Freshworks Terms of Service

Effective Date
November 20, 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 (as defined below), the laws and government regulations applicable to Freshworks’ business, during each Subscription Term, and if applicable, the Privacy Notice.  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. Acceptable Use. Customer may only use the Services in accordance with the Documentation, subject to the use limitations indicated in any Service Order Form pursuant to which Customer subscribes to the Services, and the terms of this Agreement. Customer agrees to comply with the Freshworks Acceptable Use and Conduct Policy (as defined below) which is hereby incorporated into this Agreement.

c. Use Restrictions. Customer agrees not to use the Freshworks Technology (as defined below): (i) to process data on behalf of any third party other than Customer’s Users and End Users; (ii) in violation of applicable law; (iii) to store or transmit any content that infringes upon any third party’s intellectual property rights; (iv) for competitive intelligence or performance benchmarking purposes; (v) to 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; (vi) to falsely imply any sponsorship or association with Freshworks; or (vii) to 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, maintain, and improve the Freshworks Technology 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 PHI 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 and Usage Data (as defined below). 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.  Customer agrees that its name, logo, and/or use case may be used by Freshworks in marketing materials (“Promotional Materials”). Promotional Materials may be for both internal and/or external purposes of Freshworks and such rights granted herein shall be worldwide, perpetual, and in any media. Customer may request that Freshworks stop the use of Promotional Materials of Customer by submitting an email to fw.insiders@freshworks.com at any time. It may take us up to thirty (30) days to process a request.

b. Usage Data. Notwithstanding anything to the contrary in this Agreement, Freshworks may collect and use any data that is gathered in or derived from the use of the Services (“Usage Data”) to develop, improve, support, and operate its products and services. Freshworks shall not share with a third party any Usage Data that includes Customer’s Confidential Information except (i) in accordance with Section 8 (Confidentiality) of this Agreement, or (ii) to the extent the Usage Data is aggregated and anonymized such that the data no longer directly identifies Customer or Customer’s Users.

c.  Updates. Freshworks may modify the Services, Software, and Service Plans from time to time, including by adding or removing features, functions, and entitlements; provided, however, that (i) Freshworks will not materially decrease the overall functionality of the Services or Software during Customer’s Subscription Term, except where such modifications are required for data security reasons or to comply with applicable law and (ii) any such modifications are made on a prospective and nondiscriminatory basis.  Such modifications to any Services, Service Plans, or Software are subject to this Agreement. Customer agrees that its purchase to subscriptions of the Services and Software is neither contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written 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 Services 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 Services (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: (i) reduce their User count, or (ii) downgrade their Service Plan.

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), Section 6(c)(i) (Suspension of Service), or Section 6(d) (Termination for Cause) 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, Freshworks 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 or downgrade at least sixty (60) days’prior to the expiration of the relevant Subscription TermService Plans will automatically renew at the same number of Users and at the same Service Plan (including any add-ons), 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 free trial 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 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 at support@freshworks.com 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.

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”).

c.  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. Indemnification

a. Indemnification by Freshworks. This section states Freshworks’ entire liability and Customer’s exclusive remedy with respect to an IP Claim. Freshworks will defend Customer, and its officers, directors, and employees against any Claim, from any third party claim alleging that Customer’s use of the Freshworks Technology accessed or used in accordance with this Agreement infringes such third party’s patent, copyright and/or trademark intellectual property rights (an “IP Claim”), and will indemnify and hold harmless Customer from and against any damages and costs awarded against Customer, 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; or (iii) 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 reasonable 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.

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 10, 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 10 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.

11. 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 OR A PARTY’S INDEMNIFICATION OBLIGATIONS, 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 APPLICABLE SOF IN THE TWELVE MONTHS PRECEDING THE CLAIM .

c. THE PARTIES AGREE THAT THIS SECTION 11 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 CAP 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.

d. CUSTOMER UNDERSTANDS AND AGREES THAT THE PRIMARY INTENT OF SECTION 11 IS TO DISTRIBUTE THE RISKS ASSOCIATED WITH THIS AGREEMENT BETWEEN BOTH PARTIES. THIS LIMITS POSSIBLE LIABILITIES, TAKING INTO ACCOUNT THE COST OF THE FEES. IF FRESHWORKS WERE TO TAKE ON ADDITIONAL LIABILITY BEYOND WHAT IS SPECIFIED IN THIS AGREEMENT, THE FEES WOULD HAVE BEEN MARKEDLY HIGHER.

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 the DPA, and fifth 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. 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.

e. 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 (Indemnification ), 11 (Limitation of Liability), 12.c (Entire Agreement), 12.f (Survival), 12.g.  (Notices), 12.j (Governing Law), 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.

f. 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.

g. 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.

h. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) 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. 

i. 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.

j. 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 first 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.

k. 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.

l. 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.

“Acceptable Use and Conduct Policy” means the Freshworks Acceptable Use and Conduct 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: (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party; (iv) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (v) 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 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 Apps” 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, (a) the Services subscribed to and the corresponding Service Plans, (b) the number of Users authorized to use the Services, (c) Fees payable to Freshworks, (d) the applicable Subscription Term, and (e) any relevant additional terms and conditions. This may also include any change order forms.

“Service(s)” 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.