Terms of Service-DATOMS

Terms of Service

Welcome to Datoms! We are excited to have you as a User or Customer.

1. Definitions

These are some basic terms, defined in a way that will help you understand this agreement. Please refer back up to this section anytime for clarification.

The “Agreement”, “Terms of Service”, or “Terms” refers, collectively, to all the terms, conditions, notices contained or referenced in this document and all other operating rules, policies (including the Datoms Privacy Policy) and procedures that we may publish from time to time on the Website.
“Datoms”, “DATOMS”, “Phoenix”, “Phoenix Robotix”, “We”, and “Us” (or “Our”) refer to Phoenix Robotix Private Limited, as well as our affiliates, directors, subsidiaries, contractors, licensors, officers, agents, and employees. DATOMS is a brand owned and operated by Phoenix
Robotix Private Limited.
“Affiliate” means any other entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, the Customer.
“Customer”, “The User”, “You”, and “Your” refer to the individual person, company, or organization that has visited or is using our Website, Products or Services; that accesses or uses any part of the Account; or that directs the use of the Account in the performance of its functions. A User must be at least 18 years of age.
An “Account” represents your legal relationship with Datoms. It represents an individual Userʼs authorization to log in to and use the Service and serves as a Userʼs identity on Datoms. An “Organization” can be a company or entity under which one or multiple User Accounts can be
added. A User Account can be a member of any number of Organizations.
“Administrators”, or “Admin Accounts” mean the Customer-designated personnel who administer the Services to End Users on Customerʼs behalf, and have the ability to access Customer Data and End User Accounts. Such access includes the ability to access, monitor, use, modify, withhold, or disclose any data available to End Users associated with their End User Accounts.
“Partner”, or “Reseller” means the, if applicable, authorized unaffiliated third party that sells the datoms Products & Services to Customers directly or as a bundled offering along with their products & services.
The “Service(s)” refer(s) to the websites, applications (web/mobile/desktop), APIs, SDKs, software, products, and services provided by Datoms, including any Beta Previews.
The “Website” refers to Datoms’ website located at datoms.io, and all content, services, and products provided by Datoms at or through the Website. It also refers to Datoms-owned subdomains of datoms.io. Occasionally, websites owned by Datoms may provide different or additional terms of service. If those additional terms conflict with this Agreement, the more specific terms apply to the
relevant page or service.
“Content” refers to content featured or displayed through the Website or Services, including without limitation code, text, data, articles, images, photographs, graphics, software, applications, packages, designs, features, and other materials that are available on the Website or otherwise available through the Service. “Content” also includes Services. “User-Generated Content” is Content, written or otherwise, created or uploaded by our Users. “Your Content” is Content that you create or own.
“Customer Data” means Customer-specific data captured by the Customerʼs use of any installed Hardware, data submitted by the Customer or by a third party on the Customerʼs behalf into Apps and Hosted Software, and the analysis, reports, and alerts generated by the Services from the data. For the avoidance of doubt, Customer Data does not include any Datoms Software components.
“Documentation” means any Product training, technical details, or documentation made available to the Customer by Datoms through the Website or by any other means.
“Machine” means the asset, analyzer, vehicle, equipment, building, structure, or any such item with which Hardware is being integrated or it is being monitored on Datoms platform. A “Thing” or “Site” is a virtual representation of one or multiple Machines that are being integrated or monitored.
“Hardware” or “Device” means the Datoms or any 3rd party hardware devices such as gateways, cameras, sensors, controllers, vision systems, and accessories, that Customer has purchased, received for a free trial, or has otherwise acquired in relation to an Order Form from Datoms.
“Firmware” means software embedded in or otherwise running on the Hardware.
“Software Agent” means the software offered by Datoms that can run on any Datoms-provided or 3rd party Hardware or System to connect the same to the Datoms platform.
“Hosted Software” means Datoms’ cloud-hosted software platform, including the interface accessed online.
“Apps” means software applications for smartphones, tablets or desktops distributed by Datoms through Google Play or the Apple App Store or Datoms Services or any other distribution media.
“Products” means the Hardware and Services. For the avoidance of doubt, Products do not include any 3rd party Products.
“Datoms Software” means the Apps, Firmware, APIs, SDKs, Software Agent and Hosted Software, and any improvements, modifications, patches, updates, and upgrades thereto that Datoms develops or provides in connection with these Terms, and Support Services.
“Datoms Software Systems” means the Datoms Software and any networks, systems, products, services, or data of Datoms, its providers, its partners, its customers, or any other third party, integrated with or connected to such Datoms Software.
“Beta Previews” mean any Datoms hardware, software, services, features, related documentation or accessories identified as alpha, beta, preview, pre-launch, early access, or evaluation, or words or phrases with similar meanings, that are not generally available to all Customers and that may be in the research, development, prototyping, and/or testing phase.
“Malicious Code” means code, files, scripts, software agents, software or programs intended to do harm or allow for unauthorized access, including but not limited to, for example, viruses, worms, time bombs, Trojan horses, password guessing programs, decoders, password gatherers, keystroke loggers, cracking tools, packet sniffers, and/or encryption circumvention programs.
“Non-Datoms Products”, or “3rd Party Products” means any web-based, offline, or mobile applications, or other resources, users, data, systems, networks, products, services, machines, hardware, or software functionality that is provided by the Customer or a third party and that
interoperates and/or exchanges data with Datoms Products.
“Professional Services” means the installation, site support, training, consulting, or other professional services that are provided by Datoms to Customer (i) either on-site or remote, (ii) as purchased separately by Customer pursuant to an Order Form, (iii) in Datoms’ sole discretion, or (iv) as otherwise mutually agreed between the Parties.
“Quote” means a quote issued by Datoms and executed by the Customer setting forth the purchase or procurement of Datoms Products and/or licenses thereto.
“Purchase Order” means a purchase order or similar ordering document issued by Customer to Datoms and accepted by Datoms setting forth the purchase or procurement of Datoms Products and/or licenses thereto.
“Order Form” means the applicable Quote or Purchase Order setting forth the purchase or procurement of Datoms Products and/or licenses thereto. By entering into an Order Form hereunder, a Customer Affiliate agrees to be bound by these Terms as if it were Customer, and Customer and the applicable Customer Affiliate are jointly and severally liable under such Order Form
“Subscription Start Date” or Service Start Date” is either:

a. the start date stated in the Order Form; or

b. if none is specified in the Order Form, the earlier of (i) the date Datoms makes the Services available to Customer (when Account is created for the User(s) or Hardware, if applicable, is connected to the Machine or data is received on the Datoms Software from the Machine) and (ii) 30 days from the day Datoms ships the Hardware to the Customer (if the Subscription is billed to the Customer) or Partner/Reseller (if the Subscription is billed to the Partner/Reseller), if Hardware is associated with a then-unactivated Datoms
Software License/Subscription; or

c. if Customer is renewing the Subscription Term for a previously-activated Subscription, the day that Datoms extends Customer’s access to the Services for the renewal Subscription Term; or

d. a date, as determined by Datoms at their sole discretion, after any of the above dates (we may do so for various reasons, including but not limited to, to simplify the Subscription billing if the Customer has multiple
active Subscriptions)

“Subscription End Date” or “Service End Date” means the later of (i) the original license termination date set forth in the applicable Order Form you entered into for the original purchase of Products or under which Products were originally made available to you (“Initial Term”), and (ii) the
end of the then-active Renewal Term; or
“Subscription Term” means the period of time starting on the Subscription Start Date or the renewal date (as applicable) and continuing till the Subscription End Date unless terminated in accordance with this Agreement.
“Refund” means an amount refunded, at Datoms’ sole discretion, to the Customer (or to any third party who paid Datoms for Customer’s procurement of Products under the applicable Order Form, including a Partner, Reseller, Lender, or other third party) pursuant to these Terms. For clarity, a Refund may only be issued as expressly provided hereunder.
“3rd Party Service” means the optional services offered to the Customers via Datoms Software by any business that may not have any affiliation to Datoms.
“3rd Party Service Provider” means any business (that may not have any affiliation to Datoms) that offers optional service(s) to Datoms Customers via Datoms Software.

2. Acceptance of the Terms of Service

These Datoms Terms of Service (together, the “Agreement”) are entered into by Phoenix Robotix Private Limited (referred to as “Phoenix”, “Phoenix Robotix”, “Datoms”, “we”, “us” and/or “our” in this document) and the entity or person agreeing to them (“Customer”) and govern Customer’s access to and use of our Websites & Products. Please read these Terms of Service carefully before you start using our Products, because by using the Products you accept and agree to be bound and abide by these Terms of Service, including our Privacy Policy.

This Agreement is effective when you (i) click to accept it (the “Effective Date”) on our Web or Mobile Applications, or (ii) when you visit our websites (even though there might not be any prompts for you to accept it on our website), or (iii) when you enter into an Order Form with the purchase/procurement of our Products and/or licenses thereto, or (iv) when you execute an Order Form or other contract that references these Terms, whichever is the earlier. This Agreement shall continue until (i) the Subscription End Date for the last active Order Form or other contract you entered into for the purchase of Products or under which Products are made available to you, or (ii) you are no longer authorized to access and/or use the Products, or (iii) these Terms are otherwise terminated earlier as provided hereunder, whichever is the earliest. If your Subscription Term is not renewed after termination of the immediately preceding Subscription Term and Datoms in its sole discretion allows you to continue using the applicable Products during such interim period, this Agreement shall apply to such use.

If you have entered into a Separate Contract with Datoms with respect to your purchase of Products or under which Products are made available to you, this Agreement is still applicable & effective on you. In the event of a conflict between such Separate Contract with Datoms and this Agreement, the corresponding clause in the Separate Contract with Datoms shall prevail. For clarity, here the term “Separate Contract” refers to any direct Agreement between the Customer/Partner/Reseller & Datoms, and does not refer to or include any kind of agreement between the Partner/Reseller & Customer.

If you are accepting on behalf of Customer, you represent and warrant that (i) you have full legal authority to bind Customer to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Customer, to this Agreement. If you do not have such authority, or if you do not agree with this agreement, you must not accept this agreement and must not use our Products or Services.

Some of our Products may have their specific Terms of Service (specific to the usage of that Product, hereinafter the “Service Specific Terms”). In the event of a conflict between the General Terms and Service Specific Terms, the corresponding clause in the Service Specific Terms shall prevail.

You must not use the Products if You are a direct competitor of Datoms, except with prior written consent of Datoms. In addition, You must not access the Products & Services, under any circumstances, for the purposes of debugging, monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes

3. Where this Agreement applies

This Agreement applies to our Websites & any Applications, Software, Products and Services offered by Phoenix Robotix Private Ltd. & its affiliates, e.g. Datoms website, Datoms Web App, Datoms Mobile applications, Hardware, Firmware, Software Agent, APIs & SDKs etc.; Any Beta Previews; Any related
Support; and Any related Professional Services.

This Agreement does not apply to:

Products that have their separate Terms & do not incorporate this Agreement.
Any 3rd Party Products that promote or advertise our Products.
Products offered by other companies or individuals, including Products or Websites they offer that may include our Products to which this Agreement applies.
Products offered by our partner companies that we may promote, or may be integrated with our
Products & the user may opt to use them.

4. Changes to these Terms of Service

We reserve the right, at our sole discretion, to amend these Terms of Service at any time and will update these Terms of Service in the event of any such amendments. So we encourage you to review our Terms of Service frequently to stay informed about the same.
You acknowledge and agree that it is your responsibility to review these Terms of Service periodically and become aware of any modifications.
When we make updates to our Terms of Service, we will post a notification on the main page of our Hosted Software, revise the updated date at the bottom of this page and optionally, may send you an email.
Customer’s continued use of the Website(s) or Product(s) after the amendment constitutes agreement to those revisions of this Agreement. If you do not agree to the modified Terms, then you must stop using our Website(s) or Product(s) immediately.

We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Website (or any part of it) with or without notice.

5. License

Subject to the terms and conditions specified in these Terms or an applicable Order Form, Datoms grants Customer a non-sublicensable, non-exclusive, non-transferable, limited and revocable license to use and access the Datoms Software (i) in accordance with the Documentation, (ii) for the number and type of Datoms Software licenses specified in the applicable Order Form and solely the functionality included
therein, and (iii) starting from the applicable Subscription Start Date until the Subscription End Date.

The Firmware/Software Agent license for each item of Hardware is (i) only valid for use with that Hardware unit, unless the Hardware unit is replaced due to any faults by Datoms, and (ii) contingent upon the Customer purchasing and maintaining a valid Subscription/License to the corresponding Datoms Software. For clarity, the license for Datoms Software that is provided in conjunction with a Hardware unit can’t be run
on any other piece of Hardware (even of the same model & supplied by Datoms) & may not work beyond the associated Subscription Term

6. License Restrictions

Customer agrees not to do or attempt to do any of the following without Datoms’ express prior written consent:

(i) resell, white label, modify, copy, translate, create derivative works from, or reproduce the Datoms Product or any individual element within the Datoms Product, Datoms’ name, any Datoms trademark, logo or other proprietary information, or the layout and design of any part of the Datoms Product;
(ii) access, tamper with, or use non-public areas of the Datoms Products or Software Systems;
(iii) gain unauthorized access to, interfere with, disable, or disrupt the integrity & security of the Datoms Products or Software Systems;
(iv) avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented to protect or enforce a contractual usage limit on the Datoms Products & Software Systems;
(v) transfer, resell, sublicense, lease, lend, rent or otherwise distribute the Datoms Products & Software Systems to any third party;
(vi) use the Products & Services for time-sharing or service bureau purposes or for any purpose other than its own internal use;
(vii) allow user licenses to be shared or used by more than one individual other than by way of reassigning the user license to a new user;
(viii) use the Products & Services in connection with any high-risk or strict liability activities, in which the failure of the system could lead directly to physical injury, death or severe environmental damage. Such applications may include without limitation, the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, war or weapon systems;
(ix) decipher, decompile, disassemble, reverse engineer or otherwise attempt to discover the source code, object code or underlying structure, architecture, ideas or algorithms of any aspect of the Datoms Products & Software Systems, in whole or in part;
(x) use the Products or Services in any manner that could damage, disable, overburden, impair or harm any server, network, computer system, or resource of Datoms;
(xi) use the Products or Services in any manner that interferes with or disrupts the integrity, security or performance of the Services, its components and the data contained therein;
(xii) remove or obscure any proprietary or other notices contained in the Products or Services;
(xiii) use our Services in any manner that threatens the unity, integrity, defense, security or sovereignty of India, friendly relations of India with other countries, or public order, or causes incitement to the commission of any cognizable offense or prevents investigation of any offense or is insulting other countries;
(xiv) impersonate or misrepresent an affiliation with any person or entity;
(xv) use the third party links to sites without agreeing to their website terms & conditions;
(xvi) use or access the Datoms Products & Software Systems for any competitive purpose;
(xvii) perform any kind of monitoring or benchmark testing on the Datoms Products or Software Systems; or run or use any processes that run or are activated while Customer is not logged on to the Services or that “crawl”, “scrape”, or “spider” the Service;
(xviii) use the Datoms Products & Software Systems to store or transmit Malicious Code;
(xix) use the Products & Software Systems, in whole or in part, to store, publish, submit/receive, upload/download, post, use, copy, or otherwise produce, transmit, or distribute infringing, spam, libelous, defamatory, vulgar, obscene, harassing, threatening, or otherwise unlawful, objectionable or tortious material; or to store, publish, submit/receive, upload/download, post, use, copy, or otherwise produce, transmit, or distribute material in violation of third-party privacy rights (including without limitation, accessing any computer, computer system, network, software, or data without authorization, breaching the security of another user or system, impersonating any person or entity, and/or attempting to circumvent any user authentication or security process);
(xx) use the Products & Software Systems, in whole or in part, other than in accordance with this Agreement and in compliance with all applicable laws and regulations, including but not limited to, any privacy laws, marketing and data security laws and government guidelines, and laws and regulations concerning intellectual property, consumer and child protection, obscenity or defamation;
(xxi) authorize, permit, encourage, enable, or promote any other individual or entity to do any of the foregoing.

Datoms, at their sole discretion, has the right to investigate violations of this Section or conduct that affects the Datoms Products & Software Systems and immediately suspend or terminate any or all of Customerʼs access to the Datoms Software if it reasonably suspects or determines that Customer has violated this Section. Datoms may also consult and cooperate with law enforcement authorities to prosecute Users who violate the law.

7. Suspension

Notwithstanding anything to the contrary, Datoms reserves the right to suspend or limit any or all of Customerʼs access to the Services, with or without notice, if Datoms determines, in its sole discretion, that:

a. Customerʼs use of the Service does or is likely to: (i) damage the Service or interfere with Datoms’ ability to reliably provide the Service to other users; or (ii) place an unreasonable or unexpected load on the Service; or (iii) disrupt or pose a security risk to the Services or any other user of the Services, may harm Datoms’ Software Systems or any other user of the Services, or may subject Datoms or any third party to
liability; or (iv) misuse the Services or use the Services for fraudulent or illegal activities;

b. there is a threat or attack on the cloud servers hosting the Services (including a denial of service attack) or other event that may create a risk to the Services, to Customer or to any other user of the Services;

c. subject to applicable law, Customer has ceased to continue Customerʼs business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Customerʼs assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding;

d. Customer is using the Services in breach of this Agreement;
e. Customer is in default of Customerʼs payment obligations hereunder; or
f. there is an unusual spike or increase in Customerʼs use of the Services;

Customer understands that many of the reasons for suspension listed above are imposed on us by third party licensors, are subject to change without notice, and may result in Customerʼs access to the Services being suspended as a result of the actions of other users.
Datoms will make commercially reasonable efforts, without any guarantee, circumstances permitting, to provide written notice of any Service Suspension to Customer (including notices posted on the website or sent to Customerʼs registered e-mail address) and to provide updates regarding the resumption of Customerʼs access to the Services following any Service Suspension.
Datoms will have no liability for any damage, liabilities, losses (including without limit, any loss of
data, profits or goodwill) or any other consequences that Customer may incur as a result of any Service Suspension or limitations related to carrier coverage or support.

8. Hardware Installation and Equipment Maintenance

Customer is solely responsible for the installation of the Hardware and ongoing maintenance of any Machine/Equipment. Depending on the Customerʼs intended use of the Products & technical expertise, the Customer may require professional installation of the Hardware or ongoing professional maintenance of any Equipment, provided by Datoms or one of its authorized Partners.
If Customer is unable to install the Hardware correctly or to conduct such ongoing maintenance, or if Customer is uncertain that Customer has the requisite skills and understanding, Customer agrees to consult with a qualified installer or maintenance professional.
Improper installation of the Hardware or maintenance of the Equipment can lead to damage of such Hardware, or damage to the Machine to which it’s connected, or dangerous or life-threatening conditions, which can cause property damage, bodily injury, environmental damage and/or death. Datoms & its 3rd Party Licensors specifically disclaim any kind of express or implied warranty or
liability of any such incidents.

9. Product Updates

9.1 General

Datoms continuously improves the Products, and may from time to time (i) update the Datoms Software and cause Firmware updates to be automatically installed onto Hardware; (ii) update the Apps; or (iii) upgrade Hardware equipment to newer models.
Datoms, at their sole discretion, may change or discontinue all or any part of the Products, at any time and without notice.
The Updates to the Software & Hardware may not be backward compatible (e.g. The latest released Firmware may not run on the old Hardware or vice versa), in which case the Customer can still use the older version of the Software or Hardware until its End of Support (EOST) is reached. EOST dates are decided by Datoms at their sole discretion and Customer hereby consents to the same.
Updates or upgrades may include security or bug fixes, performance enhancements, or new functionality, and may be issued with or without prior notification to Customer. Customer hereby consents to such automatic updates.

9.2 End Of Life (EOL)

Datoms may find it necessary to discontinue any Product for several reasons, including but not limited to, Product-line enhancements, market demands, technology innovation, or the Product simply going out-ofdate over time and being replaced by functionally richer/efficient alternatives. When Datoms decides to End-of-Sale of a Product, the Product moves into the End-of-Life (EOL) stage, which refers to when a
product is retired from the market by Datoms.

Datoms is committed to communicating important milestones throughout the productʼs retirement (EOL) phase. These milestones will include the End of Sale (EOS) date and the End of Support (EOST) date, as well as other key information pertaining to Datoms Products.

End-of-Sale (EOS) Date: The last date to order the Product through Datoms. After this date, the Product is no longer available for sale by Datoms (but may be still available in the market via the Partners or Resellers until their stock last).
End-of-Support (EOST) Date: The last date a Product will be affirmatively supported by Datoms (Hardware, Software, or Firmware components), typically five years following the EOS date. After this date, there will be no more Software/Firmware updates/bugfixes, technical support, Hardware repairs, RMA procedures will end, and the Terms of Service terminates. EOST dates are decided by Datoms
at their sole discretion, subject to change and may be published or updated on Datoms’ website once finalized by Datoms.

9.3 Beta Previews

From time to time, Datoms may, in its sole discretion, make Beta Previews, or Pre-Launch Offerings of the Products available to Customer(s). Should Customer opt to use Beta Previews, Customer agrees to:

(i) assume sole responsibility and all risk, and waive and release Datoms from any claims directly or indirectly arising from or related to the Beta Previews; and (ii) without limitation, defend, indemnify, and hold harmless Datoms from any 3rd party claims directly or indirectly arising from or related to the Beta
Previews.

BETA PREVIEWS ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND

Customer acknowledges and agrees that Datoms may, at any time and in its sole discretion, and without any notice to you, suspend, discontinue, restrict or disable access to, modify or remove any or all features and functionalities from the Beta Previews.

Customer acknowledges that Beta Previews that may interact, interface, or integrate with 3rd party products and/or services may not be validated or supported by such 3rd parties and may interfere with the operations of or void warranties for such 3rd party products and/or services. Except as explicitly set forth otherwise in this Section of the agreement “Beta Previews” are subject to the same terms and conditions as are applicable to a “Product” under this Agreement.

9.4 Feedback

Datoms encourages Customers to use commercially reasonable efforts to provide feedback to Datoms regarding the Products, Services and Beta Previews upon request or at will.
If you choose to give us any ideas, know-how, workflows, architectures, algorithms, code contributions, suggestions, enhancement requests, recommendations or any other feedback for our Websites, Products, Services or Documentation (collectively, “Feedback”), you acknowledge and agree that Datoms will have a royalty-free, fully paid-up, no-obligation, worldwide, transferable, sublicensable, irrevocable and perpetual license to implement, use, modify, commercially exploit and/or incorporate the Feedback into our Websites, Products, Services, Documentation or any other purposes as found suitable.

10. Payment, Shipping, and Delivery

Customerʼs payment and billing terms are set forth in the Order Form.
Unless otherwise set forth herein or in the applicable Order Form, all payments made to Datoms under an Order Form are non-refundable.
Datoms may submit Customer contact information and information related to the timeliness of Customerʼs payments to credit rating, credit reporting, or similar agencies.
Customer is responsible for all payments of applicable taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”), however designated or incurred under these Terms. If Datoms has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Datoms will invoice Customer, and Customer shall reimburse Datoms for any taxes paid or payable on behalf of Customer. Unless required by applicable law, Datoms will not provide retroactive Tax refunds or credits to Customer. Subject to applicable legal requirements,
any Tax refund or credits provided to Customer shall be at Datoms’ sole discretion, and Datoms reserves the right to charge the Customer reasonable fees and costs associated with processing such Tax refund or credit.
All shipments are FOB (2010) Origin, Freight Prepaid, and Charged Back.

11. Price Revisions

Datoms, at its sole discretion, may change the Prices of any Product or Service at any time unless otherwise expressly agreed in an addendum or Order Form. Datoms will notify Customer at least 30 days in advance of any changes. Customer’s pricing will change at the beginning of Customerʼs next Subscription Term after the 30-day notice period.

12. 3rd Party Service

Datoms may offer any number of optional 3rd Party Services via Datoms Software to Customer. Examples may include without limit, (i) Machine Maintenance Services, (ii) Machine or Site Insurance Services, (iii) Machine Financing Services, (iv) Machine Fuel Management & Refueling Services. If Customer opts to avail any such 3rd Party Service(s), then the Customer acknowledges that:

a. The 3rd Party Services are completely optional & Customer has no obligation whatsoever to avail them via Datoms. But there may be some additional benefits that Customer gets only when availing the services via Datoms & not otherwise.

b. Each 3rd Party Service may have its own price separate from the Subscription price paid for Datoms. The prices of the 3rd Party Services are decided by the 3rd Party Service Providers.

c. Datoms may share Customer Data with the corresponding 3rd Party Service Provider as and when necessary.

d. Datoms only share the required Customer Data with the 3rd Party Service Provider only after Customer opts for the corresponding 3rd Party Service provided by the entity & not otherwise.

e. The Customer can revoke the consent to share data with the 3rd Party Service Provider anytime, subject to the terms & conditions of the specific service, for example, The Machine Financing service may require the Customer Data to be shared until the loan is fully paid-up. In such cases, Customer won’t be able to revoke the consent until all the required criteria are met.

f. The above-mentioned 3rd Party Service list is not the final list of available 3rd Party Services & Datoms may, at its own discretion, at any time, with or without notice, add more 3rd Party Services to the list or remove any 3rd Party Service from the list.

g. The 3rd Party Services are provided by 3rd Party Service Providers who might not have any affiliation with Datoms.

h. Datoms may not do any kind of legal, financial or service-quality-related auditing on the 3rd Party Service Provider.

i. The 3rd Party Service Provider may have their own terms & conditions for the Service(s) & those are not controlled by Datoms.

j. Datoms only shares the Customer Data with the 3rd Party Service Provider & does not have any control over how they use the Customer Data, or their privacy practices. It is the sole responsibility of the Customer to understand the term of the specific 3rd Party Service as well as the privacy policy of the 3rd Party Service Provider before opting in for any of the 3rd Party Service(s)

k. The 3rd Party Services are provided by the 3rd Party Service Providers & in no way managed, controlled, altered or monitored by Datoms.

l. Datoms holds no warranty or liability for any disputes that may arise between the Customer and the 3rd Party Service Provider. Such disputes include, but are not limited to, issues related to poor service quality, accidents, or hazards on-site caused directly or indirectly by the 3rd Party Service Provider, fraudulent activities, or any other legal disputes. The Customer agrees that any disputes with the 3rd Party Service Provider are solely between the Customer and the 3rd Party Service Provider, and Datoms shall not be held responsible or liable for any losses or damages resulting from such disputes.

THE 3RD PARTY SERVICES ARE OFFERED “AS IS” WITHOUT WARRANTY OF ANY KIND AND ONLY AS A CONVENIENCE.

13. Account

Customer shall be solely responsible for administering and protecting Accounts.
Customer agrees to provide access to the Datoms Products & Software Systems only to Authorized Users; and to require such Authorized Users to keep Account login information, including usernames and passwords, strictly confidential; and not provide such Account login information to any unauthorized parties.
Customer must not create an account for use of any person under the age of 18. If Datoms learns of any User under the age of 18, it will terminate that User’s account immediately, with or without notice. If Customer or its User(s) are located in a country outside India, that country’s minimum age may be older; in such a case, Customer is responsible for complying with that country’s laws.
Customer is solely responsible for monitoring and controlling access to the Datoms Products & Software Systems and maintaining the confidentiality of Account login information and any provided API tokens. In the event that Customer or any Authorized User becomes aware that the security of any Account login information has been compromised, Customer shall immediately notify Datoms and de-activate such Account or change the Accountʼs login information.
Authorized Users may only use the Datoms Software strictly on behalf of Customer and subject to the terms and conditions applicable to Customer herein.
Customer is responsible and liable for all acts and omissions of its employees, subcontractors, and anyone to whom Customer provides access to the Products & Services or that is using or accessing the Products & Services on Customerʼs behalf (referred to as “Agents”) (including any breaches of this Agreement) as if Customer committed such act or omission itself. Datoms may exercise any rights and/or remedies under this Agreement, at law or in equity, against Customer based upon such acts or omissions of such Agents.
Datoms will not be liable for any loss or damage from Customerʼs failure to comply with this Section 13 (Account) of the Agreement.

14. Customer Data

14.1 Ownership and Usage

Customer Data is stored & accessible via the Datoms Software. Customer owns all Customer Data.
Customer hereby grants to Datoms a non-exclusive, transferable, sublicensable, worldwide, royalty free license to capture, store, access, use, copy, modify, reformat, create derivative works based upon, display, and distribute Customer Data in connection with operating and providing the Products & Services.
Datoms will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Datoms will not share Customer Data without Customer consent, except when the release of data is compelled by law or permitted herein.
If Customer opts to avail any 3rd Party Service(s) via Datoms, then we may share Customer Data with the 3rd Party Service Provider as and when necessary.
Datoms may collect and use analytics, statistics or other data & any derived work (collectively referred to as “Datoms Usage Data”), related to the Customer Data and Customerʼs use of the Products. The purposes for collecting and using Datoms Usage Data include, but are not limited to, (i) providing the Products to Customer; (ii) monitoring, debugging, analyzing, developing, maintaining, and improving the Products; (iii) statistical reporting and publishing (including publishing it in any whitepapers etc. or making it public, provided that such data is not personally identifiable); or (iv) marketing activities to promote the Products, or (v) serving any other commercial or business interests. Datoms may provide Datoms Usage Data to third party services for any of the aforementioned purposes. To the extent needed to perfect Datoms’ ownership in the Datoms Usage Data, Customer hereby irrevocably assigns all rights, title and interest in such Datoms Usage Data to Datoms. The right to use such data shall survive the termination of this Agreement unless legally prohibited.
Customer may export Customer Data at any time during the Subscription Term through the export features in the Datoms dashboard or via the Datoms API. Customer acknowledges that some information may not be exportable via the Datoms dashboard or the API.
Customer data is stored on the Datoms Software Systems & Servers only for a time period as per the Subscription Plan of the Customer, or as mentioned in the Order Form & may be deleted anytime after the same time period is over. If these Terms terminate or expire and Customer does not renew the Subscription, Customer Data may be deleted immediately.
Datoms cannot guarantee that the Customer Data is hosted on servers located in Customer’s jurisdiction, therefore Customer is solely responsible to comply with any data localization requirements and should not use the Products & Services in breach of those requirements.

14.2 Customer Data Representation and Warranty

Customer represents and warrants that:

(i) Customer will obtain all rights and provide any disclosures to or obtain any consents, approvals, authorizations and/or agreements from any employee or third party that are necessary for Datoms to collect, use, and share Customer Data in accordance with these Terms;

(ii) no Customer Data infringes upon or violates any individual or entity’s intellectual property rights, privacy, publicity or other proprietary rights; and

(iii) Customer will adhere to all applicable state, federal and local laws and regulations in the conduct of its business in relation to Datoms and its receipt and use of the Products.

YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS DATOMS AND, IF RELEVANT, ITS SUBPROCESSORS AGAINST ANY LIABILITIES, DAMAGES, DEMANDS, LOSSES, CLAIMS, COSTS, FEES (INCLUDING LEGAL FEES), AND EXPENSES IN CONNECTION WITH ANY THIRD-PARTY LEGAL OR REGULATORY PROCEEDING ARISING FROM ANY ACT OR OMISSION OF THE CUSTOMER IN RELATION TO CUSTOMER INSTRUCTIONS OR FROM THE CUSTOMERʼS BREACH OF THIS SECTION.

Datoms may collect & use personal data about you when you use our Products & Services. Please check our Privacy Policy to know more about our privacy practices.

15. Privacy Policy

Datoms may collect & use personal data about you when you use our Products & Services. Please check our Privacy Policy to know more about our privacy practices.

16. Confidentiality

16.1 Confidential Information

“Confidential Information” means any technical, financial, or business information disclosed by one Party to the other Party that: (i) is marked or identified as “confidential” or “proprietary” at the time of such disclosure; or (ii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary.
Datoms Confidential Information includes, without limitation, any information related to the Products, including the pricing thereof, Beta Previews, Datoms Software Systems, or Datoms Customers, Partners, Resellers or Service Providers, and any data or information that Datoms provides to Customer in the course of providing the Products & Services to Customer.
Customer Confidential Information includes Customer Data and any data or information that Customer provides to Datoms for the purpose of evaluating, procuring, or configuring the Services (for example, makes and models of Machines or equipment, vehicle routes, or similar information).
Confidential Information excludes information that: (i) is now or hereafter becomes generally known or available to the public, through no breach of the receiving Partyʼs confidentiality obligations; (ii) was known, without restriction as to use or disclosure, by the receiving Party prior to receiving such information from the disclosing Party; (iii) is acquired by the receiving Party from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed by the receiving Party without use or knowledge of or reference to any Confidential Information of the disclosing Party.
Customer acknowledges that Datoms does not wish to receive any Confidential Information from Customer that is not necessary for Datoms to perform its obligations under this Agreement (including, without limitation, any information protected under applicable privacy laws and
regulations), and, unless the parties specifically agree otherwise, Datoms may reasonably presume that any unrelated information received from Customer is not confidential or Confidential Information.

16.2 Confidentiality Obligations

The receiving Party agrees:

(i) to maintain the disclosing Partyʼs Confidential Information in strict confidence;
(ii) to give access to such Confidential Information solely to those employees and Agents with a need to have access thereto for purposes of this Agreement;
(iii) to take reasonable security precautions to protect against disclosure or unauthorized use of such Confidential Information;
(iv) not to disclose such Confidential Information to any third parties (except for any Affiliates, employees, agents or third party service providers of receiving Party in performing under these Terms under reasonable confidentiality obligations, or except as authorized by disclosing Party); and

(v) not to use any such Confidential Information for any purpose except to perform under these Terms or as authorized by the disclosing Party.

Notwithstanding anything to the contrary in these Terms, the receiving Party may disclose the disclosing Partyʼs Confidential Information to the extent required by law or regulation, provided that, unless prohibited by applicable law or regulation, the receiving Party uses reasonable efforts to give the disclosing Party advance notice of such requirement and reasonably cooperates with the disclosing Party in preventing, limiting, or protecting such disclosure.

17. Proprietary Rights

17.1 Datoms Software

Datoms and its licensors exclusively own all rights, title and interest in and to the Datoms Software that Customer accesses or licenses, including all associated intellectual property rights. Customer acknowledges that the Datoms Software may be protected by patent, copyright, trademark, and other laws of India. Customer agrees not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services. Customer shall and hereby does irrevocably transfer and assign to Datoms all rights, title, and interest it may have in the Datoms Software to Datoms and Datoms hereby accepts such transfer. No ownership rights are being conveyed to Customer under these Terms. Except for the express rights granted herein, Datoms does not grant any other licenses or access rights, whether express or implied, to any other Datoms Software, Services, technology or intellectual property rights.

17.2 Firmware

The Firmware is licensed, not sold. Except in the case of a free trial, Customer owns the Hardware on which the Firmware is recorded. Datoms retains ownership of the copy of the Firmware itself, including all intellectual property rights therein. Customer acknowledges that the Firmware may be protected by patent, copyright, trademark, and other laws of India. Datoms reserves all rights in the Firmware not expressly granted to Customer in these Terms. Customer acknowledges and agrees that portions of the Firmware, including but not limited to the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of Datoms and its licensors.

18. Connectivity Data Usage

A Datoms Subscription only includes connectivity data to the extent such SKU is identified as including connectivity data and sets forth the amount of connectivity data included in the Order Form or the Subscription Plan. To the extent connectivity data is included in a Datoms Subscription, any data consumed by the Device (including without limit, connectivity between the applicable Hardware and the Datoms Software, Machine telemetry, Data upload to any 3rd party servers as per configuration, Diagnostics Reporting, Firmware Update etc.) count towards the included connectivity data cap.
Datoms reserves the right to restrict the usage of the connectivity data for any purposes other than necessary for providing the Subscribed Service(s). Customer acknowledges that the included connectivity data is not meant for any other use than its intended purpose of being used with the provided Hardware & for the purpose & functionalities of the Subscribed Service(s). Customer will not: (i) remove the SIM Card from the Device (if provided by Datoms) either temporarily or permanently at any point of time unless asked to do so by Datoms; (ii) use the SIM Card (if provided with the Device by Datoms) in any other Device (including without limit, personal devices like mobile phone, internet dongle etc.); or (iii) use the included data for any purpose other than the Subscribed Service(s), including without limit, making any phone calls, browsing the internet or any kind of entertainment streaming services etc.; or (iv) use the SIM Card (if provided with the Device by Datoms) or the included data for any unlawful activities as per the Indian laws. Datoms shall not be held liable for any consequences that may arise from the Customer’s violation of any of these Terms.
Connectivity data usage above any included connectivity data cap may lead to potential consequences, including without limit, the reduction of connection speeds, the restriction of connectivity, the interruption of connectivity, or some combination thereof and may result in
Customer Service interruption. Datoms shall not be held liable for any such service interruptions caused due to the surpassing of the included connectivity data cap.

19. Non-Datoms Products

The Products may contain links to or have the ability to integrate or interoperate with, import or export data to or from, provide access to, or be accessed by Non-Datoms Products (collectively, “Non-Datoms Product Integrations”). There may be other Products built/provided by Customer or any other 3rd parties that may not be recommended or promoted in any way by Datoms, but Customer may discover the compatibility or
build the integration to use them in combination with Datoms Products & Services, in which case those also fall under the “Non-Datoms Products” category & the terms under this Section apply to them.

If Customer opts to use any Non-Datoms Product Integrations, including but not limited to, with respect to the exchange of data between Products and Non-Datoms Products, Customer agrees to: (i) assume sole responsibility for and all risk arising from Customerʼs use of Non-Datoms Product Integrations and the content, functionality, or availability of any Non-Datoms Products, including waiving and releasing Datoms from any claims directly or indirectly related thereto; and (ii) without limitation, defend, indemnify, and hold harmless Datoms from any third party claims directly or indirectly arising from or related to Customerʼs use of any Non-Datoms Product Integrations.

DATOMS PROVIDES NON-DATOMS PRODUCT INTEGRATIONS “AS IS” WITHOUT WARRANTY OF ANY KIND AND ONLY AS A CONVENIENCE.

20. Publicity

Customer hereby grants Datoms permission to use the Customer name and logo on Datomsʼ website, success stories, Product use cases, press releases, customer lists, SEC filings, earnings calls, investor and marketing materials, white papers and any similar publications to be made available publicly, to list Customer as a customer. However, Datoms will not use Customerʼs name, trademarks, or logos in any other way without Customerʼs prior consent.

21. Term

This Agreement is valid for the time period as mentioned in section 2 (Acceptance of the Terms of Service) of the Agreement

21.1 Renewal

Unless (i) you notify Datoms in writing of your intent to cancel the applicable Order Form or other contract you entered into for the purchase of Products or under which Products are made available to you at least thirty (30) days prior to the Subscription End Date, at any time up to ninety (90) days after the Subscription End Date, or (ii) the original Order was placed for a fixed time period without Auto-Renewal enabled, Datoms may in its discretion renew your Subscription Term for the applicable or substantially equivalent Products, effective on the Subscription End Date, for a period of up to the greatest of the following: (i) one month, (ii) the same period as the immediately preceding Subscription Term, or (iii) a period to align Subscription End Dates with another of your active orders (each such period, or any renewal Subscription Term of the applicable Products after the Initial Term, a “Renewal Term”). Subject to Datomsʼ renewal rights set forth in the foregoing sentence, you and Datoms may mutually agree to enter into a new Order Form to renew your Subscription Term upon the Subscription End Date, which new Order Form may include additional or different Products or Subscription Terms to the extent mutually agreed. If Datoms auto-renews your Subscription Term without Customerʼs execution of a new Order Form as described in the first sentence of this paragraph, your payment term will remain the same as indicated on the applicable original Order Form (e.g., monthly if you were allowed monthly payments, or yearly if you were allowed annual payments or upfront payment).

If your Subscription Term is renewed after termination of the immediately preceding Subscription Term and Datoms in its sole discretion allows you to continue using the applicable Products during such interim period, this Agreement shall apply to such use.

If your Subscription is expired without Renewal, then Datoms may at its sole discretion delete the Customer Data from its Software Systems after the Subscription End Date without any notice. The Customer may not get their old Customer Data back on Datoms even if they Subscribe again to the same Service anytime afterward.

21.2 Termination

Datoms may terminate this Agreement, any Order Form, and your access to and use of the Datoms Products & Software at its sole discretion, for any violation of this Agreement or any other reasons, at any time upon notice to you. However, if Datoms so terminates for its convenience and not as otherwise set forth in this Agreement or the applicable Order Form or due to your breach thereof, then Datoms may provide you with a pro-rata Refund of any unearned Fees actually paid by you applicable to the period following termination.
Customer may cancel their subscription to any Service anytime. After cancellation, the subscription for the relevant Service will end at the end of the then-active subscription period.
Customerʼs access to the Services, and any licenses granted hereunder, shall terminate upon any termination of this Agreement.
Customer agrees that upon any termination or cancellation of this Agreement Customer will not be entitled to a refund of fees for any additional work previously performed by Datoms at Customerʼs request or any pre-paid Fees for Subscriptions still in effect at the time of termination or cancellation, and Customerʼs obligation to pay any balance due shall survive any such termination or cancellation.
At the Customerʼs request, and subject to Datomsʼ data retention and backup policies, Datoms shall delete and remove any Customer Data on the Hosted Software after any termination or expiration of this Agreement.
Unless otherwise set forth herein or in the applicable Order Form, an Order Form cannot be terminated prior to the Subscription End Date.
Upon any termination or expiration of this Agreement, all sections which by their nature should survive termination, will survive termination, including, without limitation, 6 (License Restrictions), 9.3 (Beta Previews), 9.4 (Feedback), 10 (Payment, Shipping, and Delivery), 14 (Customer Data), 16 (Confidentiality), 17 (Proprietary Rights), 21 (Term), 22.2 (Warranty Disclaimers), 23 (Limitation of Liability), 24 (Indemnification), 25 (Governing law and Jurisdiction), and 26 (General Terms).

22. Warranty and Warranty Disclaimers

22.1 Hardware Warranty

Datoms may provide a Hardware Warranty if mentioned in the Order Form. However, Datoms reserves all rights to deny any such Hardware Warranty claims if any of the required criteria for the Warranty as set forth in the Order Form is not met.

22.2 Warranty Disclaimers

EXCEPT AS EXPRESSLY PROVIDED UNDER THE LIMITED HARDWARE WARRANTY PROVIDED UNDER SECTION 22.1 (HARDWARE WARRANTY) OF THE AGREEMENT, THE PRODUCTS ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, DATOMS EXPLICITLY DISCLAIMS ANY WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. ACTIVE DRIVER AND PERSONNEL SUPERVISION IS REQUIRED EVEN WHEN THE PRODUCTS ARE IN USE, AND THE PRODUCTS ARE NOT A CRASH OR ACCIDENT AVOIDANCE OR PREVENTION SYSTEM. CUSTOMER IS SOLELY RESPONSIBLE FOR ANY AND ALL SPEEDING, TOLLS, AND OTHER TRAFFIC OR LEGAL & COMPLIANCE VIOLATIONS FOR ITS MACHINES AND EQUIPMENT EVEN WHEN THE PRODUCTS ARE IN USE. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT THE PRODUCTS ARE NOT A SUBSTITUTE FOR SAFE AND LAWFUL DRIVING OR MACHINE OPERATION AND
EQUIPMENT USE OR OTHER APPROPRIATE PERSONNEL OR WORKPLACE CONDUCT AS APPLICABLE AND THAT CUSTOMER SHALL NOT USE THE PRODUCTS AS A CRASH OR ACCIDENT AVOIDANCE OR PREVENTION SYSTEM.

OUR PRODUCTS & SERVICES ARE NOT DESIGNED, MANUFACTURED, TESTED OR INTENDED FOR USE WITH DATA, CONTENT OR INFORMATION USED FOR OR REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPON SYSTEMS, IN WHICH THE FAILURE OF THE SERVICES, INTERNET OR THIRD PARTY CLOUD SERVICE PROVIDER INFRASTRUCTURE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK APPLICATIONS”). DATOMS AND ITS THIRD PARTY LICENSORS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS OF OUR PRODUCTS FOR HIGH RISK APPLICATIONS.

Datoms makes no warranty that the Products & Services will meet Customerʼs requirements or be available on an uninterrupted, timely, secure, or error-free basis at any location. Datoms makes no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any analytics or Customer Data. The Products & Services may not be free of viruses or other harmful components. You assume full responsibility and risk of any loss or damage resulting from or arising out of (i) your use of the Products & Services; or (ii) your downloading and/or use of files, information, content or other material obtained from the Products & Services;

23. Limitation of Liability

23.1 No Indirect or Consequential Damages

Datoms will not be liable for any loss resulting from a cause over which it does not have direct control. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL DATOMS OR ITS THIRD PARTY LICENSORS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCTS OR SERVICES, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR: LOSS OF PROFITS OR REVENUES, BUSINESS INTERRUPTION, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY, LOSS OF PRIVACY, CORRUPTION OR LOSS OF DATA OR ITS INTEGRITY, LOSS OF GOODWILL, FAILURES TO TRANSMIT OR RECEIVE DATA, SYSTEM FAILURE OR ANY OTHER PECUNIARY LOSS WHATSOEVER, EVEN IF DATOMS OR ITS THIRD PARTY LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.

23.2 Limitation of Total Liability
THE TOTAL AGGREGATE LIABILITY OF DATOMS AND ITS LICENSORS, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL BE LIMITED ONLY TO DIRECT DAMAGES DEMONSTRATED BY SUFFICIENT EVIDENCE AND WILL NOT EXCEED, IN THE AGGREGATE OF THE FEES ACTUALLY PAID BY CUSTOMER TO DATOMS HEREUNDER IN THE THREE (3) MONTHS PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. FOR PRODUCTS AND SERVICES (INCLUDING USE OF THE PRODUCTS) THAT ARE PROVIDED AS A FREE TRIAL, DATOMS’ AGGREGATE LIABILITY IS LIMITED TO DIRECT DAMAGES UP TO ONE HUNDRED UNITED STATES DOLLARS ($100). THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

23.3 Exclusions

Nothing in the Agreement excludes or limits either party’s Liability for:
(i) its obligations under Section 24 (Indemnification) of this Agreement;
(ii) its infringement of the other party’s Intellectual Property Rights;
(iii) its payment obligations under the Agreement; or
(iv) matters for which liability cannot be excluded or limited under applicable law.

24. Indemnification

CUSTOMER AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS DATOMS, ITS AFFILIATES, SUBSIDIARIES, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, CONTRACTORS, SUPPLIERS, SUCCESSORS, AND ASSIGNS FROM AND AGAINST ANY AND ALL JUDGEMENTS, CLAIMS, ACTIONS, LOSSES, DAMAGES, LIABILITIES, COSTS, OR EXPENSES
(INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS’ FEES AND LEGAL EXPENSES) OF ANY KIND ARISING FROM CUSTOMERʼS AND/OR ITS AGENTS’ USE OF THE SERVICES AND PRODUCTS, OR FROM OR ATTRIBUTABLE TO ANY BREACH BY CUSTOMER AND/OR ITS AGENTS OF CUSTOMERʼS OBLIGATIONS ESTABLISHED IN THIS AGREEMENT OR ANY PRIVACY, EMPLOYEE, OR CONSUMER PROTECTION RIGHT THAT IS IMPLICATED HEREIN AND BY THE SERVICE, OR CUSTOMERʼS AND/OR ITS AGENTS INFRINGEMENT, OR THE INFRINGEMENT OR USE BY ANY OTHER USER OF CUSTOMERʼS ACCOUNT, OF ANY INTELLECTUAL PROPERTY OR OTHER RIGHT OF ANY PERSON OR ENTITY, OR IN VIOLATION OF ANY LAW. ALL INDEMNIFICATION DUTIES SHALL CONTINUE IN EFFECT EVEN AFTER, AND NOTWITHSTANDING, ANY SUBSEQUENT REVOCATION OF CONSENT OR THE EXPIRATION OR TERMINATION OF THE AGREEMENT OR CUSTOMERʼS AND/OR ITS AGENTS’ USE OF THE PRODUCTS & SERVICES.

25. Governing law and Jurisdiction

Any controversy or claim arising out of or relating to this Agreement shall be settled and adjudicated exclusively by the courts of Bhubaneswar in accordance with the laws of India without regard to conflict of law principles. Both the Parties consent to the jurisdiction of such courts with respect to any such actions.

26. General Terms

26.1 Entire Agreement

These Terms together with any applicable Order Form constitute the entire and exclusive understanding and agreement between Datoms and you regarding the Products and the subject matter hereof, and these Terms supersede and replace any and all prior and contemporaneous understandings, agreements, proposals, or representations, either written or oral, between Datoms and you regarding the Products and the subject matter hereof. If there is a conflict between this Agreement & the Order Form, it can be resolved by using the method described under section 2 (Acceptance of the Terms of Service) of this Agreement.

26.2 Severability

If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

26.3 Non-Assignment

You may not assign or transfer these Terms, by operation of law or otherwise, without Datoms’ prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Datoms may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure solely to the benefit of the Parties, their successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity or Party Affiliate, any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

26.4 Change of Control

If a party experiences a change of Control other than as part of an internal restructuring or reorganization (for example, through a stock purchase or sale, merger, or other form of corporate transaction), that party will give written notice to the other party within 30 days after the change of Control

26.5 Subcontracting

Datoms may subcontract obligations under the Agreement but will remain liable to Customer for any subcontracted obligations.

26.6 No Third-Party Beneficiaries

This Agreement does not confer any benefits on any third party unless it expressly states that it does

26.7 Equitable Relief

Nothing in this Agreement will limit either party’s ability to seek equitable relief.

26.8 Limitation of Claims

Customer shall have no right to bring any claims under these Terms against any Datoms Affiliate, employee, director, officer, or shareholder

26.9 Notices

Under the Agreement, notices to Customer must be sent to the registered Email Address of the Customer and notices to Datoms must be sent to legal@datoms.io. Communications made to Datoms through any other channel, written or verbal, will not constitute legal notice to Datoms in any situation where notice to Datoms is required by contract or any law or regulation. Notice will be treated as received when the email is sent & the date of receipt will be deemed the date on which such notice is transmitted. Customer is responsible for keeping its Email Address active throughout the Term.

26.10 Emails

The parties may use emails to satisfy written approval and consent requirements under the Agreement

26.11 No Waiver

Either Partyʼs failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of both Parties.

26.12 Non-Prejudice to Remedies

Except as expressly set forth in these Terms, the exercise by either Party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

26.13 Acceptable Use

Customer may not, and may not authorize, permit, encourage, enable, or promote any third-party, including its Authorized Users, to:
a. use the Products: (i) for any inappropriate, improper, discriminatory, illegal, or otherwise harmful purpose or (ii) to violate, or encourage the violation of, the rights of others which includes, without limitation, legal rights (e.g., intellectual property or proprietary rights) or human rights (i.e., the rights inherent to all human beings regardless of race, sex, nationality, ethnicity, language, religion, or any other status, including without limitation the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more), each as reasonably determined by Datoms; or
b. engage in abusive, harassing, threatening, offensive, or otherwise improper conduct towards Datoms or its employees, agents, service providers, partners, or other customers. To report any potential misuse or violation, please send an email to legal@datoms.io.

26.14 Export Restrictions

Customer shall not use the Products in violation of any applicable export and re-export control laws and regulations of India. Customer shall not export, re-export, or transfer the Products if for use directly or indirectly in any prohibited activity as per Indian laws.

26.15 Force Majeure

Datoms is not liable or responsible, nor shall be deemed to have defaulted under or breached these Terms, for any failure to perform or delay in performing its obligations under these Terms due to an event of force majeure. An event of force majeure is any event or circumstance beyond Datomsʼ reasonable control, such as war, hostilities, act of God, earthquake, flood, fire, or other natural disaster, strike or labor conditions,
riot, material shortage, epidemic, disease, government action, or failure of utilities, transportation facilities, or communication or electronic systems.

26.16 Customer’s Cooperation

Customer will cooperate with Datoms in connection with the performance of this Agreement by making available any and all personnel and information as may be reasonably required, and taking other actions as Datoms may reasonably request.

26.17 No Agency

This Agreement does not create any agency, partnership, joint venture, franchise, sales representative, or employment relationship between the parties. Users are in no way authorized to make any license, contract, agreement, warranty, or representation on behalf of Datoms, nor to create any obligations, expressed or implied, on behalf of Datoms except to the extent and for the purposes expressly provided for and set forth herein.

26.18 Conflicting Languages

If this Agreement is translated into any language other than English, and there is a discrepancy between the English text and the translated text, the English text will govern.

26.19 Headers

Headings and captions used in the Agreement are for reference purposes only and will not have any effect on the interpretation of the Agreement.

27. Contact Information

If you have any questions regarding these Terms of Service, please email us at legal@datoms.io.
Our Terms of Service were last updated on 31st July 2023.