Terms of Service

Introduction

These “Software-as-a-Service” Terms and Conditions (“SaaS Terms”) apply between the Service Provider and the Customer and set forth the terms under which the Service Provider provides the Customer with access to certain applications as set forth on the Quote (“Applications”), together with user documentation that the Service Provider makes generally available in hard copy or electronic form to its customer base in conjunction with the licensing of such Applications (“Documentation”). The Applications and the Documentation are collectively referred to as the “Software”.

Service Provider and Customer hereby agree as follows.

1License grant & right of use

1.1License grant

Subject to all limitations and restrictions contained herein and the Quote, Service Provider grants Customer a term subscription, software-as-a- service, non-exclusive, non-transferable right to access and operate the object- code form of Applications (and use their Documentation) as hosted by Service Provider (“Use”) and solely to perform those functions described in the Documentation. For clarity, an “Application” means Service Provider's proprietary software specifically licensed to Customer pursuant to a Quote.

1.2Use

Customer has a limited right and license to Use the Application solely for its internal business purposes, to perform the functions described in the Documentation. Customer shall not allow any website that is not fully owned by Customer to frame, syndicate, distribute, replicate, or copy any portion of Customer's web site that provides direct or indirect access to the Software. Unless otherwise expressly permitted in the Quote and subject to Section 1.5, Customer shall not permit any subsidiaries, affiliated companies, or third parties to access the Software.

1.3License type

Unless otherwise specifically stated in the Quote, the type of license granted is per Staff User Account. Customer shall ensure that the number of active Staff User Accounts is equal to or less than the number subscribed for. Customer is responsible for ensuring that access to a Staff User Account is not shared — only one individual may authenticate to one Staff User Account. Hardware or software the Customer uses to pool connections, reroute information, or reduce the number of users that directly access or use the Software (sometimes referred to as “multiplexing” or “pooling”) does not reduce the number of licenses or active Staff User Accounts needed. Customer may designate different Staff User Accounts at any time without notice to Service Provider so long as the permitted number is not exceeded.

1.4Additional restrictions

In no event will Customer disassemble, decompile, or reverse- engineer the Application or Confidential Information (as defined herein), or permit others to do so. Disassembling, decompiling, and reverse-engineering include, without limitation: (i) converting the Application from machine- readable form into human-readable form; (ii) translating machine-dependent or machine-independent object code into source code or any approximation thereof; (iii) studying the Application's behaviour in response to a variety of inputs to recreate source code; or (iv) any other activity related to the Application that could be construed as reverse-engineering. Any results of such permitted activity (if any) will be deemed Confidential Information.

1.5Authorised users

Unless otherwise specifically provided in the Quote, “Authorised Users” consist of: (i) employees of Customer, and (ii) subject to Section 3 (Confidentiality), third-party contractors of Customer who do not compete with Service Provider (“Permitted Contractors”). Permitted Contractors may Use the Software only at Customer's place of business or in the presence of Customer personnel. Customer is fully liable for the acts and omissions of Permitted Contractors.

1.6Third-party software

The Services may contain third-party software that requires notices and/or additional terms. Such required notices and/or additional terms may be requested from Service Provider and are made a part of and incorporated by reference into these SaaS Terms. By accepting these SaaS Terms, Customer also accepts those additional terms.

2Ownership

2.1Reservation of rights

By signing the Quote, Customer irrevocably acknowledges that, subject to the licenses granted herein, Customer has no ownership interest in the Software or Service Provider materials provided to Customer. Service Provider will own all right, title, and interest in such Software and materials, subject to any limitations associated with intellectual-property rights of third parties. Service Provider reserves all rights not specifically granted herein.

2.2Marks & publicity

Service Provider and Customer trademarks, trade names, service marks, and logos, whether or not registered (“Marks”), are the sole property of the respective owning party. Service Provider may: (i) use the Customer's name and/or logo within product literature, press releases, social media, and other marketing materials; (ii) quote the Customer's statements in press releases; and/or (iii) include the Customer's name and/or logo in its list of customers for general promotional purposes. Service Provider shall comply with the Customer's trademark-use guidelines as communicated in writing. Neither party grants to the other any title, interest, or other right in any Marks except as provided in this Section.

3Confidentiality

3.1Definition

“Confidential Information” includes all information marked pursuant to this Section and disclosed by either party, before or after the Quote Term Date, and generally not publicly known, whether tangible or intangible. For clarity, “Confidential Information” does not include personally identifiable information. Obligations with respect to personally identifiable information (if any) are set forth in the Data Processing Agreement.

3.2Confidentiality of Software

All Confidential Information in tangible form will be marked as “Confidential” or the like, or if intangible (e.g., orally disclosed) will be designated as confidential at the time of disclosure and confirmed in writing within fourteen (14) days. Notwithstanding the foregoing, the following is deemed Service Provider Confidential Information with or without such marking: (i) the Software and other related materials furnished by Service Provider; (ii) oral and visual information relating to the Application; and (iii) these SaaS Terms.

3.3Exceptions

The obligations of the parties will not apply to any material or information that: (i) is or becomes part of the public domain through no act or omission by the receiving party; (ii) is independently developed without use of the disclosing party's Confidential Information; (iii) is rightfully obtained from a third party without obligation of confidentiality; or (iv) was already known prior to obtaining it from the disclosing party. Disclosure made in response to a valid court or government order is permitted, provided prompt notice is given to the disclosing party.

3.4Ownership of Confidential Information

Nothing in these SaaS Terms conveys any title or ownership in the Software or other Confidential Information to Customer. Neither party shall sell, lease, license, assign, transfer, or disclose the Confidential Information to any third party, nor copy or distribute it, except as expressly permitted. Each party shall take every reasonable precaution to prevent theft, unauthorised disclosure, copying, or distribution.

3.5Non-disclosure

Each party agrees to use all reasonable efforts to protect the other party's Confidential Information. Each party agrees to restrict access to Confidential Information to those employees or subcontractors who: (i) require access in the course of their duties; and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth in this Section.

3.6Injunctive relief

Each party acknowledges that any unauthorised disclosure or use of Confidential Information would cause the other party irreparable injury and that such party will be entitled to temporary, preliminary, and permanent injunctive relief in addition to any other remedies.

3.7Suggestions & improvements

Unless otherwise expressly agreed in writing, all suggestions, solutions, improvements, corrections, and other contributions provided by Customer regarding the Software will be owned by Service Provider, and Customer hereby agrees to assign any such rights to Service Provider.

4Warranty

4.1No malicious code

To the knowledge of Service Provider, the Application does not contain any malicious code, program, or other internal component (e.g., a computer virus, worm, or time-bomb) that could damage, destroy, or alter the Application or any data processed by it. Customer must: (i) notify Service Provider promptly in writing of any non-conformance; (ii) provide reasonable opportunity to remedy; and (iii) provide reasonable assistance in identifying and remedying the non-conformance.

4.2Authorised representative

Customer and Service Provider warrant that each has the right to enter into these SaaS Terms and that the Quotes executed hereunder will be executed by an authorised representative of each entity.

4.3Services warranty

Service Provider warrants that all services performed hereunder shall be performed in a workmanlike and professional manner.

4.4Disclaimer of warranties

4.5Modifications

Notwithstanding anything to the contrary in this Section, any and all warranties under these SaaS Terms are void if Customer has made changes to the Software, or has permitted any changes to be made other than by, or with the express written approval of, Service Provider.

5Indemnification

5.1Service Provider indemnity

Service Provider will defend at its expense any cause of action brought against Customer to the extent that such cause of action is based on a claim that the Application, as hosted by Service Provider, infringes an Indian patent, copyright, or trade secret of a third party. Service Provider will pay those costs and damages finally awarded against Customer pursuant to any such claim, or paid in settlement of any such claim if such settlement was approved in advance by Service Provider.

5.2No liability

Service Provider will have no liability for any claim of infringement based on: (i) Software modified by parties other than Service Provider where the infringement claim would not have occurred in the absence of such modification; (ii) Customer's use of the Software in conjunction with data where use with such data gave rise to the infringement claim; or (iii) Customer's use of the Software outside the permitted scope of these SaaS Terms.

5.3Remedies

Should the Software become, or in Service Provider's opinion be likely to become, the subject of a claim of infringement, Service Provider may, at its option: (i) obtain the right for Customer to continue using the Software; (ii) replace or modify the Software so it is no longer infringing; or (iii) if neither of the foregoing options is commercially reasonable, terminate access and use of the Software. Upon such termination, Service Provider will refund the subscription fees paid by Customer for the terminated license for the past twelve (12) months as Customer's sole remedy.

5.4Customer indemnity

Customer agrees to defend, indemnify, and hold Service Provider and its officers, directors, employees, consultants, and agents harmless from and against any and all damages, costs, liabilities, expenses (including reasonable attorneys' fees), and settlement amounts incurred in connection with any claim arising from or relating to Customer's: (i) breach of any of its obligations set forth in Section 8 (Customer Obligations); (ii) gross negligence or wilful misconduct; (iii) actual or alleged use of the Application in violation of these SaaS Terms or applicable law; (iv) any actual or alleged infringement of third-party intellectual-property rights arising from data provided to Service Provider; and/or (v) any violation by Customer or its Authorised Users of any third-party terms or policies.

5.5Indemnification procedures

Each indemnifying party's obligations are subject to the other party: (i) giving the indemnifying party prompt written notice of any such claim or the possibility thereof; (ii) giving the indemnifying party sole control over the defence and settlement of any such claim; and (iii) providing full cooperation in good faith in the defence of any such claim.

6Limitation of liability

6.1Liability cap

6.2Disclaimer of damages

6.3Survival

7Term & termination

7.1Subscription term

The term of these SaaS Terms will continue until the termination of the last Quote.

7.2Termination by Service Provider

These SaaS Terms and any license created hereunder may be terminated by Service Provider: (i) if Customer fails to make any payments due within fourteen (14) days of the due date; (ii) on fourteen (14) days' written notice to Customer if Customer fails to perform any other material obligation, and such failure is not cured within such fourteen (14)-day period; or (iii) if Customer files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern.

7.3Termination by Customer

These SaaS Terms may be terminated by Customer at any time without prior intimation to the Service Provider.

7.4Effect of termination

Upon termination of these SaaS Terms, Customer shall no longer access the Software and shall not circumvent any security mechanisms contained therein.

7.5Other remedies

Termination of SaaS Terms will not limit either party from pursuing other remedies available to it, including injunctive relief, nor will such termination relieve Customer's obligation to pay all fees that have accrued or are otherwise owed by Customer.

8Customer obligations

• 8.1 Customer agrees that no employees of Service Provider will be required to individually sign any agreement in order to perform any services hereunder, including access, security, facilities, or individual confidentiality agreements.
• 8.2 Customer agrees to comply with all applicable laws, regulations, and ordinances relating to these SaaS Terms. Customer shall ensure that each website for which the Application is engaged contains or is linked to a privacy policy that governs its data-collection and use practices.
• 8.3 Customer shall inform its Authorised Users before the beginning of use of the Software about the rights and obligations set forth in these SaaS Terms. Customer is liable for any violation of obligations by its Authorised Users or by other third parties within the Customer's control.
• 8.4 Customer shall keep login names and passwords required for use of the Application confidential, keep them in a safe place, and protect them against unauthorised access. Personal access data must be changed at regular intervals.
• 8.5 Before entering data and information, Customer shall check the same for viruses or other harmful components and use state-of-the-art anti-virus programs. Customer is responsible for the entry and maintenance of its data.
• 8.6 Service Provider has the right (but not the obligation) to suspend access to the Application or remove any data transmitted via the Application without liability: (i) if Service Provider reasonably believes that the Application is being used in violation of these SaaS Terms or applicable law; (ii) if requested by a law enforcement or government agency; or (iii) as otherwise specified in these SaaS Terms. Service Provider will use commercially reasonable efforts to give Customer at least twelve (12) hours' notice of a suspension unless a shorter notice is necessary to protect Service Provider or its customers.

9Miscellaneous

• 9.1 Assignment. Customer may not assign these SaaS Terms or otherwise transfer any license, whether by operation of law, change of control, or in any other manner, without the prior written consent of Service Provider. Any purported assignment in violation of this Section will be deemed void. The Service Provider may assign, in whole or in part, its rights, interests, and obligations hereunder without limitation.
• 9.2 Third parties. Service Provider will have the right to use third parties, including, but not limited to, employees of Service Provider's affiliates and subsidiaries (Subcontractors), in performance of its obligations and services hereunder.
• 9.3 Confidential data. Customer shall certify that all information provided to Service Provider has been reviewed and scrubbed so that confidential data and other sensitive information has been removed and the information provided is only relevant to bug reports on Service Provider products.
• 9.4 Compliance with laws. Both parties agree to comply with all applicable laws, regulations, and ordinances relating to such party's performance under these SaaS Terms.
• 9.5 Survival. The provisions set forth in Sections 2, 3, 4.4, 6, 7.2, 7.3, and 9 will survive termination or expiration of these SaaS Terms and any applicable license hereunder.
• 9.6 Notices. Any notice required under these SaaS Terms shall be given in writing and will be deemed effective upon delivery to the party to whom addressed. All notices shall be sent to the applicable address specified on the Quote or to such other address as the parties may designate in writing. Any notice of material breach will clearly define the breach including the specific contractual obligation that has been breached.
• 9.7 Force majeure. Service Provider will not be liable to Customer for any delay or failure to perform its obligations hereunder if such delay or failure arises from any cause beyond the reasonable control of Service Provider, including acts of God, floods, fires, loss of electricity or other utilities, or delays by Customer in providing required resources.
• 9.8 Entire agreement. These SaaS Terms, together with the documents listed in the applicable Quote, constitute the entire agreement between the parties and supersede all proposals and prior discussions. Any signed copy made by reliable means will be considered an original.
• 9.9 Modifications. These SaaS Terms cannot be altered, amended, or modified except by a writing signed by an authorised representative of each party.
• 9.10 Non-solicitation. During the term of these SaaS Terms and for a period of two (2) years thereafter, Customer agrees not to hire, solicit, or attempt to solicit the services of any employee or Subcontractor of Service Provider without the prior written consent of Service Provider. Violation of this provision will entitle Service Provider to liquidated damages against Customer equal to two hundred percent (200%) of the solicited person's gross annual compensation.
• 9.11 Headings. Headings are for reference purposes only, have no substantive effect, and will not enter into the interpretation hereof.
• 9.12 No waiver. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.
• 9.13 Severability. Each provision of these SaaS Terms is separately enforceable. If any provision becomes unenforceable or illegal, such provision will be reformed to the minimum extent necessary for these SaaS Terms to remain in effect as modified by such reformation.

9.14Governing law & venue

The laws of Delhi, India govern the interpretation of these SaaS Terms, regardless of conflict-of-laws principles. The United Nations Convention on Contracts for the International Sale of Goods (1980) is hereby excluded in its entirety from application. The parties agree that the central and state courts located in Delhi, India will have exclusive jurisdiction for any dispute arising under or relating to these SaaS Terms. Mediation will be held in Rohini Court, Rohini, New Delhi, India.

9.15Dispute resolution

Where there is a dispute, controversy, or claim arising under, out of, or relating to these SaaS Terms, the aggrieved party shall notify the other party in writing with as much detail as possible. Senior management representatives of each party shall meet in person or by telephone within five (5) business days of the written notification in order to reach an agreement about the alleged deficiency and the corrective action.

Any dispute that cannot be resolved shall be submitted to mediation in accordance with the then-current WIPO Mediation Rules. The language of mediation will be English. Customer agrees that no dispute resolution or litigation will be pursued until Service Provider has had an opportunity to cure any alleged breach, with sixty (60) days from Service Provider's receipt of Customer's detailed notice to complete the cure.

Contact us

Questions about these Terms? Reach out and we'll point you to the right person.

• Legal: legal@rakt.in
• Support: support@rakt.in