Annual Maintenance Terms and Conditions
Celoxis Technologies Pvt. Ltd. ("Company") and the individual or entity desirous of availing the annual maintenance services ("Customer") agree that the following terms and conditions ("Terms") apply to any Customer request accepted by Company to provide Technical Support (defined below), with regard to the software Product (defined below).
If Customer is entering into these Terms on behalf of a company or other legal entity, Customer represents that it has the authority to bind such entity to these Terms and, in such an event, "Customer" as used in these Terms shall refer to such entity. If Customer does not have such an authority or does not agree to these Terms, then Customer must not accept these Terms and may not use Technical Support.
Customer may not access and/or use Technical Support, if Customer is Company's competitor, except with prior written consent of Company. In addition, Customer may not access and/or use Technical Support for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
Company and Customer shall hereinafter be referred to as the "Party" and collectively as the "Parties".
- "Error" means a material failure of Products to perform in accordance with their documentation.
- "Fix" means the repair or replacement, undertaken by Company on a commercially reasonable basis, of object or executable code versions of Products or parts thereof to remedy an Error.
- "License Fees" shall mean the total User license fees paid by Customer to Company for availing a license to Product.
- "Product(s)" means Company's project management tool, namely, "Celoxis" for which Customer has acquired a license to use.
- "Support Year" means a one (01) year period commencing from the date of the issuance of the license key by Company to Customer, or the first invoice raised by Company on Customer, whichever is earlier, and any renewal thereof.
- "Technical Support" means the support and maintenance services provided by Company to Customer and as described in Appendix A to these Terms.
- "Workaround" means a change in the procedures followed or data supplied by Customer to avoid an Error without substantially impairing Customer's use of Product.
- "Upgrades" means a new version of Product developed by Company and containing new features or functionalities not available in previous versions of Product used by Customer and made available by Company to Customer at its discretion, which may be at additional cost, as communicated in advance by Company to Customer, during the Support Year.
- "Updates" means updates to Products that Company in its discretion makes generally available to Customer without additional charge, during the Support Year.
- "User(s)" shall mean the users authorized by Customer to use Product.
- Customer shall be entitled to Technical Support only after payment of the Support Fees to Company.
- Customer understands and acknowledges that Technical Support shall be free for the first Support Year and shall be chargeable after the expiry of the first Support Year, and Customer shall have the option to opt for such Support, along with patches, offered by Company.
- Company shall provide Technical Support to Customer in respect of Products during the subsistence of the Support Year, provided that Customer pays to Company, the Support Fees (as defined below) for each Support Year in accordance with the provisions of section 4 (Payment Terms) below.
- Customer understands and acknowledges that Company shall not be bound to provide any Technical Support or other services to Customer that are not expressly listed in the scope of Technical Support in Appendix A.
- Technical Support will be available on a "best efforts" basis, during Monday to Friday round the clock (24/5), excluding public holidays in India.
- Company shall provide Technical Support by email, and response time for the same will typically be one (01) business day.
- Customer understands and acknowledges that Customer shall be entitled to raise a fixed number of tickets, not exceeding fifteen (15) in a given month. In case Customer exceeds such aforementioned number of tickets, processing of any further tickets raised by Customer shall be at additional cost as determined by Company and communicated to Customer.
- Company will give Customer access to Company's Customer Service Portal ("CSP"). Customer shall make all requests for Technical Support only through such CSP. In the event the CSP is inaccessible or unavailable for any reason whatsoever, Customer may contact Company by writing to email@example.com.
- Company shall take commercially reasonable efforts to address and correct only those Errors covered under the scope of Technical Support that are communicated to Company through the CSP. Customer understands and acknowledges that Company does not guarantee, in any way whatsoever, that such Errors will be fixed.
- Customer understands and acknowledges that the Upgrades and Updates are subject to modifications and discontinuance at the sole discretion of Company and may alter and/or delete certain functionalities of Product.
- Customer may, in its discretion, choose not to opt for Upgrades, and in such an eventuality, Customer understands and acknowledges that Customer will not be entitled to avail Technical Support.
- Subject to section 2(xi) above, during a Support Year, Customer shall receive Updates and Upgrades that may be released and made available by Company during such Support Year.
- Further, Customer understands and acknowledges that Technical Support for a particular version of Product will be discontinued after the expiry of two (02) years from the date a newer version of Product is released by Company.
- Customer shall not be entitled to avail any Upgrades and/or Updates in case of non-renewal of Technical Support.
- Customer understands and acknowledges that if Customer is using an unsupported version of Product, data migration is not guaranteed by Company and will be the sole responsibility of Customer.
- Customer understands and acknowledges that Company shall not be obligated to provide Technical Support for any version of Product that has been altered/modified in any way by Customer, especially without using the Application Program Interface (APIs) provided by Company. In the event Customer carries out any such alterations/modifications, Company may, at its sole discretion, with or without cost, either fully or in part, provide or reject Technical Support.
3. CUSTOMER'S RESPONSIBILITIES:
Customer shall be responsible for the following:
- Customer shall carry out all the recommendations suggested by Company for determining the nature or cause of an Error and for the resolution of the same.
- Customer shall promptly implement the corrections of the Errors and maintenance releases provided by Company in Product.
- Customer shall give Company and its personnel full access (physical and/or remote, as the case may be) to the environment, to Product and the designated hardware and equipment as may be requested by Company to enable Company to provide Technical Support.
- Customer shall ensure that remote connectivity is established and provided to Company, to access Customer database to examine the problem and resolve any reported problems. If specific instances so require, Customer shall provide the relevant data dump to Company's support personnel to simulate the reported problem for resolution. Customer understands and acknowledges that any failure of Customer to provide the data dump or failure to establish remote connectivity shall have an impact on Technical Support to be provided by Company.
- In the event Customer is unable to provide remote connectivity, Company shall, at its discretion, depute an onsite resource to resolve the problem at an additional charge as may be mutually agreed between the Parties.
- In situations where Company provides Technical Support at Customer's premises, Customer shall make available to Company's personnel a designated workplace, computers, communication facilities, internet access, access to the deployment environments requiring analysis and other necessary facilities at no additional cost to Company. Customer shall also be responsible for ensuring the safety and security of Company's personnel while providing Technical Support at Customer's premises.
- Customer shall ensure that all the hardware, software, infrastructure, support, information, approval, consent, feedback or any other resources or inputs that may be necessary or required for rendering Technical Support under these Terms and requested for by Company or Company's personnel is made available to them promptly and within the time specified by them.
- Customer shall be solely responsible for maintenance and support of all the hardware, software, servers, networking products, other equipment and operating systems and/or database software, on or with which Customer operates Product.
- Customer may install Product on a dedicated server or on a shared server. Customer shall ensure that Product's performance is not adversely affected by other applications and there is sufficient memory and disk space available for Product.
- Customer shall be responsible for securing Customer data from unauthorised access and/or use.
- Customer acknowledges that its failure to utilize Technical Support provided by Company may prevent Company from being able to identify and assist in the correction of potential problems which, in turn, could result in unsatisfactory performance or other issues with Product.
- In the event any Company personnel are required to travel outside Pune, Customer shall reimburse Company any reasonable travel and lodging expenses incurred in connection with the provision of Technical Support under these Terms.
- Customer shall ensure to take backup of all its data before implementing any suggestions provided by the personnel of Company in the course of providing Technical Support.
- Customer understands and acknowledges that Company stores Customer data in its database and file system. Customer shall have the skills to configure, optimise, manage, monitor and backup Customer data. Customer shall take regular backups of Customer data. Customer shall perform routine maintenance activities like re-indexing Customer data and running SQL queries as may be required by the Company's support team.
- Customer understands and acknowledges that some issues may arise with regard to application of Updates and Upgrades and Customer shall take a backup of Customer data and restore it in the event of such contingency.
- Customer understands and acknowledges that Product is web based and the Customer shall manage DNS, firewalls, proxies and other applications and systems depending on Customer's infrastructure.
- Customer understands and acknowledges that Product also interacts with Customer's email server, in order to send and receive email notifications. Customer shall manage Customer's SMTP and IMAP servers in order to enable the sending and receiving of such notifications.
- Customer shall not tamper with, or make any alterations and/or modifications, including but not limited to adding, changing or deleting tables, columns, indexes or triggers, with regard to the database on which Product runs.
4. PAYMENT TERMS:
Customer shall pay Company, fees for Technical Support (the "Support Fees") as provided below:
- Support Fees for the first Support Year shall be as detailed in Appendix B.
- Customer understands and acknowledges that Support Fees once paid shall be non-refundable.
- Support Fees for each subsequent Support Year shall be as per the rates stated in Appendix B. Company reserves the right to revise the said rates.
- Support Fees for onsite support shall be charged separately as per the mutually agreed rates between the Parties.
- Fees for services that are not covered within the scope of Technical Support shall be agreed upon separately between the Parties.
- In the event Customer does not subscribe to Technical Support for any Support Year/s or part thereof and decides to commence or recommence Technical Support, Customer shall be required to pay the Support Fees for the entire duration of such unsubscribed Support Year/s or part thereof, as the case may be.
- Customer shall pay the applicable Support Fees at the beginning of each Support Year.
- Customer shall bear all applicable taxes and levies arising under these Terms.
- In the event there is a delay in payment of Support Fees, Company shall be entitled to charge Company a penalty of 1.5% per month or the highest permitted under the law, whichever is higher, on any delay in payment of the Support Fees, accruing from the first date of default up to the date of actual payment in full. In addition, without prejudice to any of its other rights, Company shall also have the right to suspend Technical Support, terminate these Terms, recover the outstanding amounts (including the penalty, if any) or take recourse to any other remedy that Company may deem fit.
- In the event Customer does not renew Technical Support and wishes to avail such Technical Support at a later date, two options shall be available to Customer: a) to pay the entire Support Fees, as per the then rate charged by Company for such Technical Support, for the duration when Product was unsupported; or b) to purchase a license of the latest version of Product.
- However, if more than two (02) years have passed since the non-renewal of Technical Support by Customer, Customer will not be entitled to avail Technical Support and will be required to purchase a license of the latest version of Product.
- Company reserves the right to increase Support Fees year on year. For the sake of clarity, no such increase shall take place during the Support Year for which Customer has already paid Support Fees.
- Customer may choose to add additional Users during a particular Support Year. Company shall charge Support Fees for such additional Users at the then rates applicable for such Users. Company shall charge Support Fees proportionally for the remainder of such Support Year, along with the then rates applicable for the additional Users.
5. TERM AND TERMINATION:
- Subject to the provisions of section 2(xi), at the end of each Support Year, Customer's subscription to Technical Support shall automatically stand renewed for the next Support Year unless either Party notifies the other Party of its intention not to renew such Technical Support at least sixty (60) days prior to completion of the then current Support Year, or unless these Terms are terminated pursuant to Section 5 (ii) below. Unless otherwise agreed by and between the Parties, any such automatic renewal shall be as per these Terms.
- Either Party may terminate these Terms if the other Party breaches a material term or condition of these Terms and fails to cure such breach upon thirty (30) days written notice.
6. LIMITED WARRANTY:
- Company warrants that Technical Support will be performed in a workmanlike manner, in accordance with industry standards.
- Except the limited warranty mentioned in clause (i) above, Company makes no other warranty, express or implied, with respect to the subject matter of these Terms, including, but not limited to, any implied warranty of merchantability or fitness for a particular purpose or any other warranty of any kind with respect to Technical Support provided or any materials furnished by Company to Customer hereunder.
- Customer agrees not to disclose any confidential information of Company regarding Products (including without limitation the software code and the documentation) or information that is otherwise disclosed by Company to Customer in connection with these Terms (including without limitation these Terms, information about other products and services, customer information, transaction data, financial data, supplier information, business requirements, software, systems, marketing philosophy, objectives, pricing information, data compilations, methodologies and strategies, competitive advantages and disadvantages, financial results, technological developments and trade secrets) (collectively, "Confidential Information"). Customer shall take reasonable measures to maintain the confidentiality of the Confidential Information in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of a similar nature. Customer shall not use any Confidential Information for any purpose other than in connection with the performance of its obligations under, and as permitted by these Terms. Customer may disclose the Confidential Information to its employees or consultants only on a "need to know" basis for the performance of these Terms (subject to disclosure restrictions comparable to those set forth herein), and shall remain responsible for all use of the Confidential Information by such employees or consultants. Furthermore, Customer may disclose the Confidential Information (i) to the extent required by law or pursuant to the order or requirement of, or in connection with proceedings before a court, administrative agency or other governmental body, provided that before such disclosure is made Customer has, to the extent permissible by law, made reasonable efforts to notify Company of the intended disclosure to allow Company an opportunity to object to the disclosure; and (ii) to the extent required and on a confidential basis to its legal, financial and other advisors.
- Confidential Information shall not include information that (i) is or becomes generally known to the public through no breach of any confidentiality obligation; (ii) is rightfully known to Customer (as can be demonstrated by its written records) at the time of disclosure by Company without violation of any confidentiality restriction and without any restriction on Customer's further use or disclosure; or (iii) is independently developed by Customer (as can be demonstrated by its written records) without any use of or reference to Company's Confidential Information.
8. INTELLECTUAL PROPERTY RIGHTS:
Customer acknowledges that Products shall at all times remain the property of Company and Customer shall not claim any right, title or interest in the same. Customer shall not be entitled to any trademark, trade name, patent, design, copyright or other intellectual property rights of Company.
9. LIMITATION OF LIABILITY:
Notwithstanding anything contained in these Terms, Company shall not be liable for any indirect, incidental, punitive or consequential damages including damages suffered due to loss of profit or loss of production. In any case, the maximum aggregate liability of Company shall be limited to USD 1000 or fifty percent (50) % the Support Fees paid by Customer to Company in the Support Year in which the claim has arisen, whichever is lesser.
10. DISPUTE RESOLUTION:
In case of any dispute between the Parties which cannot be settled amicably within a period of thirty (30) days of a written notice being served by either Party on the other, such dispute shall be finally settled by a sole arbitrator to be mutually appointed by the Parties, in the event that the Parties cannot agree upon a sole arbitrator, each Party shall appoint an arbitrator and the two arbitrators shall mutually appoint the third presiding arbitrator in accordance with the Arbitration & Conciliation Act, 1996 (as amended from time to time). The arbitration proceedings shall take place in Pune, Maharashtra, India. The award of the arbitrator shall be final and binding on the Parties. The arbitration proceedings shall be conducted in the English language. During the pendency of the arbitration proceedings, the Parties shall continue to perform their respective obligations under these Terms.
11. FORCE MAJEURE:
Neither Party shall be held responsible for the failure to deliver the goods/materials hereunder where such failure or delay is due to any act of God, a public enemy or war, civil unrest, strike, labor disputes, major fire or flood or any other occurrence that is beyond reasonable control of a party claiming force majeure. Any Party whose performance is affected by such force majeure shall promptly give notice to the other Party of the occurrence or circumstance upon which it intends to rely to excuse its performance. If the circumstances of force majeure affecting either Party's performance hereunder delays performance for more than thirty (30) calendar days, then the other Party may terminate these Terms upon five (5) calendar days advance written notice.
12. GOVERNING LAWS AND DISPUTE RESOLUTION:
These Terms shall be governed by the laws of the Republic of India. Any dispute arising, between the Parties shall be submitted to arbitration to be conducted in Pune, India in English language, in accordance with the Rules of Arbitration and Conciliation, of the Bombay Chamber of Commerce and Industry by a sole arbitrator, who shall be appointed by the Administrator of Bombay Chamber of Commerce and the award made in pursuance thereof shall be binding on the Parties. The dispute resolution and arbitration process mentioned in this section will not prohibit the Parties from approaching the courts for appropriate interim reliefs. Parties further agree that the courts in Pune, India shall have the exclusive jurisdiction to try such disputes.
13. ENTIRE AGREEMENT:
These Terms shall constitute the entire agreement between the Parties and cannot be changed or terminated orally. All amendments shall automatically become an integral part of these Terms.
- Interpretation:These Terms will in all events be construed as a whole, according to its fair meaning, and not strictly for or against a Party merely because that Party (or the Party's legal representative) drafted the Terms. The headings, titles, and captions contained in these Terms are merely for reference and do not define, limit, extend, or describe the scope of these Terms or any provision herein. Unless the context requires otherwise, (a) the gender (or lack of gender) of all words used in these Terms includes the masculine, feminine, and neuter, and (b) the word "including" means "including, without limitation".
- Independent Contractors:Company and Customer are and at all times shall be, independent contractors in all matters relating to these Terms. Neither these Terms nor the co-operation of the Parties contemplated under these Terms will be deemed or construed to create any partnership, joint venture and employer-employee or agency relationship between them.
- Assignment:These Terms and the rights and obligations under it are not assignable by Customer without the prior written approval of Company. Any assignment by Customer in violation of this section, shall be void. Company may assign any of its rights or obligations under these Terms to any entity and in such event, Company shall only be liable to notify Customer about such assignment.
- Severability:If any provision of these Terms is found by competent court to be unenforceable in any respect, the validity of the remainder of these Terms will be unaffected, and such provision shall be interpreted to extend only to such a scope as to which it may be enforceable.
- Waiver:Failure to exercise, or any delay in exercising, any right or remedy provided under these Terms shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under these Terms or by law shall preclude or restrict the further exercise of that or any other right or remedy.
APPENDIX A - TECHNICAL SUPPORT
- The scope of Technical Support will be limited to Product.
- Company shall not troubleshoot or configure operating systems, databases, web servers, mail servers, networking software, cache servers, or any other hardware or software component(s) that is not included in Product.
- Product integrates with other software components e.g. databases, SSO providers, etc. based on open standards. Company shall not troubleshoot or configure these software components that integrate with Product but are not part of Product. Customer must use software tools provided by Company to troubleshoot connectivity and other issues.
- Company shall not troubleshoot performance issues with Product unless Customer provides sufficient technical evidence.
- If after installation, Product is accessible on its default port numbers from the host on which it is installed, Product shall be deemed to be working.
APPENDIX B - SUPPORT FEES
- Support Fees shall be charged at the rate of thirty three percent (33%) of the License Fees.
- Discounts (if any) offered by Company to Customer on the License Fees shall not be considered while computing Support Fees.
- Support Fees shall be charged only on the Licensee Fees and not for installation of Product or training related to Product.