SOFTWARE AS A SERVICE AGREEMENT

This Software as a Service Agreement (“Agreement”) is a legal agreement between Bitwise Inc., a company registered in 1475 Woodfield Rd Suite 200, Schaumburg, Illinois 60173, US (the “Company”) or any of its Affiliates and the individual or entity that has subscribed for the Services (the “Subscriber”) offered by the Company through Microsoft Marketplace (as defined below).

This Agreement provides and captures important legal information about the license of the Company’s proprietary Software (as defined below) and the Subscriber’s usage, and access of the Software including technical support.

IMPORTANT: PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE SOFTWARE. BY INSTALLING, ACCESSING, USING, OR CLICKING “I ACCEPT” TO THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SOFTWARE.

1. DEFINITIONS

  • “Affiliate(s)” mean any corporation, association, or other entity that directly or indirectly owns, is owned by, or is under common ownership with either Party, respectively, either currently or during the validity of this Agreement.
  • “Agreement” means this license agreement, in addition to any and all annexures, schedules, attachments, exhibits and amendments to this Agreement.
  • “Deliverables” mean any deliveries, software, end-results or materials, arising out of this Agreement, the intellectual property rights of which, will be with the Subscriber.
  • “Documentation” means any accompanying documents, content, sample artifacts, data, user guides, online help, release notes, training materials as may be, provided by the Company to the Subscriber along with the Software.
  • “Enhancement(s)” mean any modification, update, upgrade or addition to the Software that, when made or added to the Software, and its modules currently being used by the Subscriber, provides minor functionality change or improvements to the Software but does not change overall utility, functional capability, or application, where such modifications or additions are generally made available by the Company to all its customers as a part of their Service to the Company’s Software.
  • “Error(s)” mean any verifiable and reproducible failure or inability of the Software to perform any material functions set forth in the Documentation due to any programming defect in the Software, when used by the Subscriber as specified under this Agreement or the Documentation by the Company. The term “Error”, will however, not include any failure or inability of the Software that (i) results from the misuse or improper use of the Software, (ii) does not materially affect the operation and use of the Software , (iii) results from any modification to the Software that is not the Company authorized change, (iv) results from any cause beyond reasonable control of the Company, including third party cloud environment, hardware, software, firmware, malicious code like virus, trojan or malware.
  • “Fee(s)” mean the subscription Fees paid or payable by the Subscriber to Microsoft for the Services as specified in the applicable Subscription Plan.
  • “Free Trial” means the usage-based, non-exclusive license to access and use the Software provided to the Subscriber for evaluation purposes, subject to usage quota limitations as notified to Subscriber.
  • “Microsoft” refers to Microsoft Corporation, which operates the Microsoft Marketplace.
  • “Microsoft Fabric” means Microsoft’s end-to-end analytics platform.
  • “Microsoft Marketplace” means the online marketplace available at https://azuremarketplace.microsoft.com/en-us/ operated by Microsoft Corporation where software applications, including the Software, is made available.
  • “Purpose” will mean the use of and access to the Software for the Subscriber’s internal business use, pursuant to the terms and conditions of this Agreement.
  • “Service Term” means the period during which the Subscriber has the right to access and use the Services, beginning on the date the Subscription Plan is activated and continuing until the earlier of: (a) the complete consumption of all purchased usage units; (b) the expiration date specified in the Subscription Plan, if any.
  • “Subscriber Content” means all data, information, materials, text, graphics, images, applications, code, and other content that is uploaded, posted, delivered, provided, or otherwise transmitted by or on behalf of Subscriber to the Services.
  • “Software” means Company’s proprietary tool known as “FulkrumCloud”.
  • “Services” means the internet accessible service, offered by the Company on a subscription basis and made available to the Subscriber along with the support and maintenance services for the Software.
  • “Subscription Plan” means the specific service selected by the Subscriber through Microsoft Marketplace that defines the scope of Services provided, including but not limited to: (a) the features and functionality of the Software made available to the Subscriber; (b) applicable usage quotas or limitations; (c) the Fee structure and payment terms.
  • “Source Platforms” means the third-party platforms from which the Software extracts data.
  • “User” means any individual, including Subscriber’s employees, contractors, suppliers, or other persons authorized by Subscriber to access and use the Software, Services.

2. GRANT OF LICENSE

  • Grant of License during Free Trial Term: The Company grants to the Subscriber, a usage-based, non-exclusive, non-transferable, revocable, non- sub-licensable and limited license to use and access the Software, at no Fees, for the Subscriber to evaluate the Services for the limited Purpose. The Free Trial is subject to usage quota limitations as provided through the Company’s designated request form. Upon exhaustion of the usage quota or termination of the Free Trial by either party, Subscriber must obtain the Services through Microsoft Marketplace to continue using the Software.
  • Grant of License during Service Term: Subject to its compliance with the terms of this Agreement and in consideration of the Fees for the Service Term, Company hereby grants Subscriber usage based, non-exclusive, non-transferable, revocable, non- sub-licensable and limited license to use and access the Software as per the Subscription Plan for the limited Purpose.
  • If Subscriber acquires the Software through the Microsoft Marketplace, Subscriber’s use of the Software is also subject to any applicable Microsoft Marketplace terms of service or other terms imposed by Microsoft with respect to the acquisition and use of applications through the Microsoft Marketplace.
  • The Software may include or incorporate third-party software, content, data, or other materials that are subject to separate license terms. Subscriber’s use of such third-party materials is subject to the applicable separate license terms, and nothing in this Agreement limits Subscriber’s obligations under, or grants Subscriber rights that supersede, the terms of any applicable third-party license.

3. RESTRICTIONS

  • The Subscriber should use and access the Software solely for the Purpose.
  • The Subscriber will be solely responsible for the acts and omissions of its Users and proper usage of the Service by its Users.
  • The Subscriber agrees that in the event, it receives any requests or enquiries for subscription of the Service or Software from its customers or any entity, it will promptly redirect the same to the Company and in the event, such customer or entity purchases/avails the subscription of the Service/ Software from the Company, the Subscriber will not be entitled to claim any additional benefits on account of such referral.
  • Not use the Software in a manner that would constitute reverse engineering of Source Platforms.
  • The Subscriber itself will not and will ensure that its User does not, directly or indirectly:
    • copy, modify, adapt, translate, reverse engineer, attempt to recover the source code, underlying structures, algorithms, decompile, disassemble, alter, reproduce or otherwise make any changes to the Software or the Services or create any derivative works thereof,
    • use the Software or the Services in any manner to provide time-sharing, benchmarking or other computer services to third parties, except as expressly provided herein,
    • use Services, or allow the transfer, transmission, export, or re-export of the Services or Documentation or portion thereof, in violation of any applicable laws or regulations,
    • allow the Services to be used for applications/instances, in excess of the License purchased by the Subscriber,
    • use the Services to develop any competing or similar product,
    • use any of the Software’s ’s components, add-ons, files, modules, externals, contents, including associated license material, separately from the Software ,
    • use the Services with any unsupported software or hardware in any manner not recommended by the Company (as described in the applicable Documentation provided by the Company),
    • make any changes to the Software at any time,
    • should not move the Software from one server to another without prior written permission of the Company.
  • The Subscriber will have no rights over the Software. All rights not specifically and unequivocally granted to the Subscriber are reserved by the Company.

4. ENHANCEMENTS:

  • The Parties agree that the availability of some new Enhancements to or features of the Service may require the payment of additional Fees, and the Company will determine at its sole discretion whether access to any other such new Enhancements will require an additional fee.
  • The Subscriber acknowledges and agrees that any revisions, additions of features, or other changes to the Software shall only be undertaken by the Company. If the Subscriber intends to request any revisions, additions, or changes to the Software, the Subscriber must submit a formal written request to the Company detailing the proposed modifications or features. Upon receipt of such a request, the Parties shall engage in good faith discussions to agree on the scope, timeline, and associated commercial terms for the proposed changes. The Company reserves the exclusive right to determine the feasibility, design, and implementation of any requested modifications or features, subject to the mutually agreed-upon commercial terms. No modifications or enhancements shall be implemented unless explicitly agreed upon in writing by the Company.

5. TERM

  • Free Trial. The Free Trial is limited by usage quota. Upon request from a User via the form provided in the description of the offer (which will redirect to the Company’s website from Microsoft Marketplace), the Company will provide the User with the necessary steps to access a Free Trial. The Company reserves the right to refuse provisioning a Free Trial. Once the Free Trial ends (either through quota exhaustion or termination), the User must manually subscribe to the Subscription Plan through the Microsoft Marketplace.
  • Service Term. Each Subscription Plan shall remain active until the complete consumption of all purchased usage units, unless otherwise specified in the Subscription Plan or terminated as provided in this Agreement.
    To manage automatic renewals, Subscriber may access their Microsoft Marketplace subscription settings and turn off the “Auto-Renewal” option. It is Subscriber’s responsibility to manage their renewal preferences, as Company cannot directly modify these settings on Subscriber’s behalf.

6. THE SUBSCRIBER’S RESPONSIBILITIES

  • Account Management: Subscriber will be responsible for managing its account and updating the same from time to time and shall also be responsible for the creation of User logins. As a condition for using the Services, the Subscriber may be required to register with Company and enter requisite details such as email address, Azure tenant ID, Subscriber Name, Subscriber’s company Details. The Subscriber will ensure to provide accurate, complete, and updated registration information. Failure to do so will constitute a breach of this Agreement, which may result in immediate termination of the account. The Subscriber will be responsible for maintaining the confidentiality of account and password. 
  • User Management: Subscriber is responsible for all Users’ compliance with this Agreement. Subscriber shall ensure that all Users are bound by terms consistent with this Agreement and shall be liable for any User’s non-compliance.
  • Compliance of Law: The Subscriber will comply with and will ensure that the Users comply with, all applicable local, state, national and foreign laws, in connection with its use and access of the Services, international communications, and the transmission, storage of technical or personal data. The Subscriber acknowledges that the Company exercises no control over the content of the information transmitted by the Subscriber or the Users through the Software or the Services. 
  • Compliance Obligations: The Subscriber acknowledges and agrees that the deployment and operation of the Software, is contingent upon the Subscriber maintaining a valid and active license for Source Platforms. The Subscriber shall, at its own expense, ensure compliance with all licensing requirements, including but not limited to any applicable Fees, terms, or conditions associated with the use of Source Platforms. Failure to maintain a valid Source Platforms license shall constitute a material breach of this Agreement, and the Company reserves the right to suspend or terminate the Subscriber’s rights to use the Software until such time as the Subscriber rectifies the non-compliance. Subscriber acknowledges that the providers of Source Platforms may change their license terms, which may affect Subscriber’s ability to use the Software with Source Platforms. Company shall have no liability for any such changes, and it shall be Subscriber’s responsibility to ensure continued compliance with the license terms of the Source Platforms.
  • Unauthorized Use; False Information: The Subscriber will: (i) notify the Company immediately of any unauthorized use of any password or user id or any other known or suspected breach of security in relation to the Services, (ii) report to the Company immediately and use reasonable efforts to stop any unauthorized use of the Software and/or the Services, that is known or suspected by the Subscriber or any Users, and (iii) not provide false identity information to gain access to or use the Software and/or the Services.
  • Access: To access the Services, along with providing the log-in credentials by the Users, Subscriber will ensure that the Users abide by the terms of the End User License Agreement, at all times, while using the Services. The Subscriber will be solely responsible for the acts and omissions of the Users. The Company will not be liable for any loss of data or functionality, caused directly or indirectly by the Users. 
  • Subscriber Content. The Subscriber is solely responsible for collecting, entering and updating all the Subscriber Content uploaded on, accessed using, or processed through the Services, and for ensuring that the Subscriber Content does not (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or (ii) contain anything that is obscene, defamatory, harassing, offensive or malicious. Subscriber acknowledges and agrees that Company uses certain third-party tools for analytical purposes and may use Subscriber Content and track Subscriber’s usage of the Services for any purpose including but not limited to research, analytics, and to improve Services. 
  • Changes to Source Platform Terms. Subscriber acknowledges that use of the Software requires valid licenses for Source Platforms. Subscriber shall maintain all necessary licenses and comply with all terms and conditions of such licenses, including any exclusive customized contracts with Source Platforms of which Company may not be aware. Subscriber acknowledges that the providers of Source Platforms may change their license terms or impose additional restrictions, which may affect Subscriber ‘s ability to use the Software with such Source Platforms. Company shall have no liability for any such changes, and it shall be Subscriber ‘s responsibility to ensure continued compliance with the license terms of the Source Platforms. Company reserves the right to modify the Software to comply with changes to Source Platform Terms or to discontinue support for a Source Platform if necessary to comply with changes to Source Platform terms.

7. LIMITED WARRANTY

  • During an applicable Service Term, Company warrants that the Services will perform substantially in accordance with the applicable published specifications when used in accordance with this Agreement and the Documentation. Non-substantial variations of performance from the published specifications or other Documentation do not establish a warranty right. This limited warranty is void if failure of the Services has resulted from (i) installation, deployment, use, maintenance or support not in accordance with this Agreement or the Documentation, (ii) modification by Subscriber, an User, or a third party not authorized by Company, (iii) force majeure, or (iv) any material breach of this Agreement by Subscriber or a User (other than non-payment). In the event of Services warranty claim under this Section 7, Subscriber’s sole and exclusive remedy and Company’s entire obligation and liability shall be, at Company’s sole option, to either (i) provide a correction, update or upgrade of the Services, (ii) correct or replace the Services, or (iii) terminate Subscriber’s subscription for the impacted Services (by written notice). Any corrected, upgraded or updated version of Services will be warranted for the remainder of the applicable Service term. All warranty claims must be made to Company in writing within such Service term.
  • Company does not guarantee that the Software will be compatible with all versions or configurations of the Source Platforms and/or Microsoft Fabric or that the Software will continue to be compatible with Source Platforms and/or Microsoft Fabric following any updates or changes to Source Platforms and/or Microsoft Fabric. 

8. REPRESENTATION AND WARRANTY OF THE SUBSCRIBER

  • The Subscriber warrants to the Company that it has the legal right and authority to enter and perform its obligations under this Agreement.
  • The Subscriber acknowledges and agrees that by entering into this Agreement, the Subscriber has had recourse to its own skill and judgment to check the applicability of the Services and to validate if the Service is suitable for Subscriber intended use and has not relied on any representations made by the Company or any of its employees or agents.
  • The Subscriber will always, provide the Company the access to Subscriber’s infrastructure for allowing it to deploy, install, maintain and provide the Services as per this Agreement. The Company will not be liable for any claims, losses, demands, and costs suffered by Subscriber due to any issues associated with the Subscriber’s infrastructure.
  • The Subscriber represents and warrants that Software will not violate or infringe upon the rights of any third party, including any patent, copyright, trademark, privacy, publicity, or other personal or proprietary rights, breaches or conflicts with any obligation, such as a confidentiality obligation, or contains libellous, defamatory, or otherwise unlawful material.

9. FEES

  • The license to use and access the Software under this Agreement is provided to the Subscriber free of charge during the Free Trial.
  • The Subscriber will pay the Fees as per the Subscription Plan for Services purchased through Microsoft Marketplace, Subscriber shall pay all Fees directly to Microsoft in accordance with the applicable terms of Microsoft Marketplace. Microsoft will remit the appropriate portion of such Fees to the Company pursuant to terms agreed with Microsoft’s for pricing and payment with the Company. 
  • All Fees and charges under this Agreement will be exclusive of taxes and will be borne by Subscriber. 
  • The Subscriber agrees that Fees charged under as per the Subscription Plan are non-refundable.

10. SERVICE LEVEL AGREEMENT

The Service Level Agreement SLAs (“SLA(s)”) will be dependent on factors beyond the control of Company. Therefore, Company will not be liable for any failure to achieve the SLAs for the following reasons: (a) any scheduled maintenance, (b) events of Force Majeure in the Agreement, (c) malicious attacks on the Software, (d) issues associated with the Subscriber’s computing devices, local area networks or internet service provider connections, or (e) inability to deliver the Services because of acts or omissions of or any User, or (f) issues associated with the Subscriber’s cloud infrastructure. 

11. DISCLAIMER OF WARRANTY

THE SOFTWARE, AND THE SERVICES ARE PROVIDED “AS IS” WITHOUT ANY REPRESENTATIONS, CONDITIONS, WARRANTIES OR COVENANTS WHATSOEVER, INCLUDING WITHOUT LIMITATION, ANY EXPRESS, STATUTORY OR IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A  PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY OR ARISING OTHERWISE IN LAW OR EQUITY OR COVENANT, BASED ON A COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED AND EXCLUDED. COMPANY MAKES NO WARRANTY REGARDING THE ACCURACY COMPLETENESS, OR RELIABILITY OF ANY CONTENT OR INFORMATION PROVIDED THROUGH THE SERVICES. THE COMPANY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET THE SUBSCRIBER’S OR USERS’ REQUIREMENTS, THAT THE OPERATION OF ANY OF THE SOFTWARE WILL BE UNINTERRUPTED OR THE SERVICES WILL OPERATE IN COMBINATION WITH THE SUBSCRIBER’S OR USERS’ CONTENT OR SUBSCRIBER’S APPLICATION, OR SOURCE PLATFORMS OR MICROSOFT FABRIC OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY THE COMPANY. THE SUBSCRIBER ACKNOWLEDGES THAT THE COMPANY DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING, THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.

COMPANY MAKES NO WARRANTY REGARDING THE AVAILABILITY, COMPATIBILITY, OR PERFORMANCE OF ANY SOURCE PLATFORMS AND SHALL NOT BE LIABLE FOR THEIR ACTIONS OR OMISSIONS.
ANY CUSTOM CONFIGURATIONS, USER ROLES, OR DATA FLOWS IMPLEMENTED BY THE USER ARE DONE AT THE USER’S OWN RISK. COMPANY DISCLAIMS RESPONSIBILITY FOR MISCONFIGURATIONS, DATA LOSS, OR SECURITY VULNERABILITIES RESULTING FROM USER ACTIONS.

12. INTELLECTUAL PROPERTY RIGHTS

  • Any and all ownership rights to the Services, Software, Documentation, Enhancements, customizations and branding thereof, including intellectual property rights such as copyrights, trademarks, service marks and patents therein is the sole and exclusive property of the Company. This Agreement does not grant the Subscriber or any Users’, any rights, title and interest in and to Software, the Services, Documentation, its contents, Enhancements, customizations (if any) and branding thereof including the Company’s intellectual property rights. Any rights not expressly and unequivocally granted to the Subscriber or any Users are reserved. 
  • From time to time, the Subscriber may provide feedback, suggestions, requirements or recommendations (“Feedback”) regarding the Software, or the Services. The Subscriber hereby assigns to the Company, all right, title and interest to such Feedback and an exclusive right to create any developments based on such Feedback. 
  • In between the Company and the Subscriber, the Subscriber will retain title to and all ownership rights in the Subscriber Content. The Subscriber grants to the Company a worldwide, non-exclusive and non-transferable limited-term license to host, copy, transmit, analyse, process, display, store, configure, and perform the Subscriber Content, solely as necessary to provide the Services to the Subscriber or for the working of the Software.

13. CONFIDENTIALITY

  • “Confidential Information” means information disclosed by one Party to the other and which includes, without limitation the Software, Documentation, Enhancements, customizations, financial, business, technical and marketing information, business plans, methods, processes, inventions, techniques, designs, data, know-how, ideas, concepts, strategies, trade secrets, and the Services and such other information. Confidential Information does not include information which:  (a) is in the public domain without disclosure by the Party and without breach of any agreement or confidentiality obligation; (b) was known to the Party at the time such disclosure was made, or becomes known to the Party without breach of any confidentiality agreement; (c) is independently developed by either Party without violating any confidentiality obligations stated herein or access or use of the either Party’s Confidential Information, as evidenced by written records.
  • The receiving Party will use the Confidential Information only for the purpose, for which it is disclosed. Furthermore, the receiving Party will keep Confidential Information and data received from the disclosing Party, in strict confidence and will not disclose it to any third Parties, except to a limited group of receiving Party’s directors, officers, agents, authorized representatives on a need-to-know basis.
  • Upon request by the disclosing Party, the receiving Party will immediately return to the disclosing Party, all Confidential Information disclosed by the disclosing Party and all copies thereof. All such information will be and will remain the sole property of the disclosing Party.
  • The confidentiality obligations stated herein will survive for a period of five (5) years from the date of termination or expiration of this Agreement except with respect to Confidential Information of the disclosing Party that constitutes a trade secret under applicable law, in which case, such obligations of receiving Party will continue until such Confidential Information becomes publicly known or made generally available through no action or inaction of the Receiving Party.
  • The receiving Party agrees that any violation of the confidentiality obligations will cause irreparable injury to the disclosing Party, entitling disclosing Party to obtain injunctive relief in addition to all legal remedies.

14. DATA PRIVACY

In the event, either of the Parties processes personal data of the other Party, such Party agrees to ensure all processing of personal data shall be in compliance with all applicable data protection laws. To the extent the Company processes personal data, the Company shall process personal data only for the purposes of this Agreement and in accordance with the Company’s Privacy Policy available at ( https://www.bitwiseglobal.com/en-us/website-and-cookie-policy/ ).

15. INDEMNITY

The Subscriber indemnifies, holds harmless and defends the Company directors, officers, employees, representatives, and its Affiliates against any costs or damages arising out of or in connection with any claim relating to:

  • the Subscriber’s breach of or violation of applicable laws and regulations or, 
  • Subscriber’s use of the Software or the Services other than as permitted under this Agreement or, 
  • any act or omission of the User or,
  • any breach by the Subscriber of its confidentiality obligations or, 
  • breach by Subscriber of its responsibilities or any representations and warranties under this Agreement and
  • a third party claim made against the Company for infringement or misappropriation based upon following conduct of the Subscriber: (a) the Subscriber’s combination or use of the Software, or the Services with software, services, or products developed by the Subscriber or third parties; (b) the Subscriber Content infringe any patent, copyright or trademark, or misappropriates any trade secret or (c) third party claim made against the Company for accessing the personal information or any other data of the Users.

16. LIMITATION OF LIABILITY

NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR SPECIAL DAMAGES, HOWSOEVER CAUSED, IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. 

NOTWITHSTANDING THE FOREGOING, THE MAXIMUM AGGREGATE LIABILITY OF THE COMPANY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE)) HEREUNDER FOR ALL DAMAGES, UNDER OR IN CONNECTION WITH THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION, WILL BE LIMITED TO TOTAL AMOUNT OF FEES PAID BY THE SUBSCRIBER AS PER THE SUBSCRIPTION PLAN IN THE THREE (3) MONTHS PERIOD PRECEDING THE MOST RECENT INCIDENT GIVING RISE TO THE CLAIM(S). NO CLAIM AGAINST THE COMPANY MAY BE BROUGHT MORE THAN ONE (1) YEAR AFTER THE FACTS GIVING RISE TO SUCH CLAIM HAVE ARISEN. THE FOREGOING LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES IN THIS CLAUSE FORM AN ESSENTIAL BASIS OF THIS AGREEMENT AND WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY OR REMEDY HEREIN.

17. TERM AND TERMINATION

  • Termination for cause – Either Party may terminate this Agreement in the event that (i) the other Party is in default of any of its material obligations hereunder and such default is not remedied within sixty (60) days of receipt of written notice thereof, provided that the Company may terminate this Agreement within fifteen (15) days, in case it is relating to nonpayment of Fees by the Subscriber or (ii) immediately, if the other Party is adjudicated bankrupt or becomes insolvent, makes any assignment for the benefit of creditors, proceedings are instituted by the other Party seeking relief, reorganization or rearrangement under any laws relating to insolvency, bankruptcy or similar laws of any jurisdiction, a receiver, liquidator or trustee is appointed in respect of any property or assets of the other Party or an order is made for the liquidation, dissolution or winding up of the other Party. 
  • Consequences of termination – Upon the expiry of the Service Term or any termination of this Agreement:
    • the Subscriber’s right to use the Services will immediately cease and at the Company’s discretion, the Subscriber will return/ delete/ destroy any materials (including any copies of the Software and any Confidential Information), Documentation provided by the Company to the Subscriber.
    • the Subscriber will pay all the amounts due to the Company under this Agreement and/or the applicable Order till the effective date of termination within 5 days of the invoice date.

18. NON-SOLICITATION

Subscriber will not offer neither employ directly or otherwise, any Company’s resource, associated for, or with the assignment, during the Term of this Agreement and 1 year from the termination or expiration of this Agreement. The Subscriber will not, directly or indirectly, recruit former resources of the Company, without the prior written consent of Company, where former resources will mean a person who ceases to work for Company and a period of not less than six months has since elapsed. If any restriction set forth in the aforesaid Section is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or too broad in geographic area, it will be interpreted to extend only to the maximum period of time, range of activities or geographic area as to which it may be enforceable.

19. INTERPRETATION

This Agreement will in all events be construed as a whole, according to its fair meaning, and not strictly for or against a Party merely because that Party (or the Party’s legal representative) drafted the Agreement. The headings, titles, and captions contained in this Agreement are merely for reference and do not define, limit, extend, or describe the scope of this Agreement or any provision herein. Unless the context requires otherwise, (a) the gender (or lack of gender) of all words used in this Agreement includes the masculine, feminine, and neutral, and (b) the word “including” means “including, without limitation”.

20. FORCE MAJEURE

  • Except for the obligation of the Subscriber to pay the Fees, in any event or combination of events or circumstances beyond the control of a Party which cannot (a) by the exercise of reasonable diligence, or (b) despite the adoption of reasonable precaution and/or alternative measures be prevented, or caused to be prevented, and which materially and adversely affects a Party’s ability to perform obligations under this Agreement including but not limited to:
    • Acts of God i.e. fire, drought, flood, earthquake, and other disasters;
    • Epidemics, pandemics, explosions or accidents;
    • Demonetization and other government policy changes;
    • Quarantine situations, governmental orders, lockdowns, strikes or lockouts;
    • Any change in law; or
    • Any event or circumstances analogous to the foregoing (collectively “Force Majeure”).
  • The Parties will not hold each other liable for their non-performance of its obligations as set out in this Agreement. Either Party will have a right to suspend or terminate this Agreement in case such Force Majeure conditions persists for a period exceeding sixty (60) days. Nothing in this section will apply to the Subscriber’s payment obligation under this Agreement.  

21. SEVERABILITY

If any provision of this Agreement is determined to be invalid, illegal or unenforceable in any respect, including because of the duration thereof, the area covered thereby, or the types of activities restricted thereby, by a court of competent jurisdiction (a) the validity, legality or enforceability of the remaining provisions contained herein will not, in any way be affected or impaired thereby, and (b) the court of competent jurisdiction making such determination will have the power to reduce the duration and/or area of such provisions or types of activities restricted and/or to delete specific words or phrases and in its reduced form, such provision will then be enforceable. The Parties may, acting in good faith, adopt any and all actions required to cause such invalid, illegal and unenforceable provision to be validated and enforced, or, alternatively, to reach an agreement in relation to said null provision whereby each of the Party receives, as far as possible, substantially the same benefits and obligations based on valid provisions, provided that the Agreement is not enforced in a form that materially affects the commercial agreement between the Parties.

22. ASSIGNMENT AND DELEGATION

The Subscriber will not assign this Agreement. The Company may assign this Agreement in conjunction with the sale of substantial assets, divestiture, merger or amalgamation, or to its Affiliate, and may delegate or subcontract its duties. Any unauthorized assignment of this Agreement is void.

23. PUBLICITY

The Subscriber provides the Company the permission to use the Subscriber’s name or logo for promotional purposes or otherwise publicly announce or comment on this Agreement without prior written consent from the Subscriber, subject only to compliance by the Company of its confidentiality obligations hereunder. 

24. WAIVER

Failure to exercise, or any delay in exercising, any right or remedy provided under this Agreement will not constitute a waiver of that or any other right or remedy, nor will it preclude or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law will preclude or restrict the further exercise of that or any other right or remedy.

25. GOVERNING LAWS

This Agreement and all rights and obligations under this Agreement will, in all respects, be governed by and construed and enforced in accordance with the laws of Illinois and the courts of Illinois will have the exclusive jurisdiction to adjudicate any subject matter under this Agreement.

26. AUDIT

The Company will have the right to audit the Subscriber’s use of the Software and Services during business hours and upon five (05) days’ prior notice in order to verify that the Software, and the Services are being used in compliance with this Agreement. The Subscriber will use its best efforts to promptly correct any deficiencies related to its performance under this Agreement uncovered by any audit described in this Section. In the event that the Company identifies a discrepancy of at least five percent (5%) expressed as a percentage of total Fees for the Software or Services reviewed in any audit of any of the Subscriber’s records, in addition to any other payments or reimbursements required to be made by the Subscriber, pursuant to this Agreement, the Subscriber will promptly reimburse the Company, and pay for the full cost and expense of the audit (including actual costs and expenses).

27. NON-COMPETE

The Subscriber will not, during the Term of this Agreement and for a period of three (3) years after the termination or expiry of this Agreement, create any software, solutions or services thereof, where such platform, solution or services are the same or substantially similar to Software, Services.

28. ENTIRE AGREEMENT

This Agreement constitutes the entire agreement between the Parties and supersedes any prior understanding or representation of any kind preceding the date of this Agreement, and may not be amended, supplemented, varied or otherwise changed except in writing. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement. Each Party acknowledges that, in entering into this Agreement, it has not relied on and will have no right or remedy in respect of, any statement, representation, assurance or warranty, other than as expressly set out in this Agreement. The Company reserves the right to modify or update this Agreement at any time, in its sole discretion, continued use of the Software constitutes acceptance of the modified terms.

BY CLICKING “SUBSCRIBE” OR “I ACCEPT” IN THE MICROSOFT MARKETPLACE, OR BY ACCESSING OR USING THE SOFTWARE, SUBSCRIBER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD THIS AGREEMENT AND AGREES TO BE BOUND BY ITS TERMS.

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