Eighty 6 Holding Limited, a private company with registration number 4671, incorporated under the laws of the Dubai International Financial Centre, whose registered office is located at 105 Liberty House, DIFC, Dubai – UAE, and is represented by its legal representative Mr. Abdul Kader Saadi (“Eighty6”)
The Eighty6 Services are offered to Client subject to its acceptance, without modification, of these Terms of Service and any future modifications thereof, and procedures that may be published from time to time or made available to Client on or through the Eighty6 Services. When the Eighty6 Services are used by a Client, these Terms form a legally binding contract between Client and Eighty6.
The Terms is a contract that governs Clients’ use of the Eighty6 Services and consists of the following:
1. Subscription
1.1 Right to use the System Subject to the terms of this Agreement, Eighty6 hereby grants the Customer a non-exclusive, non-transferable, revocable license, during the term of this Agreement (i.e. license is granted from the Commencement Date (as defined below) of this Agreement until termination of this Agreement, according to the provisions of Section 10 below), to access and use the System through the Eighty6 web/mobile application (the “Eighty6 App”), solely for Customer’s internal business purposes, subject to Customer’s compliance with any and all of the terms and conditions set forth in this Agreement, including without limitation, the full payment of the fees in accordance with Section 9 below.
1.2 Documentation Eighty6 may make available to the Customer certain documentation (in electronic form or otherwise) describing the use, features and operation of the System (the “Documentation”), to be used solely for the Customer’s internal business purposes and in connection with the Customer’s use of the System, and shall be considered part of Eighty6’s Confidential Information (as defined below).
Services Services provided by Eighty6 The Schedule 1 – Services, attached to this Agreement shall define the scope of services requested by the Customer, which shall be provided by Eighty6. In the event the Customer wishes to make any modification to the scope of services defined in Schedule 1, the Customer must provide a such request in writing specifying the desired changes (“Change Request”). Eighty6 shall submit to the Customer a written response to such Change Request within seven (7) business days following receipt thereof (“Change Request Response”). Eighty6’s Change Request Response shall include a statement of the new scope of services, as well as any impact the proposed changes will have on the fees. Upon acceptance by the Customer of the Change Request Response, the Schedule 1 shall be amended by means of a written, jointly executed document, shall replace the previous schedule and shall be attached to this Agreement.
2.2 Obligations of the Customer Customer hereby agrees to cooperate with Eighty6 to enable the provision of the Services, and comply with instructions provided by Eighty6 to Customer in connection with Eighty6’s provision of Services hereunder; and acknowledges that the provision of certain Services by Eighty6 may be dependent on Customer providing the foregoing cooperation, and that such Services and the scope thereof may be changed by Eighty6 from time to time.
3. Use of Customer Account A Customer account will be created in connection with Customer’s use of the System (the “Account”), to be accessed and/or used solely by Customer’s employees and agents who are explicitly authorized by Customer to use the System and for whom subscriptions to a System have been purchased (each, a “Authorized User”) and independent contractors (each, an “End-User”). Customer acknowledges and agrees: (i) to keep, and ensure that Permitted Users keep all Account login details and passwords secure at all times; and (ii) to promptly notify Eighty6 in writing if Customer becomes aware of any unauthorized access or use of Customer’s Account or the System. Customer shall ensure that the Permitted Users comply with the terms of this Agreement and shall be solely responsible for any breach of this Agreement by a Permitted User. To the extent that the Customer provides any personal data to Eighty6 as part of the process of registration of Permitted Users, Customer represents that (i) it has obtained all necessary consents required under applicable law to provide such personal data to Eighty6 and to allow Eighty6 to process and share such data for the provision of the Services, and (ii) it shall ensure that a record of such consents is maintained, all as required under applicable law. Eighty6 will not be liable for any losses or damage arising from unauthorized use of the Services, and Customer will indemnify and hold Eighty6 harmless for any unauthorized, improper or illegal use of Permitted User accounts and any charges and taxes incurred, unless Eighty6 has been notified via e-mail that the relevant account has been compromised and has requested that access to it be blocked.
Restrictions on Use Customer shall only access the System via the Eighty6 App. Customer must not, and shall not allow any Permitted User or any other third party to: (i) circumvent, disable or otherwise interfere with security-related features of the System or features that enforce limitations on use of the System and/or the Eighty6 App; (ii) violate or abuse password protections governing access to the System or the Eighty6 App; (iii) allow any third party to use the System and/or the Eighty6 App except as permitted herein; (iv) sell, rent, lease, license or timeshare the System and/or the Eighty6 App or use any of them in any service bureau arrangement; (v) copy, modify, reverse engineer, decompile, disassemble or derive, or attempt to derive, the source code of, the System, the Eighty6 App or any components thereof; (vi) use the System and/or the Eighty6 App to develop a competing service or product; (vii) use any automated means to access the System and/or the Eighty6 App; (viii) interfere or attempt to interfere with the integrity or proper working of the System and/or the Eighty6 App; (ix) access, store, distribute, or transmit during the course of its use of the Services any Malicious Code or unlawful, threatening, obscene or infringing material; (x) use the System, the Eighty6 App and/or the Services in a manner that would violate applicable data privacy laws or for any other unlawful purpose; and/or (xi) use the System, Services and/or the Eighty6 App in any other unlawful manner or in breach of this Agreement. For the purposes of this Agreement, “Malicious Code” means software viruses, Trojan horses, worms, malware or other computer instructions, devices, or techniques that erase data or Systemming, infect, disrupt, damage, disable, or shut down a computer system or any component of such computer system.
End User’s Acceptance of the TOU The use of the System and Services by the End-Users through the Eighty6 App shall be subject to Eighty6’s then current Terms of Use (the “TOU”). Each Customer shall have to read and accept the TOU prior to access and use of the System and Eighty6 App. Customer shall: (i) make each End-User aware of the terms of the TOU prior to the use of the System and Eighty6 App; (ii) use all commercially reasonable efforts to enforce the TOU with its End-User; and (iii) promptly report to Eighty6 in writing any breach, or suspected breach, of the TOU which it becomes aware of. Without limiting the foregoing, notwithstanding the End-User liability under the TOU, Customer shall defend, indemnify and hold harmless Eighty6 against any judgment, loss, damage, claim or expense arising out of any breach by a End-User of any provision of the TOU.
Customer Data 6.1 License While using the System, Customer (and any Permitted User on its behalf) may choose to create provide, upload, import, transmit, post, or make accessible (collectively, “Provide”) to Eighty6 certain Customer business related data, including but not limited to inventory, prices, expenses, images and/or and information processed through the System; submissions made through the System or any other data which is stored on (the “Customer Data”). Customer and its Permitted Users, as applicable, will retain all of their ownership rights in their Customer Data. Customer and/or its Permitted Users hereby grant Eighty6 a worldwide, irrevocable, non-exclusive, royaltyfree, perpetual, sub-licensable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Customer Data only in connection with providing and operating the Services.
6.2 Representations Customer represents and warrants that Customer and/or its Permitted Users (i) has the right and has obtained all rights required under any applicable laws (including but not limited to privacy laws) to provide Eighty6 the license granted in Section 6.1 to use such Customer Data in accordance with its terms; (ii) the Customer Data it submits, its use of such Customer Data, and Eighty6’s use of such Customer Data, as set forth in this Agreement, does not and shall not (a) infringe or violate any patents, copyrights, trademarks or other intellectual property, proprietary or privacy or publicity rights of any third party; (b) violate any applicable data protection legislation; (c) be offensive, unlawful, violates export control laws threatening, pornographic, harassing, hateful, or encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is in any way inappropriate; (d) promote illegal drugs, violate export control laws, relate to illegal gambling, or illegal arms trafficking; (e) be otherwise malicious or fraudulent or fail to comply with any applicable laws, rules and regulations; or (f) include any virus, worm, trojan horse, or other harmful or disruptive component. It is hereby clarified that Eighty6 is not obligated to monitor and/or moderate the Customer Data and there shall be no claim against Eighty6 of not acting so, but Eighty6 may, at its sole discretion, choose to monitor the Customer Data for inappropriate or illegal behavior, including through automatic means, provided however, that Eighty6 reserves the right to treat Customer Data as content stored at the direction of users for which Eighty6 will not exercise editorial control except when violations are directly and specifically brought to Eighty6’s attention.
6.3 Availability of Customer Data Customer acknowledges that the System does not operate as an archive or file storage service. Customer is solely responsible for the backup and maintenance of the Customer Data Provided.
Security and Privacy Eighty6 agrees to implement reasonable security measures, but no less than industry standard security procedures, to protect Customer Data during the Term. Eighty6’s Privacy Policy, available at https://eighty6.tech/privacy-policy, governs Eighty6’s collection, processing and transfer of any Personal Data (as such term is defined in the Privacy Policy) and is incorporated herein by reference, and you agree that we may process such Personal Data pursuant to the terms of said privacy policy. Please note that certain personal information and other information provided by the Customer in connection with its use of the Services may be stored on Customer’s devices (even if we do not collect that information). The Customer is solely responsible for maintaining the security of its devices from unauthorized access.
Intellectual Property Ownership 8.1 Eighty6 IP Eighty6 owns all rights, title, and interest in the Services, the System and all software and technical innovations that provide them, as well as in all modifications, enhancements, and updates thereto and all worldwide intellectual property rights, and the trademarks, service marks, and logos contained therein, whether registered and unregistered, as well as all derivatives thereof including any feedback that is provided by Customers (“Eighty6 IP“). Customer may not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated or other materials, if any. Except as expressly granted herein, nothing in this Agreement grants Customer or any Permitte User any right to use any trademark, service mark, logo, or trade name of Eighty6 or any third party. Nothing in this Agreement shall be interpreted to provide Customer or any Permitted User with any rights in Eighty6 IP, except the limited right to receive the Services subject to the terms and conditions hereof. During the Term, Customer may provide Eighty6 with feedback regarding the System and Services, which Eighty6 may use in any manner it deems appropriate, including for commercial purposes and as part of improved and/or future Services. Eighty6 shall not be subject to any nondisclosure or non-use obligations in respect of such feedback.
8.2 Customer IP As between the Parties, any content created or provided by Customer and/or its Permitted Users through the System shall be the sole property of the Customer (“Customer IP”). Customer hereby grants Eighty6 and its successors and assignees a perpetual, irrevocable, transferrable, worldwide, royalty-free, fully paid-up and non-exclusive license under any of its intellectual property, moral or privacy rights to use, copy, distribute, display, modify and create derivative works of any Customer IP for the provision of the Services and for improvement of the Services and the System, in accordance with this Agreement.
Remuneration 9.1 Fees Eighty 6 shall charge certain fees for the provision of Services and access and usage of the System. The Fees shall include but are not be limited to a license fee, an onboarding fee and an integration fee. The type of fees applicable to the Customer and the relating amounts are based on the offer accepted by the Customer. The Schedule 2 – Payment Terms, attached to this Agreement shall include the following: Type of applicable fees (license fee, and/or onboarding fee and/or integration fee); Subscription term; Total amount to be paid (excluding applicable taxes) and selected currency; iv. Installments, if applicable; Selected payment method; Other payment terms.
Payment Terms Payments of any kind (including, without limitation, any pre-paid subscriptions) shall be made without any right of set-off or deduction and are irrevocable and (except as expressly set forth herein) nonrefundable. All amounts invoiced hereunder are due and payable within thirty (30) days of the date of the invoice. Any amount not paid when required to be paid hereunder shall accrue interest on a daily basis until paid in full at the lesser of: (i) the rate of one and a half percent (1.5%) per month; or (ii) the highest amount permitted by applicable law. If Customer fails to pay for three (3) months, Eighty6 shall have the right to block such Customer’s access to their Account immediately and without prior notice.
Taxes All fees payable to Eighty6 are exclusive of all applicable taxes (including without limitation VAT and sales tax), withholdings or duties, and the subscription fee is the net amounts which Eighty6 shall be paid by Customer hereunder. All taxes, withholdings and duties of any kind payable with respect to Customer’s subscription to the System or the purchase of Services arising out of or in connection with this Agreement, other than taxes based on Eighty6’s net income, shall be borne and paid by Customer.
Term and Termination Term Unless agreed otherwise between the Parties in writing, this Agreement shall enter into force and effect upon the date specified at the bottom of this Agreement (the “Commencement Date”) The Parties agree that Customer shall be granted a trial period for the duration specified in Schedule 2 (the “Trial Period”). On or before the expiration of the Trial Period, Customer shall have the right to terminate the Agreement, without any further obligation to Customer. This Agreement shall remain in force and effect, and automatically renew, during the applicable subscription term specified in Schedule 1, unless: (i) Eighty6 or Customer provides the other with ninety (90) days written notice prior to the end of any subscription term of its intent not to renew, provided that a subscription term on a monthly basis may not be terminated during the initial twelve(12) month period of the Commencement Date (the “Initial Subscription Period“) or (ii) this Agreement is terminated in accordance with Section 10.2 below. In any event, cancellation prior to the completion of the Initial Subscription Period shall not affect the applicable Fees, which shall not be refundable. If Customer fails to provide Eighty6 a written notice at least ninety (90) days prior to the end of the applicable term, then the term will be automatically renewed for an additional term identical to the subscription term specified in Schedule 1 and Customer shall be deemed to have renewed the Agreement for the following term [at the rates applicable for said new term].
Termination Material Breach. Either Party may terminate this Agreement with immediate effect if the other Party materially breaches this Agreement and such breach remains uncured (to the extent that the breach can be cured) thirty (30) days after having received written notice thereof.
Distress Event. In the event that either Party becomes liquidated, dissolved, bankrupt or insolvent, whether voluntarily or involuntarily, or shall take any action to be so declared, the other Party shall have the right to immediately terminate this Agreement.
Suspension. If Eighty6 believes that Customer is using the System in a manner that may cause harm to Eighty6 or any third party, then Eighty6 may, without derogating from Eighty6’s right to terminate this Agreement for any breach hereof, suspend Customer’s access to and use of the System and/or the Services until such time as Eighty6 believes the threat of harm, or actual harm, has passed.
Effect of Termination Upon termination of this Agreement, Customer shall immediately discontinue all access and use of the System, pay any outstanding amounts owed to Eighty6, and shall promptly, but in any event within thirty (30) days, permanently delete all copies of the Documentation in Customer’s or any of its representatives’ possession or control. Upon termination of this Agreement, Customer will lose all access to any Customer Data provided under this Agreement. Customer shall be responsible to download any Customer Data it is interested to export from the System prior to termination of this Agreement. Notwithstanding the foregoing, for a period of thirty (30) days from the effective date of termination of this Agreement, Eighty6 will provide Customer, upon Customer’s written request, with a reasonable opportunity to download the Customer Data still retained by Eighty6 at such time. Eighty6 reserves the right to permanently delete any Customer Data that may be contained in Customer’s Account at any time following said thirty (30) day period, and Customer agrees to waive any legal or equitable rights or remedies it may have against Eighty6 with respect to Customer Data that is deleted in connection thereto. This Section 11 and Sections 4 (Restrictions on Use), 8 (Intellectual Property), 9 (Remuneration), 14 (Warranty Disclaimer), 15 (Limitation of Liability), 16 (Indemnification), 17 (Confidential Information) and 18 (Miscellaneous) shall survive termination of this Agreement.
12. Maintenance and Support 12.1 Eighty6 will provide, at no additional cost to Customer, maintenance of the System, which shall include updates, upgrades, bug fixes and notifications of potential shortcomings and vulnerabilities. Any updates, upgrades, improvements, bug fixes or other modifications are made at the sole discretion of Eighty6. 12.2 Customer shall obtain assistance with any technical difficulty that may arise in connection with Customer’s utilization of the System by requesting support from their technical account manager, solely during working hours (9AM till 6PM GMT+4) by email to customersupport@eigthy6.tech or by phone ___________. Eighty6 shall ensure support with an average response time of 2 hours.
13 Customization If requested by Customer, Eighty6 may provide reasonable software customization services. Such software customization services shall be provided by Eighty6 at the then-current standard rates, or as agreed in writing by Eighty6 and Customer. Eighty6 will respond to such requests within a reasonable time after receipt of Customer’s written request. The software customization services, when agreed upon, shall be listed in a separate schedule, along with applicable pricing and special terms. Such schedule, which shall be signed by the Parties and attached to this Agreement, shall form an integral part of the present Agreement.
14. Warranty Disclaimer 14.1 Customer Acknowledges And Understands That Except As Expressly Set Forth Herein: (i) The System, Reports (defined Below), And Services Are Provided On An “as Is” Basis Without Any Warranties Whatsoever Concerning The Installation, Use Or Performance Of The System; And (ii) All Other Warranties, Whether Express, Implied, Statutory Or Otherwise, Including, Without Limitation, Any Implied Warranty Of Merchantability And Fitness For A Particular Purpose, System Integration, Non-interference, Accuracy, Reliability And Quality Of The System Are Hereby Expressly Disclaimed To The Maximum Extent Permitted By Applicable Law, And Customer Hereby Expressly Waives All Such Warranties. Eighty6 Will Not Be Liable Or Responsible For: (a) Any Technical Problems Of The Internet (including Without Limitation Slow Internet Connections Or Outages); And/or (b) Any Issue That Is Attributable To Customer’s Hardware Or Software Or Customer’s Internet Or Data Service Provider.
14.2 Eighty6 Does Not Offer A Warranty Or Make Any Representation Regarding Any Content, Reports, Information, Or Results That Customer Obtains Through Use Of The System (collectively, “reports”), Or That The Reports Are Complete Or Error-free. The Reports Do Not Constitute Legal Advice, And Customer Understands It Must Determine For Itself The Need To Obtain Its Own Independent Legal Advice Regarding The Subject Matter Of Any Report And/or Any Software That Customer Uses Or Is Considering To Use. Customer’s Use Of And Reliance Upon The System And Any Reports Is Entirely At Customer’s Sole Discretion And Risk, And Eighty6 Shall Have No Responsibility Or Liability Whatsoever To Customer In Connection With Any Of The Foregoing.
14.3 Eighty6 Does Not Warrant And Hereby Disclaims Any Implied Warranty That The Operation Of The System Will Be Error Free Or Uninterrupted. Eighty6 Will (at Its Own Cost) Rectify Any Faults In The System Notified To Eighty6 During The Term Of The Agreement. This Constitutes The Customer’s Sole Remedy For Breaches Of Warranty Under This Agreement.
15. Limitation Of Liability. Eighty6 Further Disclaims Any And All Liability For Indirect, Incidental, Special, Consequential, Loss Of Profits, Or Other Similar Damages Regardless Of The Form Of Action Whether In Contract, Tort (including Negligence), Strict Product Liability Or Any Other Legal Or Equitable Theory, Even If Eighty6 Has Been Advised Of The Possibility Of Such Losses Or Damages. Without Derogating From The Above, Eighty6’s Maximum Liability To Customer Or To Any Third Party For Any Damages Arising Out Of Or Related To This Agreement, Whether In Contract Or Tort, Or Otherwise, Shall In No Event Exceed, In The Aggregate, The Total Amounts Actually Paid To Eighty6 In The Twelve (12) Month Period Immediately Preceding The Event Giving Rise To Such Claim.
16. Indemnification 16.1 Indemnification By Eighty6 Eighty6 hereby agrees to defend and indemnify Customer against any damages awarded against Customer by a court of competent jurisdiction, or paid in settlement, in connection with a third party claim, suit or proceeding that Customer’s use of the System within the scope of this Agreement infringes any copyright or trade secret of a third party. Eighty6 shall have no obligations or liability hereunder to the extent that the alleged infringement is based on the Customer data. Without derogating from the foregoing defense and indemnification obligation, if Eighty6 believes that the System, or any part thereof, may infringe, then Eighty6 may in its sole discretion: (i) obtain (at no additional cost to Customer) the right to continue to use the System; (ii) replace or modify the allegedly infringing part of the System so that it becomes non-infringing while giving substantially equivalent performance; (iii) require that use of the (allegedly) infringing System (or any part thereof) shall cease, and in such event Customer shall receive a prorated refund of any subscription fees paid for the unused portion of the applicable subscription term; or (iv) terminate this Agreement immediately, and in such event Customer shall receive a prorated refund of any subscription fees prepaid for the unused portion of the applicable subscription term. This Section 14.1 states Eighty6’ entire liability and Customer’s exclusive remedy for any claims of infringement.
16.2 By Customer Customer hereby agrees to defend and indemnify Eighty6 against any damages awarded against Eighty6 by a court of competent jurisdiction, or paid in settlement, in connection with a third party claim, suit or proceeding that use of the Customer data within the scope of this Agreement infringes any intellectual property rights of a third party, privacy right of a third party (including the Customer’s data subjects (including but not limited to its employees) or any applicable law.
16.3 General The defense and indemnification obligations of the indemnifying party under this section are subject to: (i) the indemnifying party being given prompt written notice of the claim; (ii) the indemnifying party being given immediate and complete control over the defense and/or settlement of the claim; and (iii) the indemnified party providing cooperation and assistance, at the indemnifying party’s expense, in the defense and/or settlement of such claim and not taking any action that prejudices the indemnifying party’s defense of or response to such claim; except if there is any conflict of interest between the parties or the indemnifying party has failed to defend such claims, in such event the indemnified party shall have the right to appoint their own legal counsel, at the indemnifying party’s expense.
17. Confidential Information Each Party may have access to certain non-public and/or proprietary information of the other Party, in any form or media, including (without limitation) confidential trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, whether written or oral, and any such other information that, regardless of the manner in which it is furnished and given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party’s Confidential Information from disclosure to a third party. Neither Party shall use or disclose the Confidential Information of the other Party except as expressly permitted under this Agreement or by applicable law. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party. The terms of this Agreement are deemed Eighty6’s Confidential Information, however, Customer may disclose the terms herein to its advisers, subject to a confidentiality undertaking similar to the above.
18. Miscellaneous. Each schedule that is attached hereto is incorporated herein by this reference. This Agreement shall constitute the entire agreement between the Parties with respect to its subject matter and shall supersede any and all prior agreements and understandings relating thereto. This Agreement and any rights or obligations hereunder may not be transferred or assigned by Customer without the prior written consent of Eighty6, but may be transferred or assigned by Eighty6. Except as otherwise provided herein, this Agreement shall be binding upon and inure to the benefit of the Parties and their heirs, successors, legal representatives and permitted assigns, and the agreements and undertakings contained herein shall be deemed to be made by and be binding upon such heirs, successors, legal representatives and permitted assigns. If any of the terms contained in this Agreement shall, for any reason, be held to be void or unenforceable, it shall not affect the validity or enforceability of any other term in this Agreement. The failure of either Party to enforce at any time any of the provisions of this Agreement will in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of either Party to enforce each such provision thereafter. Notices to be given or submitted by either Party to the other pursuant to this Agreement shall be in writing by mail and shall be sent to the address as shall be given by either Party to the other in writing. Notice shall be considered effective on the earlier of actual receipt or the day following transmission if sent by an email followed by a written or electronic confirmation. No party will be liable for any default or delay in its performance of its obligations under this Agreement to the extent caused by, and only for the duration of, a natural disaster, act of God, act of war or terrorism, riot, third-party labor strike, pandemic or other similar occurrence beyond its reasonable control provided that the affected party make all reasonable efforts to comply with its obligations despite the occurrence.
19. Applicable Law and Competent Jurisdiction. This Agreement, and any disputes between you and Eighty6 in connection with this Agreement shall be governed by and construed in accordance with the laws of UAE without regard to its conflict of laws rules; and the parties agree to submit to the personal and exclusive jurisdiction of the courts located in UAE, and waive any jurisdictional, venue, or inconvenient forum objections to such courts. Notwithstanding anything to the contrary, Eighty6 may seek injunctive relief or other relief necessary to prevent or restrain a breach of this Agreement in any jurisdiction.