Geotechnical Engineering Modelling Software (GEMS) Cloud Services Terms and Conditions
LAST UPDATED AS ON: 17th December 2020
Geotechnical Engineering Modelling Software (GEMS) LLP (“GEMS”, “We”, “Us” “Our”) is incorporated under the laws of India having registered office address at B3-0102, L & T South City, Near Arekere MICO Layout, Bangalore Karnataka 560076 India whereby GEMS develops feature rich, easy to use CAD software for modelling & analysis of foundations for civil engineering structures including without limitation buildings, bridges, offshore platform, inter-alia
These Terms and Conditions (“Agreement”) govern the use of the Services by a Customer (“You”, “User”, “Your”) and constitute a legal binding contract between GEMS and the Customer. By using or otherwise accessing the Services provided by us and/or by creating an account with us, you agree to the Terms and Conditions. If you do not agree to be bound by the Agreement and comply with all of the terms of this Agreement, please do not register with us or use our Platform and/or Services any further.
You may access the Services in either of the following manner:
A. By using Cloud Services provided by us
B. By Downloading the Software from our website and installing the same on a compatible physical computing device.
Please note that we offer the Services on “as is” basis and without warranties.
Please also note that we reserve the right to update or amend the Terms and Conditions and the other documents consisting of the Agreement at any time, as we reasonably deem appropriate. Upon any such change, we will post the amended terms on the Platform. Your continuous use of the Platform and/or the Services following such posting shall constitute your affirmative acknowledgement of the Terms and Conditions or other applicable Agreement document, the modification, and agreement to abide and be bound by the Terms and Conditions or other applicable Agreement document, as amended.
We encourage you to periodically review these Terms and Conditions. If at any time you choose not to accept these terms, including following any such modifications hereto, then you must stop using the Platform and Services immediately, in any manner whatsoever.
Terms and Conditions
Please read these Terms and Conditions carefully. All contracts that the GEMS may enter into from time to time for the provision of the Services and related services shall be governed by these Terms and Conditions.
1.1 In these Terms and Conditions, except to the extent expressly provided otherwise:
"Access Credentials" means the usernames, passwords, email address and other credentials enabling access to the Services, including both access credentials for the User Interface and access credentials for the API;
“Affiliate” for purposes of this Agreement, the term, shall mean any entity, individual, firm, or corporation, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with the concerned Party or any individual, firm or corporation declared to be an Affiliate as by the concerned Party .
"API" means the application programming interface for the Services defined by the Provider and made available by the Provider to the Customer;
“Applicable Law” means the laws prevailing in India and the applicable law of General Data Protection Regulation (GDPR)
"Business Day" means any weekday other than a bank or public holiday in India;
"Business Hours" means the hours of 09:00 to 17:00 IST on a Business Day;
"Charges" means the amounts specified in the invoice statement issued by the provider or as stated in the service order form from time to time;
“Country” means the Union of India
"Customer" means the person or entity who signs up for our Services or who signs up to download our software;
"Customer Data" means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Services by the Customer (but excluding analytics data relating to the use of the Platform and server log files);
"Customer Personal Data" means any Personal Data that is processed by the Provider on behalf of the Customer in relation to the Agreement, but excluding personal data with respect to which the Provider is a data controller;
"Data Protection Laws" means all applicable laws relating to the processing of Personal Data including, while they are in force and applicable, the United Kingdom's Data Protection Act 2018 ,the General Data Protection Regulation (Regulation (EU) 2016/679 and India’s Information Technology Act, 2000
"Documentation" means the documentation for the Services produced by the Provider and delivered or made available by the Provider to the Customer;
“Download Form” means an online registration form published by the Provider and completed and submitted by the Customer incorporating these Terms and Conditions by reference for downloading the software;
"Effective Date" means the first date and time on which the customer completes and submits the sign-up form and or download form published by the Provider on the Provider's website;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, epidemics, pandemics, terrorist attacks and wars);
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Personal Data" For Customers in UK or EU it has the meaning given to it in the Data Protection Laws applicable in the United Kingdom OR the European Union from time to time; For customers in other countries, it means personal information such as name, email address, address, phone number, organization, financial information provided by the customer to the provider.
"Platform" means the platform managed by the Provider and used by the Provider to provide the Services, including the application and database software for the Services, the system and server software used to provide the Services, and the computer hardware on which that application, database, system and server software is installed;
"Provider" means Geotechnical Engineering Modelling Software (GEMS) LLP a limited liability partnership established under the laws of India having its principal place of business in Bangalore, Karnataka, India;
"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under these Terms and Conditions including without limitation providing the User Interface, Platform and the Software as defined below as a service to be used via the Platform or for downloading purposes
"Services Order Form" means an online order form published by the Provider or an electronic document sent via email by the Provider and completed and submitted by the Customer incorporating these Terms and Conditions by reference;
"Sign-up Form" means an online registration form published by the Provider and completed and submitted by the Customer incorporating these Terms and Conditions by reference;
“Software” means that certain software including without limitationGEMS Foundation Analysis Suite and GEMS Cloud Applications available via our website, which will be made available by the Provider to each Customer as a serviceor the downloadable computer program owned or licensed by GEMS and provided to you under this Agreement for usage, including, without limitation, modelling foundations for civil engineering structures
“Source Code” shall mean the human-readable form of a computer program or Software and all related system documentation, including all comments and any procedural code such as job control language.
"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Services, but shall not include the provision of training services;
"Supported Web Browser" means the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari web browsers;
"Term" means the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
"Terms and Conditions" means all the documentation containing the provisions of the Agreement, namely the main body of these Terms and Conditions and Schedule 1 (Acceptable Use Policy), including any amendments to that documentation from time to time; and
“Open Source Technology” means any technology from the open source community, including without limitation, any software that requires, as a condition of use, modification and/or distribution of such software, that other software incorporated into, derived from or distributed with such software be: (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge.
"User Interface" means the interface for the Services designed to allow individual human users to access and use the Services.
"Website" refers to Geotechnical Engineering Modelling Software (GEMS), accessible from https://www.gemsoftware.org
2.1 The Agreement shall come into force upon the Effective Date.
2.2 The Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 17 or any other provision of these Terms and Conditions.
2.3 Unless the parties expressly agree otherwise in writing, each Services Order Form shall create a distinct contract under these Terms and Conditions.
2.4 We may update these terms, may add additional terms, may remove certain terms from time to time (1) to reflect changes in our services or how we do business (2) for legal, regulatory or security reasons, or (3) to prevent abuse or harm. If we materially change these terms or add additional terms or remove certain terms, we’ll provide you with reasonable advance notice and the opportunity to review the changes, except (1) when we launch a new service or feature, or (2) in urgent situations, such as preventing ongoing abuse or responding to legal requirements. If you don’t agree to the new terms, you should contact us regarding the same and stop using the services. You can also end your relationship with us at any time by terminating your contracts with us.
3.1 The Provider hereby grants to the Customer a non-transferable, non-sub-licensable, non-assignable, non-exclusive and revocable licence to use the Services by means of the User Interface and the API in accordance with the Documentation during the Term.
3.2 The licence granted by the Provider to the Customer under Clause 3.1 is subject to the following limitations:
(a) the Services may only be used through a Supported Web Browser;
(b) the Services may only be used by Customers who have signed up using the sign-up form after agreeing to these Terms and Conditions and at the time of registration, Customer shall be required to share information which may include personal information (“Personal Information”) including but not limited to information regarding Customer’s business, e-mail ID, name, institution details, location, and other relevant details. Customer agrees that any registration information provided by the Customer shall always be accurate, correct and complete which is substantially important because the Provider may send notices, statements and other information to the Customer by email or through its account. It is the sole responsibility of the Customer to keep all its Authorized Users’ passwords and usernames confidential and shall not share them with third parties. Customer is solely and completely responsible for all actions taken through its accounts.
(c) the Services may only be used by the named users identified in sign-up form, providing that the Customer may change, add or remove a designated named user in accordance with the procedure set out therein;
(d) the Services must not be used at any point in time by more than the number of concurrent users specified in Sign-up form, providing that the Customer may add or remove concurrent user licences in accordance with the procedure set out therein;
3.3 Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 3.1 is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the Services;
(b) the Customer must not permit any unauthorised person or application to access or use the Services;
(d) the Customer must not republish or redistribute any content or material that is not created by him from the Services;
(e) the Customer must not make any alteration to the Platform or the Software; and
(f) the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Services without the prior written consent of the Provider.
(g) the Customer shall not resell, assign, rent, give, transfer, pass title to, lease, copy, provide access to or sublicense the Software to any third-party
(h) The Customer shall not Reverse engineer, decompile, disassemble, decipher, decrypt, or otherwise seek to discover or obtain the source code or non-public APIs to Software (including any data structure or similar materials produced by the Software), except to the extent expressly permitted by applicable law despite this prohibition (and then only upon advance notice to GEMS);
(i) The Customer shall not modify, adapt or create derivative works of the Software
(j) The Customer shall not remove or obscure any proprietary or other notices of GEMS or of any third party contained in the Software
(k) The Customer shall not use the Software for any commercial solicitation purposes or spam;
(l) The Customer shall not attempt to do any of the foregoing, encourage others to do so, or otherwise attempt to bypass or circumvent any usage restrictions in this Agreement
Violation of any of the above-mentioned shall attract severe penal liabilities to the Customer and lead to immediate cessation of usage of the Software at GEMS’s discretion
3.4 The Customer shall implement and maintain reasonable security measures relating to the Access Credentials to ensure that no unauthorised person or application may gain access to the Services by means of the Access Credentials.
3.5 The Provider shall use reasonable endeavours to maintain the availability of the Services to the Customer at the gateway between the public internet and the network of the hosting services provider for the Services, but does not guarantee 100% availability.
3.6 The Customer must comply with Schedule 1 (Acceptable Use Policy),and must ensure that all persons using the Services with the authority of the Customer or by means of the Access Credentials comply with Schedule 1 (Acceptable Use Policy).
3.7 The Customer must not use the Services in any way that causes, or may cause, damage to the Services or Platform or impairment of the availability or accessibility of the Services.
3.8 The Customer must not use the Services in any way that uses excessive Platform resources and as a result is liable to cause a material degradation in the services provided by the Provider to its other customers using the Platform; and the Customer acknowledges that the Provider may use reasonable technical measures to limit the use of Platform resources by the Customer for the purpose of assuring services to its customers generally.
3.9 The Customer must not use the Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
3.10 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
3.11 The Provider may suspend the provision of the Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue Services.
SOFTWARE FOR CLOUD SERVICE: Whereby the Customer is using the Software for the cloud service as made available by the Provider, the Customer shall have access to the upgraded Software at all time that means that the Customer through cloud service shall have access to only the latest version of the Software
SOFTWARE FOR DOWNLOAD: Whereby any new updates/upgrades of the Services is launched by the Provider, the Customer may at its will, subscribe to such updates/ upgrades and in the event where Customer does not choose to update/upgrade the Software, certain features or functionality of the Software may no longer be accessible to such Customer. In the event that the features made available require substantial modifications or additional services, then the Customer shall be required to pay charges as intimated by the Provider from time to time The Customer understands and agrees that the support services by the Provider with regard to a non-upgraded or older version of the Software may be limited.
3.13 IP Protection Mechanisms–The Services may have license protection mechanisms designed to manage and protect the Provider’s and its suppliers’ and licensors’ intellectual property rights. Software may contain license management technology that must be activated in order for the Software to function, and may include a license administration software, and/or a license authorization key to control access to the Software and identify and deter any use of the Software in violation of this Agreement. Customers are not allowed to modify or alter these mechanisms or try to circumvent them or the usage rules they are designed to enforce. GEMS reserves the right to embed a software security mechanism within the Software to collect, store and transmit to GEMS or its agent, data relating to the usage of an unauthorized or illegal copy of the Software, including, without limitation, information about the device(s) and location(s) where an unauthorized or illegal copy of the Software is used, the number of times it has been copied, and specific user information of the user of an unauthorized or illegal copy of the Software, such as the username or email address of such unauthorized user. Customer consents to such collection and transmission of data, as well as its use if an unauthorized or illegal copy is detected.
3.14 The Provider and its licensors reserve all rights not expressly granted to Customer in this Agreement. The Software (including any content or information contained therein) and all copies thereof are protected by copyright and other intellectual property laws and treaties. The Provider or its licensors own the title, copyright, and other intellectual property rights in the Services and all copies, modifications and derivative works of the Services and underlying software, and Customer does not acquire any ownership rights in the Services and Software whatsoever.
4. Customer Data
4.1 The Customer hereby grants to the Provider, a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under the Agreement. The Customer also grants to the Provider the right to sub-license these rights to its hosting, connectivity and telecommunications service providers, subject to any express restrictions elsewhere in the Agreement.
4.2 The Customer agrees that the provider and its Affiliate organizations may collect and use information gathered in any manner as part of the product licensing, Services, and product support services provided to you. The provider may also use this information to provide notices to you which may be of use or interest to you.
4.3 The Customer warrants to the Provider that the Customer Data OR the Customer Data when used by the Provider in accordance with the Agreement will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
5. Support Services
5.1 The Provider may provide the Support Services to the Customer during the Term, but shall have no obligation to do so; any such Support Services shall be subject to this Clause 5.
5.2 The Provider may make available to the Customer an email-based helpdesk.
5.3 The Provider shall provide the Support Services with reasonable skill and care.
5.4 The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.
5.5 The Provider shall respond promptly to all requests for Support Services made by the Customer through the helpdesk.
5.6 The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 7 days' email/written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.
6. No assignment of Intellectual Property Rights
6.1 Nothing in these Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights as made available by the Provider on its Website, Platform and/or in its Services and Software, from the Provider to the Customer
6.2 The Provider shall at all times retain ownership of the Software, its content and the documentation provided along with (except in the Open Source Software as detailed in Clause 16) as originally used and/or downloaded by the Customer and all subsequent downloads of the Software by the Customer. The Software (and the copyright, and other intellectual property rights of whatever nature in the Software, including any modifications made thereto) are and shall remain the property of the provider.
6.3 The Provider reserves the right to grant licences to use the Software to any third parties, anywhere in the world.
6.4 The Provider shall at all times retain ownership of the Software hosted by it as used by the Customer.
6.5 Unless otherwise specified, Customer shall not access, reverse-engineer, modify, copy, share internally or externally to third party any Source Code of the Software. The Source Code is an intellectual property of the Provider or its licensors and any access, modification, copying, sharing will be wilful violation of the Provider’s or its licensors’ Intellectual Property Rights
7. Evaluation and Trial
7.1 For evaluation (or test or trial or demonstration) use, the Customer cannot use it after the evaluation period.
7.2 Evaluation (or test or trial or demonstration) software may not be used in a live operating environment.
7.3 Some software may be licensed on a trial basis. The Customer’s rights to use trial software are limited to the trial period. The trial software and length of the trial period are set forth during the download or service signup or activation process.
7.4 The Customer may have the option to convert your trial rights to subscription or perpetual rights if presented to the Customer at the expiration of trial period. After the expiration of a trial period without conversion, most features of the trial software will stop running.
7.5 Evaluation and trial software are licensed “as-is,” and the Customer shall bear the entire risk as to the software’s quality and performance. Should the software prove defective, the Customer shall assume the entire cost of all servicing or repair. The provider gives no express warranties, guarantees or conditions. You may have additional consumer rights under your local laws which this agreement cannot change. To the extent permitted under your local laws, the provider excludes the implied warranties of merchantability, fitness for a particular purpose and non-infringement.
8.1 The Customer shall pay the Charges to the Provider in accordance with these Terms and Conditions. GEMS allows the use of the Services to the Customer on a subscription or perpetuity basis as opted for, by the Customer for a fee (“Fee”) as applicable for the package/plan chosen by the Customer.
8.2 All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider.
8.3 The Provider may elect to vary any element of the Charges at its sole discretion by giving to the Customer not less than 30 days' written notice of the variation.
8.4 In the event that the Customer fails to make payments towards the Fee or the renewal Fee thereof, as and when they become due, the Provider shall terminate the access of the Services to the Customer.
9.1 The Customer must pay the Charges to the Provider in advance of the period to which they relate. GEMS will use the services of quality third party payment service Providers to process your payment and makes certain methods of payment available including without limitation, Credit Cards, PayPal and Bank transfers (“Payment Method(s)”). Customer hereby authorizes the Provider and its Affiliates to process Payment Methods, to store information concerning Payment Methods to ensure the timely payment to the Provider pursuant to the Agreement and for the Services as opted for by the Customer, or to charge a Customer’s Payment Method for any purpose authorized under these Terms and Conditions or to otherwise compensate the Provider for a Customer’s failure to abide by these Terms and Conditions.
9.2 If the Customer does not pay any amount properly due to the Provider under these Terms and Conditions, the Provider may:
(a) charge the Customer interest on the overdue amount at the rate of 8% per annum above the Reserve Bank of India repo rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month);
9.3 When the customer purchases a subscription, the customer must provide the Provider with complete and accurate payment information. By submitting payment details you promise that you are entitled to purchase a subscription using those payment details. If the Provider does not receive payment authorization or any authorization is subsequently cancelled, the Provider may immediately terminate or suspend the customers access to their subscription. In suspicious circumstances the Provider may contact the issuing bank/payment provider and/or law enforcement authorities or other appropriate third parties. If the customer is entitled to a refund under these Terms and Conditions, we will credit that refund to the card or other payment method the customer used to submit payment, unless it has expired in which case, we will contact the customer.
9.4 The provider does not represent or warrant that the transaction services provided by such third parties for modes of payment will be available, accessible, uninterrupted, timely, secure, accurate, complete, or entirely error-free. The Customer understands and agrees that provider shall bear no risk with respect to customer availing services, including, without limitation, any risk associated with card fraud or chargebacks.
10. Data protection
10.1 The Provider shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.
10.2 For customers based in European Economic area and United Kingdom, as at the Effective Date, the customer acknowledges that the Provider and sub-processors (identified in 10.12) are not based in the European Economic area or United Kingdom and the customer authorizes the Provider and sub-processors (identified in 10.12) to process the customer’s data (personal and others) outside of European Economic area and United Kingdom for providing hosted service.
10.3 The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with the Agreement.
10.4 The Customer shall only supply to the Provider, and the Provider shall only process, in each case under or in relation to the Agreement, the Personal Data of the following types: name, email address, telephone, organization, address and payment information (if provided) and the Provider shall only process the Customer Personal Data for the following purposes: Providing hosted service to the customer, providing software license to the customer, email and postal communication between the Provider and the customer (including billing, service updates, support, marketing and legal communications), and for processing payments.
10.5 The Provider shall only process the Customer Personal Data during the Term and for not more than 365 days following the end of the Term, subject to the other provisions of this Clause 10.
10.6 For customers residing in European Economic Area and United Kingdom, the Customer may restrict the processing of their data in circumstances as laid down in the General Data Protection Act (GDPR). The Provider shall promptly inform the Customer if, in the opinion of the Provider, an instruction of the Customer relating to the processing of the Customer Personal Data infringes the Data Protection Laws.
10.8 Notwithstanding any other provision of the Agreement, the Provider may process the Customer Personal Data if and to the extent that the Provider is required to do so by Applicable Law.
10.11 As at the Effective Date, the Provider is hereby authorised by the Customer to engage, as sub-processors with respect to Customer Personal Data, the following third parties including without limitation: Google LLC, NetAPP Inc, PayPal Holdings Inc, wyDay, LLC.
10.12 The Provider shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer's obligation to respond to requests exercising a data subject's rights under the Data Protection Laws.
10.13 The Provider shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data.
10.14 The Provider shall make available to the Customer all information necessary to demonstrate the compliance of the Provider with its obligations under this Clause 10 and the Data Protection Laws. The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Clause 10.14, providing that no such charges shall be levied with respect to the completion by the Provider (at the reasonable request of the Customer, not more than once per calendar year) of the standard information security questionnaire of the Customer.
10.15 The Provider shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer after the termination of this Agreement, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.
10.16 The Provider shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of the compliance of the Provider's processing of Customer Personal Data with the Data Protection Laws and this Clause 10. The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Clause 10.16, providing that no such charges shall be levied where the request to perform the work arises out of any breach by the Provider of the Agreement or any security breach affecting the systems of the Provider.
10.17 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under the Agreement, then the parties shall use their best endeavours promptly to agree such variations to the Agreement as may be necessary to remedy such non-compliance.
10.18 The Provider must notify a Supervisory Authority of any Personal Data breach affecting the Customer Personal Data without undue delay and, in any case, not later than 72 hours after the Provider becomes aware of the breach.
11.1 The Customer warrants to the Provider that it has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions. If the Customer is an entity, this Agreement and the sign up is done by an employee or agent of such party with all necessary authority then the terms and conditions of this Agreement shall be binding upon such entity.
11.2 All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
12. Acknowledgements and warranty limitations
12.1 The Provider shall use reasonable skill and due care in providing the service. The following disclaimers are subject to this express warranty.
12.2 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Services will be wholly free from defects, errors and bugs.
12.3 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Services will be entirely secure. The Provider does not represent or guarantee that the service will be free from loss, corruption, attack, viruses, interference, hacking, or other security intrusion, and the Provider disclaims any liability relating thereto.
12.4 The Customer acknowledges that the Services are designed to be compatible only with that software and those systems specified as compatible in the relevant pages of the Provider’s Website and the Provider does not warrant or represent that the Services will be compatible with any other software or systems.
12.5 The Provider does not guarantee, represent, or warrant that your use of the Services will be uninterrupted or error-free, and you agree that from time to time the Provider may remove the Services or any underlying Software for indefinite periods of time, or cancel the Services in accordance with the terms of this Agreement. The Provider further does not guarantee as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of any Services or any content therein or generated therewith,
12.6 Any material downloaded or otherwise obtained through the use of the Services is accessed at your own discretion and risk, and you will be solely responsible for any damage to your device, computer, or loss of data that results from the download of any such material. You further acknowledge that the Services are not intended or suitable for use in situations or environments where the failure or time delays of, or errors or inaccuracies in, the content, data or information provided by the service could lead to death, personal injury, or severe physical or environmental damage.
12.7 The Customer agrees that the Provider will not provide any legal, financial, accountancy or taxation advice under these Terms and Conditions or in relation to the Services; and, except as expressly provided otherwise in these Terms and Conditions, the Provider does not warrant or represent that the Services or the use of the Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
12.8 Customer acknowledges that while the Provider may, at its sole discretion, provide maintenance and support for the Services from time to time, the Provider shall have no specific obligation whatsoever to furnish such services to you.
12.9 In furtherance of the Services provided by the Provider, the Provider has associations with various third-parties whereby the Customer shall be governed by the Terms and Conditions of the respective third-party as well. Thus, the Customer is advised to go through the Terms and Conditions of such Third-Parties as well for their knowledge. To use the third-party service, you must agree to the terms and conditions imposed by the third party provider and the agreement to use such service will be solely between you and the third party provider. In no event shall the Provider be liable for claims or damages of any nature, whether direct or indirect, arising from or related to any third-party software services.
13. Limitations and exclusions of liability
13.1 To the fullest extent permissible by applicable law, in no event (including, without limitation, in the event of negligence) will Geotechnical Engineering Modelling Software (GEMS) LLP (Provider), its partners, its owners, its employees, its associates, its contractors, agents or distributors be liable for any consequential, incidental, indirect, special or punitive damages whatsoever (including, without limitation, damages for loss of property, damages to property, loss of lives, injuries, loss of profits, loss of use, business interruption, loss of information or data, or pecuniary loss), in connection with or arising out of or related to this Agreement, software/services hosted by the Provider or the use or inability to use software/ services hosted / provided by the Provider or the furnishing, performance or use of any other matters hereunder whether based upon contract, tort or any other theory including negligence.
If applicable law does not allow all or any part of the above limitation of liability to apply to you, the limitations will apply to you only to the extent permitted by applicable law.
13.2 The limitations and exclusions of liability set out in this Clause 13 and elsewhere in these Terms and Conditions:
(a) are subject to Clause 13.1; and
(b) govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.
13.3 The Provider will not be liable to the Customer in respect of any losses arising out of a Force Majeure Event.
13.4 The Provider will not be liable to the Customer in respect of any loss of profits or anticipated savings.
13.5 The Provider will not be liable to the Customer in respect of any loss of revenue or income.
13.6 The Provider will not be liable to the Customer in respect of any loss of business, contracts or opportunities.
13.7 The Provider will not be liable to the Customer in respect of any loss or corruption of any data, database or software.
13.8 The Provider will not be liable to the Customer in respect of any special, indirect or consequential loss or damage.
13.9 The Provider will not be liable to the Customer in respect of any losses arising out of the customer using a trial or demo or alpha test or beta test or test or evaluation version of an application or module of an application hosted by the Provider or downloaded from the Provider’s website.
13.10The aggregate liability of the Provider to the Customer in any circumstance what so ever, under the Agreement shall not exceed the lower of following sums:
a. the amount paid in aggregate by the Customer to the Provider for the purchase of the Software; or
b. INR 25,000 (Indian Rupees Twenty Five Thousand Only)
14.1 The Customer shall indemnify, hold harmless, and defend the Provider , its partners, its owners, its employees, its associates, its contractors, agents or distributors against any and all claims, proceedings, demand and costs resulting from or in any way connected with your use of Provider's Software / Services.
15. Force Majeure Event
15.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
16. 3rd Party Licenses
16.1 Certain items of software included with the Product Software are subject to “open source” or “free software” licenses (“Open Source Technology”). Some of the Open Source Technology is owned by third parties. The Open Source Technology is not subject to the terms and conditions of this agreement. Instead, each item of Open Source Technology is licensed under the terms of the end user license that accompanies such Open Source Technology. Nothing in this terms and service limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Technology. If required by any license for particular Open Source Technology, the Provider makes such Open Source Technology, and the Provider’s modifications to that Open Source Technology, available by written request to at the email or mailing address listed below.
16.2 Additional details of the open source software included can be found at https://www.gemsoftware.org/opensource.html
17.1 Either party may terminate the Agreement by giving to the other party at least 30 days written notice of termination.
17.2 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of these Terms and Conditions.
17.3 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company re-organisation where the resulting entity will assume all the obligations of the other party under the Agreement); or
(d) if that other party is an individual:
(i) that other party dies;
(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
(iii) that other party is the subject of a bankruptcy petition or order.
17.4 It will also terminate immediately if you fail to comply with any term of this agreement. Upon such termination, the licenses, services granted by this agreement will immediately terminate and you agree to stop all access and use of the Software / Service. Upon termination of this license granted herein for any reason, you agree to immediately cease use of all Services provided by the Provider. The provisions that by their nature continue and survive will survive any termination of this agreement. The financial obligations incurred by you shall survive the expiration or termination of this license.
18. Effects of termination
18.1 Upon the termination of the Agreement, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3.10, 9, 10, 13, 14, 18, 21 and 22.
18.2 Except to the extent that these Terms and Conditions expressly provides otherwise, the termination of the Agreement shall not affect the accrued rights of either party.
18.3 Within 30 days following the termination of the Agreement for any reason:
(a) the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of the Agreement; and
(b) the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of the Agreement,
without prejudice to the parties' other legal rights.
19.1 Any notice from one party to the other party under these Terms and Conditions must be given by one of the following methods:
(a) sent by email to the relevant email address specified through the Services, in which case the notice shall be deemed to be received upon receipt of the email by the recipient's email server;
(b) sent by email by the Provider to the customer using the email provided in the sign-up form or service order form or download form.
providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
20.1 Subject to any express restrictions elsewhere in these Terms and Conditions, the Provider may subcontract any of its obligations under the Agreement.
21.1 No breach of any provision of the Agreement shall be waived except with the express written consent of the party not in breach.
21.2 If any provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
21.3 The Customer hereby agrees that the Provider may assign the Provider's contractual rights and obligations under the Agreement to any successor to all or a substantial part of the business of the Provider from time to time OR any third party - providing that such action does not serve to reduce the guarantees benefiting the Customer under the Agreement. Save to the extent expressly permitted by applicable law, the Customer must not without the prior written consent of the Provider assign, transfer or otherwise deal with any of the Customer's contractual rights or obligations under the Agreement.
21.4 The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.
21.6 This agreement, and any dispute arising out of or in connection with this agreement, shall be governed by and construed in accordance with the laws of India.
21.7 If the Customer has any concern or dispute about the Service, the Customer agrees to first try to resolve the dispute informally by contacting the Provider.
21.8 Arbitration: In the event of any dispute or difference between the Parties hereto, whether arising during the currency or after the completion of this Agreement, or after the determination thereof (whether for breach or for any other reason) in regard to any matter or thing of whatsoever nature arising out of this Agreement or in connection therewith, then either Party shall give to the other notice, in writing, of such dispute or difference and the same shall be settled by arbitration in Bengaluru, Karnataka, India in accordance with the Arbitration and Conciliation Act, 1996, or any statutory modification or substitution thereof. In case of arbitration, each party shall bear the cost of the Arbitrator appointed by each respective Party and the Parties agree and understand that the final award of the Arbitration proceedings shall be binding upon the Parties. The courts of Bengaluru, Karnataka, India shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.
21.9 If any provision shall be considered unlawful, void or otherwise unenforceable, then that provision shall be deemed severable from this License and not affect the validity and enforceability of any other provisions.`
21.10 The formation, validity, interpretation, performance of, and the resolution of dispute arising out of, this Agreement shall be governed by the laws of India
22.1 In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
22.2 The Clause headings do not affect the interpretation of these Terms and Conditions.
22.3 References in these Terms and Conditions to "calendar months" are to the 12 named periods (January, February and so on) into which a year is divided.
22.4 In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
23. Questions or Additional Information
Schedule 1 (Acceptable Use Policy)
1.1 This acceptable use policy (the "Policy") sets out the rules governing:
(a) the use of the website at gemsoftware.org, any successor website, software / applications available on that website or any successor website, and the services available on that website or any successor website (the "Services"); and
(b) the transmission, storage and processing of content by you, or by any person on your behalf, using the Services ("Content").
1.2 References in this Policy to "you" are to any customer for the Services and any individual user of the Services (and "your" should be construed accordingly); and references in this Policy to "us" are to Geotechnical Engineering Modelling Software (GEMS) LLP (and "we" and "our" should be construed accordingly).
1.3 By using the Services, you agree to the rules set out in this Policy.
1.4 We will ask for your express agreement to the terms of this Policy when you sign up to use the Services.
1.5 You must be at least 18 years of age to use the Services; and by using the Services, you warrant and represent to us that you are at least 18 years of age.
1.6 You must be a qualified person to use the Services; and by using the Services, you warrant and represent to us that you are technically qualified.
2. General usage rules
2.1 You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.
2.2 You must not use the Services:
(a) in any way that is unlawful, illegal, fraudulent, deceptive or harmful; or
(b) in connection with any unlawful, illegal, fraudulent, deceptive or harmful purpose or activity.
2.3 You must ensure that all Content complies with the provisions of this Policy.
3. Unlawful Content
3.1 Content must not be illegal or unlawful, must not infringe any person's legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
3.2 Content, and the use of Content by us in any manner licensed or otherwise authorised by you, must not:
(a) be libellous or maliciously false;
(b) be obscene or indecent;
(c) infringe any copyright, moral right, database right, trademark right, design right, right in passing off, or other intellectual property right;
(d) infringe any right of confidence, right of privacy or right under data protection legislation;
(e) constitute negligent advice or contain any negligent statement;
(f) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
(g) be in contempt of any court, or in breach of any court order;
(h) constitute a breach of racial or religious hatred or discrimination legislation;
(i) be blasphemous;
(j) constitute a breach of official secrets legislation; or
(k) constitute a breach of any contractual obligation owed to any person.
3.3 You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.
4. Graphic material
4.1 Content must be appropriate for all persons who have access to or are likely to access the Content in question, and in particular for children over 12 years of age.
4.2 Content must not depict violence in an explicit, graphic or gratuitous manner.
4.3 Content must not be pornographic or sexually explicit.
5. Factual accuracy
5.1 Content must not be untrue, false, inaccurate or misleading.
5.2 Statements of fact contained in Content and relating to persons (legal or natural) must be true; and statements of opinion contained in Content and relating to persons (legal or natural) must be reasonable, be honestly held and indicate the basis of the opinion.
6. Negligent advice
6.1 Content must not consist of or contain any legal, financial, investment, taxation, accountancy, medical advice, and you must not use the Services to provide any legal, financial, investment, taxation, accountancy, medical advisory services.
6.2 Content must not consist of or contain any advice, instructions or other information that may be acted upon and could, if acted upon, cause death, illness or personal injury, damage to property, or any other loss or damage.
7.1 Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behaviour on the internet.
7.2 Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.
7.3 Content must not be liable to cause annoyance, inconvenience or needless anxiety.
7.4 You must not use the Services to send any hostile communication or any communication intended to insult, including such communications directed at a particular person or group of people.
7.5 You must not use the Services for the purpose of deliberately upsetting or offending others.
7.6 You must at all times be courteous and polite to other users of the Services.
8. Marketing and spam
8.1 You must not without our written permission use the Services for any purpose relating to the marketing, advertising, promotion, sale or supply of any product.
8.2 Content must not constitute or contain spam, and you must not use the Services to store or transmit spam - which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.
8.3 You must not send any spam or other marketing communications to any person using any email address or other contact details made available through the Services or that you find using the Services.
8.4 You must not use the Services to promote, host or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, multi-level marketing schemes, "get rich quick" schemes or similar letters, schemes or programs.
8.5 You must not use the Services in any way which is liable to result in the blacklisting of any of our IP addresses.
9. Regulated businesses
9.1 You must not use the Services for any purpose relating to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity.
9.2 You must not use the Services for any purpose relating to the offering for sale, sale or distribution of drugs or pharmaceuticals.
9.3 You must not use the Services for any purpose relating to the offering for sale, sale or distribution of knives, guns or other weapons.
10.1 You acknowledge that we may actively monitor the Content and the use of the Services.
11. Data mining
11.1 You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Services.
12.1 You must not link to any material using or by means of the Services that would, if it were made available through the Services, breach the provisions of this Policy.
13. Harmful software
13.1 The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
13.2 The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.
These terms and conditions were published on 17th December 2020 and replace with immediate effect the terms and conditions previously published.