HAGNOSOFT STANDARD TERMS
These Hagnosoft Standard Terms govern the Framework Agreement, entered into between Hagnosoft Technologies Private Limited, a company incorporated under the laws of India and having its registered office address at No. 146, 5th Cross, 8th Main, Narayan Nagar, 2nd Block, J P Nagar 9th Phase Bangalore – 560062 (Company) and the Customer named in the Framework Agreement. These Hagnosoft Standard Terms and the Framework Agreement shall be collectively referred to as the Agreement.
1.1 Affiliate means any company the majority of whose voting shares is now or hereafter, owned or controlled, directly or indirectly, by a Party hereto, or by an entity which owns or controls a Party hereto, as applicable.
1.2 Confidential Information shall mean and include, but is not restricted to all non-public information of either Party that is technical and commercial concerning business, books of record and account, data systems, software, services, any materials, trade secrets, know-how, formulae, processes, algorithms, ideas, strategies, inventions, data, network configurations, system architecture designs, flow charts, drawings, proprietary information, business and marketing plans, financial and operational information, and all other non-public information, material or data relating to the current and/ or future business and operations, wages related information provided by the Disclosing Party to the Receiving Party pursuant to the Agreement.
1.3 Customer shall mean the entity that has executed the Framework Agreement with the Company for availing the Services.
1.4 Disclosing Party Party sharing Confidential Information with the Receiving Party.
1.5 Documentation shall mean any technical documentation or any instructions, for administration or use, including any updates, improvements, or other changes that may be made and any other element that may be attached to it, supplied by the Company and relating to the Platform.
1.6 Framework Agreement means the Framework Agreement, entered into between the Parties, which incorporates these Hagnosoft Standard Terms by reference.
1.7 “Improvements” shall mean, with respect to the source code, all patches, updates, new versions, modifications and changes made, developed, acquired or conceived after the date hereof and during the entire term of this Agreement.
1.8 Intellectual Property Rights means all rights in, to, or arising out of: (i) any Indian, international or foreign patent or any application therefore and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (iii) copyrights, copyright registrations, mask works, mask works registrations, applications, moral rights, trademarks, and rights of personality, privacy and likeness, whether arising by operation of law, contract, license or otherwise; and (iv) any other similar or equivalent proprietary rights anywhere in the world.
1.9 License Fee shall mean the fee payable towards License granted by the Company as detailed under the Framework Agreement.
1.10 Marks means a Partys corporate or trade name, trademark(s), logo(s), domain names or other identification of such Party.
1.11 Party shall or Parties shall refer to the Customer and the Company individually and collectively.
1.12 Personnelshall mean and include the number of identifiable unique persons consisting of Customers personnel who are authorized to access and use the Platform as determined by the Customer. The Customer shall allot unique login credentials to such personnel of the Customer.
1.13 Platform means the interface created by Company where Customer can access the Software.
1.14 Pre-Existing IPR shall mean Intellectual Property Rights owned by the Parties prior to the execution of this Agreement and developed during the term independently and not specifically under this Agreement.
1.15 Receiving Party Party accessing or receiving Confidential Information from the Disclosing Party.
1.16 Representatives shall mean the employees, consultants, agents, officers and professional advisors of the Receiving Party;
1.17 Services shall mean the services to be provided by the Company as described under the Framework Agreement.
2. Grant of License
2.1 Subject to payment of License Fee, Company grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license (License) during the term of this Agreement to use the Platform integrated with the systems of the Customer for the purpose of its business, operations, managing interactions with their customers and future customers, streamlining processes & building customer relationships through various features offered by the Platform (Purpose).
2.2 As part of the registration process, Customer will identify an administrative user name and password for Customers company account. Company reserves the right to refuse registration of or cancel passwords it deems inappropriate in order to avoid any unauthorized access to the Platform.
2.3 The Framework Agreement may be amended only by written agreement of the Parties.
3. Restrictions and Responsibilities
3.1 Company will host and maintain the Platform on servers operated and maintained by or at the direction of Company. Company may in its sole discretion modify, enhance or update or otherwise change the Platform.
3.2 Customer will cooperate with the integration of the Customers current information systems and data into the Platform in a timely manner.
3.3 Customer shall provide all the required information and assistance to the Company to enable the Company to deliver the services vide the Platform. Customer acknowledges that the Companys ability to deliver the Services in the manner provided in the Agreement may depend upon the accuracy and timeliness of such information and assistance. Accordingly, the Company shall not be liable for any delay in provision of services, provided that such delay is a consequence of ant act or omission of the Customer.
3.4 All data of the Customer shall be stored by the Company on cloud on a separate database in an encrypted form. On Customers request, the Company shall restrict the access to the Customers account of the Platform in a manner such that the Customer account can be accessed solely from the premises of the Customer.
3.5 Customer shall comply with all applicable local, state, national and laws in connection with its use of the Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. Customer shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other Intellectual Property Right without first obtaining the permission of the owner of such rights.
3.6 In the event Customer wishes to share personal information with the Company for the provision of services, Customer hereby agrees to take specific consent from the owners and individual subjects of the personally identifiable information (PII) to share such information with the Company in accordance with the requirements detailed under applicable laws. The Parties hereby agrees to comply with all applicable laws and any other rules made thereunder while using and sharing any PII.
3.7 Customer shall notify the Company immediately of any unauthorized use of any password or user id or any other known or suspected breach of security and provide reasonable assistance to stop any unauthorized use of the Services.
3.8 Customer shall be solely responsible for the acts and omissions of its Personnel. The Company shall not be liable for any loss of data or functionality caused directly or indirectly by the Personnel.
3.9 The Company shall perform the Services in a professional manner and shall comply with all applicable laws during the performance of obligations under this Agreement.
3.10 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with all applicable laws and regulations. Company may monitor Customers use of the Services and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
3.11 Customer shall not, and shall not permit anyone to: (i) copy or republish the Platform, (ii) make the services available to any person other than authorized Personnel, (iii) use or access the services to provide service bureau, time-sharing or other computer hosting services to third parties, (iv) modify or create derivative works based upon the services, Documentation or Platform, (v) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the Platform or Documentation, (vi) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Platform or (vii) access the Platform or use the Documentation in order to build a similar product or competitive product. Subject to the limited License granted herein, the Company shall own all right, title and interest in and to the Platform and Documentation, including all modifications, improvements, upgrades, derivative works and Intellectual Property Rights therein.
3.12 It is hereby clarified that the License granted under the Agreement is for the Platform and does not include licenses for any upgrades or new versions of the Platform or the Platform (Upgrades) that may be developed by the Company. It is expressly agreed between the Parties that all Upgrades shall be subject to such additional fee as may be notified by the Company in writing. It is further agreed that Upgrades, if any, will be activated subject to the additional fee being approved by the Customer and execution of an amendment by the authorized signatories of both Parties.
3.13 Company reserves all rights to the Platform not otherwise expressly granted in this Clause 3.
4. Limited Platform Warranty
4.1 Company warrants to the Customer that during the term of the Agreement, the Platform will perform substantially in accordance with the terms of Documentation. The foregoing warranty shall not apply to performance issues of the Platform (i) caused by factors outside of Companys reasonable control; (ii) that result from any improper actions or inactions of the Customer or any third parties; or (iii) that result from Customers data structure, operating environment or equipment. Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Companys reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
4.2 EXCEPT FOR THE EXPRESS, LIMITED WARRANTY PROVIDED IN THIS SECTION 3.11, COMPANY MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PLATFORM, OR ANY OTHER ACCOMPANYING MATERIAL PROVIDED HEREUNDER. COMPANY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, NONINFRINGEMENT, AND OF UNINTERRUPTED OR ERROR-FREE SERVICE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PLATFORM IS PROVIDED ON AN AS IS, AS AVAILABLE BASIS.
5.1 The Receiving Party understands that the Disclosing Party has disclosed or may disclose Confidential Information. The Receiving Party agrees: (i) to use and reproduce the Confidential Information of the Disclosing Party only for purposes of exercising its rights and performing its obligations under the Agreement and only to the extent necessary for such purposes, (ii) to restrict disclosure of such Confidential Information to the Receiving Partys Representatives who have a bona fide need to know for such purposes provided that such Representatives are bound by confidentiality obligations, and (iii) to not disclose such Confidential Information to any third party without the prior written approval of the Disclosing Party. Notwithstanding the foregoing, it shall not be a breach of the Agreement for the Receiving Party to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has, if legally permitted, given the Disclosing Party prior notice to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure. In the event the Disclosing Party fails to obtain a protective order against such disclosure, the Receiving Party may disclose Confidential Information to the extent legally required.
5.2 Exceptions. Notwithstanding anything to the contrary herein, neither Party shall be liable for using or disclosing information that such Party can prove: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Receiving Party; (ii) as evidenced by written records, was rightfully known to the Receiving Party, without obligation of confidentiality (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information, as evidenced by written records; or (v) becomes rightfully known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of confidentiality obligations.
5.3 Remedies. The Receiving Party agrees that a breach of this Clause 5 may result in immediate and irreparable harm to the Disclosing Party that money damages alone may be inadequate to compensate. Therefore, in the event of such a breach, the Disclosing Party will be entitled to seek equitable relief, including but not limited to a temporary restraining order, temporary injunction or permanent injunction without the posting of a bond or other security.
6. Intellectual Property Rights
6.1 The Customer acknowledges and agrees that all Intellectual Property Rights in the Platform, Documentation and any Improvements made thereto shall at all times vest with the Company. Except to the extent of license granted under this Agreement to the Customer, the Customer shall have no rights to use the Platform. The Customer shall not take any action directly or through a third party to claim rights or ownership on the Platform or its associated Documentation.
6.2 Each Party shall own all rights in its Marks. Except to the extent permitted under Clause 6.3 below, nether Party shall use the Marks of the other Party without the prior written consent of such other Party.
6.3 Customer hereby grants a limited license to the Company to use the Customers Marks in the Companys promotional material to reflect the Customer as a client of the Company and to provide a generic description of services provided by the Company to the Customer.
7. Term and Termination
7.1 This Agreement may be terminated by either Party upon delivery of written notice of termination to the other Party, as follows:
(a) if the other Party fails to perform or observe any material term or condition in this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach from the non-breaching Party; or
(b) if the other Party (i) makes a general assignment for the benefit of creditors, (ii) admits in writing its inability to pay debts as they come due, (iii) voluntarily files a petition or similar document initiating any bankruptcy or reorganization proceeding, or (iv) involuntarily becomes the subject of a petition in bankruptcy or reorganization proceeding and such proceeding shall not have been dismissed or stayed within sixty (60) days after such filing.
7.2 Upon termination of the Agreement (i) the License granted under the Agreement shall be revoked with immediate effect and the Customer shall immediately cease using the Platform; (ii) each Party shall, upon receipt of a written request from the other Party, promptly return, or at the other Partys request, destroy all Confidential Information of the other Party. All other rights and obligations of the Parties under the Agreement shall expire upon termination of the Agreement, except that all payment obligations accrued hereunder prior to termination or expiration shall survive such termination. All clauses which naturally survive the termination of the Agreement shall continue to apply.
8. Indemnification & Limitation of Liability
8.1 Company Indemnification for Platform. Company will at all times indemnify, defend and hold Customer and their respective directors and employees harmless from and against any and all claims, damages, liabilities, costs and expenses, including reasonable attorneys fees, arising out of any third party claims (Claim) that the Platform infringes such third partys Intellectual Property Rights. Customer shall give prompt written notice, cooperation and assistance to Company relative to any such claim or suit, provided, further, that at Companys option, Company may assume the defense of any such claim or litigation, in which event Companys obligations with respect thereto shall be limited to reimbursement of litigation expenses, the payment of any judgment, or settlement approved by Company, in connection therewith; provided, however, that Company shall not have the obligation to indemnify Customer with respect to any third party claim of infringement or misappropriation of Intellectual Property Rights arising out of the (i) modifications to the Platform by anyone other than Company; (ii) modifications to the Platform based upon specifications furnished by the Customer; (iii) Customers use of the Platform other than as specified in the Agreement or in the applicable documentation accompanying this Agreement, (iv) use of the Platform in conjunction with third-party software, hardware or data other than that approved by Company, (v) where Customer continues an alleged infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement or (vi) any combination of the foregoing. Customer shall indemnify, defend and hold Company and its officers, directors, employees, agents, successors and assigns harmless from and against all third-party claims, suits, actions, damages, settlements, losses, liabilities, costs (including without limitation reasonable attorneys fees) and expenses to the extent they arise from any Claim based on any of the factors in the foregoing sentence, and shall give Company all reasonable information and assistance regarding such claim.
8.2 Customer Indemnification. Customer will at all times indemnify, defend and hold Company, its Affiliates, officers, directors and employees harmless from and against any and all claims, damages, liabilities, costs and expenses, including reasonable attorneys fees, arising out of any breach of its representation and warranties and covenants provided under this Agreement. Company shall give prompt written notice, cooperation and assistance to Customer relative to any such claim or suit.
8.3 Indemnification Procedures. A Party seeking indemnification (Indemnified Party) shall give prompt written notice to the other Party (Indemnifying Party) of any claim by or in respect of a third party of which such Indemnified Party has knowledge concerning any losses as to which such Indemnified Party may request indemnification hereunder; provided, however, that the failure to provide or a delay in providing such notice shall not release the Indemnifying Party from any of its obligations under this Agreement except to the extent that the Indemnifying Party is actually prejudiced by such failure or delay and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to any Indemnified Party otherwise than under this Agreement. The Indemnifying Party shall have the right to direct and conduct all proceedings or negotiations in connection with the indemnified claim and assume the defense thereof with counsel of its own choosing. The Indemnifying Party shall keep the Indemnified Party reasonably informed concerning the status of any litigation, negotiations or settlements of any such claim. The Indemnified Party shall be entitled, at its own expense, to participate in any litigation, negotiations and settlements with counsel of its own choosing. The Indemnified Party shall, at the Indemnifying Partys expense, provide the Indemnifying Party with reasonable access to its records and personnel relating to any such claim during normal business hours and shall otherwise cooperate with the Indemnifying Party in the defense or settlement thereof.
8.4 Settlement Restrictions. In no event shall the Indemnifying Party enter into a settlement arrangement regarding such Claims which will require any payment or other consideration from Indemnified Party, or any Claim that arises from or is part of any criminal action or proceeding or contains a stipulation to or an admission or acknowledgement of any wrongdoing (whether in tort or otherwise) on the part of the Indemnified Party, without the Indemnified Partys prior written consent, which consent shall not be unreasonably withheld or delayed.
8.5 Exclusion of Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF USE, OR LOSS OF PROFITS ARISING HEREUNDER OR FROM THE PROVISION OF SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.6 Limitation of Liability. EXCEPT WITH RESPECT TO A PARTYS INTENTIONAL MISCONDUCT, INFRINGEMENT OF THE OTHER PARTYS INTELLECTUAL PROPERTY RIGHTS, INDEMNIFICATION OBLIGATIONS, DIRECT PAYMENT OBLIGATIONS BETWEEN THE PARTIES PURSUANT TO THE AGREEMENT, OR ANY BREACH OF A PARTYS CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTYS TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER, WHETHER BASED ON CONTRACT, TORT OR OTHERWISE, EXCEED THE AMOUNT PAID TO COMPANY UNDER THIS AGREEMENT IN THE PRECEDING SIX (6) MONTHS PRIOR TO WHICH SUCH CLAIM AROSE.
9. Governing Law and Dispute Resolution
9.1 Governing Law: The Agreement shall be governed in accordance with laws of India.
9.2 Negotiation and Dispute Resolution. In the event a dispute arises between Company and Customer regarding the application or interpretation of any provision of the Agreement, the aggrieved Party shall promptly notify the other Party to the Agreement of the dispute. If the Parties fail to resolve the dispute within ten (10) business days after receipt of such notice, each Party shall, within five (5) business days thereafter, escalate such dispute to a member of its senior management team. In the event the Parties are unable to resolve their dispute within a period of fifteen (15) days from the date the dispute is escalated to the senior management, either Party may refer the dispute to arbitration in the manner as specified below.
9.3 Arbitration. In the event of a dispute between the Parties that the Parties are unable to resolve through mutual discussions in the manner as specified above, either Party may refer the dispute to arbitration. Arbitration shall be conducted by the Indian Council of Arbitration (ICA). Arbitration proceedings shall be presided over by a sole arbitrator appointed in accordance with the arbitration rules of the ICA. The seat and venue of arbitration shall be Bengaluru and arbitration shall conducted be in English language.
9.4 Survival. The provisions of this Section shall survive the expiration or termination of the Agreement for any reason.
10.1 If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable. The Agreement is not assignable, transferable or sublicensable by Customer except with Companys prior written consent. Company may transfer and assign any of its rights and obligations under the Agreement without consent. The Agreement along with the Framework Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of the Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of the Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under the Agreement, the prevailing Party will be entitled to recover costs and attorneys fees. All notices will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
10.2 Except for payment obligations, if either Party is prevented from performing or is unable to perform any of its obligations under the Agreement due to causes beyond the reasonable control of the Party invoking this provision, including but not limited to acts of God, acts of civil or military authorities, riots or civil disobedience, wars, strikes or labor disputes (other than those limited to the affected Party) (each, a Force Majeure Event), such Partys performance shall be excused and the time for performance shall be extended accordingly provided that the Party immediately takes all reasonably necessary steps to resume full performance.