Enlighta Spice Agreement
1.1 THIS AGREEMENT GOVERNS YOUR SUBSCRIPTION, ACCESS, AND USE OF ENLIGHTA SERVICES THROUGH THE ENLIGHTA PLATFORM.
1.2 IF YOU REGISTER FOR THE “FOREVER FREE” TIER FOR OUR SERVICES, THE PROVISION OF THIS AGREEMENT WILL ALSO GOVERN THAT “FOREVER FREE” TIER.
1.3 BY CLICKING ON “I AGREE” OR BY PURCHASING A SUBSCRIPTION FOR THE SERVICES, YOU INDICATE YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, IN YOUR CAPACITY AS A LEGALLY AUTHORIZED SIGNATORY OF YOUR ORGANIZATION (“YOU”, “YOUR”, “CUSTOMER” OR “YOUR ORGANIZATION”). THIS AGREEMENT IS ENTERED INTO BETWEEN YOU AND ENLIGHTA INC, A COMPANY REGISTERED UNDER THE LAWS OF THE USA (HEREINAFTER REFERRED TO AS “ENLIGHTA”, “WE”, “US” OR “OUR” WHICH EXPRESSIONS SHALL INCLUDE ITS AFFILIATES, SUCCESSOR IN INTEREST, ASSIGNS AND ITS SUBSIDIARIES).
1.4 YOU MAY NOT ACCESS THE SERVICES IF YOU ARE OUR COMPETITOR, EXCEPT WITH OUR PRIOR WRITTEN CONSENT. IN ADDITION, YOU MAY NOT ACCESS THE SERVICES FOR PURPOSES OF MONITORING THE AVAILABILITY, PERFORMANCE, OR FUNCTIONALITY, OF THE SERVICES OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
1.5 WE MAY UPDATE THIS AGREEMENT, FROM TIME TO TIME.
In this Agreement:
2.1 “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. A breach of this Agreement by Your Affiliate shall be deemed a breach by You.
2.2 “Agreement” means this Agreement including all attachments, annexes, schedules and other ancillary documents that relate to it, as well as any other attachments, annexes, schedules and other ancillary documents referred to in this Agreement.
2.3 “Software” means the software, namely ‘Enlighta Spice’ and various tools and services.
2.4 “Subscription” means the limited license to use and access the Software and Services in line with the Subscription Plan purchased by the Customer.
2.5 “Subscription Plan” a plan selected by the Customer out of the varied types of plans offered by us, enabling the Customer to enjoy different parameters in relation to the Services such as (but not limited to) app administrators, storage, reports, support, etc.
2.6 “Services” means services provided by us to you as a result of your access and use of the Software. Particulars of the Services offered shall depend on the Subscription Plan opted for by you.
2.7 “User” means an individual who is authorized by you to use the Services, for whom you have purchased a Subscription, and to whom you (or, when applicable, us at your request) have supplied a user identification and password (for Services utilizing authentication). Users may include, for example, your employees, consultants, contractors and agents, and third parties with which you transact business.
2.8 ”Website” means our official website (http://www.enlighta.com/).
2.9 “Your Data” means any data which you may provide, and which may also include User’s data and shall also include data collected by us in the course of your use of the Services.
3. Grant Of License
3.1 Upon purchasing the Subscription, we hereby grant you for the term of Subscription ( subject to early termination), non-exclusive, non-transferable, revocable, non-sublicensable, limited, subscription-based license to use the Software and Services for your internal business use, subject to the terms of this Agreement and the limitations of the relevant Subscription Plan opted for by you.
3.2 Restrictions: You shall not, directly or indirectly, a) copy, modify, adapt, translate, reverse engineer, decompile, disassemble, alter, reproduce or otherwise make any changes to the Software, or the Services, b) knowingly or negligently use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, c) use the Services to store any data that would be considered Personally Identifiable Information (PII), including Social Security Numbers, Health Records or any other data elements that would warrant higher protection under privacy laws and regulations unless explicitly authorized to do so, d) use the Software or Services in any manner to provide time-sharing, benchmarking or other computer services to third parties, except as expressly provided herein, or allow any third party to access or benefit from the functionality of the Software or the Services, or e) create derivative works based on the Services including by mirroring or framing the Services, or f) use the Software or the Services for any purpose other than the purpose specified under this Agreement,or g) allow use of the Software or the Services by anyone other than the permitted Users, or h) use the Software or Services in excess of the limitations of the Subscription Plan purchased by you. You shall have no rights to the Software other than expressly granted herein. We reserve all rights not specifically and unequivocally granted to you.
4. Use Of Services
4.1 Usage Limits. Services are subject to usage limits, including, for example, the quantities and limitations specified in the Subscription Plan opted by you under the Subscription. Unless otherwise specified, (a) a User’s password may not be shared with any other individual, and (b), a User identification may only be reassigned to a new individual replacing one who will no longer use the Service. If you exceed a contractual usage limit, we may work with you to seek to reduce your usage so that it conforms to that limit. If, notwithstanding our efforts, you are unable or unwilling to abide by a contractual usage limit, you will subscribe to a separate subscription plan for additional quantities of the applicable Services promptly upon our request and/or pay any invoice for excess usage in accordance with Section 5.2 (Invoicing and Payment).
4.2 Your Responsibilities. You will (a) be responsible for Users’ compliance with this Agreement and Services, (b) be responsible for the accuracy, quality, and legality of your data or information provided by you, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and notify us promptly of any such unauthorized access or use, and (d) use Services only in accordance with this Agreement, Subscription Plan and applicable laws and government regulations.
5. Fees And Payment
5.1 Fees. You will pay all fees in advance as specified in the Subscription Plan opted by you through the payment gateway or any other mode of payment as available at our Software. Except as otherwise specified herein or in the Subscription Plan, (i) fees are based on Services subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable and (iii) quantities purchased cannot be decreased during the relevant subscription term.
5.2 Invoicing and Payment. You will provide Us with a valid purchase order or alternative document reasonably acceptable to Us. Such charges shall be billed either annually or in accordance with any different billing frequency per the subscription plan. We will invoice You in advance and otherwise in accordance with this Agreement or the relevant Order Form. Unless otherwise stated herein or in the Order Form, undisputed invoiced charges are due net 30 days from the date You receive the invoice. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information. If You dispute amounts due on an invoice, You shall pay the undisputed items and shall notify Enlighta of the reasonably disputed items and detail the reason for the dispute within 30 days of receipt of invoice. No later than ten days after resolution of the disputed items, You shall pay the amount, if any, mutually agreed to be due for any disputed items.
5.3 Overdue Charges. If any invoiced amount is not received by us by the due date and the grace period as mentioned hereinabove, then without limiting our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) we may condition future Subscription renewals on payment terms shorter than those specified in Section 5.2 (Invoicing and Payment).
5.4 Suspension of Service and Acceleration. If any amount owing by you under this or any other agreement for our Services is 7 days overdue, we may, without limiting our other rights and remedies, accelerate your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend our Services to you until such amounts are paid in full.
5.5 Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with your Subscriptions hereunder. If we have the legal obligation to pay or collect Taxes for which you are responsible under this Section 5.5, we will invoice you and you will pay that amount unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, we are solely responsible for taxes assessable against us based on our income, property and employees.
5.6 Future Functionality. you agree that your Subscriptions 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.
6. Proprietary Rights And Licenses
6.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, we, our Affiliates and our licensors own all rights, titles and interests in and to all copyright, trademark rights, patent rights, design rights and other IP Rights to the Software and Services, as well as to any work output and all further developments, updates, upgrades, enhancements, modifications or derivative works which are developed on or out of the Services by any party. No rights are granted to you hereunder other than as expressly set forth herein.
6.2 License to Host your Data and Applications. You grant us, our Affiliates and applicable contractors a worldwide license to host, copy, transmit and display your Data, and program code created by or for you, as reasonably necessary for us to provide the Services in accordance with this Agreement.
6.3 License to Use Feedback. You grant to us a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into our and/or our Affiliates’ services any suggestion, enhancement request, recommendation, correction, or other feedback provided by you or Users relating to the operation of our or our Affiliates’ services.
7.1 Definition of Confidential Information. “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. Your Confidential Information includes your Data; our Confidential Information includes the Services; and Confidential Information of each party includes the terms and conditions of this Agreement, 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.
7.2 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) to (i) not 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, 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 not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement to any third party other than its Affiliates, legal counsel, and accountants 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. Notwithstanding the foregoing, we may disclose the terms of this Agreement and any applicable to a subcontractor or non-Enlighta application provider to the extent necessary to perform our obligations to you under this Agreement, under terms of confidentiality materially as protective as set forth herein.
7.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law 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 Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
8. Representations, Warranties, Exclusive Remedies, And Disclaimers
8.1 Representations. The parties each separately represent and warrant the execution, delivery, and performance of this Agreement have been duly authorized by all necessary corporate actions on its behalf, and this Agreement has been duly executed and delivered and is a legal, valid, and binding Agreement. You hereby warrant that no data or material you provide for use with or in connection with the Services shall infringe any third party’s copyright, patent, trademark, trade secret, or other proprietary rights or right of publicity or privacy or violate any applicable law, statute or regulation for its subscription term.
8.2 DISCLAIMERS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
9.1 Indemnification. You shall indemnify, defend and hold us and our Affiliates and their respective representatives harmless from and against any and all loss, damage, liability, suits, actions, proceedings, demands, damages, judgments, liabilities, claims, and expenses (including, without limitation, reasonable attorneys’ fees, expert fees, and court costs and the costs of investigation and defense and settlement awards) (collectively, the “Losses“) relating to, arising from, or in connection with (i) your or your Affiliates’, or any of their representatives’ performance under this Agreement, (ii) the breach or violation by you or your Affiliates, or any of their representatives of any representation, warranty, covenant or obligation under this Agreement; or (iii) any act or omission by you or your Affiliates, or its representatives in connection with their actions, omissions, obligations, and agreements hereunder; or (iv) any breach or violation of the law.
10. Limitation of Liability
10.1 Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOSS OF PROFITS OR REVENUE, OR LOSS OF DATA OR USE, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY CAUSE OF ACTION (CONTRACT, TORT, OR OTHERWISE) FOR MORE THAN THE TOTAL AMOUNT PAID TO US BY YOU DURING THE PREVIOUS THREE (3) MONTHS AT THE TIME THE ALLEGED CLAIM AROSE, WHETHER ARISING IN A SINGLE OR MULTIPLE CAUSES OF ACTION.
11.1 We shall have the right to audit the Customer during business hours and upon reasonable prior notice in order to verify that the Software is being used in compliance with this Agreement. Notwithstanding anything to the contrary contained herein, we shall be entitled to such programs to monitor your usage of the Software to ensure that the customer usage of the Software is in accordance with the terms of this Agreement.
12. Term And Termination
12.1 Term of Agreement. The agreement commences on the date you first accept it and continues until all Subscriptions hereunder have expired or have been terminated.
12.2 Term of purchased Subscriptions. The term of each Subscription shall be as specified in the applicable Subscription Plan. Except as otherwise specified in a Subscription Plan, Subscriptions will automatically renew for additional periods equal to the expiring Subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant Subscription term. We reserve our right, and we shall be entitled to change the pricing module at any time during the term of this Agreement. We may revise per unit pricing by providing fifteen (15) days prior written notice to you, and such revised pricing be applicable for the renewal term. Except as expressly provided in this Agreement, renewal of promotional or one-time priced Subscriptions will be at our applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which Subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
12.3 Termination. Either party may terminate this Agreement: (i) upon thirty (30) days written notice to the other party of a material breach of its obligations under this Agreement if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
We may terminate this Agreement by giving you at least sixty (60) days’ notice in writing.
12.4 Refund or Payment upon Termination. In no event will termination relieve you of your obligation to pay any fees and/or outstanding payable to us for the period prior to the effective date of termination.
12.5 Your Data Portability and Deletion. Upon request by you, upon termination or expiry of this Agreement, we will make your Data, in our possession and not legally prohibited, available to you for export or download. After termination or expiry of this Agreement, we will have no obligation to maintain or provide any of your Data in excess of the days that your Subscription Plan requires us to, and we may thereafter delete or destroy all copies of your Data in our systems.
If your ‘Forever Free’ account remains inactive for more than a week, we retain the right to deactivate your account and purge the data.
12.6 Surviving Provisions. The Section 5 “Fees and Payment,” Section 6 “Proprietary Rights and Licenses,” Section 7“Confidentiality,” Section 8.2“Disclaimers”, Section 9“Indemnification”, Section 10“Limitation of Liability”, Section 11 “Audit”, Section 12.4 “Refund or Payment upon Termination,” “ Section 13“Surviving Provisions”, Section 14 “Notice, Governing Law and Jurisdiction” and Section 15 “General Provisions” will survive any termination or expiration of this Agreement. All other agreements in relation to the Services between the parties shall be superseded by this Agreement except the Professional Services Agreement. This Agreement does not supersede, release, waive, amend, or in any way alter any release or waiver you have given to us or in any way release you from any obligation you owe Us, and, for the avoidance of doubt, nothing in this Agreement or otherwise shall in any way affect or impair the effectiveness of this statement
13. Notices, Governing Law, And Jurisdiction
13.1 Governing Law. This Agreement shall be governed and interpreted by the laws of the State of California as if performed wholly within the state and without giving effect to the principles of conflict of law. In the event an action is brought to enforce any provision or declare a breach of this Agreement, the prevailing party shall be entitled to recover, in addition to any other amounts awarded, reasonable legal and other directly related costs and expenses, including attorneys’ fees, incurred thereby, subject to section 10 of this Agreement.
13.2 Disputes. The parties agree in good faith to use reasonable efforts to resolve any and all conflicts and controversies between them relating to this Agreement informally and amicably between themselves before submitting any such matter for adjudication.
13.3 Notices. Any notice required or permitted to be given under this Agreement must be in writing and will be deemed effective:
- if given by personal delivery, upon such personal delivery;
- if given by an internationally- recognized courier or mail service, at the time that the notice is delivered to the receiver’s premises according to the tracking records of the courier or mail service; or
- upon delivery by facsimile or electronic transmission by verified electronic transmission receipt, in each case with a courtesy copy sent by email.
13.4 Addresses. The addresses for notice for each party are the respective addresses of the parties set forth in the billing details of the purchased Subscription. Either party may change its address for notice by written notification to the other party.
14. General Provisions
14.1 Entire Agreement. This Agreement (together with the documents referred to herein) constitutes the entire agreement between you and us in relation to the transactions referred to herein and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
14.2 Assignment. You shall not assign any of your rights or obligations hereunder, whether by operation of law or otherwise, without prior written intimation to us. We may assign this Agreement in its entirety, without your consent to our Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
14.3 Force Majeure: In any event or combination of events or circumstances beyond the control of a party which cannot (a) by the exercise of reasonable diligence, or (b) despite the adoption of reasonable precaution and/or alternative measures be prevented, or caused to be prevented, and which materially and adversely affects a party’s ability to perform obligations under this Agreement including but not limited to:
- acts of god i.e. fire, drought, flood, earthquake, epidemics, and other natural disasters.
- explosions or accidents, air crashes, and shipwrecks;
- demonetization and other government policy changes;
- strikes or lockouts;
- any change in the law; or
- any event or circumstances analogous to the foregoing.
The parties will not hold each other liable for their non-performance as set out in this Agreement in force majeure event. Nothing in this Section shall apply to your payment obligation as mentioned under Section 5 (Fees and Payment)
14.4 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.5 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
14.6 Severability. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall remain in full force.
15. Publicity Licence
15.1 Unless provided with a written notice explicitly advising us otherwise, you also grant us a non-exclusive, worldwide, royalty-free, non-sublicensable, and non-transferable right and license to use your name and logo (including any trademark) for advertising or publicizing the broad nature of our provision of the Products & Services to you, including on our websites or in our promotional material for the Agreement Term and 12 months following the Agreement Term.
16. Privacy Statement
16.1 Enlighta’s Services enable the collection of Your Data, Your assessments, Your supplier assessments, Your risks, issues, and related data that may enable You to respond to assessments, perform supplier assessments and monitor compliance.
16.2 Enlighta’s Services do not collect any sensitive personally identifiable information (such as health, government identifiers, tax information, bank information, etc.), and Enlighta’s license explicitly prohibits You from using Enlighta’s Services to collect and store any sensitive personally identifiable information.
16.3 You determine who has access to the Services to access Your Data and who is Your Account Administrator; Your Account Administrator creates and manages the users for Services used by You, including the setting of the role for each user. The role of a user determines the functions of Services that can be accessed, and the Data that can be accessed, created, updated, or deleted.
16.4 There is no direct access to the data for Your users other than via the functions supported by Enlighta’s Services.
16.5 Enlighta stores this data with a SOC 1, SOC 2 Type 2 certified hosting services provider in a database on a server that is available exclusively to Enlighta by the hosting services provider.
16.6 Enlighta does not share the data with any external entity, except as required by law.
16.7 Enlighta will purge the data upon termination of this agreement with You.