Effective Date: Jan 1, 2023
Last Updated on: Jan 1, 2023
This End User License Agreement governs the use of software/platform of Consark Inc., Consark LLP, Consark Advisory Services LLP or any of its affiliates or subsidiaries (together “We”, “Us”, “Our” or “Consark”) by You.
Please read this End User Licence Agreement (“EULA”) carefully as this EULA governs your use of the Consark software/platforms including the Unified Controllership Platform, its associated upgrades, patches, and updates and related services (the “Product”) currently provided or which will be provided by Consark Advisory Services LLP, or any one of its subsidiaries or affiliated companies (collectively referred to as “Consark”).
Consark reserves the right to change, modify, add, or delete articles in this EULA at any time, in accordance with the procedures described below in Section 8.
This EULA is applicable to both the company which is the customer of Consark and the company’s representatives who have been provided access to the software application as users. The terms “User” and “You” shall therefore refer to both the aforementioned, and wherever the context so requires, shall be interpreted accordingly, including whether to mean jointly or severally.
- GRANT OF LICENSE
- Consark grants to You a non-exclusive, non-transferable, non-perpetual, non-sublicensed, non-commercial, and personal license to install and/or use the Product (in whole or in part) and any Product (the “License”), for such time until either You or Consark terminates this EULA. You must in no event use, nor allow others to use, the Product or this License for commercial purposes without obtaining a licence to do so from Consark. Updates, upgrades, patches, and modifications may be necessary in order to be able to continue to use the Product on certain hardware.
- You understand and agree that this Product is licensed to you, not sold. You (Consark’s customer) represent that you are a duly organised and validly existing entity (as applicable) under the laws of the country in which You are incorporated and registered. You (company’s representatives given access to the software application) represent that You are a law-abiding citizen/resident (as applicable) of the country in which You are currently working from and/or using the Product.
- You shall not, directly or indirectly (i) sell, rent out, lease, license, distribute, market, exploit the Product or any of its parts commercially, (ii) reverse engineer, decompile, disassemble, adapt, reproduce, or create derivate works of this Product, in whole or in part; (iii) remove, alter, disable or circumvent any copyright and trademark indications or other authorship and origin information, notices or labels contained on or within this Product and (iv) export or re-export this Product or any copy of adaptation in violation of any applicable laws or regulations.
- While using the Product, You agree to comply with all applicable laws, rules and regulations. In all cases, You may only use the Product according to anticipated use of the Product.
For example purposes, and without limiting Consark’s rights to take action against You, You may not:
- host, display, use, upload, share, modify, transmit, update, and/or publish, by any means in relation to the Product, any material and/or information belonging to another person and to which the User does not have any right, or that which would breach of a duty of confidentiality, infringe any intellectual property right or an individual’s right to privacy or which would incite the committing of an unlawful act such as, without limitation, piracy, cracking or circulation of counterfeit software;
- create, supply or use alternative methods of using the Product, for example server emulators, or use any robot, spider, other automatic device, or manual process to monitor or copy the Product without prior written permission;
- make inappropriate use of the help service or send untruthful reports to members of Consark’s personnel;
- falsely claim to be an employee or representative of Consark or its partners and/or agents;
- falsely claim an endorsement in connection with the Product or with Consark;
- deceive or mislead Consark and/or its representatives/employees about the origin of the data or information shared for using the Product, or knowingly and intentionally communicate any information which is patently false or misleading in nature but may reasonably be perceived as a fact;
- impersonate another person;
- infringe Consark’s or any third-party’s patent, trademark, copyright, or other intellectual property rights, proprietary rights, rights of publicity or privacy;
- refuse to cooperate with Consark in an investigation relating to a potential mischief or wrongdoing using the Product, or provide confirmation of Your identity or any other information provided by You to Consark;
- remove, circumvent, disable, damage or otherwise interfere with security-related features of the Product or features that enforce limitations on the use of the Product;
- use the Product in any manner that could damage, disable, overburden, or impair it, including, without limitation, using the Product in an automated manner;
- attempt to discover the source code of the Product or any part thereof or modify, adapt, translate or create derivative works based on the Product or any part thereof;
- intentionally interfere with or damage operation of the Product or any other user’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code or file/programme with contaminating or destructive features or which are designed to interrupt, destroy or limit the functionality of any computer resource;
- take any action that imposes an unreasonably or disproportionately large load on Consark’s infrastructure/network;
- use the facilities and capabilities of the Product to conduct any activity or solicit the performance of any illegal activity or other activity which infringes the rights of others;
- use the Product to collect or obtain personal information, including without limitation, financial information, about other users of the Product;
- use the Product in a manner that results in or may result in complaints, disputes, reversals, chargebacks, fees, fines, penalties and other liability to Consark, a third-party or You.
- All title, ownership rights and intellectual property rights in and to the Product (including, without limitation, all text, design, compilation, and look and feel of the Product viz., graphics, music or sounds, all messages or items of information, diagrams, concepts, videos, audio-visual effects, domain names and any other elements which are part of the Product, individually or in combination) and any and all copies thereof are owned by Consark or its licensors. Consark’s rights include rights in all copyrighted works, trademarks, designs, inventions, and other intellectual property vested in the Product. The Product is protected by national and international laws, copyright treaties and conventions and other laws. Subject to compliance with this EULA, Consark grants to You a non-exclusive, non-transferable, non-sub licensable, revocable, and limited license to use the Product in accordance with this EULA. Any reproduction or representation of these licensed materials in any way and for any reason is prohibited without Consark’s prior permission. Except as expressly set forth in this EULA, all rights not granted hereunder to You are expressly reserved by Consark.
- This License confers no title or ownership in the Product and should not be construed as a sale of any rights in the Product.
- USE OF DATA
- Data loss is an unavoidable risk when using any technology. You are responsible for maintaining copies of Your data and/or the data of Your customers/clients/contacts uploaded onto the Product.
- You understand and agree that You shall not have any other recourse but to discontinue use of the Product in case of any downtime, access issues or data loss, irrespective of the cause for such downtime, access issues or data loss.
- USE OF AND ACCESS TO THE PRODUCT
- You agree to use the Product only for lawful purposes, and that You are responsible, liable, and accountable for all activities that take place through Your use of the Product. You warrant to provide true, accurate, current, and complete information while availing the services related to the Product. Consark excludes any liability arising out of use of the Product by You.
- Consark will use commercially reasonable efforts to provide You the Product. Consark will provide You with reasonable technical support services in accordance with their standard practices. Consark does not make any commitment that the Product will be available at all times or during any down time (a) caused by outages to any public internet backbones, networks or servers, (b) caused by any failures of Your equipment, systems or local access services, (c) for previously scheduled maintenance, (d) caused by any third-party vendor or service provider of Consark, (e) caused by any failure of systems or servers of any third-party including that of the government and its authorities and/or financial institutions such as asset management companies or any financial intermediaries, (f) attributable to events such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labour conditions, earthquakes, natural disasters, hacking, phishing or interruptions in internet services to an area where Consark or its servers are located or co-located, or (g) required pursuant to instructions received by Consark from any governmental or regulatory authority.
- From time to time, Consark may provide upgrades, patches, enhancements, or fixes for the Product to You generally without additional charge and such updates will become part of the Product and subject to the EULA. Notwithstanding the foregoing, Consark shall have no obligation under this EULA or otherwise to provide any such updates. You understand that Consark may cease supporting old versions or releases of the Product at any time in its sole discretion.
- WARRANTY DISCLAIMER, LIMITATION OF LIABILITY
- YOU EXPRESSLY ACKNOWLEDGE THAT USE OF THE PRODUCT IS AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE PRODUCT IS SUPPLIED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CONSARK, ITS LICENSORS, AFFILIATES AND ASSOCIATED SERVICE PROVIDERS DO NOT MAKE AND HEREBY DISCLAIM ANY GUARANTEES, CONDITIONS, WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY OR OTHER TERMS INCLUDING AS TO: (A) ITS CONFORMITY, ACCURACY, RELEVANCE, COMPLETENESS, RELIABILITY OR SECURITY; (B) ITS SUITABILITY FOR A PARTICULAR USE; (C) IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT; (D) ITS MARKET VALUE; OR (E) YOUR SATISFACTION. CONSARK DOES NOT WARRANT THAT THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE PRODUCT IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME ALL RESPONSIBILITY FOR SELECTING THE PRODUCT TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE PRODUCT.
- TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL CONSARK, CONSARK’S LICENSORS, AFFILIATES AND ASSOCIATED SERVICE PROVIDERS BE LIABLE FOR LOSS OR DAMAGE SUFFERED IN CONNECTION WITH THE USE OF THE PRODUCT OR ANY RELATED THIRD-PARTY SERVICE. THIS INCLUDES WITHOUT LIMITATION (A) ALL LOSSES OF ANY KIND, WHETHER IN TORT (INCLUDING FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT) OR OTHERWISE, (B) DIRECT LOSS, (C) ACCIDENTAL LOSS, (D) INCIDENTAL LOSS, (E) CONSEQUENTIAL LOSS, AND (F) INDIRECT LOSS.
- NOTWITHSTANDING THE AFOREMENTIONED LIMITATIONS OF LIABILITY, YOUR SOLE REMEDY IN THE EVENT OF A DISPUTE WITH CONSARK OR ITS LICENSORS, AFFILIATES AND ASSOCIATED SERVICE PROVIDERS IS TO CEASE USE OF THE PRODUCT. IN THE EVENT THE PRODUCT PURCHASED DOES NOT WORK ON YOUR SYSTEM AS THE SAID SYSTEM DOES NOT MEET THE APPLICABLE LEGAL STANDARDS OR WARRANTIES, CONSARK’S LIABILITY IS LIMITED TO THE REFUND OF THE PURCHASE PRICE OF THE PRODUCT. IN NO EVENT WILL CONSARK, ITS LICENSORS, AFFILIATES, AND ASSOCIATED SERVICE PROVIDERS BE LIABLE FOR DAMAGES IN EXCESS OF ANY AMOUNT YOU HAVE PAID TO CONSARK FOR THE PRODUCT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE TIME YOUR CAUSE OF ACTION AROSE. FOR PURPOSES OF THIS SECTION, CONSARK’S LICENSORS, AFFILIATES AND ASSOCIATED SERVICE PROVIDERS ARE THIRD-PARTY BENEFICIARIES TO THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN AND THEY MAY ENFORCE THIS EULA AGAINST YOU.
- CONSARK SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THE USE OF OR INABILITY TO USE THE PRODUCT, INCLUDING ANY LIABILITY: (I) FOR ANY ‘BUG’ OF THE PRODUCT; (II) FOR ANY UNAUTHORISED ACCESS TO OR DISCLOSURE OF YOUR TRANSMISSIONS OR DATA; (III) FOR ANY OTHER MATTER RELATING TO THE PRODUCT OR ANY THIRD-PARTY. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF AN INDIVIDUAL ADVISES CONSARK OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CONSARK AND YOU. THE PRODUCT WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS.
- Notwithstanding anything contained in this Agreement, You agree to defend, indemnify and hold harmless Consark and its affiliates, officers, directors and employees, upon demand from and against any and all damages, actions, proceedings, claims, demands, costs, losses, liabilities, diminution in value, loss of earnings, profits and revenue, opportunity costs, expenses including court costs and reasonable attorneys’ legal fees in connection with, arising out of, or in relation to (i) breach or non-compliance of its obligations, consents, grants, undertakings, representations or warranties under the provisions of this EULA, and (ii) misrepresentation, negligence, fraud, wilful concealment and misconduct, (iii) misuse of the Product for any illegal or unauthorised purposes, (iv) any injuries to persons or damage to property, body, business character, reputation including theft, resulting from Your acts or omissions, (v) any claims by a third-party on Consark for the acts committed or omitted by You, and (vi) any violation of applicable law.
- You agree that any violation by You will constitute an unlawful and unfair business practice, and will cause irreparable harm to Consark and/or its affiliates and third-party service providers, as the case may be, for which monetary damages would be inadequate, and You consent to Consark obtaining any injunctive or equitable relief that they deem necessary or appropriate in such circumstances. These remedies are in addition to any other remedies that Consark may have at law or in equity. If Consark takes any legal action against you as a result of your violation of the terms of this EULA, they will be entitled to recover from You, and You agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief that may be granted.
- The EULA is effective from the earlier of the date You purchase, download, or use the Product, until terminated according to its terms. You and Consark, or its licensors, affiliates, may terminate this EULA, at any time, for any reason. Termination by Consark will be effective upon (a) notice to You or (b) termination of Your Consark subscription or (c) at the time of Consark’s decision to discontinue offering and/or supporting the Product. This EULA will terminate automatically if You fail to comply with any of the terms and conditions of this EULA. Upon termination for any reason, You must immediately cease use of the Product and uninstall the Product and destroy all copies of the Product in Your possession.
- CHANGES TO THE EULA OR THE PRODUCT
- Consark reserves the right, in its sole and absolute discretion, to revise, update, change, modify, add to, supplement, or delete certain terms of this EULA for security, legal, best practice or regulatory reasons. Such changes will be effective with, or as applicable, without prior notice to You. You can review the most current version of this EULA by clicking on the “EULA” link located on www.consark.ai. You are responsible for checking this EULA periodically for changes. If any future changes to this EULA are unacceptable to You or cause You to no longer be in agreement or compliance with this EULA, You may terminate this EULA in accordance with Section 7 and must immediately cease use of the Product and uninstall the Product and destroy all copies of the Product. Your continued use of the Product following any revision to this EULA constitutes Your complete and irrevocable acceptance of any and all such changes.
- Consark may modify the Product for any reason or without any specific reason, at any time and at its entire discretion, in particular for technical reasons such as updates, maintenance operations and/or resets to improve and/or optimise the Product. You agree that the Product may install or download the modifications automatically. You agree that Consark may stop to support previous versions of the Product upon availability of an updated version. Consark’s affiliates and associated service providers shall have no obligation to furnish any maintenance or customer support with respect to the Product. Consark also reserves the right to amend Section 1.6 to place limits on the use of the Product.
- Notices, Grievances or Complaints:
- All notices, requests, demands, approvals, requests for approvals or other communications under the EULA shall be in writing. Notice will be sufficiently given for all purposes as follows: (i) upon delivery when personally delivered to the recipient, (ii) upon receipt when mailed by certified mail (iii) upon delivery when delivered by recognised international overnight courier, and (iv) upon receipt when sent by fax with confirmation.
- For grievances or complaints relating to the terms under this EULA, please contact the Grievance Officer:
Name: Anand Krishnakumar
Address: #16/23, TTK Road First St, Alwarpet, Chennai, India 6000 018
Email: security at consark dot ai
- Severance: If any court of competent jurisdiction or competent authority finds that any provision of this EULA is invalid, illegal, or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this EULA shall not be affected. If any invalid, unenforceable or illegal provision of this EULA would be valid, enforceable, and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid, and enforceable to reflect Consark’s initial intentions.
- No Waiver: No failure or delay by Consark or its licensors, affiliates, service providers, to exercise any right or remedy provided under this EULA or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. Waiver of a right or remedy may be considered to have taken place only after signing of a written statement to this effect by Consark or by the User.
- Law, Jurisdiction, and Dispute Resolution:
- To the extent permitted by applicable law, this EULA, and any disputes or claims arising out of or in connection with it, or its subject matter or formation, including non-contractual disputes or claims, are governed by, and construed in accordance with the laws of India, without giving effect to any principles of conflicts of laws.
- Any controversies, conflicts, disputes, or differences arising out of this EULA shall be resolved by arbitration in India in accordance with the Arbitration and Conciliation Act, 1996 for the time being in force, which is deemed to be incorporated by reference in this Clause. The tribunal shall consist of 1 (one) arbitrator appointed by Consark. The language of the arbitration shall be English. The parties to the arbitration shall keep the arbitration confidential and not disclose to any person, other than on a need to basis or to legal advisors, unless required to do so by law. The decision of the arbitrator shall be final and binding on all the Parties hereto. Subject to other provisions in this Clause, courts in India shall have exclusive jurisdiction over all issues arising out of this EULA or the use of the Product.