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URL: https://www.freshworks.com/terms/
Submission: On April 10 via api from US — Scanned from DE

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 * Products
   
   
    * FRESHSERVICE
      
      Modern and intuitive IT and business team management Freshservice
   
   
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      Delight customers and agents with effortless service and support Freshdesk
   
   
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      Multichannel marketing campaigns for e-commerce Freshmarketer
   
   
    * FRESHCHAT
      
      AI-powered and live chat and across every messaging channel Freshchat
   
   
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      Boost sales and productivity with a unified CRM Freshsales
   
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Terms
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 * Terms
 * Data Processing Addendum
 * Supplemental Terms
 * Professional Services


FRESHWORKS TERMS OF SERVICE

For an independent review and summary of the Freshworks Terms and Conditions of
Service, see our Term Scout rating.

EFFECTIVE DATE
APRIL 1, 2023

For the prior version, please click here.

BY ACCEPTING THIS AGREEMENT OR ACCESSING OR USING THE SERVICE, YOU ARE AGREEING
TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.

IF YOU ARE USING ANY SERVICE AS AN EMPLOYEE, AGENT, OR CONTRACTOR OF A
CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU REPRESENT AND WARRANT THAT
YOU HAVE THE AUTHORITY TO SIGN FOR AND BIND SUCH ENTITY IN ORDER TO ACCEPT THE
TERMS OF THIS AGREEMENT. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY
CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.

Modifications to this Agreement: From time to time, Freshworks may modify this
Agreement. Unless otherwise specified by Freshworks, changes become effective
for Customer upon renewal of the then-current Subscription Term or entry into a
new Service Order Form after the updated version of this Agreement goes into
effect. Freshworks will use reasonable efforts to notify Customer of the changes
through communications via Customer’s Account, email or other means. 

The “Effective Date” of this Agreement is the date which is the earlier of (a)
Customer’s initial access to any Service through any online provisioning,
registration or order process or (b) the effective date of the first Service
Order Form, as applicable, referencing this Agreement. This Agreement will
govern Customer’s initial purchase on the Effective Date as well as any future
purchases made by Customer that reference this Agreement.

These Terms of Service (the “Agreement”) is entered into by and between
Freshworks Inc., a Delaware corporation (“Freshworks"or “Provider”) and the
person or entity placing an order for or accessing the Service (“Customer” or
“you”). In consideration of the terms and conditions set forth below, the
parties agree as follows:


1. Provision of Service. Freshworks will make the Services and Software
available to Customer pursuant to this Agreement, the Supplemental Terms (where
applicable), the applicable SOF, and the Documentation, and provide such
Services in accordance with this Agreement, including the Data Processing
Addendum (“DPA”), the Professional Services Agreement (“PSA”), the BAA (if
applicable), the Privacy Notice, and laws and government regulations applicable
to Freshworks’ business, during each Subscription Term.  During the Subscription
Term, Freshworks grants to Customer a limited, non-exclusive right to access and
use the Services and Software only for its internal business purposes, for up to
the number of Users included in the Service Plan or otherwise noted in the SOF,
including the right to download, install and use the Mobile Apps in connection
with the authorized use of the Services.

 

2. Responsibilities of Customer

a. Customer Account. Customer may need to register for an Account in order to
place orders or access or receive the Services.  Customer agrees to keep its
Account information current, accurate and complete so that Freshworks may send
notices, statements and other information to Customer via email or through its
Account, which notifications will be subject to this Agreement and the Privacy
Notice. Customer will be responsible for maintaining the confidentiality of User
login information and credentials for accessing the Services and will notify
Freshworks promptly of any loss, misuse, or unauthorized disclosure of such
login information and/or credentials of which Customer becomes aware. Freshworks
and its Affiliates will not be liable for any damage or loss that may result
from Customer’s breach of the foregoing obligations.

b. Use Restrictions.   Customer agrees to comply with the Freshworks Authorized
Use Policy (as defined below) which is hereby incorporated into this Agreement.
Customer further agrees not to use the Freshworks Technology (as defined below)
to: (i) process data on behalf of any third party other than Customer’s Users
and End Users; (ii) use the Service or Freshworks Technology in violation of
applicable law (iii) store or transmit any content that infringes upon any third
party’s intellectual property rights;

In addition, Customer will not: (iv) license, sublicense, sell, resell, rent,
lease, transfer, assign, distribute, time share or otherwise commercially
exploit or make the Freshworks Technology available to any third party other
than Users and End Users, and then only in furtherance of its permitted business
purposes as expressly permitted by this Agreement; (v) track cookies, ad
exchanges, ad networks, data brokerages, or to send electronic communications
(including e-mail) in violation of applicable law ; (vi) falsely imply any
sponsorship or association with Freshworks; (vii) decompile, reverse engineer,
disassemble, reproduce, or copy or otherwise access or discover the source code
or underlying program of any portion of Freshworks Technology.

 

3. Customer Data

a. Use of Customer Data. As between the parties, Customer and its licensors
retain all right, title and interest (including any and all intellectual
property rights) in and to the Customer Data and any modifications made thereto
in the course of the operation of the Freshworks Technology. Subject to the
terms of this Agreement, Customer hereby grants to Freshworks and its Affiliates
a non-exclusive, worldwide, royalty-free right to process the Customer Data
solely to the extent necessary to provide the Services, Software, Mobile Apps,
and perform all related obligations owed to Customer under this Agreement, or as
may be required by law.  Customer is solely responsible for the accuracy,
content and legality of all Customer Data. Customer warrants that Customer has
and will have sufficient rights in the Customer Data to grant the rights to
Freshworks under this Agreement. If Customer is subject to the US Health
Insurance Portability and Accountability Act of 1996, and its implementing
regulations (HIPAA), Customer may not upload protected health information
(“PHI”) as defined by HIPAA unless Customer has entered into a business
associate agreement with Freshworks, which will govern the parties’ respective
obligations with respect to any ePHI uploaded by Customer to the Services,
Software, or Mobile Apps (“BAA”).

b. Data Security. The parties will comply with the terms of the DPA, which is
incorporated into this Agreement by this reference, with respect to the
provision and processing of Personal Data as defined in the DPA. Freshworks will
use appropriate technical and organizational measures in the Services to protect
the Customer Data from unauthorized access, processing, loss, or disclosure.
Freshworks measures are designed to provide a level of security appropriate to
the risk of processing the Customer Data within the Services. Customer
understands that Freshworks and its Affiliates will process Customer Data in
accordance with applicable data protection laws, this Agreement, including the
DPA., and the Privacy Notice.

 

4. Intellectual Property

 

a. Ownership Rights. Customer Data is Customer’s Confidential Information under
this Agreement.  Customer and its licensors retain all right, title and interest
in and to the Customer Data and all of Customer’s Confidential Information
provided under this Agreement, and Freshworks obtains no rights in the foregoing
except for the express rights granted in this Agreement and the Privacy Notice. 
Freshworks and its licensors retain all right, title, and interest in and to
Freshworks Technology. Customer acknowledges that the Services are offered as
online, hosted solutions, and that Customer has no right to obtain a copy of the
underlying computer code for any Services, except (if applicable) for any
downloadable Software, in object code format. Freshworks may freely use and
incorporate into Freshworks’ products and services any suggestions, enhancement
requests, recommendations, corrections, or other feedback provided by Customer
or by any Users or End Users relating to Freshworks’ products or services.
Feedback and any other suggestions are provided by Customer exclusively “AS IS,”
in Customer’s sole discretion, and will not be used by Freshworks in any way
that identifies or permits identification of Customer, its Affiliates, Users, or
End Users.

b. Usage Data.  Usage Data includes but is not limited to query logs, and any
data (other than Customer Data) relating to the operation, support and/or about
Customer’s use of the Services, Software, Freshworks’ websites, Freshworks’
APIs, or the Freshworks marketplace (“Usage Data”). Notwithstanding anything to
the contrary in this Agreement, Freshworks may collect and use Usage Data to
develop, improve, support, and operate its products and services.  Freshworks
may share Usage Data that includes Customer’s Confidential Information with
third parties to the extent necessary to provide the Service and in accordance
with Section 8 (Confidentiality) of this Agreement. Freshworks may also utilize
Customer Data for its internal business purposes and such Customer Data has been
aggregated and anonymized such that Customer and Customer’s Users and End Users
cannot be identified.  Customer may request that Customer Data be excluded for
such purposes by submitting such an email request to support@freshworks. com.

c. Updates. Freshworks may update the Services and Software from time to time
and Customer may receive notifications of Updates. Any Updates to the Services
and Software are subject to this Agreement. Customer agrees that its purchase of
the Services and Software is neither contingent upon the delivery of any future
functionality or features, nor dependent upon any oral or written public
comments made by Freshworks with respect to future functionality or features.

d. Other Services.  Freshworks or other third parties may make available (for
example, through the Freshworks Marketplace currently located at
https://www.freshworks.com/apps/) or other forums, third-party products or
services (“Third-Party Services”). These Third-Party Services may integrate with
the Services and are not licensed by Freshworks pursuant to this Agreement, but
are governed by the third party provider’s terms and conditions and privacy
policies that accompany them, which Customer must separately accept, and the
Freshworks Marketplace User Terms. Freshworks does not warrant or support Third
Party Services, unless expressly provided otherwise in an SOF. Freshworks is not
responsible for any disclosure, modification or deletion of Customer Data
resulting from access by such third party. The Service may contain features
designed to interoperate with Third Party Services. Freshworks cannot guarantee
the continued availability of such third-party Service features, and may cease
supporting them without entitling Customer to any refund, credit, or other
compensation, if for example and without limitation, the Third Party Service
provider ceases to make the Third-Party Service available for interoperation
with the corresponding Service features in a manner acceptable to Freshworks.
Customer understands that Freshworks is not responsible for providing technical
support for the Third Party Services and that Freshworks is not responsible for
the data hosting and data transfer practices followed by the providers of such
Third-Party Services.

 

5. Fees and Payment

 

a. Fees and Payment. All charges associated with Customer’s Account (“Fees”) are
set forth in the applicable SOF or Website. For credit card payments, the
payment is due immediately upon receipt of invoice. Customer hereby authorizes
Freshworks or our authorized agents, as applicable, to bill your credit card
upon subscription to the Service(s) (and any renewal thereof). For payments
through other accepted methods, payment is due and payable in full within thirty
(30) days from the invoice date or as stated in the applicable SOF. Payment
obligations are non-cancelable, regardless of utilization by the Customer and
except as expressly permitted in this Agreement, Fees paid are non-refundable.
Customer will pay the Fees through an accepted payment method as specified in
the applicable SOF or Website. Unless otherwise set forth in the SOF, Customer’s
subscription to the Services will renew automatically for a Subscription Term in
accordance with the renewal terms and conditions set forth in Section 6(b)
below. During the Subscription Term, the Customer shall not reduce their Service
Plan or User count.

b. Late Payments. If undisputed Fees are more than thirty (30) days overdue,
then, following written notification from Freshworks, Freshworks may suspend
Customer’s access to the Freshworks Technology, including, without limitation,
Customer’s Account, until such unpaid Fees are paid in full.

c. Payment Disputes. Freshworks will not exercise its rights under Section 5(b)
(Late Payments), 6(d) (Termination for Cause) or Section 6(c)(i) (Suspension of
Service) with respect to non-payment by Customer if Customer is disputing the
applicable charges reasonably and in good faith and is cooperating diligently to
resolve the dispute. If the parties are unable to resolve such a dispute within
thirty (30) days, each party will have the right to seek any remedies it may
have under this Agreement, at law or in equity, irrespective of any terms that
would limit remedies on account of a dispute. For clarity, any undisputed
amounts must be paid in full.

d. Applicable Taxes. The Fees do not include any taxes, levies, duties or
similar governmental assessments, including value-added, sales, use or
withholding taxes assessable by any local, state, provincial or foreign
jurisdiction (collectively “Taxes”). Customer agrees to pay applicable direct or
indirect Taxes associated with its purchases hereunder, which, to the extent
Freshworks is legally required to collect the same, will be itemized on the
Freshworks invoice.  If Customer has an obligation to withhold any amounts under
any law or tax regime (other than U.S. income tax law), Customer will gross up
the payments so that Freshworks receives the amount actually quoted and
invoiced.  If Freshworks has the legal obligation to pay or collect Taxes for
which Customer is responsible under this section, the appropriate amount will be
invoiced and paid by the Customer, unless, prior to the invoice date, the
Customer provides Freshworks with a valid tax exemption certificate authorized
by the appropriate taxing authority.  Additional information on how Freshworks
may apply tax requirements can be found at
https://www.freshworks.com/company/sales-and-service-tax-faqs/.

e. Orders by Affiliates. Customer’s Affiliates may purchase Services directly
from Freshworks by executing an SOF which is governed by the terms of this
Agreement. Such SOF will establish a new and separate agreement between the
Customer’s Affiliate and the Freshworks entity signing such SOF. If the
Affiliate resides in a different country than Customer, then the SOF may include
modifications to terms applicable to the transaction(s) (including but not
limited to tax terms and governing law).

f. Purchases from Channel Partners.  Customer may procure use of any Services,
Software, or Mobile Apps from a third-party authorized reseller of Freshworks,
including third party marketplaces (“Channel Partner”) pursuant to a separate
agreement with the Channel Partner. Customer’s use of any Services, Software, or
Mobile Apps procured through a Channel Partner will be subject to the terms of
this Agreement, and all fees payable (including all applicable taxes) for such
use will be payable to the Channel Partner pursuant to the terms agreed to
between Customer and Channel Partner.  Customer understands and agrees that, if
Customer purchased the Services, Software, or Mobile Apps subscriptions via a
Channel Partner, service credits and refunds payable under this Agreement may be
payable or applied by Channel Partner acting on behalf of Freshworks in
proportion to the fees paid by Customer to the Channel Partner, and the
discharge by the Channel Partner of such obligations will relieve Freshworks of
the same under this Agreement.

 

6. Term, Termination and Suspension

a. Term. This Agreement is effective as of the Effective Date (or, for online
Customers, the date of sign up on the Website) and will continue through the
then-current Subscription Term. Service Plans commence on the start date
specified in the relevant SOF (or, for online Customers, the date of sign up on
the Website) and continue for the Subscription Term specified therein.

b. Renewal.  Unless a party gives written notice of non-renewal at least sixty
(60) days prior to the expiration of the relevant Subscription Term, Service
Plans will automatically renew at the same number of subscriptions at the same
Service Plan, for a period equal to the previous Subscription Term. Freshworks
reserves the right to increase the Fees at the beginning of each Subscription
Term, including any automatically renewed term. Any Fees for a renewed
Subscription Term are due upon the date of renewal.

c. Suspension. Freshworks may suspend Customer’s access to the Services,
Software, Mobile Apps and/or Customer’s Account, on the following grounds: (i)
late payment/non-payment of undisputed Fees, per the process noted in Section
5(b) above; (ii) non-renewal of the Services by Customer; (iii) Customer’s or
its Users’ breach of Section 2 (Use Restrictions); or (iv) in the event
suspension is deemed necessary by Freshworks to prevent or address the
introduction of Malicious Software (as defined in Section  9.b below), a
security incident, or other harm to Customer, Freshworks, or Freshworks’ other
customers.  Freshworks will notify Customer of any such suspension. Freshworks
will use diligent efforts to attempt to limit, where commercially feasible, the
suspension to affected Users or Freshworks Technology, and will immediately
restore the availability of the same as soon as the issues leading to the
suspension are resolved.  Such suspension will in no way affect Customer’s other
obligations under this Agreement.

d. Termination for Cause. Either party may terminate this Agreement by written
notice to the other party in the event that (i) such other party materially
breaches this Agreement and does not cure such breach within thirty (30) days of
such notice, or (ii) immediately in the event the other party becomes the
subject of a petition in bankruptcy or any other proceeding relating to
insolvency, receivership, liquidation or assignment for the benefit of
creditors.

e. Free Trial Customers. Upon the expiration of Customer’s free trial,
Freshworks may immediately suspend Customer’s access to the Services. Customer
must export Customer Data before the end of the free trial or Customer Data will
be permanently deleted. Notwithstanding anything to the contrary in this
Agreement Freshworks will have no obligation to maintain, store or otherwise
retain Customer Data beyond the end of the free trial period.

 

7. Data Export. and Retention. Upon termination or expiration of this Agreement
or any SOF for any reason, Customer’s access to the Services, Software, Mobile
Apps, APIs and other Freshworks Technology will terminate.  Freshworks strongly
recommends that Customer export all Customer Data before Customer closes
Customer’s Account. Freshworks will make Customer Data available for export for
fourteen (14) days from the effective date of the closure of  the Customer’s
Account due to: (i) the termination or expiration of this Agreement, or (ii)
termination or expiration the applicable SOF (“Data Export Period”).Where
Customer Data is retained by Freshworks and can be exported, and provided that
Customer is current on its payment obligations as described in Section 5,
Customer may contact Freshworks within the Data Export Period to have Freshworks
export Customer’s Customer Data. Beyond such Data Export Period, Freshworks
reserves the right to retain Customer data for up to three (3) months before
deleting all Customer Data in the normal course of operation except as necessary
to comply with Freshworks legal obligations, maintain accurate financial and
other records, resolve disputes, and enforce its agreements. Customer Data
cannot be recovered once it is deleted. Customer may contact
support@freshworks.com within the Data Export Period to export Customer Data.

8. Confidentiality. Each party will protect the other’s Confidential Information
from unauthorized use, access, or disclosure in the same manner as it protects
its own Confidential Information of similar nature or importance, and in any
event, using no less than reasonable care. Except as otherwise expressly
permitted pursuant to this Agreement, the receiving party may use the disclosing
party’s Confidential Information solely to exercise its respective rights and
perform its respective obligations under this Agreement, and will disclose such
Confidential Information solely (i) to those of its respective employees,
representatives, and agents who have a need to know such Confidential
Information for such purposes and who are bound by obligations to maintain the
confidentiality of, and not misuse, such Confidential Information; (ii) as
necessary to comply with an order or subpoena of any administrative agency or
court of competent jurisdiction; or (iii) as reasonably necessary to comply with
any applicable law or regulation.  The provisions of this section will supersede
any non-disclosure agreement by and between the parties entered into prior to
this Agreement that would purport to address the confidentiality of any
information shared by the parties, including Customer Data, and such agreement
will have no further force or effect with respect to the foregoing.  The
receiving party acknowledges that disclosure of Confidential Information would
cause substantial harm for which damages alone would not be a sufficient remedy,
and therefore that upon any such disclosure by the receiving party, the
disclosing party will be entitled to seek appropriate equitable relief in
addition to whatever other remedies it might have at law.

 

9. Warranties/Disclaimer/ of Warranties

 

a. Service Warranty. Freshworks warrants that the Services, Software or Mobile
Apps will perform in all material respects in accordance with the Documentation.
Provided that Customer provides written notice of a claim within thirty (30)
days after first becoming aware of a breach of the foregoing warranty,
Freshworks will use diligent efforts to correct the Services, Software, or 
Mobile Apps so the foregoing warranty is met, and if Freshworks is unable to
make such corrections in a timely manner, either party may terminate the
applicable SOF, and Customer, as its sole and exclusive remedy, will be entitled
to receive a refund of any unused Fees that Customer has pre-paid for the
applicable Services, Software or Mobile Apps purchased thereunder. This warranty
will not apply if the error or non-conformance was caused by Customer’s breach
of this Agreement or Customer’s or its Users’ misuse of the Services, Software,
and Mobile Apps, modifications to the Services, Software, and Mobile Apps by
anyone other than Freshworks or its representatives, or third-party hardware,
software, or services used in connection with the Services, Software, and Mobile
Apps.

b. Malware Warranty. Freshworks warrants that the Services hosted by Freshworks
will be monitored using commercially available means to attempt to detect and
prevent the introduction of any computer instructions, circuitry or other
technology means whose purpose or effect is to disrupt, damage or interfere with
the authorized use of, or allow access to, the computer and communications
facilities or equipment of Freshworks or Customer, including, without
limitation, any code containing viruses, Trojan horses, worms, backdoors, trap
doors, time-out devices or similar destructive or harmful code or code that
self-replicates (collectively, “Malicious Software”).

Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER
PARTY MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE,
AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED, INCLUDING BUT NOT LIMITED TO
WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR
NON-INFRINGEMENT.

 

10. Limitation of Liability

a. SUBJECT TO APPLICABLE LAW AND NOTWITHSTANDING ANYTHING ELSE IN THIS
AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL,
INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DOWNTIME COSTS,
LOSS OF DATA, RESTORATION COSTS, LOST PROFITS, OR COST OF COVER) REGARDLESS OF
WHETHER SUCH CLAIMS ARE BASED ON CONTRACT, TORT, WARRANTY OR ANY OTHER LEGAL
THEORY.

b. EXCEPT FOR AN ACTION BROUGHT FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD,
DATA CLAIMS OR IP CLAIMS, EACH PARTY’S AGGREGATE LIABILITY AND THAT OF ITS
AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, UNDER THIS
AGREEMENT WILL NOT EXCEED THE FEES RECEIVED BY OR PAYABLE TO FRESHWORKS IN THE
TWELVE MONTHS PRECEDING THE CLAIM (“THE GENERAL LIABILITY CAP”).

c. IN THE CASE OF IP CLAIMS AND DATA CLAIMS, FRESHWORKS AND ITS AFFILIATES’
TOTAL LIABILITY TO THE CUSTOMER AND ITS AFFILIATES FOR ALL SUCH CLAIMS IN THE
AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY TYPE) WILL NOT EXCEED TWO TIMES (2X)
THE GENERAL LIABILITY CAP (“SUPERCAP”).

d. IN NO EVENT WILL EITHER PARTY (OR ITS RESPECTIVE AFFILIATES) BE LIABLE FOR
THE SAME EVENT UNDER BOTH THE GENERAL LIABILITY CAP AND THE SUPERCAP. 
SIMILARLY, THE FOREGOING CAPS WILL NOT BE CUMULATIVE; IF A PARTY (AND/OR ITS
AFFILIATES) HAS ONE OR MORE CLAIMS SUBJECT TO EACH OF THOSE CAPS, THE MAXIMUM
TOTAL LIABILITY FOR ALL CLAIMS IN THE AGGREGATE WILL NOT EXCEED THE APPLICABLE
CAP.

e. THE PARTIES AGREE THAT THIS SECTION 10 WILL APPLY REGARDLESS OF THE FORM OF
ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR
OTHERWISE AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT
IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE APPLICABLE MONETARY CAPS
SET FORTH IN THIS SECTION WILL APPLY ACROSS THIS AGREEMENT AND ANY AND ALL
SEPARATE AGREEMENT(S) ON AN AGGREGATED BASIS, WITHOUT REGARD TO WHETHER ANY
INDIVIDUAL CUSTOMER AFFILIATES HAVE EXECUTED A SEPARATE SOF.

 

11. Indemnification

a. Indemnification by Freshworks. Freshworks will defend Customer and  its
Affiliates, from any third party claim alleging that Customer’s use of the
Freshworks Technology as contemplated hereunder infringes such third party’s
patent, copyright and/or trademark intellectual property rights (an “IP Claim”),
and will indemnify and hold harmless Customer and its Affiliates from and
against any damages and costs awarded against Customer or its Affiliates, or
agreed in settlement by Freshworks (including reasonable attorneys’ fees)
resulting from such IP Claim. Freshworks will have no liability or obligation
with respect to any IP Claim if such claim is caused in whole or in part by (i)
unauthorized use of the Freshworks Technology by Customer, its Affiliates or
Users; (ii) modification of the Freshworks Technology by anyone other than
Freshworks or its representatives; (iii) or the combination, operation or use of
the Freshworks Technology with other data, hardware or software not provided by
Freshworks. If Customer’s  use of the Freshworks Technology results (or in
Freshworks’ opinion is likely to result) in an IP Claim, Freshworks may at its
own option and expense (a) procure for Customer the right to continue using the
foregoing items as set forth hereunder; (b) replace or modify them to make them
non-infringing; or (c) if options (a) or (b) are not commercially reasonably as
determined by Freshworks, then either Customer or Freshworks may terminate
Customer’s subscription to the Service, whereupon Freshworks will refund
Customer, on a pro-rated basis, any Fees Customer has previously paid Freshworks
for the corresponding unused portion.  The sections above state Freshworks’
entire liability and Customer’s exclusive remedy with respect to an IP Claim.

b. Indemnification by Customer. Customer will defend Freshworks and its
Affiliates from any third party claim (“Claim”), and will indemnify and hold
harmless  Freshworks and its Affiliates from and against any damages and costs
awarded against Freshworks and its Affiliates, or agreed in settlement by
Customer (including reasonable attorneys’ fees) resulting from such Claim, to
the extent caused by: (i) Customer’s or its Affiliate’s unauthorized supply,
disclosure, or processing of Customer Data, including Personal Data therein,
(ii) Customer’s or its Affiliate’s violation of laws applicable to Customer’s or
its Affiliate’s business.

c. Indemnification Procedures. In the event of a potential indemnity obligation
under this Section 11, the indemnified party will: (i) promptly notify the
indemnifying party in writing of the claim, (ii) allow the indemnifying party
the right to control the investigation, defense and settlement (if applicable)
of such claim at the indemnifying party’s sole cost and expense, and (iii) upon
request of the indemnifying party, provide all necessary cooperation at the
indemnifying party’s expense. Failure by the indemnified party to notify the
indemnifying party of a claim under this section will not relieve the
indemnifying party of its obligations under this Section, however, the
indemnifying party will not be liable for any litigation expenses that the
indemnified party incurred prior to the time when notice is given or for any
damages and/or costs resulting from any material prejudice caused by the delay
or failure to provide notice to the indemnifying party in accordance with this
section. The indemnifying party may not settle any claim that would bind the
indemnified party to any obligation (other than payment covered by the
indemnifying party or ceasing to use infringing materials) or require any
admission of fault by the indemnified party, without the indemnified party’s
prior written consent, such consent not to be unreasonably withheld, conditioned
or delayed. Any indemnification obligation under this Section 11 will not apply
if the indemnified party settles or makes any admission with respect to a claim
without the indemnifying party’s prior written consent.

 

12. Miscellaneous.

a. Use of Third Parties for Payment Processing. Freshworks may use a third-party
service provider to manage payment processing provided that such service
provider is not permitted to store, retain, or use Customer’s payment account
information except to process Customer’s payment information for Freshworks.
Customer must notify Freshworks of any change in Customer’s payment account
information, either by updating Customer’s Account or by e-mailing Freshworks at
support@freshworks.com.

b. Assignment. Neither party may assign any of its rights or obligations
hereunder, whether by operation of law or otherwise, without the other party’s
prior written consent (not to be unreasonably withheld); provided, however,
either party may assign this Agreement in its entirety (including all SOFs),
without the other party’s consent to its Affiliate or in connection with a
merger, acquisition, corporate reorganization, or sale of all or substantially
all of its assets. Any attempted assignment in violation of this section will be
null and void.

c. Entire Agreement. This Agreement, together with any SOF, the Privacy Notice,
the DPA and Supplemental Terms, constitutes the entire agreement and supersedes
any and all prior agreements or communications between Customer and Freshworks,
including but not limited to Customer registration forms and Purchase Orders,
regarding the subject matter hereof. In the event of a conflict between the
Privacy Notice, the Supplemental Terms, or any SOF and this Agreement, the order
of precedence will be, first, the Privacy Notice, second, the SOF, third, the
Supplemental Terms, and fourth, this Agreement.  If any provision in this
Agreement is held by a court of competent jurisdiction to be unenforceable, such
provision will be modified by the court and interpreted so as to best accomplish
the original provision, and the remaining provisions of this Agreement will
remain in effect.

d. Publicity Rights. Freshworks may identify Customer as a Freshworks customer
in its promotional materials.  Customer may request that Freshworks stop doing
so by submitting an email to legal@freshworks.com at any time. Please note that
it may take us up to thirty (30) days to process a request.

e. Relationship of the Parties. The parties are independent contractors. This
Agreement does not create a partnership, franchise, joint venture, agency,
fiduciary or employment relationship among the parties.

f. Survival. Sections 2.b (Use Restrictions), 4 (Intellectual Property), 5 (Fees
and Payment), 6 (Term, Termination and Suspension), 8 (Confidentiality), 9.c
(Warranty Disclaimer), 10 (Limitation of Liability), 11 (Indemnification), 12.c
(Entire Agreement), 12.f (Survival), 12.g.  (Notices), 12.j (Governing Law) and
12.k (Dispute Resolution) and 13 (Definitions) will survive any termination of
the Agreement. Termination of this Agreement will not limit either party’s
liability for obligations accrued as of or prior to such termination or for any
breach of this Agreement.

g. Notices. All notices to be provided by one party to the other under this
Agreement may be delivered in writing by (i) nationally recognized overnight
delivery service or US mail to the mailing address provided on the SOF; or (ii)
electronic mail to the e-mail address provided for Customer’s Account. The
address for a notice to Freshworks is: Freshworks Inc., 2950 S. Delaware Street,
Suite 201, San Mateo, CA 94403 with a copy to legal@freshworks.com by electronic
mail. All notices will be deemed to have been given immediately upon delivery by
electronic mail, or if otherwise delivered upon receipt or, if earlier, five (5)
business days after being deposited in the mail or with a courier as permitted
above.

h. Anti-Corruption. Neither party has received or been offered any illegal or
improper bribe, kickback, payment, gift, or thing of value from an employee or
agent of the other party in connection with this Agreement. Reasonable gifts and
entertainment provided in the ordinary course of business do not violate the
above restriction. If Customer learns of any violation of the above restriction,
Customer will use reasonable efforts to promptly notify Freshworks at
legal@freshworks.com.

i. Force Majeure.  Neither party will be liable to the other for any delay or
failure to perform any obligation under this Agreement if the delay or failure
results from any cause beyond such party’s reasonable control, including but not
limited , acts of God, acts of government, acts of terror or civil unrest,
Internet failures, or acts undertaken by third parties not under the performing
party’s control, including, without limitation, denial of service attacks
(“Force Majeure Event”). In the event that a Force Majeure Event continues for a
period of thirty (30) consecutive days, the other party may terminate this
Agreement and all SOFs on written notice to the non-performing party.  If
Freshworks is the party experiencing the Force Majeure Event and as a result
thereof is unable to provide the Services, Software or Mobile Apps for the
period noted herein, and Customer terminates this Agreement and all SOFs, then
Freshworks will provide Customer a refund of fees paid by Customer pro-rated as
of the date the Force Majeure Event commenced.

j. Governing Law. This Agreement is governed by the laws of the State of
California without regard to conflict of laws principles. The parties hereby
submit to the exclusive personal jurisdiction of the federal and state courts of
the State of California, San Francisco County for any claims or dispute relating
to this Agreement.

k. Dispute Resolution. Any dispute, claim or controversy arising out of or
relating to this Agreement or the breach, termination, enforcement,
interpretation, or validity thereof, including the determination of the scope or
applicability of this Agreement to arbitrate, will be determined by arbitration
in San Francisco, California. The arbitration will be administered by JAMS
pursuant to its arbitration rules and procedures. Judgment on the Award may be
entered in any court having jurisdiction. This section will not preclude parties
from seeking provisional remedies in aid of arbitration from a court of
appropriate jurisdiction.

l. Export Compliance and Use Restrictions. The Services and other Software or
components of the Services which Freshworks may provide or make available to
Customer or Users may be subject to U.S. (or other territories) export control
and economic sanctions laws, rules and regulations, including without limitation
the regulations promulgated by the U.S. Department of Commerce’s Bureau of
Industry and Security (“BIS”) and the U.S. Department of the Treasury’s Office
of Foreign Assets Control (“OFAC”) (collectively, “Export Control Laws”).
Customer agrees to comply with all the Export Control Laws as they relate to
access to and use of the Services, Software, and such other components by
Customer and Users. Customer shall not access or use the Services if Customer is
located in any jurisdiction in which the provision of the Services, Software or
other components is prohibited under U.S. or other applicable laws or
regulations, including, without limitation, a country or territory that is
subject to comprehensive U.S. trade sanctions (including, without limitation
Cuba, Iran, North Korea, Syria or the Crimea or so-called Donetsk People’s
Republic (DNR) or Luhansk People’s Republic regions of Ukraine) (a “Prohibited
Jurisdiction”) and Customer shall not provide access to the Services to any
government, entity or individual located in any Prohibited Jurisdiction.
Customer represents, warrants and covenants that (i) Customer is not named on,
or owned or controlled by any party named on any U.S. government (or other
government) list of persons or entities prohibited from receiving U.S. exports,
or transacting with any U.S. person,  (ii) Customer is not a national of,
located in, or a company registered in, any Prohibited Jurisdiction, (iii)
Customer shall not permit Users to access or use the Service in violation of any
Export Control Laws, (iv) no Customer Data created or submitted by Customer is
subject to any restriction on disclosure, transfer, download, export or
re-export under the Export Control Laws, and (v) Customer shall comply with all
applicable laws regarding the transmission of technical data exported from the
United States and the country in which Customer and Customer’s Users are
located. Customer further agrees that Customer will not use the Services to
disclose, transfer, download, export or re-export, directly or indirectly, any
Customer Data to any country, entity or other party which is ineligible to
receive such items under the Export Control Laws or under other laws or
regulations to which Customer may be subject. Customer acknowledges that the
Service and other Software may not be available in all jurisdictions and that
Customer is solely responsible for complying with the Export Control Laws.

m. Federal Government End Use Restrictions. If Customer is a U.S. federal
government department or agency or contracting on behalf of such department or
agency, this Service is a “Commercial Item” as that term is defined at 48 C.F.R.
§2.101, consisting of “Commercial Computer Software” and “Commercial Computer
Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48
C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1
through 227.7202-4, as applicable, the Service is licensed to Customer with only
those rights as provided under the terms and conditions of this Agreement.

 

13. Definitions.

“Account” means any accounts or instances created by or on behalf of Customer
for access to and use of any of the Services.

“Affiliate” or “Subsidiaries” means, with respect to a party to this Agreement,
any entity that directly or indirectly controls, is controlled by, or is under
common control with such party, where “control” means the possession, directly
or indirectly, of the power to direct, or cause the direction of the management
and policies of such entity, whether through the ownership of voting securities,
by contract, or otherwise.

“Authorized Use Policy” means, the Freshworks authorized use policy, which is
located currently at https://www.freshworks.com/aup/ as updated from time to
time.

“Confidential Information” means all information disclosed by one party to the
other party, orally, in writing or electronically, that is designated as
“confidential” (or with a similar legend), or which a reasonable person should
understand to be confidential given the nature of the information and
circumstances of disclosure. Confidential Information does not include any
information that: (a) was publicly known and made generally available in the
public domain prior to the time of disclosure by the disclosing party;
(b) becomes publicly known and made generally available through no action or
inaction of the receiving party; (c) is already in the possession of the
receiving party at the time of disclosure by the disclosing party; (d) is
obtained by the receiving party from a third party without a breach of such
third party’s obligations of confidentiality; or (e) is independently developed
by the receiving party without use of or reference to the disclosing party’s
Confidential Information.

“Customer Data” means, all electronic data, text, messages or other materials,
including, without limitation, Personal Data of Users and End Users, submitted
to the Services by Customer or its Users through Customer’s Account in
connection with Customer’ use of the Services.

“Data Claims” means any claims arising from either (a) a party’s breach of
Section 3 (Customer Data), Section 8 (Confidentiality), the DPA, the BAA (if
applicable), or the, Privacy Notice where such breach results in the
unauthorized disclosure of Customer Data, or (b) breach of Section 2 (b) (Use
Restrictions).

“Data Processing Addendum” or “DPA” means, Freshworks’ Data Processing Addendum
at https://www.freshworks.com/data-processing-addendum/, as updated from time to
time.

“Documentation” means, the then-current, generally available user documentation
provided by Freshworks detailing the functionalities of the Software and the
Services.

“End User” means, any person or entity other than Customer or Customer’s Users
with whom Customer interacts using the Services.

“Freshworks Technology” means, (i) the Services, Software, Mobile Apps,
Documentation, Freshworks’ APIs, Freshworks’ website(s) and any content
published on the Freshworks’ websites, (ii) any training materials, support
materials, templates, tools, methodologies or know-how, (iii) Freshworks’
Confidential Information and (iv) any modifications or derivative works of the
foregoing.

“Marketplace User Terms” means, the Freshworks Marketplace User specific terms
located currently at https://www.freshworks.com/marketplace-user-terms/ as
updated from time to time.

“Mobile App” means, the Freshworks-branded Software applications provided by
Freshworks to enable access and use of the Services through mobile or other
handheld devices (such as apps on iOS or Android devices).

“Personal Data” means, data relating to an individual who is or can be
identified either from the data or from the data in conjunction with other
information that is in, or is likely to come into, the possession of the data
controller (as defined under applicable data protection laws).

“Privacy Notice” means, Freshworks’ privacy notice currently at
www.freshworks.com/privacy, as updated from time to time.

“Professional Services Agreement” or “PSA” means, Freshworks’ professional
services agreement located at www.freshworks.com/terms/professional-services, as
updated from time to time.

“Service Order Form or SOF” means, (i) any service order referencing this
Agreement and executed by Customer and Freshworks, or (ii) any online ordering
document or process completed by Customer, including any online registration
through a Website, each of which detail, the Services subscribed to and
corresponding Service Plans, the number of Users authorized to use the Services,
Fees payable to Freshworks, the applicable Subscription Term, and any relevant
additional terms and conditions. This may also include any change order forms.

“Services” means, the Freshworks software-based service offerings identified on
the SOF and any Updates, including any Software, API or Documentation made
available by Freshworks with such offering, but excludes any applications or
APIs separately provided by third parties.

“Service Plans” means, the pricing plans and other packaged offering limitations
for and the applicable Services for which Customer subscribes with respect to
any User.

“Software” means the generally available software provided by Freshworks in
connection with Customer’s use of the Services, and includes Mobile Apps, but
excludes any applications or APIs that are provided by third parties.

“Subscription Term” means, the period stated on a SOF during which Customer
subscribes to the Services.

“Supplemental Terms” means, the Services specific terms found, which are located
currently at https://www.freshworks.com/terms/supplemental-terms/ as updated
from time to time.

“Update” means, the generally available updates, upgrades, hot fixes, patches,
workarounds to the Software or Service provided by Freshworks to all subscribing
customers, but excludes separately priced new products or modules.

“User” or “Agent” means, any individual who is authorized by Customer to use the
Services, including an Account administrator, employees, consultants,
contractors, and agents of Customer or its Affiliates, and third parties with
which Customer or its Affiliates transact business.

 

 

 

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