These Terms of Service (this "Agreement") are a binding contract between you ("Customer," "you," or "your") and Indiran Enterprises Private Limited incorporated under companies Act of 2013, having its office at Pune, Maharashtra, India-411022 through its portal know as Postgresfirst ("Postgresfirst," "we," or "us"). This Agreement governs your access to and use of the Cloud Services.
If Customer and Postgresfirst have entered into a separate written agreement, then in the event of any conflict or inconsistency between this Terms of Service and such separate agreement, the terms of the separate agreement shall prevail to the extent of such conflict Postgresfirst and Customer may be referred to herein collectively as the "Parties" or individually as a "Party."
By accepting this Agreement, by completing the registration process or by accessing the Service, you agree that you have read and understood these Terms and you agree to be bound by them. We may periodically update these Terms as per clause 18.. Your continued use of the Service will constitute your acceptance of any new or amended Terms.
PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION.
IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.
1. Definitions
1.1. "Aggregated Data" means data and information related to or derived from Customer Data or Customer's use of the Services that is used by Postgresfirst in an aggregate and anonymized manner, including to compile statistical and performance information related to the Services.
1.2. "Authorized User" means Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (ii) for whom access to the Services has been purchased hereunder.
1.3. "Customer Data" means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services; provided that, for purposes of clarity, Customer Data does not include Aggregated Data.
1.4. "Documentation" means Postgresfirst's end user documentation relating to the Services available at Postgresfirst.com.
1.5. "Effective Date" means the date specified in the Order, if not specified the date on which Postgresfirst receives payment for the Subscription Period from Customer.
1.6. "Eligible Person" means an individual who has attained the age of eighteen (18) years and possesses full legal capacity to enter into contracts under the Indian Contract Act, 1872, or a legal entity duly organized and existing under applicable laws with proper authorization to bind itself to this Agreement.
1.7. "Harmful Code" means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby.
1.8. "Order" means: (i) the purchase order, order form, or other ordering document entered into by the Parties that incorporates this Agreement by reference; or (ii) if Customer registered for the Services through Postgresfirst's online ordering process, the results of such online ordering process.
1.9. Open Source Software means any open source software provided by Postgresfirst 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/.
1.10. "Personal Information" means any information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted, or located, including without limitation all data considered "personal data", "personally identifiable information", or something similar under applicable laws, rules, or regulations relating to data privacy.
1.11. "Representative" means, such Party's directors, officers, employees, contractors, agents, consultants, advisors, and any other persons acting on behalf of such Party who have a need to know Confidential Information to exercise rights or perform obligations under this Agreement.
1.12. "Services" means Postgresfirst's proprietary hosted software platform, as made available by Postgresfirst to Authorized Users from time to time.
1.13. "Postgresfirst IP" means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Postgresfirst IP includes Aggregated Data and any information, data, or other content derived from Postgresfirst's provision of the Services but does not include Customer Data.
1.14. "Third-Party Products" means any third-party products provided with, integrated with, or incorporated into the Services.
2. Access and Use
2.1. Provision of Access
Subject to and conditioned on Customer's compliance with the terms and conditions of this Agreement, including without limitation the Usage Limitations, Postgresfirst will make available to Customer during the Subscription Period, on a non-exclusive, non-transferable, and non-sublicensable basis, access to and use of the Services, solely for use by Authorized Users. Such use is limited to Customer's internal business purposes and the features and functionalities specified in the Order. Postgresfirst shall provide to Customer the necessary access credentials to allow Customer to access the Services.
2.2. Proper use of the Services
The Customer undertakes to use the Services in accordance with the Agreement and with the legal and regulatory provisions applicable to the Services and to the activities that the Customer carries out with the Services, in the countries in which the Datacentres from which the Services are provided are located and in those in which the activities are carried out, transit or are used. The Customer undertakes to use the Services in compliance with the technical limitations established by Postgresfirst in order to prevent misuse. The Customer will use the Services in a reasonable manner and will refrain from any act that could jeopardize the stability or security of Postgresfirst Infrastructures and systems or lead to a degradation in the performance of services provided to other Postgresfirst clients. In this respect, for certain Services, Postgresfirst may collect metadata related to their use, such as, for example, data related to the use of the processor, memory, errors in logs. Any fraudulent or illegal use of the Services, such as sending fraudulent e-mails ("SPAM") from the Services, is strictly prohibited. The Customer undertakes not to use any debriding process for the purpose of downloading large quantities of illicit Content on or from the Services. The Customer will not carry out intrusion or attempted intrusion activities using the Services without the prior express written consent of Postgresfirst.
2.3. Documentation License
Subject to and conditioned on Customer's compliance with the terms and conditions of this Agreement, Postgresfirst hereby grants to Customer a non-exclusive, non-transferable, and non-sublicensable license to use the Documentation during the Subscription Period solely for Customer's internal business purposes in connection with its use of the Services.
2.4. Use Restrictions
Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of any Postgresfirst IP, whether in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation to any third party; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from any Postgresfirst IP; (v) use any Postgresfirst IP in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vi) access or use any Postgresfirst IP for purposes of competitive analysis of Postgresfirst or the Services, the development, provision, or use of a competing software service or product, or any other purpose that is to Postgresfirst's detriment or commercial disadvantage; (vii) bypass or breach any security device or protection used by the Services or access or use the Services other than by an Authorized User through the use of valid access credentials; or (viii) input, upload, transmit, or otherwise provide to or through the Services any information or materials that are unlawful or injurious, or that contain, transmit, or activate any Harmful Code.
2.5. Reservation of Rights
Postgresfirst reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party, any intellectual property rights or other right, title, or interest in or to the Postgresfirst IP.
2.6. Suspension
Notwithstanding anything to the contrary contained in this Agreement, Postgresfirst shall have the right to temporarily suspend, in whole or in part, the Customer's and/or any Authorized User's access to the Services (the "Service Suspension"), upon written notice to the extent reasonably practicable, if Postgresfirst reasonably determines that: (a) there is any actual or suspected threat, attack, or security risk to the Services, systems, or Postgresfirst IP; (b) the Customer's or any Authorized User's use of the Services disrupts, degrades, or poses a risk to the integrity, performance, or security of the Services or to any other customer, vendor, or third party; (c) the Services are being used for any fraudulent, unlawful, or unauthorized purpose, or in breach of this Agreement; (d) any fees payable by the Customer remain unpaid beyond the applicable due date; (e) such suspension is required pursuant to applicable law, court order, or direction of any governmental or regulatory authority; (f) the Customer 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 service provider whose services are required for the provision of the Services suspends or terminates Postgresfirst's access to such services. Postgresfirst shall use commercially reasonable efforts to notify the Customer of such Service Suspension, provide relevant updates, and restore access to the Services as soon as reasonably practicable after the cause of such suspension has been remedied, where capable of cure. Postgresfirst 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 Customer or any Authorized User as a result of any Service Suspension undertaken in accordance with this Clause. The Customer shall remain liable for all fees accrued prior to and during the period of Service Suspension.
2.7. Open Source Software
The Service contain or utilize certain components that are subject to "open source" or "free software" licenses ("Open Source Software"). Some of the Open Source Software is owned by third parties. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software.
2.8. Retained Rights
Except for the rights granted you in this Agreement, Postgresfirst retains all right, title and interest in and to the Service, Software and all components, and you acknowledge that you neither own nor acquire any additional rights in and to the Service not expressly granted by this Agreement.
2.9. Connection
Using the Services requires a remote connection (Internet or private network), suitable and sized for the intended use of the Services. The Client is responsible for this connection and bears all related costs. The Internet is subject to technical hazards (notably unreliable connection lines, fluctuating bandwidth, interruptions) and security risks beyond the control of Postgresfirst. Postgresfirst is not responsible for these failures and their consequences, in particular when they lead to unavailability and/or discontinuity of the Services.
2.10. Maintenance
Unless otherwise specified, Postgresfirst maintains the Infrastructures on which its Services are based, and updates and upgrades the operating systems and software made available to the Client as part of the Service.
2.11. Aggregated Statistics
Notwithstanding anything to the contrary in this Agreement, Postgresfirst may monitor Customer's use of the Services and collect and compile Aggregated Data. As between Postgresfirst and Customer, all right, title, and interest in Aggregated Data, and all intellectual property rights therein, belong to and are retained solely by Postgresfirst. Customer acknowledges that Postgresfirst may compile Aggregated Data based on Customer Data input into the Services. Customer agrees that Postgresfirst may (i) make Aggregated Data available to third parties including its other customers in compliance with applicable law, and (ii) use Aggregated Data to the extent and in the manner permitted under applicable law.
3. Order Services
3.1. Customer account. Customer must have a valid Customer Account to order Services. Customer creates a Customer Account on the Website by providing the necessary information (identity, contact details, e-mail address, etc.), All such information must be accurate and up to date throughout the duration of the Contract. If the Customer Account is created and used by a person acting on behalf of the Customer, this person represents and warrants to Postgresfirst that he/she has the authority and capacity to do so and to bind the Customer.
3.2. Verification and activation of the Customer Account. Prior to activation of the Customer Account and at any time during the term of the Contract, Postgresfirst reserves the right to verify the accuracy of the information provided and to request supporting documents. Postgresfirst may freely deactivate or refuse to activate the Customer Account in the event of incomplete, erroneous or fraudulent information.
3.3. Orders. When the Customer Account is activated, the Customer may order Services from the Website, or by using, if possible, the APIs made available by Postgresfirst. The Customer is solely responsible for the management of its Customer Account and the associated authentication means (such as IDs, passwords, etc.). All Orders placed via the Customer Account are deemed to have been placed by the Customer. Such Orders constitute acceptance of the Contract by the Customer. The conditions and timeframes for the provision of Service vary depending on the Service ordered. Some Services are made available only after Postgresfirst has received payment from the Customer. It is the Customer's responsibility to ensure that the terms and conditions for the provision of the Services ordered comply with the Customer's requirements.
3.4. Means of authentication. When the Customer creates a Customer Account, the Customer obtains its initial login details. For security reasons, the Customer must immediately change its password in accordance with industry-standard security criteria. For the entire duration of the Contract, the Customer is responsible for defining and managing the means of authentication (including login details and those of Users) and for keeping them confidential. In the event of loss or disclosure of a means of authentication, the Customer must, without delay: (a) take the steps available to secure its Customer Account and Services (in particular, renew the means of authentication concerned); and (b) inform Postgresfirst. The Customer is responsible for the consequences of fraudulent use of its Customer Account or Services using its means of authentication.
3.5. Closing a Customer Account. Customers may send a request to close their Customer Accounts by opening a ticket with Support through their Control Panel. The account will be closed once all Services associated with the Customer Account have been terminated and paid for. In the event of non-use of a Customer Account for more than twentyfour (24) months, Postgresfirst may close the Customer Account. In this case, the Customer is notified by e-mail of the inactivity of its Customer Account and is invited to reconnect within thirty (30) days to maintain it. Failing to do so, the Customer Account will be closed. It cannot be reactivated, and all associated data will be deleted. Postgresfirst will only keep the information it is required to keep according to its Privacy policy in order to comply with its legal obligations and enforce its rights.
4. Customer Responsibilities
4.1. General
Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Services and shall cause Authorized Users to comply with such provisions.
4.2. Third-Party Products
Postgresfirst may from time to time make Third-Party Products available to Customer or Postgresfirst may allow for certain Third-Party Products to be integrated with the Services to allow for the transmission of Customer Data from such Third-Party Products into the Services. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products. By authorizing Postgresfirst to transmit Customer Data from Third-Party Products into the Services, Customer represents and warrants to Postgresfirst that it has all right, power, and authority to provide such authorization.
4.3. Customer Control and Responsibility
Customer has and will retain sole responsibility for: (i) all Customer Data, including its content and use; (ii) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (iii) Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services ("Customer Systems"); (iv) the security and use of Customer's and its Authorized Users' access credentials; and (v) all access to and use of the Services directly or indirectly by or through the Customer Systems or its or its Authorized Users' access credentials, with or without Customer's knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
5. Support
During the Subscription Period, Postgresfirst will use commercially reasonable efforts to provide Customer with basic customer support via Postgresfirst's standard support channels during Postgresfirst's normal business hours.
6. Fees and Taxes
6.1. Fees
The prices of the Services ordered are those in force on the Website at the time the Order is placed. Unless otherwise stipulated, the prices are in INR. By way of exception, the Parties may agree on the price of Services by means of an Postgresfirst quotation, which will constitute the Order once signed by the Customer. When prices are stated exclusive of tax (in particular for Services for professionals), all taxes including Goods and Services Tax (GST), value added taxes, customs duty and similar duties and taxes applicable to the Services (excluding taxes on Postgresfirst's income) will be added to the price of the Services and will be due without this being considered as a price change. If applicable Indian laws require the withholding of Taxes, Customer may make such withholding tax payments and deduct it from the payments to be made to Postgresfirst services. Customer shall promptly submit to Postgresfirst appropriate proof of payment of the withheld Taxes (including but not limited to withholding tax certificates) within the time limit provided under the applicable laws. Customer shall provide Postgresfirst reasonable assistance in order to allow Postgresfirst to obtain the benefit of lower withholding of Taxes under applicable laws and if Customer provides any certificate from tax authorities requiring withholding of Taxes at "NIL"/ lower rate as provided under applicable laws, then Customer shall be obliged to withhold Taxes as per such certificate. Except in the case of special pricing, the price of the Services includes the cost of acquiring the licenses and rights to use the tools, software and operating systems used by Postgresfirst and/or, where applicable, made available to the Customer by Postgresfirst as part of the Services. It is the Customer responsibility to acquire and pay for the licenses and rights of use required to use the Content. For more details on how the prices of the Services are calculated, the Customer may refer to the Website and to the applicable Services. The intervention of an expert or the provision of reports concerning the Services are invoiced in addition at the rates in force.
6.2. Price changes.
Postgresfirst may change the prices of the Services at any time. For all new Orders, price changes are applicable immediately. For Services in use at the time of the price increase subscribed without a Commitment Period, and/or increases in power, electronic components or and Third-Party Products costs, the price may be modified by Postgresfirst after informing the Customer by e-mail at least thirty (30) days before the modification takes effect. After this period, the new prices will apply to the Client. Price paid by Customer are non-refundable.
6.3. Default and late payment
In the event of any default or delay in payment, including partial payment, the Customer shall be liable to pay late payment charges from the day immediately following the due date, along 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; and if such default or delay continues for a period exceeding four (4) calendar days from the date of notification issued by Postgresfirst to the Customer via email, then, without prejudice to any other rights or remedies available, all outstanding amounts under the Contract shall become immediately due and payable notwithstanding any agreed payment terms, and Postgresfirst shall have the right, without further notice, to suspend all or any part of the Services (including those already paid for), refuse any new orders or renewals, and/or terminate the Contract, in whole or in part.
6.4. Taxes
All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all taxes, duties, and charges of any kind imposed by any central, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Postgresfirst's income. To the extent that Postgresfirst is required by law to pay any such taxes, duties, or other charges to any governmental or regulatory authority, Postgresfirst may invoice Customer for such taxes, duties, or other charges and Customer will pay such invoiced amounts in accordance with this Agreement.
6.5. Credit Authorization and Fraud Prevention
To mitigate billing fraud and unauthorized usage, Postgresfirst reserves the right to implement reasonable credit authorization, payment validation, and usage control measures, including but not limited to: (i) preauthorization or validation of Customer's payment method upon account creation or prior to provisioning Services; (ii) applying initial or ongoing spend limits, usage caps, or throttling mechanisms to accounts with insufficient billing history or elevated risk profiles; (iii) suspending or restricting access to Services where Postgresfirst reasonably suspects fraudulent activity, failed payment authorization, or violation of usage terms; (iv) delaying the provisioning of high-cost Services or infrastructure pending verification or authorization; and (v) employing fraud-detection tools and analytics, including third-party services, to assess and manage risk. Postgresfirst will make commercially reasonable efforts to notify Customer prior to suspending or restricting Service access under this Section, except in cases of suspected fraud, payment failure, or material risk to Postgresfirst's infrastructure or systems. Customer agrees to cooperate with any reasonable verification or remediation steps required by Postgresfirst to restore access.
7. Confidential Information
7.1. 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.
7.2. 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.
7.3. 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.
8. Duration, Renewal and Termination of Services
8.1. Duration of Services.
8.1.1. The Services shall be made available to the Customer strictly during the Subscription Period (as defined in Clause 16.1), unless earlier terminated in accordance with this Agreement. The Customer may access and use the Services during such period in accordance with the terms of this Agreement and the applicable Order. For the avoidance of doubt, the Customer's use or non-use of the Services shall not affect the continuance of the Subscription Period or the Customer's payment obligations thereunder. Any request by the Customer to discontinue or not renew the Services, whether through the Control Panel or by contacting Support, shall be treated as a request for non-renewal and shall be effective only if made in accordance with the notice requirements set out in Clause 17. The Company may require confirmation from the Customer to process such request.
9. Privacy Policy
9.1. Postgresfirst's privacy policy, available at https://postgresfirst.com/privacy-policy.php ("Privacy Policy") is subject to change as described therein. By accessing, using, and providing information to or through the Services, Customer acknowledges that it has reviewed the Privacy Policy, and consents to all actions taken by Postgresfirst with respect to Customer's information in compliance with the then-current version of the Privacy Policy. Customer will ensure that its Customer Data, and its use of such Customer Data, complies with this Agreement and any applicable law. Customer is responsible for properly configuring and using the Services and taking its own steps to maintain appropriate security, protection, and backup of Customer Data. Customer may not store any payment cardholder information using the Services without Postgresfirst's prior written approval.
10. Governing law and jurisdiction.
10.1. 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.
11. Intellectual Property Ownership; Feedback
11.1. Postgresfirst IP
Customer acknowledges that, as between Customer and Postgresfirst, Postgresfirst owns all right, title, and interest, including all intellectual property rights, in and to the Postgresfirst IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
11.2. Customer Data
Postgresfirst acknowledges that, as between Postgresfirst and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data.
11.3. Feedback
If Customer or any of its employees or contractors sends or transmits any communications or materials to Postgresfirst by mail, email, telephone, or otherwise, suggesting or recommending changes to the Postgresfirst IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Postgresfirst is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback so long as Postgresfirst does not identify Customer as the source of the Feedback without Customer's prior approval.
12. Warranties; Disclaimer
12.1. Customer
Customer represents, warrants, and covenants to Postgresfirst that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Postgresfirst and processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any intellectual property, privacy or other rights of any third party or violate any applicable laws or regulations.
12.2. Disclaimer
Notwithstanding anything to the contrary, the Postgresfirst IP is provided "as is" and Postgresfirst hereby disclaims all warranties, whether express, implied, statutory, or otherwise. Postgresfirst specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement, and all warranties arising from course of dealing, usage, or trade practice. Postgresfirst makes no warranty of any kind that the Postgresfirst IP, or any products or results of the use thereof, will meet Customer's or any other person's requirements, operate without interruption, achieve any intended result, be compatible or work with any software, system or other services, or be secure, accurate, complete, free of harmful code, or error free.
13. Warranty of Customer
13.1. Customer represents and warrants that:
13.1.1. it is an Eligible Person;
13.1.2. if an individual acting as guardian for a minor, has legal authority to bind such minor and shall be jointly and severally liable for all obligations hereunder; and
13.1.3. has full right, power, and authority to enter and perform this Agreement. Use of Services by minors without guardian authorization renders the guardian personally liable for all resulting obligations, damages, and fees.
13.1.4. Postgresfirst may suspend or terminate access for any non-compliant Customer.
14. Indemnification
14.1. Postgresfirst Indemnification
14.1.1. Postgresfirst shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party's Patents, copyrights or trade secrets; provided that Customer promptly notifies Postgresfirst in writing of the claim, cooperates with Postgresfirst, and allows Postgresfirst sole authority to control the defense and settlement of such claim.
14.1.2. If such a claim is made or appears possible, Customer agrees to permit Postgresfirst, at Postgresfirst's sole discretion: to (i) modify or replace the Services, or component or part thereof, to make it non-infringing; or (ii) obtain the right for Customer to continue use. If Postgresfirst determines that neither alternative is reasonably commercially available, Postgresfirst may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
14.1.3. This will not apply to the extent that the alleged infringement arises from: (i) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Postgresfirst or authorized by Postgresfirst in writing; (ii) modifications to the Services not made by Postgresfirst; (iii) Customer Data; or (iv) Third-Party Products.
14.2. Customer Indemnification
Customer shall indemnify, hold harmless, and, at Postgresfirst's option, defend Postgresfirst from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party's intellectual property or other rights and any Third-Party Claims based on Customer's or any Authorized User's (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; or (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by Postgresfirst or authorized by Postgresfirst in writing; in each case provided that Customer may not settle any Third-Party Claim against Postgresfirst unless Postgresfirst consents to such settlement, and further provided that Postgresfirst will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
15. Limitations of Liability
EXCEPT FOR: (I) A PARTY'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS; (II) A PARTY'S INDEMNITY OBLIGATIONS; OR (III) A PARTY'S GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT ("EXCLUDED LIABILITIES"), (A) IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (1) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (2) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (3) LOSS OF GOODWILL OR REPUTATION; (4) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (5) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE; AND (B) IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), TOTAL LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID AND/OR PAYABLE TO POSTGRESFIRST UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
16. Subscription Period and Termination
16.1. Subscription Period
The term of this Agreement shall commence on the Effective Date and shall continue for the period specified in the applicable Order (the "Initial Subscription Period"), unless earlier terminated in accordance with this Agreement. Upon expiry of the Initial Subscription Period, this Agreement shall automatically renew for successive periods of the same duration (each a "Renewal Subscription Period"), unless either Party provides written notice of non-renewal at least thirty (30) days prior to the expiry of the then-current Subscription Period. The Initial Subscription Period together with all Renewal Subscription Period(s) shall collectively constitute the "Subscription Period".
17. Termination
In addition to any other express termination right set forth in this Agreement,
17.1. Postgresfirst may terminate this Agreement, if Customer: does not pay the Fee or any other sums payable under this Agreement when due, the Postgresfirst reserves the right to terminate the Subscription and prevent the Customer from accessing and/or using the Software immediately.
17.2. Either Party may terminate this Agreement, immediately, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) calendar days after the non-breaching Party provides the breaching Party with written notice of such breach (iii) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (iv) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (v) makes or seeks to make a general assignment for the benefit of its creditors; or (vi) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
18. Effect of Expiration or Termination
Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Postgresfirst IP and, without limiting Customer's obligations under Section 6, Customer shall delete, destroy, or return all copies of the Postgresfirst IP and certify in writing to the Postgresfirst that the Postgresfirst IP has been deleted or destroyed. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
19. Miscellaneous.
19.1. Entire Agreement
This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement; and (ii) second, any other documents incorporated herein by reference.
19.2. Notices
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement or as identified on the Order Form (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized signed for on delivery courier (with all fees pre-paid), or email (with confirmation of transmission). All email Notices to Postgresfirst must be sent to legal@postgresfirst.com. Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section 14(b). Notwithstanding the foregoing, Customer hereby consents to receiving electronic communications from Postgresfirst, which may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Services. Customer agrees that any notices, agreements, disclosures, or other communications that Postgresfirst sends to Customer electronically will satisfy any legal communication requirements, including that such communications be in writing.
19.3. Force Majeure
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.
19.4. Amendment and Modification
Postgresfirst reserves the right to modify or update these Terms of Service from time to time; provided that any such amendments shall become effective only upon expiry of at least thirty (30) days' prior notice to the Customer, which shall be provided by email, through the Services, or by any other reasonable means, and the date of last modification shall be updated accordingly. Continued use of the Services after the effective date of such amendments shall constitute acceptance of the revised Terms of Service, and if the Customer does not agree to such changes, it must discontinue use of the Services prior to the effective date.
19.5. Waiver
No failure or delay by either Party in exercising any right or remedy available to it in connection with this Agreement will constitute a waiver of such right or remedy. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the Party granting the waiver.
19.6. Severability
If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
19.7. Assignment
Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Postgresfirst. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
19.8. Publicity
Postgresfirst may identify Customer as a user of the Services and may use Customer's name, logo, and other trademarks in Postgresfirst's customer list, press releases, blog posts, advertisements, and website (and all use thereof and goodwill arising therefrom shall inure to the sole and exclusive benefit of Customer). Otherwise, neither Party may use the name, logo, or other trademarks of the other Party for any purpose without the other Party's prior written approval.
Contact Us
If you have any questions on these Terms, please contact us by email legal@postgresfirst.com
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