These terms and conditions ("Terms") govern the "Customer’s") access to and use of SpotDraft's contract management, contract creation, contract review and signing tool (each such tool is hereinafter referred as a ‘‘Service’’ and collectively as "Services"). By using the Services, including commenting on a contract or signing any contract through SpotDraft (including as a counterparty), you are agreeing to be bound by these Terms. If you do not agree to be bound by these Terms, you are not permitted to use the Services.
In these Terms, "Contract" refers to a contract generated, submitted, received, commented on, signed or uploaded by the Customer for processing through SpotDraft.
The Customer shall be responsible for verifying compliance with any formalities or other requirements applicable to such other contracting activity. SpotDraft gives no warranty and makes no representations in relation to the suitability of the Service for use in respect of any Contracts.
SpotDraft is not responsible for determining legal or regulatory requirements applicable to the Customer in respect of retention or deletion of Contracts.
SpotDraft shall not be obliged to make available Contracts to any person other than the Customer.
Customer undertakes to determine whether any person correctly classified as a ‘consumer’ under applicable law is a party to any Contract, and for complying with any formalities or other requirements applicable as a result of such consumer status.
2. Electronic signing
As part of the Services, SpotDraft facilitates for the Customer the electronic signing of legal documents by both the Customer and the Customer’s counterparties. The Customer hereby acknowledges that:
those signatures shall be treated as legally binding by both parties to the relevant legal document;
SpotDraft is in no way responsible for validating those signatures or the identity of the relevant signatories; and
SpotDraft or its contractors, agents, partners or suppliers shall not be held liable for any damages and/or losses whatsoever, whether direct, indirect, general, special, compensatory, consequential, and/or incidental (including without limitation lost business opportunities, lost revenues, or loss of anticipated profits or any other pecuniary or non-pecuniary loss or damage of any nature whatsoever) caused by, or arising from, the full or partial invalidity of any signature created through the Services.
Signatures to contracts formed by the use by the Customer of the Services (in accordance with these Terms and applicable law) are intended to meet the definition of ‘electronic signature’ under Information Technology Act, 2000.
The Customer acknowledges that various contract types may not be able to be validly executed using electronic signatures or may be the subject of specific formalities, or storage and retention or information provision requirements imposed by law, for example, certain trust deeds or agreements for sale or transfer of an immovable property.
The Customer, not SpotDraft, is responsible for determining the extent to which of any such requirements apply in respect of its own business activities and as such responsible for ensuring that the Services are not used in respect of any Contracts which may not be lawfully created, executed or stored by means of the Services.
3. Customer’s obligations
By accessing or using the SpotDraft platform or by availing any Services, the Customer will not, directly or indirectly:
reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services ("Software");
modify, adapt, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by SpotDraft or authorized within the Services).
access all or any part of the Services or the Software in order to build a product or service which competes with the Services;
use the Services to provide services to third parties;
license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the employees or agents of the Customer;
impersonate any person or entity, falsely claim or otherwise misrepresent affiliation with any person or entity, or access the accounts of others without permission, forge another person’s digital signature, misrepresent the source, identity, or content of information transmitted via the Services or perform any other similar fraudulent activity;
intentionally interfere with or damage the operation of Services by any means, including by uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code or file with contaminating or destructive features;
take any action that imposes an unreasonably or disproportionately large load on SpotDraft’s infrastructure;
provide misleading, false or inaccurate information;
use the Services in a manner that results in or may result in any complaints, disputes, fines, penalties or other liability to SpotDraft, a third party or the Customer;
use the Services in a manner that is illegal or causes damage or injury to any person or property;
access, store, distribute or use during the course of its use of the Services any malware or any material that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; promotes unlawful violence; is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
attempt to obtain, or assist third parties in obtaining, access to the Services. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify SpotDraft (at firstname.lastname@example.org).
The Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including modems, hardware, servers, software, operating systems, networking, web servers and the like.
The Customer shall:
provide SpotDraft with all necessary co-operation in relation to this agreement (and all necessary access to such information as may be required by SpotDraft) in order to provide the Services, including Customer Data, security access information and configuration services;
comply with all applicable laws and regulations with respect to its activities under this agreement;
carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, SpotDraft may adjust any agreed timetable or delivery schedule as reasonably necessary; and
obtain and maintain all necessary licences, consents, and permissions necessary for SpotDraft, its contractors and agents to perform their obligations under this agreement, including providing the Services.
SpotDraft reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this Clause 3.
4. SpotDraft’s obligations
SpotDraft undertakes that the Services will be performed substantially in accordance with the Service Description and with reasonable skill and care.
The undertaking above shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to SpotDraft's instructions, or modification or alteration of the Services by any party other than SpotDraft or SpotDraft's duly authorised contractors or agents.
If the Services are not provided in accordance with the Services Description or are not provided with reasonable skill and care, SpotDraft will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly. This constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out above in this Clause 5.
To be clear, SpotDraft:
does not warrant that the Customer's use of the Services will be uninterrupted or error-free; and
is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
5. Intellectual property
SpotDraft shall own and retain all right, title and interest in and to:
the Services and Software, all improvements, enhancements or modifications thereto;
any software, applications, inventions or other technology developed in connection with Implementation Services or Support Services; and
all intellectual property rights related to any of the foregoing.
Nothing in these Terms shall operate to assign or transfer any intellectual property rights from SpotDraft to the Customer.
The Customer warrants to SpotDraft that any data it supplies to SpotDraft will not infringe upon 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 or regulation.
The Customer hereby grants to SpotDraft a worldwide, non-exclusive licence to use its trade-marks, logos and other necessary intellectual property in any marketing or promotional materials including, but not limited to, on SpotDraft’s website.
"SpotDraft" is a trade mark of Draftspotting Technologies Private Limited. All rights are reserved.
6. Customer data
The Customer shall own all right, title and interest in and to the data inputted by or for the Customer for the purpose of using the Services (the "Customer Data") as well as any data that is based on or derived from the Customer Data and provided to the Customer as part of the Services. The Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
The Services provide the means to store Contracts created using the Services to be stored as pdf or html files on Amazon Web Services or download individual Contracts as pdf files. Additionally, the Customer may choose to use the Services to transfer such files to, and store such files on, any third party storage facility integrated and supported by SpotDraft from time to time (for example, Google Drive) ("Customer Storage Partner").
SpotDraft stores Contracts on servers operated and controlled by Amazon Web Services (or such other hosting partner as it may contract with from time to time), in respect of which information security practices policies and safeguards have been applied to a standard commensurate with services of this nature.
In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for SpotDraft to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by SpotDraft in accordance with the archiving procedure described in its Data Security Policy in force from time to time. SpotDraft shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
Notwithstanding anything to the contrary, SpotDraft shall have the right to collect and analyse Customer Data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including information concerning Customer Data and data derived therefrom), and SpotDraft will be free (both during and after the term of these Terms):
To be clear, SpotDraft:
to use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other SpotDraft offerings; and
to use or disclose such data (including to third parties), solely in an aggregate form (or any other form which does not identify any individual natural person) in connection with its business, including for the training of its machine learning algorithms and other data processes deployed by SpotDraft.
To the extent that SpotDraft processes any personal data on the Customer's behalf when performing its obligations under this agreement, the parties record their intention that the Customer shall be the data controller and SpotDraft shall be a data processor and in any such case:
the Customer acknowledges and agrees that the personal data may be transferred or stored outside the territory of India in order to carry out the Services and SpotDraft's other obligations under this agreement;
the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to SpotDraft so that SpotDraft may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer's behalf;
the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required under any applicable data protection legislation;
the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
SpotDraft shall process the personal data only in accordance with the terms of this agreement and any lawful instructions reasonably given by the Customer from time to time; and
each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
7. Third party service providers
The Customer acknowledges that the Services may enable or assist it to access the services or content of or correspond with third-party services (including Slack, Google, Salesforce and any payment processor such as Stripe to which the Services may facilitate access) and that it does so solely at its own risk.
SpotDraft makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or interactions with, any such third-party service.
Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (herein after referred to as "Proprietary Information" of the Disclosing Party).
Proprietary Information of SpotDraft includes all non-public information regarding features, functionality and performance of the Service. Proprietary Information of the Customer includes non-public data provided by the Customer to SpotDraft (for example, the parties and content of contracts) to enable the provision of the Services.
The Receiving Party agrees:
to take reasonable precautions to protect such Proprietary Information; and
not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.
The Disclosing Party agrees that the foregoing shall apply with respect to any information for a period of 3 years after the termination/ expiry of this agreement.
This Clause shall not apply to any information that (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to the receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, or (d) is required to be disclosed by law.
For the avoidance of doubt, SpotDraft may use data or insights provided by the Customer to develop or improve services provided by SpotDraft to the Customer or any other customers of SpotDraft.
The Customer shall defend, indemnify and hold harmless SpotDraft, its employees, officers, directors and partners against all claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) arising out of or in connection with the Customer's use or misuse of the Services, provided that:
the Customer is given prompt notice of any such claim;
SpotDraft provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
the Customer is given sole authority to defend or settle the claim.
SpotDraft shall defend , its officers, directors and employees against any claim that the Services infringe any Indian patent effective as of the date of entering into this agreement, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
SpotDraft is given prompt notice of any such claim;
the Customer provides reasonable co-operation to SpotDraft in the defence and settlement of such claim, at SpotDraft's expense; and
SpotDraft is given sole authority to defend or settle the claim.
The indemnity immediately above states the Customer's sole and exclusive rights and remedies, and SpotDraft's (including SpotDraft's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
10. The nature of this relationship
SpotDraft is not a law firm and SpotDraft’s directors or employees are not acting as the Customer’s lawyer or providing legal advice. The use by the Customer of the Services does not create a lawyer-client relationship.
The Customer understands that SpotDraft does not practice law, nor does it hold a professional indemnity insurance policy and therefore cannot give legal advice that can be relied upon.
11. Limitation of liability
This Clause 11 sets out the entire financial liability of SpotDraft (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
arising under or in connection with these Terms;
in respect of any use made by the Customer of the Services or any part of them; and
in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms.
Except as expressly and specifically provided in these terms:
the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. SpotDraft shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to SpotDraft by the Customer in connection with the Services, or any actions taken by SpotDraft at the Customer's direction;
all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
the Services are provided to the Customer on an "as-is" basis.
Nothing in this agreement excludes the liability of SpotDraft:
for fraud or fraudulent misrepresentation; or
any liability for which it would be unlawful to exclude or attempt to exclude.
Subject to the paragraph immediately above:
SpotDraft shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information (including Customer Data), or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
SpotDraft's total aggregate liability in contract (including in respect of any indemnity in these Terms), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these Terms shall be limited to 100% of the total fees paid by the Customer to SpotDraft in respect of the Services during the 2 months immediately preceding the date on which the claim arose.
12. Data security
The Customer shall be responsible for maintaining the security of accounts, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer accounts with or without the Customer’s knowledge or consent. The customer shall not remove, circumvent, disable, damage or otherwise interfere with security-related features of the Services.
The Customer acknowledges that it is responsible for taking back-up copies of data and appropriate precautions to protect the Customer’s computer systems against unauthorised access. If the Customer does anything to or in relation to the Services which is a criminal offence under any law, the Customer’s right to use the Services will be withdrawn immediately.
Due to the nature of the Internet, the Services are not guaranteed to be delivered free of all viruses and technical defects of any description.
13. Force Majeure
SpotDraft is not a law firm and SpotDraft’s directors or employees are not acting as the Customer’s lawyer or providing legal advice. The use by the Customer of the Services does not create a lawyer-client relationship.
14. Other important terms
These Terms shall constitute the entire agreement between the parties in relation to the subject matter of these Terms, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of such subject matter.
Each of SpotDraft and the Customer acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.
These Terms may not be varied except by a written document signed by or on behalf of each of the parties.
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
If any part of these Terms is, or is found to be, unenforceable under a relevant law, that will not affect the enforceability of the rest of these Terms and the remaining provisions will remain valid and enforceable.
The Customer shall not, without the prior written consent of SpotDraft, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
SpotDraft may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
15. Governing Law and Forum for disputes
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of India.
Each party irrevocably agrees that the courts of Gurugram, Haryana, India shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims). This provision shall survive termination of this agreement.
Headings in these Terms are included for ease of reading and shall not affect the interpretation of these Terms.
References to ‘writing’ in these Terms include email and communication by means of the Customer dashboard comprised in the Services.
If there is an inconsistency between any of the provisions in the main body of these Terms and the Service Description, the provisions in the main body of these Terms shall prevail.
Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.