This software license and services agreement is made on the Effective Date, by and between :

 

HK Infoware Limited, a company incorporated under the provisions of the Companies Act, 2013 and having its registered office at 9, Kalibari Lane, Jadavpur, Kolkata - 700032 (hereinafter referred to as the ‘Company’, which expression shall, unless repugnant to the context or meaning thereof, mean and include its successors and permitted assigns) of the ONE PART;

 

AND

 

The Subscriber, which expression shall, unless repugnant to the context or meaning thereof, mean and include its successors and permitted assigns) of the OTHER PART.

 

(The Company and the Subscriber, together and collectively for the purpose of this Agreement shall be referred to as the ‘Parties’ and individually as a ‘Party’, as the context may require.)

 

WHEREAS

 

A. The Company is, inter-alia, engaged in the business of developing technology products for educational institutions, including technology products and services related to online attendance tracking, leave/absence management, report generation, data analytics and administrative functions.

 

B. The Company has developed and is the owner of the Platform (as defined hereinafter) and owns all rights, title and interest (including the Intellectual Property Rights) thereto.

 

C. The Subscriber is desirous of obtaining from the Company the License (as defined hereinafter) to use the Platform and avail the Services (as defined hereinafter), and the Company has agreed to (a) grant a limited, non-exclusive, non-transferable, non-assignable, non-sub-licensable and revocable License to use the Platform during the Term (as defined hereinafter); and (b) provide the Services to the Subscriber, on such terms and conditions as agreed to between the Parties under the Proposal (as defined hereinafter) and this Agreement.

 

D. The Parties have entered into the present agreement by means of acceptance of a proposal, which sets out certain terms and conditions in relation to the Platform and the Services (‘Proposal’). Incorporated by reference in the Proposal is an agreement between the Subscriber and the Company to abide by the terms and conditions set out herein.

 

E. The Proposal and the terms and conditions set out herein forms the basis and agreement, which forms the basis of the use by the Subscriber of the Platform and Services being provided by the Company. The terms contained herein as well as in the Proposal forms the mutual agreement and understanding regarding the License to use the Platform and provision of the Services.

 

NOW THEREFORE, in consideration of the mutual agreements and covenants hereinafter set forth and for good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:

 

1. Definitions

   In this Agreement, (a) capitalised terms defined by inclusion in quotations and/or parenthesis have the meaning so ascribed; and (b) the following terms shall have the meaning assigned to them herein below:

    

   1. ‘Affiliate’ shall mean in respect of a Person (“Subject Person”), any other Person(s) that, either directly or indirectly through one or more intermediate Persons, Controls, is Controlled by or is under common Control with the Subject Person.
   2. ‘Agreement’ shall mean this Agreement, including the Annexures and attachments hereto, the Proposal and any written agreement between the Parties which is supplementary to or an amendment of or confirmation of the Proposal and/or the terms and conditions contained herein.
   3. ‘Annexures’ shall mean the Annexures to this Agreement as referred to in this Agreement.
   4. “Confidential Information” shall include classified information, inventions, discoveries, know how, ideas, computer programs, source codes, object codes, designs, algorithms, processes and structures, product information, research and development information, lists of clients, and other information relating thereto, financial data and information, business plans and processes, and any other information that the Company may disclose to the Subscriber, or that the Subscriber may know by virtue of its position or the circumstances in which it learned it. Confidential Information also includes information obtained by the Subscriber in confidence from third parties, including its subcontractors, consultants, or clients and any other information of a private, confidential or secret nature concerning the Company whether or not relating to the business of the Company.
   5. ‘Control’ shall mean the power (including through one or more persons) to direct the management or policies of any Person, whether through the ownership of 50% or more of the voting power of such Person or through the power to appoint (more than half of the board of directors or similar governing body of such entity or through contractual arrangements or otherwise.
   6. “Derivative Works” shall mean revisions, improvements, alterations, adaptations, modifications, translations, abridgments, expansions, reverse engineering or another form of any works in question.
   7. ‘Dispute’ shall mean inter-alia, any disagreement or claim that arises between the Parties.
   8. ‘Documentation’ shall mean user guides and other manuals and materials relating to the Platform and/ or the Services, whether distributed in print, magnetic, electronic, video or any other format.
   9. “Educational Institution” shall mean the educational institution which is currently being operated and managed by the Subscriber.
   10. “Effective Date” shall mean and refer to the date on which the Subscriber accepts the Proposal.
   11. “Intellectual Property” shall mean all of the following: (a) Patents Rights; (b) Trademarks, internet domain names and all applications and registrations for the foregoing; (c) copyrights (registered or unregistered) and copyrightable works and registrations, applications for registration and renewals thereof; (d) mask works and all registrations, applications and renewals thereof; (e) trade secrets and confidential business information; (f) computer software, including without limitation, both source and object code, data, databases, systems and related documentation; (g) processes, formulae, trade secrets, industrial models, designs, database rights, methodologies, technical information, know-how, ideas, concepts, creations, discoveries, utility models, tools, devices, manufacturing, prototypes, compilations, algorithms, works of authorship, flowcharts, drawings, books, papers, models, sketches, teaching techniques, electronic codes, proprietary techniques, proprietary technology, research projects, engineering and technical drawings; (h) all copies and tangible embodiments of the foregoing (in whatever form or medium now known or hereinafter created); and (i) all extensions, renewals, improvements, and derivatives of the foregoing intellectual property from time to time.
   12. “Intellectual Property Rights” shall mean and include: (a) all rights, title and interest under any statute or under common law including in any Intellectual Property or any similar rights, anywhere in the world, whether negotiable or not and whether registrable, trademarkable, copyrightable, patentable or not; (b) any licenses, permissions and grants in any of the foregoing; (c) applications for any of the foregoing and the right to apply for them in any part of the world; and (d) all extensions, renewals, improvements, variations and derivations of each of the Intellectual Property.
   13. ‘Law’ shall mean any applicable law, rule, regulation, ordinance, order, treaty, judgment, notification, decree, bye-law, governmental approval, directive, guideline, requirement or other governmental restriction, or any similar form of decision of or determination by, or any interpretation, policy or administration, having the force of law in India and shall include any of the foregoing, injunction, permit or decision of any central, state or local, municipal government, authority, agency, court having jurisdiction over the matter in question, whether in effect as of the date of this Agreement or thereafter, in India.
   14. “Patent Rights” shall mean a patent or patent application, including all provisional, divisions, continuations, continuations-in-part, reissues, re-examinations, extensions, supplementary protection certificates, and foreign counterparts of any of the foregoing, and the right to file or apply for registration of any invention (whether or not a patent application has yet been filed).
   15. ‘Person’ shall mean any natural person, limited or unlimited liability company, corporation, partnership (whether limited or unlimited), proprietorship, Hindu undivided family, trust, union, association, government or any agency or political subdivision thereof or any other entity that may be treated as a person under applicable law.
   16. ‘Platform’ shall mean the web and mobile applications developed and owned by the Company, by the name of Tulip Desk and includes software programs, Updates/Upgrades (as defined below) thereof provided in object code and/or binary code and all copies and parts of such software programs, regardless of media used, as more particularly described in the Proposal [Note: HKIL to confirm if details regarding the Platform can only be retained under the Proposal to avoid duplicity and potential inconsistencies on a going forward basis.].
   17. “Platform Users” shall mean the employees of the Subscriber and the students of the Educational Institution. The total number of Platform Users permitted to use the Platform under the License is set out in Proposal.
   18. ‘Proposal’ shall have the meaning as ascribed to it in Recital (D).
   19. “Subscriber” shall refer to and mean the legal entity (which shall include a corporation, non-profit, or school) and not an individual person, to whom the Proposal is addressed and who enters into the present Agreement with the Company.
   20. “Termination Notice” shall refer to and mean the written notice intimating the intention to terminate the Agreement.
   21. ‘Term’ shall have the meaning as ascribed to it in Clause 9.1.
   22. “Terms and Conditions” shall mean terms and conditions of use of the Platform which are available at https://www.hkinfoware.com/terms.html. The Terms and Conditions may be updated by the Company from time to time, during the Term, and such updated Terms and Conditions shall be made available at https://www.hkinfoware.com/terms.html without any prior intimation provided to the Subscriber and/or the Platform Users. The term “Terms and Conditions”, for the purposes of this Agreement, shall be deemed to mean such updated Terms and Conditions and shall be effective from the date of its publishing on the website of the Company.
   23. ‘Trademarks’ shall mean logos, wordmarks, service marks, trade dress, trademarks, trade names, brand names, pictorial representations, graphical representations, designs whether registered or unregistered.
   24. ‘Updates’ shall mean such updates to the Platform.
   25. ‘Upgrades’ shall mean a new version or new release of the Platform containing additional and/or altered features and functionality compared to the previous version.
2. Interpretation
   1. Any reference herein to any Clause or Annexures shall mean a reference to such Clause or Annexures to this Agreement unless the context otherwise requires.
   2. The Annexures to this Agreement form part of this Agreement as if expressly set out in the body of this Agreement.
   3. The Proposal forms an integral part of this Agreement, and the terms, conditions or specifications thereunder shall be deemed to have been incorporated by way of reference.
   4. Reference to any provision of applicable Law shall include references to any such provision as it may, after the date hereof, from time to time, be amended, supplemented, or re-enacted, and any reference to statutory provision shall include reference to any subordinate legislation made from time to time under that provision.
   5. The headings are inserted for convenience only and shall not affect the construction of this Agreement.
   6. Unless the context requires otherwise, words importing the singular include the plural and vice versa, and pronouns importing a gender include each of the masculine and feminine genders.
   7. The term “directly or indirectly” means directly or indirectly through one or more intermediary persons or through contractual or other legal arrangements, and “direct or indirect” shall have correlative meanings.
   8. The words ‘include’, ‘including’ and similar expressions are not expressions of limitation and shall be construed as if followed by the words without limitation.
   9. The words ‘hereof’, ‘hereunder’, ‘hereto’ and words of like import, refer to this Agreement as a whole or to any section of this Agreement, as the case maybe.
   10. References to this Agreement (including the Proposal) or any other document shall, where appropriate, be construed as references to this Agreement, the Proposal or such other document as amended, restated, varied, supplemented, novated and/or replaced in any manner from time to time.
   11. References to ‘writing’ and written include any mode of reproducing words in a legible and non-transitory form, including electronic communications and facsimile.
   12. References to ‘consent’ or ‘approval’ shall mean prior written consent/approval.
3. License to use the Platform
   1. Subject to the provisions of this Agreement, the Company hereby grants to the Subscriber and the Subscriber hereby accepts a limited, non-exclusive, non-transferable, non-assignable, non-sub-licensable and revocable license to use the Platform during the Term (‘License’), for the purpose of the Educational Institution.
   2. All rights in relation to the Platform not expressly and specifically granted herein are reserved with the Company and are not available for the Subscriber. The Subscriber hereby agrees and acknowledges that the License to use the Platform is valid only for such number of the Platform Users as set out in the Proposal. The Subscriber further acknowledges that any change in the number of the Platform Users shall be affected only with prior written approval of the Company and shall be subject to such additional License and Service Fee (as defined hereunder) and any additional terms and conditions, which may be intimated by the Company to the Subscriber, at such time.
   3. The Subscriber hereby further agrees and acknowledges that: (a) the Company has developed and is the owner of the Platform and the Company owns all rights, title and interest (including the Intellectual Property Rights) thereto; and (b) the use of the Platform by the Subscriber shall, and/or the Platform Users shall at all times apart from the Terms and Conditions contained herein this Agreement also be in compliance with the applicable Laws and shall be subject to the Terms and Conditions of the Platform and such Terms and Conditions will be deemed to be a part of this Agreement.
   4. In the event of any breach by the Subscriber or by any of the Platform Users of any of the terms of this Agreement, including the Terms and Conditions, the Subscriber shall ensure that the Platform Users shall promptly provide to the Company all such support and promptly carry out all such actions and act promptly on all requisitions as may be required by the Company, for the remedy of such breach.
   5. This Agreement does not convey to the Subscriber any ownership rights in the Platform or any copies thereof, or any right to license or sub-license, but constitutes only a limited License to use the Platform by the Platform Users in accordance with the terms of this Agreement. The Company shall retain all right, title and interest (including the Intellectual Property Rights) in the Platform and the Derivative Works associated with the Platform (if any).
   6. The Company shall also provide to the Subscriber such maintenance services in relation to the use of the Platform by the Subscriber, as per the scope of services set out in the Proposal (‘Services’).
   7. The Subscriber and/or the Platform Users shall use caution when using the Platform or availing the Services and the Subscriber shall at all times be aware of the risks of dealing with persons acting under false pretence or offensive, harmful, inaccurate or deceptive information posted by any other Platform User.
   8. The Subscriber and/or the Platform Users shall have no right to customize (directly or indirectly) the Platform without prior written consent of Company. The Subscriber acknowledges and confirms that all customizations made to the Platform shall be the Intellectual Property of the Company and shall solely and exclusively vest with and belong to Company in perpetuity and for the entire world, and the Subscriber shall only be considered as a licensee thereof. If, and only to the extent that, any aspect of the Platform as contemplated under this Agreement is found as a matter of law not to be owned by the Company but by the Subscriber and/or the Platform Users, the Subscriber hereby irrevocably and unconditionally assigns, and shall cause the Platform Users to irrevocably and unconditionally assign, to the Company without any further consideration, all rights, title and interest in and to such aspect of the Platform for the entire world, in perpetuity and for all mediums or modes, now existing or that may come into existence in future. The Subscriber acknowledges and agrees that such assignment will continue to vest all rights, title and interest in such aspect of the Platform to the Company and will never lapse or cause such rights, title and interest to revert to the Subscriber in the event that Subscriber does not exercise any or all of the rights so assigned.
   9. The Subscriber and/or the Platform Users shall not : (a) decompile, disassemble, or reverse engineer the Platform; (b) modify or create any derivative works (including, without limitation, translations, transformations, adaptations or other recast or altered versions) based on the Platform or Documentation; (c) merge the Platform with any other software or platform; (d) use, copy, sell, sub-license, lease, rent, loan, assign, convey or otherwise transfer the Platform; and (e) distribute, disclose or allow use of the Platform or Documentation, in any format, through any timesharing service, service bureau, network or by any other means.
   10. The Subscriber agrees not to, and shall ensure that the Platform Users do not : (a) use the Platform along with third party software except for those specified by the Company (in writing) or specifically allowed in writing to be used by Company pursuant to a request made by the Subscriber to the Company by a written notice; and (b) install or keep a backup or copy of any third party software on a system on which the Platform has been installed.
   11. At the Company’s request and upon a notice of 2 (two) days, the Company shall have the right to inspect and audit the Subscriber’s compliance with the terms of this Agreement. The Subscriber shall cooperate with the audit and shall promptly grant all manner of assistance and access to the Platform and shall also promptly make available to the Company all applicable devices, records, materials, equipment, and personnel. In addition, the Subscriber shall provide remote access to its system to the Company to enable Company to electronically audit the Subscriber’s compliance with the terms of this Agreement. If the Platform is installed at the Subscriber’s premises or devices or systems, the Subscriber shall provide access for the Company for inspection and audit purposes. If an audit reveals that the Subscriber possesses or at any time possessed unlicensed copies of the Platform or use of the Platform beyond the licensed features or capacity restrictions, the Subscriber shall pay the Company the applicable license fees and any other applicable charges both of which will be determined by the Company and such fee determined by the Company shall be final and conclusive. The Subscriber agrees and acknowledges that the above notice requirement prior to audit shall not be required for audit of the Platform by remote access by the Company and the Company may conduct a remote audit of the Platform as and when deemed fit. The Subscriber shall ensure that all infrastructure and conditions required by the Company to conduct a remote audit under this Clause are always available and maintained by the Subscriber.
   12. The Company may at the request of the Subscriber provide or arrange for any training or demonstration services to the Platform Users. The duration, nature and other particulars applicable to such training or demonstration services shall be mutually agreed between the Company and the Subscriber in writing. The cost of such training and/or demonstration services shall be borne by the Subscriber.
   13. The Parties agree and acknowledge that the Platform is being licensed only to the Subscriber for use by it and/or the Platform Users. The Subscriber and/or the Platform Users shall not make any Upgrades, Updates or improvements to the Platform or Documentation or make or cause to be developed any software or documentation that shall be similar in any manner to the Platform or the Documentation. The Parties further agree that the ownership, right, title and interest to: (a) Upgrade(s) or Update(s), if any, carried out (directly/indirectly) by the Subscriber and/or the Platform Users to the Platform or Documentation; or (b) any software or documentation similar to the Platform or Documentation licensed under this Agreement, if any, developed by the Subscriber or the Platform Users (directly or indirectly), shall vest with solely with the Company.
   14. The Parties agree that if the Subscriber and/or the Platform users, directly or indirectly, makes any Upgrades, the Company shall immediately communicate such fact to the Company, and the Company shall have the irrevocable right to use (to the maximum extent permissible by applicable Law), free of charge, such Upgrades or Updates world-wide. The Subscriber shall, at its own cost, execute such agreements and/or documents that are required to give the Company the aforesaid right in respect of each Upgrade or Update.
4. Consideration
   1. In consideration for obtaining the License to use the Platform and availing the Services, the Subscriber shall pay to the Company, the amount as prescribed in the Proposal as license and services fees to the Company (“License and Service Fee”). The Subscriber shall pay the License and Service Fee to the Company in the manner and within such timeline as detailed in the Proposal.
   2. In addition to the License and Service Fee, all out of pocket expenses incurred by the Company in relation to the provision of Services shall be reimbursed by the Subscriber. This includes out of pocket expenses for, inter-alia, demonstration services, as may be provided by the Company. Such out of pocket expenses may be separately billed and raised on the Subscriber by the Company. Such out of pocket expenses shall become due and payable by the Subscriber immediately on the date of invoice so raised in this regard.
   3. In the event of non-payment of the License and Service Fee and/or any out-of-pocket expenses or any part thereof in accordance with the terms of this Agreement, the Company shall, in addition to any other rights hereunder and/or under applicable Laws, have the right to revoke the License, discontinue to provide the Services to the Subscriber and terminate this Agreement.
   4. Any taxes, levies and cesses under the applicable Laws and the same shall be payable by the Subscriber in addition to the License and Service Fee.
5. Representations
   1. The Subscriber represents to the Company that:
      1. it is having full power and authority to enter into and perform its obligations under this Agreement;
      2. it holds and shall continue to hold all necessary statutory and regulatory permissions, approvals and permits for the running and operation of its establishment for the conduct of its business (including the Educational Institution), and for compliance with this Agreement;
      3. its execution and performance of this Agreement and the consummation of the transactions contemplated hereby do not and will cause : (i) a breach of or default under any indenture, agreement, judgment, decree, order or ruling to which it is a party that would materially adversely affect its ability to perform its obligations under this Agreement; or (ii) a breach of any applicable Law; and
      4. it shall ensure that all users of the Platform who get access to the Platform by virtue of this Agreement shall comply with the terms and conditions of this Agreement and also of Terms and Conditions available at https://www.hkinfoware.com/terms.html.
   2. The Company represents to the Subscriber that :
      1. it is duly incorporated or organised and validly existing under the Laws of India and it has full power and authority to enter into and perform its obligations under this Agreement; and
      2. the Company’s execution and performance of this Agreement and the consummation of the transactions contemplated hereby do not and will not conflict with or result in: (i) a breach of or default under any indenture, agreement, judgment, decree, order or ruling to which the Company is a party that would materially adversely affect the Company’s ability to perform its obligations under this Agreement; or (ii) a breach of any applicable Law.
6. Warranty
   1. The Company does not warrant or represent that the Platform will be error-free, provided however that, if it is demonstrated to the Company, within 30 (thirty) days from the date on which the Subscriber is provided access to the Platform for the first time, that the Platform contains a material error or suffers from a material malfunction, or is otherwise substantially and materially inconsistent with the Documentation accompanying the Platform, the Company will use reasonable endeavours to correct such error malfunction/inconsistency, provided that :
      1. the Platform has been used at all times properly and in accordance with the Terms and Conditions;
      2. no alteration, modification or addition has been made to the Platform without Company’s prior written consent; and
      3. the alleged error, malfunction or inconsistency has been notified to the Company within the period specified above.
   2. Any claim of the Subscriber under this Clause shall be notified to the Company in accordance with Clause 12.11 (Notices) and shall specify, in detail, the nature of the alleged error. malfunction or inconsistency. Upon receipt of such claim, the Company shall have the right to test or inspect the Platform accordingly.
   3. While the Company will endeavour to address the concern of the Subscriber as may be notified to the Company in terms of Clause 6.1. and 6.2, it does not guarantee a solution to the satisfaction of the Subscriber.
   4. Disclaimer of Warranty :

      THE EXPRESS REPRESENTATIONS AND WARRANTIES BY THE COMPANY IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, AND THE COMPANY DISCLAIMS ALL OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USE OF TRADE, AND ANY WARRANTIES WITH RESPECT TO THE PLATFORM INCLUDING BUT NOT LIMITED TO THE QUALITY, MERCHANTABILITY, SUITABILITY OR FITNESS OF THE PLATFORM FOR ANY PARTICULAR PURPOSE.

7. Ownership
   1. The Subscriber hereby agrees and acknowledges that the Company shall retain absolute ownership and all rights, title, benefit and interest in the Platform including all Intellectual Property Rights in relation to the Platform and the Documentation, and the License herein does not in manner whatsoever convey any proprietary, Intellectual Property Rights or other interest therein to the Subscriber.
   2. The Subscriber hereby agrees and acknowledges that it has only limited rights to use the Platform in accordance with the terms of this Agreement and the Terms and Conditions.
   3. The Subscriber hereby agrees and acknowledges that it shall not, and shall also ensure that none of the Platform Users, copy, translate, modify or adapt the Platform, incorporate the Platform, in whole or in part, into any other product, or create any Derivative Works based on all or any part of the Platform, or authorize or engage (in any manner whatsoever) a third party to do any of the preceding prohibited activities.
   4. The Subscriber further agrees and acknowledges that it shall not and shall ensure that none of the Platform Users modify, reverse engineer, decompile, disassemble and/or attempt to discover the source code of the Platform.
   5. The Subscriber shall not and shall ensure that none of the Platform Users copy or give any third-party access to the Platform and/or the Documentation without obtaining prior written consent from the Company.
   6. The Subscriber hereby agrees and acknowledges that the Company is the sole and exclusive owner of the Intellectual Property Rights or registrations in respect of the Platform and/or the Documentation, and all related works or products in respect thereof.
   7. The Subscriber agrees not to challenge the Company’s Intellectual Property Rights or registrations in respect of the Platform and/or the Documentation, or in respect of any of the Company’s works or products, in any country and before any forum.
   8. The Subscriber shall not, during the Term of this Agreement or after the expiry or termination of this Agreement, without the prior written consent of the Company, use or adopt any name, trade name, trading style or commercial designation that includes or is similar to or may be mistaken for the whole or any part of any trademark, trade name, trading style or commercial designation used by the Company.
8. Confidentiality
   1. The Subscriber acknowledges that during the Term of this Agreement, the Company may disclose certain Confidential Information to the Subscriber to further the performance of this Agreement.
   2. The Subscriber agrees that during the Term of this Agreement it will:
      1. only disclose Confidential Information to those of its employees, officers, directors, agents and contractors on a need-to-know basis, provided that the receiving Party ensures that such persons are aware of and comply with the obligations of confidentiality prior to such disclosure;
      2. not disclose any Confidential Information to any third party without the prior written consent of the disclosing Party;
      3. not reproduce Confidential Information in any form except as required to perform its obligations under this Agreement;
      4. not publish, reverse engineer, decompile or disassemble any Confidential Information disclosed by the other Party;
      5. not directly or indirectly export or transmit any Confidential Information to any country to which such export or transmission is restricted by regulation or statute; and
      6. promptly provide the other Party with written notice of any actual or threatened breach of this Clause.
   3. The provisions of the above Clause 8.2. shall not apply to the disclosure of Confidential Information in connection with any judicial process regarding any legal action, suit or proceedings after giving prior written notice to the Company to the extent practicable under the circumstances and subject to any practicable arrangements to protect confidentiality.
   4. The Subscriber further agrees that upon expiry or termination of this Agreement it shall not itself or through any subsidiary or agent or otherwise, sell, license, sub-license, market, distribute or otherwise deal with any of the Confidential Information (in whole or in part) except to the extent permitted by the Company.
9. Indemnification
   1. The Subscriber shall, at its own expense, defend, indemnify, and hold harmless the Company and its respective officers, directors, agents, employees, representatives, associates and consultants (as applicable) (such persons, the “Company Indemnified Persons”) for damages, liabilities, claims, losses, costs, demands, suits, actions, and reasonable expenses (including but not limited to reasonable attorney’s fees and settlement costs) (collectively, “Losses”) arising out of or related to: (a) any third party suits or claims brought against the Company Indemnified Persons arising out of or related to the violation of any applicable Laws, negligence, or misconduct of the Subscriber, its officers, directors or agents and/or the Platform Users; or (b) arising out of breach of any of the representations, warranties, covenants or terms of this Agreement; or (c) breach of the Company’s Intellectual Property Rights for reasons which are attributable to the Subscriber, its officers, directors or agents and/or the Platform Users.
   2. The Subscriber shall also be liable to the Company for any incidental, indirect, remote, special, consequential, or punitive damages, loss of goodwill or business profits, regardless of the nature of the claim, even if the Company knew or should have known of the possibility of such damages or claims.
   3. Notwithstanding anything to the contrary contained herein, the aggregate liability of the Company and its directors, officers, employees and associates (as applicable) under or in connection with this Agreement shall in no event exceed the amount which is equivalent to the preceding 1 (one) months’ License and Services Fee paid by the Subscriber for the Platform under this Agreement. The exclusions and limitations of liability in this Clause shall apply to any damages, however caused, and on any theory of liability, whether for breach of contract, tort (including negligence), or otherwise and regardless of whether the limited remedies available to the Parties fail of their essential purpose.
   4. The Parties agree that, in addition to the remedy available to the Company under Clause 9.1, if there is a breach of the provisions of this Agreement by the Subscriber for any infringement of any Intellectual Property Rights in the Platform or Documentation by the Subscriber and/or the Platform Users or the violation of Terms and Conditions arising out of the use of the Platform by Subscriber and/or the Platform Users in any manner (‘Infringement’), the Subscriber shall be liable to pay to the Company an amount equal to INR [HKIL to assess a genuine pre-estimate of damages and incorporate accordingly] (Indian Rupees HKIL to assess a genuine pre-estimate of damages and incorporate accordingly only) (“Liquidated Damages”). The Parties agree and confirm that Liquidated Damages as stipulated herein is a reasonable and genuine pre-estimate of the least amount of damages that the Company shall suffer on account of the Infringement. The Parties further agree and acknowledge that the Liquidated Damages shall not be deemed to be special or punitive in nature.
10. Term, Termination and Effect of Termination
    1. The License herein granted to the Subscriber is on a monthly subscription basis and shall be subject to timely payment of the License and Service Fee as set out in the Proposal.
    2. This Agreement shall be effective from the Effective Date as indicated in the Proposal and shall be valid for such time as mentioned in the Proposal unless sooner terminated or revoked in accordance with the terms and conditions hereof and the Parties may agree to any renewal/extension beyond the period mentioned in the Proposal on such terms and conditions as acceptable to and agreed in writing between the Parties.
    3. This Agreement may be terminated in the following manner:
       1. upon a mutual agreement of the Parties in writing ;
       2. by the Company : (i) after 30 (thirty) days from the date of issuance of a Termination Notice to the Subscriber; or (ii) immediately on the issuance of a Termination Notice in the event the Subscriber fails to pay the License and Service Fee;
       3. by the Subscriber: (i) after 6 (six) months from the date of issuance of a Termination Notice; or (ii) by payment by the Subscriber to the Company of an amount equivalent to the License and Service Fee for a period of 6 (six) months from the date of the Termination Notice;
       4. by the Company, in the event, the Subscriber commits a material breach of this Agreement (other than as set out in sub-clause (b)(ii) above). A breach shall be deemed ‘material’ when such breach remains unremedied by the Subscriber after a period of 15 (fifteen) days from the receipt of a written notice to the Subscriber from the Company specifying the relevant breach/default in reasonable detail; and/or
       5. by a Party, if the other Party is subject to insolvency, bankruptcy, liquidation, receivership, winding up or administration proceeding filed voluntarily or by a secured creditor or the appointment of any insolvency professionals or administrator by any court, tribunal or authority.
    4. Upon expiry of the Term under Clause 10.2 or termination of this Agreement in accordance with Clause 10.3 :
       1. the License and all rights, privileges and interest granted hereunder to the Subscriber to use the Platform shall automatically and immediately stand terminated;
       2. all obligations of the Company in relation to providing the Services to the Subscriber shall cease with immediate effect;
       3. the Subscriber shall immediately cease and discontinue, and shall cause all the Platform Users to immediately cease and discontinue, all further use of the Platform, including that the Subscriber shall, and the Subscriber shall cause all the Platform Users to, immediately erase the Platform or Documentation from the storage in each computer system or other devices in which it has been installed;
       4. the Subscriber shall immediately return all documents, data, facsimiles, literature, articles, and effects whatsoever in connection with the Platform including any materials, made available under this Agreement by the Company and the Subscriber shall not (and the Subscriber shall ensure that the Platform Users do not) retain any copies of any of the foregoing nor make any extracts from the documents made available hereunder and for this purpose, the Company shall be entitled to dispatch a representative to inspect any and all the premises of the Subscriber for the purpose of taking possession of any of the foregoing documents, data, articles or effects; and
       5. the Subscriber shall pay all costs and expenses (including pro rata License and Service Fee for the period of use of the Platform) of discontinuing its use of the Platform and shall not be entitled to claim or receive any compensation, reimbursement, or damages from the Company, or any of its Affiliates or any other persons in connection with the expiry or termination of this Agreement.
    5. The expiry or termination of this Agreement shall be without prejudice to the rights of the Parties accrued up to the date of such expiry or termination. The exercise by a Party of its termination rights set forth in this Agreement shall not prejudice any other actions or proceedings which the terminating Party may institute against the other Party.
11. Intellectual Property Rights Protection
    1. The Subscriber shall notify the Company by a written notice of any infringement of the Intellectual Property Rights with respect to the Platform within three days of becoming aware of such infringement. The Subscriber shall not give any notification of infringement or take any other action relating to the infringement by others of any Intellectual Property Rights of the Company without obtaining the prior written authorization of the Company in each instance.
    2. The Subscriber agrees to cooperate with the Company in any action which the Subscriber may decide to take relating to infringements of the Platform.
    3. In the event that any suit, claim or demand is threatened or brought against the Subscriber involving any claim that the Platform used by the Subscriber infringes any intellectual property rights of another, the Subscriber shall promptly inform the Company thereof and the Company shall have the right to take exclusive charge of the defence of any such suit, claim or demand, and of any negotiations for the settlement thereof. The Subscriber shall cooperate fully with the Company in the defence of any such actual or threatened suit, claim or demand or any related proceeding which the Company undertakes.
12. Miscellaneous
    1. Dispute Resolution
       1. Each Party shall first endeavour to settle Disputes amicably among themselves. If such Dispute remains unresolved between the Parties for a period of 15 (fifteen) days from the date of such discussions, each Party shall have the right to refer the Dispute to arbitration, in accordance with this Clause 12.1.
       2. Notwithstanding the foregoing, each Party shall, at any time after the occurrence of the Dispute, have the right to refer the Dispute to arbitration. Such arbitration shall be conducted by a single arbitrator to be appointed with the concurrence of both parties.
       3. In the event, the Parties are not able to come to an agreement regarding the appointment of the arbitrator. A single arbitrator will be appointed in accordance with the provisions of the Indian Arbitration and Conciliation Act, 1996.
       4. The venue as well as the seat of arbitration shall be Kolkata, West Bengal and the language used shall be English.
       5. The award rendered by the arbitrator shall be final and binding on the Parties. The Parties shall bear their respective costs of the arbitration proceedings.
       6. Notwithstanding anything contained in this Agreement, both Parties acknowledge and agree that the covenants and obligations with respect to the matters covered by this Agreement and set forth herein relate to special, unique and extraordinary matters, and that a violation of any of the terms of such covenants and obligations will cause irreparable loss and injury to the aggrieved Party. Therefore, notwithstanding the provisions of this Agreement, either Party shall be entitled to approach any appropriate forums for obtaining an injunction, restraining order, or such other equitable relief as a court of competent jurisdiction may deem necessary or appropriate.
    2. Governing Law and Jurisdiction

       Subject to Clause 12.1 above, this Agreement shall be governed by the laws of India and the Parties agree that only courts at Kolkata, West Bengal shall have the exclusive jurisdiction for resolving any Dispute under or in relation to this Agreement.
       Notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled to, at its discretion, to initiate proceedings against the Subscriber before any appropriate court or tribunal in any territory in which the Subscriber operates.

    3. Non-waiver
       1. No admission or delay on the part of the Company in requiring the due and punctual fulfilment by the Subscriber of the obligations of the Subscriber under this Agreement shall be deemed to constitute a waiver by the Company of any of its rights to require such due and punctual fulfilment.
       2. No waiver of any right under this Agreement shall be effective unless in writing. Unless expressly stated otherwise, a waiver shall be effective only in the circumstances for which it is given.
       3. No delay or omission by the Company in exercising any right or remedy provided by law or under this Agreement shall constitute a waiver of such right or remedy.
       4. The single or partial exercise of a right or remedy under this Agreement shall neither preclude any other nor restrict any further exercise of any such right or remedy.
       5. The rights and remedies provided in this Agreement are cumulative and do not exclude any right or remedy provided by Law.
    4. INDEPENDENT PARTIES

       This Agreement is entered into by the Parties on a “principal to principal” basis and the Parties are independent of each other and nothing contained herein is intended to or shall be deemed to create any partnership, joint venture, employment or relationship of principal and agent between the Parties hereto or their respective representatives and employees or to provide any of the Parties with any right, power or authority, whether express or implied to create any such duty or obligation.

    5. Construction
       1. This Agreement which includes the Proposal sets forth the entire agreement and understanding between the Parties with respect to the subject matter hereof and merges all discussions and negotiations among them, and the Parties shall not be bound by any conditions, understandings or representations with respect to such subject matter other than those expressly provided in this Agreement or duly set forth on or subsequent to the date hereof in writing and signed by each Party (or a proper and duly authorized officer of each Party) to be bound thereby.
       2. This Agreement supersedes and nullifies all previous arrangements/discussions (whether written or oral) between the parties in relation to the License of the Platform and/or any related services. It is clarified that in the event of any conflict or inconsistency between this Agreement and the Proposal, the terms and conditions set out under the Proposal shall prevail.
       3. The Parties have jointly participated in the negotiation and drafting of this Agreement. In the event of any ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favouring or disfavouring any Party by virtue of authorship of any provision of this Agreement.
    6. Third Party Rights

       Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon or give any Person, other than the Parties hereto any rights or remedies under or by reason of this Agreement or any transaction contemplated by this Agreement.

    7. Costs and Expenses

       Except as provided otherwise, each Party shall pay its own costs and expenses in connection with the negotiation, preparation and performance of this Agreement. The Subscriber shall bear all stamp duty payable on this Agreement and the transactions contemplated thereby.

    8. Amendments
       1. Notwithstanding anything contained in this Agreement and subject to applicable Law, the Subscriber hereby agrees and gives its consent to the Company to amend the Terms and Conditions of use of the Platform from time to time as the Company may deem fit. The Subscriber hereby further agrees and acknowledges that the Company shall not be under any obligation to obtain prior consent of the Subscriber for amending the Terms and Conditions.
       2. The Company shall notify the Subscriber, as soon as reasonably practicable, on each occasion the terms and conditions set out under this Agreement are amended (such notice, the “Amendment Notice”).
       3. In the event the Subscriber is not agreeable to any such amendment of this Agreement, then the Subscriber shall notify the Company in writing regarding its non-acceptance of such amendment within 3 (three) days of the receipt of the Amendment Notice by the Subscriber.
       4. The Subscriber acknowledges and agrees that in the event the Subscriber does not notify the Company its non-acceptance of any amendment notified by way of the Amendment Notice in terms on Clause 12.8(c) of this Agreement, then the Subscriber shall be deemed to have accepted such amendments and it shall ensure compliance with such amendment, which shall become applicable to the Subscriber immediately after 3 (three) days of the Amendment Notice.
       5. In the event the Subscriber notifies its non-acceptance of any amendment in terms of Clause 12.8(c) of this Agreement, then the Company shall have the right to terminate this Agreement with immediate effect.
    9. Non-solicitation
       1. The Subscriber hereby agrees that it shall not employ, solicit, or seek to employ, any employee of the Company for a period of 5 (five) years after the employee’s conclusion or termination of employment with the Company, without the prior written consent of the Company.
       2. Upon a breach of this Clause with respect to a particular employee, the Subscriber shall pay to the Company the liquidated damages which shall not be less than what could be of a reasonable estimate of the costs and expenses that the Company might have incurred in recruiting, training and maintaining such employee.
    10. Notices

        Any notice, request, consent, waiver or other communication required or permitted hereunder shall be effective only if it is in writing and shall be deemed received by the Party to which it is sent: (a) upon delivery when delivered by hand; (b) 5 (five) days after being sent, if sent with all sending expenses prepaid, by an express courier with a reliable system for tracking delivery; (c) when transmitted, if sent by confirmed facsimile, or (d) 14 (fourteen) days after the date sent, if sent by certified or registered mail, postage prepaid return receipt requested, addressed as follows, or such other address as it shall hereafter designate for this purpose. All notices and communication between the Parties shall be made only at the addresses mentioned in the Proposal.

    11. Assignment

        The Subscriber shall not assign, transfer, charge, delegate, declare a trust of or otherwise dispose of or part with all or any part of its rights and benefits under this Agreement (including any cause of action arising in connection with any of them) or of any right or interest in any of them, without obtaining the prior written consent of the Company.

    12. Force Majeure
        1. A Party shall not be liable for any delay or default in the event such Party is unable to perform any of its obligations under this Agreement as a result of natural disasters, actions or decrees of governmental bodies, communication line failures which are not caused due to the fault of the affected Party, or any other delay or failure which arises from causes beyond a Party’s reasonable control and without negligence or misconduct of the Party otherwise chargeable with failure, delay or default (hereafter referred to as a “Force Majeure Event”).
        2. The Party whose performance has been so affected shall immediately give written notice to the other Party of the facts, which constitute the Force Majeure Event, and shall do everything reasonably possible to resume performance. For the avoidance of doubt, a Force Majeure Event shall exclude any event that a Party could reasonably have prevented by testing, work around, or other exercises of diligence. If the period of non-performance exceeds 60 (sixty) days from the receipt of written notice of the Force Majeure Event, either Party may by giving written notice to terminate the Agreement.
    13. Severability

        It is the intent of the Parties that in case any one or more of the provisions contained in this Agreement shall be held to be invalid or unenforceable in any respect, such provision shall be modified to the extent necessary to render it, as modified, valid and enforceable under applicable Laws and such invalidity or unenforceability shall not affect the other provisions of this Agreement.

    14. Survival

        Clause 5 (Representations), Clause 6 (Warranty), Clause 7 (Ownership), Clause 8 (Confidentiality), Clause 9 (Indemnification), Clause 10.4 (Termination), Clause 10.5 (Termination) Clause 12 (Miscellaneous) shall survive the expiry or termination of this Agreement.