Legal
TERMS OF USE
THE TERMS OF THIS BIZOM AGREEMENT (“AGREEMENT) GOVERN YOUR USE OF THE SERVICES (AS DEFINED BELOW) OF MOBISY TECHNOLOGIES PRIVATE LIMITED (“MOBISY”). BY ACCEPTING THESE TERMS BELOW OR BY USING MOBISY’S SERVICES IN ANY MANNER, YOU, THE ENTITY YOU REPRESENT AND ANY AFFILIATE OF SUCH ENTITY (COLLECTIVELY, “CUSTOMER”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS.
Mobisy reserves the right, at its sole discretion, to change, modify, add or remove portions of these terms of use of the Services, at any time. Your continued use of the Services following the posting of changes will mean that you accept and agree to the changes.
01
DEFINITION
1.1
1.2
1.3
“Customer Data” shall refer to any electronic data, text, messages, communications or other materials submitted to and stored by the Customer and its Authorised User(s) in connection with the use of such Service.
1.4
“Confidential Information” shall mean all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of each Party shall include the terms and conditions of this Agreement and all Documentation, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party or (iv) was independently developed by the Receiving Party.
1.5
1.6
“Service(s)” shall refer to the products and services that are subscribed to by the Customer and made available by Mobisy for the prices as may be applicable and may include but not be limited to the Software, updates, any documentation, and all applicable support Services that the Customer may purchase or subscribe to.
1.7
“Software” shall refer to the Bizom software provided by Mobisy (either by download or access through the internet).
02
LICENSE GRANT, ACCESS TO AND USE OF THE SERVICES
2.1
2.2
2.3
2.4
2.5
2.6
2.7
03
FEES AND PAYMENTS
3.1
3.2
3.3
Mobisy may increase or add new fees and charges by giving Customer 30 (thirty) days’ advance written notice.
3.4
Mobisy shall charge interest at the rate of 1.5% (one and a half percent) per month on all late payments.
3.5
Fees for Services are based on purchase of Services and licenses and not on usage.
3.6
Mobisy may suspend or terminate the Services if payment is not received within 15 (fifteen) days from the date of the invoice.
3.7
Customer understands that payment obligations are non-cancellable, and payments received are non-refundable, unless otherwise specifically stated in this Agreement.
3.8
Taxes: The fees specified or agreed under this Agreement shall be exclusive of any applicable Goods and Services Tax or local body tax or municipal tax or any other indirect tax as may be imposed by any government or statutory authority.
04
CONFIDENTIALITY, SECURITY AND INTELLECTUAL PROPERTY RIGHTS
4.1
Subject to express provisions of this Agreement, each Party agrees to protect each other’s Confidential Information from unauthorised use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care.
4.2
Except as otherwise expressly permitted pursuant to this Agreement, each Party may use each other’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement and shall disclose such Confidential Information:
(a)
solely to the employees and/or non-employee service providers and contractors who have a need to know such Confidential Information and who are bound by the terms of confidentiality intended to prevent the misuse of such Confidential Information;
(b)
as necessary to comply with an order of any regulatory or administrative authority or a court of competent jurisdiction; or
(c)
as reasonably necessary to comply with any applicable law or regulation.
4.3
Mobisy shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data.
4.4
Customer shall own all right, title and interest in and to the Customer Data.
4.5
Mobisy shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
4.6
Notwithstanding anything to the contrary, Mobisy shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Mobisy will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
05
TERM AND TERMINATION
5.1
The Term of this Agreement will commence on the Effective Date as mentioned in order form and will remain in effect until terminated.
5.2
Either Party may terminate this Agreement for any reason by providing 90 (ninety) days’ advance written notice to the other Party.
5.3
Either Party may terminate this Agreement for cause (a) upon 30 (thirty) days’ written notice to the other Party for a material breach if such breach remains uncured at the expiration of such period, or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
5.4
Upon any termination for cause by Customer, Mobisy shall refund to the Customer, any prepaid fees covering the unused portion of the License fees. Upon any termination for cause by Mobisy, Customer shall expedite all payments due to Mobisy.
5.5
Upon Termination of this Agreement by either Party, Mobisy shall make available to Customer, facility to download the Customer Data provided all outstanding dues to Mobisy are paid by Customer within 30 (thirty) days from the date of termination .
5.6
Notwithstanding anything mentioned in this Agreement the Customer shall be entitled to post termination data retrieval assistance as mentioned in Clause 5.5 above after payment of all outstanding dues to Mobisy.
5.7
Clauses 4.2, 5, 6, 7, 9, 10 and 11 shall survive the termination of this Agreement.
06
REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
6.1
Each Party represents that it has validly entered into this Agreement and has the legal power to do so.
6.2
CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE AND THE SERVICES, ARE PROVIDED BY MOBISY, ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES MADE BY MOBISY IN THIS AGREEMENT, MOBISY HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THE SERVICES OR THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
07
LIMITATION OF LIABILITY
7.1
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE TO THE OTHER PARTY OR ANY AFFILIATE FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA (BEING DATA LOST IN THE COURSE OF TRANSMISSION VIA CUSTOMER’S SYSTEMS OR OVER THE INTERNET), BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER INDIRECT LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ANY AFFILIATE IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR CONSULTING SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
7.2
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, MOBISY’S AGGREGATE LIABILITY TO THE CUSTOMER, ANY AFFILIATE, OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR THE SERVICES, SHALL IN NO EVENT EXCEED THE FEE PAID BY THE CUSTOMER DURING THE 6 (SIX) MONTHS PRECEDING INITIATION OF SUCH CLAIM OF LIABILITY.
08
INDEMNITY
8.1
Mobisy shall defend the Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against the Customer due to any claim that the Software is infringing any intellectual property rights of a third party, and shall indemnify the Customer for any damages finally awarded against, and for reasonable attorney’s fees incurred by the Customer in connection with any such Claim; provided, that the Customer (a) promptly gives Mobisy a written notice of the Claim; (b) gives Mobisy sole control of the defence and settlement of the Claim; and (c) provide to Mobisy all reasonable assistance, at Mobisy’s expense.
8.2
Customer shall defend Mobisy against any Claim made or brought against Mobisy by a third party alleging that the Customer Data, or Customer’s use of the Services, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Mobisy for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Mobisy in connection with any such Claim; provided, that Mobisy (a) promptly gives the Customer a written notice of the Claim; (b) gives the Customer sole control of the defence and settlement of the Claim; and (c) provide to Customer all reasonable assistance, at Customer’s expense.
09
MISCELLANEOUS
9.1
Modifications/amendments: Any amendment or modification made to this Agreement shall be carried out only after furnishing 30 (thirty) days’ prior written notice.
9.2
Force majeure: Neither Parties shall be liable for any delay or failure to perform any obligation under this Agreement, where such delay or failure results from any cause beyond its reasonable control, including acts of nature or God, labour disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
9.3
Relationship of the parties: The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
9.4
No third-party beneficiaries: This Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.
9.5
No Waivers: Both the Parties agree that any failure to enforce at any time any provision of this Agreement or any delay in exercising any right or provision under this agreement does not constitute a waiver of that provision or of any other provision of this Agreement.
9.6
Severability: In case any provision of this Agreement is declared by a competent court to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
9.7
Assignment: Customer may not assign this Agreement, or delegate or sublicense any of Customer rights under this Agreement, without prior written consent of Mobisy. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the Parties and their respective successors and assigns.
9.8
Notice: Parties may provide any notice to other under this Agreement by sending a message to the email address then associated with the parties account. It is the Customer’s responsibility to keep informed Customer email address current and updated. Mobisy can be contacted by writing to legal@mobisy.com.
9.9
Dispute resolution: In the event of any dispute arising out of or in relation to this Agreement, the Parties shall try and resolve the dispute amicably in good faith through negotiations. In case the dispute is not resolved within a reasonable time , the Parties agree to submit the same for arbitration. The arbitration proceedings shall be governed by the provisions of the Arbitration and Conciliation Act, 1996 and its amendments thereafter. Arbitration proceedings shall be conducted in English language and the place, venue and seat shall be at Bangalore. The award of the arbitration proceedings shall be final and binding on the Parties.
9.10
Governing Law and Jurisdiction: This Agreement shall be governed by the laws of India and the appropriate courts of Bengaluru shall have exclusive jurisdiction.
9.11
Entire agreement: This Agreement, including the attached exhibits, constitutes and contains the entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes any and all prior agreements, negotiations, correspondence, understandings and communications between the Parties, whether written or oral, concerning the subject matter hereof.
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