These Terms of Service ("Terms of Service," "Agreement")
governs your ("Customer," "User," "your," or "you") use of Digiprima' Services. The Terms of Service is
a legally binding agreement between the User and Digiprima Technologies Pvt. Ltd. ,
("Digiprima", "we", "us", or "our").
PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING THE SERVICE OFFERED BY Digiprima.
PLEASE NOTE THAT THIS AGREEMENT CONTAINS A BINDING AND MANDATORY CUSTOMER ARBITRATION THAT REQUIRES THE
USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES AND LIMITS THE REMEDIES AVAILABLE TO YOU
IN THE EVENT OF CERTAIN DISPUTES. ANY DISPUTES RELATING TO THE AGREEMENT, YOUR ACCOUNT OR THE SERVICES
PROVIDED BY US MUST BE RESOLVED BY BINDING ARBITRATION AND ON AN INDIVIDUAL BASIS. PLEASE SEE SECTION
13.8 FOR FURTHER DETAILS.
THIS AGREEMENT ALSO CONTAINS AN AUTO-RENEWAL CLAUSE. PLEASE REVIEW SECTION 8.1 TO UNDERSTAND THE
COMPLETE EXTENT OF YOUR RIGHTS AND OBLIGATIONS UNDER THE AUTO-RENEWAL CLAUSE.
WHEN YOU CREATE AND REGISTER AN ACCOUNT WITH US ON OUR WEBSITE I.E., LOCATED AT WWW.DIGIPRIMA.COM ("WEBSITE") BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH US WHICH REFERENCE THESE TERMS (EACH, AN "ORDER") OR BY ACCESSING OR USING THE SERVICE IN ANY MANNER, YOU AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE "AGREEMENT") TO THE EXCLUSION OF ALL OTHER TERMS. YOU REPRESENT AND WARRANT THAT (A) YOU ARE AT LEAST 18 YEARS OF AGE; (B) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT; AND (C) IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERMS "CUSTOMER," "YOU" AND "YOUR" SHALL REFER TO SUCH AN ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY OR YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
3.1 Services. Digiprima provides "Services" to
its Customers. For the purpose of the Agreement, "Services" is defined as the software services provided
by Digiprima to the Customer and as fully described under an applicable "Order" (as defined under
Section 3.3). Subject to Digiprima's receipt of the applicable Fees (as detailed under an Order) from
the Customer, Digiprima will use commercially reasonable efforts to make the Services available to
Customer, in compliance with the terms of this Agreement and an applicable Order.
3.2 License to Digiprima Services. Digiprima hereby grants the Customer, for the Term (as defined under
Section 8.1), a limited, non-exclusive, non-sub-licensable, non-transferable, non-assignable right to
access and use the Services. Any such use of the Services by Customer is authorized solely for
Customer's internal business and is subject to Customer's compliance with any additional limitations and
restrictions as may be specified under an applicable Order.
3.3 On-premises Deployment. If under an applicable Order, Customer is accessing Digiprima services
through an on-premises deployment through a docker container or otherwise, the right to access such
service shall only be limited to the time period mentioned in the applicable Order. In absence of any
agreement to the contrary in the applicable Order, right to use the Services through such deployment
shall also be limited, non-exclusive, non-sub-licensable, non-transferable, non-assignable. Upon the
lapse of the applicable Service duration, Customer shall destroy and permanently delete all Digiprima
data from their premises, and send appropriate proof of such destruction to Digiprima. Until one (1)
year after the lapse of the applicable Service duration, Digiprima shall have the ongoing right to
inspect, and audit customer's servers for Digiprima usage data and proof of any violation of such
limited license. The consumption of any additional licenses without prior payment shall be a considered
a material breach of this Agreement, which shall be remediable only by pro-rata payment being made to
Digiprima. In case a Digiprima Partner or Reseller has made an on-premises deployment to its customer
("End Customer"), such Partner shall ensure that it has rights of the same nature in written with regard
to the servers of End Customer.
3.4 Order. For the purposes of this Agreement, an "Order" is defined as an order form or other similar
document (including but not limited to an online order form) that details the Services being provided
hereunder and the applicable Fees to be paid by the Customer to Digiprima. The Order may also provide
details regarding the service level terms (if any). In the event of a conflict between the Order and the
Terms of Service, the Order will prevail.
3.5 Trials. If Customer is accessing or making use of the Service on a trial basis or on an evaluation
basis as identified in the corresponding Order (the "Trial"), Customer may use the Services during the
Trial provided such use does not exceed the service levels set forth in the corresponding Order.
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE TRIAL IS PROVIDED ON AN "AS-IS" BASIS AND THE TRIAL IS
PROVIDED WITHOUT ANY INDEMNIFICATION, SUPPORT, OR WARRANTIES OR REPRESENTATION OF ANY KIND. Further,
Trial may be subject to certain additional restrictions, limitations and differing terms all as
specified in the corresponding Order. NOTWITHSTANDING ANYTHING CONTAINED HEREIN, FOR PURPOSES OF A
TRIAL, THE SERVICE IS PROVIDED "AS-IS" WITHOUT ANY REPRESENTATIONS, WARRANTIES AND/OR
INDEMNITIES.
3.6 No-fee Access. If Customer is accessing or making use of the Service on a no-fee basis (the "Limited
Use"), Customer may use the Services during the Limited Use provided such use does not exceed the
Service levels specified on the Digiprima website with respect to Limited Use. Customer acknowledges and
agrees that the Limited Use is provided on an "as-is" basis, and the Limited Use is provided without any
indemnification, support, or warranties or representation of any kind. Additionally, Customer
acknowledges and agrees that Digiprima may terminate the Limited Use at any time and for any reason or
modify the applicable terms by publishing a notice on the Digiprima website.
3.7 Support Services. During the Term, Digiprima may also provide Customers with support services
("Support Services"). Customer acknowledges that such Support Services may be subject to additional Fees
as provided for under an applicable Order. If Digiprima is providing the Customer with Support Services,
it will be detailed under an applicable Order.
3.8 Service Suspensions. Digiprima may suspend Customer's access to or use of the Services as
follows:
(a) immediately if Digiprima reasonably believes Customer's use of the Services may
pose a security risk to or may adversely impact the Services;
(b) immediately if Customer become
insolvent, has ceased to operate in the ordinary course, made an assignment for the benefit of
creditors, or becomes the subject of any bankruptcy, re-organization, liquidation, dissolution or
similar proceeding;
(c) following thirty (30) days written notice if Customer is in breach of
this Agreement or any Order (and has not cured such breach, if curable, within the thirty (30) days of
such notice); or
(d) Customer has failed to pay Digiprima the Fees with respect to the Services.
4.1 Restrictions. Customer will use the Services only in accordance with all
applicable laws, including, but not limited to, laws related to data protection and privacy (whether
applicable within the United States, the European Union, or otherwise). Customer agrees not to (and will
not allow any third party to): (i) remove or otherwise alter any proprietary notices or labels from the
Services or any portion thereof; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to
discover the underlying structure, ideas, or algorithms of the Services or any software used to provide
or make the Services available; or (iii) rent, resell or otherwise allow any third party access to or
use of the Services.
4.2 Reservations. You acknowledge and agree that the Services are provided under license (as described
under Section 3.2), and not sold, to you. Except to the extent necessary to access and use the Services,
nothing in this Agreement grants any title or ownership interest in or to any copyrights, patents,
trademarks, trade secrets or other proprietary rights in or relating to the Services whether expressly,
by implication, estoppel or otherwise. Digiprima and its licensors and service providers reserve and
shall retain their entire right, title, and interest in and to the Services, including all copyrights,
trademarks, and other intellectual property rights therein or relating thereto, except as expressly
granted to you in this Agreement.
5.1 Ownership. Digiprima retains all right, title, and interest whether
pre-existing or otherwise, in and to the Services, and any software, products, works or other
intellectual property created, used, provided or made available by Digiprima under or in connection with
the Services under this Agreement. Additionally, Digiprima owns the "Service Software" i.e., embedded in
the Services. For the purposes of this Agreement, "Service Software" is defined as the any Digiprima or
third-party software code, computer program, documentations, new versions, updates, enhancements,
upgrades, revisions, improvements and modifications of the foregoing that Digiprima has embedded into
the Services and is proprietary to Digiprima and Digiprima provides to the Customer under this
Agreement. Customer acknowledges and understands that Digiprima owns all Service Software and all rights
related thereto. Subject to the terms and conditions of this Agreement, including but not limited to
receipt of all applicable Fees, to the extent Digiprima makes Service Software available to the
Customer, Digiprima hereby grants to the Customer, and Customer hereby accepts from Digiprima, a
limited, non-exclusive, non-transferable, non-assignable and non-sub-licensable license to: run such
Service Software solely as necessary to make use of the Services.
5.2 Restrictions. Customer agrees that, it shall not: (a) exceed the scope of the licenses granted in
Section 5.1; (b) make copies of the Service Software; (c) distribute, sublicense, assign, delegate,
rent, lease, sell, time-share or otherwise transfer the benefits of, use under, or rights to, the
license granted in Section 3.2 and Section 5.1; (d) reverse engineer, decompile, disassemble or
otherwise attempt to learn the source code, structure or algorithms underlying the software, except to
the extent required to be permitted under applicable law; (e) modify, translate or create derivative
works of the Service Software; (f) remove any copyright, trademark, patent or other proprietary notice
that appears on the Service Software or copies thereof; or (g) combine or distribute any of the Service
Software with any third party software that is licensed under terms that seek to require that any of the
software (or any associated intellectual property rights) be provided in source code form (e.g., as
"open source"), licensed to others to allow the creation or distribution of derivative works, or
distributed without charge.
5.3 Feedback. Customer may from time to time provide suggestions, comments or other feedback to
Digiprima with respect to the Services ("Feedback"). Customer shall, and hereby does, grant to Digiprima
a nonexclusive, worldwide, perpetual, irrevocable, transferable, sub-licensable, royalty-free, fully
paid up license to use and exploit the Feedback for any purpose.
5.4 Disclaimer. Nothing in this Agreement will impair Digiprima's right to develop, acquire, license,
market, promote or distribute products, software or technologies that perform the same or similar
functions as, or otherwise compete with any products, software or technologies that Customer may
develop, produce, market, or distribute.
6.1 Digiprima Privacy Policy. Digiprima's current Privacy (the "Privacy
Policy"), which is incorporated herein by reference. Please review the Privacy Policy to learn about
Digiprima's information collection, usage and disclosure practices with respect to information collected
by Digiprima through the Services.
6.2 Customer Data. Customer Data is, or shall be, and shall remain the property of the Customer. For
purposes of this Agreement, "Customer Data" shall mean any data, information or other material provided,
uploaded, or submitted by Customer to the Service in the course of using the Services. Customer, not
Digiprima, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability,
appropriateness, and intellectual property ownership or right to use of all Customer Data. Customer
hereby grants Digiprima a non-exclusive, non-transferable, non-sub-licensable, worldwide, royalty-free
license to use, collect, transfer and process the Customer Data for the sole purpose of providing the
Services to the Customer under the terms of the applicable Order and this Agreement.
6.3 Derived Data. Customer further understands and acknowledges that Digiprima may generate "Derived
Data," (as defined below) from the Customer Data. For the purposes of this Agreement, "Derived Data"
means data submitted to, collected by, or generated by Digiprima from the Customer Data in connection
with Customer's use of the Services. Customer hereby agrees and understands that Digiprima may freely
use Derived Data for its internal business purposes (including without limitation, for purposes of
improving, testing, operating, promoting and marketing Digiprima's products and services).
6.4 Customer Responsibility; Customer Data. Customer is solely responsible for Customer Data including,
but not limited to:
(a) compliance with all applicable laws and this Agreement;
(b) any
claims relating to Customer Data;
(c) any claims that Customer Data infringes, misappropriates,
or otherwise violates the rights of any third party; and
(d) backing up and maintaining Customer
Data.
6.5 GDPR Reference. If Digiprima processes Customer's "Personal Data," under this Agreement and such
Personal Data is subject to the EU General Data Protection Regulation (the "GDPR"), the Customer may
require Digiprima to enter into a Data Processing Agreement ("DPA") with it. Under such a DPA, Digiprima
shall be the data "Processor" and the Customer shall be the data "Controller." Please note that the
processing of Personal Data pursuant to this Agreements shall be subject to the Digiprima's DPA.
6.6 Digiprima's Responsibility; Customer Data. Digiprima shall use commercially reasonable efforts to
maintain the security and integrity of the Services and all Customer Data controlled by Digiprima.
Digiprima is not responsible for unauthorized access to Customer Data or the unauthorized use of the
Services unless such access is directly due to Digiprima's gross negligence or willful misconduct.
Customer is responsible for the use of the Services by any person to whom Customer has given access to
the Services, even if Customer did not authorize such use. Digiprima reserves the right to retain
Customer Data for up to thirty (30) days following the termination or expiration of the corresponding
Order. Thereafter, Customer agrees and acknowledges that Customer Data may be irretrievably deleted.
7.1 Fees. Customer shall pay to Digiprima the fees as set forth in each applicable
Order(s) (collectively, the "Fees"). Customer acknowledges that it shall have no right to return the
Services and that all Fees shall be non-refundable. If Digiprima is required to initiate legal action
due to nonpayment of fees, Customer shall bear all costs resulting from the collection of such
fees.
7.2 Additional Services. Customer may place Orders for additional Services or to extend the term of the
existing Services by specifying such order details in an Order form agreed to in writing by the parties
referencing the terms and conditions of this Agreement.
7.3 Taxes. If Digiprima has the legal obligation (under applicable law) to pay or collect taxes for
which the Customer is responsible, including but not limited to, sales, use, transfer, privilege,
excise, and all other taxes and duties that are levied or imposed by reason of performance of the
Services by Digiprima under this Agreement, the appropriate amount shall be invoiced to and paid by the
Customer, unless Customer provides Digiprima with a valid tax exemption certificate authorized by the
appropriate taxing authority. All amounts payable to Digiprima under this Agreement shall be without
set-off and without deduction of any taxes, levies, imposts, charges, withholdings and/or duties of any
nature which may be levied or imposed, including without limitation, value added tax, customs duty and
withholding tax.
8.1 Term. The term of this Agreement shall commence on the "Effective Date" and
unless terminated earlier according to this Section 8, will end on the last day of the term specified in
a last Order (the "Term"). Effective Date is defined as the date the Customer enters into this
Agreement, signs an Order, and/or starts using our Services under the Trial. Each Order will renew
automatically at the end of the applicable term unless either party provides to the other advance
written notice with respect to non-renewal prior to the end of the then current term.
8.2 Termination for Breach. This Agreement and the Orders hereunder may be terminated: (a) by either
party if the other has materially breached this Agreement, within thirty (30) calendar days after
written notice of such breach to the other party if the breach is remediable or immediately upon notice
if the breach is not remediable; or (b) by Digiprima upon written notice to Customer if Customer (i) has
made or attempted to make any assignment for the benefit of its creditors or any compositions with
creditors, (ii) has any action or proceedings under any bankruptcy or insolvency laws taken by or
against it which have not been dismissed within sixty (60) days.
8.3 Effect of Termination. Upon any expiration or termination of this Agreement, Customer shall (i)
immediately cease use of the Service, and (ii) return all Digiprima Confidential Information, and
Digiprima provided software, and other materials and information provided by Digiprima. Any termination
or expiration shall not relieve Customer of its obligation to pay all Fees accruing prior to
termination. If the Agreement is terminated by Digiprima pursuant to Section 8.2 (a), Customer shall pay
to Digiprima all of the Fees for the entire term set forth in the corresponding Order(s).
8.4 Survival. The following provisions will survive termination of this Agreement: Sections 5.1
(Ownership), 8.3 (Effect of Termination), Section 8.4 (Survival), Section 9 (Confidentiality), Section
10.1 (Indemnification by Customer), Section 12 (Limitation of Liability), Section 13 (Miscellaneous).
During the term of this Agreement, either party may provide the other party with
confidential and/or proprietary materials and information ("Confidential Information"). All materials
and information provided by the disclosing party and identified at the time of disclosure as
"Confidential" or bearing a similar legend, and all other information that the receiving party
reasonably should have known was the Confidential Information of the disclosing party, shall be
considered Confidential Information. This Agreement is Confidential Information, and all pricing terms
are Digiprima Confidential Information. The receiving party shall maintain the confidentiality of the
Confidential Information and will not disclose such information to any third party without the prior
written consent of the disclosing party. The receiving party will only use the Confidential Information
internally for the purposes contemplated hereunder. The obligations in this Section shall not apply to
any information that:
(a) is made generally available to the public without breach of this
Agreement,
(b) is developed by the receiving party independently from and without reference to
the Confidential Information,
(c) is disclosed to the receiving party by a third party without
restriction, or
(d) was in the receiving party's lawful possession prior to the disclosure and
was not obtained by the receiving party either directly or indirectly from the disclosing party. The
receiving party may disclose Confidential Information as required by law or court order; provided that,
the receiving party provides the disclosing with prompt written notice thereof and uses the receiving
party's best efforts to limit disclosure. At any time, upon the disclosing party's written request, the
receiving party shall return to the disclosing party all disclosing party's Confidential Information in
its possession, including, without limitation, all copies and extracts thereof.
10.1 Indemnification by Customer. Customer will defend, indemnify, and hold
Digiprima, its affiliates, suppliers and licensors harmless and each of their respective officers,
directors, employees and representatives from and against any claims, damages, losses, liabilities,
costs, and expenses (including reasonable attorneys' fees) arising out of or relating to any third party
claim with respect to: (a) Customer Data; (b) breach of this Agreement or violation of applicable law by
Customer; or (c) alleged infringement or misappropriation of third-party's intellectual property rights
resulting from Customer Data or caused and contributed by the Customer.
10.2 Indemnification by Digiprima. Digiprima will defend, indemnify, and hold Customer harmless from and
against any third party claims, damages, losses, liabilities, costs, and expenses (including reasonable
attorneys' fees) arising from claims by a thirty party that Customer's use of the Service directly
infringes or misappropriates a third party's United States (or Berne Convention signatory country)
intellectual property rights (an "Infringement Claim"). Notwithstanding any other provision in this
Agreement, Digiprima shall have no obligation to indemnify or reimburse Customer with respect to any
Infringement Claim to the extent arising from:
(a) the combination of any Customer Data with the
Service;
(b) the combination of any products or services, other than those provided by Digiprima
to Customer under this Agreement, with the Service; or
(c) non-discretionary designs or
specifications provided to Digiprima by Customer that caused such Infringement Claim. Customer agrees to
reimburse Digiprima for any and all damages, losses, costs and expenses incurred as a result of any of
the foregoing actions.
10.3 Notice of Claim and Indemnity Procedure. In the event of a claim for which a party seeks indemnity
or reimbursement under this Section 10 (each an "Indemnified Party") and as conditions of the indemnity,
the Indemnified Party shall:
(a) notify the indemnifying party in writing as soon as
practicable, but in no event later than thirty (30) days after receipt of such claim, together with such
further information as is necessary for the indemnifying party to evaluate such claim; and
(b)
the Indemnified Party allows the indemnifying party to assume full control of the defense of the claim,
including retaining counsel of its own choosing. Upon the assumption by the indemnifying party of the
defense of a claim with counsel of its choosing, the indemnifying party will not be liable for the fees
and expenses of additional counsel retained by any Indemnified Party. The Indemnified Party shall
cooperate with the indemnifying party in the defense of any such claim. Notwithstanding the foregoing
provisions, the indemnifying party shall have no obligation to indemnify or reimburse for any losses,
damages, costs, disbursements, expenses, settlement liability of a claim or other sums paid by any
Indemnified Party voluntarily, and without the indemnifying party's prior written consent, to settle a
claim. Subject to the maximum liability set forth in Section 12, the provisions of this Section 10
constitute the entire understanding of the parties regarding each party's respective liability under
this Section 10, including but not limited to Infringement Claims (including related claims for breach
of warranty) and each party's sole obligation to indemnify and reimburse any Indemnified Party.
11.1 Warranty. The Services, when used by Customer in
accordance with the provisions of this Agreement and in compliance with the applicable specifications
will perform, in all material respects, the functions described in the Order (the "Specification"),
during the term in the corresponding Order.
11.2 Exclusive Remedies. Customer shall report to Digiprima, pursuant to the notice provision of
this Agreement, any breach of the warranty set forth in this Section 11. In the event of a breach of
warranty by Digiprima under this Agreement, Customer's sole and exclusive remedy, and Digiprima's entire
liability, shall be prompt correction of any material non-conformance in order to minimize any material
adverse effect on Customer's business.
11.3 Disclaimer of Warranty. Digiprima does not represent or warrant that the operation of the Service
(or any portion thereof) will be uninterrupted or error free, or that the Service (or any portion
thereof) will operate in combination with other hardware, software, systems or data not provided by
Digiprima, except as expressly specified in the applicable Specification.
CUSTOMER ACKNOWLEDGES
THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 11.1, Digiprima MAKES NO EXPRESS OR IMPLIED
REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICE OR SERVICES, OR THEIR CONDITION.
Digiprima IS FURNISHING THE WARRANTY SET FORTH IN SECTION 11.1 IN LIEU OF, AND Digiprima HEREBY
EXPRESSLY EXCLUDES, ANY AND ALL OTHER EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES, WHETHER UNDER
COMMON LAW, STATUTE OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY AND ALL WARRANTIES AS TO
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR NON-INFRINGEMENT OF
THIRD-PARTY RIGHTS.
12.1 Exclusion of Incidental and Consequential Damages.
EXCEPT FOR BREACH OF SECTION 9 ("CONFIDENTIALITY") OF THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY OR
ANY OF ITS AFFILIATES, EMPLOYEES, DIRECTORS, OFFICERS, LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE
LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE
THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR
ANY LOST DATA, LOST PROFITS, BUSINESS INTERRUPTION, REPLACEMENT SERVICE OR OTHER SPECIAL, INCIDENTAL,
CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES.
12.2 Cap on Monetary Liability. Digiprima'S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING
UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF FEES PAID
OR PAYABLE BY CUSTOMER UNDER THE APPLICABLE ORDER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE
CLAIM.
13.1 Export Control. Customer hereby certifies that Customer will comply with all
current US Export Control laws. Customer agrees to defend, indemnify and hold Digiprima harmless from
any liability for Customer's violation of U.S. Export Control laws.
13.2 Compliance with Laws. Customer shall comply with all applicable laws and regulations in its use of
any Service, including without limitation the unlawful gathering or collecting, or assisting in the
gathering or collecting of information in violation of any privacy laws or regulations. Customer shall,
at its own expense, defend, indemnify and hold harmless Digiprima from and against any and all claims,
losses, liabilities, damages, judgments, government or federal sanctions, costs and expenses (including
attorneys' fees) incurred by Digiprima arising from any claim or assertion by any third party of
violation of privacy laws or regulations by Customer or any of its agents, officers, directors or
employees.
13.3 Assignment. Neither party may transfer and assign its rights and obligations under this Agreement
without the prior written consent of the other party. Notwithstanding the foregoing, Digiprima may
transfer and assign its rights under this Agreement without consent from the other party in connection
with a change in control, acquisition or sale of all or substantially all of its assets.
13.4 Force Majeure. Neither party shall be responsible for failure or delay in performance by events out
of their reasonable control, including but not limited to, acts of God, Internet outage, terrorism, war,
fires, earthquakes and other disasters (each a "Force Majeure"). Notwithstanding the foregoing: (i)
Customer shall be liable for payment obligations for Service rendered; and (ii) if a Force Majeure
continues for more than thirty (30) days, either party may terminate this agreement by written notice to
the other party.
13.5 Notice. All notices between the parties shall be in writing and shall be deemed to have been given
if personally delivered or sent by registered or certified mail (return receipt), or by recognized
courier service.
13.6 Independent Contractor. Digiprima is an independent Contractor and both parties agree that no
agency, partnership, joint venture, or employment is created as a result of this Agreement. Customer
does not have any authority of any kind to bind Digiprima.
13.7 Governing Law. This Agreement shall be governed exclusively by, and construed exclusively in
accordance with, the laws of the State of California, United States, without regard to its conflict of
law provisions. The federal courts of the United States in the Northern District of California and the
state courts of the State of California shall have exclusive jurisdiction to adjudicate disputes arising
out of or relating to this Agreement, for any actions that are not subject to the Binding Arbitration
provision under Section 13.8. Each party hereby consents to the jurisdiction of such courts and waives
any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of
the doctrine of forum non conveniens or otherwise. The United Nations Convention on Contracts for the
International Sale of Goods shall not apply to this Agreement or any Purchase Order issued under this
Agreement.
13.8 Binding Arbitration. Any unresolved controversy or claim arising out of or relating to this
Agreement, except as (i) otherwise provided in this Agreement, or (ii) any such controversies or claims
arising out of either party's intellectual property rights for which a provisional remedy or equitable
relief is sought, will be submitted to mandatory and binding arbitration by one arbitrator mutually
agreed upon by the parties, and if no agreement can be reached within thirty (30) days after names of
potential arbitrators have been proposed by the American Arbitration Association (the "AAA"), then by
one arbitrator having reasonable experience in corporate finance transactions of the type provided for
in this Agreement and who is chosen by the AAA. The arbitration will take place in San Francisco,
California, in accordance with the AAA rules then in effect, and judgment upon any award rendered in
such arbitration will be binding and may be entered in any court having jurisdiction thereof. Unless
otherwise agreed to in writing by all of the parties, there will be limited discovery prior to the
arbitration hearing as follows: (i) one set of interrogatories; (ii) one set of admissions, (iii)
exchange of witness lists and copies of documentary evidence and documents relating to or arising out of
the issues to be arbitrated, and (iv) depositions of all party witnesses. Depositions will be conducted
in accordance with the California Code of Civil Procedure, the arbitrator will be required to provide in
writing to the Parties the basis for the award or order of such arbitrator, and a court reporter will
record all hearings, with such record constituting the official transcript of such proceedings.
13.9 Marketing. Customer hereby grants Digiprima the right to identify Customer as a Digiprima Customer,
and use Customer's name, mark and/or logo on Digiprima's website and/or in Digiprima's marketing
materials in connection with the Customer's use of the Service.
13.10 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual
understanding of the parties and supersedes and cancels all previous written and oral agreements,
communications, and other understandings relating to the subject matter of this Agreement, and all
waivers and modifications must be in a writing signed by both parties, except as otherwise provided
herein. Any term or provision of this Agreement held to be illegal or unenforceable shall be, to the
fullest extent possible, interpreted so as to be construed as valid, but in any event the validity or
enforceability of the remainder hereof shall not be affected. In the event of a conflict between this
Agreement and the Order document, the terms of this Agreement shall control, other than terms expressly
modified in any Order with respect to such Order.
