THIS GENERAL TERMS AND CONDITIONS OF SUBSCRIPTION (the “Subscription Terms”) shall apply to the Parties of the Master Subscription Agreement, i.e., the Subscriber and the Company (as defined hereinbelow). The Company and the Subscriber shall, where the context so provides, hereinafter be individually referred to as a “Party” and collectively referred to as the “Parties”
1. DEFINITIONS
In this Subscription Terms, unless the context otherwise requires, the following words andexpressions bear the meanings assigned to them in their corresponding definition provisions andcognate expressions bear corresponding meanings. Where any words have not been defined in theseSubscription Terms, any definitions ascribed to such words in the Master Subscription Agreement shall prevail:
1.1. “Affiliate(s)” shall:
(i) in case of a Subject Person, other than a natural Person/ individual, mean any other Person(whether in India or elsewhere) which, directly or indirectly: (i) is Controlled (as definedhereinafter) by such Subject Person; (ii) Controls such Subject Person; or (iii) is under thecommon Control with such Subject Person; and
(ii) in case of a Subject Person who is an individual or natural Person, mean a Relative (asdefined in the Companies Act, 2013) of such Subject Person.
“Control” for the purposes of this definition, means the beneficial ownership, directly or indirectly,of more than 50% (fifty percent) of the voting rights of an entity, or the power of such Party todirect or influence the management or policies of such entity or person, directly or indirectly,whether through the ownership or voting of securities, by contract, by the right or power (whetheror not such right or power is actually exercised) to appoint or nominate the majority of thecomposition of the board of directors or the governing body thereof or otherwise and the terms “Controlling”, “Controlled”, “Controls” and/ or related cognate expressions shall have meaningscorrelative to the foregoing.
1.2. “Business Day” shall mean a day (excluding Saturdays and Sundays) on which banks in Bengaluruare open for normal banking business.
1.3. “Confidential Information” shall mean all information disclosed by a party (“Disclosing Party”)to the other party (“Receiving Party”), whether orally or in writing, that is designated asconfidential or that reasonably should be understood to be confidential given the nature of theinformation and the circumstances of disclosure. Confidential Information of the Subscriberincludes User Data (as defined hereinafter). Confidential Information of the Company includes theServices, and the provisions of the Subscription Agreement and these Subscription Terms.Confidential Information of each party includes business and marketing plans, technology andtechnical information relating to the Platform and the Services, product plans and designs, andbusiness processes disclosed by such Party. However, Confidential Information does not includeany information that: (i) is or becomes generally known to the public without breach of anyobligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure Page 2 of 15by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) isreceived from a third party without breach of any obligation owed to the Disclosing Party, or (iv)was independently developed by the Receiving Party.
1.4. “Company” shall have the meaning assigned to it in the Subscription Agreement.
1.5. “Intellectual Property Rights” shall mean and include, without limitation all right, title, andinterest in and to all: (a) Patent and all filed, pending, or potential applications for Patent; (b) tradesecret rights and equivalent rights arising under the Laws (as defined hereinafter) of India or anyother Law for time being in force; (c) copyrights, other literary or allied proprietary rights; (d)trademarks, symbols, logos and/or proprietary indicated under the Laws of India or any other lawfor time being in force; and (e) all technical information, designs, formulae, algorithms, procedures,methods, techniques, ideas, knowledge, experiences, research and development, data, databases,network protocols, software, application programming interfaces, improvements, programs, subroutines, tools, materials, specifications, processes, inventions (whether patentable or unpatentableand whether or not reduced to practice), apparatus, creations, works of authorship and other similarmaterials, and all recordings, graphs, drawings, technical documentation, reports, analyses, andother writings, and other tangible embodiments of the foregoing, in any form whether or notspecifically listed herein, and all related technology, pertaining to or in connection with thePlatform and the Services.
1.6. “Law” shall mean and include all statutes, enactments, acts of legislature or parliament, ordinances,rules, bye-laws, regulations, notifications, guidelines, policies, directions, directives and orders, requirement or other Governmental restrictions or any similar form of decision of, or determination by, or any interpretation, policy or administration, having the force of law of any of the foregoing,of any Government, statutory authority, tribunal, board, court having jurisdiction over the matterin question, whether in effect as of the execution/ effective date of the Subscription Agreement, or thereafter.
1.7. “Malicious Code” shall mean codes, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and trojan horses.
1.8. “Optional Services” or “Add-On Services” shall mean the additional services offered by the Company as ‘Optional Services’ on the Platform which the Subscriber and its Users shall have the option to subscribe to, as per the terms of the Subscription Agreement and these SubscriptionTerms.
1.9. “Partner(s)” shall mean entities engaged by the Company, whose products or services complement and are integrated with the Platform. However, Partners do not include any third-party service providers already identified and engaged by the Subscriber and whose products or services are proposed to be integrated with the Platform.
1.10. “Platform” shall mean the EdTech platform, and/ or include the specific modules and features accessible and offered to the Subscriber by the Company.
1.11. “Services” shall have the same meaning as defined in the Subscription Agreement.
1.12. “Subscriber” shall refer to the party availing the Services or using the Platform, and who is a signatory to the Subscription Agreement entered into with the Company.
1.13. “Subscription” shall have the same meaning as defined in the Subscription Agreement.
1.14. “Subscription Agreement” shall mean the Master Subscription Agreement signed by the Parties.
1.15. “Support Services” shall mean the services as further detailed in https://www.ken42.com/support-services.
1.16. “Update” shall mean a hotfix, patch or minor version update to the Platform, as the case may be.
1.17. “Upgrade” shall mean a major version upgrade of the Platform.
1.18. “User” shall mean:
(i) In relation to the Ken42 Platform shall mean an individual authorised by the Subscriber to access the Platform, and shall include owners, administrative staff, counsellors, students, and faculty as detailed in these Subscription Terms.
(ii) In relation to Kennovate shall mean an individual who is authorised by the Subscriber to access and use the platform and shall include owners, employees, start-ups, investors, etc. of the Subscriber (in the case of corporate incubators, innovation centres, funds); or owners, administrative staff, faculty, students, etc. of the Subscriber (in the case of academic incubators or innovation institutions), as detailed in these Subscription Terms.
1.19. “User Data” shall mean all such information, of any kind whatsoever: (a) gathered from the User(s)by the Subscriber; (b) provided by the Subscriber to the Company; (c) provided by the Subscriber/User(s) for Optional Services; and (d) collated by the Company during the tenure of theSubscription Agreement to facilitate offering the Platform and Services to the Subscriber.
2. THE LICENSE
2.1. Subscription
The Company hereby provides the Subscriber (including all the Subscribers’ Users) the Subscription to access and use the Platform, in accordance with the terms of the Subscription Agreement and these Subscription Terms. Further, the Subscription would enable the Subscriber and its Users, to access and use the Platform on multiple devices.
2.2. Sub-license
The Subscriber shall not grant any sub-license or provide access and use to the Platform, to any third party under any circumstance, without the prior written consent of the Company.
3. SERVICES
3.1. Optional Services
3.1.1. The Subscriber/ User shall have the right but not an obligation to subscribe to the discretionary Optional Services provided by the Company through the Platform, and the Company shall make available, through itself and/ or its Partners, the Optional Services to the Subscriber/ User during the entire Term of the Subscription.
3.1.2. Where the Subscriber/ User subscribes to the Optional Services, the fee for such Optional Services shall be paid by the Subscriber/ directly by the User, in addition to the Subscription Fees.
3.1.3. The Subscriber or User’s subscription and use of the Optional Services shall be subject to the acceptance by the Subscriber and/ or User of any applicable terms and conditions applicable to the use of such optional Services. The Parties further acknowledge that the Optional Services may, in addition to the ones provided directly by the Company, also include Optional Services which are provided by third-party service providers. The Parties agree that the use of such Optional Services Page 4 of 15(provided by third-party or Partners) shall be subject to the acceptance by the Subscriber/ User, of any applicable terms of use implemented by such third parties/ Partners providing such OptionalServices.
3.2. Support Services
4.1. The Company shall carry out the maintenance as required for the upkeep of the Platform during the Term of the Subscription.
4.2. The Company shall where practical and on a best effort basis, without prejudice to the Subscriber’sother notice obligations under the Subscription Agreement and these Subscription Terms, provide notice to the Subscriber for the following activities:• Scheduled maintenance activities – at least 1 (one) Business Day’s prior written notice of any scheduled maintenance activities that are likely to affect the availability of the Platform or are likely to have a material negative impact upon the Platform.• Upgrade – at least 1 (one) Business Day’s prior written notice of any planned Upgrade to the Platform, which may result in any interruption or outage of the Platform.• Update – at least 3 (three) Business Day’s prior written notice of any security Update to the Platform and at least 1 (one) Business Day’s prior written notice of the application of any non-security Update to the Platform (which is not automatic).
4.3. The Company shall have the right to suspend its maintenance activities if any amount under theSubscription Agreement is due to be paid by the Subscriber to the Company, and the Company has given to the Subscriber notice, following the amount becoming overdue, of its intention to suspend such maintenance activities on this basis.
5. PLATFORM ACCESS AND USERS
5.1. Administrative Users: During the configuration and set-up process for the Platform, theSubscriber shall identify an administrative username and password for the Subscriber’s account. Furthermore, it shall be the responsibility of the Users with administrative access to create user-id and password for the Users of the Subscriber.
5.2. Users: The Subscriber may allow such number of Users to use the Platform on its behalf, including owners, administrative staff, students, counsellors, faculty and alumni. It is hereby clarified that User subscriptions are for the designated Users and a username cannot be shared or used by morethan 1 (one) User. However, the User account linked to any User may be reassigned to be a new User replacing such former User who no longer requires ongoing use of the Platform, as may be agreed on a case to case between the Company and Subscriber. Such change in the details of the User shall be notified to the Company.
5.3. User Conditions to Use: As a condition to access and use the Platform, each User shall abide by the terms of the Subscription Agreement, these Subscription Terms, Privacy Policy and the Terms of Use and any other terms issued by the Company and any other terms and conditions as may have been agreed to between the Parties, applicable to the Platform and the Services. The Subscriber shall immediately notify the Company of any violation of the terms of any of the foregoing by any of its Users upon becoming aware of such violation and shall be held liable (in terms with theSubscription Agreement and these Subscription Terms) for any breach of the foregoing agreements by the User.
5.4. Account Responsibility: The Subscriber will be responsible for: (i) all uses of any account that the Subscriber has access to, whether or not the Subscriber has authorised the particular use or User, and regardless of the Subscriber’s knowledge of such use; and (ii) securing its account, passwords(including but not limited to administrative and User passwords) and files. The Company shall not be responsible for any losses, damages, costs, expenses or claims that result from stolen or lost passwords.
6. RESPONSIBILITIES AND OBLIGATIONS OF THE COMPANY
The Company hereby undertakes the following:
6.1. To make the Platform and Services available to the Subscriber, pursuant to the Subscription Agreement and these Subscription Terms;
6.2. The implementation for deployment of the Platform as communicated by the Company, subject to timely provision of User Data, and other required information by the Subscriber;
6.3. To test the Platform once deployed to ensure that it conforms to the quality and specifications asoutlined in the Subscription Agreement and these Subscription Terms;
6.4. To maintain appropriate safeguards for protection of the security, confidentiality and integrity of the User Data including, measures designed to prevent unauthorised access to or disclosure of UserData (other than by the Subscriber or Users). The Company does not have access to the Subscriber’sUser Data, unless explicitly authorised.
6.5. To use commercially reasonable efforts to make the Platform available 24 (twenty four) hours a day, 7 (seven) days a week, save and except: a) during a planned maintenance/ downtime (of which the Company shall provide advancewritten notice to the Subscriber); and b) for such Force Majeure event, when any unavailability is caused by circumstances beyond the Company’s reasonable control, including but not limited to, acts of God, epidemics, pandemics, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, impact of any Malicious Code, internet service provider failure or delay, network disruptions, server disruptions, computer hacking, unauthorised access to computer data or storage devices, computer crashes or any other circumstances affecting the services.
6.6. To take all reasonable actions, on a best effort basis, to promptly address and mitigate any outagesor attacks on the Platform. The Subscriber agrees and acknowledges that the Company shall in no event be liable for any non-availability or inability to use or access the Platform arising on accountof the online, web-based nature of the Platform, the outages or interruptions in the availability of the Platform due to reasons beyond the reasonable control of the Company, such as network disruptions, server disruptions, computer hacking, unauthorised access to computer data or storage devices, computer crashes or other events of Force Majeure (as defined hereinafter). Further, theSubscriber also acknowledges that although the Company takes all reasonable precautions to prevent malware, ransomware, destructive or corruptive code, DNS attacks, trojans, viruses and other such malicious attacks, an absolute guarantee against such attacks cannot be practically provided.
6.7. Partner/ Third Party Products, Services and Applications: The Company may make available Partner content, products or services or applications and provide integrations with existing third party applications used by the Subscriber. Any acquisition by the Subscriber or Users of such content or products or services, and any exchange of data between the Subscriber and Partner/third party is solely between the Subscriber or User and the concerned Partner/ third party. The Company shall not be responsible for any disclosure, modification or deletion of User Data resulting from access by such Partner/ third party application or its provider.
6.8. Further, with respect to integration with third party services and applications currently used by the Subscriber, the Platform may contain features designed to inter-operate with such third party applications. The Company cannot guarantee the continued availability of such Service features and may cease providing them without entitling the Subscriber to any refund, credit, or other compensation, if for example and without limitation, the provider of a third party application ceases to make such third party application available for interoperation with the corresponding Service features in a manner acceptable to the Company. Further, any feature of the third party application that in the Company’s judgment threatens the security, integrity or availability of the Company’s Platform and Services, shall result in immediate removal of such third party application from the Platform. However, the Company will use commercially reasonable efforts under the circumstances to provide the Subscriber with notice and an opportunity to the third party to remedy such violation or threat prior to any such removal.
7. RESPONSIBILITIES AND OBLIGATIONS OF THE SUBSCRIBER
The Subscriber hereby undertakes the following:
7.1. To be responsible for the accuracy, quality and legality of User Data, the means by which it is acquired, use of User Data with respect to the Platform and Services, and the inter-operation of any Partner or third party applications with which the User uses the Platform and Services;
7.2. When notifying a discrepancy or error pertaining to the Platform, the Subscriber shall (so far as it is reasonably possible) provide the Company with a documented example detailing such discrepancy or error, in a timely manner;
7.3. To not: (a) make any part of the Platform available to anyone other than itself and/ or Users; and(b) use Platform to store or transmit Malicious Code, infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
7.4. To use the Platform only for the Permitted Purpose and strictly comply with all applicable Laws, rules and regulations in its use of the Platform and at its sole responsibility ensure that all Users also use the Platform only and strictly for the Permitted Purpose.
7.5. Any use of the Platform in breach of the foregoing by the Subscriber or the User that in the Company’s judgment threatens the security, integrity or availability of the Company’s Platform and Services or is in breach or violation of any Law, rule or regulation, shall entitle the Company to suspend the Subscriber’s account without notice and/or terminate the Subscription Agreement forthwith.
7.6. Usage Restrictions: In addition to any other restrictions contained in the Subscription Agreement and these Subscription Terms, the Subscriber shall not: a) sell, resell, license, sub-license, distribute, make available, rent or lease the Platform, or include the Platform in a service bureau or outsourcing offering; b) interfere with or disrupt the integrity or performance of any Service or third-party data contained there in; c) attempt to gain unauthorised access to or permit direct or indirect access to or use of the Platform or any Services in a way that circumvents a contractual usage limit, or use any Services to access or use any of the Company’s Intellectual Property, except as permitted under the Subscription Agreement and these Subscription Terms; d) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof; e) frame or mirror any part of the Platform or any Service, other than framing on Subscriber's own intranets or otherwise for its own internal business purposes or as permitted in theSubscription Agreement and these Subscription Terms; and f) disassemble, reverse engineer, or decompile the Platform or Service or access it.
7.7. ensure that all payments due to the Company are made in time in accordance with the timelines and the agreed payment terms as mutually agreed.
7.8. The Subscriber shall grant the Company and its Partners, a limited-term license to host, copy, use, transmit, and display any third-party applications and program code created: (i) by the Subscriber; or (ii) for the Subscriber; or (iii) for use by the Subscriber, with the Platform, and User Data, each as appropriate for the Subscriber to provide and ensure proper operation of the Platform and associated systems in accordance with the Subscription Agreement and these Subscription Terms. If the Subscriber chooses to use a third-party application with the Platform, the Subscriber shall do so only with the prior approval of the Company. Upon any request being made in this regard, the Company may in its discretion grant the Company permission to allow the third-party application and its provider to access User Data and information about Subscriber’s usage of the third-party application as appropriate for the interoperation of that third-party application with the Platform. The Subscriber agrees that the Company shall in no event be liable for any technical or compatibility issues whatsoever that may arise out of such interoperation or attempted interoperation with third-party applications.
8. USER DATA AND PROTECTION
8.1. The Subscriber hereby grants to the Company the right to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the User Data to the extent reasonably required for the performance of the Company’s obligations and the exercise of the Company’s rights under the SubscriptionAgreement and these Subscription Terms. The Subscriber also grants to the Company the right to share the User Data to its hosting, connectivity and telecommunications service providers and Partners. Post the implementation of the Platform, the Company will not have further access to the Subscriber’s User Data, unless explicitly authorised.
8.2. The Subscriber warrants to the Company that the User Data when used by the Company in accordance with the Subscription Agreement and these Subscription Terms, will not infringe the intellectual property rights of any third-party.
8.3. The Company shall create a back-up copy of the User Data once every 1 (one) hour and shall ensure that each such copy is sufficient to enable the Company to restore the Services 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 30 (thirty) days.
8.4. Within the period of 15 (fifteen) Business Days following receipt of a written request from the Subscriber, the Company shall use all reasonable endeavours to restore to the Platform the UserData stored in any back-up copy created and stored by the Company in accordance with theseSubscription Terms. The Subscriber acknowledges that this process will overwrite the User Data stored on the Platform prior to the restoration.
8.5. With respect to User Data including any Personally Identifiable Information (“PII”) – Each Party agrees and accepts to collect, store, transfer, or otherwise disclose such User Data in accordance with the requirements of applicable law including but not limited to the Information Technology(Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules,2011, and other applicable privacy and information security laws. Without prejudice to anything contained herein above:
a. The Parties agree to use the User Data only for the purposes of, or in connection with, the Subscription Agreement and these Subscription Terms;
b. The Subscriber warrants to the Company that they have obtained the explicit written consent of the individual (or their parent/legal guardian for minors), to whom the User Data relates, for use, storage, transfer and processing of such User Data in the manner as contemplated by the Subscription Agreement, these Subscription Terms and in accordance with the applicable data protection laws;
c. Parties shall not use or process the User Data for any illegal or unlawful purpose whatsoever;
d. Any act or omission of either Party’s personnel shall be deemed to be the act or omission of such Party, for which the said Party will be liable in accordance with the terms of the Subscription Agreement and these Subscription Terms;
e. Each Party shall place technical and organizational security measures to protect User Data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of UserData over a network, and against all other unlawful forms of processing in accordance with the applicable data protection laws.
f. Individuals to whom User Data relates may have certain rights in respect of the same and each Party has an obligation to make provision for such individual to exercise their rights, the Parties agree to assist each other in fulfilling all their obligations in this regard;
g. Each Party further agrees that individuals to whom User Data relates may have rights to demand deletion of some or all of the User Data collected. If the Company receives a deletion request from an individual to whom User Data relates, it shall have the right to delete such User Data, upon notifying the Subscriber of the same;
and h. The Parties agree and acknowledge that User Data may be subject to examination by any federal, state or local governmental or quasi-governmental officials with regulatory authority and thereby agree to co-operate and assist each other in such examination.
In the event of any breach of this section by the Subscriber or any of its Users, the Subscriber shall indemnify the Company, in accordance with the provisions of these Subscription Terms.
8.6. All User Data pertaining to minors below the age of 18 (eighteen) years, as disclosed or collected for all purposes by the Subscriber shall be considered on an ‘as is’ basis, as if such information is provided with the consent of the parent/ legal guardian. If the Subscriber becomes aware that any personally identifiable information of persons less than 18 (eighteen) years of age has been collected without verified parental consent, then the Company (at the request of the Subscriber)will take the appropriate steps to delete any such information. However, the Subscriber shall consider it to be the responsibility of the legal guardian/ parents to monitor their children’s use of the Platform. Nevertheless, the Subscriber shall not collect, process and share any User Data from minor below 18 (eighteen) years of age without the prior approval of the parent/ legal guardian. Further, the Company does not seek or intend to seek or receive any User Data pertaining to minor that does not have prior approval of the parent/ legal guardian. Should the Company have reasons to believe that a minor has provided User Data without the prior consent of the parent/ legal guardian, the Subscriber shall be contacted immediately to ensure such User Data is removed from the Platform.
9. CHANGES TO PLATFORM
9.1. The Company may, in its sole discretion, make any changes to the Platform that it deems necessary or useful to: (i) maintain or enhance: (a) the quality or delivery of its Services to its customers; (b)the competitive strength of, or market for, its Platform or Services; or (c) such Platform’s cost efficiency or performance, or (ii) to comply with the applicable Law.
10. CONFIDENTIALITY OBLIGATIONS
10.1. The Parties by the nature of the Subscription Agreement and these Subscription Terms shall have access to each other’s Confidential Information. The Parties agree to maintain the confidentiality of the Confidential Information and to protect as a trade secret any portion of the other Party’sConfidential Information by using all reasonable efforts to prevent any unauthorised copying, use, distribution, installation or transfer of possession of such information.
10.2. The confidentiality obligation contained herein shall not prevent either Party from entering into similar agreements with third parties, provided that the restrictions hereunder are not violated.
10.3. Without the prior written consent of the other Party or except as otherwise provided in the Subscription Agreement and these Subscription Terms, the Parties shall not: (i) distribute or disclose to any other person any of the Confidential Information; or (ii) permit any other person to have access to the Confidential Information; or (iii) use the Confidential Information for any purpose other than in relation to the services under the Subscription Agreement and these Subscription Terms; or (iv) disclose to any other person the terms, conditions, status or other facts regarding the Subscription Agreement.
10.4. Each Party shall take reasonable measures to protect the Confidential Information of the other Party with equal sensitivity as it takes for its own information of a similar nature, which in no event shall be less than a reasonable degree of care and diligence. Each Party shall reproduce the other Party’s proprietary rights, notices on any such approved copies, in the same manner in which such notices were set forth in or on the original, such that, such Confidential Information is not modified, tampered or altered in any way.
10.5. The Company may disclose certain information with its Partners, in conjunction with the Platform and Services with respect to any function or bespoke services, as desired by the Company in relation to the Platform. Such Confidential information shall not have any independent use of the in formation passed on to them by the Company. Further, the Company shall provide the Partners with only the information that they need to perform a specific function under appropriate confidentiality obligations.
10.6. The Company shall have a right and not an obligation to utilise such data for internal analytics, that would help in improving and optimising the Platform, by gathering such information on usage, user behavior and demographic, collation of other statistics etc. as maybe required.
10.7. In the event, either of the Parties is required by Law under any judicial or governmental proceeding or otherwise to disclose any Confidential Information, the disclosing Party shall give the other Party a written notice of such request, so that the other Party may seek a protective order or appropriate remedy. If, in the absence of a protective order, the disclosing Party determines, upon the advice of an appropriate legal counsel, that it is required to disclose such Confidential Information, it may disclose such Confidential Information only to that extent it is compelled to do so and shall provide assistance in obtaining an order protecting the information from public disclosure. Further, in such case as well, the disclosing Party shall intimate the other Party of such disclosure in writing.
11. RELATIONSHIP BETWEEN THE PARTIES
11.1. Nothing herein contained shall be deemed or construed to create a partnership or joint venture or similar business relationship among the Parties. The duties and responsibilities of the Company shall be performed by the Company as an independent contractor and not as an agent of the Subscriber. The Company shall have full control of all of its acts, doings and proceedings relating to or requisite in connection with the discharge of its Services under the Subscription Agreement and these Subscription Terms.
11.2. Neither Party shall act as a legal representative of the other Party, and neither Party can assume or create any obligation, representation, warranty or guarantee, express or implied, on behalf of the other Party for any purpose whatsoever.
12. INTELLECTUAL PROPERTY RIGHTS
12.1. The Subscriber acknowledges that the copyright and all other Intellectual Property Rights in relation to the Platform and Services belong exclusively to the Company irrespective of the fact that the registration is already obtained or is in the process of being obtained and the Subscriber shall not do anything which might bring into question the Company’s ownership of those rights or their validity.
12.2. The Subscriber understands that neither the Subscription Agreement nor the performance of the obligations herein shall or be deemed by it to convey title or any ownership interest or rights in the Company’s intellectual property rights in the Platform or the Services and the Subscriber shall not infringe directly or indirectly or through any third party upon the Company’s intellectual proprietary rights in the Platform.
13. TERM AND TERMINATION
13.1. The term of the Subscription Agreement shall be as ascribed in the Subscription Agreement.
13.2. Either of the Parties shall be entitled to terminate the Subscription Agreement for any breach of its provisions by the other Party and upon termination shall have recourse to its rights as contained in the Subscription Agreement and these Subscription Terms, provided:a) the breach continues unabated for a period of 90 (ninety) Business Days (or such longer or extended period as may be given in writing by the non-defaulting Party);b) the Party in breach receives a written notice of the breach from the other Party at the expiration of the initial 90 (ninety) Business Days giving 7 (seven) Business Days’ notice of the intention to terminate the Subscription Agreement; and c) the defaulting Party fails to remedy the breach after the expiration of the period stipulated in the notice of intention to terminate. Provided that if either of the Parties refuse or fails in any material respect properly to perform its obligations under the Subscription Agreement and these Subscription Terms or violates any of the material terms or conditions of the Subscription Agreement and these Subscription Terms, such refusal, failure, or violation shall constitute a breach.
13.3. If voluntary or involuntary proceedings by or against a Party hereto are instituted for bankruptcy under any insolvency law, or a receiver or custodian is appointed for such party, or proceedings are instituted by or against such party for corporate reorganization or the dissolution of such Party, which proceedings, if involuntary, shall not have been dismissed within 60 (sixty) days after the date of filing, or if such Party makes an assignment for the benefit of creditors, or substantially all of the assets of such Party are seized or attached and not released within 60 (sixty) days thereafter, the other Party may immediately terminate the Subscription Agreement effective upon notice of such termination.
13.4. Consequence of Termination: Upon termination of the Subscription Agreement: (a) the Subscription granted to the Subscriber shall cease and the Subscriber’s access to the Platform shall terminate; (b) all Services to be provided by the Company and/ or its Partners, will promptly cease,(c) each of the Parties shall, within 90 (ninety) days, promptly return or destroy all ConfidentialInformation received from the other Party in connection with the Subscription Agreement, without retaining a copy or a duplicate thereof; and (d) the Subscriber shall, within 30 (thirty) days, honor all payables and make any accrued and unpaid payment to the Company as required pursuant to the terms of the Subscription Agreement and these Subscription Terms.
13.5. In the event of the termination or earlier expiry of the Subscription Agreement and/ or Term of the Subscription, upon receipt of a request by the Subscriber made within 30 (thirty) days from the effective date of termination or expiration, the Company shall make the User Data available to the Subscriber for export or download. After the expiry of the aforestated 30 (thirty) day period, the Company shall have no obligation to maintain or provide the User Data, and may thereafter delete or destroy all copies of the User Data, unless legally prohibited.
13.6. Survival: Notwithstanding anything contained in the Subscription Agreement and in theseSubscription Terms, the confidentiality obligations as per these Subscription Terms, shall remain in full force and effect even after the termination or expiry of the Subscription Agreement by efflux of time or otherwise. The Parties agree that all of its obligations undertaken herein shall remain in effect until the Confidential Information no longer qualifies as a trade secret or until the Disclosing Party sends the Receiving Party a written notice releasing the Receiving Party from the Subscription Agreement, whichever occurs first.
14. INDEMNIFICATION
14.1. Each Party (including their Affiliates, an “Indemnifying Party”) shall indemnify defend and hold harmless the other (including their Affiliates, an “Indemnified Party”) against all costs, claims, damages, expenses, fines, losses, liabilities and penalties including reasonable attorney's cost, expenses accruing, incurred or suffered by the Indemnified Party, directly or indirectly arising out of: (i) breach by the Indemnifying Party of any of the terms and conditions of the Subscription Agreement and these Subscription Terms; (ii) breach by the Indemnifying Party of any provision of applicable Law; and (iii) any negligence or willful misconduct on the part of the IndemnifyingParty.
14.2. The Subscriber hereby agrees to, indemnify, defend and hold harmless the Company from and against any and all costs, claims, damages, expenses (including reasonable attorney’s fees), fines, losses, liabilities, penalties, decrees, orders, suits, that may be incurred by the Company on account of any breach by the Subscriber of any applicable Laws, rules or regulation pertaining data privacy or protection including without limitation, the regulations pertaining to collection, storage and transfer of any sensitive or personal data or information. Without in any manner limiting the generality of the foregoing, the Subscriber shall particularly indemnify the Company from and against any consequences arising out of any breach by it of the provisions of the section on UserData and Protection (specifically, the Personally Identifiable Information).
14.3. In no event shall the aggregate liability of the Company, arising out of or related to the Subscription Agreement, exceed the total amount paid by the Subscriber hereunder for the Services during the Term or 12 (twelve) months immediately preceding the date of any such default, whichever is lower.
14.4. It is hereby clarified that any act or omission, breach by either Party’s personnel, representative, User (in case of Subscriber) shall be deemed to be the act or omission, breach of such Party, for which the said Party will be liable in accordance with the terms of the Subscription Agreement and these Subscription Terms.
14.5. In no event will either Party have any liability arising out of or related to the SubscriptionAgreement and these Subscription Terms, for any lost profits, revenues, goodwill, or indirect, special, incidental, consequential, cover, business interruption or punitive damages, whether an action is in contract or tort and regardless of the theory of liability, even if a Party has been advised of the possibility of such damages.
15. SUCCESSORS AND ASSIGNS; ASSIGNMENT
15.1. Except as otherwise expressly limited or provided for herein, the provisions of the SubscriptionAgreement and these Subscription Terms, shall inure to the benefit of, and be binding upon, the successors, permitted assigns, heirs, executors, and administrators of the Parties. None of the rights, privileges, or obligations set forth in, arising under, or created by the Subscription Agreement and these Subscription Terms, may be assigned or transferred to a third party without the prior consent in writing of each Party to the Subscription Agreement.
16. FORCE MAJEURE
16.1. Neither Party shall be liable for any delay or failure to perform its obligations under theSubscription Agreement and these Subscription Terms, to the extent that such delay or failure is caused due to any fire, flood, storm, earthquake, and other natural calamities, plague, pandemic, epidemic, pestilence, quarantine, acts of god, act of state, war, civil commotion, or any other circumstances beyond the reasonable control of the affected Party (except the Subscriber’s liability to make timely payments hereunder). In any such event, the Party unable to meet its obligations shall promptly notify the other Party of the same in writing, providing all relevant details of the circumstances affecting its performance under the Subscription Agreement and these SubscriptionTerms and the expected duration of the event of Force Majeure. In such case, the time for performance of the Subscription Agreement and these Subscription Terms, shall be automatically extended by a reasonable period. The Parties agree that economic downturn shall not be considered an event of Force Majeure for the purposes of the Subscription Agreement and these Subscription Terms.
17. PUBLICITY
17.1. The Subscriber agrees that the Company may identify the Subscriber as a customer and use the Subscriber’s logo and trademark in the Company’s promotional materials.
18. WAIVER
18.1. No waiver by either Party of any default shall be deemed as a waiver of any prior subsequent default of the same or other provisions of the Subscription Agreement or these Subscription Terms.
19. SEVERABILITY
19.1. If any provision under the Subscription Agreement or these Subscription Terms is held invalid or unenforceable by a Court of competent jurisdiction or by any Law in force, such invalidity shall not affect the validity or operation of any other provisions of the Subscription Agreement and theseSubscription Terms and such invalid provision shall be deemed to be severed from the SubscriptionAgreement and these Subscription Terms.
20. CHANGES TO THE SUBSCRIPTION TERMS
20.1. The Platform and/ or Services and the Company’s operations may change from time to time. As a result, the Company may make revisions, changes and/ or amendments to these Subscription Terms. The Company reserves the right to update and/ or modify these Subscription Terms, at any time and from time to time without prior notice. The Subscriber is required to review these Subscription Terms periodically. The Subscriber’s continued use of the Platform after any changes or revisions to these Subscription Terms, shall indicate the Subscriber’s deemed agreement with the terms of such revised Subscription Terms.
21. GOVERNING LAW AND DISPUTE RESOLUTION
21.1. The Subscription Agreement and these Subscription Terms shall be governed by and construed according to the applicable Laws of India. Any dispute, controversy, claim or disagreement of any kind whatsoever between or among the Parties in connection with or arising out of the SubscriptionAgreement and/ or these Subscription Terms or the breach, termination or invalidity thereof shall be referred to and finally resolved by arbitration in accordance with the Arbitration and Conciliation Act, 1996, including any amendments or modifications thereto, by a sole arbitrator to be mutually appointed by the Parties within a period of 30 (thirty) days. The language of the arbitration shall be English, and the venue of arbitration shall be Bangalore. The arbitration award shall be final and binding upon the Parties.
21.2. Further, the parties hereto agree that the courts in Bangalore shall have exclusive jurisdiction over any and all disputes that may arise out of or in connection with the Subscription Agreement and these Subscription Terms.
