Terms of Service

This Software as a Service Agreement (the "Agreement") is entered into this day of , 2020 (the "Execution Date"), by and between

1. Ankpal Techsoft Private Limited, a company incorporated under the Companies Act, 2013, with its registered office at and having its principal place of business at (hereinafter called " Company" which expression shall include its assignees); and

2. a company incorporated under the Companies Act, 1956/Companies Act, 2013 having CIN with its registered office at OR, a partnership firm established under the laws of India, having its principal place of business at , represented by its partners and (hereinafter called the "Customer" which expression shall include its assignees).

The Company and the Customer shall hereinafter be individually referred to as a " Party" and collectively as the "Parties".

RECITALS:

(A) The Company is inter-alia engaged in the business of providing information technology solutions and products in the accounting sector. The Company has developed the Software ( defined below).

(B) The Customer is engaged in the business of .

(C) The Company has represented that the Software has the capability of providing the SAAS required by the Customer and based on such representation, the Customer wishes to avail the Services in relation to the Software.

(D) The Company and the Customer now wish to enter into this Agreement in order to set out the terms and conditions on which the Customer will avail the SAAS from the Company.

IT IS AGREED as follows:

1  Definitions and Interpretation

1.1  Definitions

Except to the extent expressly provided otherwise, in this Agreement:

1.1.1 "Account" means an account enabling a person to access and use the SAAS, including both administrator accounts and user accounts.

1.1.2 "Agreement" means this agreement including any Schedules, and any amendments to this Agreement from time to time.

1.1.3 "Applicable Law" means all applicable statutes, enactments, laws, ordinances, bye-laws, rules, regulations, guidelines, policies, notifications, notices, press-notes, and/or judgments, decrees, injunctions, writs or orders of any court, statutory or regulatory authority, tribunal, board or stock exchange in any jurisdiction as may be in force and effect during the subsistence of this Agreement as may be applicable to each of the Parties respectively.

1.1.4 "Business Day" means any weekday other than a bank or public holiday in India.

1.1.5 "Charges" means the following amounts:

(a) the amounts specified in Schedule 4 ( Payment Schedule);

(b) such amounts as may be agreed in writing by the Parties from time to time.

1.1.6 "Company Confidential Information" means any information disclosed by or on behalf of the Company to the Customer at any time before the termination of this Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure:

(i) was marked as "confidential"; or

(ii) should have been reasonably understood by the Customer to be confidential.

1.1.7 “Critical Fix” critical fix release involves an urgent need to address such issues as system stability and security vulnerabilities security vulnerability, system/application stability or other functional issue.

1.1.8 "Customer Confidential Information" means any information disclosed by or on behalf of the Customer to the Company at any time before the termination of this Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked as "confidential".

1.1.9 "Data" means all data, works and materials: uploaded to or stored on the Software by the Customer, transmitted by the Software at the instruction of the Customer, supplied by the Customer to the Company for uploading to, transmission by or storage on the Software, or generated by the Software as a result of the use of the SAAS by the Customer.

1.1.10 "Documentation" means the documentation for operating the SAAS (including documentation for requirement gathering and the user manual as well as basic marketing material) produced by the Company and delivered or made available by the Company to the Customer.

1.1.11 "Effective Date" shall mean the date on which the login credentials for the Account are provided to the Customer in accordance with clause 3.1.

1.1.12 "Execution Date" shall mean the date at which this Agreement is executed.

1.1.13 "Feature Depreciation” is a feature that appears in prior or existing versions of the SAAS Offering and is not recommended for continued use, is discontinued and/or is superseded by an alternative.

1.1.14 "Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus attack, power failure, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks, natural calamities, pandemics, epidemics and wars).

1.1.15 "Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or un-registrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs).

1.1.16 "Maintenance Services" mean the general maintenance of the Website and SAAS, and the application of Updates and Upgrades in accordance with Part A (Maintenance SLA) of Schedule 4 (Maintenance and Support SLA).

1.1.17 "Personal Data" shall mean sensitive personal data or information as defined under the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011.

1.1.18 "Release" means, in respect of an Update or Upgrade or Critical Fix, the release of that Update or Upgrade or Critical Fix (as the case may be) to the customers of Website generally (and "Released" shall be construed accordingly).

1.1.19 "Schedule" means any schedule attached to the main body of this Agreement.

1.1.20 "Services" mean any services that the Company provides to the Customer, or has an obligation to provide to the Customer, under this Agreement, including the Implementation, SAAS, Maintenance Services and Support Services.

1.1.21 "SAAS" means the software as a service, which will be made available by the Company to the Customer as a service via the internet in accordance with this Agreement.

1.1.22 "SAAS Specification" means the specification for the Website and the SAAS set out in Schedule 1 (SAAS Particulars) and in the Documentation.

1.1.23 "Support Services" mean support in relation to the use of, and the identification and resolution of errors in the SAAS in accordance with Part B (Support SLA) of Schedule 4 (Maintenance and Support SLA), but shall not include the provision of training or re-training services, which shall be provided on chargeable per-man-day basis.

1.1.24 "Supported Web Browser" means the current release from time to time of Google Chrome or any other web browser that the Company agrees in writing shall be supported.

1.1.25 "Software" means the accounting software named “Ankpal” and owned by the Company and provided to the Customer for use on subscription model as provided under this Agreement.

1.1.26 "Tax" (including with correlative meaning, the term "Taxes") means any and all taxes, assessments and other charges, duties, impositions and similar liabilities imposed by any Taxation Authority, including taxes based upon or measured by gross receipts, income, profits, services, sales and value added, withholding, payroll, excise and property taxes, together with all interest, penalties and additions imposed with respect to such amounts.

1.1.27 "Taxation Authority" means any taxing or other authority (whether within or outside India) competent to impose, administer or collect any Taxes.

1.1.28 "Term" means the term of this Agreement, commencing in accordance with clause 2 (Term) and ending in accordance with clause 2 (Term).

1.1.29 "Update" means a hotfix, patch or minor version update to the Software.

1.1.30 "Upgrade" means a major version upgrade of the Software.

1.1.31 "Website" means the website managed and owned by the Company and used by the Company to provide the SAAS, including the application and database software for the SAAS, the system and server software used to provide the SAAS, and the computer hardware on which that application, database, system and server software is installed.

1.2  Interpretation

In this Agreement, unless the context requires otherwise:

(a) words denoting persons include individuals/natural persons, bodies corporate and unincorporated associations of persons;

(b) a reference to a recital, clause or Schedule is a reference to a recital, clause or Schedule of or to this Agreement;

(c) the Schedules form part of this Agreement;

(d) the headings in this Agreement do not affect its interpretation;

(e) references to an individual/a natural person include his estate and personal representatives;

(f) the words including and include shall mean including without limitation and include without limitation, respectively;

(g) any reference importing a gender includes the other genders;

(h) any reference to INR is to Indian rupees;

(i) any notice, waiver or amendment shall be effective only when made in writing;

(j) any reference to writing includes emails, typing, printing, lithography and photography;

(k) any reference to a document is to that document as amended, varied or novated from time to time otherwise than in breach of this Agreement or that document;

(l) any reference to a company includes any company, corporation or other body corporate wheresoever incorporated; and

(m) any reference to a company or firm includes any company or firm in succession to all, or substantially all, of the business of that company or firm.

2 Term

2.1 This Agreement shall come into force upon the Execution Date, and shall continue in force until terminated in accordance with this Agreement.

3  Software as a Service (SAAS)

3.1 The Company shall create an Account for the Customer and shall provide to the Customer, login details for that Account on the Effective Date, which shall be not later than 7 days from the Execution Date.

3.2 The Company hereby grants to the Customer a right to use the SAAS, as updated from time to time, by means of a Supported Web Browser for the internal business purposes of the Customer in accordance with the Documentation, during the Term.

3.3 The right to use the SAAS by the the Customer under clause 3.2 is subject to the following limitations:

(a) the SAAS may only be used by the officers and employees of the Customer;

(b) the SAAS may only be used by the named users identified in Schedule 1 ( (SAAS Particulars), providing that the Customer may change, add or remove a designated named user in accordance with the procedure set out therein; and

(c) the SAAS must not be used at any point in time by more than the number of named users specified in Schedule 1 ( SAAS Particulars), providing that the Customer may add or remove named user in accordance with the procedure set out therein.

3.4 Except to the extent expressly permitted in this Agreement, the SAAS are subject to the following prohibitions:

(a) the Customer must not sub-license its right to access and use the SAAS;

(b) the Customer must not permit any unauthorised person to access or use the SAAS;

(c) the Customer must not use the SAAS to provide services to third parties;

(d) the Customer must not republish or redistribute any content or material from the SAAS; and

(e) the Customer must not make any alteration to the Website, except as permitted by the Documentation.

3.5 The Customer shall use reasonable endeavours, including reasonable security measures relating to administrator Account access details, to ensure that no unauthorised person may gain access to SAAS using an administrator Account.

3.6 The Company shall use reasonable endeavours to maintain the availability of the SAAS to the Customer at the gateway between the public internet and the network of the hosting services provider for the SAAS, and guarantees 98%availability, subject to clause 3.7 below.

3.7 For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement:

(a) a Force Majeure Event;

(b) a fault or failure of the internet or any public telecommunications network;

(c) a fault or failure of the Customer's computer systems or networks;

(d) any breach by the Customer of this Agreement;

(e) scheduled maintenance carried out in accordance with this Agreement; or

(f) due to Update.

3.8 The Customer must comply with Schedule 2( Acceptable Use Policy), and must ensure that all persons using the SAAS with the authority of the Customer or by means of an administrator Account comply with Schedule 2 (Acceptable Use Policy).

3.9The Customer must not use the SAAS in any way that causes, or may cause, damage to the SAAS or Website or impairment of the availability or accessibility of the SAAS.

3.10The Customer must not use the SAAS:

(a) in any way that is unlawful, illegal, fraudulent or harmful; or

(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

3.11 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Website or the Software, either during or after the Term.

3.12 The Company may suspend the provision of the SAAS, if any amount due to be paid by the Customer to the Customer under this Agreement is overdue by more than 15 (fifteen) days' from the date on which was amount was due to be payable.

3.13 The Customer acknowledges that the Software and the SAAS are not customisable. The Customer may provide feedback to the Company requesting for customization/additional features in the Software. The Company may, in its sole discretion, incorporate such customization/additional features in subsequent Updates or Upgrades.

3.14 The Company will make commercially reasonable efforts to post notices of any Feature Deprecation one quarter in advance and reserves the right to deprecate, modify, or remove any features from any of the Software without prior notice.

4 IMPLEMENTATION OF SOFTWARE

4.1 The Company shall install and implement the Software which shall be not later than 7 days from the Execution Date.

5  Maintenance AND SUPPORT Services

5.1 The Company shall provide the Maintenance Services and Support Services to the Customer during the Term in accordance with Schedule 3. ( Maintenance and Support SLA).

5.2 The Maintenance Services and Support Services shall be provided by the Company to the Customer off-site, i.e., on call or remotely.

5.3 The Company shall make available to the Customer a helpdesk in accordance with the provisions of this Agreement. The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Maintenance Services and/or Support Services; and the Customer must not use the helpdesk for any other purpose. The Company shall respond promptly to all requests for Maintenance Services and/or and Support Services made by the Customer through the helpdesk.

5.4 In the event the Customer requires the Company to provide any Maintenance Services and/or and Support Services (including training or re-training) on-site, i.e., at the premises of the Customer, the Customer shall be liable to pay Charges to the Company for the time spent by Company’ personnel performing such Maintenance Services and/or and Support Services.

5.5 The Company shall where practicable give to the Customer as per notification mentioned in maintenance and support SLA in Schedule 3 Business Days' prior written notice of scheduled Maintenance Services and/or and Support Services that are likely to affect the availability of the SAAS or are likely to have a material negative impact upon the SAAS, without prejudice to the Company’s other notice obligations under this Agreement.

5.6 The Company may suspend the provision of the Maintenance Services and/or Support Services if any amount due to be paid by the Customer to the Company under this Agreement is overdue by more than 15 (fifteen) days' from the date on which was amount was due to be payable.

6  Data

6.1 The Company shall have the right to use the Data to the extent reasonably required for the performance of the Company’ obligations under this Agreement, together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of the Company’s obligations and the exercise of rights of the Company under this Agreement.

6.2 The Company shall create a back-up copy of the Data at least daily, shall ensure that each such copy is sufficient to enable the Company to restore SAAS to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 7 (seven) days. The Company shall have the right to remove or destroy such back-up copies if they are more than 7 (seven) days old.

7  Intellectual property

7.1 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Company to the Customer, or from the Customer to the Company.

7.2 The Company represents that it has developed the Software and is the legal and absolute owner of the Software and/or SAAS and owns any and all Intellectual Property Rights in the Software and/or SAAS, free of any infringement on the Intellectual Property Rights or other rights of any third party.

8  Chargers

8.1 The Customer shall pay the Charges to the Company in accordance with this Agreement.

8.2 All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of any applicable Taxes, which will be added to those amounts and payable by the Customer to the Company.

8.3 The Company shall have the right to use any third party software for Implementation and Maintenance Services and/or Support Services during the Term of this Agreement. Further, in the event of an increase in the Subscription Charges due to any upgradation or API charges or change in policy for such third party software, such increased costs shall be borne by the Customer at actuals upon the Company providing a written evidence for the same.

8.4 The Company shall not vary any element of the Charges without the mutual consent of the Customer.

9  Payments

9.1 The Charges under this Agreement shall commence from the Effective Date. 

9.2 The Customer shall pay the Charges in advance.

9.3 The Customer must pay the Charges by [debit card, credit card, direct debit, standing instructions, bank transfer or cheque] (using such payment details as are notified by the Company to the Customer from time to time).

9.4 If the Customer does not pay any amount properly due to the Company under this Agreement, the Company may charge the Customer interest on the overdue amount at the rate of 18% per annum (which interest will accrue daily until the date of actual payment and be compounded at the end of each named calendar month).

10  COMPANY confidentiality obligations

10.1 The Company must:

(a) keep the Customer Confidential Information strictly confidential;

(b) not disclose the Customer Confidential Information to any person without the Customer's prior written consent, and then only under conditions of confidentiality approved in writing by the Customer;

(c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Company uses to protect Company Confidential Information of a similar nature, being at least a reasonable degree of care;

(d) act in good faith at all times in relation to the Customer Confidential Information; and

(e) not use any of the Customer Confidential Information for any purpose other than performance of its obligations under this Agreement (" Permitted Purpose").

10.2 Notwithstanding clause 10.1 above, the Company may disclose the Customer Confidential Information to Company officers, employees, professional advisers, insurers, agents and subcontractors who have a need to know for the Permitted Purpose of this Agreement and the Company certifies that such persons have previously agreed, either as a condition to employment or in order to obtain the Customer Confidential Information, to be bound by terms and conditions substantially similar to those as provided herein.

10.3 This clause 10 ( Company Confidentiality Obligations) imposes no obligations upon the Company with respect to Customer Confidential Information that:

(a) is known to the Company before disclosure under this Agreement and is not subject to any other obligation of confidentiality;

(b) is or becomes publicly known through no act or default of the Company; or

(c) is obtained by the Company from a third party in circumstances where the Company has no reason to believe that there has been a breach of an obligation of confidentiality.

10.4 The restrictions in this clause 10 ( Company Confidentiality Obligations) do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request. However, the Company agrees to provide the Customer with notice of any such requirement as is reasonably practicable prior to disclosing any information and to take all steps reasonably requested by the Customer to resist such disclosure or to seek confidential treatment of the Confidential Information in whole or in part.

10.5 The Company hereby acknowledges that damages may not be an adequate remedy for any breach of this clause 10 and the Customer will therefore be entitled to apply for injunctive relief from any court of competent jurisdiction to restrain any breach or threatened breach of this clause 10.

10.6 The provisions of this clause 10( Company Confidentiality Obligations) shall continue in force for a period of 1 (one) year following the termination of this Agreement, at the end of which period they will cease to have effect.

11 CUSTOMER'S CONFIDENTIALITY OBLIGATIONS

11.1The Customer must:

(a) keep the Company Confidential Information strictly confidential;

(b) not disclose the Company Confidential Information to any person without Company’s prior written consent, and then only under conditions of confidentiality approved in writing by the Company;

(c) use the same degree of care to protect the confidentiality of Company Confidential Information as the Customer uses to protect Customer Confidential Information of a similar nature, being at least a reasonable degree of care;

(d) act in good faith at all times in relation to the Company Confidential Information; and

(e) not use any of the Company Confidential Information for any purpose other than performance of its obligations under this Agreement (" Permitted Purpose").

11.2 This clause 11 ( Customer Confidentiality Obligations) imposes no obligations upon Customer with respect to Company Confidential Information that:

(a) is known to Customer before disclosure under this Agreement and is not subject to any other obligation of confidentiality;

(b) is or becomes publicly known through no act or default of Customer; or

(c) is obtained by Customer from a third party in circumstances where Customer has no reason to believe that there has been a breach of an obligation of confidentiality.

11.3The restrictions in this clause 11 ( Customer Confidentiality Obligations) do not apply to the extent that any Company Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of Customer on any recognised stock exchange.

11.4The provisions of this clause 11 ( Customer’s Confidentiality Obligations) shall continue in force for a period of 2 (two) years following the termination of this Agreement, at the end of which period they will cease to have effect.

14. RETURN OF CONFIDENTIAL INFORMATION

Immediately upon receiving the written request by either Party at any time, the other Party will return to such Party all of such Party’s Confidential Information and all documents or media containing any such Party’s Confidential Information and any and all copies or extracts thereof, save that where such Party’s Confidential Information is a form incapable of return or has been copied or transcribed into another document, it shall be destroyed or erased, as appropriate.

15. GENERAL DISCLOSURES

15.1 The Customer acknowledges and agrees that no representation or warranty, express or implied, is or will be made, and no responsibility or liability is or will be accepted by the Company, or by any of its respective directors, officers, employees, agents or advisers, as to, or in relation to, the accuracy of completeness of any of the Company Confidential Information made available to the Customer or its advisers; it is responsible for making its own evaluation of such Company Confidential Information.

15.2 The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.

16. NON-SOLICITATION

16.1 The Customer agrees that during the Term of this Agreement and for a 12 (twelve) month period following the termination of the Term of this Agreement for any reason, the Customer will not, without the prior written consent ofthe Company, directly or indirectly:

  • in any capacity (a) solicit or attempt to solicit from the Company, any person who is a director, officer, manager, principal, employee, agent or consultant of the Company or cause any such person to terminate their employment with the Company at any time; (b) hire or engage in any capacity any person who is or was a director, officer, manager, principal, employee, agent or consultant of the Company during the twelve months prior to the date of termination of the Customer's engagement; or (c) interfere or attempt to interfere with the Company relationship with any director, officer, manager, principal employee, agent or consultant of the Company in any capacity (a) canvas, solicit, divert, or take away (or attempt to canvas, solicit, divert or take away) any clients or prospective clients of the Company (b) provide Services for any clients or prospective clients of the Company; or (c) interfere with the Company relationship with any client or prospective client or counterparties (including, without limitation, any equipment vendors, brokers, banks, investment banks and other advisors with whom the Company contracts).

17. REPRESENTATIONS & Warranties

17.1 The Companywarrants to the Customer that it:

(a) has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;

(b)will comply with all applicable legal and regulatory requirements applying to the exercise of the Company’s rights and the fulfilment of the Company’s obligations under this Agreement;

(c)has or has had access to all necessary know-how, expertise and experience to perform its obligations under this Agreement; and

(d)At the Execution Date, there is no action or proceeding pending or, in so far as it knows or ought to know, threatened in writing against it before any court, administrative agency or other tribunal that: (i) could impact upon its power, right and authority to enter into this Agreement or to perform its obligations under the Agreement.

17.2 The Customer warrants to the Companythat it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.

17.3 At the Execution Date, the Companyrepresents and warrants that they are the legal owner of the Software, free of any infringement on the Intellectual Property rights or other rights of any third party.

18. Acknowledgements and warranty limitations

18.1 The Customer acknowledges that the Software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Companygives no warranty or representation that the Software or the SAAS will be wholly free from defects, errors and bugs.

18.2 The Customer acknowledges that the Software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Companygives no warranty or representation that the Software or the SAAS will be entirely secure.

18.3 The Customer acknowledges that the SAAS is designed to be compatible only with that software and those systems specified as compatible in the SAAS Specification; and the Companydoes not warrant or represent that the Software or the SAAS will be compatible with any other software or systems.

18.4 The Customer acknowledges that the Companywill not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the SAAS; and, except to the extent expressly provided otherwise in this Agreement, the Companydoes not warrant or represent that the Software or the SAAS or the use of the Software or the SAAS by the Customer will not give rise to any legal liability on the part of the Customer or any other person.

19.  INDEMNITY, Limitations and exclusions of liability

19.1 The following provisions of this Clause 19 set out provisions relating to indemnity and the total liability of the Companywith respect of any act, omission or breach of the Company’s obligations arising under or in connection with this Agreement.

19.2 The Company(“ Indemnifying Party”) hereby undertakes and agrees to defend, indemnify and hold harmless the Customer (“Indemnified Party”) from and against any losses, costs, damages, expenses, charges or claims or fees (including reasonable legal costs or fees), which the Indemnified Party might incur/suffer as a result of: (i) the wilful misconduct, negligence, misfeasance of the Indemnifying Party and its directors, officers employees in the provision of the SAAS hereunder; (ii) breach of any of the terms, conditions, declarations, representations, obligations, undertakings and warranties contained in this Agreement, on part of the Indemnifying Party or its directors, officers employees, agents and representatives; (iii) breach of any of the Confidential and Intellectual Property obligation under this Agreement; and (iv) against any threatened or actual third party claim against the Indemnified Party in which negligence, misfeasance wilful misconduct, breach of any of the terms, conditions, declarations, representations, obligations, undertakings and warranties of the Indemnifying Party (including its respective directors, officers and employees) is alleged. The indemnity provisions provided herein above shall be the sole monetary remedy available to the indemnified party.

19.3 Neither Party shall be liable to the other Party in respect of:

(a) any loss of profits or anticipated savings;

(b) any loss of revenue or income;

(c) any loss of use or production;

(d) any loss of business, contracts or opportunities;

(e) any special, indirect or consequential loss or damage.

19.6 The aggregate liability of the Companyto the Customer under this Agreement shall not exceed the Subscription Charges paid by the Customer to the Companyunder this Agreement in the immediately preceding 12 (twelve) months. The Customer agrees that refund of such Subscription Charges for the immediately preceding 12 (twelve) months shall be the sole and exclusive remedy available with the Customer under this Agreement, and shall be in lieu of all other claims that the Customer may have against the Company.

20. Force Majeure Event

20.1 If a Force Majeure Event gives rise to a failure or delay in either Party performing any obligation under this Agreement, that obligation will be suspended for the duration of the Force Majeure Event.

20.2 A Party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that Party performing any obligation under this Agreement, must:

(a) promptly notify the other; and

(b) inform the other of the period for which it is estimated that such failure or delay will continue.

20.3 A Party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

21.Termination

21.1 The Companyshall not terminate this Agreement until of expiry of 1 year from the Effective Date (" Lock-in Period"), provided, however, the Companyshall have the right to terminate within the Lock-In Period if the Customer has defaulted in payment of the Charges. After expiry of the Lock-in Period, the Companymay terminate this Agreement by giving to the other Party at least 30 (thirty) days' written notice of termination.

21.2 The Customer shall may terminate the Agreement by giving the Company a 30 days’ prior notice.

21.3 Either Party may terminate this Agreement immediately by giving written notice of termination to the other Party if:

(a) the other Party:

(i) commits a material breach of this Agreement, which remains uncured after 30 days written notice by such Party to cure the breach;

(ii) is dissolved;

(iii) ceases to conduct all (or substantially all) of its business;

(iv) is or becomes unable to pay its debts as they fall due;

(v) is or becomes insolvent or is declared insolvent; or

(vi) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or someone similar is appointed over any of the assets of the other Party;

(c) an order is made for the winding up of the other Party, or the other Party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other Party under this Agreement); or

(d) if that other Party is an individual:

(i) that other Party dies;

(ii) as a result of illness or incapacity, that other Party becomes incapable of managing his or her own affairs; or

(iii) that other Party is the subject of a bankruptcy petition or order.

22.Effects of termination

22.1 Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save the provisions of this Agreement which are intended to survive by nature.

22.2 Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either Party.

Without prejudice to the parties' other legal rights, within 30 (thirty) days following the termination of this Agreement for any reason, the Customer must pay to the Companyany undisputed Charges that may be due in respect of the SAAS provided to the Customer before the termination of this Agreement.

23. Notices

Any notice or communication pursuant to this Agreement shall be deemed to be duly given or made when it is in writing and has been delivered by hand, e-mail, first class registered mail or telex, addressed to the Party at the addresses set forth at the beginning of this Agreement (which may be updated from time to time by a Party giving written notice of the update to the other Party), or to such other address as provided to the other Party. The Parties also recognise e-mail with affirmative delivery confirmation as a valid notice of communication.

24. Subcontracting

The Company may subcontract any of its obligations under this Agreement.

25. Miscellaneous

25.1 Waivers and Remedies

25.1.1 No failure or delay by the Parties in exercising any right or remedy provided by the relevant Applicable Law under or pursuant to this Agreement shall impair such right or remedy or operate or be construed as a waiver or variation of it or preclude its exercise at any subsequent time and no single or partial exercise of any such right or remedy shall preclude any other or further exercise of it or the exercise of any other right or remedy.

25.1.2 The rights and remedies of the Parties under or pursuant to this Agreement are cumulative, may be exercised as often as such Party considers appropriate and are in addition to its rights and remedies under general law.

25.2 Assignment

The Customer will not without the prior written consent of the Company assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement. The Company is permitted to assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.

25.3 Governing Law and Jurisdiction

25.3.1 This Agreement shall be governed by and construed in accordance with the laws of India.

25.3.2 The courts of Ahmedabad shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.

25.4 Dispute Resolution

25.4.1 In the event of any dispute arising in connection with the subject matter or thing herein contained or the operation or construction thereof or any matter or thing in any way connected with this Agreement, including any question regarding its existence, interpretation, validity or termination, the Parties shall first endeavour to reach an amicable settlement through mutual consultations and negotiations. If the Parties are unable to reach an amicable settlement within 30 (thirty) Business Days from the date on which the dispute arose (except as to any matter for which express provisions are made in this agreement), either Parties may make a reference to arbitration in accordance with clause 25.4.2 below.

25.4.2 In the absence of any settlement of disputes under clause 25.4.1 above, any and all disputes or differences arising out of or in connection with this agreement or its performance including any dispute regarding the existence, validity or termination, shall be exclusively and finally settled by arbitration under the provisions of Indian Arbitration and Conciliation Act, 1996.

25.4.3 The arbitration proceedings shall be conducted in English.

25.4.4 The seat, or legal place, of the arbitration shall be Ahmedabad, India.

25.6 Severability

If any provision of this Agreement is found by any court of competent jurisdiction to be invalid or unenforceable, the invalidity of such provision shall not affect the other provisions of this Agreement, and all provisions not affected by such invalidity shall remain in full force and effect.

25.7 Counterparts

The Parties may execute this Agreement in multiple counterparts, each of which constitutes an original as against the Party that signed it, and all of which together constitute one agreement. The signatures of all Parties need not appear on the same counterpart. The delivery of signed counterparts by facsimile or email transmission that includes a copy of the sending Party’s signature(s) is as effective as signing and delivering the counterpart in person.

25.8 Non-Partnership

25.8.1 Nothing in this Agreement shall be deemed to constitute a partnership between the parties or constitute either Party the agent of the other for any purpose.

25.8.2 This Agreement is made for the benefit of the Parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the Parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.

25.9 Entire Agreement

This Agreement sets out the entire agreement and understanding between the Parties with respect to the subject matter hereof. This Agreement supersedes all previous letters of intent, prior discussions and correspondence exchanged between any of the Parties in connection with the transactions referred to herein, all of which shall not have any further force or effect.

25.10 Modification

No variation, amendment, modification or waiver of any provision of this Agreement shall in any event be of any force or effect unless the same shall be agreed in writing between the Parties by persons possessing specific authority to do so and then such variation, modification, waiver or consent shall be effective only on the specific instance and for the purpose and to the extent for which made or given.

IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their respective duly authorised officers as of the date and place first above written.

SIGNED by Ankpal Techsoft Private Limited )
for [l] )
) ……………………………………………………………..
SIGNED by [l] )
for [l] )
) ……………………………………………………………..

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Schedule 1

Software as a Service (SAAS) particulars

  • 1.Specification of Software as a Service (SAAS)

[to be inserted]

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Schedule 2

ACCEPTABLE USE POLICY

( refer clause 3.8)

  • 1. Policy
  • 1.1 This acceptable use policy (the "Policy") sets out the rules governing:
  • (a) the use of the SAAS; and
  • (b) the transmission, storage and processing of content by you, or by any person on your behalf, using the SAAS ("Content").
  • 1.2 References in this Policy to "you" are to any customer for the SAAS and any individual user of the SAAS (and "your" should be construed accordingly); and references in this Policy to "us" are to [identify provider] (and "we" and "our" should be construed accordingly).
  • 1.3 By using the SAAS, you agree to the rules set out in this Policy.
  • 1.4 We will ask for your express agreement to the terms of this Policy before you upload or submit any Content or otherwise use the SAAS).
  • 1.5 You must be at least 18 (eighteen) years of age to use the SAAS; and by using the SAAS, you warrant and represent to us that you are at least 18 (eighteen) years of age.
  • 2. General usage rules
  • 2.1 You must not use the SAAS in any way that causes, or may cause, damage to the SAAS or impairment of the availability or accessibility of the SAAS.
  • 2.2 You must not use the SAAS:
  • (a) in any way that is unlawful, illegal, fraudulent or harmful; or
  • (b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
  • 2.3 You must ensure that all Content complies with the provisions of this Policy.
  • 3. Unlawful Content
  • 3.1 Content must not be illegal or unlawful, must not infringe any person's legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any Applicable Law).
  • 3.2 Content, and the use of Content by us in any manner licensed or otherwise authorised by you, must not:
  • (a) be libellous or maliciously false;
  • (b) be obscene or indecent;
  • (c) infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;
  • (d) infringe any right of confidence, right of privacy or right under data protection legislation;
  • (e) constitute negligent advice or contain any negligent statement;
  • (f) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
  • (g) be in contempt of any court, or in breach of any court order;
  • (h) constitute a breach of racial or religious hatred or discrimination legislation;
  • (i) be blasphemous;
  • (j) constitute a breach of official secrets legislation; or
  • (k) constitute a breach of any contractual obligation owed to any person.
  • 3.3 You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.
  • 4. Graphic material
  • 4.1 Content must be appropriate for all persons who have access to or are likely to access the Content in question, and in particular for children over 12 (twelve) years of age.
  • 4.2 Content must not depict violence in an explicit, graphic or gratuitous manner.
  • 4.3 Content must not be pornographic or sexually explicit.
  • 5. Factual accuracy
  • 5.1 Content must not be untrue, false, inaccurate or misleading.
  • 5.2 Statements of fact contained in Content and relating to persons (legal or natural) must be true; and statements of opinion contained in Content and relating to persons (legal or natural) must be reasonable, be honestly held and indicate the basis of the opinion.
  • 6. Negligent advice
  • 6.1 Content must not consist of or contain any legal, financial, investment, taxation, accountancy, medical or other professional advice, and you must not use the SAAS to provide any legal, financial, investment, taxation, accountancy, medical or other professional advisory services.
  • 6.2 Content must not consist of or contain any advice, instructions or other information that may be acted upon and could, if acted upon, cause death, illness or personal injury, damage to property, or any other loss or damage.
  • 7. Etiquette
  • 7.1 Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behaviour on the internet.
  • 7.2 Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.
  • 7.3 Content must not be liable to cause annoyance, inconvenience or needless anxiety.
  • 7.4 You must not use SAAS to send any hostile communication or any communication intended to insult, including such communications directed at a particular person or group of people.
  • 7.5 You must not use the SAAS for the purpose of deliberately upsetting or offending others.
  • 7.6 You must not unnecessarily flood the SAAS with material relating to a particular subject or subject area, whether alone or in conjunction with others.
  • 8. Marketing and spam
  • 8.1 You must not without our written permission use the SAAS for any purpose relating to the marketing, advertising, promotion, sale or supply of any product, service or commercial offering.
  • 8.2 Content must not constitute or contain spam, and you must not use the SAAS to store or transmit spam - which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.
  • 8.3 You must not send any spam or other marketing communications to any person using any email address or other contact details made available through the SAAS or that you find using the SAAS.
  • 8.4 You must not use the SAAS to promote or operate any chain letters, ponzi schemes, pyramid schemes, matrix programs, "get rich quick" schemes or similar letters, schemes or programs.
  • 9. Gambling

You must not use the Services for any purpose relating to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity.

  • 10. Monitoring

You acknowledge that we may actively monitor the Content and the use of the SAAS.

  • 11. Data mining

You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the SAAS.

  • 12. Hyperlinks

You must not link to any material using or by means of the Services that would, if it were made available through the Services, breach the provisions of this Policy.

  • 13. Harmful software
  • 13.1 The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
  • 13.2 The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.

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SCHEDULE 3

MAINTENANCE AND SUPPORT SLA

( refer clause 5.1)

Part A MAINTENANCE SLA

  • This Part A (Maintenance SLA) of Schedule 3 (Maintenance and Support SLA) sets out the service levels applicable to the Maintenance Services.
  • 1. UPDATES
  • The Company may apply Updates to the Software from time to time without any prior intimation to the Customer provided it has no impact on services offered to customer.
  • 2. UPGRADES
  • 2.1 The Company may Upgrade the Software from time to time.
  • 2.2 The Company shall keep the Customer reasonably informed during the Term of its plans for the Release of Upgrades; however, except to the extent that the parties agree otherwise in writing, the Company shall have no obligation to Release Upgrades with features requested by the Customer or to take into account the opinions of the Customer in relation to plans for the Release of Upgrades.
  • 3. CRITICAL FIX
    • Release type Scope Frequency Notificaiton Customer Obligation
    Upgrades New application functionality that may include changes to architecture Typically thrice a year One month Test functionality and Client specific configurations
    Updates
    Application patches to address functional defects and may include minor feature enhancement     		As frequently as once a month Typically one month NA
    Critical fix Critical fixes needed for system stability and security As required Typically a few hours with a target of 48 hours when possible NA

    Part B

    SUPPORT SLA

    • This Part B (Support SLA) of Schedule 3 (Maintenance and Support SLA) sets out the service levels applicable to the Support Services.
    • 1.TOUCH POINTS
    • Following will be the touch points between the Parties for logging issues, resolving them and any other communication required in this regard:
    • (a) Access to [insert to link];
    • (b) Direct phone lines & cell-phone based support on Business Days during normal business hours;
    • (c) Program updates, fixes, security alerts, and critical patch updates;
    • (d) General maintenance releases, selected functionality releases, and updates; or
    • (e) Non-technical Customer service during normal business hours.
    • 2.The service request severity level is selected by the Customer and the Company and should be based on the following severity criteria:
    • 2.1 Severity - High

    The use of the SAAS has stopped or so severely impacted that the Customer cannot reasonably continue work. The Customerexperiences a complete loss of Service. The operation is mission critical to the business and the situation is an emergency. A Severity P1 service request has one or more of the following characteristics:

    • (a) Data corrupted;
    • (b) A critical documented function is not available;
    • (c) System hangs indefinitely, causing unacceptable or indefinite delays for resources or response; or
    • (d) System crashes, and crashes repeatedly after restart attempts.
    • 2.2 Severity - Medium

    The Customer experiences a severe loss of Service. Important features of the SAAS are unavailable with no acceptable workaround; however, operations can continue in a restricted fashion.

    • 2.3 Severity -Low

    The Customer experiences a minor loss of Service. The impact is an inconvenience, which may require a workaround to restore functionality.

    • 3. SERVICE REQUEST ESCALATION
    • 3.1 If the Customer believes in good faith that it has not received quality or timely assistance in response to a service request or that it urgently needs to communicate important support related business issues to the Company’s management, the Customer's technical contact may escalate the service request by contacting the Company and requesting that the service request be escalated. The escalation process should not be used if the Customer wishes to change the reported business impact of the issue and as otherwise indicated in the Company’s support.
    • 3.2 For service requests that are escalated, the Company support analyst will engage the Company service request escalation manager who will be responsible for managing the escalation by the Customer. The Company service request escalation manager will work with the Customer to develop an action plan and allocate the appropriate Company’s resources. If the issue underlying the service request continues to remain unresolved, the Customer may contact the Company service request escalation manager to review the service request and request that it be escalated to the next level within the Company as required. To facilitate the resolution of an escalated service request, the Customer is required to provide contacts within your organisation that are at the same level as that within the Company to which the service request has been escalated.
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