YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT BY ACCEPTING THIS AGREEMENT OR ACCESSING OR USING THE FOVTY SOLUTIONS PLATFORM.
You represent and warrant that you have the authority to sign for and bind such entity to accept the terms of this Agreement if you are using and/or accessing the FOVTY SOLUTIONS Platform in your capacity as an employee, agent, or contractor of a corporation, partnership, or similar entity. ALL RIGHTS UNDER THIS AGREEMENT ARE EXPRESSLY CONTINGENT UPON THE ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
This Agreement and Order Form(s) outline the conditions under which Fovty Solutions will make the Fovty Solutions Platform available to the Customer. It is clarified that if Fovty Solutions enters into a specific contract with the Customer, the terms of that contract shall supersede the provisions of this Agreement unless the Parties agree otherwise.
Modifications to this Agreement:
Fovty Solutions may modify this Agreement from time to time. Unless otherwise noted by Fovty Solutions, revisions become effective for Customer upon renewal of the then-current Subscription Term or entry into a new Order Form following the effective date of the modified version of this Agreement. Fovty Solutions shall use reasonable efforts to communicate the modifications to the Customer via the User Account on the Fovty Solutions Platform, email, or other means.
The “Effective Date” of this Agreement is the earlier of (a) the date of Customer’s initial access to the Fovty Solutions Platform (“Software”) or (b) the date specified in the order form regulating access to the Software (“Order Form”).
- Company shall grant to Customer, subject to the Order Form and the terms of this Agreement, a limited, revocable, non-transferable, non-sublicensable, and non-exclusive license to use and access the Software by the Service Level Terms attached hereto as Exhibit A and good technical support services by the terms of Exhibit B. This Agreement also governs any Statement of Work included in an Order Form.
- This Agreement is non-exclusive, and Company shall not have any exclusive right or duty to provide access to the Software to Customer under this Agreement. Customers shall be free to subscribe to Software from any other party.
RESTRICTIONS AND RESPONSIBILITIES:
- Customer shall not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how, or algorithms relevant to the Software or any documentation or data related to the Software; (b) modify, translate, or create derivative works based on the Software (except to the extent expressly permitted by Company or permitted by the terms of this Agreement); (c) use the Software in a manner inconsistent with the terms of this Agreement; or (d The Customer affirms, covenants, and warrants that the Customer will only use the Software by the terms of the Order Form, this Agreement, and all applicable laws and regulations.
- The Customer is responsible for securely maintaining the Customer account and passwords (including administrative and user passwords) to prevent unauthorized access to the Software.
- The Customer will cooperate with Company and give any reasonable assistance requested by the Company about the delivery of the Software.
- Customers must comply with all relevant laws, including those regulating privacy or data protection, as well as the collection, storage, use, and disclosure of such information while using and accessing the Software.
- The Customer consents to receive communications from the Company via electronic means, such as email, SMS, telephone, or other similar means, about its use of and access to the Software.
- For any external certifications contemplated by the Order Form, the delivery of the such certificate to the Customer is contingent upon the Customer signing the management representation letter or any other similar document, as requested by the external auditor/CPA/competent authority providing certification.
CONFIDENTIALITY; PROPRIETARY RIGHTS
- Each party (the “Fovty Solutions”) acknowledges that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, or financial information about the Disclosing Party’s business (hereafter referred to as “Proprietary Information”). The Company’s Confidential Information includes information regarding the features, functionality, and performance of the Software; and (ii) information provided by the Company to the Customer by this Agreement and the Order Form. The Customer’s Proprietary Information consists of any non-public data submitted by the Customer to Company for Company to offer the Software to the Customer, as well as any reports or other material created by the Customer using the Software (“Customer Data”). The Receiving Party agrees: I to take reasonable precautions to protect such Confidential Information of the Disclosing Party; and (ii) not to use (except in the performance of the obligations contemplated herein or as otherwise permitted herein) or disclose to any third party any such Confidential Information of the Disclosing Party. The Disclosing Party agrees that the preceding shall not apply to any information that the Receiving Party can document:Is or becomes generally available to the public other than through a breach of this Agreement.Was in its possession or was known to it before receipt from the Disclosing Party.Was rightfully disclosed to it without restriction by a third party.Was independently developed without the use of any Proprietary Information o the Disclosing Party.
- The Customer owns all rights, titles, and interests in Customer Data. Company shall hold and retain all rights, title, and interest in and to (a) the Software, all expansions or modifications to it, and (b) all intellectual property rights relating to the preceding.
- The company shall have the right to access, collect, use, process, store, and analyze metadata and other information relating to the provision, use, and performance of various aspects of the Software and related systems and technologies. It shall be free (during and after the term of this Agreement) to use such information and data to improve and enhance the Software and for other development, diagnostic, and corrective purposes in c. Company may use, process, store, disclose, and transmit Anonymized Client Data for any reason and without any restriction or responsibility to Customer, so long as the Anonymized Client Data cannot be connected with Customer.
PAYMENT OF FEES
- The Company will charge the Customer according to the fees outlined in the Order Form (“Fees”). Suppose the Customer’s use of the Software or any of its features necessitates the payment of additional fees per the provisions of the Order Form. In that case, the Customer agrees to be billed for such usage and to pay the extra costs by the terms of the Order Form. The Company reserves the right to modify the Fees or related charges and to implement new accounts after the Subscription Term or the then-current renewal term. It is clarified that no previous notice is necessary for the adjustment of Fees due to a change in the exchange rate provided on the Order Form. Customer must contact Company within fifteen (15) days of the closing date on the first billing statement on which the error or problem surfaced to get an adjustment or credit if Customer feels Company has billed Customer erroneously. Questions should be directed to the customer service department of the Company.
- Subject to the terms outlined in the Order Form, Company may bill by invoice. In this instance, Company must receive full payment for the invoices issued within fifteen (15) days of sending the invoice. Unpaid balances may result in the instant termination or suspension of this agreement at the Company’s discretion. The Customer is responsible for all applicable taxes related to the services envisaged by the Order Form.
RIGHTS TO INTELLECTUAL PROPERTY
- The customer retains complete ownership and all intellectual property rights to Customer Data.
- Intellectual property rights of the business.
In providing access to the Software, Company may utilize or incorporate any Company intellectual property that was licensed, procured, or developed by or for the Company before the Effective Date of the Order Form, which shall remain the property of the Company. In addition, the Company shall always own and be deemed to own all Company intellectual property about the Software and any derivative works, improvements, enhancements, modifications, or updates to the Software. It shall retain ownership of any tools, developer codes, templates, platforms, or Software used in connection with the Software.
“Company IP” shall mean, for this Agreement, all trade secrets, know-how, source code, object code, technical information, commercial and financial data, copyright, designs, inventions, patents, service marks, trademarks (in each case, whether registered or arising at common law, or its overseas equivalent), and all other industrial or intellectual property rights (whether registered or not) of the Company.
- Withhold of Rights. Each Party grants the other Party only the licenses and rights to its intellectual property, outlined explicitly in this Agreement. No additional charges or rights (including patent licenses or rights) are provided either explicitly, implicitly, or otherwise.
TERM AND CANCELLATION
- Subject to earlier termination as described below, this Agreement is for the Subscription Term specified in the Order Form and shall be automatically renewed for future periods as the Parties may mutually agree in writing (collectively, the “Term”) before the end of the then-current term.
- In addition to any other remedies, it may have, each Party may terminate this Agreement upon notice of thirty (30) days (or without notice in the case of nonpayment) if the other Party materially breaches any of the terms or conditions of this Agreement. In addition, Company may immediately terminate the Agreement if there is a material change in circumstances, including if a situation or event that the Company was not aware of, or should not have been reasonably aware of, becomes apparent, such that the Company, acting well, determines that continued provision of services as contemplated by the Order Form is not possible by this Agreement. Customers will pay in full for the services until and including the final day of service delivery. Including, but not limited to, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability, all provisions of this Agreement that, by their nature, should survive termination will survive termination.
- During and after the Subscription Term, Customer will not assert, authorize, assist, or encourage any third party to assert, against the Company or any of its affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim about the Software.
- In the event of termination or expiration of the Agreement, as applicable, the Company will cease/suspend any licenses/works/developments/services about this Agreement. Upon such termination or expiration, the Customer will have 30 (thirty) days from the date of such termination or expiration to retrieve all Customer Data. The Company shall provide restricted access to one data administrator identified and disclosed by the Customer for the purposes described above.
WARRANTY AND DISCLAIMERS
- Subject to the Service Level Terms attached here as Exhibit A and good technical support services by the terms outlined in Exhibit B, Company shall use reasonable efforts consistent with industry standards to maintain the Software in a way that minimizes errors and interruptions in the Software. Even so, the Software may be temporarily unavailable for scheduled maintenance or unscheduled emergency maintenance, either by the Company or by third-party providers or for other reasons beyond the Company’s reasonable control. However, the Company will try to inform you in writing or by e-mail before any scheduled service interruptions.
- Customer and Company will protect each other and their officers, directors, employees, representatives, and agents from any claims, costs, charges, damages, losses, and legal fees of any kind that come from a breach of representations and obligations given in this Agreement. They will also ensure that the other Party is protected and held harmless.
LIMITATION OF LIABILITY
- In any case, neither the Customer nor the Company will be responsible to the other Party or a third party for any lost profits or revenues or any indirect, special, incidental, consequential, cover, or punitive damages, no matter how they happened, whether in contract, tort, or under any other theory of liability, and whether or not the Party has been told about the possibility of such damages.
- Unless otherwise stated in this clause, the Company’s total liability arising from or related to the Agreement or the Order Form (whether in contract or under any other theory of liability) will not exceed the total amount paid by the Customer under the Agreement during the billing period before the last event that caused the harm (“Standard Cap”).
- If any part of this Agreement is invalid or unenforceable, that part will be changed or taken out to the minimum extent needed for the rest of this Agreement to be still valid and enforceable.
- This Agreement can only be assigned, transferred, or sublicensed by the Customer with the Company’s written permission. The Company can share and delegate any of its rights and responsibilities under this Agreement without approval. Still, it can only give its duties to third parties with the Customer’s written permission first.
- This Agreement is the complete and final statement of what both parties agree on. It replaces and nullifies all prior written and oral agreements, communications, and other understandings about the subject matter of this Agreement. All waivers and changes must be made in writing and signed by both parties unless otherwise stated in this Agreement.
- As a result of this Agreement, no agency, partnership, joint venture, or job is created, and Customer has no power to bind Company in any way. The winning party can get back costs and attorneys’ fees in any action or proceeding to enforce rights under this Agreement.
- All notices under this Agreement will be in writing and will be considered to have been appropriately given when received if personally delivered; when receipt is electronically confirmed, if sent by facsimile or e-mail; the day after it is sent if sent for next-day delivery by a recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
This Agreement will be ruled by the laws of India, even if they conflict with each other.
- Any disagreements between the parties about this Agreement will be settled by a single arbitrator chosen by the (Indian) Arbitration and Conciliation Act, 1996. As long as the arbitration clause doesn’t get in the way, the Courts in New Delhi will be in charge of any disputes arising because of this Agreement. The Parties will work together in good faith to put out at least one press release they agree on within 90 (ninety) days of the Effective Date. The Customer also agrees to work with Company reasonably when asked to be a reference account.
- For 6 (six) months after this Agreement is signed, neither party may recruit, hire, or otherwise use any of the other party’s associate/group company’s employees, agents, consultants, retainers, advisors, officers, or other workers, unless the other party gives written permission.
Also, the Parties agree that the non-solicitation rules in this clause will stay in place even if this Agreement expires, ends, or is canceled.
TERMS OF SERVICE LEVEL
The software must be available (System Availability) [99%] per month, excluding holidays, weekends, and Planned Maintenance.
If the customer asks for Maintenance during these hours, those times will not be counted when figuring out uptime or downtime. Also, any downtime caused by problems with third-party connections, utilities, or other things that are out of the Company’s control will not be counted.
Here’s how to figure out the percentage of system availability:
System Availability percentage = [(Total minutes in the month minus downtime)/Total minutes in the month] * 100
Scheduled Maintenance: [Weekly, Sunday from 2:00 am to 6:00 am Local Time]. Local Time is where the data center hosts the Company’s Services.
TERMS OF SUPPORT
Customers will get Technical Support from the Company via email on weekdays from 10:00 am to 6:00 pm (Indian Time), except on holidays (these are called “Support Hours”).
The customer can open a helpdesk ticket at any time by sending an email to email@example.com.
The Company will do everything it can to answer all Helpdesk tickets in [3 (three) business days].