Terms of Use
We are LeverLattice Innovations Private Limited ("Company," "we," "us," "our", “Supplier”, “xpuls.ai”), a company registered at Hyderabad, India. We operate the website https://xpuls.ai (the "Site"), as well as any other related products and services that refer or link to these legal terms (the "Legal Terms") (collectively, the "Services"). You can contact us by email at [email protected], or by mail to Acropolis Apartments, A-Lane, D.D.Colony, Hyderabad, India. These Legal Terms constitute a legally binding agreement made between you, whether personally or on behalf of an entity ("you", “Customer”), and the Company, concerning your access to and use of the Services. You agree that by accessing the Services, you have read, understood, and agreed to be bound by all of these Legal Terms. These Terms of Service, published by the Company govern the use of and access to our Services by you (the "Customer") and together with the Order Form shall hereafter be referred to as the "Agreement". Each of the Customer and the Supplier shall be a "Party" and together the "Parties". IF YOU DO NOT AGREE WITH ALL OF THESE LEGAL TERMS, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SERVICES AND YOU MUST DISCONTINUE USE IMMEDIATELY. Supplemental terms and conditions or documents that may be posted on the Services from time to time are hereby expressly incorporated herein by reference. We reserve the right, in our sole discretion, to make changes or modifications to these Legal Terms from time to time. We will alert you about any changes by updating the "Last updated" date of these Legal Terms, and you waive any right to receive specific notice of each such change. It is your responsibility to periodically review these Legal Terms to stay informed of updates. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any revised Legal Terms by your continued use of the Services after the date such revised Legal Terms are posted. The Services are intended for users who are at least 18 years old. Persons under the age of 18 are not permitted to use or register for the Services By purchasing, accessing, or using the Services, the Customer acknowledges that Customer has read and understood the terms of the Agreement and agrees to be bound by its terms and conditions. The following terms and conditions shall govern the provision and use of the Services. The Services are intended for business use only. 1. Definitions and Interpretation In addition to any terms defined in the Order Form, the following definitions and rules of interpretation apply to this Agreement: 1. “Affiliate” means an entity that directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party. As used herein, “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of fifty percent (50%) or more of the voting equity securities or other equivalent voting interests of the entity. 2. “API” means any application programming interface(s) operated or used by the Supplier for provision of the Services to the Customer. 3. "Application Services” shall mean the online, web-based, and mobile-based applications provided by xpuls.ai through a xpuls.ai Site, ordered by Customer’s selection and acceptance of a Subscription Plan by means of (i) the online purchasing process on a website operated by xpuls.ai or its Affiliates or (ii) an executed Order Form. It is also referred to as Software. 4. “Authorized Users” means those employees and independent contractors of the Customer who are authorised by the Customer to use/access the Software/Application Services under this Agreement. 5. “Business Day” means a day other than a Saturday, Sunday, or public holiday in Hyderabad, India when banks in Hyderabad, India are open for business. 6. “Confidential Information” means all confidential or proprietary information (however recorded or preserved) disclosed by one party or its employees, officers, subcontractors, representatives or advisers (together “Representatives”) to the other party and the other party’s Representatives, including the terms of this Agreement, the business, affairs, customers, clients, suppliers, plans, intentions, market opportunities, operations, processes, products, services, data, know-how, or trade secrets of the disclosing party, including anything specified as being Confidential Information in clause 12. 7. “Customer Data” means any commercial or proprietary data which is uploaded or otherwise submitted to the Software directly by the Customer, its Authorised Users, or by the Supplier on the Customer's behalf, including any data submitted into the Software indirectly via any third party application used by the Customer. 8. "Data Protection Legislation" has the meaning ascribed to it in the Data Processing. The terms "Personal Data", "Process", "Processor", "Controller", "Data Subject Request", "Standard Contractual Clauses", "Supervisory Authority", "personal data breach", "technical and organizational measures" and "Sub-processor" shall have the meanings ascribed to them in the Data Protection Legislation. 9. “Datapoint” means a single completion by the machine learning model of the Software, e.g., a prompt and completion from GPT-3, and is a single row in the Supplier's data table and the lowest level at which the Supplier attributes feedback. 10. “Datapoint Limit” means the number of Datapoints which may be processed by the Customer and Authorised Users under the Customer's Subscription Tier each month, as detailed in the Order Form. 11. “Derived Data” means data derived from the Customer’s use of the Services or Supplier processing of Customer Data, including: (i) data which is processed and stored as mathematical constructs; and (ii) statistical or aggregated data, but shall exclude any Personal Data. 12. “Documentation” means those printed or online instructions, manuals, screens, and diagrams distributed or otherwise provided by the Supplier that pertain to the Application Services or the provision of Professional Services and user guides and other user documentation that accompanies or is made generally available for the Application Services by xpuls.ai. 13. “Effective Date” means, unless otherwise specified in the Order Form, the date at which Customer has been provided with access to the Application Services. 14. “End User” means a user of Customer’s mobile applications, mobile websites or web properties with which Customer has integrated the Application Services. 15. “Excess Burden” means the Application Services are being used to engage in denial of service attacks, spamming, or any illegal activity, or/ use of the Application Services is causing immediate, material and ongoing harm to xpuls.ai or xpuls.ai’s other customers. 16. "Fees" means the fees (if any) payable in consideration of the provision of the Services. 17. “Free Trial” means where access to the Software has been granted to the Customer by the Supplier on the basis of beta access, a free trial or pilot period. 18. “Force Majeure” has the meaning set out in clause 17.5. 19. “Initial Term” means the subscription period selected by Customer in the Order Form, which period shall commence on the Effective Date. 20. “Insolvency Event” means, with respect to a Party, (a) entering into a composition or arrangement with its creditors other than for the sole purpose of a solvent reconstruction; (b) an inability to pay its debts as they become due; (c) a person becoming entitled to appoint or appointing a receiver or an administrative receiver over that Party’s assets; (d) a creditor or encumbrancer attaches or takes possession of the whole or any part of that Party's assets which is not discharged within 14 days; or (e) any event occurs, or proceeding is taken, in any jurisdiction that has an effect equivalent or similar to any of the events mentioned in (a) to (d) above. 21. “Intellectual Property Rights” means patents, rights to inventions, copyright and neighbouring and related rights, trade marks, goodwill and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world. 22. "Normal Business Hours" means 9.00 am to 5.00 pm local IST time during a Business Day. 23. "Order Form" means the form agreed between the Parties setting out the details of the Services being contracted for by the Customer and governed by these Terms of Service including without limitation statements of work, signed by both parties and incorporating the terms of this Agreement by reference. 24. “Overage Fees” means the volume based charges set out in the Order Form which are payable by the Customer in relation to each Datapoint processed by the Customer in excess of the Customer's Datapoint Limit and includes any other fees as agreed between the parties. 25. “Payment Method" means a current, valid, accepted method of payment, as may be updated from time to time by Supplier, and which may include payment via a third party payment processor. 26. “Personal Information” means any Customer Content processed by xpuls.ai pursuant to this Agreement, relating to an identified or identifiable natural person or household; where an “identifiable natural person” means an individual who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to the individual’s physical, physiological, mental, economic, cultural or social identity. 27. "Professional Services" means professional services provided by Supplier for Customer's use of the Software and any other service as agreed between the parties through a SOW 28. “Prohibited Information” shall mean (i) information under regulatory or contractual handling requirements (e.g., Payment Card Industry Data Security Standards), including, but without limitation, financial account numbers, debit or credit card information, magnetic stripe data, or card verification values; (ii) government issued personal identifiers, including, but without limitation, driver’s license numbers, passport numbers, or other state issued identification numbers; (iii) bio-metric identifiers, including without limitation, genetic data, iris scans, thumb or finger prints, cardiac rhythm identifiers, facial modelling data, or health data; (iv) personally identifiable information collected from children under the age of 13 or from online services directed toward children; (v) real time geo-location data which can track or identify an individual’s precise movements; (vi) passwords, authentication/authorization credentials, business secrets deemed highly confidential (e.g., highly-confidential business strategies and communications, sensitive attorney-client privileged and confidential communications); (vii) export-controlled information for which Customer has not obtained all required export licenses or government approvals; or (viii) any data constituting “sensitive personal information,” “sensitive data,” “special categories of data” or similar terms defined under applicable data protection laws; or (ix) other information the unauthorized disclosure of which could cause material, severe, or catastrophic harm or impact to any data subjects or third parties. 29. “Renewal Term” means a period of time equal to the Initial Term, commencing on expiry of the Initial Term or the immediately preceding Renewal Term (as appropriate). 30. "Services" means the provision by the Supplier of access to the Software to allow Authorised Users to access and use the Software on the Customer's behalf and any Professional Services to be provided under this Agreement (in each case as applicable and given the context in which the term "Services" is used). 31. “Software” means the Supplier's software application(s) services, as may be further described in the Order Form, for which Customer has requested a licence (including any related API or Website from time to time) to which the Customer will be granted remote access pursuant to the terms and conditions of this Agreement. 32. “Subscription Fees” means the fees detailed in the Order Form which are payable by the Customer to the Supplier for use of the Software (as amended from time to time in accordance with the terms and conditions of this Agreement). 33. “Subscription Tier” means the subscription plan selected by the Customer at the time of subscribing to the Services, as set out in the Order Form. 34. “Term” means the Initial Term and successive Renewal Terms. 35. “Third Party Data” means data, information, works, and materials made available to the Customer by a Third Party Provider which is accessible through the Software. 36. “Third Party Data Provider” means any provider of Third Party Data. 37. “Virus” means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware, network, data, or the user experience, including worms, Trojan horses, viruses and other similar things or devices. 38. “Website” means any website operated by Supplier through which the Software is delivered to or accessed by the Customer. In this Agreement: (a) clause, schedule and paragraph headings shall not affect the interpretation of this Agreement; (b) unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular; (c) a reference to writing or written includes e-mail; (d) references to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement; (e) any words following the terms including, include, in particular for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms. 2. Access to application services/software 1. Subject to Customer's payment of the Fees and compliance with the terms and conditions of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable, non-sublicensable right to permit the Authorised Users to use the Software during the Term 2. Restrictions: 1. The Customer shall not, and shall procure that the Authorised Users shall not, access, store, distribute or transmit any Viruses or any material during its use of the Software that is unlawful, harmful, infringing, offensive, discriminatory, or which facilitates illegal activity or depicts sexually explicit images or causes damage or injury to any person or property. The Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's and Authorised Users' access to any material that breaches the provisions of this clause 2.2. 2. Except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties, the Customer shall not, and shall not attempt to, copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means, or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software (including its object code and source code). 3. The Customer shall not, and shall not attempt to: (a) access all or any part of the Software in order to build a product or service which competes with the Software; (b) make the Software or any of the Services available to any third party except to Authorised Users; or (c) attempt to obtain, or assist any third party in obtaining, access to the Software, other than as provided under this clause 2 4. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and, in the event of any such unauthorised access or use, promptly notify the Supplier. 5. The Customer acknowledges and agrees that each Authorised User must keep a secure password for their use of the Software which must be kept confidential and secure against unauthorised access or use (including by any other Authorised User). 6. Without prejudice to the above, Customer shall not and shall not permit or authorize any third party, including, but not limited to its Authorized Users, to: (i) copy, rent, sell, lease, sublicense, distribute, assign, or otherwise transfer or encumber rights to the Application Services, or use the Application Services for the benefit of any third party, or make the Application Services available to anyone other than its Authorized Users; (ii) use the Application Services to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws, or to process, send or store Prohibited Information, infringing or unlawful material, viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (iii) circumvent or disable any digital rights management, usage rules, or other security features of the Application Services, or otherwise attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Application Services or the data contained therein; (iv) modify, copy, translate, enhance, decompile, disassemble, reverse engineer or create derivative works based on the Application Services, or any portion thereof; (v) access or use the Application Services for the purpose of building a competitive product or service or copying its features or user interface; (vi) remove, alter, or obscure any copyright, trademark or other proprietary notices appearing in or on the Application Services; or (vii) use the Application Services in a manner that overburdens, or that threatens the integrity, performance, or availability of, the Application Services. 3. Maintenance: 1. xpuls.ai does not guarantee the maintenance or continued function of, and xpuls.ai reserves the right to change, discontinue, delete or deprecate, at any time and at xpuls.ai’ sole discretion, any product feature, support service and any custom report template that may be made available to or accessible by Customer, including through the Application Services. 4. Excess Burden: 1. xpuls.ai reserves the right to restrict, suspend, or terminate access to the Application Services at any time, if in xpuls.ai’ sole determination, Customer is using the Application Services in a manner that violates applicable laws or the terms of this Agreement, fails to make payment to xpuls.ai, or creates an Excess Burden on xpuls.ai’ systems. 5. Acceptable Use Policy: 1. Customer will not use the Application Services to: (i) upload, post, email, or otherwise transmit any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (ii) harm xpuls.ai or third parties in any way; (iii) impersonate any person or entity, or otherwise misrepresent Customer’s affiliation with a person or entity; (iv) upload, post, email, or otherwise transmit any content that Customer does not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (v) upload, post, email or otherwise transmit any content that infringes any patent, trademark, trade secret, copyright, or other right of any party; (vi) upload, post, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (vii) interfere with or disrupt the Application Services or servers or networks connected to the Application Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Application Services; or (viii) intentionally or unintentionally violate any applicable local, state, national or international law or regulation. 3. Services 1. Use of Application Services: 1. Subject to the terms of this Agreement, xpuls.ai grants to Customer a limited, non-exclusive, non-transferable, revocable right to access and use the Application Services solely for Customer’s internal business purposes and not for resale or further distribution. 2. Customer’s right to access and use the Application Services shall be subject to Customer’s compliance with the terms and conditions contained herein and limited to the Subscription Plan and the Subscription Term purchased by Customer. The Customer has the option of self hosting or Supplier’s cloud hosting. 2. Authorized Users: 1. Subject to the limits of the applicable Subscription Plan, Customer may allow its Authorized Users to access and use the Application Services; provided Customer shall be responsible for the acts and omissions of its Authorized Users in compliance with Customer’s obligations under this Agreement. 3. Subscription Plans: 1. The Application Services are provided through existing and legacy Subscription Plans. For all Subscription Plans: a “Data Point” or “Event” shall mean a JSON object comprised of an event (string) and a dictionary of properties (object) that is stored by the Application Services; a “User Profile” shall mean a JSON object comprised of an identifier or identifying string intended to indicate a unique user and a dictionary of properties (object) that is stored by the Application Services. 2. Free Trial/Explorer 1. Application: The provisions of this clause 3.3.2 shall apply only where the Order Form refers to the Customer subscribing to a Free Trial. In the event of any conflict or inconsistency between the other provisions of this Agreement as they relate to the Free Trial and the provisions of this clause 3.3.2, the provisions of this clause 3.3.2 shall prevail to the extent of the conflict or inconsistency. The Customer agrees to follow the free trial's limits, such as storage, user limit, and bandwidth. The Supplier provides up to 30,000 logs per month for the Customer to use with a 15 days log retention. 2. Duration: During the Trial Period, the Supplier will make the Software available to the Customer on a trial basis until the earlier of: (a) expiry of the Trial Period, (b) the date on which any paid subscription to the Software commences, and (c) termination of the Trial Period by us at any time in our sole discretion by giving notice to you in writing. 3. Customer Data during the Trial Period: Any Customer Data uploaded or otherwise processed using the Software during the Trial Period will become inaccessible upon termination or expiry of the Free Trial and the Supplier shall be entitled to delete it, unless the Customer purchases a subscription to the Software before the end of the Trial Period. Nothing in the preceding sentence shall restrict or prevent the Customer from maintaining backups of, or removing, Customer Data during the Trial Period. 4. Disclaimer: During the Trial Period, the Software is made available to the Customer “as is”, and any use by the Customer of the Software during the Trial Period will be at the Customer’s sole risk. The Supplier makes no warranties relating to the Software throughout the Trial Period and expressly disclaims all warranties, express or implied, including without limitation those of merchantability, fitness for a particular purpose, or that the Customer’s use of the Software during the Trial Period will be uninterrupted, timely, secure or free from error. The foregoing provisions of this clause 3.3.2 shall be enforceable to the maximum extent permitted by applicable law. The following provisions of this Agreement shall not apply during the Trial Period: 1. any and all provisions relating the provision of support services or levels of support 2. covenants related to intellectual property rights 1. Limitation of Liability: Under this clause 3.3.2, the Supplier’s total liability to the Customer for any loss or damage relating to the Trial Period shall not exceed an amount equal to Rs. 5000/-. 3. AI Builder 2. Application: The provisions of this clause 3.3.3 shall apply only where the Order Form refers to the Customer subscribing to AI Builder. In the event of any conflict or inconsistency between the other provisions of this Agreement as they relate to the AI Builder and the provisions of this clause 3.3.3, the provisions of this clause 3.3.3 shall prevail to the extent of the conflict or inconsistency. The Customer agrees to follow the AI Builder's limits, such as storage, user limit, and bandwidth. The Supplier provides up to 1 Million logs per month for the Customer to use with a 30 days log retention. The Customer has the option to upgrade at $2 per 100,000 logs and also upgrade retention period at additional costs. The Supplier guarantees 99.9% SLA on all APIs. 4. Enterprise 1. Application: The provisions of this clause 3.3.4 shall apply only where the Order Form refers to the Customer subscribing to Enterprise. In the event of any conflict or inconsistency between the other provisions of this Agreement as they relate to the Enterprise and the provisions of this clause 3.3.4, the provisions of this clause 3.3.4 shall prevail to the extent of the conflict or inconsistency. The Customer agrees to follow the Enterprise's limits, such as storage, user limit, and bandwidth. The Supplier provides unlimited logs per month for the Customer to use with configurable log retention period. The Customer has the option of managed self hosting. 5. Pricing: 1. xpuls.ai reserves the right, in its sole discretion, to modify the pricing of its services and Subscription Plans, add new services or pricing plans for additional fees and charges, or amend fees and charges for existing services, at any time without prior notice to Customer. Notwithstanding the foregoing, and except with respect to the overage fees described in Clause 4, unless otherwise provided in an Order Form, the fees set forth on an Order Form shall remain fixed for the duration of the Subscription Term set forth therein. 4. Fees & Payments 1. Except where clause 3.3.1 (Free Trial) applies, the Fees shall consist of the following elements: 1. Subscription fees 2. Overage fees which shall be payable in accordance with the Order Form and this clause 2. The Supplier will monitor the Customer’s use of the Services and will automatically apply the Overage Fees if the number of Datapoints processed by the Customer and Authorised Users (according to the records of the Supplier) in a month exceeds the Datapoint Limit for that month. The Customer permits the Supplier to monitor the Services in order to establish the number of Datapoints processed by the Customer using the Software. 3. Subscription Plans are billed in advance of the Subscription Term and automatically renew for an equivalent renewal term, at the end of the Subscription Term, unless otherwise stated in an Order Form. Customer may opt not to renew for an equivalent renewal term by writing to xpuls.ai at [email protected] 4. The Customer shall pay the fees without set-off in respect of any liability of the Supplier and, unless otherwise specified in the Order Form, according to the following frequency: 1. monthly in advance in relation to the Subscription Fees, commencing on the Effective Date; 2. monthly in arrears in relation to the Overage Fees on the date on which the Overage Fees are applied 5. If the Supplier has not received payment by the due date, and without prejudice to any other rights and remedies of the Supplier, the Supplier may, without liability: (i) disable the Customer's and all Authorised Users’ access to all or part of the Software until the invoice(s) concerned are paid in full; and/or (ii) charge the Customer interest on a daily basis on any overdue amounts at an annual rate equal to 1.5%, commencing on the due date and continuing until fully paid, whether before or after judgment 6. Fees are payable in the currency detailed in the Order Form and are non-cancellable and non-refundable. Fees do not include any local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for payment of all Taxes associated with its purchases hereunder (excluding taxes based on xpuls.ai’ net income or property), and any related penalties and interest. Customer will make all required payments to xpuls.ai free and clear of, and without reduction for, any withholding taxes. Customer will, upon xpuls.ai’ request, provide xpuls.ai with official receipts issued by appropriate taxing authorities, or such other evidence as xpuls.ai may reasonably request, to establish that such Taxes have been paid. Supplier reserves the right to include & charge additional amount as tax as and when the same is made applicable under the applicable laws. 7. To use the Services, the Customer must provide one or more Payment Method which the Customer authorises the Supplier to charge in accordance with this Agreement. The Supplier may refuse to grant access to the Software or the Services, if any payment is not successfully settled due to expiration, insufficient funds or otherwise. For some Payment Methods the issuer may charge certain fees, such as foreign transaction fees or other fees relating to the processing of the Payment Method, which shall be due and payable by the Customer. Customer may have to accept the terms and conditions of the issuer of the Payment Method, or the third party payment processor used by Customer to make the relevant payment. 8. In this regard, Customer authorizes: (i) the card issuer to pay all such amounts and (ii) xpuls.ai (or its billing agent) to charge the credit card account until the Application Services are terminated as set forth herein; provided, however, that if payment is not received from the credit card issuer, Customer agrees to pay all amounts due upon demand. Customer understands and agrees that it must provide current, complete and accurate billing and payment information. Additionally, Customer agrees to pay all costs of collection, including attorney’s fees and costs, on any outstanding balance. In certain instances there may be banking or financial institution transaction fees or related charges, which Customer understands and agrees it shall be responsible to pay. 5. Third Party Services 1. The Application Services or Documentation may display, contain links to, or connect with third-party products, services, and websites (collectively, “Third-Party Services”). Any statements, services, offers, or other information that constitutes part of the Third-Party Services made available by third parties on the Application Services or xpuls.ai Sites, or which are accessible through the Application Services are those of the respective authors or producers and not of xpuls.ai or its stockholders, directors, officers, employees, agents, or representatives. xpuls.ai does not control Third-Party Services and does not guarantee the accuracy, integrity or quality of such Third-Party Services. Third-Party Services are governed solely by the terms and conditions of those Third-Party Services and xpuls.ai is not responsible for the performance of and does not endorse any Third-Party Services or any information or materials advertised in any Third-Party Services. 2. If Customer installs, enables or uses Third-Party Services with the Application Services that requires the transfer of Customer Content for the Third-Party Services to interoperate with the Application Services, Customer grants xpuls.ai permission to allow the provider of the Third-Party Services to access or receive Customer Content for the interoperation of that Third-Party Service with the Application Services. xpuls.ai is not responsible or liable, directly or indirectly, for any transferring, transmitting, damage, disclosure, modification, deletion or loss caused to Customer or Customer Content by Customer’s use of or reliance on any Third-Party Services and xpuls.ai does not guarantee the interoperability of such Third-Party Services with the Application Services. It is Customer’s responsibility to evaluate the information, opinion, advice, or other services available on and through the Application Services. xpuls.ai does not provide the equipment required to access the Application Services. Customer is responsible for all fees charged by third parties related to Customer’s access and use of the Application Services (e.g., charges by Internet service providers). 6. Professional & add on services 1. The parties may agree to have Company perform certain Professional Services for Customer, by describing such Professional Services and any fees therefor on (i) an Order Form, or (ii) on a separate, mutually-executed Statement of Work (“SOW”) which references this Agreement and will then be a part of this Agreement after acceptance by Company. 2. Upon payment of any applicable fees set forth in each Order Form or SOW, Company agrees to use reasonable commercial efforts to provide the Professional Services described therein for the term specified therein (if any) 3. If Company provides Professional Services beyond those agreed in an Order Form or SOW yet upon mutual consent (including, without limitation, in excess of any hours estimates set forth therein), Customer will pay Company the agreed consultation rates for the additional Professional Services. 4. xpuls.ai Ownership. The Parties hereby agree that the specified Professional Services primarily involve advising Customer on the implementation of the Application Services and integration of Customer’s data with and into the Application Services. Excluding Customer Confidential Information and Customer Content, xpuls.ai retains all right, title, and interest in and to the Professional Services, including all related intellectual property rights inherent therein. xpuls.ai will own all rights, title and interest in any xpuls.ai Materials, including all intellectual property rights therein. In the event that any part of the xpuls.ai Materials is held to be owned by the Customer due to the performance of Professional Services by xpuls.ai, Customer hereby assigns to xpuls.ai all right, title and interest therein or to the extent such assignment is not permitted or effective, hereby grants to xpuls.ai a perpetual, irrevocable, exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to any such part of the xpuls.ai Materials, including but not limited to an assignable license to incorporate the xpuls.ai Materials into the Application Services. 7. Supplier’s Obligations 1. Subject to the payment of the Fees when due, the Supplier shall (a) provide the Services to the Customer on and subject to the terms and conditions of this Agreement; and (b) use reasonable care and skill in the provision of the Professional Services. 2. Notwithstanding clause 7.1, the Customer acknowledges that the Software may evolve over time and that functionality may be added or removed from time to time 3. The Supplier does not warrant that the Customer's use of the Software will be uninterrupted or error-free, or that the Software and/or the information or results obtained by the Customer through its use of the Software will meet the Customer's requirements. The Supplier is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of Customer Data over communications networks and facilities, including the internet, and the Customer acknowledges that the Software may be subject to limitations, delays, and other problems inherent in the use of such communications facilities 4. The Supplier may process the Customer's personal data in the performance of its obligations under this Agreement. 5. Where Supplier has agreed to provide Professional Services, such Professional Services shall be carried out in accordance with the Documentation/SOW. 6. This Agreement shall not prevent Supplier from entering into similar agreements with third parties, or from independently developing, using, selling, or licensing documentation, products and/or services which are similar to those provided under this Agreement 8. Customer’s Obligations 1. The Customer shall cooperate with the Supplier in all respects in relation to this Agreement, including granting to the Supplier all necessary access to information and Customer Data as may be required by the Supplier from time to time to fulfil its obligations under this Agreement, including granting to the Supplier full and unrestricted access to the Customer’s account in order for the Supplier to provide support for, or to fix any errors in, the Software 2. The Customer shall be responsible for setting the access rights for each of its Authorised Users and shall ensure that all Authorised Users' use of the Software is strictly in accordance with the terms and conditions of this Agreement. The Customer shall be responsible for any Authorised User's breach of this Agreement 3. The Customer shall be solely responsible for procuring and maintaining all network connections and telecommunications links from its systems to the Supplier’s data centres. 4. The Customer shall comply with all applicable laws and regulations in the exercise of its rights and the performance of its obligations pursuant to this Agreement. 9. Suspension of Service 1. The Supplier may suspend the access to or use of the Software by the Customer and any or all of the Authorised Users if the Supplier determines or reasonably suspects that use of the Services: 1. is in breach of this Agreement; 2. poses a security risk; 3. is adversely impacting or may adversely impact (as appropriate) the Services or any service provided by the Supplier to a third party; 4. where it is in the legitimate interests of the Supplier to do so, including where there is a reasonable risk that the Customer may default in the payment of the Fees, and the Supplier shall use its reasonable endeavours to notify the affected Authorised Users and as soon as is reasonably practicable, and may use any reasonable means to do so. Access shall only be reinstated once the Supplier is reasonably satisfied that the aforementioned suspension events have been suitably resolved 2. Where the Supplier suspends access to or use of the Software under clause 9.1, the Customer remains responsible for all Fees 10. Third Party Data 1. The Customer acknowledges that Third Party Data is accessible by means of the Software in the form and manner, subject to such restrictions and other terms, according to the timing, and for so long as, the Third Party Data are put into circulation by the relevant Third Party Data Provider; accordingly, the Customer shall be responsible for obtaining any and all permissions, permits, licences, and other requirements of access (including, where relevant, opening and maintaining accounts with the relevant Third Party Data Provider) to the Third Party Data at all times and the Supplier undertakes no obligation or responsibility, and excludes all liability, under or in connection with this Agreement in relation to any and all Third Party Data, the acts or omissions of a Third Party Data Provider, or the systems used by the Third Party Data Provider, including any and all of the following: 1. the failure of a Third Party Data Provider to put into circulation any Third Party Data 2. the withdrawal or suspension of, or the imposition of restrictions on the use of or access to, any Third Party Data previously put into circulation by a Third Party Data Provider; 3. the delay of a Third Party Data Provider in putting into circulation any Third Party Data 4. the quality of Third Party Data 2. The Customer hereby acknowledges and agrees that: 1. the Customer hereby authorises the Supplier to connect the Software to the Third Party Data Provider’s systems for the purpose of making the Third Party Data available to the Customer through the Software, and shall obtain the consent of the Third Party Data Provider to permit the Supplier to do so 2. a failure by the Customer to do or provide anything required by the Third Party Data Provider to gain access to the Third Party Data (including under the Customer's responsibilities set out in clause 10.1) by means of the Software, or failure by a Third Party Data Provider to consent to the Supplier connecting the Software to the Third Party Data Provider's systems (in the manner required by the Supplier) will prevent the Supplier providing access to the Third Party Data and that shall not affect the Customer’s obligations under this Agreement; 3. the Customer's access to and use of Third Party Data shall be governed by the Agreement and the terms (if any) published by the relevant Third Party Data Provider relating to or in connection with the access to or use of the Third Party Data; 4. as between the parties, the Customer shall be responsible for any person who access and uses the Third Party Data, as though any such person is the Customer 3. The Customer shall inform the Supplier immediately if the Third Party Data Provider withdraws or places conditions upon the Customer's access to and use of Third Party Data using the Software 4. It is the Customer’s responsibility to ensure that the restrictions and other terms (if any) that are published by a Third Party Data Provider and applicable to the use of Third Party Data are suitable for its requirements 5. Nothing in the Agreement removes the need for the Customer to acquire at its cost the necessary rights to use the Third Party Data, and the Customer shall provide all equipment, systems and services that are necessary to access the Third Party Data through the Software. 11. Privacy & Information Security 1. Data Privacy: To the extent Customer Content includes Personal Information sent by Customer through the Application Services, the terms of the Privacy Policy shall apply and be deemed incorporated into this Agreement. To the extent the processing of Personal Information pursuant to this Agreement is subject to the applicable laws & other Data Protectino Legislations in India including but not limited to Information Technology Act, 2000 and Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011. and the terms of xpuls.ai’ Privacy Policy and be incorporated into this Agreement. The Customer agrees to allow the disclosure of personally identifiable information to the entities as identified by the Supplier, provided that (i) appropriate consent or authorization has been obtained from the Customer, and (ii) role-based access control is assigned. The Customer hereby gives consent for use of the data provided and hosted on the Supplier’s Application Services and consent not to delete such data unless a written communication is received from the Customer to delete such data. 2. Hosting and Processing: Customer Content is hosted and stored by xpuls.ai in India. In providing aspects of the Application Services, xpuls.ai’ service providers may process Customer Content, including, without limitation, any associated Personal Information, within India, and in other countries and territories as identified in the Privacy Policy. 3. Tracking: Subject to and in accordance with the Documentation, the Application Services are intended to allow Customer to learn how an End User interacts with and uses Customer’s mobile applications, mobile websites, web-connected devices or web properties. The Application Services give Customer the ability to track data, media, and other information provided by the Customer to the Application Services, excluding Prohibited Information (collectively, “Customer Content”). Customer identifies and selects, and is solely responsible for determining, through its implementation of xpuls.ai’ integration library, what data to track and send to the Application Services 4. Compliance with Laws: Customer agrees to comply with all applicable privacy, data protection, and consumer protection laws and regulations in connection with Customer’s use of the Application Services, including without limitation, requirements of proper notice and consent to process and send Personal Information to xpuls.ai, as contemplated under this Agreement and the Privacy Policy. xpuls.ai agrees to provide the Application Services in accordance with its obligations under the Data Protection Legislation as defined and set forth in the Privacy Policy, provided Customer does not obstruct xpuls.ai’ ability to comply with these obligations. 5. Customer Content Rights: xpuls.ai does not sell, lease, rent or otherwise share for consideration Customer Content. xpuls.ai will share Customer Content only under the following circumstances: 1. With select service providers who perform work on xpuls.ai’ behalf to provide the Application Services; 2. To the extent needed to comply with laws or to respond to lawful requests and legal processes (provided that xpuls.ai will endeavor to notify Customer if xpuls.ai has received a lawful request for Customer Content); 3. To protect the rights and property of xpuls.ai, its agents, other xpuls.ai customers, and others, including, but not limited to, enforcing xpuls.ai’ agreements, policies, and this Agreement; 4. In an emergency, including to protect xpuls.ai’ information security or the personal safety of any person; 5. In connection with activities related to the sale or transfer of all or a part of xpuls.ai’s business or assets (business deals may include, for example, any merger, financing, acquisition, divestiture, or bankruptcy transaction or proceeding); or 6. As directed by Customer, including through its use of the Application Services. 7. xpuls.ai stores, uses, transfers, processes, and accesses Customer Content for the limited purposes of: (i) performing xpuls.ai’ obligations under this Agreement and any applicable Order Form; (ii) responding to service issues and requests for support; (iii) complying with Customer’s instructions; and (iv) maintaining and improving the Application Services. xpuls.ai may also use Customer Content in a de-identified and aggregated form (“Aggregated/Anonymised Data”) for xpuls.ai’ own business purposes, including use, duplication, modification, and creation of derivative works regarding usage and performance of Aggregated Data. Aggregated Data does not directly or indirectly identify Customer, End Users, or individual data subjects. xpuls.ai shall own all right, title and interest to the Aggregated Data and any derivative works thereof. 6. Customer Content Deletion: xpuls.ai provides Customer with access to Customer Content and the ability to delete Customer Content through the Application Services. Upon termination of xpuls.ai’ relationship with Customer, xpuls.ai has no obligation to maintain or provide any Customer Content and will delete Customer Content unless prohibited by law. This data retention shall be in effect for five years from the Effective Date unless terminated earlier in accordance with the Agreement. The parties may renew the Agreement by mutual decision after the Term ends. Upon termination, the parties shall, upon request, (1) delete all data containing personally identifiable information obtained under this Agreement, and (2) certify in writing within ten (10) business days that all copies of the data stored on cloud-based or local servers, backup servers, backup media, or other media have been permanently erased or destroyed. 7. Security: xpuls.ai will maintain appropriate physical, technical and organizational controls designed to safeguard Customer Content within its cloud storage from unauthorized access, use or disclosure. These controls will include measures designed to store Customer Content on servers located in a physically secured location; and the use of firewalls, access controls and similar security technologies designed to protect Customer Content from unauthorized disclosure. xpuls.ai takes no responsibility and assumes no liability for any Customer Content other than its express security obligations in this Clause and Customer understands and agrees that xpuls.ai will not be responsible or liable for any breach or loss of Customer Content resulting from Customer’s security configuration or administration of the Application Services 8. Customer Security Obligations: Customer agrees that, without limiting xpuls.ai’ obligations, Customer is solely responsible for its use of the Application Services, including (i) maintaining appropriate physical, technical and organizational measures designed to maintain a level of security for the Customer Content appropriate to the risk; (ii) securing Customer’s systems and devices used to access the Application Services; and (iii) maintaining its own backups of Customer Content. Without limitation of the foregoing, certain parts of the Application Services, including account management features, may be password-restricted to registered users or other authorized persons (“Password-Protected Areas”). If Customer is authorized to gain access to any Password-Protected Areas, Customer agrees that Customer is entirely responsible for maintaining the confidentiality of Customer’s password and agrees to notify xpuls.ai if the password is lost, stolen, disclosed to an unauthorized third party, or otherwise may have been compromised. Customer agrees that Customer is entirely responsible for any and all activities that occur under Customer’s account, whether or not Customer undertakes such activities. Customer agrees to immediately notify xpuls.ai of any unauthorized use of Customer’s account or any other breach of security in relation to Customer’s password or the Application Services that is known to Customer. 9. Privacy Policy: xpuls.ai’ tracking and use of information collected about Customer on xpuls.ai Sites are governed by the xpuls.ai Privacy Policy. The xpuls.ai Privacy Policy does not cover information xpuls.ai processes on Customer’s behalf in providing the Application Services and it shall be Customer’s obligation to provide Customer’s own privacy statement or notice to its End Users as well as to provide all required disclosures to and obtain all required consents from Customer’s employees and/or agents. In addition, xpuls.ai may collect registration and other information about Customer as xpuls.ai’ customer through xpuls.ai Sites. 12. Confidential Information 1. Confidential Information: As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party“) disclosed to the other party (“Receiving Party“), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information shall not include, or shall cease to include, as applicable, information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no act or omission of the Receiving Party; (iii) is rightfully communicated to the Receiving Party by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the Receiving Party’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the Receiving Party; or (vi) is approved for release or disclosure by the Disclosing Party without restriction. 2. Use of Confidential Information: The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information. Receiving Party shall: (i) use Confidential Information of Disclosing Party only for the purposes described herein; (ii) hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party, (except as needed to carry out the purposes of this Agreement) in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall Receiving Party exercise less than reasonable care in protecting such Confidential Information; (iii) restrict access to the Confidential Information disclosed by the other Party to those of its employees, contractors, personnel, agents, and/or consultants, if any, who have a need to have access in order to carry out the purposes of this Agreement and who have signed an agreement containing disclosure and use provisions substantially similar to those set forth herein; and (iv) to the extent practicable, upon request of the Disclosing Party return or destroy all Confidential Information of the Disclosing Party that is in its possession upon termination or expiration of this Agreement. Notwithstanding any other provision of this Agreement, Receiving Party may disclose Confidential Information to the limited extent required 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, to the extent permitted by law, the Receiving Party shall provide the Disclosing Party with prior notice of such compelled disclosure and reasonable assistance, at Disclosing Party’s request and expense, if the Disclosing Party wishes to contest the disclosure. Due to the unique nature of the Parties’ Confidential Information disclosed hereunder, there can be no adequate remedy at law for a Party’s breach of its obligations hereunder, and any such breach may result in irreparable harm to the non-breaching Party. Therefore, upon any such breach, the Party alleging breach shall be entitled to seek injunctive and other appropriate equitable relief in addition to any other remedies available to it, without the requirement of posting a bond. 3. Each Party will disclose or reveal any of the other Party’s Confidential Information disclosed to it to: (i) those of its personnel who are required in the course of their duties to receive it for the purpose for which it is supplied (provided that each Party shall ensure that any such personnel to whom it discloses the other Party's Confidential Information comply with this clause 12.3); and (ii) any court, governmental or administrative authority competent to require the same, or as required by any applicable law, regulation, or governmental or regulatory body which is lawfully entitled to require the disclosure (and in each such case, the Party shall, if legally permissible, notify the other Party of the requirement as soon as reasonably practicable and use commercially reasonable endeavours to discuss with the other Party and agree any possible limitations or restrictions on disclosure in advance to the extent permitted by law). 13. Intellectual Property Rights 1. All Intellectual Property Rights in and to the Software and Services, shall belong to and remain vested in (or automatically upon creation shall vest in), the Supplier. Except for the licence granted to the Customer in clause 2.1, nothing in this Agreement grants to the Customer any rights to or in any Intellectual Property Rights in the Software or the Services. The Supplier makes no representation or warranty as to the validity or enforceability of the Intellectual Property Rights in the Software. 2. Without prejudice to this Agreement, to the extent that the Customer’s or any Authorised User’s use of the Software results in any modifications, adaptations, developments, or any derivative works of or to the Software or the Services (“Improvements”), any and all Intellectual Property Rights in and to such Improvements shall immediately vest in and be owned by the Supplier. 3. The Supplier shall defend the Customer against any third party claim that the use of the Software in accordance with this Agreement infringes any third party Intellectual Property Right in the United Kingdom and shall indemnify Customer for and against any amounts awarded against the Customer in judgment or settlement of such claims, provided that (i) the Supplier is given prompt notice of such claim; (ii) the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; (iii) the Supplier is given sole authority to defend or settle the claim; and (iv) the Customer makes no admission of liability or fault itself or on behalf of the Supplier. In the defence or settlement of any claim pursuant to this clause 13.3, the Supplier may at its sole option and expense either: (i) procure for the Customer the right to continue using the Software in the manner contemplated by this Agreement; (ii) replace or modify the Software so that it becomes non-infringing; or (iii) terminate this Agreement immediately by providing written notice to the Customer, without liability to the Customer. 4. The Supplier shall not in any circumstances have any liability (including in respect of the indemnity provided under clause 13.3) if the alleged infringement is based on: (i) modification of the Software by anyone other than the Supplier; or (ii) the Customer’s or any Authorised User’s use of the Software otherwise than in accordance with this Agreement or in a manner contrary to the instructions given to the Customer by the Supplier; or (iii) the Customer’s or any Authorised User’s use of the Software after notice of the alleged or actual infringement from the Supplier or any appropriate authority; or (iv) use or combination of the Software with any other software or hardware, in circumstances where, but for such combination, no infringement would have occurred. The Customer shall defend the Supplier against all or any costs, claims, damages or expenses incurred by the Supplier in respect of any third party claim relating to the Customer’s or any Authorised User’s use of the Software otherwise than in accordance with this Agreement, provided that (i) the Customer is given prompt notice of such claim; (ii) the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and (iii) the Customer is given sole authority to defend or settle the claim; and (iv) the Supplier makes no admission of liability or fault itself or on behalf of the Customer. 14. Warranties: Disclaimer of warranties 1. Application Services. Subject to other provisions of this Agreement, xpuls.ai warrants that the features and functionality of the Application Services, as made available to Customer by xpuls.ai, will perform the material functions described in the Documentation. xpuls.ai’ sole liability and Customer’s exclusive right and remedy for a breach of the foregoing warranty is for xpuls.ai to correct or re-perform such material nonconforming aspects of the Application Services. If xpuls.ai fails to correct or re-perform such material nonconforming aspects of the Application Services within a reasonable time of receipt of written notice from Customer detailing the breach, Customer’s sole and exclusive remedy shall be to terminate the Agreement and have xpuls.ai refund to Customer the pro-rata unused portion of any pre-paid fees applicable to the remaining portion of the applicable Subscription Term following the effective date of termination. The foregoing warranty will not apply to, and xpuls.ai is not obligated to correct, non-conformities related to: (i) unauthorized modifications to the Application Services; (ii) use of the Application Services outside of the scope of this Agreement or as described in the Documentation; or (iii) Third-Party Services, software or equipment outside of xpuls.ai’ control. 2. Authority. Each Party hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that it has the legal power and authority to enter into this Agreement; and (iii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms. 3. Customer Content. Customer represents and warrants that it owns or has obtained all necessary rights, title and interest, provided all appropriate notices and disclosures, and obtained all necessary permissions and consents, to use the Application Services to track End Users and transfer Customer Content to xpuls.ai and its third-party subcontractors for the purpose of processing such Customer Content in accordance with this Agreement. 4. Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, USE OF SERVICES PROVIDED BY XPULS.AI, INCLUDING, BUT NOT LIMITED TO, THE APPLICATION SERVICES, ANY PROFESSIONAL SERVICES AND CUSTOMER SUPPORT SERVICES IS AT CUSTOMER’S SOLE RISK. SUCH SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. XPULS.AI AND ITS SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED INDEMNITIES AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON- INFRINGEMENT. XPULS.AI DOES NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ITS SERVICES, AND CUSTOMER RELIES ON SUCH SERVICES AT CUSTOMER’S OWN RISK. XPULS.AI DOES NOT GUARANTEE THE ACCURACY, USABILITY, COMPLETENESS, OR USEFULNESS OF ANY CUSTOM REPORT, AND CUSTOMER USES CUSTOM REPORTING FEATURES AT CUSTOMER’S OWN RISK. ANY MATERIAL THAT CUSTOMER ACCESSES OR OBTAINS THROUGH XPULS.AI’S SERVICES, INCLUDING CUSTOMER CONTENT, IS DONE AT CUSTOMER’S OWN DISCRETION AND RISK AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTER OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY MATERIAL THROUGH XPULS.AI’S SERVICES. FURTHER, XPULS.AI DOES NOT WARRANT THAT CUSTOMER’S USE OF THE APPLICATION SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR ALWAYS AVAILABLE AND XPULS.AI WILL NOT BE LIABLE FOR LOSS, INACCURACY OR CORRUPTION OF DATA OR DELAYS, SERVICE FAILURES OR INTERRUPTIONS INHERENT IN THE USE OF THE INTERNET OR COMMUNICATION SYSTEMS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM XPULS.AI OR THROUGH OR FROM THE APPLICATION SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. 15. Limitation of Liability 1. EXCLUSION OF REMEDIES. EXCEPT WITH RESPECT TO A BREACH OF CUSTOMER’S OBLIGATIONS, NEITHER CUSTOMER NOR XPULS.AI SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY FOR ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, RIGHTS, OR TECHNOLOGY, FOR ANY LOST PROFITS OR REVENUES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. 2. EXCEPT WITH RESPECT TO (I) CUSTOMER’S PAYMENT OBLIGATIONS, (II) A BREACH OF CUSTOMER’S OBLIGATIONS, OR (III) LIABILITY OF XPULS.AI TO THE EXTENT IT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, THE AGGREGATE AND CUMULATIVE LIABILITY OF XPULS.AI WITH RESPECT TO ANY AND ALL CLAIMS AND DAMAGES ARISING OUT OF OR RELATED TO ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY, SHALL NOT EXCEED THE GREATER OF INR 5000 3. THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS CLAUSE 15 ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. The Parties each acknowledge and understand that the disclaimers, exclusions and limitations of liability set forth in this Clause 15 form an essential part of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions this Agreement would be substantially different. 16. Indemnity 1. Indemnification by xpuls.ai. xpuls.ai will defend Customer at xpuls.ai’ expense from any and all claims, demands, suits or proceedings (“Claims”) brought against Customer by a third party alleging that the use of the Application Services as permitted hereunder infringes such third party’s patent, copyrights, or trademarks, or misappropriates such third party’s trade secrets. Further, xpuls.ai shall indemnify and hold Customer harmless against all costs (including reasonable attorneys’ fees) finally awarded against Customer by a court of competent jurisdiction, or paid to a third party in accordance with a settlement agreement signed by xpuls.ai, in connection with such Claims. If a Claim is received or is reasonably likely to be received, xpuls.ai may, at xpuls.ai’ option and sole discretion and expense, either (i) replace or modify the Application Services, or any part thereof, as appropriate, (ii) obtain a license for Customer to continue using the Application Services, (iii) replace the Application Services with a substantially equivalent service; or (iv) terminate the applicable Order Form and refund to Customer a pro-rated amount of any prepaid, unused fees applicable to the remaining portion of the then current Subscription Term following the effective date of termination. Notwithstanding the foregoing, xpuls.ai will have no liability for any Claim that arises in whole or in part from: (a) modifications to the Application Service made by Customer or any third party; (b) the combination, operation or use of the Application Services with software, hardware, data or technology not provided by xpuls.ai (where the infringement would have been avoided in the absence of such combination); (c) Customer’s use of the Application Services other than in accordance with this Agreement or in violation of applicable law; or (d) Third Party Software, Customer software or Customer Content. The indemnification obligations set forth in this Clause 16 are xpuls.ai’ sole and exclusive obligations, and Customer’s sole and exclusive remedies, with respect to infringement or misappropriation of third party intellectual property rights of any kind. 2. Indemnification by Customer. Customer will defend xpuls.ai at Customer’s expense from any and all Claims brought against xpuls.ai by a third party arising out of (i) allegations that Customer’s use of the Application Services beyond the scope described in this Agreement, violates the rights of such third party; (ii) Customer Content infringes or otherwise violates a third party’s property, privacy, or other rights; (iii) Customer’s breach of this Agreement; or (iii) Customer fails to comply with applicable laws, rules or regulations in performance of this Agreement. Further, Customer shall indemnify and hold xpuls.ai harmless against all costs (including reasonable attorneys’ fees) finally awarded against xpuls.ai by a court of competent jurisdiction or paid to a third party in accordance with a settlement agreement signed by Customer, in connection with such Claims. 17. Miscellaneous 1. Governing Law; Venue. Enforcement of any dispute relating to this Agreement will be governed by the laws of India. The exclusive jurisdiction and venue for any claims arising out of or related to this Agreement or Customer’s use of the Application Services shall be courts of Hyderabad, India, and Customer irrevocably agrees to submit to the jurisdiction of such courts. 2. Assignment. Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of xpuls.ai (not to be unreasonably withheld or delayed). Notwithstanding any provision in this Agreement, either party may assign this Agreement in its entirety, without the consent of the other party, to its successor in connection with a merger or acquisition (including by operation of law), corporate reorganization, or sale of all or substantially all of its assets. Any attempt by Customer to assign its rights or obligations under this Agreement in breach of this clause shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. 3. Entire Agreement. Subject to an Order Form, this Agreement sets forth the entire agreement and understanding between the parties with respect to its subject matter and supersedes and merges all prior and contemporaneous oral and written agreements, discussions and understandings between the parties with respect to its subject matter. In the event the parties have previously entered into a separate non-disclosure or confidentiality agreement, such agreement is terminated as of the Effective Date of this Agreement. In the event the parties enter into a separate non-disclosure or confidentiality agreement subsequent to the Effective Date, such separate agreement shall not modify, supplement or supersede the terms of this Agreement unless expressly set forth in such subsequent agreement. No terms or conditions set forth on any purchase order, preprinted form or document shall add to or vary the terms and conditions of this Agreement, and all such terms or conditions shall be null and void. 4. Termination 1. Either party may terminate this Agreement or any applicable Order Form in the event of a material breach by the other party. Such termination may be effected only through a written notice to the breaching party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such thirty (30) day period. 2. Either party may, at its option, terminate this Agreement and any applicable Order Forms immediately upon written notice to the other party, in the event (i) that the other party becomes insolvent or unable to pay its debts when due; (ii) the other party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; or (iii) a receiver is appointed or there is an assignment for the benefit of such other party’s creditors. 5. Force Majeure. Neither Party is responsible for failing to fulfil its obligations (other than its payment obligations) under this Agreement due to causes beyond its reasonable control that directly or indirectly delay or prevent timely performance (“Force Majeure Event”). Any dates or times by which each Party is required to render performance under this Agreement shall be postponed automatically to the extent that the Party is delayed or prevented from meeting them by a Force Majeure Event. If the Force Majeure Event prevents, hinders, or delays the affected Party’s performance of its obligations for a continuous period of more than 30 days, the affected Party may terminate this Agreement by giving 30 days’ written notice to the other Party. 6. Survival. The terms and conditions which by their nature are intended to survive termination of this Agreement shall survive, including Restrictions, Disclaimer, Feedback, Indemnity, and Limitation of Liability. This Agreement contains the entire understanding of the parties on the subject matter hereof. 7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect. 8. Headings. In this Agreement headings are inserted for convenience only and shall not affect the meaning of the text and references to the singular include the plural and vice versa. 9. Independent Contractors. In making and performing this Agreement, Customer and xpuls.ai act and will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, joint venture, partnership or employer and employee relationship between them. Except as expressly set forth herein, at no time will either party make commitments or incur any charges or expenses for, or in the name of the other party. Any fees, expenses or other amounts paid by Customer to xpuls.ai hereunder shall not be considered salary for pension or wage tax purposes and neither xpuls.ai nor its personnel will be entitled to any fringe benefits, including sick or vacation pay, or other supplemental benefits of Customer, unless otherwise required by law. 10. Modifications. xpuls.ai reserves the right to modify the terms and conditions of this Agreement from time to time, by posting the modified terms on a xpuls.ai Site. Any updated version of these terms shall become effective as of the posting date and will supersede all prior versions. Customer’s continued use of the Application Services after the updated version has been posted, will constitute Customer’s acceptance of such updated terms and no separate notice will be required. 18. Contact 1. All legal notices or demands to or upon xpuls.ai shall be made in writing and sent to xpuls.ai personally, by courier, certified mail, or facsimile to the following entity and address: Flat-401, Acropolis Apartments, 2-2-18, A-Lane, D.D.Colony, 500007, Hyderabad, Telangana, India. 2. The notices shall be effective when they are received by xpuls.ai in any of the above-mentioned manner. All legal notices or demands to or upon a Customer shall be effective if either delivered personally, sent by courier, certified mail, by facsimile or email to the last-known correspondence, fax or email address provided by the Customer to xpuls.ai, or SMS, WhatsApp messages, or in-app notifications, or by posting such notice or demand on an area of the Platform that is publicly accessible without a charge or through such other mode of communication as xpuls.ai may deem fit in its discretion. 3. Notice to a Customer shall be deemed to be received by such Customer if and when, a) xpuls.ai is able to demonstrate that communication, whether in physical or electronic form, has been sent to such Customer , or b) immediately upon xpuls.ai posting such notice on an area of the Platform that is accessible by the Customer or publicly accessible without charge
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