The following Client Terms and Conditions apply to services, mobile apps, dashboards, and web portals, provided to and/or accessed by insurance carriers and their authorized personnel, including adjusters and claims representatives, as provided by Genpact and its affiliates. These Client Terms and Conditions only apply if Client’s organization does NOT have a valid non-expired written agreement for the above referenced service offerings directly with Genpact or its affiliates. If Client’s organization DOES have a valid written agreement with Genpact for the above referenced services, the terms and conditions of that agreement shall control and these Adjuster / Client Terms and Conditions shall not apply.
These Client Terms and Conditions (“Agreement”) are a legal agreement between you, as an individual user, and on behalf of the relevant insurance company or insurance support organization you work for (collectively referred to as “Client”) and Genpact International, Inc., located at 1155 Avenue of the Americas 4th Fl, New York, NY 10036 (“Licensor”). This Agreement covers any services, mobile applications and any related web-based dashboards or webpages provided by Licensor to Client (collectively, referred to as the “Services”). The Services are licensed, not sold, to Client for use only under the terms of this Agreement, unless accompanied by a separate agreement expressly superseding this Agreement signed by both parties, in which case the terms of that separate agreement will govern. Licensor reserves all rights not expressly granted to Client hereunder. The Services that are subject to this license and this Agreement are collectively referred to as the "Licensed Services." This Agreement shall govern and control any future updates, modifications, or enhancements made to the Licensed Services. Licensor reserves the right to change this Agreement at any time and Client agree that Licensor may notify Client about changes to this Agreement by posting them on or within the applicable Licensed Services, therefore, Client should review this Agreement and any updated Agreement(s) before using the Licensed Services as this Agreement (and any updates) will become effective from as of the time of such posting.
1. License: By accepting this Agreement by electronically indicating Client “agrees” or “accepts” by clicking or marking the applicable checkbox and/or by using the Licensed Services, Client agree to be bound by the terms of this Agreement. Licensor hereby grants a limited, non-exclusive, non-transferable, non-sublicensable license to use the Licensed Services on the mobile device, tablet, and/or computer (collectively, “Device”) that Client owns or controls and as permitted by the Usage Rules set forth in the applicable mobile application store terms and conditions, if applicable, (the “Usage Rules”) solely for personal or internal authorized business purposes consistent with the terms of this Agreement and in accordance with applicable laws, regulations, and any instructions provided to Client by Licensor, as applicable.
2. Scope. The parties desire to record the terms of the Licensed Services to be rendered by Licensor to Client under this Agreement. Licensor may, in its discretion, delegate or subcontract performance of any portion of the Licensed Services to its affiliates and any third-party subcontractor. Licensor shall provide Client with any information reasonably requested by Client regarding any proposed third-party services. Licensor shall remain fully responsible and liable for the timely and proper performance of the Licensed Services hereunder even if such obligations are delegated to a third party, and for the compliance with this Agreement of any person or entity to which it delegates or subcontracts any such obligation. Licensor may, in its discretion, make modifications or alterations to the Licensed Services that neither increase the Fees (as defined below) nor materially reduce overall Licensed Service quality. Furthermore, Licensor reserves the right to modify or cease offering Licensed Services based on changes to applicable law, regulations, or company policy.
3. Payment. In consideration of the Licensed Services being provided by Licensor under this Agreement, Client agrees to pay to Licensor the lesser of: (a) Licensor’s standard rates for the applicable Licensed Services, as communicated and invoiced to Client; or (b) the fees Client and Licensor have agreed to in writing, which shall include email agreement (fees due to Licensor collectively referred to as “Fees”). Unless otherwise agreed by the parties in writing, Fees shall be aggregated and invoiced monthly and Client shall pay all invoices within thirty (30) days of the invoice date. Any Fees not paid when due shall incur interest at the rate of one percent (1%) per month or the maximum rate permitted by applicable law, whichever is lower. Client’s failure to pay undisputed invoices in accordance with this Section shall be considered a material breach. Fees shall be exclusive of all applicable sales, use, excise, value added, services, consumption and other similar taxes and duties that are assessed against either party on the provision of the Licensed Services (excluding taxes based on the net income of Licensor) which shall be the responsibility of Client; and other out-of-pocket expenses.
4. Approvals. Each party will obtain all necessary approvals, consents, permits and grants in their respective jurisdictions to perform and receive the Licensed Services, respectively. Client shall inform and update Licensor, from time to time, of any laws pertaining to Client’s business with which Licensor must comply to perform the Licensed Services for Client and, to the extent so required, assist Licensor in obtaining approvals, consents, permits and grants as may be required to perform the Licensed Services.
5. Term and Termination. This Agreement shall become effective upon the earlier of Client’s acceptance of the Agreement or Licensor’s grant of access to the Licensed Services and shall continue for until terminated by either party. Licensor may terminate this Agreement and all Licensed Services immediately and without notice: (a) for Client’s non-payment of undisputed Fees when due; (b) if Licensor has a reasonable basis to believe that Client or any of its employees or agents have used or will use the Licensed Services in violation of the terms of this Agreement or have committed or will commit hostile network attacks or other improper activities; or (c) due to changes in Licensor policy, modification of third-party agreements, a modification in industry standards, a Security Event (defined below), a change in law or regulation, or the interpretation thereof. Either party may terminate this Agreement at any time with thirty (30) days written notice to the non-terminating party, with or without cause. Upon termination of this Agreement, Client shall be liable for payment of any Fees due and payable to Licensor for the Licensed Services provided through the effective date of such termination.
6. Confidential Information. The parties acknowledge that, in the course of performance under this Agreement, one party (the “Disclosing Party”) may disclose or permit access by the other party (the “Receiving Party”) to Confidential Information. As used herein, the term “Confidential Information” shall mean any and all information disclosed hereunder, whether written or oral, that is designated as confidential by the Disclosing Party, designated as confidential by statute, regulation, or common law or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential, including prototypes, mobile applications, web pages, customer lists, research and development activities, technology, vendors, computer hardware and software, the Licensed Services, drawings, trade secrets, know how, processes, pricing methods, marketing strategies, customer relations, future plans and other information deemed proprietary or confidential by Disclosing Party. Except as otherwise provided herein, the term Confidential Information does not include information which:
(a) has been or becomes published or is now, or in the future, in the public domain without breach of this Agreement or breach of a similar agreement by a third-party;
(b) prior to disclosure hereunder is properly within the legitimate possession of the Receiving Party which can be verified by independent evidence;
(c) subsequent to disclosure hereunder, is lawfully received from a third party having rights therein without restriction of third party’s or the Receiving Party’s rights to disseminate the information and without notice of any restriction against its further disclosure; or
(d) is independently developed by the Receiving Party through persons who have not had, either directly or indirectly, access to or knowledge of such Confidential Information which can be verified by independent evidence.
7. Non-Disclosure and Non-Use. The Receiving Party shall hold all Confidential Information of the Disclosing Party in strictest confidence and shall not disclose or provide such Confidential Information to any third party without the express written consent of the Disclosing Party in each instance unless strictly necessary to provide the Licensed Services hereunder. In all events the Receiving Party shall handle, store, and maintain all Confidential Information of the Disclosing Party with a degree of care that is reasonable for the circumstances of disclosure and the nature of each component of Confidential Information. The Receiving Party shall not make any use of such Confidential Information whatsoever except such limited use as is required to perform its obligations under this Agreement. To the limited extent reasonably necessary for such permitted use, the foregoing shall include the right to make a reasonable number of copies of such Confidential Information each of which shall be subject to this Section. If the Receiving Party is required by a court or other body of competent jurisdiction to disclose any Confidential Information of the Disclosing Party, the Receiving Party may disclose only so much Confidential Information as is legally required, provided that, if permitted, the Receiving Party has given notice of such compelled disclosure to the Disclosing Party and has given the Disclosing Party a reasonable opportunity to object to such disclosure and has provided reasonable assistance in obtaining and enforcing a protective order or other appropriate means of safeguarding any Confidential Information so required to be disclosed. Each party shall keep this Agreement, its contents and substance, and the discussions, negotiations and any information, documents or materials disclosed prior to or as a result of such discussions or negotiations between them strictly confidential, except as strictly necessary to perform the Licensed Services.
8. Permitted Use of Information. Notwithstanding anything to the contrary herein, Licensor may gather and analyze information and any data generated from the provision of the Licensed Services hereunder and may use such information and data to: (i) disclose the information and data as needed to insureds, appraisers (as applicable), and Licensor parties (including third party service providers, such as inspectors and authorized vendors) to provide the Licensed Services to Client; (ii) develop, improve, and/or enhance the Licensed Services or any other Licensor offerings or services; (iii) use for any diagnostic or corrective purpose related to or in connection with the Licensed Services or other Licensor offerings; and (iv) disclose such data and information in aggregate and/or de-identified form in connection with Licensor’s business activities. Such rights shall survive termination of the Agreement.
9. Warranty Disclaimer. THE LICENSED SERVICES ARE PROVIDED “AS-IS” ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUALITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED, AND SUCH DISCLAIMERS SURVIVE TERMINATION.
10. Reservation of Rights. Except for the limited rights granted herein, each party owns and retains all intellectual property rights in their respective Confidential Information. The Licensed Services, including any enhancements, updates, documentation, and work written or produced by Licensor, and any intellectual property therein shall be and remain the property of Licensor.
11. License Conditions. Client will not use the Licensed Services to: (i) violate any person's or entity's legal rights (including, without limitation, intellectual property, privacy, and publicity rights), transmit material that violates or circumvents such rights, or remove or alter intellectual property or other legal notices; (ii) transmit, collect, or access personally identifiable information of others without their consent; or (iii) engage in unauthorized spidering, scraping, or harvesting of content, contact or other personal information, or use any other unauthorized automated means to compile information. Client will (i) not decompile, reverse engineer, or disassemble the Licensed Services or otherwise attempt to derive the source code thereof; or (ii) copy, modify, rent, sell, distribute, or transfer any part of the Licensed Services except as expressly permitted in this Agreement. Such restrictions survive termination of the Agreement.
12. Indemnification. Each party shall indemnify, defend and hold harmless the other party its affiliates, and the directors, officers, employees, agents, brokers, and contractors against any third party claim arising out of the respective indemnifying party’s:
(a) Improper disclosure of Confidential Information.
(b) Infringement of third-party intellectual property right.
(c) Bodily injury, death of any person or damage to real or tangible, personal property resulting from the willful, fraudulent or negligent acts or omissions of the indemnifying party in connection with this Agreement, as the case may be.
13. Limitation of Liability. Notwithstanding anything else contained in this Agreement, any liability of Licensor or Client arising under this Agreement shall not in any event exceed the total Fees, which have been paid by Client actually received by Licensor hereunder within the twelve (12) months prior to the event triggering liability. Neither party shall be liable to the other or any other person or entity for any indirect, incidental, punitive, exemplary, special or consequential damages of any kind or nature whatsoever or amounts for loss of income, profits or savings arising out of, or relating to, its performance or failure to perform under this Agreement.
14. Security. Client acknowledges that the information available through the Licensed Services may include personally identifiable information and it is Client's obligation to keep all such accessed information confidential and secure. Accordingly, Client on behalf of itself and any of its employees (as applicable) shall (a) restrict access to Licensed Services to those employees who have a need to know as part of their official duties; (b) ensure that Client nor its employees shall (i) obtain and/or use any information from the Licensed Services for personal reasons, or (ii) transfer any information received through the Licensed Services to any party except as permitted hereunder; (c) keep all user identification numbers, and related passwords, or other security measures (collectively, "Client IDs") confidential and prohibit the sharing of Client IDs; (d) immediately deactivate the Client ID of any employee who no longer has a need to know, or for terminated employees on or prior to the date of termination; (e) in addition to any obligations hereunder, take all commercially reasonable measures to prevent unauthorized access to, or use of, the Licensed Services or data received therefrom, whether the same is in electronic form or hard copy, by any person or entity; (f) maintain and enforce data destruction procedures to protect the security and confidentiality of all information obtained through Licensed Services as it is being disposed; (g) be capable of receiving the Licensed Services where the same are provided utilizing "secure socket layer", or such other means of secure transmission as is deemed reasonable by Licensor; (h) not access and/or use the Licensed Services via mechanical, programmatic, robotic, scripted or other automated search means, other than through batch or machine-to-machine applications approved by Licensor; (i) take all steps to protect their networks and computer environments, or those used to access the Licensed Services, from compromise; and (j) maintain policies and procedures to prevent unauthorized use of Client IDs and the Licensed Services. In the event Client learns or has reason to believe that Client IDs, the Licensed Services, or any information related thereto have been misused, disclosed, or accessed in an unauthorized manner or by an unauthorized person or contrary to any terms of this Agreement (a "Security Event"), Client shall provide immediate written notice to the via email to firstname.lastname@example.org. In the event of a Client Security Event, Licensor may, in its sole discretion, take immediate action, including suspension or termination of Client's account, without further obligation or liability of any kind.
15. Downtimes. Client acknowledges and agrees that from time to time access to the Licensed Services may be unavailable or inoperable for various reasons, including but not limited to periodic maintenance procedures or repairs which Licensor may undertake from time to time, equipment malfunctions, or other causes beyond the control of Licensor or which are not reasonably foreseeable by Licensor, including but not limited to interruption or failure of telecommunication or digital transmission links, network congestion, or other failures (collectively "Downtimes"). Downtimes may also result from suspension by Licensor, in its sole discretion and without notice, of access to data files and/or the Licensed Services due to actual or suspected hostile network attacks or other improper activities. Licensor will use commercially reasonable efforts to deliver the Licensed Services requested by Client subject to the terms of this Agreement.
(a) The substantive laws of the State of New York, without regard for conflict of laws principles, shall prevail for this and all subsequent agreements unless otherwise stated in writing by both parties. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power of privilege hereunder. Neither party may assign this Agreement without the written consent of the other party.
(b) This Agreement may not be assigned without the prior written consent of the other party. Notwithstanding the foregoing, each party shall have the right to assign this Agreement without such consent: (i) to any affiliated, subsidiary or parent entity, defined as any entity controlling, controlled or under common control with such party as evidenced by ownership of greater than 50% of the equity of such entity; (ii) in connection with the sale of all or substantially all of its stock or assets; and/or (iii) to the surviving or resulting entity in any merger or consolidation. This Agreement shall be binding on the parties and their respective successor and permitted assigns.
(c) Neither party will directly or indirectly solicit or hire any employee or contractor of the other party with whom it has come into contact with for the Licensed Services for employment or services, during the term, and for a period of twelve (12) months following the termination of this Agreement.
(d) This Agreement and any subsequent updates published thereto contains the entire agreement of the parties with respect to its subject matter, and supersedes any prior representation, agreement, warranty, and proposal for the efforts defined herein. Any deviations to this Agreement must be made in writing with the mutual agreement of the parties.
(e) Licensor shall be an independent contractor pursuant to this Agreement. Nothing herein shall be construed to create a joint venture or partnership between the parties or an employee/employer relationship. Neither party shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement or undertaking with any third party.
(f) Headings are provided for convenience only and shall not have an effect on the interpretation of the Agreement. If any provision of this Agreement is illegal or unenforceable, its invalidity shall not affect the other provisions of this Agreement that can be given effect without the invalid provision.
Copyright © Genpact. All rights reserved. Last update 6.11.18
The following Terms and Conditions for Independent Contractors (Field Inspectors) apply if you provide field services for Genpact and its affiliates. These Terms and Conditions apply in addition to, and not in lieu of any Contractor Agreement in place between you and Genpact (and /or its affiliates) and these Terms and Conditions set forth your use and access to any Genpact mobile apps, platforms, webpages, portals, etc., unless otherwise specified on the particular site / technology you are accessing.
These Terms and Conditions (“Agreement”) are a legal agreement between you (“You” or “Your”) and Genpact International, Inc. on behalf of itself and its affiliates, a Delaware corporation located at 1155 Avenue of the Americas 4th Fl, New York, NY 10036 (“Licensor”). This solution, including products, services, any mobile applications and any related web-based dashboards or webpages (collectively, the “Product”). The Product is licensed, not sold, to You for use only under the terms of this Agreement, unless accompanied by a separate agreement expressly superseding this Agreement signed by both parties, in which case the terms of that separate agreement will govern. Licensor reserves all rights not expressly granted to You hereunder. The Product(s) that are subject to this license and this Agreement are collectively referred to as the "Licensed Product." This Agreement shall govern and control any future updates, modifications, or enhancements made to the Licensed Product. Licensor reserves the right to change this Agreement at any time and You agree that Licensor may notify you about changes to this Agreement by posting them on or within the applicable Licensed Product, therefore, you should review this Agreement and any updated Agreement(s) before using the Licensed Product as this Agreement (and any updates) will become effective from as of the time of such posting.
17. License: By accepting this Agreement by electronically indicating You “agree” or “accept” or by clicking or marking the appropriate location below or by installing or using the Licensed Product You agree to be bound by the terms of this Agreement. Licensor hereby grants a limited, non-exclusive, non-transferable, non-sublicensable license to use the Licensed Product on the mobile device, tablet, and/or computer (collectively, “Device”) that You own or control and as permitted by the Usage Rules set forth in the applicable mobile application store terms and conditions (the “Usage Rules”) solely for personal or internal authorized business purposes consistent with the terms of this Agreement and in accordance with applicable laws, regulations, and any instructions provided to You by Licensor, insurance carrier, or authorized claims agent, as applicable.
18. License Restrictions.
a. Minor children (persons under the age of eighteen (18) are not permitted to use the Licensed Product without the consent of a parent or guardian. By accepting this Agreement, You, as the parent or guardian of such a minor, take full responsibility for all obligations under this Agreement on behalf of yourself and any minor child’s use of the Licensed Product. Under no circumstances may a minor child under the age of fifteen (15) use the Licensed Product.
b. You are responsible for keeping your username, password, and Device secure.
c. Use of the Licensed Product is at Your own risk and the Licensed Product shall not be used while operating a motor vehicle or heavy equipment.
d. You may not distribute or make the Licensed Product available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute, sublicense the Licensed Product or use the Licensed Product as a part of a service desk.
e. You agree that the Licensed Product and all upgrades, corrections, and enhancements thereto, are and shall continue to be, at all times property of Licensor. You may not copy (unless expressly permitted by this Agreement and the Usage Rules), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Product or any part thereof, including any updates made to the Licensed Product (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Licensed Product). Any attempt to do so is a violation of the rights of the Licensor and its licensors. If You breach this restriction, You may be subject to prosecution and damages.
f. You may not probe, scan, or test the vulnerability of any of Licensor’s technical systems or networks. You may not utilize a bot, spider, or otherwise crawl, scrape, or cache any content on or in the Licensed Product via automated means.
g. You may not in any way related to the Licensed Product infringe copyrights, trademarks, patents or other proprietary rights of others, including Licensor. You may not in any way related to the Licensed Product infringe the privacy rights of others or solicit personally identifying information for the purposes of harassment, exploitation, violation of privacy, or any promotional or commercial purpose including but not limited to “spam” emails or communications.
h. All rights not explicitly granted by this Agreement are reserved by Licensor.
3. Your Representations and Warranties to Licensor. For information including photographs that You provide through or to the License Product, You represent and warrant that: (i) You own the information posted or otherwise have the right to grant the rights and licenses set forth in this Agreement; (ii) the posting and use of the information on or through the Licensed Product does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) You agree to pay for all royalties, fees, and any other monies owed by reason of such information being submitted through or to the Licensed Product, if applicable; and (iv) You have the legal right and capacity to enter into this Agreement in your jurisdiction.
YOU UNDERSTAND THAT TEXT AND / OR DATA RATES MAY APPLY FROM YOUR MOBILE SERVICE PROVIDER FOR USE OF THE LICENSED PRODUCT. You expressly agree that You are solely responsible for any and all text and data charges incurred for the use of the Licensed Product on Your Device.
5. Feedback. In consideration for utilizing the Licensed Product, if You provide Licensor with any ideas, suggestions, and/or recommendations for the modification, improvement or enhancement of the Licensed Products or any related services or product offerings (“Feedback”) then by providing such Feedback to Licensor, You hereby irrevocably transfer and confer all right, title, and interest to such Feedback to Licensor without any additional consideration or obligation due from Licensor, including any obligations of payment or confidentiality. Licensor may make all use of Feedback consistent with such right title and interest, including but not limited to Licensor’s ability to market, sell, create derivative works from, and otherwise distribute such Feedback without any reference, attribution, or responsibility (monetarily or otherwise) to You. You represent and warrant that any Feedback provided by You shall not infringe third party intellectual property rights, is not subject to open source licensing obligations, and does not require payment of third party licensing fees.
6. Connectivity. You understand and agree that the Licensed Product may require connection to the Internet, GPS capability and/or location data on Your Device. Any location data provided by the Licensed Product are for the purpose of using the Licensed Product only and not intended to be relied upon for any navigational purposes including in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither the Licensor, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of location data displayed by the Licensed Product.
7. Third Party Materials / Services. The Licensed Product may enable access to or make available content, data, information, applications or materials from third parties’ services and web sites (collectively and individually, "Third Party Services"). Use of Third Party Services may require Internet access and that You accept additional terms and conditions from Third Party Services providers. YOUR CORRESPONDENCE AND BUSINESS DEALINGS WITH THIRD PARTY SERVICES FOUND AND/OR ACCESSED THROUGH THE LICENSED PRODUCT IS SOLELY BETWEEN YOU AND THE THIRD PARTY. By using the Third Party Services, You acknowledge and agree that the Licensor is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. Licensor does not warrant or endorse; does not assume, and hereby disclaims any and all liability or responsibility to You or any other person for: any Third Party Services and all such Third Party Services are provided “AS-IS” and solely as a convenience to You.
8. Proprietary Information / Limitations. You agree that the Licensed Product contains proprietary content, information, and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that You will not use such proprietary content, information or materials in any way whatsoever except for the use permitted under this Agreement. No portion of the Licensed Product may be reproduced in any form or by any means. You shall not exploit the Licensed Product in any unauthorized way whatsoever, including but not limited to: in violation of any law or regulation; by trespass; in violation of the terms of this Agreement; or burdening network capacity. In addition, any logos or branding, including Licensor’s or Licensor’s partners, vendors, or customers) are trademarks of Licensor or the applicable trademark owners and may not be copied, imitated, or used in whole or in part without the prior written consent of the trademark owner. In addition, all page headers, custom graphics, icons, and scripts are service marks, trademarks, and/or trade dress of Licensor or applicable partner, vendor, or customer and may not be copied, imitated, or used in whole or in part without prior written permission from Licensor or the applicable owner.
The Licensed Product and any Third Party Services (collectively, “Materials”) that may be accessed from, displayed on or linked to from Your Device are not available in all languages or in all countries. The Licensor makes no representation that Materials are appropriate or available for use in any particular location outside the United States. To the extent You choose to access such Materials, You do so at Your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. Licensor, and its agents, partners, customers, and service providers, reserve the right to change, suspend, remove, or disable access to the Licensed Product at any time without notice. In no event will the Licensor be liable for the removal of or disabling of access to any Licensed Product. The Licensor may also impose limits on the use of or access to the Licensed Product, in any case and without notice or liability.
9. Inspection; Records. Licensor may conduct periodic audits of Your activity (via remote access or otherwise) and may contact You to provide documentation regarding usage consistent with the terms of this Agreement, including any suspicion of misuse or abuse. Any violations discovered by Licensor will be subject to immediate action including, but not limited to, immediate suspension of Your access to the Licensed Product and termination of this Agreement. If Licensor determines that You are in violation of the terms of this Agreement, You shall reimburse Licensor for all costs incurred in connection with the inspection(s). Notwithstanding the foregoing, Licensor shall retain all other remedies available to it under this Agreement, or at law or in equity.
10. Indemnification. You hereby agree to protect, indemnify, defend, and hold harmless Licensor, its affiliates, its subsidiaries, officers, directors, employees, representatives, service providers, customers, suppliers, and distributors (“Licensor Parties”) from and against any and all costs, claims, demands, damages, losses, and liabilities (including attorneys' fees and costs) arising from or in any way related to (a) use of the Licensed Product contrary to the terms of this Agreement and (b) any infringement of any third party rights by any information and/or images submitted to or through the Licensed Product by You or on your behalf.
11. NO WARRANTY: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE MATERIALS IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MATERIALS ARE PROVIDED "AS IS" AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE MATERIALS AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
LICENSOR PARTIES DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF YOUR DEVICE, ANY MATERIALS, OR THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY THE LICENSED PRODUCT WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE MATERIALS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE MATERIALS PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
12. LIMITATION OF LIABILITY / WAIVER. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LICENSOR PARTIES BE LIABLE FOR PERSONAL INJURY OR DAMAGE TO PROPERTY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR SAVINGS, BUSINESS LOSSES, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE MATERIALS, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL LICENSOR’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF ONE HUNDRED DOLLARS ($100.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
BY ACCESSING THE LICENSED PRODUCT, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
13. Security. You acknowledge that the information available through the Licensed Product may include personally identifiable information and it is Your obligation to keep all such accessed information confidential and secure. Accordingly, You and any of Your employees (as applicable) shall (a) restrict access to Licensed Product to those employees who have a need to know as part of their official duties; (b) ensure that You shall (i) not obtain and/or use any information from the Licensed Product for personal reasons, or (ii) transfer any information received through the Licensed Product to any party except as permitted hereunder; (c) keep all user identification numbers, and related passwords, or other security measures (collectively, "User IDs") confidential and prohibit the sharing of User IDs; (d) immediately deactivate the User IDs of any employee who no longer has a need to know, or for terminated employees on or prior to the date of termination; (e) in addition to any obligations hereunder, take all commercially reasonable measures to prevent unauthorized access to, or use of, the Licensed Product or data received therefrom, whether the same is in electronic form or hard copy, by any person or entity; (f) maintain and enforce data destruction procedures to protect the security and confidentiality of all information obtained through Licensed Product as it is being disposed; (g) be capable of receiving the Licensed Product where the same are provided utilizing "secure socket layer", or such other means of secure transmission as is deemed reasonable by Licensor; (h) not access and/or use the Licensed Product via mechanical, programmatic, robotic, scripted or other automated search means, other than through batch or machine-to-machine applications approved by Licensor; (i) take all steps to protect their networks and computer environments, or those used to access the Licensed Services, from compromise; and (j) maintain policies and procedures to prevent unauthorized use of User IDs and the Licensed Services. In the event You learn or have reason to believe that User IDs, the Licensed Services, or any information related thereto have been misused, disclosed, or accessed in an unauthorized manner or by an unauthorized person or contrary to any terms of this Agreement (a "Security Event"), You shall provide immediate written notice to the via email to email@example.com. In the event of a Security Event, Licensor may, in its sole discretion, take immediate action, including suspension or termination of Your account, without further obligation or liability of any kind.
14. Apple Requirements. To the extent the Licensed Product is made available via an iOS platform or app, You acknowledge and agree Apple has no obligation whatsoever to support the Licensed Product, nor any warranty obligations or intellectual property infringement liability with regard to the Licensed Product other than a refund of the purchase price (if applicable). You agree Apple is under no obligation whatsoever to address any issues or claims that may arise from Your use of the Licensed Product under this Agreement, including but not limited to (i) consumer protection, (ii) product liability or other product support, (iii) intellectual property infringement; or (iv) that the Licensed Product fails to comply with any applicable law or regulation. You understand and agree Apple and Apple’s subsidiaries are third party beneficiaries to this Agreement, and upon Your acceptance or use of the Licensed Product, Apple will have the right to enforce this Agreement against You.
15. Export Restrictions. You may not use or otherwise export or re-export the Licensed Product except as authorized by United States law and the laws of the jurisdiction in which the Licensed Product was obtained. In particular, but without limitation, the Licensed Product may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Licensed Product, You represent and warrant that You are not located in any such country or on any such list. You also agree that You will not use the Licensed Product for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
16. Commercial Items. The Materials, Licensed Product, Services, and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
17. Arbitration. Other than claims and controversies involving any (i) violation of any of the proprietary rights of Licensor, including claims in equity or law to protect the intellectually property rights of Licensors or any of its third party providers, partners, or customers, or (ii) failure to comply with restrictions on use of the Licensed Product; any controversy, claim or counterclaim, arising out of or in connection with this Agreement will be resolved by binding arbitration under this Section and the then-current American Arbitration Association (“AAA”) Commercial Rules, WITH THE EXCEPTION THAT ANY ARBITRATION WILL BE CONDUCTED AND RESOLVED ON AN INDIVIDUAL BASIS ONLY AND NOT ON A CLASS-WIDE, MULTIPLE PLAINTIFF OR SIMILAR BASIS. In the event any court, arbitrator or panel of arbitrators rules that the foregoing limitation is invalid, then, arbitration shall not be available and is expressly precluded as a method of conducting and resolving disputes arising under this Agreement. The duty to arbitrate will extend to any employee, officer, agent or affiliate of either party. The arbitration will be conducted by a sole arbitrator who is knowledgeable with respect to the respective industry and is an attorney. The arbitrator’s award will be final and binding and may be entered in any court having jurisdiction. The arbitrator will not have the power to award punitive or exemplary damages, or any damages excluded by, or in excess of, any damage limitations expressed in this Agreement. Each party will bear its own attorneys’ fees and other costs associated with the arbitration, except that the fees assessed by the AAA for the services of the arbitrator will be divided equally by the parties. If court proceedings to stay litigation or compel arbitration are necessary, the party who unsuccessfully opposes such proceedings will pay all associated costs, expenses and attorneys’ fees which are reasonably incurred by the other party. Issues of arbitrability will be determined in accordance and solely with the federal substantive and procedural laws relating to arbitration; in all other respects, the arbitrator will be obligated to apply and follow the substantive law of the state as specified in this Agreement.
18. Time Limitation on Claims. You agree that any claim you may have arising out of or related to Your use of the License Product or against Licensor must be filed within one (1) year following the event that gave rise to such claim, otherwise such claim is permanently barred.
19. Use of Affiliates. You acknowledge and agree that the Licensed Product may be provided by affiliates of Licensor and other third party service providers.
20. Assignment. This Agreement and licenses granted herein are personal in nature may not be assigned by You, in whole or in part, without the prior written consent of Licensor. An assignment includes without limitation the dissolution, merger, consolidation, reorganization, sale or other transfer of assets. Any assignment without the prior written consent of Licensor shall be void.
21. Terms Related to Google. To the extent Google Maps are utilized within the Sites, You agree to the following additional Google terms and conditions: ) https://maps.google.com/help/terms_maps.html; https://maps.google.com/help/legalnotices_maps.html; and https://enterprise.google.com/maps/terms/universal_aup.html, as may be modified from time to time by Google.
22. Miscellaneous. Those provisions of this Agreement that by their terms, nature or sense survive any termination or expiration of this Agreement shall so survive in accordance with their terms, including but not limited to provisions related to intellectual property ownership and proprietary rights, limitations of liability, payment for product or services, and disclaimer of warranties. The failure or delay by either party in exercising any right, power or remedy under this Agreement shall not operate as a waiver of any such right, power, or remedy. If any provision of this Agreement is held to be unenforceable or contrary to law in a court of competent jurisdiction, such provision shall be changed and interpreted so as to best accomplish the original objective of the provision to the fullest extent allowable by law and the remaining provisions shall continue in full force and effect. The headings are inserted for reference only and shall not impact the interpretation of this Agreement. The laws of the State of Georgia, excluding its conflicts of law rules, govern this Agreement. Your use of the Materials may also be subject to other local, state, national, or international laws. Licensor may indicate that you are a customer or user of the Licensor Product. However, You shall not name Licensor or refer to the use of the Licensed Product or other Licensor products or services in any publication, news release, advertisement, or promotional or marketing materials without Licensor’s prior written consent.
Copyright 2018 Genpact. All rights reserved. Last updated 6.11.18