inFeedo Terms and Conditions for SaaS Services
- These Terms and Conditions govern the licensing and subscription of the artificial intelligence enabled proprietary Software as a Service, being provided by way of a chat-bot, Amber, of the Company (as defined later) and the Customer (as stated in the Order Form) is subscribing to the SaaS Services (as defined later) being provided by the Company.
- In these Terms and Conditions: (i) capitalised terms defined by inclusion in quotations and/or parenthesis have the meanings so ascribed; and (ii) the following capitalised terms shall have the following meanings elucidated hereunder:
- “Applicable Law” means and includes all applicable statutes, enactments, acts of legislature or parliament, laws, ordinances, rules, bye-laws, regulations, notifications, guidelines, policies, directions, directives and orders of any governmental authority or self-regulatory agency, statutory authority, tribunal, board, court or recognised stock exchange of India/ United States of America (as applicable);
- “Company” shall for all the Order Forms signed in India shall mean “infeedo tech Private Ltd” (a company incorporated in India; and for all Order Forms signed with the Customers other than in India shall mean “inFeedo Tech Inc” (a Delware Corporation).
- “Confidential Information” shall mean and include, but is not restricted to all non-public information of either Party that is technical and commercial concerning business, books of record and account, data systems, software, services, any materials, trade secrets, know-how, formulae, processes, algorithms, ideas, strategies, inventions, data, network configurations, system architecture designs, flow charts, drawings, proprietary information, Personal Data, business and marketing plans, financial and operational information, including the Order Form, and all other non-public information, material or data relating to the current and/ or future business and operations, wages related information provided by the disclosing party (“Disclosing Party”) to the other Party (“Receiving Party”) pursuant to these Terms and Conditions, including the existence and the terms and conditions of These Terms and Conditions or any other information which may come to the knowledge of the Receiving Party. Confidential Information shall not include information which, as evidenced by records,: (a) is or becomes a part of the public domain through no breach of its confidentiality obligations by the Receiving Party; (b) was in the Receiving Party’s lawful possession prior to the disclosure and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party; (c) is lawfully disclosed to the Receiving Party by a third party, entitled to disclose such information, without restriction on disclosure; or (d) is independently developed by the Receiving Party or its representatives without reference to the Confidential Information.
- “Intellectual Property” means all trade names, trademarks, service marks, service names, trade dress, patents, copyrights, website platforms, logos, registered designs, domain names and utility models, inventions, Confidential Information, brand names, databases and database rights, know-how, and business/corporate names, and any similar rights situated in any country and the benefit of any of the foregoing (in each case whether registered or unregistered and including applications for the grant of any of the foregoing and the right to apply for any of the foregoing in any part of the world);
- “Order Form” means the Order Form used by the Customer to subscribe to the SaaS Services;
- “SaaS Services” refer to the internet accessible services identified via a statement of work that provides the use of Company’s Software (as defined hereinbelow) and which is hosted by the Company and made available to the Customer via cloud on a term use basis. The SaaS Services as provided by the Company include various modules (as defined in Section 5 below)
- “Software” means the HR Analytical Program being provided by the Company as per further specifications stated herein in these Terms and Conditions, as updated from time to time, including with new features etc, that are universally rolled out to various clients/end-customers of the Company.
- These Terms and Conditions shall be effective from the date of execution of the Order Form and be valid for the subscription period as stated in the Order Form. The SaaS Services shall automatically terminate following the Term of Order Form, unless the same is renewed.
- Grant of License and Saas Services: Subject to the terms and conditions as stated herein in these Terms and Conditions, the Company grants to Customer a non-exclusive, non-transferable license, to use the Software and access the SaaS Services solely for the internal use of the Customer as per the number of users stated in the Order Form.
- Modules: As a Customer, you may have opted for various modules provided as a SaaS Service offering. These modules include Tenure/ Custom Check-in’s/ Exit Modules. The modules may be subscribed to individually, or bundled in various combinations as per the details in the Order Form. The detailed specifications pertaining to the various modules along with the services levels that are provided by the Company can be found here [Modules and SLA’s].
- Consideration: In consideration of the Company agreeing to provide the SaaS Services to the Customer, the Customer hereby agrees to pay the Fee as stated in the Order Form. The Fee is excluding taxes (as applicable and as amended from time to time). The Fee shall be increased at the rate of 10% of the last paid Fee, at the time of the renewal. (A)Additional Payment: The Customer is provided a user-based pricing package, depending upon their requirement upon subscription. For all extra users that the Customer requests for addition beyond the plan that has been chosen by the Customer, the same shall be billed in the blocks of 50 (fifty) users in the next cycle on a pro-rated basis, and such reconciliation shall be undertaken on a quarterly basis and the invoice for such additional users shall be raised on quarterly basis. (B) Modification Charges: In addition to the Consideration provided in the Order Form in case any specific modifications are requested by the Customer, then the same shall be charged extra and upon confirmation by the Customer of such modification charges. All such modifications and the consequent charges/fee for the same shall be under a separate agreement to be executed between the parties hereto. For the purposes of these terms and conditions, “modification” shall mean any upgrades or any customization that the Customer may request the Company to do in the Software.
- Payment Terms: (i) Company shall raise the invoice based on the rates and active users as detailed in the Order Form and upon activation of respective users. The invoice shall be sent via e-mail and shall quote Customer’s details (such as address and other relevant information) (as applicable). The invoice to the Customer shall be sent on the assigned email address for this purpose and the hard copy shall be couriered only upon the request of the Customer. The Customer shall make the payment of the Fee within 30 (thirty) days of receipt of the invoice.
- Delay in Payment: In the event of delay of payment of the Fee beyond the 30 (thirty) day period (as stated hereinabove), the SaaS Services shall stand suspended with immediate effect and the same will only be restored upon payment of the Fee. Only 1 (one) letter for the delay in payment of the Fee shall be sent to the Customer (“Delay Letter”), thereafter, if the Customer does not make the payment of the Fee within 15 (fifteen) days of the receipt of the Delay Letter, then the Customer shall be liable to pay an interest of 1.5% per month on the Fee from the date of delay till such payment has been made by the Customer further, the Company shall be at the liberty to terminate the use of the Software, without any further notice and/or liability. Further, in the event, that the Customer has subscribed to the SaaS Services through “inFeedo Tech Private Ltd”, then, “inFeedo Tech Private Ltd” shall also have the right to take any action as prescribed under MSME Act, 1996 (as amended from time to time).
- Company Obligations and Warranties: (i) The Company shall ensure that its employees and representatives shall, in performing its obligations under these Terms and Conditions, comply in all respects with all relevant Applicable Laws, statutes, regulations and orders for the time being in force; (ii) The Company hereby undertakes and covenants to not sub-delegate or further entrust, devolve or assign its rights and responsibilities in favour of any other person or party, however, if required the same shall only be undertaken upon prior intimation to the Customer. Furthermore, in cases of sub-delegation or further entrustment or devolvement or assignment of its rights and liabilities in favour of any other person or party, the Company fully understands and agrees that it shall not be relieved from any of its obligations or liabilities which have accrued towards the Customer, hence the Company covenants to be liable for the acts or omissions of its employees, associates, partners, agents etc; (iii) The Company shall protect the data of the Customer that it acquires during the Term as stated herein and shall take proper measures including without limiting the technical and security measures to safeguard the same.
- Company warrants that during the Term: The Company shall perform SaaS Services materially in accordance with these Terms and Conditions and the terms of the Modules, with all due skill, care and diligence in a safe, competent and timely manner and in accordance with the Applicable Laws and requirements of the Terms and Conditions; (i) Company shall make commercially reasonable efforts to make the Service available to Customer as per industry standards; (ii) Company will employ then-current, industry-standard measures to test the Software to detect and remediate viruses, trojan horses, worms, logic bombs, or other harmful code or programs designed to negatively impact the operation or performance of the Software, and (iii) it has sufficient rights in the Software to grant to Customer a non-exclusive, non-transferable license to use the Software; (iv) the provision of the SaaS Services and the Software and the use thereof by the Customer in accordance with the Terms and Conditions shall not result in any infringement of third party intellectual property rights; (v) The service levels for the SaaS Services is set forth in [Modules and SLA’s] are Customer’s sole remedy for availability or quality of SaaS Services.
- Restriction and Responsibilities of the Customer: (i) The Customer herein understands and agrees that it will not directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Software, documentation or data related to the Software; modify, translate, or create derivative works based on the Software, and/or the SaaS Services or the Software; use the Software or the SaaS Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels; (ii) The Customer herein shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the SaaS Services, including, without limitation, modems, hardware, servers, operating systems, networking, web servers and the like (collectively, “Equipment”). The Customer shall also be responsible for maintaining the security of the Equipment, their account, passwords (including but not limited to administrative and user passwords) and files, and for all users of Customer’s account or the Equipment. Customer shall not provide/use false information to gain access to or use the SaaS Services; (iii) Customer shall be solely responsible for acts and omissions of its users (especially their respective users with administrative access) and the Company shall not be liable for any loss of data or functionality caused directly or indirectly by the Customer’s users. By taking on license the SaaS Services, the Customer represents and warrants that the authorised users of the Software (being its employees) have given requisite permission to the Customer for input and use of their personal data to use the SaaS Software; and (iv) Customer shall be solely responsible for the content that is input in the Software in order to utilise the SaaS Services; (v) The Customer shall ensure that in order to use the Software and the SaaS Services, the Customer may be required to obtain requisite permissions to use the personal information of its employees and the Customer covenants to obtain the requisite permission for the same without any obligations and/or liability of the Company; (vi) The Customer further covenants and warrants that the Company shall not be liable for servicing the Customer in the event of any system breakdowns at the Customer’s end, and any disruptions in the provision of the SaaS Services shall be the liability of the Customer. (vii) Non-solicitation: During the Term and 2 (two) years thereafter, the Customer shall not, either directly or indirectly, (a) engage with a Company Employee outside the scope of this Agreement, and for provision of the SaaS Services; or (b) induce a Company Employee to terminate their employment with the Company. "Company Employee" shall mean and include the employees or consultants of the Company, its holding company and affiliates.
- Indemnification and Limitation of Liability: (A) The Company shall be liable for and shall defend, indemnify and hold the Customer, its affiliates, their employees, directors, contractors (the“Customer Indemnified Parties”) harmless from and against any and all claims, liabilities, costs, damages and expenses (including court costs and legal fees) in connection with: (i) any claim made by any third party (including, but not limited to, any claim made by any governmental or statutory authority) against the Customer Indemnified Parties arising out of or in connection with the performance by the Company of its obligations under this Agreement; (ii) any infringement (whether actual or alleged) of any patent or other intellectual property right arising out of or in connection with the performance of this Agreement by the Company; (iii) Breach of confidentiality obligations; (iv) wilful misconduct, gross negligence or misrepresentations; and (v) Violation of Applicable Laws arising out of or in connection with the performance of this Agreement by the Company. (B) The foregoing obligations and indemnities do not apply with respect to portions or components of the SaaS Services (i) not supplied by Company, (ii) that are modified after delivery by Company, (iii) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (iv) where Customer’s use of the SaaS Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the SaaS Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the SaaS Service to be non-infringing with substantially similar features and functionality, or (b) terminate this Agreement. (C) Customer shall be liable for and shall defend Company, its affiliates, their employees, directors, contractors (the“Company Indemnified Parties”) harmless from and against any and all claims, liabilities, costs, damages and expenses (including court costs and legal fees) in connection with any claim made by a third party on account of: (i) Infringement of such third-party intellectual property right by the Customer; (ii) wilful misconduct, gross negligence or misrepresentations. (D) NOTWITHSTANDING ANYTHING CONTRARY TO THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY (NOR ANY COMPANY OR OTHER SUPPLIER/SUBCONTRACTOR OF THE COMPANY) BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL LOSS OR DAMAGES OF ANY NATURE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AT ANY POINT OF TIME. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER HEREUNDER FOR THE SAAS SERVICE GIVING RISE TO THE LIABILITY IN THE TWELVE-MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION SHALL NOT APPLY TO THE PARTIES’ OBLIGATIONS (OR ANY BREACH THEREOF) UNDER THE TERMS PERTAINING TO RESTRICTIONS AND RESPONSIBILITIES OF CUSTOMER; CONFIDENTIALITY AND INFRINGEMENT OF INTELLECTUAL PROPERTY.
- Termination: (A) Either Party shall have the right to terminate these Terms and Conditions without assigning any reason by giving the other Party a 30 (thirty) days written notice to the other Party; (B) The Order Form may terminate in the event that one of the following circumstances occurs: (i) If either Party breaches the material provisions of These terms and Conditions and fails to cure such breach within 30 (thirty) days from being notified, including breach of payment obligations by the Customer; (ii) If either Party becomes insolvent or bankrupt or makes a composition or arrangements with its creditors; or (iii) If either Party is wound up or a resolution for its winding up is made (other than for the purposes of an amalgamation or reconstruction whilst solvent); or (iv) If either Party has a liquidator, provisional liquidator, receiver, administrator or an administrative receiver or manager of its business or undertaking appointed. (C)The expiry or termination of the Order Form, shall be without prejudice to the rights and obligations of the Parties up to and including the date of expiry or termination and shall not affect or prejudice any term of these Terms and Conditions that is expressly or by implication provided to come into effect on, or continue in force after, such expiry or termination.
- Confidentiality: (A) Each Party agrees to: (a) use the Confidential Information solely for the purpose of performing its obligations under These Terms and Conditions; (b) not to disclose any Confidential Information of the Disclosing Party to any third party without prior written consent of the Disclosing Party; (c) limit the dissemination of the Disclosing Party's Confidential Information to only those of the Receiving Party's officers, and employees (“Representatives”) who require access to such information to perform their functions in connection with the purpose for which the Confidential Information is disclosed and to the attorneys and financial advisors on a strict ‘need to know’ basis; (d) to ensure that each person or entity who is permitted to receive or have access to the Confidential Information is bound by a confidentiality obligation consistent with These Terms and Conditions; (e) to exercise the same degree of care with respect to the Disclosing Party's Confidential Information as it uses for its own confidential information of like importance, but no less than reasonable care; and (f) to return to the Disclosing Party, or if such return is not possible, destroy, Confidential Information of the Disclosing Party at source which will be incapable of being recovered through normal or laboratory means upon receipt of a written request from the Disclosing Party without retaining any copy thereof. (B) Either Party shall have a right to disclose the Confidential Information to the legal / regulatory authorities pursuant to a binding court order or government regulation, provided that, if permitted under law, the Receiving Party provides a notice to the Disclosing Party, in order for the Disclosing Party to obtain a protective order. If the Disclosing Party is unable to obtain a protective order, the Confidential Information may be disclosed only to the extent necessary under law. (C) Either Party is not permitted to discuss the other Party’s affairs with any member of the press and other news media without written authorization from the appropriate authorized representative of such other Party. (D) Each Party acknowledges and agrees that any breach of the confidentiality obligations set forth in this Clause shall cause the other Party irreparable harm for which monetary damages would be inadequate. Accordingly, in the event of such a breach, the Disclosing Party may seek injunctive or other equitable relief to enforce These Terms and Conditions in addition to any available legal remedies. (E) All Confidential Information disclosed by the Disclosing Party hereunder is provided "AS IS" and without warranty of any kind. All Confidential Information shall remain the property of the Disclosing Party. Nothing contained in this Clause or any disclosure pursuant to These Terms and Conditions shall be construed as granting any license or right under any intellectual property right, whether present or future. (F) This obligation to keep information confidential by both Parties shall survive for a period of 1 (one) year after the determination, termination or expiration of These Terms and Conditions.
- Data Security and Privacy: (A) The Company shall maintain physical and technical safeguards which are reasonably expected in, to protect the security, confidentiality and integrity of the data collected from the Customer (“Data”). The measures pertaining to data privacy are at par with the various privacy legislations including but not limited to the SPDI Rules (in India); General Data Protection Regulations; and any other data security and privacy legislations . The Company shall collect certain essential information by virtue of the Customer’s use of the Services of the Company and such data shall be protected and kept private by the Company. However, the Customer fully understands and disclaims the Company of any unauthorized access in the event of breach of security due to hacking or cracking. Upon termination of this engagement, all the Confidential Information and Data shall be returned to the Customer. In the event such Confidential Information and Data cannot be returned the same shall be deleted/destroyed by the Company and an undertaking to this effect shall be given by the Company to the Customer.
- Notice and Other Communications: (i) Any notice or other communication required or given under these Terms and Conditions shall be communicated or conveyed by the means of email through the registered email address of the relevant party as set out in the Order Form; (ii) In the event of change of email address, the onus of notification of such a change is on the party seeking modification of communication details; (iii) In the event a notice or any other communication is conveyed in person or vide courier, it shall be deemed to have been received at the time of delivery or otherwise on the next business day of the recipient; (iv) All notices or other communications between the Parties shall be in the English language.
- Intellectual Property Rights: (i) Each Party shall retain all right, title and interest in its Intellectual Property Rights. No interest whatsoever in the other Party's Intellectual Property Rights is granted by These Terms and Conditions. (ii) IP belonging to Company: The Company shall at all times own all rights, interest and title in all copyright, trademark, patents derivate works, designs and any other intellectual property and any bug fixes, improvements, updates thereto in the Software. The Company retains all ownership and use rights in the Software. The Company owns all rights in and to the Software and has full power and authority to grant the rights set forth herein. The Customer agrees not to license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Software and/or Service(s) available to any third party, other than the agreed users/employees. (iii) IP belonging to Customer: All right, title and interest in and to any material, document, equipment, data, tool, application, software, hardware, product belonging or licensed to Customer (by any other third-party) including all Intellectual Property Rights therein (collectively, “ Customer Material”) are and will remain with Customer and the respective rights holders in any third-party provider to Customer. Company has no right, license or authorization with respect to any of Customer Material. The Customer shall approve the usage of Customer’s logo/trademark/brand-name for the purposes of marketing/branding/association/advertising by the Company, including using the Customer’s service feedback/experience or collective analytics. Customer Testimonials: The Customer shall provide at least 2 (two) testimonials to be published by the Customer on social media, which shall always include LinkedIn as one of the platform.
- Business Ethics: If required by the Customer, then the Company shall declare any conflicts of interest with the Customer including any relationship or financial interest of any nature whatsoever with employees, managers, other suppliers, Company’s or stakeholders of the Customer.
- Governing Law & Dispute Resolution Mechanism:
- Mediation: Any dispute or difference whatsoever arising between the parties out of or relating to the interpretation, meaning, scope, operation or effect of these Terms and Conditions or the existence, validity, breach or anticipated breach thereof or determination and enforcement of respective rights, obligations and liabilities of the parties thereto shall be amicably settled by way of mediation. If the dispute is not conclusively settled within a period of 30 (thirty) days from the date of commencement of mediation or such further period as the parties shall agree in writing, the dispute shall be referred to and finally resolved by arbitration as per the sections set out hereinbelow:
- If the Customer is based out of India then: (i) These terms and conditions shall be governed by the laws of India and subject to the dispute resolutions clause, the courts in New Delhi shall have the jurisdiction for any disputes raised hereunder. (ii) Arbitration: In the event the mediation as provided for above fails, then all such disputes shall be referred to and finally resolved by arbitration under the Arbitration and Conciliation Act, 1996 (as amended from time to time). The arbitration shall be conducted by a Sole Arbitrator to be appointed mutually by the Parties, failing which the same shall be appointed by the Delhi High Court. The Arbitration shall be conducted in English and the seat of Arbitration shall be New Delhi. The cost of the arbitration shall be borne equally between the Parties. The award made in pursuance thereof shall be final and binding on the Parties.
- If the Customer is based in any jurisdiction other than India: (i) These Terms and Conditions shall be governed by, construed and enforced in accordance with the laws of California, USA or Delhi, India; as the case may be, (ii). The arbitration shall be governed by the Federal Arbitration Act or The Indian Arbitration and Conciliation Act. The Parties will participate in the arbitration in good faith and will share equally in the administrative costs of the mediation and arbitration; provided however, that each Party will pay its own attorneys’ fees. The arbitrator will have the authority to apportion liability between the Parties but will not have the authority to award any damages or remedies not available under, or in excess of, the express terms and conditions stated herein. The arbitration shall be conducted by a sole arbitrator appointed mutually. The arbitrator may, in his/her discretion: (a) permit limited discovery, including production of documents and depositions, to the extent required by the Parties; and (b) award the prevailing Party its attorneys’ fees and out-of-pocket expenses, including its share of the arbitration fees. Promptly following the conclusion of the arbitration hearing, the arbitrator shall provide to the Parties an opinion describing (i) the bases for their judgment and award and (ii) the reasons for the giving or denial of any award. The decision of the arbitrator (A) shall be confidential; (B) shall be final and binding; and (C) may be entered and enforced in any court of competent jurisdiction. The Parties irrevocably waive all objections to venue and jurisdiction of the court in any judicial action, proceeding or claim ancillary to an arbitration arising out of these terms and conditions. THE PARTIES EXPRESSLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL.
- Other Legal Provisions: (a) Waiver: Neither the failure nor any delay on the part of any Party in exercising any right, power or privilege under these Terms and Conditions or the documents referred to in These Terms and Conditions shall operate as a waiver thereof, nor shall any waiver on the part of any Party of any such right, power or privilege, nor any single or partial exercise of any such right, power or privilege, preclude any other or further exercise thereof or the exercise of any other such right, power or privilege. (b) Assignment: These Terms and Conditions, or any right or interest herein, shall not be assignable or transferable by any Party except with the prior written consent of the other Party. For avoidance of doubts, change of control or internal reorganization of a party shall not deem to be an assignment for the purpose of this clause and no prior approval from the other party shall be required for the same. (c) Relationship between the Parties: The Company shall for the purposes of licensing the Software shall be an independent contractor at all times. These Terms and Conditions do not constitute the Company as an agent, legal representative, partner or an employee of the Customer. The Company shall not make any contract, Terms and Conditions, warranty or representation on behalf of the Customer, or create any obligation, express or implied, on behalf of Customer. The rights and obligations under these Terms and Conditions will inure to the benefit of the Parties hereto. These Terms and Conditions shall not create any rights of any person who is not a party to these Terms and Conditions. (d) These Terms and Conditions constitutes the entire agreement between the Parties relating to the subject matter hereof and supersedes any and all prior terms, conditions, including letters of intent and term sheets, either oral or in writing, between the Parties with respect to the subject matter herein. (e) Survival: The termination of herein of these Terms and Conditions shall in no event terminate or prejudice: (i) any right or obligation arising out of or accruing under These Terms and Conditions attributable to events or circumstances occurring prior to such termination; (ii) any provision which by its nature is intended to survive termination.
- If you have any questions pertaining to these Terms and Conditions please contact: Legal, at legal@inFeedo.com, with a CC to finance@inFeedo.com.
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