Green Pen Subscription
IMPORTANT - END USER’S RIGHTS AND OBLIGATIONS AND ALL USEOF SERVICES ACCESSED BY END USER FROM, OR PROVIDED TO END USER BY, GREENPEN, INC. OR ITS SUBSIDIARIES (“GREENPEN”), ON OR AFTER THE DATE SPECIFIED BELOW, ARE SUBJECT TO THESE SOFTWARE-AS-A-SERVICE (“PaaS”) SUBSCRIPTION TERMS (“TERMS”). “SERVICE” INCLUDES ALL RELATED DOCUMENTATION, REVISIONS AND UPDATES THAT REPLACE OR SUPPLEMENTS THE SERVICE. BY CLICKING THE “I ACCEPT” BUTTON, OR, BY DOWNLOADING, INSTALLING, RECEIVING OR USING A SERVICE, YOU AGREE TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK THE “I ACCEPT” BUTTON, DOWNLOAD, INSTALL, RECEIVE OR USE THE SERVICE, AND YOU WILL NOT HAVE A RIGHT TO USE ANY PART OF THE SERVICE. THIS IS A LEGAL AGREEMENT BETWEEN YOU, ON BEHALF OF YOUR ORGANIZATION (“END USER”) AND GREENPEN. YOU AGREE TO DO BUSINESS ELECTRONICALLY, INCLUDING CONTRACT FORMATION, ORDER PLACEMENT AND ACCEPTANCE. AN ORDER YOU PLACE AND GREENPEN ACCEPTS, OR USE OF GREENPEN SERVICE, ON ANY GREENPEN WEBSITE OR PLATFORM CREATES FULLY ENFORCEABLE OBLIGATIONS SUBJECT TO THESE TERMS. YOU REPRESENT THAT YOU ARE AUTHORIZED TO ACCEPT THESE TERMS ON BEHALF OF YOUR ORGANIZATION.
a.Orders.Subscriber may purchase Subscription Service under a quote or online registration form(“Order Form”)provided by Greenpen and agreed by Subscriber. Greenpen will provide an Order Form to Subscriber that specifies Subscription Service by Application, the Measured Use, and Fees to implement Subscription Service. Subscriber will place a binding order, subject to Greenpen’s acceptance, by executing an Order Form, submitting a purchase order to Greenpen, or completing an online registration and Subscription purchase. Greenpen accepts Subscriber’s order by the earlier of signing an Order Form, processing Subscriber’s online Subscription, or providing services. Greenpen may, in its sole discretion, accept Subscriber’s purchase order as an Order Form.
b. End Users.Subscriber may provide access and use of the SubscriptionService it has purchased to Subscriber’s employees and Subscriber’s Business Affiliates and their employees(“EndUser”). Each End User willregister online with Greenpen and is subject to these Terms in using Subscriber’s Subscription Service. Subscriber is solely responsible for administration of its Subscriptions and End Users.
a. Subscription Term.After the initial Subscription Term, the Subscription renews automatically for successive annual Subscription Terms for the current Subscription Service and Users, unless terminated according to Section 7 below.
b. Subscription Service.Greenpen will provide Subscriber access to usethe most current version of Subscription Service during the Subscription Term. Subscription Service may be updated at Greenpen’s discretion, however, Subscription Service does not guarantee additional future functionality or features.
c. Provisioning.Subscription Service may require implementation or configuration services, subject to Greenpen’s then current time and materials charges for professional services. The parties will use reasonable commercial efforts to meet the date to implement SubscriptionService, Users, or changes to Subscription Service. If Greenpen delays a Start Date, Greenpen will notify Subscriber of a revised Start Date. If Subscriber delays a Start Date, Subscriber will reimburse Greenpen for theactual cost Greenpen determines it is unable to mitigate with reasonable commercial effort.
d. Subscription Use.Except as otherwise specified herein,Greenpen grants to Subscriber and each End User as applicable, a nonexclusive, non-transferable right to use Subscription Service for Subscriber’s own internal business purposes, subject to these terms (“Subscription”). Subscriber is responsible for its use of and results from Subscription Service and will use Subscription Service according to Greenpen’s policies,Documentation and these terms.
e. Client Software License.If an Application requires Client Software aspart of Subscription Service, Greenpen grants to Subscriber a License for the Client Software according to Subscriber’s Subscription. Greenpen may terminate a License by written notice immediately if Subscriber infringes Greenpen’s or its licensors’ Intellectual Property or does not comply with the License terms. When a License or Subscription terminates, Subscriber will immediately return or destroy Client Software and provide written certification of destruction upon Greenpen’s request.
f. Data Storage.If applicable for the Subscription Service purchased by Subscriber, Greenpen will provide Subscriber Data storage according to the Order Form and/or Subscription Service description, and Subscriber may purchase additional data storage capacity in designated increments ifapplicable.
g. Location.If Subscription Service is restricted by Subscriber site, only Subscriber’s End Users at a specified site are permitted to access and use the Subscription Service.
h. Additions. The parties may execute additional Order Forms to add Subscriptions, data storage capacity, and Users. The Subscription Term foradditions will be coterminous with the Subscription Term already in effect.
i. Support. Subscription Service includes online and telephone support according to Greenpen’s current support policies and these terms:
(i) Greenpen’s standard support generally includes: (1) commercially reasonable efforts to resolve problems which cause Application functionality not to perform substantially as described in the Documentation; (2) remote assistance and troubleshooting advice for trained Subscriber personnel to determine cause and address technical problems with Subscription Service; (3) access to Greenpen’s problem reporting ticket system; (4) information and status updates for known Application functionality technical issues; and (5) periodic “as available” updates or upgrades to Subscription Service. Subscriber may need to provide User IDs to Greenpen for electronic access to test a problem condition or assist in problem resolution. Support may address but not resolve minor or partial loss of functionality, intermittent problems or minor degradation of operations.
(ii) Greenpen provides telephone support for Subscription Service 10:00 AM to 5:00 PM, Eastern Standard Time, Monday to Friday, except Indian Federal holidays. Greenpen’s online ticket system is available 24 hours/day, 7 day/week. Greenpen will use commercially reasonable effortsto respond to support requests as soon as possible and may not respond in the same day a request is received. Subscription Service and support may be unavailable due to scheduled downtime, maintenance, or circumstances beyond Greenpen’s reasonable control. Greenpen may schedule downtime at any time without notice if Greenpen reasonably determines that not acting immediately could be harmful to Greenpen or Subscriber.
(iii) Greenpen is not responsible or liable for support or Subscription Service interruption or problems due to: (1) Subscriber or End User systems, information, content, software, scripts, data, files, application programming, web servers or service, materials, equipment, acts or omissions of Subscriber or its agents; (2) virus or hacker attacks; (3) circumstances beyond Greenpen’s reasonable control; (4) intentional shutdown for emergency intervention or security incidents; (5) Subscriber configuration changes; (6) Subscriber’s or End User’s failure to comply with Greenpen’s security and upgrade policies; (7) Internet or other connectivity between Subscriber’s or End User’s network and SubscriptionService or Greenpen’s network, or any other network unavailability outside of the Greenpen network; or (8) training questions or Subscriber’s or End User’s use of Subscription Service; (9) abuse, misuse, alteration, neglect, accident, unauthorized use or services; (10) acts or omissions of a party other than Greenpen.
j. Training. Training and on-site support services are available according to Greenpen’s current policies and rates.
a. Subscriber and End User will:
(i) Use the Subscription Service according to the Measured Use which Subscriber has purchased;
(ii) Be responsible for its activity through Subscription Service and ensure End Users comply with these terms
(iii) Use current Subscription Service and install and use Client Software and any updates according to the Documentation and these terms;
(iv) Be responsible for the accuracy, quality, legality, integrity, ownership, protection, adequate storage, security, privacy and acquisition of Subscriber Data;
(v) Prevent unauthorized access to Subscription Service and Client Software, Subscriber User credentials, IDs and passwords;
(vi) Comply with laws and regulations in using Subscription Service and Client Software, including data privacy, transmission of technical or personal data, and spam;
(vii) Notify Greenpen immediately of unauthorized access to, or known or suspected breach of security for, Subscription Service or Client Software, and use reasonable efforts to immediately stop unauthorized access or a known or suspected violation of law or these terms;
(viii) Be responsible for properly configuring, programming and operating Subscriber’s or End User’s hardware, software, web sites, content, telephone and internet connections to allow access to and use of Subscription Service and Client Software; and
(ix) Comply with Greenpen protocols and requirements for using Subscription Service and Client Software and ensure that End Users are adequately trained to use Subscription Service.
b. Subscriber and End User will not:
(i) make Subscription Service, Client Software or Documentation available other than to its End Users, sell, resell, rent, lease or sublicense Subscription Service, Documentation or Client Software, or use Subscription Service to provide time share or other services to third parties;
(ii) Permit a third party to access Subscription Service, Documentation or Client Software;
(iii) Create derivative works based on Subscription Service, Documentation or Client Software, copy, frame or mirror any part of Subscription Service, other than copying or framing Subscriber Data, content or intranets for Subscriber’s internal business operations;
(iv) Reverse engineer Subscription Service or Client Software;
(v) Access Subscription Service to build a competitive product or service or copy features, functions or graphics of Subscription Service;
(vi) Use Subscription Service to store or transmit infringing, libellous, or unlawful or tortious material or transmit material in violation of privacy rights;
(vii) Alter Client Software’s copyright or other proprietary rights notices; or
(viii) Use Subscription Service to store or transmit viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs, interfere with or disrupt the integrity or performance of Subscription Service or attempt to gain unauthorized access to Subscription Service or related systems.
a. License.Subscriber and End User grant Greenpen a non-exclusive, non-transferable license to copy, store, transmit and display Subscriber Data as necessary to provide and maintain Subscription Service, including: (i) improving, modifying, monitoring and upgrading SubscriptionService; and (ii) as required by law. Subscriber and End User grant Greenpen a royalty-free, worldwide, perpetual license to use and incorporate into Subscription Service any suggestion, idea, enhancement, feedback, recommendation or other information Subscriber provides relating to Subscription Service. Subscriber and End User represent and warrant that Subscriber Data provided to Greenpen will not violate third party rights or applicable law.
b. Protection.Greenpen will maintain commercially reasonable administrative, physical, and technical safeguards for protection of Subscription Service which includes Subscriber Data. Greenpen will accessSubscriber Data only to provide Subscription Service and support according to these terms. Subscriber and End User acknowledge that Greenpen stores and makes backup copies of Subscriber Data for its standard Subscription Service and maintains such data for a period of time and in a manner consistent with Greenpen standard business practices. Greenpen is not otherwise responsible for handling Subscriber Data and is not liable for transmission of Subscriber Data or Subscriber’s or End User’s failure to back up or store Subscriber Data, or deletion, correction, destruction, damage to or loss of Subscriber Data, other than to maintain the specified safeguards.
c. Termination.Subject to Clause 13, Greenpen may withhold, remove ordiscard Subscriber Data without notice if Subscriber or End User as applicable breaches these terms, including Subscriber’s failure to make timely payment. No later than 10 days following the date a Subscription ends, Subscriber will provide to Greenpen a written request regarding Subscriber Data return or disposal. Greenpen will provide an Order Form to Subscriber specifying the service available and related Fee to fulfil Subscriber’s request. If Greenpen does not receive the written request within 10 days, or Subscriber does not order the services upon receipt of the Order Form, Greenpen may, in its sole discretion, remove, discard or continue to store Subscriber Data and invoice Subscriber for the
associated Fees at Greenpen’s then current time and materials rates for professional services.
a.Implementation.If Subscriber chooses to use Subscription Service in
a. Subscriber Responsibilities.Subscriber is responsible for all the physical and logical access controls beyond the GovNetwork, including without limitation Subscriber account access, data transmission, encryption, and appropriate processing and storage of data within the GovNetwork. Subscriber is responsible for verifying that all Users accessing Subscriber content in the GovNetwork are eligible to gain access to Subscriber’s content. Subscriber will not use Subscription Service to process or store classified data. If Subscriber introduces classified data into the GovNetwork, Subscriber is responsible for all sanitization costs incurred by the GovNetwork and Greenpen, without limitation.
Fees are: (i) non-refundable; (ii) not decreased during the Subscription Term based on actual End User or data storage usage; and (iii) not cancellable for the Subscription Term. Fees are payable in advance by Subscriber within 30 days from date of invoice, or monthly in arrears if so specified.
a. Subscription Fee.A Subscription Fee is due for a Subscription Term from the Start Date, and is payable in advance either annually, or monthlyon the first day of each calendar month, according to the Order Form.Fees for Subscription Term renewals and Users or Subscriptions added during a Subscription Term will be: (i) at Greenpen’s current standard price, due beginning on the Start Date for the Subscription Term renewal or added Users or Subscription; and (ii) charged for the full calendar month in which Users or Subscriptions are added, and coterminous for theremainder of the Subscription Term.
b. Data Storage Fee.Subscriber will pay Greenpen’s current data storage Fees monthly for datastorage ordered or used by Subscriber or End User that is not included in aSubscription Fee. When a Subscription Term ends, Subscriber will continueto pay, and monthly Subscription Fees and data storage Fees will continueto accrue, as long as Greenpen stores Subscriber Data. Greenpen may hold Subscriber Data until Subscriber has paid Greenpen in full for all Feesand charges due.
c. Implementation or Configuration Fee.A Subscription may require aone-time set up Fee or other implementation or configuration Fee, as specified on the Order Form.
d. Variable Use Fees.A Subscription may require transaction, usage or other capacity based Fees in addition to the Subscription Fee. Subscriber will pay Greenpen’s current Fees monthly for transactions, usage or
capacity ordered or used by Subscriber that are not included in a Subscription Fee.
e. Taxes. Fees do not include taxes. Subscriber will pay all sales, use, customs, excise, value added and other taxes imposed upon the purchase, sale, license or use of Subscription Service(“Tax”),regardless whether the Tax is included in the invoice Greenpen sends to Subscriber, except taxes on Greenpen’s net income. Fees payable by Subscriber will not be reduced by any Tax and Subscriber will pay invoiced Feesand Tax, or Subscriber will provide a tax exemption certificate or tax payment receipt prior to Greenpen’s delivery of Subscription Service, or proof of payment for Tax within 30 days from invoice date.
f. Verification. Within 15 days of Greenpen’s request, on an agreed date, Subscriber or End User as applicable will provide access to its records and operations to enable Greenpen to verify compliance with the Agreement. Within 15 days of invoice date, Subscriber will pay additional Fees due for Subscriptions or Users Greenpen determines are in excess of Subscription Service purchased, including Fees in arrears and Greenpen’s expenses.
g. Termination.All outstanding Fees and payments are due immediately upon termination of Subscription Service or the Agreement, including Feesfor the balance of a Subscription Term if Subscription Service is terminatedat any time.
a.Either Greenpen or Subscriber may terminate Subscription Service by providing written termination notice at least 60 days prior to the end of the current Subscription Term.
b.Greenpen may suspend or terminate Subscription Service with 30 days written notice if Subscriber or End User breaches its obligations including timely payment, or without notice if Greenpen has a good faith belief that:(i) Subscriber or End User is using Subscription Service for illegal purposes; (ii) the integrity or security of Subscription Service is threatened; (iii) it is necessary to prevent fraud or harm to Greenpen, End User or Subscriber; (iv) Subscriber or End User has or will breach its confidentiality obligations, infringe Greenpen’s Intellectual Property rights,or assign or transfer its rights or obligations without consent; or (v) it is required by law.
c.Subscriber may terminate Subscription Service with 30 days written notice, subject to a right to cure, if Greenpen materially breaches its obligations under Section 8, and Subscriber will be entitled to a pro rata refund of Fees prepaid for the remainder of the Subscription Term after thetermination date.
d.Upon termination (i) Subscriber's and End User’s right to use Subscription Service ends, (ii) Subscriber and End User will cease using
Subscription Service and, at Greenpen’s direction, return or destroy Greenpen Confidential Information and Documentation, and (iii) Subscriber will immediately pay Greenpen all Fees due.
a. Warranty.Greenpen warrants to Subscriber that Application functionality of Subscription Service will perform substantially according toGreenpen’s current published technical specifications when used according to the Documentation, and Greenpen will provide Subscription Service in a commercially reasonable manner consistent with general industry standards that apply to similar subscription services(“Warranty”).
b. Remedy.Subscriber must submit a support request to Greenpen according to Section 2(j) above for a Warranty claim promptly upon the occurrence of the problem, and Greenpen will provide support service as specified.
c. DISCLAIMER.EXCEPT AS SET FORTH IN SECTIONS 8(a) AND (b) ABOVE, GREENPEN, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES AND GUARANTEES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, FOR SUBSCRIPTION SERVICE, DOCUMENTATION AND CLIENT SOFTWARE, THEIR USE, SUFFICIENCY, SECURITY, RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY, OR COMPLETENESS, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, (i) MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR (ii) THAT SUBSCRIPTION SERVICE OR CLIENT SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (iii) STORED DATA WILL BE ACCURATE OR RELIABLE; (iv) THE INFORMATION, RESULTS OR MATERIAL OBTAINED BY SUBSCRIBER OR END USER THROUGH SUBSCRIPTION SERVICE WILL MEET SUBSCRIBER’S OR END USER’S REQUIREMENTS OR EXPECTATIONS; (v) ERRORS OR DEFECTS WILL BE CORRECTED; OR (vi) SUBSCRIPTION SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. OTHER THAN AS SPECIFIED IN SECTION 8(a) ABOVE, GREENPEN PROVIDES SUBSCRIPTION SERVICE, CLIENT SOFTWARE, DOCUMENTATION, AND ALL CONTENT TO SUBSCRIBER AND END USER STRICTLY ON AN “AS IS”, “AS AVAILABLE” BASIS. SUBSCRIPTION SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. GREENPEN IS NOT RESPONSIBLE FOR RESULTING DELAYS, DELIVERY FAILURE, OR DAMAGES. THIS SECTION 8 AND SECTION 7(c) SPECIFIES GREENPEN’S SOLE LIABILITYAND SUBSCRIBER’S AND END USER’S EXCLUSIVE REMEDY FOR A SUBSCRIPTION SERVICE, CLIENT SOFTWARE OR DOCUMENTATION WARRANTY CLAIM.
a.GREENPEN, ITS AFFILIATES AND LICENSORS (“GREENPEN”) ARE NOT LIABLE FOR: (i) INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR
INCIDENTAL DAMAGES; (ii) DAMAGES FOR, WITHOUT LIMITATION, INTERRUPTION OF BUSINESS OR OPERATIONS, COST OF COVER, TOLL FRAUD, LOST PROFITS, DATA, GOODWILL, BUSINESS OR REVENUE; OR (iii)A CLAIM BROUGHT MORE THAN 12 MONTHS AFTER THE EVENT GIVING RISE TO THE CLAIM.
b.GREENPEN IS LIABLE FOR A CLAIM OR DAMAGES, DIRECT OR INDIRECT,FOR BREACH OF CONFIDENTIALITY ONLY AS A DIRECT RESULT OF GREENPEN’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AS DETERMINED BY A COURT OF COMPETENT JURISDICTION, AND SUBJECT TOTHE LIMITATIONS OF SECTIONS 9(a) AND (c)
c.NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, EXCEPT FOR A CLAIM FOR INTELLECTUAL PROPERTY INFRINGEMENT UNDER SECTION 11, DEATH, BODILY INJURY, TANGIBLE PROPERTY DAMAGE, OR WILLFUL MISCONDUCT, GREENPEN’S AGGREGATE LIABILITY FOR ANY CLAIM OR DAMAGES FOR ANY REASON, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, WARRANTY, BREACH OF CONTRACT, TORT, MISREPRESENTATION OR NEGLIGENCE, FOR USE OR PERFORMANCE OF SUBSCRIPTION SERVICE, CLIENT SOFTWARE OR OTHERWISE, WHETHERFORESEEABLE OR NOT, OR WHETHER A REMEDY FAILS TO ACHIEVE ITS ESSENTIAL PURPOSE, IS LIMITED TO ACTUAL, DIRECT DAMAGES NOT EXCEEDING THE AMOUNT SUBSCRIBER PAID FOR THE PRIOR 12 MONTHS FOR THE SPECIFIC SUBSCRIPTION SERVICE GIVING RISE TO THE CLAIM.GREENPEN’S FAILURE TO EXERCISE A RIGHT OR REMEDY IS NOT A WAIVER.THIS SECTION 9 SPECIFIES GREENPEN’S SOLE LIABILITY AND SUBSCRIBER’S EXCLUSIVE REMEDY FOR A CLAIM BROUGHT AGAINST GREENPEN.
Greenpen, its affiliates or licensors own and retain all right, title and interest in all Intellectual Property in Subscription Service, Client Software,Documentation and all derivative works. Greenpen reserves the right to enforce all its rights and remedies to protect its Intellectual Property.
a. By GREENPEN.(i) Greenpen will defend, at its expense, a third party legal action, suit or preceding against Subscriber(“Claim”)to the extent that Subscription Service as delivered by Greenpen to Subscriber(“Indemnified Service”)directly infringes a valid Indian patent or copyright. Greenpen will indemnify Subscriber for any judgment finally awarded against Subscriber or settlement agreed by Greenpen for such Claim to the extentof the Indemnified Service’s infringement, provided (1) Subscriber notifies Greenpen promptly in writing of the Claim, (2) Greenpen has sole control over the defense or settlement, and (3) Subscriber fully cooperates with Greenpen, providing all documents and information in Subscriber’s
possession relevant to the Claim, and Subscriber makes personnel available to testify or consult with Greenpen as reasonably needed.
(ii) If Indemnified Service becomes, or in Greenpen’s opinion is likely to become, subject to a Claim, Greenpen may, at its option and expense, (1) acquire the right for Subscriber to continue using the Indemnified Service, (2) replace or modify the Indemnified Service or create a workaround so that the Indemnified Service is functionally equivalent and non-infringing, or (3) terminate the Subscription for the Indemnified Service and give Subscriber a pro rata refund of Fees prepaid for the remainder of the Subscription Term for the infringing part of the Indemnified Service.
iii) Greenpen is not obligated or liable for a Claim due to (1) use of Indemnified Service not according to the Agreement and Documentation, (2) modification of Indemnified Service by anyone other than Greenpen, ormodification made by Greenpen for non-standard features or functionality for Subscriber or according to Subscriber’s directions, (3) any service, equipment, software, or data not supplied by Greenpen or use of Indemnified Service combined with any other service, equipment, software, or data not supplied by Greenpen if infringement would not occur without the combination, (4) a version of Indemnified Service other than the most current version available or Subscriber’s failure to install a revision, update or release of Client Software that would have eliminated the infringement, (5) Subscriber’s designs, instructions, plans or specifications, or (6) use of Indemnified Service combined with a Subscriber or third party use, process or method if infringement would notoccur without the combination.
(i) Subscriber will defend, at its expense, a third party claim against Greenpen (1) that any product, information, data or material provided by Subscriber or End User, or Subscriber’s or End User’s use of Subscription Service, violates the law or infringes another party’s Intellectual Property rights, other than a Claim for which for which Greenpen is responsible according to Section 11(a) above, or (2) arising from Subscriber’s or End User’s failure to comply with the terms of the Agreement
ii) Subscriber will indemnify Greenpen for any damages for or amounts agreed as settlement of a claim hereunder, provided (1) Greenpen notifiesSubscriber promptly in writing of the claim, (2) Subscriber has sole controlover the defense or settlement, and (3) Greenpen cooperates with Subscriber, providing all documents and information in Greenpen’s possession relevant to the claim, and Greenpen makes personnel available to testify or consult with Subscriber as reasonably needed.
c. Assumption of Defense. If a party fails to defend or settle a claim according to this Section 11 in a timely manner, the other party may assume defense of the claim at the indemnifying party’s expense, and theindemnifying party will reasonably cooperate. Neither party may make an admission of fault on behalf of the other party without written consent, or agree to the settlement of a claim binding the other party that does not
contain a full release of liability for the other party, without written consent.
d. Limitation. THIS SECTION 11 SPECIFIES EACH PARTY’S SOLE LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDY FOR AN INFRINGEMENT OR MISAPPROPRIATION CLAIM.
a. Confidential Information. Whether or not disclosed orally or marked as confidential, Confidential Information includes the Agreement, Order Forms, Subscription Service, non-public data, Personal Data, Intellectual Property, and Greenpen’s proposals, specifications, manuals, product or Application roadmaps, financial data, pricing, and benchmark test results. Confidential Information does not include information that is: (i) publicly available without breach of the Agreement; (ii) reasonably shown to disclosing party’s satisfaction by objective data to have been known by receiving party prior to disclosure or independently developed by receiving party subsequent to disclosure without breach of the Agreement; or (iii) obtained by receiving party from a third party that is not under confidentiality obligation to disclosing party for the information. Receiving party will promptly notify disclosing party if it is compelled by law or a court to disclose Confidential Information and take reasonable actions requested to maintain its confidentiality
b. Non-disclosure. Subscriber and End User will use best efforts to prevent disclosing personally identifiable information or Personal Data to Greenpen. Receiving party will use disclosing party's Confidential Information solely to perform its obligations under the Agreement. Receiving party will take commercially reasonable actions to safeguard disclosing party's Confidential Information, no less than the actions taken to protect its own Confidential Information. Receiving party must not disclose disclosing party's Confidential Information except to its employees bound by confidentiality obligations no less restrictive than these terms. Receiving party must promptly notify disclosing party in writing of unauthorized use or disclosure of Confidential Information. Receiving party, at its expense, must take all reasonable actions to recover Confidential Information and prevent further unauthorized use or disclosure, including seizure and injunctive relief. If receiving party fails to timely do so, disclosing party may take any reasonable action to do so at receiving party's expense, and receiving party will reasonably cooperate.
a. Applicability.This Clause 13 applies to Subscribers and End Users who are processing Personal Data either: (i) in the context of the activities of an establishment within the European Union; or (ii) where the processing activities are related to either the offering of goods or services
to data subjects in the European Union or the monitoring of any behaviourwhich takes place in the European Union.
b. Definitions.For the purpose of this Clause 13,"Data Protection Laws"means all applicable data protection law including, from 25 May 2018, Regulation (EU) 2016/679, and any other laws or regulations (as amended and/or replaced from time to time). The terms"Personal Data","Processor","Data Subject","processing", and"Controller"are as defined in the Data Protection Laws.
c. Operative Provisions.(i) Greenpen will implement appropriate technical and organisational measures to protect Personal Data processed in connection with this Agreement in accordance with Data Protection Laws. The details of the Personal Data and its processing are set out inSchedule A. Greenpen willnot process Personal Data except as necessary for the purposes of this Agreement and only in accordance with Subscriber's or End User’s written instructions. Greenpen will immediately notify the Subscriber or End User if, in Greenpen's opinion, any instruction or direction from the Subscriber or End User infringes Data Protection Laws. Following this notification, Greenpen will continue processing according to such direction or instruction except to the extent the Subscriber or End User withdraws or amends such direction or instruction. In the absence of such a written withdrawal or amendment of the direction or instruction, Subscriber and End User agree to indemnify Greenpen on demand against all losses that Greenpen may suffer as a consequence of continuing such processing, including without limitation losses arising from regulatory action or from claims made by data subjects. At Subscriber's or End User’s request, Greenpen will provide support requested by the Subscriber in fulfilling its obligations subject to reimbursement of reasonable costs incurred.
(ii)Subscriber and End User hereby provide a general authorisation for Greenpen to subcontract the processing of any Personal Data. Subscriber and End User consent to Greenpen engaging corporate affiliates and third party subcontractors to process personal data provided that Greenpen: (1)provides Subscriber or End User at least 14 days' prior notice of the addition of any subcontractor and Subscriber or End User has not objectedwithin 14 days of such prior notice to the addition of subcontractor (and, in the event that Subscriber or End User objects to the addition of such sub-contractor on reasonable grounds relating to data protection then either Greenpen will not appoint the subcontractor or Subscriber or End User may elect to suspend or terminate those order forms with respect to the Subscription Service which cannot be provided by Greenpen other than by use of such subcontractor; and (2) imposes data protection terms on any subcontractor and corporate affiliate it appoints which are substantially similar to the terms of this Clause 13.
(iii) A list of Greenpen's current subcontractors is available athttp://www.Greenpen.in/third-party-sub-processors.
(iv) Greenpen will be and remains fully liable for the processing acts, errors or omissions of any of its subcontractors or corporate affiliates who are processing personal data as if Greenpen had performed such act, erroromission itself.
(v) Greenpen will promptly notify Subscriber or End User of any actual or suspected breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data. Greenpen will provide reasonable cooperation with any investigation regarding the breach and take all necessary measures to limit further unauthorised disclosure of or unauthorised processing of Personal Data subject to reimbursement of reasonable costs incurred.
(vi) Upon request and no more than one time in any twelve (12) month period, Greenpen will make information available to Subscriber and End User to demonstrate its compliance with this Clause and will permit and assist with audits conducted by Subscriber and End User or a third party to assess Greenpen's compliance with this Clause 13. Except as provided otherwise by law, upon termination of this Agreement, Greenpen will, at Subscriber's or End User’s option, immediately delete or return all Personal Data
(vii) Personal Data will only be transferred outside the European Economic Area where Greenpen puts in place appropriate safeguards for the protection of the Personal Data, or where permitted by Data Protection Laws.
d. Privacy Notice.Greenpen will provide the Subscription Services in accordance with its privacy notice as amended from time to time, as GREENPEN may notify to the Subscriber and End User.
a. Agreement.Each Order Form together with these terms creates a separate contract(“Subscription Agreement”),is the entire agreement governing Subscriber’s purchase and use of Subscription Service, and supersedes all other oral or written terms, proposals or representations regarding the subject matter of the Order Form, provided however, if Subscriber has executed a master purchasing agreement with Greenpen for Subscription Services, such agreement will control to the extent it is inconsistent with these Terms. These Terms can only be modified by written amendment signed by both parties. Inconsistent terms of Subscriber’s purchase order are excluded regardless of Greenpenaccepting the purchase order for payment purposes. If any Subscription Agreement term is illegal, invalid, or unenforceable, the other terms remain in full force and effect and any term that is intended to survive theSubscriber Agreement termination will survive.
b. Assignment. Subscriber may not assign the Subscription Agreement, an Order Form, and Subscriber or End User may not assign its obligations, rights or remedies, in whole or in part, without Greenpen’s prior written approval, in its sole discretion.
c. Force Majeure. Neither party is liable for delay or failing to perform itsobligations due to a cause beyond its reasonable control and without fault or negligence, except Subscriber’s timely payment obligation.
d.Governing Law. Massachusetts laws govern the Subscription Agreement, the parties’ performance, rights and obligations, excluding conflicts of law principles that would apply the law of another jurisdiction. Each party waives the right to jury trial for a claim in law or equity. The United Nations Convention on Contracts for the International Sale of Goods and Uniform Computer Information Transaction Act, as adopted, do not apply.
e. Complying with Laws; Export.Subscriber and End User will comply with Indian laws and regulations including, without limitation, Indian Corrupt Practices Act, Indian Bribery Act, other anti-corruption laws, IndianExport Administration and Treasury Department's Office of Indain Assets Control regulations, and other anti-boycott, export and import regulations. Subscriber and End User agree: (i) the export, re-export, transfer, re-transfer, sale, supply, access to, or use of Subscription Servicein a country other than the country in which Subscription Service is provided to Subscriber or End User, or to, by, or for a different end user or end use, may require an Indian government license or authorization; and (ii) not to, directly or indirectly, export, re-export, transfer, re-transfer, sell,supply, or allow access to or use of Subscription Service to, in, by, or for sanctioned, embargoed, or prohibited countries, persons, or end use under Indain law (collectively,“Prohibited Use“). Subscriber is responsible for screening for Prohibited Use and obtaining required licenseor authorization and will indemnify Greenpen for Subscriber’s or End User’s violation of export control and economic sanction laws and regulations. Greenpen may terminate the Subscriber Agreementand Subscription Serviceimmediately if Greenpen determines, in its sole discretion, that Subscriber or End User has breached, intends to breach, orinsists upon breaching these terms.
f.Language. The parties agree that the Agreement and all related documents are in English.
g. No Agency. Each party is an independent contractor and may not commit the other party without written authorization. The Subscription Agreement does not create an employment, joint venture, partner, or agency relationship.
h. Non-Solicitation.For the Agreement term and 1 year after the termination date, without Greenpen’s written consent, Subscriber or End User will not, directly or indirectly, hire or solicit any Greenpen employee, former employee, or contractor (except as a result of a generally advertised recruiting solicitation), or attempt to or interfere with Greenpen’s business.
i.Notice. Notice and consent must be in writing signed by a party’s authorized representative, sent to the address on the Order Form or otherwise specified in writing by a party. Notice must be sent by mail or
overnight courier with return receipt, and is effective 1 business day after being sent by overnight courier or 3 business days after being sent by mail.
a. Business Affiliatemeans a legal entity which has a business relationship with Subscriber and to which Subscriber provides access to the Subscription Service in order to transact business between Subscriber and Business Affiliate.
b. Applicationmeans functionality described in Greenpen’s current Documentation for a software product, including modifications, revisions, upgrades, language versions and enhancements.
c. Client Softwaremeans a Greenpen software component provided to Subscriber to use Subscription Service.
d. Concurrent User means a User authorized to use Subscription Serviceconcurrently with other Concurrent Users, limited by a maximum number of Concurrent Users at any one time.
We may collect the following information, depending on the PaaS application being used:
We do not collect sensitiveinformation such as racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data, or data concerning health or sexual orientation.
Individual persons generally engaged by an organization with which Subscriber has a business relationship, or with whom Subscriber engages directly, such as: Subscriber’s employees, contractors, business partners, suppliers, and their employees,
contractors and authorized users of the PaaS solutions, Community members, (who are natural persons) and are authorized by Subscriber to use PaaS Services, or the personal data of whom Subscriber provides to Greenpen in using the Services for Subscriber’s business operations (as applicable in the circumstances).