THIS IS AN AGREEMENT BETWEEN YOU OR THE ENTITY THAT YOU REPRESENT AS AN AUTHORISED END-USER (hereinafter “You” or “Your” or “Yourself”) AND
ANALEC Infotech Private Limited, with its corporate address at 6th Floor, Park Centra, Sector 30, NH-8, Gurgaon-122002, India if You or Your organization are located outside of the United States of America and/or Canada; OR
ANALEC North America, Inc., with its corporate address at 1120 Avenue of the Americas, 4th Floor, New York, NY 10036, United States of America if You or Your organization are located within the United States of America and/or Canada.
(Both hereinafter referred to as “ANALEC” or “Our” or “We” or “Us”) GOVERNING YOUR USE OF ANALEC InsightsCRM (referred to as “InsightsCRM”) software Services.
This Agreement consists of the following terms and conditions (hereinafter the “Terms”).
Note: We periodically update these terms. If You have an active InsightsCRM subscription, We will let You know when We update, via an email or in-app notification.
The following words and phrases have defined meanings:
“Affiliate” means an entity that directly or indirectly Controls, is Controlled by or is under common Control with the subject entity.
“User Data” means information relating to an authorized end-user using InsightsCRM Services.
“Confidential Information” means all information disclosed by a party (“Disclosing Party”) 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.
“Customer Data” or “Your Data” means any data provided by Customer that InsightsCRM processes on behalf of Customer as a Data Processor in the course of providing Services.
“Customer Personal Data” means Customer Data relating to person or entity (where entity’s information receives the same protection as Personal Data under applicable Data Protection Laws and Regulations).
“Data Processing Addendum” (DPA) means the addendum governing the handling of customer data.
“Documentation” means the online user guides, documentation, and help and training materials for the use of InsightsCRM Services, as updated from time to time, accessible at www.insightscrm.com or other Websites designated by Us.
“Order Form” means an ordering document or online order or subscription activation specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it Were an original party hereto.
“Processing” means any operation or set of operations which is performed upon Customer Data & Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
“Services” means the capabilities delivered via www.insightscrm.com (or any subvariant of www.insightscrm.com ) as a part of the subscription including but not limited to any other ANALEC Software extensions, third party extensions, modules, add-ins that are ordered by You under an Order Form or provided to You free of charge, or for a charge (as applicable) or under a free trial or a paid subscription and made available online by Us, including associated offline and mobile components, as described in the Documentation. “Services” exclude content (either created by You or licensed from third-party data providers) and Third-party Application integrations.
“Sub-processor” means any Processor engaged by Us, by a member of the ANALEC Group or by another Subprocessor.
“Terms of Service” means this document.
“ANALEC” means the ANALEC Infotech Private Limited, an Indian Corporation having its registered office at 90/31B, First Floor, Malviya Nagar, New Delhi, 110017, India and/or ANALEC North America, Inc., a USA registered and incorporated entity having its registered office in 108 Lakeland Avenue, Dover, DE 19901, USA or an Affiliate of ANALEC, as applicable.
2. Acceptance of the Terms
If You are subscribing as an individual user, You must be of legal age to use these Services. By accepting these Terms, you enter into a binding agreement with ANALEC. If You do not agree to the Terms, do not use any of our Services. You can accept the Terms by checking a checkbox or clicking on a button indicating Your acceptance of the terms, or by actually using our Services. Employees or affiliates of businesses offering Services that directly compete with any of ANALEC’s Services are expressly prohibited from accessing any ANALEC Services for competitive research or related activities.
If You are an end-user of a contracting Entity, then You must be of legal age and authorized by the Entity to use these Services. Your use is subject to the agreement between your Entity and ANALEC (“Contract”). Your acceptance of these Terms, by checking a checkbox or clicking on a button indicating your acceptance, or by actually using our Services constitutes your personal agreement with these Terms and the Contract.
Unless accompanied by a separate license agreement, any software and services provided by us to you as part of the Services is subject to these Terms. The Services and any accompanying software are licensed, not sold, and ANALEC reserves all rights to the software and Services not expressly granted by ANALEC, whether by implication, estoppel or otherwise. You understand that any accompanying software is licensed as a part of these Services and you do not get any independent right to use such software apart from these Services. You expressly agree to adhere to the terms of license at all times. ANALEC reserves the right to revoke your subscription and terminate access to the Services immediately if You breach these Terms.
3.2 Free Trial
We may offer new clients a limited non-transferable license to try our product for free (“Trial”) for a limited period. You are under no obligation to acquire a subscription to use any paid Service as a result of Your subscription to a Trial.
3.3 Beta Services
We may offer certain Services as closed or open beta Services (“Beta Service” or “Beta Services”) for the purpose of testing and evaluation. You agree that We have the sole authority and discretion to determine the period for testing and evaluation of Beta Services. We will be the sole judge of the success of such testing and the decision, if any, to offer the Beta Services as commercial Services. You will be under no obligation to acquire a subscription to use any paid Service as a result of Your subscription to any Beta Service. We reserve the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently, any of the Beta Services with or without notice to You. You agree that ANALEC will not be liable to You or any third party for any harm related to, arising out of, or caused by the modification, suspension, or discontinuance of any of the Beta Services for any reason.
3.4 Paid User Subscriptions
Unless otherwise specified (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the subscription term at the same pricing as that for the pre-existing subscriptions, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
3.5 Free Editions
We may offer free Services as a part of an existing subscription. Use of Free Services is also subject to the license granted and these Terms. Please note that Free Services are provided to You without charge up to certain limits as described in the Documentation. Usage over these limits requires Your purchase of additional resources or Services. You agree that ANALEC, in its sole discretion, may terminate Your access to the Free Services or any part thereof.
4. Restrictions on Use
This license granted under these Terms does not give You any right to and You will not:
Circumvent or bypass any technological protection measures in or relating to the Services;
Disassemble, decompile, decrypt, hack, emulate, exploit or reverse engineer any software or other aspect of the Services that is included in or accessible through the Services, except and only to the extent that the applicable copyright law expressly permits doing so;
Separate components of the software or Services for use on different devices;
Transfer, exhibit, publish, copy, rent, lease, sell, export, import, distribute or lend any software or the Services, or otherwise make available to any third party the Services, unless ANALEC expressly authorizes you to do so;
Provide any Service based on the Services without prior written permission of ANALEC;
Use the third-party links to sites without agreeing to their Website’s terms & conditions;
Post links to third party sites or use their logo, company name, etc. without their prior written permission;
Use the Services in any unauthorised way that could interfere with anyone else’s use of them or gain access to any service, data, account or network;
Use the Services for illegal purposes or for the transmission of material that is unlawful, defamatory, harassing, libelous, invasive of another’s privacy, abusive, threatening, harmful, vulgar, pornographic, obscene, or is otherwise objectionable, offends religious sentiments, promotes racism, contains viruses, or that which infringes or may infringe intellectual property or other rights of another, or that harvests or collects personal information of others, or files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software or programs, or falsify or delete copyright management notices or otherwise violate intellectual property rights of others; or
Use the Services for the transmission of “junk mail”, “spam”, “chain letters”, “phishing” or unsolicited mass distribution of email.
We reserve the right to terminate Your access to the Services if there are reasonable grounds to believe that You have used the Services for any illegal or unauthorized activity.
5. Obligations of User
You are responsible for obtaining access to the Internet and the respective equipment necessary to use the Services. ANALEC does not bear any liability whatsoever for Your inability to access or use the Services due to the inadequacy of your Internet connection or equipment. In addition, Your failure or inability to access or use the Services (whether partially or fully) for these reasons will not entitle you to any extension of the subscription period.
5.2 Sign up Obligations
You agree to:
1. Provide true, accurate, current and complete information about Yourself as prompted by the
signup process; and
2. Maintain and promptly update the information provided during sign up to keep it true, accurate, current, and complete.
If You provide any information that is untrue, inaccurate, outdated, or incomplete, or if ANALEC has reasonable grounds to suspect that such information is untrue, inaccurate, outdated, or incomplete, ANALEC may terminate Your subscription and refuse current or future use of any or all of the Services.
5.3 Transmitted Content
You agree to be solely responsible for the contents of Your transmissions through the Services. ANALEC has no obligation to monitor Your transmissions but reserves the right to review transmissions and terminate Your access to any or all of Services at any time, without notice, if such transmissions violate these Terms.
5.4 Use of Extensions
ANALEC may offer extensions to accompanying InsightsCRM or ANALEC software or to other third-party software under these Services (“extension”). When You enable an extension, You understand that your data may be automatically copied, formatted or modified to enable compatibility with the Services under the subscription; You grant ANALEC rights to do so in order to provide You with the added functionality.
When You enable an extension that connects to a third-party application or Service, You acknowledge that You agree to the third-party’s terms of service, and grant ANALEC permission to access, copy, reformat, transmit, and to make available to the third-party in question, any data required by said third-party to render Services to You. You further indemnify ANALEC of any liability associated with the third-party’s access to, and use of data provided to it on Your behalf.
5.6 Secure Use
You are responsible for the secure use of the Services. This includes securing Your account authentication credentials, protecting the security of Your data when in transit to and from the Services and taking any appropriate steps to securely encrypt or export any of Your data uploaded to the Services. You are additionally responsible for ensuring that You do not accidentally make any private content publicly available. ANALEC assumes no obligation or liability in this respect. ANALEC will not be liable for any loss that you may incur as a result of someone else using your password, account or data, either with or without your knowledge. However, you could be held liable for losses incurred by ANALEC or another party due to someone else using your account, password, or data.You agree to use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify us promptly of any such unauthorized access or use.
5.7 Legality of Data
You shall be responsible for the accuracy, quality, and legality of Your Data and the means by which You acquired Your data.
5.8 Compliance with Local Laws
You agree to use Services only in accordance with the documentation and applicable laws and government regulations.
5.9 Other Users Compliance
If You are agreeing on behalf of Your business, You will be responsible for the compliance of other users on the account with this agreement.If any users on Your subscription violate the terms of this agreement, ANALEC may terminate Your subscription and refuse the current or future use of any or all of the Services.
6. Obligations of ANALEC
ANALEC will maintain administrative and technical safeguards for the protection of the security, confidentiality, and integrity of Your Data. Those safeguards will include, but are not limited to measures for preventing access, use, modification or disclosure of Your data by our personnel, except (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by law in accordance with the “Confidentiality: Compelled Disclosure” section below, or (c) as expressly permitted in writing by You.
6.2 Privacy of User Data
6.3 Processing of Customer Personal Data
Where Your use of Services includes the processing by ANALEC of Customer Personal Data on your behalf, You consent and agree that ANALEC may process the data in accordance with the terms of the data processing addendum (“DPA”) linked here. The DPA is deemed incorporated into this Agreement and is effective from the effective date of Your subscription.Please go through the DPA carefully. If You believe that privacy laws as applicable in Your jurisdiction require processing terms that are different from the DPA, please contact us at email@example.com so we can discuss and implement more compliant processing terms.
We will use commercially reasonable efforts to make the online purchased Services available 24 hours a day, 7 days a Week, except for: (i) planned downtime (of which We shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, for example, an act of God, act of government, flood, fire, earthquake, epidemics, pandemics, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Infrastructure or Internet service provider failure or delay, Non-ANALEC Application, cyber-attacks or denial of service attack.
7. Fees, Payments, Cancellations, & Refunds
7.1 Automatic renewal & Fee revision
If You activate the paid subscription after Your free trial period ends, and at the end of each InsightsCRM Cloud subscription period, subscriptions are automatically renewed, and payment is processed using the payment method entered in the InsightsCRM Cloud Billing section. We reserve the right to modify subscription fees and to charge for the use of Services that are currently available free of charge.
7.2 Fees are non-refundable
You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services purchased and not actual usage, and (ii) payment obligations are non-cancelable, and fees paid are non-refundable.
7.3 Invoicing and Payment Details
Fees will be invoiced monthly/annually in advance or otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, fees are due net 15 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
7.4 Payment by credit card or Wire Transfer
If You are paying by credit card You authorize us to charge Your credit card for all fees payable during the Subscription Term. If you are paying by Wire Transfer, You establish a obligation to release payment, at the instance of the generation of the Order Form. You further authorize us to use a third-party to process payments, and consent to the disclosure of Your payment information to such third-party.
For payments made for past periods, refunds will not be issued. Payments towards migration Services, kickstart Services, training service fees are non-refundable after the service has started.
7.6 Payment Retries and Account Suspension
If ANALEC is not able to process payment for an invoice, ANALEC will retry for the next 14 days. If payment is not received within 14 days, ANALEC will put the account in the suspended state, for the next 15 days. To re-activate Your account, You can simply pay the outstanding invoice(s). If Your account has not been activated within 60 days of suspension, Your instance will be deleted. An archive will be available for another 30 days from the account deletion date.
You can discontinue this subscription at any time through the aforementioned Billing section. Cancellations that are made prior to the end of any subscription period will stop the automatic renewal of Your InsightsCRM Cloud subscription at the end of the subscription period. Your account will remain active until the end of the subscription period that has already been paid for by You.
7.8 Backup and Restoration
If Your paid account has been closed and if any archive is available during the archival period, to restore from the archive, a US$350 account restoration fee will apply in addition to any unpaid invoices.
For paid subscription accounts, We automatically back Your CRM instance data up every day and keep backups for a rolling 90 days. You expressly grant us authorization to maintain such back-ups. In the event that Your CRM data is undesirably lost or modified, You can ask us to replace Your current CRM data with one of those backups for a US$350 fee per request, by emailing us at firstname.lastname@example.org and including the reason for the request and the date of the backup that You would like restored to Your instance. Restorations erase any new CRM data created (post the date of the requested backup), and revert any changes made to existing CRM data after the date of the backup that was restored. Restoration might not be always available and We do not guarantee restoration in all cases. We do not assume any liability for the unavailability or inability to carry out a restoration successfully.
7.9 Payment Disputes
ANALEC will review and respond to payment disputes submitted to email@example.com address. However, We will not exercise our rights under the “Payment Retries and Account Suspension” section above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
7.10 Sales Tax
All fees are exclusive of any taxes, which We will charge as applicable. You agree to additionally pay any taxes applicable to Your use of the Services.
7.11 Future Functionality
You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features.
8. Subscription Term, Termination, & Suspension
8.1 Term and Renewal
Your initial subscription period will be specified in Your Order, and Your subscription will automatically renew for the shorter of the subscription period or one year. To prevent a renewal of the subscription, You must cancel the subscription. If You add products during the Subscription Term, the fees for these additional products will be prorated and they will renew along with Your subscription unless otherwise indicated in Your Order.
InsightsCRM Cloud service may come with the Free Email credits (where applicable). You may buy additional Email Credits. If You choose a Pay as You Go Plan, email credits of the plan will be added to Your CRM subscription. Pay as You Go purchased credits last 12 months. If You choose Monthly Plans, email credits of the plan will be added to Your CRM subscription automatically every month. Usage resets at the beginning of each billing cycle.
8.2 Suspension and Termination of Paid Accounts
We may suspend Your user account or temporarily disable access to whole or part of any Service in the event of any suspected illegal activity, or requests by law enforcement or other government agencies. Objections to suspension or disabling of user accounts should be made to firstname.lastname@example.org within thirty days of being notified about the suspension. We may terminate a suspended or disabled user account after thirty days. We will also terminate Your user account on Your request. In addition, We reserve the right to terminate Your user account and deny the Services upon reasonable belief that You have violated the Terms and to terminate Your access to any Beta Service in case of unexpected technical issues or discontinuation of the Beta Service. Termination of user account will include denial of access to all Services, deletion of information in Your user account such as Your e-mail address and password and deletion of all data in Your user account.
8.3 Suspension and Termination of Free Services
We may suspend, limit, or terminate Free Services that we provide at any time without notice.
9. Data Ownership
9.1 Data Ownership
We respect Your right to ownership of content and data created or stored by You. You own the content created or stored by You. Unless specifically permitted by You, Your use of the Services does not grant ANALEC or any of its partners the license to use, reproduce, adapt, modify, publish or distribute the content created by You or stored in Your user account for ANALEC’s commercial, marketing or any similar purpose. But You grant ANALEC permission to access, copy, store, reformat, the content of Your user account solely as required for the purpose of providing the Services to You.
9.2 Sample files and Applications
ANALEC may provide sample data and files for the purpose of demonstrating the possibility of using the Services effectively for specific purposes. The information contained in any such sample files and applications consists of random data. ANALEC makes no warranty, either express or implied, as to the accuracy, usefulness, completeness or reliability of the information or the sample files and applications.
10. Communications from ANALEC
The Service may include certain communications from ANALEC, such as service announcements, administrative messages, and newsletters. You understand that these communications shall be considered part of using the Services. As part of our policy to provide You total privacy, We also provide You the option of opting out from receiving newsletters from us. However, You will not be able to opt-out from receiving service announcements and administrative messages.
11.1 Confidential Information
Your Confidential Information includes Your Data; Our Confidential Information includes our Services and all intellectual property, proprietary information and trade secrets associated therewith; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without access or reference to the Disclosing Party’s Confidential Information.
11.2 Protection of Confidential Information
The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section.
11.3 Compelled Disclosure
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law or a valid order of a governmental agency, legislative body, or court of competent jurisdiction to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Receiving Party will disclose only that portion of the Confidential Information that it believes, in its reasonable assessment, satisfies the requirement to disclose. The Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
12. Customer Data Storage and Deletion Policy
With respect to Customer Data, unless we have agreed otherwise in writing, ANALEC will adhere to the terms of the DPA referenced in Section 6.3 above.
12.1 Trial Subscriptions
If a paid subscription is not created within 12 days after Your trial is completed, We reserve the right to delete the trial account and all associated trial data at or beyond the 12-day mark.
12.2 Paid Subscriptions
Data in paid accounts/subscriptions that are canceled or for which payment is overdue will be maintained as stated in these Terms. If for any reason We are unable to successfully bill Your preferred payment method, We reserve the right to suspend access to Your account within 14 days of the failed billing attempt, and proceed to delete Your account, users, and all associated data within 60 days of the first failed billing attempt.
13. Referral Programs
ANALEC may make available, at its discretion, participation in referral programs that reward participants for referring clients to ANALEC. By participating in these programs, You agree to keep confidential all program related materials, terms, details, and agreements, except where expressly granted by ANALEC. Additionally, any referral links provided by ANALEC for the purposes of this program may not be passed through any tools that shorten, modify, or track links in any way. Links may additionally not be transferred, sold, or made available to the general public unless expressly permitted by ANALEC. If users are found to have engaged in behavior that violates these terms, ANALEC may rescind access to the referral program, and revoke all rewards earned through the program.
14. Modification of Terms of Service
We may modify the Terms upon notice to You at any time. You will be provided notice of any such modification by electronic mail or by publishing the changes on the Website terms-of-service. You may terminate Your use of the Services if the Terms are modified in a manner that substantially affects Your rights in connection with the use of the Services. Your continued use of the Service after notice of any change to the Terms will be deemed to be Your agreement to the amended Terms.
ANALEC, ANALEC logo, ANALEC InsightsCRM and ANALEC InsightsCRM logo are trademarks of ANALEC (‘ANALEC trademarks’). You agree not to display or use, in any manner, the ANALEC trademarks, without ANALEC’s prior consent.
All other trademarks not owned by ANALEC that appear in the Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by ANALEC (‘third party trademarks’) . You agree not to use third party trademarks for any other purpose without their owners’ prior consent.
16. Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN AS-IS-AND-AS-AVAILABLE BASIS. ANALEC EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ANALEC MAKES NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR VIRUS-FREE. USE OF ANY MATERIAL DOWNLOADED OR OBTAINED THROUGH THE USE OF THE SERVICES SHALL BE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE TELEPHONE, WIRELESS DEVICE OR DATA THAT RESULTS FROM THE USE OF THE SERVICES OR THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED BY YOU FROM ANALEC, ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
17. Limitation of Liability
17.1 Limits to Liability
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF ANALEC AND ITS AFFILIATES TO YOU AND YOUR AFFILIATES IN RESPECT OF ANY SERVICE, WHETHER DIRECT OR INDIRECT, EXCEED THE FEES PAID BY YOU TOWARDS SUCH SERVICE IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR AND YOUR AFFILIATES’ PAYMENT OBLIGATIONS UNDER SECTION 7 ABOVE.
17.2 Exclusion of Consequential and Related Damages
YOU AGREE THAT ANALEC SHALL, IN NO EVENT, BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER LOSS OR DAMAGE WHATSOEVER OR FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, COMPUTER FAILURE, LOSS OF BUSINESS INFORMATION, OR OTHER LOSS ARISING OUT OF OR CAUSED BY YOUR USE OF OR INABILITY TO USE THE SERVICE, EVEN IF ANALEC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
17.3 Force Majeure
ANALEC is not responsible or liable for any failure to perform or delay in performing its obligations under these Terms to the extent that the failure or delay is caused by circumstances beyond ANALEC’s reasonable control including without limitation, an act of God, act of government, flood, fire, earthquake, epidemics, pandemics, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Infrastructure or Internet service provider failure or delay, Non-ANALEC Application, cyber-attacks or denial of service attack. We will endeavor to minimize the effects of any of these events and to perform the obligations that aren’t affected.
You agree to indemnify and hold harmless ANALEC, its officers, directors, employees, suppliers, and affiliates, from and against any losses, damages, fines and expenses (including attorney’s fees and costs) arising out of or relating to any claims that You have used the Services in violation of another party’s rights, in violation of any law, in violations of any provisions of the Terms, or any other claim related to Your use of the Services, except where such use is authorized by ANALEC.
19. Governing Law, Jurisdiction, Arbitration, Waiver, Severability and Notices
19.1 Governing Law and Jurisdiction
If Your contract is with ANALEC Infotech Private Limited then this Agreement will be governed by, construed and enforced in accordance with the laws of India regardless of conflict of law principles and, subject to dispute resolution mechanism described in Section 19.2 below, You irrevocably submit to the personal jurisdiction of and agree that the Delhi High Court will have exclusive jurisdiction to entertain claims, enter judgement on settlements or an arbitral award, and entertain and decide claims for temporary or permanent injunctive relief, or other issues arising out of or relating to this Agreement, including without limitation the interpretation of these Terms, claims for their breach; and all other claims (including consumer protection, unfair competition and tort claims).
If Your contract is with ANALEC North America, Inc. then this Agreement will be governed by, construed and enforced in accordance with the laws of the State of New York, USA regardless of conflict of law principles and, subject to dispute resolution mechanism described in Section 19.2 below, You irrevocably submit to the personal jurisdiction of and agree that the Federal Court of the city of New York exercising personal jurisdiction over ANALEC North America, Inc. will have exclusive jurisdiction to entertain claims, enter judgement on settlements or an arbitral award, and to entertain and decide claims for temporary or permanent injunctive relief, or other issues arising out of or relating to this Agreement, including without limitation the interpretation of these Terms, claims for their breach; and all other claims (including consumer protection, unfair competition and tort claims).
19.2 Disputes and Arbitration
You agree to attempt to resolve any dispute, controversy or claim arising out of or relating to these Terms or Your use of the Services (“Dispute”) through good faith negotiations with ANALEC. The Party raising the dispute will send a written notice of dispute containing details of the dispute and the name of its appointed nominee to the other Party for negotiations to commence. The other Party will appoint its own nominee within 3 business days of receipt of the written communication. Where the parties are unable to resolve the dispute within fifteen (15) days of a party sending a written notification to the other party requesting for negotiations to resolve a Dispute, then either party may submit a written demand of arbitration to the other party and:
For contracts where ANALEC Infotech Private Limited is the Contracting Party, such Dispute shall be finally resolved by arbitration in accordance with the Indian Arbitration and Conciliation Act, 1996 in effect as of the date the relevant demand for arbitration is submitted, and judgment upon the award rendered by the arbitrator may be entered in the court having jurisdiction. The place of arbitration shall be Delhi, India and the arbitration proceeding shall be conducted in English language. The arbitral panel shall consist of a sole arbitrator selected jointly by the Parties. If parties are unable to mutually agree on the sole arbitrator, then the court of competent jurisdiction will appoint the arbitrator. The decision of the Arbitrator shall be final and binding upon the parties, their successors and assigns. The language for the Arbitration shall be in English and the venue of the Arbitration proceedings shall be at Delhi, India.
For contracts where ANALEC North America, Inc. is the Contracting Party, such Dispute shall be finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) under SIAC’s Arbitration Rules (the “Rules”) in effect as of the date the relevant demand for arbitration is submitted, and judgment upon the award rendered by the arbitrators may be entered in the court having jurisdiction. The arbitral panel shall consist of a single arbitrator, named in accordance with the Rules The decision of the Arbitrator shall be final and binding upon the parties, their successors and assigns. The language for the Arbitration shall be in English and the venue of the Arbitration proceedings shall be at Singapore.
Notwithstanding the above, You acknowledge and agree that any violation or threatened violation of this Agreement by You may cause irreparable harm to ANALEC, the degree and scope of which may be difficult to ascertain. You further acknowledge and agree that, in the event of any actual or threatened breach of Your obligations under these Terms, ANALEC may have no adequate remedy at law. Therefore, ANALEC shall have the right to seek temporary and permanent injunctive relief in the court of competent jurisdiction, to prevent, enjoin and prohibit any such actual or threatened breach, in addition to any and all other rights and remedies available to it.
ANALEC’s failure to fully exercise any right, power or remedy under these Terms does not imply any waiver of such right, power or remedy. Any express waiver or assent by ANALEC with respect to any breach or default under any provision of these Terms does not constitute a waiver or assent with respect to any subsequent breach or default under that or any other provision.
No waiver shall be effective unless in writing signed by the party waiving its rights hereunder.
If any provision of these Terms is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions will not be affected, and those provisions shall remain in full force and effect. If a court or other decision-maker should determine that any provision of these Terms is overbroad or unreasonable, such provision shall be given effect to the maximum extent possible by narrowing or enforcing in part that aspect of the provision found overbroad or unreasonable.
19.5 Manner of Giving Notice
All notices, permissions, and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, or (iii) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant administrators designated by You.