PLEASE READ THE TERMS OF THIS END-USER AGREEMENT CAREFULLY BEFORE YOU START DOWNLOADING AND/OR SETTING UP AND/OR COPYING AND/OR INSTALLING AND/OR ANY USE OF ANY SOFTWARE SPECIFIED IN THE TITLE OF THIS END-USER AGREEMENT (HEREINAFTER REFERRED TO AS PRODUCT / PRODUCTS) ON YOUR COMPUTER / SERVER / PROCESSOR.
This End-User Agreement (hereinafter referred to as the "Agreement") is entered into between Indiran Enterprises Private Limited, being the copyright holder of the Products (hereinafter referred to as the "Copyright Holder"), and you, either as an individual or as a representative of a legal entity (hereinafter referred to as the "End User"), for the grant of rights to use the Products and their respective versions.. By continuing to use the Product, you confirm that you have the necessary authority to represent End User when using the Product and entering into this Agreement.
By starting to use the Product, you, as an End User, agree to all the terms of the Agreement in full and unconditionally and are considered to have accepted the right to use the Product under a simple (non-exclusive) license. If you do not agree to the terms of the Agreement, you do not have the right to download, set up, copy, install or use the Product in any way.
If you received the Product or access to the Product from an authorized representative of the Copyright Holder, Partner, Distributor, etc. on the basis of a separate contract or directly from the Copyright Holder under a separate contract (hereinafter collectively referred to as the Contracts), this Agreement applies to the extent that does not contradict the specified Contracts.
1.1. Affiliate means, with respect to either party, any person, firm, corporation, trust or other entity or combination thereof which directly or indirectly controls, is controlled by, or is under common control with such party; the term "control" meaning an ownership of greater than fifty percent (50%) of the voting and equity rights, of such person, firm, trust, corporation, or other entity (or combination thereof) or the power to direct the management of such person, firm, trust, corporation, or other entity (or combination thereof).
1.2. Agreement means this End user agreement, and any other documents incorporated herein by reference.
1.3. Copyright Holder Products means proprietary Software made available by Copyright Holder to End User pursuant to this Agreement under an applicable Order, together with Updates and any associated Documentation.
1.4. Copyright Holder Services means Professional Services, Deliverables and Support Services made available by Copyright Holder to End User pursuant to this Agreement under an applicable Order.
1.5. Deliverables means any deliverables from Copyright Holder, including but not limited to consulting reports, optimization recommendations, custom configurations, replication setups, performance tuning guides, and Training Materials.
1.6. Documentation means manuals, instructions, and other documents and materials that Copyright Holder provides with Copyright Holder Products or Deliverables which describe the functionality, components, features or requirements of Copyright Holder Products or Deliverables, as amended from time to time.
1.7. End User means an person that is authorized by Copyright Holder to access Software Services under the End User Entitlement.
1.8. Entitlement means the purchased Copyright Holder Products or Copyright Holder professional Service (s) under the license by which Copyright Holder measures, prices and offers the Copyright Holder Products and Copyright Holder Services to End User. Entitlements to Copyright Holder Products or Copyright Holder Services subscriptions are limited to a Subscription Term.
1.9. Infringement Claim means any claim, suit or proceeding brought against End User based on an allegation that Copyright Holder Products, Copyright Holder Services or Deliverables, as delivered by Copyright Holder, infringe upon any patent or copyright or violate any trade secret rights of any third party.
1.10. "Logs" means system-generated records relating to the Services provided by the Copyright Holder, including but not limited to information concerning performance, availability, stability, usage patterns, access history, security events, error reports, support interactions, and technical data relating to devices, systems, Internet Protocol Address related software, services, or peripherals used by the End User in connection with the Services provided by the Copyright Holder.
1.11. Open Source Software means any open source software provided by Copyright Holder in Software or a Deliverable. Open Source Software in Software will be described in the license directory for the Software and identified in the Deliverable. Notwithstanding any other provision of this Agreement, Open Source Software is licensed exclusively under the applicable open source license. PostgreSQL license terms are at https://www.postgresql.org/about/licence/.
1.12. Subscription Fees means all Copyright Holder fees applicable to Copyright Holder Products and Copyright Holder Services.
1.13. Order means any initial or subsequent ordering document (including, but not limited to, a purchase order, order form, or signed proposal or statement of work), auto-renewal (if applicable, and you have not provided notice of non-renewal), and/or online request for access to and/or use of the Copyright Holder Products or Copyright Holder Services submitted to Copyright Holder, an Copyright Holder authorized reseller, and/or through authorized marketplace websites.
1.14. Professional Services means any professional services including, but not limited to, PostgreSQL consulting, architecture design, migrations, performance tuning, and training made available by Copyright Holder to End User pursuant to this Agreement under an applicable Statement of Work (SOW) or engagement package. Professional Services are identified in Copyright Holder Descriptions, Support Terms, and SOWs.
1.15. Software means Copyright Holder's proprietary programs in object code form made available by Copyright Holder to End User pursuant to this Agreement under an applicable Order, together with Updates and any associated Documentation. Support Services are included in a Software subscription.
1.16. Subscription Term means the term for which Copyright Holder Products or Copyright Holder Services are licensed or made available by Copyright Holder to End User pursuant to this Agreement under an Order, if applicable.
1.17. Support Services means Copyright Holder technical support services for End User-managed PostgreSQL environments, including 24x7 enterprise support, troubleshooting, high-availability replication setups, monitoring guidance, and performance optimization. Support Services are available standalone via subscription or as part of Professional Services engagements.
1.18. Training Materials means Copyright Holder's training courses, course curricula, course descriptions, course materials, and any other documentation or information, in any form or medium, furnished by Copyright Holder in connection with Training Services. Training Materials are Deliverables.
1.19. Training Services means Copyright Holder training services made available by Copyright Holder to End User pursuant to an Order.
1.20. Update means any corrections, bug fixes, features or functions added to or removed from the Products if and when made generally available by Copyright Holder during a Subscription Term. Updates are included in Copyright Holder Product subscriptions.
2.1. Copyright Holder hereby grants End User a limited, non-exclusive, non-transferable, license to use the Software under a Subscription Term for use in accordance with the End User's Entitlement and the Documentation. At the conclusion of a Subscription Term, if not renewed, End User agrees to de-install the Software and to cease use of it.
2.2. If the right to use the Product is acquired by the End User on the basis of a separate Contract with the Copyright Holder or an authorized representative of the Copyright Holder, the End User has the right to deploy the Product in one development environment and one testing environment, not exceeding the number of licenses and license metrics for the production environment.
2.3. The End User has the right to use the Product with its other software, the software product is protected by copyright laws and international copyright treaties, the software product is licensed, not sold.
3.1. End user agrees not to; (i) modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, enhance, decompile or attempt to decipher any code relating to Software, Professional Service and Deliverables; (ii) market, offer to lease, sell, and/or resell the Software, Professional Service and Deliverables or use them for service bureau or time sharing or in any other way allow third parties to exploit them; or (iii) if the End User is an Copyright Holder competitor, use the Software, Professional Service and Deliverables directly or indirectly for competitive development, benchmarking or analysis, except to the extent permitted under applicable law. End User may allow Affiliates to use Copyright Holder Products, Software, Professional Service and Deliverables under its Entitlement provided End User binds them under this Agreement and remains responsible for any breach from their acts or omissions.
4.1. All rights, title, and interest in Copyright Holder, including its systems, methods, algorithms, structure, libraries, applications, modules, components, documentation, texts, fonts, logos, and any copies or parts thereof, whether integrated into any hardware or software system or otherwise, shall remain the exclusive property of Indiran Enterprises Private Limited and/or its affiliates. Nothing in this Agreement transfers any ownership rights in the Product to the End user. The End user is granted only a limited right to use the Product in accordance with the terms of this Agreement.
4.2. Any use of the Product that violates the terms of this Agreement shall constitute a breach of this Agreement. In such event, the Copyright Holder may immediately suspend or terminate the rights granted to you to use the Product.
4.3. If the End User becomes aware of any information indicating a violation of the Copyright Holder's copyright (illegal resale of the Product, reference links to unauthorized sites), the Copyright Holder recommends reporting this information to the Copyright Holder.
4.4. End User must not remove or alter any copyright notices on any copy of product of Copyright Holder.
5.1. Copyright Holder grants to End User a limited, non-exclusive, non-transferable license to use software, Support Services, Professional Services and Deliverables under a purchased Subscription Term or other engagement model in accordance with the End user Entitlement. All intellectual property rights in all Deliverables, pre-existing works and derivative works of such pre-existing works, as well as developments made, conceived, created, discovered, invented, or reduced to practice in the performance of the Professional Services, are and shall remain the sole and absolute property of Copyright Holder.
6.1. Except for the limited use rights expressly granted herein, End User has no right, title or interest in or to Copyright Holder Products, Copyright Holder Services or Deliverables or any intellectual property rights related thereto.
Unless terminated earlier in accordance with this Agreement, this Agreement shall remain in force until the expiration or termination of all Subscription Terms and any other engagement models entered into hereunder. Subscription Term shall commence and continue for the duration specified in the applicable Order and shall automatically renew for successive periods of the same duration (each a "Renewal Subscription Term"), unless either Party provides written notice of non-renewal at least thirty (30) days prior to the expiry of the current Subscription Term, as specified in the relevant Order.
8.1. If the End User does not pay the Subscription Fee or any other sums payable under this Agreement when due, the Copyright Holder reserves the right to terminate the Subscription and prevent the End User from accessing and/or using the Software immediately.
8.2. The Copyright Holder shall further be entitled to suspend or terminate the Subscription with immediate effect in the event of any breach of this Agreement by the End User, including but not limited to unauthorized use, misuse of the Software, violation of license restrictions, infringement of intellectual property rights, breach of confidentiality obligations, or use of the Software in violation of applicable law.
9.1. Upon termination, End User will immediately discontinue all access and use of the relevant Copyright Holder Service. Neither party shall be liable for any damages resulting from termination, including without limitation, unavailability of End User Content arising therefrom; provided, however, termination shall not affect any claim, including, but not limited to End User payment obligations, arising prior to the effective termination date.
10.1. End User Account. End user is solely responsible for (i) the configuration of End user Account; (ii) the operation, performance and security of End User's equipment, and other computing resources used to connect to services of Copyright Holder; (iii) maintaining the confidentiality of End user Account, End User id's and passwords, including not sharing login information among other persons; and (iv) all uses of the Service that occur using End User Account. End User will notify Copyright Holder immediately of any unauthorized use of its Account or any other breach of security. Ownership of End user Account is directly linked to the individual or entity that completes the registration process for the Account. End User acknowledges that Copyright Holder will rely on the information provided for issues arising with the End User Account.
10.2. End User Access/Instructions. The End User, and any authorized End User, will have access to information in the End User Account. Copyright Holder will not provide access to any other User at any time. End User agrees that Copyright Holder may rely on instructions given by the End User owner through registered email. End User agrees not to request access to or information about an account that is not owned by the End User. In the event of a dispute regarding End User data, Copyright Holder will only release information to another party other than the End User owner pursuant to a court order or by any order of department and release as determined by Copyright Holder.
11.1. Definition
From time to time during the Subscription Period, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media that: (i) is marked, designated or otherwise identified as "confidential" or something similar at the time of disclosure or within a reasonable period of time thereafter; or (ii) would be considered confidential by a reasonable person given the nature of the information or the circumstances of its disclosure (collectively, "Confidential Information"). Except for Personal Information, Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party without use of, reference to, or reliance upon the disclosing Party's Confidential Information.
11.2. Duty
The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees, contractors, and agents who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder ("Representatives"). The receiving Party will be responsible for all the acts and omissions of its Representatives as they relate to Confidential Information hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. Further, notwithstanding the foregoing, each Party may disclose the terms and existence of this Agreement to its actual or potential investors, debtholders, acquirers, or merger partners under customary confidentiality terms.
11.3. Return of Materials
On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-use and non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire three (3) years from the date of termination or expiration of this Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable laws and regulations.
Copyright Holder acknowledges that, as between Copyright Holder and End User, End User owns all right, title, and interest, including all intellectual property rights, in and to the End User Data.
If the End User or any of its employees, agents, or contractors sends or transmits any communications or materials to the Copyright Holder by mail, email, telephone, or otherwise, suggesting or recommending changes to any Copyright Holder product, service, or intellectual property, including, without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (collectively, "Feedback"), the Copyright Holder shall be free to use, disclose, reproduce, license, or otherwise exploit such Feedback without restriction and without any obligation or compensation to the End User, notwithstanding any other provision of this Agreement.
14.1. The Copyright Holder represents and warrants that during the Subscription Term, the Copyright Holder Products and Copyright Holder Services, when used strictly in accordance with this Agreement and the applicable Documentation, shall not knowingly infringe any valid intellectual property rights of any third party.
14.2. The warranty set forth above shall not apply to any claim arising out of or relating to any modification of the Products or Services not made or authorized by the Copyright Holder, any use of the Products or Services in combination with third-party software, hardware, systems, or services not approved by the Copyright Holder, any use inconsistent with this Agreement or the Documentation, or any continued use after notice of an alleged or actual infringement claim.
14.3. Except as expressly set forth in Clause 18.2, the Copyright Holder Products and Copyright Holder Services are provided on an "as is" and "as available" basis. To the maximum extent permitted under applicable law, the Copyright Holder disclaims all other representations, warranties, and conditions of any kind, whether express, implied, statutory, or otherwise, including, without limitation, any implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, title, non-infringement (other than as expressly provided above), and quiet enjoyment, as well as any warranties arising out of course of dealing, usage of trade, or performance. The Copyright Holder does not represent or warrant that the Products or Services will meet the End User's specific requirements, achieve any intended results, operate uninterrupted or error-free, be secure or free from vulnerabilities, be compatible with any third-party systems, or that any defects or errors will be corrected.
14.4. The Copyright Holder makes no representations or warranties with respect to any third-party software, hardware, services, or equipment not developed or controlled by the Copyright Holder, even if such components are integrated with or provided together with the Products.
14.5. The End Users are solely responsible for the selection, implementation, and use of the Copyright Holder Products and Services.
14.6. Some jurisdictions do not allow the exclusion of certain warranties or conditions, and accordingly, some of the above exclusions and disclaimers may not apply to the extent prohibited by applicable law.
15.1. Copyright Holder shall indemnify and defend End User against any third party Infringement Claim, and pay reasonable attorneys' fees, court costs, damages finally awarded, or reasonable settlement costs, with respect to such Infringement Claim; provided that: (i) End User promptly notifies Copyright Holder in writing of an Infringement Claim such that Copyright Holder is not prejudiced by any delay of such notification; (ii) Copyright Holder has sole control over the defense and any settlement of any Infringement Claim; and (iii) End User provides reasonable assistance in the defense of same. If End User's use of any of the Copyright Holder Products, Copyright Holder Services or Deliverables is, or in Copyright Holder's opinion is likely to be, enjoined as a result of an Infringement Claim, Copyright Holder shall, at its sole option and expense, either (i) procure for End User the right to continue to use them as contemplated herein, or (ii) replace or modify them to make their use non-infringing without degradation in performance or a material reduction in functionality. If options (i) and (ii) are not reasonably available, Copyright Holder may, in its sole discretion and upon written notice to End User, require return of the relevant Copyright Holder Products or Deliverables, or cancel access to the relevant Copyright Holder Services, and refund to End User any unused pre-paid Fees for the relevant Subscription Term or Copyright Holder Services, and provide relief from any subsequent subscription payments due for the remainder of the Subscription Term. Copyright Holder assumes no liability, and shall have no liability, for any Infringement Claim to the extent based on (i) End User's access to and/or use of the Copyright Holder Products, Copyright Holder Services or Deliverables following notice of an Infringement Claim; (ii) any modification of the Copyright Holder Products, Copyright Holder Services or Deliverables by End User or at its direction; (iii) End User's combination of the Copyright Holder Products, Copyright Holder Services or Deliverables with third party programs, services, data, hardware, or other materials; (iv) Open Source Software in Software or Deliverables; or (v) any trademark or copyright infringement involving any marking or branding not applied by Copyright Holder or involving any marking or branding applied at End User's request. The Foregoing States Copyright Holder's Sole Liability And End User's Exclusive Remedy With Respect To Any Infringement Claim Hereunder.
16.1. The End User shall indemnify, defend, and hold harmless the Copyright Holder, its affiliates, directors, officers, employees, agents, and representatives from and against any and all losses, damages, liabilities, claims, demands, actions, proceedings, costs, and expenses (including reasonable legal fees and expenses) arising out of or in connection with:
16.1.1. any breach or alleged breach by the End User of this Agreement, including any representations, warranties, or obligations herein;
16.1.2. any misuse, unauthorized use, or use of the Products and/or Software Services in violation of applicable laws, regulations, or the terms of this Agreement;
16.1.3. any data, content, or materials submitted, uploaded, transmitted, or otherwise made available by or on behalf of the End User, including any claim that such data or content infringes or misappropriates the intellectual property rights, privacy rights, or other rights of any third party;
16.1.4. any acts or omissions, negligence, fraud, or wilful misconduct of the End User or its employees, agents, or authorized users in connection with the use of the Products or Software Services; and
16.1.5. any third-party claims arising from the End User's use of the Products or Software Services other than to the extent such claims arise directly from the gross negligence or wilful misconduct of the Copyright Holder.
17.1. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES OR LOSSES, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, THOSE ARISING OUT OF OR RELATING TO: (i) LOSS OF DATA; (ii) LOSS OF INCOME; (iii) LOSS OF OPPORTUNITY; (iv) LOST PROFITS; (v) LOSS OF THE END USER'S CONFIDENTIAL INFORMATION, CAUSED BY VIOLATIONS AND/OR ERRORS IN THE OPERATION OF THE PRODUCT, (vi) RESULTING FROM MISCONDUCT OF THE END USER'S PERSONNEL, (vii) THIRD PARTIES, AS WELL AS MALFUNCTIONS OF THE TECHNICAL MEANS AND ELECTRICAL EQUIPMENT OR (viii) UNAVAILABILITY (EXCLUDING CREDITS DUE FOR ANY COPYRIGHT HOLDER SERVICE LEVEL AGREEMENT OBLIGATION) OR NON-PERFORMANCE OF ANY OR ALL OF THE COPYRIGHT HOLDER PRODUCTS OR COPYRIGHT HOLDER SERVICES, IN EACH CASE, HOWEVER CAUSED, AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY TO THE OTHER OR ANY OTHER PERSON ARISING OUT OF THIS AGREEMENT AND/OR THE TERMINATION THEREOF, SHALL BE LIMITED TO THE SUM OF THE AMOUNTS PAID FOR THE APPLICABLE SOFTWARE SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY, VIOLATION BY THE END USER OF THE COPYRIGHT HOLDER'S EXCLUSIVE RIGHT TO THE PRODUCT AND/OR DOCUMENTATION, INCLUDING, BUT NOT LIMITED TO, ANY OF THEIR PARTS OR COMPONENTS, SHALL RESULT IN IMMEDIATE TERMINATION OF THE RIGHT TO USE THE PRODUCT GRANTED TO THE END USER.
17.2. COPYRIGHT HOLDER SPECIFICALLY DISCLAIMS ANY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE SOFTWARE PROVIDED HEREUNDER IS ON AN "AS IS" BASIS, AND COPYRIGHT HOLDER HAS NO OBLIGATIONS TO PROVIDE MAINTENANCE, SUPPORT, UPDATES, ENHANCEMENTS, OR MODIFICATIONS.
18. Additional Terms.
18.1. Trial and Freemium. If an Copyright Holder Product offering is identified as a Trial, End User may use the Copyright Holder Product for a limited period for internal demonstration, test, or evaluation purposes. If an Copyright Holder Product is offered as a Freemium offering, End User may use the Copyright Holder Product for production purposes during the term of the offering. COPYRIGHT HOLDER PROVIDES TRIALS AND FREEMIUM OFFERINGS "AS IS" AND WITHOUT WARRANTY.
18.2. Third Party Products, Services or Content. A Software may contain features or functions that enable interoperation with third party products, services or content. Copyright Holder may also provide access to third party products, services or content directly within the Software. Third party products, services or content, and End User content in third party services, are not part of the Services and are not warranted or supported by Copyright Holder. Your use of such third party products, services or content is subject to the terms of the third party, not Copyright Holder.
18.3. Consent to Use Logs. Copyright Holder and its service providers may collect and use Logs for purposes of providing Services, including securing, managing, measuring and improving software Services and Support Services. Logs may be used for purposes not specified in this Section only in an aggregated, anonymized form.
19.1. The Subscription Fee (together with any levies, duties and/or taxes imposed on the End User in its jurisdiction including, but not limited to, value added tax, sales tax, use tax, GST and withholding tax) and other fees as applicable shall be due and payable by the End User as specified during the purchase process.
20.1. In the event of any default or delay in payment, including any partial payment, the End User shall be liable to pay late payment charges together with interest on the overdue amount at the rate of 1.5% (one and a half percent) per month, calculated from the due date until the date of actual payment.
20.2. If such default or delay continues for a period exceeding four (4) calendar days from the date of notification issued by the Copyright Holder to the End User via email, then, without prejudice to any other rights or remedies available under this Agreement or applicable law, all outstanding amounts under this Agreement shall become immediately due and payable, notwithstanding any agreed payment terms.
20.3. In addition, the Copyright Holder shall have the right, without further notice, to suspend, in whole or in part, the access to or provision of any Copyright Holder Products or Services (including those already paid for), refuse any new orders or renewals, and/or terminate this Agreement, in whole or in part.
Notwithstanding anything to the contrary contained in this Agreement, the Copyright Holder shall have the right to suspend, in whole or in part, the End User's and/or any User's access to any Copyright Holder Product or Service (the "Suspension"), upon written notice to the extent reasonably practicable, if the Copyright Holder reasonably determines that: (a) there is any actual or suspected threat, attack, or security risk affecting the Product, Service, or associated systems; (b) the End User's or any User's use disrupts, degrades, or poses a risk to the integrity, performance, or security of the Product, Service, or any third party; (c) the Product or Service is being used for any fraudulent, unlawful, or unauthorized purpose, or in breach of this Agreement; (d) any fees payable by the End User remain unpaid beyond the applicable due date as per the invoice, purchase order, or agreed terms; (e) such suspension is required pursuant to applicable law, court order, or legal process; (f) the End User ceases to carry on business in the ordinary course, makes an assignment for the benefit of creditors, or becomes subject to any insolvency, bankruptcy, liquidation, or similar proceedings; or (g) any third-party provider whose services are required for enabling access to the Product or Service suspends or terminates access to such services. The Copyright Holder shall use commercially reasonable efforts to notify the End User of such Suspension, provide updates, and restore access as soon as reasonably practicable after the cause of such Suspension has been remedied, where capable of cure. The Copyright Holder shall not be liable for any loss, damage, liability, or expense, including any loss of data, business interruption, or loss of profits, incurred by the End User or any User as a result of such Suspension. The End User shall remain liable for all fees accrued prior to and during the period of Suspension.
22.1. End User acknowledges that Copyright Holder Products are not designed or intended for use in life support systems, human implantation, nuclear facilities or any other application where Product failure could lead to loss of life or physical property damage.
23.1. End User is responsible for all fees and charges imposed by End User's telephone carriers, wireless providers, and other voice and/or data transmission providers arising out of access to and use of Copyright Holder Products or Copyright Holder Services. If End User's broadband connection and/or telephone service fails, or End User experiences a power or other failure or interruption, End User's access to Copyright Holder Services may fail for reasons outside of Copyright Holder's control.
24.1. The Agreement is governed by and construed in accordance with the laws of India without giving effect to principles of conflict of laws that would require the application of any other law. The Parties shall use their reasonable efforts to resolve any dispute arising between them amicably. The most diligent Party will notify the other Party of the existence and reasons for the dispute by registered letter with acknowledgement of receipt. If no amicable settlement is reached within thirty (30) days from the date of such notification, any dispute, controversy, or claim arising out of or in connection with this Agreement, including any question regarding its breach, termination, or validity, shall be subject to the exclusive jurisdiction of the competent courts located at Pune, Maharashtra.
25.1. The End User may not assign any of its rights or delegate any of its obligations under this Agreement, whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of the Copyright Holder. Any purported assignment or delegation in violation of this Clause shall be null and void. No assignment or delegation shall relieve the End User of any of its obligations under this Agreement.
25.2. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
26.1. All legal notices required under this Agreement shall be in writing and delivered in person or by certified or registered express mail to the address last designated on the account for End User, and the Copyright Holder contracting entity as specified below, or such other address as either party may specify by notice to the other party as provided herein. Notice shall be deemed given (i) upon personal delivery; (ii) if delivered by air courier or email, upon confirmation of receipt; or (iii) five (5) days after deposit in the mail. A copy of all legal notices from End User to COPYRIGHT HOLDER must also be sent legal@postgresfirst.com
27.1. Neither party will be responsible or have any liability for any delay or failure to perform its obligations hereunder to the extent due to unforeseen circumstances or causes beyond its reasonable control, including acts of God, earthquake, fire, flood, sanctions, embargoes, strikes, lockouts or other labor disturbances, civil unrest, failure, riots, terrorist or other malicious or criminal acts, war, failure or interruption of the internet or third party internet connections or infrastructure, power failures, acts of civil and military authorities, government restrictions, epidemic and severe weather. The affected party will give the other party prompt written notice of the failure to perform due to Force Majeure and use its reasonable efforts to limit the resulting delay in its performance.
28.1. Captions and headings are used herein for convenience only, are not a part of this Agreement, and shall not be used in interpreting or construing this Agreement.
28.2. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be severed from this Agreement and the other provisions shall remain in full force and effect.
28.3. The parties are independent contractors and nothing in this Agreement creates a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between or among the parties.
28.4. Copyright Holder may subcontract responsibilities under this Agreement to Affiliates and/or third parties but remains responsible for breach of this Agreement by acts or omissions of such subcontractors.
28.5. Copyright Holder authorized resellers (including distributors) do not have the right to make modifications to this Agreement or to make any additional representations, commitments, or warranties binding on Copyright Holder.
28.6. No waiver or amendment of any term or condition of this Agreement shall be valid or binding on any party unless agreed to in writing by such party. Copyright Holder's failure to enforce any term of this Agreement will not be construed as a waiver of the right to enforce any such terms in the future. Unless otherwise specified, remedies are cumulative.
28.7. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof and supersedes all prior and contemporaneous oral and written agreements. Nothing contained in any Order or any other document or terms submitted by End User with or as part of an Order, shall in any way add to or otherwise modify the Agreement or any Copyright Holder purchase program terms under which an Order is submitted.
28.8. The terms of this Agreement or any referenced documents may be updated by the Copyright Holder from time to time upon giving at least thirty (30) days' prior notice to the End User. The End User's continued access to and/or use of the Copyright Holder Products or Copyright Holder Services after the expiry of such notice period shall constitute acceptance of the then-current terms.
28.9. This Agreement is effective from the moment the End User lawfully begins to install the Product or remotely access or actually use the Product.
