Terms and Conditions of Ondiggo Ltd. Customer Services Agreement

 

Customer desires to engage Ondiggo Ltd. (“Ondiggo”) to provide certain services, as described in one or more mutually agreed to Customer Service Agreement (as defined herein) entered into between the parties pursuant to this Agreement.  This Agreement sets forth the terms and conditions under which Ondiggo agrees to provide such services to Customer in exchange for the mutual promises and other good and valuable consideration set forth herein.

 1.              Professional Services.

1.1    Provision of Services. Subject to the terms and conditions of this Agreement, Ondiggo will provide to Customer the services (“Services”) described on the Customer Services Agreement.

1.2    Additions.  Any additional services beyond those set forth on the Customer Services Agreement will be subject to mutual agreement and performed at Ondiggo’s then-current hourly rate or fees.

1.3    Manner and Means. The manner and means used by Ondiggo to perform the Services are in the sole discretion and control of Ondiggo. Ondiggo may use third party hosting services in performance of Services.                                                                                                                              

2.              Services Fees and Expenses

2.1    Fees. Service Fees.  In exchange for the Services and Deliverables to be provided by Ondiggo under this Agreement and each Customer Services Agreement, Customer will pay Ondiggo the fees and other charges set forth in each such Customer Services Agreement (“Fees”) when due.

2.2    Expenses. Customer will reimburse Ondiggo for all expenses identified as reimbursable in any Customer Services Agreement (“Expenses”) when due.

2.3    Taxes.  The amounts payable to Ondiggo pursuant to this Agreement are exclusive of any sales or use or other taxes or governmental charges.  Customer will be responsible for payment of all such taxes or charges, except for any taxes based on Ondiggo’s net income.                                                                                                                                 

3.              Intellectual Property Rights

3.1    Customer License Grant.  Customer hereby grants to Ondiggo an unrestricted, perpetual, irrevocable, nonexclusive, royalty-free, fully-transferable, fully-paid, worldwide license under Customer’s Intellectual Property Rights to use, perform, display, reproduce, modify, adapt, distribute, prepare derivative works, make, have made and sell, any Customer Technology or other Customer-proprietary information provided to Ondiggo for incorporation into any services or Deliverable(s) produced under this Agreement.

3.2    Customer Technology. Subject to the grant of license in Section 3.1 Customer will retain exclusive ownership interest in all Customer Technology and any other proprietary materials or content that it supplies to Ondiggo during performance under this Agreement or any Customer Services Agreement.

3.3    Customer-Provided Materials. To the extent Customer-Provided Materials contain third-party data, software, hardware, information or other materials (“Third-Party Materials”), Customer represents and warrants that it will have obtained all necessary permissions, licenses, and consents and will have the authority to provide such Third-Party Materials to Ondiggo.  Customer will indemnify, defend and hold Ondiggo harmless from and against any and all claims, liabilities, losses, damages, costs, fees (including reasonable attorneys’ fees) and expenses arising from a breach of the foregoing warranty.

3.4    Ondiggo-Provided Materials.  As between the parties, Ondiggo owns or has the rights to the materials and all know-how, processes, improvements, discoveries, designs, formulas and techniques, and all patent, copyrights, trademark and trade secret rights contained therein.                                                                                                                  

4.              Limited Warranties and Exceptions

4.1    Ondiggo Limited Warranty.  Ondiggo warrants that the Services provided hereunder will be performed in a professional manner in accordance with the specifications set forth on the Customer Services Agreement.  ONDIGGO MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE FEASIBILITY, COMPLETENESS, ACCURACY OR EFFICACY OF ANY RECOMMENDATIONS, FINDINGS, ADVICE, OR PROPOSAL, SERVICES WHETHER ORAL OR WRITTEN.  CUSTOMER MAY CHOOSE TO ADOPT OR DISREGARD ONDIGGO’S recommendations, findings, advice or proposals AT ITS OWN DISCRETION AND AT CUSTOMER’S OWN RISK.  CUSTOMER IS SOLELY RESPONSIBLE FOR THE RESULTS IT OBTAINS IN OPERATING CUSTOMER’S SYSTEM OR IN ADOPTING ONDIGGO RECOMMENDATIONS AND SERVICES.  Customer’s exclusive remedy for breach of the foregoing warranty will be to notify Ondiggo of any breach within five (5) days after the Services are rendered and Ondiggo will re-perform the Services so that they conform to the Warranty or refund the fee paid by Customer.

4.2     THE WARRANTY ABOVE IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AND INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, WHICH ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE BY LAW.  THERE ARE NO WARRANTIES AGAINST INTERFERENCE WITH CUSTOMER’S ENJOYMENT OF THE SERVICES.  THERE ARE NO WARRANTIES THAT THE SERVICES OR ONDIGGO’S EFFORTS WILL FULFILL ANY OF CUSTOMER’S PARTICULAR PURPOSES OR NEEDS.  THE SERVICES ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, EFFORTS AND RESULTS OBTAINED IS WITH CUSTOMER, EXCEPT AS COVERED UNDER SECTION 4.1.  WITHOUT LIMITING THE FOREGOING, ONDIGGO MAKES NO REPRESENTATION OR WARRANTIES OF ANY KIND WITH RESPECT TO THE CUSTOMER-PROVIDED MATERIALS OR THIRD-PARTY MATERIALS, AND CUSTOMER AGREES THAT CUSTOMER MUST LOOK SOLELY TO ITS THIRD-PARTY LICENSORS OR MANUFACTURERS OF SUCH MATERIALS IN THE EVENT OF ANY DEFECT OR FAILURE TO PERFORM AS WARRANTED BY SUCH PARTY.

4.3    Interruption of Service.  You hereby acknowledge and agree that Ondiggo will not be liable for any temporary delay, outages, or interruptions of the Services. Further, Ondiggo shall not be liable for any delay or failure to perform its obligations under this Agreement where such delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications, or third-party supplier failure).                                                                                                                                      

5.              Limitations on Liability

5.1    IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, AND UNDER ANY THEORY OF LIABILITY INCLUDING BREACH OF WARRANTY OR CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY AND PRODUCT LIABILITY) OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.  THE FOREGOING LIMITATION ON LIABILITY IS INAPPLICABLE TO SECTION 6.

5.2    Each party’s aggregate cumulative liability arising out of or related to this agreement, whether in contract or in tort, will not exceed the total amount of fees actually paid or payable by Customer to Ondiggo under this Agreement.                                                 

6.              Indemnification

Customer hereby agrees to indemnify, defend and hold Ondiggo, its affiliates, and their respective officers, directors, employees, and agents (“Indemnitees”) harmless from and against any and all claims, liabilities, losses, damages, costs, fees (including reasonable attorneys’ fees) and expenses resulting from any suit or action brought against the Indemnitees due to any injuries or death suffered by Ondiggo’s employees during the performance of the Services while on Customer’s premises, except for injuries caused by gross negligence or intentional harm of Ondiggo, its employees or agents.        

7.              Term and Termination

7.1    Duration of Term.  This Agreement commences on the Effective Date and will continue in full force and effect until completion of the services as described in the Customer Services Agreement.

7.2    Termination by Either Party.  Notwithstanding the foregoing, either party may terminate this Agreement upon thirty (30) days prior written notice to the other.  In the event that Customer terminates this Agreement without cause, Customer will be liable for all Fees and Expenses for all Services performed prior to such termination.  Upon full payment of all fees, charges and expenses due, Ondiggo will promptly deliver to Customer all materials and information supplied by Customer in connection with the terminated Customer Services Agreement, together with all work in progress on the date of termination, whether complete or partially complete.

7.3    Survival.  This Agreement and Customer’s obligation to pay fees and expenses incurred during the term herein will survive the expiration or earlier termination of this Agreement.

8.              Restriction and Removal of Content

Ondiggo has the right to restrict or remove from its Services any content that it determines in its sole and absolute discretion violates these Terms and Condition or related policies or guidelines, or is otherwise objectionable or potentially infringing on any third party’s rights or is potentially in violation of any laws. Ondiggo’s right to take such action, however, does not constitute an undertaking by Ondiggo to monitor or exert editorial control over the information made available for distribution via the Services.                                     

9.              General

9.1    Independent Contractors. The parties are independent contractors, and nothing herein is intended or will be construed as creating a partnership, employment, joint venture or agency relationship between the parties.        

9.2    Assignments.  Customer may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement to any third party without Ondiggo’s prior written consent, except pursuant to a transfer of all or substantially all of Customer’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise.  Any attempted assignment or transfer in violation of the foregoing will be void.

9.3    No Third Party Beneficiaries.  Nothing in this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities on any third party (including without limitation any employees or agents of either party) other than the parties or their respective successors and permitted assigns.

9.4    Governing Law and Venue.   This Agreement will be governed by and interpreted in accordance with the laws of the State of Colorado without reference to its choice of law rules.  Any action or proceeding arising from or relating to this Agreement will be brought solely in the state court for the county of Arapahoe, state of Colorado, or US District Court in Colorado and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.

9.5    Remedies.   If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.

9.6    Waivers.  All waivers must be in writing.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

9.7    Severability.  If any provision of this Agreement is adjudicated to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

9.8    Entire Agreement.  This Agreement constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral.  This Agreement may be amended only by a written document signed by both parties.  The terms on any purchase order or similar document submitted by Customer to Ondiggo will have no effect.

9.9    Force Majeure.  If the performance of this Agreement or any obligation hereunder (other than the payment of money) is prevented, restricted or interfered with by any act or condition whatsoever beyond the reasonable control of the affected party, the party so affected will be excused from such performance to the extent of such prevention, restriction or interference.

9.10  Notices.  All notices and requests in connection with this Agreement will be deemed given as of the day they are received either by facsimile, messenger, delivery service, or in the United States of America mails, postage prepaid, certified or registered, return receipt requested.  All notices and requests will be given at the address specified in the Customer Services Agreement, or at such other address as a party will specify in writing.

 

 

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