- “Affiliate” is any entity that controls, is controlled by or is under common control with a Party, where “control” shall include the right to appoint majority of the directors or to control the management or policy decisions exercisable by a person or persons acting individually or in concert, directly or indirectly, including by virtue of their shareholding or management rights or shareholders agreements or voting agreements or in any other manner.
- “Business Requirements Specification (BRS) phase” is the phase of product implementation wherein the high level technical and functional business requirements of the subscriber are identified and agreed upon.
- “Confidential Information of Software Provider” shall mean any and all technical and non- technical information with respect to or in connection with Vinculum’s business, operations and activities, including copyright, trade secret and proprietary information, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, software, software programs, software source documents, Application Program Interfaces (APIs), and formulae related to the current, future and proposed products and services of Vinculum and includes without limitation, Vinculum’s information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, Subscriber lists, business forecasts, sales and merchandising, marketing plans and information, and documentation. All information disclosed by Vinculum to the Subscriber, whether in writing or orally, that is designated as confidential, or which by its nature should be reasonably considered confidential, shall be considered Confidential Information. “Confidential Information” shall also include proprietary or confidential information of a third party that Vinculum may disclose to the Subscriber hereunder.
- “Subscribers’ Confidential Information” shall mean all the information whether in writing or oral and whether specified as confidential or not, including but not limited to data including personally identifiable information, personal data and sensitive personal data, figure, design (whether stored in electronic or in print format).
- “Fees” means the Subscription Fee and the Implementation Fee as set out in detail in service order form.
- “Intellectual Property” means and includes all intellectual property, in any part of the world, whether registered or not registered, and in particular (i) all trademarks, service marks, trade names, logos, domain names; patents, design rights; trade secrets, including, know-how, technology, formulae, industrial and commercial information, techniques and inventions; processes, manuals, documentation, and technical data and information; copyrights, works of authorship, and topography rights, data base rights; computer hardware and software including source code, computer programs, user interfaces, software applications, software platform or infrastructure and any other information in relation to the above; (ii) all rights under licenses in respect of all of the above; (iii) any applications or registrations for the protection of all of the rights specified at sub-clause (i) and (ii) herein above; and (iv) all renewals and extensions thereof; and the term “Intellectual Property Rights” shall be construed accordingly.
- “New Release” means a new version of the existing Software that may change the version number of such Software.
- “SAAS” means software as a service.
- “Term” shall have the meaning ascribed to it in Clause II.
- “Update” means the modifications or revisions made to the Software: (i) to improve upon or repair existing features and operations within the Software; (ii) to ensure compatibility with new releases of existing systems (including hardware, operating systems and middleware) and external services through standardized interfaces; (iii) to comply with applicable laws, regulations, industry standards or market practice, other than a New Release.
General Terms & Conditions
BY ACCEPTING THIS AGREEMENT OR ACCESSING OR USING THE SERVICE, YOU ARE AGREEING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
The “Effective Date” of this Agreement is the date which is the earlier of (a) Subscriber’s initial access to any Service through any online provisioning, registration or order process or (b) the effective date of the first Service Order Form, as applicable, referencing this Agreement. This Agreement will govern Subscriber’s initial purchase on the Effective Date as well as any future purchases made by Subscriber that reference this Agreement.
These Terms of Service (the “Agreement”) is entered into by and between Vinculum Solutions Private Limited (“Vinculum” or “Provider”) and the person or entity placing an order for or accessing the Service (“Subscriber” or “you”). In consideration of the terms and conditions set forth below, the parties agree as follows:
I. DEFINITIONS AND INTERPRETATION
1. Definitions:
Capitalized terms used in this Agreement shall, unless the context otherwise requires,
have the meanings ascribed to them below:
2. Interpretation:
In This Agreement, unless otherwise specified, the following will apply.
2.1 headings, sections, parts and paragraphs are for ease of reference only and do not affect the interpretation of this Agreement.
2.2 references to this Agreement or any other document shall be construed as references to this Agreement or that other document as amended, varied, novated, supplemented or replaced from time to time.
2.3 reference to any law: (i) shall be deemed to include any by-laws, licensees, statutory instruments, rules, regulations, orders, notices, directions, consents or permissions made under that law; and (ii) shall be construed as referring to any law which replaces, re-enacts, amends or consolidates such law (with or without modification) at any time.
II. TERM, RENEWAL, TERMINATION AND SUSPENSION
- Term: This Agreement is Valid for an initial term of 3 (Three) years.
- Price Escalation: There will be a price escalation of 7% p.a. applicable per year on the subscription fees. If the customer pays yearly in advance, there will be price protection offered for the contract term.
- Renewal: Service Plans will automatically renew for a period equal to the previous Subscription Term or one year (whichever is shorter).
- Foreclosure of agreement: The Subscriber will have the opportunity to review the performance and contract terms at the end of 11th month of the first year, 23rd month i.e. in 2nd year and 30 days before expiry of contract. If the contract is foreclosed/terminated by the Subscriber prior to expiry of contract term, for any reason other than the condition covered in clause II.e, the subscription charges for the reminder of the 12 month period of the applicable year will be fully payable.
- Termination: Either party may terminate this Agreement by written notice to the other party in the event that:
- such other party materially breaches this Agreement and does not cure such breach within thirty (30) days of such notice, or
- the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors and if such petition or proceeding is not dismissed within 30 (thirty) calendar days of filing.
- Suspension: Vinculum may suspend Subscriber’s access to the Services, Software, Mobile Apps and/or Subscriber’s Account, on the following grounds: (i) late payment/non-payment of undisputed Fees; (ii) non-renewal of the Services by Subscriber; (iii) Subscriber’s or its Users’ breach of Section 2 (Use Restrictions); or (iv) in the event suspension is deemed necessary by Vinculum to prevent or address the introduction of Malicious Software a security incident, or other harm to Subscriber, Vinculum, or Vinculums’ other Subscribers. Vinculums will notify Subscriber of any such suspension. Vinculum swill use diligent efforts to attempt to limit, where commercially feasible, the suspension to affected Users or Vinculums Technology, and will immediately restore the availability of the same as soon as the issues leading to the suspension are resolved. Such suspension will in no way affect Subscriber’s other obligations under this Agreement.
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Use Restriction: The rights granted to subscriber is only for the limited use of the subscribed Software and shall not include, without limitation, the right to:
Subscriber will not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Vinculum Technology available to any third party other than Users and End Users, and then only in furtherance of its permitted business purposes as expressly permitted by this Agreement; (ii) modify, adapt, or hack the Vinculums Technology or otherwise gain or attempt to gain unauthorized access to the Vinculums Technology, its related systems or networks; (iii) falsely imply any sponsorship or association with Vinculum; (iv) decompile, reverse engineer, disassemble, reproduce, or copy or otherwise access or discover the source code or underlying program of any portion of Vinculums Technology. (v) not to attempt to damage, vulnerability assessments, penetration testing, security audit, denial of service to, hack, crack, or otherwise interfere (collectively, "Interfere") with the subscribed site in any manner. If "Subscriber" in any way interferes with the subscribed Site, "Subscriber" agrees to pay all damages incurred by the service provider. Service provider may initiate legal procedures to recover damages incurred from Subscriber. Subscriber hereby confirms that he cooperates with the authorities. - Free Trial Subscribers: If Subscriber registers with Vinculum for a free trial, Vinculum will make the applicable Service(s) available to Subscriber on a trial basis free of charge until the earlier of (a) Fifteen days (15) of the free trial period for which Subscriber registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by Subscriber for such Service(s), or (c) termination by Vinculum in its sole discretion.
III. OBLIGATIONS OF THE PARTIES
Vinculum hereby agrees and undertakes that:
- It shall, fulfil its obligations under this Agreement within the timelines identified in the Business Requirements Specification (BRS) phase, as mutually agreed, documented and executed by the Parties
- Vinculum shall provide free online training to its Subscriber as required and
it’s identified key employees, towards familiarizing and aiding the use of the Software
by the latter. It is hereby clarified
that the structure and mode of training shall be in “train the trainer” model. The key employees, who is receiving the training shall have to train other employees of the Subscriber and Vinculum shall have no obligation for the same. Onsite training can also be provided subject to the reimbursement of cost and availability of resource. - It shall use commercially reasonable efforts to maintain the availability an access of/to the Software at all times. It is hereby clarified that this obligation is subject to downtimes (non-availability or access to the Software) resulting from maintenance, repairs and upgrades of Vinculum’s internal or external systems.
- It shall provide the Subscriber an email address to which the Subscriber’s employees may reach out to, during regular business hours, for the purposes of any reasonable support that is required in relation to the Subscribed Software.
Subscriber hereby agrees and undertakes that:
- It shall at its own cost, appoint a coordinator for the purposes of (i) finalizing, facilitating and ensuring the coordination with end user for Business Requirements Specifications (BRS), (ii) coordination with external system owners or interface related requirements.
- Its use of the Subscribed Software shall be, at all times, for its internal business purposes and in due and satisfactory compliance of the terms contained in this Agreement.
IV. CONFIDENTIALITY
- Both Parties shall keep Confidential Information strictly confidential and shall use it solely in accordance with the terms of this Agreement. Both Parties shall not (a) disclose, or permit disclosure of Confidential Information, in whole or part, to any third party; or (b) allow any third party to copy, adapt, modify, update or edit the Confidential Information. Both Parties shall restrict disclosure of Confidential Information only to those employees who have a need to know such Confidential Information, solely in connection with performance of duties pursuant to this Agreement. Both Parties shall ensure that such employees are bound by confidentiality obligations that are no less restrictive than those contained in this Agreement. If one of the parties becomes aware of any unauthorized use or disclosure of Confidential Information, it shall promptly inform the other Party and shall provide necessary assistance and cooperation, as may be required to retrieve and protect such Confidential Information.
- The confidentiality obligations contained herein shall not apply to information which is (a) now in or hereafter enters the public domain (as evidenced by written publication), without a breach of this Agreement; (b) known to any party prior to disclosure by the other; (c) disclosed by one party with the prior written approval of the other; or (e) which is required to be disclosed by law, a government agency or an order of a court, provided that the disclosing party shall undertake to make disclosures only to the extent necessary and further, provide a prior written notice to the receiving party of such legally compelled disclosure, to the extent permitted by applicable law, so as to enable the party in consideration to obtain an appropriate protective order limiting such disclosure.
- If the receiving party is required by law or court order to disclose Confidential Information of the disclosing party, then the receiving party will, to the extent legally permitted, provide the disclosing party with advance written notification and cooperate in any effort to obtain confidential treatment of the Confidential Information.
- Both parties shall, upon the written request of the other, return to the other party any and all Confidential Information received by the one party from the other party (and all copies and reproductions thereof) within a timeframe of 15 working days. In addition, upon any such request, the receiving party shall destroy all copies of the Confidential Information prepared by the disclosing party or its representatives and provide a written certification with 15 working days to the disclosing party that all Confidential Information has been either returned or destroyed. Notwithstanding the return or destruction of the Confidential Information, both parties and its representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder for a period of 1 (one) years from the date of return or destruction of the Confidential Information.
V. INTELLECTUAL PROPERTY RIGHTS
- All Intellectual Property Rights in and title to the Software the present or future modifications / up gradations thereof, Updates and New Releases shall unconditionally remain under the exclusive ownership of Vinculum at all times.
- The Subscriber shall at no time, during the term of this Agreement or after its termination, contest the validity or ownership of the Intellectual Property of Vinculum. The Subscriber shall not use or register any trademark, design, product name or trade name which is confusingly similar to Vinculum’s trademarks, product names or trade names.
- The Subscriber agrees to promptly notify Vinculum of any claims, demands or notices arising in connection with Vinculum’s Intellectual Property. The Subscriber shall provide necessary support, execute documents and do such acts and things as may be reasonably requested by Vinculum in this regard.
VI. INDEMNIFICATION
- Indemnification by Vinculum: Vinculum will defend Subscriber and its Affiliates, from any third party claim alleging that Subscriber’s use of the Vinculum Technology as contemplated hereunder infringes such third party’s patent, copyright and/or trademark intellectual property rights (an “IP Claim”), and will indemnify and hold harmless Subscriber and its Affiliates from and against any damages and costs awarded against Subscriber or its Affiliates, or agreed in settlement by Vinculum (including reasonable attorneys’ fees) resulting from such IP Claim. Vinculum will have no liability or obligation with respect to any IP Claim if such claim is caused in whole or in part by (i) unauthorized use of the Vinculum Technology by Subscriber, its Affiliates or Users; (ii) modification of the Vinculum Technology by anyone other than Vinculum or its representatives; or (iii) the combination, operation or use of the Vinculum Technology with other data, hardware or software not provided by Vinculum. If Subscriber’s use of the Vinculum Technology results (or in Vinculum' opinion is likely to result) in an IP Claim, Vinculum may at its own option and expense (a) procure for Subscriber the right to continue using the foregoing items as set forth hereunder; (b) replace or modify them to make them non-infringing; or (c) if options (a) or (b) are not commercially reasonably as determined by Vinculum, then either Subscriber or Vinculum may terminate Subscriber’s subscription to the Service, whereupon Vinculum will refund Subscriber, on a pro-rated basis, any Fees Subscriber has previously paid Vinculum for the corresponding unused portion. The sections above state Vinculum’ entire liability and Subscriber’s exclusive remedy with respect to an IP Claim.
- Indemnification by Subscriber: Subscriber will defend Vinculum and its Affiliates from any third party claim (“Claim”), and will indemnify and hold harmless Vinculum and its Affiliates from and against any damages and costs awarded against Vinculum and its Affiliates, or agreed in settlement by Subscriber (including reasonable attorneys’ fees) resulting from such Claim, to the extent caused by: (i) Subscriber’s or its Affiliate’s unauthorized supply, disclosure, or processing of Subscriber Data, including Personal Data therein, or (ii) Subscriber’s or its Affiliate’s violation of laws applicable to Subscriber’s or its Affiliate’s business.
VII. REPRESENTATIONS AND WARRANTIES
Mutual Representations and Warranties:
- Each Party represents and warrants to the other Party that the execution, delivery and performance by it of this Agreement:
- are within its corporate powers.
- has been duly authorized by all necessary corporate action under its organizational documents.
Representations and Covenants of the Subscriber:
- All data made available or provided by either parties in connection with use of the Software or otherwise during the Term of this Agreement, is in strict compliance with all applicable data protection and privacy laws.
- Unless expressly permitted otherwise, either in this Agreement or any agreement executed between the Parties contemporaneous or in relation to this Agreement:
- neither it, nor any of its Affiliates, users, employees, contractors, agents, or sub-Subscribers, or their employees, contractors and agents, will at any time modify, reverse engineer, disassemble, or decompile the Software or any part thereof; and
- the Subscriber shall instruct its Affiliates, users, employees, contractors, agents, or sub-Subscribers, or their employees, contractors and agents permitted to use the Software of the foregoing obligations and prohibitions.
VIII. LIMITATION OF LIABILITY
- Subject to applicable law and notwithstanding anything else in this agreement, in no event will either party be liable for special, incidental, indirect or consequential damages (including without limitation downtime costs, loss of data, restoration costs, lost profits, or cost of cover) regardless of whether such claims are based on contract, tort, warranty or any other legal theory.
- Except for an action brought for gross negligence, willful misconduct, fraud, data claims or IP claims, each party’s aggregate liability and that of its affiliates, officers, employees, agents, suppliers and licensors, under this agreement will not exceed the fees received or payable to Vinculum in the twelve (12) months preceding the claim (“The General Liability Cap”).
- In the case of IP claims and data claims, Vinculum and its affiliates’ total liability to the Subscriber and its affiliates for all such claims in the aggregate (for damages or liability of any type) will not exceed two times (2x) the general liability cap (“Supercap”).
- In no event will either party (or its respective affiliates) be liable for the same event under both the general liability cap and the supercap. Similarly, the foregoing caps will not be cumulative; if a party (and/or its affiliates) has one or more claims subject to each of those caps, the maximum total liability for all claims in the aggregate will not exceed the applicable cap.
- The parties agree that this section VIII will apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will apply even if any limited remedy specified in this agreement is found to have failed of its essential purpose. The applicable monetary caps set forth in this section will apply across this agreement and any and all separate agreement(s) on an aggregated basis, without regard to whether any individual Subscriber affiliates have executed a separate as of.
IX. NON-SOLICITATION AND NON-COMPETE
- During the term of the agreement and for twenty-four (24) months thereafter, the Subscriber shall not (a) solicit or induce or attempt to solicit or induce directly / indirectly any employee of Vinculum, to terminate or otherwise cease such employment with Vinculum.
- Subscriber acknowledges and agrees that during the term of this Agreement and for a period of six (6) months following the termination of this Agreement, Subscriber shall not, without the prior written consent of Vinculum, directly or indirectly (a) undertake, engage in or carry on any business which is directly or indirectly in competition with the business of Vinculum (ref. “whereas “A” of the agreement); or (b) develop any products or services that are directly or indirectly in competition with the products or services developed by Vinculum. In case of termination, the Subscriber can opt for a different solution and/or opt for a home-grown solution tailored for its own business requirements, however it shall not market the same product.
X. MISCELLANEOUS
- Publicity: The Subscriber hereby consents to the inclusion of its name and logo in the client lists and marketing materials released or published by Vinculum as a part of its marketing and promotional efforts. From time to time, upon Vinculum’s request, the Subscriber agrees to extend reasonable cooperation and assistance (including but not limited to providing references, issuing press released, testimonials, case studies etc.) in connection with such promotional and marketing efforts of Vinculum.
- Data Export: Upon termination or expiration of this Agreement or any SOF for any reason, Subscriber’s access to the Services, Software, Mobile Apps, APIs and other Vinculums Technology will terminate. Vinculum strongly recommends that Subscriber export all Subscriber Data before Subscriber closes Subscriber’s Account.
- Governing Law: This Agreement shall be governed by and construed in accordance with the laws of India, without regard to conflict of laws. Any disputes or differences arising out of or in connection with this Agreement shall be dealt with Arbitration at New Delhi and language shall be English.
- Dispute Resolution: All disputes arising in relation to or pertaining to or under this Agreement or any part thereof shall be resolved by a sole arbitrator mutually agreed between the Parties, in accordance with the laws of India. The seat of Arbitration shall be New Delhi and the language shall be English.
- Relationship of Parties: The Subscriber shall conduct its business under this Agreement as an independent contractor and this Agreement creates no relationship of principal and agent, partner, or any similar relationship.
- Assignment: Except as otherwise expressly limited or provided for herein, the provisions of this Agreement shall inure to the benefit of, and be binding upon, the successors, permitted assigns, heirs, executors, and administrators of the Parties hereto. None of the rights, privileges, or obligations set forth in, arising under, or created by this Agreement may be assigned or transferred by the Subscriber without the prior consent in writing of Vinculum. Vinculum shall be entitled to transfer and/or assign any of its rights and obligations hereunder to any third parties without any requirement of the Subscriber’s consent and the Subscriber hereby agrees to and accepts the same.
- Entire Agreement: This Agreement constitutes the entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreement, either oral or written, between the Parties with respect to the said subject matter.
- Waiver: No delay or omission to exercise any right, power, or remedy accruing to any Party upon any breach or default under this Agreement, shall be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent, or approval of any kind or character on the part of any Party of any breach or default under this Agreement, or any waiver on the part of any Party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing.
- Amendment: Any amendments to this Agreement shall be made in writing and signed by the authorized signatories of both the Parties.
- Notices: All communications between the parties shall be in writing sent by email, registered mail, and courier or hand delivery at the address set forth below.
- Force Majeure: Vinculum will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from the occurrence of a force majeure event such as act of God, flood, earthquake, fire, explosion, act of government, war, civil commotion, insurrection, embargo, riots, lockouts, labor disputes, systemic electrical, telecommunications, network or other utility failures affecting Vinculum.
- Survival: The Parties hereby agree and acknowledge that those provisions of this Agreement which, by their very nature, should be deemed to survive its termination shall survive. Notwithstanding anything herein to the contrary, the following provisions shall survive indefinitely (unless otherwise indicated) the expiration or termination of this Agreement for any reason: Clause IV (Confidentiality), Clause V (Intellectual Property), Clause IX (Non- Solicitation And Non-Compete), Clause VI (Indemnification), Clause X.c (Governing Law), Clause X.d (Dispute Resolution) and this Clause X.l (Survival).
