These Terms of Service (“Agreement”) constitute a contract between Shukla Information Solutions, Inc. with offices at 548 Market St., Suite 30287, San Francisco, CA 94104 (“Shukla Information Solutions”), and you (“Customer”). Customer agrees to be bound by the terms of this Agreement upon the earlier of: (a) its download, installation, access to or use of any of Shukla Information Solutions software or services (including the Services); or (b) its express consent to this Agreement (“Effective Date”). This Agreement includes and incorporates any Order Form under which Customer purchased any of Shukla Information Solutions software or services. If you are entering into this Agreement on behalf of a company, organization or other entity, you represent that you have proper authority to bind such entity and are agreeing to this Agreement on behalf of such entity. If you do not have such authority to enter into this Agreement or do not agree with these terms and conditions, you may not use any Shukla Information Solutions software or services. In the event of any inconsistency or conflict between this Agreement and any Order Form, the Order Form will control.
Any terms not defined in this Section shall have the meaning ascribed to them in their relevant Section.
“Documentation” means the written instructions, technical documentation, manuals and other materials made available by Shukla Information Solutions related to the Services, which Shukla Information Solutions may modify from time to time.
“Installed Software” means any software provided by Shukla Information Solutions to be installed by Customer or its Authorized Users solely for use with the Services.
“Order Form” means a quote, order form or other writing prepared by Shukla Information Solutions, executed by Customer, and accepted by Shukla Information Solutions that sets forth the specific Services that Customer is authorized to use and the applicable fees, volumes, payment schedule and initial subscription term. If Customer subscribes through a reseller or marketplace, then such reseller or marketplace’s applicable ordering document shall apply solely with respect to the fees, volumes, subscription term and Services ordered.
“Services” means any Shukla Information Solutions products and services made available to Customer hereunder, including: (a) the Shukla Information Solutions proprietary software, including any software code, utility, application interface, tools, or services related thereto; (b) the Installed Software; (c) any open-source software used by Shukla Information Solutions in support of the products and services; (d) the Documentation; and (e) any updates, upgrades, enhancements, improvements, derivative works, and modifications of the foregoing, including the general know-how, performance metrics, analytics and machine learning developed over time.
“Term” means the period of time during which Shukla Information Solutions has authorized Customer to access the Services as set forth in any applicable Order Form and subsequent Renewal Term(s).
2.1 Provision of Shukla Information Solutions Platform.Shukla Information Solutions hereby grants Customer and its authorized employees, contractors, vendors and consultants (“Authorized Users”) a limited non-exclusive, non-sublicensable, non-transferable: (a) right to access and use the Services; and (b) if applicable, license to install and use the Installed Software solely in object code form, in each case solely for Customer’s internal business purposes and subject to the terms and conditions of this Agreement. Usernames and passwords to the Services may not be shared or accessed by more than one unique Authorized User. The Services are subject to modification from time to time at Shukla Information Solutions sole discretion, provided the modifications do not materially diminish the functionality of the Services.
2.2 Data Protection. Shukla Information Solutions maintains a commercially reasonable security program that is designed to: (a) ensure the security and integrity of Customer data provided by or on behalf of Customer to Shukla Information Solutions in connection with the Services (“Customer Data”); (b) protect against threats or hazards to the security or integrity of Customer Data; and (c) prevent unauthorized access to Customer Data. Solely if and to the extent Shukla Information Solutions processes Customer personal data (as defined in the DPA) that is subject to the GDPR, the GDPR Data Processing Addendum provided is hereby incorporated into, and shall be fully governed by, this Agreement. Solely if and to the extent Shukla Information Solutions processes Customer Personal Information (as defined in the CCPA Addendum) that is subject to the CCPA, the CCPA Addendum provided is hereby incorporated into, and shall be fully governed by, this Agreement.
2.3 Restrictions. Customer will not, and shall ensure that any Authorized Users will not, directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, copy, create derivative works of or otherwise create, attempt to create or derive the source code, object code or underlying structures, ideas or algorithms of the Services or any data related thereto; (b) attempt to probe, scan or test the vulnerability of the Services, breach the security or authentication measures of the Services without proper authorization, or render any part of the Services unusable; (c) use or access the Services to develop a product or service that is competitive with Shukla Information Solutions products or services or engage in competitive benchmarking; (d) share, transfer, distribute, resell, lease, license, sublicense, make available or otherwise offer the Services on a standalone basis; (e) remove any proprietary notices from the Services or related Documentation; (f) provide any infringing, offensive, fraudulent or unlawful content in connection with the Services; (g) use the Services or related Documentation in any manner or for any purpose that violates this Agreement or Applicable Law, or infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person (collectively, the “Restrictions”).
2.4 Privacy and Data Rights. All Customer Data collected through the Services is subject to the privacy policy located at https://shuklais.com/privacy-policy. Customer acknowledges and agrees that the Services will require Authorized Users to share with Shukla Information Solutions certain information which may include personal data regarding Authorized Users (such as names, usernames, hashed passwords, email address and/or online identifiers) solely for the purposes of providing and improving the Services. Prior to providing any personal information to the Services, Customer is fully responsible for obtaining the consent of the associated individual, in accordance with Applicable Law, to the use of his/her information by Shukla Information Solutions in accordance with this Agreement. Customer represents and warrants that it has all rights necessary, including any consents required hereunder or by Applicable Law, to provide or make available the Customer Data (including personal data) or other materials in connection with its use of the Services, and to permit Shukla Information Solutions to use the same as contemplated hereunder. Customer will not use the Services to transmit or provide to Shukla Information Solutions any financial or medical information of any nature, or any sensitive personal data (such as social security numbers, driver’s license numbers, birth dates, personal bank account numbers, passport or visa numbers, or credit card numbers).
2.5 Suspension. Shukla Information Solutions reserves the right to suspend Customer’s (or any Authorized User’s) access to the Services immediately: (a) if Customer breaches Section 2 or Section 4 of this Agreement, or breaches any other provision and fails to correct that breach within the applicable cure period; or (b) as it deems reasonably necessary to respond to any actual or potential security or availability concern that may affect Shukla Information Solutions or its customers or users.
2.6 Customer Responsibilities. Customer is solely responsible for: (a) all uses of the Services under its account (whether or not authorized); (b) all acts and omissions of Authorized Users, including ensuring that it and its Authorized Users only use the Services in compliance with this Agreement and all Applicable Law (any breach of this Agreement by an Authorized User shall be deemed a breach by Customer); (c) the entry, accuracy, integrity and legality of Customer Data and the means by which it acquires and uses such Customer Data; (d) using commercially reasonable efforts to prevent unauthorized access to or use of the Services (and promptly notifying Shukla Information Solutions in the event of any such unauthorized access or use); and (e) determining whether the Services are suitable or sufficient for its business purposes. Shukla Information Solutions relationship is with Customer and not individual Authorized Users or third parties using the Services through Customer, and Customer will address all claims raised by its Authorized Users directly with Shukla Information Solutions.
2.7 Third-Party Services. Customer’s use of third-party products or services that are not licensed to Customer directly by Shukla Information Solutions (“Third-Party Services”) shall be governed solely by the terms and conditions applicable to such Third-Party Services, as agreed to between Customer and the third party. Shukla Information Solutions does not endorse or support, is not responsible for, and disclaims all liability with respect to Third-Party Services, including the privacy practices, data security processes and other policies related to Third-Party Services. Customer agrees to waive any claim against Shukla Information Solutions with respect to any Third-Party Services. Customer may enable integrations between the Services and Third-Party Services (each, an “Integration”). By enabling an Integration between the Services and its Third-Party Services, Customer is instructing Shukla Information Solutions to share the Customer Data necessary to facilitate the Integration. Customer is responsible for providing all instructions to any Third-Party Service provider relating to Customer Data. Shukla Information Solutions and Third-Party Service providers are not sub-processors of each other.
3.1 Fees. Customer shall pay all amounts invoiced by Shukla Information Solutions relating to any applicable Order Form, according to the payment schedule set forth therein. Except as otherwise specified herein or in any applicable Order Form: (a) fees are quoted and payable in United States dollars; and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable. Shukla Information Solutions reserves the right to change the fees or applicable charges and to institute new charges and fees at the end of the initial term, or then current renewal term, upon forty-five (45) days prior notice to Customer (which may be sent by email). Customer may enter into a subscription for the Services through a Shukla Information Solutions authorized reseller, in which case Customer shall pay all fees to the applicable reseller, and any amounts to which Customer may be entitled due to a breach of this Agreement will be provided through such reseller.
3.2 Late Payment. Shukla Information Solutions may suspend access to the Services immediately upon notice if Customer fails to pay any amounts hereunder at least fifteen (15) days past the applicable due date.
3.3 Taxes. All amounts payable hereunder are exclusive of any taxes, including any direct or indirect local, state, federal or foreign taxes, levies, duties or similar government assessments of any nature (such as VAT, GST, excise, sales, use or withholding taxes) (collectively “Taxes”). Customer will be solely responsible for payment and reimbursement of all Taxes associated with its purchases hereunder, except for taxes based on Shukla Information Solutions net income. Customer will not withhold any taxes from any amounts due hereunder.
4.1 Proprietary Rights. Except as expressly set forth herein, Shukla Information Solutions (and its licensors, where applicable) exclusively retains all right, title and interest (including all Intellectual Property Rights) relating to the Services and Shukla Information Solutions Confidential Information, and Customer exclusively retains all right, title and interest (including all Intellectual Property Rights) in its Customer Data and Confidential Information.
4.2 Feedback. Customer may from time to time provide Shukla Information Solutions suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Services. Shukla Information Solutions will have full discretion to determine whether to proceed with the development of any requested enhancements, new features or functionality. Shukla Information Solutions will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exploit any such Feedback in connection with its products and services.
4.3 Confidential Information. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. Notwithstanding the foregoing, either party may disclose Confidential Information: (a) to its employees, officers, directors, attorneys, auditors, financial advisors, contractors, and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement (and for whom each party is responsible for any breach of this Agreement); and (b) as required by law (in which case, to the extent legally permitted, the receiving party will limit the disclosure to that required by law and provide the disclosing party with prior written notification thereof in order to allow disclosing party the opportunity to contest such disclosure). Neither party will disclose the terms of this Agreement to any third party, except that Shukla Information Solutions may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Receiving party agrees to use the same degree of care that it uses to protect its own confidential and proprietary information to prevent the unauthorized use or disclosure of disclosing party’s Confidential Information, but in no event less than a reasonable degree of care. Promptly after disclosing party’s request, receiving party agrees to return or destroy disclosing party’s Confidential Information; provided, however, that receiving party shall be entitled to retain copies of Confidential Information solely to the extent necessary for purposes of such party’s ordinary course records retention and backup policies and procedures, or to comply with Applicable Law, provided that such Confidential Information is treated as such for so long as it is retained. Each party acknowledges the irreparable harm that improper disclosure of Confidential Information may cause; therefore, the injured party will be entitled to seek immediate injunctive and other equitable relief, in addition to all other remedies, for any violation or threatened violation of this Section or Section 2.3 “Restrictions.”
4.4 Performance Metrics and Machine Learning.Customer acknowledges that a fundamental component of the Services is the use of machine learning and performance metrics for the purpose of providing and improving Shukla Information Solutions products and services. Notwithstanding anything to the contrary, Shukla Information Solutions may collect, use, aggregate, de-identify and/or anonymize (during and after the Term) information related to Customer’s use of the Services to train its algorithms through machine learning techniques, monitor performance, create analytics and statistical data, or for any other purpose permitted by Applicable Law.
5.1 Shukla Information Solutions Warranties. Shukla Information Solutions represents and warrants that: (a) the Services will, under normal and authorized use in full compliance with this Agreement, perform materially in accordance with the Documentation; and (b) it will not knowingly include, in the Services provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including those known as viruses, disabling devices, trojans, or time bombs, designed to intentionally disrupt, disable, harm, or infect the operation of a network, computer program or computer system or any component thereof, including Customer Data. If, at any time, the Services do not conform to the warranty set forth in this Section 5.1, Customer may promptly notify Shukla Information Solutions in writing of any such noncompliance and Shukla Information Solutions will, within 30 days of receipt of such notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable correction plan is not established during such period, Customer may terminate this Agreement and receive a pro-rata refund of any pre-paid subscription fees related to the terminated portion of the applicable Order Form(s) as its sole and exclusive remedy for such noncompliance.
5.3 DISCLAIMERS. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 5, THE SERVICES AND ANYTHING ELSE PROVIDED IN CONNECTION WITH THIS AGREEMENT IS PROVIDED TO CUSTOMER STRICTLY “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND, INCLUDING ANY WARRANTIES THAT THE SERVICES WILL OPERATE ERROR-FREE OR WITHOUT INTERRUPTION, OR BE FREE OF SECURITY DEFECTS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ARE HEREBY DISCLAIMED BY SHUKLA INFORMATION SOLUTIONS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE PARTIES AGREE THAT THE SERVICES DO NOT CONSTITUTE LEGAL ADVICE AND ARE ONLY INTENDED AS TOOLS FOR ASSISTING CUSTOMER IN ITS COMPLIANCE EFFORTS, FOR WHICH CUSTOMER IS SOLELY RESPONSIBLE, AND SHUKLA INFORMATION SOLUTIONS WILL HAVE NO LIABILITY OR RESPONSIBILITY WHATSOEVER FOR CUSTOMER’S COMPLIANCE PROGRAMS.
5.4 BETA PRODUCTS. FROM TIME TO TIME, CUSTOMER MAY HAVE THE OPTION TO USE FREE OR BETA PRODUCTS, FEATURES OR DOCUMENTATION (COLLECTIVELY, “BETA PRODUCTS”) OFFERED BY SHUKLA INFORMATION SOLUTIONS. BETA PRODUCTS MAY NOT BE GENERALLY AVAILABLE, ARE PROVIDED STRICTLY “AS IS,” AND SHALL NOT BE SUBJECT TO ANY REPRESENTATIONS, WARRANTIES, INDEMNIFICATION OBLIGATIONS OR SUPPORT OBLIGATIONS, AND UNLESS PROHIBITED BY LAW, SHUKLA INFORMATION SOLUTIONS WILL HAVE NO LIABILITY RELATED TO SUCH BETA PRODUCTS IN EXCESS OF $1,000.00. CUSTOMER OR SHUKLA INFORMATION SOLUTIONS MAY TERMINATE CUSTOMER’S ACCESS TO BETA PRODUCTS AT ANY TIME FOR ANY OR NO REASON.
6.1 Indemnification by Shukla Information Solutions. Shukla Information Solutions will defend Customer against any claims, actions, demands or proceedings (“Claim”) made or brought against Customer by an unaffiliated third party alleging that the use of the Services as permitted hereunder infringes or misappropriates any third party copyright, trademark, US patent, or trade secret, and will indemnify Customer for any damages (including reasonable attorney’s fees) finally awarded by a court of competent jurisdiction against Customer, or agreed upon in settlement by Shukla Information Solutions, in connection with any such Claim. Notwithstanding the foregoing, Shukla Information Solutions shall have no obligation or liability for any Claim of infringement or misappropriation to the extent that it arises out of or relates to: (a) Third-Party Services, Customer Data, or Customer designs, guidelines or specifications; (b) modifications made other than by Shukla Information Solutions; (c) combination of the Services with a non-Shukla Information Solutions application, product, data or business process, where the Services would not be infringing alone; (d) continued use of the Services after Customer has been notified of modifications or substitutes, to the extent use of such modifications or substitutes would have prevented the Claim; or (e) use of the Services in a manner not strictly in accordance with this Agreement and all related Documentation (clauses (a) through (e), “Excluded Claims”). If the use of the Services by Customer has become, or in Shukla Information Solutions opinion is likely to become, the subject of any Claim of infringement, Shukla Information Solutions may at its sole option and expense: (i) procure for Customer the right to continue using and receiving the Services as set forth hereunder; (ii) replace or modify the Services to make them non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not commercially practicable, terminate this Agreement solely with respect to the infringing portion of the Services and provide a pro-rata refund of any pre-paid subscription fees related to the terminated portion of the applicable Order Form(s). This Section states Shukla Information Solutions sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any Claim of any nature related to infringement or misappropriation of Intellectual Property Rights.
6.2 Indemnification by Customer.Customer will defend Shukla Information Solutions and its officers, directors, employees and agents against any Claim made or brought against Shukla Information Solutions by a third party relating to the Excluded Claims or Customer’s breach of Section 2 “Services and Responsibilities,” and Customer will indemnify Shukla Information Solutions and its officers, directors, employees and agents for any damages finally awarded against Shukla Information Solutions (or any settlement approved by Customer) in connection with any such Claim.
EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS OR CUSTOMER’S BREACH OF SECTION 2 “SERVICES AND RESPONSIBILITIES” OR SECTION 3 “FEES,” IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR: (A) ANY LOST PROFITS OR REVENUE, LOSS OR CORRUPTION OF DATA, OR FOR ANY INDIRECT, SPECIAL, COVER, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING UNDER THIS AGREEMENT, IRRESPECTIVE OF WHETHER THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE OTHERWISE FORESEEABLE; OR (B) ANY AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT IN EXCESS OF THE TOTAL AMOUNTS PAID OR PAYABLE TO SHUKLA INFORMATION SOLUTIONS UNDER THE ORDER FORM GIVING RISE TO LIABILITY IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT FIRST GIVING RISE TO THE LIABILITY. THE FOREGOING DISCLAIMERS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. THE LIMITATIONS SET FORTH IN THIS SECTION 7 SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH CLAIMS ARE BROUGHT (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE).
9.2 Publicity. Customer agrees that Shukla Information Solutions may refer to Customer’s name and trademarks in Shukla Information Solutions marketing materials and website; however, Shukla Information Solutions will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email).
9.5 Third-Party Beneficiaries. By accessing the Services, Customer expressly agrees that Shukla Information Solutions shall have the benefit of and right to enforce this Agreement against Customer, irrespective of Customer’s agreements with any authorized reseller. Except for Shukla Information Solutions own benefit, nothing in this Agreement shall confer, or is intended to confer, on any third party any benefit or the right to enforce or modify any term of this Agreement.
9.7 Governing Law; Compliance. This Agreement is governed by and construed in accordance with the laws of the State of California and the federal U.S. laws applicable therein, excluding its conflicts of law provisions. For purposes of any dispute or claim related to this Agreement, Customer and Shukla Information Solutions agree to submit to the personal and exclusive jurisdiction of the courts located in San Francisco County, California. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Each party will comply with all Applicable Law.
9.8 Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Shukla Information Solutions may provide notice using the information provided in the most recent Order Form and Customer may provide notice using the contact information provided on https://shuklais.com/contact/. Notices regarding the Services in general may be given by electronic mail to Customer’s email address on record with Shukla Information Solutions.
9.9 Entire Agreement. This Agreement and any Order Form(s) constitutes the entire agreement of the parties concerning its subject matter and is intended to be the final expression of their Agreement, and supersede all prior and contemporaneous agreements, proposals, or representations, whether written or oral. No failure or delay in exercising any right hereunder shall constitute a waiver of such right. No amendment or waiver of any provision of this Agreement or any Order Form shall be effective unless in writing and signed by an authorized representative of Customer and Shukla Information Solutions and will only be given effect as to the specific provision and circumstances for which it was given. Notwithstanding the foregoing, no force or effect shall be given to any different or additional terms contained in any purchase order or other vendor form issued by Customer, even if signed by Shukla Information Solutions after the date hereof. In the event of any conflict between this Agreement and any applicable DPA or CCPA Addendum, the DPA and/or CCPA Addendum will govern.
9.12 Anti-Corruption. Customer agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any Shukla Information Solutions employee or agent in connection with this Agreement. If Customer learns of any violation of the above restriction, Customer will promptly notify Shukla Information Solutions.
