Last Updated on: 13th August, 2014
FieldEZ Online Subscription Services Agreement
This Online Subscription Services Agreement is entered into between You as a customer and FieldEZ. This agreement consists of: (1) the below terms and conditions; (2) the Online Subscription Services Use Rights and SLA’s applicable to Online Subscription Services licensed under this agreement; and (3) the pricing and payment terms available via the specific Online Subscription Services Customer Portal. This agreement is effective on the date FieldEZ provides You the customer with the Order confirmation for the first Order under this agreement. This online subscription services to the software provided to the Customer by FieldEZ works on the principle of Software–as-a-Service model. FieldEZ may provide application programming interfaces (API) that expose the applications data and functionality to developers for use in creating composite applications. FieldEZ may also provide tools that allow customers to modify the data scheme, work-flow, and other aspects of the application’s operation for their use.
"Affiliate" means any legal entity that a party owns, that owns a party, or that is under its common ownership.
"Ownership" means, for purposes of this definition, control of more than a 50% interest in an entity.
"Client Software" means software provided to Customer related to the Online Service.
"Committed Offering" means the offer for Online Services as described below in Section 2.
“Content” is all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials of the Customer uploaded in the server of the FieldEZ.
"Customer" means the entity that has entered into this agreement and/or includes the User accessing the said Online Subscription Services irrespective of the category /status that a user/ Customer had subscribed to.
"License" means the rights granted by FieldEZ to Customer to copy, install, use, access, display, run and/or otherwise interact with the Online Service and/or Client Software, as applicable.
"FieldEZ" means FieldEZ Technologies Inc., corporate office at 35703 Gissing Pl, Fremont CA - 94536
"FieldEZ Online Subscription Services Customer Portal" means http://www.fieldez.com or such alternate website FieldEZ identifies. The portal here refers to the software product offered as a service viz. FIELDEZ, a field force management software that enables field personnel to key in attendance and attend to calls from any remote location through their mobiles or online. The portal provides a mobile platform by which User(s) can communicate status of an issue (be it complaint call for a service engineer or sales call for a marketing person) to their office(s).
"Online Subscription Service" means the online service available under this agreement, as offered on the Portal designed by FieldEZ.
"Online Subscription Services Use Rights" means the use rights for FieldEZ as in this agreement and/or as additionally mentioned at alternate site that FieldEZ informs to you.
"Order" means an order for availing the Online Subscription Services of FieldEZ vide the Portal. An Order may include multiple Subscriptions to Online Services.
"SLAs" means service level agreements representing commitments FieldEZ makes with regard to individual Online Services. SLAs for each Online Service can be accessed via the Online Services Use Rights.
"Subscription" means the part of the Order identifying the specific Online Service being ordered and may include the quantity, type, ship-to address of any specific material or merchandise, or other information.
"Term" means the duration of a Subscription.
“Webservices” means interfaces that support interaction from remote machines with the application i.e. Online Subscription Services over a network.
2. License grant — what you as a Customer is licensed to use..
2.1 General. FieldEZ grants the Customer a license for the subscription period chosen by the Customer a nonexclusive, nontransferable, non-perpetual license to use the Online Subscription Services and the printed and/or electronic user documentation accompanying the Software in accordance with this Agreement. If the Customer has paid the license fee for a single user account license, this Agreement permits you (the Customer) to access the Online Subscription Services as a single user with a Live ID on any single computer and single mobile device at any point of time. If you have subscribed to multiple licenses for the FieldEZ Online Subscription Services, then at any time you may have as many user login Live ID's as subscribed for. The ability to use Online Subscription Services here may be affected by minimum system requirements or other factors. FieldEZ reserves all rights not expressly granted.
The Customer understands that any support beyond the initial free trial sign up period, if provided by FieldEZ, is subject to the Customer’s obligation to pay for claiming any rights described in this agreement, which details the Online Subscription Services Use Rights failing which FieldEZ may determine the support so offered. This License is non-exclusive, non-perpetual, and is not transferable. After using the Services during the trial period, if you decide not to continue subscription to the Services, you will not be able to access or retrieve any of the data you added/created during the trial.
2.2 Client Software. In some cases, Customer may need to install Client Software (such as a mobile application) to access and use the Online Service. Rights and restrictions for the Client Software are described in the Online Subscription Services Use Rights. Customer may make copies of the Client Software solely to support the applicable Online Service for its users and as permitted by the Online Subscription Services Use Rights. Copies must be true and complete copies (including copyright and trademark notices) and be made from a FieldEZ approved media or a network source. Customer may use a third party assistance to make and install these copies, but Customer agrees that it will be responsible for that third party’s actions. Customer agrees to use reasonable efforts to make its employees, agents, consultants, affiliates and other individuals that it allows to use the Client Software aware that it is licensed from FieldEZ and subject to the terms of this agreement.
2.3 Limitations on use. Customer shall not reverse engineer, decompile or disassemble, modify any Online Subscription Service or Client Software, and expressly waives to the maximum extent all those options where even applicable law permits it despite this limitation. Customer shall not rent, lease, sub-license, lend, resell, or host to or for third parties any Online Subscription Service or Client Software, except as expressly permitted for a given purpose Service in the Online Subscription Services Use Rights. Also unless otherwise provided herein, the Customer is not allowed to rent, lease, or sub-license the Online Subscription Service or Client Software. The Customer may not modify the Client Software or create derivative works based upon the same. The Customer is expressly prohibited from exporting the Software into any country prohibited by the United States Export Administration Act and the regulations thereunder. The Customer shall not use the Online Subscription Services software or Client Software to develop any application having the same primary function as that of the Online Subscription Services and/or Client Software.
2.4 Online Service Offerings. FieldEZ provides multiple options to obtain Online Subscription Services, which can generally be categorized as follows:
2.4.1 Regular Subscription: Customer can opt for a regular post paid subscription where customer may subscribe on a month-to-month basis for a specified number of Users. The subscription monies payable in this option would be as per the published per month User fee, where the billing would be at the end of each month and depends on the usage of the Online Subscription Services. Customer agrees to payment of usage charges within seven (7) days of receipt of the billing invoice. In this option the first month fee is pro-rated in the event of the subscription commencing on any day other than the 1st day of the month. The subscription shall be deemed effective for monthly terms where one (1) or more of the Customers Users are marked as active in the system during the Term. The subscription is auto-renewable on a monthly basis unless expressly determined by the Customer in writing.
2.4.2 Committed Offering or Subscription: Customer commits in advance to purchase a specific quantity (viz. Number of users) of Online Subscription Services for use during a Term. Customer pays for the Online Subscription Services on a periodic basis, such as a month or a quarter, during the Term in advance and is allowed unlimited use of the service during that period;
2.6 Integration. Depending on the services subscribed by you (Customer) FieldEZ allows the Customer to only upload its content with the hosted application herein with specific applications as detailed in the Online Subscription Services Customer Portal. In such process of integration FieldEZ will allow the Customer only to upload content on the specified server. FieldEZ however in no event shall be held liable or responsible for any issues relating to the content including any data loss, security or distortion to the contents so uploaded. Further the Customer agrees that the content so uploaded shall not violate any third party Intellectual Property Rights including those of FieldEZ. The Customer also agrees that the content uploaded shall conform to the Offensive Material Policy of FieldEZ (as displayed in this website). FieldEZ in its discretion is at liberty to censor, remove, alter any uploaded content that is objected to by the other users and violative of the Offensive Material Policy. FieldEZ, at its discretion, can publish “Webservices” and give permission to customers to integrate the offering with their own software / 3rd party software they use. Customers may implement integration solely through the webservices they are given permissions to for this purpose. The Customer agrees to fully indemnify and hereby indemnifies FieldEZ and its affiliates in the event of any third party action against FieldEZ and/or its affiliates in this regard.
The Customer/ User further agrees that the content uploaded herein shall not be in violation of the “Offensive Material Policy” as detailed in the Online Subscription Service Portal of FieldEZ and/or the intellectual property of any third party. In the event of it being brought to the notice of FieldEZ that the content so uploaded is in contra (in violation or against the spirit) with the “Offensive Material Policy” FieldEZ reserves the right to immediately block such content and shall notify the Customer of the same accordingly. FieldEZ also reserves the right to initiate such action against the Customer in such event including suspension of the Online Subscription Service and/or Client Software until resolution of the issues therein. The Customer/ User agrees to once again fully indemnify and hereby indemnifies FieldEZ and its affiliates in the event of any third party action against FieldEZ and/or its affiliates.
2.7 Upgrades.If this copy of the Client Software or the Online Subscription Service here is an upgrade from an earlier version of the same, it is provided to the customer on a license exchange basis. The Customer agrees by the instant online subscription and use of such copy of the same to voluntarily terminate any earlier license terms and that you will not continue to use the earlier version of the software or transfer it to another person or entity. Consequent to an upgrade the Customer agrees to be bound by the terms of the license prevailing on the said date of subscribing to an upgrade. FieldEZ may periodically update the Client Software with tools, utilities, improvements, third party applications, or general updates to improve and enhance the features and performance of the Services. You agree to receive these updates automatically as part of the Online Subscription Services.
2.8 Content. Additionally it is agreed that You are responsible for your content. You are legally responsible for "Content uploaded, posted or stored through your use of the Services. You grant FieldEZ a worldwide, royalty-free, non-exclusive license to host and use the Content in order to provide you the Online Subscription Services. You agree not use the Online Subscription Services for any illegal purpose or in violation of any applicable local, state, federal or international law. You are encouraged to archive your Content regularly and frequently. FieldEZ is not responsible for any Content that may be lost or unrecoverable through your use of the Online Subscription Services on the Customer portal. You must provide all required and appropriate warnings, information and disclosure. You expressly agree that you will not use the Online Subscription Services to share, store, or in any way distribute financial data that is not in accordance with the law. Any Users suspected of having information which involves fraud, embezzlement, money laundering, insider trading, support for terrorism, or any other activity proscribed by law are liable to have their accounts terminated, their data erased, and may be reported to law enforcement officials in the appropriate jurisdictions.
You agree not to use the Online Subscription Services to upload, post, distribute, link to, publish, reproduce, engage in or transmit any of the following, including but not limited to:
a. Offensive Material Policy of FieldEZ;
b. Except as otherwise permitted by FieldEZ in writing, advertisements, solicitations, investment opportunities, chain letters, pyramid schemes, other unsolicited commercial communication or engage in spamming or flooding;
c. Virus, Trojan horse, worm or other disruptive or harmful software or data; and
d. Any information, software or Content which is not legally yours and may be protected by copyright or other proprietary right, or derivative works, without permission from the copyright or other intellectual property owner.
2.9 Community forums. The Online Subscription Services may include a community forum to exchange information with other users of the said services and the public. Please use etiquette and respect sentiments when you interact with other users. FieldEZ does not support and is not responsible for the accuracy of others’ content in these community forums. You may not reveal information in the community forum that you do not want to be public. Users may post hypertext links to content hosted and maintained by third parties for which FieldEZ is not responsible. You further agree to receive these updates automatically as part of the Online Subscription Services.
2.10 Permitted disclosures and use of data/ Content. You acknowledge and agree that in order to provide access to and use of the Client Software and Online Subscription Services, FieldEZ may provide your Access Information and Account Data to: (i) your employee or agent who is identified in the Registration Data as the current system administrator for the your account, (ii) such other employee or agent who may be designated by you as a replacement administrator for the your account by following the procedures required by FieldEZ to effectuate such replacement, and (iii) any other person identified as an authorized user of the Client Software in the set-up form or in any subsequent communication to us.
2.11 Using the feedback. You agree that FieldEZ may use your feedback, suggestions, or ideas in any way, including in future modifications of the Online Subscription Services, other products or services, advertising or marketing materials. You grant FieldEZ a perpetual, worldwide, fully transferable, sub-licensable, non-revocable, fully paid-up, royalty free license to use the feedback in any manner.
2.12 Monitoring Content from time to time. FieldEZ may, but has no obligation to, monitor Content on the Online Subscription Services. We may disclose any information necessary or appropriate to satisfy our legal obligations, protect ourselves or Customers, Users, to operate the Online Subscription Services. FieldEZ in its sole discretion may refuse to post, remove, or refuse to remove, any Content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement.
3. Ordering, Pricing, Payments, Renewals, and Taxes.
3.1 Ordering. Customer shall place an Order for each Subscription for an Online Service via the FieldEZ Online Subscription Services Customer Portal. Customer must activate the Online Subscription Services prior to use.
For Committed Offerings, Customer may increase, but not decrease, the quantity of Online Subscription Services for each Subscription. Any Online Subscription Services added to a Subscription will expire at the end of the Term. Each Subscription shall be for a defined Term (e.g., 30 days or 12 months).
Customer may place Orders for its Affiliates under this agreement and grant its Affiliates administrative rights to manage their Online Subscription Services. Affiliates may not place Orders under this agreement. To the extent Customer grants any rights to Affiliates, such Affiliates shall be bound by the terms and conditions of this agreement, the Online Subscription Services Use Rights and any other applicable documentation. Customer agrees that it is jointly and severally liable for any Online Subscription Services purchased for or other actions taken by any of its Affiliates or any third party to which it provides rights under this agreement.
3.2 Prices and Invoices. Pricing and payment terms for Online Subscription Services and Client Software are available via the FieldEZ Online Subscription Services Customer Portal. Payments are due and must be paid in accordance with Customer’s selection of available payment options for each Online Service on the FieldEZ Online Subscription Services Customer Portal. Customer consents to the electronic transmittal of the FieldEZ sales invoice to Customer. Customer agrees that once consent is concluded across the point of sale vide the acceptance herein i.e. “Accept” the same is final and that in no event for any reason shall FieldEZ be obliged to refund any monies in full or part thereto.
For Committed Offerings (also referred as Committed Subscription in this agreement), the price level may be based on Customer’s aggregate purchase of a given Online Service Subscription. Customer’s price level may be adjusted if the size of the Subscription is increased during the Term and Customer qualifies for a different price level. Customers are also chargeable based on the number of active users during a given Term. It is mutually agreed that by definition “active” means and refers that the user is marked as 'active' in the application at any point of time during the Term. Price level changes are not retroactive. Any resulting change in the payment due for that Subscription will be pro-rated. Prices for each price level are fixed at the time the Subscription is first placed and shall apply throughout the Term. Prices and price levels are subject to change at the beginning of any Subscription renewal.
3.3 Subscription Renewal. For Committed Offerings, Customer may choose to have a Subscription (1) automatically renew upon the expiration of the Term, or (2) not renew at the conclusion of the Term. Customer can change this selection during the Term using the FieldEZ Online Subscription Services Customer Portal. If Customer elects to have the Subscription automatically renewed, FieldEZ will provide Customer with written notice of the automatic renewal prior to the expiration of the Term. If Customer elects to automatically renew a Subscription, the quantity of Online Subscription Services for each Subscription, including any quantities added during the Term, are automatically renewed at current rates. Additional cancellation or renewal terms may be provided to You on FieldEZ website for the Services.
3.4 New agreement. Prior to placing new Orders, renewing any Subscriptions, or further use of the Online Subscription Services, and upon notice, FieldEZ may require that Customer enter into an updated agreement to govern Orders, renewal Subscriptions, or usage from that date forward.
3.5 Manner of Payment. The Payments will be billed to you in U.S. Dollars or Indian Rupees, and your account will be debited when you subscribe and provide your payment information, unless stated otherwise in the program ordering or payment terms on the customer portal for the Online Subscription Services. You must pay with one of the following acceptable to FieldEZ: (1) A valid credit card; (2) A valid debit card; (3) Sufficient funds in a checking or savings account to cover an electronic debit of the payment due; or (4) By another payment option provided to you in writing. If your payment and registration information is not accurate, current, and complete and you do not notify us promptly when such information changes, we may suspend or terminate your account and refuse any use of the Online Subscription Services including access to your data. Additional cancellation or renewal terms may be provided to you on the customer portal for the Online Subscription Services.
3.6 Taxes. The prices and rate plans do not include any taxes. Customer is responsible for any taxes it is legally obligated to pay including, but not limited to, paying FieldEZ any applicable value added, sales or use taxes or like taxes that are permitted to be collected from Customer by FieldEZ under applicable law. If any taxes are required by law to be withheld on payments made by Customer to FieldEZ, Customer may deduct such taxes from the amount owed FieldEZ and pay them to the appropriate taxing authority; provided, however, that Customer shall promptly secure and deliver to FieldEZ an official receipt for any such taxes withheld or other documents necessary to enable FieldEZ to claim a Foreign Tax Credit. Customer will make certain that any taxes withheld are minimized to the extent possible under applicable law.
4. Term, Suspension, Cancellation & Termination.
4.1 Agreement term and termination. This agreement will remain in effect unless it is terminated by either party in writing with thirty (30) days’ prior written notice and subject to the terms of this Section. For Committed Offerings, termination will merely terminate the right to renew Subscriptions under an existing Order or place new Orders for additional Online Subscription Services under this agreement. Termination will not affect any Subscription not otherwise cancelled or terminated and this agreement shall remain in effect for such Subscription for the remainder of the Term.
4.2 Cancellation of a Subscription by Customer. Customer must contact FieldEZ customer service (see contact information on the FieldEZ Online Subscription Services Customer Portal) to begin the cancellation process. Customer may cancel a Subscription as follows:
For Regular Subscriptions that are renewed on a monthly basis, Customer can cancel the subscription on or before the last day of any calendar month. On such cancellation Customer is obligated to pay for the Online Subscription Services until the last day of the month in which the subscription is cancelled.
For Committed Subscriptions, if Customer cancels a Subscription within thirty (30) days of the date on which the Order was submitted, Customer shall be relieved from any obligation to make payments for the remainder of the Subscription with the exception that Customer must pay for the initial 30 days of the Subscription. If Customer chooses to terminate a Subscription after the initial 30-day cancellation period but before the end of the initial Term, Customer must and agrees to pay for the remainder of the Term.
In the event the Customer shall be in default in the performance of any material obligations under this Agreement, and if the default has not been remedied within sixty (60) days after the date of notice in writing of such default, FieldEZ may terminate this Agreement by written notice. In the event of termination, the Customer agrees to: (i)permanently destroy or disable all copies of the Client Software and derivative works thereof in tangible or electronic form that are in the Customer's possession or control unless specifically permitted in writing; and (iii) provide FieldEZ with a written statement certifying that the Customer has complied with the foregoing obligations. All rights and licenses granted to Customer shall terminate upon such termination.
Upon termination you must immediately stop using the Services and any outstanding payments will become due. Any termination of this Agreement shall not affect FieldEZ’s rights to any payments due to it. FieldEZ may terminate a free account at any time. Other requirements regarding termination or cancellation of the Services may apply based on the specific ordering terms for the Services provided to you.
5. ADDITIONAL TERMS YOU AGREE TO.
5.1 No professional advice. FieldEZ is not in the business of providing legal, financial, accounting, health care, real estate or other professional services or advice. Consult the services of a competent professional when you need this type of assistance.
5.2 We may tell you about other services. You may be offered other services, features, products, applications, online communities, or promotions provided by FieldEZ. If you decide to use any of these services, additional terms and conditions and separate fees may apply. You acknowledge that in accessing some additional services you may upload or enter data from your account(s) such as names, addresses and phone numbers, purchases, and sales among others, to the Internet. You grant FieldEZ permission to use information about your business and experience to help us to provide the services to you, including updating and maintaining your data, addressing errors or service interruptions, and enhancing the types of data and services FieldEZ may provide to you in the future. You grant us permission to combine your business data, if any, with that of others in a way that does not identify you or any individual personally. We may use this data to improve services and to compare business practices with other company standards. We may use your data to create, market or promote new offerings to you and others. By this you also grant us permission to share or publish summary results relating to research data and to distribute or license such data to third parties.
5.3 We may tell you about third party products or services.You may be offered products or services by third parties who are not affiliated with us (“Third Party Products”) or the Online Subscription Services may contain links to third party websites (“Third Party Sites”) and you agree that we can use your contact information, including name and address, for the purpose of offering these products to you. If you decide to use any Third Party Products or access any Third Party Sites, you are responsible for reviewing the third party’s separate product terms, website terms and privacy policies. You agree that FieldEZ is by no means liable or responsible for Third Party Product’s performance and the content on their websites.
5.4 Communications choices.FieldEZ may be required by law to send you communications about the Online Subscription Services or Third Party Products. You agree that these communications may be sent to you via email or by posting them on any of our sponsored websites. If you later decide that you do not want to receive future Communications electronically, you may intimate us or accordingly change the options to review your communications choices.
5.5 You will track your passwords and accept updates. You are responsible for securely managing your password(s) for access to the Online Subscription Services. If you’re aware of any unauthorized access to your account, theft or loss of your password, you agree to contact us as soon as possible. We may periodically update the Online Subscription Services with tools, utilities, improvements, third party applications, or general updates to improve and enhance the features and performance of the Online Subscription Services. You agree to receive these updates automatically as part of the Online Subscription Services.
6. Confidentiality, Warranties, & Disclaimers.
6.1 Confidentiality. FieldEZ and Customer shall treat the terms and conditions of this agreement as confidential and shall not disclose them to any third party except in the furtherance of the parties’ business relationship with each other.
6.2 Limited warranty. FieldEZ warrants that the Online Subscription Services and Client Software will conform substantially to the description of them contained in the applicable FieldEZ user documentation. No oral or written information or advice given by FieldEZ, its dealers, distributors, agents or employees shall create a warranty or in any way increase the scope of ANY warranty PROVIDED HEREIN. This limited warranty is subject to the following limitations:
6.3 Remedies for breach of limited warranty. If Customer notifies FieldEZ within the Warranty Period that an Online Service does not meet the limited warranty, then FieldEZ will, at its option, either: (1) return the amount paid for the Online Subscription Service during the (a) Term or (b) 12 months prior to delivery of notice to FieldEZ, whichever is less, or (2) update such Online Service to make it conform. These are Customer’s only remedies for breach of the limited warranty, unless other remedies are required to be provided under applicable law.
6.4 NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UCC (applicable in the U.S.A. only) WILL BE CONFERRED ON THE CUSTOMER UNLESS EXPRESSLY GRANTED HEREIN. The Online Subscription Services and/or Client Software is not designed, intended or licensed for use in hazardous environments requiring fail-safe controls, including without limitation, the design, construction, maintenance or operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, and life support or weapons systems. FieldEZ specifically disclaims any express or implied warranty of fitness for such purposes.
6.5 DISCLAIMER OF OTHER WARRANTIES. OTHER THAN THIS LIMITED WARRANTY, FieldEZ USAGE OF THE ONLINE SUBSCRIPTION SERVICES, CLIENT SOFTWARE, AND CONTENT IS ENTIRELY AT YOUR OWN RISK. EXCEPT AS DESCRIBED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED ARE ON "AS IS WHERE IS” AND FieldEZ PROVIDES NO OTHER EXPRESS OR IMPLIED WARRANTIES. FieldEZ DISCLAIMS ANY IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE OR NON-INFRINGEMENT. THESE DISCLAIMERS WILL APPLY UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW.
IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE ONLINE SUBSCRIPTION SERVICES AND/OR CLIENT SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF SUBSCRIPTION BEING IN FORCE. SOME STATES (IN THE U.S.A.) DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO THOSE CUSTOMERS. THIS WARRANTY GIVES THE CUSTOMERS SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY ACROSS STATES, COUNTRIES AND REGIONS.
7. Defense of infringement and misappropriation claims.
7.1 Agreement to protect. FieldEZ will defend Customer against any claims made by an unaffiliated third party that any Online Subscription Service or Client Software infringes that party’s patent, copyright or trademark or makes intentional unlawful use of its trade secret or undisclosed information. FieldEZ will also pay the amount of any resulting adverse final judgement (or settlement to which FieldEZ consents). This Section provides Customer’s exclusive remedy for these claims. The term "undisclosed information" is as defined in Article 39.2 of the TRIPs agreement. Further FieldEZ is not liable or responsible to the veracity and/or ownership of the intellectual property in any content that the Customer/ user uploads /integrates while availing the online subscription service.
What Customer must do in such an event as in above? Customer must notify FieldEZ promptly in writing of the claim and give FieldEZ sole control over its defense or settlement. Customer must also provide FieldEZ with reasonable assistance in defending the claim. FieldEZ will reimburse Customer for reasonable out of pocket expenses that it incurs in providing that assistance.
7.2 Limitations on defense obligation. FieldEZ obligations will not apply to the extent that the claim or award is based on:
Customer expressly agrees to reimburse FieldEZ for any costs or damages that result from any of the above actions.
7.3 Specific rights and remedies in case of infringement.
FieldEZ rights in addressing possible infringement (intellectual property). If FieldEZ receives information concerning an infringement claim related to an Online Subscription Service or Client Software, FieldEZ may, at its expense and without obligation to do so: (1) procure for Customer the right to continue to use the allegedly infringing Online Service and/or Client Software, (2) modify the Online Subscription Service and/or Client Software, or (3) replace the Online Subscription Service and/or Client Software with a functional equivalent, to make it non-infringing, in which case Customer will immediately stop using the allegedly infringing Online Service and/or Client Software after receiving notice from FieldEZ.
7.4 Customer’s specific remedy in case of injunction. If, as a result of an infringement claim, Customer’s use of the Online Service or Client Software is enjoined by a court of competent jurisdiction, FieldEZ will, at its option, either: (1) procure the right to continue its use; (2) replace it with a functional equivalent; (3) modify it to make it non-infringing; or (4) terminate the License for the infringing Online Service and/or related Client Software and refund any amounts paid in advance by Customer for unused Online Subscription Services.
8. Limitation of liability & Indemnity.
8.1 Except as otherwise provided in this Section, to the extent permitted by applicable law, the liability of FieldEZ and of FieldEZ’s contractors to Customer arising under this agreement is limited to direct damages only. And it is further mutually agreed that in no event shall the same exceed the amount/s paid by the Customer to FieldEZ for the Online Subscription Service and/or Client Software giving rise to that liability during the: (1) Term or (2) twelve (12) months prior to the filing of the claim, whichever is less. These limitations apply regardless of whether the liability is based on breach of contract, tort (including negligence), strict liability, breach of warranties, or any other legal theory. However, these monetary limitations will not apply to:
8.2 EXCLUSION OF CERTAIN DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WHATEVER THE LEGAL BASIS FOR THE CLAIM, NEITHER PARTY, NOR ANY OF ITS AFFILIATES OR SUPPLIERS, WILL BE LIABLE FOR ANY INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, DAMAGES FOR LOST PROFITS OR REVENUES, BUSINESS OR TECHNICAL INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) ARISING IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. HOWEVER, THIS EXCLUSION DOES NOT APPLY TO EITHER PARTY’S LIABILITY TO THE OTHER FOR VIOLATION OF ITS CONFIDENTIALITY OBLIGATIONS OR OF THE OTHER PARTY’S INTELLECTUAL PROPERTY.
FieldEZ TOTAL LIABILITY FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE AMOUNT PAID FOR THE ONLINE SUBSCRIPTION SERVICES AND/OR CLIENT SOFTWARE THAT CAUSED SUCH DAMAGE. SOME STATES (IN THE U.S.A.) DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO SUCH CUSTOMERS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY ACROSS STATES, COUNTRIES AND REGIONS. THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS AGREEMENT.
8.3 You hereby indemnify and hold FieldEZ and its Affiliates and Suppliers harmless from any and all claims, liability and expenses, including reasonable attorneys' fees and costs, arising out of your use of the Online Subscription Services, Client Software, Content used and/or breach of this Agreement (collectively referred to as “Claims”). FieldEZ reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any Claims. You agree to reasonably cooperate as requested in the defense of any Claims.
9. Verifying compliance.
During the Term of any Subscription and for three (3) years thereafter, Customer must keep all usual and proper records relating to the Subscription(s) and Customer’s use of the Online Subscription Services and/or Client Software under this agreement. FieldEZ may request that Customer conduct an internal audit of all Online Subscription Services in use throughout Customer’s organization, comparing the number of Licenses in use to the number of Licenses issued to and/or paid for by Customer. By requesting an audit, FieldEZ does not waive its rights to enforce this agreement or to protect FieldEZ intellectual property by any other means permitted by law.
If verification or self-audit reveals any unlicensed use, Customer must promptly order sufficient Licenses to cover its past and present use. If material unlicensed use is found, Customer must reimburse FieldEZ for the costs FieldEZ has incurred in verification and acquire the necessary additional Licenses at single retail license cost within 30 days.
10.1 Notices to FieldEZ. Notices, authorizations, and requests in connection with this agreement must be sent by regular or overnight mail, or express courier, to the addresses listed below. Notices will be treated as delivered on the date shown on the return receipt. Termination of the agreement, a Subscription, or cancellation of a Subscription should be via the FieldEZ customer service contact identified on the FieldEZ Online Subscription Services Customer Portal. Notices should be sent to FieldEZ at the address as in the Definition section supra.
10.2 Assignment. FieldEZ may assign this agreement to its Affiliates or such others. Customer may not assign this agreement. In the event of a change of ownership of the Customer entity or substantial change in the corporate structure of the Customer then it is incumbent of the party to notify FieldEZ and accept such confirmation agreement as requested by FieldEZ. In the absence of an acceptance to the satisfaction of FieldEZ within ninety (90) days of such event or change, FieldEZ may suspend the Online Subscription Service and/or Client Software for the remaining term of this agreement.
10.3 Severability. If a court holds any provision of this agreement to be illegal, invalid or unenforceable, the rest of the document will remain in effect and this agreement will be amended to give effect to the eliminated provision to the maximum extent possible.
10.4 Waiver. A waiver of any breach of this agreement is not a waiver of any other breach. Any waiver must be in writing and signed by an authorized representative of the waiving party.
Waiver of right to void online purchases. To the maximum extent permitted by applicable law, Customer waives its rights to void purchases under this agreement pursuant to any law governing distance selling or electronic or online agreements, as well as any right or obligation regarding prior information, subsequent confirmation, rights of withdrawal, or cooling-off periods.
10.5 Applicable law. This Agreement is governed by the laws of India and more specifically those applicable in the state of Tamil Nadu without giving effect to principles of conflict of laws. The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to this agreement. The Online Subscription Services and/or Client Software are protected by copyright and other intellectual property laws and international treaties.
10.7 Dispute resolution. FieldEZ and Customer agree to bring an action to enforce this agreement, FieldEZ in the jurisdiction most suitable for enforcement of the same. This choice of jurisdiction does not prevent either party from seeking injunctive relief with respect to a violation of intellectual property or confidentiality obligations in any appropriate jurisdiction.
10.8 Non-Exclusive. This agreement is not exclusive. Customer is free to enter into agreements to license, use or promote non-FieldEZ software or services.
10.9 Entire agreement. This agreement, the Online Subscription Services Use Rights, any SLAs, and the pricing and payment terms available via the FieldEZ Online Subscription Services Customer Portal constitute the entire agreement concerning the subject matter and supersede any prior or contemporaneous communications. No FieldEZ representative, distributor, dealer, agent or employee is authorized to make any amendment to this agreement.
10.10 Survival. Provisions regarding fees, Online Subscription Services Use Rights, restrictions on use, transfer of licenses, export restrictions, defense of infringement and misappropriation claims, limitations of liability, confidentiality, compliance verification, obligations on termination and the provisions in this Section entitled "Miscellaneous" will survive termination of this agreement.
10.11 No transfer of ownership. FieldEZ does not transfer any ownership rights in any software or service. FieldEZ reserves all rights not specifically granted. FieldEZ software is protected by copyright and other intellectual property rights laws and international treaties.
10.12 Basis of Bargain.The Limited Warranty and Disclaimer, Exclusive Remedies and Limited Liability set forth above are fundamental elements of the basis of the agreement between FieldEZ and the Customer i.e. you. Without such limitations FieldEZ would not be able to provide the Software on an economic basis. Such Limited Warranty and Disclaimer, Exclusive Remedies and Limited Liability inure to the benefit of FieldEZ’s licensors.
10.13 Customer's right to privacy. Customer’s right to privacy for Online Service availed are as per the respective laws therein.
10.14 Force majeure. Neither party will be liable for any failure in performance due to causes beyond either party’s reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of Online Subscription Services). This Section will not, however, apply to Customer’s payment obligations under this agreement.
Natural disaster. In the event of a natural disaster, FieldEZ may post information or provide additional assistance or rights on FieldEZ Online Subscription Services Customer Portal.
10.15 Live ID. Customer agrees that it is responsible for protecting the confidentiality of any FieldEZ Live IDs associated with this agreement.
10.16 U.S. export jurisdiction. The Online Subscription Services and Client Software are subject to U.S. export jurisdiction. Customer must comply with all applicable laws including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments.
10.17 Changes to this agreement or services. FieldEZ may change terms and conditions of this Agreement at its discretion from time to time, and the changes will be effective when posted on our website for the Online Subscription Services or when we notify you by other means. Please review the Agreement periodically on this website for changes. FieldEZ has the right to change any of the terms of this Agreement upon reasonable notice to you. We may also change or discontinue the Online Subscription Services, in whole or in part, including but not limited to, the Internet based services, pricing, technical support options, and other product-related policies. Your continued use of the Online Subscription Services after the intimation /posts or otherwise notifies you of any changes, indicates your implied agreement to the changes.