General Terms and Conditions

PLEASE READ THE TERMS OF SERVICE (“TERMS”) CAREFULLY. THESE TERMS ARE A BINDING CONTRACT FOR THE USE OF SERVICES OF DA ENTERPRISES LLC. (“ASOMIXX” OR “PROVIDER”), A CALIFORNIA CORPORATION WITH OFFICES LOCATED AT 400 BEALE ST, SUITE 103, SAN FRANCISCO, CA, USA.

BY ACCESSING OR USING ASOMIXX’ SERVICES OR WEBSITE OR SETTING UP AN ACCOUNT WITH ASOMIXX YOU (“CUSTOMER”) ARE ACCEPTING THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT) AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT AND ITS AFFILIATES). IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE PROVISIONS OF THESE TERMS, DO NOT ACCESS OR USE OUR SERVICES.

1. INTERPRETATION

The Order Form together with these terms and conditions (“General Terms and Conditions”) constitute the entire Agreement between ASOMIXX and the Customer in respect of the subject matter hereof. Unless defined otherwise under the Order Form, all terms and phrases used herein shall have such meaning as provided below:

 

1.1. “Account” means the self-service Account created by or on behalf of the Customer or its Agents on ASOMIXX’s portal for using the Services.

 

1.2. “Affiliate” means any entity that directly or indirectly controls, is controlled by or is under common control with ASOMIXX or the Customer as the case may be. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. Each Party is responsible for the acts and omissions of its Affiliates hereunder.

 

1.3. “Agent” means an individual/entity or organization (including those of a Customer Affiliate) authorized to use the Service(s) on behalf of the Customer through the Customer’s Account as identified through a unique login.

 

1.4. “Agreement” means the Order Form together with the General Terms and Conditions, as may be duly amended from time to time.

 

1.5. “Confidential Information” means any non-public information that either Party discloses, whether in writing, electronically, or orally, to the other Party, whether in tangible or intangible form, including without limitation, information that relates to a party’s inventions, designs, technological developments and processes, know-how, financial information, client information, business operations, software and code, including any information regarding the performance of any software or technology, and other non-public information concerning their businesses, together with any notes, analyses, compilations, studies, scripts, plans, computer disk, program, e-mail, memorandum, document or other tangible material or medium containing or otherwise reflecting such information; and the existence of this Agreement, or any other agreements existing between Parties, or Provider and third parties, the fact that the Parties are in Discussions and the content of any of such Discussions.

 

1.6. “Customer” shall have the meaning ascribed to it in the Order Form, along with its Affiliates or Agents authorized to use the Services on its behalf.

 

1.7. “Customer Data” means electronic data and information submitted by or for the Customer to use the Services.

 

1.8. “Dashboard” means the interface which can be used by the Customer to manage and review its usage of the Services.

 

1.9. “Duration” means the period commencing on the Start Date mentioned in Order Form and ending on the End Date mentioned in Order Form. Duration will include one or more Terms as per the Order Form.

 

1.10. “Embed Code” shall mean the code to be installed on the Properties for enabling the Services as defined in Section 2.

 

1.11. “Malicious Code” shall include code, files, scripts, agents or programs by whatever name which are intended, or otherwise likely to disrupt, damage, prejudice or gain unauthorized access to a computer system or otherwise adversely affect their recipient or computer systems or infrastructure they are accessed or installed on, including, without limitation, viruses, worms, time bombs, ransomware, spyware, adware, and trojan horses.

 

1.12. “Order Form” means the ordering document or online order to which these General Terms and Conditions are annexed, specifying the Services along with their features to be provided hereunder that is entered into between Customer and ASOMIXX or any of their Affiliates, including any amendments or addendums thereto.

 

1.13. “Property” shall mean a webpage, portal, mobile application, or platform owned or managed by the Customer on which the Services will be deployed.

 

1.14. “Service” means the products and services that are selected by the Customer under the Order Form or online purchasing portal and are agreed to be made available by ASOMIXX hereby.

 

1.15. “Term” means the initial term as well as subsequent renewal term/s as per the Order Form for the subscription of the applicable Services.

 

1.18. “User” means an end-user of the Customer’s Properties or platform.

 

1.19. “ASOMIXX Proprietary Material” means and includes software, algorithms, documentation, tools,

techniques, methodologies or other material arising out of, or related to this Agreement. All such material is proprietary to ASOMIXX.

 

2. Services

2.1. Right to use the Services. Subject to the execution of an Order Form, ASOMIXX grants the Customer a limited, non-exclusive, and non-transferable right to access and use the Services:

• as mentioned in the Order Form;
• during the Term;
• solely for the Customer’s internal business purposes;
• only as expressly permitted herein; and
• subject to, and in consideration of, the terms herein (including without limitation, the usage restrictions provided in Section 2.3, the customer dependencies in Section 3, and the payment
• obligations in Section 4).

The Services shall include the Dashboard which Customer will be able to access after signing up for the

Service. The Dashboard will enable the Customer to provision, customize and manage the Services.

 

2.2. Right to Integrate Embed Code. All Services are hosted on infrastructure managed by ASOMIXX. To use and integrate the Services, Customers will be required to install on their Properties the Embed Code which can be retrieved by the Customer from time to time through their Dashboard. ASOMIXX may update the Embed Code from time to time, and Customers are required to integrate and use the latest available versions of the Embed Code. Subject to the terms hereof, ASOMIXX hereby grants a limited, revocable, non-exclusive, non-transferable, non-sublicensable right to integrate the then-current version of the Embed Code with the Customer Properties solely as necessary to use the Services.

 

2.3. Usage Restrictions. Customer shall not, through act or omission:

 

• make the Services or the Embed Code available to anyone other than Customer or Agents or use any Service for the benefit of anyone other than Customer or its Affiliates, or otherwise sell, resell, license, sublicense, distribute, make available, rent, or lease the right to use the Service or the Embed Code; copy, modify, adapt, translate or otherwise create derivative works based on, or remove any proprietary notices or labels from, the Services or the Embed Code; reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Embed Code or attempt to gain unauthorized access to any Service or its related systems or networks; permit direct or indirect access to or use of any Services in a way that circumvents their intended usage, or a contractual usage limit, or use any Services to access or use any of ASOMIXX intellectual property except as permitted under this Agreement or the Order Form;
• use, post, transmit, or introduce any software which interferes or attempts to interfere with the operation of the Embed Code or use the Services to store or transmit any Malicious Code; use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
• and/or build a product or Service using similar ideas, features, functions or graphics of the Service or otherwise build a competitive product or Service; the Customer acknowledges that ASOMIXX may monitor the Customer’s use of the Services and report to the appropriate authorities any conduct by Customer or its Users that ASOMIXX reasonably believes violates any applicable law.

 

2.4. Technical Support. ASOMIXX offers technical support during the Term and the Customer may avail of the same through Dashboard. In providing technical support to the Customer for Services, ASOMIXX agrees to:

• liaise with the Customer on matters related to the use of, and the identification and resolution of errors in the Service;
• utilize commercially reasonable efforts to provide the Services and rectify any reproducible errors for which ASOMIXX is directly and solely responsible, and which have the data necessary to correct such errors is available to ASOMIXX; or at ASOMIXX’s discretion, provide service credit to Customer equivalent to the remaining fees on pro-rata basis.

The above-mentioned service credit will be provided only for errors resulting solely from the malfunctioning of a Service provided by ASOMIXX or ASOMIXX’s failure to provide Services as agreed. For ASOMIXX to correct the errors or provide service credits, the Customer must notify ASOMIXX in writing of such errors within 30 days of receipt of the Services believed to contain the errors.

 

3. CUSTOMER DEPENDENCIES AND RESPONSIBILITIES

3.1. Customer Inputs. The Customer shall provide all necessary data or other required materials or

information to ASOMIXX on schedule or in a timely manner to enable ASOMIXX to provide it with access to the Services. Customer hereby confirms the accuracy, legibility, and completeness of all data supplied to ASOMIXX and acknowledges that it shall be solely responsible for the results obtained from Customer’s use of any of the Services, including the content, accuracy, completeness, competence, or consistency of all programs, files, documentation, test data, sample output, or other information, resources, personnel used by Customer and for all activities that Customer conducts with the assistance of the Services

 

3.2. Control of Account Information. Customer shall control and be responsible for the use of, Account

information, user ids, and passwords related to the Services and, where required.

 

3.3. Compatibility. The Customer shall be responsible for verifying that the Services and the Embed Code are

compatible with the Customer’s Properties, operations, equipment, or software.

 

3.4. Data Protection. The Customer, its Properties and their operations has complied with, and will continue to comply with all applicable laws relating to the collection, storage, processing and transfer of information pertaining to natural persons, and rules made thereunder along with the relevant terms of any privacy policies or consents made available by the Customer, to its Users or any other persons using the Properties, or their products and services. This shall include, without limitation, providing Users with sufficient notice of the nature of the Services, data being collected through them, and obtaining adequate consents and permissions for the collection and use of information that may be collected on any Properties, or maintained on any server or Service hosted or provided by ASOMIXX. The Customer shall not collect, store or process any personally identifiable information (as such Term is defined under applicable law) using the Service. Customer shall ensure that any personal information stored by it shall be adequately encrypted or hashed at Customer’s end.

 

4. FEES, INVOICING AND PAYMENT

4.1. Fees. The fees set forth in the Order Form shall be effective for the Term. In case of renewal of Term, change in Order Form or a new Order Form, the fee will be as per the then applicable pricing of Services.

Customer agrees that:

 

• the fee is based on Services subscriptions purchased and not actual usage of the Service;
• payment obligations are binding, and fee paid is non-refundable (including without limitation for any downgrade of subscription under an active Order Form);
• and all applicable taxes, duties, or government levies whatsoever shall be in addition to the fees and
• expenses specified under the Order Form.

The Customer will make timely payment of all such taxes, duties, or government levies.

4.2. Invoicing and Payment Arrangements. For payment, ASOMIXX shall provide an electronic invoice to the Customer. The Customer may view and print an invoice for Customer’s Account. ASOMIXX will bill the Customer upon execution of this Agreement at the fee set forth in Order Form on the date mentioned in the Order Form on a frequency mutually agreed in the Order Form for all recurring fees. For recurring fees, no refund or adjustment for plan downgrades, upgrades, or elimination of plan features within the current billing period shall be issued. Invoices/payments are irrevocably deemed final and accepted by Customer unless disputed or sought clarification before subscribing to the Service.

 

4.3. Payment by Credit Card/Wire Transfer/Cheque. If Customer is paying by credit card, the Customer shall always provide and keep current and updated Customer’s contact, credit card, if applicable, and billing information on the Dashboard. Customer authorizes ASOMIXX to charge the Customer credit card or bank account for all fees payable at the beginning of the Term and all subsequent billing periods, including upgrades. Customer further authorizes ASOMIXX to use third parties to process payments and invoicing, and consents to the disclosure of Customer payment information to such third parties.

 

5. TERM AND TERMINATION

5.1. Term. This Agreement shall be effective for the Duration of the Order Form. This Agreement shall not be terminated by either Party for reasons other than as specified in this Section 5.

 

5.2. Renewal of Term. This Agreement shall automatically renew for additional, successive renewal Term(s) if mentioned so in the Order Form.

 

5.3. Termination. Either Party may terminate the Agreement, (i) if the other Party commits a material breach of the Agreement and fails to cure such material breach within 30 days of written notice from the or the Party. For the avoidance of doubt, non-payment of fees within the agreed due date shall be deemed to be a material breach. (ii) immediately if the other Party becomes insolvent, has filed for bankruptcy, or if a notice or demand for winding up has been issued in respect of such Party.

 

5.4. Termination or Suspension by ASOMIXX. ASOMIXX may, immediately through written notice, terminate or suspend this Agreement upon ASOMIXX being of the reasonable opinion that the Customer’s use of the Services violates any applicable law, rule, or regulation. During any such suspension, the Customer will not be able to access the Services. ASOMIXX will use commercially reasonable efforts to give Customers advance written notice of the suspension of Service unless law enforcement or governmental agency directs otherwise or suspension without notice is necessary to protect ASOMIXX or its other customers.

 

5.5. Consequences of Termination. It is agreed that in case of termination of this Agreement or the Order Form, all the rights and licenses granted to the Customer under this Agreement shall cease to exist and Customer must immediately stop using the Services and remove the Embed Code from its Properties and infrastructure. The fees owed to ASOMIXX as per this Agreement will not be canceled or waived unless the termination arises solely due to a material breach of the Agreement by ASOMIXX. Customer’s data and Account settings shall be irrevocably deleted between 45 to 90 days from the date of termination. It shall be Customer’s exclusive responsibility to secure all necessary data from Customer’s Account during such period.

 

6. TERM AND TERMINATION

6.1. Ownership. All intellectual property rights, including any software, owned by a party, its licensors, or subcontractors as on the effective date of this Agreement (and all improvements or developments thereto) shall continue to be owned by such Party, its licensors or subcontractors and, except as expressly provided in this Agreement, the other Party shall not acquire any right, title, or interest in or to such intellectual property rights. ASOMIXX shall own all rights, titles, and interests in and to any materials created or developed by ASOMIXX or its subcontractors for its internal use or for assisting Customer in the provision of the Services including the ASOMIXX Proprietary Material and Customer does not acquire any interest, right or title thereto.

 

6.2. License of Customer Software and Intellectual Property. For the purposes of enabling the provision of Services or for debugging or troubleshooting of Services by ASOMIXX’s support team, Customer agrees to grant to ASOMIXX, access to any tool or application used by Customer to help in the resolution of the issue. Customer represents and warrants that: (a) Customer is either the owner of such tools or applications, or is authorized by the applicable owner to include it under this Agreement; and (b) ASOMIXX has the right during the Term to access and/or use such tools and applications solely for the purpose of providing the Services to Customer as contemplated herein.

 

7. LIABILITY

7.1. No Warranties. ASOMIXX provides the Service “AS IS”. Customer expressly agrees that use of the Service is at the Customer’s sole risk. ASOMIXX hereby disclaims all warranties of any kind, whether express or implied, including, but not limited to the implied warranty of merchantability or fitness for a particular purpose, and non-infringement. The Customer hereby agrees that the terms of this Agreement shall not be altered due to custom or usage or due to the parties’ course of dealing or course of performance under this Agreement. The technical support and service credits mentioned in Section 2.4 shall be Customer’s sole and exclusive remedy in relation to the provision of Services under this Agreement.

 

7.2. No Third-Party Liability. ASOMIXX does not make any representation or warranty regarding any third-party software, tools or services and shall not be liable for the actions or omissions of any third-party including, but not limited to, website hosting providers, server providers due to which the Services may be interrupted or user’s access to Dashboard may be affected. Where the Customer requests any integration to any third-party software, tools or services, Customer hereby consents to the transmission of Customer Data to such third-parties as may be required for the purposes of such integration at the Customer’s own risk.

 

7.3. No Liability for Customer Data. Customer is solely responsible for its data including, but not limited to:

• any claims relating to Customer Data; and
• any claims that Customer Data infringes, misappropriates or otherwise violates the rights of any third party and shall indemnify ASOMIXX to the extent of such claim or violation.

 

7.4. ASOMIXX Indemnity. ASOMIXX shall indemnify Customer in relation to all claims (including third-party claims) that any ASOMIXX Proprietary Material infringes any registered third-party intellectual property rights.

 

7.5. Customer Indemnity. Customer shall indemnify ASOMIXX in relation to all claims (including third-party claims) arising from the use of the Services by the Customer or the activities conducted by Customer through the Services, including any claims arising in relation to the Properties, Users or information collected from Users by Customers.

 

7.6. Exclusion of Indirect Damages. ASOMIXX and its subsidiaries, affiliates, officers, employees, agents, partners, vendors, and licensors shall not be liable for any indirect, incidental, special, punitive, or consequential damages, including but not limited to damages for lost profits, business interruption, loss of programs or information, loss of data, violation of data protection law and the like, that result from the use or inability to use the Service or from mistakes, omissions, interruptions, deletion of files or directories, errors, defects, delays in operation, or transmission, regardless of whether ASOMIXX has been advised of such damages or their possibility.

 

7.7. Limitation of Liability. Notwithstanding anything to the contrary in this Agreement, ASOMIXX’s aggregate liability under or in connection with the Agreement, whether arising from contract, negligence, tort, data protection law, or otherwise, shall in any event not exceed the amount paid by Customer under the Agreement in preceding 12 calendar months. Nothing herein shall limit or is intended to limit, any liability that cannot be limited under applicable law.

 

8. MISCELLANEOUS

8.1. Confidentiality. Each Party undertakes in respect of Confidential Information for which it is the recipient: (i) to treat such information as confidential; (ii) to disclose such Confidential Information only to those employees on a need-to-know basis who are directly involved in the performance of this Agreement, (ii) not to communicate or disclose any part of such Confidential Information to any third party without the disclosing Party’s prior written consent, (iv) upon termination, expiry or at the request of the disclosing Party, to return all such Confidential Information to the disclosing Party. The obligations in this Section 8.1will not apply to any Confidential Information: (i) in the recipient’s possession (with full right to disclose) before receiving it; (ii) which is or becomes public knowledge other than by breach of this Clause; (iii) independently developed by the recipient without access to or use of the Confidential Information; or (iv) required to be disclosed in accordance with applicable laws and regulations, provided that to the extent permitted by applicable law, the recipient shall notify the disclosing Party of such requirement prior to disclosure.

 

8.2. Privacy Policy. The terms and conditions of the privacy policy located at https://ASOMIXX.com/privacy-policy/ will govern all information or data collected through the website, ASOMIXX.com.

 

8.3. Right to use Logo. The Customer agrees to let ASOMIXX use their organization’s logo in ASOMIXX’s customer list and at other places including but not limited to its website, (including ASOMIXX.com) and promotional materials including the press release. This Section will survive the expiry or termination of this Agreement.

 

8.4. Independent Contractors. The relationship of the parties under this Agreement is that of independent contractors. Neither Party will be deemed to be an employee, agent, partner, franchisor, franchisee nor legal representative of the other for any purpose and neither will have any right, power, or authority to create any obligation or responsibility on behalf of the other.

 

8.5. Governing Law and Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of the State of California, USA. Any claim or suit brought in connection with this Agreement shall be brought to the exclusive jurisdiction and venue of the courts of the State of California, USA. In any action by ASOMIXX for the recovery of fees due hereunder, the Customer shall pay reasonable attorneys’ fees and costs in connection with such action.

 

8.6. Assignment. This Agreement and all rights and obligations may not be assigned in whole or in part by either Party without the prior written consent of the other, except the rights and obligations of ASOMIXX may be assigned to another entity in connection with a reorganization, merger, consolidation, acquisition, or other restructuring involving all or substantially all of the voting securities and/or assets of such Party. Any attempted assignment in contravention of this Section shall be void and of no effect.

 

8.7. Amendment. ASOMIXX may update these terms from time to time, provided that if any amendment prejudicially affects the Customer in a material manner, ASOMIXX shall notify the Customer of such amendment. Except for the foregoing, no waiver, amendment, or modification of any provision of this Agreement will be effective unless it is in writing, refers to this Agreement, and is signed by authorized representatives of both parties.

 

8.8. No Waiver. No failure or delay by either Party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, will operate as a waiver of any such right, power, or remedy.

 

8.9. Non-solicitation. The Customer shall not, during the Term of this Agreement, and for a period of one year after termination of this Agreement, solicit or recruit for employment any employee or personnel of ASOMIXX.

 

8.10. Force Majeure. Except with regard to payment obligations, either Party shall be excused from delays in performing or from failing to perform its obligations under this Agreement to the extent the delays or

failures result from causes beyond the reasonable control of the Party, including, but not limited to: default of subcontractors or suppliers; failures or default of third-party software, vendors, or products; acts of God or of the public enemy; governmental actions; acts of terrorism, strikes; communications, network/Internet connection, or utility interruption or failure; fire; flood; epidemic; and freight embargoes.

 

8.11. Severability. If any provision hereof is declared invalid by a court of competent jurisdiction, such

provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement will continue in full force and effect.

 

8.12. Notice. All notices, statements, instructions, or consents required or allowed hereunder shall be sent to the other Party in writing.