Terms & Conditions
Effective Date: 10, April 2017
PLEASE READ THIS AGREEMENT (“Agreement”) CAREFULLY. BY ACCESSING OR USING ALL OR ANY PORTION OF THE SERVICE (AS DEFINED BELOW), BY CLICKING “Sign Up”, BY ENTERING INTO ANY ORDER FORM, PURCHASE ORDER, STATEMENT OF WORK, WORK ORDER, ONLINE PAYMENT OR OTHER WRITTEN DOCUMENTATION WITH TEXTIENT (COLLECTIVELY, “Order Forms“), OR BY PAYING FOR THE SERVICE BY ANY MEANS OFFERED BY TEXTIENT ANALYTICS OR ITS AFFILIATES (COLLECTIVELY, “TEXTIENT”), YOU (“you”, “your” or “Customer”) ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. CUSTOMER AGREES THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY CUSTOMER. IN THE EVENT OF ANY CONFLICT BETWEEN ANY ORDER FORMS AND THIS AGREEMENT, THE TERMS AND CONDITIONS OF THIS AGREEMENT SHALL PREVAIL AND TAKE PRIORITY.
AS THE INDIVIDUAL CLICKING THROUGH AND ACCEPTING THIS AGREEMENT, YOU REPRESENT AND WARRANT THAT YOU HAVE THE FULL AND LAWFUL AUTHORITY OF CUSTOMER TO ENTER INTO THIS AGREEMENT ON ITS BEHALF. IF YOU DO NOT AGREE, DO NOT USE THE SERVICE. USERS SHALL BE BOUND BY CONDITIONS AND RESTRICTIONS CONSISTENT WITH THIS AGREEMENT. THE TERMS AND CONDITIONS OF THIS AGREEMENT APPLY TO ANY AND ALL USE OF THE SERVICE BY CUSTOMER, INCLUDING WHERE CUSTOMER IS USING THE SERVICE PURSUANT TO ANY DEMO OR TRIAL PERIOD, FOR THE TERM OF THIS AGREEMENT AND CUSTOMER, ON ITS OWN BEHALF AND ON BEHALF OF ITS USERS, AGREES AND CONSENTS TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT REGARDLESS OF THE TYPE OF USE OF THE SERVICE BY CUSTOMER. This Agreement, as amended from time to time, is between Customer and TEXTIENT ANALYTICS(“TEXTIENT”) and shall apply to all dealings between Customer and TEXTIENT and all use of the Service by Customer.
“Documentation” means all user manuals and online help provided by TEXTIENT to its customers generally pertaining to the Service;
“Customer Data” means all data or information submitted by or on behalf of Customer to the Service.
“Personal Information” means any information about an individual who is identifiable but does not include aggregate or anonymous information, or information used only to contact an individual in their capacity or position as an employee or official of an organization;
“Privacy Laws” means any statute, legislation, regulation, or ruling, directive or order, of any government, legislature, parliament, regulatory authority, governmental department, agency, commission, board, tribunal, crown corporation, or court or other law, rule or regulation making entity having or purporting to have jurisdiction on behalf of any nation, or province or state or other subdivision thereof, or any municipality, district or other subdivision thereof, with respect to individual privacy and/or access to Personal Information, and with respect to the collection, use or disclosure of Personal Information, and having or purporting to have jurisdiction over any person, including any User;
“Professional Services” means analysis, consulting, custom implementation, training and support services. Professional Services shall not include the Service.
“Service” means the online, web-based software as a service application made available as a platform to Customer by TEXTIENT, as described in an Order Form.
“Software” shall mean any operating systems, server side applications, server platforms, cloud servers or services, plug-ins, widgets, agents, mobile applications, APIs or other software that TEXTIENT may provide to Customer in connection with the Service. In the event TEXTIENT provides any Software, such Software shall be part of the Service.
“Term” shall mean the period in the Order Form during which your Users are authorized to use or access the Service pursuant to the terms set forth in this Agreement, unless earlier terminated as set forth in Section 6.
“Website” means the web address with the URL, https://www.textient.com and other websites that TEXTIENT owns and operates.
“Service Plan” means a specific scheme made available for a TEXTIENT provided Software and Service (as detailed on the pricing pages of the Website) crafted to fit in to the needs of Customer that you may procure and use.
“User” shall mean an individual who is authorized by Customer to use or access the Service and for whom a Subscription has been procured or who would be included as a part of the subscription plan. Users may include Customer’s employees, contractors and agents.
2.1 Account Activation. Subject to compliance with the terms and conditions of this Agreement and the applicable Order Form cited above, TEXTIENT will activate your registered account that will grant you a limited, non-exclusive, non-transferable access to use the Service, including the Documentation, during the Term.
2.2 Use of the Service and Website. Subject to compliance by You with these Terms and solely during the Subscription Term, you have the limited right to access and use the Service in accordance with the Service Plan(s) that You procure for Your individual or internal business purposes.
2.2.1 Errors, Inaccuracies and Omissions. Occasionally there may be information on our Website or in the Service that contains typographical errors, inaccuracies or omissions that may relate to Software/Product descriptions, pricing, promotions and offers. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your Order). We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related Website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.
2.2.2 Your Content in our Services. Our Service allow you to upload, process, store and download content. You retain the ownership of any intellectual property rights that you hold in that content. In essence, what belongs to you stays yours. You are responsible for processing the content including removing (deleting) it from our platform if needed. When you upload or download content through our Service, you give TEXTIENT a worldwide license to use, host, store, modify, create derivative works (such as those resulting from content filtering, translations, adaptations or other related changes we make so that your content works well and better with our service). This license continues even if you stop using our services.
2.4 Professional Services. Customer may purchase Professional Services under this Agreement by executing an Order Form or Statement of Work with TEXTIENT. Such document shall describe the Professional Services and incorporate this Agreement by reference.
2.5 Trial Use Terms. Notwithstanding any terms to the contrary, if Customer is participating in a trial use of the Service, the Term of the Service shall be solely for the duration or consumption of the trial use and the following terms and sections shall not apply: (a) any terms related to fees or payments, including without limitation, the terms set forth in Section 4 (“Fees”), (b) Section 10.2 (“Publicity”).
Customer will legally use the Service only for Customer’s internal business operations and in accordance with the Documentation and the terms of this Agreement. Customer shall not (i) use the Service as a service bureau, (ii) sublicense, re-license or sell rights to access and/or use the Service to transfer or assign rights to access or use the Service (iii) modify, sell or distribute the data acquired from TEXTIENT provided data sources from the Service to third-parties or for commercial purposes (iv) modify, translate, reverse engineer, decompile or create derivative works of the Service; (v) transmit or share identification or password codes to persons other than Users; (vi) access the Service for purposes of monitoring its availability, performance or functionality, or for any other bench marking or competitive purposes; and (vii) use any automated tool (e.g. web robots,web spiders, agents, screen scrappers, remote shells) to access or use the Service. Customer agrees that its use of the Service will be in a manner consistent with this Agreement and that complies with all applicable laws and regulations, including without limitation, all Privacy Laws, copyright, trademark, patent, trade secret and export control laws, as well as those laws prohibiting the use of telecommunications facilities to transmit illegal, obscene, threatening, harassing, or other offensive messages. Customer acknowledges that TEXTIENT shall not be responsible and shall have no liability for any use or misuse of the Service by Customer or its Users, employees or contractors. In particular, Customer will not, nor shall it permit or assist others, to abuse or fraudulently use the Service, including but not limited to: (a) obtaining or attempting to obtain the Service by any unauthorized means or device with intent to avoid payments or otherwise avoid the operation or application of this Agreement; (b) accessing, altering, or destroying any information belonging to any person other than Customer, or attempting to do so; or (c) using the Service to interfere with the use of the Service by other licensees, companies or users.
4.1 Fees and Payments. Our Service is available under Subscription plans or Flexible Plans for a fee as described in the platform pricing pages of the Website . Unless you enter into a separate written agreement with us that provides otherwise, all fees for the Service are charged and payable in full and in advance.
Flexible Plan: The fees for this plan depend on the number of work units (hereinafter “WU”) that you may purchase at any time. WU is based on analytics insights feature and its complexity. Each analytics or insight dimension offered under this plan is assigned with a specific number of WU for you to make a flexible purchase and consume Service.
Subscription Plan: A Subscription Plan (hereinafter “Subscription”) is a term based method of availing a Service offered from our Website. Subscription depending on an offered plan is valid for the term indicated at the Website. You may choose to buy a Subscription and avail its service as long as the said Subscription is valid. Subscription purchased does not renew automatically after it ends. No matter where you may be physically located, the day the subscription is activated is the first day, and each subscription expires after the valid period. You may renew the Subscription again by purchasing a plan after an existing plan ends. Any unused Subscription or Service is not transferable to another plan or term, nor do they accumulate or qualify for reimbursement when your subscription ends.
TEXTIENT will invoice the customer one time, monthly/quarterly/half yearly/annual or any other mutually agreed period basis for all one time and renewal fees based on the plan. Further any operations fee such as set up fees, activation fees, late payment fees, invoice processing fees, and returned check fees may occur at any time. No refunds or adjustment shall be issued for the operations fees charged. Customer shall at all times provide and keep current and up‐to‐date Customer’s contact, if applicable, and billing information in the user space. Please click here to know about our Refund Policy.
From time to time, we may change the price of any Service or charge for use of any Service that are currently made available free of charge including for trials. Any increase in charges will not apply until the expiry of the term specified and applicable for a Flexible or Subscription plan purchased by the Customer.
4.2 Billing Information. Customer agrees to provide TEXTIENT with complete and accurate billing and contact information, which shall include Customer’s legal company name if applicable, street address, valid e-mail address, and name and telephone number of an individual who will be responsible for and authorized to make all decisions concerning the Service, including acting as a billing contact. Customer will update such information within fifteen (15) days of any change to it. If the contact information Customer has provided is false or fraudulent, TEXTIENT reserves the right to terminate Customer’s access to the Service in addition to any other legal remedies.
4.3 Adjustments and Credits. In the event that Customer believes its charges are incorrect, Customer must contact TEXTIENT in writing within fifteen (15) days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
4.4 Taxes. TEXTIENT’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on TEXTIENT’s income. If TEXTIENT is required to pay or collect any federal, state, district, provincial, municipal, local, sales, service or value-added tax on any fees charged under this Agreement, or any other similar taxes or duties levied by any governmental authority, excluding taxes levied on TEXTIENT’s net income, then such taxes and/or duties will be billed to and paid by Customer immediately upon receipt of TEXTIENT’s invoice and supporting documentation for the taxes or duties charged.
4.5 Credits policy. TEXTIENT may choose to offer credits in regards to some or all of the Service. TEXTIENT reserves the right to award credits at its sole discretion. Credits have no monetary or cash value and can only be used by You to avail the Service.
4.6 Modifications to the Service and Prices. Prices for our Software and Service are subject to change without notice. We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) without notice at any time. We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Service.
5.1 Reservation of Rights. Except for the rights expressly granted herein, all rights, titles and interests to any and all proprietary rights and intellectual property rights, including but not limited to copyright and patent rights, in the Service including, without limitation, the underlying software, the Software, the Use Data, the Anonymous Data and the Aggregated Data will remain with and be the exclusive property of TEXTIENT.
5.2 Customer Data. Except for the rights expressly granted herein, all rights, titles and interests to any and all proprietary rights and intellectual property rights in the Customer Data, will remain with and be the exclusive property of Customer. Customer Data is deemed to be the Confidential Information of Customer under this Agreement.
5.3 Use Data. Customer acknowledges and agrees that TEXTIENT may derive or create data and information about the use of the Service by Customer and its Users (“Use Data”) and TEXTIENT may use and disclose Use Data to its third party service providers in order to improve the Service.
5.4 Anonymous Data. Customer hereby grants to TEXTIENT a non-exclusive, fully paid, world-wide and irrevocable license to use Customer Data as required to provide the Service, and to copy, anonymize, aggregate, process and display Customer Data, to derive anonymous statistical and usage data related to the Service (“Anonymous Data”) to compile, combine or incorporate such Anonymous Data with or into other similar data and information available, derived or obtained from other clients, customers, licensees or users of TEXTIENT, or otherwise (collectively, Anonymous Data and such compiled, combined or incorporated data and information shall be referred to as “Aggregate Data”), to permit TEXTIENT to provide additional services to its customers, including the copying, publication, distribution, display or licensing of Aggregate Data and related or similar other statistics or data to third parties pursuant to a separate licensing or services arrangement or agreement. TEXTIENT will be the owner of all right, title and interest in and to Anonymous Data and Aggregate Data. Customer’s grant of license to copy, anonymize, aggregate, process, use and display Customer Data and Use Data shall survive the expiry or termination of this Agreement.
6.TERM AND TERMINATION
6.1 Term of Agreement. This Agreement will commence the day the Service is activated and available to Customer, and will continue until all Use of Service in accordance with this Agreement have expired or been terminated or if a user account has been closed or terminated by TEXTIENT based on a customer request or in accordance with the terms in this Agreement.
6.2 Term of Service. For all the Subscription plans, The Term of the Service shall be specified in the Pricing page on our Website, the relevant Order Form and continue for the Term specified therein. If You have an active account, You may renew the Service by purchasing a suitable Service plan.
6.3 Termination for Cause. Either party may terminate this Agreement for material breach by the other party, provided, however, that the terminating party has given the other party at least sixty (60) days written notice of and the opportunity to cure the breach. Termination for breach will not preclude the terminating party from exercising any other remedies for breach available to it under applicable law. In the event that Customer becomes insolvent, or is placed in receivership or equivalent status, or files or is petitioned into bankruptcy or similar protection from creditors under any statute, TEXTIENT may terminate this Agreement immediately. Upon termination or expiry of this Agreement, Customer will cease to have any right to access or use the Service and Customer will immediately return to TEXTIENT any Confidential Information of TEXTIENT provided to Customer by TEXTIENT or on its behalf.
6.4 Effect of Termination. Following termination or expiry of this Agreement, TEXTIENT may retain Customer Data for a period of up to thirty (30) days, following which Customer Data may be destroyed by TEXTIENT without further notice, and without any liability to Customer. Delivery of Customer Data to Customer following termination or expiry of this Agreement shall be subject to availability, solely in the discretion of TEXTIENT, and shall be subject to additional charges payable to TEXTIENT at its then-current rates for delivery of Data, and shall be by the means, and in the format, made available by TEXTIENT.
6.5 Suspension of Service. TEXTIENT shall have the right, on notice to Customer, to suspend access to the Service in the event Customer has breached this Agreement or is in default of payment. TEXTIENT shall also have the right to suspend access to the Service without notice in circumstances where the Service is under threat, or subject to attacks, or subject to technical failures or events beyond the control of TEXTIENT, whether as a result of Customer’s conduct, the conduct of third parties, or otherwise, in order to avoid harm to the Service or the data of TEXTIENT’s customers, or to preserve the integrity of the Service or data available to customers in the Service.
7.PRIVACY & CONFIDENTIALITY
7.1 Protection. “Confidential Information” means any and all information related to a party’s business that is labeled or identified as “proprietary” or “confidential”; or otherwise is of such a type or disclosed in such a way that a reasonable person would understand that the information disclosed is confidential or proprietary, including without limitation software, source code and specifications, trade secrets, development plans, content, technical information, pricing, business forecasts and strategies, and information regarding personnel, customers and suppliers. Customer acknowledges that the Service (including, without limitation, Third Party Services) embodies logic, design and coding methodology that constitute valuable Confidential Information that is proprietary to TEXTIENT. Customer will safeguard the right to access the Service, using the same standard of care that Customer uses for its own confidential materials, but at least a reasonable standard of care. Subject to Section 5, Customer Data will be held as confidential by TEXTIENT and will not, without the prior written consent of Customer, or as required by applicable law, be disclosed or be used for any purposes other than as expressly permitted herein or the performance of this Agreement. TEXTIENT will safeguard the confidentiality of Customer Data using the same standard of care that TEXTIENT uses for its own confidential materials, but at least a reasonable standard of care.
7.2 EXCLUSIONS. The obligations of a party as recipient of the other party’s Confidential Information to maintain confidentiality does not apply to such of the Confidential Information of the other party that: (a) is or becomes, through no act or failure to act on the part of the recipient party, generally known or available to the public; (b) is known by the recipient party at the time of receiving such information as evidenced by its written records; (c) is hereafter furnished to the recipient party by a third party, as a matter of right and without restriction on disclosure; (d) is independently developed by the recipient party as evidenced by its written and dated records and without any breach of this Agreement; or (e) is the subject of a written permission to disclose provided by the disclosing party. Further, notwithstanding the forgoing, disclosure of Confidential Information will not be precluded if such disclosure: (f) is in response to a valid order of a court or other governmental body having jurisdiction over the recipient party; (g) is otherwise required by law; or (h) is otherwise necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary. Once Customer Data is destroyed by TEXTIENT as provided in this Agreement, TEXTIENT shall have no further obligation with respect to such Customer Data.
7.4 Compelled Disclosure. If the recipient party is compelled by law to disclose Confidential Information of the disclosing party, it shall provide disclosing party with prior notice of such compelled disclosure, to the extent legally permitted, and reasonable assistance, at disclosing party’s cost, if the disclosing party wishes to contest the disclosure.
8. WARRANTIES AND DISCLAIMER
8.1 Warranties. the Website, including, without limitation, the website content, is provided on an “as is”, “as available” and “with all faults” basis to the fullest extent permissible by law, neither TEXTIENT nor any of its parent, subsidiary companies, affiliates, suppliers or licensors nor their employees, managers, officers, agents and vendors (collectively, the “TEXTIENT parties”) make any representations or warranties or endorsements of any kind whatsoever, express or implied, as to: (a) the Website; (b) the Website content; (c) the Service and/or (d) security associated with the transmission of information to TEXTIENT or via the website. in addition, the TEXTIENT parties hereby disclaim all warranties, express or implied, including without limitation the warranties of non- infringement, merchantability and fitness for a particular purpose, title, custom, trade, quiet enjoyment, system integration and freedom from computer virus. we shall not be liable for any delay in completing performance of the services, however caused.
The TEXTIENT parties do not represent or warrant that the Website or Service will be error-free or uninterrupted; that defects will be corrected; or that the website or the server that makes the site available is free from any harmful components, including, without limitation, viruses. the TEXTIENT parties do not make any representations or warranties that the information (including any instructions) on the website or provided by the services is accurate, complete, or useful. You acknowledge that your use of the website is at your sole risk. the TEXTIENT parties do not warrant that your use of the Website or Service is lawful in any particular jurisdiction, and the TEXTIENT parties specifically disclaim such warranties. some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimer may not apply to the extent such jurisdiction’s law is applicable to these terms.
By accessing or using the Website and/or Services you represent and warrant that your activities are lawful in every jurisdiction where you access or use the Website and/or Services.
8.2 Disclaimer. To the maximum extent permitted by law, this warranty is exclusive and is in lieu of all other warranties, guarantees or conditions, whether express or implied, statutory or otherwise, including, without limitation, any warranties or conditions of merchantability or fitness for a particular purpose, compliance with any description, non-infringement of third party rights, or any oral or written representations, proposals or statements made on or prior to the effective date of this agreement. TEXTIENT expressly disclaims all other warranties, guarantees or conditions except as otherwise stated in this agreement, TEXTIENT makes no representation, warranty, condition or guarantee as to the reliability, timeliness, quality, suitability, availability, accuracy or completeness of the service or any component of the service. TEXTIENT does not represent or warrant that (a) the use of the service will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, service, system or data, (b) the service will meet customer’s requirements or expectations, (c) any stored data will be accurate or reliable, (d) the quality of any information obtained by customer through the service will meet customer’s requirements or expectations, (e) errors or defects will be absent or will be corrected, or (f) the service or the communication facilities, including, without limitation, the Internet, that make the service available are free of viruses or other harmful components or are secure from interruption, interception or corruption by third parties. except as expressly set forth in this agreement, the service is provided to customer strictly on an “as is”, “where is” and “as available” basis. This section shall survive the termination or expiry of this agreement and continue in effect.
9. LIMITATION OF LIABILITY; WAIVER
Under no circumstances will the TEXTIENT parties be liable to you for any loss or damages of any kind (including, without limitation, for any direct, consequential, special, indirect, exemplary, punitive, economic, or incidental losses or damages that are directly or indirectly related to: (a) the website; (b) the website content; (c) the Service; (d) your use of, inability to use, or the performance of the website; (e) any action taken in connection with an investigation by the TEXTIENT parties or law enforcement authorities regarding your use of the website; (f) any action taken in connection with copyright or other intellectual property owners; (g) any errors or omissions in the Website or Service’ technical operation; or (h) any damage to any user’s computer, mobile device, or other equipment or technology including, without limitation, damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line or network failure or any other technical or other malfunction, including, without limitation, damages for lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or computer failure or malfunction , even if foreseeable or even if the TEXTIENT parties have been advised of or should have known of such damages, whether in an action of contract, negligence, strict liability, tort or any other legal theory (including, without limitation, whether caused in whole or in part by negligence, acts of god, telecommunications failure, or theft or destruction of the website), and notwithstanding any failure of essential purpose of any limited remedy. In no event will the TEXTIENT parties be liable to you or anyone else for loss, damage or injury, including, without limitation, death or personal injury. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. In no event will the TEXTIENT parties’ total liability to you for all damages, losses or causes or action exceed the amounts paid or payable to TEXTIENT by you for the Service in the month preceding the event giving rise to the claim. The Service(s) are made available primarily as a convenience to TEXTIENT’ users and as such you agree that the disclaimers and limitations of liability in this agreement (including without limitation this section) are a fair allocation of risk and an essential element of this agreement.
10.1 Relation of Parties. Nothing in this Agreement will create or imply an agency relationship between the parties, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
10.2 Publicity. TEXTIENT may disclose the existence of this Agreement and the fact that Customer has agreed to use the Service and is a customer of TEXTIENT, and, without limitation, TEXTIENT may make such disclosures in the course of marketing and promoting TEXTIENT’s Software and Services. TEXTIENT may use Customer’s name and related trademarks, including Customer’s logos, designs, and similar works or materials, for the purposes of marketing and promoting the Service and TEXTIENT’s business by disclosing and promoting the fact that Customer is a licensee of the Service and a customer of TEXTIENT. Customer agrees to work with TEXTIENT on a commercially reasonable basis with respect to any joint marketing initiatives of the parties. For greater certainty, nothing in the foregoing gives TEXTIENT any right, title or interest in or to Customer’s trademarks, logos or designs, other than a non-exclusive license as required for TEXTIENT to carry out the foregoing.
10.3 Assignment. Neither party may assign, voluntarily, by operation of law, or otherwise, any rights or delegate any duties under this Agreement (other than the right to receive payments) without the other party’s prior written consent, which consent will not be unreasonably withheld, except that TEXTIENT may assign this Agreement, without consent, in connection with a sale of all or substantially all of TEXTIENT’s business or assets. This Agreement will inure to the benefit of, and be binding upon the parties hereto, together with their respective legal representatives, successors, and assigns, as permitted herein.
10.4 Equitable Remedies and Injunctive Relief. Customer acknowledges and agrees that any breach by Customer of this Agreement other than a failure to pay sums due and owing to TEXTIENT, or any infringement, violation or misappropriation of the intellectual property rights of TEXTIENT may cause irreparable harm to TEXTIENT not reasonably compensable by money damages. Accordingly, Customer agrees that, in addition to all other remedies TEXTIENT may have at law, TEXTIENT shall be entitled to seek immediate equitable relief, including an injunction, against Customer in any court of competent jurisdiction in order to restrain Customer’s breach of this agreement or infringement, violation or misappropriation of the intellectual property rights of TEXTIENT without the necessity for TEXTIENT to prove the likelihood of irreparable harm, or that damages are not an adequate remedy, and without any requirement by TEXTIENT to post bond or undertaking as to damages.
10.5 Governing Law and Arbitration. All matters connected with this agreement shall be governed by the Indian Law both substantive and procedural and shall be subject to the exclusive jurisdiction of the courts in Chennai,India.
Except as otherwise provided elsewhere in this agreement if any difference, dispute, question or disagreement or claim arises between the parties hereto or their respective representatives or assignees any time in connection with the construction, meaning, operation, effect, interpretation or out of the contract or breach thereof the same shall be decided by the Arbitrator to be appointed by the Chief Executive Officer (CEO) of TEXTIENT. In case a party fails to appoint an arbitrator within three months from the receipt of the request to do so by the other party, the chief Justice of High Court, Chennai or any person/institution designated by him shall appoint the Arbitrator in as per section 11 of Arbitration and Conciliation act. The Party invoking the arbitration shall specify all disputes to Arbitration. The decision of the Arbitrator shall be final and binding on both the parties. The venue of the arbitration shall be at Chennai. The fees of the Arbitrator shall be borne by both the parties and other incidental expenses to the arbitration will be equally borne by the parties. Subject to the aforesaid the provisions of The Arbitration and Conciliation act 1996 and any statutory amendments, modifications or re-enactment in lieu thereof shall apply to the arbitration proceeding, under this clause.
Exception to the Arbitration:
Anything to the contrary herein notwithstanding, If any difference, dispute , question or disagreement or claim arises pertaining to matters described in this agreement where the dispute and its invocation pertain to any third party service that may or may not be related to the Service provided by TEXTIENT or any issues that are minor or temporary in nature and that may be corrected by TEXTIENT or any issues in the Service that are not in the control of TEXTIENT or any issues arising out of technical or non-technical aspects that are not related to the Service or TEXTIENT, such invocation(s) shall not be referred to the Arbitration. The parties shall do their best to work towards resolving such disputes within themselves. The decision arrived at by TEXTIENT will be the final in such exceptions.
10.6. Severability. If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and, if the foregoing modification is not possible, it shall be severed from this Agreement, and the remaining portions of this Agreement will remain in full force and effect.
10.7. Force Majeure. Neither party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the delayed party’s reasonable control. Lack of funds does not entitle a party to claim force majeure.
10.8. Entire Agreement. This Agreement (including any Order Forms) constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein.
10.9. Amendments. We may amend the Terms upon notice to you at any time through a service announcement or by sending email to your primary email address. Upon amendment of terms, New Terms will supersede prior versions. If we make significant changes to the Terms that affect your rights, We will notify You not less than ten (10) days prior to the effective date of any such amendment and Your continued use of the Service following the effective date of any such amendment may be relied upon by TEXTIENT as Your consent to any such amendment. Our failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of the Terms.
IN ACCEPTING THIS AGREEMENT, THE CUSTOMER ACKNOWLEDGES THAT THE CUSTOMER HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF TEXTIENT AGREEING TO PROVIDE THE SERVICE, CUSTOMER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. CUSTOMER FURTHER AGREES THAT THIS IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN CUSTOMER AND TEXTIENT, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN CUSTOMER AND TEXTIENT RELATING TO THE SUBJECT OF THIS AGREEMENT.