"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Third-party Applications" means online applications and offline software products that are provided by entities or individuals other than Licensor.
"Purchased Services" means Services that Licensee or its Affiliates purchase under Annexure 1, as distinguished from those provided pursuant to a free trial.
"Services" means the products and services that are ordered by you under a free trial or as mentioned under Annexure 1 and made available by Licensor. "Services" exclude Third Party Applications.
"Users" means individuals who are authorized by Licensee to use the Services, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords by Licensee (or by Licensor at Licensee's request). Users may include but are not limited to Licensee's employees, consultants, contractors and agents, and third parties with which Licensee transact business.
"We," "Us" or "Our" means Techence IT Solutions Private Limited.
"You" or "Your" means the licensee or company or other legal entity for which Licensee are accepting this Agreement, and Affiliates of that company or entity.
"Your Data" means all electronic data or information submitted by Licensee to the Purchased Services.
2. PURCHASED SERVICES
2.1. Provision of Purchased Services. We shall make the Purchased Services available to You pursuant to this Agreement during a subscription term. You agree that your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by us regarding future functionality or features.
2.2. User Subscriptions. Unless otherwise specified in this agreement, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the applicable subscription term at the additional pricing as may be applicable, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
3. USE OF THE SERVICES
3.1. Our Responsibilities: We shall: (i) provide Our basic support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available 12 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 8 hours notice via the Purchased Services and which We shall schedule to the extent practicable during the weekend hours), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.
3.2. Our Protection of Your Data. We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 7.3 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services and prevent or address service or technical problems, or at Your request in connection with customer support matters.
3.3. Your Responsibilities. You shall (i) be responsible for Users' compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
3.4. Usage Limitations: Services may be subject to other limitations which are beyond the control of Licensor, such as, for example, limits on disk storage space, minimum hardware requirement, internet connection and other Services that enable You to access the Service. Any such limitations shall not be considered as breach of supply of service by the Licensor.
4. THIRD PARTY PROVIDERS
4.1. Acquisition of Third Party Products and Services. We or third parties may from time to time make available to you (e.g., through the AppExchange) third-party products or services, including but not limited to Third-party Applications and implementation, customization and other consulting services. Any acquisition by you of such Third-party products or services, and any exchange of data between you and any Third-party provider, is solely between you and the applicable Third-party provider. We do not warrant or support Third-party products or services, whether or not they are designated by us as "certified" or otherwise, except as specified in writing. Subject to Section 4.3 (Integration with Third Party Services), no purchase of Third-party products or services is required to use the Services except a supported computing device, operating system, web browser and Internet connection.
4.2. Third Party Applications and Your Data. If you install or enable Third Party Applications for use with Services, You acknowledge that we may allow providers of those Third Party Applications to access Your Data as required for the interoperation of such Third Party Applications with the Services. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third Party Application providers.
4.3. Integration with Third Party Services. The Services may contain features designed to interoperate with Third Party Applications (e.g., Google, Facebook or Twitter applications). To use such features, you may be required to obtain access to such Third Party Applications from their providers. If the provider of any such Third party Application ceases to make the Third party Application available for interoperation with the corresponding Service features on reasonable terms, we may cease providing such Service features without entitling you to any refund, credit, or other compensation.
5. FEES AND PAYMENT FOR PURCHASED SERVICES
5.1. Fees. You shall pay all fees specified in Annexure 1 hereunder. Except as otherwise specified herein or in an Annexure 1, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are no cancelable and fees paid are non-refundable, and (iii) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated in the Annexure 1. User subscription fees are based on yearly periods that begin on the subscription start date and each yearly anniversary thereof.
5.2. Invoicing and Payment. The payment shall be made in advance for the service period stated in the Annexure 1. We will invoice you in advance and otherwise in accordance with the Annexure 1. You are responsible for providing complete and accurate billing and contact information to us and notifying Us of any changes to such information.
5.3. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 90 or more days inactive We may, without limiting Our other rights and remedies, suspend Our services to You.
5.4. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with your purchases hereunder. If we have the legal obligation to pay or collect Taxes for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you, unless you provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, we are solely responsible for taxes assessable against it based on our income, property and employees.
6. PROPRIETARY RIGHTS
6.1. Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, we reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.
6.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein, (ii) copy, frame or mirror any part or content of the Services, (iii) reverse engineer the Services, or (iv) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
6.3. Your Applications and Code. If You, a third party acting on Your behalf, or a User creates applications or program code using the Services, You authorize Us to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Us to provide the Services in accordance with this Agreement. Subject to the above, we acquire no right, title or interest from you or your licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.
6.4. Your Data. Subject to the limited rights granted by you hereunder, we acquire no right, title or interest from you or Your licensors under this Agreement in or to Your Data, including any intellectual property rights therein.
6.5. Suggestions. We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services
7.1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
7.2. Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement to any third party other than its Affiliates and their legal counsel and accountants without the other party's prior written consent.
7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information
8. WARRANTIES AND DISCLAIMERS
8.1. Our Warranties. We warrant that (i) We have validly entered into this Agreement and have the legal power to do so, (ii) the Services shall perform materially in accordance with the User Guide, (iii) subject to Section 4.3 (Integration with Third Party Services), the functionality of the Services will not be materially decreased during a subscription term, and (iv) We will not transmit Malicious Code to You, provided it is not a breach of this subpart (iv) if You or a User uploads a file containing Malicious Code into the Services and later downloads that file containing Malicious Code. For any breach of a warranty above, Your exclusive remedy shall be as provided in Section 11.2 (Termination for Cause) and Section 11.3 (Refund or Payment upon Termination) below.
8.2. Your Warranties. You warrant that You have validly entered into this Agreement and have the legal power to do so.
8.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8.4. Non-GA Services. From time to time We may invite You to try, at no charge, Our products or services that are not generally available to Our customers ("Non-GA Services"). You may accept or decline any such trial in Your sole discretion. Any Non-GA Services will be clearly designated as beta, pilot, limited release, developer preview, nonproduction or by a description of similar import. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. NON-GA SERVICES ARE NOT CONSIDERED "SERVICES" HEREUNDER AND ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue Non-GA Services at any time in Our sole discretion and may never make them generally available.
9. MUTUAL INDEMNIFICATION
9.1. Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a "Claim Against You"), and shall indemnify You for any damages, attorney fees and costs finally awarded against You as a result of, and for amounts paid by You under a court approved settlement of, a Claim Against You; provided that You (a) promptly give Us written notice of the Claim Against You; (b) give Us sole control of the defense and settlement of the Claim Against You (provided that We may not settle any Claim Against You unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense. In the event of a Claim Against You, or if We reasonably believe the Services may infringe or misappropriate, We may in Our discretion and at no cost to You (i) modify the Services so that they no longer infringe or misappropriate, without breaching Our warranties under "Our Warranties" above, (ii) obtain a license for Your continued use of the Services in accordance with this Agreement, or (iii) terminate Your User subscriptions for such Services upon 30 days' written notice and refund to You any prepaid fees covering the remainder of the term of such User subscriptions after the effective date of termination.
9.2. Indemnification by You. You shall defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a "Claim Against Us"), and shall indemnify Us for any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us; provided that We (a) promptly give You written notice of the Claim Against Us; (b) give You sole control of the defense and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Your expense.
9.3. Exclusive Remedy. This Section "Mutual Indemnification" states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of claim described in this Section.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability. IN NO EVENT SHALL THE LICENSOR OR THEIR AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTIONS, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF LICENSOR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY DIRECT DAMAGES ARISING OUT OF LICENSEE'S USE OF THE SOFTWARE. In no event will Licensor or its agents be liable to Licensee for damages in an amount greater than the fees paid for the use of the SUBSCRIBED SERVICE.
10.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL THE LICENSOR HAVE ANY LIABILITY TO THE LICENSOR FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
11. TERM AND TERMINATION
11.1. Term of Agreement. The Term shall be for a period of One year and shall commence on the date of this Agreement and AUTOMATICALLY shall stand to be RENEWED on the date of Renewal as mentioned in the Annexure 1, unless otherwise terminated as provided in this Agreement. The Licensor and the Licensee may extend the Term on similar terms and conditions by further agreement in writing to that effect with per the terms and conditions as agreed upon mutual consent from both the parties.
11.2. Termination for Cause. The Licensor may terminate this Agreement immediately if Licensee breaches any provision of this Agreement. Upon notice of termination by Licensor, all rights granted to Licensee under this Agreement will immediately terminate, and Licensee shall cease using the Service and return or destroy all copies of the documentation.
11.3. Refund or Payment upon Termination. Upon any termination for cause by You, We shall not refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
11.4. Surviving Provisions. Section 5 (Fees and Payment for Purchased Services), 6 (Proprietary Rights), 7 (Confidentiality), 8.3 (Disclaimer), 9 (Mutual Indemnification), 10 (Limitation of Liability), 11.3 (Refund or Payment upon Termination), 11.4 (Return of Your Data), 12 (Notices, Governing Law and Jurisdiction) and 13 (General Provisions) shall survive any termination or expiration of this Agreement.
12. NOTICES, GOVERNING LAW AND JURISDICTION
12.1. Resolution of Dispute: In the event of any dispute or difference of any nature arising regarding the terms and conditions and interpretations of the above Clauses, the same shall be referred to the Arbitrator. The Arbitration proceedings shall be in accordance with the provisions of the Arbitration and Conciliation Act, 1996 for the time being in force or any other statutory modification or re-enactment thereof. The venue for such Arbitration shall be at Rajgurunagar, Pune, Maharashtra, India.
12.2. Governing Law: This agreement shall be governed and construed in accordance with the laws of India, and any disputes therein shall be subject to the Jurisdiction of courts of Rajgurunagar, Pune, Maharashtra, India.
12.3. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.
13. GENERAL PROVISIONS
13.1. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
13.2. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
13.3. Waiver. No failure or delay by Licensor in exercising any right under this Agreement shall constitute a waiver of that right.
13.4. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
13.5. Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due to Us under this Agreement following Your breach of Payment.
13.6. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party's sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party's election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall not refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.7. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes any previous communications, understandings and agreements between the Licensor and the Licensee regarding the subject matters hereof, whether written or oral. Except as otherwise provided in this Agreement, this Agreement may only be amended by further agreement in writing signed by the parties hereto.