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Software as a Service Agreement

This Software as a Service Agreement (hereinafter referred to as "Agreement") is entered into by and between:PMENTIRE SOLUTIONS PRIVATE LIMITED having its registered office at 5-Aryan Industrial Estate, Opposite Matruchaya Marriage Hall, Behind PVR Cinema, Chhani Vadodara – 390024, Gujarat, India, (hereinafter referred to as "Licensor"); and the Subscriber (hereinafter referred to as "Licensee").Licensor and Licensee are hereinafter also collectively referred to as the "Parties" and individually as the "Party".
  • A.Licensor is a software service company which provides Software as a Service (Saas) for professional service automation software platform enabling enterprise resource management, project management, project accounting etc.
  • B.Pursuant to discussions with the Licensee, the Licensor intends to grant the Licensee, a license to use and access the Software (as defined below) as a Hosted Service (as defined below), subject to and upon terms and conditions stipulated under this Agreement.
NOW THE PARTIES HEREBY AGREE AS UNDER:
  • 1.DEFINITIONS
  • 1.1."Account" means an account enabling the Licensee to access and use the Hosted Service.
  • 1.2."Administrator Account" means a primary Account with additional privileges in comparison to a user Account, which is created by the Licensor for the Licensee, and which in turn enables the Licensee to, among others, create user Accounts for availing Services from the Licensor.
  • 1.3."Affiliate" means a person or entity that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Party.
    The term 'control' as appearing in the aforesaid definition means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a company, person or other entity, whether through the ownership of voting shares, by contract or otherwise.
  • 1.4."Agreement" means this Agreement and any amendment made to this Agreement in future, as expressly agreed between the Parties.
  • 1.5."Authorized User" means all persons authorized by the Licensee to, who are specifically authorized and enabled by the Licensee to use and access the Hosted Service.
  • 1.6."Business Day" shall mean a working day or day when business is open.
  • 1.7."Confidential Information" means all information related to any aspect of the business of a Party which is either information that would ordinarily and without breach of any legal obligation, not be known to any person not having a relationship with such Party or any actual or potential competitors of such Party; or any proprietary information of such Party, whether of a technical nature or otherwise. By way of illustration and not limitation, "Confidential Information" includes inventions, disclosures, processes, ideas, systems, methods, formulae, devices, patent applications, trademarks, intellectual properties, trade secrets, instruments, know how, improvements, materials, products, patterns, compilations, data, statistical methods, data analysis models, programs, techniques, sequences, designs, research or development activities and plans, licenses, specifications, computer programs, source and object codes, mask works, works of authorship, costs of production, prices or other financial data, volume of sales, promotional methods, marketing and selling plans, lists of names or classes of customers or personnel, lists of suppliers, business plans, budgets, business opportunities, financial statements or information relating to skills and compensation of employees.
  • 1.8."Data Protection Laws" means all applicable statutes, laws, secondary legislation, regulations, in force from time to time pertaining to data privacy, and/or the protection of Personal Data.
  • 1.9."Documentation" means any physical or electronic documentation, specification document or user manuals, containing instructions regarding use, implementation, installation, configuration and functioning of the Hosted Service.
  • 1.10."Effective Date" means the date from which the Agreement becomes binding and enforceable on the Parties.
  • 1.11."Good Industry Practice" means the standards, practices, methods, and procedures conforming to the applicable law and the exercise of the degree of skill and care, diligence, prudence, and foresight which would reasonably and ordinarily be expected from a skilled and experienced person or body engaged within the relevant industry or business sector.
  • 1.12."Harmful Code" means any software, hardware or other technologies, devices or means designed to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner, the Services, including any Virus, bug, trojan horse, worm, backdoor or other malicious computer code and any time-bomb or drop dead-device.
  • 1.13."Hosted Environment" for the purpose of this Agreement means the third-party cloud storage environment provided by Amazon Web Services or any other service provider identified by the Licensor in this regard. For hosting and managing the Software for remote electronic access and use of the Software as a Hosted Service.
  • 1.14."Hosted Service" means the Software made available to the Licensee through the Hosted Environment for performance of the Services.
  • 1.15."Intellectual Property" means any or all inventions, ideas, designs, applications, solutions, circuits, schematics, sequences, patterns, compilations, devices, methods, databases, technology, discoveries, developments, improvements, modifications, processes, concepts, techniques, algorithms, formulae, computer programs (source and object code), trade secrets, works of authorship, mask works, customer lists, goodwill, trademarks, service marks, trade names, research or development plans, training plans, strategy, research data, clinical data, financial data, personnel data, and general intangibles of like nature, including related know-how, arising from or related to the Hosted Service, or from access to the Licensor's Confidential Information, whether or not registered or unregistered, patentable, copyrightable, or qualifies for mask work protection.
  • 1.16."Intellectual Property Rights" means all worldwide common law and statutory rights in, arising out of, or associated with Intellectual Property including but not limited to all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patent and industrial property rights; (e) other proprietary rights in Intellectual Property of every kind and nature; and (f) rights in or relating to registrations, renewals, extensions, combinations, continuations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (e).
  • 1.17."Personal Data" means any information that relates to a natural person, which, either directly or indirectly, in combination with other information available or likely to be available with a body corporate, is capable of identifying such person, as defined in the rules framed under the Information Technology Act, 2000 in India or any other applicable law, as may be amended from time to time.
  • 1.18."Services" means the provision of Software as a Hosted Service using the Hosted Environment, as specified under this Agreement.
  • 1.19."Software" means the Licensor's Professional Services Automation Software Platform. The term Software also includes Software Product Upgrades to the Software during the Subscription Term.
  • 1.20."Subscription Fee" means the fee payable by the Licensee to the Licensor for the performance of Services during the Initial Term and Renewal Period (as defined under Clause 14.1), in accordance with the terms of this Agreement. The Subscription Fee is paid for the Subscription Term as agreed between the Parties.
  • 1.21."Software Product Upgrades" means patches, revisions, or workarounds, to the Software, or updated versions of the Hosted Service which solely addresses code errors or bugs, or provides improvements in functionality, or performance of the Hosted Service, as specified in Clause 3.1.3 of this Agreement.
  • 1.22."Subscriber" means any individual or legal entity that has agreed to avail Services as per the terms of this Agreement.
  • 1.23."Subscription Term" means a period of one (1) year, or any other time period as agreed between the Parties starting from the Effective Date of this Agreement (the "Initial Term"), together with each Renewal Period.
  • 1.24."Virus" means anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
  • 1.25.In this Agreement, a reference to:
    • (a)a statutory provision includes a reference to:
      • (i)the statutory provision as modified or re-enacted or both from time to time (whether before or after the date of this Agreement); and
      • (ii)any subordinate legislation made under the statutory provision (whether before or after the date of this Agreement)
    • (b)a Clause, unless the context otherwise requires, is a reference to a clause of this Agreement.
    • (c)any reference in this Agreement to "this Agreement" includes all amendments, additions, and variations thereto agreed between the Parties hereto.
    • (d)any reference in this Agreement, to consent or approval or similar connotation, unless expressly stated otherwise, shall be in writing, and, unless otherwise required under applicable law, shall include electronic mail communications.
    • (e)unless the context otherwise requires, words importing the singular shall include the plural and vice versa; words importing a specific gender shall include the other genders (male, female or neuter), and pronouns shall have a similarly extended meaning.
    • (f)the expressions "hereof", "herein" and similar expressions shall be construed as references to this Agreement as a whole and not limited to the particular section or provision in which the relevant expression appears.
    • (g)the words "directly or indirectly" mean directly or indirectly through one or more intermediary Persons or through contractual or other legal arrangements, and "direct or indirect" have the correlative meanings.
  • 1.26.The ejusdem generis (of the same kind) rule will not apply to the interpretation of this Agreement. Accordingly, include and including will be read without limitation.
  • 1.27.When any number of days is prescribed in any document, it shall be reckoned exclusive of the first and inclusive of the last day unless the last day does not fall on a Business Day, in which case the last day shall be the next succeeding day which is a Business Day.
  • 1.28.The headings in this Agreement are for convenience only and shall not affect the interpretation of this Agreement.
  • 2.LICENCE TO USE AND ACCESS THE HOSTED SERVICE
  • 2.1.The Licensor hereby grants to the Licensee a limited, non-exclusive, non-transferable, non-assignable, non-sub-licensable, restricted, revocable, license to use and access the Hosted Service, solely by the Authorized Users for the Licensee's business purposes, during the Subscription Term, strictly in accordance with the Documentation and in accordance with this Agreement. Except for the rights granted in this Clause, no other licenses, express or implied are granted.
  • 2.2.The Licensor confirms that it has all the rights in relation to the Software that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
  • 3.PERFORMANCE OF SERVICES
  • 3.1.The Licensor shall provide the Services as per terms specified hereinbelow:
    • 3.1.1.Hosted Service: In consideration of payment of the Subscription Fee, and subject to the exceptions provided herein, the Licensor shall make commercially reasonable efforts to make the Hosted Service available to the Licensee in an uninterrupted manner during the Subscription Term.
    • 3.1.2.Users:The Licensor shall create an Administrator Account for the Licensee and shall provide access to the Administrator Account to designated personnel of the Licensee, on or promptly following the Effective Date. The said designated personnel of the Licensee shall subsequently create user Accounts for the Licensee based on the number of licenses granted to the Licensee to use and access the Hosted Service, and as agreed between the Parties.
    • 3.1.3.Software Product Upgrades: During the Subscription Term, the Licensor shall:
      • 3.1.3.1at own discretion, provide Software Product Upgrades to address any material defects, errors or malfunctions in the Software, on a timely basis, given the nature and scope of the defect.
      • 3.1.3.2make available to the Licensee on a timely basis, any revisions or updates to the Documentation, due to the Software Product Upgrades.
  • 3.2.Exceptions: Notwithstanding the above, the Licensor shall not be liable for non-availability of Hosted Services owing to: scheduled outages of the Hosted Service; scheduled outages of the Hosted Environment; disruption of services by the Hosted Environment service provider, due to no fault of the Licensor; the Licensee's misuse of the Hosted Service; network outages at the Licensee's premises; or a Force Majeure event as defined in Clause 13 of this Agreement. The Licensor shall notify the Licensee at least twenty-four (24) hours in advance regarding:
    • iall scheduled outages of the Hosted Service;
    • iischeduled outages of the Hosted Environment, if known to the Licensor; and
    • iiiall scheduled Software Product Upgrades that are likely to affect the availability of the Hosted Service or are likely to have a material negative impact on use and access of the Hosted Service.
    • Subject to the terms and conditions of this Agreement, the Licensor shall determine at its sole discretion the manner of, and means for, performance of Services.
  • 4.OBLIGATIONS OF THE LICENSEE
  • 4.1.The Licensee shall use and access the Services solely as expressly authorized under this Agreement.
  • 4.2.The Licensee agrees to use commercial reasonable efforts to prevent unauthorized access to or use of the Hosted Service and agrees to notify the Licensor promptly of any such unauthorized access or use. The Licensee shall use the Hosted Service only in accordance with this Agreement, the Documentation and applicable laws and regulations. It is the Licensee's responsibility to comply with the terms of service of other applications (if any) which the Licensee may use in conjunction with the Hosted Service.
  • 4.3.The Licensee shall not use or access the Hosted Service in any manner that causes or may cause, damage to the Hosted Service or impairment of the availability or accessibility of the Hosted Service.
  • 4.4.The Licensee shall not mirror or make copies or derivative works of the Software and the Hosted Service, and shall not cache, adapt, merge, modify, make error free, customize, translate, or otherwise alter the Software or the Hosted Service in any manner, or decompile, reverse-compile, reverse engineer, disassemble, or otherwise reduce the Software or the Hosted Service to a human perceivable form, or derive the source code or other trade secrets or other Confidential Information embodied in the Software or the Hosted Service or any part thereof.
  • 4.5.The Licensee shall not sell, rent, lease, otherwise commercially exploit, or make the Software or the Hosted Service available for use over a network.
  • 4.6.The Licensee shall not alter or remove any copyright notices or proprietary legends in the Hosted Service.
  • 4.7.The Licensee shall under no circumstances use or access the Hosted Service or otherwise allow the Hosted Service to be used or accessed for the purpose of, or otherwise related to, developing, enhancing, or marketing any software or product that shall in any way compete or potentially compete with the Hosted Service.
  • 4.8.The Licensee shall establish proper backup procedures necessary to safeguard or replace their critical organizational data or their customer data, in the event of loss or deletion of such data due to any cause, during performance of Services by the Licensor.
  • 5.INTELLECTUAL PROPERTY RIGHTS
  • 5.1.The Licensee accepts and agrees that the Licensor or the Licensor's licensors, owns all rights, title, and interest, in all Intellectual Property Rights, and any modifications or any derivative works related thereto. No title or interest to, or ownership of Software, the Hosted Service, or to any Intellectual Property Rights therein, is transferred to the Licensee.
  • 5.2.The Parties at all times, shall respectively own all rights, title and interest in and to all their respective pre-existing intellectual property rights. The rights granted by the Licensor to the Licensee and Authorised Users to use and access the Hosted Service, are subjected to limited rights as expressly provided under this Agreement.
  • 5.3.The Hosted Service may include software owned by third parties, and without limiting the general applicability of other provisions of this Agreement, the Licensee agrees that the right, title and interest to any third-party software incorporated in the Hosted Service remains with such third-party.
  • 5.4.Subject to the terms of this Agreement, the Licensor agrees to indemnify the Licensee from and against any costs, losses and damages suffered or incurred by the Licensee as a result of any claim of infringement of any third-party intellectual property rights related to use of the Hosted Service or Documentation by the Licensee ("IPR Claim"). In the event of an IPR Claim, the Licensor may, at its option: (a) modify the applicable Hosted Service so that it becomes non-infringing but functionally equivalent; (b) replace the Hosted Service with items that are non-infringing but functionally equivalent; or (c) obtain for the Licensee the right to use such Hosted Service upon commercially reasonable terms.
  • 6.CONFIDENTIALITY
  • 6.1.For the purposes of this Clause, the Party disclosing the Confidential Information shall be called the "Discloser" and the Party receiving the Confidential Information shall be called the "Recipient".
  • 6.2.Each Party or its Affiliate may, at its sole discretion, disclose Confidential Information to the other Party or its Affiliates in connection with the Services. Recipient shall maintain all Confidential Information of Discloser in trust and strict confidence for the sole benefit of Discloser and shall not disclose such Confidential Information to any third party without Discloser's prior written consent. Recipient may disclose Discloser's Confidential Information only to Recipient's Affiliates, employees and agents who have a need to know such Confidential Information in order to perform the Services, and who have each signed a written agreement which obligates such Affiliate, employee, or agent to refrain from any unauthorized use and disclosure of the Confidential information and materials of (i) Recipient and (ii) Recipient's Affiliates, and (iii) any third parties who have disclosed Confidential information or materials to Recipient. Recipient shall not use any of Discloser's Confidential Information for Recipient's own benefit (or the benefit of any third party) or for any purpose other than in connection with the performance of the Services. Recipient shall take all reasonable measures but, in any event, no less than the same degree of care that it uses to protect its own Confidential information of similar nature and importance, to protect the confidentiality, and avoid the unauthorized use, disclosure, publication, or dissemination, of Discloser's Confidential Information. Discloser's Confidential Information shall not be reproduced in any form except to the extent reasonably required to perform the Services.
  • 6.3.The Parties shall treat the terms and conditions of this Agreement as Confidential Information and shall make no reference to the terms and conditions of this Agreement or to activities pertaining thereto without the prior written consent of the other Party; however, each Party may disclose the fact of the existence of this Agreement, and that either Party may disclose the terms and conditions of this Agreement as required by any court or other governmental body; as otherwise required by law; to legal counsel of the Parties; in confidence, to accountants, banks, proposed investors, and financing sources and their advisors; in confidence in connection with the enforcement of this Agreement or rights under this Agreement; or in confidence, in connection with a merger or acquisition or proposed merger or acquisition, or the like.
  • 6.4.For purposes of this Agreement, Confidential Information shall not include information that: (i) was in the public domain at the time of disclosure or becomes part of the public domain without breach of this Agreement either Parties; or (ii) was known to or contained in the records of the Recipient from a source other than Discloser at the time of disclosure by Discloser to the Recipient; or (iii) becomes known to the Recipient from a source other than Discloser without such source breaching its confidentiality obligations to Discloser. If the Recipient is required to disclose Confidential Information pursuant to a court order or as otherwise compelled by law, Recipient shall not be liable for such disclosure, provided the Recipient gives Discloser prompt written notice of such disclosure and an opportunity to seek to prevent or limit such disclosure, and the Recipient takes reasonable steps to prevent further disclosure (e.g., by seeking a protective order).
  • 7.DATA PRIVACY AND DATA SECURITY
  • 7.1.Each Party ensures that it shall not provide or give the other Party access to any Personal Data (including any Personal Data which will be protected in accordance with any applicable law), except Personal Data that is necessary to be provided to the other Party for the execution and performance of Services in accordance with this Agreement.
  • 7.2.To the extent the Licensor collects, or processes Personal Data collected from the Licensee, for performance of Services, the Licensee shall do so in accordance with its privacy policy and applicable Data Protection Laws. In such cases, the Licensor shall use or process such Personal Data collected from the Licensee solely for the purposes of performance of Services. The Licensee represents and warrants that it has the right to disclose such Personal Data to the Licensor and has obtained necessary consents and approvals (wherever required) necessary for the Licensor to use or process such data as set forth herein. Each Party agrees to indemnify the other for loss or expense incurred by such Party due to breach of the other Party's data protection obligations set out in this clause. In case the Parties agree that the Licensor shall be required to collect and process Personal Data, the Parties agree to co-operate with each other and execute such other documents and agreements as may be required to ensure compliance with applicable law.
  • 7.3.Compliance with Applicable Law: Each Party to the best of their knowledge agrees to abide by all applicable laws and regulations in connection with its obligations under this Agreement, including, all applicable privacy and data protection laws, rules and regulations.
  • 7.4.Privacy Policies: Licensee shall be solely responsible for establishing its own policies and procedures for ensuring compliance with all applicable laws to the best of their knowledge and regulations relating to the collection and/or processing of Personal Data from the Authorized Users who provide such information for use in connection with the Services. Licensor shall comply with all applicable laws in relation to the processing of Personal Data pursuant to the Services provided hereunder.
  • 7.5.Unauthorized Access by Third Parties: Each Party agrees to promptly notify the other Party if any unauthorized access of any Authorized User's Personal Data or other unauthorized usage of the Services is known or reasonably suspected to have occurred and will cooperate with that other Party's reasonable investigation of any such unauthorized activity. Licensee will be responsible to ensure that all computer systems used to access or use the Services are protected using appropriate firewalls, encryption, and/or other appropriate security measures. Licensee is responsible for (a) the security of all its computer systems and (b) safeguarding any passwords or other validation information assigned to Licensee and Authorised Users. Licensor is not responsible for the actions of any individual who, with or without Licensee's knowledge or permission, gains access to the Services as a result of Licensee's failure to implement and enforce the security measures for which Licensee is responsible. The Licensor shall take commercially reasonable efforts to (i) protect and preserve the integrity; and (ii) prevent the unauthorised access, corruption, or loss; of the Licensee's data held or processed by the Licensor for provision of Services.
  • 7.6.Unauthorized Access by Licensee: Licensee will not knowingly access, or attempt to access, any accounts or data while using the Services, other than those explicitly provided by the Licensor to the Licensee as per the terms of this Agreement.
  • 7.7.Security Measures and Limitations on Use: Except as expressly permitted by this Agreement, Licensee shall not, and shall not allow any Authorized User or any other third party to:
    • i.Upload to the Hosted Service anything unlawful, misleading, malicious, or discriminatory;
    • ii.work around any technical limitations in the Hosted Service, use any tool to enable features or functionality that are otherwise disabled in the Hosted Service, or decompile, disassemble or otherwise reverse-engineer the Hosted Service, or create any customizations, enhancements, or derivative works of the Hosted Service.
    • iii.perform or attempt to perform any actions that would interfere with the proper working of the Hosted Service, or prevent use of the Hosted Service by the Licensor's authorised users other than the Licensee;
    • iv.upload or transmit to the Hosted Service any Harmful Code;
    • v.make the Hosted Service available to, or use the Hosted Service for the benefit of, anyone other than Licensee or the Authorized Users;
    • vi.sell, resell, license, sublicense (unless otherwise authorized), distribute, rent, lease or otherwise market to third parties the Hosted Service, or include the Hosted Service in a service bureau or outsourcing offering;
    • vii.permit direct or indirect access to, or use of, the Hosted Service in contravention of the terms of this Agreement;
    • viii.copy the Hosted Service or any part, feature, function, or user interface thereof;
    • ix.frame or mirror any part of the Hosted Service other than framing on Licensee's user interface for the purpose of permitting use of the Services by Authorized Users;
    • x.access the Hosted Service or any other Confidential Information or Intellectual Property of the Licensor in order to build a competitive product or service; or
    • xi.observe, study, or test the functioning of the Hosted Service in order to determine the ideas and principles which underline any elements of any of the above, including while performing such acts necessary for the functions for which the same were made available to Licensee or Authorised Users.
  • 8.SUBSCRIPTION FEE
  • 8.1.In consideration for the grant of licence to access and use the Hosted Service during the Initial Term and each Renewal Term as the case may be, the Licensee shall pay a Subscription Fee based on the number of licenses granted to the Licensee to access and use the Hosted Service and on such time intervals, as agreed between the Parties.
  • 8.2.All fees, charges, and expenses specified in this Agreement are exclusive of value added tax and/or any other form of tax. All applicable taxes, levies, and duties whether present or as may be introduced in the future shall be borne solely by the Licensee. Unless specified otherwise, all valid, undisputed invoices for payment shall be due and payable by the Licensee within thirty (30) days of the date of the receipt of the invoice by the Licensee without any withholding or deduction. If the Licensee is required by law to make any deduction or withholding from any payment made hereunder to the Licensor, then, notwithstanding anything to the contrary contained herein, the gross amount payable by the Licensee to the Licensee shall be increased so that, after any such deduction or withholding for taxes, the net amount received by the Licensor will not be less than the amount the Licensor would have received had no such deduction or withholding been required. Unless, otherwise agreed between the Parties.
  • 9.REPRESENTATION & WARRANTIES
  • 9.1.Each Party represents and warrants to the other Party that:
    • i.it has the requisite power and has taken all actions necessary to execute this Agreement; and
    • ii.this Agreement when signed by each party, constitutes legal, valid, and binding obligations of that party in accordance with its terms.
  • 9.2.The Licensor warrants that:
    • a)the Services will be performed:
      • i.to a professional standard,
      • ii.using reasonable skill and care,
      • iii.using Good Industry Practice,
      • iv.using the Licensor's own policies, processes, and internal quality control measures as long as they do not conflict with this Agreement, and
      • v.in compliance with applicable laws.
    • b)it shall perform the Services in a professional and workmanlike manner, and shall employ personnel with the requisite skills, experience, and qualifications to perform the Services.
  • 9.3.In case of any claim by Licensor for breach of the foregoing warranty by the Licensee, the Licensee shall be notified in writing within five (5) calendar days of the occurrence of such breach. The Licensee shall further adequately compensate the Licensor for the loss and/or damages arising out of such breach. Licensor shall evaluate the extent of damages incurred and communicate in writing to the Licensee of the amount to be compensated. Notwithstanding anything contained in this Agreement, Licensor reserves its right to initiate appropriate action against the Licensee as it deems fit.
  • 10.LIMITATION OF LIABILITY
  • 10.1.NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY CLAIMS FOR CONSEQUENTIAL DAMAGES, OR INDIRECT DAMAGES EITHER UNDER OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER BASED ON BREACH OF RESCISSION OF CONTRACT, TORT, BREACH OF TRUST, OR BREACH OF FIDUCIARY DUTY EVEN IF SUCH OTHER PARTY HAS BEEN ADVISED OF THE LIKELIHOOD OF THE OCCURRENCE OF SUCH DAMAGES. THE MAXIMUM LIABILITY OF THE LICENSOR FOR ALL CLAIMS RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE SUBSCRIPTION FEE PAID BY THE LICENSEE TO THE LICENSOR FOR THE SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE DATE OF SUCH CLAIM.
  • 10.2.It is agreed between the Parties that for the purposes of Section 10.1, where the Subscription Fee is paid by the Licensee on a cumulative basis for a period of more than twelve (12) months, the maximum liability of the Licensor for all claims relating to this Agreement shall not exceed the Subscription Fee for the twelve (12) months preceding the date of such claim, computed on a pro-rata basis.
  • 11.INDEMNIFICATION
  • 11.1.Subject to the terms of this Agreement, each Party shall indemnify and hold harmless the other Party from and against all actions, suits, proceedings, loss, damages, cost (including reasonable attorney's fees), charges, expenses, and other liabilities, to the extent that it is based upon a claim that arises out of the gross negligence or wilful misconduct of the indemnifying party.
  • 11.2.Notwithstanding anything contained Clause 5.4 , in claiming any indemnification hereunder, the Party claiming indemnification (the "Claimant") shall: (1) provide the other Party (the "Indemnifying Party") with prompt written notice of any claim that the Claimant believes calls for indemnification under this Agreement; (2) grant the Indemnifying Party sole control of the defense and all related settlement negotiations, provided that no settlement will be entered into which requires any payment or expenditure by the Claimant of any amount without the Claimant's consent, and (3) provide the Indemnifying Party with the assistance, information and authority necessary to perform the above.
  • 12.RELATIONSHIP BETWEEN THE PARTIES
  • The Parties are independent contractors. This Agreement shall not establish any relationship of partnership, joint venture, employment, franchise, or agency between Licensor and Licensee. The Licensor and Licensee shall be individually responsible for paying its own personnel or employees, including employment related taxes and insurance
  • 13.FORCE MAJEURE
  • Neither Party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of fire, natural disaster, accident, pandemic, act of government, sabotage of material or supplies or any other cause beyond the control of such Party and without the fault of negligence of such Party ("Force Majeure"), provided that such Party gives the other Party written notice thereof promptly and, in any event, within fifteen (15) calendar days of discovery thereof. In the event of such a Force Majeure, the time for performance or cure shall be extended for a period equal to the duration of the Force Majeure, but not in excess of 2 months or such period as may be mutually agreed in writing. During this period, the Party so affected shall use its best efforts to avoid or remove such cause and to restore performance to normal levels as quickly as possible following the removal of such cause. Force Majeure shall not apply in relation to failure to meet any information security standards that the concerned Party is required to comply with under this Agreement, under applicable laws or through any other means.
  • 14.TERM AND TERMINATION
  • 14.1.Term: This Agreement shall remain in effect during the Initial Term, and thereafter shall be automatically renewed for successive periods of twelve (12) months or any other time period as agreed between the Parties (each a "Renewal Period"), unless terminated in accordance with the provisions of Clause 14.2.
  • 14.2.Termination:
    • 14.2.1.Either Party may terminate this Agreement if the other Party fails to fulfill its obligations under this Agreement or materially breaches the terms and conditions of this Agreement and fails to remedy such failure or breach within sixty (60) days of receipt of notice from the Party aggrieved due to such failure or breach.
    • 14.2.2.Either Party will have the right to terminate this Agreement immediately upon notice to the other Party in the following circumstances:
      • i.if the other Party becomes insolvent or is unable to pay its debts in the ordinary course of its business; or
      • ii.if a voluntary or involuntary petition under applicable bankruptcy laws is filed by or against the other Party; or
      • iii.if a receiver is appointed for the business affairs of the other Party or the other Party makes an assignment for the benefit of creditors; or
      • iv.if the other Party liquidates or ceases doing business as a going concern.
    • 14.2.3.Either Party may terminate this Agreement without cause by providing a notice in writing to the other Party at least ninety (90) days before the intended date of termination of the Agreement.
    • 14.2.4.The Licensee may notify the Licensor of termination, in writing, at least thirty (30) days before the end of the Initial Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period.
  • 14.3.Consequences of termination:
    • 14.3.1.Upon termination of this Agreement for any reason by either Party, the license granted under Clause 2 of this Agreement, and the performance of Services by the Licensor under Clause 3 of this Agreement, shall be terminated with immediate effect.
    • 14.3.2.Upon termination of this Agreement:
      • i.The Licensee shall destroy and delete, all material related to the Hosted Service and the Documentation, from its systems, facilities, and premises within fourteen (14) calendar days (or other timeline as agreed between the Parties) of such termination. The Licensor shall have the right to inspect and audit the Licensee's systems, premises, and facilities, to verify the Licensor's compliance to its obligations under this clause provided it uses its reasonable endeavours to ensure that audits carried out under this clause 14.3.2 do not materially disrupt the Licensee's normal business operations without reason.
      • ii.The Licensee shall make no further use of any equipment, property, documentation (and all copies of them) belonging to the Licensor.
    • 14.3.3.Termination of this Agreement shall not affect or prejudice any rights that may already have accrued to either of the Parties hereinunder, including the payments due to the Licensor from the Licensee.
    • 14.3.4.Upon termination of this Agreement, the Licensee shall not be entitled for any refund as the minimum subscription period is one year.
  • 15.AUDITS
  • 15.1.The Licensee shall provide to the Licensor (and internal and external auditors and other representatives that the Licensor may designate from time to time) access at reasonable hours and with sufficient prior notice to the Licensee, to conduct appropriate reviews and inspections of the activities and records of the Licensee and to take copies of records and documents transferred, shared and referred under this Agreement and interview members of the Licensee personnel, (including Authorised Users) only to the extent relevant to the Licensee's access and use of the Hosted Service and the Licensee's obligations under this Agreement.
  • 15.2.The Licensee shall bear its own cost in relation to any reasonable number of audits carried out by Licensor. If, on such examination, Licensor determines that any Subscription Fee, prices, costs, or expenses exceed the amounts properly chargeable to, or recoverable from Licensor, the Licensee shall promptly refund to Licensor the amount over-charged.
  • 16.SURVIVAL
  • The following provisions shall survive the termination of this Agreement:
    • i.Clause 5 (Intellectual Property Rights)
    • ii.Clause 6 (Confidentiality)
    • iii.Clause 8 (Subscription Fee)
    • iv.Clause 9 (Representation and Warranties)
    • v.Clause 10 (Limitation of Liability)
    • vi.Clause 14.3 (Consequences of Termination)
    • vii.Clause 17 (Governing Law and Jurisdiction)
  • 17.GOVERNING LAW AND JURISDICTION
  • 17.1.This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of Republic of India.
  • 17.2.Each Party agrees to engage the other in discussions to reach a mutually acceptable resolution in case of any dispute arising out of, or in connection with the Agreement.
  • 17.3.In the event the defaulting Party fails to remedy a breach arising under this Agreement or fails to amicably settle within sixty (60) days of receipt of notice of dispute from the aggrieved Party, the Parties irrevocably agree that the courts of Vadodara, Gujarat, India shall have exclusive jurisdiction to settle any dispute or claim (including any non-contractual dispute or claim) that arises out of or in connection with this Agreement.
  • 17.4.The Parties agree that unless this Agreement has already been terminated by the date of the notice of dispute, the Licensor shall, in every case, continue to perform the Services regardless of the nature of the dispute, and the Licensee shall continue to make payments of the Subscription Fee.
  • 17.5.The Licensee acknowledges and agrees that due to the unique nature of the Licensor's Confidential Information and the Intellectual Property Rights, there may be no adequate remedy at law for any breach of the Licensee's obligations hereunder, and therefore, that upon any such breach or any threat thereof, notwithstanding anything stated in this Agreement, the Licensor will be entitled to appropriate equitable and injunctive relief from a court of competent jurisdiction without the necessity of proving actual loss, in addition to whatever remedies the Licensor may have in law or equity.
  • 18.NOTICES
  • 18.1.All notices in respect of this Agreement shall be in writing, and delivered or sent via registered post or commercial courier or electronic mail to the Licensor to the address mentioned below:
  • PMEntire Solutions Private Limited
    5-Aryan Industrial Estate,
    Opposite Matruchaya Marriage Hall,
    Behind PVR Cinema,
    Chhani Vadodara - 390024, Gujarat, India
    Email: info@pmentire.com
  • 19.MISCELLAENOUS
  • 19.1.This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous communications whether oral or written. This Agreement shall not be modified, amended, or otherwise waived, in whole or in part, except by written agreement signed by both Parties to this Agreement.
  • 19.2.If any term, clause or provision of this Agreement is judged by a court of competent jurisdiction for any reason whatsoever to be invalid, illegal or unenforceable, such term, clause or provision shall be deemed severable from the remaining provisions and shall in no way affect or impair the validity or enforceability of the remaining terms, clauses or provisions and such invalid term, clause or provision shall be deemed to have been deleted from this Agreement.
  • 19.3.No inaction, act, omission, or delay on behalf of either Party in requiring a due and punctual fulfilment by the other Party of the obligations of such other Party shall be deemed to constitute a waiver of the obligations of such other Party or a waiver of any remedy it might have hereunder unless specifically waived by either Parties in writing.

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