SAAS SUBSCRIPTION AGREEMENT
This Master SaaS Subscription Agreement
By and Between
Nuvella IT Consulting , a company incorporated under the Companies Act, 2013 and with its office located at 7th Floor, Alapatt Heritage Building, Mahatma Gandhi Rd, Kochi, Kerala 682035 (hereinafter “nuvella” which expression shall include its successors-in-interest and permitted assigns) of the One Part
The Customer availing or subscribing to service by provided by Nuvella (hereinafter the “Subscribing Organisation” which expression shall include its successors-in-interest) of the Other Part.
- Nuvella owns and manages artificial intelligence enabled cloud-based software-as-a-service that enables users to manage various back-end and front-end functions in a travel & hospitality industry with related functionalities and features. (the “SaaS Service”).
- The Subscribing Organisation desires to avail the SaaS Service and Nuvella agrees to provide to the Subscribing Organisation with subscribed modules of such SaaS Service.
- The Subscribing Organisation agrees to use such subscribed modules of the SaaS Service and other ordered services in accordance with the terms and conditions set forth in this Agreement below.
TERMS AND CONDITONS
Capitalized terms as used in this agreement, shall have the respective meanings set forth in this Clause 1 and any other capitalized terms used in the body of this Agreement and not defined in Clause 1 shall have such meaning as defined or intended in the body of the agreement:
- 1.1 “Account(s)” means the account(s) created by Nuvella on behalf of the Subscribing Organisation, pursuant to subscribing to the SaaS Service, which enables the Subscribing Organisation to authorise the B2B Users to access the SaaS Service through the B2B User Interface. Each ‘Account’ comprises of a unique user identification and password.
- 1.2 “Agreement” means this Master Subscription Agreement and any modifications, amendments, revisions to it from time to time.
- 1.3 “B2B Users” means the Subscribing Organisation’s employees, and partners or any other person(s) (and their respective employees) who are authorised by the Subscribing Organisation to use the SaaS Service through the B2B User Interface, and who are provided Accounts in order to do so.
- 1.4 “B2B User Interface” means the web-based user interface that B2B Users will access through their Accounts in order to use the SaaS Services.
- 1.5 “Business Purpose” means the hospitality business of the Subscribing Organisation for which the SaaS Services are being used.
- 1.6 “Content” means any information, data, files, database, diagrams, pictures, charts, analyses, text, numbers, corporate information, financial information, personally identifiable information of B2B Users or any other information or data, owned or controlled by the Subscribing Organisation
- 1.7 “Effective Date” means the date of set out herein above as the date of execution of this Agreement.
- 1.8 “Fees” means the fee(s) payable by the Subscribing Organisation for each of the Services it avails and which may be based on fixed amounts made using the SaaS Service. In this context, “Subscription Fee” means the fee agreed between the parties, as per the module, and payable by the Subscribing Organisation for using the subscribed modules of the SaaS Service.
- 1.9 “Intellectual Property Rights” means all unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how, trade secret and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world, whether registered or unregistered.
- 1.10 “Party” means either of Nuvella or the Subscribing Organisation and “Parties” means both Nuvella and the Subscribing Organisation collectively.
- 1.11 [DELETED]
- 1.12 “Services” means the array of services subscribed provided by Nuvella to the Subscribing Organisation, pursuant to this Agreement and includes the SaaS Services and “Service” means any of such services individually.
- 1.13 “Service Period(s)” means the period of provision of each Service which may be one time, monthly or annual.
- 1.14 “Subscription” means availing the SaaS Service on payment of the Subscription Fee detailed in plan subscribed by the Subscribing Organisation for the duration of the Subscription Period.
- 1.15 “Subscription Period” means such period that the Subscribing Organisation and the B2B Users are eligible to use the SaaS Service and/or the period in this regard.
- 1.16 “Use” and all its cognate expressions including “Used”, “Using” means creation, storing, retrieving, uploading, deleting, organizing, managing, sharing and tracking Content on the B2B Interface by the Subscribing Organisation or any of its B2B Users or using the features or functionality of the SaaS Service or any other Services(s), in any other manner.
- 1.17 “Users” means any user of any of the Services authorised to Use the Services under this Agreement.
SCOPE OF SERVICES, FEES AND CANCELLATION
2.1 The Services ordered by the Subscribing Organisation pursuant to this Agreement are subscribed as per Engagement Letter along with the corresponding Fees and Service Period for each type of Service. The Subscription Fees are payable as set out in Engagement Letter. Fees for other Services may be one-time payments or recurring ones, as shall be mutually agreed. The Subscription Fees may be revised every 12 months after mutual agreement between the Parties. The Subscribing Organisation understands that the Subscribing Organization shall have to pay additional Subscription Fees as shall be mutually agreed in case if the Subscribing Organisation avails additional Services from Nuvella.
2.2 All Fees are payable within fifteen (15) days of receipt of the related invoice (“Due Date”) by the Subscribing Organisation. Any delay in payment beyond the Due Date will entitle Nuvella to levy penal interest of 12% per annum until the date of actual payment. Further, any delay that extends beyond thirty (30) days from the Due Date will also entitle Nuvella to cease providing access to the SaaS Service or any of the other Services, and/or terminate this Agreement by giving 30 days advance notice. The rights of Nuvella set out in this Clause 2.2 are without prejudice to and are not in derogation of any other rights or remedies that Nuvella may have under law or equity. The Subscribing Organisation will continue to be charged Fees for any Services provided during any period of delay in payment of any Fees
2.3 The Subscribing Organisation may increase its Subscription package and/ or modules of the SaaS Service or any other Service at any time during the Term, subject to mutual agreement of the Parties on the corresponding increase in Fees. Such mutual agreement shall be thereafter duly embodied in a signed document issued by the Subscribing Organisation.
2.4 Fees will be exclusive of all taxes and levies and will be charged separately to and borne by the Subscribing Organisation.
2.5 All recurring Services availed by the Subscribing Organisation will commence on the start date specified in this Agreement and will continue for the corresponding Service Period specified therein unless this Agreement is terminated in accordance with Clause 14 below. Except if otherwise specified or agreed in the applicable Service, and subject to clause 13 herein below, all recurring Services availed will automatically renew for additional periods equal to the expiring Service Period or one-year (whichever is shorter), unless either Party gives notice of cancellation at least thirty (30) days before the end of the relevant Service Period. The pricing during any such renewal period will be the same as that during the prior term, unless and subject to clause 2.1, Nuvella gives the Subscribing Organisation written advance notice of 30 days for a pricing increase and the same is acceptable to the Subscribing Organisation, in which case the pricing increase will be effective upon renewal and thereafter. In no event will any cancellation relieve the Subscribing Organisation of the obligation to pay any fees payable to Nuvella for the period prior to the effective date of cancellation provided that Subscribing Organisation has availed the Service provided by Nuvella.
RIGHT TO USE THE SAAS SERVICE
3.1 Subject to the Subscribing Organisation fulfilling all its payment obligations set out in Engagement Letter, Nuvella grants the Subscribing Organisation (and through it, each of the B2B Users) a limited, non-exclusive, non-transferable right to Use the SaaS Service that is valid only for the Subscription Period. All rights not expressly granted herein are reserved by Nuvella.
3.2 The Subscribing Organisation will ensure that any of the B2B Users do not (i) license, sublicense, sell, resell, reproduce, duplicate, copy, deconstruct, transfer, assign, distribute or otherwise commercially exploit any part of the SaaS Service ; (ii) modify or make derivative works based upon the SaaS Service; (iii) create Internet “links” to the SaaS Service or “frame” or “mirror” any Contention any other server or wireless or Internet-based device, unless expressly permitted in writing by Nuvella; or (iv) reverse engineer the underlying software in the SaaS Service or access the SaaS Service in order to (a) build a competitive product or service, or (b) build a product using similar ideas, features, functions or graphics as the underlying software in the SaaS Service or the SaaS Service, or (c) copy, distribute, publish any ideas, features, functions or graphics of the SaaS Service; (v) Use the SaaS Service for any purpose apart from the Business Purpose; (vi) modify, disrupt or interfere with the SaaS Service, supporting servers, or networks either manually or through the use of scripts, viruses, or worms, trojan horses or any other malicious code; and (vii) excessively overload the servers provided by Nuvella or systems used to provide the SaaS Service.
THIRD PARTY SERVERS AND SERVICES
In addition to this Agreement, Nuvella may from time to time frame policies regarding usage of the Service(s). All such policies and any modifications, amendments, revisions to such usage policies shall be informed and provided to the Subscribing Organisation by Nuvella and which shall be applicable to the Subscribing Organisation in connection with its use of the SaaS Service.
INTELLECTUAL PROPERTY RIGHTS
6.1 All Intellectual Property Rights in (i) the technology, software applications and tools used in providing the SaaS Service, (ii) any of the other Services and (iii)any know-how, specifications, inventions, processes, data or information supplied by Nuvella under or in connection with this Agreement (collectively “Nuvella Intellectual Property”) belong to and are the sole property of Nuvella. The Subscribing Organisation hereby acknowledges and agrees that all Intellectual Property Rights existing or arising in any Nuvella Intellectual Property will at all times belong to and remain vested in Nuvella and save as expressly provided hereunder, no proprietary rights or any other rights whatsoever are assigned, granted or otherwise passed to the Subscribing Organisation or any of its B2B Users. Any data, content, information supplied to Nuvella by Subscribing Organisation in connection with use of the Services of Nuvella shall be the property of Subscribing Organisation and Nuvella shall not misuse such data, content or information for its personal interest.
6.2 The Nuvella Intellectual Property is provided “AS IS” only for the Use contemplated hereunder and may not be otherwise used, or copied, sold, modified, reproduced, distributed, transmitted, broadcast, displayed, performed, licensed, or otherwise exploited for any other purposes whatsoever without Nuvella’s prior written consent.
7.1 The Subscribing Organisation hereby warrants that: (i) it is the owner of such Content, or has been granted all the rights necessary from the owner of such Content to submit such Content to Nuvella; (ii) the Use of such Content will not infringe or misappropriate the intellectual property rights of or otherwise violate the rights of any third party or the provisions of applicable law; (iii) in the case of Content that constitutes personal information of any person, it has obtained requisite consent for Use of such content and is otherwise in compliance with all data privacy and protection law applicable to the collection, storage, processing or transfer of such Content; and (iv) Nuvella, its officers, directors, employees are not responsible for any Content submitted in the course of Using the SaaS Services or any other Service, including the procurement of any consent from any person, for the collection, storage, processing or transfer of such Content, in the course of providing the SaaS Services or any other Service
7.2 Nuvella acknowledges that any and all Content, including copyrights, trademarks, database rights and other Intellectual Property Rights contained in such Content are owned by the Subscribing Organisation or the person submitting such Content. The Subscribing Organisation hereby grants Nuvella the permission to Use such Content (where owned by the Subscribing Organisation) or agrees to procure such right (where not owned by the Subscribing Organisation), only for the purpose of providing the SaaS Service or any other Service as per this Agreement. Nuvella does not obtain any right, title or interest in the Content, except as specifically granted herein in order to provide the Services to the Subscribing Organisation.
Nuvella agrees to (a) hold all Content in strict trust and confidence, (b) refrain from using or expressly permitting any third parties to use the Content in any manner or for any purpose not expressly permitted or required by this Agreement; provided that Nuvella will not have any liability hereunder for any use of the Content that it does not expressly permit, (c) refrain from disclosing or permitting others to disclose any Content to any third party, apart from its business partners and vendors, without obtaining the Subscribing Organisation’s express prior written consent on a case-by-case basis, and (d) limit access to the Content to its employees, agents, business partners or vendors, who have a reasonable need to have such access in order to provide the Service(s) or any related service offerings. Nuvella will ensure that each of its employees who will have access to any Content in the course of performing any Services has entered into a binding written agreement to safeguard the Content at least to the same degree as specified in this Clause 7.3. Provided however that Nuvella’s obligations under this Clause 7.3 will not extend to any particular Content that Nuvella can prove, by clear and convincing evidence that, (a) Nuvella lawfully knew prior to its first disclosure to Nuvella, (b) a third party rightfully disclosed to Nuvella free of any confidentiality duties or obligations, (c) is, or through no fault of Nuvella has become, generally available to the public, or (d) is required to be disclosed in accordance with applicable laws, regulations, court, judicial or other government order, provided that reasonable notice prior to such disclosure is given by Nuvella.
7.4 The Subscribing Organisation acknowledges that Nuvella does not pre-screen Content. However, Nuvella and its designees, contractors or subsidiaries will have the right (but not the obligation) in their sole discretion to refuse or to remove any Content that is considered illegal under the applicable laws in India, defamatory, derogatory, libellous, is obscene, inappropriate, hurting any religious sentiments or the like after due notification to the Subscribing Organisation. The Subscribing Organisation agrees that it is responsible for the accuracy, completeness, quality, integrity, legality, reliability, appropriateness and intellectual property ownership of the Content.
7.5 The Subscribing Organisation agrees that Nuvella has no responsibility or liability for the unauthorised, wilful or negligent access or use of, deletion, corruption, or alteration of, or the failure to upload, store or retrieve any Content maintained or transmitted by the SaaS Service.
7.6 The Subscribing Organisation agrees that it will not and will ensure that the B2B Users do not Use the Service(s) to share, store, or in any way distribute financial data that is not in accordance with law. Any person suspected of using the Service for fraud, embezzlement, money laundering, insider trading, support for terrorism, or any other activity proscribed by law or in violation of this Agreement may have their Accounts terminated, their financial data erased, and they also may be reported to law enforcement officials in the appropriate jurisdictions.
7.7 Within seven (7) days of termination of this Agreement for any reason, the Subscribing Organisation will send a notice to Nuvella seeking either (i) deletion of all Content in the possession of Nuvella, and Nuvella proof of such deletion or (ii) return of all Content in the form as available on the database of Nuvella at that time. If the Subscribing Organisation fails to send the notice seeking deletion or return of Content within the said seven (7) days, Nuvella shall be either return or permanently delete from its servers, all of the Subscribing Organization’s Content and all backup copies thereof, without further notice and without any liability of Nuvella to the Subscribing Organization, its Users or any third party.
Upon deletion or return of Content, as the case may be, Nuvella will cease to have any obligation under this Agreement or law, in relation to the Content.
LIABILITY FOR USERS OF SERVICES
In relation to B2B Users, the Subscribing Organisation hereby agrees that it will be solely responsible for (i) their acts and/or omissions in connection with their access and/or Use of the SaaS Service or any other Service and (ii) ensuring that their access and/or Use of the SaaS Service or any other Service is in compliance with this Agreement and any and all applicable local laws, rules and regulations (iii) any Content uploaded by them, including its appropriateness, confidentiality, accuracy, completeness, quality, integrity, legality, reliability, intellectual property ownership and legality. The Subscribing Organisation agrees to fully indemnify Nuvella and its affiliates, subsidiaries, licensors (collectively, “Representatives”) for any liability, fines, penalties, costs, claims and/or damages incurred by Nuvella and/or the Representatives in connection with any claim related to the access and/or Use of the SaaS Service or any other Service by B2B Users.
Subscribing Organisation’s Responsibilities
The Subscribing Organisation will Use the Service(s) subject to ensuring the following: (a) that it will: i. comply with any and all instructions provided to by Nuvella relating to Use of the Service(s); ii. make available to Nuvella such accurate information, documentation, data and such other assistance as Nuvella may reasonably require to provide the Service(s), including information required for creating Accounts and billing; iii. comply with this Agreement in Using the Service(s); and iv. to identify the Subscribing Organisation as a customer of Nuvella during the term of this Agreement. v. permit Nuvella to use Subscribing Organisation’s name, trademarks, logos for the purpose of indicating Subscribing Organisation as a customer and for promotional work to the benefit of Subscribing Organisation. vi. to protect the Subscribing Organisation’s customers personal information (personal information shall include name, address, telephone number, email address and any other personally identifiable information) that Nuvella collects from such customers of the Subscribing Organisation whilst providing the SaaS Services. (b) that it will NOT: i. circumvent, disable, modify, disrupt or interfere with the Service(s), supporting servers, or networks either manually or through the Use of scripts, viruses, or worms or other malicious codes; ii. reproduce, duplicate, copy, reverse engineer, deconstruct, sell, trade the Service(s) or the underlying technology; iii. excessively overload the Nuvella systems Used to provide the Service(s) and will adhere to the storage limits set by Nuvella; iv. copy or distribute or publish any part of the Service(s) in any medium; v. Use the Service(s) for any immoral or illegal purpose; vi. Use the Service(s) to send unsolicited messages, email or other communications; and vii. Use the Service(s) or Content in a manner that violates any applicable law, regulation, this Agreement and usage policies of Nuvella.
9.2 Nuvella’s Responsibilities Nuvella will ensure the following while providing the Services: (a) that all Services are provided in a continuous (not including any server downtime not attributable to the Company, scheduled maintenance or any other interruptions in Services which cannot be attributed to the Company) and workmanlike manner commensurate with applicable industry standards; (b) that such part of the SaaS Services that are not dependant on the Subscribing Organisation’s or third party systems, servers or services, are provided in accordance with stated functionality, service levels relating to service availability, issue resolution and troubleshooting; (c) that B2B Users identified by the Subscribing Organisation are given valid Accounts and permitted unlimited access to the B2B Interface for the duration of the Subscription Period; and (d) that business partner websites of the Subscribing Organisation are furnished API access to the SaaS Service on a need-be basis.
DISCLAIMER OF WARRANTIES
THE SUBSCRIBING ORGANISATION EXPRESSLY UNDERSTANDS AND AGREES THAT:
10.1 ITS USE OF THE SERVICE(S) IS AT ITS SOLE RISK. THE SERVICE(S) IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NUVELLAAND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE(S) INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, DATA LOSS, NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY THIRD PARTY RIGHTS OR THE ACCURACY, RELIABILITY OF THE SERVICE(S).
10.2 NUVELLAAND OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND LICENSORS (IF ANY) MAKE NO WARRANTY THAT (i) THE SERVICE(S) WILL MEET THE SUBSCRIBING ORGANISATION’S REQUIREMENTS OR RESULT IN REVENUES OR PROFITS, (ii) THE SERVICE(S) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE(S), INCLUDING BUT NOT LIMITED TO REPORTS, FINANCIAL STATEMENTS, ETC, WILL BE ACCURATE OR RELIABLE, (AND (Iv) THAT THE SERVICE(S) WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE OR SYSTEM. WHILE NUVELLA WILL USE COMMERCIALLY REASONABLE EFFORTS TO PREVENT UNAUTHORIZED ACCESS TO CONTENT, NUVELLAAND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND LICENSORS MAKE NO WARRANTY THAT SUCH CONTENT WILL BE SECURE AGAINST SUCH UNAUTHORIZED ACCESS OR OTHER SECURITY BREACHES. NUVELLAEXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT THE SUBSCRIBING ORGANISATION’S USE OF THE SERVICE(S) WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS IN INDIA OR ACROSS THE WORLD. THE SUBSCRIBING ORGANISATIONIS SOLELY RESPONSIBLE FOR ENSURING THAT ITSUSE OF THE SERVICE(S), RELATED SERVICES OR CONTENT IS IN ACCORDANCE WITH APPLICABLE LAW. USE OF THE SERVICE(S) AND THE ACCOUNT ARE AT THE SUBSCRIBING ORGANIZATION’S AND USER’S SOLE RISK. THE SUBSCRIBING ORGANIZATION AND ITS USERS WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO THE SUBSCRIBING ORGANIZATION, ANY USER, THE ACCOUNT RESULTING FROM THE USE OF THE SERVICE OR B2B INTERFACE.
10.3 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE(S) IS DOWNLOADED OR OBTAINED AT THE SUBSCRIBING ORGANIZATION’S AND USER’S OWN DISCRETION AND RISK AND THE SUBSCRIBING ORGANIZATION’S AND USER’S WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO THEIR COMPUTER SYSTEMS OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
10.4 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY THE SUBSCRIBING ORGANIZATION FROM NUVELLAOR THROUGH OR FROM THE SERVICE(S) WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
10.5 In jurisdictions that do not allow limitations on implied warranties, the above limitation may not apply to either the Subscribing Organization or the User. In that event, such warranties will be limited to the minimum warranty scope and period allowed by applicable law.
11.1 The Subscribing Organisation agrees to indemnify and hold harmless Nuvella, and its directors, officers, agents and employees (“Indemnitees”), from any and all claims, damages, liabilities, costs, and expenses at actual (including reasonable legal fees and expenses) arising out of, or related to, (i) any Content, (ii) the Use of the Service(s), (iii) the Subscribing Organisation’s violation of the Agreement, or any proprietary or other rights of another;(iv) the placement or transmission of any message, information, software or other materials through the Service by the Subscribing Organisation or any User; or (iv) the Subscribing Organisation’s breach of any confidentiality obligations owed to another.
11.2 Nuvella will at its own cost and expense, indemnify, defend and hold harmless the Subscribing Organisation against any claim for losses arising out of or related(i) the Subscribing Organisation’s customer’s claims in relation to the unauthorized leakage of any Personal Information of the customers which is attributable to Nuvella or for any software related issues that interfere with the customer interface and which result in actual loss to such customer (ii) to any such claim that the SaaS Service or any Nuvella Intellectual Property infringes the intellectual property rights of a third party. If any SaaS Service or any Nuvella Intellectual Property are held to infringe any intellectual property right, Nuvella will, at its expense, (a) obtain the right for the Subscribing Organisation to continue to Use the SaaS Service or the infringing Nuvella Intellectual Property for the duration of the Subscription Period or Service Period, as the case may be; (b) modify the relevant portion of the SaaS Service or the Nuvella Intellectual Property so that they are non-infringing; (c) replace the SaaS Service or the Nuvella Intellectual Property with non-infringing substitutes; or (d) terminate this Agreement and refund entire Subscription Fees. It is agreed that Nuvella will control and defend any suit filed against the Subscribing Organisation by any third party for intellectual property rights infringement in the SaaS Service or the Nuvella Intellectual Property at it’s own cost and consequences.
LIMITATION OF LIABILITY
12.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL NUVELLA, ITS PARENTS, SUBSIDIARIES, OFFICERS, EMPLOYEES, SPONSORS, PARTNERS, SUPPLIERS, LICENSORS OR AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL LOSS (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, PROCUREMENT OF SUBSTITUTE SERVICES, OR ANY OTHER PECUNIARY LOSS) LOSS OF GOODWILL OR OTHER INTANGIBLE LOSSES OR EXEMPLARY DAMAGES, RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE(S); (ii) UNAUTHORIZED ACCESS TO OR ALTERATION OF THE SUBSCRIBING ORGANISATION’S OR ANY USER’S TRANSMISSIONS OR CONTENT; (iii) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE(S); OR (v) ANY OTHER MATTER RELATING TO THE SERVICE(S).
12.2 THE SUBSCRIBING ORGANISATION ALSO AGREES THAT NUVELLAWILL NOT BE LIABLE FOR ANY (a) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE SERVICE(S); (b) CONTENT NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; (c) UNAUTHORIZED ACCESS TO CONTENT ENTERED IN, OR BREACH OF ANY SECURITY MECHANISMS UTILIZED IN, THE SERVICE(S); OR (d) EVENTS BEYOND NUVELLA’S REASONABLE CONTROL.
12.3 IN NO EVENT WILL NUVELLA’S MAXIMUM AGGREGATE LIABILITY EXCEED EITHER (a) THE TOTAL AMOUNT PAID BY THE SUBSCRIBING ORGANISATION TONUVELLAFOR THE SERVICE(S) in that particular year in which the Services were provided.
TERM OF THE AGREEMENT
This Agreement will commence from the Effective Date and will subsist until such time that: a. The Subscribing Organisation communicates its intention to cancel its Subscription to the SaaS Service in accordance with Clause 2.5 above; or b. This Agreement is terminated in accordance with the provisions of Clause 14 below.
14.1 Apart from its rights of termination set out in Clause 2.5 above and Clause 14.1 below, Nuvella may terminate this Agreement at any time, if: a. Nuvella believes that the Subscribing Organisation has violated or is threatening to violate the Agreement or other policies of Nuvella, its third party providers or applicable law, or has misused or is threatening to misuse the Service(s), or has Used the Service(s) to conduct any fraudulent, abusive, or illegal activity after providing the Subscribing Organisation thirty (30) days prior written notice of the intention to terminate; b. the Subscribing Organisation has assigned its rights to Use any part of the Service without consent of the Nuvella; c. Nuvella cancels or discontinues the SaaS Service or any part thereof for valid reason, after providing the Subscribing Organisation thirty (30) days prior written notice of the intention to discontinue or cancel the SaaS Service; d. [Deleted]; e. the Subscribing Organisation fails to pay Fees for Service(s) by the Due Date for two (2) or more consecutive billing months; f. the Subscribing Organisation is in process of dissolution or liquidation or winding up according to the laws of India or a petition under any bankruptcy law is filed by or against the Subscribing Organisation; or g. By providing the Subscribing Organisation sixty (60) days written notice.
14.2 Apart from its rights of termination set out in Clause 14.1 above, the Subscribing Organisation may terminate this Agreement at any time, if: a. Nuvella breaches any of its obligations under this Agreement and has not rectified such breach within thirty (30) days of written notice in this regard provided by the Subscribing Organisation; b. Nuvella is in process of dissolution or liquidation or winding up according to the laws of India or a petition under any bankruptcy law is filed by or against Nuvella; or c. By providing Nuvella sixty (60) days written notice. d. In the event this Agreement is terminated by Subscribing Organisation due to interruption of services or inability to use Services provided by Nuvella, for reasons wholly attributable to Nuvella, the Subscribing Organisation shall not be liable to pay for period during which it could not availed the services of Nuvella for any reason whatsoever.
14.3 In the event Nuvella terminates this Agreement for convenience during the pendency of any Subscription Period or Service Period, Nuvella may either refund the Subscription Fees or other Fees after deducting therefrom such amounts as are commensurate with the Services already rendered or continue providing the relevant Services till the expiry of the relevant Service Period.
14.4 Notwithstanding anything in this Agreement to the contrary, if Nuvella reasonably believes that the Subscribing Organization or any of its Users or third party permitted to Use the Service has violated or is threatening to violate applicable law or the provisions of this Agreement or has conducted or is threatening to conduct any fraudulent, abusive, or illegal activity, Nuvella may, not before expiry of 7 days written notice to Subscribing Organisation, refer the Subscribing Organization or its Users or third parties permitted to Use the Service to appropriate law enforcement agencies, or immediately remove and permanently delete all Content and Accounts provided herein.
14.5 The provisions of Clauses 1, 7, 8, 10, 11 and 12 will survive the termination of this Agreement.
This Agreement and any rights and permissions granted hereunder, may not be transferred or assigned by both the Parties without prior written consent of the other.
16.1 Force Majeure Apart from any monetary obligations of either Party under this Agreement, neither Party shall be liable for failure to perform any of its obligations hereunder if such performance is prevented, restricted or interfered with by reason of war or other violence; any law, or regulation of any government; fire, or other causality or accident; strike or labour disputes; or any act or condition whatsoever beyond the reasonable control of such Party (each such occurrence being hereinafter referred to as a “Force Majeure Event”). If a Force Majeure Event does occur, the Party whose ability to perform is affected shall be excused from performance, to the extent of the restriction or interference. The Party being affected shall give prompt notice within a period of five days from the date of the Force Majeure Event, providing a description to the other Party of such Force Majeure Event, the cause of the Force Majeure Event and the nature and extent of performance impacted thereby. Provided however that such Party shall use all commercially reasonable efforts to, as soon as possible, avoid or remove such cause of non-performance and shall continue performance hereunder whenever such causes are removed. Provided further, that if any such delay continues for a period of more than 60 days from the date on which notice of the Force Majeure Event is served, the Party not claiming excusable delay shall have the option of terminating this Agreement upon the expiry of such 60-day period without prejudice to the rights and contentions as may be admissible under this Agreement.
Nothing in this Agreement will be deemed to constitute a partnership or a joint venture between the Subscribing Organisation and Nuvella. Further, nothing contained in this Agreement will constitute the Subscribing Organisation as the agent of Nuvella or otherwise entitle the Subscribing Organisation to have authority to bind Nuvella for any purpose.
16.3 Dispute Resolution
All disputes between the Subscribing Organisation and Nuvella arising out of or in connection with this Agreement or the Subscribing Organisation’s Use of the Service(s) will first be settled by mutual negotiations and agreement. If, for any reason, such dispute cannot be resolved amicably within 30 calendar days of the dispute being notified by either the Subscribing Organisation or Nuvella to the other, the same shall be subject to arbitration as per the Arbitration and Conciliation Act, 1996 or any subsequent enactment or amendment thereto and the place of arbitration will be Mumbai; provided however that either Party shall be entitled to seek specific performance or injunctive relief by a courts at Bangalore having jurisdiction, with respect to any claims which the Party claiming relief can prove are by their very nature, claims that necessitate the reliefs of specific performance or injunction. The Sole Arbitrator shall be appointed by mutual consent of both the Parties. The arbitration will be conducted in English. The award of the arbitration proceedings will be final and binding on both the Subscribing Organisation and Nuvella.
16.4 Governing Law and Jurisdiction
Subject to the dispute resolution clause above all disputes between the Subscribing Organisation and Nuvella that arises in whole or in part from the Use of the Service(s)or otherwise under this Agreement will be decided exclusively by a court of competent jurisdiction located in Bangalore only. This Agreement will be governed by the laws of India.
16.5 Entire Agreement
The Subscribing Organisation and Nuvella acknowledge that they have read this Agreement, and understand it, and agree to be bound by its terms, and further agree that this along with (a) Annexes and (b) terms of usage of the Services made available by Nuvella from time to time, are the complete and exclusive statement of the understanding between the Parties, which supersede and merge all prior proposals, understandings and all other agreements and all other communications, oral and written, between the Parties with respect to the subject matter hereof.
If any provision(s) of this Agreement are deemed invalid by a court of competent jurisdiction, the invalidity of such provision(s) will not affect the validity of the remaining provisions of this Agreement which will remain in full force and effect.
No waiver of any obligation of this Agreement will be deemed a further or continuing waiver of such term or any other term, and either Party’s failure to assert any right or provision under this Agreement will not constitute a waiver of such right or provision.
Any communication or notice required or permitted to be given either by Nuvella or by the Subscribing Organisation, pursuant to this Agreement shall be sent by registered post addressed to the address first abovementioned against their name in the title page of this Agreement.