Last updated: 08 Oct 2021
THE FOLLOWING TERMS OF SERVICE (THE “TERMS OF SERVICE” OR THE “AGREEMENT”) GOVERNS THE USE OF Klimb’S SERVICE (“SERVICE”) BY ITS SUBSCRIBERS (“SUBSCRIBER” OR “YOU”). BY USING THE SERVICE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
“Agreement” means this Master Subscription Agreement.
“Order Form” means an ordering document.
“Services” means the products and services that are Purchased Services.
“Purchased Services” means Services that You purchase under an Order Form.
“We,” “Us” or “Our” means the legal entity of Klimb, whom You are contracting with.
“You” or “Your” means the legal entity for which you are accepting this Agreement and which has entered into Order Forms.
“User” means, an individual who is authorized by You to use a Service, for whom You have purchased a subscription (or in the case of any Services provided by Us without charge, for whom a Service has been provisioned), and to whom You (or, when applicable, We at Your request) have supplied a user identification and password (for Services utilizing authentication). Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
“Data” means electronic data and information entered into the Services by You, Your Personnel, or by any third parties acting on behalf of You or at Your request, including job applicants or recruiting agencies for the purpose of providing the Services.
“External Service” means any software used by Klimb in connection with the provision of the Service which is administered by a third party. External services include, but are not necessarily limited to, the following: DNS servers, hosting providers, email servers, and third-party applications.
“Uptime Percentage” means the value obtained by subtracting from 100%, the percentage of the total number of minutes in which the Service is Unavailable during a time period, except where such unavailability results from the Exclusions section below.
“Planned Downtime” means any instance where We intentionally cause the Service to be Unavailable, provided that (i) such instance is done for the purpose of updating, upgrading or maintaining the Service or its underlying infrastructure (for example, without limitation, operating system upgrades, hardware repairs, database backups, data centre moves, or the like); (ii) such instance occurs outside of normal business hours (9 am–7 pm (IST), Weekdays Monday–Friday, National holidays excluded; and (iii) in each such instance, We use all reasonable efforts to provide notice to You at least 48 hours in advance.
2. OUR RESPONSIBILITIES
2.1 Provision of Purchased Services. We will (a) make the Purchased Services available to You pursuant to this Agreement and any applicable Order Forms, (b) provide applicable support for the Purchased Services to You at no additional charge (c) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for (i) planned downtime (of which We shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, an act of government, flood, fire, earthquake, civil unrest, an act of terror, strike or other labour problem (other than one involving Our employees), Internet service provider failure or delay, External Service, or denial of service attack. (d) provide the Services only in accordance with applicable laws and government regulations.
2.2 Service Level Agreement. Email & Phone support will be available between 9:00 am & 7:00 pm (IST) on all weekdays (M-F). We respond within 24 hours for all issues reported during weekdays. KLIMB gives an uptime guarantee of 99.5% in a year. Downtime is defined by Service not available for more than 5 continuous minutes.
2.3 Protection of Your Data. We will maintain administrative and technical safeguards for the protection of the security, confidentiality, and integrity of Your Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification, or disclosure of Your Data by Our personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 6.3 (Compelled Disclosure) below, or (c) as You expressly permit in writing. We will maintain backups of Your Data on a daily incremental basis during the week and a full backup on the weekend.
3. USE OF SERVICES
3.1 Subscriptions. Unless otherwise provided in the applicable Order Form, (a) Purchased Services are purchased as subscriptions, (b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
3.2 Usage Limits. Services are subject to usage limits, including, for example, the quantities specified in Order Forms. Unless otherwise specified, (a) the Service may not be accessed by more than that number of Users specified in the Order Form, (b) a User’s password may not be shared with any other individual.
3.3 Your Responsibilities. You will (a) be responsible for Users’ compliance with this Agreement and Order Forms, (b) use the Services in accordance with all applicable laws and government regulations, (c) be responsible for the legality of Your Data, the means by which You acquired Your Data and Your use of Your Data with Our Services, (d) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Us promptly of any such unauthorized access or use, and (e) use the Service only for the purpose of Recruitment.
4. FEES & PAYMENT
4.1 Fees. In consideration of the Service provided, We shall be entitled to payments ( “Fees” ) as per Order Forms. Unless otherwise specified (a) All Fees are due in advance, (b) Payment obligations are non-cancelable, and fees paid are non-refundable, and (c) quantities purchased cannot be decreased during the relevant subscription term.
4.2 Invoice & Payments. We will invoice You in advance and in accordance with the Order Form. For all Fees, You will provide Us with a valid check, bank transfer, or alternative method reasonably acceptable to Us. You are solely responsible for providing Us with accurate and complete billing and contact information and for notifying Us of any changes to such information.
4.3 Overdue Charges. Late Fee payments may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
4.4 Taxes.You shall be responsible for any and all taxes, except those based on Our income. If You are obligated to collect or pay taxes on behalf of Us, You will deduct such amounts from Our payments and provide a valid tax exemption certificate authorized by the appropriate taxing authority.
4.5 Non-Payment. In the event of non-payment of Fees, We will give You 10 days prior notice that Your account is overdue, before suspending services to You.
5. PROPRIETARY RIGHTS & LICENSES
5.1 License to Services. Subject to the terms and conditions of this Agreement, We hereby grant You during the Term a non-exclusive, non-transferable, non-sublicensable license to access & use the Services.
5.2 Reservation of Rights. Except for the limited rights granted hereunder, We retain all rights, titles and interests, including all intellectual property rights, in and to the Services. You acknowledge that the license granted pursuant to this Agreement is not a sale and does not transfer title or ownership of the Services or a copy of the Services. All rights not expressly granted hereunder are reserved to Us.
5.3 Your Data. The data generated or stored by the use of the Service is solely owned by You and the same shall be always available to You. We have no rights over the said data at any time whatsoever. Subject to the terms and conditions of this Agreement, You grant Us a limited, non-transferable (except pursuant to Section 7.3 below) license to use Your data for the purpose of providing the Services.
5.4 Statistics. We may use aggregated, anonymized statistics for the purposes of customer service, product enhancements, or analytics.
5.5 License to Use Feedback. You grant to Us, a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Our Services any suggestion, enhancement request, recommendation, correction, or other feedback provided by You or Users relating to the operation of Our Services.
6. CONFIDENTIAL INFORMATION
6.1 Definition of Confidential Information. “Confidential Information” shall mean any information of a confidential or proprietary nature that is so designated or is apparently confidential by its very nature and is disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”) in any transaction connected with this Agreement. Confidential Information shall not include (a) information that is or becomes part of the public domain through no act or omission on the part of the receiving party, (b) was lawfully received/possessed by the receiving party prior to disclosure by the other party, or (c) is independently developed by the receiving party without access to the Confidential Information.
6.2 Protection of Confidential Information. Both Parties agree to hold the other party’s confidential information in strict confidence using, at the least, the same degree of care used to protect its own Confidential Information, such care, in no event it being less than reasonable care; Refrain from using such Confidential Information for any purpose not expressly permitted or outside the scope of this Agreement; Refrain from disclosing such Confidential Information to third parties without express written authorization from the disclosing party. However, either Party may disclose such Confidential Information if compelled by lawful authority to do so.
6.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
7. TERM AND TERMINATION
7.1 Term of Agreement. This Agreement takes effect on the date of the first Order Form referencing these terms and will remain in effect until all applicable Order Forms have expired or been terminated.
7.2 Term of Subscriptions. The term of each Service subscription will be described in the applicable Order Form. Except as otherwise described in an Order Form, subscriptions for a Service will automatically renew for additional periods equal in length to the expiring subscription term unless either party provides notice of non-renewal at least 30 days prior to commencement of the next renewal term. If the expiring subscription term is one year or longer, We will notify You of a pending auto-renewal at least 30 days prior to commencement of the next renewal term.
7.3 Continuity of Service.(a) Our business successor, if any, will continue to serve You as per the terms of this Agreement.
7.4 Termination. If either party commits a material breach or default in the performance of any of its obligations under this Agreement, then the other Party may terminate this Agreement, provided that the terminating Party gives the breaching or defaulting Party, a written notice of termination specifying the underlying breach or default within 30 days of discovery of such breach or default, and such breach or default remains uncured 30 days after the breaching or defaulting Party receives the notice.
7.5 Effect of Termination. Upon expiration or termination of this Agreement for any reason, the rights and access to the Services granted to You under this Agreement will immediately terminate, and both the parties shall discharge their obligations. If You terminate this Agreement pursuant to Section 7.4, We will provide You with a prorated refund of any prepaid Fees covering the period from the date of termination through the end of the Term. In no event will expiration or termination of this Agreement relieve You of any obligation to pay Fees payable for the period prior to the date of termination.
Further, on the effective date of termination of this agreement, we shall:
(i) Provide export files of Data stored on the Platform (in Excel digital format) to You, if You request this within thirty (30) business days of such termination.
(ii) No data or any copy thereof will be retained on the server or any other machine or media.
7.6 Survival. All terms and provisions of this Agreement, including any exhibits, which by their nature are intended to survive any termination or expiration of this Agreement, will so survive.
8. REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS
8.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
8.2 Our Warranties. We warrant that during an applicable subscription term (a) this Agreement and the Order Forms will accurately describe the Service, (b) We will not materially decrease the scope of the Services.
8.3 Your Warranties. You represent and warrant that You own the Data posted on or through the Services or otherwise have the right to grant the license set forth in this Section.
8.4 Disclaimer. Except as expressly provided herein, neither party makes any warranty of any kind, whether express, implied, statutory, or otherwise.
9. LIMITATION OF LIABILITY
9.1 Limitation of Liability. In no event shall the aggregate liability of either Party for all losses, liabilities, and damages arising out of or in connection with this Agreement, exceed the total amount paid by You hereunder for the Services giving rise to the liability in the twelve months preceding the first incident out of which the liability arose. The foregoing limitation will apply whether an action is in contract or tort and regardless of the theory of liability, but will not limit Your payment obligations under the “fees and payment” section above.
9.2 Exclusion of Consequential and Related Damages. Under no circumstances and under no legal theory, whether tort (including negligence), product liability, contract, or otherwise, shall either party be liable to the other or any other person for any indirect, special, incidental, reliance or consequential damages, even if such party shall have been informed of the possibility of such damages.
10. MUTUAL INDEMNIFICATION
Each party (“Indemnifying Party”) will indemnify, defend and hold the other party (“Indemnified Party”) harmless from any claim, action, suit, or proceedings made or brought by a third party against the Indemnified Party arising out of or related to the Indemnifying Party’s breach of any term of this Agreement.
10.1 Indemnification by Us. We will indemnify, defend and hold You harmless from any third party claim, action, suit, or proceeding made or brought against You alleging that Your use of the Services in accordance with this Agreement infringes such third party’s intellectual property rights (an “Infringement Claim”). In the event of an Infringement Claim, We may (a) modify or amend the Services or infringing part thereof, or replace the Services or infringing part thereof with other software having substantially the same or better capabilities; or, (b) if the foregoing is not commercially practicable, terminate this Agreement and refund You a pro-rata portion, if any, of any pre-paid Fees. We will have no liability for an Infringement Claim if the actual or alleged infringement results from (1)Your breach of this Agreement, (2) Your modification, alteration, or an addition made to the Services or any use thereof, including any combination of the Services with software or other materials not provided by Us, (3) Your failure to use any corrections or modifications made available by Us that would not result in any material loss of functionality, or (4) use of the Services in a manner or in connection with a product or data not contemplated by this Agreement. We also disclaim any liability for settlements entered into by You or costs incurred by You in relation to an Infringement Claim that is not pre-approved by Us in writing. THIS SECTION STATES THE ENTIRE LIABILITY OF US WITH RESPECT TO ANY INFRINGEMENT CLAIM.
10.2 Indemnification by You. You will indemnify, defend and hold Us harmless from any claim, action, suit or proceeding (i) made or brought against Us involving allegations that You breached any representations, warranties or obligations under this Agreement, or (ii) arising out of or resulting from Your use of any Data in violation of this Agreement.
11. FORCE MAJEURE
The performance by either Party of its obligations under this Agreement shall be excused for a period that is considered/ can be considered reasonable under the circumstances resulting in any failure or delay caused by any force majeure events such as riots, war, fire explosion, state of emergency, natural disasters (for example earthquake, cyclone, hurricane etc.), embargo or requisition or any other act of God.
The Party wishing to be excused (pursuant to clause 9) shall notify the other Party in writing without delay on the intervention and on the cessation thereof.
12. MISCELLANEOUS PROVISIONS
12.1 Assignment. Neither party may assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of the other party; provided, however, that We may assign this Agreement to a successor to Our business if any.
12.2 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law the remaining provisions of this Agreement will remain in full force and effect.
12.3 Governing Law and Jurisdiction. This Agreement shall be governed and construed in accordance with the laws of India, and any disputes therein shall fall within the exclusive jurisdiction of the courts in Mumbai, India.
12.4 Modification and Waiver. No waiver or modification of this Agreement will be valid unless made in writing and signed by both parties. The waiver of a breach of any term hereof will in no way be construed as a waiver of any other term or breach hereof.
12.5 Entire Agreement. This Agreement sets out the entire agreement and understanding between the Parties and supersedes and cancels any prior oral or written agreement, representation, understanding, arrangement, communication, or expression of intent relating to the subject matter of this Agreement.