Product Licensing Terms and Conditions
- These Terms and Conditions govern the licensing and subscription of the artificial intelligence enabled proprietary Software as Service (“Software”) of inFeedo Tech Inc a Delaware Corporation, licensed to inFeedo Tech Private Limited (wholly owned subsidiary of inFeedo Tech Inc) (collectively “Company”/ “Licensor”).
- The Licensee Company (as stated on the Order Form) (“Licensee”) has by taking a non-transferable and a non-exclusive license to use the Software shall be bound by the terms stated herein in the Terms and Conditions.
- 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;
- “Business Day” means a day other than Saturday and Sunday on which scheduled commercial banks are open for normal banking business in [Delhi, India];
- “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, 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.
- “Go-Live Date” shall mean the date on which the Software link is activated for the use of the employees of the Licensee Company.
- “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 Licensee to subscribe to the Software.
- “Software” means the HR Analytical Program being provided by the Licensor 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 Licensor.
These Terms and Conditions shall be effective from the date of execution of the Order Form and be valid for a period of 1 (one) year and. The Software shall be made available on the “Go-Live Date” and the subscription to use the Software along with the Exit Module shall automatically terminate upon expiry of the 1 (one) year term from the date of execution of Order Form, unless the same is renewed.
- Grant of License and Services:
Subject to the terms and conditions as stated herein in these Terms and Conditions, the Licensor grants to Licensee a non-exclusive, non-transferable license, to use the Software and Services for HR analysis as per the form and format provided in the Software.
- Exit Module:
In the addition to the Software, in the event, Licensee opts for the Additional Module, being the “Exit Module”, the Licensor shall upon such opt-in shall grant to the Licensee a license to use on a non-exclusive and a non-transferable license to the Exit Module, assisting the Licensee in smoother exits of the employees of the Licensee company. The Exit Module is strictly to be used only by the employees of the Licensee and the Licensee agrees that the Software may not be transferred or sublicensed to any other and/or third parties.
- Protection of Personal Data:
The Parties hereto understand and agree that to the extent applicable to the use of the Exit Module, each Party shall, in relation to the processing of the personally identifiable data, comply with their respective obligations as per their data processing and protection policies read with the applicable data protection legislation(s). The Licensee understands and agrees that in order for the Exit Module to give the requisite comprehensive results, e-mails shall also be sent to the exited and/or exiting employees of the Licensee and thus the Licensor represents and warrants that it has taken requisite permission from its employees in order to process their personal data via the Exit Module and shall indemnify Licensee against any claims that such employees may bring against Licensee for using and processing their personal data.
- All other terms of the License Terms and Conditions shall apply mutatis-mutandis to the Exit Module.
In consideration of the Licensor agreeing to provide the Software and the Services to the Licensee hereby agrees to pay a License Fee as stated in the Order Form. The License Fee is excluding taxes (as applicable and as amended from time to time). In the event of a renewal of the License, the License Fee shall be increased at the rate of 10% of the last paid License Fee.
- Additional Payment:
That the Licensee is provided a user-based pricing package, depending upon their requirement upon subscription. For all extra users that the Licensee requests for addition beyond the plan that has been chosen by the Licensee, the same shall be billed in the blocks of 50 (fifty) users in the next cycle on a pro-rated basis.
- Modification Charges:
In addition to the License Fee provided herein in Annexure I, the Licensor shall charge an additional amount for any modifications that is made to the Software at request of the Licensee. These Modification Charges shall be informed by the Licensor to the Licensee upon the receipt of request for modification. All modifications to the Software shall be done only after a written confirmation and acceptance of the modification charges is given by the Licensee. Non- Payment of modification charges shall be treated as a material breach of These Terms and Conditions and the terms of Delay in Payment Charges shall become applicable herein. For the purposes of this License Terms and Conditions, “modification” shall mean any upgrades or any customization that the Licensee may request the Licensor to do in the Software.
- Payment Terms:
(i) Licensor 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 the Licensee’s PAN and GST Number (as applicable). The invoice to the Licensee shall be sent on the assigned email address for this purpose and the hard copy shall be couriered only upon the request of the Licensee. (ii) inFeedo Tech Private Limited is a registered under the Micro, Small Medium Enterprise Development Act, 1996 (as amended from time to time) (“MSME Act”) as a “MSME Enterprise”, under which the payment to the Licensor is required to be made within a fixed timeline as stated hereinafter: The Licensee shall make the payment of the License Fee within 30 (thirty) days of receipt of the invoice.
- Delay in Payment:
In the event of delay of payment of the License Fee beyond the 30 (thirty) day period (as stated hereinabove), the license to use the Software shall stand suspended with immediate effect and the same will only be restored upon payment of the License Fee, within the timelines stated hereinafter. Only 1 (one) letter for the delay in payment of the License Fee shall be sent to the Licensee (“Delay Letter”), thereafter, if the Licensee does not make the payment of the License Fee within 15 (fifteen) days of the receipt of the Delay Letter, the Licensee shall be liable to pay compound interest on the License Fee at three times of the bank rate notified by RBI from the date of delay till the actual date of payment, further, the Licensor shall be at the liberty to report such delay in payment to the Micro and Small Enterprise Facilitation Council and terminate These Terms and Conditions, without any further notice and/or liability.
- Licensor’ Obligations and Warranties:
(i) The Licensor 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 Licensor 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 Licensee. 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 Licensor fully understands and agrees that it shall not be relieved from any of its obligations or liabilities which have accrued towards the Licensee, hence the Licensor covenants to be liable for the acts or omissions of its employees, associates, partners, agents etc. (iii) The Licensor agrees that all authorized users shall be entitled to benefit from the license being granted hereunder and shall use the license in accordance with These Terms and Conditions. (iv) The Licensor shall protect the data of the Licensee that it acquires during the term of the Terms and Conditions and shall take proper measures including without limiting the technical and security measures to safeguard the same.
- Licensor warrants that during the Term:
The Licensee shall perform Services materially in accordance with these Terms and Conditions, 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) Licensor shall make commercially reasonable efforts to make the Service available to Licensee as per the terms of the SoW (made available to the Licensee separately); (ii) Licensor 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 Licensee a non-exclusive, non-transferable license to use the Software; (vi) the provision of the Services and the Software and the use thereof by the Licensee in accordance with the Terms and Conditions shall not result in any infringement of third party intellectual property rights.
- Licensee’s Obligations and Warranties:
(i) The Licensee represents and warrants that it shall make timely payments to the Licensor and shall be in compliance with all applicable laws. (ii) Licensee shall use the Software for its own internal purposes and unless otherwise agreed in These Terms and Conditions or via an amendment, Licensee agrees that the Software may not be transferred or sublicensed to any other and/or third parties. Licensee may not use the Software for any other purposes except as expressly permitted under these Terms and Conditions. (iii) The Licensee agrees not to: (i) decompile, disassemble, or reverse engineer the Software; (ii) alter or modify the Software; or (iii) sell, convey or otherwise transfer the Software. (iv) The Licensee shall ensure that in order to use the Software, especially the use of the Exit Module may require the Licensee to obtain requisite permissions to use the personal information of its employees and the Licensee covenants to obtain the requisite permission to use the same. (v) The Licensee further covenants and warrants that the Licensor shall not be liable for servicing the Licensee in the event of any system breakdowns at the Licensee’s end, and any disruptions in the provision of the Software and Services shall be the liability of the Licensee.
- Indemnification and Limitation of Liability:
(A) Licensor shall be liable for and shall defend, indemnify and hold the Licensee, its affiliates, their employees, directors, contractors (the “Licensee 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 Licensee Indemnified Parties arising out of or in connection with the performance by the Licensor of its obligations under these Terms and Conditions; (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 These Terms and Conditions by the Licensor; (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 These Terms and Conditions by the Licensor. (B) Licensee shall be liable for and shall defend Licensor, its affiliates, their employees, directors, contractors (the “Licensor 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 Licensee; (ii) wilful misconduct, gross negligence or misrepresentations; and (iii) any breach of the provision by the Licensee of the MSME Act that is applicable to the Licensee. (C) Notwithstanding anything contrary to these Terms and Conditions, in no event shall either Party 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 These Terms and Conditions at any point of time. In no event shall the aggregate liability of each party together with all of its affiliates arising out of or related to these Terms and Conditions exceed the total amount paid or payable by Licensee hereunder for the Service giving rise to the liability in the twelve-month period preceding the first incident out which the liability arose. The foregoing limitation shall apply whether an action is in contract or tort and regardless of the theory of liability.
(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; (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 These Terms and Conditions 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.
(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 Licensor shall maintain physical and technical safeguards which are reasonably expected in, to protect the security, confidentiality and integrity of the data collected from the Licensee (“Data”). The measures pertaining to data privacy are at par with the various privacy legislations including with General Data Protection Regulations .The Licensor shall collect certain essential information by virtue of the Licensee’s use of the Services of the Licensor and such data shall be protected and kept private by the Licensor. However, the Licensee fully understands and disclaims the Licensor 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 Licensee. In the event such Confidential Information and Data cannot be returned the same shall be deleted/destroyed by the Licensor and an undertaking to this effect shall be given by the Licensor to the Licensee.
- 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 These Terms and Conditions. (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) In the event a notice or any other communication is sent by facsimile, it shall be deemed to have been received at the time when the sender’s facsimile machine acknowledges transmission provided however that if the time of acknowledgment of transmission is after 1700 hours on a business day of the recipient, it shall be deemed to have been received on the next business day of the recipient; (v) 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 Licensor: The Licensor 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 Licensor retains all ownership and use rights in the Software. The Licensor owns all rights in and to the Software and has full power and authority to grant the rights set forth herein. The Licensee 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 Licensee: All right, title and interest in and to any material, document, equipment, data, tool, application, software, hardware, product belonging or licensed to Licensee (by any other third-party) including all Intellectual Property Rights therein (collectively, “Licensee Material”) are and will remain with Licensee and the respective rights holders in any third party provider to Licensee. Licensor has no right, license or authorization with respect to any of Licensee Material. The Licensee shall approve the usage of Licensee’s logo/trademark/brand-name for the purposes of marketing/branding/association/advertising by the Licensor, including using the Licensee’s service feedback/experience or collective analytics.
- Business Ethics:
(i) The Licensor shall declare any conflicts of interest with the Licensee including any relationship or financial interest of any nature whatsoever with employees, managers, other suppliers, Licensors or stakeholders of the Licensee. (ii) The Licensor shall comply with the Anti-Bribery and Corruption (AB&C) requirements as applicable to them. The Licensor undertakes that he has not given, offered or promised to give directly or indirectly any bribe, commission, gift, consideration, reward, or inducement to any of the employees of the Licensee or their agent or relatives for showing or agreeing to show favour or disfavour to any person in relation to These Terms and Conditions. If at any time during execution or performance of These Terms and Conditions the Licensor if faced with any undue demand, request for gratification or favour from any employee of the Licensee or a person connection with such employee, the Licensor must report the same immediately to the e-mail id provided by the Licensee.
- Governing Law & Dispute Resolution Mechanism
(i) These Terms and Conditions shall be governed by, construed and enforced in accordance with the laws of India and the courts in New Delhi shall have the jurisdiction over the disputes arising out of These Terms and Conditions. (ii) 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 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 equally divided between the Parties. The award made in pursuance thereof shall be final and binding on the Parties.
Other Legal Provisions:
- 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.
- 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..
- Relationship between the Parties The Licensor shall for the purposes of licensing the of Software shall be an independent contractor at all times. These Terms and Conditions do not constitute the Licensor as an agent, legal representative, partner or an employee of the Licensee. The Licensor shall not make any contract, Terms and Conditions, warranty or representation on behalf of the Licensee, or create any obligation, express or implied, on behalf of Licensee. 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.
- 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.
- 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, (Indemnification and Limitation of Liability), (Intellectual Property Rights); (Confidentiality);(Governing Law), (Dispute Resolution) and (Miscellaneous).
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