All capitalized terms used but not defined in this Agreement shall have the meaning ascribed to them in the SaaS Agreement.
Last updated 01 January 2018
Subject to the terms and conditions set forth herein and the SaaS Agreement entered into between Manthan and the Subscriber (collectively, referred to as the “Agreement”), Manthan grants to the Subscriber, an authorized user under this Agreement, a limited, non-exclusive, non-transferable right (except as permitted in Section 10.3) during the term of this Agreement to use the Product being subscribed to as a Service, including, without limitation, all corrections, updates, modifications, releases, versions, renaming, rebranding, and enhancements to such Products that may be released by Manthan following the execution of this Agreement (“Services”), solely in connection with its internal business operations. Subscriber’s right to use the Services is subject to the scope limitations set forth in the SaaS Agreement and contingent upon the Subscriber’s compliance with the terms of the Agreement.
Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable Law, the Subscriber will not, and will not permit any unauthorized third parties to: (a) rent, lease, transfer or otherwise permit third parties to use the Services; (b) use the Services for any purpose other than in connection with its business operations; or (c) circumvent or disable any security or other technological features or measures of the Services. Notwithstanding the foregoing, the Subscriber may allow its users to access and use the Services in connection with the Subscriber’s data, provided that the Subscriber is solely responsible for any such use by its users. Subscriber will not permit access to the Services to any competitor of Manthan whatsoever, nor will the Subscriber access or use the Services to monitor their availability, performance or functionality, or for any benchmarking for any other purpose whatsoever.
Subscriber will use the Services in compliance with all applicable Laws, and refrain from any unethical conduct or any other conduct that tends to adversely affect the reputation of Manthan or the Services.
Subscriber will use commercially reasonable efforts to prevent any unauthorized use of the Services and documentation and immediately notify Manthan in writing of any such unauthorized use that comes to the Subscriber’s attention. If there is any unauthorized use by anyone who obtained access to the Services directly or indirectly through the Subscriber the Subscriber will take all steps reasonably necessary to terminate the unauthorized use. Subscriber will cooperate and assist with any actions taken by Manthan to prevent or terminate unauthorized use of the Services.
Manthan reserves all rights to the Services not expressly granted to the Subscriber in accordance with this Agreement.
Subscriber is solely responsible for all activity occurring under the Subscriber’s user accounts and will abide by all applicable Laws in connection with the Subscriber’s use of the Services, including those related to data privacy, international communications and the transmission of technical or personal data. Subscriber will: (a) notify Manthan immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (b) not permit, allow or facilitate any user to impersonate another user (whether a Manthan user or otherwise) or provide false identity or information to gain access to or use the Services; and (c) be solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership and right to use all data submitted by the Subscriber and /or any of the Subscriber’s end users in the course of receiving the Services.
Manthan may, from time to time, change or discontinue any or all of the Services or change or remove functionality of any or all of the Services from time to time. Manthan will provide prior notice to the Subscriber of any material change to or discontinuation of any of the Service(s). Subscriber’s continued use of the Services will be deemed its acceptance of such modification. The Subscriber shall be entitled, on any material diminution or discontinuance of the Services, to request a refund of any advance Subscription Fees paid for any diminished or discontinued Service on a proportional basis.
Manthan may suspend the Subscriber’s right to access or use any portion or all of the Services immediately upon notice to the Subscriber if it determines that:
The initial term of this Agreement will be for a period of 3 (three) years, unless specified otherwise in the SaaS Agreement or unless the Agreement is terminated earlier in accordance with its terms.
If either Party commits a material breach or default in the performance of any of its obligations under this Agreement, then the other Party may give the defaulting Party written notice of the material breach or default (including a statement of the facts relating to the material breach or default, the provisions of this Agreement that are in material breach or default, and the action required to cure the material breach or default), and of the non-defaulting Party’s intention to terminate the Agreement pursuant to Section 4.3 if the material breach or default is not cured within 30 days after the defaulting Party’s receipt of such notice (or such later date as may be specified in such notice). Without limiting the foregoing, any failure by Subscriber to timely pay to Manthan any amounts owing under this Agreement will constitute a material breach of this Agreement.
This Agreement may be terminated as follows:
If this Agreement or any subscriptions in this Agreement are terminated for any reason, (a) the Subscriber will pay to Manthan any fees, reimbursable expenses, compensation, or other amounts that have accrued prior to the effective date of the termination, (b) any and all liabilities accrued by the Subscriber prior to the effective date of the termination will survive, and (c) the Subscriber will provide Manthan with a written certification signed by an authorized Subscriber representative certifying that all use by the Subscriber of the Services has been discontinued, (d) any backups of data will be executed by Manthan at cost and handed over to the Subscriber. Subscriber shall be liable to pay all data hosting charges up to the date of handover of such data.
Each Party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery, or performance of this Agreement; and (c) the execution, delivery, and performance of this Agreement does not violate the Laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
Manthan warrants (1) that as on the date of delivery of the Product, the Product will be free of material defects and will conform in all material respects to the published technical specifications for the Product; (2) that any updates or upgrades to the Product will be free of material defects and will conform in all material respects to the published technical specifications for such updates or upgrades; and (3) that the Product documentation will be complete and adequate to operate the Services.
Except for the express representations and warranties stated in this Section 5, Manthan makes no representation or warranty of any kind whether express, implied (either in fact or by operation of Law), or statutory, as to any matter whatsoever. Manthan expressly disclaims all implied warranties of merchantability, fitness for a particular purpose, quality, accuracy, title, and non-infringement. Manthan does not warrant against interference with the enjoyment of the Services. Manthan does not warrant that the services are error-free or that operation of the services will be secure or uninterrupted. Manthan exercises no control over and expressly disclaims any liability arising out of or based upon the subscriber’s use of the Services.
Each Party (“Indemnifying Party”) shall indemnify and hold the other Party (“Indemnified Party”) harmless against any claims by a third party and all costs, damages, and expenses related thereto (including reasonable attorney’s fee) arising out of the Indemnifying Party’s negligence, or willful misconduct while performing its obligations under this Agreement. The Indemnified Party will provide the Indemnifying Party with prompt written notice of such claim, and information, reasonable assistance and the authority to defend such claims or settle (with the consent of the Indemnified Party) such claims.
The Subscriber shall further indemnify and hold Manthan harmless from all claims, costs, liabilities, proceedings, damages and expenses (including reasonable attorney’s fee) awarded against, or incurred or paid by Manthan in connection with, based on or arising from: (a) any third party claim that any, material or information provided by the Subscriber to Manthan under this Agreement infringes or misappropriates any third party’s Intellectual Property Rights, (b) breach by the Subscriber or its representatives of this Agreement; (c) unauthorised or unlawful use of the Services by the Subscriber; or (d) bundling or use of the Product in combination with any third party products.
Manthan retains all ownership and intellectual property rights to the Services and any updates or upgrades to the Services developed by Manthan and delivered under this Agreement. Subscriber also acknowledges that third-party technology may be used as part of the Service, and the intellectual property of such third-party technology shall be governed by the terms of the respective third-party technology owner.
The Subscriber and/or any Subscriber’s end user may not:
Manthan will defend the Subscriber from any actual or threatened third party claim that the Manthan Services infringe or misappropriate any third party intellectual property right during the term of this Agreement if: (a) the Subscriber gives Manthan prompt written notice of the claim; (b) Manthan has full and complete control over the defense and settlement of the claim; (c) the Subscriber provides assistance in connection with the defense and settlement of the claim as Manthan may reasonably request.
Manthan will indemnify the Subscriber against: (a) all damages, costs, and attorneys’ fees finally awarded against Subscriber in any proceeding under Section 7.2; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Subscriber in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Manthan’s consent after Manthan has accepted defense of such claim); and (c) if any proceeding arising under Section 7.2 is settled, all amounts paid to any third party as agreed to by Manthan in settlement of any such claims.
If the Subscriber’s use of the Services is, or in Manthan’s reasonable opinion, is likely to become, enjoined or materially diminished as a result of a proceeding arising under Section 7.2, then Manthan will either: (a) procure the continuing right of Subscriber to use the Services; or (b) replace or modify the Services in a functionally equivalent manner so that it no longer infringes.
Manthan will have no obligation under this Section 7 for any infringement to the extent that it arises out of or is based upon: (a) the combination, operation, or use of the Services not authorized by Manthan under the terms of this Agreement or otherwise, if such infringement would have been avoided but for such combination, operation, or use; (b) designs, requirements, or specifications for the Services required by or provided by Subscriber, if the alleged infringement would not have occurred but for such designs, requirements, or specifications; (c) use of the Services outside of the scope of the subscriptions granted to the Subscriber; (d) Subscriber’s failure to use the latest release of the Services or to comply with instructions provided by Manthan, if the alleged infringement would not have occurred but for such failure; (e) any modification of the Services not made by Manthan where such infringement would not have occurred absent such modification; or (f) unauthorized use of the Services. Subscriber will reimburse Manthan for any costs or damages that result from these actions covered under this Section 7.5.
Section 7.2 and Section 7.3 state Manthan’s sole and exclusive liability, and the Subscriber’s sole and exclusive remedy, for the actual or alleged infringement of any third party intellectual property right by the Services. The indemnity provided under Section 7.3 is a right afforded exclusively to the Subscriber and cannot be assigned, transferred, or passed through to any third party.
Notwithstanding anything to the contrary contained in this Agreement, neither Party will, under any circumstances, be liable to the other Party for consequential, incidental, special, or exemplary damages arising out of or related to this Agreement, including but not limited to lost profits or loss of business, even if Manthan is apprised of the likelihood of such damages occurring.
Under no circumstances will Manthan’s total liability of all kinds arising out of or related to this Agreement (including but not limited to warranty claims), regardless of the forum and regardless of whether any action or claim is based on agreement, tort, or otherwise, exceed the total amount paid by the Subscriber to Manthan under this Agreement over the 12 month period immediately prior to the date on which the action or claim accrued.
Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks of this Agreement between the Parties. This allocation is reflected in the pricing offered by Manthan to the Subscriber and is an essential element of the basis of the bargain between the Parties. Each of these provisions is severable and independent of all other provisions of this Agreement. The limitations in this Section 8 will apply notwithstanding the failure of essential purpose of any limited remedy in this Agreement.
“Confidential Information” as used in this Agreement shall mean any and all technical and non-technical information including copyright, trade secret and proprietary information, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, software, software programs, software source documents, Application Program Interfaces (APIs), and formulae related to the current, future and proposed products and services of each of the Parties and includes without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising, marketing plans and information, and documentation. All information disclosed by the disclosing Party (“Discloser”)to the other Party (“Recipient”), whether in writing or orally, that is designated as confidential, or which by its nature should be reasonably considered confidential, shall be considered Confidential Information. “Confidential Information” shall also include proprietary or confidential information of a third party the Discloser discloses to Recipient hereunder.
The Recipient’s obligations under this Section, with respect to confidential information of the Discloser shall be subject to the following exceptions: (i) such information was in the public domain at the time it was communicated to the Recipient; (ii) such information was rightfully in the Recipient’s possession, free of any obligation of confidence at the time it was communicated to the Recipient and the Recipient can provide written evidence of such possession; (iii) such information was developed by employees or agents of the Recipient, independently of and without reference to any information communicated to the Recipient by the Discloser; and (iv) the communication was in response to a valid order by a court or other governmental body, was otherwise required by Law and the Discloser was given sufficient Notice to take legal action to prevent such communication.
Each Party agrees that it shall not disseminate or in any way disclose any Confidential Information of the other Party to any third party, except to the extent necessary for negotiations, discussions, consultations and implementation under this Agreement with personnel or authorized representatives of the other Party, and any purpose the other Party may hereafter authorize in writing. Each Party agrees that it shall treat all Confidential Information of the other Party with the same degree of care as it accords to its own Confidential Information, and each Party represents that it exercises reasonable care to protect its own Confidential Information. If either Party is not an individual, such Party agrees that it shall disclose Confidential Information of the other Party only to those of its employees who need to know such information and certifies that such employees have agreed, either as a condition to employment or in order to obtain the Confidential Information to be bound by terms and conditions substantially similar to those of this Agreement. The Recipient shall immediately give notice to the Discloser of any unauthorized use or disclosure of the Confidential Information. The Recipient agrees to assist the Discloser in remedying any such unauthorized use or disclosure of the Confidential Information.
Each Party agrees that it shall not, in any way whatsoever, use, attempt to use or exploit the other Party’s Confidential Information for personal, professional or business gain or any other purpose whatsoever except for the purposes contemplated and elaborated on in this Agreement or for the purpose of furtherance and performance of any mutually agreed extensions of this Agreement, except as the Discloser may authorize in writing. Furthermore, the Parties commit that they shall make no attempts whatsoever to decrypt, reverse engineer or copy or imitate in any way whatsoever any or all of the Confidential Information of the Discloser.
The Parties recognize that each of them have business relationships with third parties which directly or indirectly compete with the other. Each Recipient further recognize and accept that any disclosure or utilization of any Confidential Information received under this Agreement, in the furtherance of the Recipient’s business relationship with any third party, whether or not a competitor of the Discloser, without the Discloser’s express written consent shall be deemed a violation of this Agreement.
All Confidential Information and any copies thereof, whether created by Discloser or Recipient, shall remain the property of Discloser and no subscription or other right to Confidential Information is granted or implied hereby. All materials including without limitation, documents, models, drawings, apparatus, sketches, designs and lists furnished to one Party by the other and which are designated in writing to be the property of such Party, shall remain the property of such Party and shall be returned to it promptly at its request, together with any copies thereof.
Neither Party shall communicate any information to the other in violation of the proprietary rights of any third party, except for permitted contractors or agents who are retained by Recipient for work on the project contemplated by this Agreement, provided that such contractors or agents are bound by confidentiality obligations at least as protective as the obligations set forth in this Agreement.
Discloser may disclose to the Recipient, information related to future products, features, or enhancements. Discloser’s development efforts and plans are subject to change at any time, without notice. Discloser provides no assurances that the Discloser will introduce future products, features, or enhancements disclosed to the Recipient, and the Discloser assumes no responsibility to introduce such products, features, or enhancements.
The Recipient shall, upon the written request of the Discloser, return to the Discloser all Confidential Information received by the Recipient from the Discloser (and all copies and reproductions thereof, but not including the Product or Product documentation subject to the Subscriptions granted herein). In addition, upon any such request, the Recipient shall destroy all copies of the Confidential Information prepared by the Recipient or its representatives and provide a written certification to Manthan that all Confidential Information has been either returned or destroyed. Notwithstanding the return or destruction of the Confidential Information, the Recipient and its representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder for a period of 5 (five) years from the date of return or destruction of the Confidential Information.
This Section 9 shall govern all communications between the Parties made during the period from the effective date of this Agreement to the date on which either Party receives from the other written notice that subsequent communications shall not be so governed provided, however, that each Party’s obligations under this Section 9 with respect to Confidential Information of the other Party, which it has previously received, shall continue in full force in accordance with the above provisions of this Section 9.
Manthan and the Subscriber will be and act as an independent contractors and this Agreement will not be interpreted or construed as: (a) creating or evidencing any agency, association, joint venture, partnership, or franchise between the Parties; or (b) prohibiting or restricting Manthan’s performance of any services for any third party or the provision of products to any third party. The Subscriber must not represent to anyone that the Subscriber is an agent of Manthan or is otherwise authorized to bind or commit Manthan in any way without Manthan’s prior written authorization.
Neither Party may assign its right, duties, or obligations under this Agreement without the other Party’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, either Party shall be entitled to assign this Agreement to its affiliates or an entity which acquires all or substantially all of that Party’s assets without consent from the other Party unless the acquirer is deemed by the other Party to be competitive with such other Party.
This Agreement shall survive any change of control of Manthan and notwithstanding Section 10.3, shall be freely assignable by Manthan (if necessary) and be binding upon any entity in control of Manthan or operating its business following such a transaction. A change in control of Manthan shall be deemed to have occurred: (1) on the closing date of a merger, consolidation, or share transfer involving Manthan that results in the transfer of 50% or more of the voting stock of Manthan; (2) on the closing date of a sale or other transfer of 50% or more of the fair market value of Manthan's assets; or (3) if Manthan enters into any agreement whereby Manthan may reasonably be anticipated to be directed by another person or business entity, or to act in concert, and not independently, of another person or business entity, in the management and policies of Manthan.
Manthan may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Manthan remains responsible for all of its obligations under this Agreement.
Subject to the provisions of Section 9 (Confidentiality) the Subscriber will: (a) make one or more representatives reasonably available for reference inquiries from potential Manthan customers, partners, and investor; and (b) further subject to the Subscriber’s prior written consent, allow Subscriber’s name and logo to be posted on Manthan’s web site and in marketing and advertising materials.
All notices and other communications required or permitted hereunder to be given to a Party shall be in writing, in the English language, and shall be sent by facsimile, e-mail, or mailed by prepaid internationally-recognized courier, or otherwise delivered by hand or by messenger, addressed to such Party’s address as set forth below or at such other address as the Party shall have furnished to the other Party in writing in accordance with this provision:
If to Manthan:at the address provided by Manthan in the SaaS Agreement
If to the Subscriber:at the address provided by the Subscriber in the SaaS Agreement
Any notice sent in accordance with this Section 10.7 shall be deemed to have been received: (a) at the time of transmission if sent by facsimile; (b) at the time of transmission, if sent by electronic mail; (c) 5 (five) business days after the time and date of posting if sent by an internationally recognized courier; and (d) at the time of delivery if delivered personally.
Manthan will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from the occurrence of a force majeure event such as act of God, flood, earthquake, fire, explosion, act of government, war, civil commotion, insurrection, embargo, riots, lockouts, labor disputes, systemic electrical, telecommunications, network or other utility failures affecting Manthan
Unless otherwise specified in the SaaS Agreement, this Agreement will be interpreted, construed, and enforced in all respects in accordance with the local Laws of India, without reference to its choice of Law rules. Any dispute arising out of this Agreement or provision of Services provided will be subject to the jurisdiction of the local courts at Bangalore, India.
An action for breach of this Agreement or any other action otherwise arising out of this Agreement, unless otherwise specifically mentioned in this Agreement, must be commenced within 1 (one) year from the date the right, claim, demand, or cause of action first occurs or be barred forever.
The waiver by either Party of any breach of any provision of this Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Services under this Agreement is found to be illegal, unenforceable, or invalid the Subscriber’s right to use the Services will immediately terminate.
This Agreement may be executed in any number of identical counterparts, notwithstanding that the Parties have not signed the same counterpart, with the same effect as if the Parties had signed the same document.
The Parties may from time to time include additional subscriptions or services governed through the execution of additional addendums, specifying additional products and payments for those products as mutually agreed. Such addendums will be bound by all the terms and conditions of this Agreement, and in the event of a conflict between this Agreement and such addendums, the addendums shall take priority and prevail in so far as such conflicts are identified and stated in such addendums.
This Agreement, including all exhibits, is the final and complete expression of the agreement between the Parties regarding the subscription of the Services. This Agreement supersedes, and replaces any pre-existing agreements between the Parties. This Agreement may be amended only by a written agreement signed by an authorized representative of each Party.