Effective Date: 6/2/2011
This is the standard subscription terms and conditions of Nuserv DMCC (herein referred to as “the Company”) operating under the trade name “ProTenders” for subscription to its online intelligence platform.
Online Intelligence Platform shall refer to platform of construction intelligence operated by the Company and contained within the online domain protenders.com.
Subscription shall refer to the arrangement where access to the online intelligence platform is granted for a fee and over a definite term.
Subscriber shall refer to the person or entity who enters into subscription arrangement with the Company.
User Accounts shall refer to the number of user accounts included in the subscription.
Binding Sales Document shall refer to the sales quotations, sales order and other similar documents signed by the Subscriber or its representative containing the initial details of the subscription such as the geographical area covered by the access, the number of user accounts, payment terms and the like.
Login Credentials shall refer to the email address and password required to access the online intelligence platform.
E-mail Confirmation shall refer to the e-mail coming from the Company, indicating to the Subscriber to provide and confirm a login credential.
Official E-mail shall refer to the e-mail to be provided by the subscriber or its representative where the e-mail confirmation will be sent.
Activation Date shall refer to the first day when the online intelligence platform is made accessible to the subscriber and shall refer to the day when the e-mail confirmation is received by the subscriber through the official e-mail, and regardless of the action of the subscriber on the confirmation.
Expiration Date shall refer to the last day when access to the intelligence platform will be open to the Subscriber based on the subscription term agreed with the subscriber.
Cancellation shall refer to the cancellation of the subscription before the expiration date.
Downgrading shall refer to changing an existing subscription to a subscription lower in price.
Deactivation shall refer to the withholding of access to the online intelligence platform whether on a temporary or permanent basis.
Upgrading shall refer to changing an existing subscription to a subscription higher in price.
Renewal shall refer to extension of subscription after the expiration date based on the original term.
Proprietary Information of Company shall refer to non-public information regarding features, functionality and performance of the service by the Company.
Proprietary Information of Subscriber shall refer to non-public data provided by Subscriber to Company to enable the provision of the services.
Disclosing Party shall refer to either the Company or the Subscriber who discloses to the other business, technical or financial information which are confidential in nature.
Receiving Party shall refer to either the Company or the Subscriber who receives from the other business, technical or financial information which are confidential in nature.
Grant of Access to the Online Intelligence Platform. The activation date shall be binding on the Subscriber failure of the Subscriber to question the activation of access to the online intelligence platform within a reasonable period from such activation date.
Activation on Partial Payment. Subscriptions activated on partial payment may be deactivated for failure of payment of the balance on due date, and without prejudice to the right of the company to enforce payment of the balance. Associated collection costs shall be on the account of the defaulting subscriber.
Cancellation and Downgrading of Subscription. Cancellation and downgrading of subscription, at the instance of the subscriber are not allowed.
Non-refundability of Payments Made. Payments made by subscribers on activated subscriptions are non-refundable. All checks to be issued by the subscriber in favor of the Company, and to be received by the Company will not be returned to the subscriber, at his instance, and will be deposited on their due dates.
Responsibility of Login Credential. The subscriber is responsible to provide and register the login credential as a prerequisite to access to the online intelligence platform. The Company reserves the right to refuse registration of or to cancel e- mail addresses and passwords it deems inappropriate.
Training for the Use of Platform. The Company is committed to conduct the training to onboard the Subscriber to use the platform, but it shall be the responsibility of the Subscriber to request the Company, after the activation of the subscription to conduct said training. Training shall be conducted only to as many users and for such number of times as are designated in the product package availed by the Subscriber. The Company also commits to conduct additional training, if it deems necessary whenever significant updates are introduced in the platform. Other trainings requested by a Subscriber in excess of the limit provided in the product package shall be subject to the corresponding training fees.
This Terms and Conditions will remain effective for the whole term of the subscription even in cases of upgrade, and unless modified by a subsequent agreement, for the whole term of all renewal subscriptions.
The Company reserves the right to deactivate the access to the online platform after the expiration date of the subscription, unless the Subscriber has agreed to the renewal of the subscription.
Subscriber represents, covenants, and warrants the following:
1. That it will use the services only in compliance with relevant policies which the Company may publish from time to time and all applicable laws and regulations, including taking all necessary steps to preventing access to the online intelligence platform by any person other than authorized employees.
2. That it hereby agrees to indemnify and hold harmless the Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Subscriber’s use of services.
3. Subscriber shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like equipment. Subscriber shall also be responsible for maintaining the security of the Equipment, Subscriber account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Subscriber account or the Equipment with or without Subscriber’s knowledge or consent.
Subscriber will not, directly or indirectly:
1. reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the services or any software, documentation or data related to the Services;
2. modify, use any content and materials from the online intelligence platform in any manner that may infringe any copyright, intellectual property right, proprietary right, or property right of the company;
3. use the services or any software for timesharing or service bureau, the Internet or any other technology now existing or developed in the future purposes, or otherwise for the benefit of a third person not privy to the agreement; or
4. remove any proprietary notices or labels.
The Company grants the Subscriber a non-exclusive, non-transferable, non- sublicensable license to use such intelligence platform during the term only in connection with the services.
Each party understands that the other party has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business.
The Receiving Party agrees to take reasonable precautions to protect such Proprietary Information, and not to use (except in performance of the services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.
The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
Subscriber shall own all right, title and interest in and to the Subscriber Data, as well as any data that is based on or derived from the Subscriber Data and provided to Subscriber as part of the Services. The Company shall own and retain all right, title and interest in and to (a) the services and the online platform, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the services or support, and (c) all intellectual property rights related to any of the foregoing.
Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Subscriber Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e- mail of any scheduled service disruption. However, company does not warrant that the services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the services. Except as expressly set forth in this section, the services and implementation services are provided “as is” and company disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.
Company shall hold Subscriber harmless from liability to third parties resulting from infringement by the Service of any patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Subscriber specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Subscriber continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Subscriber’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Subscriber a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Subscriber’s rights hereunder and provide Subscriber a refund of any prepaid, unused fees for the Service.
Notwithstanding anything to the contrary, except for bodily injury of a person, company and its suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees shall not be responsible or liable with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business; (b) for any indirect, exemplary, incidental, special or consequential damages; (c) for any matter beyond company’s reasonable control; or (d) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by Subscriber to company for the services under this agreement in the 12 months prior to the act that gave rise to the liability, in each case, whether or not company has been advised of the possibility of such damages.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Subscriber except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Subscriber does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the United Arab Emirates without regard to its conflict of laws provisions.
