Notification Service

DEFINITIONS

1. "Acceptance Criteria" means the specifications set forth on the respective Service's page of this website, and any further email communication between Provider and Customer where Provider has given clarifications on queries raised by Customer regarding the specifications.
2. "Account" means an account enabling a person to access and use the Hosted Service, including both administrator accounts and user accounts;
3. "Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
4. "Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term "control" (including the terms "controlled by" and "under common control with") means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of more than 50% of the voting securities of a Person or otherwise.
5. "Agreement" has the meaning set forth in the preamble.
6. "Business Day" refers to a working day between Mondays to Friday excluding all public holidays.
7. "Business Hours" means the hours of 09:00 to 17:00 in Customer’s timezone on a Business Day.
8. "Confidential Information", as used in this Agreement shall mean all data, information and materials including, without limitation, computer software, data, information, databases, protocols, reference implementation, documentation, functional and interface specifications, provided by Provider to the Customer under this Agreement, whether written, transmitted, oral, through the Provider website or otherwise, and is further elaborated in Section 8.1.
9. "Control Panel" refers to the set of web-based interfaces provided by the Provider to the Customer which allows Customer and its end users to manage their orders and associated Services.
10. "Disclosing Party" has the meaning set forth in Section 8.1.
11. "Documentation" means end user documentation relating to the Software System that is produced by the Provider and delivered or made available to the Customer in the control panel of the Software System, and through various email communication, that describe the functionality, components, features, or requirements of the Software System, including any aspect of the installation, configuration, integration, operation, or use of the Software System.
12. "Effective Date" has the meaning set forth in the preamble.
13. "Force Majeure Event" has the meaning set forth in Section 14.11.1.
14. "Indemnitee" has the meaning set forth in Section 11.3.
15. "Indemnitor" has the meaning set forth in Section 11.3.
16. "Customer Indemnitee" has the meaning set forth in Section 11.1.
17. "Provider Indemnitee" has the meaning set forth in Section 11.2.
18. "Initial Term" has the meaning set forth in Section 13.1.
19. "Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights Laws, and all similar or equivalent rights or forms of protection, in any part of the world.
20. "Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
21. "Losses" means all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
22. "Maintenance Release" means any update, upgrade, release, or other adaptation or modification of the Software System, including any updated Documentation, that Provider may provide to Customer from time-to-time during the Term, which may contain, among other things, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the Software, but does not include any New Version.
23. "New Version" means any new version of the Software System that Provider may from time-to-time introduce and market generally as a distinct licensed product, and which Provider may make available to Customer at an additional cost under a separate agreement.
24. "Order" refers to the act of placing order on Provider by the Customer for a Software System, and the specific order and/or invoice document(s) generated in the process.
25. "Payment Failure" has the meaning set forth in Section 13.4.1.
26. "Permitted Use" means use of the Software System for the sole purpose for which it is provided.
27. "Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
28. "Prohibited Person" refers to individual, organization or entity located in certain sanctioned countries (each a "Sanctioned Country") and certain individual, organization, entity, or domain name, including without limitation, "Specially Designated National" ("SDN"), as listed by the government of the United States of America through the Department of the Treasury's Office of Foreign Assets Control ("OFAC"), with whom all or certain commercial activities are prohibited.
29. "Receiving Party" has the meaning set forth in Section 8.1.
30. "Renewal Term" has the meaning set forth in Section 13.2.
31. "Representatives" means, with respect to a Party, that Party's and its Affiliates' employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors, and legal advisors.
32. "Service" has the meaning set forth in the preamble.
33. "Software System" has the meaning set forth in the preamble. It further refers to the set of internet servers, web applications, interfaces, included third-party sub-systems or products, mobile apps and API that form the components of and work together to deliver a usable end product to Customer in the form of a website system, e-commerce website system, erp system, clinical trial management system, or any other custom made web application as per Customer's Order and as per the specifications detailed in this website under the respective Service pages.
34. "Term" has the meaning set forth in Section 13.2.
35. "Third-Party Materials" means materials and information, in any form or medium, that are not proprietary to Provider, including any third-party: (a) documents, data, content or specifications; (b) software, hardware or other products, facilities, equipment or devices; and (c) accessories, components, parts or features of any of the foregoing.

LICENSE

1. License Grant. Subject to and conditioned on Customer's payment of Fees and compliance with all other terms and conditions of this Agreement, Provider hereby grants to Customer a limited, non-exclusive, non-sublicensable, and non-transferable license to use the Software System and associated documentation solely for the Permitted Use during the Term.
2. Security Measures. The Software System may contain technological measures designed to prevent unauthorized or illegal use of the Software. Customer acknowledges and agrees that:
   1. Provider may use these and other lawful measures to verify Customer's compliance with the terms of this Agreement and enforce Provider's rights, including all Intellectual Property Rights, in and to the Software;
   2. Provider may deny any individual access to and/or use of the Software if Provider, in its sole discretion, believes that person's use of the Software System would violate any provision of this Agreement; and
   3. Provider and its Representatives may collect, maintain, process and use diagnostic, technical, usage and related information, including information about Customer's computers, systems and software, that Provider may gather periodically to improve the performance of the Software System or develop Maintenance Releases.

LICENSE RESTRICTIONS

1. copy the Software, in whole or in part;
2. modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of any Software;
3. rent, lease, lend, sell, sublicense, assign, distribute, publish, or otherwise make available the Software to any third party;
4. reverse engineer, disassemble, decompile, decode, or adapt the Software, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part;
5. bypass or breach any security device or protection used for or contained in the Software or associated documentation;
6. remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, terms of the documentation, warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks, or serial numbers on or relating to any copy of the Software or associated documentation;
7. use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable Law;
8. use the Software for purposes of: (i) benchmarking or competitive analysis of the Software; (ii) developing, using, or providing a competing software product or service; or (iii) any other purpose that is to Provider's detriment or commercial disadvantage;
9. use the Software in or in connection with the design, construction, maintenance, operation, or use of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Software could lead to personal injury or severe physical or property damage; or
10. use the Software or associated documentation other than for the Permitted Use or in any manner or for any purpose or application not expressly permitted by this Agreement.

DELIVERY

ACCEPTANCE

MAINTENANCE RELEASES/SUPPORT

1. During the Term, Provider will provide Customer with all Maintenance Releases (including updated documentation) that Provider may, in its sole discretion, make generally available to its customers for the particular Software System purchased by customer, at no additional charge. All Maintenance Releases provided by Provider to Customer are deemed Software. Customer does not have any right hereunder to receive any New Versions of the Software System that Provider may, in its sole discretion, release from time-to-time. Customer may license any New Version at Provider's then-current rates and subject to a separate license agreement, provided that Customer is in compliance with the terms and conditions of this Agreement.
2. Provider shall provide all required technical support to Customer and its end users via email and/or telephone, so as to enable them access and use the Software System successfully for the purpose for which it is provided.

FEES AND PAYMENT

1. License Fees. Customer shall pay Provider the license fees set forth in the corresponding Service page of this website. The License fees shall comprise of an Initial Setup fee and subsequent Renewal fees as quoted to Customer by Provider via email communication or, for some Services, published at this website on the corresponding Service page. The Initial Setup fee is payable at the time of placing the Order for the Service. If the Term is renewed for any Renewal Term(s) pursuant to Section 13.2, Customer shall pay the then-current standard license fees that Provider charges for the Software System during the applicable Renewal Term. Provider reserves the right to reasonably increase all applicable fees over time to take care of increase in costs over time.
2. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder.
   For Customers located in India, an additional GST (Goods & Service Tax) shall be charged by Provider on all invoices as per the prevailing GST rate. If Customer has a valid GSTIN, Customer will be able to avail credit for the GST paid.
3. Payment. Customer shall pay all amounts due and owing under this Agreement on a monthly, quarterly, six monthly, or yearly basis, as may be agreed upon in advance, within the due dates specified in Provider's invoice therefor. Customer shall make all payments to the bank account specified in Provider’s invoice or such other bank account as Provider may specify in writing from time to time. All payments are accepted in INR for Customers located in India, and in US dollars for Customers located outside India.
4. Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available to Provider:
   1. Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
   2. Customer shall reimburse Provider for all costs and expenses incurred by Provider in collecting any late payment of amounts due or related interest, including attorneys' fees, court costs, and collection agency fees; and
   3. if such failure continues for 30 days following written notice thereof, Provider may:
      1. Disable Customer's use of the Software System (including by means of a disabling code, technology or device);
      2. Withhold, suspend or revoke its grant of a license hereunder; and/or
      3. Terminate this Agreement under Section 13.4.1 or Section 13.4.2, as applicable.
5. No Deductions or Setoffs. All amounts payable to Provider under this Agreement shall be paid by Customer to Provider in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason.

CONFIDENTIALITY

1. Confidential Information. In connection with this Agreement, Provider (the "Disclosing Party") may disclose or make available Confidential Information to Customer (the "Receiving Party"). Subject to Section 8.2, "Confidential Information" means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including, without limitation, the Software System and Documentation, the terms of this Agreement and other associated Agreement, all attachments/exhibits thereto and all associated and ancillary documents, as well as information consisting of or relating to the Disclosing Party's technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated, or otherwise identified as "confidential".
2. Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records:
   1. was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with this Agreement;
   2. was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement;
   3. was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or
   4. was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
3. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall, during the Term and after the termination or expiration of this Agreement for any reason:
   1. not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
   2. except as may be permitted under the terms and conditions of Section 8.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 8; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 8;
   3. safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care;
   4. promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and cooperate with Disclosing Party to prevent further unauthorized use or disclosure; and
   5. ensure its Representatives' compliance, and be responsible and liable for any of its Representatives' non-compliance, with the terms of this Section 8.
4. Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party will:
   1. promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 8.3; and
   2. provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
   If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 8.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party will disclose only that portion of the Confidential Information that, on the advice of the Receiving Party's legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party's request, will use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.

INTELLECTUAL PROPERTY RIGHTS

1. Intellectual Property Ownership. Customer acknowledges and agrees that:
   1. the Software System and Documentation are licensed, not sold, to Customer by Provider, and Customer does not have under or in connection with this Agreement any ownership interest in the Software System or Documentation, or in any related Intellectual Property Rights;
   2. Customer has no right whatsoever, on any of the source codes and database designs of the Software System.
      
   3. Provider is the sole and exclusive owner of all right, title, and interest in and to the Software System and Documentation, including all Intellectual Property Rights relating thereto, subject only to the limited license granted to Customer under this Agreement; and
   4. Customer hereby unconditionally and irrevocably assigns to Provider or Provider's designee, its entire right, title, and interest in and to any Intellectual Property Rights that Customer may now or hereafter have in or relating to the Software System or Documentation (including any rights in derivative works or patent improvements relating to either of them), whether held or acquired by operation of law, contract, assignment or otherwise.
2. Customer Cooperation and Notice of Infringement. Customer shall, during the Term:
   1. safeguard the Software System and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access;
   2. at Provider's expense, take all such steps as Provider may reasonably require to assist Provider in maintaining the validity, enforceability and Provider's ownership of the Intellectual Property Rights in the Software System and Documentation;
   3. promptly notify Provider in writing if Customer becomes aware of: (i) any actual or suspected infringement, misappropriation or other violation of Provider's Intellectual Property Rights in or relating to the Software System or Documentation; or (ii) any claim that the Software System or Documentation, including any production, use, marketing, sale or other disposition of the Software System or Documentation, in whole or in part, infringes, misappropriates or otherwise violates the Intellectual Property Rights or other rights of any Person; and
   4. fully cooperate with and assist Provider in all reasonable ways in the conduct of any Action by Provider to prevent or abate any actual or threatened infringement, misappropriation or violation of Provider's rights in, and to attempt to resolve any Actions relating to, the Software System or Documentation, including having Customer's employees testify when requested and making available for discovery or trial relevant records, papers, information, samples, specimens and the like.
3. No Implied Rights. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to Customer or any third party any Intellectual Property Rights or other right, title, or interest in or to any of the Software System or Documentation.

REPRESENTATIONS AND WARRANTIES

1. Mutual Representations and Warranties. Each Party represents, warrants, and covenants to the other Party that:
   1. it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
   2. it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, and authorizations it grants and is required to grant under this Agreement;
   3. the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and
   4. when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
2. No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made in connection with the execution, delivery, and performance of this Agreement or the taking of any other action contemplated hereby.
3. The Customer represents and warrants that:
   1. Customer has read and understood every clause of this Agreement;
   2. Customer has independently evaluated the desirability of the service and is not relying on any representation agreement, guarantee or statement other than as set forth in this agreement;
   3. Customer is not a Prohibited Person and is not acting on behalf of a Prohibited Person; and
   4. Customer is eligible, to enter into this Contract according to the laws of the Customer's country.
4. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SOFTWARE SYSTEM, ALL DOCUMENTATION AND OTHER PRODUCTS, INFORMATION, MATERIALS, AND SERVICES PROVIDED BY PROVIDER ARE PROVIDED "AS IS", “WHERE IS” AND SUBJECT TO ALL FLAWS. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE LICENSED SOFTWARE SYSTEM OR DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR OTHER PERSONS' REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, HARDWARE, SYSTEMS, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE.

INDEMNIFICATION

1. Provider Indemnification. Subject to Section 12.2, Provider shall indemnify, defend, and hold harmless Customer from and against any and all Losses incurred by Customer resulting from any Action by a third party that the Software System or Documentation, or any use of the Software System or Documentation in accordance with this Agreement, infringes or misappropriates such third party's Intellectual Property Rights. This Section 11.1 does not apply to the extent that the alleged infringement arises from:
   1. Third-Party Materials;
   2. combination, operation, or use of the Software System in or with, any technology (including any software, hardware, firmware, system, or network) or service not provided by Provider or specified for Customer's use in the Documentation, unless otherwise expressly permitted by Provider in writing;
   3. modification of the Software System other than: (i) by Provider or its contractor in connection with this Agreement; or (ii) with Provider's express written authorization and in strict accordance with Provider's written directions and specifications;
   4. use of any version of the Software System other than the most current version or failure to timely implement any Maintenance Release, modification, update, or replacement of the Software System made available to Customer by Provider;
   5. use of the Software System after Provider's notice to Customer of such activity's alleged or actual infringement, misappropriation, or other violation of a third party's rights;
   6. negligence, abuse, misapplication, or misuse of the Software System or Documentation by or on behalf of Customer, Customer's Representatives, or a third party;
   7. use of the Software System or Documentation by or on behalf of Customer that is outside the purpose, scope, or manner of use authorized by this Agreement or in any manner contrary to Provider's instructions;
   8. events or circumstances outside of Provider's commercially reasonable control (including any third-party hardware, software, or system bugs, defects, or malfunctions); or
   9. Third-Party Claims or Losses for which Customer is obligated to indemnify Provider pursuant to Section 11.2.
2. Customer Indemnification. Customer shall indemnify, defend, and hold harmless Provider and its Affiliates, and each of its and their respective officers, directors, employees, agents, subcontractors, permitted successors and permitted assigns (each, a "Provider Indemnitee") from and against any and all Losses incurred by the Provider Indemnitee resulting from any Action by a third party:
   1. that any Intellectual Property Rights or other right of any Person, or any Law, is or will be infringed, misappropriated, or otherwise violated by any:
      1. use or combination of the Software System by or on behalf of Customer or any of its Representatives with any hardware, software, system, network, service, or other matter whatsoever that is neither provided by Provider nor authorized by Provider in this Agreement and the Documentation or otherwise in writing; and
      2. information, materials, or technology directly or indirectly provided by Customer or directed by Customer to be installed, combined, integrated, or used with, as part of, or in connection with the Software System or Documentation;
   2. relating to facts that, if true, would constitute a breach by Customer of any representation, warranty, covenant, or obligation under this Agreement;
   3. relating to negligence, abuse, misapplication, misuse or more culpable act or omission (including recklessness or willful misconduct) by or on behalf of Customer or any of its Representatives with respect to the Software System or Documentation or otherwise in connection with this Agreement; or
   4. relating to use of the Software System or Documentation by or on behalf of Customer or any of its Representatives that is outside the purpose, scope or manner of use authorized by this Agreement or the Documentation, or in any manner contrary to Provider's instructions.
3. Indemnification Procedure. Each Party shall promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to Section 11.1 or Section 11.2. The Party seeking indemnification (the "Indemnitee") shall cooperate with the other Party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall promptly assume control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee's prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee's failure to perform any obligations under this Section 12.3 will not relieve the Indemnitor of its obligations under this Section 12, except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure.
4. Mitigation. If the Software System, or any part of the Software System, is, or in Provider's opinion is likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer's use of the Software is enjoined or threatened to be enjoined, Provider may, at its option and sole cost and expense:
   1. obtain the right for Customer to continue to use the Software materially as contemplated by this Agreement;
   2. modify or replace the Software, in whole or in part, to seek to make the Software System non-infringing, while providing materially equivalent features and functionality, and such modified or replacement software will constitute Software System under this Agreement; or
   3. if, after Provider's exercise of commercially reasonable efforts, none of the remedies set forth in the above Section 11.4.1 or Section 11.4.2 is reasonably available to Provider, Provider may terminate this Agreement, in its entirety or with respect to the affected part or feature of the Software, effective immediately on written notice to Customer, in which event:
      1. Customer shall cease all use of the Software System and Documentation immediately on receipt of Provider's notice; and
      2. provided that Customer fully complies with its post-termination obligations set forth in Section 13.4, Provider shall promptly refund to Customer, on a pro rata basis, the share of any license fees prepaid by Customer for the future portion of the Term that would have remained but for such termination.
5. Sole Remedy. THIS SECTION 11 SETS FORTH PROVIDER'S SOLE REMEDIES AND CUSTOMER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE SYSTEM OR DOCUMENTATION OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

LIMITATIONS OF LIABILITY

1. EXCLUSION OF DAMAGES. IN NO EVENT WILL PROVIDER, OR ANY OF ITS PARTNERS, AFFILIATES, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY (a) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES OR PROFITS, (b) LOSS OF GOODWILL OR REPUTATION, (c) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY LICENSED SOFTWARE, (d) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (e) COST OF REPLACEMENT GOODS OR SERVICES, OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
2. PROVIDER FURTHER DISCLAIMS ANY AND ALL LOSS OR LIABILITY RESULTING FROM, BUT NOT LIMITED TO:
   1. LOSS OR LIABILITY RESULTING FROM THE UNAUTHORIZED USE OR MISUSE OF AUTHENTICATION INFORMATION;
   2. LOSS OR LIABILITY RESULTING FROM FORCE MAJEURE EVENTS;
   3. LOSS OR LIABILITY RESULTING FROM ACCESS DELAYS OR ACCESS INTERRUPTIONS;
   4. LOSS OR LIABILITY RESULTING FROM NON-DELIVERY OF DATA OR DATA MISS-DELIVERY;
   5. LOSS OR LIABILITY RESULTING FROM ERRORS, OMISSIONS, OR MISSTATEMENTS IN ANY AND ALL INFORMATION OR SERVICE(S) PROVIDED UNDER THIS AGREEMENT;
   6. LOSS OR LIABILITY RESULTING FROM THE INTERRUPTION OF SERVICE.
3. CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF PROVIDER ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE AMOUNT PAID FOR THE ORDER IN QUESTION TO PROVIDER UNDER THIS AGREEMENT IN THE 3 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $500, WHICHEVER IS LESS. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

TERM AND TERMINATION

1. Initial Term. The initial term of this Agreement commences as of the Effective Date and continues in effect for the period set forth in the Order document unless terminated earlier pursuant to any of the Agreement's express provisions (the "Initial Term").
2. Renewal Term. This Agreement will automatically renew for additional successive terms of equal length, which could be monthly, quarterly, six-monthly or yearly,  as specified in the initial Order document, unless earlier terminated pursuant to any of the Agreement's express provisions or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a "Renewal Term" and, collectively, together with the Initial Term, the "Term").
3. The Customer acknowledges, agrees, and authorizes the Provider to automatically bill the applicable fee and/or charge Customer's Advance Account and/or Card Information or other payment account on file, if any, for each Renewal Period, unless the Customer terminates or cancels the Order prior to such charge.
4. Termination. This Agreement may be terminated at any time:
   1. by Provider, effective on written notice to Customer, if Customer fails to pay any amount when due under this Agreement, where such failure continues more than thirty (30) days after Provider's delivery of written notice thereof ("Payment Failure");
   2. by Provider, at any time, without cause, upon providing Customer with thirty (30) days’ prior written notice;
   3. by either Party, effective on written notice to the other Party, if the other Party materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured for thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach;
   4. by Provider, effective immediately, if the Customer:
      1. is dissolved or liquidated or takes any corporate action for such purpose;
      2. becomes insolvent or is generally unable to pay its debts as they become due;
      3. becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency Law;
      4. makes or seeks to make a general assignment for the benefit of its creditors; or
      5. applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
5. Customer shall not transact with or act on behalf of any Prohibited Person. If Customer is a Prohibited Person, Customer is prohibited from registering or signing up with, subscribing to, or using any Provider's Service. Any violation of this provision ("OFAC Provision") as determined in Provider's sole discretion, may result in the suspension and/or termination of the Customer Account and the termination of this Agreement without a refund or compensation of any kind to Customer.
6. Effect of Termination or Expiration. On the expiration or earlier termination of this Agreement all rights, licenses and authorizations granted to Customer hereunder will immediately terminate and
   1. Customer will immediately cease all use of and other activities with respect to the Software System and Documentation;
   2. Customer will within 10 days deliver to Provider, or at Provider's written request destroy, and permanently erase from all devices and systems Customer directly or indirectly controls, the Software System, the Documentation and the Provider's Confidential Information, including all documents, files, and tangible materials (and any partial and complete copies) containing, reflecting, incorporating, or based on any of the foregoing, whether or not modified or merged into other materials; and
   3. Customer will certify to Provider in a signed written instrument that it has complied with the requirements of this Section 13.4.
   4. All amounts payable by Customer to Provider of any kind are immediately payable and due no later than 10 Business Days after the effective date of the expiration or 10 Business Days after Provider's termination of this Agreement.
   5. Provider will permanently delete Customer's Account in the Software System, which will result in permanent deletion of all application data and files uploaded and stored in Provider's servers by Customer and its end-users. The Provider shall have no obligation to provide backup of Customer's data and files prior to deleting the same.
7. Surviving Terms. The provisions set forth in the following sections, and any other right, obligation or provision under this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: this Section 13.6, Section 1, Section 7, Section 8, Section 9, Section 10, Section 11, and Section 14.

MISCELLANEOUS

1. Further Assurances. On a Party's reasonable request, the other Party shall, at the requesting Party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
2. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
3. Public Announcements. Neither Party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other Party's trademarks, service marks, trade names, logos, domain names, or other indicia of source, association or sponsorship, in each case, without the prior written consent of the other Party, which shall not be unreasonably delayed or withheld, provided, however, that Provider may, without Customer's consent, include Customer's name and other indicia in its lists of Provider's current or former customers of Provider in promotional and marketing materials.
4. Notices. Any notice, request, consent, claim, demand, waiver, or other communication under this Agreement have legal effect only if in writing and addressed to a Party as follows (or to such other address or such other person that such addressee Party may designate from time to time in accordance with this Section 14.4:

   1. If to Provider:

      Address: M-7, Old Housing Colony, Adityapur, Jamshedpur 831013, India

      Email: rkumar@businessahead.net

      Attention: Rajeev Kumar, CEO

   2. If to Customer:

      Customer's primary contact person, postal address and email address, provided by Customer at the time of registering at this website prior to placing Order for the Software System.

   Notices sent in accordance with this Section 14.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a recognized overnight courier, signature required; (c) when sent, if by facsimile or email, (in each case, with confirmation of transmission), if sent during the addressee's normal business hours, and on the next Business Day, if sent after the addressee's normal business hours; and (d) on the third (3rd) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
5. Interpretation. For purposes of this Agreement: (a) the words "include," "includes" and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice versa; and (e) words denoting any gender include all genders.
   Unless the context otherwise requires, references in this Agreement: (a) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (b) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (c) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
6. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
7. Entire Agreement. This Agreement, together with the Business Associate Agreement (applicable only for Software System related to Health Care), constitute the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related exhibits, schedules, attachments, and appendices and the Business Associate Agreement (if applicable), the following order of precedence governs: (a) first, this Agreement, excluding its exhibits, schedules, attachments, and appendices; (b) second, the exhibits, schedules, attachments, and appendices to this Agreement as of the Effective Date; and (c) third, the Business Associate Agreement (if applicable).
8. Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Provider's prior written consent. No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section is void. This Agreement is binding on and inures to the benefit of the Parties hereto and their respective successors and permitted assigns.
9. Force Majeure.
   1. No Breach or Default. In no event will either Party be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such Party's reasonable control (a "Force Majeure Event"), including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, acts of God, flood, fire, earthquake or explosion, epidemic, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the Effective Date, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either Party may terminate this Agreement if a Force Majeure Event affecting the other Party continues substantially uninterrupted for a period of thirty (30) days or more.
   2. Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected Party will give prompt written notice to the other Party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
10. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
11. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof is effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
12. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. On such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
13. Governing Law; Submission to Jurisdiction. This Agreement shall be governed by and interpreted and enforced in accordance with the laws of the Country, State and City where Computer Solutions is incorporated, applicable therein without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in a court in the city, state and country where Computer Solutions is incorporated. Computer Solutions reserves the right to enforce the law in the Country/ State/ District where the Registered/ Corporate/ Branch Office, or Place of Management of the Customer is situated as per the laws of that Country/ State/ District.
14. Equitable Relief. Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations under Section 7, Section 8, or Section 1 of this Agreement would cause Provider irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Provider will be entitled to equitable relief, including in a restraining order, an injunction, specific performance, and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
15. Attorneys' Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either Party against the other Party arising out of or related to this Agreement, the prevailing Party is entitled to recover its attorneys' fees and court costs from the non-prevailing Party.
16. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.