Please be advised Xlenz Platform Usages Terms & Conditions will change from time to time. Please check the web link https://www.xlenz.us/platform-usage-india for the latest version.
If Customer subscribes to the Platform Services pursuant to an Order Form, then Provider shall use commercially reasonable efforts to host, manage, operate and maintain the Platform Software for remote electronic access to and use by Customer and its Authorized Users in substantial conformity with the Specifications, except for: (a) Scheduled Downtime in accordance with Section 3.2; (b) Service downtime or degradation due to a Force Majeure Event; (c) any other circumstances beyond Provider’s reasonable control, including Customer’s or any Authorized User’s use of Third Party Materials, misuse of the Platform Services or use of the Services or Provider Materials other than in compliance with the express terms of this Agreement, any applicable Order Form and the Documentation; and (d) any suspension or termination of Customer’s or any Authorized Users’ access to or use of the Services, including, without limitation, the Platform Services, as permitted by this Agreement.
Except as otherwise expressly provided in this Agreement or in the applicable Order Forms, as between the Parties: (a) Provider has and shall retain sole control over the operation, provision, maintenance and management of the Platform Services and Provider Materials, including, without limitation, the: (i) Provider Systems; (ii) location(s) where any of the Platform Services are installed and performed, including in the United States, in countries outside the United States, or outside the borders of the country in which Customer or the Customer Systems are located, as applicable; (iii) selection, deployment, modification and replacement of the Platform Software; and (iv) performance of Support Services, if any, and Platform Service maintenance, Upgrades, corrections and repairs; and (b) Customer has and shall retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Services and Provider Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including, without limitation, any: (i) information, instructions or materials provided by any of them to the Services or Provider; (ii) results obtained from any use of the Platform Services or Provider Materials; and (iii) conclusions, decisions or actions based on such use.
Each Party shall, throughout the Term, maintain within its organization a service manager to serve as such Party’s primary point of contact for day-to-day communications, consultation and decision-making regarding the Services. Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of such Party under this Agreement. Each Party shall ensure that its service manager has the requisite organizational authority, skill, experience and other qualifications to perform in such capacity. Each Party shall use commercially reasonable efforts to maintain the same service manager in place throughout the Term. If either Party’s service manager ceases to be employed by such Party or such Party otherwise wishes to replace its service manager, then such Party shall promptly name a new service manager by written notice to the other Party.
Provider reserves the right, in its sole discretion, to make any changes to the Platform Services and Provider Materials that it deems necessary or useful in order to: (a) maintain or enhance (i) the quality or delivery of the Platform Services, (ii) the competitive strength of or market for the Platform Services or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law; provided that, except when required to comply with applicable Law or where Provider obtains Customer’s written consent, Provider will not, during the Term, make material changes to the Platform Services that materially reduce or diminish the features or functionality of the Platform Services or adversely affect Customer’s specific use of the Platform Services as contemplated under the applicable Order Forms.
Provider may, directly or indirectly, and by use of a Provider Disabling Device or any other lawful means, suspend, terminate or otherwise deny Customer’s, any Authorized User’s or any other Person’s access to or use of all or any part of the Platform Services or Provider Materials, without incurring any resulting obligation or liability, if: (a) Provider receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Provider to do so; or (b) Provider believes, in its good faith and reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction, the Documentation or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. This Section 1.5 does not limit any of Provider’s other rights or remedies, whether at law, in equity or under this Agreement or otherwise.
Subject to and conditioned on Customer’s payment of the Fees and compliance and performance in accordance with all other terms and conditions of this Agreement and each Order Form, Provider hereby authorizes Customer to access and use, during the Term, the Platform Services and such Provider Materials as Provider may supply or make available to Customer pursuant to one or more Order Forms, solely for the Permitted Use by and through Authorized Users in accordance with the Documentation and the conditions and limitations set forth in this Agreement, the applicable Order Forms and, as applicable, Provider’s End User License Agreement attached to the applicable Order Forms. The foregoing authorization is non-exclusive, non-sublicensable and non-transferable. Without limiting the generality of the foregoing, Customer acknowledges and agrees that Customer shall not resell or rent the Platform Services or the Provider Materials to any third-party.
Nothing in this Agreement shall grant any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services (including, without limitation, the Platform Services), Provider Materials or Third Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services (including, without limitation, the Platform Services), the Provider Materials and the Third Party Materials are and shall remain with Provider and the respective rights holders in the Third Party Materials.
Customers shall not, and shall not permit any other Person to, access or use the Services or Provider Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing or any other restrictions set forth in this Agreement, Customer shall not, except as this Agreement expressly permits: (a) copy, modify or create derivative works or improvements of the Services or Provider Materials; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or Provider Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Provider Materials, in whole or in part; (d) bypass or breach any security device or protection used by the Services or Provider Materials or access or use the Services or Provider Materials other than by an Authorized User through the use of his or her own then valid Access Credentials; (e) input, upload, transmit or otherwise provide to or through the Services or Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code; (f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Provider Systems or Provider’s provision of services to any third-party, in whole or in part; (g) remove, delete, alter or obscure any trademarks, Specifications, Documentation, EULA, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services or Provider Materials, including any copy thereof; (h) access or use the Services or Provider Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third-party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Provider customer), or that violates any applicable Law; (i) access or use the Services or Provider Materials for purposes of competitive analysis of the Services or Provider Materials, the development, provision or use of a competing software or platform service or product or any other purpose that is to the Provider’s detriment or commercial disadvantage; (j) access or use the Services or Provider Materials in, or in association with, the design, construction, maintenance, operation of any hazardous environments, systems or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services could lead to personal injury or severe physical or property damage; or (k) otherwise access or use the Services or Provider Materials beyond the scope of the authorization granted under Section 2.1.
Subject to the terms and conditions of this Agreement, Provider will use commercially reasonable efforts to make the Platform Services Available as specified in the applicable Order Forms, as measured over the course of each contract year during the Term (each such contract year, a “Service Period”), excluding unavailability as a result of any of the Exceptions described below in this Section 3.1 (the “Availability Requirement”). “Service Level Failure” means a material failure of the Platform Services to meet the Availability Requirement. “Available” means that the Platform Services are available for access and use by Customer and its Authorized Users and operating in material accordance with the Specifications. For purposes of calculating the Availability Requirement, the following are “Exceptions” to the Availability Requirement, and neither the Platform Services shall be considered un-Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Customer or its Authorized Users to access or use the Platform Services that is due, in whole or in part, to any: (a) act or omission by Customer or any Authorized User, including, without limitation, access to or use of the Platform Services by Customer or any Authorized User, or using Customer’s or an Authorized User’s Access Credentials, that does not strictly comply with this Agreement and the Specifications; (b) Customer Failure; (c) Customer’s or its Authorized Users’ Internet or network connectivity; (d) Force Majeure Event; (e) failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by Provider pursuant to this Agreement or an applicable Order Form; (f) Scheduled Downtime; or (g) disabling, suspension or termination of the Services pursuant to Section 1.5.
Provider will use commercially reasonable efforts to: (a) schedule downtime for routine maintenance of the Platform Services between the hours of 12:00 a.m. and 5:00 a.m., PT, or such other hours as reasonably determined by Provider are necessary to conduct such routine maintenance; and (b) give Customer at least two (2) hours prior notice of all scheduled outages of the Platform Services (“Scheduled Downtime”). Notwithstanding the foregoing, in the event that Scheduled Downtime will involve an outage of longer than five (5) hours, Provider will give Customer at least seven (7) days prior notice of such Scheduled Downtime.
Unless otherwise set forth in a SLA, the Services include Provider’s standard limited customer support and maintenance services (“Support Services”), which Provider makes available to its customers generally, which may be amended, superseded or terminated by Provider at any time in its sole and absolute discretion. Customer may purchase enhanced support services separately at Provider’s then current rates and pursuant to a SLA or other separate mutual written agreement between the Parties. The Parties may from time to time enter into one or more mutually acceptable Service Level Agreements (each a “SLA”) for service levels, maintenance and support of the Services related to an Order Form. Each SLA shall be attached to the Order Form to which such SLA relates.
The Provider Systems are programmed to perform routine data backups consistent with applicable industry standards, however the Services do not replace the need for Customer to maintain regular data backups or redundant data archives. PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA.
Provider will employ information security measures in accordance with applicable industry practice and Provider’s data privacy and security policies or as otherwise set forth in applicable Order Forms. Provider maintains a data breach plan in accordance with applicable industry standards and will implement the procedures required thereunder or as set forth in applicable Order Forms in the event of a data breach.
Customer acknowledges that the Services are not designed with security and access management for Processing the following categories of information: (a) data that is classified and/or used on the U.S. Munitions list, including, without limitation, software and technical data; (b) articles, services and related technical data designated as defense articles or defense services; and (c) ITAR (International Traffic in Arms Regulations) related data, (each of the foregoing, “Prohibited Data”). Customer shall not, and shall not permit any Authorized User or other Person to, provide any Prohibited Data to, or Process any Prohibited Data through, the Platform Services, the Provider Systems or any Provider Personnel. Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data.
Customer has and shall retain sole responsibility for: (a) all Customer Data, including, without limitation, its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer Systems; (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and Provider Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including, without limitation, all results obtained from, and all conclusions, decisions and actions based on, such access or use.
Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Platform Services; and (b) control the content and use of Customer Data, including, without limitation, the uploading or other provision of Customer Data for Processing by the Platform Services, as applicable.