to suspend access to the Services.
7.2. Propellor may suspend access and/or terminate an Order Form and/or this Agreement in its entirety under the following circumstances: (a) in the event of a change in the business, legal, or regulatory environment that Propellor assesses jeopardizes the economic viability of Propellor ’s business model, subject to a one (1) month prior notice to Client; or (b) in the event of a judgment, administrative or court order, regulation, or similar, in which case Propellor will notify Client immediately of the effective date at which time the Services will be stopped.
7.3. In the event this Agreement is terminated for any reason, Client shall not be relieved from its outstanding payment obligations for the period prior to the effective date of termination but Propellor shall, as a final remedy, reimburse any prepaid fees for the portion of the Services yet to be received.