By accessing or using the Developer Portal, App Marketplace, the Community Forum or any other website offered by Freshworks through the foregoing, Developer agrees to be bound by these Terms. Developer represents that it has the legal capacity to access and use the Developer Portal. To the extent that it is entering into these Terms on behalf of a company, organization or another legal entity (an "Entity"), the Developer agrees to these Terms on behalf of the Entity it represents and represents to Freshworks that it has the authority to bind such Entity to these Terms, whereupon the term “Developer” or related capitalized terms used in these Terms will refer to such Entity. If the Developer does not have such authority, or does not agree with these Terms, the Developer may accept these Terms and may not access or use the Developer Portal, App Marketplace or Community Forum or any other website offered by Freshworks through the foregoing.
Freshworks may update these Terms from time to time. It is Developer’s responsibility to browse through the latest terms and if Developer does not agree with the then-current Terms, Developer’s sole and exclusive remedy is to close its Developer Account within the Developer Portal consistent with Section 5 (Cancellation and Termination) below, and cease all further use of the Developer Portal, the App Marketplace, Community Forum or any other website offered by Freshworks through the foregoing. The continued usage of Developer Portal will amount to deemed acceptance of the then current Terms.
1.2 Use of Developer Portal: Subject to these Terms, Developer has a limited, non-exclusive, non-sublicensable and revocable right to access and use the Developer Portal to: (a) install and use Freshworks’ provided APIs ("Freshworks APIs") made available via the Developer Portal or linked through the Developer Portal or other Freshworks’ URLs, along with the available documentation, PAAS capabilities, usage policies, programs, tools, sample or other source code, and materials/content, if any, (collectively, with the Freshworks APIs, the "Freshworks Developer Materials") to develop, test and operate Apps; and (b) publish your Apps on the App Marketplace, as further described in these Terms. The Developer Portal may contain links to other websites and resources provided by third parties. These links are made available by Freshworks for informational purposes only. Freshworks has no control over the contents of those third-party websites or resources and it is the Developer's responsibility to adhere to the terms and conditions imposed by such third parties.
1.3 Use of Freshworks Developer Materials: Developer Materials may only be used for purposes of developing, testing and operating Apps, and are the Confidential Information of Freshworks and its licensors. Freshworks reserves the right to update, refresh, remove, temporarily or permanently, the Freshworks Developer Materials with or without notice or liability to Developer. Developer agrees to comply with Freshworks API use limits as noted on the relevant Freshworks Developer Materials. Developers may request for an increase in the API limits. Freshworks at all times has sole discretion to set and enforce limits for use of the Freshworks APIs, increase API limits as may be mutually agreed with the Developer and may temporarily suspend Developer’s continued access to the Developer Portal or the Developer Account if the specified usage limits are exceeded without prior approval. Unused API calls will not be carried forward to the next cycle or subscription, whichever is applicable.
1.4 Use of Third-Party Developer Materials: Developer may also install and use third party software development kit and/or application programming interfaces ("Third-Party APIs") along with the applicable available documentation, usage policies, programs, tools, sample or other source code, and materials/content, if any, ("Third-Party Developer Materials") to develop, test and operate Apps. Developer understands and agrees that (a) the use of Third-Party Developer Materials may be subject to terms and conditions imposed by the third-party licensor of the Third-party Developer Materials, which may include terms and conditions applicable to use or distribution of the resulting App, (b) it is Developer’s, not Freshworks’, responsibility to obtain, review and consent to such applicable third-party terms and conditions. For example, Developer may need licenses, including, without limitation, patent and copyright licenses from such third parties, to use, develop, reproduce, test, operate, publish or distribute the Apps, and Developer agrees that Freshworks has no obligation to Developer or any Entity that Developer represents with respect to providing notice of or acquiring such licenses. Developer agrees that it will obtain or comply with such appropriate third-party licenses and indemnify Freshworks against third-party claims from third-party licensor resulting from Developer’s breach of this Section in accordance with the indemnification terms and conditions in Section 7 (Indemnification) of these Terms.
1.5 Changes to Freshworks Developer Materials: Freshworks reserves the right to modify the Freshworks Developer Materials from time to time. Freshworks may, but is not obligated to, take commercially reasonable steps to notify Developer of such modifications. Notifications of such modifications may be through the Developer Portal or through communications as specified in these Terms. In the event that Freshworks does not notify Developer in advance of such modifications, Developer’s continued use of the Freshworks Developer Materials will constitute acceptance of such modifications. Developer acknowledges and agrees that such modifications may affect how the Apps work and agrees that neither Freshworks nor any third parties will have any liability towards Developer or the end users if such modifications affect the use of the Apps, including but not limited to, rendering the Apps inaccessible.
2.1 App Publication Process: Developer may distribute an App: (a) by uploading or permitting Freshworks to upload an approved App for distribution or installation via the App Marketplace ("Public App"), as further described in this Section 2 (App Marketplace), (b) by inserting a link on the App Marketplace redirecting prospective users to Developer’s website where the App may be obtained ("External App"). Developer is at all times responsible for the legality, accuracy and completeness of any App that Developer develops.
2.2 App Submission Process; Approval: Each App must be submitted for approval to Freshworks before becoming eligible to be published. The approval process for a Public App may consist of reviews pertaining to QA, source code checks, security vulnerabilities, permissions and content of the proposed Public App. As part of Freshworks’ approval process for a potential Public App, Developer grants Freshworks the right to review, evaluate and share on a confidential basis, all copies and materials pertaining to the proposed Public Apps with authorized third parties that Freshworks may work with for the purpose of evaluating the quality, security, performance, or functionality of the Public App and/or the App Marketplace. External Apps are currently subject solely to content review. Freshworks may, however, require additional reviews for External Apps subject to intimating the Developer in advance. All information exchanged between Freshworks and Developer pertaining to the approval process in this Section is the Confidential Information of the disclosing party.
2.3 Corrections; Resubmittal: In the course of reviewing a proposed Public App, Freshworks may make suggestions for corrections or changes to the Public App, and request or require resubmission and re-review of the Public App as a condition to accepting it for publication on the App Marketplace. Further, if Developer implements material modifications to the Public App that substantially or detrimentally modify the quality, security, performance or functionality of the Public App ("Material Modification"), Developer will resubmit the Public App for re-approval. Developer may not post a Public App with Material Modifications without Freshworks’ prior approval, and Freshworks reserves the right to take down the Public App temporarily or permanently in its discretion until such Material Modifications meet Freshworks’ minimum quality, security, performance or functionality standards. If Developer does not comply with Freshworks’ suggestions, recommendations or other requirements on which approval for publication is conditioned, Freshworks may, at its discretion, choose not to publish or permit Developer to publish the Public App in the App Marketplace.
2.4 Removal of Apps: For all Apps, Freshworks may at any time at its discretion, remove any such App from the App Marketplace, with or without notice to Developer (but Freshworks will use reasonable efforts to communicate such removal): (a) if the App does not comply with or meet Freshworks’ minimum quality, security, performance or functionality standards, (b) if Freshworks knows or reasonably suspects that Developer is engaged in any activity in breach of these Terms or the terms governing any Third-Party Developer Materials used to develop the App, (c) if Developer discontinues the App or ceases the provision of either maintenance or support for the App, (d) if Developer fails to respond to Freshworks within 10 days from the date of receipt of any communication from Freshworks pertaining to the App, (e) if Developer charges end users for non-Paid Apps or misrepresents the Charges for an App, or (f) if Developer closes its Developer Account or if the Developer Account is otherwise terminated in accordance with the termination provisions of these Terms.
2.5 Use of App Marketplace: Freshworks grants to Developer a limited, non-exclusive, non-sublicensable license and right to access and use the App Marketplace for so long as Developer’s Developer Account is active for the sole purpose of publishing External Apps reviewed by Freshworks and approved Public Apps, and content directly related to the use or functionality of such Apps. With respect to a Public App, Developer hereby grants Freshworks a worldwide, non-exclusive, royalty-free license to reproduce, use, store, transmit, display, access, perform, distribute and analyze, in any way, now known or in the future discovered, the Public App in connection with making it available via the App Marketplace. With respect to an External App, Developer hereby grants Freshworks a worldwide, non-exclusive, royalty-free license to use, display, access, remove, suspend, distribute and analyze, in any way, now known or in the future discovered, the URL and other informational materials provided by Developer regarding the External App via the App Marketplace. Freshworks reserves the right to monitor any Apps published via the App Marketplace to ensure Developer’s compliance with these Terms.
2.7 App Documentation: As between Developer and Freshworks, Freshworks does not assume any obligation or responsibility under these Terms to provide end users with training, technical documentation, or other services pertaining to the Apps.
2.8 Marketing of Apps: For so long as Developer’s Developer Account is active, Developer grants Freshworks the right to promote or market Developer’s Apps published via the App Marketplace. Developer agrees to provide Freshworks with reasonably required information or marketing collaterals that Freshworks can use to promote the Apps via the App Marketplace and/or other marketing channels used by Freshworks in the normal course. Freshworks may choose to promote or market a Developer's App depending on the following factors: (a) revenue earned by the App; (b) end user engagement with the App; or (c) Developer requesting ad space. If Developer undertakes to market its Apps it will do so (a) in compliance with applicable laws and the rights of third parties, (b) in a way that is not misleading or unethical, (c) in compliance with Freshworks’ guidelines for usage of its marketing collaterals and (d) without implying or declaring endorsement by Freshworks or in any way binding or purporting to bind Freshworks. Developer acknowledges and agrees that the listing of any of Developer’s Apps on the App Marketplace is non-exclusive and that Freshworks and third parties may at any time offer similar or competitive independently developed apps via the App Marketplace or otherwise.
2.9 App Support: As between Developer and Freshworks, Developer and not Freshworks, will be responsible for providing all technical support pertaining to Developer’s Apps. Developer will provide and keep up to date contact information on the App Marketplace for providing customer support. Any comments, queries, or feedback about Developer’s Apps will be directed to Developer for resolution and Developer will use diligent and prompt efforts to respond to the foregoing in accordance with Developer’s standard support terms noted on the App TOU, or otherwise, within a reasonable and industry-standard time. In the event the end users face any issues with usage of Developer’s App, Developer will respond either with a resolution or an estimated resolution time within 3 business days of receiving the complaint from the end user or Freshworks as the case may be. For critical issues that result in the App losing its essential functionality, the Developer shall provide a resolution within 5 business days from date of complaint. Developer will not direct end users to seek support from Freshworks or any third party for the App, and Freshworks will not, except in its sole discretion, on a case-by-case basis, provide any technical support to end user or Developer for any Apps. If, after exercising Developer’s diligent efforts to resolve a technical support issue relating to the Apps or an end user’s use of an App with the Service, Developer determines that the issue may be originating within the Service, Developer may seek assistance from Freshworks. Where requested by Freshworks, Developer will use diligent efforts to promptly respond to any Freshworks support requests where Freshworks determines that a support issue logged by a Freshworks customer with Freshworks is or may be originating with the App. If there are updates to the App, Developer shall continue providing support to end users using the previous two versions of App until such time they update to the latest version implemented.
2.10 App Audit Trails: Developer understands and agrees that Freshworks is not obligated to provide or make available audit trails or logs generated within the App Marketplace pertaining to the Apps or user events pertaining to such Apps ("App Audit Trails"). To the extent that any App Audit Trails are made available by Freshworks, they are provided on an “AS IS” basis without any warranty, representation or covenant of any kind, and are used by Developer at Developer’s sole risk. App Audit Trails are the Confidential Information of both parties and may only be used by Developer for its internal business purposes or, with respect to an individual end user, as necessary to resolve usage or payment disputes with such end users, if applicable, provided the end user is subject to binding confidentiality obligations.
2.11 Privacy and Security of App: Developer will maintain appropriate administrative, physical, and technical safeguards for the protection of the security, confidentiality and integrity of all end user data accessed or processed by an App. To the extent an App transmits or processes end user data outside a Service, Developer represents and warrants that it will notify all end users prior to their use of the App that their end user data will be transmitted or processed outside the Service. Freshworks is not responsible for the privacy, security or integrity of any data not processed within the Service. Developer will not (a) modify end user data, except to provide the App or when expressly permitted in writing by the end user, (b) disclose an end user’s data except as compelled by law or as expressly permitted in writing by the end user, or (c) access or use the end user data except to provide the App and prevent or address service or technical problems, or at end user’s request in connection with customer support matters, or as compelled by law or governmental order. In addition, Developer will comply with all applicable export, security, privacy, or other laws in providing the App to end users. Developer agrees to maintain the confidentiality of end user indefinitely following the expiration or termination of these Terms and/or availability of the App.
2.12 App Performance: Developer warrants that: (a) any App(s) will perform materially in accordance with the relevant documentation as amended from time to time by Developer and as provided to end users; (b) Developer will not materially decrease the overall features and functionalities of any App, except via an approved Material Modification.
2.13 App Promotional Trial: Developer shall provide to end users who purchase a Paid App from the App Marketplace, a 21-day free trial of the App. The Developer may, however, choose to reduce the period of trial or opt out of this requirement entirely by writing to firstname.lastname@example.org.
2.14 Charges: Developer will be solely responsible for setting the price that Developer charges end users for an App offered as a Paid App via the App Marketplace, including any commercial pricing for sales of such Apps ("Charges"), provided that, if Developer changes its commercial pricing to reflect an increase or decrease in the pricing of the Paid Apps ("New Pricing"), Developer agrees that this New Pricing shall be applicable only for end users who update to a version of the App for which the New Pricing has been implemented.
2.15 Collection 2.15.1 Paid App: For the purposes of these Terms, a "Sale" includes any initial or renewal sale, subscription or license of a Paid App through the App Marketplace and excludes any transaction where access to said App is at no charge. For each Sale, Freshworks will collect payments from the end users on behalf of Developer via the payment methods provided by Freshworks on the App Marketplace. For so long as the Paid App is available via the App Marketplace, Developer authorizes Freshworks Inc. (or any affiliate or subsidiary hereafter designated by it) to act as Developer’s agent for purposes of (a) processing or collecting payments (including taxes), refunds and adjustments for all Sales, (b) receiving and holding Sales proceeds on Developers behalf, and (c) remitting Revenue Share or other amounts payable to Developer as described in these Terms (and, if applicable, paying the relevant Freshworks entity any amounts Developer owes in accordance with these Terms). Freshworks may withhold payments if the Developer fails to provide support to the end users in accordance with Section 2.9 of these Terms.
2.15.2 External App: End users of External Apps shall be invoiced either (a) directly by the Developer via its own billing mechanism outside the App Marketplace, or (b) by Freshworks in the same manner set out for Paid Apps in Section 2.15.1 above. In the case of (a), the Developer is required to provide to Freshworks, a statement of record for each sale subject to which Freshworks shall be entitled to receive a referral fee amounting to twenty percent (20%) of the aggregate amounts actually paid by an end user to Developer. In the case of (b), Freshworks shall pay Revenue Share as set out under Section 2.16 below. “Sale” for the purpose of this Section alone includes any initial or renewal sale, subscription or license of an External App and excludes any transaction where access to said App is at no charge.
2.16 Revenue Share: Subject to Freshworks’ rights of offset below, Freshworks will pay Developer an amount equal to eighty percent (80%) of the MRR (monthly recurring revenue) derived from an end user's usage of the App in the previous month ("Revenue Share"). Revenue Share amounts exclude taxes and any separately stated fees or charges, credits, chargebacks or other amounts recoverable by Freshworks under these Terms. Revenue Share is due only for Sales for which Freshworks has received full and final payment from or on behalf of the end user. If a Paid App is sold to an end user using a credit card, final payment will be deemed to have occurred when the applicable credit card company or bank has fully settled the payment for the applicable purchase. For clarity, in the event that Freshworks refunds the applicable Sale amount (or a portion thereof) to an end user, Developer agrees and acknowledges that Developer will not receive and will have no right to receive a Revenue Share on the portion of the Sale amount that was refunded.
2.17 Payment: Subject to these Terms, Freshworks will make available to Developer a report detailing all Revenue Share payable and/or any adjustments to the same, consistent with these Terms. Payment of amounts owed will issue concurrently with such report. All payments will be made in US dollars ("$"). Developer agrees to provide Freshworks with a valid bank account in Developer’s name, and Freshworks will make payments to that account via Electronic Funds Transfer ("EFT"). Freshworks is entitled to accrue and withhold payments, without interest, until the total amount due to Developer (net of any taxes or other adjustments) is at least $300.00 U.S.D or for a period of twelve (12) months, whichever is earlier. Freshworks may, at any time, revise its payment processes to become more automated and efficient. This will have no effect on the amounts to be paid to the Developer.
2.18 Adjustments; Offset: If Freshworks determines that Developer’s actions or performance may result in returns, chargebacks, claims, disputes with an end user, or other risks to Freshworks or third parties, then Freshworks may in its sole discretion withhold any payments to Developer for as long as Freshworks determines any related risks to Freshworks, or third parties persist. Without limiting the foregoing, if Freshworks pays Developer a Revenue Share on a Sale and later issues a refund or credit to the end user for such Sale (or receives a chargeback related to the Sale), Freshworks may adjust the amount of the Revenue Share that Freshworks previously paid against future Revenue Share or other amounts that would otherwise be payable to Developer under these Terms. For any amounts that Freshworks determines Developer owes, Freshworks may (a) offset any amounts that are payable by Developer to Freshworks (in reimbursement or otherwise) against any payments Freshworks may make to Developer or amounts Freshworks may owe Developer; (b) invoice Developer for amounts due to Freshworks, in which case Developer will pay the invoiced amounts upon receipt; or (c) collect payment or reimbursement from Developer by any other lawful means. If Freshworks determines that the Developer Account has been used to engage in deceptive, fraudulent, or illegal activity, or to repeatedly violate these Terms, then Freshworks may in its sole discretion permanently withhold any payments to Developer. Developer agrees that any fees charged by Developer’s bank in connection with wire transfers pursuant to this Section are solely Developer’s responsibility. When these Terms terminate, Freshworks may withhold all Revenue Share or other amounts due for a period of up to sixty (60) days from the date they would otherwise be payable, in order to ensure Freshworks’ ability to offset any end user refunds or make any other adjustments to which Freshworks is entitled.
2.19 Use of Banking and Payment Information: Freshworks will only use Developer’s banking and payment information as necessary for Freshworks to issue payments as required under these Terms. Freshworks will not disclose Sales or Developer’s related financial data to third parties unless such data is required to be disclosed pursuant to a governmental, regulatory or judicial order, or to comply with applicable laws or financial or accounting standard. Freshworks may use or disclose aggregated sales and other financial data related to the App Marketplace, which may include Developer’s Sales and related financial data but does not identify Developer or Developer’s financial information, or in any way reveals any of Developer’s banking information. 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 Developer’s payment account information except to process Developer’s payment information for Freshworks.
2.20 Taxes: Except as described in this Section, Freshworks is responsible for collecting and remitting any taxes imposed on Sales to end users in accordance with applicable laws in the jurisdictions where Freshworks operates. Developer is responsible for any income taxes or other income-based taxes due and payable resulting from Freshworks’ payments to Developer under these Terms. Accordingly, unless otherwise stated, the amounts due by Freshworks to Developer under these Terms are exclusive of any taxes that may apply to such payments. Freshworks reserves the right to deduct or withhold any applicable taxes payable by Developer from amounts due from Freshworks required in accordance with applicable international, federal, state and local taxation laws, and the amounts due, as reduced by such deductions or withholdings, will constitute full payment to Developer.
3. INTELLECTUAL PROPERTY RIGHTS
3.1 Use Restrictions: In addition to complying with the other terms, conditions and restrictions in these Terms, Developer agrees not to: (a) modify, amend, decompile, reverse engineer, disassemble, reproduce, adapt, replicate or hack the Freshworks Developer Materials or Third-party Developer Materials provided via the Developer Portal, or any apps made available via the App Marketplace, or otherwise attempt to gain unauthorized access to the Developer Portal, the Developer Account, the App Marketplace, or any of their related systems or networks; (b) remove any trademarks, copyright notices or other notices or identifiers placed on the Freshworks Developer Materials or Third-party Developer Materials, Developer Portal, the App Marketplace, or in any way falsely imply any sponsorship, partnership, or association with Freshworks or misrepresent the ownership or source of the Apps or the Freshworks Developer Materials or Third-party Developer Materials. In addition, Developer agrees not to use the Developer Portal, the Developer Account, or the App Marketplace: (c) in any unlawful manner, including, but not limited to, in violation of any person’s privacy or publicity rights; (d) to send unsolicited communications, junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (e) to store any content that infringes on any person’s intellectual property rights; (f) in any manner that interferes with or disrupts the integrity or performance of the Developer Portal, the App Marketplace, or their related systems or components; (h) knowingly or negligently post, transmit, upload, link to, send or store any content that is unlawful, racist, violent, hateful, abusive, libelous, obscene, or discriminatory on the Developer Portal or App Marketplace; (i) store or transmit through either the Developer Portal or the App Marketplace any "protected health information" as that term is defined in 45 C.F.R. 160.103; (j) knowingly or negligently post, transmit, upload, link to, send or store on the Developer Portal or App Marketplace any viruses, worms, malware, Trojan horses, time bombs, or any other similar harmful software ("Malicious Software"); (k) mask the Developer’s identity to circumvent the limits on API calls that Freshworks may specify.
3.3 Freshworks Ownership: Except for the rights expressly granted to Developer under these Terms, all right, title and interest, including all intellectual property rights, in and to (a) the Developer Portal, App Marketplace, Freshworks Developer Materials or Third-Party Developer Materials and the Community Forum, (b) the Freshworks Marks, belong to and remain exclusively with Freshworks and its licensors. Rights not expressly granted are prohibited and reserved.
3.4 Developer Ownership: Except for the rights expressly granted to Freshworks under these Terms, all right, title and interest, including all intellectual property rights, in and to the Apps and Developer’s name, logo, and marks belong to and remain exclusively with Developer and its licensors. Freshworks does not claim any intellectual property rights over any descriptive content pertaining to Developer and/or the Apps that Developer uploads or publishes via the App Marketplace, but obtains a non-exclusive, worldwide, royalty-free right and license to copy, display, publish, reproduce, distribute, modify, create derivative works of such content (including but not limited to screenshots of the Apps) solely for the purposes of marketing or promoting the Apps.
3.5 Developer Trademark Use: Developer hereby grants Freshworks a limited, non-exclusive, worldwide, royalty-free right and license to use, reproduce, publish, and distribute Developer’s name and logo and the name and/or logo applicable to the App, to identify Developer as a Freshworks Developer, to identify Developer as the source of the App, and to identify the App itself, on the App Marketplace, the Developer Portal, or any marketing or other collateral, unless Developer notifies Freshworks otherwise by an email to:email@example.com.
3.6 Developer Community Forum: Developer agrees that any feedback or suggestions provided by Developer the Developer Portal, or any posts on the developer community forum ("Community Forum") are non-confidential, and Developer grants Freshworks a worldwide, royalty-free, non-exclusive, perpetual, and irrevocable license to use, copy, modify, sublicense, and otherwise exploit any feedback or posts (including any ideas, concepts, methods, know-how or techniques embodied in feedback) on the Community Forum for any purpose, and to share the same with other forum users, without any restriction or compensation or attribution to Developer based on intellectual property rights or otherwise. Developer is solely responsible for determining what and whether to post on the Community Forum and does so at its risk.
3.7 Freshworks Trademark Use: Developer may only use the Freshworks name, logo, or such other names or logos used by Freshworks to refer to the Developer Portal or App Marketplace ("Freshworks Marks") to identify itself as a Developer or an App Marketplace user; provided that Developer does not claim or attempt to claim, now or in the future, any rights in the Freshworks Marks, degrade the distinctiveness of the Freshworks Marks, or use the Freshworks Marks to disparage or misrepresent Freshworks, its Services or products. Any use by Developer of any third-party service names or logos will solely be governed by their licenses. Use of the Freshworks Marks in, or as a part of, any advertisements displayed using online advertisement services, requires Freshworks’ prior permission, which Developer may obtain by writing to firstname.lastname@example.org. Developer must ensure that Developer does not, in these advertisements, use the names, marks or logos of any third-party service provider who provides products or services similar to Freshworks’.
3.8 Compliance with DMCA: If Developer or end users believe, in good faith, that Freshworks or a third party is, violating Developer’s or any third party’s copyrights, please follow the procedure specified in the Takedown Policy to notify Freshworks.
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 these Terms, the receiving party may use the disclosing party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under these Terms, and will disclose such Confidential Information solely 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. The provisions of this section will supersede any non-disclosure agreement by and between the parties entered into prior to these Terms that would purport to address the confidentiality of any information shared by the parties, and such agreement will have no further force or effect with respect to the foregoing. If the receiving party is required by law or court order to disclose Confidential Information of the disclosing party, then the receiving party will, to the extent legally permitted, provide the disclosing party with advance written notification and cooperate in any effort to obtain confidential treatment of the Confidential Information. 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. Developer understands and agrees that Freshworks and its Affiliates will process Developer Data and any other personal data collected via the Developer Portal or the App Marketplace, or Community Forum, or any other Freshworks-branded sites provided by Freshworks that are linked or made available by Freshworks from the foregoing in accordance with applicable data protection laws, these Terms and the Privacy Notice.
5. CANCELLATION AND TERMINATION
5.1 Account Closure; App Removal; Ongoing Support: Account Closure; App Removal; Ongoing Support. Developer may elect to terminate the Developer Account or seek removal of an App from the App Marketplace at any time by providing Freshworks with a sixty (60) days’ notice via email to email@example.com. Developer will remain liable for all technical support pertaining to its Apps for such 60-day period. Freshworks reserves the right to terminate the Developer Account earlier if Developer fails to provide the required support during this 60-day period. Developer shall not allow new end users to install the App post receiving the termination notice.
5.2 Suspension; Takedown: In addition to Freshworks’ other rights in these Terms, Freshworks reserves the right to take down any App or suspend or terminate Developer’s access to the Developer Portal or the App Marketplace, or the Developer Account, and to remove, disable and discard any App or Developer Data if Freshworks’ believes that Developer has violated these Terms. Developer will be liable to pay Freshworks for any fees outstanding or due until the date of termination or suspension. Unless legally prohibited from doing so, Freshworks will use commercially reasonable efforts to contact Developer directly via email to notify Developer when taking any of the foregoing actions, and, for breaches or violations capable of being cured by Developer, provide Developer with an opportunity to cure such breach within fifteen (15) days from notification by Freshworks to Developer (unless a shorter cure period is required by Freshworks to mitigate imminent and material damage to Developer, Freshworks, the Developer Portal, or the App Marketplace). If the breach remains uncured for more than fifteen (15) days from the date of such notification (or the cure period determined by Freshworks in accordance with the preceding sentence), Freshworks will terminate the Developer Account and remove Developer’s Apps from the App Marketplace. Freshworks will not be liable to Developer or anyone for any claims relating to, suspension or termination consistent with these Terms. Any suspected fraudulent, abusive, or illegal activity by Developer may be referred to law enforcement authorities in Freshworks’ sole discretion.
5.3 Effect of Termination: Upon any termination of the Developer Account for any reason, all of Developer’s access to the Developer Portal and any Apps or Developer Data therein will cease, and Freshworks will delete all Developer Data in accordance with Freshworks’ data deletion policies, provided that Freshworks may retain copies or extracts or derivations of data about the Developer Account, Developer’s use of the Developer Portal, App Marketplace, or the App (including, but not limited to transactional information and support information) as necessary for Freshworks to comply with contractual obligations owed to end users, or with applicable law, regulation, or auditing standard. Any such data retained by Freshworks will continue to be subject to these Terms for the period so retained. Developer acknowledges and agrees that Freshworks may, at its option and without liability to Developer, issue notifications to end users pertaining to the unavailability or removal of any App, the cessation of support for the App, and/or the availability of alternative (including competitive) apps from third parties offered as substitutes or replacements for a removed App.
5.4 Wind-Down Period: Notwithstanding anything contained anywhere under these Terms or this Section 5, if Freshworks initiates removal of an App from the App Marketplace, existing end users will be able to continue using the App for the longer of: (i) 90 days, or (ii) the expiration of the term of the end user’s subscription to the Developer’s App ("Wind-Down Period"). Developer must continue to provide any services that are part of the App to each existing end user during the Wind-Down Period. Except in cases where termination is legally required or is otherwise necessitated by compelling circumstances, such as fraud or a claim of intellectual property infringement, Freshworks will not disable or takedown any App prior to completion of its Wind-Down Period.
6. DISCLAIMER OF WARRANTIES
THE DEVELOPER PORTAL, THE DEVELOPER ACCOUNT, THE APP MARKETPLACE, AND ANY DATA MARIALS, SERVERS, NETWORK COMPONENTS, APPS, FRESHWORKS DEVELOPER MATERIALS OR THIRD-PARTY DEVELOPER MATERIALS ARE PROVIDED SOLELY AND EXCLUSIVELY ON AN “AS IS'' BASIS WITHOUT WARRANTIES OF ANY KIND. FRESHWORKS AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS, FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. DEVELOPER ACKNOWLEDGES AND AGREES THAT FRESHWORKS DOES NOT WARRANT THAT THE DEVELOPER PORTAL, APP MARKETPLACE, OR ANY INCLUDED OR THIRD-PARTY WEBSITES PROVIDED OVER INTERNET OR THROUGH VARIOUS TELECOMMUNICATIONS NETWORKS WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE.
Developer will indemnify and hold Freshworks and its Affiliates harmless against any claim brought by a third party against Freshworks, and its respective employees, officers, directors, and agents arising from or related to or alleging: (i) that the App infringes any intellectual property or personal right of a third party; (ii) relating to the functionality of, the use of, or the inability to use the App, including any claims of product liability or misleading advertising related to the App; or (iii) Developer’s use of the Developer Portal or the App Marketplace in breach of these Terms (“Claim(s)”). Developer will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by Freshworks' or its Affiliates breach of these Terms or violation of applicable law. In the event of a potential indemnity obligation under this Section, Freshworks will: (i) promptly notify Developer in writing of the claim, (ii) allow Developer the right to control the investigation, defense and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense, or, if Developer fails to do so within a reasonable time not to exceed twenty one days), assume such defense itself at Developer’s cost and expense (including the right to recoup such expenses from Revenue Share or other amounts otherwise payable to Developer hereunder), and (iii) upon request of Developer, provide all necessary cooperation at Developer’s expense. Failure by Freshworks to notify Developer of a Claim will not relieve Developer of its obligations under this Section, however, Developer will not be liable for any litigation expenses that Freshworks 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 Developer in accordance with this Section. Developer may not settle any claim that would bind Freshworks to any obligation (other than payment covered by Developer or ceasing to use infringing materials) or require any admission of fault by Freshworks, without Freshworks’ prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Any indemnification obligation under this Section will not apply if Freshworks settles or makes any admission with respect to a claim without Developer’s prior written consent, unless Developer has breached its indemnification obligations hereunder.
8. LIMITATION OF LIABILITY
SUBJECT TO APPLICABLE LAW AND NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS, IN NO EVENT WILL FRESHWORKS 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. FRESHWORKS’ AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, RELATING TO THE DEVELOPER PORTAL, APP MARKETPLACE, AND ANY OTHER ITEM PROVIDED PURSUANT TO THESE TERMS WILL NOT EXCEED AN AMOUNT EQUAL TO USD 5000. THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE DEVELOPER FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE.
9.1 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, Freshworks may assign these Terms in its entirety, but on written notice, without the Developers 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.
9.2 Entire Agreement: These Terms, together with the Privacy Notice, constitute the entire agreement and supersede any and all prior agreements or communications between Developer and Freshworks regarding the subject matter hereof. In the event of a conflict between these Terms, the Privacy Notice, the order of precedence will be, first, the Privacy Notice, second, these Terms. If any provision in these Terms 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 these Terms will remain in effect. Notwithstanding the foregoing, additional terms may apply to certain features or functionality that Freshworks offers through the Developer Portal, App Marketplace or Community Forum (the "Additional Terms"). In those instances, Freshworks will notify Developer of such Additional Terms prior to the activation of these features or functionality and the activation of these features or functionality in the Developer Account will be considered acceptance of the Additional Terms. All such Additional Terms will be considered incorporated into these Terms when Developer or any user authorized as an administrator in the Developer Account activates the feature or functionality. Where there is a conflict between these Terms and the Additional Terms, the Additional Terms will prevail in respect of those functionalities or features. Freshworks may amend these Terms from time to time, in which case the new Terms will supersede prior versions. Developer must check these Terms from time to time to take notice of any changes Freshworks makes, as they will be binding on Developer.
9.3 Relationship of the Parties: The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
9.4 Survival: 3 (Intellectual Property), 2.14 through 2.20 (with respect to amounts to be collected and/or paid hereunder), 4 (Confidentiality), 5 (Cancellation; Termination), 6 (Warranty Disclaimer), 7 (Indemnification), 8 (Limitation of Liability), 9 (Miscellaneous), and 10 (Definitions) will survive any termination of termination of these Terms. Termination of these Terms will not limit either party’s liability for obligations accrued as of or prior to such termination or for any breach of these Terms.
9.5 Notices: Developer agrees that Freshworks may send Developer communications or data regarding these Terms, the Developer Account and the Developer Portal, the App Marketplace and the Community Forum or any Additional Terms, including but not limited to notices about use, updates, or other communications pertaining to the foregoing, including any notices concerning violations of use or payments, via electronic mail. All other notices to be provided by one party to the other under these Terms may be delivered in writing by (i) nationally recognized overnight delivery service or US mail to the mailing address provided by Developer on the Developer Account page; or (ii) electronic mail to the email address provided for Developer’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 firstname.lastname@example.org 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.
9.6 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 these Terms. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Developer learns of any violation of the above restriction, Developer will use reasonable efforts to promptly notify Freshworks at email@example.com.
9.7 Force Majeure: Neither party will be liable to the other for any delay or failure to perform any obligation under these Terms if the delay or failure results from any cause beyond such party’s reasonable control, including but not limited to but not limited to, 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 affected party may terminate these Terms on written notice to the non-performing party.
9.8 Governing Law: These Terms 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 these Terms.
9.9 Dispute Resolution: Any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of these Terms 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.
9.10 Export Compliance and Use Restrictions: The Developer Portal or App Marketplace or components of the same which Freshworks may provide or make available to Developer 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"). Developer agrees to comply with all the Export Control Laws as they relate to access to and use of the Services, App Marketplace and such other components by Developer. Developer shall not access or use the Developer Portal or App Marketplace if Developer is located in any jurisdiction in which the provision of the Services, Apps 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 Crimea or the so-called Donetsk People's Republic (DNR) or Luhansk People's Republic (LNR) regions of Ukraine) (a “Prohibited Jurisdiction”) and Developer shall not provide access to the Apps to any government, entity or individual located in any Prohibited Jurisdiction. Developer represents, warrants and covenants that (i) Developer 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) Developer is not a national of, located in, or a company registered in, any Prohibited Jurisdiction, (iii) Developer shall not permit to access or use the Apps in violation of any Export Control Laws, (iv) no Developer Data created or submitted by Developer is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control Laws, and (v) Developer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which Developers are located. Developer further agrees that Developer will not use the App Marketplace to disclose, transfer, download, export or re-export, directly or indirectly, any Developer 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 Developer may be subject. Developer acknowledges that the App Marketplace may not be available in all jurisdictions and that Developer is solely responsible for complying with the Export Control Laws.
9.11 Federal Government End Use Restrictions: If Developer 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 Developer with only those rights as provided under the terms and conditions of these Terms.
9.12 FCPA Compliance: Developer shall comply with the U.S. Foreign Corrupt Practices Act of 1977, as amended, and all other applicable laws and regulations that govern corruption, bribery, kickbacks, ethical business conduct, fraud, money laundering, and similar matters ("Anti-Corruption Laws"). Developer represents and warrants that it has not been accused of, or investigated or prosecuted for, violating any Anti-Corruption Laws. Developer will immediately report to Freshworks (i) any concerns, suspicions, or actual knowledge of violations of Anti-Corruption Laws, or any other applicable law, or (ii) if Developer becomes the subject of any formal or informal investigation, prosecution, or government or judicial determination related to a violation of Anti-Corruption Laws, or any other applicable law. Developer will fully cooperate with Freshworks in its review or investigation in relation to an actual or potential violation of any applicable law or regulation.
9.13 Injunctive Relief: Developer acknowledges that the limitations and restrictions in these Terms are necessary and reasonable to protect Freshworks and its Affiliates. Developer expressly agrees that monetary damages may not be a sufficient remedy for Developer’s breach of these Terms. Accordingly, Developer agrees that Freshworks will be entitled to seek temporary or permanent injunctive relief against any violation or threatened violation of such limitations or restrictions in any court of competent jurisdiction.
10.1 "Affiliate", means with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
10.2 "API" means the Freshworks or third-party application programming interfaces, software development kit (SDK) or other integration materials, developed, enabled and made available by Freshworks or third parties that permits a user to access certain functionality provided by the Service(s).
10.3 "App" means the software applications listed on the App Marketplace that are created, developed, licensed or owned by Developer. It also includes any updates, upgrades and other changes to such software applications and versions thereof.
10.4 "App Marketplace" means Freshworks’ online marketplace for listing Apps that are created, developed, licensed or owned by third-party Developers.
10.5 "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, or with the disclosing party’s approval (including but not limited to, materials supplied by Developer for publication via the App Marketplace or Community Forum); (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; (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
10.6 "Developer" means the person or Entity (a) who has accepted these Terms or on whose behalf these Terms are accepted, and (b) that is registered as “Developer” on the Developer Portal and/or App Marketplace, and (c) in whose name the Developer Account is held.
10.7 "Developer Account" means the account or instances created by or on behalf of the Developer for access and use of the Developer Portal and App Marketplace.
10.8 "Developer Data" means all electronic data, text, messages or other materials submitted to the Developer Portal by Developer through the Developer Account and/or the Community Forum or otherwise collected by Freshworks pertaining to Developer or its business from public or other lawful means.
10.9 "Developer Portal" means the Freshworks-provided portal through which a Developer may obtain access to the Freshworks Developer Materials, Third-Party Materials, and/or the Community Forum, and/or engage in the submission, review, approval or publication process for Apps to be made available via the App Marketplace.
10.10 "Paid App" means an App for which the end user is required to pay Charges prior to installation and usage from the App Marketplace.
10.11 "Privacy Notice" means, Freshworks’ privacy notice currently at www.freshworks.com/privacy, as updated from time to time.
10.12 "Service(s)" means Freshworks’ generally available products and service offerings, including but not limited to, the App Marketplace, Freshdesk, Freshservice, Freshsales, Freshchat, Freshcaller, Freshteam, Freshmarketer, Freshconnect, Freshinbox, Freshsuccess, Freshping or Freshstatus and/or any new services that Freshworks may introduce to which an end user may subscribe, and any updates, modifications or improvements to the foregoing.