THIS GENERAL TERMS AND CONDITIONS OF SERVICE (this “Agreement”) shall come into force as of the date specified (the “Effective Date”) in the Order Form (as defined below) and shall be legally binding and applicable to the engagement between Talview Inc, having its registered office at #400, Concar Dr, San Mateo, CA, 94402 (hereinafter referred to as “Service Provider” which term, unless the contrary appears, shall mean and include its representatives, successors, administrators, liquidators and assigns), being the First Party; and and the Person/Entity identified in the Order Form (hereinafter referred to as “Subscriber” which term, unless the contrary appears, shall mean and include its representatives, successors, administrators, liquidators and assigns), being the Second Party.
The Subscriber and the Service Provider shall be individually referred to as “Party” and jointly as “Parties”.
The Service Provider, inter alia, is engaged in the business of providing online assessment, proctoring and other services, as more clearly defined as “Service/s” hereinbelow, either directly or through its Affiliate, as also offering Third-Party Services to the Service Provider’s subscribers; and
The Subscriber has approached the Service Provider intending to avail the specified Service/s identified in the relevant Order Form (as defined below) and the Service Provider has agreed to render or enable the Service/s, accordingly, having read and understood the contents of this Agreement, the Subscriber hereby agrees that the terms and conditions hereinbelow shall govern the relationship between the Parties.
NOW, THEREFORE, IN CONSIDERATION OF THE REPRESENTATIONS, PROMISES AND MUTUAL COVENANTS AND AGREEMENTS SET FORTH HEREIN, THE PARTIES AGREE AS FOLLOWS:
1.1 “Affiliate” – shall hereinafter refer to AIWF Technologies Private Limited.
1.2 “Assessment Solution” – shall mean the AI-powered web-based assessment service hosted on the Platform.
1.3 “Candidate” – shall mean and include all end-users who are permitted by the User to access the Service/s for the purposes of representing their candidature to the User for the specific purposes identified by the User.
1.4 “Content” – shall mean and include any intellectual property rights vested with the Service Provider or the Affiliate or the Third-Party Vendor in their respective Service/s.
1.5 “Order Form” – shall mean the written order issued by the Subscriber to the Service Provider from time to time in the form prescribed in the ‘Schedule’ appended hereto and shall specify (i) the detailed scope of the specific Service/s sought to be availed; (ii) required number of subscriptions; (iii) subscription term; (iv) mutually agreed fees and payment terms; and (v) any other terms that are mutually agreed upon by the Parties.
1.6 “Platform” – means Service Provider’s website at, http://recruit.talview.com/.
1.8 “Proctoring Solution” – shall mean the AI-powered web-based proctoring service hosted on the Platform.
1.9 “Service Provider” – shall hereinafter refer to Talview Inc.
1.10 “Service/s” – shall mean the Assessment Solution, Proctoring Solution and/or other services offered by the Service Provider, and/or Third-Party Services, as detailed in the relevant Order Form.
1.11 “Subscriber Content” – shall mean all data, information, content, media (in any format) containing audio and/or visual content (including the associated metadata), and any other material/content that is proprietary to the Subscriber, and any data/content provided by the Candidates to the User, that is used or collected, as the case may be, in the course of using the Service/s.
1.12 “Third-Party Services” – shall mean services that are proprietary to the Third-Party Vendor and offered to the Subscriber as stand-alone or a combined service offering with the Service/s of the Service Provider.
1.13 “Third-Party Vendor” – shall mean a vendor authorized by the Service Provider to render Third-Party Services to the Subscriber, whether as stand-alone or a combined service offering with the Service/s of the Service Provider.
1.14 “User” – shall mean and include the Subscriber its recruiters, proctors, evaluators and any other persons accessing and using the Service/s by entering the sign-in credentials provided to the Subscriber pursuant to this Agreement.
2.1 The Subscriber may subscribe to any Service or any combination of Service/s offered by the Service Provider, by specifying the required Service/s in writing in the relevant Order Form. All Order Forms issued by the Subscriber shall be subject to the terms and conditions contained in this Agreement.
2.2 The Order Form issued by the Subscriber shall specify (i) the detailed scope of the specific Service/s sought to be availed; (ii) required number of subscriptions; (iii) subscription term; (iv) mutually agreed fees and payment terms; and (v) any other terms that are mutually agreed upon by the Parties. Each Order Form shall constitute a separate obligation and all Order Forms issued in furtherance of this Agreement shall form a part of this Agreement.
2.3 Upon the acceptance of an Order Form, the Service Provider shall provide the Subscriber with a non-exclusive, non-transferable, limited right and license to access and use the Service/s and the Content comprised therein.
2.4 Upon expiry of the subscription term, the Subscriber’s license to access and use the Service/s detailed in the relevant Order Form shall stand terminated. The Subscriber may renew its subscription on mutually agreed terms and conditions by issuing a fresh Order Form. In any event, the Subscriber shall not be entitled to carry forward any unused subscriptions to any subsequent subscription term.
3. LIVE PROCTORING
3.1 This Article 3 shall be applicable only where the Service/s under the relevant Order Form(s) include Live Proctoring (as defined below).
3.2 The Subscriber may choose to combine the automated proctoring service with real-time human monitoring and intervention (“Live Proctoring”).
3.3 Live proctoring may be carried out or conducted by the Subscriber by using its own proctors or using proctors whose services are availed of through the Service Provider. The Service Provider will provide reasonable and adequate assistance to train the proctors to use and access the Service/s.
3.4 Where the Subscriber, in the relevant Order Form, requires the Service Provider to provide proctors for conducting Live Proctoring, the Service Provider shall enable the services of third-party consultants for the said purpose, provided that the Subscriber has given the Service Provider sufficient advance notice of its requirement for proctors.
4. PAYMENTS, INVOICE AND TAXES
4.1 The Subscriber agrees to pay the subscription fee mentioned in the relevant Order Form, per the terms of payment stipulated therein. Any additional Service/s availed by the Subscriber shall attract additional charges and the same shall be borne by the Subscriber.
4.2 The Subscriber agrees to bear all costs and expenses towards the storage of the Subscriber Content beyond the free storage period specified in the relevant Order Form.
4.3 The Subscriber shall be liable to reimburse the Service Provider for its reasonable, out-of-pocket travel and related expenses incurred in performing its Service/s. The Service Provider shall notify the Subscriber prior to incurring any such expense. The Service Provider shall comply with the Subscriber’s travel and expense policy, if made available to the Service Provider before the required travel.
4.4 The Service Provider shall issue invoices to the Subscriber in the manner stipulated under the relevant Order Form. Each invoice shall, inter alia, mention all applicable taxes, duties, levies, cesses and any other applicable charges payable by the Subscriber to the Service Provider. The Subscriber shall promptly notify the Service Provider of any tax benefits/exemptions that apply to the Subscriber and furnish proof thereof on demand.
4.5 Unless otherwise specified, all payments made to the Service Provider shall be in US Dollars.
4.6 In the event that the Subscriber fails to pay the entire invoiced amount to the Service Provider within the timelines specified in the relevant Order Form, the Subscriber will be liable to pay interest at the rate of 1.5% per month on the amount outstanding.
5. HARDWARE DEPENDENCIES
5.1 The Subscriber acknowledges and accepts that the efficiency of the Service/s provided pursuant to this Agreement shall largely depend on the compatibility and efficiency of the internet connection, computer, internet-enabled mobile phone or any other device on which the Service/s are accessed or used by the Users and/or the Candidates. The Service Provider will take commercially reasonable steps to tackle any compatibility related issues that may be identified by the Subscriber, nevertheless, the Service Provider shall not be held responsible or liable for any hardware compatibility related issues.
5.2 The Service Provider shall not be responsible or liable for the corruption or deletion of the Subscriber Content, where such Subscriber Content has been corrupted, deleted or otherwise rendered useless, owing to any hardware related issues not directly attributable to the Service Provider.
6. USER ACCOUNT AND GENERAL USER OBLIGATIONS
6.1 The Service Provider shall provide the Subscriber with its designated sign-in credentials for using and accessing the Service/s (the “Account”). The Subscriber shall be solely responsible for preventing any unauthorised access or use of the Account by adopting adequate security measures at its own cost. In any event, the Subscriber shall be solely responsible and liable for any activity, whether undertaken under its authorization or otherwise, in connection with the Account.
6.2 The Subscriber acknowledges and accepts, on its behalf and the behalf of its Users and the Candidates, that the access and usage of the Service/s, shall be subject to the compliance with the provisions of this Agreement, the Policies and Guidelines (as amended from time to time and posted on the Platform), and applicable laws including all rules, regulations or guidelines framed thereunder.
6.3 The number of subscriptions used by the Subscriber or its Users during the relevant subscription term shall be tracked by the Subscriber from the monthly usage reports provided by the Service Provider. The usage of any additional subscriptions shall attract additional charges and the Subscriber shall bear the same. The Service Provider shall not be obligated to either track the usage or restrict the usage beyond the scope of subscriptions.
6.4 The Subscriber shall ensure that the Subscriber Content provided to the Service Provider pursuant to this Agreement shall be complete and accurate.
7. INTELLECTUAL PROPERTY
7.1 The Subscriber acknowledges and agrees that the ownership of all the intellectual property rights comprised in the Service/s, the Content and/or Third-Party Services, including all modifications, improvements, upgrades, derivative works and feedback related thereto shall at all times vest with the Service Provider and/or the concerned Third-Party Vendor, as the case may be.
7.2 The Parties agree that the Service Provider and/or the Third-Party Vendor concerned shall be permitted to make any claim or initiate any action against the Subscriber to enforce or protect its respective intellectual property rights comprised in the Service/s, the Content and/or Third-Party Services, as the case may be.
7.3 The Service Provider acknowledges and agrees that the ownership of all the intellectual property rights comprised in the Subscriber Content, including all improvements or derivative works shall at all times vest with the Subscriber.
7.4 Each Party explicitly acknowledges and agrees that it does not have any claim or right whatsoever therein to the intellectual property of the other Party.
7.5 Neither Party shall disclose or allow the use of the intellectual property by any third party without the prior written consent of the other Party, except where such disclosure or usage is required for rendering the Service/s pursuant to this Agreement.
8.1 “Confidential Information” means written information which by (i) its inherent nature, (ii) the circumstances of its disclosure, or (iii) its markings or legends, the receiving Party should reasonably understand to be proprietary and confidential to the disclosing Party. Without in any way limiting the generality of the foregoing definition, Confidential Information shall include any information that may relate to the disclosing Party’s business, financials, and/or have commercial or other value to the disclosing Party or and is confidential or proprietary in nature, whether explicitly stated as such or not, including but not limited to concepts and techniques, formulae, specifications, research, development, data, database, software service, drawings, plans, master plans, service briefs, computer programs, source code, object code, flow charts, photographs, information related to the disclosing Party’s affiliates, their business details, data, drawings, services, technical, business and financial information, supplier and product development plans or information, schedules, forecasts, strategies, marketing plans, trade secrets, techniques, and materials, but does not include:
8.1.1 Information that is proven to be already known by the receiving Party at the time of disclosure;
8.1.2 Information that becomes generally available to the public other than as a result of disclosure by the receiving Party in violation of this Agreement or its obligations to a third party;
8.1.3 Information that becomes known to the receiving Party from a source other than the disclosing Party on a non-confidential basis; and
8.1.4 Information that can be documented as independently developed by the receiving Party without the use of any portion of the disclosing Party’s Confidential Information.
8.2 During the Term of this Agreement, the Receiving Party may:
8.2.1 Use, disclose, share and reproduce the Confidential Information received from the Disclosing Party only as required to execute its obligations or exercise its rights under this Agreement;
8.2.2 Take appropriate steps to otherwise prohibit the disclosure of the Confidential Information and to comply with the stipulated laws that apply to the Confidential Information, which steps shall in no event be less than reasonable efforts; and
8.2.3 Disclose Confidential Information as required by law; provided, the Receiving Party gives the Disclosing Party reasonable notice prior to such disclosure (when feasible) to allow the Disclosing Party to try and obtain a protective order or otherwise protect the confidentiality of such information.
8.3 Except as otherwise specifically provided in this Agreement, the Receiving Party SHALL NOT during the Term and after expiration or earlier termination hereof:
8.3.1 Sell, transfer, encumber, pledge, reproduce, publish, transmit, translate, modify, reverse engineer, compile, disassemble, reconfigure, market, distribute or otherwise use the Confidential Information in whole or in part.
8.3.2 The Receiving Party shall not be negligent in handling the Confidential Information. The Receiving Party shall exercise the same care in preventing unauthorized disclosure or use of the Confidential Information that it takes to protect its own information of a similar nature but in no event less than reasonable care.
8.3.3 Post, the expiration or earlier termination of this Agreement, the Receiving Party shall not utilise the Confidential Information for any purpose whatsoever.
8.4 The Receiving Party acknowledges that:
8.4.1 The Disclosing Party owns and will continue to have rights, title and interest over Confidential Information that has been created, discovered or developed by or on behalf of the Disclosing Party, or otherwise provided to the disclosing Party by third parties, which information has substantial commercial value and is not in the public domain.
8.4.2 Unauthorized use or disclosure of Confidential Information is likely to cause injury not readily measurable in monetary damages, and therefore irreparable.
8.4.3 In the event of unauthorized use or disclosure of Confidential Information, the Disclosing Party shall be entitled, without waiving any other rights or remedies, to injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.
8.4.4 Subject to the rights expressly granted to the receiving Party in this Agreement, the Disclosing Party retains all right, title and interest in and to the Confidential Information.
8.4.5 The Receiving Party expressly undertakes that it shall not directly or indirectly make use of or copy or disseminate the Confidential Information in any other business, organization or entity which could be in or in potential competition with the business plans disclosed by the disclosing Party.
8.5 Except as is otherwise set forth in this Agreement, immediately upon the disclosing Party's request, and at the expiration or earlier termination of this Agreement, the Receiving Party shall:
8.5.1 If specifically requested by the Disclosing Party, return all Confidential Information, including, without limitation, all originals, copies, reproductions, and summaries of Confidential Information; and
8.5.2 If specifically requested by the Disclosing Party shall destroy all copies of Confidential Information in its possession, power or control, which are present on magnetic media, optical disk, volatile memory or other storage devices, in a manner that assures that Confidential Information is rendered unrecoverable.
9. DATA COLLECTION AND PRIVACY
9.1 The Parties agree that the relevant Policies and Guidelines shall govern the collection, storage, use or disclosure of the Subscriber Content or any other data, media, information, content or materials, that are provided by (or on behalf of) the Subscriber, its Users, or the Candidates, for the provisioning of the Service/s pursuant to this Agreement.
9.2 At any event, all data/information, whether comprised in the Subscriber Content or otherwise, collected by the Service Provider and/or the Affiliate shall be deemed to have been provided voluntarily for the purposes detailed in the applicable Policies and Guidelines.
9.3 The Subscriber’s consent in respect of data collection by the Service Provider and/or the Affiliate shall be deemed to have been granted on its behalf, and on behalf of its Users, and the Candidates. For the avoidance of any ambiguity, the Subscriber shall be solely responsible for obtaining the consent of its Users and the Candidates, for the collection of data by the Service Provider and/or the Affiliate.
10. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
10.1 The Subscriber and the Service Provider represent and warrant that they shall comply with all applicable laws, statutes and regulations in relation to this Agreement and the Service/s hereunder.
10.2 The Service Provider represents and warrants that the Service Provider and all its personnel, as well as it Affiliate and its personnel, possess the necessary authorizations, skills and resources required to effectively execute the Service/s in accordance with the terms of this Agreement.
10.3 The Service Provider represents and warrants that the intellectual property comprised in the Service/s and/or the Content does not infringe any third-party rights. The Service Provider represents that all Third-Party Services are offered to the Subscriber on an ‘AS IS’ basis, without warranty of any kind, whether express, implied, statutory or otherwise especially as to quality, non-infringement, reliability, timeliness, usefulness, sufficiency and/or accuracy of such Third-Party Services. The Service Provider disclaims all warranties in respect of the Third-Party Services or any part thereof.
10.4 The Subscriber and the Service Provider represent and warrant that the execution of this Agreement does not, and shall not, violate any obligations imposed under any other contract to which the aforementioned persons are a party.
10.5 The Subscriber and the Service Provider represent and warrant that neither the Parties nor any of its officers, employees or agents have done, or permitted to be done or will do, anything which is in breach or is likely to be in breach of any of the terms contained in this Agreement or any law.
10.6 The Parties represent and warrant that the Parties have and will maintain in place throughout the term of this Agreement their own policies and procedures to ensure compliance with the terms of this Agreement and will enforce them promptly and effectively.
10.7 The Service Provider represents and warrants that neither its personnel, nor those of any contractors engaged by the Service Provider, shall be considered as the employees of the Subscriber, nor shall they raise any claims as against the Subscriber for any benefits that may accrue to the employees of the Subscriber.
10.8 The Service Provider disclaims any responsibility or liability for any omissions, errors, accuracy and completeness of the material that may exist in the Subscriber Content, or any other material provided by either the Subscriber or any other third-party, and merely published or made available through the Service/s.
10.9 The Service Provider disclaims any responsibility or liability for any issues faced in relation to the Service/s, arising due to or in connection with, any defects, deficiencies, incompatibilities or failure of all or any devices or hardware, used either by the Subscriber, its Users, or the Candidates, to access and use the Service/s.
10.10 The Service Provider disclaims any responsibility or liability for any issues faced either by the Subscriber, its Users, or the Candidates, where such issues are caused due to the limitations, delays, and other issues inherent in the use of the internet.
10.11 The Service Provider’s data storage and confidentiality obligations with respect to Subscriber Content will be limited to the Service Provider’s cloud service provider’s terms and conditions and the Subscriber will be bound by the terms and conditions of the cloud service provider.
10.12 The Service Provider disclaims any responsibility or liability arising out of the Subscriber’s use of any Third-Party Services.
11. INDEMNITY AND LIMITATION OF LIABILITY
11.1 The Service Provider agrees to fully indemnify, defend, and hold harmless the Subscriber, its officers, directors, employees, consultants or agents from and against any claims or actions, damages, losses or liabilities (including all reasonable attorneys’ fees) directly arising from (i) any third-party claim arising from the infringement of any intellectual property rights; and (ii) breach of any of the terms of this Agreement, including without limitation, the representations and warranties contained herein.
11.2 At any event, any liability arising for the Service Provider by virtue of the Subscriber’s claims relating to tax benefit/exemptions shall be that of the Subscriber and the Subscriber shall indemnify the Service Provider for any such claims and all cost associated with such claims.
11.3 The Subscriber agrees to fully indemnify, defend, and hold harmless the Service Provider, the Affiliate and their respective officers, directors, employees, consultants or agents from and against any claims or actions, damages, losses or liabilities (including all reasonable attorneys’ fees) directly arising from (i) any third-party claim arising from the infringement of any intellectual property rights; and (ii) breach of any of the terms of this Agreement, including without limitation, the representations and warranties contained herein.
11.4 Neither Party shall be liable in contract, tort or otherwise for any special, indirect, or consequential loss or damage of any kind including any punitive or exemplary damages or any loss of profit or loss of contract, loss of goodwill or reputation, loss of opportunity, loss of revenue or third-party loss whether foreseeable or otherwise.
12. TERM AND TERMINATION
12.1 This Agreement shall commence as on the Effective Date and shall continue to be in force unless terminated by the Parties in accordance with the provisions hereunder (the “Term”).
12.2 Either Party shall have the option to terminate this Agreement without cause at any time by giving 60 (sixty) days advance notice in writing to the other Party and during such notice period, both Parties shall discharge all obligations undertaken by them either under this Agreement or under any Order Form.
12.3 The Service Provider reserves the right to suspend the Service/s should the Subscriber fails to make payments in compliance with the payment terms stipulated under the relevant Order Form, provided that the Subscriber fails to cure its breach within 7 (seven) business days from the date on which the said amounts stood due and payable to the Service Provider. Suspension of the Service/s shall not release the Subscriber of its payment obligations under this Agreement. Subscriber agrees that the Service Provider shall not be liable to Subscriber or any third party for any liabilities, claims or expenses arising from or relating to suspension of the Service/s resulting from the Service Provider’s nonpayment.
12.4 In the event that there is a breach of this Agreement or any Order Form by a Party, such Party shall be provided with a written notice to cure the breach within 7 (seven) days from the receipt of such notice. If the Party in breach is unable to or does not cure the said breach, then the other Party may terminate this Agreement with immediate effect, and all claims shall stand reserved for the Party having suffered the breach.
12.5 Each Party shall have the option to forthwith terminate this Agreement, by giving notice in writing, in the event that the other Party goes into bankruptcy or liquidation where a liquidator is appointed to wind up/dissolve such Party.
12.6 This Agreement shall stand terminated automatically if the business of either Party becomes illegal/unlawful/banned by the law of the land or if either Party indulges in any illegal act or practice that makes its’ business illegal/unlawful/banned or if any transaction has taken place for which either Party was responsible which results directly or indirectly in money laundering activities or financing of terrorist activities. Neither Party shall be liable for such activities/transactions nor shall the Party engaging in such activities/ transactions be solely responsible/liable for any action taken by any government or regulatory authority. However, all subscription fees due and outstanding as on the date of notice of termination shall be due and payable.
12.7 Notwithstanding anything to the contrary contained herein, each Order Form shall be valid and subsisting for the duration of the subscription term specified therein and shall not be co-terminus with this Agreement. Where any Order Form and obligations thereunder appear to survive the Term of this Agreement, then this Agreement shall be deemed to have been extended by the Parties in relation to such Order Form and the terms contained herein shall continue to bind the Parties throughout the duration of such Order Form.
13. DISPUTE RESOLUTION, APPLICABLE LAW AND JURISDICTION
13.1 The Parties hereto will use best efforts to resolve any dispute hereunder through good faith negotiations within 90 (Ninety) calendar days from the notification of any dispute.
13.2 The Subscriber acknowledges and agrees that each of the Affiliate and/or the Third-Party Vendor, as the case may be, shall be entitled to make any claim or initiate any legal action, directly against the Subscriber in relation to any disputes pertaining to any infringement of its intellectual property rights comprised in the Content.
13.3 The Parties agree that all disputes in connection with Article 9 (Data Collection and Privacy) of this Agreement shall be addressed in the manner stipulated in the applicable Policies and Guidelines, and the jurisdiction mentioned therein shall apply.
13.4 Save as otherwise provided for hereinabove, the Parties agree that this Agreement shall be subject to the laws of State of California, USA and the Parties submit to the exclusive jurisdiction of the courts at State of California, USA.
14.1 Headings: The headings contained in this Agreement are intended solely for the convenience of the Parties to this Agreement and shall not affect the interpretation or construction of this Agreement.
14.2 Amendments: Any term of this Agreement may be amended or modified by the Parties in writing.
14.3 Notices: Any notice required or permitted by this Agreement shall be in writing and shall be deemed duly served upon receipt. Any notice under this Agreement may also be serviced via e-mail to the designated e-mail ids of the Parties.
14.4 Severability: If one or more provisions of this Agreement are held to be unenforceable under applicable law, the Parties agree to renegotiate such provision in good faith. In the event the Parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement; (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded; and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.
14.5 Entire Agreement: This Agreement along with the Schedule hereto, Order Form(s) issued and accepted by the Parties and the latest Policies and Guidelines, represent the entire agreement between the Parties and cancels and supersedes all prior agreements, arrangements, and understandings.
14.6 Waiver: If at any time any Party waives any right accruing to it, due to breach of any of the provisions of this Agreement, such waiver shall not be construed as a continuing waiver of other breaches of the same kind or other provisions of this Agreement. None of the terms of this Agreement shall be deemed to have been waived or altered unless such waiver or alteration is in writing and is signed by both the Parties.
14.7 Force Majeure: If the performance by either Party, of any of its obligations under this Agreement is prevented, restricted or interfered with by reason of fire, accident, strike, war or other violence, any change in law, any prohibitory order issued by the government/authority, natural calamity, or any act or condition whatsoever beyond the reasonable control of such Party (each such event shall be called a “Force Majeure” event), then such Party shall be excused from such performance to the extent of such prevention, restriction or interference; provided, however, that such Party shall give prompt notice within a period of seven (7) days from the date of occurrence of the Force Majeure event providing a description to the other Party of such Force Majeure event in such notice, including a description, in reasonable specificity, of the cause of the Force Majeure; and provided further that such Party shall use reasonable efforts to avoid or remove such cause of non-performance and shall continue performance hereunder whenever such causes are removed.
14.8 Survival: The Parties agree that the provisions, which by their nature are intended to survive termination, shall survive the termination of this Agreement and shall be enforceable even after its termination.