Terms and Conditions
for Clients (including Client Adjusters)
Terms and
Conditions for Independent Contractors (Field Inspectors)
CLIENT
TERMS AND CONDITIONS (INCLUDING CLIENT ADJUSTERS)
The following Client Terms and Conditions apply to services, mobile
apps, dashboards, and web portals, provided to and/or accessed by insurance
carriers and their authorized personnel, including adjusters and claims
representatives, as provided by Genpact and its affiliates. These Client Terms and Conditions only apply
if Client’s organization does NOT have a valid non-expired written agreement
for the above referenced service offerings directly with Genpact or its affiliates.
If Client’s organization DOES have a valid written agreement with Genpact
for the above referenced services, the terms and conditions of that agreement
shall control and these Adjuster / Client Terms and Conditions shall not apply.
These Client Terms and Conditions (“Agreement”) are a
legal agreement between you, as an individual user, and on behalf of the
relevant insurance company or insurance support organization you work for (collectively
referred to as “Client”) and Genpact International, Inc., located at 1155
Avenue of the Americas 4th Fl, New York, NY 10036 (“Licensor”). This Agreement
covers any services, mobile applications and any related web-based dashboards
or webpages provided by Licensor to Client (collectively, referred to as the
“Services”). The Services are licensed,
not sold, to Client for use only under the terms of this Agreement, unless
accompanied by a separate agreement expressly superseding this Agreement signed
by both parties, in which case the terms of that separate agreement will
govern. Licensor reserves all rights not expressly granted to Client
hereunder. The Services that are subject to this license and this
Agreement are collectively referred to as the "Licensed Services." This Agreement shall govern and control any
future updates, modifications, or enhancements made to the Licensed Services. Licensor reserves the right to change this
Agreement at any time and Client agree that Licensor may notify Client about
changes to this Agreement by posting them on or within the applicable Licensed Services,
therefore, Client should review this Agreement and any updated Agreement(s)
before using the Licensed Services as this Agreement (and any updates) will become
effective from as of the time of such posting.
1.
License: By accepting this Agreement by electronically
indicating Client “agrees” or “accepts” by clicking or marking the applicable
checkbox and/or by using the Licensed Services, Client agree to be bound by the
terms of this Agreement. Licensor hereby grants a limited, non-exclusive,
non-transferable, non-sublicensable license to use the Licensed Services on the
mobile device, tablet, and/or computer (collectively, “Device”) that Client owns
or controls and as permitted by the Usage Rules set forth in the applicable
mobile application store terms and conditions, if applicable, (the “Usage
Rules”) solely for personal or internal authorized business purposes consistent
with the terms of this Agreement and in accordance with applicable laws,
regulations, and any instructions provided to Client by Licensor, as
applicable.
2.
Scope. The parties desire to record the terms of the
Licensed Services to be rendered by Licensor to Client under this Agreement.
Licensor may, in its discretion,
delegate or subcontract performance of any portion of the Licensed Services to
its affiliates and any third-party subcontractor. Licensor shall provide Client
with any information reasonably requested by Client regarding any proposed
third-party services. Licensor shall remain fully responsible and liable for
the timely and proper performance of the Licensed Services hereunder even if
such obligations are delegated to a third party, and for the compliance with
this Agreement of any person or entity to which it delegates or subcontracts
any such obligation. Licensor may, in
its discretion, make modifications or alterations to the Licensed Services that
neither increase the Fees (as defined below) nor materially reduce overall
Licensed Service quality. Furthermore, Licensor reserves the right to modify or
cease offering Licensed Services based on changes to applicable law,
regulations, or company policy.
3.
Payment. In consideration of the Licensed Services
being provided by Licensor under this Agreement, Client agrees to pay to Licensor the lesser of: (a) Licensor’s standard rates for the applicable
Licensed Services, as communicated and invoiced to Client; or (b) the fees Client
and Licensor have agreed to in writing, which shall include email agreement
(fees due to Licensor collectively referred to as “Fees”). Unless otherwise agreed by the parties in
writing, Fees shall be aggregated and invoiced monthly and Client shall pay all
invoices within thirty (30) days of the invoice date. Any Fees not paid when due shall incur
interest at the rate of one percent (1%) per month or the maximum rate
permitted by applicable law, whichever is lower. Client’s failure to pay undisputed invoices
in accordance with this Section shall be considered a material breach. Fees shall be exclusive of all applicable
sales, use, excise, value added, services, consumption and other similar taxes
and duties that are assessed against either party on the provision of the Licensed
Services (excluding taxes based on the net income of Licensor) which shall be
the responsibility of Client; and other out-of-pocket expenses.
4.
Approvals. Each party will obtain all necessary
approvals, consents, permits and grants in their respective jurisdictions to
perform and receive the Licensed Services, respectively. Client shall inform and update Licensor, from
time to time, of any laws pertaining to Client’s business with which Licensor
must comply to perform the Licensed Services for Client and, to the extent so
required, assist Licensor in obtaining approvals, consents, permits and grants
as may be required to perform the Licensed Services.
5.
Term and Termination. This Agreement shall become
effective upon the earlier of Client’s acceptance of the Agreement or
Licensor’s grant of access to the Licensed Services and shall continue for
until terminated by either party. Licensor may terminate this Agreement
and all Licensed Services immediately and without notice: (a) for Client’s
non-payment of undisputed Fees when due; (b) if Licensor has a reasonable basis
to believe that Client or any of its employees or agents have used or will use
the Licensed Services in violation of the terms of this Agreement or have
committed or will commit hostile network attacks or other improper activities;
or (c) due to changes in Licensor policy, modification of third-party
agreements, a modification in industry standards, a Security Event (defined below),
a change in law or regulation, or the interpretation thereof. Either party may
terminate this Agreement at any time with thirty (30) days written notice to
the non-terminating party, with or without cause. Upon termination of this
Agreement, Client shall be liable for payment of any Fees due and payable to
Licensor for the Licensed Services provided through the effective date of such
termination.
6.
Confidential Information.
The parties acknowledge that, in the course of performance under this
Agreement, one party (the “Disclosing Party”) may disclose or permit access by
the other party (the “Receiving Party”) to Confidential Information. As used herein, the term “Confidential
Information” shall mean any and all information disclosed hereunder, whether written
or oral, that is designated as confidential by the Disclosing Party, designated
as confidential by statute, regulation, or common law or that, given the nature
of the information or the circumstances surrounding its disclosure, reasonably
should be considered as confidential, including prototypes, mobile
applications, web pages, customer lists, research and development activities,
technology, vendors, computer hardware and software, the Licensed Services,
drawings, trade secrets, know how, processes, pricing methods, marketing
strategies, customer relations, future plans and other information deemed
proprietary or confidential by Disclosing Party. Except as otherwise provided herein, the term
Confidential Information does not include information which:
(a) has been or becomes published or is now,
or in the future, in the public domain without breach of this Agreement or
breach of a similar agreement by a third-party;
(b) prior to disclosure hereunder is properly
within the legitimate possession of the Receiving Party which can be verified
by independent evidence;
(c) subsequent to disclosure hereunder, is
lawfully received from a third party having rights therein without restriction
of third party’s or the Receiving Party’s rights to disseminate the information
and without notice of any restriction against its further disclosure; or
(d) is independently developed by the
Receiving Party through persons who have not had, either directly or
indirectly, access to or knowledge of such Confidential Information which can
be verified by independent evidence.
7. Non-Disclosure
and Non-Use. The
Receiving Party shall hold all Confidential Information of the Disclosing Party
in strictest confidence and shall not disclose or provide such Confidential
Information to any third party without the express written consent of the
Disclosing Party in each instance unless strictly necessary to provide the
Licensed Services hereunder. In all events the Receiving Party shall handle,
store, and maintain all Confidential Information of the Disclosing Party with a
degree of care that is reasonable for the circumstances of disclosure and the
nature of each component of Confidential Information. The Receiving Party shall
not make any use of such Confidential Information whatsoever except such
limited use as is required to perform its obligations under this Agreement. To
the limited extent reasonably necessary for such permitted use, the foregoing
shall include the right to make a reasonable number of copies of such
Confidential Information each of which shall be subject to this Section. If the Receiving Party is required by a court
or other body of competent jurisdiction to disclose any Confidential
Information of the Disclosing Party, the Receiving Party may disclose only so
much Confidential Information as is legally required, provided that, if
permitted, the Receiving Party has given notice of such compelled disclosure to
the Disclosing Party and has given the Disclosing Party a reasonable
opportunity to object to such disclosure and has provided reasonable assistance
in obtaining and enforcing a protective order or other appropriate means of
safeguarding any Confidential Information so required to be disclosed. Each party
shall keep this Agreement, its contents and substance, and the discussions,
negotiations and any information, documents or materials disclosed prior to or
as a result of such discussions or negotiations between them strictly
confidential, except as strictly necessary to perform the Licensed Services.
8. Permitted
Use of Information. Notwithstanding anything to the contrary herein,
Licensor may gather and analyze information and any data generated from the
provision of the Licensed Services hereunder and may use such information and
data to: (i) disclose the information and data as needed to insureds,
appraisers (as applicable), and Licensor parties (including third party service
providers, such as inspectors and authorized vendors) to provide the Licensed Services
to Client; (ii) develop, improve, and/or enhance the Licensed Services or any
other Licensor offerings or services; (iii) use for any diagnostic or
corrective purpose related to or in connection with the Licensed Services or
other Licensor offerings; and (iv) disclose such data and information in
aggregate and/or de-identified form in connection with Licensor’s business
activities. Such rights shall survive
termination of the Agreement.
9.
Warranty
Disclaimer. THE
LICENSED SERVICES ARE PROVIDED “AS-IS” ALL WARRANTIES, EXPRESS, IMPLIED,
STATUTORY, OR OTHERWISE INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF
MERCHANTABILITY, QUALITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE
EXPRESSLY DISCLAIMED, AND SUCH DISCLAIMERS SURVIVE TERMINATION.
10.
Reservation of
Rights. Except for the limited rights granted herein,
each party owns and retains all intellectual property rights in their
respective Confidential Information. The
Licensed Services, including any enhancements, updates, documentation, and work
written or produced by Licensor, and any intellectual property therein shall be
and remain the property of Licensor.
11.
License Conditions. Client will not use the Licensed Services to:
(i) violate any person's or entity's legal rights (including, without
limitation, intellectual property, privacy, and publicity rights), transmit
material that violates or circumvents such rights, or remove or alter
intellectual property or other legal notices; (ii) transmit, collect, or access
personally identifiable information of others without their consent; or (iii) engage
in unauthorized spidering, scraping, or harvesting of content, contact or other
personal information, or use any other unauthorized automated means to compile
information. Client will (i) not
decompile, reverse engineer, or disassemble the Licensed Services or otherwise
attempt to derive the source code thereof; or (ii) copy, modify, rent, sell,
distribute, or transfer any part of the Licensed Services except as expressly
permitted in this Agreement. Such
restrictions survive termination of the Agreement.
12.
Indemnification. Each party shall indemnify, defend and hold
harmless the other party its affiliates, and the directors, officers,
employees, agents, brokers, and contractors against any third party claim
arising out of the respective indemnifying party’s:
(a)
Improper
disclosure of Confidential Information.
(b) Infringement of third-party intellectual property
right.
(c)
Bodily injury,
death of any person or damage to real or tangible, personal property resulting
from the willful, fraudulent or negligent acts or omissions of the indemnifying
party in connection with this Agreement, as the case may be.
13.
Limitation of Liability.
Notwithstanding anything else contained in this Agreement, any liability
of Licensor or Client arising under this Agreement shall not in any event
exceed the total Fees, which have been paid by Client actually received by Licensor
hereunder within the twelve (12) months prior to the event triggering
liability. Neither party shall be liable to the other or any other person or
entity for any indirect, incidental, punitive, exemplary, special or
consequential damages of any kind or nature whatsoever or amounts for loss of
income, profits or savings arising out of, or relating to, its performance or
failure to perform under this Agreement.
14.
Security. Client acknowledges
that the information available through the Licensed Services may include
personally identifiable information and it is Client's obligation to keep all
such accessed information confidential and secure. Accordingly, Client on
behalf of itself and any of its employees (as applicable) shall (a) restrict
access to Licensed Services to those employees who have a need to know as part of
their official duties; (b) ensure that Client nor its employees shall (i)
obtain and/or use any information from the Licensed Services for personal
reasons, or (ii) transfer any information received through the Licensed
Services to any party except as permitted hereunder; (c) keep all user
identification numbers, and related passwords, or other security measures
(collectively, "Client IDs") confidential and prohibit the sharing of
Client IDs; (d) immediately deactivate the Client ID of any employee who no
longer has a need to know, or for terminated employees on or prior to the date
of termination; (e) in addition to any obligations hereunder, take all
commercially reasonable measures to prevent unauthorized access to, or use of,
the Licensed Services or data received therefrom, whether the same is in
electronic form or hard copy, by any person or entity; (f) maintain and enforce
data destruction procedures to protect the security and confidentiality of all
information obtained through Licensed Services as it is being disposed; (g) be
capable of receiving the Licensed Services where the same are provided
utilizing "secure socket layer", or such other means of secure
transmission as is deemed reasonable by Licensor; (h) not access and/or use the
Licensed Services via mechanical, programmatic, robotic, scripted or other
automated search means, other than through batch or machine-to-machine
applications approved by Licensor; (i) take all steps to protect their networks
and computer environments, or those used to access the Licensed Services, from
compromise; and (j) maintain policies and procedures to prevent unauthorized
use of Client IDs and the Licensed Services.
In the event Client learns or has reason to believe that Client IDs, the
Licensed Services, or any information related thereto have been misused,
disclosed, or accessed in an unauthorized manner or by an unauthorized person
or contrary to any terms of this Agreement (a "Security Event"),
Client shall provide immediate written notice to the via email to infosec@genpact.com. In the event of a Client
Security Event, Licensor may, in its sole discretion, take immediate action,
including suspension or termination of Client's account, without further
obligation or liability of any kind.
15.
Downtimes. Client acknowledges
and agrees that from time to time access to the Licensed Services may be
unavailable or inoperable for various reasons, including but not limited to
periodic maintenance procedures or repairs which Licensor may undertake from
time to time, equipment malfunctions, or other causes beyond the control of Licensor
or which are not reasonably foreseeable by Licensor, including but not limited
to interruption or failure of telecommunication or digital transmission links,
network congestion, or other failures (collectively "Downtimes").
Downtimes may also result from suspension by Licensor, in its sole discretion
and without notice, of access to data files and/or the Licensed Services due to
actual or suspected hostile network attacks or other improper activities.
Licensor will use commercially reasonable efforts to deliver the Licensed
Services requested by Client subject to the terms of this Agreement.
(a)
The substantive laws of the State of New York, without
regard for conflict of laws principles, shall prevail for this and all
subsequent agreements unless otherwise stated in writing by both parties. No failure or delay in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any right, power of privilege hereunder. Neither party
may assign this Agreement without the written consent of the other party.
(b)
This Agreement may not be assigned without the prior
written consent of the other party. Notwithstanding the foregoing, each party
shall have the right to assign this Agreement without such consent: (i) to any
affiliated, subsidiary or parent entity, defined as any entity controlling,
controlled or under common control with such party as evidenced by ownership of
greater than 50% of the equity of such entity; (ii) in connection with the sale
of all or substantially all of its stock or assets; and/or (iii) to the
surviving or resulting entity in any merger or consolidation. This Agreement
shall be binding on the parties and their respective successor and permitted
assigns.
(c)
Neither party
will directly or indirectly solicit or hire any employee or contractor of the
other party with whom it has come into contact with for the Licensed Services for
employment or services, during the term, and for a period of twelve (12) months
following the termination of this Agreement.
(d)
This
Agreement and any subsequent updates published thereto contains the entire
agreement of the parties with respect to its subject matter, and supersedes any
prior representation, agreement, warranty, and proposal for the efforts defined
herein. Any deviations to this Agreement must
be made in writing with the mutual agreement of the parties.
(e)
Licensor
shall be an independent contractor pursuant to this Agreement. Nothing herein shall be construed to create a
joint venture or partnership between the parties or an employee/employer
relationship. Neither party shall have any express or implied right or
authority to assume or create any obligations on behalf of or in the name of
the other party or to bind the other party to any contract, agreement or
undertaking with any third party.
(f)
Headings are
provided for convenience only and shall not have an effect on the
interpretation of the Agreement. If any
provision of this Agreement is illegal or unenforceable, its invalidity shall
not affect the other provisions of this Agreement that can be given effect
without the invalid provision.
Copyright
© Genpact. All rights reserved. Last
update 6.11.18
TERMS
AND CONDITIONS FOR INDEPENDENT CONTRACTORS (FIELD INSPECTORS)
The following Terms and Conditions
for Independent Contractors (Field Inspectors) apply if you provide field
services for Genpact and its affiliates.
These Terms and Conditions apply in addition to, and not in lieu of
any Contractor Agreement in place between you and Genpact (and /or its
affiliates) and these Terms and Conditions set forth your use and access to any
Genpact mobile apps, platforms, webpages, portals, etc., unless otherwise
specified on the particular site / technology you are accessing.
These Terms and Conditions
(“Agreement”) are a legal agreement between you (“You” or “Your”) and Genpact
International, Inc. on behalf of itself and its affiliates, a Delaware
corporation located at 1155 Avenue of the Americas 4th Fl, New York, NY 10036
(“Licensor”). This solution, including products, services, any mobile
applications and any related web-based dashboards or webpages (collectively,
the “Product”). The Product is licensed,
not sold, to You for use only under the terms of this Agreement, unless
accompanied by a separate agreement expressly superseding this Agreement signed
by both parties, in which case the terms of that separate agreement will
govern. Licensor reserves all rights not expressly granted to You
hereunder. The Product(s) that are subject to this license and this
Agreement are collectively referred to as the "Licensed
Product." This Agreement shall
govern and control any future updates, modifications, or enhancements made to
the Licensed Product. Licensor reserves
the right to change this Agreement at any time and You agree that Licensor may
notify you about changes to this Agreement by posting them on or within the
applicable Licensed Product, therefore, you should review this Agreement and
any updated Agreement(s) before using the Licensed Product as this Agreement
(and any updates) will become effective from as of the time of such posting.
17.
License: By accepting this Agreement by electronically indicating
You “agree” or “accept” or by clicking or marking the appropriate location
below or by installing or using the Licensed Product You agree to be bound by
the terms of this Agreement. Licensor hereby grants a limited, non-exclusive,
non-transferable, non-sublicensable license to use the Licensed Product on the
mobile device, tablet, and/or computer (collectively, “Device”) that You own or
control and as permitted by the Usage Rules set forth in the applicable mobile
application store terms and conditions (the “Usage Rules”) solely for personal
or internal authorized business purposes consistent with the terms of this
Agreement and in accordance with applicable laws, regulations, and any
instructions provided to You by Licensor, insurance carrier, or authorized
claims agent, as applicable.
18.
License
Restrictions.
a.
Minor children
(persons under the age of eighteen (18) are not permitted to use the Licensed
Product without the consent of a parent or guardian. By accepting this Agreement, You, as the
parent or guardian of such a minor, take full responsibility for all
obligations under this Agreement on behalf of yourself and any minor child’s
use of the Licensed Product. Under no
circumstances may a minor child under the age of fifteen (15) use the Licensed
Product.
b. You are responsible for keeping your username, password,
and Device secure.
c.
Use of the
Licensed Product is at Your own risk and the Licensed Product shall not be used
while operating a motor vehicle or heavy equipment.
d. You may not distribute or make the Licensed Product
available over a network where it could be used by multiple devices at the same
time. You may not rent, lease, lend, sell, redistribute, sublicense the
Licensed Product or use the Licensed Product as a part of a service desk.
e.
You agree that
the Licensed Product and all upgrades, corrections, and enhancements thereto,
are and shall continue to be, at all times property of Licensor. You may
not copy (unless expressly permitted by this Agreement and the Usage Rules),
decompile, reverse engineer, disassemble, attempt to derive the source code of,
modify, or create derivative works of the Licensed Product or any part thereof,
including any updates made to the Licensed Product (except as and only to the
extent any foregoing restriction is prohibited by applicable law or to the
extent as may be permitted by the licensing terms governing use of any open
sourced components included with the Licensed Product). Any attempt to do so is
a violation of the rights of the Licensor and its licensors. If You breach this
restriction, You may be subject to prosecution and damages.
f.
You may not
probe, scan, or test the vulnerability of any of Licensor’s technical systems
or networks. You may not utilize a bot, spider, or otherwise crawl, scrape, or
cache any content on or in the Licensed Product via automated means.
g. You may not in any way related to the Licensed Product
infringe copyrights, trademarks, patents or other proprietary rights of others,
including Licensor. You may not in any
way related to the Licensed Product infringe the privacy rights of others or
solicit personally identifying information for the purposes of harassment,
exploitation, violation of privacy, or any promotional or commercial purpose
including but not limited to “spam” emails or communications.
h. All rights not explicitly granted by this Agreement
are reserved by Licensor.
3.
Your Representations and Warranties to Licensor. For
information including photographs that You provide through or to the License
Product, You represent and warrant that: (i) You own the information posted or otherwise
have the right to grant the rights and licenses set forth in this Agreement;
(ii) the posting and use of the information on or through the Licensed Product
does not violate, misappropriate or infringe on the rights of any third party,
including, without limitation, privacy rights, publicity rights, copyrights,
trademark and/or other intellectual property rights; (iii) You agree to pay for
all royalties, fees, and any other monies owed by reason of such information
being submitted through or to the Licensed Product, if applicable; and (iv) You
have the legal right and capacity to enter into this Agreement in your
jurisdiction.
4. Consent to Use of Data: You agree that Licensor may collect and use (i)
technical data and related information, including but not limited to technical
information about Your device, system and application software, and
peripherals, that are gathered periodically to facilitate the provision of
updates, product support and other services to You (if any) related to the
Licensed Product; (ii) time, location based, and geographical information;
(iii) images, photographs, metadata and other information obtained and/or
provided by You through use of the Licensed Product and (iv) information
obtained in connection with the Licensed Product or any process or procedure
related thereto (including information provided by an applicable insurance
carrier and/ or authorized claims agent which may include inspectors or
adjusters). Licensor shall have the right to collect and analyze such information
and any data derived therefrom and Licensor will be free (during and after the
term hereof) to: (i) to use such information and data to develop, improve or
enhance the Licensed Product or any other Licensor offering or product or for
any other diagnostic or corrective purpose related to or in connection with the
Licensed Product or any other Licensor offering or product; (ii) disclose such
data and information as needed to provide the services; and (iii) disclose such
data and information in aggregate or other de-identified form in connection
with Licensor’s business. Licensor may also
provide data to third parties including: an insurance carrier and or authorized
claims representative, the primary named insured on Your policy, a parent or
legal guardian (if applicable), or other third parties assisting in the
provision of this Licensed Product to You. In addition, Licensor may
disclose information provided by or about You to: (i) respond to claims that
the Licensed Product violates the rights of third parties; (ii) enforce this
Agreement; (iii) comply with legal process; or (iv) protect Licensor’s, the
public’s or other users’ rights, property or personal safety. Use is also subject to Licensor’s Privacy
Policy as published and updated from time to time.
YOU UNDERSTAND THAT
TEXT AND / OR DATA RATES MAY APPLY FROM YOUR MOBILE SERVICE PROVIDER FOR USE OF
THE LICENSED PRODUCT. You
expressly agree that You are solely responsible for any and all text and data
charges incurred for the use of the Licensed Product on Your Device.
5. Feedback. In consideration
for utilizing the Licensed Product, if You provide Licensor with any ideas,
suggestions, and/or recommendations for the modification, improvement or
enhancement of the Licensed Products or any related services or product
offerings (“Feedback”) then by providing such Feedback to Licensor, You hereby
irrevocably transfer and confer all right, title, and interest to such Feedback
to Licensor without any additional consideration or obligation due from
Licensor, including any obligations of payment or confidentiality. Licensor may make all use of Feedback
consistent with such right title and interest, including but not limited to
Licensor’s ability to market, sell, create derivative works from, and otherwise
distribute such Feedback without any reference, attribution, or responsibility
(monetarily or otherwise) to You. You
represent and warrant that any Feedback provided by You shall not infringe
third party intellectual property rights, is not subject to open source
licensing obligations, and does not require payment of third party licensing
fees.
6. Connectivity. You understand and agree that the Licensed
Product may require connection to the Internet, GPS capability and/or location
data on Your Device. Any location data
provided by the Licensed Product are for the purpose of using the Licensed
Product only and not intended to be relied upon for any navigational purposes
including in situations where precise location information is needed or where
erroneous, inaccurate or incomplete location data may lead to death, personal
injury, property or environmental damage. Neither the Licensor, nor any
of its content providers, guarantees the availability, accuracy, completeness,
reliability, or timeliness of location data displayed by the Licensed Product.
7. Third Party
Materials / Services. The
Licensed Product may enable access to or make available content, data,
information, applications or materials from third parties’ services and web
sites (collectively and individually, "Third Party Services"). Use of
Third Party Services may require Internet access and that You accept additional
terms and conditions from Third Party Services providers. YOUR CORRESPONDENCE AND BUSINESS DEALINGS
WITH THIRD PARTY SERVICES FOUND AND/OR ACCESSED THROUGH THE LICENSED PRODUCT IS
SOLELY BETWEEN YOU AND THE THIRD PARTY. By using the Third Party Services, You
acknowledge and agree that the Licensor is not responsible for examining or
evaluating the content, accuracy, completeness, timeliness, validity, copyright
compliance, legality, decency, quality or any other aspect of such Third Party
Materials or web sites. Licensor does not warrant or endorse; does not assume,
and hereby disclaims any and all liability or responsibility to You or any
other person for: any Third Party Services and all such Third Party Services
are provided “AS-IS” and solely as a convenience to You.
8. Proprietary
Information / Limitations. You agree that the Licensed Product contains
proprietary content, information, and material that is protected by applicable
intellectual property and other laws, including but not limited to copyright,
and that You will not use such proprietary content, information or materials in
any way whatsoever except for the use permitted under this Agreement. No
portion of the Licensed Product may be reproduced in any form or by any means.
You shall not exploit the Licensed Product in any unauthorized way whatsoever,
including but not limited to: in violation of any law or regulation; by
trespass; in violation of the terms of this Agreement; or burdening network
capacity. In addition, any logos or branding, including Licensor’s or
Licensor’s partners, vendors, or customers) are trademarks of Licensor or the
applicable trademark owners and may not be copied, imitated, or used in whole
or in part without the prior written consent of the trademark owner. In addition, all page headers, custom
graphics, icons, and scripts are service marks, trademarks, and/or trade dress
of Licensor or applicable partner, vendor, or customer and may not be copied,
imitated, or used in whole or in part without prior written permission from
Licensor or the applicable owner.
The Licensed Product and any
Third Party Services (collectively, “Materials”) that may be accessed from,
displayed on or linked to from Your Device are not available in all languages
or in all countries. The Licensor makes no representation that Materials are
appropriate or available for use in any particular location outside the United
States. To the extent You choose to access such Materials, You do so at Your
own initiative and are responsible for compliance with any applicable laws,
including but not limited to applicable local laws. Licensor, and its agents,
partners, customers, and service providers, reserve the right to change,
suspend, remove, or disable access to the Licensed Product at any time without
notice. In no event will the Licensor be liable for the removal of or disabling
of access to any Licensed Product. The Licensor may also impose limits on the
use of or access to the Licensed Product, in any case and without notice or
liability.
9.
Inspection; Records. Licensor
may conduct periodic audits of Your activity (via remote access or otherwise)
and may contact You to provide documentation regarding usage consistent with
the terms of this Agreement, including any suspicion of misuse or abuse. Any violations discovered by Licensor will be
subject to immediate action including, but not limited to, immediate suspension
of Your access to the Licensed Product and termination of this Agreement. If Licensor determines that You are in
violation of the terms of this Agreement, You shall reimburse Licensor for all
costs incurred in connection with the inspection(s). Notwithstanding the
foregoing, Licensor shall retain all other remedies available to it under this
Agreement, or at law or in equity.
10.
Indemnification. You hereby
agree to protect, indemnify, defend, and hold harmless Licensor, its
affiliates, its subsidiaries, officers, directors, employees, representatives,
service providers, customers, suppliers, and distributors (“Licensor Parties”)
from and against any and all costs, claims, demands, damages, losses, and
liabilities (including attorneys' fees and costs) arising from or in any way
related to (a) use of the Licensed Product contrary to the terms of this
Agreement and (b) any infringement of any third party rights by any information
and/or images submitted to or through the Licensed Product by You or on your
behalf.
11. NO WARRANTY: YOU EXPRESSLY
ACKNOWLEDGE AND AGREE THAT USE OF THE MATERIALS IS AT YOUR SOLE RISK AND THAT
THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS
WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MATERIALS ARE
PROVIDED "AS IS" AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT
WARRANTY OF ANY KIND, AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND
CONDITIONS WITH RESPECT TO THE MATERIALS AND ANY SERVICES, EITHER EXPRESS,
IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES
AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A
PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF
THIRD PARTY RIGHTS.
LICENSOR PARTIES DO NOT
WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF YOUR DEVICE, ANY MATERIALS,
OR THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY THE
LICENSED PRODUCT WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE
MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE MATERIALS
WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR
OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE MATERIALS
PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR
OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE
ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
12. LIMITATION OF LIABILITY / WAIVER.
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LICENSOR PARTIES BE
LIABLE FOR PERSONAL INJURY OR DAMAGE TO PROPERTY, OR ANY INCIDENTAL, SPECIAL,
INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION,
DAMAGES FOR LOSS OF PROFITS OR SAVINGS, BUSINESS LOSSES, LOSS OF DATA, BUSINESS
INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR
RELATED TO YOUR USE OR INABILITY TO USE THE MATERIALS, HOWEVER CAUSED,
REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) EVEN IF
LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME
JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR
OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO
YOU. IN NO EVENT SHALL LICENSOR’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER
THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY)
EXCEED THE AMOUNT OF ONE HUNDRED DOLLARS ($100.00). THE FOREGOING LIMITATIONS
WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
BY ACCESSING THE LICENSED
PRODUCT, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS
THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH
WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY
WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY
SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: "A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
13. Security. You acknowledge that
the information available through the Licensed Product may include personally
identifiable information and it is Your obligation to keep all such accessed
information confidential and secure. Accordingly, You and any of Your employees
(as applicable) shall (a) restrict access to Licensed Product to those
employees who have a need to know as part of their official duties; (b) ensure
that You shall (i) not obtain and/or use any information from the Licensed
Product for personal reasons, or (ii) transfer any information received through
the Licensed Product to any party except as permitted hereunder; (c) keep all
user identification numbers, and related passwords, or other security measures
(collectively, "User IDs") confidential and prohibit the sharing of User
IDs; (d) immediately deactivate the User IDs of any employee who no longer has
a need to know, or for terminated employees on or prior to the date of
termination; (e) in addition to any obligations hereunder, take all
commercially reasonable measures to prevent unauthorized access to, or use of,
the Licensed Product or data received therefrom, whether the same is in
electronic form or hard copy, by any person or entity; (f) maintain and enforce
data destruction procedures to protect the security and confidentiality of all
information obtained through Licensed Product as it is being disposed; (g) be
capable of receiving the Licensed Product where the same are provided utilizing
"secure socket layer", or such other means of secure transmission as
is deemed reasonable by Licensor; (h) not access and/or use the Licensed
Product via mechanical, programmatic, robotic, scripted or other automated
search means, other than through batch or machine-to-machine applications approved
by Licensor; (i) take all steps to protect their networks and computer
environments, or those used to access the Licensed Services, from compromise;
and (j) maintain policies and procedures to prevent unauthorized use of User
IDs and the Licensed Services. In the
event You learn or have reason to believe that User IDs, the Licensed Services,
or any information related thereto have been misused, disclosed, or accessed in
an unauthorized manner or by an unauthorized person or contrary to any terms of
this Agreement (a "Security Event"), You shall
provide immediate written notice to the via email to infosec@genpact.com. In the event of a
Security Event, Licensor may, in its sole discretion, take immediate action,
including suspension or termination of Your account, without further obligation
or liability of any kind.
14. Apple
Requirements. To the
extent the Licensed Product is made available via an iOS platform or app, You
acknowledge and agree Apple has no obligation whatsoever to support the
Licensed Product, nor any warranty obligations or intellectual property
infringement liability with regard to the Licensed Product other than a refund
of the purchase price (if applicable). You agree Apple is under no obligation
whatsoever to address any issues or claims that may arise from Your use of the
Licensed Product under this Agreement, including but not limited to (i)
consumer protection, (ii) product liability or other product support, (iii)
intellectual property infringement; or (iv) that the Licensed Product fails to
comply with any applicable law or regulation. You understand and agree
Apple and Apple’s subsidiaries are third party beneficiaries to this Agreement,
and upon Your acceptance or use of the Licensed Product, Apple will have the
right to enforce this Agreement against You.
15. Export Restrictions.
You may not use or otherwise export or re-export the Licensed Product except as
authorized by United States law and the laws of the jurisdiction in which the
Licensed Product was obtained. In particular, but without limitation, the
Licensed Product may not be exported or re-exported (a) into any U.S. embargoed
countries or (b) to anyone on the U.S. Treasury Department's list of Specially
Designated Nationals or the U.S. Department of Commerce Denied Person’s List or
Entity List. By using the Licensed Product, You represent and warrant that You
are not located in any such country or on any such list. You also agree that
You will not use the Licensed Product for any purposes prohibited by United
States law, including, without limitation, the development, design, manufacture
or production of nuclear, missiles, or chemical or biological weapons.
16. Commercial Items. The
Materials, Licensed Product, Services, and related documentation are
"Commercial Items", as that term is defined at 48 C.F.R. §2.101,
consisting of "Commercial Computer Software" and "Commercial
Computer Software Documentation", as such terms are used in 48 C.F.R.
§12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R.
§12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the
Commercial Computer Software and Commercial Computer Software Documentation are
being licensed to U.S. Government end users (a) only as Commercial Items and
(b) with only those rights as are granted to all other end users pursuant to
the terms and conditions herein. Unpublished-rights reserved under the
copyright laws of the United States.
17. Arbitration. Other than claims and controversies involving any (i) violation of any of
the proprietary rights of Licensor, including claims in equity or law to
protect the intellectually property rights of Licensors or any of its third
party providers, partners, or customers, or (ii) failure to comply with
restrictions on use of the Licensed Product; any controversy, claim or
counterclaim, arising out of or in connection with this Agreement will be
resolved by binding arbitration under this Section and the then-current
American Arbitration Association (“AAA”) Commercial Rules, WITH THE EXCEPTION
THAT ANY ARBITRATION WILL BE CONDUCTED AND RESOLVED ON AN INDIVIDUAL BASIS ONLY
AND NOT ON A CLASS-WIDE, MULTIPLE PLAINTIFF OR SIMILAR BASIS. In the event any
court, arbitrator or panel of arbitrators rules that the foregoing limitation
is invalid, then, arbitration shall not be available and is expressly precluded
as a method of conducting and resolving disputes arising under this Agreement.
The duty to arbitrate will extend to any employee, officer, agent or affiliate
of either party. The arbitration will be conducted by a sole arbitrator who is
knowledgeable with respect to the respective industry and is an attorney. The
arbitrator’s award will be final and binding and may be entered in any court
having jurisdiction. The arbitrator will not have the power to award punitive
or exemplary damages, or any damages excluded by, or in excess of, any damage limitations
expressed in this Agreement. Each party will bear its own attorneys’ fees and
other costs associated with the arbitration, except that the fees assessed by
the AAA for the services of the arbitrator will be divided equally by the
parties. If court proceedings to stay litigation or compel arbitration are
necessary, the party who unsuccessfully opposes such proceedings will pay all
associated costs, expenses and attorneys’ fees which are reasonably incurred by
the other party. Issues of arbitrability will be determined in accordance and
solely with the federal substantive and procedural laws relating to
arbitration; in all other respects, the arbitrator will be obligated to apply
and follow the substantive law of the state as specified in this Agreement.
18. Time
Limitation on Claims. You agree that any claim you may have arising
out of or related to Your use of the License Product or against Licensor must
be filed within one (1) year following the event that gave rise to such claim,
otherwise such claim is permanently barred.
19. Use of Affiliates. You acknowledge and agree that the Licensed Product may be provided by
affiliates of Licensor and other third party service providers.
20. Assignment. This Agreement and licenses granted
herein are personal in nature may not be assigned by You, in whole or in part,
without the prior written consent of Licensor. An assignment includes without
limitation the dissolution, merger, consolidation, reorganization, sale or
other transfer of assets. Any assignment without the prior written consent of Licensor
shall be void.
21. Terms Related to Google. To the extent
Google Maps are utilized within the Sites, You agree to the following
additional Google terms and conditions:
) https://maps.google.com/help/terms_maps.html; https://maps.google.com/help/legalnotices_maps.html; and https://enterprise.google.com/maps/terms/universal_aup.html, as may be modified from time to time by Google.
22. Miscellaneous. Those provisions of this Agreement that by their terms, nature or sense
survive any termination or expiration of this Agreement shall so survive in
accordance with their terms, including but not limited to provisions related to
intellectual property ownership and proprietary rights, limitations of liability,
payment for product or services, and disclaimer of warranties. The failure or delay by either party in
exercising any right, power or remedy under this Agreement shall not operate as
a waiver of any such right, power, or remedy.
If any provision of this Agreement is held to be unenforceable or
contrary to law in a court of competent jurisdiction, such provision shall be
changed and interpreted so as to best accomplish the original objective of the
provision to the fullest extent allowable by law and the remaining provisions
shall continue in full force and effect.
The headings are inserted for reference only and shall not impact the
interpretation of this Agreement. The laws of the State of Georgia, excluding its
conflicts of law rules, govern this Agreement. Your use of the Materials may
also be subject to other local, state, national, or international laws. Licensor may indicate that you are
a customer or user of the Licensor Product.
However, You shall not name Licensor or refer to the use of the Licensed
Product or other Licensor products or services in any publication, news
release, advertisement, or promotional or marketing materials without Licensor’s
prior written consent.
Copyright 2018
Genpact. All rights reserved. Last
updated 6.11.18