Self-Serve Subscription Agreement
PLEASE REVIEW THIS AGREEMENT CAREFULLY, AS IT AFFECTS YOUR LEGAL RIGHTS. THIS AGREEMENT CONTAINS PROVISIONS REQUIRING THAT YOU AGREE TO THE USE OF ARBITRATION TO RESOLVE ANY DISPUTES ARISING UNDER THIS AGREEMENT RATHER THAN A JURY TRIAL OR ANY OTHER COURT PROCEEDINGS AND TO WAIVE YOUR PARTICIPATION IN CLASS ACTION OF ANY KIND AGAINST VERGECLOUD.
This Self-Serve Subscription Agreement (the "Agreement") is a legal and binding agreement between Verge Cloud Private Limited , a private limited ("Verge Cloud" or "we") and you, or if you enter this Agreement on behalf of a company, organization, or another legal entity ("you" or "Entity"), governing your use of Verge Cloud's https://www.vergecloud.com website, the emailing services and all other related Services that Verge Cloud provides. This Agreement is effective when you click to accept it, use or access the Services, or otherwise indicate your acceptance of the Agreement. Further, you agree to this Agreement that the Entity you represent to Verge Cloud has given you the authority to bind such Entity to this Agreement.
Overview
This Agreement governs the use of Verge Cloud's CDN and DNS services that are provided as part of a subscription or require a Verge Cloud's account, along with any software made available by Verge Cloud in connection with such Services, including top-notch security solutions, powerful edge worker and reliable TCP proxy to help the online presence of content (collectively, the "Services"). Your use of the Services is subject to the applicable provisions in the https://www.vergecloud.com/terms/, https://www.vergecloud.com/privacy/, https://www.vergecloud.com/cookie/ and any applicable plan or product limits, disclaimers, or other terms presented to you on our website or documentation, each of which is incorporated by reference into the Agreement.
Upon signing up for a Service and payment of any applicable fees, Verge Cloud authorizes you and your end users to access and use the Services by the terms of this Agreement and the relevant description of the Services published by Verge Cloud on its website or Portal ("Service Description"). Verge Cloud reserves the right without any liability to you to discontinue or modify any Services at any time. Please note that we will give you 30 (thirty) days' prior notice before discontinuing any of our Services.
Services
2.1. Accessibility
Subject to your compliance with this Agreement (including, without limitation, all payment obligations), Verge Cloud hereby grants to you a limited, revocable, non-exclusive, non-transferable, and non-sublicensable (except to Affiliates) right, to access and use the Services. If you are agreeing to this Agreement on behalf of an Entity, such Entity's Affiliates may also access and use the Services provided that such Affiliates agree to be bound by the terms of this Agreement and the Entity remains fully liable for such Affiliates' actions and omissions in connection with this Agreement as if the Entity had performed such acts and omissions itself.
For the purpose of this Agreement, the term "Affiliates" means, in relation to a specific Entity, (i) an entity that directly or indirectly, through one or more intermediaries, owns more than 50% of the outstanding voting securities of the Company, and (ii) an entity that directly or indirectly through one or more intermediaries, is controlled by the Company, in each case the term "control" means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an Entity, whether through the management and policies of an Entity or by ownership of voting securities or otherwise.
2.2. Usage
a) Restrictions
Unless otherwise expressly permitted in writing by Verge Cloud, you will not and have no right to:
sell, rent, lease, loan, export, transfer or access to the Services to any third party, or sign up for the Services on behalf of a third party;
interfere with, disrupt, alter, or modify the Services or any part thereof, or create an undue burden on the Services or the networks (including Verge Cloud's peering partners' networks) or connected Services, including, but not limited to, causing (whether directly or indirectly) traffic for your Verge Cloud-proxied domain to be sent to an IP address that was not assigned by Verge Cloud for the domain;
access or use the Services in a manner that violates or is intended to circumvent Service-specific usage limits, quotas, or other restrictions as set forth in the Agreement;
utilize any framing techniques to enclose any Verge Cloud's trademark, logo, service mark, or other trade dress ("Verge Cloud Marks") or materials or use any meta tags or other "hidden text" utilizing the Verge Cloud Marks or materials without obtaining its prior written consent;
introduce software or automated agents or scripts into the Services so as to produce multiple accounts, generate automated searches, requests or queries, or to strip or mine data from the Services;
cover or obscure any page or part of the Services via HTML/CSS, scripting, or any other means;
reverse engineer the Services;
process or collect personal or business credit card information on any web property that is receiving free Services; or
use the Services to store or transmit any "protected health information" without Verge Cloud's written consent.
b) Benchmarking
You are authorized to conduct benchmark testing of our Services. If you disclose any results derived from such benchmark tests, whether conducted by you directly or by a third party acting under your direction, you agree to: (i) include all data, methodologies, and other information necessary to enable replication of the tests as part of any disclosure; and (ii) grant us the right to conduct and publicly disclose the results of benchmark tests, notwithstanding any provisions in your service terms that may restrict benchmarking activities.
2.3. Portal Credentials
a) Verge Cloud will provide you with access to an online customer interface to sign up for Services and administer your Verge Cloud account and be solely responsible for all activities that occur with such credentials including maintaining the confidentiality of all usernames, passwords, and other access credentials. Any use of the portal is subject to the Verge Cloud's policies and any terms of use that Verge Cloud may establish from time to time. You will provide all necessary information to Verge Cloud through the portal, including contact and payment information, and will keep all information accurate and up-to-date. You consent to Verge Cloud using the contact information provided, including any email address, to contact you in accordance with this Agreement or as necessary to perform our obligations hereunder. You will maintain the confidentiality and security of your portal login credentials and will notify Verge Cloud immediately of any unauthorized access to your account, login credentials, or any other actual or potential breach of security involving the portal.
b) If you permit third parties to access your Verge Cloud account, you do so at your sole risk and Verge Cloud will not be directly or indirectly responsible or liable to you in any manner, for any harm, damages, loss, lost profits, special or consequential damages, or claims, arising out of or in connection with such permission. Further, you acknowledge that by permitting a third party to access your Verge Cloud account, the third party may obtain, modify, or delete your account data and settings. Verge Cloud reserves the right to terminate any credentials that Verge Cloud reasonably determines may have been accessed or used by an unauthorized third party and will provide immediate notice of such to you.
c) You acknowledge and agree that any third parties you engage and/or any Third-Party Products (defined below) you use will be treated collectively as a single entity ("Third-Party Block") by Verge Cloud. You are solely responsible for the access and use of Verge Cloud services by such third parties and/or Third-Party Products. Any actions, omissions, or breaches by the Third-Party Block shall be deemed to be your responsibility, and you shall ensure compliance with all applicable terms and conditions governing the use of Verge Cloud services.
2.4. Subscription Terms, Renewals, and Cancellations
Services that are provided to you as Paid Services shall be provided to you on a subscription basis specified during the initial sign-up process or your first use ("Subscription Term"). All of your subscriptions to Paid Services will be prepaid and billed at the beginning of the Subscription Term. The Subscription Term and will automatically renew for periods equal to your initial Subscription Term, and you will be charged at our then-current rates unless you cancel your subscription through the Services' account dashboard prior to your next scheduled billing date.
2.5. Customer Content and Network Data
a) You and your end users will retain all right, title, and interest in and to any data, content, code, video, images or other materials of any type that you or your end users transmit to or through the Services (collectively, "Customer Content") in the form provided to Verge Cloud.
b) You must obtain all necessary rights, releases, and permissions to provide Customer Content to Verge Cloud, and customer content and its transfer must not violate any applicable local, state, federal, or international laws and regulations ("Law") (including without limitation those relating to export control or electronic communications). Other than our security obligations under Section 6 (Security), we assume no responsibility or liability for Customer Content, and you will be solely responsible for the consequences of using, disclosing, storing, transferring or transmitting Customer Content.
c) Verge Cloud may modify certain components of Customer Content on or transmitted to or from your internet properties or scan your infrastructure and related configurations to enhance your website's performance or security or the functionality of the Services. For example, depending on the Services you select or the Apps that you enable, Verge Cloud may: (i) intercept requests determined to be threats and take actions, such as presenting them with a challenge page, dropping the request, presenting alternative content, redirecting and other similar measures; (ii) add cookies to your domain to track visitors, such as those who have successfully passed the CAPTCHA on a challenge page; (iii) add scripts to your pages to perform additional performance tracking; (iv) add firewall rules to your website; (v) scan your infrastructure to identify supported protocols in order to enhance your internet properties' security; and (vi) make other changes to increase the performance, security, or analytic capabilities of your website. Verge Cloud will make it clear whenever a feature will materially modify Customer Content and, whenever possible, provide you a mechanism to allow you to disable the feature.
d) By transmitting Customer Content to or through the Services, you represent and warrant that Customer Content does not infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right.
e) Verge Cloud retains all right, title, and interest in all models, observations, reports, analyses, statistics, databases, and other information created, compiled, analyzed, generated, or derived by Verge Cloud from server, network, or traffic data generated by Verge Cloud in the course of providing the Service ("Network Data"), and shall have the right to use Network Data for purposes of providing, maintaining, developing, and improving its Services. Verge Cloud may monitor and inspect the traffic on the Verge Cloud network, including any related logs, as necessary to perform the Services or protect the security or integrity of Verge Cloud's network. To the extent the Network Data includes any personal data as defined under the Digital Personal Data Protection Act, 2023 ("DPDPA") Verge Cloud will handle such personal data in compliance with the applicable data protection Law.
2.6. Acceptable Use
You agree not to, and not to allow third parties to use the Services to: (a) falsely imply any sponsorship or association with Verge Cloud; (b) post, transmit, store or link to any files, materials, data, text, audio, video, images or other content that infringe on any person's intellectual property rights or that are otherwise unlawful; (c) distribute viruses, worms, time bombs, Trojan horses, or other malicious code, files, scripts, software agents and programs; (d) facilitate phishing, spamming, or other technical abuse; or (e) engage in any activities that are illegal, including disseminating, promoting or facilitating child sexual abuse material or engaging in human trafficking. Further any use of Services by you and/or third parties that you engage and/or Third Party Products (defined below) that you use shall be subject to the Terms of Use (https://www.vergecloud.com/terms/) Privacy Policy (https://www.vergecloud.com/privacy/) and Cookie Policy (https://www.vergecloud.com/cookie/) of Verge Cloud.
Third-Party Products and Services
You may access or use, at your sole discretion, certain third-party products and services that interoperate with the Services ("Third-Party Products"), including, but not limited to, third-party apps provided on Verge Cloud apps, third-party service integrations made available through the Verge Cloud dashboard or APIs, and third-party products or services that you authorize to access your Verge Cloud account or other credentials. Each Third-Party Product is governed by the terms of service, end user license agreement, privacy policies, and/or any other applicable terms and policies of the third party provider. Your access or use of a Third-Party Product is solely between you and the applicable Third-Party Product provider. Verge Cloud will not be directly or indirectly responsible or liable to you in any manner, for any harms, damages, loss, lost profits, special or consequential damages, or claims, arising out of or in connection with the installation of, use of, or reliance on the performance of any of the Third-Party Products.
Billing
4.1. Fees
a) You will be required to pay the fees for the Services ("Paid Services") used at the time of signing up for those Services with your credit card information ("Payment Method"). In addition, if you use Services in excess of the usage limits as set forth in the applicable service description, you will also be required to pay fees for such excess usage at the then-current rates charged by Verge Cloud.
b) By providing a Payment Method you are authorizing us to charge your Payment Method on a monthly, annual, or pay-as-you-go basis, or as otherwise applicable for the fees associated with the Paid Services that you use. Any Payment Method that you provide us must be valid, and kept current by you during the Subscription Term. By providing us with a Payment Method, you represent and warrant that you are authorized to use such Payment Method. Verge Cloud will begin billing your Payment Method for the Paid Services on the day that you begin using such Paid Services, regardless of whether you have fully configured the Paid Services as of that date. For Services subject to usage-based billing, we may initiate a pre-authorization on your credit card for the accrued fees at any point during a billing period. This hold will be removed when the time limit for the hold is up.
c) If you exceed the allocated monthly data transfer plan, additional charges will apply and will be billed at the end of the month. Furthermore, any add-ons or special features activated by you will incur separate and additional charges. By accepting these terms, you hereby authorize us to debit your Payment Method for such additional charges as may arise from exceeding your monthly data transfer plan and/or enabling additional features. In the event that you exceed 120% of your allocated monthly data transfer plan limit, Verge Cloud will notify you of the excess usage and the additional charges payable. These additional charges will be debited to your Payment Method on file. If the additional charges remain unpaid, Verge Cloud reserve the right to terminate your subscription immediately without further notice.
d) In the event of cancellation at any time prior to the end of a subscription term, you also authorize us to charge your Payment Method for the final settlement of any outstanding amounts, including charges incurred up to the date of cancellation.
e) These charges will be processed in accordance with the existing payment terms as specified from time to time.
4.2. Price Changes
We reserve the right to change the fees that we charge for the Service, at any time in our sole discretion, provided that we give you at least 30 (thirty) days' prior notice of such changes. Unless otherwise specified in such notice to you, any changes to the subscription fees will take effect in the billing period immediately following our notice to you.
4.3. No Refunds
FEES ARE NONREFUNDABLE. YOU WILL BE BILLED IN FULL FOR THE SUBSCRIPTION TERM IN WHICH YOU CANCEL AND NO REFUNDS WILL BE PROVIDED FOR THE UNUSED PORTION OF SUCH SUBSCRIPTION TERM.
Following any cancellation, however, you will continue to have access to the Paid Services through the end of your current Subscription Term (except with respect to Services subject to usage-based billing). We may, in our sole discretion, provide a refund, discount, or credit ("Credits") to you in a specific instance, however the provision of Credits in a specific instance does not entitle you to Credits in the future for similar instances or obligate us to provide additional Credits.
4.4. Taxes
Unless otherwise stated, our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes accessible by any local, state, provincial or foreign jurisdiction (collectively "Taxes"). You are responsible for paying Taxes, except those assessable against Verge Cloud as measured by our net income. Unless you provide us with evidence of an exemption, we will invoice you for such Taxes if we believe we have a legal obligation to do so and you agree to pay such Taxes if so invoiced.
Beta Services
From time to time, we may make non-production Services ("Beta Services") that are under development available to you. You may access these Beta Services at your sole discretion. Beta Services are intended for testing purposes only, and may be subject to additional terms that will be presented to you at the time of sign-up or first use.
In the event, a version of a Beta Service becomes generally available without the applicable Beta Service designation, you may be permitted to continue using the generally available Services subject to additional terms as provided in the Agreement. You understand that any information you obtain regarding Beta Services is Verge Cloud confidential information, and you agree not to disclose such information until a Beta Service becomes generally available, except as required by law, and to only use such information in connection with your use of the Beta Services.
Security
We implement security procedures to help protect Customer Content from security threats. However, you understand that your use of the Service necessarily involves the transmission of Customer Content over networks that are not owned, operated or controlled by us, and we are not responsible for any of Customer Content that is lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of Customer Content will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third-party service providers.
Compliance with Law
This Agreement governs your access to and use of all Verge Cloud's Services. Verge Cloud's use of the Services shall be subject to this Agreement and the Privacy Policy https://www.vergecloud.com/privacy/ and to the provisions of any product-specific agreements; technical specifications, forms, letters; and any schedules and annexures thereto that you may execute with Verge Cloud during the access and use of our Services as per the applicable Law including but not limited to the DPDPA and rules to be issued thereunder, Information Technology, 2000 and rules ("IT Act") issued thereunder and the Computer Emergency Response Team-In Directions, 2022 ("CERT-In Directions") including any statutory modifications or re-enactments thereof. Each of the aforementioned shall form an integral part of this Agreement.
Termination of Use; Discontinuation and Modification of the Service
It is hereby agreed between you and Verge Cloud that you will lose your license to use the Service if you violate any provision of this Agreement. Verge Cloud reserves the right to investigate violations of this Agreement. We reserve the right to disable or limit your access to or use of the Service or terminate your user account upon non-payment of Service Fees or in the event, a law enforcement/ governmental agency or court directs Verge Cloud to suspend and/ or terminate the account, in such an event, Verge Cloud will inform you, if feasible and allow you to contest such order, otherwise Verge Cloud may immediately suspend and/ or terminate the account without any notice to you.
We also reserve the right to modify or discontinue the Service at any time (including, without limitation, by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service.
Ownership; Proprietary Rights
9.1. Ownership - Verge Cloud shall retain any and all rights, title, and interest in all its intellectual property including but not limited to the website, platform, software, etc. The limited license granted by Verge Cloud under this Agreement shall in no way convey, assign, or license any of its intellectual property rights over to you or Entity or any end users. Subject only to limited access and use of the features as expressly stated herein, all rights, title, and interest in and to the platform, website, and all hardware, software, and other components of or used to provide the limited license to the platform, including all related intellectual property rights which shall include any and all respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights, will remain with Verge Cloud exclusively.
9.2. Any third party providing its services or software on the platform shall retain the ownership of its intellectual property.
9.3. License to Verge Cloud - You have granted Verge Cloud and applicable contractors a worldwide, royalty-free, limited-term license to host, copy, use, transmit, and display etc. any customer data and end user data on behalf of you in order to ensure proper operation, delivery, access to and use of the features and associated systems in accordance with this Agreement. You will grant Verge Cloud permission to allow the third-party application and its provider to access customer data and end user data and information about customers' and end users' usage of the platform or third-party application as appropriate for the interoperation of that application with the Platform.
Representations and Warranties
10.1. Verge Cloud warrants and represents that:
a) it has the full power, authority, and legal power to enter into, execute, and deliver this Agreement and to perform the obligations contemplated herein and is duly incorporated or organized and validly existing under the Law of the jurisdiction of its incorporation or organization.
b) it shall comply with all the applicable Law in order to keep the customer information and personal data secured and protected as per the applicable Law and rules provided thereunder.
c) it shall provide access to the platform and its features to the customer in accordance with the specifications mentioned in this Agreement.
d) it warrants that all Services performed hereunder will be performed in a workmanlike and professional manner.
VERGE CLOUD EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. VERGE CLOUD DOES NOT WARRANT THAT THE PLATFORM OR ITS FEATURES WILL MEET CUSTOMERS' REQUIREMENTS OR THAT THE OPERATION OF THE PLATFORM AND ITS RELATED SERVICES WILL BE UNINTERRUPTED, SECURE, ERROR-FREE OR BUG-FREE, FREE OF VIRUSES, MALWARE, UNAUTHORISED DATA OR PROGRAMMING CODE OR THAT ERRORS IF ANY CAN BE FOUND OR CORRECTED.
10.2. You/Entity warrants and represents that:
a) you have the full power, authority and legal power to enter into, execute and deliver this Agreement and to perform the obligations contemplated herein and is duly incorporated or organized and validly existing under the Law of the jurisdiction of its incorporation or organization.
b) to provide Verge Cloud with all data, information, documents, and any such materials which may be required from time to time for various purposes including compliance with the applicable Law including but not limited to the privacy/ data protection law of applicable jurisdiction/s, court orders and to fulfil its obligations under this Agreement.
c) to ensure accuracy, legibility, and completeness of all data/ information supplied to Verge Cloud for creation of the account and during the usage of Services.
d) to control and be responsible for the use of any/ all data/ information related to the account.
e) to be responsible for, and to assume the risk of any issues or problems resulting from its access and use of the platform, including the content, accuracy, completeness, competence, or consistency of all programs, files, documentation, or other information, resources, personnel used by you and for all activities that you conducts on the platform and/ or allows authorized administrator/s and/ or end user/s to conduct.
f) must not permit a competitor of Verge Cloud to access Verge Cloud's platform, except with Verge Cloud's prior written consent.
g) shall provide the end users with sufficient notice of the nature of data/ information that is collected from them, directly and/ or indirectly, and obtain adequate consent and permissions for the collection, storage, and use, etc. of the data/ information that may be collected on the platform or maintained on any cloud/ server hosted or provided by Verge Cloud;
Indemnification
11.1. By Verge Cloud
Verge Cloud will indemnify, defend, and hold you harmless against all third-party claims, demand, actions, suits, brought against you for infringement of such third party's valid intellectual property rights arising out of the use of the platform. Verge Cloud's indemnification obligation hereunder shall be subject to (a) Verge Cloud receiving prompt notice of the claim, (b) having the sole control and authority of the defense and/or settlement of the suit, and (c) you agreeing to provide Verge Cloud all reasonable assistance, at Verge Cloud's expense. If Verge Cloud receives information about an infringement or misappropriation claim related to its platform, Verge Cloud may at its discretion and at no cost to you (i) modify the platform so that they are no longer claimed to infringe or misappropriate, without breaching Verge Cloud's warranties as mentioned above, (ii) procure a right for your continued use of the platform in accordance with this Agreement, or (iii) replace the infringing component of the Platform with a non-infringing equivalent or if (i), (ii) and (iii) above are not feasible then (iv) terminate the Agreement and refund you any prepaid fees covering the remainder of the term.
The above defense and indemnification obligations do not apply if (1) the allegation is not solely attributable to the usage of the platform (2) a claim against you arises from the use or combination of the platform or any part thereof with software, hardware, data, or processes not provided by Verge Cloud, if the platform or use thereof would not infringe without such combination; (3) a claim against you arises from any Services provided under an order form for which no fee was charged to you; or (4) a claim against you arising from the content present on the platform, a non- Verge Cloud application or your breach of this Agreement, the documentation or applicable order forms.
11.2. By You
You agree that you will be responsible for your use of the Service, and you agree to defend, indemnify, and hold harmless Verge Cloud and its officers, directors, employees, consultants, Affiliates (as defined above), subsidiaries and agents (collectively, the "Verge Cloud Entities") from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys' fees and costs, arising out of or in any way connected with your access to, use of, or alleged use of the Service; (ii) your violation or usage of this Agreement in an unlawful manner or any violation of representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.
Notwithstanding anything in this Agreement, Verge Cloud shall also be entitled to seek any additional remedy available to it under the law as it deems fit. The above indemnification offered by Verge Cloud shall be the sole and exclusive remedy available to you.
Disclaimers; No Warranties
THE SERVICE ARE MADE AVAILABLE TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH THE EXPRESS UNDERSTANDING THAT THE VERGE CLOUD ENTITIES HAVE NO OBLIGATION TO MONITOR, CONTROL, OR VET USER CONTENT OR DATA. AS SUCH, YOUR USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. THE VERGE CLOUD ENTITIES MAKE NO CLAIMS OR PROMISES ABOUT THE QUALITY, ACCURACY, OR RELIABILITY OF THE SERVICES, ITS SAFETY OR SECURITY, OR THE SERVICES CONTENT. ACCORDINGLY, THE VERGE CLOUD ENTITIES ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM THE SERVICE'S INOPERABILITY, UNAVAILABILITY OR SECURITY VULNERABILITIES.
THE VERGE CLOUD ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
Limitation of Liability
13.1. Verge Cloud and its subsidiaries, Affiliates, officers, employees, agents, partners, vendors, and licensors shall not be liable for any indirect, incidental, special, punitive, or consequential damages, including but not limited to damages for lost profits, business interruption, loss of programs or information, loss of use or service or service or equipment, loss of data or interruption of business interruption, violation of data protection law and the like, that result from the use or inability to use the platform/Services or from mistakes, omissions, interruptions, deletion of files or directories, errors, defects, delays in operation, or transmission, regardless of whether Verge Cloud has been advised of such damages or their possibility.
13.2. Except for the misappropriation of Verge Cloud's intellectual property and/or breach by you of your confidentiality obligations as provided in clause 14, the aggregate liability of each party and its Affiliates under this Agreement and any order form shall be limited to the Service Fees paid by you/Entity under which the incident arose.
13.3. In no event will the Verge Cloud and its entities be liable to you or any third party for any indirect, incidental, special, consequential or punitive damages arising out of or relating to your access to or use of, or your inability to access or use, the services or any materials or content on the services, whether based on warranty, contract, tort (including negligence), statute or any other legal theory, whether or not the Verge Cloud and its entities have been informed of the possibility of such damage.
13.4. You agree that the aggregate liability of the Verge Cloud to you for any and all claims arising out of relating to the use of or any inability to use the services (including any materials or content available through the Services) or otherwise under this Agreement, whether in contract, tort, or otherwise, is limited to the amounts You have paid to verge cloud to access and use the service in the 12 (twelve) months prior to the claim.
Confidentiality
14.1. Confidential Information must be disclosed to the receiving party in a tangible form and marked as confidential, or regardless of the manner it was received, which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure.
14.2. For the purpose of this clause, "Confidential Information" includes any technical and non-technical information but not limited to the Platform and its features, trade secrets, patents, copyrights, customer data, end user data, ideas, designs, images, videos, inventions, proprietary information, know-how, formulas, databases, any development plans, forecasts, strategies, business plans, analyses, network information, data, predictions, projections, intellectual property, contracts, proposals, documents, electronic designs, drawings, specifications, schematics, writings, materials, operations, procedures, know-how, financial information, in anyway related to the current, future and proposed business.
14.3. The receiving party shall take all reasonable security precautions which they take to protect their confidential information.
14.4. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the party receiving it at the time of disclosure by the party disclosing it; (b) was, or is, obtained by the party receiving it from a third party not known by the receiving party to be under an obligation of confidentiality with respect to such information; (c) is or generally becomes available to the public other than by violation of this Agreement or another valid agreement between the parties, or (d) was or is independently developed by the receiving party without the use of the disclosing party's Confidential Information. The party receiving the Confidential Information shall be entitled to disclose Confidential Information to its Affiliates, and Affiliates employees or consultants on a need-to-know basis provided that the party receiving it shall be responsible for use of such Confidential Information by its Affiliates and Affiliates' employees or consultants.
14.5. The receiving party may disclose Confidential Information only to its employees or agents or subcontractors on a need-to-know basis and the receiving party shall execute appropriate confidentiality agreements with the people the Confidential Information has been disclosed so that they have to comply with all the provisions of this Agreement. The receiving party shall be responsible for the use of such Confidential Information by its employees, agents or subcontractors.
Governing Law
15.1. All disputes or differences arising between the parties shall at the first instance be attempted to be resolved by good faith negotiation prior to commencing legal proceedings. Where the parties are unable to resolve a dispute by negotiation within 60 (sixty) days of commencement of the proceedings, such disputes shall be finally settled by arbitration conducted in accordance with the Indian Arbitration and Conciliation Act, 1996, or any statutory amendments thereof. Each party shall appoint 1 (one) arbitrator within 30 (thirty) days from the time both parties agree to enter into arbitration. The two chosen arbitrators shall appoint a third arbitrator within 30 (thirty) days of their appointment. The seat of arbitration will be in Bangalore, India. The language of arbitration will be in English. Each party will bear its own expenses in the arbitration. The order passed by the arbitrator shall be final and binding upon the parties.
15.2. This Agreement shall be governed by and construed in accordance with the Law of India with the exclusive jurisdiction in courts at Bangalore, Karnataka.
Changes to this Agreement
Verge Cloud reserves the right to make modifications to this Agreement at any time. If a revision materially alters your rights we will use reasonable efforts to contact you, including sending a notification to the e-mail address(es) associated with your account. In some instances, such as with free Services, you may be required to indicate your consent to the revised terms in order to continue accessing the Service. Unless otherwise specified, any modifications to this Agreement will take effect at the start of Subscription Term following the notice. If you do not agree with the revised terms, your sole and exclusive remedy will be not to renew your subscription.
General Provisions
17.1. Entire Agreement: This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof and supersedes all previous agreements or representations, whether oral or written. In the event of any conflict among the terms of this Agreement or any order form, this agreement shall prevail.
17.2. Independent Contractors: The relationship of the parties under this Agreement is that of independent contractors. Neither party will be deemed to be an employee, agent, partner, franchisor, franchisee nor legal representative of the other for any purpose and neither will have any right, power, or authority to create any obligation or responsibility on behalf of the other party.
17.3. Force Majeure: The parties shall not be liable for any default or non-performance of obligations under the Agreement (except for any obligations to make payments to the other party) if such default or non-performance of obligations is caused by a Force Majeure Event. In the event of any Force Majeure Event, the party so affected shall notify the other party, in writing, of such circumstances and the cause thereof, within 15 (fifteen) calendar days. Unless otherwise directed by the other party, the party pleading Force Majeure Event shall continue to render, perform or discharge other obligations as far as they can be reasonably fulfilled, and shall seek all alternative means for performance affected by the Force Majeure Event. In the event the delay continues for a period of more than 3 (three) months, the parties shall consult one another in an endeavor to find a solution to the problem, failing which the Agreement (or the relevant part thereof) may be duly terminated in accordance with the procedure provided in this Agreement.
For the purpose of this clause, "Force Majeure Events" means and includes (a) acts of God; (b) a natural disaster (fires, explosions, earthquakes, hurricanes, flooding, storms, explosions, infestations), epidemic, or pandemic; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; and (i) shortage of adequate power or transportation facilities.
17.4. Third-Party Liability: Verge Cloud shall not be liable for the actions of any third-party including, but not limited to, website hosting providers, server providers, etc. due to which your and/or End User's access and use to the platform/ dashboard/ Services may be affected.
17.5. Severability: In the event that any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal, or unenforceable, the validity and enforceability of the remaining provision, or portions of them, will not be affected.
17.6. Waiver: No waiver by Verge Cloud for any breach by you/Entity of any of the provisions of this Agreement shall be deemed a waiver of any preceding or succeeding breach of this Agreement. No such waiver shall be effective unless it is in writing signed by the parties hereto, and then only to the extent expressly set forth in such writing.
17.7. Assignment: Verge Cloud may assign or transfer this Agreement or any rights or obligations hereunder, in whole or in part, at their sole discretion. In the event of your acquisition of, or merger with a third-party, you may continue to use the Verge Cloud's platform, and the obligations and rights under this Agreement will apply to the third party as-is basis, and may be exercised only in connection with, your operations as they existed on the date prior to the acquisition or merger. You may not otherwise assign this Agreement or otherwise transfer any rights hereunder whether by operation of law, change of control, or in any other manner, without the prior written consent of Verge Cloud. Any assignment or transfer in violation of this clause will be null and void.
17.8. Notices: Except as otherwise specified in this Agreement, all notices or other communication required or permitted to be given or made under this Agreement shall be in writing, in English, and shall be delivered personally, or sent by registered post, or by facsimile, or by email or by first class courier, addressed to the intended recipient at its address set forth in the service platform or to such other address as either party may from time to time, duly notify in writing to the other party.
This Agreement is offered by Verge Cloud Private Limited having its registered office at WeWork Prestige Atlanta, 80 Feet Rd, Koramangala 1A Block, Koramangala 3 Block, Koramangala, Bangalore, Bangalore South, Karnataka, India, 560034.