Self Serve Terms of Services

THESE TERMS OF USE (the “Terms”) governs how you (“Customer”) may use the Software-as-a-service products and other services provided by WizRocket Inc., (“Company”). Customer and Company are each a “Party” and collectively the “Parties”.

This Terms consists of the terms and conditions set forth below pursuant to online Invoice referencing this Terms (“Invoice”) and sets forth the basic terms and conditions under which those products and services will be delivered. This Terms (as amended from time to time) will govern Customer’s initial purchase on the Effective Date as well as any future purchases or modifications made by Customer that reference this Terms.

By registering or using our Services or the Websites you agree to be bound by the Terms. If you are using the Services or the Websites on behalf of an organization, you are agreeing to the Terms for that organization (in which event, “you”, “your” or “Customer” will refer to that organization) and representing to the Company that you have the authority to bind that organization to the Terms unless that organization has a separate written contract in effect with us (an “Agreement”), in which event the Agreement will govern your use of the Services; provided that if there is any conflict between the Terms and an Agreement, the provisions of the Agreement shall prevail. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MUST NOT USE THE SERVICES.

We may, in our sole discretion, modify the Terms via email or by posting notice on any part of the Services or the on Website. The “Last Updated” date at the top the Terms indicates when the latest modifications were made to the Terms. By continuing to access and use the Service, you agree to any such modifications. In addition, when using particular services or features, you may be subject to any posted guidelines or policies applicable to such services or features that may be posted from time to time, including but not limited to the Privacy Policy as noted below. All such guidelines or policies are hereby incorporated by reference into these Terms.

If you have any comments or questions regarding the Terms, or wish to report any violation of the Terms, you may contact us at security@clevertap.com.

1. OVERVIEW

1.1. Introduction.

CleverTap is a cloud hosted, customer retention platform that helps consumer brands maximize user lifetime value. CleverTap typically stores the events / logs related to the usage of the application and services by the users of its Customers. CleverTap also stores Customer Content and Customer End User Data, as further described in Section 3.2.

1.2. Definitions.

“Account-Related Information” means contact information, biographical information about Customer’s representatives and contacts used for marketing, opening new user accounts to use CleverTap’s Services, and to maintain existing accounts.

“Customer Content” means (i) data or content in the Customer Properties that CleverTap has access to; and (ii) any other data Customer submits to CleverTap in connection with the use of the Services (not including Account-Related Information and Customer End User Data).

“Customer Property” means a website or mobile application which has CleverTap code embedded in their own website or application for the purpose of tracking the usage of the website or mobile application.

“Customer End Users” means users of Customer’s website or mobile application in which Services are embedded.

“Customer End Users Data” means Events and Datapoints related to Customer End Users collected by CleverTap thru Customer Property.

“Documentation” means the technical user documentation provided with the Services.

“Datapoint”means combination of key-value pair for Event, Event Properties or Customer End User profile properties.

“Event” means Customer End User action such as app launch, page view, purchase etc. that is recorded by the Customer or Company and sent to CleverTap. An Event typically consists of an Event title and a collection Datapoints that capture additional details about Event (“Event Properties”).

“Laws” means all applicable local, state, federal, foreign and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.

“Monthly Active Users” means a Customer End User who has, at least once in any calendar month, –

1. launched the Customer’s app; or
2. recorded a data point; or
3. opens or reacts to a message, notification or email sent via Customer’s app or thru CleverTap; or 
4. a property added to the profile via an API.

If a Customer End User is active on both web and mobile and has the same identity token then the same will be counted as one MAU.

“Service Order” means each Service Order referencing this Terms.

“Personal Information” means any information that identifies, relates to, describes, or is capable of being associated with, or could reasonably be linked, directly or indirectly, to an identified or identifiable living natural person, including but not limited to: (i) Identifiers such as a real name, alias, postal address, unique personal identifier, online identifier Internet Protocol address, email address, account name, social security number, driver’s license number, government identification card number, passport number, or other similar identifiers; (ii) any patient, medical records or other protected or regulated health information; (iii) any financial information (including bank account or payment card numbers) or any other information subject to regulation or protection under specific laws or regulations; or (iv) information defined as “personal information,” “personally identifiable information,” “personal data,” or similar expressions under applicable privacy or data security Law. 

“Services” means CleverTap’s proprietary software-as-a-service solution(s) for behavior analytics and user engagement. Services shall also include a) any corresponding SDKs, APIs, documentation or software that may be made available by CleverTap in connection with such Service; b) any onboarding assistance provided; and c) subsequent enhancements, updates and bug fixes to the foregoing made generally available by CleverTap for no additional fee.

2. CLEVERTAP SERVICES

2.1. Access to Services.

Customer will purchase and CleverTap will provide the specific Services as specified in the applicable Invoice. Customer may access and use these Services during the Subscription Term (as defined below) solely for its own benefit and in accordance with the terms and conditions of this Terms, the Documentation and any scope of use restrictions designated in the applicable Invoice. Our Services are subject to fair usage policy available on our website. 

2.2. Permitted Users.

1. In General. Use of and access to the Services is permitted by and only by employees, Contractors and Affiliates of the Customer (“Permitted Users”). Customer has ability to create as many Users as it requires. CleverTap does not restrict the number of Users on its platform. Customer will ensure that all Permitted Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. User IDs are intended to be granted to individual, named persons and may not be shared. Customer will be responsible for any and all actions taken using Customer’s accounts and passwords.  
2. Contractors and Affiliates. Customer may permit individuals serving as its independent contractors and consultants who are not competitors of CleverTap (“Contractors”) and individual employees, contractors, or consultants of Affiliates (as defined below) to serve as Permitted Users, provided Customer remains responsible for compliance by each such Contractor or Affiliate Permitted User with all of the terms and conditions of this Terms and any such use of the Services by such Contractor or Affiliate Permitted User is for the sole benefit of Customer. Use of the Services by Permitted Users of Affiliates, Contractors and Customer in the aggregate must be within the restrictions in the applicable Invoice. “Affiliate” means any entity controlling, controlled by, or under common control with the referenced entity, where the term “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.

2.3. General Restrictions.

Customer will not (and will not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party; (b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to CleverTap); (d) copy or modify the Services or any Documentation, or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Services (including any reports or data printed from the Services); or (f) publicly disseminate information regarding the performance of the Services.  

2.4. Trial Subscriptions.

If Customer receives free access or a trial or evaluation subscription to Services (“Trial Subscription”), then Customer may use the Services in accordance with the terms and conditions of this Terms for a period granted by CleverTap (the “Trial Period”). Trial Subscriptions are permitted solely for Customer’s use to determine whether to purchase a paid subscription to the Services. Certain Trial Subscriptions may include pre-release and beta products (“Beta Releases”). Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription. If Customer does not enter into a paid Subscription Term, this Terms and Customer’s right to access and use the Services will terminate at the end of the Trial Period. CleverTap has the right to terminate a Trial Subscription at any time for any reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS TERMS, CLEVERTAP WILL HAVE NO WARRANTY, INDEMNITY, DATA ARCHIVING, SERVICE LEVEL, OR SUPPORT OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS OR DURING TRIAL PERIOD. 

3. CUSTOMER CONTENT, CUSTOMER END USER DATA

3.1. Rights in Customer Content.

As between the parties, Customer will retain all right, title and interest (including any and all intellectual property rights) that Customer may have in and to the Customer Content as submitted to or accessed through the Services. Subject to the terms of this Terms, Customer hereby grants to CleverTap a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Content solely to the extent necessary to provide the Services to Customer. 

3.2. Storage by CleverTap.

Customers electronically submit Customer Content and Customers End User Data to CleverTap platform. It is Customer’s responsibility to decide which data to submit to CleverTap. Unless otherwise required by the Customer, any Customer Content and Customer End User Data will be retained subject to CleverTap’s data retention policies and confidentiality obligations under this Terms. Customer specifically acknowledges that CleverTap is not obliged to maintain backup of any data and that CleverTap may not be in a position to restore such data in case deleted at the request of the Customer. 

3.3. Customer Obligations.

1. In General. Customer will ensure that use of Service and all Customer Content is at all times compliant with Customer’s privacy policies and all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, and the exportation of technical or personal data. Customer is solely responsible for the accuracy, content and legality of all Customer Content or Customer End User Data. Customer represents and warrants to CleverTap that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Content and Customer End User Data as contemplated in this Terms (including granting CleverTap the rights in Section 3.1), and that no Customer Content will violate or infringe (i) any third party intellectual property, publicity, privacy or other rights or (ii) any Laws. 
2. No Personal Information. Customer acknowledges that the Services are not designed for use with (and do not require) Personal Information included in Customer Content. Customer specifically agrees not to use the Services to collect, store, process or transmit any Personal Information other than Account-Related Information, and will not submit to the Services any Customer Content containing any Personal Information. CleverTap will have no liability under this Terms for Personal Information included within Customer Content, or any security incident or breach regarding such Personal Information, notwithstanding anything to the contrary herein.
3. Customer End Users Data. As part of the provision of the Service, CleverTap collects certain Customers End Users Data. Such data is collected as determined by the Customer. CleverTap does not control or otherwise approve messages or requests for Customer End User Data made by Customer. Customer End User should be aware that Customer can request such Customer End User Data from them in order to use the Customer Property and that such Customer End User Data may be sent to CleverTap thru the use of Services. Customer should prompt Customer End Users to review Customer Privacy Policy to assess the security of any information a Customer End User discloses to Customer. To the extent that CleverTap receives any such Customer End User Data, CleverTap shall make reasonable efforts, consistent with the terms of CleverTap’s Privacy Policy to maintain the confidentiality of such Customer End User Data. CleverTap has no direct relationship with the Customer End User whose Customer End User Data it processes. CleverTap will not review, share, distribute or reference any such Customer End User Data except as required in order to provide Services to the Customer or if required by the law.
4. Customer Content Guidelines. Customer will not use the Services with any Customer Content that (i) is deceptive, fraudulent, illegal, obscene, defamatory, libelous, threatening, harmful to minors, pornographic, indecent, harassing, hateful, religiously, racially or ethnically offensive, that encourages illegal or tortious conduct or that is otherwise inappropriate in CleverTap’s discretion; (ii) contains viruses, bots, worms, scripting exploits or other similar materials; or (iii) could otherwise cause damage to CleverTap or any third party.  

3.4. Indemnification by Customer.

Customer will indemnify, defend and hold harmless CleverTap from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to (a) any Customer Content, Customer End User Data or acts or omissions of Customer that constitute a breach or alleged breach by Customer of Section 3.3 (Customer Obligations) or (b) any service or product offered by Customer in connection with or related to the Services. This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of CleverTap at Customer’s expense. Notwithstanding the foregoing sentence, CleverTap may participate in the defense of any claim by counsel of its own choosing, at its cost and expense and Customer will not settle any claim without CleverTap’s prior written consent, unless the settlement fully and unconditionally releases CleverTap and does not require CleverTap to pay any amount, take any action, or admit any liability.  

4. DATA PROTECTION.

In accordance with the General Data Protection Regulation (EU) 2016/679 (GDPR), if applicable, the data protection terms relating to processing of Account-Related Information and Customer Content are contained in Data Protection Addendum (“DPA”). To the extent that there is any conflict between any provision of the Terms and the contents of DPA, the contents of DPA shall prevail in respect of such conflict in so far as the matters of data protection are concerned.

5. OWNERSHIP.

5.1 CleverTap Technology.

This is a subscription Terms for access to and use of the Services. Customer acknowledges that it is obtaining only a limited right to the Services and that irrespective of any use of the words “purchase”, “sale” or like terms in this Terms no ownership rights are being conveyed to Customer under this Terms. Customer agrees that CleverTap or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services, all Documentation, Services deliverables and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, “CleverTap Technology”). Except as expressly set forth in this Terms, no rights in any CleverTap Technology are granted to Customer. Further, Customer acknowledges that the Services are offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of it.  

5.2 Feedback.

Customer, from time to time, may submit comments, questions, suggestions or other feedback relating to any CleverTap product or service to CleverTap (“Feedback”). CleverTap may freely use or Feedback in connection with any of its products or services without the need to pay compensation for any use of such Feedback. 

6. SUBSCRIPTION TERM, FEES & PAYMENT

6.1. Subscription Term

. Each Service is provided on a subscription basis for a term mentioned in the Invoice (each, a “Subscription Term”).

6.2. Fees and Payment

All fees are as set forth in the applicable Invoice and will be subject to the applicable payment terms set forth in the applicable Invoice. Except as expressly set forth anywhere in this Terms, all fees are non-refundable. Customer is required to pay any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of CleverTap. Customer must make all payments of Fees without any setoffs, withholdings, or deduction of any kind. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.  

6.3. Suspension of Service

In addition to any of CleverTap’s other rights or remedies (including but not limited to any termination rights), CleverTap reserves the right to suspend Customer’s access to the Services if: (i) Customer’s account is thirty (30) days or more overdue; (ii) CleverTap determines that Customer has breached Section 2.3 (General Restrictions) or Section 3.3 (Customer Obligations); or (iii) CleverTap determines that suspension is necessary to prevent harm or liability to other customers or third parties, or to preserve the security, stability, availability or integrity of the Services. CleverTap will have no liability for taking action as permitted above in this section. However, unless this Terms has been terminated, CleverTap will cooperate with Customer to restore access to the Services once it satisfies that Customer has resolved the condition requiring suspension.

7. TERM AND TERMINATION

7.1. Term. 

This Terms is effective as of the date the Customer accepts it and continues until the expiry or termination of all Subscription Terms or Customer ceases to use Services whichever is earlier.

Subscription Term automatically renews unless otherwise requested. If you purchase a Subscription, you agree to pay the then-current applicable fee associated with the Services and further agree and acknowledge that it will automatically renew, unless, prior to the end of the current period of effectiveness of the Subscription Term: (a) Customer terminates the access; (b) Customer sets to not auto-renew by logging in to Services or by contacting us at security@clevertap.com; (c) CleverTap declines to renew your Subscription Term; or (d) these Terms are otherwise properly terminated as expressly permitted herein. The Subscription will automatically renew on a monthly or annual basis, depending upon the original Subscription Term (“Renewal Term”).

7.2. Termination by Customer

You may terminate Subscription at any time during Trial period or upon thirty (30) days’ advance written notice to CleverTap. If you wish to terminate, you must provide notice by writing to us at security@clevertap.com. Notwithstanding anything contained in these Terms, if you terminate annual Subscription Term within the first thirty (30) days of the initial Subscription Term, you may submit a written request at security@clevertap.com for a refund of the fees paid to CleverTap for the initial Subscription Term, which CleverTap will consider, without obligation, in good faith. CleverTap has no obligation to consider refund requests related to a termination of a Subscription Term if the termination does not occur in the first thirty (30) days of the initial Subscription Term, or if there has been a violation of other Terms herein, or if records indicate you have started use of the Services during that period. Refund, if any granted, shall be net off any banking and remittance charges incurred by CleverTap.

7.3. Termination for Cause.

Either party may terminate this Terms (including all related Invoices) if the other party (a) fails to cure any material breach of this Terms (including a failure to pay fees or violation of fair usage policy) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days). 

7.4. Effect of Termination.

Upon any expiration or termination of this Terms, Customer will immediately cease any and all use of and access to all Services and delete (or, at CleverTap’s request, return) any and all copies of the Documentation, any CleverTap passwords or access codes and any other CleverTap Confidential Information in its possession. Provided this Terms was not terminated for Customer’s breach, Customer may retain and use internally copies of all reports exported from any Service prior to termination. Customer acknowledges that following termination it will have no further access to any Customer Content or Customer End User Data input into any Service, and that CleverTap may delete any such data as may have been stored by CleverTap at any time. Any Fees accrued but not paid shall become immediately due and payable upon Termination.

7.5. Survival.

The following Sections will survive any expiration or termination of this Terms: 2.3 (General Restrictions), 2.4 (Trial Subscriptions), 3.2 (Storage by CleverTap), 3.4 (Indemnification by Customer), 5 (Ownership), 6.2 (Fees and Payment), 7 (Term and Termination), 8.2 (Warranty Disclaimer), 10 (Confidential Information),  and 11(General Terms).

8. LIMITED WARRANTY

8.1. Limited Warranty.

CleverTap warrants, for Customer’s benefit only, that each Service will operate in substantial conformity with the applicable Documentation. CleverTap’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty will be, at no charge to Customer, for CleverTap to use commercially reasonable efforts to correct the reported non-conformity, or if CleverTap determines such remedy to be impracticable, either party may terminate the applicable Subscription Term and Customer will receive as its sole remedy a refund of any fees Customer has pre-paid for use of such Service for the terminated portion of the applicable Subscription Term. CleverTap shall be entitled to bill, in such cases, for the period for which Services were utilized by Customer. The limited warranty set forth in this Section 8.1 will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) to use provided based on a Trial Subscription. 

8.2. Warranty Disclaimer.

EXCEPT FOR THE LIMITED WARRANTY IN SECTION 8.1, ALL SERVICES ARE PROVIDED “AS IS”. NEITHER CLEVERTAP NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. CLEVERTAP DOES NOT WARRANT THAT CUSTOMER’S USE OF ANY SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES CLEVERTAP WARRANT THAT IT WILL REVIEW THE CUSTOMER CONTENT FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER CONTENT OR CUSTOMER END USER DATA WITHOUT LOSS. CLEVERTAP WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF CLEVERTAP. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

8.3. Specific Disclaimers.

TO THE EXTENT PERMITTED BY LAW, CLEVERTAP IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR ANY OTHER LOSS OR DAMAGE RESULTING FROM (I) THE TRANSFER OF DATA OVER PUBLIC COMMUNICATIONS NETWORKS AND FACILITIES, INCLUDING THE INTERNET, OR (II) ANY DELAY OR DELIVERY FAILURE ON THE PART OF ANY OTHER SERVICE PROVIDER NOT CONTRACTED BY US, AND CUSTOMER ACKNOWLEDGES THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. CUSTOMER ACKNOWLEDGES THAT CLEVERTAP CANNOT GUARANTEE THE ABSOLUTE PREVENTION OF CYBER-ATTACKS SUCH AS HACKING, SPYWARE, AND VIRUSES. ACCORDINGLY, CLEVERTAP SHALL NOT BE LIABLE FOR ANY UNAUTHORIZED DISCLOSURE, LOSS OR DESTRUCTION OF CUSTOMER DATA ARISING FROM SUCH RISKS AS LONG AS SUCH RISK CANNOT BE ATTRIBUTED TO NEGLIGANCE OR FAILURE ON CLEVERTAP’S PART.   

9. LIMITATION OF REMEDIES AND DAMAGES

9.1. Consequential Damages Waiver.

EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS TERMS, THE SERVICES, OR THE DOCUMENTATION FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

9.2. Liability Cap.

CLEVERTAP’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THESE TERMS, SERVICES OR THE DOCUMENTATION AT ANY TIME WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO CLEVERTAP FOR THE SERVICES GIVING RISE TO THE CLAIM UNDER THESE TERMS DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE FIRST EVENT GIVING RISE TO LIABILITY OR $100, WHICHEVER IS LOWER. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OF LIABILITY IN CERTAIN INSTANCES, PORTIONS OF THE ABOVE LIMITATION, IN SUCH CASES, MAY NOT APPLY TO YOU. IN THAT EVENT, SUCH EXCLUSIONS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

9.3. Excluded Claims.

“Excluded Claims” means any claim arising (a) from Customer’s breach of Section 2.3 (General Restrictions); (b) under Section 3.3 (Customer Obligations) and Section 3.4 (Indemnification by Customer); or (c) from a party’s breach of its obligations in Section 10 (Confidential Information) (but excluding claims related to Customer Content and/or Customer End User Data).   

9.4. Nature of Claims and Failure of Essential Purpose.

The parties agree that the waivers and limitations specified in this Section 9 apply regardless of the form of action, whether in contact, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Terms is found to have failed of its essential purpose.

10. CONFIDENTIAL INFORMATION.

Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical, personal and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any CleverTap Technology, performance information relating to any Service, and the terms and conditions of this Terms will be deemed Confidential Information of CleverTap without any marking or further designation. Customer Content and Customer End User Data will be deemed Confidential Information of Customer without the need for any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Terms. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for CleverTap, its subcontractors), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 10 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 10. The Receiving Party’s confidentiality obligations will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by administrative or judicial process, applicable law, or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.  

11. GENERAL TERMS

11.1 Assignment.

This Terms will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Terms without the advance written consent of the other party, except that either party may assign this Terms in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Terms except as expressly authorized will be null and void.

11.2. Severability.

If any provision of this Terms will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Terms will otherwise remain in effect.  

11.3. Governing Law; Jurisdiction and Venue.

This Terms will be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. All disputes relating to or arising out of this Terms shall be resolved in a state or federal court located in or encompassing city of San Francisco, California, USA, and the parties hereby consent to the jurisdiction of such courts.  

11.4. Attorneys’ Fees and Costs

The prevailing party in any action to enforce this Terms will be entitled to recover its attorneys’ fees and costs incurred in connection with such action.  

11.5. Notice.

Any notice or communication required or permitted under this Terms will be in writing to the parties at the addresses set forth on the Invoice or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee (i) if given by hand or email, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. 

11.6. Amendments; Waivers.

No supplement, modification, or amendment of this Terms will be binding, unless executed in writing by a duly authorized representative of each party to this Terms. No waiver will be implied from conduct or failure to enforce or exercise rights under this Terms, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Terms.  

11.7. Entire Terms.

This Terms is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral Terms and communications relating to the subject matter of this Terms. 

11.8. Force Majeure

Neither party will be liable to the other for any delay or failure to perform any obligation under this Terms (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Terms and that are beyond the reasonable control of such party (each, a “Force Majeure Event”), such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or data or telecommunications networks or services.

11.9. Independent Contractors

The parties to this Terms are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties.  Neither party will have the power to bind the other or incur obligations on the other party’s behalf.

11.10. Export Control

In its use of the Services, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer will not (and will not permit any of its users to) access or use the Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer will not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations.

11.11. Government End-Users.

Elements of the Services are commercial computer software. If the user of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data and manuals, is restricted by a license Terms or by the terms of this Terms in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. All Services and CleverTap Technology were developed fully at private expense.

11.12. Marketing.

CleverTap may use Customer’s name and logo on CleverTap’s website and other marketing materials solely to identify Customer as a Customer of CleverTap (without revealing any Confidential Information).