Last Modified: 2022-03-09
PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING THE SERVICES
1.GENERAL
MAYA INSIGHTS P.C.(“Maya Insights“) provides its Services subject to the acceptance of the following Terms of Service Agreement (the “Terms”) and/or of any executed Order Form (“Order Form”).
These Terms in conjunction with any executed Order Form govern the purchase and use of Maya Insights Service(s) and shall constitute the entire agreement with you. To be eligible to use Maya Insights Service(s), you must indicate your acceptance to these Terms or to execute an Order Form that refers to these Terms.
By accepting these Terms or by executing an Order Form that refers to these Terms you agree to be bound by them and you are indicating that you have read and agree with Maya Insights Privacy Policy (“Privacy Policy“) and Data Processing Agreement (“DPA”) and any other related terms and conditions located on Maya Insights Website, all of which are incorporated herein by this reference. If you do not agree to these Terms, you should not use the Services.
In this Terms, “you” “your” and “Client” will refer to you. If you are registering for a Maya Insights account or executing any Order Form on behalf of a legal entity or organization or Client’s Affiliates you agree to these Terms on their behalf and representing to Maya Insights that you are authorized to enter into these Terms and bind that entity or organization or Client’s Affiliates.
In the event that these Terms conflict with the provisions of any Order Form, these Terms shall prevail unless otherwise agreed and signed in writing by both parties.
These Terms also apply to any Free plans and Beta Services offered by Maya Insights from time to time such as without limitation free trial periods, demos, beta access to the services, pilot, limited release services (“Free and Beta Services”). Free and Beta Services are optional and provided solely for the internal evaluation during the period designated by Maya Insights (or if not designated, 30 days) and may be subject to additional terms agreed between the parties. If Client uses any Free plans (such as Demos, free trial periods) and does not purchase a subscription before the end of such plans, these Terms and any services provided under the Free plans will expire at the end of the subscription period of Free plans. Free and Beta Services are subject to various limits as defined by Maya Insights from time to time. Maya Insights may suspend or terminate at any time the Free and Beta Services for any reason and doesn’t provide any representations, warranties or indemnities for the Free and Beta Service(s) which may exhibit inconsistencies, errors, might be incomplete and contain features that might never be released.
2. DEFINITIONS
“Affiliates” means any entity that, directly or indirectly, controls, is controlled by or is under common control with the Client, where “control” means the ownership of more than 50% of the outstanding shares or securities representing the right to vote in the election of directors or other managing authority of such entity;
“Authorized User” means a user who is authorized by Client to use or access the Service(s) and was supplied with a unique username and password by Maya Insights;
“Client” means the company or other legal entity accepting these Terms or executing an Order Form, and Affiliates of that company or entity;
“Client’s Data” means any data, content and other material, provided or made available or imported by the Client from Data Sources (including data of Client’s end users) and uploaded into the Software as a result of the use of the Service(s), or as otherwise provided by Client or Clients’ Affiliates in accordance with these Terms;
“Data Destination” means a destination to which Client’s Data is exported from the Service(s) for Client’s further use;
“Data Source” means a digital source from which Client’s Data is imported to be used in the Service(s);
“Documentation” means Maya Insights’s technical and functional documentation for the Service(s), prevailing at the time, which is made available to the Client;
“Effective Date” of these Terms means the date which is the earliest of (a) Client’s acceptance of these Terms, on-line registration or order process through the Website or (b) the effective date of the first Order Form;
“Free and Beta Services” means the Service(s) or other products or features made available by Maya Insights to Client on an unpaid trial, demo or free basis or beta access to the Service(s) or pilot or limited release services which are subject to the limitations set by Maya Insights.
“Agency” a company that is using the Service(s) to provide media or marketing services or other type of services or products to its clients;
“Order Form” means an order form or other similar document used for ordering and purchasing the Service(s) (including online form) containing the pricing, the subscription term and other specific terms, that is signed or electronically accepted by Client from time to time (including if Service(s) were ordered online).Order Forms shall be deemed incorporated herein by reference;
“Professional Services” means the professional services provided to Client by Maya Insights, specified on the Website or in any applicable Order Form issued pursuant to these Terms, including but not limited to implementation services, training services, warehousing, business intelligence, data presentation, integrations, consulting services, marketing services;
“Service (s)” shall mean data warehouse and online analytics service provided by Maya Insights to the Client (including any software as a service, API’s and documentation that includes upgrades and updates thereto made available to the Client pursuant to these Terms) (all of them “Software”) when the Client have signed up for using it at Maya Insights’s Website (subject to payment or for use during a free plan) or as described in any Order Form;
“Subscription Fees” means the fees for the Service(s) and/or the Professional Services specified on the Website or in any Order Form;
“Subscription Period” means, with respect to the applicable Service(s), collectively, the initial subscription term once accepting online the Service(s) or as set forth in the applicable Order Form and each renewal term, if applicable;
“Website” means https://www.mayainsights.com and any other related website of Maya Insights as communicated from time to time.
3. THE SERVICE(S)
3.1 Use of the Service(s). Subject to the acceptance of these Terms and/or any Order Form and full payment of relevant Subscription Fees (as defined below or the Website or in the Order Form), Maya Insights shall make the Service(s) available to Client in accordance with these Terms and for the prescribed Subscription Period. Maya Insights hereby grants to Client a non-exclusive, non-transferable, non-sublicensable right to access and use the Service(s) solely for Client’s own internal business purposes as permitted by and subject to these Terms. If Client is an Agency, Client may use the Service(s) and/or the Professional Services to provide services to its underlying clients, subject to any applicable restrictions under Section 3.4, and, if available, permit its clients to use the Maya Insights platform. Any charges from a Data Source owner, shall be the responsibility of the Client.
3.2 Professional Services. Maya Insights offers additional Professional Services and optional features that may be used with or without the Service(s),which are subject to these Terms and additional Fees. Client shall subscribe or request the additional Professional Services through the Website or an Order Form. The specific details, scope, duration and other terms of the Professional Services to be performed might be determined on a per-project basis and any additional terms that apply to their use shall become an integral part of these Terms. Any changes to the Professional Services will be in effect by written mutual agreement of the Parties.
3.3 Additional Data Source. Upon Client’s request,and subject to Maya Insights’s consent and payment of additional fees as and if applicable, additional Data Sources may be added during the Subscription Period.
3.4 Restrictions. Client may not use the Service(s) in any manner or for a purpose other than for its own business purpose and as expressly permitted by these Terms.Nothing in these Terms, obligates Maya Insights to provide the Client with any copies or computer programs or codes of the Service(s) to the Client. The Client shall not: (i) distribute, license, sublicense, sell, lease rent or otherwise make the Service(s) available to any third party except if otherwise agreed between the parties; (ii) make available or disclose the user authentication or security of the Service(s) or any host, network, or account related thereto; (iii)if the Client is an Agency, directly or indirectly, export data to a client’s Data Destination; (iv) copy any ideas features, functions or graphics of the Service(s) or translate, disassemble, alter, reverse-engineer or otherwise modify any parts of the Service(s); (v) infringe the intellectual property rights of any entity or person; (vi) interfere with or disrupt the Maya Insights Software or Maya Insights systems used to provide or host the Service(s), or other equipment or networks connected to the Service(s); (vii) use the Service(s) with a purpose to create a competitive product or service or to build a product using or copying the ideas, features, functions or graphics of the Service(s); or (viii) use the Service(s) in breach of any with applicable law;or (ix) except in the case of an Agency and/or as otherwise agreed between the Parties, create multiple accounts to simulate or act as a single account or otherwise access the Service(s) in a way that intends to avoid incurring Subscription Fees (x) collect, process, store or transmit into the Service(s) any Client’s Data in violation of any applicable laws or regulations, privacy policies, agreements or other obligations the Client may enter with its’ end users.
3.5 Selection of Data Sources and Data Destinations. Client is responsible for selecting and configuring its Data Sources and Data Destinations and for any other third-party products that chooses to connect with the Service(s) and in no case Maya Insights shall be responsible for any of these Data Sources, Data Destinations and third-party product, their technologies or how they use Client’s Data. Any such relation is governed with a separate agreement directly between the Client and the Data Sources, the Data Destinations and third party products, not binding for Maya Insights.
3.6 Set-up Services, Support, Service Quality. At the implementation stage and during the applicable Subscription Period, Maya Insights may provide to Client, set-up, training, support and quality services which might be required by the Client subject to any additional fees agreed between the Parties. Maya Insights shall provide Client with Service(s) support as follows: Client can submit support inquiries through [email protected]. Maya Insights support hours are 09.00 to 17.00 EET, Monday to Friday. Set-up services and support and the service quality shall comply with reasonable market practice.
3.7 Suspension of Service(s). In addition to such other applicable remedies, Maya Insights at its absolute discretion may suspend or terminate Client’s access to the Service(s) or to any portion of it or to the Professional Services without any in advance notice, if Client breaches any of the Terms herein and without limitation if (a) Client breaches any of the restrictions of clause 3.4 above herein (b) to prevent harm to other clients, business partners or third parties (c) to preserve the security, availability or integrity of the Service(s) (d) for any reason that makes subject Maya Insights or any third party to liability (e) Client’s Subscription Fees are overdue (f) in case that at the reasonable opinion of Maya Insights it could violate applicable law (g) if at the reasonable opinion of Maya Insights the Service(s) is used by unauthorized persons (h) for any other reason at the absolute discretion of Maya Insights. Maya Insights may notify in advance the Client where practicable and in case the issue requiring suspension is resolved, Maya Insights may restore Client’s access to the Service(s) or the Professional Services in accordance with these Terms.
4. ACCOUNT REGISTRATION
4.1 Client Account. As part of the registration process, Client will identify login credentials for Client’s account. Client shall appoint one person of contact for the use and management of the Services including the creation of passwords and usernames. Client will safeguard all user authentication credentials in its possession or under its control. Client shall be responsible for the acts or omissions of any person who accesses the Service(s) using passwords or access procedures provided to or created by Client. When registering an Account, Client must provide true, accurate, current and complete information about himself as requested during the Account creation process. Client must also keep that information true, accurate, current and complete after the creation of the Account.
4.2 Authorized Users Only. Subject to Maya Insights’ consent, the Client may allow any Authorized User to use the Service(s) and/or the Professional Services.Client shall define the level of accesses of its’ Authorized Users and shall be liable for any activities of its Authorized Users. Client and it’s Authorized Users shall be responsible for maintaining the confidentiality of any login, password, authentication credentials and account information. Client will safeguard that all user authentication credentials are in its possession or under its Authorized Users control. Client is responsible for all activities that occur under its account, including without limitation any activity of its’ Authorized User, any unauthorized access and shall use reasonable efforts to prevent any unauthorized user of the Service(s) and/or the Professional Services and will immediately notify Maya Insights of any unauthorized use of which Client becomes aware or if Client’s account is lost or stolen.
5. CLIENT’S OBLIGATIONS
5.1 Client’s Responsibility. Client (a) shall be responsible for all activities that occur under Client’s Account and (b) shall be solely responsible to obtain and maintain any equipment and ancillary services needed to connect to, access or otherwise use the Service(s) and/or the Professional Services. Client will (c) ensure that Client and its Authorized Users’ use of the Service(s) and/or the Professional Services complies with these Terms.
5.2 Consents. Client hereby represents and warrants that it has made all disclosures and has all rights, consents and permissions necessary to use its Client’s Data with the Service(s) and/or the Professional Services and grants to Maya Insights the rights in section 5.3 (Client’s Data) all without violating or infringing any data privacy or other laws, third party rights (including intellectual property, publicity or privacy rights) or any terms or privacy policies that apply to Data Sources, Data Destinations or Client’s Data. Client shall be responsible for any consents and notices required to permit (a) Client’s use of the Service(s) and/or the Professional Services and (b) Maya Insights accessing, storing, and processing of data provided by Client (including Client’s Data, if applicable) under these Terms and any applicable Order Form.
5.3 Client’s Data. All Client’s Data is, or shall be, and shall remain the property of Client. Client hereby grants Maya Insights a non-exclusive, non-transferable, non-sublicensable, worldwide, royalty-free license to use, collect, analyse, transfer and process the Client Data and other information related to the provision, use and performance of the Service(s) and/or the Professional Services or any related systems and softwares, for the sole purpose of Maya Insights providing the Service(s) and/or the Professional Services and support to Client under these Terms and any applicable Order Form. Maya Insights shall be free (during and after the term hereof) to (i) subject to any confidentiality obligations, use such information and data for improvement of its’ Service(s) and/or the Professional Services and to develop, enhance, diagnose and correct any matters in connection with them, and (ii) disclose such data solely in aggregated or other de-identified form in connection with its activities.
5.4 User’s Data. In order to perform its obligations under these Terms and/or any Order Form, Maya Insights may collect and process personal data necessary to administer Client’s access and use of the Service(s) such as name, surname, email address, authentication credentials and other data related to the use of the Service(s) and/or the Professional Services. Maya Insights will be the Controller of the data in such a case and responsible for the processing activities related to the data. Maya Insights processes these personal data in accordance to it’s privacy policy.
6. FEES AND PAYMENTS
6.1Subscription Fees. Unless otherwise specified in an Order Form, Client shall pay to Maya Insights the fees for the Service(s) as these are described on the Website during subscription for the Service(s) and/or for the Professional Services. Additionally, Client shall pay any charges from Data Sources owners and for all third party hardware, software, service and/or other costs Client may incur in order to access the Service(s) and/or the Professional Services and Client account. The Service(s) and/or the Professional Services are non-cancellable and fees non-refundable except if otherwise agreed between the Parties. In this respect Client will not receive full or partial refunds for Subscription Periods purchased. Client shall have no right to withhold or reduce the fees or set off any amount against fees owed for alleged defects in the Service(s) and/or the Professional Services.
6.2 Payment. Subscription Fees shall be paid monthly by the Client and/or as otherwise agreed by the Parties in an Order Form.. Client shall pay the Subscription Fees set forth in the Website or in an Order Form by credit card or by invoice and/or by any other means defined by Maya Insights from time to time. Unless expressly provided otherwise in an Order Form, all amounts payable under these Terms are denominated in Euro and Client will pay all such amounts in Euro. Without limitation to any other remedies available for Maya Insights, any amount not paid when due may be subject to finance charges calculated on the basis of 1.5% of the unpaid balance or at the highest lawful rate allowed by relevant laws. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. Client shall be obliged to reimburse any legal or other professional fees, charges and other costs incurred by Maya Insights for any debt collection under this section. .
6.3 Disputes. If Client believes that Maya Insights has billed Client incorrectly, Client must contact Maya Insights no later than fifteen (15) days after receipt of any invoice and if Maya Insights determines that Subscription Fees were incorrectly invoiced, then Maya Insights will issue a credit equal to the agreed amount.
6.4 Taxes. Subscription Fees do not include local, state, federal, or foreign taxes (e.g., value-added tax, withholding, sales, or use taxes), or fees, duties, or other governmental charges of any jurisdiction resulting from these Terms (“Taxes”). Client is solely responsible for paying all applicable Taxes incurred as a result of Client’s purchase of the Service(s) and/or the Professional Services. Maya Insights may calculate taxes based on the billing information Client provides.
6.5 Fee Increase. Subscription Fees might be increased by Maya Insights and in such a case which will be effective at the beginning of the next Subscription Period unless specified otherwise in an Order Form. Maya Insights will notify Client of any increase prior to it becoming effective. Client acknowledges that expiration of any demo or discount or incentive programs to which Client was previously entitled do not constitute a fee increase.
6.6. Non-payment. If Client fails to pay in full when due, Maya Insights shall have the right to suspend access to the Service and/or the Professional Services without advanced notice and without any liability from such suspension.
7. TERM, RENEWALS AND TERMINATION
7.1 Term. Unless otherwise set forth in any applicable Order Form, these Terms will commence on the Effective Date and will remain in effect throughout the Subscription Period, including any renewal periods, unless earlier terminated in accordance with these Terms. At the conclusion of the Subscription Period, these Terms will automatically renew for additional periods as detailed below in section 7.2 or in the respective Order Form unless earlier terminated as set forth in these Terms.
7.2 Renewals. Subscription Periods shall be automatically renewed for additional successive periods similar to the initial Subscription Period unless either party provides written notice of non-renewal prior to the end of the then current Subscription Period.
7.3 Termination for material breach. In addition to any other remedies it may have, Maya Insights shall have the right to immediate termination without any notice of these Terms, of the Service(s) and/or of Professional Services to Client in case of failure to pay any fees under these Terms. Either Party may terminate these Terms if the other Party does not cure its material breach of these Terms within 30 days of receiving written notice of the material breach from the non-breaching Party. A breach of these Terms by an Authorized User will be treated as a breach by Client. Whereas these Terms are terminated due to material breach by the Client, then Client shall pay in full all remaining fees payable through the remainder of the Subscription Period or of any outstanding Order Form or, if Client has prepaid any fees, then those fees are non-refundable. If these Terms are terminated by Client due to a material breach by Maya Insights, then Maya Insights shall refund Client on a pro-rata basis any prepaid fees covering the remainder of the Subscription Period or any outstanding Order Form after the effective date of termination.
7.4 Termination without cause. Each Party may terminate these Terms and any Subscription Period by providing in advance written notice prior to the end of the Subscription Period except if otherwise agreed in an Order Form. Any such termination shall be deemed effective on the last day of the Subscription Period.
7.5 Other reasons. Either Party may terminate these Terms upon written notice if subject to the relevant laws, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within thirty (30) days.
7.6 Effects of Termination or expiration of Terms. Upon termination or expiration of these Terms, all rights and obligations, apart from any accrued payment obligations, shall immediately terminate and Client shall cease all use of the Service(s) and/or of the Professional Services and delete, destroy, or return all copies of the Documentation in its possession or control.
7.8 Surviving Sections. The following provisions shall survive termination or expiration of the Terms: (i) Restrictions; (ii) Intellectual Property; (iii) Fees and Payment; (iv) Confidentiality; (v) Representation and Warranties; (vi) Indemnification; (vii) Surviving Sections; (viii) Limitation of Liability; and (ix) any other provision of these Terms that must survive to fulfill its essential purpose.
8. AMENDMENTS OF TERMS AND MODIFICATION OF SERVICE(S)
8.1 Amendments of Terms: Maya Insights may update these Terms from time to time. If Maya Insights does revise these Terms, the revised Terms will supersede prior versions. Unless otherwise indicated, revisions will be effective upon the effective date indicated at the top of these terms. Maya Insights will use reasonable efforts to notify Client of such revisions either via email or by posting notice of such changes on its website, or by any other reasonable means. However, Client’s continued use of the Service(s) and/or the Professional Services shall constitute Client’s consent to such updated Terms and binding acceptance of such changes. If you don’t agree to the revisions you should stop using the Service(s) and/or the Professional Services and Maya Insights is not obliged to provide Client with the Service(s) and/or the Professional Services.
8.2 Modification of the Service(s) and/or the Professional Services. The Client acknowledges that the Services(s) and/or the Professional Services may be made available in free or paid versions and that not all functions and features of the Service(s) and/or the Professional Services may be available in each version. Maya Insights reserves the right to modify, alter, change, remove or modify the Service(s) and/or the Professional Services or portions or functionalities of the Service(s) and/or the Professional Services at any time, including reducing the number of sub-accounts without any liability to the Client or any third party. It is hereby declared that during the Subscription Period the core functions of the Service(s) and/or the Professional Services may be materially diminished, reduced or eliminated. In such a case Client shall be automatically entitled (as a part of and limited to existing Terms) to any functionality that is (as determined by Maya Insights, acting reasonably) direct replacement or succession of any functionality removed from or replaced in the Service(s) and/or the Professional Services without any payment of additional Subscription Fees provided that such functionality is within the scope of its subscription through the Website or of any Order Form. In case that equivalent functionality is not provided, Client shall have the right to terminate these Terms in accordance with section 7.3 herein.
9. PERSONAL DATA
9.1 Personal Data Protection. Maya Insights may process personal data when providing the Service(s). Subject to the type of processing referred to section 5.4 (User Data), Maya Insights shall be regarded as the Processor of such data and the Client as the Controller of the data. In such a case, the provisions of the Data Processing Appendix related to the protection of Personal Data (as defined in the GDPR) under the EU General Data Protection Regulation (“GDPR”), and possibly other data protection laws, shall apply to any Personal Data processed under these Terms. The terms of the Data Processing Appendix are incorporated herein by reference and shall constitute an integral part of these Terms.
10. SECURITY
10.1 Security Safeguards. Maya Insights shall maintain commercially reasonable physical, and technical safeguards for protection of the Service(s) and/or of the Professional Services and the security of Client’s Data and personal data in general. Maya Insights shall not (a) disclose any data except as compelled by applicable law or as Client expressly authorize in writing, or (b) access any data except to provide the Service(s) and/or the Professional Services and prevent or address service or technical problems, or at Client’s express request in connection with client’s support matters. In the event Maya Insights is compelled by applicable Law to disclose any data, a notice shall be provided to the Client thereof if permitted by applicable Law.
11. INTELLECTUAL PROPERTY
11.1 Maya Insights Ownership. Neither party grants the other any rights or licenses not expressly set out in these Terms. Maya Insights or its licensors shall remain the sole owner, retain and reserve all rights, title and interest without limitation in and to the Service(s), the Professional Services, any and all Maya Insights Website(s), software, to any and all copyrights, trademark rights, patent rights, moral rights, trade secrets, database rights, any technology, templates, formats and dashboards, integrations, integration with Data Sources or Data Destinations including any modifications or improvements to these items made by Maya Insights in order to provide the Service(s) and/or the Professional Services, and all graphics, marketing material, user interfaces and any documentation, any improvements, design contributions or derivative works thereto, and any knowledge or processes related thereto and/or provided hereunder, Maya Insights trademarks and service marks, and all related worldwide intellectual property rights, whether registered or not and whether registrable or not (the “IP Rights”). Except as otherwise granted herein, these Terms shall not in any way transfer or convey to the Client any Maya Insights proprietary rights, titles or interest related to the IP Rights and any rights not explicitly stated herein are reserved to Maya Insights and its licensors.
11.2 Client’s Rights. Except for the limited rights expressly granted in these Terms, Client retains all intellectual property and other rights in Clients Data provided to Maya Insights and Maya Insights has no right, title or interest in any personally identifiable information contained in or related to Client’s Data. Maya Insights may generate users data to operate, improve and support the Service(s) and/or the Professional Services and for other lawful business practices, such as analytics, benchmarking and reports. In case the Client provides feedback or suggestions regarding the Service and/or the Professional Services or other Maya Insights offerings, Maya Insights may use the feedback or suggestions without limitation or obligations.
11.3 Feedback. To the extent Client provides any suggestions, enhancement requests, recommendations, comments or other feedback (“Feedback”) about the Service(s) and/or the Professional Services, the Feedback will not be considered confidential or proprietary, and Maya Insights shall have the right to use and include any such Feedback to improve the Service(s) and/or the Professional Service(s), or for any other purpose and Maya Insights owns all such Feedback and Client assigns all such rights to Maya Insights.
11.4 Deliverables. From time to time during the Subscription Period, Maya Insights may prepare, develop or author customize documents, designs, software, programs, computer documentation and other tangible materials (“Deliverables”) for the Client pursuant to agreement between the Parties. Maya Insights shall own and retain all rights, title and interest in and to such Deliverables and hereby grants to the Client a limited, revocable, non-transferable, non-sublicensable, non-exclusive license to use such Deliverables for internal use only during the Subscription Period. Maya Insights may reuse any Deliverables, provided that such use does not reveal any personal data.
12. CONFIDENTIALITY
12.1 Restrictions on Disclosures. Each Party shall maintain all information of the other Party which is treated by such other Party as proprietary or confidential (referred to herein as “Confidential Information”) in confidence, and shall not disclose, divulge or otherwise communicate such confidential information to others, or use it for any purpose, except pursuant to, and in order to carry out, the terms and objectives of these Terms, and each party hereby agrees to exercise every reasonable precaution to prevent and restrain the unauthorized disclosure of such confidential information by any of its Affiliates, directors, officers, employees, consultants, subcontractors, sublicensees or agents. Client agrees to hold in confidence and not to use or disclose any of Maya Insights’s Confidential Information except solely for the purpose of Client’s authorized use of the Service(s) and/or Professional Services in accordance with these Terms. “Confidential Information” means without limitation the pricing terms contained in these Terms and any and all non-public data or information, including all third party data or information, disclosed by or on behalf of Maya Insights to Client in connection with the Service(s) and/or the Professional Services.
12.2 Exclusions. Notwithstanding the foregoing, confidential Information of a party shall not include information which: (a) was lawfully known by the receiving party prior to disclosure of such information by the disclosing party to the receiving party; (b) was or becomes generally available in the public domain, without the fault of the receiving party; (c) is subsequently disclosed to the receiving party by a third party having a lawful right to make such disclosure; (d) is required by law, rule, regulation or legal process to be disclosed, provided that the receiving party making such disclosure shall take all reasonable steps to restrict and maintain to the extent possible confidentiality of such disclosure and shall provide reasonable notice to the other party to allow such party the opportunity to oppose the required disclosure; or (e) has been independently developed by employees or others on behalf of the receiving party without access to or use of disclosing party’s information as demonstrated by written record. Each party’s obligations under this Section shall extend for a period of five (5) years from termination or expiration of these Terms. Disclosure of any confidential information by the staff members or agencies hired by any Party shall be deemed disclosure of such confidential information by such Party, which Party shall be held liable for breach of this Agreement. This Section shall survive the termination of this Agreement for any reason.
12.3 Disclosure Required By Law. If either Party is compelled by law or legal process to disclose Confidential Information of the other Party, it shall provide the other Party with prompt prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other Party’s expense, if this Party wishes to contest the disclosure.
13. REPRESENTATIONS AND WARRANTIES
13.1 Client Representations and Warranties. Client represents and warrants to Maya Insights that: (i) Client has the requisite power and authority to enter into these Terms and to perform all of its obligations under these Terms, (ii) for the purposes of receiving the Service(s) and/or Professional Services, all Account information that Client has provided to Maya Insights is complete and accurate, and such Account information shall be kept updated and accurate throughout the Subscription Period, (iii) in case Client makes use of any software of third party a written license agreement permitting Client to use such software in connection with the Services and/or the Professional Services is in place and Maya Insights shall have no responsibility for any liability or any problems caused to the Services and/or the Professional Services in connection with Client’s use of any such software, and (iv) Client is and shall continue to be compliant with all privacy laws, information security standards, data protections laws, statutes, acts, regulations and directives relating to its use of the Services and/or the Professional Services through the Subscription Period.
13.2 MAYA INSIGHTS REPRESENTATIONS. CLIENT EXPRESSLY UNDERSTANDS AND AGREES THAT THE SERVICE(S) AND PROFESSIONAL SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND MAYA INSIGHTS AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND MAKE NO EXPRESS, IMPLIED, STATUTORY OR OTHER WARRANTIES, REPRESENTATIONS OR GUARANTEES OF ANY KIND IN CONNECTION WITH THE SERVICE(S) OR THE PROFESSIONAL SERVICES, INCLUDING WITHOUT LIMITATION ANY WARRANTY, REPRESENTATION OR GUARANTEE THAT (i) THE SERVICE(S) OR THE PROFESSIONAL SERVICES WILL BE UNINTERRUPTED, ERROR FREE, FREE OF HARMFUL COMPONENTS, (ii) THAT ANY DATA OR RESULTS, INCLUDING WITHOUT LIMITATION CLIENT CONTENT, WILL BE SECURE OR NOT LOST OR DAMAGED (iii) THAT THE SERVICE(S) OR PROFESSIONAL SERVICES WILL MEET CLIENTS REQUIREMENTS (iv) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (v) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL OBTAINED BY CLIENT THROUGH THE SERVICE WILL MEET CLIENT’S EXPECTATIONS, AND (vi) ANY ERRORS IN THE SERVICE WILL BE CORRECTED. CLIENT HEREBY ACCEPTS AND AGREES THAT IF ANY MATERIAL IS DOWNLOADED OR OBTAINED IN ANY OTHER WAY THROUGH THE USE OF THE SERVICE(S) IS DOWNLOADED AT CLIENT’S OWN WILL AND RISK, AND MAYA INSIGHTS SHALL NOT BE RESPONSIBLE FOR ANY DAMAGE TO CLIENTS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL;
13.3 Exclusions. Any warranties specified herein, shall not apply to the extent: (i) the Service(s) and/or the Professional Services is not being used in line with these Terms and/or Order Form and/or any Documentation; (ii) any non-conformity is caused by third party products, content or service being accessed through the Service(s) and/or the Professional Services that are identified as third party products, content or service not part of the Service(s) and/or the Professional Services (e.g. a Data Source); or (iii) the Service(s) and/or the Professional Services being used was provided as Free and Beta Services.
13.4 Remedies. To the extent permitted by law, Client’s sole and exclusive remedy for a breach of warranty is limited to rectification of the non-conforming Service(s) or re-performance of the Professional Service(s), as applicable, or if correction or re-performance is not commercially reasonable as warranted within thirty (30) days, termination of the applicable Terms or Order Form, as applicable and a refund of any prepaid unused fees for the remainder applicable Service(s) or Professional Services.
14. LIMITATION OF LIABILITY
14.1 EXCLUSION OF LIABILITY.CLIENT EXPRESSLY UNDERSTANDS AND AGREES THAT MAYA INSIGHTS AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO CLIENT FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL,DIRECT OR INDIRECT PROFITS, INVESTMENTS, INTERRUPTION IN USE OR AVAILABILITY OF DATA OR OTHER INTANGIBLE LOSSES (EVEN IF MAYA INSIGHTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE OR THE PROFESSIONAL SERVICES; (ii) ANY CLAIM, CAUSE OF ACTION, BREACH OF CONTRACT OR ANY EXPRESS OR IMPLIED WARRANTY, UNDER THESE TERMS OR OTHERWISE, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT (iii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH, FROM OR AS A RESULT OF THE SERVICE(S) AND/OR THE PROFESSIONAL SERVICES; (iv) UNAUTHORIZED ACCESS TO OR ALTERATION OF CLIENTS DATA; (v) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE(S) OR PROFESSIONAL SERVICES; OR (vi) ANY OTHER MATTER RELATING TO THE SERVICE(S) OR PROFESSIONAL SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU.
NOTWITHSTANDING ANY OTHER PROVISION IN THESE TERMS, THE MAXIMUM AGGREGATE LIABILITY OF MAYA INSIGHTS, AND ITS OFFICERS, DIRECTORS, EMPLOYEES, ADVISORS, REPRESENTATIVES, LICENSORS, RESELLERS AND THIRD PARTY SERVICE PROVIDERS, TO CLIENT AND ALL THIRD PARTIES, UNDER ANY CAUSE OF ACTION, SHALL NOT EXCEED THE ANNUAL FEES ACTUALLY RECEIVED BY MAYA INSIGHTS FROM CLIENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST OCCURRENCE OF AN EVENT GIVING RISE TO A CLAIM. THIS IS AN AGGREGATE LIMIT AND THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT. CLIENT ACKNOWLEDGES THAT THIS FOREGOING LIMITATION OF LIABILITY IS AN ESSENTIAL PART OF THESE TERMS AND ABSENT SUCH LIMITATION MAYA INSIGHTS WOULD NOT PROVIDE THE SERVICES TO CLIENT OR ENTER INTO THESE TERMS.
IF THE SERVICE(S) INCLUDE FREE AND BETA SERVICES, THEN THE FOLLOWING TERMS SHALL APPLY: NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, DURING ANY FREE AND BETA SERVICES THE SERVICE IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND MAYA INSIGHTS SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICE FOR SUCH PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE MAYA INSIGHTS’S LIABILITY WITH RESPECT TO THE SERVICE(S) PROVIDED DURING THE FREE AND BETA SERVICE SHALL NOT EXCEED EUR 100.
15. INDEMNIFICATION
15.1 Indemnification. Each Party (the “Indemnifying Party“) shall indemnify and hold harmless at its sole cost the other Party, its Affiliates, and their respective officers, employees, consultants, agents and representatives (the “Indemnified Parties“) against any and all Claims which may be asserted against or suffered by any of the Indemnified Parties, alleging that the use of the Service(s) or Professional Services as permitted hereunder infringes or misappropriate any patent, trademark or copyright or trade secret rights and will indemnify the other Party for any damages finally awarded against it (or any settlement approved by either party). The obligations hereunder shall apply against the Client regardless of whether such damage is caused by the conduct of Client by the conduct of a third party or Authorized User using Client’s access credentials.
15.2 Excluded claims. The abovementioned obligations do not apply to any Service(s) or Professional Services or portions or components if the alleged infringement or misappropriation results from use of Service(s) or Professional Services (i) not supplied by Maya Insights (ii) made in whole or in part in accordance to Clients’ specifications, or (iii) combined with other products, processes or materials of Client’s business where the alleged infringement would not have occurred without such combination (iv) in conjunction with any other software or service not provided by Maya Insights (v) or to Free and Beta Services.
15.3 Intellectual Property Claims. If the use of the Service(s) or Professional Services by Client has become, or is likely to become, the subject of any claim of infringement, Maya Insights may at its option and expense (i) allow to Client the right to use and receive the Service(s) or Professional Services as set forth in these Terms; (ii) substitute or change the Service(s) or Professional Services into non-infringing; or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate these Terms with the Client or the applicable Order Form and refund Client on a pro-rata basis any prepaid fees covering the remainder of the Subscription Period or of the applicable Order Form(s) after the effective date of termination. This Section states Maya Insights’s entire liability and Client’s exclusive remedy for infringement or misappropriation of intellectual property of a third party.
15.4 Procedure. Each party’s indemnification obligations are conditional to the (a) prompt notification of the indemnifying party of any claim or potential claim in writing; and (b) cooperation with the indemnifying party in order to defend any claim. Subject to the indemnifying party’s right to control the defense of any third-party claim, the indemnified party shall have the right to be present in the defense with counsel of its choice at its own cost and expenses. The indemnifying party shall be allowed to enter into settlement with any third-party claim solely with the prior written consent of the indemnified party, which shall not be unreasonably withheld. Neither Party shall undertake any action in response to any infringement or misappropriation, or alleged infringement or misappropriation that is prejudicial to the other Party’s right.
16. GENERAL PROVISIONS
16.1 Entire Agreement. These Terms and/or any Order Form constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior representations, agreements and understandings, written or oral. No Order Form or other form signed between the Parties will modify, supersede, add to or in any way vary these Terms except if otherwise agreed in written between the Parties.
16.2 No Waiver. Any failure of Maya Insights to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
16.3 Severability. If any part of these Terms is found invalid or unenforceable by a court of competent jurisdiction, the remainder of the Terms shall be interpreted so as to reasonably effectuate the intention of the parties and shall not affect the validity and enforceability of any remaining provisions.
16.4 Survival. Any provisions of these Terms that should, by their nature survive termination and/or expiration, shall and do survive such termination and/or expiration.
16.5 Assignment. Any rights or obligations conferred under these Terms or any Order Form may not be assigned or otherwise transferred without Maya Insights prior written consent, which consent shall not be unreasonably withheld. These Terms shall be binding upon and will insure to the benefit of the parties and their respective successors and permitted assigns. Any assignment in violation of the foregoing will be null and void.
16.6 No Legal Advice; Reliance. No part of these Terms are intended or shall be construed as legal advice. Maya Insights shall not be liable for any errors or omissions in the content of these Terms or for any actions taken in reliance thereon.
16.7 Governing Law and Jurisdiction. These Terms and/or the Order Form shall be governed by and construed in accordance with the laws of the Republic of Greece and any legal action or proceeding with respect to these Terms or Order Form must be brought in the courts of the Republic of Greece.
16.8 Good faith discussions. Parties shall attempt to settle with good faith negotiations all disputes arising out of or in connection with these Terms. Such negotiations shall commence within two weeks from the date of written request from a Party to the other. Both Parties agree and acknowledge that the commencement of such discussions shall not relieve either Party from its continued duties and obligations under these Terms, including but not limited to any payments due.
16.9 Force Majeure. In the event that either party shall be delayed or prevented from the performance of any obligation hereunder by reason of strike, labor trouble, inability to procure materials, power failure, government or judicial order, riot, insurrection, declared or undeclared war, terrorist act, pandemic, weather or other Act of God, or any other reason beyond such party’s control, then performance of such party’s obligations under these Terms shall be excused for the period of such delay. The party affected by Force Majeure shall provide notice to the other party of the commencement and termination of the Force Majeure event.
16.10 Notices. Any notice required to be given by either Party in writing under these Terms shall be deemed to have been duly received (i) on the day of delivery, if delivered personally; (ii) on the date of confirmation of receipt from the notified Party, if sent by email (although it should be noted that no notice of termination may be served solely over email); (iii) on the second working day after sending, if sent by reputable overnight courier (with delivery receipt obtained); or (iv) on the fifth working day after sending, if sent by registered or certified mail, to the address or email address of the recipient set forth in any Order Form (or to such other address or email address of the recipient notified to the sender by the recipient for the purpose of these Terms).
16.11 Non-solicitation of personnel. Neither Party will, during the period of these Terms and/or of any Order Form and for a period of one year after their termination or expiration, directly or indirectly, recruit, solicit or otherwise induce or attempt to induce any employee of the other party to leave the employment of the party, nor hire any such employee or individual independent contractor of the other.
16.12 No partnership. This Agreement shall not be interpreted or construed to create an association, joint venture, agency relationship, or partnership between the Parties or to impose any partnership obligation or partnership liability upon either Party. Neither Party shall have any right, power or authority to enter into any agreement or undertaking for, or act on behalf of, or to act as or be an agent or representative of, or to otherwise bind, the other Party.
16.13 Marketing.Subject to the compliance of each Party to any trademark usage requirements notified to it by the other Party, each Party may refer to the other Party as a client (for Maya Insights) and a vendor (for Client) and use the other Party’s logo as part of such reference. Upon subscription to these Terms and/or execution of an Order Form and payment of Fees, Maya Insights may either (i) issue a press release announcing the relationship between Maya Insights and Client; or (ii) submit a joint press release to Client for Client’s approval, such approval not to be unreasonably withheld or delayed. Client agrees to be a reference account for Maya Insights, provided however that Maya Insights will provide Client with reasonable notice and obtain Client’s consent before scheduling any reference calls.
16.14 Subcontractors. Maya Insights shall be entitled to engage subcontractors for the provision of the Service(s) or Professional Services without Client’s prior consent, and shall be liable for all acts and omissions of subcontractors, as for its own acts and omissions.