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FileSpin Customer Agreement

EFFECTIVE FROM: January 19, 2025

1. INTRODUCTION

This FileSpin Customer Agreement (the “Agreement”) is entered into by and between NIDHI NOVA LIMITED (referred to as "Company", "Nidhi Nova", “we,” “us” or “our”), a limited company organized under the laws of England., and the organization on whose behalf you are agreeing to this Agreement (“Customer”). 

PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING FILESPIN SERVICE. 
 
By using FileSpin Services (“Product”) either over the internet or by downloading and installing, you expressly accept and agree to the terms of this agreement. If you are an individual agreeing to the terms of this agreement on behalf of an entity (“Customer”), you represent that you have the legal authority to bind that entity. We reserve the right, at our discretion, to change, modify, add or remove portions of the Terms at any time. We will notify you of updates via your contact email registered with us.

By accepting this agreement, you represent that and warrant that any and all information you provide is true, accurate and complete.

Amendments to this Agreement will be effective upon email notification or as a notification through the software. You must ensure that you have read, understood, and agree to the terms of this Agreement. Your continued use of the Software represents your acceptance and agreement to be bound by the most recent version of this Agreement.

1.1 FILESPIN.IO WEBSITE
The FileSpin.io Website, including but not limited to all text, graphics, logos, icons, images, data, graphs, audio, videos, computer programs and other material and information contained on, or utilized in the provision of, the FileSpin.io Website is the property of Nidhi Nova or its suppliers and is protected by copyrights, trademarks, trade secrets, patents or other proprietary rights. Except as expressly authorized by Nidhi Nova in writing, you may not use, copy, distribute, modify or create derivative works from, disclose, display, transmit, or post or any portion of the FileSpin.io Website for any purpose or “frame” or “mirror” the FileSpin.io Website on any other server or wireless or Internet-based device. All rights not expressly granted herein are reserved to Nidhi Nova and/or its licensors.

1.2 To create or use certain features of the FileSpin.io Website and FileSpin Services, purchase services from Nidhi Nova or participate in certain activities sponsored by Nidhi Nova, we might ask you to register as a customer, user or participant. If so requested, each FileSpin.io Website user must: (a) personally provide true, accurate, current and complete information on the FileSpin.io Website’s registration form (collectively, the “Registration Data”) and (b) maintain and promptly update the Registration Data as necessary to keep it true, accurate, current and complete. If, after investigation, Nidhi Nova has reasonable grounds to suspect that any user’s information is untrue, inaccurate, not current or incomplete, Nidhi Nova may suspend or terminate any and all current or future use of the FileSpin Service by that user. A user may receive passwords and account designations upon completing certain FileSpin.io Website registration processes and is wholly responsible for maintaining the confidentiality of such passwords or designations.

1.3 The FileSpin.io Website may provide links to other websites. Nidhi Nova exercises no control whatsoever over such other websites and is not responsible or liable for the availability, content, advertising, products or other materials on such websites. Your access and use of such linked websites, including information, material, products and services therein, is solely at your own risk.

1.4 TRADEMARK INFORMATION
“FILESPIN.IO”, "FileSpin.io", "FileSpin Services" are trademarks of Nidhi Nova. All other marks, names, and logos mentioned on the FileSpin.io Website are the property of Nidhi Nova or their respective owners. Your use of the FileSpin.io trademark and other marks, names and logos set forth on the FileSpin.io Website without prior written consent is strictly prohibited.

1.5 COPYRIGHTS
Nidhi Nova respects the intellectual property rights of others, and requires that the people who use the FileSpin.io Website do the same. It is our policy to respond promptly to claims of intellectual property misuse. If you believe that your work has been copied and is accessible on this FileSpin.io Website in a way that constitutes copyright infringement, you may notify us by providing us with the following information in writing:
(1) the electronic or physical signature of the owner of the copyright or the person authorized to act on the owner’s behalf;
(2) identification of the copyrighted work that you claim has been infringed;
(3) identification of the material that is claimed to be infringing and information reasonably sufficient to permit Nidhi Nova to locate the material, including the full URL;
(4) your name, address, telephone number, and email address;
(5) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
(6) a statement, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are
authorized to act on the copyright owner’s behalf.

1.6 Notification of claimed infringement should be sent to: [legal at filespin.io]

1.7 PRIVACY
Nidhi Nova agrees to treat your private personally identifiable information in accordance with the terms of our then current privacy policy, which is incorporated herein for all purposes, and which is available for review at Privacy page at this website.
 

2. DEFINITIONS

“Affiliates” means any entity that is controlled by, under the control of, or under common control with Customer where “control” means ownership of, or the right to control, greater than 50% of the voting securities of such entity.

“Commercial Use” is the use of the licensed software for a Customer’s internal and external  business purposes.

“Container Runtime” means software that executes and manages container images on a node.

“Contractor” means any third party employed by Customer or an Affiliate to perform services for the benefit of Customer.

“Deliverable” means developments, work product and deliverables resulting from any Services performed by Company pursuant to this Agreement and the applicable Ordering Document.

“Documentation” means the user guide and technical specifications for the Products delivered via Documentation Website by Company along with the Products as may be updated by Company from time to time. 

“Node” means a physical or virtual device running a Container Runtime.

"Order Form" means a document governing purchases of Product Subscriptions made by Company hereunder that is executed by an authorized representative of each Party.

“Ordering Document” means any and all Order Forms and/or Statements of Work, collectively and/or individually. 

"Product" means Company’s software application(s) identified in one or more Order Form(s) to which Customer purchases a Subscription pursuant to the terms of this Agreement and an Ordering Document.

“Subscription” or “Plan” means the right and license granted to Customer by Company to use the Products in accordance with the terms of this Agreement during the specified term.

“Subscription Term” or “Service Term” has the meaning set forth in the Software Agreement and SaaS Agreement.

"End User" means any user who accesses the Product directly or indirectly through a means enabled by Customer.

3. PRODUCTS

3.1. Provision of Products; License. Company shall make the Products available to Customer pursuant to this Agreement and the relevant Order Forms during the applicable Subscription term.  Each fully executed Order Form shall form a part of this Agreement and be subject to the terms and conditions set forth herein.  All Products and Documentation shall be delivered by electronic means unless otherwise expressly stated in the applicable Order Form.  Customer agrees that Customer’s purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Company regarding future functionality or features.   

3.2. License; Node Subscriptions.  With regard to all Products to be installed at Customer's facilities, Company grants to Customer a royalty free, worldwide, non-transferable, non-assignable, non-sublicensable, non-exclusive, limited license to use such Products for Customer's internal business purposes only, subject to the terms of this Agreement and the applicable Order Form.  Unless otherwise specified in the applicable Order Form, (i) Subscriptions are purchased on a base annual fee plus per-Node basis and may not be used with more than the licensed number of Nodes, (ii) Customer must notify Company when actual node usage exceeds the quantity of purchased node licenses by 20% and pay for additional Node Subscriptions during the Subscription term at the same prices charged by Company for the Subscriptions purchased pursuant to an Order Form(s), prorated for the remainder of the Subscription term in effect at the time the additional Node Subscriptions are purchased, and (iii) the additional Node Subscriptions shall terminate on the same date as the pre-existing Subscriptions. Customer will: (i) be responsible for compliance with this Agreement and use of the Products, and (ii) use the Products only in accordance with the Documentation.

3.3. Restrictions. Customer shall not (i) permit any third party to access the Products and/or Deliverables except as permitted herein or in an Order Form, (ii) modify, translate, reverse engineer, decompile, disassemble, create derivative works of or copy the Products and/or Deliverables or otherwise seek to obtain or use the source code or non-public APIs of the Product, except to the extent expressly permitted by applicable law (and then only upon advance written notice to Company), (iii) remove, alter or obscure any proprietary notices, labels or marks on any component or portion of the Products and/or Deliverables, (iv) market, sell, resell, rent, distribute or lease the Products and/or Deliverables, (v) use the Products and/or Deliverables for the benefit of any third party including use of the Products to operate as a service bureau, ASP, or hosting service, (vi) attempt to gain unauthorized access to the Products and/or Deliverables, or their related systems or networks, (vii) access the Products and/or Deliverables, or permit access to the Products and/or Deliverables, for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes, and/or (x) access the Products and/or Deliverables in order to (A) build a competitive product or service, or (B) copy any features, functions or graphics of, or data or information in, the Products and/or Deliverables.

3.4. Use by Affiliates and Contractors. Subject to the terms and conditions of this Agreement, Customer's Affiliates and Contractors may use the Product made available to Customer hereunder, provided that (a) such use is strictly limited to use for the benefit of Customer; and (b) Customer remains liable for the acts and omissions of, and responsible for compliance with the terms and conditions of this Agreement by, each Affiliate and Contractor.  Customer agrees to provide a list of each Affiliate and Contractor that uses the Products for Customer's benefit upon Company's written request.

4. EXPORT

4.1. Export Compliance. Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions when providing and using the Products. Without limiting the foregoing, (i) each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Company shall not permit Users to access or use Products in violation of any U.S. export embargo, prohibition or restriction. Furthermore, Company will not, directly or indirectly, remove or export from the United States or allow the export or re-export of any part of the Product and/or Documentation: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority.

5. SOFTWARE SERVICES

5.1 RESTRICTIONS AND RESPONSIBILITIES

5.1.1 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, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for time sharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.  With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable License to use such Software during the Term only in connection with the Services. 

5.1.2 Each party shall comply with all applicable United Kingdom and international export control laws and regulations. You specifically represent (i) that You are not located in any country or jurisdiction that is subject to UK and U.S. economic sanctions, nor are You acting on behalf of the government of any such country and (ii) that You are not identified on the U.S. Department of the Treasury's Office of Foreign Assets Control's Specially Designated Nationals List, as amended from time to time, nor are You owned or controlled by any such entity. The Services are Licensed to the U.S. government or any entity acting on its behalf as a Commercial Item, as that term is defined at 48 C.F.R. §2.101, and Licensed only with those rights as are granted to all other entities or individuals entering into an agreement to use the Services.

5.1.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Section 5.1.1 and all applicable laws and regulations. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

5.1.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).  Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.     

5.1.5 Data Processing Responsibilities

5.1.5.1 Customer Obligations as Data Controller

The Customer acknowledges that they act as the Data Controller under applicable data protection laws, and the Company acts as the Data Processor. The Customer warrants that all personal data submitted to the Service complies with applicable laws, including but not limited to obtaining any necessary consents, conducting privacy impact assessments, and maintaining lawful grounds for processing.           

5.1.5.2 Lawful Basis and Consent

The Customer is solely responsible for ensuring they have obtained valid consent or established a lawful basis for processing biometric data as required under the General Data Protection Regulation (GDPR), the UK Data Protection Act, and/or other applicable laws. The Company disclaims liability for any failure by the Customer to comply with these obligations.

5.1.5.3 Transparency and Privacy Policy

The Customer agrees to maintain an up-to-date Privacy Policy that clearly discloses their data processing practices, including the use of biometric and facial recognition data. The Customer further agrees to provide such a Privacy Policy to their end users before any data collection occurs.

5.1.5.4 Impact Assessment Requirement
Where required by applicable law, the Customer shall conduct and document a Data Protection Impact Assessment (DPIA) to evaluate risks associated with processing biometric data. The Customer must provide evidence of the DPIA to the Service Company upon request.

5.1.5.5 Retention of Consent Records

The Customer agrees to maintain accurate records of user consent for data processing activities involving biometric information and to provide such records to the Company upon reasonable request.

5.1.5.6 Prohibited Activities

The Customer warrants that they will use the Service solely for lawful purposes and will not use it in a manner that violates any applicable laws, including those related to privacy, discrimination, or surveillance. The Service may not be used to identify individuals without explicit consent or for purposes of racial profiling, discrimination, or unlawful monitoring.                                                                         

6. CONFIDENTIALITY; PROPRIETARY RIGHTS

6.1 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 (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service.  Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) 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 not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.  

6.2 Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services.  Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.     

6.3 Notwithstanding anything to the contrary, Company shall have the right collect and analyse data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and  Company will be free (during and after the term hereof) to (i) 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 Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or Licenses are granted except as expressly set forth herein.   

7. TERM AND TERMINATION

7.1 Subject to earlier termination as provided in Section 7.2, this Agreement is for the Service Term (“SERVICE TERM”) as specified in the Order Form.

7.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or in the case of nonpayment after thirty (30) days prior written notice has provided to the Customer for non-payment and such payment is not been made by the Customer within thirty (30) days of receipt of such notice.), if the other party materially breaches any of the terms or conditions of this Agreement.  Customer will pay in full for the Services up to and including the last day on which the Services are provided. 

8. WARRANTY AND DISCLAIMER

Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and reasonable manner.  Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party Company's, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

9. INDEMNITY 

9.1 Customer will defend, indemnify, and hold Company harmless, Company's affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any Losses arising out of or relating to any third-party claim concerning: (a) Customer or any Customer's End Users’ use of the Services (including any activities under Customer's FileSpin account and use by Customer's employees and personnel); (b) breach of this Agreement or violation of applicable law by Customer, Customer's End Users or Customer Data; or (c) a dispute between Customer and any Customer's End User. Customer will reimburse Company for reasonable attorneys’ fees, as well as Company's employees’ and contractors’ time and materials spent responding to any third party subpoena or other compulsory legal order or process associated with third party claims described in (a) through (c) above at Company's then-current hourly rates.

10. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND Company’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

11. MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  This Agreement is not assignable, transferable, or sublicensable by Customer except with Company's prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement with Customer’s prior written consent.  This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither Party has any authority of any kind to bind the other Party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.  All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  This Agreement shall be governed by the laws of England without regard to its conflict of laws provisions. Any disputes or differences arising out of or in relation to this Agreement shall be submitted to the exclusive jurisdiction of courts of England.