Trmeric
Customer – Terms and Conditions
These Trmeric Customer Services Terms and Conditions, including any Order Forms referencing these Terms and Conditions (collectively “T&Cs”) are entered into between Trmeric Inc., a company its registered office at 2272 Rosemount Lane, San Ramon, 94582, USA (hereinafter “Trmeric”, which expression shall, unless it be repugnant to the context or meaning thereof, be deemed to mean and include its successors and assigns) and the Customer (defined below). The T&Cs set out the terms and conditions on which the Customer accesses and uses the Services offered by Trmeric (as defined below). Trmeric and the Customer shall be collectively referred to as “Parties”, and individually as “Party”, as the context may require.
These T&Cs establish a legally binding contract between Trmeric and the Customer. By executing an Order Form pursuant to these T&Cs, the Customer agrees to be bound by the T&Cs stated herein.
1. DEFINITIONS AND INTERPRETATION
In these T&Cs, unless the context otherwise requires:
“Affiliate” shall mean with respect to any person, any other person that either directly or indirectly, through one or more intermediaries, Controls, or is Controlled by, or is under common Control with, such specified person. In this regard, “Control” shall mean with, respect to a person, the beneficial ownership directly or indirectly of more than 50% (fifty percent) of the voting shares or securities of an entity or the power to control the majority of the composition of the board of directors of such entity or the power to direct the management or policies of such entity, by contract or otherwise.
“Applicable Law” shall mean, in relation to the obligations of the Parties to these T&Cs, all and any laws, ordinances, statutes, rules, regulations, orders, licenses, permits, approvals, authorisations, consents, waivers, privileges, guidelines, directives, codes, manuals, standards, policies, requirements, and agreements of the government authority having the force of law and exercising jurisdiction over the relevant matter, and in effect as of the date hereof or as may be amended, enacted or revoked from time to time hereafter, including writs, judgments, injunction, decrees and other such orders.
“Business Day” refers to any day, excluding Saturdays, Sundays and days that are public holidays in the United States, on which commercial banks are open for businesses in Santa Clara, California.
“Confidential Information” shall mean all information, whether verbal or documentary, relating to either Party, which is accessed by the other Party, whether directly under these T&Cs or indirectly, and whether or not such information is expressly designated as Confidential Information. It shall, without limitation, include: (a) any and all proprietary information, plans, specifications, software programs, processes, schematics, drawings, techniques, algorithms, databases, documentation, formulae, copyright materials, know-how, ideas, methods, business information such as sales and marketing materials, plans, accounting and financial information, trade secrets, price lists, sales reports, personnel records such as the names and addresses of either Party’s employees, contractors, sub-contractors, other personnel and other information that may be accessed, created, revised, developed, or otherwise obtained by the other Party, including reports, analyses, compilations, studies or documents that are prepared by either Party in relation to these T&Cs; (b) any information that may be reasonably understood by its nature, or by the context of its disclosure, to be confidential; (c) information that is derived from the aforementioned categories of information; and/or (d) original information that is supplied by a Party, or information provided to a Party by third parties which the Party is obligated to keep confidential.
“Customer” shall refer to a legal person that avails the Services.
“Data Protection Laws” shall mean any regulations governing the protection of Personal Data and the collection, processing, storage, use and/or application of Personal Data or privacy of an individual, including (without limitation) all binding directives, circulars, guidelines, and rules (whether in law or contract) or codes of conduct that are formulated to comply with laws relating to the protection of Personal Data or privacy of an individual and are issued by any regulator to either Party.
“Fees” shall mean the consideration paid by the Customer on a subscription basis for using the Services, including any upfront fees, ongoing fees and other fees, as per the Tiers set out in the Order Form.
“Insolvency Event” shall mean, in relation to a Party, the inability to pay its debts as they fall due; admission of its inability to pay its debts; general assignment, arrangement or composition with or for the benefit of its creditors; commencement of insolvency proceedings (or proceedings for appointment of an administrator, liquidator, receiver or similar official over its assets); passing of a resolution for voluntary winding-up, official management, liquidation or dissolution (other than pursuant to a consolidation, amalgamation or merger) or appointment of an administrator, liquidator, receiver or similar official over its assets, or any similar proceeding.
“Loss” shall mean any and all losses, liabilities, damages, deficiencies, demands, claims (including third party claims), actions, judgments or causes of action, assessments, interest, penalties and other costs or expenses (including, without limitation, reasonable attorneys’ fees and expenses).
“Material” shall mean all material associated with the Services, including, without limitation, any names, logos, trademarks, images, text, columns, graphics, information, button icons, audio, video files, notes, software, code and other content including all Proprietary Rights therein, except content that Customers or Partners may post or make available.
“Order Form” shall mean a separate contract executed pursuant to these T&Cs that is entered into between Trmeric (or its Affiliates) and the Customer (or its Affiliates), including any addenda and supplements to the same. The Order Form shall incorporate all the terms of these T&Cs, and may be amended as required.
“Partner Offerings” shall mean the goods and/or services offered by the Partner to the Customers.
“Partner” shall mean a legal person that has agreed to become a provider of Partner Offerings and shall include but not be limited to technology service providers, start-ups, software-as-a-service providers, consultants, professionals and experts.
“Personal Data” shall mean any data, records or information whether relating directly or indirectly to an individual and from which it is practicable for the identity of the individual to be directly or indirectly ascertained including by reference to other data, records or information, or as may be defined under applicable Data Protection Laws in the jurisdictions relevant to the Personal Data being processed as contemplated in these T&Cs.
“Proprietary Rights” shall mean any and all registerable, registered or unregistered intellectual property rights, and related rights of any kind, in any territory or jurisdiction in the world (whether statutory, common law or otherwise) comprising, (a) rights in published and unpublished original works of authorship and copyrights and ancillary rights therein, including all registrations, renewals, extensions, restorations and reversions thereto; (b) all computer programs and software, microcode, software implementations of algorithms, computer program architecture, models and methodologies, whether in source code, object code, executable code and components thereof, data bases, compilations of information, websites, content and graphics, systems, network tools, and related documentation, including any registrations and applications in respect thereof, to the extent transferable; (c) rights with respect to trademarks, service marks, logos and design marks, trade names and brand names, together with all goodwill associated with any of the foregoing, and all registrations and applications thereof (including any extensions, modifications, and renewals of any such registrations or applications); (d) rights with respect to internet domain names and uniform resource locators, including registrations and applications thereof; (e) rights with respect to trade secrets and know-how, including rights to limit the use or disclosure thereof by any person; (f) all national, regional and international patents (including utility patents and models, design patents and patents arising from any patent applications), rights in inventions, or (g) any rights equivalent or similar to any of the foregoing; and (g) any applications made or registrations or issuances in relation to the foregoing intellectual property, including which have either lapsed, expired, opposed, refused or abandoned.
“Services” shall refer to the services offered by Trmeric to the Customers including use of the Trmeric Communityas described in the Order Form, and as amended from time to time.
“Trmeric Community” shall mean the platform service provided by Trmeric to connect Customers with Partners so as to enable the Customer to avail the Partner Offerings.
“Tier(s)” shall mean the subscription plan(s) set out in the Order Form, as amended from time to time, pursuant to which one or more Services are provided to Customers in lieu of a Fee.
2. SCOPE OF SERVICES
2.1. Pursuant to the Parties entering into these T&Cs, they will execute an Order Form and Trmeric shall provide all Services to the Customer, as outlined in such Order Form.
2.2. In consideration for the provision of Services under these T&Cs, the receipt and sufficiency of which it acknowledges, the Customer represents, warrants and covenants that on and from the date of onboarding till the termination of these T&Cs, the Customer will comply with all Applicable Laws in relation to: (i) their use of the Services; and (ii) any content posted or provided by the Customer in relation to the Services.
2.3. Trmeric retains the right at its discretion to:
(a) periodicially assess the content provided by the Customer, including any content it may post on the Trmeric Community;
(b) add, remove or otherwise modify all or part of its Services; and
(c) temporarily suspend, all or in part, the Customer from availing the Services offered by Trmeric.
3. CONSIDERATION
3.1. For providing the Services, Trmeric shall charge, and Customer shall pay to Trmeric, the Fees as set out in the Order Form, depending on the Tier chosen.
3.2. Trmeric shall invoice the Customer periodically for the Services in the manner and frequency set out in the Order Form. All invoices will be payable by the Customer within 30 days from the date on which the invoice was received by the Customer.
3.3. In case the Customer delays in making any payments which are due and payable pursuant to an invoice, it shall be liable to pay an interest of the lower of (a) 1.5% of the amount due on such invoice, or (b) the highest rate permitted by Applicable Law, for every month of such delay thereafter. If the dues remain unpaid beyond a period of 60 days from the due date, the same will be deemed to be a breach of a material obligation under these T&Cs, and Trmeric shall have the right to terminate these T&Cs pursuant to Clause 12.2.
3.4. Trmeric may engage third-party payment service providers to process payments under these T&Cs, and to that extent, should the Customer choose to utilise the services of such third-party payment service providers, the Customer may also be subject to the terms of such payment service providers. Trmeric will not be responsible for payment failures or errors due to the third-party payment service provider, and such issues must be resolved directly between Customer and the payment service provider concerned.
3.5. Each Party shall be responsible for the payment of all applicable taxes that are required to be paid by it, unless otherwise required by Applicable Law. The Customer may deduct amounts payable as tax deducted at source on the Fees as may be required under Applicable Law.
4. CUSTOMER ONBOARDING
4.1. Trmeric has the sole discretion to onboard a Customer and permit it to avail the Services. In this regard, Trmeric may prescribe certain conditions for onboarding a Customer.
4.2. Trmeric will collect, access, use or otherwise process certain information from the Customer to personalise the Services, including information relating to the company/organisation, industry, users, roles, departments, organisational hierarchy, current technology landscape, strategic priority areas for technology, software development lifecycle (SDLC) methodologies, and subscription payment mechanisms. Notwithstanding the above, Trmeric will not utilise any Customer Confidential Information, for the purposes of developing or training any artificial intelligence (AI) models that are used as part of the Services.
4.3. Trmeric will provide the Customer with onboarding support in the form of demonstrations of the Services and access to user guides explaining the Services.
4.4. Customer shall be provided with unique credentials for accessing its profile on the Trmeric Community and shall be responsible for maintaining the security of its profile and credentials from unauthorised access. Customers may choose to complete the onboarding set-up through an online or offline process, basis the Services listed in the Order Form.
5. REPRESENTATIONS AND WARRANTIES
5.1. Each Party hereby represents and warrants to the other Party as follows:
(a) It has the requisite authority and power to execute, deliver and discharge these T&Cs.
(b) The execution and performance of obligations of these T&Cs do not, in any manner, interfere or conflict with, or violate or breach, Applicable Law to which the Party is subject.
5.2. The Customer represents and warrants to Trmeric as follows:
(a) All information provided by the Customer, including for the purposes of onboarding, are true and accurate in all respects and not misleading or false.
(b) It has all the necessary rights in the content it may provide, including any content it may post on the Trmeric Community, and that the use of this content or any part thereof does not and will not infringe the Proprietary Rights of a third party anywhere in the world.
5.3. Trmeric represents and warrants that the Services and the Materials, including all Proprietary Rights therein, do not infringe, violate or misappropriate, the Proprietary Rights of any third party anywhere in the world.
6. PARTIES’ OBLIGATIONS
6.1. Non-Disparagement. Neither Party shall at any time make, publish or communicate to any third party, any defamatory or disparaging comments, statements, remarks concerning the other Party, its employees, Affiliates, prospective customers, suppliers and other associated parties, in a manner that is likely to be harmful to the Party.
6.2. The Customer agrees that it shall:
(a) comply with all Applicable Laws and these T&Cs in all respects in relation to the use of the Services, and not use the Services in any manner beyond the scope of rights expressly granted in this Agreement;
(b) not, directly or indirectly, engage in deceptive, misleading or fraudulent activities, such as, without limitation, fraudulently placing orders or posting fake reviews;
(c) not access or search the Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than the Services features provided by Trmeric for use expressly for such purposes;
(d) not frame, mirror, sell, resell, rent or lease use of the Services or Material to any other person, or otherwise allow any person to use the Services or Material for any purpose other than in accordance with these T&Cs;
(e) not use the Services, Material or any Confidential Information of Trmeric for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Services;
(f) not, directly or indirectly, use any software, code, device or undertake any action to interfere or attempt to interfere with the integrity or functioning of the Services in their usual manner, including interfering with others’ usage of the Services, or of any data or content contained in the Services or transmitted thereby;
(g) not host, display, upload, modify, publish, transmit, store, update or share any information that: (i) belongs to another person and to which the Customer has no rights; (ii) is obscene, pornographic, paedophilic, invasive of another’s privacy, including bodily privacy, insulting or harassing on the basis of gender, libelous, racially or ethnically objectionable, relates to or encourages money laundering or gambling, or an online game that causes user harm, or promotes enmity between different groups on the grounds of religion or caste with the intent to incite violence; (iii) is harmful to a child; (iv) infringes Proprietary Rights; (v) deceives or misleads the addressee about the origin of a message or intentionally and knowingly communicates any misinformation or information that is patently false, untrue or misleading in nature or, in respect of any business of a relevant government, identified as fake or false or misleading by the notified fact check unit of such government; (vi) impersonates another person; (vii) threatens the sovereignty, unity, integrity, defence, or security of a nation, its friendly relations with foreign states, or public order, or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting to another nation; (viii) contains software virus or any other computer code, file or program designed to interrupt, destroy or limit the functionality of any computer resource; (ix) is the nature of an online game that is not verified as a permissible online game; (x) is in the nature of advertisement or surrogate advertisement or promotion of an online game that is not a permissible online game, or of any online gaming intermediary offering such an online game; or (xi) violates any law for the time being in force;
(h) avail Partner Offerings only on the basis of binding contractual terms with the Partners and adhere to the contractual terms governing the Partner Offerings;
(i) notify Trmeric of any commercial engagements with Partners, and provide Trmeric with any information that may be requested in this regard, including a copy of the agreement and/or statement of work entered into with the Partners for the Partner Offerings.
(j) not encourage Partners to circumvent Trmeric when providing Partner Offerings;
(k) provide due intimation to Trmeric regarding any change in its ownership, legal status, any proceedings against it with respect to these T&Cs, or in relation to cessation of its business; and
(l) provide Trmeric with all the information necessary under Applicable Law or as may be reasonably required by Trmeric in relation to the Services.
(m) provide feedback, reviews, and/or ratings with respect to Partners and/or Partner Offerings in good faith and without any intention to malign or harm the reputation of the Partner. The Customer agrees and acknowledges that its feedback, reviews and/or ratings will be accessible to Trmeric, and Trmeric may choose to make any such information available to Partners, as it deems appropriate.
6.3. Trmeric shall:
(a) materially comply with Applicable Law in providing the Services in accordance with these T&Cs;
(b) undertake commercially reasonable efforts to ensure the security and integrity of the Services offered; and
(c) perform the Services in a professional manner with a level of skill, care and diligence that is reasonably expected of entities engaged in providing similar services.
7. DISCLAIMERS
7.1. Except for the warranties specified in these T&Cs, the Services (including the Material provided thereunder) are provided “as is” without warranty of any kind, either express or implied, including without limitation, any implied warranties regarding merchantability, suitability of information for a particular purpose, or non- infringement. Trmeric does not warrant, and hereby disclaims any warranties, either express or implied, with respect to, the accuracy, adequacy or completeness of the Material.
7.2. The Customer agrees and acknowledges that Trmeric is a marketplace intermediary that, among other Services, connects Customers with Partners for the purpose of availing Partner Offerings via the Trmeric Community, and that the Partner Offerings shall be governed as per the terms agreed separately by the Partner and the Customer. Trmeric is, in no manner, responsible for the quality, sale, or distribution of Partner Offerings, including any non-conformity, deficiency or defect in any of the Partner Offerings, to the Customers. The Customer agrees that the Partner is entirely and solely responsible, for the resolution of queries, disputes or claims, including but not limited to any claims of genuineness, authenticity, guarantee and warranty, as may be relevant to the Partner Offerings. The Customer acknowledges that the liability for the Partner Offerings along with all costs and expenses that may be incurred thereunder shall vest entirely with the Partner and shall be governed by the terms agreed separately by the Partner and the Customer.
7.3. Without prejudice to its rights under these T&Cs, Trmeric does not have any obligation or liability to verify any content provided by the Customer or posted by the Customer on the Trmeric Community, with the same being displayed on an ‘as-is’ basis, nor shall Trmeric be liable for any of the content posted on the Trmeric Community, or for any damages, claims or Losses that result from the use of the content on the Trmeric Community. The respective Parties shall remain solely responsible for the content posted by them on the Trmeric Community.
7.4. Trmeric is not responsible for: (a) any consequences resulting out of the misuse of any kind by the Customer of the Services, including the Trmeric Community, in a manner that causes any harm or injury to a third-party; and (b) any Loss that the Customer may incur as a result of a third party using the Customer’s profile, either with or without their knowledge.
7.5. Trmeric will not be liable for the breach of any warranty or obligation under these T&Cs which is attributable to (i) the use of the Services by the Customer in violation of these T&Cs or Applicable Law or (ii) the use of the Services in conjunction with third-party software or other material that Trmeric has not provided and contemplated for.
7.6. Trmeric will take reasonable measures to ensure that the Services provided are free from any known malicious code or instructions, computer virus, device or other software code or routine that may disrupt or interfere with the normal use of the Services by the Customer, or that may materially affect the regular functioning of the Customer’s systems, websites, applications, servers or other software while using the Services.
7.7. The Customer agrees and acknowledges that the Services offered therein are hosted on third-party servers and are therefore dependent on such third-parties. Consequently, Trmeric does not warrant that the Services will be uninterrupted, timely, secure or error-free, will not experience outages, or will not be disrupted due to technical or operational difficulties without prior notice of downtime. However, Trmeric shall endeavour to ensure the uptime of the Trmeric Community and provide secure and error-free Services, on a best-efforts basis.
8. CONFIDENTIAL INFORMATION
8.1. Each Party will treat the other Party’s Confidential Information as strictly confidential and will use such information only for the purposes contemplated under these T&Cs. The Party receiving Confidential Information (the “Receiving Party”) from the Party disclosing such Confidential Information (the “Disclosing Party”) shall not, without the prior written consent of the Disclosing Party, publish, use or otherwise disclose to any third party, any Confidential Information, except for the purposes and in the manner envisaged under these T&Cs.
8.2. The Receiving Party shall: (a) disclose Confidential Information under these T&Cs only to its Affiliates, employees, directors, insurers etc., on a need-to-know basis, provided that such recipients are bound to confidentiality obligations no less stringent than those herein; and (b) adopt the same security precautions to protect against the disclosure or unauthorised use of such Confidential Information that it adopts in respect of its own proprietary information, and in no event will it use protective measures less than what is reasonable for information of its nature.
8.3. The obligations under this Clause 8 will not apply to information that: (a) the Disclosing Party specifies is not confidential; (b) is or becomes generally available as part of the public domain to the public, other than through the breach of either these T&Cs or any other obligation owed to the Disclosing Party or without any action or other involvement by the Receiving Party; (c) was in the possession of the Receiving Party or was already known by it prior to receiving such information from the Disclosing Party, without breach of any obligation owed to the Disclosing Party; (d) was rightfully disclosed to the Receiving Party by a third party which, to the knowledge of the Receiving Party, is not subject to a confidentiality obligation to the Receiving Party; or (d) was independently developed without using any resources or information from the Disclosing Party.
8.4. If either Party, or any of its representatives, is required by Applicable Law to disclose any Confidential Information of the other Party, it shall, to the extent not legally prohibited, provide the other Party prompt written notice of such requirement, and cooperate with the other Party so that it may take such actions as it deems appropriate to protect the confidentiality of such information, including by obtaining a protective order. If such order or other relief cannot be obtained, the disclosing Party shall make disclosure of the Confidential Information only to the extent that is legally required of it and no further.
8.5. The obligations described under this clause will remain in force during the entire term of these T&Cs and for a period of 5 years post the expiry of these T&Cs, except for any trade secrets that may be disclosed by Trmeric to the Customer pursuant to these T&Cs (in respect of which the confidentiality obligation shall survive in perpetuity).
9. DATA PROTECTION
9.1. Each Party acknowledges that it may process and share with the other Party Personal Data for performing their respective obligations under these T&Cs, and to this end undertakes to comply with applicable Data Protection Laws. The Parties will collect and process Personal Data as per the terms set out in the Trmeric Customer Privacy Policy, accessible here and the Data Processing Agreement (DPA) accessible here, as applicable[ 1] .
9.2. The Customer represents, warrants and covenants (a) that it has obtained and maintains all consents, registrations and/or authorizations as may be required to enable Trmeric to receive from the Customer and process any Personal Data; and (b) that it has maintained and shall maintain appropriate technical and organisational measures in place to prevent unauthorised or unlawful processing of such Personal Data, protect Personal Data against accidental Loss, destruction or damage, and ensure the reliability of its employees / contractors having access to the Personal Data.
9.3. The Customer shall (a) immediately provide Trmeric with full details of any complaint or allegation that the Customer is not complying with applicable Data Protection Laws; and (b) assist Trmeric in taking any action that Trmeric deems appropriate to deal with such complaint or allegation.
9.4. Each Party shall promptly notify the other Party regarding the occurrence of a cyber-incident or data breach and in any event within 2 hours of the same being brought to its notice. The notifying Party shall cooperate with the other Party in investigating and mitigating the adverse effects of such cyber-incident or data breach as well as meeting any reporting obligations under Applicable Law.
10. INTELLECTUAL PROPERTY
10.1. Each Party acknowledges and agrees that Trmeric is and shall remain the sole and exclusive holder of all Proprietary Rights in Services and Material and that these T&Cs do not affect such ownership or right. Customer acknowledges that it acquires no rights under these T&Cs to the Services or Materials other than the limited rights specifically granted under this Clause 10.
10.2. Trmeric provides the Customer a worldwide, non-sublicensable, non-exclusive, personal, non-commercial, non-transferrable, royalty-free, and limited license to use and access the Services, including the Trmeric Community, and the Materials that are hosted as part of the Services, in relation to availing of the Partner Offerings and other Services offered by Trmeric during the Term. The Customer also grants to Trmeric a worldwide, non-exclusive, personal, non-commercial, sub-licensable, royalty-free and limited license to reproduce, host, display and otherwise use any content provided by the Customer or posted by the Customer on the Trmeric Community, solely for the purposes of performing Trmeric’s obligations under these T&Cs during the Term. Unless contrary to Applicable Law, such license shall not lapse, nor shall the rights transferred therein revert to the Customer, even if Trmeric does not exercise the rights under the license within a period of one year from the date of such license.
10.3. The Customer grants to Trmeric a worldwide, non-exclusive, personal, non-commercial, sub-licensable, royalty-free and limited license to reproduce, host, display and otherwise use the Customer’s trademarks, trade names, brand names or logos to identify the Customer as a user of the Services (including in any marketing materials, press releases or announcements). Unless contrary to Applicable Law, such license shall not lapse, nor shall the rights transferred therein revert to the Customer, even if Trmeric does not exercise the rights under the license within a period of one year from the date of such license.
10.4. The Customer must not directly or indirectly, and must not assist any third party to directly or indirectly: (a) copy, reproduce, republish, upload, post, transmit, spread or otherwise distribute the Material or Services in any manner; (b) directly or indirectly decompile, distribute, recreate, reverse-engineer, disassemble, decode, create derivative works from, gain improper access to, sell or otherwise use, rent, loan, sub-license, lease or distribute, the Material, Services or any software component therein unauthorisedly, whether for commercial or for non-commercial purposes; or (c) do or suffer to be done any act or thing which in any way may impair the Proprietary Rights of Trmeric, or act in a manner that could materially diminish the value of, or goodwill associated with the Services or Material.
11. LIABILITY AND INDEMNITY
11.1. Without prejudice to any other rights available in Applicable Law or under equity, the Customer hereby agrees, including in relation to its subcontractors, to compensate, indemnify, defend, and hold harmless Trmeric, its Affiliates, directors, shareholders, officers and employees and agents, from any and all Losses arising out of, or in relation to or otherwise in respect of:
(a) any breach of representations, warranties or obligations under these T&Cs;
(b) any breach of Clause 8 (Confidentiality), 9 (Data Protection) or 10 (Intellectual Property) of these T&Cs;
(c) all actions or claims for breach of Proprietary Rights of any third party in relation to the content provided by the Customer, including any content posted by the Customer on the Trmeric Community; and
(d) any fraud, willful misconduct or gross negligence by Customer in relation to its obligations under these T&Cs.
11.1A. Without prejudice to any other rights available in Applicable Law or under equity, Trmeric hereby agrees, including in relation to its subcontractors, to compensate, indemnify, defend, and hold harmless the Customer, its Affiliates, directors, shareholders, officers and employees and agents, from any and all Losses arising out of, or in relation to or otherwise in respect of:
(a) any breach of its obligations under Section 7.6 of these T&Cs;
(b) any fraud, willful misconduct, or gross negligence by Trmeric in relation to its obligations under these T&Cs.;
(c) all actions or claims for breach of Proprietary Rights of any third party in relation to the Services provided by Trmeric, provided that:
(i) the Customer notifies Trmeric promptly (but in no event more than thirty (30) days after notice of a claim) upon learning that the claim might be asserted;
(ii) Trmeric has sole control over the defense of the claim and any negotiation for its settlement or compromise;
(iii) the Customer does not make any admission of liability or take any other action that limits Trmeric’s ability to defend the claim;
(iv) the Customer provides such cooperation in defending the claim as Trmeric reasonably requests; and no settlement may be entered into by Trmeric on behalf of the Customer that includes obligations to be performed by the Customer (other than payment of money that will be fully paid by Trmeric above) without the Customer’s prior written approval.
11.2. Neither Party shall in any way be liable to the other Party for any loss of profits, whether anticipated or real, loss of reputation, data, or any direct, indirect, incidental, special, consequential, punitive, tortious or other damages, including for Loss of profits or goodwill, howsoever they be caused, notwithstanding whether such Party is advised about the possibility of such damages.
11.3. Subject to Applicable Laws, in no event will either Party’s its employees’, or its agents’, partners, and contractors’, aggregate liability arising from or related to its obligations under these T&Cs, whether in contract, tort, or otherwise, exceed the payments actually received and retained by Trmeric from the Customer in the previous 12 months. The limitation on either Party’s liability herein shall not apply to liabilityin case of fraud, willful misconduct, or gross negligence by the Customer. Notwithstanding the above, the total cumulative liability of either Party for any breach of Clauses 6.2(a)-(g), 8 (Confidentiality), 9 (Data Protection) and 10 (Intellectual Property) of these T&Cs shall not exceed in aggregate three times of the aforesaid liability limit.
12. TERM AND TERMINATION
12.1. These T&Cs shall be effective from the date on which these T&Cs or an Order Form pursuant to these T&Cs (whichever is earlier) are executed by the Parties (“Effective Date”) and their term shall be co-extensive with the period for which the Customer subscribes to the Services (“Term”).
12.2. Without prejudice to its rights under these T&Cs, Applicable Law or equity, Trmeric will have the right to terminate these T&Cs, suspend or terminate the Customer upon a material breach of a representation, warranty or obligation under these T&Cs, which shall include, without limitation any breach of Clauses 3 (Consideration), 4 (Customer Onboarding), 5.2, 6.2, 8 (Confidentiality), 9 (Data Protection) and 10 (Intellectual Property) of these T&Cs.
12.3. Each Party shall have the right to terminate these T&Cs if the other Party becomes subject to an Insolvency Event, and such Insolvency Event, if capable of cure, is not cured within a period of 30 days of the occurrence of the Insolvency Event.
12.4. Either Party shall have the right to terminate this T&Cs for convenience at any time by providing 30 days’ prior notice, provided that the Customer may exercise this right only after (i) the expiry of such period as may be specified in the Order Form, and (ii) its obligations under active contracts with Partners have concluded.
12.5. Effect of Termination:
(a) Upon termination or expiration of these T&Cs, unless otherwise agreed between the Parties:
(i) the Customer’s right to use the Services will immediately terminate, with the Customer’s access to the Trmeric Community being disabled.
(ii) the Customer shall immediately cease using any of the Services;
(iii) any and all amounts that are due and payable by Customer to Trmeric under these T&Cs shall become due and payable to Trmeric in full immediately; and
(iv) subject to Applicable Law, each Party shall promptly return to the other or destroy any Confidential Information or Materials pertaining to the other Party, as applicable, and certify in writing that the same has been returned or destroyed, as the case may be.
(b) The termination or expiry of these T&Cs does not in any manner affect any rights of either Party under these T&Cs which accrued prior to such termination or expiry.
(c) Notwithstanding anything to the contrary herein, the provisions set forth under Clauses 1, 2, 3, 6.1, 6.2, 8, 11, 12, 13, 14 and those provisions which from their nature or context are contemplated to survive such termination, shall remain in full force and effect notwithstanding such expiry or termination.
13. GOVERNING LAW, JURISDICTION AND DISPUTE RESOLUTION
13.1. These T&Cs shall be governed by the laws of California and, subject to this Clause 13, the courts of Santa Clara, California shall have exclusive jurisdiction in respect of any dispute that may arise from these T&Cs.
13.2. In the event of a dispute whether arising in connection with the subject matter of these T&Cs or any matter or thing in any way connected with these T&Cs, including questions regarding the existence interpretation, validity or termination of these T&Cs, the Parties shall first endeavour to settle these disputes amicably through good faith consultations and negotiations. If the Parties are unable to resolve the dispute within 30 Business Days from the date on which the dispute arose, either Party may approach the competent courts in accordance with Clause 13.1 above.
14. MISCELLANEOUS:
14.1. Entire Agreement. These T&Cs along with the Order Forms executed pursuant thereto, appendices, associated service orders, side letters and amendments or appendments, as relevant to these T&Cs, shall constitute the entire, final and binding agreement governing the relationship between the two Parties and shall supersede any other mutual understandings or agreements in any form whatsoever between them.
14.2. Force Majeure. Excluding the obligations in relation to the payment of Fees, neither Party shall be liable to the other Party for a breach of its obligations under these T&Cs due to circumstances beyond their reasonable control, such as a natural disaster, war, civil disorder, lockdowns due to epidemics, pandemics or terrorist attack, except if the breaching Party is at fault in failing to prevent such breach and/or if the breach can be circumvented by the breaching Party using reasonably similar alternate sources, workaround plans or other such means (each such event, a “Force Majeure Event”). In case of a Force Majeure Event, the breaching Party will be entitled to a reasonable time period extension to perform its obligations, provided such Party notifies the other Party regarding the delay within 2 Business Days of such event or as soon as is reasonably possible, and takes all necessary steps to mitigate damages arising therefrom.
14.3. Severability. The provisions of these T&Cs are severable, and the unenforceability of any provision in these T&Cs shall not affect the enforceability of any other provision in these T&Cs. If any provision of these T&Cs is determined by a court of competent jurisdiction to be unenforceable in its extant form and is re-construed to align with the scope, duration, extent or character of the obligations in these T&Cs, the Parties shall construe such provision in the manner to effectuate the purposes of that provision as is interpreted by the court, to the maximum extent enforceable under Applicable Law.
14.4. Relationship. Each Party shall be considered to be an independent contractor in the performance of the obligations under these T&Cs and will not be deemed to be an agent or employee of the other Party for any purpose whatsoever. These T&Cs have been entered into on an arms-length basis, with neither Party having the capacity to enter into these T&Cs on behalf of, or incur obligations and liabilities on behalf of, any third party.
14.5. Assignment. No Party shall transfer, novate, assign or sub-license these T&Cs, including any rights or obligations hereunder, without the prior written consent of the other Party, provided that Trmeric shall have the right to assign the rights and obligations under these T&Cs, whether in whole or in part, to its Affiliates, without the consent of the Customer. Any attempt to transfer, novate or assign these T&Cs without such consent will be void.
14.6. Sub-Contractors. Trmeric may, for the performance of its obligations under these T&Cs, subcontract the performance of its Services to third party subcontractors (“Subcontractors”). Trmeric shall remain primarily liable and be bound by, and responsible for, all acts and omissions by such Subcontractors, and for their non-compliance with the relevant requirements as set out under these T&Cs.
14.7. Notice. All notices and any other communications that are required or permitted to be provided under these T&Cs shall be in writing and shall be deemed to be properly given and served on the Party to whom such notice is to be provided if sent by hand, email, fax or courier to the Party at its address mentioned in the Order Form, with either party having the right to designate, by written notice to the other Party, a substitute address which it wishes to use for the purposes of these T&Cs.
14.8. No Waiver. Any failure by either Party to exercise or delay exercising, any right, remedy or power under these T&Cs, shall not operate as a waiver. A single or partial exercise of such right, remedy or power does not preclude any other or any further exercise of that or any other right, remedy or power. Any waiver is not binding on the Party granting such waiver unless the waiver is made expressly in writing.
14.9. Publicity. The Customer shall not, without Trmeric’s express written consent, initiate any advertising, promotional or other such commercial purposes to the public media, or any other parties related to the performance of these T&Cs or the existence of these T&Cs between Trmeric and the Customer. Trmeric’s name, brand, logo or trademark may not be used by the Customer without Trmeric’s express written consent in connection with any written or oral publicity, press release, advertisement, technical article or other announcements.
14.10. Export Regulation. The Customer affirms that it is not named on, owned by, or acting on behalf of, any U.S. government denied-party list, and it agrees to comply fully with all relevant export control and sanctions laws and regulations of the United States (“Export Laws”) to ensure that neither the Services, Partner Offerings, software, any Materials, nor any technical data related thereto is: (i) used, exported or re-exported directly or indirectly in violation of Export Laws; or (ii) used for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, or biological weapons proliferation, missile systems or technology, or restricted unmanned aerial vehicle applications. Customer will complete all undertakings required by Export Laws, including obtaining any necessary export license or other governmental approval.
14.11. Amendment. Trmeric may amend these T&Cs including any Order Forms executed pursuant thereto at any time by providing Customer prior notice of such amendments and the same shall be binding upon Customer upon its acceptance. If Customer does not agree to be bound by such amendments, Trmeric reserves the right to terminate these T&Cs.