These terms and conditions (the "Terms") between Crediwatch Information Analytics Private Limited “Crediwatch” and the customer (the "Customer") identified on a relevant order form (the "Order Form") are effective from the date on the Order Form submitted by the Customer and accepted bycrediwatch.
- crediwatch has developed services, including data and software services as specified in the Order Form (the "Product"). The Product includes without limitation, crediwatch application-programming interface ("API"), the crediwatch user interface and documentation as well as any programming fixes, modifications, enhancements, improvements, updates, additions, derivative works and related material (the "Software") and data includes, without limitation, third party data, which is made available on the crediwatch website and/or via the Software (the "Data").
Licence and Intellectual Property Rights
- crediwatch hereby grants (for the duration of any agreement as set out in a relevant Order Form with the Customer (the "Agreement")) to the Customer a personal, non-exclusive, revocable and non-transferable right to access and use the Product for internal use only, subject to these Terms. For the avoidance of doubt, the Customer shall have no right to grant sub-licences. All rights not expressly granted to the Customer under an Agreement are reserved by crediwatch (and/or its licensors).
- The Customer shall be responsible for installing the Product (as applicable) and shall use reasonable endeavours to ensure that any of the data provided by it to crediwatch (the "Customer Data") is complete, accurate and in the agreed format.
- The Customer agrees that all personnel who will use the Product will be its employees, temporary employees or individual contractors whose access must be for the sole benefit of the Customer and in compliance with these Terms. The Customer is responsible for such representatives' compliance with these Terms.
- The Customer agrees that the Software is the sole property of crediwatch and the Data is the sole property of crediwatch or, where appropriate, its licensor and will not (without express written consent from crediwatch ): (i) create derivative works based on the Product except to the extent such derivative works are an essential product of the Customer's use of the Product; (ii) reproduce the Product, sell or assign, licence or disclose or otherwise transfer or make available the Product in any form to any third party; (iii) remove or alter any proprietary notices or marks on the Product; or (iv) modify, reuse, disassemble, decompile, reverse engineer or otherwise translate the product or any portion thereof except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
- The Customer shall not under any circumstances: (i) use information from the Product to build a database for resale or for access by a third party in competition with crediwatch and/or the Product; (ii) allow information from the Product to be used in any way to verify information from a third party that resells data in competition with crediwatch ; or (iii) provide access to or information from the Product to a third party that resells data in competition with crediwatch or to a third party that plans to resell to a further third party access to the Product or information obtained from the Product.
- crediwatch (or its relevant licensors) shall own all right, title and interest, including but not limited to all intellectual property rights, in and to the Product. The Agreement is not a sale agreement and does not convey to the Customer any rights of ownership in or related to the Product. crediwatch reserves the right to, at any time without prior notice, make modifications to the design, operational methods, specifications, systems, and other functions of the Product.
- The Customer hereby assigns to crediwatch all right, title and interest to any enhancements suggested by the Customer in respect of the Product and all property rights therein including without limitation all patent, copyright, trade secret, mask work, trademark, moral right or other intellectual property rights which may result from the Customer's use of the Product.
- The Customer agrees that it will include a link to the crediwatch website on its website or client application if crediwatch API content or data are served from its website or client application in such manner as is reasonably required by crediwatch from time to time.
Representations and Warranties
- The Customer represents and warrants that (i) the Customer (if an individual) is at least eighteen (18) years of age; (ii) the Customer possesses the legal right and ability to enter into the Agreement; and (iii) the performance of its obligations and use of the Product (by the Customer) will not violate any applicable laws, rules or regulations or cause a breach of any agreements with any third parties or unreasonably interfere with other crediwatch customers' use of crediwatch services.
- In the event of any breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, crediwatch will have the right, in its sole discretion, to suspend or terminate immediately the Customers use of the Product.
- The Customer agrees that it will use the Product only for lawful purposes and in accordance with the Agreement. The Customer will comply at all times with all applicable laws, rules and regulations.
- The Customer shall not (i) remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any Third Party Product (as defined below) or that appear during use of any Third Party Product; or (ii) reverse engineer, decompile, or disassemble any Third Party Product, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
- The Customer shall not: (i) subject to paragraph 12.4, cache or store any Data returned by the Product for longer than thirty (30) days without crediwatch's prior written consent; (ii) attempt to circumvent any security measures or technical limitations of the Product; (ii) use the Product in a manner that exceeds reasonable request volume or constitutes excessive or abusive usage; (iv) use the Product in a way which harms the interests of crediwatch, the crediwatch website, any of crediwatch's affiliates, the Product or other customers of crediwatch ; (v) forge headers or otherwise manipulate identifiers (including without limitation URLs) in order to disguise the origin of any Data transmitted through the crediwatch website; (vi) create an application that may be used to violate crediwatch's terms of service or other site policy; and/or (vii) adversely affect crediwatch or crediwatch's name, reputation, image or goodwill in connection with the Customer's use of the Product.
- crediwatch reserves the absolute right to limit the volume of API enquiries placed and/or use of the Product at any time in particular but without limitation to keep the Customer within terms of fair usage and maintain overall performance.
- To the maximum extent permitted by law, crediwatch expressly disclaims all warranties and representations with respect to the Product, whether express, implied, statutory or otherwise, including without limitation, any implied warranty of merchantability, fitness for a particular purpose, lack of viruses, accuracy or completeness of responses or results from use of the Product, that the Product will meet specific requirements, that the Product will be uninterrupted, completely secure or free of software errors. The Customer acknowledges and agrees that the Product is provided on an "as is" basis and, to the maximum extent permitted by law, without any warranty of any kind and that the entire risk as to the quality and performance of the Product shall be borne by the Customer.
- crediwatch does not and cannot control the flow of information to or from crediwatch's network and other portions of the internet. Such flow depends in large part on the performance of internet services provided or controlled by third parties. At times actions or omissions of such third parties can impair or disrupt the Customer's connections to the internet (or portions thereof). crediwatch cannot guarantee such events will not occur. Accordingly, to the maximum extent permitted by law, crediwatch disclaims any and all liability resulting from or related to such events.
- crediwatch may provide the Customer access to other third party software and/or services ("Third Party Products") through reseller relationships crediwatch has established with certain commercial vendors ("Third Party Vendors"). Unless otherwise notified, the Customer understands that product support for Third Party Products is provided by crediwatch and not by the Third Party Vendor. Neither crediwatch nor any Third Party Vendor makes any representations or warranties, express or implied, regarding any Third Party Products. The Customer expressly acknowledges and agrees that use of Third Party Products is at the Customer's sole risk and such Third Party Products is at the Customer's sole risk and such Third Party Products are provided "as is" and without representation or warranty of any kind from crediwatch or any Third Party Vendor, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, lack of viruses, accuracy or completeness of responses or results, correspondence to description, or non-infringement of third party rights. To the maximum extent permitted by applicable law, neither crediwatch nor any Third Party Vendor will be legally responsible for any damages, whether direct, indirect or consequential, arising from the use or inability to use any Third Party Product. The Customer agrees to observe the terms of any licence and/or applicable end-user subscriber agreement for Third Party Products and that the Customer shall be fully liable to Third Party Vendors and crediwatch with respect to any improper use of Third Party Products or violation of licence agreements with them and/or applicable end user subscription agreements.
Payments and Invoicing
- The Customer shall pay for use of the Product in accordance with the fees, charges and billing terms set out in the Order Form. crediwatch shall be entitled to change the fees for the Product. If such change is to the Customer’s disadvantage, crediwatch shall notify the Customer in writing not later than sixty (60) days in advance. The Customer shall be entitled to give written notice of termination of the Product not later than thirty (30) days prior to the entry into force of the new fees. Such termination shall enter into force on the date the new fees would have been effective. In the absence of such notice of termination, the Customer shall be deemed to have approved the new fees. All fees are exclusive of, and the Customer shall pay, all taxes, duties, levies, fees or other similar charges (including, without limitation VAT). Payment shall be made within thirty (30) days of the date of the invoice and to the account designated by crediwatch. If payment is not made within that time, crediwatch may charge interest at the rate of one point five (1.5) per cent per month.
Nature of Services
- The Product is not intended to be used as the sole basis for any business decision, and is based upon data which is provided by third parties, the accuracy and/or completeness of which it would not be possible and/or economically viable for crediwatch to guarantee. Accordingly, to the maximum extent permitted by law, crediwatch does not accept any liability for: (i) any inaccuracy, incompleteness or other error in the Product (in particular the Data) which arises as a result of Customer Data or data provided to crediwatch by any third party; or (ii) any failure of the Product to achieve any particular result for the Customer.
Compliance and Audit
- The Customer shall in connection with the provision or use of the Product (as appropriate) comply with all legislation, regulations, and other rules having equivalent force which are applicable to it.
- The Customer shall permit crediwatch or its nominated third party auditor (on reasonable notice and during normal working hours) to audit Customer's compliance with its obligations under these Terms in relation to the use of any software, data or other materials. crediwatch shall: (i) observe the Customer's procedures relating to the protection of confidential information about any customers of the Customer; (ii) take all reasonable steps to minimise disruption to the Customer's business during such audit; and (iii) be responsible for the costs of conducting such audit, save where the Customer is found to be noncompliant with its obligations under these Terms, in which case crediwatch may charge the Customer for its reasonable costs in conducting the audit.
- Subject to paragraphs 3.1, 9.2 and 10.1 below, neither crediwatch nor the Customer shall, even after the expiration of the Agreement use or disclose to any third parties any Confidential Information which such party has received from the other. “Confidential Information” shall mean any information, technical, commercial or of any other kind, whether written, oral or in electronic form, except such information which is publicly known or which has come to the public knowledge in any other way than through breach of this secrecy undertaking, or has been: (i) independently developed without access to such party's Confidential Information; (ii) rightfully received from a third party; or (iii) required to be disclosed by law or by a governmental authority.
- crediwatch shall be entitled to refer to the parties cooperation under the Agreement and use the Customer’s company name and trademarks belonging to the Customer in press releases, other public announcements, advertising and other communications aimed at third parties (including email and webpages).
Third Party Claims
- The Customer shall have sole responsibility for the accuracy, quality, integrity, legality, non-infringement of any third party intellectual property rights, reliability and appropriateness of all data which is uploaded to, downloaded from, transferred through, entered into or otherwise processed within the Product by or on behalf of the Customer (including, without limitation, the Customer Data) (the "Customer Content") and crediwatch shall have no liability whatsoever for such Customer Content. For the avoidance of doubt, the Customer shall be responsible for obtaining and maintaining all licenses required for the use of the Customer Content within the Product, including payment of all associated license fees and other costs. crediwatch reserves the right and Customer hereby grants to crediwatch the right to use the Customer Content generated by the Customer within the scope of the Product to make statistics and make such statistics available to third parties.
- The Customer shall hold harmless and indemnify crediwatch from and against any third party claim arising from or in any way related to its use of the Product, violation of these Terms or any other actions connected with use of the crediwatch services, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, crediwatch will provide the Customer with written notice of such claim, suit or action.
Limits on Liability
- In no event shall crediwatch ’s aggregate liability under the Agreement exceed an amount corresponding to fifty (50) per cent of the net amount paid by the Customer to crediwatch during the three month period immediately preceding the date of the claim. In no event shall crediwatch be liable for any indirect, special, incidental or consequential damage, including but not limited to, any damages for loss of profits or revenue by the Customer, whether based in contract, tort or any other legal theory, even if crediwatch has been advised of the possibility of such damages. Nothing in the Agreement shall be construed as excluding or limiting crediwatch’s liability for: (i) death or personal injury caused by crediwatch’s negligence; (ii) fraud; or (iii) any liability which cannot be excluded or limited under applicable law.
- Either party shall be entitled to terminate the Agreement with immediate effect by serving written notice on the other party in the following circumstances: (i) if the other party commits a material breach of any of its obligations under the Agreement which is not capable of remedy; (ii) if the other party commits a material breach of any of its obligations under the Agreement which is not remedied within twenty-eight (28) days after receipt of a notice from the party not in breach specifying the breach, requiring its remedy and making clear that failure to remedy may result in termination; (iii) if the other party has passed a resolution for its winding up (save for a voluntary winding-up for the purpose of a voluntary reconstruction or amalgamation), is subject to a petition presented to any court for its winding-up (save for a voluntary winding-up for the purpose of a voluntary reconstruction or amalgamation), is the subject of an application for administration filed at any court or a notice of appointment of an administrator filed at any court or a notice of intention to appoint an administrator given by any person, or is the subject of a notice to strike off the register from the jurisdictional Registrar of Companies, or is dissolved or declared bankrupt, or has a receiver, administrator or administrative receiver appointed over all or part of its assets, or enters into an arrangement with its creditors, or is unable to pay its debts, or ceases to trade or takes or suffers any similar action; and/or (iv) (in the case of termination by crediwatch only) if we lose the right to distribute any Data or third party software as contemplated by the Agreement.
- The Agreement may be terminated by crediwatch at any time upon it giving to the Customer no less than thirty (30) days' prior written notice of termination.
- Termination of the Agreement (or of any element of it) shall not affect any rights, obligations or liabilities of either party which have accrued before termination (including, without limitation, payment obligations) or which are intended to continue to have effect beyond termination. The Customer's entitlement to use Product shall cease on termination of the Agreement.
- Upon termination of the Agreement, the Customer will return all copies of the Product (to the extent any such copies exist), together with all software, documentation and other data relating thereto whether prepared by the Customer or crediwatch and take all commercially reasonable steps to permanently delete any copies of any Software or Data from its electronic systems.
- The Agreement represents the entire agreement between crediwatch and the Customer relating to the subject matter hereof and supersedes all prior agreements, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, agent, employee or representative of either of the parties as well as applicable non-mandatory local laws and international regulations.
- crediwatch reserves the right to modify the terms and conditions of the Agreement at any time (and in respect of material changes following thirty (30) days' notice to the Customer). The Customer will be informed of such amendments by e-mail or by postings on the crediwatch website or forums maintained by crediwatch. Continued use of the Product after any such changes shall constitute acceptance by the Customer to such changes.
- Except for any payments due hereunder, neither party shall be responsible or liable for any failure to perform its obligations due to unforeseen circumstances or to causes beyond its reasonable control, including but not limited to acts of God, war, riots, terrorist acts, embargoes, acts of civil or military authorities, fires, floods, earthquakes, accidents, labour conflicts, failure of any communications services, or shortage or failure of other critical materials or services for the duration of any such circumstances or cause.
- Neither party may assign, charge, transfer or deal in any other manner with the Agreement in whole or in part without the prior written consent of the other party save that crediwatch shall be entitled to sub-contract any or all of its obligations under the Agreement to a sub-contractor but by doing so it shall be responsible for the acts and omissions of the sub- contractor to the same extent as if it had carried out the obligations itself pursuant to the Agreement.
- If any provision of the Agreement is held by any competent authority to be invalid or unenforceable in whole or in part then such provision shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision and the validity of the other provisions of the Agreement shall not be affected thereby.
- Nothing in the Agreement shall create or confer any rights or other benefits in favour of any person other than the parties to the Agreement.
- Nothing in the Agreement shall be construed as creating a partnership or joint venture of any kind between the parties or as constituting either party as the agent of the other party for any purpose whatsoever and neither party shall have the authority or power to bind the other party or to contract in the name of or create a liability against the other party in any way or for any purpose.
- If either party fails to exercise a right or remedy that it has or which arises in relation to the Agreement, such failure shall not prevent that party from exercising that right or remedy subsequently in respect of that or any other incident.
- A waiver of any breach or provision of the Agreement shall only be effective if it is made in writing and signed on behalf of the party who is waiving the breach or provision. Any waiver of a breach of any term of the Agreement shall not be deemed a waiver of any subsequent breach and shall not affect the enforceability of any other term of the Agreement.
- It is a condition of the Agreement that neither of the parties shall be bound by, or liable to the other party for, any representation, promise or inducement (other than fraudulent misrepresentations) made by it or by any agent or person on its behalf which is not expressly contained in the Agreement.
- The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of India. The parties irrevocably agree that the courts of Bangalore shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).
- In the Agreement: (i) any reference to a statutory provision includes a reference to any modification or re-enactment of it from time to time; (ii) the singular includes the plural and vice versa; (iii) the headings are for ease of reference only and shall not affect the construction or interpretation of the Agreement; and (iv) wherever the words "including", "include", "includes" or "included" are used they shall be deemed to be followed by the words "without limitation" unless the context otherwise requires.
- The contents of the Order Form shall prevail over the contents of these terms and conditions to the extent of any conflict or inconsistency