Standard Terms and Conditions for Enterprise Customers
These Standard Terms and Conditions form a part of any order form (an “Order Form” and, together, this “Agreement”) entered into by BigSpring Services Private Limited, a company incorporated under the Companies Act, 2013, with offices at GA, Sherbanoo CHS LTD, Pil Court, 111 Maharshi Karve Road, Churchgate, Mumbai 400020 (“BigSpring”), and the customer specified in the Order Form (“Customer”), and are binding as of the effective date of the applicable Order Form (the “Effective Date”). Each of BigSpring and Customer are referred to herein as a “Party”, and collectively, as the “Parties”.

WHEREAS
BigSpring has developed and provides its proprietary learning, coaching and productivity platform on a software-as-a-service basis made available through BigSpring’s websites and software applications (the “Service”).  

WHEREAS
BigSpring wishes to provide to Customer, and Customer wishes to obtain, the opportunity to offer access to the Service to its employees, all as described below.

NOW, THEREFORE
the Parties hereto agree as follows:

1.Service
.  

(a)Access and Use.  Subject to the terms and conditions of this Agreement, BigSpring will make the Service available to Customer’s employees and individuals contracted to provide duties similar to those of Customer’s employees (“Users”) during the term of the applicable Order Form through BigSpring’s websites and mobile applications associated with the Service, all in accordance with the terms of this Agreement, solely for their personal, non-commercial use and not for any other purpose.  Customer will use best efforts to market and promote the availability of the Service to Users during the Term (defined below).

(b)Terms of Use. Customer understands and agrees that BigSpring may require each User to agree to BigSpring’s Terms of Service, available at http://bigspring.io/termsofservice, and Privacy Policy, available at http://bigspring,io/privacypolicy (together, the “Terms of Use”), in order to use the Service. BigSpring shall have no obligation to permit any User to access or use the Service if such User does not agree to the Terms of Use.

(c)Service Guidelines.  Customer shall not, and shall not permit any User or other third party to (i) interfere with the performance of the Service or the data contained therein; (ii) attempt to gain unauthorized access to the Service or the networks or systems related to the Service; (iii) interfere with another’s use of the Service; (iv) use the Service for the benefit of, or provide the Service to, third parties; (v) modify, copy, or make derivative works based on the Service; (vi) disassemble, reverse engineer, or decompile the technology powering the Service or any software applications associated with the Service; (vii) access the Service to build a competitive service or to reproduce features of the Service; or (viii) disclose any User IDs, passwords, tokens, keys or other similar access credentials to the Service except where required by law, provided that the Customer shall make reasonable efforts to provide BigSpring with prior written notice of such compelled disclosure and shall only disclose to the extent required by law.

(d)Service Fees.  Customer shall pay BigSpring the fees for the Services specified in the Order Form (“Service Fees”). Additional fees may apply to certain additional Service features and add-ons, as may be specified in the Order Form or a mutually agreed addendum thereto. BigSpring reserves the right to update the Service Fees for any renewal of any Order Form, provided that BigSpring gives Customer at least sixty days’ notice of such Service Fee adjustments.

2.Additional Services
.

(a)Additional Services
. Any customization, implementation, training, or other professional services not provided for this Agreement or the Order Form (“Additional Services”), are subject to a separate, mutually agreed master services agreement and statement of work (“SOW”).  

(b)Licenses
. If the Additional Services include the provision of a customized interface or other Customer-branded experiences on the Service for Customer’s Users, then Customer hereby grants to BigSpring the non-exclusive right to use Customer’s name, logos, and other trademarks in connection with such purposes. If the Additional Services include the provision of a communications plan and/or templated multimedia assets and information related to the Service, then BigSpring hereby grants to Customer a limited, non-exclusive right to reproduce such materials and distribute them to its Users in connection with its employee communications.

3.Customer Support
.  During the term of this Agreement, BigSpring will provide to Customer level two email support services.

4.Payment
. Customer shall pay all Service Fees within thirty days after the date of BigSpring’s invoice. All Fees exclude goods and services tax (GST), use, and other taxes, all of which are Customer’s responsibility, except for BigSpring’s income taxes. Late payments hereunder will accrue interest at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower.

5.Confidentiality
.
(a)Confidential Information.  “Information” means all information of a Party (“Discloser”) disclosed to the other Party (“Recipient”) where such information should be reasonably understood, based on the nature of the information or the circumstances of its disclosure, to be proprietary or confidential.  Notwithstanding the foregoing, Information does not include any information that: (i) is or becomes generally known to the public without the Recipient’s breach of any obligation owed to the Discloser; (ii) was independently developed by the Recipient without the Recipient’s breach of any obligation owed to the Discloser; or (iii) is received from a third party who obtained such Information without breaching any obligation owed to the Discloser.

(b)Non-Use; Non-Disclosure.  The Recipient shall not (i) use any of the Discloser’s Information for any purpose other than to perform its obligations under this Agreement, or (ii) disclose Discloser’s Information to anyone other than its personnel (including employees, contractors, and consultants) who have a need to know the Information for the purposes set forth in this Agreement and who are bound by written agreement that prohibits unauthorized disclosure or use of Information that is at least as protective of the Information as the Recipient’s  obligations hereunder.  In no event shall either Party exercise less than reasonable care in protecting such Information.  However, the Recipient may disclose Information of the Discloser to the extent required by law, provided that the Recipient shall make reasonable efforts to provide the Discloser with prior written notice of such compelled disclosure and reasonable assistance (at Discloser’s expense) if the Discloser wishes to obtain protective treatment of the Information.

6.User Content
.
(a)Generally. The Service may permit Customer and its Users to make available content on the Service, including messages, photos, videos, text, and other works (collectively, “User Content”), and to publish such User Content on the Service. Customer/User retains any copyrights and other proprietary rights that Customer/User, may hold in the User Content that is uploaded to the Service.  User Content that is provided directly by Customer (as opposed to a User) is “Customer Content.”

(b)License to BigSpring. By making User Content available on the Service (other than Messages, which are defined and subject to the license below), Customer/User hereby grants to BigSpring, during the Term, a worldwide, non-exclusive, royalty-free right and license (with the right to sublicense) to display, perform, reproduce, modify, and distribute such User Content/ Customer Content, in whole or in part, in any media formats, in order to perform, provide and enhance the Service for Customer and its Users.  

(c)Messages. The Service allows Customer and its Users to send messages (“Messages”) to other users of the Service.  Customer/User hereby grants to BigSpring an assignable, sublicensable, irrevocable license during the Term to reproduce and transmit Customer/User’s Messages in connection with facilitating transfer to the intended recipient through the Service and for such other purposes as BigSpring may deem appropriate in connection with performing, providing, or enhancing the Service.

(d)License to Others. By posting and sharing User Content/ Customer Content with Users of the Service, Customer/User grants those Users a non-exclusive license to access and use that User Content / Customer Content as permitted by this Agreement and the functionality of the Service.  
(e)Disclaimer. BigSpring is under no obligation to edit or control User Content / Customer Content that Customer or its Users upload or publish, and BigSpring will not be in any way responsible or liable for User Content or Customer Content. BigSpring reserves the right, however, to screen, remove, edit, or block, at any time and without prior notice, any User Content/ Customer Content that in BigSpring’s sole judgment violates this Agreement or is otherwise objectionable, at BigSpring’s sole discretion and for any or no reason, including if such User Content/ Customer Content: (i) infringes the intellectual property rights of third parties; (ii) is of an adult nature and is submitted or shared without any warning to other users; (iii) is excessive in length; or (iv) is of a seditious tendency. Customer understands that when using the Service, its Users may be exposed to User Content from a variety of sources and acknowledges that User Content may be inaccurate, offensive, indecent, or objectionable. Customer agrees to waive, and does waive, any legal or equitable right or remedy Customer has or may have against BigSpring with respect to User Content.

(f)Individual Accounts. Notwithstanding anything to the contrary in this Agreement, BigSpring may contact a User in order to enable that User to create an individual account on BigSpring’s public facing service, subject to the Terms of Use. Users will be able to migrate their User Content (defined below) and any learning data associated with that account; however, BigSpring will not migrate any Customer Content (or any User Content that responds directly to Customer Content) into the User’s BigSpringSkills.com account without Customer’s prior, written consent.  

7.Reservation of Rights
. As between BigSpring and Customer, BigSpring retains all rights, title, and interest, including all intellectual property rights in and to, the Service and any materials or deliverables provided in connection with the Additional Services, and all enhancements, modifications, and improvements to the foregoing. All rights not expressly granted hereunder are reserved to BigSpring. BigSpring reserves and shall have the right to generate statistical information relating to or derived from Customer’s and its Users’ use of the Service (“Usage Data”), and BigSpring may use such Usage Data for any purpose without restriction. Customer may, but is not obligated to, provide BigSpring with information, suggestions, or other feedback with respect to the Service or Additional Services (“Feedback”). Customer hereby grants to BigSpring a worldwide, nonexclusive, perpetual, irrevocable, transferable, royalty-free, fully paid-up, sublicensable license to use and exploit such Feedback for any purpose without restriction.

8.Representations and Warranties
.  

(a)BigSpring.  BigSpring represents and warrants that it will provide the Service and Additional Services, if any, in a professional manner, consistent with applicable law and industry standards.

(b)Customer.  Customer represents and warrants that (i) Customer has the necessary rights and permissions or approvals to use and to permit the use of any User Content provided by Customer or its Users to BigSpring hereunder; (ii) Customer will not provide to BigSpring any personal data or personally identifiable information in violation of any legal, contractual or other obligations, including Customer’s privacy policies and applicable laws (including the Information Technology Act, 2000 and rules framed thereunder); and (iii) use of the Services, Customer’s User Content, and the use of such User Content as contemplated by this Agreement, does not and will not: (A) infringe, violate, or misappropriate any rights, including any intellectual property right, privacy right, or right of publicity; (B) slander, defame, or libel any person; or (C) violate any law or regulation or cause BigSpring or its users to violate any law or regulation.  

(c)Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS SECTION 8, THE SERVICE AND THE ADDITIONAL SERVICES ARE PROVIDED “AS IS”, AND WITHOUT WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BIGSPRING HEREBY DISCLAIMS ALL OTHER WARRANTIES UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICE, AND THE ADDITIONAL SERVICES, AND ALL CONTENT, INFORMATION, AND MATERIALS PROVIDED THEREWITH, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

9.Indemnification.

(a)By BigSpring. BigSpring shall defend or, at its option, settle any third party claim, suit or proceeding (“Claim”) brought against Customer alleging that the use of the Service by Customer or its Users in accordance with this Agreement infringes or misappropriates any third party patent or copyright. BigSpring shall have sole control of the defense or settlement negotiations, and BigSpring agrees to pay, subject to the limitations set forth below, any final judgment entered against Customer or agreed to in settlement by BigSpring as a result of such infringement in any such Claim defended by BigSpring; provided that Customer provides BigSpring with (i) prompt written notice of such Claim; and (ii) all reasonably requested information and assistance, at BigSpring’s expense, to settle and/or defend any such Claim.  

(b)Additional Rights. In the event that any Claim is brought or, in BigSpring’s opinion, likely to be brought, BigSpring may, at its sole option and expense: (i) procure for Customer the right to continue to use the Service; (ii) modify or amend the Service, or replace the Service with non-infringing services that do not materially impair the functionality of the Service; or (iii) if either of the foregoing is not feasible on commercially reasonable terms, terminate this Agreement and refund on a pro-rata basis any fees prepaid by Customer to BigSpring.  

(c)Limitations. BigSpring shall have no obligation to Customer under Section 9(a) to the extent a Claim arises from (i) Customer’s breach of this Agreement; (ii) User Content; or (iii) use or resale of the Services in combination with any products, services, data, software, hardware or business process not contemplated by this Agreement, if the alleged infringement would not have occurred absent such combination.

(d)Sole Remedy. THIS SECTION 9 STATES THE ENTIRE LIABILITY OF BIGSPRING, AND THE SOLE REMEDY OF CUSTOMER, WITH RESPECT TO ANY CLAIM OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

(e)By Customer.  Customer shall defend or, at its option, settle any Claims brought against BigSpring to the extent they allege breach of any of Customer’s warranties set forth in Section 8.  Customer agrees to pay any final judgment entered against BigSpring as a result of such breach. BigSpring agrees to provide Customer with (a) prompt written notice of such Claim; and (b) available information and assistance, at Customer’s expense, to settle and/or defend any such Claim.    

10.Limitation of Liability.


(a)Damages. EXCEPT FOR A BREACH OF SECTION 5, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE PARTIES’ OBLIGATIONS UNDER SECTION 9, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE ONE YEAR PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE.

(b)Basis of the Bargain. The limitations of liability stated above form an essential basis of the bargain between the parties and will survive and apply even if found to have failed of their essential purpose.

11.Term and Termination
.
(a)Term.  The term of this Agreement begins on the Effective Date and, unless terminated earlier as described below, shall continue for the initial term set forth in the Order Form or, if no initial term is specified therein, for a period of two years (the “Initial Term”). Thereafter, unless otherwise specified in the Order Form, the Agreement will automatically renew for additional periods of one year (each a “Renewal Term”, and together with the Initial Term, the “Term”), unless either party gives the other party at least thirty days’ notice of non-renewal.

(b)Termination. Either Party may terminate this Agreement or any Order Form for convenience with thirty days’ prior written notice, provided that if Customer terminates for convenience, Customer shall not be entitled to a refund of any prepaid fees. Either Party may terminate this Agreement if the other Party materially breaches this Agreement and fails to cure such breach within thirty days after receipt of written notice of same.  

(c)Effect of Termination.  Upon the effective date of expiration or termination of this Agreement for any reason: (a) BigSpring may immediately cease to provide the Service to Customer and its Users; and (b) within thirty days after such expiration or termination, each Party shall return or destroy the tangible embodiments of the other Party’s Information in its possession, provided that BigSpring may retain certain Information of Customer solely for purpose of providing future Services to Customer and where required by applicable laws.

(d)Survival.  Sections 4-10, 11(c-d), and 12 will survive any expiration or termination of the Agreement.

12.Miscellaneous
.
(a)Force Majeure.  Except for the obligation to pay money, neither Party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including act of war, acts of God, earthquake, fire, flooding, labor shortages or disputes, governmental acts, or disruption of the Internet or telecommunications.  

(b)Governing Law. This Agreement shall be governed by and construed in accordance with the laws of Singapore, without regard to its conflicts of law principles.

(c)Arbitration. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre ("SIAC Rules") for the time being in force, which rules are deemed to be incorporated by reference in this clause. The arbitration will occur in Singapore. The Tribunal shall consist of one arbitrator. The language of the arbitration shall be English.

(d)Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by written agreement of the Parties so as best to accomplish the original intent of the Parties, and the remaining provisions of this Agreement shall remain in effect.  

(e)Promotion; Co-Branding.  BigSpring may use Customer’s name, logos, and other trademarks (a) to identify Customer as a user of the Service in marketing, promotional and sales materials, provided that such references are accurate and not misleading, and such references shall not indicate or imply any endorsement by, or affiliation with, Customer, without Customer’s prior written consent; and (b) upon Customer’s request, on the Service, solely for display to Users. Customer hereby grants to BigSpring the non-exclusive right to use Customer’s name, logos, and other trademarks and marks as specified in this clause.

(f)Assignment.  Neither Party may assign this Agreement or any of its rights or obligations under this Agreement without the other Party’s prior written consent, except that BigSpring may assign this Agreement without Customer’s consent upon a change of control, merger, or sale or transfer of all or substantially all of its business related to this Agreement.  Any attempted assignment in violation of the foregoing will be void.  This Agreement will bind and inure to the benefit of each Party’s successors and permitted assigns.

(g)Independent Contractors. The Parties are independent contractors.  This Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the Parties.  A non-party to this agreement does not have any rights under or in connection with it by virtue of the Contracts (Right of Third Parties) Act (Cap 53B).

(h)Entire Agreement.  This Agreement is the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior understandings and agreements regarding its subject matter.  No terms or conditions set forth in Customer’s purchase order or any other document shall alter or supplement this Agreement.  This Agreement may only be amended or modified by a writing signed by both Parties.