This Master Subscription Agreement (the “Agreement”) is entered into between IMMIDART TECHNOLOGIES LLP, a limited liability partnership incorporated under the laws of India (“Immidart”) having its Registered office at Smartworks, 4th Floor,Tower-B, DSR Techno Cube,Varthur Rd, Thubarahalli , Outer Ring Road, Doddanekkundi, Bangalore-560037 and (“Customer”) a company incorporated under the laws of India, having its principal place of business at and is effective as of the last date set out in the signature block of this Agreement (the “Effective Date”). This Agreement includes any and all attachments, amendments, Ordering Documents (as defined below) existing and attached hereto as of the Effective Date as well as any which may be incorporated herein thereafter
1.1 “Affiliate” means any corporate entity (i) in which a party owns a Controlling Interest, or (ii) a Controlling Interest of which entity is owned by an entity which owns a Controlling Interest in such party. “Controlling Interest” means that the controlling entity owns more than 50% of the equity of the controlled entity.
1.2 “Customer Data” means any and all information provided, entered or uploaded into the Software by an employee or approved third party of Customer or an Affiliate.
1.3 “Documentation” means the user manuals and/or technical requirements documents that are generally provided by Immidart to customers in connection with the Software as updated from time to time.
1.4 “Ordering Document” means the ordering document attached to this Agreement and any additional ordering document signed by both parties on or after the Effective Date that reference this Agreement.
1.5 “Malicious Code” means viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents or programs.
1.6 “Software” means Immidart’s commercially available software applications ordered by Customer via one or more Ordering Document(s).
1.7 “Subscription Term” means the term as specified in the applicable Ordering Document.
1.8 “Territory” shall mean the region where the Software shall be accessed by the Customer as specifically set-forth in the applicable Ordering Document.
1.9 “Users” mean the individuals authorized by Customer to use the Software, for whom subscriptions to the Software has been purchased by Customer, and who have been provided user identifications and passwords by Customer.
2.1 Provision of Software. Immidart grants to Customer a limited, non-assignable (except as permitted under Clause 12.8), non-transferable, non-exclusive right to access and use the Software and Documentation purchased under the applicable Ordering Document during the Subscription Term to support Customer’s internal business needs in the Territory. The Software shall be made available to Customer as a service. Immidart will host and retain physical control over the Software and make such computer programs and code available only through the Internet for access, use and operation by Customer through a web-browser. Unless otherwise agreed to by Immidart in writing, no provision under this Agreement shall obligate Immidart to deliver or otherwise make available any copies of computer programs or code from the Software to Customer, whether in object code or source code form.
2.2 Protection of Customer Data. Immidart shall use commercially reasonable efforts to maintain the security, confidentiality and integrity of Customer Data. Those safeguards will include, but not limited to, measures for preventing access, use, modification or disclosure of Customer Data by Immidart personnel except (i) to prevent or address service or technical problems, (ii) as compelled by law in accordance with Clause 7.3 (Compelled Disclosure) below, or (iii) as Customer expressly permits in writing
3.1 Subscriptions. Unless otherwise provided in the applicable Ordering Document, Customer shall purchase the Software as subscriptions. Customer may add subscriptions during a Subscription Term in the increments and at the frequency and pricing (in the case of additional subscriptions) set forth in the applicable Ordering Document.
3.2 Usage Limits.Subscriptions are subject to usage limits including, for example, the quantities specified in the Ordering Document. Unless otherwise specified, (i) subscriptions are for designated Users and cannot be shared or used by more than one User; and (ii) subscriptions may only be reassigned to new Users replacing former Users who no longer use the Software. Customer shall keep a secure password for use of the Software and each User shall keep the password confidential. Customer agrees to submit to reasonable audit of its compliance with any usage limits upon reasonable notice by Immidart not more than once per calendar year. In the event of an increase in the use of subscriptions in excess of this scope set out in the Ordering document, Customer acknowledges and agrees that additional subscription fees, to be mutually agreed with Immidart, shall be payable. In such circumstances, Customer and Immidart shall execute a separate written Ordering Document under the Agreement that will set forth the additional subscription fees payable
3.3 Customer’s Restrictions Except as expressly authorized in this Agreement, Ordering Document or a statement of work, and to the extent permitted by law, Customer shall not: (i) make the Software available to, or use Software for the benefit of anyone other than the Designated Users, unless expressly stated otherwise in an Ordering Document; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, commercially exploit or otherwise make Software available to any third-party other than Users as permitted under this Agreement; (iii) modify, copy, duplicate, reverse engineer, disable or create any derivative work based on Software; (iv) send or store Malicious Code; (v) send unsolicited commercial messages in violation of applicable law; (vi) copy any features, functions, integrations, interfaces or graphics of Software; (vii) attempt to gain unauthorized access to Software or its related systems or networks (viii) interfere with or disrupt the integrity or performance of Software or the data contained therein; (ix) send or store infringing, obscene, threatening, defamatory, obscene, racially or ethically offensive, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights (x) conduct security, integrity, penetration, vulnerability or similar testing on the Software; (xi) use any software tool designed to automatically emulate the actions of a human user (such tools are commonly referred to as robots) in conjunction with the Software, or (xii) attempt to access the data of another Immidart customer (whether or not for test purposes).Immidart reserves the right, without liability to the Customer, to disable the Customer’s access to any material or immediately suspend access to Software if there is a breach of the provisions of this Clause or in Immidart’s reasonable judgment threatens the security, integrity or availability of Software.
3.4 Customer Data Customer is solely responsible for (i) the accuracy, quality, integrity, legality, reliability and appropriateness of Customer Data; and (ii) providing all necessary notices and obtaining all necessary consent required for the collection, use, processing and disclosure of Customer Data. Customer acknowledges that Immidart does not exercise any control whatsoever over the content of the Customer Data, and Immidart will have no obligation to review Customer Data for accuracy, quality, integrity, legality, reliability, appropriateness or for any other reason.
4.1 Immidart shall host and maintain the Software and all Customer Data, and provide customer support, data back-up, and disaster recovery services in accordance with Immidart’s then-current policies and practices (“Support Services”). Upon request by Customer a copy of the policies and practices for Support Services shall be made available to Customer. Immidart reserves the right to make changes to the policies, procedures and practices regarding Support Services and to make changes to its hosting and technical infrastructure, provided such changes do not materially degrade the overall level of the Support Services provided to Immidart customers.
5.1 Fees. Customer shall pay all fees specified in the applicable Ordering Document. Except as otherwise provided in the applicable Ordering Document, (i) all fees are quoted and payable in INR; (ii) fees are based on subscriptions purchased and not actual usage, (iii) payment obligations are non-cancellable and fees paid are non-refundable; and (iv) quantities purchased cannot be decreased during the relevant Subscription Term.
5.2 Invoicing and Payment; Disputes. The Subscription Fees will be invoiced quarterly in advance. Except as otherwise provided in the applicable Ordering Document, Customer shall pay the fees within fifteen (15) days of the invoice date. If Customer disputes any part of an invoice, Customer must: (i) notify Immidart in writing of such dispute within fifteen (15) days from the date of receipt of the disputed invoice; (ii) as part of the written notice, describe the nature of the dispute in reasonable detail to allow Immidart to analyze the dispute; and (iii) pay the undisputed amount when due.
5.3 Overdue Payments. Any invoiced amount (except an invoiced amount subject to a good faith dispute not received from Customer by the due date may, at Immidart's discretion, accrue late charges at the rate of 1.5% per month of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
5.4 Suspension of Service for Non-Payment. If Customer's account is more than thirty (30) days past due (except with respect to fees subject to a good faith dispute), in addition to any other rights or remedies Immidart may have under this Agreement or by law, Immidart may, without liability to the Customer, to suspend Customer’s access to the Software upon ten (10) days prior written notice, until such amounts are paid in full.
5.5 Taxes. All amounts payable pursuant to an Ordering Document are exclusive of any sales or use taxes, value added tax (VAT), goods and services tax (GST), or any and all similar taxes or legally imposed fees, duties or contributions based on such amounts payable, all of which shall be the sole responsibility of Customer whether due now or subsequently imposed by any jurisdiction. Customer is not responsible for any taxes based upon the net income of Immidart or its employees unless agreed to elsewhere in this Agreement or an Ordering Document. If Customer is required by any applicable law to deduct or withhold amounts otherwise payable to Immidart hereunder, Customer will pay the required amount to the relevant governmental authority and provide Immidart with an official receipt or certified copy or other documentation acceptable to Immidart evidencing the payment and pay to Immidart, and in addition to the payment to which Immidart is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by Immidart free and clear of all taxes equals the full amount Immidart would have received had no such deduction or withholding been required.
6.1 Reservation of Rights. Customer shall retain all right, title and interest to all Customer Data. Subject to the limited rights expressly granted hereunder, Immidart shall retain all right, title and interest in the Software, the Documentation, modifications and/or enhancements to the Software including any Intellectual Property Rights relating thereto, regardless of the source of inspiration for any such enhancement or modification and regardless of whether Customer has provided input regarding such modifications and/or enhancements.
6.2 License to Host Customer Data. Immidart, its Affiliates and applicable contractors will have a worldwide, limited-term license to host, copy, transmit and display Customer Data, and any program code created for Customer using the Software or for use by Customer with the Software, as reasonably necessary for Immidart to provide the services in accordance with this Agreement. Subject to the limited licenses granted herein, Immidart acquires no right, title or interest from Customer or its licensors under this Agreement in or to any of Customer Data or such program code.
6.3 Aggregated Data. Immidart may access and use, and shall retain all right, title and interest in transactional and performance data related to use of the Software, which may include aggregated and anonymized data based upon Customer Data, so long as such data does not reveal the identity or traits of any particular individual person or of Customer (collectively, “Aggregated Data”). Immidart may use Aggregated Data for such uses as service evaluations, use and equipment projections, product development, promotions, and marketing. Immidart may share Aggregated Data in aggregate or summary form with third parties, as long as doing so does not disclose Customer’s Confidential Information or Customer Data, or disclose or otherwise identify Customer, any User or any customer of Customer.
6.4 Customer Input. Immidart will have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual, license to use or incorporate into the Software any suggestions, enhancements, requests, recommendations or other feedback provided by Customer or its Users relating to the operation of the Software (collectively, “Customer Input”). Immidart will have no obligation to implement Customer Input, and Customer will have no obligation to provide Customer Input.
7.1 The Agreement shall be extended to various Affiliates and Group Companies of Customer and Immidart agrees to provide services to all Affiliates and group companies under the same broad terms and conditions of the Agreement.
8.1 Confidential Information and Ownership.
8.2 Confidentiality Obligations. Subject to the terms of this Agreement, each party shall (i) hold in strict confidence all Confidential Information of the other party, (ii) use the Confidential Information solely to perform its obligations or exercise its rights under this Agreement, and (iii) not transfer, display, convey or otherwise disclose or make available all or any part of such Confidential Information to any person or entity other than to its directors, officers, employees, consultants, subcontractors, auditors, and legal and financial advisors of such party (collectively, “Representatives”) who need to know such Confidential Information and who are under confidentiality obligations at least as restrictive as the terms of this Agreement. Each party is responsible for any breaches of this Agreement by its Representatives. Except as otherwise expressly provided in this Agreement, neither party shall use or disclose the Confidential Information of the other party without the prior written consent of the disclosing party. Each party shall use the same degree of care to protect the disclosing party’s Confidential Information as it uses to protect its own Confidential Information, but in no circumstances less than reasonable care.
8.3 Compelled Disclosure. The receiving party may disclose the Confidential Information of the other party in response to a valid court order, subpoena, civil investigative demand, law, rule, regulation (including, without limitation, any securities exchange regulation), or other governmental action, provided that (i) to the extent permitted by applicable law or regulation, the disclosing party is notified in writing prior to disclosure of the information, (ii) the receiving party uses reasonable efforts to obtain a protective order or, in the absence of a protective order, to limit the disclosure of the Confidential Information and to obtain confidential treatment thereof, and (iii) the receiving party has allowed the disclosing party to participate in the proceeding that requires the disclosure.
8.4 Remedies upon Breach. Each party agrees that the other party may have no adequate remedy at law if there is a breach or threatened breach of this Clause 6 and, accordingly, that either party is entitled (in addition to any legal or equitable remedies available to such party) to seek injunctive or other equitable relief without the necessity of proof of actual damages to prevent or remedy such breach.
9.1 Warranties. Immidart warrants that: (i) Immidart possesses all rights necessary to grant to Customer the rights set forth in this Agreement; (ii) the Software will perform substantially in accordance with the Documentation; and (iii) Immidart shall not materially decrease the functionality of the Software during the Subscription Term. For any breach of the above warranties, provided Customer has notified Immidart in writing of such breach, Customer’s exclusive remedy and Immidart’s entire liability shall be: (a) for Immidart to correct the Software errors that caused breach of the warranty; or, (b) if Immidart cannot correct such breach in a commercially reasonable timeframe, Customer may terminate the specific Software module that is in breach and receive a refund of the prorated amount of the fees prepaid by Customer for such Software module that were to apply to the remainder of the unexpired term, as calculated from the termination date through the remainder of the unexpired term.
9.2 Disclaimer. EXCEPT AS SET FORTH IN THIS CLAUSE 8, NEITHER IMMIDART, ITS AFFILIATES NOR ITS LICENSORS MAKE ANY WARRANTY, REPRESENTATION, CONDITION OR AGREEMENT WITH RESPECT TO THE SOFTWARE AND THE SOFTWARE IS PROVIDED ON AN ‘AS-IS’ BASIS. IMMIDART AND ITS LICENSORS, IF ANY, EXPRESSLY DISCLAIM AND EXCLUDE TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ALL IMPLIED AND STATUTORY WARRANTIES (INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE). WITHOUT LIMITING THE FOREGOING, IMMIDART MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE, OR ANY OTHER IMMIDART OR THIRD-PARTY GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE OR HARDWARE), OR ANY PRODUCTS OR RESULTS OF THE USE OF ANY OF THEM, WILL MEET CUSTOMER’S OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE, HARDWARE, SYSTEM OR NETWORK), OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. PARTIES AGREE THAT THERE SHALL NOT BE ANY THIRD-PARTY MATERIALS PROVIDED TO CUSTOMER UNDER THIS AGREEMENT.
10.1 Indemnity by Immidart. Immidart shall indemnify, defend and hold harmless Customer against any third-party claims that the Software, when used within the scope of this Agreement, infringe any Indian patent, trademark, copyright, trade secret, or other intellectual property right of a third party, provided that Immidart is given prompt written notice of such claim. Customer shall reasonably cooperate in the defense of such claim, if requested by Immidart, and Immidart will reimburse Customer’s reasonable out-of-pocket costs incurred in connection with such cooperation. Immidart has the sole authority to defend or settle the claim, provided such settlement does not involve any payment by Customer or admission of wrongdoing by Customer. Immidart has no liability for infringement claims to the extent the alleged infringement is based on or arises from (i) the modification of the Software by anyone other than Immidart; (ii) use of the Software in combination with any third-party software, hardware, or service, to the extent such claim could not be asserted but for the combination; (iii) the use of the Software not in material accordance with the then-current Documentation or in any manner not permitted by this Agreement; and (d) Immidart’s compliance with Customer’s specifications or directions, including, but not limited to, the incorporation of any software or other materials or processes provided by or requested by Customer. THE FOREGOING STATES IMMIDART'S ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDY FOR ANY CLAIM OF INFRINGEMENT.
10.2 Indemnity by Customer. Customer shall indemnify, defend and hold harmless Immidart against any third party claims that are based on: (i) Customer’s use of the Software in violation of the restrictions in this Agreement; or (ii) any Customer Data, information, software or other materials provided or otherwise made available to Immidart by Customer, provided that Customer is given prompt written notice of such claim. Immidart shall reasonably cooperate in the defense of such claim, if requested by Customer, and Customer will reimburse Immidart’s reasonable out-of-pocket costs incurred in connection with such cooperation. Customer has the sole authority to defend or settle the claim, provided such settlement does not involve any payment by Immidart or admission of wrongdoing by Immidart.
11.1 Limitation of Liability. IN NO EVENT SHALL THE CUMULATIVE, AGGREGATE LIABILITY OF EITHER PARTY FOR ALL CLAIMS RELATED TO THE SOFTWARE AND THIS AGREEMENT IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION AND RESTITUTION WILL EXCEED THE TOTAL AMOUNT OF ALL FEES PAID OR PAYABLE TO IMMIDART FOR THE SUBSCRIPTION(S)IN THETHREEMONTHS PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY CLAIM, EXCEPT FOR AMOUNTS PAYABLE BY CUSTOMER UNDER THIS AGREEMENT.
11.2 Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER PARTY IS LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES ARISING IN ANY WAY OUT OF THE USE OF THE SOFTWARE OR THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST REVENUE, LOSS OF USE, LOSS OF DATA, COSTS OF RECREATING DATA, THE COST OF ANY SUBSTITUTE EQUIPMENT, PROGRAM, OR DATA, OR CLAIMS BY ANY THIRD PARTY. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE OR EXTEND THESE LIMITS.
11.3 IN ALL CASES, CUSTOMER’S EXCLUSIVE REMEDIES ARE SET FORTH IN THIS AGREEMENT. BOTH CUSTOMER AND IMMIDART HEREBY AGREE THAT THE FOREGOING LIMITATIONS AND WAIVERS SET FORTH IN THIS CLAUSE10 APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. ANY ACTION PERMITTED UNDER THIS AGREEMENT AND NOT BROUGHT WITHIN 24 MONTHS AFTER THE OCCURRENCE OF THE ACT OR EVENT GIVING RISE TO THE LIABILITY IS BARRED.
12.1 Term of Agreement. This Agreement will commence on the Effective Date and continue until all Ordering Documents under this Agreement have expired or been terminated.
12.2 Term and Renewal of Purchased Subscriptions. The term will commence on the Effective Date of the applicable Ordering Document and will continue for the duration of the Subscription Term. Unless otherwise set out in the Ordering Document, after the expiry of the initial Subscription Term, Customer may renew the subscriptions under the respective Ordering Documents for consecutive 1 year renewal terms (“Renewal Term”) by providing a written notice of renewal not less than 90 days’ prior to the end of the Subscription Term or a Renewal Term, as applicable. Upon expiration of the first year of the Subscription Term (or the Subscription Term if the Subscription Term is for one year only), Immidart may increase the annual Subscription Fees no more than once annually, by the percentage as mutually agreed or as set forth in the Ordering Document. If Customer subscribed to different Software products on different billing cycles, Immidart may consolidate and prorate the Subscription Fees for the additional products at the time of Customer’s subscribes to additional Software products. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Software has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
12.3 Termination for Cause. Either party may terminate this Agreement: (i) if the other party materially breaches this Agreement and does not cure such breach within 30 days after its receipt of written notice specifying such breach from the non-breaching party; or (ii) if the other party (I) becomes insolvent, (II) is generally unable to pay, or fails to pay, its debts as they become due, (II) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, (IV) makes or seeks to make a general assignment for the benefit of its creditors, or (V) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property or business. Upon termination by Customer for a valid cause, Immidart will refund any prepaid but unused subscription fees to Customer on a pro-rata basis.
12.4 Consequences of Termination Upon termination of this Agreement: (i) Customer shall immediately cease accessing or using the Software; (ii) all subscriptions, licenses and rights granted under this Agreement with respect to the Software will immediately terminate; and (iii) Customer shall immediately pay Immidart all amounts owing under any Ordering Document. In no event shall the termination of this Agreement relieve Customer of its obligation to pay any fees payable to Immidart for the period prior to the effective date of termination.
12.5 Return or Deletion of Customer Data Upon written request made by Customer within thirty (30) days of termination of this Agreement, Immidart will return Customer Data to Customer on Immidart-standard media or in any other format mutually agreed to by the parties. After such 30-day period, Immidart will have no obligation to maintain or provide the Customer Data and may thereafter, unless legally prohibited, delete the Customer Data in its systems or otherwise in its possession or under its control.
13.1 Governing Law; Jurisdiction and Venue. This Agreement and the rights and obligations of the parties with respect to their relationship under this Agreement are governed by and must be construed and enforced in accordance with the laws of India, without reference to its choice of law rules.
13.2 Arbitration. Subject to Clause 12.3 below, in the event of any dispute, controversy, claim, question or disagreement (a “Claim”) arising out of or related to this Agreement or the breach thereof, shall be finally resolved by binding arbitration before a single arbitrator under the commercial arbitration rules of India in effect at the time such Claim is submitted to arbitration. The place for arbitration will be Bangalore. The arbitrator must be a person having experience with and knowledge of the computer software business and such arbitrator will not have any authority to make any ruling, finding or award that does not conform to this Agreement. The judgment upon the award rendered by the arbitrator will be final and binding on all parties and may be entered as a judgment and enforceable by any court of competent jurisdiction.
13.3 Equitable Relief. Notwithstanding anything to the contrary contained in Clauses 12.1 or 12.2, (i) any party may immediately seek equitable relief (without the necessity of posting a bond), including, without limitation, temporary injunctive relief, against the other party in any court of competent jurisdiction with respect to any and all equitable remedies sought in connection with this Agreement; and (ii) Immidart, at its option, may pursue any and all remedies available at law and in equity in any court of competent jurisdiction with respect to any claim against Customer for nonpayment under this Agreement.
13.4 Cumulative Remedies. Except as otherwise set forth in this Agreement and subject to the terms of this Agreement, including Clause 10, all remedies available to either party for breach of this Agreement are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy will not be deemed an election of such remedy to the exclusion of any other remedies.
13.5 Waiver, Entire Agreement, Order of Precedence, Amendment, Severability and Purchase Orders. No waiver of any right under this Agreement will be deemed effective unless contained in a writing signed by a duly authorized representative of the party to be bound, and no waiver of any past or present right arising from any breach or failure to perform will be deemed a waiver of any future right arising under this Agreement. This Agreement, including any Ordering Document and the Documentation which are incorporated herein by this reference, sets forth the entire understanding and agreement between Customer and Immidart and supersedes all prior and contemporaneous agreements, proposals or communications, whether oral or written, between the parties relating to the subject matter of this Agreement. In the event of any conflict or inconsistency between this Agreement and any Ordering Document and Documentation, as applicable, the order of precedence shall be as follows: (i) Applicable Ordering Document, (ii) this Agreement; and (iii) Documentation, as applicable. This Agreement and each Ordering Document and Statement of Work may not be amended, modified, or supplemented orally and may only be amended, modified, or supplemented by a written instrument signed by both parties. If any provision in this Agreement is invalid or unenforceable, that provision will be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, and the other provisions of this Agreement will remain in full force and effect. Nothing contained in any purchase order, click wrap agreement, or other document or instrument issued by Customer will in any way modify or add any additional terms or conditions to this Agreement, and any such modified or additional terms or conditions are expressly rejected and excluded from the parties’ agreement hereunder.
13.6 Attorneys' Fees and Costs. The prevailing party in any action or proceeding to enforce this Agreement, including any efforts to collect amounts due under this Agreement, is entitled to recover from the other party its costs and attorneys’ fees in addition to its damages.
Notices. All notices must be in writing and in English and may be sent by email, except for notices of breach or demands for indemnification, which must be sent by either, certified mail or internationally recognized courier to the address indicated in the relevant Ordering Document or such other address as either party may indicate by at least 10 days prior written notice to the other party.
13.7 Assignment; Successors and Assigns. Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld), except that either party may assign this Agreement in its entirety (including all Ordering Documents), without the other party’s consent to its affiliated entities or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.8 Force Majeure. If by reason of labor disputes, strikes, lockouts, riots, war, terrorism, inability to obtain labor or materials, earthquake, fire or other action of the elements, accidents, governmental restrictions, appropriation or other causes beyond the reasonable control of a party hereto, either party is unable to perform in whole or in part its obligations as set forth in this Agreement, excluding any obligations to make payments hereunder and excluding any obligations under Clause 6 (Confidentiality) hereof, then such party will be relieved of those obligations to the extent it is so unable to perform and such inability to perform will not make such party liable to the other party. Neither party will be liable for any losses, injury, delay or damages suffered or incurred by the other party due to the above causes.
13.9 Independent Contractors. The relationship between Immidart and Customer has been and will continue to be that of independent contractors. Neither party is the legal representative, agent, joint venturer, partner, employee, or employer of the other party under this Agreement for any purpose whatsoever. Neither party has any right, power, or authority under this Agreement to assume or create any obligation of any kind or to make any representation or warranty on behalf of the other party, whether express or implied, or to bind the other party in any respect. Each party agrees that it has not entered into this Agreement with a corrupt motive to obtain or retain business or to secure an unfair business advantage and it shall fully comply at all times with all applicable anti-corruption laws. Each party represents that it has an anti-bribery policy in place and that it has not made and will not make or facilitate improper or illegal payments.
13.10 Publicity and Marketing. Customer agrees that Immidart may represent Customer as a client and use Customer’s name and logo on its client’s list, presentations and public website.
13.11 Export Compliance. Customer is advised that the Software is subject to Indian Export Laws as well as the laws of the country where they were delivered by Immidart. Customer shall not permit Users to access or use Software in any US embargoed countries or in violation of any US export law or regulations.
13.12 Interpretation. In the event of a dispute between the parties, this Agreement will not be construed for or against either party, but will be interpreted in a manner consistent with the intent of the parties as evidenced by the terms of this Agreement. Unless otherwise specified, “days” means calendar days.
13.13 Counterparts. This Agreement may be executed in any number of counterparts, each of which is deemed an original, and all of which together constitute one and the same instrument. The parties agree that a facsimile or portable document format (.pdf) of a signed counterpart is effective and has the same force and effect as the original thereof.
13.14 Effectiveness; Date. This Agreement will become effective when all the parties have signed it. The date this Agreement is signed by the last party to sign it (as indicated by the date associated with that party’s signature) will be deemed the date of this Agreement.
13.15 Survival. Clauses concerning the parties’ rights and obligations that by the content of the Clause operate after termination or that are necessary to enforce any right will survive termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have put their respective hand and seal on to this Agreement, on this, the day month, Year, in the presence of the witnesses signing hereunder.
ORDERING DOCUMENT 1 TO MASTER SUBSCRIPTION AGREEMENT
This Ordering Document 1 (“Ordering Document”) is entered into between Immidart Technologies LLP, a limited liability partnership incorporated under the laws of India (“Immidart”) and (“Customer”) and is subject to the terms and conditions of the Master Subscription Agreement, dated ￼ (the “Agreement”) and is effective as of the last date set forth on the signature page of this Ordering Document (the “Effective Date”). In the event of any conflict or inconsistency between this Ordering Document and the Agreement, this Ordering Document controls.
A. Account Growth and Minimum Guarantee. The Subscription Fees are priced based on the license metrics set out in the above table. If any of the license metric values set out above increases by 10% or more, then the Subscription Fees for the Software product will increase by multiplying the Subscription Fees for that Software product by the percentage increase. Account growth fees will be prorated for the remainder of the Subscription Term in effect at the time the account growth occurred. Account growth fees will be invoiced monthly in arrears and invoices are payable as set forth in the Agreement. The Subscription Fees are also priced on the basis of a minimum volume guarantee and will undergo a price revision, if the minimum volumes are not met in the first year.
B. License Grant. Immidart Enterprise Cloud Version with Extended License. The license grant on subscription basis is being provided to the Customer for exclusive use with its employees or prospective employees.
C. Approvals. All configurations, process changes or change requests need to be expressly approved by Customer before implementation.
D. THIS OFFER EXPIRES ON. If Customer has not delivered duly executed counterparts of this Ordering Document to Immidart by , Immidart may rescind this pricing and, in such event, this Ordering Document will be null and void and of no force or effect.
E. Additional Exhibits. The following Exhibits are incorporated into the Agreement and apply only to the Software to be provided under this Ordering Document:
1. Exhibit A (Software and Documentation)
1. Terms and Conditions. This Exhibit A is subject to the terms and conditions of the Agreement. In the event of any conflict or inconsistency between this Exhibit B and the Agreement, this Exhibit A controls. Capitalized terms used but not defined in this Exhibit B have the meanings assigned to them in the Agreement.
3. Professional Services: Immidart, or its Affiliates, will perform the Services specified in the applicable Statement of Work, at the rates specified therein and subject to payment of all applicable fees. In the event Immidart affiliate is required to perform the Services, it will also be included as a signatory of the applicable Statement of Work, and in the application of the Agreement to such Statement of Work, all references to “Immidart” in the Agreement shall be construed as referring to such affiliate instead.
4. Limited Warranty: Immidart warrants that the Professional Services will be performed in a professional and workmanlike manner in accordance with the generally accepted industry standards and practices.
5. Exclusive Remedy. Customer shall notify Immidart in writing of any breach of a warranty within 90 days after completion of performance of the Professional Services under the applicable Statement of Work or receipt of the invoice for the non-conforming Professional Services, whichever is later (the “Services Warranty Period”). Immidart is not obligated to correct any breach if Customer fails to identify the breach in writing within the Services Warranty Period. Customer’s sole remedy and Immidart’s entire liability for any breach of warranty will bear performance of the Professional Services promptly by Immidart, at no cost to Customer; or if Immidart is unable to perform the Professional Services as warranted, Immidart shall refund the fees paid for the non-conforming Professional Services.
6. License to Deliverables. Subject to payment of the fees due, Immidart grants to Customer a non-exclusive, license to use the Deliverables only in conjunction with the Software, and upon the same terms and conditions and license terms for the Software.
7. Fees and Expenses. Invoices for Professional Services are payable as set forth in the Agreement. Customer will reimburse Immidart for reasonable travel, and out-of-pocket expenses incurred in conjunction with the Services, including without limitation reasonable travel, lodging, meals and telephone expenses as detailed in the applicable Statement of Work. If Customer's account is more than thirty (30) days past due (except with respect to fees subject to a good faith dispute), in addition to any other rights or remedies Immidart may have under this Agreement or by law, Immidart reserves the right to suspend the Professional Services at any time a delinquent outstanding balance exists under this Agreement or any other agreement between Immidart and Customer. Immidart reserves the right to change Customer’s payment terms if Customer has a history of late payments to Immidart or if Customer’s credit status changes.
8. Intellectual Property Rights. Customer acknowledges that all intellectual property rights in any work arising from or created, produced or developed by Immidart (whether alone or jointly with others) under or in the course of this Agreement, including those arising from the performance of the Professional Services, shall immediately upon creation or performance vest absolutely in and shall be and remain the sole and exclusive property of Immidart and Customer shall acquire no right, title or interest in and to the same, except for the limited rights expressly granted in this Agreement.
9. Performance of Services. Notwithstanding anything to the contrary contained herein, the parties agree that it is in both parties’ best interest for Immidart to use the most conveniently located and experienced personnel to provide Professional Services commissioned hereunder to Customer. Therefore, where appropriate, Immidart may use employees of its affiliated corporations or contractors to perform Professional Services hereunder.
10. Survival. The rights and obligations contained in Clauses 5 (Exclusive Remedy), 6 (License to Deliverables), 7 (Fees and Expenses) and 8 (Intellectual Property Rights) of this Exhibit-A will survive termination or expiration of the Agreement or this Exhibit-A.