Effective Date: 3rd January 2022
THESE TERMS OF SERVICE (the “Terms”) CONSTITUTE A BINDING CONTRACT BETWEEN YOU, AUTHORISED USER(S) (collectively, “You” or “Your” or “Subscriber”, “Account Holder”, “Client”, “User”) AND ENBRAUN TECHNOLOGIES PRIVATE LIMITED (collectively, “ENBRAUN TECHNOLOGIES” or “We” or “Us” or “Our”) AND GOVERN USE OF AND ACCESS TO THE SERVICE BY YOU, AUTHORISED USERS WHETHER IN CONNECTION WITH A PAID SUBSCRIPTION TO THE SERVICE, A FREE TRIAL OF THE SERVICE OR A BETA SERVICE.
By accepting these Terms / Clauses, or by accessing or using the Service, or authorizing or permitting any individual (the “Authorised User(s)”) to access or use the Service, You agree to be bound by these Terms. If You are entering into these Terms on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to these Terms for that Entity and representing to ENBRAUN TECHNOLOGIES that You have the authority to bind such Entity and its affiliates to these Terms, in which case the terms (“Subscriber”) (“Account Holder”) (“You”) (“Your”) or related capitalized terms herein shall refer to such Entity and its affiliates. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and may not use the Service.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of publishing, posting or monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
1. AGREEMENT
1.1 This Agreement (“Agreement”) describes the Terms governing Your use of ENBRAUN TECHNOLOGIES’S cloud based resource scheduling and planning software referred to as “eResource Scheduler Cloud”, “eRS Cloud” or "eResource Scheduler" provided to You or to any Authorised User, including any Data (as defined below), documentation, fixes, patches, updates, upgrades and new releases thereto (the “Service(s)”).
It includes by reference-
(a) ENBRAUN TECHNOLOGIES’S Privacy Policy for eResource Scheduler Cloud.
(b) Additional Terms and Conditions, Appendixes, if any, which may include those from third parties.
(c) Any terms provided separately to You for the Services, including product or Service program terms, ordering, activation, payment terms, etc.
(d) API Documentation
2. GENERAL CONDITIONS: ACCESS TO AND USE OF THE SERVICE
2.1 We provide fully functional “as is” Trial Service. Thus, no presumption or assumption regarding the Service itself or its Terms will be entertained by Us once a subscription plan purchased by You (the “Subscription Plan”) for the applicable subscription term (the “Subscription Term”) has been subscribed by You.
2.2 Trial Services are provided strictly “as is”. You may use a Trial Service in a manner consistent with the Terms and conditions of this Agreement, but ENBRUAN TECHNOLOGIES may, at its discretion, disable certain features of a Trial Service and enforce time limits on Your right to use the same. Since a Trial Service is provided free of charge, ENBRAUN TECHNOLOGIES disclaims all warranties, representations, and liabilities as set forth in this Agreement and ENBRAUN TECHNOLOGIES shall not be liable for damages of any kind related to Your use of a Trial Service.
2.3 During the Subscription Term and subject to compliance by You and/or any Authorised User with these Terms, You have the limited right to access and use the Service consistent with the Subscription Plan You subscribe to, specific to Your particular business purpose. Without limiting the foregoing, Your right to access and use the API (“Application Programming Interface”) is also subject to the restrictions and policies implemented by ENBRAUN TECHNOLOGIES from time to time with respect to the API as set forth in API Documentation or otherwise communicated to You in writing.
2.4 A high-speed internet connection is required for proper transmission of the Service. You are responsible for procuring and maintaining the network connections that connect Your network to the Service, including, but not limited to, “browser” software that supports protocols used by the “eRS Cloud” Service, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You and/or any Authorised User of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Your Data (as defined below), transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by ENBRAUN TECHNOLOGIES. We assume no responsibility for the reliability or performance of any connections as described in this section.
2.5 You agree not to
(a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party;
(b) use the Services to process data (i.e., any information, file, text, message, software, picture, sound, video, content or material transmitted or conveyed through the Services; hereinafter collectively and indistinctly referred to as “Data”) on behalf of any third party other than resources authorised under Your Subscription Plan;
(c) modify, adapt, or hack the Services or otherwise attempt to gain unauthorized access to the Services or related systems or networks;
(d) falsely imply any sponsorship or association with ENBRAUN TECHNOLOGIES;
(e) use the Services for the purpose of harming or attempting to harm minors in any way;
(f) use the Services in any unlawful manner, including but not limited to violation of any person’s privacy rights;
(g) use the Services to send unsolicited or unauthorized junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages;
(h) use the Services to store or transmit Data or other content that infringes on any person’s Intellectual Property Rights (as defined below);
(i) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services and its components;
(j) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software or component making up the Services;
(k) use the Service in any way that breaches any applicable local, national or international law or regulation;
(l) use the Services to knowingly post, transmit, upload, link to, send or store any Data or other content that is unlawful, obscene, offensive, inflammatory, racist, hateful, abusive, libellous, threatening or abusive, deceptive, invades another’s privacy, causes annoyance, inconvenience, harasses, upsets, embarrasses, alarms or annoys any person, promotes sexually explicit material, promotes violence, promotes illegal activity, promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
(m) use the Services to knowingly post transmit, upload, link to, send or store any viruses, malware, trojan horses, time bombs, or any other similar harmful software;
(n) use Our Service in a manner not intended for;
(o) enter unreasonably excessive amount of Data; or (p) try to use or misuse the Services in violation of these Terms;
(p) use the Services in any fraudulent way or for any that has any purpose or effect which is fraudulent or against any applicable local, state, national, and international law, statute, rule, ordinance or regulation (hereinafter collectively referred to as the “Law”).
2.6 You are responsible for compliance with the provisions of these Terms by any Authorised User and for all activities that occur under Your Account, as well as for all Your Data. Without limiting the foregoing, You are solely responsible for ensuring that use of the Services to store and transmit Your Data is compliant with all applicable Law. You also maintain all responsibility for determining whether the Services or any Data generated thereby is accurate or sufficient for Your purposes. Subject to any limitation on the number of resources that can be scheduled as per Your Subscription Plan for which You subscribed, use of the Services is restricted to the specified number of resources permitted under Your subscription to the Services. You agree and acknowledge that each Authorised User will be identified by a unique username and password (the “Login Credential(s)”) and that a Login Credential may only be used by one (1) individual Authorised User. You will not share User Login Credentials among multiple individual Authorised Users. You and Your Authorised Users are responsible for maintaining the confidentiality of all Login Credentials for Your Account.
2.7 ENBRAUN TECHNOLOGIES reserves the right, in its reasonable discretion, to temporarily suspend Your access to and use of the Services in the following conditions: (a) during planned downtime for upgrades and maintenance to the Services, of which ENBRAUN TECHNOLOGIES will use logistically and commercially reasonable efforts to notify You in advance through a notice (including electronic communication) to Your Account owner; (b) during any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Our reasonable control (including, without limitation, inability to access the Internet), or acts undertaken by third parties.
2.8 ENBRAUN TECHNOLOGIES reserves the right to modify Subscription Plan’s model as and when it deems fit due to economic, competitive, technical or any other reason.
2.9 From time to time, ENBRAUN TECHNOLOGIES may invite You to try some services which are beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import (collectively, “Beta Services”) at no charge. You may accept or decline any such trial in Your sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one (1) year from the trial start date or the date that a version of the Beta Services becomes generally available. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with Beta Services.
3. DATA PRIVACY, SECURITY AND CONFIDENTIALITY
3.1 Subject to the express permissions of these Terms, You and ENBRAUN TECHNOLOGIES will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care.
Except as otherwise expressly permitted pursuant to these Terms, You and ENBRAUN TECHNOLOGIES may use each other’s Confidential Information solely to exercise respective rights and perform respective obligations under these Terms and shall disclose such Confidential Information solely to those respective employees, representatives and agents, who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information.
To the purposes of these Terms, “Confidential Information” means, collectively and indistinctly, all information regarding either You or ENBRAUN TECHNOLOGIES and/or their activities, business or clients that is not generally known to the public or that constitutes a trade secret under any applicable law, regardless of how such information is disclosed to or learned by the recipient party. “Confidential Information” will include, but not be limited to, data, technical information regarding a Party’s products, services, equipment, technical data, trade secrets, know-how, research, plans, software, inventions, patent applications, processes, techniques, hardware configuration information, agreements with third parties, lists of, or information relating to, employees, consultants, suppliers and customers of a party, price lists, pricing methodologies, cost data, market share data, marketing plans, licenses, contract information, business plans, financial forecasts, historical financial data, budgets or other business information of a party. This definition shall not limit any definition of confidential information or trade secrets or any equivalent terms under any applicable law.
3.2 You agree that ENBRAUN TECHNOLOGIES and the service providers We use to assist in providing the Services to You shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose Your Data solely to the extent necessary to provide the Services, including, without limitation, in response to Your support requests. Any third-party service providers We utilize will only be given access to Your Account and Your Data as is reasonably necessary to provide the Services and will be subject to confidentiality obligations. ENBRAUN TECHNOLOGIES may also access or disclose information about You, Your Account, Authorised User, including Your Data, in order to
(a) comply with the Law or respond to lawful requests or legal proceedings;
(b) protect ENBRAUN TECHNOLOGIES’s or its customer’s or partner’s rights or property, including enforcement of these Terms or other policies associated with the Services;
(c) act on a good faith belief that such disclosure is necessary to protect personal safety or avoid violation of applicable law or regulation.
3.3 Whenever You, Authorised Users interact with Our Services, We automatically receive and record information on Our server logs from the browser, which may include IP address, “cookie” information, and the type of browser and/or device being used to access the Services. “Cookies” are identifiers We transfer to Your browser / device that allow Us to recognize Your or any Authorised User’s browser, along with how Our Services are being utilized. When We collect this information, We only use this data in aggregate form, and not in a manner that would identify You and/or any Authorised Users personally. For example, this aggregate data can tell Us how often users use a feature of the Services, and We can use that knowledge to improve the Services.
3.4 We may collect certain information about You, Authorised User as well as Your respective computers and use of the Services. We use, disclose, and protect this information as described in Our Privacy Policy.
3.5 To the maximum extent permitted by the applicable Law, We expressly reserves the right to access, read, preserve, and disclose any Personal Data as it may reasonably believe necessary to:
(i) satisfy any applicable Law or any authority request;
(ii) enforce these Terms (including investigation of potential violations thereof) or any of Our Intellectual Property Rights;
(iii) detect, prevent, or otherwise address fraud, anti-piracy, security or technical issues (including, without limitation, verify a valid registration, the device IP address, etc.)
3.6 We will use best efforts to keep Data on the Services secure and confidential by implementing appropriate technical and organisational security measures to prevent unauthorised access to Data and/or loss or corruption thereof. We will promptly notify You in writing if it becomes aware that Data has been breached.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 ENBRAUN TECHNOLOGIES and You shall maintain all rights, title and interest in and to all Our respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to You and/or any Authorised User to use the Services under these Terms do not convey any additional rights in the Services, or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Services as expressly provided herein, all rights, title and interest in and to the Services and all hardware, software and other components of or used to provide the Services, including all related intellectual property rights, will remain with and belong exclusively to ENBRAUN TECHNOLOGIES.
4.2 ENBRAUN TECHNOLOGIES shall have the right to to implement, use, license, modify, commercially exploit and / or incorporate into the Services any of Your and/or Your Authorised Users’ feedback, suggestions, or ideas in any way, including in future modifications of the Services or of any other related product, service, advertising or marketing material. To such purpose, You and/or Your Authorised Users shall not claim any right and/or interest in and to any Services, product or material which may contain or incorporate any of Your and/or Your Authorised Users’ feedback or suggestion. Notwithstanding the preceding, We will not publish or share such feedback in a way that could identify You and/or any Authorised User without Your explicit permission.
4.3 ENBRAUN TECHNOLOGIES’S product and service names, and logos used or displayed on the Services are registered or unregistered trademarks of ENBRAUN TECHNOLOGIES (collectively, “Marks”), and You may only use such Marks to identify You as a Subscriber; provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent ENBRAUN TECHNOLOGIES, and its Services.
5. THIRD PARTY SERVICES
5.1 If You decide to enable, access or use other services along with ENBRAUN TECHNOLOGIES’s Services, be advised that Your access and use of such other services is governed solely by the terms and conditions of such other services, and We do not endorse, are not responsible or liable for, and make no representations as to any aspect of such other services, including, without limitation, their content or the manner in which they handle data (including Your Data) or any interaction between You and the provider of such other services. You irrevocably waive any claim against ENBRAUN TECHNOLOGIES with respect to such Other Services.
5.2 ENBRAUN TECHNOLOGIES is not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such other services, or Your reliance on the privacy practices, data security processes or other policies of such other services. You may be required to register for or log into such other services on their respective websites. By enabling any other services, You are expressly permitting ENBRAUN TECHNOLOGIES to disclose Your Login Credentials as well as Your Data as necessary to facilitate the use or enablement of such other service.
6. BILLING, PLAN MODIFICATIONS AND PAYMENTS
6.1 We provide fully functional “as is” Trial Service. Thus, no presumption or assumption regarding the Service itself or its Terms will be entertained by ENBRAUN TECHNOLOGIES once a Subscription Plan for a Subscription Term has been subscribed by You.
6.2 We / Our partners / Our resellers have authorised the company Stripe Inc. (registered at 510 Townsend Street San Francisco, CA 94103, USA; hereinafter “Stripe”) to facilitate and collect payments on Our behalf through the Stripe payment portal for all or any Subscription of Services made by You and/or any Authorised User.
6.3 Unless otherwise indicated on a form referencing these Terms and subject to term 6.4, all fees associated with Your access to and use of the Services (collectively, the “Subscription Fees”) are due in full upon commencement of Your Subscription Term. If You fail to pay Your Subscription Fees or fees for other services indicated on any form within seven (7) business days of Our notice to You that payment is due, in addition to Our other remedies, We may cancel the Subscription Plan of Services subscribed by You and/or any Authorised User.
6.4 If You choose to upgrade Your Subscription Plan or increase the number of authorized resources that can be scheduled during Your Subscription Term (a “Subscription Upgrade”), any incremental Subscription Fees associated with such Subscription Upgrade will be charged to Your Account, due and payable immediately upon implementation of such Subscription Upgrade.
6.5 No refunds for Subscription Fees or other fees or payments will be provided to You if You elect to downgrade Your Subscription Plan. Credit will be given to You on pro-rata basis which will be adjusted against future Subscription Fees.
6.6 Downgrading Your Subscription Plan may cause loss of content, features, or capacity of the Services available to You under Your Account, and ENBRAUN TECHNOLOGIES does not accept any liability for such loss.
6.7 ENBRAUN TECHNOLOGIES reserves the right to offer special pricing to You and / or to other clients on its own discretion.
6.8 ENBRAUN TECHNOLOGIES reserves the right to increase the Subscription Fees annually, on its own discretion.
6.9 Unless otherwise stated, Our fees does not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes except those assessable against ENBRAUN TECHNOLOGIES based on its income. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.
7. CANCELLATION AND TERMINATION
7.1 You may elect to cancel Your Subscription Plan at any time, but such request to cancel will only come into effect after the completion of Your current Subscription Term.
7.2 No refunds or credits will be provided to You if You elect to cancel Your Subscription at any time before the completion of Your current Subscription Term.
7.3 Except as provided under terms 2.5 and 7.7, ENBRAUN TECHNOLOGIES may at its own discretion elect to cancel Your Subscription at any time on its own discretion and shall provide You with refund on a pro-rata basis for the remainder of Your Subscription Term.
7.4 Unless Your Subscription to the Services is so cancelled, Your Subscription to the Services will renew for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in any Form and term 6.8, the Subscription Fees applicable to the existing clients for the Subscription to the Services at the time of renewal of the Subscription shall be the current Subscription Fees + 5% increase (average annual increase, applied once every year or once every few years in bulk) to the current Subscription Fees or Our Standard Subscription Fees at the time of renewal, whichever is less, payable immediately as on the time such subsequent Subscription Term commences.
7.5 Following the cancellation of Your Subscription to the Services, We reserve the right to delete all Your Data in the normal course of operation. Your Data cannot be recovered at any time later than 3 (three) months from the date Your Subscription to the Services is cancelled.
7.6 If You cancel Your Subscription to the Services prior to the end of Your then effective Subscription Term or We effect such cancellation pursuant to terms 2.5 or 7.7, in addition to other amounts You may owe ENBRAUN TECHNOLOGIES, You must immediately pay any then unpaid Subscription Fees associated with the remainder of such Subscription Term.
7.7 ENBRAUN TECHNOLOGIES reserves the right to modify, suspend, cancel Your Subscription to the Services, and remove, disable and discard any of Your Data if We believe that You, Authorised User have violated these Terms. Unless legally prohibited from doing so, ENBRAUN TECHNOLOGIES will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. ENBRAUN TECHNOLOGIES shall not be liable to You, Authorised User or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Services. Any suspected fraudulent, abusive, or illegal activity by You, Authorised User may be referred to law enforcement authorities at Our sole discretion.
8. DATA PROTECTION
8.1 In case any Data is referred to an identified or identifiable natural person (collectively, the “Personal Data”) and the European Regulation no. 2016/679 (the “GDPR”) applies, You appoint Us as “processor” of the Personal Data on Your behalf, in order to process them for the purpose of hosting, processing (including, without limitation, reformat, manipulate, etc.) at the purpose to provide You with the Services. In particular, by accepting these Terms, You accept to be fully compliant with the GDPR and to be bound also by the Enbraun's Data Processing Appendix (DPA) attached hereto, which is an integral part of these Terms and is incorporated herein by reference. You agree to indemnify Us in respect of any claim by a third party that any processing of such Personal Data by means of the Service does not comply with the GDPR.
8.2 We are allowed to analyse anonymised Data (i.e., Data that are no more Personal Data and that, therefore, do not include personal identifiers of a person, such as his or her name, e-mail address, address, etc.) for the purpose to maintain, update or improve the Services, as well as to conduct internal statistics and analytics on the use and proper functioning of the Services. You have no right, title or interest in any result of these analyses performed by Us, which shall be deemed as Our Intellectual Property Rights.
9. DISCLAIMER OF WARRANTIES
9.1 These Terms set out the full extent of Our obligations and liabilities in respect of the supply of the Service. There are no conditions, warranties, representations or other terms, express or implied, that are binding on Us except as specifically stated in these Terms. Any condition, warranty, representation or other term concerning the supply of the Service which might otherwise be implied into, or incorporated in, these Terms, or any collateral contract, whether by statute, common law or otherwise, is excluded to the fullest extent permitted by Law.
9.2 You acknowledge that the Service has not been developed to meet Your individual requirements and that it is therefore Your responsibility to ensure that the facilities and functions of the Service meet Your requirements.
9.3 You acknowledge that the Service may not be free of bugs or errors and may not be available at all times or without interruption, and You agree that the existence of any such bugs or errors or the occurrence of any such interruptions in availability will not constitute a breach of these terms.
10. LIMITED LIABILITY AND INDEMNIFICATION
In no event We shall be liable for any direct, indirect, incidental, special, exemplary, punitive, or consequential damages (including, but not limited to, procurement of substitute goods or services, computer failure or malfunction, loss of data or profits, business interruption, etc.) however caused and on any theory of liability, whether in contract, strict liability, or tort (including negligence or otherwise) arising in any way out of the use of the services, even if We are aware of or have been advised of the possibility of such damages. In any case, We are not liable for the acts or omissions of its contractors, vendors, cloud provider or other service provider.
Notwithstanding the preceding, ENBRAUN TECHNOLOGIES agrees to indemnify You for damages resulting from lawsuit brought against You by a third party successfully proving beyond doubt in the court of governing Law and jurisdiction that the Services as delivered to You under this Agreement infringes upon any patent, copyright, trademark, trade secret or other Intellectual Property Right of that third party. This term does not cover any losses or damages caused due to or related to loss of Your or any third party’s Data.
IN ANY CASE, THE MAXIMUM LIABILITY OF ENBRAUN TECHNOLOGIES FOR ALL CLAIMS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SERVICES DURING THE TWELVE (12) MONTHS JUST PRIOR TO SUCH CLAIM UNTIL THE DAY SUCH LIABILITY ARISES.
THE FOREGOING CONSTITUTES YOUR SOLE REMEDIES AVAILABLE TO YOU WITH RESPECT TO ANY OF OUR LIABILITY UNDER THESE TERMS.
You will indemnify and hold ENBRAUN TECHNOLOGIES harmless against any claim brought by a third party against ENBRAUN TECHNOLOGIES arising from or related to use of the Services by You and/or any Authorised User in breach of these Terms or matters which You have expressly agreed to be responsible pursuant to these Terms.
11. SUPPORT SERVICE DEFINITION AND ENTITLEMENT
11.1 “Support” includes but is not limited to assistance, answers, suggestions, solutions, resources (including but not limited to documents / images / videos), provided by ENBRAUN TECHNOLOGIES’S representatives via any means of communication including but not limited to email / phone / web meeting software / skype / other internet calling application.
11.2 ENBRAUN TECHNOLOGIES at its own discretion may provide a help or Support section which will provide all requisite resources to assist You and/or any Authorised User to effectively use Our Services.
11.3 Our account managers will provide Support and will coordinate on behalf of ENBRAUN TECHNOLOGIES to ensure that You and/or any Authorised User receive all possible assistance to ensure effective use to Our Services.
11.4 ENBRAUN TECHNOLOGIES at its own discretion may provide a ticketing system which can be used by You to reach out Our support team to request Support.
11.5 “Support" does NOT include writing third-party integrations for You by Our technical team. We may at Our own discretion offer integration services for an additional fee that will be quoted on a case-to-case basis.
12. ASSIGNMENT
You may not, directly or indirectly, by operation of Law or otherwise, assign all or any part of these Terms or Your rights under these Terms or delegate performance of Your duties under these Terms without ENBRAUN TECHNOLOGIES’s prior consent, which consent will not be unreasonably withheld. We may, without Your consent, assign our Agreement with You to any affiliate or in connection with any merger or change of control of ENBRAUN TECHNOLOGIES or the sale of all or substantially all Our assets provided that any such successor agrees to fulfil its obligations pursuant to these Terms. Subject to the foregoing restrictions, these Terms will be fully binding upon, inure to the benefit of and be enforceable by You and ENBRAUN TECHNOLOGIES and respective successors and assigns.
13. ENTIRE AGREEMENT
These Terms, together with any form(s), appendix(es), constitute the entire Agreement, and supersede all prior agreements between You and ENBRAUN TECHNOLOGIES regarding the subject matter hereof.
14. RIGHT TO AMEND
We have the right to amend these Terms at any time, and to change, delete, discontinue, or impose conditions on use of the Services, in which case the new Terms will supersede prior terms. Any changes will be effective after seven (7) days from the time We first notify You and/or administrator and/or owner of your eRS Cloud account about such changes via email or/and notifications while using the Services or/and other reasonable means. Your use of the Services or any part of it after we notify you of any such changes, constitutes your acceptance of the modified terms. If you do not accept modified terms in part or full, you must terminate your Account and stop using our Services before the change takes effect. ENBRAUN TECHNOLOGIES’s failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of the Terms.
15. SEVERABILITY
If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted to best accomplish the original provision fully permitted by Law, and the remaining provisions of these Terms shall remain in effect.
16. SURVIVAL
Terms 3.1, 4 and 9-19 shall survive any Termination of this Agreement with respect to use of the Services by You, Authorised User. Termination of such Agreement shall not limit Your or ENBRAUN TECHNOLOGIES’S liability for obligations accrued as on or prior to such Termination or for any breach of these Terms.
17. RELATIONSHIP BETWEEN PARTIES
ENBRAUN TECHNOLOGIES and You are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between ENBRAUN TECHNOLOGIES and You.
18. USE OF CLIENT’S NAME, LOGO AND TESTIMONY
18.1 ENBRAUN TECHNOLOGIES will not make any claims on Client’s behalf and will not publish / make public any communication / feedback from Client without taking permission from the Client.
18.2 Unless denied by client in writing, it is implied that client agrees, that ENBRAUN TECHNOLOGIES can use / publish Client’s name and logo on its website and / or any marketing / promotional / or other document / material for the sole purpose of communicating and establishing that Client is / was using its Services.
18.3 ENBRAUN TECHNOLOGIES reserves the right to use / publish testimony provided by Client in any form or manner on its website and / or any marketing / promotional / or other document / material.
19. GOVERNING LAW AND JURISDICTION
These Terms will be governed by the laws applicable in Republic of India. State courts located in Jaipur, Rajasthan, INDIA will have exclusive jurisdiction to decide dispute(s) if any, which may arise in future between You and/or any, Authorised User and ENBRAUN TECHNOLOGIES or other related / affected parties, irrespective of the place where the cause of action arises.
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DATA PROCESSING APPENDIX
This Data Processing Appendix (hereinafter the “DPA”) constitutes a legal and binding agreement and an integral part of the Terms and applies where We are Processors of Personal Data on Your behalf.
All terms with initial capital letters used herein shall have the meanings ascribed to them in the Terms, unless specifically defined herein.
1. SCOPE OF THIS DPA
The scope of this DPA is to detail the terms and conditions according to which, during the performance of Our Services, We will Process on Your behalf Personal Data, as provided in the Terms.
2. DEFINITIONS
In addition to the definitions in Our Terms, the following definitions apply to the following capitalized terms in this DPA, provided that a word defined in or importing the singular number has the same meaning when used in the plural number, and vice versa:
2.1 “Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data
2.2 “User Data” means any Personal Data that We process on Your behalf via the Services, as more particularly described in this DPA.
2.3 “Data Subject” means each person whose Personal Data are Processed for the Purpose, in the context of the provision of Our Services.
2.4 “Data Protection Law” means all data protection laws and regulations applicable to a Party’s Processing of Personal Data under the Terms including, where applicable, the European General Data Protection Regulation no. 2016/679.
2.5 “Party” means either You or Us, while “Parties” means, collectively, both You and Us.
2.6 “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed.
2.7 “Processing” or “Process” or “Processed” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
2.8 “Processor” means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the Controller.
2.9 “Purpose” means the provision of the Services and the associated Processing of Personal Data, as well as Your instruction provided Us during the use of the Services and/or the execution of the Terms and/or this DPA.
2.10 “Standard Contractual Clauses” or “SSCs” means the contractual clauses for the transfer of Personal Data to processors in third countries, approved by the European Commission from time to time.
2.11 “Sub-Processor” means the entity engaged by Us to Process Personal Data on our behalf and under our instructions.
3. SUBJECT OF THIS DPA
3.1 Appointment. You appoint Us as Processor of User Data in the context of the provision of the Services specified in the Terms and in connection with the Purpose.
3.2 Details of Processing activities. The details of the Processing activities under this DPA are specified below. You acknowledge and agree that all such details are correct and comprehensive:
3.2.a. Categories of Data. Categories of Data refers to Personal Data submitted and Processed in connection with use of Our Services.
3.2.b. Subject-matter of the Processing. The Personal Data Processed will be subject to the Processing activities required for the provision of the Services, as specified in the Terms and in this DPA. In particular, the Processing shall include: cloud storage of electronic files and Data and making this available to You and Authorised Users, allowing changes, additions, deletions made by You and Your authorised users, producing reports. Access to and migration of Data necessary to carry out requested support Services
3.2.c. Nature of the Processing. Processing of any Personal Data is purely incidental to the provision of Our Services, and is limited to storage, authorised disclosure, production of reports, access and migration. No migration of or access to or other Processing of any Personal Data is carried out as a part of the Services other than as may be required on Your specific documented instructions.
3.2.d. Data Subjects. Data Subjects are those individuals referred to in term 2.2 above, to whom Personal Data relates to.
3.2.e. Duration of Processing. Personal Data will be Processed for the duration of the Terms.
4. OUR OBLIGATIONS
4.1 Purpose and Your instructions. We shall only Process, on Your behalf, User Data according to Your instruction and exclusively for the Purpose.
4.2 Technical and organizational measures. We warrant and undertake to maintain appropriate and sufficient technical and organizational security measures to protect the User Data against accidental or unlawful destruction or accidental loss, damage, alteration, unauthorized disclosure or access, and against all other unlawful forms of Processing. Such measures shall be at least the measures set out in Our Privacy Policy; the said measures include, without limitation, physical access control, logical access control (i.e., non-physical access control measures such as passwords), and data encryption. We can provide You, upon request, with adequate proof of compliance of the foregoing. We don’t maintain any hard copies of Data with Us. In addition, We conduct regular audits for protection of the User Data (i.e., evaluate and review the method of collecting, storing and Processing the User data).
4.3 Personal Data Breach notification. We will notify You, without undue delay, after becoming aware of a Personal Data Breach, taking reasonable steps to mitigate the effects and to minimize any damage resulting from the Personal Data Breach. In particular, at the latest within 72 (seventy two) hours upon the technical discovery of such breach of User Data, We will provide You with at least the following information:
(i) the nature of the Personal Data Breach including, where possible, the categories and approximate number of Data Subjects concerned and the categories and approximate number of User Data records concerned;
(ii) the likely consequences of the Personal Data Breach;
(iii) the measures taken or proposed to be taken to address the Personal Data Breach, including, where appropriate, measures to mitigate its possible adverse effects.
4.4 Confidentiality. We ensure that all persons authorized to Process the User Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
4.5 Assistance and cooperation. We will promptly inform You if, in Our opinion, Your instructions infringe the relevant Data Protection Law, or if We are unable to comply with Your instructions. At Your expenses and subject to a separately agreed price quotation, We will provide You with reasonable assistance in complying with data security, data breach notifications, data protection impact assessments, and prior consultations with supervisory authorities requirements under the relevant Data Protection Law, taking into account the nature of the Processing and the information available to Us.
4.6 Data Subjects’ rights. We shall forward to You of all the requests coming from Data Subjects concerning the exercising of their rights under the applicable Data Protection Law. At Your expenses and subject to a separately agreed price quotation, We will provide You with reasonable assistance in the consequent actions required, as provided by the applicable Data Protection Law. You understand and agree that certain requests concerning exercising of Data Subjects’ rights may require Us to directly reply to the same Data Subjects.
4.7 Anonymization or deletion of the Personal Data. At Your request or, in any case, after the termination of the Terms, We shall anonymise or, if anonymisation is not technically feasible, remove all User Data in Our possession in a secure manner. In particular, following the termination of the Terms, User Data linked to Your account will be retained for a period of six (6) months from such termination within which You may contact Us to export such Data; beyond such term, We are authorized to anonymize or delete all User Data in the normal course of operation, unless We are required by any applicable Law to retain some or all of such User Data (which in any case shall be securely protected from any further Processing except to the extent required by such Law).
4.8 Sub-Processors. You give Us a general authorization to engage Sub-Processors to Process User Data for the Purpose. To such purpose, We represent and warrant that Our Sub-Processors shall provide Us sufficient guarantees to implement appropriate technical and organizational measures to ensure that their sub-Processing will meet requirements under the applicable Data Protection Law, to the extent applicable to the nature of the services provided by such Sub-Processors. The list of Our Sub-Processors is attached hereto in Exhibit A and it will be updated in case of addition or replacement of Sub-Processors.
4.9 Personal Data international transfers. You acknowledge that We may transfer and Process User Data anywhere in the world where We or Our Sub-processors maintain data Processing operations. We shall at all times ensure that such transfers are made in compliance with the requirements of the relevant Data Protection Law. In particular, for transfers of Personal Data to Us for Our processing in a jurisdiction other than a jurisdiction in the European Union, the European Economic Area, or the European Commission-approved countries providing “adequate” data protection, We agree to either use the Standard Contractual Clauses approved by the European Commission at the time OR enter into agreements which are similar to the SCCs OR to this DPA.
5. YOUR OBLIGATIONS
You represent and warrant that, in relation to the Processing of Personal Data for the Purposes in the context of the Services, You act as a Controller and, therefore:
5.1 You shall comply with any Data Protection Law when Process Personal Data, providing Us with lawful Processing instructions;
5.2 Data Subjects have been previously informed of Our Processing of their Personal Data, as required by any applicable Data Protection Law;
5.3 There is a valid legal ground for Our Processing of Personal Data, under the applicable Data Protection Law;
5.4 You shall not disclose Us (and shall not permit any Data Subject to disclose Us) any special categories of Personal Data (personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data, data concerning health or data concerning sex life or sexual orientation);
5.5 You shall comply with Data Subjects’ requests to exercise their rights of access, rectification, erasure, data portability, restriction of Processing, and objection to the Processing, as well as their rights related to automated decision-making;
5.6 You shall have the sole responsibility for the Personal Data accuracy, quality and the related proportionality and data retention principles;
5.7 You shall implement appropriate technical and organizational measures to ensure, and to be able to demonstrate, that the Processing of Personal Data is performed in accordance with the applicable Data Protection Law; and
5.8 You will cooperate with Us to fulfil our respective data protection compliance obligations in accordance with the applicable Data Protection Law (in particular, without limiting the foregoing, You shall forward Us any Data Subjects’ request regarding the Processing of their data, such as, requests of erasure, update, restriction, etc.).
6. LIABILITY
6.1 General. Each Party agrees that it will be liable to Data Subjects for the entire damage resulting from a violation of the applicable Data Protection Law. If one Party paid full compensation for the damage suffered, it is entitled to claim back from the other Party that part of compensation corresponding to such Party’s part of responsibility for the damage. To such purpose, You agree to be liable to Data Subjects for the entire damage resulting from a violation of the applicable Data Protection Law with regard to Processing of Personal Data for which You are a Controller, and that We will only be liable to Data Subjects for the entire damage resulting from a violation of the obligations of the applicable Data Protection Law directed to Us or where We acted outside of, or contrary to, Your lawful instructions. We will be exempt from liability if We prove that We are not in any way responsible for the event giving rise to the damage.
6.2 Limitation of liability. In any case, to the maximum extent provided by the Law, terms 9 and 10 of the Terms of Service shall apply to any of Our liability arising from, or in any way connected to, its obligation under this DPA.
7. TERM AND TERMINATION
7.1 Term. This DPA shall commence on the first day the Terms are effective and shall continue in full force and effect until the termination of the same Terms.
7.2 Termination in case of breach. This DPA may be immediately terminated by a Party if the other Party breaches any material obligation thereof and fails to remedy such breach within 10 (ten) days after receiving a written notice from the non-defaulting Party requiring it to remedy the breach.
Exhibit A - List of Sub-Processors
|
Name |
Activity |
Country |
|
Amazon Web Services, Inc. |
Cloud Infrastructure (Application & Database Servers etc.) |
United States of America |
|
Zendesk Inc |
Customer Service Management Software |
United States of America |
|
Google LLC (Google Cloud Platform) |
Cloud Infrastructure (Application & Database Servers etc.) |
United States of America |
|
Mailchimp |
Email Marketing |
United States of America |
|
Zoho Corporation |
Client Relationship Management / Office Suite |
India |