THE PARTIES AGREE THAT THIS AGREEMENT UPON THE SUBSCRIBER CHOOSING THE PLAN (AS SET OUT BELOW) AND SUBJECT TO PAYMENT OF FEES AS SET OUT IN CLAUSE 1 (g) AS PER THE TERMS AND CONDITIONS SET OUT HEREIN. IN THE EVENT THE SUBSCRIBER OPTS FOR ‘ENTERPRISE’ OPTION FROM THE PLAN, THE PARTIES AGREE THAT THE SUBSCRIBER MAY HAVE AN OPTION FOR AN ON-PREMISES VERSION OF THE SOFTWARE, IN WHICH CASE THE COMPANY WILL PROVIDE SEPARATE LICENSING TERMS FOR THE SAME (“LICENSE AGREEMENT”). IN SUCH CASES, THE LICENSE TO THE SOFTWARE WILL BE EFFECTIVE AS PER THE TERMS SET OUT IN THE APPLICABLE LICENSE AGREEMENT .
SUBSCRIBER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO AND THE COMPANY DOES NOT HAVE ANY LIABILITY TOWARDS VERIFYING THE AUTHORITY OF THE PERSON WHO HAS SIGNED THE AGREEMENT ON BEHALF OF THE SUBSCRIBER.
a. “Account(s)” means an account generated for Subscriber to use the Subscription and manage its Permitted Users’ accounts during the Subscription Term. For the avoidance of doubt, an Account is specific to Subscriber and under no circumstance may an Account be shared with any third-party.
b. “Confidential Information” means any non-public, proprietary information that is disclosed or made available by a party (the “Disclosing party”) to the other party (the “Receiving party”), provided after the Order Effective Date of this Agreement, that is designated as confidential or proprietary, or that the Receiving party should reasonably understand to be confidential or proprietary given the nature of the information and the circumstances of disclosure, including (a) for Subscriber, all Subscriber Content transmitted to or from, or stored on, the Software; (b) for Company, the Software, including Documentation; and (c) for both parties, any information concerning the Disclosing party products, pricing, business information, marketing strategies, financial affairs, employees, Subscribers or suppliers, information concerning marketing plans, research and development efforts, inventions, trade secrets, requirements, Software (including software provided by third parties), equipment, technology, computing environment, physical and network security, names and other identifying information relating to Subscriber’s and its employees, suppliers, clients or Subscribers (including names and other information related to clients), personal information, price lists, pricing policies, financial information, business methods, processes and procedures, ideas, concepts, techniques, the results of Subscription performed any other information and data. Confidential Information does not include any particular information
of the Disclosing party that the Receiving party can demonstrate: (i) was in the possession of, or was rightfully known by, the Receiving party without an obligation to maintain its confidentiality prior to receipt from the Disclosing party; (ii) was or has become generally available to the public other than as a result of disclosure by the Receiving party or its agents; (iii) after disclosure to the Receiving party, was received from a third party who, to the Receiving party’s knowledge, had a lawful right to disclose such information to the Receiving party without any obligation to restrict its further use or disclosure; or (iv) was independently developed by the Receiving party without use of or reference to any of the Disclosing party’s Confidential information.
c. “Customizations” shall mean certain changes or modifications of bundled programming of the Software to meet the requirements of the Subscriber as per the applicable Plan.
d. “Deliverables “shall mean the outcome derived of the Suscriber’s use of the Software.
e. “Documentation” shall mean all and any accompanying documents, content, data, user guides, online help, video guides, release notes, training materials, provided by Company to Subscriber along with the Software that describes or supports the use of the Software and Subscription to enable the Permitted Users to use and understand the operations of the Software and Subscription including technical documentation, if any.
f. “Enhancements” shall mean any modification, update, upgrade, or addition to the Software that, when made or added to the Software or modules currently being used by Subscriber or any other customers of the Company, provides minor functionality enhancements but does not change overall utility, functional capability, or application, where such modifications or additions are generally made available by Company without any additional fees.
g. “Error(s)” shall mean any verifiable and reproducible failure or inability of the Software to perform any material functions set forth in the Documentation due to any programming defect in the Software, when used by Subscriber as specified under this Agreement or the Documentation. The term “Error”, shall however, not include any failure or inability of the Software that (i) results from the misuse or improper use of the Software, (ii) does not materially affect the operation and use of the Software, (iii) results from any modification to the Software that is not Company authorized change, and (iv) results from any cause beyond reasonable control of Company, including third party cloud environment, hardware, but not limited to, firmware, malicious code like virus, trojan or malware.
h. “Free Trial Term” means three (3) days’ free trial period or any other period mutually decided by the Parties and shall be effective from the date of Subscriber’s Subscription to the trial version of the Software and shall also include any mutually agreed extensions
i. “Fees” shall mean the fees paid or payable by Subscriber to Company in respect to availing: (a) the Subscription as set out in https://businessezee.com/pricing/ . Notwithstanding anything to the contrary, the Company may at its own discretion, opt to agree a separate schedule for fees with the Subscriber in the applicable Order and (b) any Services as specifically set out in the Order .
j. “Fixes” shall mean any modification or addition to the Software that, when made or added to the solution or modules currently being used by Subscriber, corrects Errors but does not change overall utility, functional capability, or application, where such modifications or additions are generally made available by Company to all its Subscribers.
k. “Intellectual Property Rights” means rights of ownership of any kind of intellectual property, including copyrights, patents, trademarks, service marks, trade secrets, rule sets, and all other intellectual property and all rights therein, and the right to apply for, register, obtain, hold, extend and renew any of the foregoing.
l. “Order” means an order form that the parties may enter into from time to time under this Agreement to place an Order for the Subscription, setting forth the description of the Software, Subscription, the Subscription Term start date, the Subscription Term end date, the applicable Fees, any other Services and such other terms as the parties may agree related to the transactions contemplated by this Agreement
m. “Permitted Users” shall mean any employees, officers, directors, of Subscriber or any other users who are authorized by Subscriber to use the Subscription in accordance with the terms of this Agreement.
n. “Plan” shall mean the specific Subscription plans as set forth in https://businessezee.com/businessezee-pricing-page
o. “Purpose” shall mean use of the Software and Subscription by Subscriber and its Permitted User for the sole purpose of its internal business use. For clarity, nothing contained in this Agreement grants Subscriber a right to resell, distribute, sublicense the Subscription to any third-party.
p. “Services” shall mean any additional services performed or delivered by Company including without limitation Customizations, in addition to the Subscription, under this Agreement and more specifically detailed out in an Order mutually agreed between the Parties.
“Software” means the software programs as identified in the Order and all related Documentation owned and provided hereunder by Company, and any Enhancements hereto.
q. “Subscriber Content” means all data and materials provided and uploaded by Subscriber and its Permitted Users to the Software for use in connection with the Subscription, from time to time.
r. “Subscription” shall mean a license to use the Software through an Order under which the Software for use to Subscriber and its Permitted Users in accordance with the terms of this Agreement.
s. “Territory” shall mean the Union Republic of India.
2. GRANT OF SUBSCRIPTION AND RESTRICTIONS
a. Grant of license during the Free Trial Term:
Subject to the terms and conditions of this Agreement, Company hereby grants to Subscriber during the Free Trial Term, a non-exclusive, non-transferable, revocable, non-sublicensable, limited license to use the Software and Services through the Subscription for Suscriber’s internal business use in accordance with the terms and conditions of this Agreement. Subscriber understands and acknowledges that at the end of the Free Trial Term, Subscriber’s access to the trial version of the Subscription shall automatically expire, unless Free Trial Term is mutually agreed to be extended by the Parties. On expiration of Free Trial Term, Parties will mutually agree with respect to the commencement of, Initial Subscription Term (as defined below).
b. Grant of Subscription during Subscription Term:
Subject to Subscriber and its Permitted User’s compliance with the terms of this Agreement, and Subscriber’s payment of any applicable Fees under Order, Company grants to Subscriber and Permitted User a limited, revocable, Territory nonexclusive, non-sublicensable and non- transferable Subscription, during the Subscription Term to access the Software and the Subscription for the Purpose. All Software and Subscription is licensed to Subscriber, not sold. Company reserves all rights not expressly granted in this Agreement, and no rights or licenses shall be deemed or interpreted to be granted or transferred hereunder, whether by implication, estoppel, or otherwise. Subscriber will be solely responsible for the acts and omissions of its Permitted Users and proper usage of the Subscription by its Permitted Users. Company will provide Enhancements and new versions to the Subscription that it generally provides to its other customers, provided that Company will not be obligated to provide to Subscriber any Enhancement or new versions to the Subscription, or any plan, for which Company generally charges a separate fee.
Subscriber represents, warrants and covenants that it shall not and will ensure that its Permitted Users do not, directly or indirectly during the Free Trial Term and the Subscription Term: (a) sell, transfer, assign sublicense or in any manner grant access to the Subscription under this Agreement, whether voluntarily or by operation of law, to any third party, directly or indirectly, and any such attempted transfer, assignment or sublicense shall be void; (b) modify, amend, reproduce, republish, decompile, decrypt, disassemble, reverse engineer, create derivative works of or otherwise reduce to human readable form the Software, translate into any language or computer language, re-transmit in any form or by any means, resell or re-distribute the Subscription without the prior written consent of Company; gain access to trade secrets or confidential information in the Software; circumvent any copy-protection or license enforcement; or attempt to do any of the foregoing, except to the extent expressly permitted by applicable law; (c) combine, commingle, or integrate the Software with open source software or third party software or incorporate any open source software or third party software into the Software; copy, modify, adapt, translate, reverse engineer, decompile, disassemble, alter, reproduce or otherwise make any changes to the Software; (d) use the Subscription in any manner to provide time-sharing, benchmarking or other computer services to third parties, except as provided herein, or allow disclosure, benefit or access to any third party from the functionality of the Software including without limitation any results of benchmarking or other testing generated in connection with Subscriber’s use of Subscription, including without limitation any comparisons of the Software with any other products; (e) provide access to third party including without limitation Subscriber’s affiliates other than Permitted Users without prior written consent of Company; (f)
remove from the Software (or fail to include in any copy) any readme files, notices, headers, disclaimers, marks or labels; and (g) use or allow use of the Subscription for any purpose other than Purpose specified in the Agreement in violation of any applicable law or regulation or to support or facilitate any illegal activity; (h) upload, transmit or otherwise make available in connection with the Subscription any unsolicited or unauthorized advertising or promotional materials, which by way of illustration but not limitation includes “junk mail“ , ” “spam“, “chain letters” , and “pyramid schemes”; (i) upload, transmit or otherwise make available in connection with the Subscription any content that is unlawful, harmful, threatening, abusive, harassing, torturous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (j) upload, transmit or otherwise make available in connection with the Subscription any content that Subscriber does not have a right to make available under all applicable laws, or contractual or fiduciary relationships (which, by way of illustration but not limitation, includes inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements); (k) upload, transmit or otherwise make available in connection with the Subscription any material that contains virus, or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, which by way of illustration but not limitation includes viruses, time bombs, trojan horses and other malware; (l) violate (intentionally or unintentionally) any applicable local or state or national or international laws or regulations in connection with the Subscription, including but not limited to those related to Intellectual Property Rights, privacy or security. Subscriber shall have no rights to the Software and the Subscription other than as specifically granted herein. All rights not specifically and unequivocally granted to Subscriber, or its Permitted Users are reserved by Company.
3. SUBSCRIBER’S RESPONSIBILITIES
a. Account Management:
Subscriber shall have administrative rights to manage the accounts of its Permitted Users, at its discretion. Subscriber shall be solely responsible for managing its Account and accounts of any of its Permitted User(s) and updating the same from time to time. As a condition for using the Subscription, the Subscriber and the Permitted Users shall be required to register with Company and select a password and enter his/her email address. Subscriber shall ensure that the Permitted Users shall provide Company with accurate, complete, and updated registration information. Subscriber understands that failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of Permitted User’s account. It is the primary responsibility of Subscriber to ensure that the Permitted Users use the Software as directed, however, this shall in no manner undermine any authority or rights of Company. Subscriber shall be responsible for maintaining the confidentiality of its Account. Company shall not be liable for any loss of data or functionality caused directly or indirectly by the Permitted Users.
b. Compliance with Laws:
Subscriber and its Permitted Users shall comply with all applicable local, federal, state, national and foreign laws in connection with its use of the Subscription, including those laws related to
data privacy, international communications, and the transmission of technical or personal data. Subscriber acknowledges that Company exercises no control over the content of the information transmitted by Subscriber or the Permitted Users through the Software. Subscriber and its Permitted Users shall not upload, post, reproduce or distribute any information, Software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.
c. Unauthorized Use; False Information:
Subscriber and its Permitted Users shall: (i) notify Company immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, (ii) report to Company immediately and use reasonable efforts to stop any unauthorized use of the Subscription that is known or suspected by Subscriber, and (iii) not provide false identity information to gain access to the Software or use the Subscription.
Subscriber shall be solely liable for the usage of the Software and the Subscription by all Permitted Users and shall indemnify and save harmless Company from and against any claims in relation to usage of the Software and the Subscription by such Permitted Users.
e. System requirements:
Subscriber acknowledges that, for accessing and use of the Software and the Subscription, the Permitted Users may be required to use one or more compatible devices, internet services and certain software and may require obtaining updates or upgrades of the Software from time to time. Because the access and use of the Subscription involves hardware, software, and internet access, Subscriber’s ability to access and use of the Subscription may be affected by the performance of these factors.
f. Subscriber Content:
Subscriber is solely responsible for all Subscriber Content transmitted on the Software, and for ensuring that Subscriber Content does not (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or (ii) contain anything that is obscene, defamatory, harassing, offensive or malicious or (iii) introduce any software viruses or other harmful or deleterious computer code, files, or programs, such as trojan horses, worms, time bombs, or cancelbots. Subscriber acknowledges and agrees that Company uses certain third-party tools for analytical purposes and may use Subscriber Content and track Subscriber’s usage of the Subscription for any purpose including but not limited to research, analytics, and to improve Subscriber’s services. Subscriber acknowledges that, Company will have no obligation to retain any Subscriber Content on the Software. The Customer agrees to delete all Subscriber Content on termination or expiration of this Agreement within a period of ninety (90) days, unless longer period is: (i) required under law; or (ii) on account of non-payment of Fees by the Subscriber; or (iii) mutually agreed between the Parties in writing.
g. Usage and Configuration Metrics.
Company, and its third-party service providers that perform Subscription in connection with the Subscription may collect information regarding number of users, number of devices, number of servers, per user storage capacity, aggregate storage usage of Subscriber and may use such information only for Company’s internal business purposes, including to perform its obligations under this Agreement and to ensure compliance with this Agreement.
In addition to the Subscription, upon the Subscriber’s request and in consideration of Fees, the Company will provide the Subscriber the Services in accordance with the terms agreed under the Order, which may be executed between the Parties. Any Orders executed by the Parties for such Services, will be an inherent part of this Agreement and will be governed by the terms and conditions of this Agreement.
a. In consideration of the Subscription and Services, the Subscriber shall pay the Fees as per this Agreement.
b. All Fees are non-refundable and non-cancellable. The Company acknowledges that the performance of the obligations of the Company under this Agreement or Order are conditional upon timely payment of Fees by Subscriber. Late invoices shall be subject to interest of 1.5% per month (or the maximum rate permitted by law if less) plus any expenses of collection. The company reserves the right to suspend and/or terminate access to the Software and the Services if any Fees payable hereunder are past due. Such suspension or termination shall not relieve Subscriber from its obligation to pay all amounts due under this Agreement.
c. Unless otherwise agreed, the Fees for the invoices shall be due and payable within Five (5) days from the receipt of the invoice by Subscriber (“Due Date”).
d. All Fees and charges under this Agreement shall be exclusive of taxes. Subscriber acknowledges and undertakes to pay the Fees along with all taxes or duties leviable under applicable law.
6. SERVICE LEVEL AGREEMENT
Company agrees that the Software will materially conform with the service level agreements as set out in https://businessezee.com/sla/ (“SLAs”). The Company will not be liable for any failure or non-compliance to the SLA’s if the same has resulted from (i) installation, deployment, use, maintenance or support not in accordance with the Agreement, (ii) modification by the Subscriber, Permitted User, or a third party not authorized by the Company, (iii) Force Majeure Event, (iv) any material breach of this Agreement by the Subscriber or a Permitted User; (v) malicious attack to the Software; or (vi) defects attributable to Subscriber or its Permitted User.
7. REPRESENTATION AND WARRANTIES; DISCLAIMER OF WARRANTY
a. Company warrants that the Software will perform substantially in conformance the Documentation. This limited warranty is void if failure of the Software has resulted from (i) failure to use the Software in accordance with this Agreement or the Documentation, (ii) modifications made by the Subscriber, a Permitted User, or a third party not authorized by Company, (iii) a Force Majeure Event (as defined below), or (iv) any material breach of this Agreement by the Subscriber; or (v) breach of the terms of this Agreement by a Permitted User. In the event of any Error in the Software, the Subscriber’s sole and exclusive remedy, and Company’s entire obligation and liability shall be, at Company’s sole option, to either (i) provide Fixes to the Software, (ii) correct or replace the Software, or (iii) refund the Subscriber, a pro-rated amount of the applicable Fees pre-paid by the Subscriber covering the whole months that would have remained, absent such early termination, in the Subscription Term following the effective date of such early termination, and terminate this Agreement.
b. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SOFTWARE, SUBSCRIPTION ANDSERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THE IMPLEMENTATION WILL BE THE SOLE RESPONSBILTY OF THE SUBSCRIBER, WITHOUT ANY LIABILITY ON THE COMPANY. COMPANY HEREBY DISCLAIMS ALL OTHER IMPLIED OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT LOSS OF DATA OR ARISING OTHERWISE IN LAW OR EQUITY OR FROM A COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED AND EXCLUDED. COMPANY FURTHER DISCLAIMS WARRANTIES THAT THE SOFTWARE, THE SUBSCRIPTION AND THE SERVICES WILL MEET SUBSCRI’ER’S OR PERMITTED USER’S REQUIREMENTS OR SPECIFICATIONS OR THE SOFTWARE, THE SUBSCRIPTION AND THE SERVICES WILL BE COMPATIBLE WITH SUBSCRI’ER’S INFRASTRUCTURE, THAT THE OPERATION OF THE SOFTWARE, THE SUBSCRIPTION AND THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY BUGS OR ERRORS OR DEFECTS WOULD BE FIXED OR THE SOFTWARE WILL OPERATE IN COMBINATION WITH SUBSCRI’ER’S CONTENT OR SOFTWARE, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY COMPANY. ALL SPECIFICATIONS, DOCUMENTATION, INFORMATION, AND OTHER MATERIALS PROVIDED BY COMPANY TO SUBSCRIBER ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, INCLUDING ANY STATUTORY WARRANTIES THAT MAY APPLY TO SUCH SPECIFICATIONS, DOCUMENTATION, INFORMATION OR MATERIALS. SUBSCRIBER ACKNOWLEDGES THAT COMPANY DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING, THE INTERNET, AND THAT THE SOFTWARE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. THE SUBSCRIBER AGREES THAT THE COMPANY WILL NOT BE LIABLE FOR ANY OBLIGATIONS BETWEEN THE SUBSCRIBER AND THE THIRD PARTY SOFTWARE OWNER INCLUDING WITHOUT LIMITATION ANY DELAYS CAUSED ON ACCOUNT OF ANY DOWNTIMES OR DYSFUNCTIONALITIES IN RELATION TO ANY THIRD PARTY SOFTWARE. FURTHER, THE SUBSCRIBER AGREES TO PROVIDE UNRESTRICTED ACCESS TO CLOUD COST & USAGE DATA FOR THE SUBSCRIPTION TERM AND THE COMPANY’S PERFORMANCE IS DEPENDENT ON SUCH ACCESS PROVIDED TO THE COMPANY.
8. INTELLECTUAL PROPERTY RIGHTS
a. Any and all ownership rights to the Software, Subscription, or Deliverables, Documentation, Enhancements, new versions, and branding thereof, including Intellectual Property Rights therein is the sole and exclusive property of Company. This Agreement does not grant Subscriber or any Permitted Users any rights, title, and interest in and to Software, Subscription, Documentation, Enhancements, New Version, its contents, and branding thereof, except where expressly and unequivocally licensed herein. Any rights not expressly and unequivocally granted to Subscriber are reserved.
b. The Parties agree that the Company may grant Subscriber a perpetual, non-exclusive, limited license to use the Deliverables with the prior written consent of the Company.
c. Notwithstanding anything in this Agreement to the contrary, Subscriber shall be the sole and exclusive owner of all Subscriber Content, and all Intellectual Property Rights related therein.
d. Each party agrees to execute, and cause its employees, agents, or representatives, and in the case of Company, its personnel, and Subcontractors, to execute any documents or take any other actions as may be reasonably necessary or as requested by the other party, to perfect each party’s respective ownership rights.
e. Subscriber agrees that Subscriber and its Permitted Users shall not assert, or authorize, assist, or encourage any third party to assert, against Company any infringement or misappropriation of Intellectual Property Rights related claim regarding the Software, Subscription, Services, Documentation or Enhancements.
9. PRIVACY AND SECURITY
a. Each party agrees that all Confidential Information obtained by such party, its directors, officers, and other employees, and any third party with which it contracts, is and shall be considered confidential and proprietary to the Disclosing party.
b. The Receiving party agrees that it shall use the Disclosing party’s Confidential Information solely in the performance of its obligations and shall not disclose the Disclosing party’s Confidential Information to any person except that the Receiving party may disclose such Confidential Information:
i. to its employees, agents, subcontractors, representatives and service providers provided that such persons or parties have a need to know the Disclosing party’s Confidential
Information to perform their duties to the Receiving party in connection with this Agreement, and further who are otherwise under a duty of confidentiality to the Receiving party or have entered into a written agreement with the Receiving party that contains confidentiality measures at least as stringent as those stated in this Agreement; and
ii. to governmental or regulatory authorities having jurisdiction over such party or as required by law. In the event that the Receiving party receives a court Order, discovery demand or subpoena requiring it to divulge the Disclosing party’s Confidential Information, it shall, unless prohibited, promptly notify the Disclosing party of such requirement so that the Disclosing party may seek a protective Order.
c. The Receiving party shall protect the confidentiality and integrity of the Disclosing party’s Confidential Information using the same degree of care that it uses to protect its own similar information, but in no event less than reasonable care.
d. Upon termination of this Agreement, or upon request of the Disclosing party, the Receiving party shall return the Disclosing party’s Confidential Information or destroy the same and certify its destruction in writing.
e. In addition to any other rights the Disclosing party may have under this Agreement or at law, since unauthorized use or disclosure of Confidential Information may result in immediate and irreparable injury to Disclosing party for which monetary damages may not be adequate, in the event that the Receiving party uses or discloses, or is likely to use or disclose, Confidential Information in breach of the Receiving party’s obligations under this Agreement, the Disclosing party shall be entitled to equitable relief, including temporary and permanent injunctive relief and specific performance. The confidentiality obligations shall survive for a period of (2) two years post termination/expiry of the Agreement.
Subscriber agrees to indemnify, keep indemnified, defend (at Company’s option) and hold harmless Company and its respective directors, officers, employees, representatives, from and against any and all claims and resulting losses, costs, liabilities, and expenses (including reasonable attorney’s fees), arising as a result of or in connection with: (a) Subscriber’s or its Permitted Users’ breach of or violation of applicable laws and regulations, (b) use by Subscriber or its Permitted Users of the Software and/or Services other than as permitted under this Agreement; (c) any acts or omissions and negligence or misconduct on part of the Permitted Users; (d) a third party claim for infringement or misappropriation based upon Subscriber’s combination or use of the Software and/or deliverables and/or Subscription with, services, or products developed by Subscriber or third parties or any Subscriber Content; (e) use of Software and/or Subscription and/or Services other than as permitted under this Agreement. The provisions of this section shall survive the expiry or termination of this Agreement.
12. LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR SPECIAL DAMAGES, I
GOODWILL, LOSS OF BUSINESS OPPORTUNITY OR HOWSOEVER CAUSED IN CONNECTION WITH THIS AGREEMENT EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL AGGREGATE LIABILITY OF COMPANY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE)) HEREUNDER FOR ALL DIRECT DAMAGES, UNDER OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO THE EXTENT OF THE FEES PAID TO COMPANY BY SUBSCRIBER UNDER AN APPLICABLE ORDER IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT PURSUANT TO WHICH THE CLAIM AROSE. THE FOREGOING LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES IN THIS SECTION FORM AN ESSENTIAL BASIS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY OR REMEDY HEREIN.
13. TERM AND TERMINATION
Term of the Agreement: On completion of Free Trial Term, the Subscription Term shall commence on the date of issuance of Order for the Subscription to use and access the Software and Services is granted to Subscriber for a subscription period of  years after the expiry of the Free Trial Term (“Initial Subscription Term”) and unless Subscriber’s Subscription is terminated in accordance with this Agreement, Subscriber’s Subscription shall automatically be renewed for a period of similar duration as that of the Initial Subscription Period (each “Renewal Term”). The Initial Subscription Term and /or each Renewal Term shall be collectively referred to as the (“Subscription Term”).
Either party may terminate this Agreement if:
i. the other party commits a material breach of the provisions of this Agreement and fails to cure such breach within the 30 (thirty) days’ of being notified of such breach by the non-breaching party.
ii. the other party becomes insolvent or bankrupt, makes an assignment for the benefit of its creditors, enters into a composition with its creditors generally, or if a receiver or trustee is appointed over the entire property and assets of the other party.
c. Consequences of Termination: Upon the expiry or any termination of the Agreement:
i. the rights and Subscription granted to Subscriber hereunder shall immediately and automatically cease to be in effect.
ii. Any amount owed to the Company by Subscriber before termination of this Agreement shall become immediately due and payable by Subscriber.
iii. The termination of this Agreement shall not relieve any party of its obligation or liability accrued prior to the date of termination.
iv. The termination of this Agreement pursuant to any of the provisions of this Agreement shall not limit or otherwise affect any other remedy (including a claim for damages) that the terminating party may have arising out of the event that gave rise to the right of termination.
14. ADVERTISING OR PUBLICITY
Company reserves the right to display any advertising, publicity releases, promotional or marketing correspondences, attribution, links, promotional and/or distribution rights (“Promotion Material”) in connection with Subscriber logos, nature of Services, without disclosing any Confidential Information or Subscriber Content or Subscriber name. Company will be entitled to retain any and all revenue generated from any sales or licenses of such Promotion Material.
15. THIRD PARTY LINKS
a. In some cases, the Company may engage with a third-party partner (“Partner”) with another company to co-promote their services within the Company’s Subscription or Services. In these cases, the Subscriber is transacting directly with a Partner and will be bound Partner’s brand and their terms and conditions, without any liability on the Company.
c. The Company shall not be responsible for any transaction or dissemination of information by the Permitted User that may take place while accessing these third-party websites, including Partner websites and payment gateways. The Company shall not be held liable to any Permitted User or third party with respect to the services rendered by such third parties, Partner or payment gateways. Company hereby disclaims all liability with respect to the acts, omissions, errors, representations, warranties, breaches or negligence on part of any third- party service provider, including the Partner or payment gateways.
The headings, titles, and captions contained in this Agreement are merely for reference and do not define, limit, extend, or describe the scope of this Agreement or any provision herein. Unless the context requires otherwise, (a) the gender (or lack of gender) of all words used in this Agreement includes the masculine, feminine, and neuter, and (b) the word “including” means “including, without limitation”.
17. FORCE MAJEURE
Except for Subscriber’s payment of Fees and/or additional payment obligation under this Agreement neither party shall be liable to the other for any loss or damage resulting from any cause beyond its reasonable control (a “Force Majeure Event”) including, but not limited to, insurrection or civil disorder, riot, war or military operations, national or local emergency, acts or directives of government or other competent authority, compliance with any statutory obligation or executive Order, pandemics, lockdowns, any Act of God, fire, lightning, explosion, flood, earthquake, epidemics, or other similar force beyond such party’s reasonable control. Except for Subscriber’s payment of Fees, upon occurrence of a Force Majeure Event and to the extent such occurrence interferes with either party’s performance of this Agreement, such party shall be excused from performance of its obligations during the first three months of such interference, provided that such party uses best efforts to avoid or remove such causes of non-performance as soon as possible.
If any provision of this Agreement is determined to be invalid, illegal or unenforceable in any respect, including because of the duration thereof, the area covered thereby, or the types of activities restricted thereby, by a court of competent jurisdiction (i) the validity, legality or enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby, and (ii) the court of competent jurisdiction making such determination shall have the power to reduce the duration and/or area of such provisions or types of activities restricted and/or to delete specific words or phrases and in its reduced form such provision shall then be enforceable. The parties may acting in good faith adopt any and all actions required to cause such invalid, illegal and unenforceable provision to be valid and enforceable, or, alternatively, to reach an agreement in relation to said null provision whereby each of the party receives, as far as possible, substantially the same benefits and obligations based on valid provisions, provided that the Agreement is not enforced in a form that materially affects the commercial agreement between the parties.
19. ASSIGNMENT AND DELEGATION
Subscriber may not assign this Agreement without the prior written consent of Company. Company may assign this Agreement in conjunction with the sale of substantial assets, divestiture, merger, or amalgamation, or to its affiliate, and may delegate or subcontract its duties. Any unauthorized assignment of this Agreement is void.
Failure to exercise, or any delay in exercising, any right or remedy provided under this Agreement shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall preclude or restrict the further exercise of that or any other right or remedy.
21. GOVERNING LAWS AND DISPUTE RESOLUTION
This Agreement shall be construed and governed by and in accordance with the laws of India. The Parties shall resolve any difference or dispute arising out of this Agreement by way of negotiations.
If such negotiation process fails, then all disputes arising from or related to this Agreement shall be resolved by arbitration presided by a mutually appointed sole arbitrator as per the Rules. The seat of arbitration will be in Nagpur, Maharashtra, India. The arbitration proceedings will be in English language and in accordance with the provision of the Arbitration and Conciliation Act, 1996 and the associated rules, as amended from time to time (“Rules”). The cost of the arbitration proceeding, including reasonable attorney’s fees for all Parties, if there are any, shall be paid by the non-prevailing Party(ies) as determined by the arbitral tribunal.
The Company shall be entitled to, on itself or through its representatives, auditors, or agents remotely inspect, examine, audit Subscriber’s use of the Subscription to ensure the compliance with terms of this Agreement. Subscriber shall promptly co-operate with the Company’s internal or external auditors to allow a prompt and accurate audit of the Subscriber’s use of the Subscription and provide records and data as may be required by Company. Subscriber shall also co-operate in good faith with the Company and shall correct any practices, which are found to be deficient as a result of any such audit within a reasonable time after receipt of Company’s or their auditor’s audit report. If any deviations or defaults are found, Subscriber shall bear the expense of such audit.
If this Agreement is terminated in accordance with the terms hereof, this Agreement shall become void and of no further force and effect and none of the parties shall have any right or obligation or liability to the other parties under this Agreement, provided however that, the provisions of section 7, 8, 9, 10, 11, 12, 13, 16, 18, 20, 21, 22, 25, 26, 27 and 28 shall survive the termination of this Agreement without limit in time.
24. INDEPENDENT CONTRACTOR
The parties are independent contractors and none of their personnel or subcontractors are agents, representatives, or employees of any other party. No party owes a fiduciary duty to any other party. No party shall have the authority to bind or make any representations on behalf of any other party, and no party shall hold itself out as such or knowingly permit another to rely on such belief.
Either party agrees that it will not, nor will it cause or permit its affiliates to, during the Subscription Term of this Agreement and for a period of one year after the termination or expiration of this Agreement, directly, solicit the services of (for employment, consulting or otherwise), accept the services of, or employ or engage any person who is now employed by the other party or any of its affiliates and with whom the party has had contact as part of its business relationship with the other party.
Subscriber understands, agrees, and acknowledges that Subscriber shall not use the Subscription in any manner to assist or take part in, and/or shall not on its own, undertake the development, marketing, or sale of a product potentially competitive with the Software.
27. ORDER OF PRECEDENCE
Any notice required or permitted to be given under this Agreement shall be in writing, by hand delivery, commercial overnight courier or registered to the addresses stated below for the parties or in the case of email, sent to the email address nominated in writing by the parties.
TO COMPANY Attn. : Mr.Vaibhav Deshpande Address: 1st Floor, Plot No 2, Juniper Building, IT Park, S Ambazari Rd, Nagpur – 440022 Email : firstname.lastname@example.org TO SUBSCRIBER Attn. : <Auto Populate> Email : <Auto Populate> Mobile : <Auto Populate>
Any change to the above-mentioned contact details shall be informed within ten (10) days of such change.
29. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties and supersedes any prior understanding or representation of any kind including but not limited to any agreements or terms and conditions preceding the date of this Agreement, and may not be amended, supplemented, varied, or otherwise changed except in writing through mutual agreement of the parties. There are no other promises, conditions, understandings, or other agreements, whether oral or written, relating to the subject matter of this Agreement. Each party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty other than as expressly set out in this Agreement. This Agreement may be modified in writing specifically referencing this Agreement and any such modifications must be signed by both the parties. Standard terms and conditions of a purchase Order or an invoice or any similar document whether hosted on party’s website or otherwise shall be ineffective.
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