TERMS AND CONDITIONS OF SAAS SERVICE
1. SAAS SERVICES AND SUPPORT
1.1 Subject to these terms and conditions and the key information (e.g., duration of contract, price, support level) set out in your Services Order Form (together, “Agreement”), Mish Guru Limited and its holding company or subsidiaries (“Mish Guru”) will provide you (the “Customer”) with the use of the Mish Guru Software Platform and technical support (“Services”).
1.2 The provision of the Services is non-exclusive. Nothing in this Agreement prevents Mish Guru from licensing, selling or otherwise providing the Services to any other person.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (Software); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Mish Guru or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
2.2 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with this Agreement and Mish Guru’s then current standard published acceptable use policy (“Policy”) and all applicable laws and regulations. Customer is responsible for any and all use of the Services through their account. Although Mish Guru has no obligation to monitor Customer’s use of the Services, Mish Guru may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.3 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Mish Guru includes non-public information regarding features, functionality and performance of the Service and Software. Proprietary Information of Customer includes non-public information and data provided by Customer to Mish Guru to enable the provision of the Services (“Customer Information”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 Customer shall own all right, title and interest in and to the Customer Information, as well as any data that is based on or derived from the Customer Information and provided to Customer as part of the Services. Mish Guru shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with implementing the Services, and (c) all intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, Mish Guru shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Information and data derived therefrom), and Mish Guru will be free (during and after the expiration of this Agreement to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Mish Guru offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
3.4 Solely for the purposes of Mish Guru operating, developing, providing the Services, the Customer grants Mish Guru a non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, store, display, reproduce, reuse, modify, create derivative works, perform, and distribute data and other information (including photos, videos, comments, links, and other materials). Nothing in this clause shall restrict other legal rights Mish Guru may have to that information, for example under other licenses. Mish Guru reserves the right to remove or modify that information where Mish Guru believes it violates the terms of this Agreement or the Policy.
3.5 Mish Guru may store data (including any Customer Data) in secure servers in any country that is operates in (including the United States, Germany, Australia and New Zealand) and that Mish Guru may access that data (including any Customer Data) in those locations from time to time.
4. PAYMENT OF FEES
4.1 Customer will pay Mish Guru the applicable fees (including any applicable Other Fees) described in the Services Order Form in accordance with this Agreement (the “Fees”). If Customer’s use of the Services exceeds any terms set forth on the Service Order Form or otherwise requires the payment of additional fees, Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Mish Guru reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial Service Term or then‑current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Mish Guru has billed Customer incorrectly, Customer must contact Mish Guru no later than thirty (30) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Mish Guru’s customer support department.
4.2 Mish Guru may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Mish Guru thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than taxes based on Mish Guru’s net income.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the initial Service Term as specified in the Services Order Form, and shall be automatically renewed for additional periods of the same duration, unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. WARRANTY AND DISCLAIMER
Mish Guru shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Mish Guru or by third-party providers, or because of other causes beyond Mish Guru’s reasonable control, but Mish Guru shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Mish Guru does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND MISH GURU DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, MISH GURU AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (i) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (ii) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (iii) FOR ANY MATTER BEYOND MISH GURU’S REASONABLE CONTROL; OR (iv) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED USD1,000, IN EACH CASE, WHETHER OR NOT MISH GURU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.1 Mish Guru is not associated with Snap Inc or any other social media platform. Where possible, Mish Guru endeavours to ensure that the Services adhere as closely as possible to the Snap Inc terms of service and the terms of any other social media platform. However, the Customer acknowledges that the tools included in the Service make it impossible to fully meet the Snap Inc terms of service at this time. Customer also acknowledges that, by using the Services, they may be non-compliant with the terms of service Snap Inc and other relevant social media platforms, and accepts the risks associated with their decision to use the Services.
8.2 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Mish Guru’s prior written consent. Mish Guru may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Mish Guru in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Mish Guru to serve as a reference account upon request.