SaaS/SLA - Terms & Conditions

Standard terms and conditions for sale of Software and / or Software as a Service (SaaS) including Service Levels

1.Introduction

This document specifies the general terms and condition that will apply to the software sale and/or sale of Software as a Service (SaaS) and it defines the Service Level.

The specific terms shall be mutually discussed between the Company and the customer and agreed mutually as may be required for the specific conditions of that contract.

In absence of any specific agreement to contrary, the terms in this document shall prevail over the terms of the said contract.

2.Definitions

Company : Manas Agro Industries & Infrastructure Ltd., Nagpur. (CIN U15122MH2012PLC235369) a company registered under Companies Act 1956. Also termed as the Service provider.

Confidential Information : Confidential information means any information that is of confidential nature pertaining to SERVICE PROVIDER or the customer, as defined in clause “Confidentiality / Non-disclosure / non-compete”

Customer : Any person or organization that has purchased or intends to purchase any software or software as a service from the Company.

Document : Unless repugnant to the context, ‘Document’ means this Document, including all the Schedules, as may be amended from time to time.

Holiday : Any day that is not a working day is a holiday

Product : Any software and/or Software as a Service being provided by the Company, which a Customer has purchased or intends to Purchase.

Service Provider : Manas Agro Industries & Infrastructure Ltd., Nagpur. (CIN U15122MH2012PLC235369) a company registered under Companies Act 1956. Also termed as the Company.

Software : Same as “Product”

Working day : ‘Working Day’ means any weekday other than a bank or public holiday in India.

Working hours : ‘Working Hours’ means the hours between 10:00 to 18:30 hours Indian Standard Time on a Working Day.

Party / Parties : Party / Parties means the Service Provider and/or the customer as may be relevant with reference to the context where used.

Contract : The separate specific arrangement between the parties that defines the specific terms in relation to that arrangement with all the other terms being governed by this Document.

Disclosing Party : ‘Disclosing Party’ means the party (Service Provider or Customer) that discloses the confidential information to the other party.

Receiving Party : ‘Receiving Party’ means the party (Service Provider or Customer) that receives the confidential information from the other party.

3.Interpretation

Unless otherwise stated or unless the context otherwise requires, in this Document:
1.the headings used in this Document are included for convenience only and shall not be used in construing or interpreting this Document;
2.any reference to the plural shall include the singular and the vice-versa;
3.any reference to masculine gender shall include feminine or neutral gender;
4.the references to the Recitals, Articles, Clauses, and Schedules shall be references to the Recitals, Articles, Clauses and Schedules of this Document;
5.the references to statutes shall be references to the statutory enactments, rules and regulations in force (as modified, amended or re-enacted) and to any subordinate legislation made under such provisions;
6.reference in this Document to do or not to do anything which any Party is required to do or not to do shall include its acts, defaults and omission whether:
a.direct or indirect,
b.on its own account, or
c.for or through any other person, and
those which it permits or suffers to be done or not to be done by any other person;
7.the effect of all obligations affecting the Parties under this Document is cumulative and no obligation shall be limited or modified by any of the other obligations unless there is an express limitation or modification in this Document;
8.where a word or phrase is defined, other parts of text and grammatical forms of that word or phrase shall have corresponding meanings;
9.the words” including” and “inter alia” shall deemed to be followed by “without limitation” or “but not limited to”; and 10.a reference to a thing includes a part of that thing.

4.Purpose

The purpose of this Document is to specify the requirements of the service as defined herein with regards to:
1.Requirements of SaaS services that will be provisioned at various customer locations.
2.Agreed service targets
3.Criteria for target fulfillment evaluation
4.Roles and responsibilities of Service provider
5.Duration, Scope and Renewal of this Document
6.Supporting Processes; for Customer for raising a service request and for SERVICE PROVIDER to communicate limitations, exclusions and deviations

5.Contract renewal / termination

Contract Renewal shall be requested by the customer, at least 30 days prior to expiration date of the specific
1.agreement to that effect between the parties.
2.This contract may be terminated by either party by giving a minimum of 30 days’ notice for early termination to the other party.
3.Extension / early termination of contract must be agreed by both parties.

6.Effects of termination

Upon termination of the contract or expiration its Term, SERVICE PROVIDER shall immediately cease providing the Services and all usage rights granted under this Document and/or contract shall stand terminated.

If SERVICE PROVIDER terminates the Document due to a breach by Customer, then Customer shall immediately pay to SERVICE PROVIDER all amounts then due under the contract and to become due during the remaining term of the contract, but for such termination.

If Customer terminates this Document due to a breach by SERVICE PROVIDER, then SERVICE PROVIDER shall immediately repay to Customer all pre-paid amounts for any unperformed Services scheduled to be delivered after the termination date.

Upon termination of this Document and upon subsequent written request by the disclosing party, the receiving party of tangible Confidential Information shall immediately return such information or destroy such information and provide written certification of such destruction, provided that the receiving party may permit its legal counsel to retain one archival copy of such information in the event of a subsequent dispute between the parties.

7.System Configuration & Training

On confirmation of readiness of requisite hardware and networking infrastructure SERVICE PROVIDER will undertake the system configuration, new database set-up and configuration, data migration from existing legacy system, server setup, configuration and set-up on cloud, application testing as may be applicable for the contract and hand over the system within the time frame that may be mutually agreed between the parties.

The said time period does not include any aspects of third party integration. The time for such work and charges payable there for shall be decided mutually.

No on-site training is envisaged to be provided, however, on-site training can be evaluated on special request of the Customer for which extra cost may be payable as may be mutually decided.

The cost of the standard on-line training shall be included in the consideration. The duration of standard on-line training shall be specified in the contract.

8.Customization / Change request

Any changes / modification in the existing features shall come under CUSTOMIZATION and any new additional requirements or additional business process other than the existing features and functionalities shall be treated as CHANGE REQUEST.

Any customization / change request shall be analyzed by SERVICE PROVIDER, and based on the efforts required (Time and cost). Additional charges, if any and time estimate for implementation shall be communicated to the customer.

The implementation work for such customization / change request shall be undertaken after mutual agreement is reached.

9.Third Party Services / Sub-contracting

The obligations in of third party services / licensing / considerations payable shall rest solely with the party that has engaged such services, and both the parties shall indemnify each other from claims that may arise from such transactions.

SERVICE PROVIDER in entitled to sub-contract any of its obligations to a third party at its sole discretion. The customer is not entitled to raise any objection on such decisions taken by SERVICE PROVIDER.

10.Services to be extended to the customer

10.1 Key Performance Indicators (KPI) and Metrics

11.Consideration

The amount and time-line of consideration payable by the Customer along and applicability of price escalation shall be mutually agreed and specified in the Contract.

The cost of all Third party services including but not limited to Cloud Services, SMS Services and Video Conferencing services unless agreed to contrary shall be borne by the Customer.

Any escalation in the price of services provided by Third party shall be borne by the customer with immediate effect.

12.Payment Terms

1.The purchase consideration / Subscription/usage charges are payable as may be mutually agreed in the Contract. The charges once paid are not refundable under any circumstances.

2.The Customer shall maintain a mutually agreed amount as an advance with SERVICE PROVIDER Advance to be maintained on account of third party services availed by the customer.

3.The payment shall be made through electronic transfer to the bank account provided by the SERVICE PROVIDER

13.Locations

On SERVICE PROVIDER’s request, Customer shall provide a certificate stating that the product is being used pursuant to the terms of this Document and at the locations agreed mutually.

SERVICE PROVIDER shall be entitled to seek such certificate for a maximum of THREE times in a calendar year.

14.Confidentiality / Non-disclosure

Confidentiality

For purposes of this Document “Confidential Information” shall mean information including, but not limited to, all Customer data, computer programs, code, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial and product development plans, forecasts, strategies and information marked “Confidential”, or if disclosed verbally, is identified as confidential at the time of disclosure. In addition to the aforesaid, Confidential Information shall include third party software, if any, that may be provided to Customer under this Document, including any related source or object codes, technical data, data output of such software, documentation, or correspondence owned by the applicable licensor.

Confidential Information shall exclude information that: (i) was or becomes publicly known through no fault of the receiving Party; (ii) was rightfully known or becomes rightfully known to the receiving Party without confidential or proprietary restriction from a source other than the disclosing Party; (iii) is independently developed by the receiving Party without the participation of individuals who have had access to the Confidential Information; (iv) is approved by the disclosing Party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing Party; and (v) the receiving Party is legally compelled to disclose; provided, however, that prior to any such compelled disclosure, the receiving Party will (a) assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and (b) cooperate fully with the disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event that such protection against disclosure is not obtained, the receiving Party will be entitled to disclose the Confidential Information, but only as, and to the extent, necessary to legally comply with such compelled disclosure.

Nondisclosure

uring this the term of this Document and for a period of five (5) years thereafter, each Party agrees to maintain all Confidential Information in confidence to the same extent that it protects its own similar Confidential Information, but in no event using less than reasonable care, and to use such Confidential Information only as permitted under this Document; Each Party agrees to only disclose the other Party’s Confidential Information to its employees: (a) with a need to know to further permitted uses of such information; and (b) who are informed of the nondisclosure/ non-use obligations imposed by this Section. Both parties shall take steps each determines appropriate to implement and enforce such non-disclosure/non-use obligations.

Terms of the Contract Confidential.

Each of the Parties agrees not to disclose to any third party the terms of the specific Contract, including pricing, without the prior written consent of the other Party hereto, except to advisors, investors and others on a need-to-know basis under circumstances that reasonably ensure the confidentiality thereof, or to the extent required by law.

15.Customer Data

The Customer hereby authorizes SERVICE PROVIDER to copy, reproduce, store, distribute, publish, export, adapt, edit and translate to the extent reasonably required for the performance of SERVICE PROVIDER's obligations and to exercise its rights under this Document.

The Customer warrants SERVICE PROVIDER that 'Customer Data' when used by SERVICE PROVIDER in accordance with this Document shall not infringe the Intellectual Property Rights of any person and shall not breach the provisions of any law, statute or regulations in force in India.

The customer shall be responsible for maintaining a proper back-up of the customer data as may be desirable. SERVICE PROVIDER shall not be responsible for loss of Customer data for any reason whatsoever.

16.Intellectual Property Rights

Nothing in this Document shall operate to assign or transfer any Intellectual Property Rights from the SERVICE PROVIDER to the Customer, or from the Customer to SERVICE PROVIDER.

17.Warranties and indemnities

SERVICE PROVIDER warrants the product does not infringe any patent, trademarks, copyright or any proprietary rights of a third party or constitute a misuse or misappropriation of a trade secret. Customer shall notify SERVICE PROVIDER promptly in writing of any known action brought against Customer based on an allegation that Customer's use of any materials infringes any patent, trademark, copyright, or infringes any right of a third party, or constitutes misuse or misappropriation of a trade secret ("Infringement").

SERVICE PROVIDER warrants to the Customer that it:

- has the legal right and authority to enter into this Document and to perform its obligations under this Document

- shall comply with all applicable regulatory requirements for the fulfilment of SERVICE PROVIDER's obligations under this Document

- has access to all necessary know-how, expertise and experience to perform its obligations under this Document.

The Customer warrants SERVICE PROVIDER that it has the legal right and authority to enter into this Document and to perform its obligations under this Document.

The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Document, SERVICE PROVIDER gives no warranty or representation that the Services agreed to be provided will be wholly free from defects, errors and bugs.

The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Document, SERVICE PROVIDER gives no warranty or representation that the Services agreed to be provided will be entirely secure.

The Customer acknowledges that the Services are designed to be compatible only with that software and those systems specified by SERVICE PROVIDER; SERVICE PROVIDER does not warrant or represent compatibility of the said Services with any other software or systems.

18.Limitations of liability

Neither party, the Customer or SERVICE PROVIDER shall be liable for indirect incidental, special or consequential damages, including without limitation damages for lost business, profits data or use of any service incurred by either party or any third party in connection with this Document regardless of the nature of claim (including negligence) even if foreseeable or even when the other party has been advised of the possibility of such damages. Neither party’s aggregate liability for damages under this Document regardless of the nature of the claim (including negligence) shall exceed the amounts paid or payable under this Document during the 12 months preceding the date of claim. The aforesaid limitations shall not apply to the parties’ obligations (or any breach thereof) under “Warranties and indemnities”, or “Confidentiality and publicity” clauses.

19.Amendments / Modifications

This Document shall not be changed or amended unless such change or amendment is made in writing and signed by authorized representatives of both the Parties.

20.Force majeure

If any party is unable to deliver the performance as required under this Document as a consequence to an act of God; an act of public enemy, war, blockade, civil insurrection, riot, civil disturbance; any restraint or restriction imposed by law or by rule, regulation or other acts of governmental authorities, whether central, state or local not caused due to any default of any Party; any act or event which is unforeseeable, beyond the reasonable control of and have occurred without the fault or negligence of the Party relying thereon, then such event shall be treated as a FORCE MAJEURE event and the performance obligation as required under the Document shall be excused by the other party.

21.Assignment, waivers, severability, third party rights, entire Document

This Document nor any right or obligation hereunder or part hereof may be assigned by any Party without the prior written consent of the other party (any attempt to do so will be null and void ab-initio).

Failure to enforce any right or obligation by any Party with respect to any matter arising in connection with this Document shall not constitute a waiver as to that matter or any other matter. Any waiver by any Party of its rights with respect to a default under this Document or with respect to any other matters arising in connection with this Document must be in writing. Such waiver shall not be deemed a waiver with respect to a subsequent default or other matter.

If any of the terms of this Document is finally held or determined to be invalid, illegal or void, all other terms of the Document shall remain in effect; provided, however, that the Parties shall enter into negotiations concerning the terms affected by such decision for the purpose of achieving conformity with requirements of any Applicable Law and the intent of the Parties.

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

This Document and any other contemporaneous document relating to the subject matter executed simultaneously constitutes the entire Document between the Parties relating to the subject matter of this Document and shall supersede all other prior understandings or Documents, both written and oral, between the Parties relating to the subject matter of this Document.

22.Binding Effect

This Document and the covenants, terms and conditions set forth herein shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assignees.

23.Notices

All notices, requests, consent or other communication shall be addressed to the address as notified by a Party in writing to the other Party. All such notices, requests, consent or other communication, unless otherwise specified herein, shall be in writing and may be delivered by hand delivery duly acknowledged, courier service or by registered post. An advance copy may be sent by an e-mail.

24.Law and jurisdiction

This Document and the rights and duties of the Parties hereunder shall be governed by and construed, enforced and performed in accordance with the laws of India. The Courts in Nagpur shall have jurisdiction over any dispute between the Parties.

25.Alternative dispute resolution

Any dispute or difference arising at any time between the Parties hereto as to the interpretation or effect of the Document or any clause or matter herein contained or the rights or liabilities of the Parties hereto or otherwise howsoever in relation to the Document shall be first attempted to be resolved mutually.

If the Parties are unable to resolve the dispute or difference within sixty (60) days through conciliation then the Parties shall refer such dispute to arbitration in accordance with provisions of the Arbitration and Conciliation Act, 1996 or any statutory modification or enactment thereof for the time being in force. The arbitration shall be conducted by arbitral tribunal consisting of three arbitrators. SERVICE PROVIDER shall appoint one arbitrator and the Customer shall appoint one arbitrator and the third arbitrator shall be appointed by the two arbitrators nominated by the Parties.

Any arbitration under the Document shall be conducted in Nagpur, Maharashtra. India, in the English language. The Parties shall bear their respective costs of the arbitration unless the arbitral tribunal otherwise directs. Notwithstanding any dispute or arbitration, the Parties shall continue to perform their obligations.

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