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THIS MASTER SUBSCRIPTION AND SERVICES AGREEMENT GOVERNS THE CUSTOMER’S USE AND AVAILMENT OF SERVICES PROVIDED BY XPEDIZE VENTURES PRIVATE LIMITED (HEREINAFTER XPEDIZE). IT CONSTITUTES A BINDING AGREEMENT BETWEEN XPEDIZE AND THE CUSTOMER.
BY (1) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT OR (2) CLICKING A BOX INDICATING ACCEPTANCE OF THIS AGREEMENT OR (3) USING THE SERVICES, THE CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND SHALL NOT AVAIL THE SERVICES.
1. DEFINITIONS
1.1. “Affiliate” shall mean, in relation to any person:
i. if that person is an individual, any person who is a relative of such person; and
ii. if that person (the “Subject Person”) is other than a natural person, any other person that, either directly or indirectly through one or more intermediate persons, controls, is controlled by or is under common control with the Subject Person. “Control” means the power to direct the management or policies of a person directly or indirectly, whether through the ownership of over fifty percent (50%) of the voting power of such person, or through the power to appoint over half of the members of the board of directors or similar governing body of such person or through any other arrangements.
And the words “Controls” or “Controlled by” or “Controlling” shall be construed accordingly.
1.2. “Agreement” means this Master Subscription and Services Agreement, any Order Form, exhibits and supplements thereto.
1.3. “Applicable Law” means any law, statute, rule, regulation, order, circular, decree, directive, judgement, decision or other similar mandate of any applicable central, national, state or local governmental authority having competent jurisdiction over, or application to a party or subject matter in question.
1.4. “Customer Data” means any content, materials, documents, data and information submitted by or for the Customer including any data generated, derived, processed, stored or transmitted thereof.
1.5. “Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates). It includes users of the Services.
1.6. “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and trojan horses.
1.7. “Non-Xpedize Application” means a web-based, mobile, offline or other software application functionality that interoperates with a Service, that is provided by the Customer or a third party.
1.8. “Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between the Customer and Xpedize, including any addenda, exhibits and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
1.9. “Technical Services” means migration, implementation, integration, training, or consulting services made available by Xpedize under applicable Order Form.
1.10. “Services” means the Services to be provided by Xpedize to the Customer which is more particularly detailed in Order Form and exclude any Non-Xpedize Applications.
1.11. “Software” means Xpedize’s invoice discounting platform which is a proprietary software provided by Xpedize to the Customer pursuant to an Order Form.
1.12. “Vendor Data” means any content, materials, documents, data and information submitted by or for each of the vendors of the Customer including any data generated, derived, processed, stored or transmitted thereof for the provision of the Services.
2. XPEDIZE’S RESPONSIBILITIES
2.1. Provision of Subscription Services: Subject to terms of this Agreement and receipt of the applicable charges, Xpedize will provide the Services to the Customer pursuant to the scope of services set out in the Order Form.
2.2. Protection of Customer Data: Xpedize will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data to prevent unauthorised access to Customer Data.
3. PROVISION OF SERVICES
3.1. Subject to the terms of this Agreement and payment of charges, Xpedize grants the Customer, a limited, non-exclusive, non-transferable right to access the Platform during the Term (defined below).
3.2. Usage Limits: Services are subject to usage limits specified in the Order Forms. If the Customer exceeds a contractual usage limit or if the Customer uses the Services beyond the term of the Order Form and/or this Agreement, the Customer will execute an Order Form for additional quantities of the applicable Services promptly upon Xpedize’s request, and/or pay additional amounts for excess usage in accordance with the “Invoicing and Payment” section below, regardless of whether such excess usage is beyond the Term of the Order Form and/or this Agreement.
3.3. Customer Responsibilities: The Customer shall (a) be responsible for compliance with the Order Form and Agreement, (b) be responsible for the accuracy, quality and legality of the Customer Data, the means by which the Customer acquired the Customer Data and Vendor Data, the Customer’s use of the Customer Data and Vendor Data with the Services, and the interoperation of any Non-Xpedize Applications with which the Customer uses the Services, (c) prevent unauthorised access to or use of Services and notify Xpedize promptly of any such unauthorised access or use and (d) be responsible for all activities that occur under its usernames, passwords or accounts or as a result of the Customer’s access to the Services and agrees that Xpedize is not responsible for any harm caused by users, including individuals who were not authorised to have access to the Services but who were able to gain access from the Customer’s user credentials.
3.4. Integration Development Plan: In the event the Customer avails integration development services, then the Customer acknowledges and agrees it shall, within (a) a period of eight (8) business days from the date of execution of this Agreement, provide all the requirements sought by Xpedize (including but not limited to access to Customer’s information technology systems for availing the integration services) to initiate integration development; failing which, Xpedize shall charge an additional amount of INR 10,000 per day for every additional day of delay, until the date of acceptance of the integration development plan.
3.5. User Acceptance Testing: Upon completion of the integration development as agreed in the integration development plan, Xpedize shall deliver integration development to the Customer for user acceptance testing along with the FUT document (capturing standard test case scenarios). The Customer shall complete the user acceptance testing within a period of seven (7) business days of submission of the integration development plan as set out in Clause 3.4 and notify Xpedize of (i) its acceptance or (ii) any changes required in the integration development, failing which the integration development delivered by Xpedize shall be deemed accepted. In the event the Customer fails to conduct user acceptance testing within such period Xpedize may, in its sole discretion, charge an additional amount of INR 10,000 per day for every additional day of delay, until the date of completion of user acceptance testing.
3.6. Any request for changes post-delivery of the integration development must be in writing and shall set out in sufficient detail that the change requested is within the scope of services set out in the applicable Order Form and is in accordance with the agreed integration development plan. Xpedize shall then use commercially reasonable efforts to perform the changes requested to the extent feasible in Xpedize’s sole discretion and reissue the integration development to the Customer.
3.7. The integration development shall be deemed accepted and the Customer shall be deemed liable to make all outstanding payments as agreed in the Order Form upon (i) delivery of the integration development by Xpedize; (ii) failure of the Customer to conduct user acceptance testing; (iii) failure of the Customer to notify Xpedize of the changes requested in sufficient detail within fourteen (14) days of submission of integration development or within seven (7) days of the submission of the changes requested, as the case may be.
3.8. Any changes subsequent to the acceptance or deemed acceptance of the integration development, requested by the Customer may be carried out by Xpedize at its sole and absolute discretion and at additional costs as notified by Xpedize.
3.9. Notwithstanding anything to the contrary, the Customer agrees that any request for integration development which is not stipulated in the Order Form, shall be requests for enhancement of the scope of services and such additional integration development may be provided by Xpedize, at its sole and absolute discretion and at additional cost as notified by Xpedize
3.10. Usage Restrictions: The Customer shall not (a) make Services available to anyone other than the Customer or users, or use any Services for the benefit of anyone other than the Customer or its Affiliates, unless expressly stated otherwise in an Order Form, (b) sell, resell, rent, license, sublicense, distribute, make available, any of the Services, or include any Services in a service bureau or outsourcing offering, (e) interfere with or disrupt the integrity or performance of any Services or third-party data contained therein, (f) attempt to gain unauthorised access to any Services or its related systems or networks, (g) permit direct or indirect access to or use of any Services in a way that circumvents a contractual usage limit, or use any Services to access or use any of Xpedize intellectual property except as permitted under this Agreement or Order Form, (h) modify, copy, or create derivative works based on a Services or any part, feature, function or user interface thereof, (i) disassemble, reverse engineer, reproduce, distribute, republish or decompile a Services, (j) remove or modify any program markings or any notice of Xpedize’s or its licensors’ proprietary rights, (k) perform or disclose any benchmark or performance tests of the Services, (l) access Services to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Services, (3) assist a third party in building or supporting, products or Services competitive to Xpedize or (4) copy any ideas, features, functions or graphics of the Service.
3.11. The Customer’s use of Services shall be subject to terms and conditions of use and privacy policy as updated from time to time by Xpedize.
3.12. The Customer acknowledges and agrees that the integration consultation services shall be provided by Xpedize for a fixed period thirty (30) days commencing from the date of execution of the Order Form. Xpedize shall charge an additional amount of INR 10,000 per day, in the event the integration consultation exceeds the thirty (30) day period. The integration consultation service shall be deemed completed upon expiry of thirty (30) days.
3.14. The timelines for the provision of the Services, if any, shall be as specifically set out in Order Form. Unless the timelines are expressly agreed in the Order Form, Xpedize shall not be under an obligation to adhere to any specific timelines for provision of Services. Under no circumstance the Customer shall claim for a refund of the charges or seek a waiver of its payment obligations on account of delay in provision of Services.
3.15. Non-Xpedize Applications: Any acquisition or use by the Customer of Non-Xpedize Application, and any exchange of data between the Customer and any Non-Xpedize Application is solely between the Customer and the applicable Non-Xpedize Application provider. Xpedize does not warrant or support Non-Xpedize Applications or other Non-Xpedize products or services, whether or not they are designated by Xpedize as “certified” or otherwise. Xpedize is not responsible for any disclosure, modification or deletion of the Customer Data and/or Vendor Data resulting from access by such Non-Xpedize Application or its provider. Xpedize assumes no responsibility in relation to any services availed by the Customer from a Non-Xpedize Application and the Customer agrees and undertakes to indemnify and hold Xpedize harmless from any claim, loss, liability arising out of, or in connection with, or in relation to any such services being availed by the Customer.
4. TECHNICAL SERVICES
Subject to payment of applicable charges, Xpedize may make available for Customer, Technical Services as set forth in the applicable Order Form. Customer shall render necessary assistance to Xpedize in order for Xpedize to fulfil its responsibilities as set forth in this Agreement and the applicable Order Form. Unless otherwise stated in the Order Form, all Technical Services under this Agreement are deemed accepted by Customer upon delivery.
5. RIGHTS AND OBLIGATION OF THE CUSTOMER
5.1. The Customer agrees to comply with its obligations as set out in this Agreement, including the customer dependencies referred to in the Order Form and the following general obligations to: (a) provide with such information, co-operation, assistance, facilities, networks, or systems and resources as may be required to perform the Services; (b) act reasonably and in good faith in connection with this Agreement and provide prompt attention to any matter raised by Xpedize relating to Customer’s obligations and/or the performance of the Services; (c) be responsible for its commercial decisions and to take into account any restrictions on the scope of Services work and all other factors of which the Customer and its other advisers are, or should be, aware; (d) implement reasonable and appropriate business continuity and disaster recovery measures to mitigate against any reasonably foreseeable risks; (e) ensure that all equipment and software that it makes available or provides will be free of computer viruses, spyware and other malware and will comply with their specifications; (f) maintain and be responsible for its own data and software back-up and associated restoration measures; (g) retain risk in, and title to, any hardware, software and other materials that Customer provides or makes available; (h) ensure that Xpedize, its personnel and its third party service providers, have all necessary rights and permissions to use any hardware, software and other materials provided or to be provided by the Customer for the purposes of the Agreement; and (i) obtain prior written consent before sharing any Customer Data and Vendor Data, as applicable.
5.2. Recommendations: To the extent that any recommendations or suggestions are made to the Customer by Xpedize, its personnel or its third party service providers whether as part of the Services or otherwise regarding procurement of any third party products and/or services, the Customer acknowledges that: (a) such recommendations should not form the sole basis for any decision or action or inaction by the Customer; (b) the third party elements relate to third parties’ products and/or services which are unconnected with Xpedize, and therefore Customer shall be responsible for verifying with the relevant third party as regards the quality, availability and/or suitability of such third party elements; and (c) Xpedize will not be responsible for the quality, availability or suitability of the third party elements.
5.3. Xpedize’s ability to perform its obligations is dependent on Customer fulfilling its obligations and, on any assumptions, set out in this Agreement, the Order Form or communicated by the Customer, being correct. To the extent that Customer does not fulfil its obligations under this Agreement or the agreed assumptions are, or become incorrect, then (without prejudice to our rights and remedies): (a) Xpedize shall be entitled to charge the Customer for its resources assigned to performing the Services even if not utilized, together with any additional charges which Xpedize incurs; (b) Xpedize may, at its sole and absolute discretion change the specification or scope of the Services or any agreed milestone dates and timetables; (c) Xpedize may revise the charges and the Customer agrees to accept changes to them; and (d) Xpedize shall be relieved of its obligations to the extent that it is prevented from fulfilling them in accordance with this Agreement.
6. CHARGES AND PAYMENT
6.1. Charges: The Customer shall pay the charges specified in Order Forms. Except as otherwise specified herein or in an Order Form, (a) charges are based on the Services and subscriptions purchased and not on actual usage and (b) payment obligations are non- cancellable, and charges paid are non-refundable.
6.2. Xpedize shall invoice for the Services on the basis of its charges and other costs which includes direct costs and any expenses not directly allocated to the Services, including costs of third parties that have been engaged and any taxes owed with respect to them. The amounts invoiced by Xpedize may differ from earlier estimates or quotations.
6.3. Invoicing and Payment: Unless otherwise stated in the Order Form, all charges will be invoiced in advance and are payable within seven (7) days from the invoice date. The Customer shall be responsible for providing complete and accurate billing and contact information to Xpedize and notifying Xpedize of any changes to such information.
6.4. Unless otherwise stated in the Order Form, all invoices will be sent via email to the Customer’s email address registered with Xpedize.
6.5. Notwithstanding anything to the contrary, the Customer agrees that it shall not withhold any payments to be made to Xpedize or seek a waiver of its payment obligations, for any reason whatsoever.
6.6. If any invoiced amount is not received by Xpedize within the due date, then without limiting Xpedize’s rights or remedies, Xpedize may levy interest at the rate of 2% of the outstanding balance per month.
6.7. Suspension of Service: If any invoiced amount owed by the Customer under this or any other agreement for Services is thirty (30) days or more overdue, Xpedize may, suspend Services until such amounts are paid in full, provided that, Xpedize will give the Customer at least ten (10) days prior notice that its account is overdue before suspending services to the Customer.
6.8. Taxes: Xpedize’ s charges do not include any taxes. The Customer shall be responsible for paying all taxes associated with its purchases hereunder.
7. PROPRIETARY RIGHTS
7.1. As between Xpedize and the Customer, the Customer owns all of Customer’s Data and all intellectual property related to Customer’s Data. Notwithstanding anything to the contrary contained herein, the Customer hereby agrees, covenants, consents and grants Xpedize, its Affiliates, and its third-party service providers, all the rights to host, use, process, analyse, derive, store, display and transmit Customer Data and Vendor Data including for providing the Services in accordance with this Agreement and the Order Form. Customer represents that it has, and warrants that it shall maintain, all rights as required to allow Xpedize, its Affiliates and its third-party service providers to compile, use, store, process, analyse, derive and retain Customer Data and Vendor Data, including without limitation in combination with other Xpedize customers’ data.
7.2. Subject to the limited rights expressly granted hereunder, Xpedize shall retain all right, title and interest in and to the Services and all technology utilised by Xpedize to provide the Services, including any and all patents, copyrights, trademarks, trade names, trade secrets and other intellectual property rights relating to, embodied by, or incorporated in any of the foregoing including any updates, upgrades, enhancements, modifications or improvements made to, or derivatives of, the Services. If the Customer provides Xpedize with any feedback regarding any Services, Xpedize may use all such feedback without restriction. No rights are granted to the Customer hereunder other than as expressly set forth herein.
7.3. Use of Deliverables and Materials: Subject to any restrictions contained in this Agreement and applicable third-party licenses, the Customer shall use the deliverables for its internal purposes only. The Customer shall not sub-licence the deliverables to or make them available to third parties without Xpedize’s prior written consent.
7.4. Use of Customer materials: The Customer hereby grants the right to Xpedize, its personnel and its third party service providers to use any documentation or materials including systems, methodologies, tools, software, reports, correspondence and advice supplied or made available by or on behalf of the Customer.
7.5. Third party items: Where the Customer is responsible for providing third party items including software or hard-ware, the Customer shall obtain all necessary licenses and consents for the Customer, Xpedize, its personnel and its third party service provider to use such items for the purposes of this Agreement.
7.6. Know how: Notwithstanding anything to the contrary, Xpedize retains the right to use all know- how and residual knowledge obtained in connection with the Services and nothing in this Agreement shall prevent Xpedize from using any know-how, methodologies, ideas or concepts acquired before or during the performance of the Services, for any purpose.
8. CONFIDENTIALITY
The Parties shall endeavour to protect Confidential Information. In the context of the relationship under this Agreement, each party (“Disclosing Party”) may disclose to the other party (“Receiving Party”) certain confidential information that has been marked “confidential” or with words of similar meaning, at the time of disclosure by such party (“Confidential Information”). Xpedize’s Confidential Information shall deem to include, without limitation, the pricing of Services, business proposals, technical documentation, integration methodologies, technical data, methods, processes, know-how and inventions. Confidential Information shall not include information that Receiving Party can show: (a) was already lawfully known to, or independently developed by, Receiving Party without access to, or use of, Confidential Information, (b) was received by Receiving Party from any third party without restrictions, (c) is publicly and generally available, free of confidentiality restrictions; or (d) is required to be disclosed by law, regulation or is requested by any authority whether statutory, non-statutory, governmental, judicial or quasi-judicial, in nature.
9. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
9.1. Each party represents and warrants that: (a) it is duly organised under Applicable Law and has sufficient authority to enter into this Agreement, (b) the person entering into this Agreement is authorised to sign this Agreement on behalf of such party and (c) the execution and performance under this Agreement does not conflict with any contractual obligations such party has to any third party.
9.2. The Customer represents and warrants that : (a) all information which has been given by the Customer (including any Customer Data and/or Vendor Data)to Xpedize is true, accurate and complete in all respects, the Customer has obtained prior written consent for submitting such data including any Customer Data and/or Vendor Data and the Customer shall provide evidence of having obtained such written consent if requested by Xpedize, (b) it shall maintain, all rights, privileges and licenses as required to allow Xpedize, its Affiliates and its third-party service providers to compile, use, store, process, analyse, derive and retain the Customer Data and Vendor Data, (c) it has obtained all governmental authorisations, consents and approvals and corporate approval, and other consents as required under Applicable Law for the execution and performance of this Agreement have been obtained, and continue in force, (d) it shall pay the charges under the applicable Order Form in a timely manner and in accordance with the terms of this Agreement, (e) it has reviewed the Services of Xpedize and that it’s purchase and use of the Services shall not be in breach of Applicable Laws, (f) it is duly authorised to conduct its business under Applicable Laws, (g) the execution, delivery and performance of this Agreement by the Customer shall not (i) violate or conflict with its organisational or constitutional documents, and (ii) constitute a violation of Applicable Law, (h) there are no legal, quasi-legal, administrative or other proceedings, claims, actions or governmental investigations of any nature pending against the Customer, or to which the Customer’s assets or properties are subject, and the Customer has not received any notice or intimation of any such proceeding, claim, action or governmental investigation against it, in each case, which relates in any manner to this Agreement or which could otherwise adversely impact its ability to undertake its obligations under this Agreement, and (i) the Customer has not and nor any Associated Persons or former Associated Persons has, directly or indirectly:
i. violated or is in violation of Money Laundering Laws, Anti-Bribery Laws, or rules, regulations, guidelines of the OFAC (“OFAC Regulations”) and other applicable anti-corruption Laws; or
ii. made, offered or promised to make, or authorised the payment or giving of money, or anything else of value, to any (i) executive, official, employee or person acting in an official capacity for or on behalf of a government department, government agency or a government-controlled entity or a public international organisation (e.g., the International Monetary Fund or the World Bank), or (ii) political party or official thereof, or candidate for political office (each of the foregoing a “Government Official”), or (iii) any other person, while knowing that all or some portion of the money or value will be offered, given or promised to a government official for the purposes of obtaining or retaining business or securing any improper advantage or in other circumstances when such offer, payment or promise would be unlawful; or been subject to any investigation by any Governmental Authorities or regulators with regard to any actual or alleged breach of any relevant anti-corruption law.
Provided that in the case of former Associated Persons such action took place whilst the former Associated Person was an Associated Person.
9.3. Neither the Customer nor any of its current or former Associated Persons is or has been the subject of any investigation, inquiry or litigation, administrative or enforcement proceedings by any Governmental Authority or any customer regarding any offence or alleged offence under Anti-Bribery Laws or Money Laundering Laws, and no notice has been received that such investigation, inquiry or proceedings have been threatened or are pending, and there are no circumstances likely to give rise to any such investigation, inquiry or proceedings.
9.4. The Customer is not (i) currently identified on the Specially Designated Nationals and Blocked Persons List maintained by the OFAC and/or on any other similar list maintained by OFAC or any other U.S. governmental agency pursuant to any authorising statute, executive order or regulation; and (ii) a Person with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or executive order of the President of the United States.
For the purposes of this Agreement.
a. “Anti-Bribery Law” means the Indian Prevention of Corruption Act 1988, the US Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010, and shall include any Applicable Laws that relate to the bribery or corruption, in each case as amended, re-enacted or replaced from time to time;
b. “Associated Person” means a Person (including any director, officer, employee, agent or other intermediary) who performs services for or on behalf of that Person or who holds shares of capital stock, partnership interests, limited liability company membership interests and units, shares, interest and other participations in that Person (in each case when performing such services or acting in such capacity);
c. “Money Laundering Law” means the Indian Prevention of Money Laundering Act, 2002 and all applicable anti-money laundering statutes of all jurisdictions, including, without limitation, Indian and U.S. anti-money laundering laws, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental or regulatory agency; and
d. “OFAC” means the Office of Foreign Assets Control of the Department of the Treasury of the United States of America.
9.5. The Customer has not nor had any affiliate or their respective directors, officers, managers, employees, its independent contractors, representatives, or agents violated the provisions of the Foreign Corrupt Practices Act, 1977 (“FCPA”), the U.K. Bribery Act or Prevention of Corruption Act, 1988 (“PCA”) or any other applicable anti-bribery or anti-corruption law. None of the any of their directors, officers, employees and its agents or representative has, in any way in relation to the Customer or any of the Customer’s subsidiaries or controlled affiliates, (a) have offered, promised, made, paid or received or will offer, promise, make, pay or receive any bribe, kickback or other similar payment or transfer of value for the benefit of any person in connection with obtaining or retaining business or to secure an improper advantage (including, but not limited to, with respect to its respective capital contributions, including additional contributions and funding and in-kind capital contributions) or any other party hereto; (b) have authorised, induced, or caused or will authorise, induce, or cause any person to offer, promise, make, pay or receive any such payment or transfer of value in connection with obtaining or retaining business or to secure an improper advantage (including, but not limited to, with respect to its respective capital contributions, including additional contributions and funding and in-kind capital contributions) or any other party hereto; or (c) possess knowledge or reason to know that any such payment or transfer of value has occurred or will occur in connection with obtaining or retaining business or to secure an improper advantage (including, but not limited to, with respect to its respective capital contributions, including additional contributions and funding and in-kind capital contributions).
9.6. The Customer represents, covenants and warrants that it shall not provide any data, information or document which pertains to individuals, entities, natural persons or any other data subjects outside the territorial jurisdiction of India to Xpedize. It shall use the Xpedize Services only within the territory of India and keep all data only in servers within India and shall not transfer any tax related and financial data for processing outside India under any circumstances.
9.7. Except as expressly provided herein, the Customer accepts the Services “as is” and acknowledges that Xpedize makes no other warranty of any kind whether express, implied, statutory or otherwise, and disclaims all implied and statutory warranties, including, but not limited to, any implied warranty of merchantability, fitness for a particular purpose or non-infringement. Xpedize further disclaims any warranty that the Services will meet the Customer’s needs or expectation, be error free, or that the operation of the Service will be uninterrupted, or the Service errors be corrected.
9.8. The Customer acknowledges and agrees that Xpedize does not control the transfer of data over communications facilities, including the internet, and that the Services may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. Xpedize shall not be responsible for any delays, delivery failures, or other damage resulting from such problems.
9.9. The parties agree that Xpedize shall not be responsible for any issues related to the performance, operation or security of the Services that arise from Customer’s applications or third-party applications. Notwithstanding anything contained herein, parties agree that the Services may contain information and data sourced from third-party service providers and such information and data is the sole responsibility of the Person that makes it available. Xpedize does not make any representation or warranty regarding the reliability, accuracy, completeness, authenticity, merchantability, non-infringement, correctness, or usefulness of the information and data, third-party applications or services, and disclaims all liabilities arising from or related to the information and data, third party applications or services.
9.10. For any breach of the services warranty, the Customer’s exclusive remedy and Xpedize’s entire liability shall be the correction of the deficient services that caused the breach of warranty, or, if Xpedize cannot substantially correct the deficiency in a commercially reasonable manner, customer may choose to end the deficient services.
10. INDEMNIFICATION
Notwithstanding anything contained in this Agreement, the Customer shall defend, indemnify and hold harmless Xpedize (and its affiliates, officers, directors and employees) upon demand from and against any and all damages, actions, proceedings, claims, demands, costs, losses, liabilities, diminution in value, loss of earnings, profits and revenue, opportunity costs, expenses (including court costs and reasonable attorneys’ legal fees) in connection with, arising out of, or in relation to (i) breach or non-compliance of its obligations, consents, grants, undertakings, representations or warranties, and (ii) misrepresentation, negligence, fraud, wilful concealment and misconduct (iii) misuse of the Services and products of Xpedize for any illegal or unauthorised purposes; (iv) any injuries to persons or damage to property, body, business character, reputation including theft, resulting from the acts or omissions of the Customer; (v) any claims by a third party on Xpedize for the acts committed or omitted by the Customer; (vi) any violation of municipal, state or central laws governing the Services and products or their sale, that may result from such act or omission by the Customer.
11. LIMITATION OF LIABILITY
IN NO EVENT, XPEDIZE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES OR AGENTS, SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, DATA, OR DATA USE, ARISING OUT OF, OR RELATING TO, THE SERVICES OR THE ARRANGEMENTS BETWEEN THE PARTIES. NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT, THE CUMULATIVE MAXIMUM LIABILITY OF XPEDIZE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES OR AGENTS , WHETHER IN CONTRACT OR TORT OR DAMAGES OR INDEMNIFICATION CLAIMS OR NEGLIGENCE, BY STATUTE OR OTHERWISE, INCLUDING ARISING OUT OF THE WORK OR DELIVERABLES OR SERVICES COVERED BY THIS AGREEMENT, AND REGARDLESS OF THE THEORY OF LIABILITY, SHALL BE LIMITED TO PAYMENT OF INCURRED AND SUFFERED DIRECT DAMAGES ONLY AND SHALL IN NO EVENT EXCEED TWENTY FIVE PERCENT OF THE CHARGES RECEIVED BY XPEDIZE, FROM THE CUSTOMER.
12. TERM AND TERMINATION
12.1. Term: This Agreement commences on the date the Customer first accepts it and, unless terminated earlier in accordance with the terms of this Agreement, shall continue until all the Services hereunder have expired or the Services have been rendered.
12.2. Term of Subscriptions: The term of each subscription shall be as specified in the applicable Order Form (“Initial Term”). The subscriptions will automatically renew for additional periods equal to the expiring subscription term (“Renewal Term”), unless (a) a renewed Order Form is executed with revised terms and charges, or (b) either party notifies the other party, no less than thirty (30) days prior to the end of, the Initial Term or any Renewal Term, that it has elected not to renew the Order Form or the Agreement, or (c) Xpedize intimates revision in the terms and charges post the Initial Term. Unless otherwise stated in an Order Form, the renewal charge shall increase by ten (10) percent of the applicable charges in the immediately preceding Order Form.
12.3. Termination: Xpedize may terminate this Agreement (a) if the Customer commits a breach of any of the terms and conditions of this Agreement, which if capable of cure or remedy, is not cured or remedied by the Customer, within a period of thirty (30) days from the date of issue of notice by Xpedize informing the Customer of such breach or (b) by providing thirty (30) days prior written notice to the Customer. Non-payment of invoiced amount within the applicable due date shall constitute material breach of this Agreement. Xpedize may terminate this Agreement forthwith in the event (a) Xpedize or the Customer is restricted, prohibited or constrained under Applicable Law from continuing to provide or avail Services respectively, under this Agreement, (b) the Customer acts in violation of Applicable Law, (c) the Customer is adjudicated bankrupt, or if a receiver or a trustee is appointed for it or for a substantial portion of its assets, or if any assignment for the benefit of its creditors is made and such adjudication appointment or assignment is not set aside within 90 (ninety) days, or (d) liquidation proceedings are initiated either voluntarily or compulsorily against the Customer.
12.4. Effects of Termination: Upon any termination or expiration of this Agreement, Xpedize will cease to provide the Services and all outstanding charges due under an Order Form shall be required to be paid immediately. All charges due under an Order Form are non-cancellable and non-refundable.
12.5. Customer agrees and consents that Xpedize may refer to it as a customer of Xpedize in its communications and marketing materials, including by displaying the Customer’s name and logo on Xpedize’s website and other marketing materials.
13. GENERAL PROVISIONS
13.1. Xpedize may use third-party service providers, including application service providers, hosting service providers and system integrators for rendering Services.
13.2. Xpedize shall be excused from performance hereunder, without any liability, to the extent that performance is prevented, delayed or obstructed by circumstances beyond its reasonable control. Such circumstances may be including but not limited to an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure delay, Non-Xpedize Application, denial of service attack, a virus attack on the Customer’s system leading to disruption, issues with FTP access from the Customer’s system, emergency maintenance upgrades or government restrictions (including the denial or cancellation of any licenses).
13.3. Xpedize shall have no responsibility or liability in relation to failure of any activity, if such activity may have been initiated by Xpedize, any third party or by the Customer itself, and that has failed or delayed on account of any act or omission of the financial institutions, banks, non-banking financial companies, trade receivables discounting system platform (“TReDS Platform”), the process of authentication and acceptance of data by such third parties, , including but not limited to, failure or delay as a result of, network or connectivity failure, device or application failure, TReDS Platform failure, possible down time at TReDS Platform or any other technical or non-technical error of any nature, whether foreseen or unforeseen at the time of entering into this Agreement.
13.4. The Customer agrees and undertakes that, during the Term and for a period of one year thereafter, it shall not, directly or indirectly, either individually or otherwise, solicit or induce, attempt to solicit or induce, divert, hire, retain (including as a consultant) any employee, officer, agent, director, contractor, business partner or such other persons of Xpedize (“Xpedize Personnel”) or any former Xpedize Personnel engaged with Xpedize in the preceding twelve months.
13.5. The Customer agrees and undertakes that, during the Term and for a period of one year thereafter, it shall not, directly or indirectly, either individually or otherwise, solicit or induce, attempt to solicit or induce, divert any customer of Xpedize, for provision of services which are same, similar or competes with (whole or in part), the Services.
13.6. Planned Downtime: Xpedize may suspend the Services to perform planned maintenance or to upgrade the Services. To the extent possible and reasonable, Xpedize may provide at least 24 hours of notice for such downtime. For the avoidance of doubt, planned downtime will exclude any emergency maintenance undertaken by Xpedize which shall be endeavoured to be undertaken during the non-business hours during weekends.
13.7. Anti-Corruption: The Customer agrees and confirms that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of Xpedize in connection with this Agreement.
13.8. Entire Agreement and Order of Precedence: This Agreement along with the Order Forms represents the entire agreement between the parties regarding the subject matter hereof and supersedes any and all other agreements between the parties, whether written or oral, regarding the subject matter hereof. For clarity, the provisions of this Agreement supersede any earlier non-disclosure or confidentiality agreements, purchase orders or in any other Customer documentation (excluding Order Forms). In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement and (3) Terms of Use and Privacy Policy.
13.9. Relationship: The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
13.10. Waiver: No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
13.11. Severability: If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
13.12. Assignment: The Customer shall not assign any of its rights and obligations under this Agreement without the prior written consent of Xpedize. Xpedize may, in its sole and absolute discretion, assign, novate, transfer or otherwise dispose of any or all of its rights and obligations under this Agreement or any part thereof including but not limited to the right to payments, to any of its Affiliates, successors, associates or any other third parties or Persons in order to exercise any of the rights or perform any of the obligations under this Agreement, and the Customer shall, at Xpedize’s intimation, enter into an appropriate agreement with such Affiliates, successors, associates or any other third parties or Persons in such form as Xpedize may specify in order to enable Xpedize to exercise its rights pursuant to this Clause. A change in the legal status of Xpedize shall not affect the validity of this Agreement and this Agreement shall be binding on any successor to Xpedize.
13.13. Governing Law and Jurisdiction: This Agreement shall be governed by and construed in accordance with the laws of India, without regard to conflict of law principles. The courts, tribunals, councils, forums and other dispute resolution bodies at New Delhi, India shall have the exclusive jurisdiction to adjudicate upon any or all disputes arising out of or in connection with this Agreement.
13.14. Survival: Clause 1 (Definitions), Clause 6 (Charges and Payment), Clause 7 (Proprietary Rights), Clause 9 (Representations, Warranties and Disclaimers), Clause 10 (Indemnification), Clause 11 (Limitation of Liability), Clause 12 (Term and Termination) and 12 (General Provisions) shall survive termination or expiration of this Agreement.
