TERMS OF SERVICE AGREEMENT
This "Terms of Service" Agreement (the "Agreement") is a legally binding agreement,
BETWEEN: Pragyaware Informatics Private Limited (the "Company"), with its principal place of business located at 4th Floor, Golden Plaza, Mall Road, Ludhiana-141001 (Punjab)
AND: YOU ("You") either an Individual, or any Legal Entity viz. Proprietorship, Partnership, Company registered under Companies Act, 1956, Society, Trust, Association, HUF etc.
By selecting the box "I AGREE" while REGISTRATION indicates YOUR acceptance to all the Terms and Conditions of this agreement and that this Agreement is equivalent to a written agreement signed by YOU. Terms of this agreement shall also apply to all the updates, supplements, Internet-based services and support services for the Product(s)/Service(s) (Refer Schedule A) and Facilities. If YOU do not agree to the Terms of Service of this Agreement, please do not use these Products/Services/Facilities.
WHEREAS, Company is into Design and Development of IT Products and Services and desires to grant YOU a Right to Use/Resell its Products (the "Products") as described in Schedule A/ avail Facilities; and
WHEREAS, YOU desire to have the Company grant to you the Right to Use/Resell its Products/avail Facilities.
NOW THIS AGREEMENT WITNESSETH AND IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES HERETO AS UNDER: -
When used in this agreement the following terms shall have the respective meanings indicated, such meanings to be applicable to both the singular and plural forms of the terms defined.
- "Affiliate" means
a. in case of a person other than a natural person, any other person that, either directly or indirectly, controls, is controlled by, or is under common control with such person, and
b. in case of a person that is a natural person, any relative (as defined under Section 6 of the Companies Act, 1956) of such natural person or an entity that either directly or indirectly, controls, is controlled by such natural person or by a relative of such natural person.
Provided that, for the purposes of this definition, control shall mean the power to direct the management or policies of a person, whether through the ownership of over 50% of the voting power of such person, through the power to appoint over half of the members of the board of directors or similar governing body of such person or by virtue of the articles or other constitutional document of such person or otherwise, or through contractual arrangements or otherwise.
- "Agreement" means this Agreement, the Schedules attached hereto and any documents included by reference as each may be amended from time to time in accordance with the terms of this agreement.
- "Application Tools" means various software/applications/tools provided to YOU to discharge your Scope of Work.
- "Subscriber" means any person (individual/entity) who avails the services from the Service Providers.
- "Delivery Point" means Company's facilities at 4th Floor, Golden Plaza, Mall Road, Ludhiana-141001 (Punjab).
- "Discount" or "Commission" means difference in Sale value of the Product/Facility sold by YOU and the value at which the Product/Facility is transferred to YOU by the Company.
- "Electronic Order" means an Order issued by YOU to purchase any Product or Service in the Electronic Form through a Text Message/SMS/Web Request/Email.
- "End User" means any person (individual/entity), who avails Company's Products/Services.
- "Facility" means Topup/Refill Services provided by the Service Providers.
- "Payment" means a preliminary (advance) payment paid by the Subscriber to the Service Providers for Top Up/Refill.
- "Payment Transaction" means a number of sequential operations which represents a logical unit of work with the data, or the number of operations represents a group of actions to ensure an execution of single Payment.
- "Products" means items which may include any Product or Service as described in Schedule A.
- "Schedule" means a Schedule attached to this Agreement.
- "Service Providers" means entities with whom Company has business arrangements / agreements for offering Top up/Refill of Phones/DTH accounts.
- "Terminal" means the Payment Terminal and/or Kiosk, which has the capability to capture Subscriber Payment information, transmit such information to a Company's Central Software System and has the capability to display/announce/print/issue receipts.
- "Territory" means the geographic area or areas identified in Schedule B.
- "Third Parties" means any Third party with whom Company has business arrangements/ agreements/commercial tie ups for any Service which may include Service Providers, Internet Service Providers, Utilities or any other Services provided by any Third party and upon whose Services, the Products or Services offered by the Company are wholly or partially dependent.
- "Top Up"/"Refill" means the sale/provisioning by YOU to the Subscribers of the Service Providers for the topping up or refilling of the Phone/DTH account with standard hours as provided by the Service Providers through Company.
- "Trademark" means any trademark, logo, service, mark or other commercial designation, whether or not registered, used to represent, or describe the Products of Company, as set forth in Schedule D.
- "Trading Balance" refers to the available balance in YOUR account with the Company for the Top Up/Refill facilities.
- "Transaction Acknowledgement Receipt" means a slip / receipt/ acknowledgement, if any, however defined, issued by YOU to a Subscriber, in acknowledgement of having received a payment(s) from the Subscriber, for topping up / refilling.
2. SCOPE OF WORK
2.1 The Scope of work to be provided and availed under this Agreement and the obligations of the Parties in the performance of the activities shall be as detailed in Schedule G attached hereto.
2.2 Company may from time to time notify extension or changes to be made to the Schedule G, and such extension or change of Scope shall be effective from the date of any such notification for any such change.
2.3 In the event of any change in the work arrangement between Company and any of the Third Parties, that in the opinion of Company, impacts its ability to provide any part of the Scope of work under this Agreement, then Company shall notify YOU of the same on receipt of such communication from the Third Parties and have the right to modify / discontinue the activities or its part undertaken to in respect of such Third Parties with maximum possible prior notice to YOU.
3. APPOINTMENT OF CHANNEL PARTNER
Company hereby appoints YOU as Company's Non-Exclusive "Reseller" of Products/Facilities in the Territory provisionally, and YOU accept that position. However, YOUR appointment shall be confirmed only after the Receipt of your Application Form and its Approval by the Company. It is understood that Company cannot lawfully prevent other Channel Partners located elsewhere from supplying Products for Sale or Use with in the Territory and that it has no obligation to do so.
3.2 Types of Channel Partner
The Channel Partners for the Scope of Work can be segmented into 3 different categories as defined below:-
- Distributor: An individual or entity that re-sells or sub licenses Products from the Company to the End-Users. Distributor shall provide Support Services to the End Users directly or through the Resellers appointed by him.
- Reseller: An individual or entity appointed by the Company or the Distributor to resell the Products of the company to the End Users.
- Influencer: Influencer is an individual or entity who can influence the buying decision of the prospective buyer. His primary job is to refer the Products of the Company to the prospective buyers.
4.1 Distribution License Conditions
YOU shall only distribute the Products to end-users (the "End-Users") who enter into an End-User License Agreement ("EULA" as hereinafter defined). The software Products shall be in executable object code form only and YOU shall have no other right to the source code of such Products. YOU shall not modify, translate, decompile, nor create or attempt to create, by reverse engineering or otherwise, the source code from the object code of the Products supplied hereunder, or adapt the Products in any way or for use to create a derivative work. YOU may not permit End-Users to, use, reproduce, sub license, distribute or dispose of the Products, in whole or in part, except as expressly permitted under this Agreement.
4.2 The Territory
YOU may market and distribute the Products solely within the geographical limits set forth in Schedule B attached hereto (the "Territory"). Company retains the right, in its sole discretion, to change the Territory assigned to YOU upon 30 days prior written notice to YOU.
4.3 License of the Products to End-Users
In connection with YOUR license and distribution of the Products to End-Users, the Channel Partner will have End-Users execute an End-User License Agreement in the form attached hereto as Schedule C (the "End-User License Agreement"). YOU may not negotiate the terms of the End-User License Agreement with any prospective End-User or agree to any conflicting, different or additional terms from those set forth in the End-User License Agreement without Company's prior written consent. Company shall have no liability to YOU in the event any prospective End-User refuses to agree to enter into an End-User License Agreement.
4.4 Product Changes
Company retains the right, in its sole discretion, to upgrade or modify the Products from time to time. In addition upon 10 days prior notice to YOU, Company may add or delete Products from Schedule A. Upon receipt of any such notice of an upgrade or modification, or upon the expiration of the notice period set forth above for additions or deletions to Schedule A, YOU shall cease to market and distribute earlier versions of the Products deleted from Schedule A.
5. NO MODIFICATIONS OR BUNDLING
5.1 No Modifications
YOU will not, without the prior written consent of the Company modify, alter, adapt, disassemble, reverse engineer, decompile or amend the Products in any way.
5.2 YOUR Name and Logo
YOU may, with the prior written approval of the Company, affix YOUR name and logo on the Product in the manner approved by the Company.
5.3 No Bundling
YOU will not bundle, package or otherwise distribute the Product with, or as part of, any other product or collection of products without the prior written approval of the Company.
6. WITHDRAWAL OF PRODUCT
6.1 Suspension of Distribution
The Company may direct YOU in writing to suspend the distribution of the Product (and YOU will comply with that direction) for a period up to 90 days ("Suspension Period") if:
a. The Product is defective; or
b. If the Company is advised by its legal advisers that the Product:
i. infringes or may infringe the Intellectual Property Rights of any person; or
ii. is or may be defamatory, obscene, false, misleading or deceptive.
iii. is against law or contrary to any legal provision.
6.2 Channel Partner to Notify
If YOU become aware of any of the matters described in Sections 6.1 (a) or (b), YOU will immediately notify the Company in writing and request the Company to issue a direction under Section 6.1. The Company will not be obliged to issue any such direction.
6.3 If Company is Unable to Rectify the Product
If the Company is unable to rectify the Product within the Suspension Period, such inability will constitute a Termination Event.
6.4 If Company is Able to Rectify the Product
If the Company is able to rectify the Product within the Suspension Period (or any extension thereof agreed by the parties) YOU must resume distribution of the Product.
7. PAYMENTS AND DISCOUNTS
7.1 Parties hereby agree and acknowledge that all Payments and Settlements between the parties shall be made in accordance with the Schedule H attached hereto.
7.2 YOU may be entitled to certain Discounts/Commissions towards the Products as provided in Schedule A and Facilities as provided in Schedule I. Both Parties acknowledge that margins fluctuate from time to time due to changing market conditions. Company will keep YOU informed of the fluctuating market conditions and may, at its sole discretion, update the discount structure from time to time.
8. REPRESENTATION & WARRANTIES
8.1 Representation and Warranties
8.1.1 Each Party represents and warrants that:
a. it is an entity duly constituted and validly existing under Indian law;
b. it holds necessary licenses, approvals and consents as may be required for the conduct of its business and such licenses, approvals and consents are valid and subsisting;
c. it has, in terms of applicable law and its constitution documents, capacity to enter into and perform this Agreement and it has taken all actions (including obtaining necessary statutory and other approvals, including, and with respect to the Channel Partner, any approvals from End User if required under data protection or any other law or regulation) required for its entering into this Agreement; and
d. neither making nor performance of this Agreement will violate any law or conflict with or result in the breach or constitute a default or require any consent under any decree, order, judgment, indenture or agreement.
e. it shall comply with applicable union, state and local laws, ordinances, regulations and codes in performing its obligations hereunder, including the procurement of licenses, permits and certificates and payment of taxes where required.
8.1.2 YOU hereby represent and warrant to the Company that
a. YOU and/or YOUR Reseller shall neither communicate nor represent that:
(i) the activities provided to the Subscribers pursuant to this Agreement is an extension of facilities of YOU in association with the Service Provider(s); (ii) that any charges/fees levied on the Customer are charges/fees of Company and/or the Service Provider(s) or are charges that are endorsed by Company and/or the Service Provider(s).
b. YOU shall offer the Products/Facilities envisaged in this Agreement, to Subscribers or otherwise in the marketplace, after ensuring due compliance with all applicable laws, whether in India or outside; YOU shall ensure that the use of the facilities under this Agreement is lawful in every jurisdiction where the facilities are offered; and that all financial transactions conducted by or for Subscribers under this Agreement are lawful and comply with all applicable regulatory requirements;
c. YOU warrant to Company that YOU will use commercially reasonable efforts to ensure that the Subscriber Information and Payment Information provided to Company hereunder are the same as the version of such information as contained in YOUR own files.
8.2 Disclaimer of Warranties
THE PRODUCTS ARE PROVIDED "AS IS". COMPANY SPECIFICALLY DISCLAIMS ALL WARRANTIES EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCTS OR DEFECTS IN THE TAPE, DISKETTE OR OTHER TANGIBLE MEDIA AND DOCUMENTATION, OPERATION OF THE PRODUCTS, AND ANY PARTICULAR APPLICATION OR USE OF THE PRODUCTS.
9.1 Each Party acknowledges and agrees that in connection with this Agreement, it will have access to certain trade-secrets, information regarding business strategies, business arrangements, business and operating processes, financial information, customer related data and information and other non-public confidential information of the other during and in connection with the performance of scope of work hereunder ("Confidential Information"), and hereby agrees not to disclose any Confidential Information to any other party and not to use any such Confidential Information for any purpose other than as strictly required for performance under this Agreement. All such Confidential Information is and shall remain the exclusive property of the disclosing Party and no license shall be granted or implied with respect to such Confidential Information by reason of the other Party's access to such Confidential Information. Each Party agrees to protect the proprietary information of the other with the same standard of care and procedures used by each to protect its own proprietary information of similar importance but at all times using at least a reasonable degree of care.
9.2 Each of the Parties, shall undertake such precautions such as is sufficient to enable it to comply with all the terms hereof and to ensure similar compliance thereof by each such employee / personnel and which binds each such employee / personnel to maintain complete and effective secrecy and confidentiality regarding any and all information whatsoever pertaining to the other Party which comes to their knowledge in the course of undertaking any work in pursuance of this Agreement.
9.3 The receiving Party shall be relieved of this obligation of confidentiality to the extent any such information:
9.3.1 Was in the public domain at the time it was disclosed or has become in the public domain through no fault of the receiving Party;
9.3.2 The receiving Party can prove, was known to it, without restriction, at the time of disclosure;
9.3.3 Is disclosed by the receiving Party with the prior written approval of the disclosing Party;
9.3.4 The receiving Party can prove was independently known by the receiving Party without any use of the disclosing Party's Confidential Information and by employees or other agents of the receiving Party who have not had access to any of the disclosing Party's Confidential Information; or
9.3.5 Becomes known to the receiving Party, without restriction, from a source other than the disclosing Party without breach of this Agreement by the receiving Party and otherwise not in violation of the disclosing Party's rights.
9.4 The obligation of the Parties set forth in Section 9.1 hereinabove shall survive the termination of this Agreement.
9.5 Both Parties agree that the terms and conditions of this Agreement shall be treated as Confidential Information and that no reference to the terms and conditions of this Agreement can be made in any form without the prior written consent of the other Party; provided, however, that the general existence of this Agreement shall not be treated as Confidential Information and that either Party may disclose the terms and conditions of this Agreement:
9.5.1 As required by any court or other governmental body;
9.5.2 As otherwise required by law;
9.5.3 To legal counsel of the Parties;
9.5.4 In confidence, to accountants, banks, proposed investors or alliance partners, and financing sources and their advisors;
9.5.5 In confidence, in connection with the enforcement of this Agreement or rights under this Agreement; or
9.5.6 In confidence, in connection with a merger or acquisition or proposed merger or acquisition, or the like.
9.6 The Parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure or use of any confidential information / materials and that the Parties shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper.
9.7 For the purposes of this Clause, the words "any such information was in public domain" shall refer to that part of Confidential Information, which is openly and lawfully available to the public at large.
10. INTELLECTUAL PROPERTY, TRADEMARKS AND PUBLICITY
10.1 YOU acknowledge and agree that the Products, and all copies thereof, constitute valuable trade secrets of Company and/or proprietary and confidential information of Company and title thereto remains in Company. Ownership of all applicable copyrights, trade secrets, patents and other intellectual property rights in the Products are and shall remain vested in Company. All other aspects of the Products, including without limitation, programs, methods of processing, design and structure of individual programs and their interaction and programming techniques employed therein shall remain the sole and exclusive property of Company and shall not be sold, revealed, disclosed or otherwise communicated, directly or indirectly, by YOU to any person, company or institution whatsoever other than as expressly set forth herein.
10.2 In discharging the Scope of Work under the Agreement, Company may utilize Application Tool(s) developed by it consisting of proprietary information and know-how, belonging either to Company or its Service Providers, all of which are and shall remain the exclusive property of Company and / or respective Service Providers and YOU shall have no right, title or interest therein, except as expressly set forth in this Agreement. From time to time components of Company Application Tool(s) may be installed at YOUR selected offices / locations /devices and/or YOU may be given the rights/access to use such Company's Application Tool(s), as may be mutually agreed to between YOU and Company, and wherever the same be installed or used, YOU shall have no right, title or interest therein and YOU shall use the said Application Tool(s) exclusively in respect of discharge of the Scope of work under this Agreement.
10.3 Each Party acknowledges that any trademarks used or adopted by a Party in the conduct of its business is the sole property of the respective owners.
10.4 Except as expressly set out in this Agreement no assignment of or license under any Intellectual Property Right or Trade Mark or Service Mark, whether registered or not, owned or controlled by a Party is granted to the other by this Agreement.
10.5 No Party may, under any circumstances, seek to register any trademark, business name, business processes, inventions, company name, domain name using or incorporating the Intellectual Property of the other Party.
10.6 Each Party acknowledges that upon termination of this Agreement, it shall have no right whatsoever in connection with the Intellectual Property of the other Party.
10.7 Each Party shall have the right, during the term of this Agreement, to include the other Party's trademarks or logos in its advertising or promotional literature, free of charge, provided that the Party owning a trademark shall have an opportunity to review and approve any use of its trademarks prior to their distribution or release.
10.8 Company shall ensure that there is no unauthorized, improper, incorrect or false use, either by it or its employees or its representatives, of YOUR name, trademark, logo or service brand.
10.9 YOU shall ensure that there is no unauthorized, improper, incorrect or false use, either by YOU or YOUR employees or YOUR representatives, of the Company /Service Providers name, trademark, logo or service brand. Any use of the Company and/or any of the Service Providers name/ trademark/ logo/ service brand by YOU, shall take place only with the prior written agreement of these companies.
10.10 Both Parties shall ensure that no publicity, relating to this Agreement or any of its terms, shall take place without the prior consent of the other Party.
10.11 Upon signing of this Agreement, the Parties hereto have the right solely or collectively to announce the co-operative arrangement as described herein. Both Parties must approve communications related to all announcements in writing. Fees, charges and/or commission/discounts must remain confidential and cannot be disclosed by either Party without written consent of the other Party.
10.12 YOU provide to Company the limited permission to visibly display, acknowledge, advertise and communicate the provision of the facilities by Company to YOU, limited to, in its communication with the Service Providers, in its presentations, brochures and usage promotion material used by it, and financing partners of Company.
10.13 Specific Remedies
If YOU commit a breach of any of the provisions of Sections 9 or 10 above, Company shall have, in addition to all other rights in law and equity, (a) the right to have such provision specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach will cause irreparable injury to Company and that money damages will not provide an adequate remedy, and (b) the right to require YOU to account for and pay to Company all compensation, profits, monies or other tangible benefits (collectively "Benefits") derived or received as the result of any transactions constituting a breach of any of the provisions of Section 9 or 10, and YOU hereby agree to account for and pay such benefits.
11. LIMITATION OF LIABILITY
IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY LOSS OF PROFIT OR ANY OTHER COMMERCIAL DAMAGE, INCLUDING BUT NOT LIMITED TO SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES UNDER ANY CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CLAIMS ARISING FROM MALFUNCTION OR DEFECTS IN THE PRODUCTS/SERVICES/FACILITIES, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), UNDER STATUTE, IN EQUITY, AT LAW, OR OTHERWISE, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE EXCEPT PROVIDED UNDER THIS AGREEMENT. COMPANY'S MAXIMUM LIABILITY HEREUNDER IS EXPRESSLY LIMITED TO THE AMOUNT PAID BY YOU AS SUBSCRIPTION.
12. TERM AND TERMINATION
This Agreement shall have an initial term of 1 years from the Effective Date (the "Initial Term"), and shall thereafter automatically renew for successive 1 year(s) period (each a "Renewal Term") on payment of Subscription Fee as provided in Schedule F, unless earlier terminated in accordance with the terms of this Agreement. Either party may cancel this Agreement effective on the last day of the Initial Term, or any Renewal Term, by serving notice of such termination on the other party at least 7 days prior to the effective date thereof.
12.2 Company Termination
This Agreement may be terminated immediately by Company under any of the following conditions:
a. If one of the parties shall be declared insolvent or bankrupt;
b. If a petition is filed in any court to declare one of the parties bankrupt or any similar statute and such petition is not dismissed in 30 days or a Receiver or similar entity is appointed for one of the parties;
c. If YOU do not pay Company within 7 days from the date that any payments are due hereunder;
d. If YOU breach the provisions of Sections 9 or 10 of this Agreement; or
e. If YOU otherwise materially breach the terms of this Agreement, and such breach is not cured within 7 days after written notice of such breach is given by Company.
f. If YOU suppress or misrepresent any fact/information while applying/registering/subscribing as a Channel Partner.
12.3 Duties upon Termination
12.3.1 Provided termination is not a result of a material breach of Sections 9 or 10, the parties agree to continue their cooperation in order to effect an orderly termination of their relationship. YOU may provide maintenance to End-Users to which YOU have granted licenses pursuant to an End User License Agreement prior to termination.
12.3.2 Upon termination, YOU shall have no right to order or receive any additional copies of the Products and all of YOUR rights and licenses granted hereunder shall immediately cease.
12.3.3 Within 15 days of termination, YOU shall return all copies of any promotional materials, marketing literature, written information and reports pertaining to the Products that have been supplied by Company.
13.1 Company shall indemnify, defend and hold YOU harmless from any claims, demands, liabilities or expenses, including reasonable attorneys' fees, directly resulting from any infringement or violation of any copyright with respect to the Products, as so awarded against YOU by a court of competent jurisdiction, and provided YOU are not in breach of this Agreement. Following a decision by a court of competent jurisdiction that the Products infringe any other party's copyright, Company shall, in its sole discretion:
a. Procure for YOU the right to continue to use, market, distribute and sell the Products at no additional expense to YOU;
b. Provide YOU with a non-infringing version of the Products with substantially similar functionality;
c. Notify YOU that the Products are being withdrawn from the market and/or immediately terminate this Agreement.
Should any proceedings be undertaken which may give rise to Company's liability under this Agreement, YOU shall provide Company with prompt notice and an opportunity to participate in any such proceedings to represent its interest appropriately.
Notwithstanding anything contained in this Agreement, Company shall not be liable in any event for any damages in excess of the amount paid as Subscription Fee.
13.2 YOU shall indemnify, defend and hold Company harmless from any claims, demands, liabilities or expenses, including reasonable attorneys' fees, incurred by Company as a result of any claim or proceeding against Company arising out of or based upon (i) the combination, operation or use of the Products with any hardware, products, programs or data not supplied or approved in writing by Company, if such infringement would have been avoided but for such combination, operation or use or (ii) the modification of the Products by YOU
Should any proceedings be undertaken which may give rise to YOUR liability under this Agreement, Company shall provide YOU with prompt notice and an opportunity to participate in any such proceedings to represent its interest appropriately.
14. ORDER PROCEDURE
14.1 Order Procedure for Products
a. Each order for Products issued by YOU shall be catered to by the Company under this Agreement. YOU can release Purchase Order either in writing/printed form (Manual Order) or electronically ("Electronic Order").
b. Purchase Order shall identify that it is an order and shall further set forth the delivery date or dates and the description and quantity of Products which are to be delivered on each of such dates.
c. Each order for Products submitted by YOU to Company shall be subject to the written/electronic acceptance of Company, and Company may, in its own discretion, accept or reject any order for Products without obligation or liability to YOU any reason of its rejection of any such request.
d. The individual contracts for the sale of Products formed by YOU, submission of orders to Company pursuant to the terms and conditions hereof shall automatically incorporate, to the extent applicable the terms and conditions hereof, shall be subject only to those terms and conditions (together with all terms in orders which are contemplated by this Agreement) and shall not be subject to any conflicting or additional terms included in any documents exchanged in connection therewith.
14.2 Order Procedure for Facilities
Order Procedure for facilities shall be subject to Schedule H.
14.3 Cancellation of Orders
Cancellation of Orders by YOU shall be allowed only before Delivery of the Product and subject to acceptance of the cancellation request by the Company. All requests towards cancellation of orders by YOU shall be in writing, or if not initially in writing, shall be confirmed in writing. If YOU cancel an order, which has been accepted by Company, YOU shall reimburse Company for any cost incident to such order incurred by Company prior to the time it was informed of the cancellation.
15. SALE OF PRODUCTS/FACILITIES BY YOU
YOU agree to exercise YOUR best efforts to develop the largest possible market for the Products in the Territory and shall continuously offer, advertise, demonstrate and otherwise promote the sale of Products in the Territory.
a. The parties have consulted together and now agree that if YOUR best efforts are used as provided in this Section, a minimum of Rs. 12,000 Products/Facilities ("Annual Market Potential") will be purchased by YOU during the first year of this Agreement.
b. At the beginning of each subsequent year hereunder the parties will consult together in good faith and agree on the Annual Market Potential applicable to that year; provided, however, that if they cannot agree, the Annual Market Potential for the immediately Preceding year will apply to the current year.
16. COMPETING PRODUCTS
YOU agree that YOU will not distribute or represent any Products/Facilities in the Territory which compete with the Products during the term of this Agreement or any extensions thereof. YOU shall not distribute or represent any competing product for a period of 1 year after the termination or expiry of this agreement.
17. PROHIBITED PRACTICES
YOU may not make any contracts or commitments on behalf of Company nor make any warranties or other representations regarding the Products/Facilities other than those authorized herein or by Company in a separate writing.
18. FORCE MAJEURE
Neither party shall be liable or deemed to be in default for any delay or failure in performance under this Agreement or interruption of service resulting directly or indirectly from acts of God, or any causes beyond the reasonable control of such party which includes industrial unrest. The failure to provide any Service or its Part on the part of any Service Provider shall be considered as force majeure and Company shall not be held liable for any purpose whatsoever.
19. DISPUTE RESOLUTION
If any dispute or difference shall arise between the Parties to this Agreement as to the meaning or application of this Agreement, the rights or liabilities of the Parties to this Agreement or otherwise in relation to the Agreement, then (without prejudice to any other express or implied rights or powers) the dispute or difference ("the Dispute") in this Clause shall be determined as follows:
19.1 A Party shall not commence court proceedings (except proceedings seeking interlocutory relief) relating to a Dispute arising under this Agreement unless it has complied with this Clause.
19.2 A Party claiming that a Dispute has arisen under this Agreement shall give the other Party written notice of the particulars of the Dispute.
19.3 In the event of a dispute, difference or claim between the Parties hereto, arising out of this Agreement or in any way relating hereto, or any term, condition or provision herein mentioned or the construction or interpretation thereof or otherwise in relation hereto, the Parties shall first endeavor to settle such difference, dispute, claim or question by mutual discussion, failing which the same shall be referred to arbitration in accordance with the Arbitration & Conciliation Act, 1996, or any statutory modification or re-enactment thereof for the time being in force. Each Party may nominate an arbitrator and the two appointed arbitrators shall nominate a third arbitrator. The panel of three arbitrators may conduct the arbitration proceedings. The place of arbitration shall be Ludhiana and any award whether interim or final, shall be made, and shall be deemed for all purposes between the Parties to be made, in Ludhiana. The arbitral procedure shall be conducted in English language and any award or awards shall be rendered in English. The procedural law of the arbitration shall be Indian law. The award of the arbitrator shall be final and conclusive and binding upon the Parties. The cost of individual arbitrator appointed by the concerned party shall be borne by the same party and the cost of third arbitrator who is in turn appointed by both the arbitrators shall be borne by both the parties in equal share.
20. GOVERNING LAW AND JURISDICTION
The validity, construction and enforceability of this Agreement shall be governed in all respects by the Laws of India. The Parties hereto agree that in respect of any dispute arising upon, over or in respect of any of the terms of this Agreement, only the Courts in Ludhiana shall have jurisdiction to try and adjudicate such dispute to the exclusion of all other Courts.
Notices, writings and other communications under this Agreement may be delivered by hand, by registered mail, by overnight courier service, or facsimile to the address and number specified below in case of the Company and to YOUR registered address or to such other addresses and numbers as may be specified in writing to the Parties in the manner provided in this Clause:
In the case of Company to:
PRAGYAWARE INFORMATICS PRIVATE LTD
4th Floor Golden Plaza, Mall Road, Ludhiana (Punjab)- 141001
Attention: Mr. Hitesh Nayyar (CEO)
The Company may provide notices to YOU via YOUR email address or YOUR Mobile Phone Number Registered with the Company which you provided while purchasing or installing the Products of the Company or thereafter.
The Company may provide YOU notice via
i) Hand Delivery or Registered Mail or Overnight Courier
ii) Email, if YOU have provided the Company with a valid email address, or
iii) SMS or similar services, on YOUR Registered Mobile Phone Number or
iv) Website by posting the notice on Pragyaware's website www.pragyaware.com or Bhugtaan's website i.e. www.bhugtaan.com.
Notice will be deemed given:
a. In the case of Hand Delivery or Registered Mail or Overnight Courier, upon written acknowledgement of receipt by an employee/agent/representative of the receiving Party;
b. In the case of facsimile, upon completion of transmission as long as the sender's facsimile machine creates and the sender retains a transmission report showing successful transmission. Provided that in case of the date of receipt not being a business day, notice shall be deemed to have been received on the next business day. Provided further that in case of a notice being forwarded by facsimile, a copy of the notice shall also be forwarded by Hand Delivery, Registered Mail or Overnight Courier services.
c. In the case of Company posting the notice on Website, www.bhugtaan.com, after publication of such notice on the website.
d. In the case of notice sent by the Company through Email/SMS to YOU, on successful transmission of the same and acknowledgement by Company's Service Provider for such Service.
Either Party may change the address for notice by giving notice to the other Party as provided herein.
Nothing in the aforesaid Clauses shall affect any communication given by way of the Internet or other electronic medium as otherwise provided in this Agreement for the purpose of discharge of Scope of work contemplated herein.
21.2 Binding Effect
This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective legal successors. The Parties do not intend the benefits of this Agreement to inure to any other party, and nothing contained herein shall be construed as creating any right, claim or cause of action in favor of any such other party against either of the Parties hereto.
21.3 Variations of Agreement
YOU understand that the Scope of work provided by Company is contingent upon the facilities and business rules of various Service Provider Companies and such other entities. In the event of any change in the terms and conditions or business rules of any of such parties that impacts the ability of Company to provide the Scope of work herein covered under this Agreement, Company reserves the right at all times to vary or amend these terms and conditions or to introduce new terms and conditions.
Any such variations or amendment or introduction will become effective and binding on YOU upon notification to YOU and if YOU are unwilling to accept such variation or amendment or introduction, YOU shall notify Company within 7 days from the receipt of such notification. The Parties shall accordingly review the variation/ amendment and if no satisfactory resolution can be reached to enable continued discharge of the Scope of work, either Party may terminate the relevant portion of the Scope of work. Such termination would not, however, affect accrued rights and obligations or the portion of the Scope of work, which are not impacted by/ not the subject matter of such variation.
Each Party will act in good faith in the performance of its respective responsibilities under this Agreement and will not unreasonably delay, condition or withhold the giving of any consent, decision or approval that is either requested or reasonably required by the other Party in order to perform its responsibilities under this Agreement or to give effect to the intended purpose of this Agreement.
Company may assign its rights and obligations hereunder to: (i) its Parent Corporation or an Affiliate (as defined below); and (ii) a legal entity in connection with a merger, takeover or the transfer of all or substantially all of the business and assets of the Company to such entity. For purposes of this Agreement, a "Parent Corporation" shall mean a company or entity owning over 50% of a Party.
21.6 Relationship- Independent Parties and Principal to Principal
This Agreement is not intended by the Parties to constitute or create a joint venture, pooling arrangement, partnership, agency or formal business organization of any kind. The Scope of work is discharged strictly as an "Independent Party", on a non-exclusive basis. The Parties shall be independent contractors with each other for all purposes at all times, and neither Party shall act as or hold itself out as an agent for the other, nor shall either Party create or attempt to create liabilities for the other Party. Further, each Party shall be solely responsible for acts and activities of its employees /personnel /agents (including disciplinary action therefore) while they are engaged by it in the course of / relating to offering the Products/Facilities. Both the parties shall be themselves vicariously liable for any act committed by its employees, agents in contravention to this Agreement.
21.7 Promotional Messages
YOU hereby authorize the Company or its Distributors or its agents to send promotional messages, on your Mobile Phone Number or email address, including the information about the Products/ Services/ Facilities of the Company, greetings or any other messages the Company may consider appropriate from time to time.
21.8 Entire Agreement
This Agreement, including the Schedules attached hereto, constitutes the entire agreement between the Parties, and supersedes all other prior or contemporaneous communications between the Parties (whether written or oral) relating to the subject matter hereof. It does not, however, revoke or rescind any prior agreements for other commercial arrangements that may have been executed by the Parties. This Agreement may be modified, changed or amended only by an express written agreement signed by a duly authorized representative of each Party stating that it is an amendment.
This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute the same Agreement.
If any provision of this Agreement is invalid or unenforceable or prohibited by law, this Agreement shall be considered divisible as to such provision and such provision shall be inoperative but the remaining portion of this Agreement shall be valid and binding and of like effect as though such provision was not included herein. Further, to the extent feasible, the Parties shall substitute such invalid or unenforceable provision with an enforceable provision that, to the maximum extent possible in accordance with applicable law, preserves the original intentions and economic positions of the Parties or comes closest to the intention and economic positions of the Parties underlying the invalid or unenforceable provision.
21.11 Rights and Remedies; Waiver
All remedies of either Party under this Agreement whether provided herein or conferred by statute, civil law, common law, custom or trade usages, are cumulative and not alternative and may be enforced successively or concurrently. If any legal action is brought to enforce any obligations hereunder, the prevailing Party shall be entitled to receive its attorney's fees, court costs and other collection expenses, in addition to any other relief it may receive.
Each Party agrees that any delay or omission on the part of the other Party to exercise any right, power or remedy under this Agreement will not automatically operate as a waiver of such right, power or remedy or any other right, power or remedy and no waiver will be effective unless it is in writing and signed by the waiving Party. Further the waiver or the single or partial exercise of any right, power or remedy by either Party hereunder on one occasion will not be construed as a continuing waiver of any successive or other right, power or remedy on any other occasion.
Each Party shall bear its own costs in connection with its obligations under this Agreement, including cost of connectivity, technical fees, additional software and hardware required for the discharge of Scope of work to be enabled. Further, all charges and expenses including stamp duty or otherwise of and in relation to these presents shall be borne and paid by respective Parties. Each Party shall bear and pay their own Advocates' Fees.
In this Agreement, unless otherwise stated:
a. A reference to a clause or to a schedule is to a clause in, or a schedule to, this Agreement;
b. Words in the singular shall include the plural and vice versa. Further, the use of words in the singular or plural, or with a particular gender, shall not limit the scope or exclude the application of any provision of this Agreement to any person or persons or circumstances except as the context otherwise permits;
c. The headings in this Agreement are for convenience of reference only and are not intended to have any legal effect nor purport to be complete or accurate descriptions of content thereof and shall not be used to interpret the provisions of this Agreement;
d. Words denoting persons shall include body corporate, unincorporated associations and partnerships.
e. Any reference to ‘days' or ‘working days' means ‘business days', i.e. any day other than: (i) Saturday and Sunday, (ii) a day on which the banks in Ludhiana and/or RBI are closed for business/clearing, or (iii) a day on which normal business could not be transacted due to storms, floods, bands, strikes etc.
f. The terms "hereof", "herein", "hereto", "hereunder" or similar expressions used in this Agreement mean and refer to this Agreement and not to any particular clause of this Agreement.
g. The Schedules annexed to this Agreement, form an integral part of this Agreement and will be in full force and effect as though they were expressly set out in the body of this Agreement.
h. Reference to any legislation or law or to any provision thereof shall include references to any such law as it may, after the date hereof, from time to time, be amended, supplemented or re-enacted, and any reference to a statutory provision shall include any subordinate legislation made from time to time under that provision.
i. References to the word "include" or "including" shall be construed without limitation.
Products and Services covered under this agreement are given below:
Table 1: Products
A. Bhugtaan Bronze Subscription Package
B. Bhugtaan Silver Subscription Package
C. Bhugtaan Gold Subscription Package
D. Bhugtaan Platinum Subscription Package
E. Bhugtaan Special Subscription Package
The Territory is limited to India.
END USER LICENSE AGREEMENT
This is a legally binding agreement between you (either an individual or a company, corporation, Limited Liability Company, trust, or other legal entity), referred to herein as "You" and Pragyaware Informatics Private Limited, and referred to herein as "Pragyaware". This product/service entitled "Bhugtaan" and all documents and materials included in it are referred to herein as the "Product/Service" or the "Documents". By selecting the box "I AGREE" while installing, or opening or using all or any portion of this Product/Service indicates Your acceptance of all the terms and conditions of this End-User License Agreement referred to herein as "EULA" and that this agreement is equivalent to a written agreement signed by You. This agreement is enforceable against You and any legal entity that obtained the Product/Service and on whose behalf it is used. This agreement terms also apply to all the updates, supplements, Internet-based services and support services for this Product/Service. If You do not agree to the terms of this agreement, please do not use this Product/Service.
IT IS ILLEGAL AND STRICTLY PROHIBITED TO DISTRIBUTE, PUBLISH, OFFER FOR SALE, LICENSE OR SUBLICENSE, GIVE OR DISCLOSE TO ANY OTHER PARTY, THIS PRODUCT/SERVICE OR THE DOCUMENTS IN HARD COPY, DIGITAL FORM OR ANY OTHER MEDIUM WHETHER EXISTING OR NOT YET EXISTING, EXCEPT AS SPECIFICALLY PERMITTED BELOW.
The use of this Product/Service is governed by the terms and conditions set forth herein. Please read them carefully. This EULA is applicable to all of the Documents accompanying this Product/Service and to the Product/Service in its whole part. You are deemed to have read, understood and accepted the terms of this EULA when You install or use the Product/Service.
Unless otherwise specifically provided in this agreement, for the purposes of this agreement, the following words shall have the meaning as defined hereunder:
i) "Agreement" means this EULA (End User License Agreement).
ii) "License" means permission to use that software of Pragyaware which is under this Agreement.
iii) "Proprietary Rights" means every right of ownership which includes right to bundle, revamp & recreate.
iv) "Third Party Agreement" means agreement entered into by Pragyaware with any Third Party who is not a party to this agreement.
v) "Separate License" means another license for the same product.
2. LIMITED LICENSE
i) You are granted a limited, non-exclusive license to install or use the Product/Service on 1 (One) individual computer(s)/mobile hardware device(s) (referred to as "licensed device" in this agreement) for Your own use provided that such device does not render the Product/Service accessible to other users through local or Internet networks or other methods. However, for Your own use, You can access and use the Product/Service installed or used on such licensed device using remote access technologies. Only a single user, either locally or using remote access technologies, can access or use the Product/Service on a licensed device.
ii) Use by any other Person, Company, Affiliate, Corporation, Limited Liability Company, Trust, or other separate legal entity will require a separate license. This includes companies that may be affiliated to You by ownership or otherwise.
iii) The license granted herein shall terminate upon Your use of the Product/Service beyond the scope licensed herein or upon Your violation of any term or condition hereof. All protections, with which Pragyaware is provided under this EULA, shall survive the termination of Your license.
iv) Hardware or Software You use to pool connections or reduce the number of devices or users that directly access or use the Product/Service (sometimes referred to as "multiplexing" or "pooling"), does not reduce the number of licenses You need.
v) Certain features or content of the Product/Service may require the purchase of a new or additional license/license key. You agree not to attempt to, and not to, control, disable, modify or remove any component of the Product/Service license/license key protection system. You also agree not to access, attempt to access, copy, share or distribute the license/license key for any purpose.
3. PROPRIETARY RIGHTS
Pragyaware retains all title, ownership, and intellectual property rights in the Product/Service, including but not limited to all supporting documentation, files, hardware devices, marketing material, images, multimedia and applets. Pragyaware shall remain the sole ownership with regard every proprietary right attached with the software under this agreement. The Product/Service may include security measures designed to control access and prevent unauthorized copying and use. You agree not to interfere with any such security components. Pragyaware permits You to download, install, use, or otherwise benefit from the functionality or intellectual property of the Product/Service only in accordance with the terms of this EULA. The Third Party Agreement if any shall be binding on the End User in the same way as it is binding on Pragyaware. This will also be applicable with regard to the future Third Party Agreements also.
You agree that You shall not disclose to any third party any information concerning the customers, trade secrets, methods, processes or procedures or any other confidential, financial or business information of Pragyaware which You learn during the course of the performance of this EULA, without the prior written consent of such disclosure from Pragyaware. This obligation shall survive the cancellation or other termination of this EULA. The Product/Service contains trade secrets and proprietary know-how that belong to Pragyaware and it is being made available to You in strict confidence. ANY USE OR DISCLOSURE OF THE PRODUCT/SERVICE OR OF ITS ALGORITHMS, SCHEMATICS, PROTOCOLS OR INTERFACES, OTHER THAN IN STRICT ACCORDANCE WITH THIS EULA, MAY BE CONSIDERED AS A VIOLATION OF THIS EULA AND PRAGYAWARE TRADE SECRET RIGHTS, AND PRAGYAWARE SHALL HAVE THE RIGHT TO OBTAIN EQUITABLE REMEDIES, INCLUDING BUT NOT LIMITED TO RECOVERY OF DAMAGES, OBTAINING INJUNCTIONS, RECOVERING STATUTORY DAMAGES, RECOVERING ATTORNEY FEES, AND ANY OTHER AVAILABLE LEGAL REMEDY.
5. NON-TRANSFER OF RIGHTS
You are not allowed to rent, lease, sell, sublicense, assign or transfer Your rights in the Product/Service, or authorize any portion of the Product/Service to be copied or transferred onto another individual or legal entity's computer/hardware device except as permitted by Pragyaware.
6. BACKUP AND TRANSFER
Upon fulfilling Your obligations towards properly purchasing, installing and/or registering the Product/Service or obtaining a valid license/license key, You are permitted to do the following:
i) You may move the Product/Service to a different provided that after the transfer, You must completely remove the Product/Service from the former computer/hardware device.
ii) You may make one copy of the original media on which You obtained the Documents or software related to the Product/Service solely for backup or archival purposes. You may not otherwise make copies of this media. You shall not distribute the same to any third party without Pragyaware's prior written consent.
Only distribution of the full and complete unaltered Bhugtaan Product/Service is allowed provided that Pragyaware has given You prior written authorization (through Your participation in any of Pragyaware's partner programs) and that all trademarks, ownership and copyrights remain vested with Pragyaware.
This agreement only gives You some rights to use the features included in the Product/Service You have purchased/subscribed. Pragyaware reserves all other rights. Unless applicable law gives You more rights despite this limitation, You may use the Product/Service only as expressly permitted in this EULA. In doing so, You must comply with any technical limitations in the Product/Service that only allow You to use it in certain ways. You may not:
i) modify or create any derivative works of the Product/Service or documentation, including customization, any modifications or enhancements, translation or localization without Pragyaware's express written consent;
ii) reverse engineer, decompile, disassemble, make or otherwise attempt to derive the source code/schematics/technical details of the Product/Service, or the underlying ideas or algorithms of the Product/Service;
iii) use components of the Product/Service to run applications not running on the Product/Service;
iv) attempt to gain unauthorized access to Documents, Pragyaware's servers or any other service, account, computer system or network associated with the Product/Service or with Pragyaware, it's affiliates, agents, partners and customers;
v) remove or alter any trademark, logo, copyright or other proprietary notices or symbols in the Product/Service;
vi) block, disable, or otherwise affect any advertising, banner window, tab, link to websites and services, or other features that are part of the Product/Service;
vii) incorporate, integrate or otherwise include the Product/Service or any portion thereof into any software, program or product;
viii) provide false information when registering or purchasing the Product/Service ;
ix) digitally or by any other mean transmit or make available the Product/Service or its content through local networks, intranets, extra nets, FTP, online discussion boards, forums, list-serve, peer-to-peer networks or technologies, newsgroups, bulletin boards, or any other mode of shared communication system, or place or attach the Product/Service onto a server so that it is accessible via a public network such as the Internet;
x) use the Product/Service to try to gain unauthorized access to any service, data, account or network by any means.
xi) use the Product/Service in any way that violates this EULA or any law; or
xii) authorize or assist any third party to do any of the things described in this section.
This EULA does not prevent You from using the Product/Service for internal benchmarking purposes. However, You shall treat any and all benchmarking data relating to the Product/Service, and any other results of Your use or testing of the Product/Service which are indicative of its performance, efficacy, reliability or quality, as confidential information and You shall not disclose such information to any third party without the express written consent of Pragyaware.
You shall not refer to the existence of this EULA in any press release, website, advertising or any publicly distributed or accessible material, without the prior written consent of Pragyaware.
10. ADDITIONAL FEATURES & CONTENT
Certain portions of the Product/Service may be locked or unavailable in Your version. In order to upgrade the Product/Service or use additional content and features You must:
i) provide valid information for purchase or registration, and
ii) pay a fee to obtain a valid license/license key. All license key holders are subject to the terms and conditions of this EULA.
11. SOFTWARE/FIRMWARE UPDATES
The Product/Service may be already configured by Pragyaware to automatically check for updates for its software/firmware through Internet-based or similar services. By using the Product/Service, You consent to receiving software/firmware updates, modifications, and/or patches that address issues such as security, interoperability, and performance. Your use of the updates shall be governed by this EULA unless You are asked to agree to a new EULA at the time of download or installation. Even if it is not asked, the terms of this agreement will be applicable as such.
a) CONSENT TO USE OF DATA
You agree that Product/Service may collect and use technical data and related information, including but not limited to technical information about Your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of the Product/Service updates, support and other services to You (if any) related to the Product/Service.
b) PERSONAL INFORMATION
During the installation process or the first use of the Product/Service, or at some time thereafter, You may be asked to provide certain information that will be used to personalize certain Documents, send Your or Your Company's information via email or mail or through any other Electronic notices, and customize some information presented to You through the Product/Service. For example, You may be asked for Your state/ province/ country, which could be used by the Product/Service to provide You with locally relevant Documents and/or related products/services.
13. LIMITATION OF LIABILITY
EXCEPT AS REQUIRED BY LAW, PRAGYAWARE AND ITS EMPLOYEES, PROPRIETORS, DIRECTORS, LICENSORS, CONTRIBUTORS, DISTRIBUTORS, RESELLERS AND AGENTS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS EULA OR THE USE OF OR INABILITY TO USE THE PRODUCT/SERVICE, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, AND COMPUTER OR ANY OTHER HARDWARE/SOFTWARE FAILURE OR MALFUNCTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH SUCH CLAIM IS BASED. PRAGYAWARE'S MAXIMUM LIABILITY HEREUNDER IS EXPRESSLY LIMITED TO THE AMOUNT PAID BY YOU FOR THE PURCHASE OF THE PRODUCT/SERVICE.
You understand that by using any part or feature of the Product/Service, You may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language. Nevertheless, You agree to use the Product/Service at Your sole risk and that Pragyaware shall not have any liability to You for content that may be found to be offensive, indecent, or objectionable.
14. DISCLAIMER OF WARRANTY
YOU ACCEPT THE PRODUCT/SERVICE "AS IS" AND WITH ALL FAULTS (IF ANY). PRAGYAWARE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PRAGYAWARE MAKES NO WARRANTY OR REPRESENTATIONS WHATSOEVER REGARDING THE CONTENT OF THE PRODUCT/SERVICE AND YOUR USE OF THE PRODUCT/SERVICE, OR THE SUITABILITY OF THE PRODUCT/SERVICE TO MEET YOUR SPECIFIC NEEDS. THERE MAY BE LAWS APPLICABLE IN YOUR STATE/PROVINCE/COUNTRY THAT NEED TO BE ADDRESSED.
Pragyaware makes no warranties with respect to the Product/Service as described above and as such there should be no reason for You to bring any grievance against Pragyaware. However, if You do bring any action, claim, suit, threat or demand against Pragyaware, and You do not substantially prevail, You shall pay Pragyaware's entire attorney fees and costs attached to such action. In the same token, if Pragyaware is forced to take legal action to enforce this EULA or any of its rights described herein or under any law, You will pay Pragyaware's attorney fees and costs.
15. VIOLATION OF THIS EULA
Pragyaware reserves all rights not specifically granted to You above. Pragyaware will have the right to proceed against You in the event that You infringe against Pragyaware's rights. Any use of the Product/Service not within the precise scope of the EULA set forth herein will be considered an infringement. You acknowledge and agree that Pragyaware's damages in the event of Your violation of this EULA will be substantial and that Pragyaware will suffer irreparable harm in such event. As such, Pragyaware shall have the right to obtain equitable remedies, including but not limited to recovery of damages, obtaining injunctions, recovering statutory damages, recovering attorney fees, and any other available legal remedy.
16. TERM AND TERMINATION
Pragyaware shall have the sole and exclusive right to immediately terminate this EULA and suspend Your license/license key to use the Product/Service should You fail to perform any obligation required under this EULA, engage in activity that Pragyaware deems harmful to its well-being or if You become bankrupt or insolvent. This EULA takes effect upon Your purchase/first use of the Product/Service and remains effective until terminated. Upon termination of this EULA by Pragyaware, You shall remove/uninstall -the original and all copies of the Product/Service including partial copies and modifications from Your Computer(s), Hardware Device(s) or any other media. The liabilities which have already accrued as per this agreement shall remain as such even after the termination and End User can be held liable for the same.
17. WAIVER & SEVERABILITY
Pragyaware's waiver of any breach of this EULA shall not constitute an amendment to this EULA or Pragyaware's waiver of subsequent breaches. If any part of this EULA is found void and unenforceable, it will not affect the validity of the balance of this EULA, which will remain valid and enforceable according to its terms.
18. ELECTRONIC NOTICES
You consent that Pragyaware may provide You with information and notices, regarding the Product/Service and Pragyaware, via the email address or mobile number You designate when purchasing or installing the Product/Service or thereafter. Pragyaware may provide notices to You via
v) email if You have provided Pragyaware with a valid email address, or
vi) through the Product/Service user interface, or
vii) your registered Mobile Number through SMS or similar services, or
viii) by posting the notice on Pragyaware's website or the Product/Service related website which Pragyaware owns or operates.
Pragyaware reserves the right to unilaterally amend all offers, pricing terms or other matters pertaining to the Product/Service, Pragyaware's or Bhugtaan's website or this EULA. No course of dealing or trade usage shall be deemed to amend the terms of this EULA.
20. GOVERNING LAW
The Parties of this agreement in case of any dispute shall resolve the same through arbitration. The sole arbitrator shall be appointed by Pragyaware on the asking of any party to this agreement whose decision shall be final & binding. The expenses of the arbitration shall be borne by the party insisting on arbitration.
All disputes are subject to Ludhiana (Punjab) Jurisdiction only.
21. COMPLETE AGREEMENT
This is the entire EULA between Pragyaware and You relating to the Product/Service, and it supersedes any prior representations, discussions, undertakings, warranties, communications or advertising relating to the Product/Service.
Trademarks, Copyrights, Designs, Patents and any other Intellectual Property, whether registered or not, in the name of Pragyaware Informatics Private Limited, its affiliates or associate companies, not limited to those given on www.bhugtaan.com or www.pragyaware.com, are valuable properties of Pragyaware Informatics Private Limited, its affiliates and associates.
1 CUSTOMER SUPPORT SERVICES
Company shall provide appropriate Customer Support Services in responding to YOUR queries on status of payments made by YOU and in the resolution of any disputes with the Service Provider Companies arising directly as a consequence of the use of the Products/Services of Company.
2 CUSTOMER COMPLAINTS
Company shall coordinate with the Service Providers for handling YOUR complaints, relating to the remittance of the payment amount to the Service Providers or updation of the payment amount with the Service Providers, once Payment Amounts and Payment Information monies in respect of the same has been received by Company, in accordance with the laid down practice and rules.
3 TECHNICAL ASSISTANCE TO YOU
As promptly as practicable after execution of the Agreement, Company shall transmit YOU information, materials, manuals and other technical documents necessary to enable YOU to perform your obligations under this Agreement. Throughout the term of this Agreement and any extension thereof, Company shall continue to give YOU such technical assistance as YOU may reasonably request.
PRICES OF COMPANY PRODUCTS
Company reserves the right, in its sole discretion, to change prices of the Products/Subscriptions listed below. Company shall give YOU a notice of any price change at least 10 days prior to the effective date thereof.
Table 2: Subscription Packages
Package Web Access IVRS Mobile Application-GPRS Mobile Application SMS Subscription Fee* + Taxes Free Balance
Bronze Yes Yes Yes Yes Rs. 0 Rs. 0
Silver Yes No No No Rs. 1250 Rs 100
Gold Yes Yes Yes No Rs. 2000 Rs 100
Platinum Yes Yes Yes Yes Rs. 2500 Rs 100
Special* Yes Yes Yes No Rs 1000 Rs 0
1. This Subscription fee is non-refundable.
2. After elapse of 1st year from the Date of Subscription of Silver/Gold/Platinum/Special Package, the Reseller shall renew his Annual Subscription by paying a Subscription Fee of Rs 250/-.
3. Bronze Package is the default Subscription Package assigned to an End-User and he can Top-Up/Refill any 5 DISTINCT Mobile Numbers/DTH/Data Card/Basic Phones of his family members/friends, any number of times.
4. Silver/Gold/Platinum Package enables YOU to Top-Up/Refill any number of Mobile Numbers/DTH/Data Card/Basic Phones any number of times.
5. Special Package enables YOU to Top-Up/Refill any number of ONLY DTH accounts any number of times.
SCOPE OF WORK AND OBLIGATIONS
1 TOP UP/REFILL
a. YOU intend to Top Up/Refill Phone/DTH accounts of the Subscribers, wherein Subscribers can make designated Payments at Company's designated Terminals.
b. The Top Up / Refill facility, involves YOU to operate /manage the Terminal at which the Subscriber can make payments including the Subscriber using his own equipment.
c. The Subscriber availing Top Up/ Refill facility managed by YOU, including in terms of offering such Top up / Refill to Subscribers at designated Terminals, collection of monies underlying the Payment Transaction and remittance of such monies shall be as per the process mutually agreed with the Company.
d. Company shall manage the backend operations of this Scope of Work, including in terms of Service Provider relationships, Service Provider interactions and Transaction settlement with Service Providers/YOU.
e. To enable the above, Company shall provide YOU access to the Central Software System integrated with the Service Provider's designated Top Up system through a Web Portal/IVRS/Mobile application to enable YOU to execute Top Up/Refill Transactions.
f. Company will offer to YOU the Products, and Facilities in respect of such Service Providers, as may be offered by the Company from time to time.
2 OBLIGATIONS OF COMPANY
In discharging the scope of work the obligations of Company would include:
Company shall provide YOU access to Company's Web Portal i.e. www.bhugtaan.com, IVRS and/or Mobile Application, as per the Subscription Package availed by YOU, to enable you to discharge the above Scope of Work.
Company shall provide Information pertaining to changes, modifications, and additions in its Products / Facilities to YOU. Company shall also provide any information as YOU may reasonably require to enable YOU to provide the Products/ Facilities to the End Users/Subscribers.
2.3 Service Provider Arrangements
In respect of Service Provider Companies (both current and future) with whom Company has suitable business arrangements that can be extended to this scope of work, Company shall provide access to those arrangements such that it will enable YOU to offer Products/ Facilities in respect of such Service Provider Companies.
2.4 Service Provider Specifications
Company shall provide such rules and data, as and when requested by YOU, which would facilitate YOU to identify payments that are payable with respect to Scope of work, in order to have accuracy in the transactions. Such data/rules will primarily consist of details about tariffs against which payment is to be collected, details about payments, their acceptance or rejection criterion, other form of control that is to be exercised in accepting a valid Payment and before issuing a Transaction Acknowledgement Receipt.
2.5 Valid Transactions
Subscribers who have opted to pay their payments through this facility, Company shall ensure that their transactions are treated as valid payments, provided however that clear funds have been received by the Company against the same, in accordance with the rules / processes laid down in this regard.
Company will reconcile YOUR Trading Balance with YOUR transactional information available with it and reconcile YOUR payment information to enable the Service Provider to credit the relevant Subscriber account. It is hereby expressly clarified that any Company role/obligation in this regard arises only after Company has received clear funds from YOU; Company shall have no liability / responsibility in respect of transactions for which it does not receive clear funds from YOU.
2.6 Maintenance Services
Company will provide YOU Maintenance Services as described in Schedule E attached hereto ("Company Support"). Company reserves the right to designate any modified or updated versions of the Product/Facilities as new Products/Facilities, which are not required to be provided under Company Support. Such new Products/Facilities will only be provided to YOU for use or distribution to End-Users/Subscribers under maintenance subject to the payment of additional Subscription/ Support fees as designated by Company. Company will use reasonable efforts to respond to YOUR inquiries regarding support in a timely manner, however, Company does not guarantee the timeliness of its responses or that it will be able to answer all of YOUR inquiries.
2.7 Except as provided herein below, Company disclaims all warranties, express or implied, written or oral, in respect of its Scope of work including but not limited to warranties of merchantability and fitness for a particular purpose. YOU acknowledge that the facilities offered may not be uninterrupted. YOU also acknowledge that the facilities offered can be brought to an abrupt halt in any event whatsoever as a result of the Service Providers/ Service Provider Companies discontinuing/ temporarily suspending their arrangements with Company for any reason whatsoever. In such an event, Company' sole obligation and YOUR sole and exclusive remedy from the resultant interruption to/ suspension of the facilities shall be to have Company use all reasonable endeavors to restore the facilities and/or access to the facilities as soon as reasonably possible.
2.8 Whilst Company shall use its best endeavors to ensure that there is no breakdown/ interruption or any technical flaw resulting in any delay in providing/ suspension of the facilities, YOU shall not hold Company responsible for any breakdown / interruption or any technical flaw and/or any consequent delay or failure in completion of facilities.
2.9 It is hereby clarified that Company is not providing to YOU any warranty or covenant on the quality or service provided by the Service Provider Companies.
2.10 Company shall not be liable for any interruption in, suspension or termination of Services or facilities as a result of any regulatory restriction imposed on it.
2.11 Company shall not be responsible for any losses sustained through any failure on the part of the Service Provider Companies to conclude a transaction, provided Company has properly routed the transaction(s) concerned to the Service Provider Companies.
2.12 YOU acknowledge and understand that the Payment Information provided by Company in the performance of its Scope of work under this Agreement is not generated by Company, but that it is merely transmitting the data as received from the Service Provider Companies. As such Company does not guarantee and shall not be deemed to have guaranteed, the timeliness, sequence, accuracy, completeness, reliability or content of the Information. Company shall not be liable for any inaccuracy, error or delay in, or omission of (a) any such data, information or message, or (b) the transmission or delivery of any such data, information or message; or any loss or damage arising from or occasioned by (i) any such inaccuracy, error, delay or omission, (ii) non-performance, or (iii) interruption in any such data, information or message, due to any "Force Majeure" event or any other cause beyond the reasonable control of Company.
3 YOUR OBLIGATIONS
In availing of the above facilities/services YOUR obligations shall include:
YOU shall inform Subscribers about the availability of Top up / Refill facilities with YOU, in order to enable Subscribers to use the said facilities. YOU shall procure promotional or advertising material as may be provided by the Company from time to time to YOU and display it at all times in YOUR Outlet in accordance with the directions and requirements of the Company.
3.2 Transaction Acknowledgement Receipt
Where a transaction has been successfully completed on the Top Up/Refill platform, and the payment leg of the transactions successfully completed, YOU shall provide the Subscriber with a Transaction Acknowledgement Receipt acknowledging the receipt of monies towards the bill payment made by the Subscriber.
3.3 Aggregated Payment Instrument
YOU shall maintain a Trading Balance with the Company of such amount as may be required based on the volume/value of the transactions expected during a specified period. Company shall debit the amounts to be remitted to the Billers against Trading Balance. YOU shall replenish the Trading Balance at regular intervals to ensure that sufficient clear funds are available to continuously avail the Products/Facilities. It shall be YOUR responsibility to ensure that adequate Trading Balance is maintained for Company to be able to effect the remittances to Service Providers on a timely basis.
In case of termination of Agreement, whatever YOUR Trading Balance funds are available with Company after reconciliation of accounts, the same shall be refunded to YOU as per the Company's Refund Policy.
3.4 Charges from Subscribers
YOU may, if YOU so desire, collect from the Subscriber, additional charges for providing such Top up /Refill facilities. In the event YOU are collecting any such charge, whether directly or indirectly, from the Subscriber, YOU will clearly indicate to the Subscriber that such charges are being levied by YOU and not by Company or the Service Providers. Provided also that, in the event of any specific Service Provider restrictions with regard to collection of charges from Subscriber, Company will inform YOU of the same and YOU shall not collect such charges from Customers. YOU alone shall be responsible for the related tax aspects on such additional charges.
3.5 Channel Partner Sales and Service
a. YOU shall, at YOUR expense, engage and maintain a sales and service organization in the Territory, staffed with such experienced personnel as are necessary to enable YOU to perform YOUR obligations under this Agreement.
b. YOU shall, at YOUR expense, maintain services and personnel in the Territory that will enable YOU promptly and satisfactorily to perform, at a reasonable price, all necessary servicing of Products sold by YOU. To assist YOU in the discharge of this service and maintenance function, Company shall provide training to YOUR personnel as described in Schedule E.
3.6 Customer Training
Channel Partner, except Influencer, shall be solely responsible for the training of the Customers.
3.7 Customer Support
Except for the explicit support obligations of Company set forth in Section 2.6 of this schedule, Channel Partner, except Influencer, shall remain solely responsible for all Installation, Maintenance and Support services to the Customer with regard to the Products.
TERMS OF PAYMENT
a. In processing the transactions / activities, Company shall be entitled to rely upon all electronic communications, orders or messages sent to Company and Company shall not be obliged to verify or make further inquiry into the identity of the sender, or the message integrity, of any communications, orders or messages. YOU shall in no circumstance dispute such reliance by Company. A minimum amount of Rs. 1000/- will be initially deposited by YOU in the "Trading Balance" account. The Trading Balance account will be created and maintained by Company. YOU will keep enough credit in the Trading Balance account so as to cater to all transactions initiated by YOU till next payment by YOU into the Trading Balance account. YOU can make the payment to update your Trading Balance account by any mode preferred by YOU and approved by the Company such as Bank Deposits in Company's account through cheque, DD, electronic transfer, etc. In any mode of payment, the credit will be given on realization of funds.
b. In the event of not having sufficient funds in YOUR Trading Balance account all the transactions initiated by YOU will get declined.
c. Company will discharge its Scope of Work based upon electronic requests from YOU from time to time. Quantum of Top-Up/ Refill available for YOU to sell/provision depends upon the credit available in the Trading Balance account. The credit available in this account time will keep reducing with every transaction by an amount which is equal to the value of the transaction. Top-up/ Refill once sold/rendered will not be refunded or reversed.
d. Company will bill YOU with the value of Top-Up / Refill after reducing the agreed discount payable in respect of transactions conducted under this Agreement and debit that amount from the Trading Balance account.
e. Top Up / Refill falling within the purview of this Agreement will be based upon standard sales conditions which will be in line with conditions that are placed upon Company by various Service providers. Company shall keep YOU informed on the current discounts available to YOU for transactions conducted, and updated on any change in these conditions.
f. In the event of any specific out of pocket expenses on YOUR request incurred by Company attributable to YOU towards travel, boarding & lodging and telecommunications to any out-station location, Company would seek reimbursement of the same from YOU. However, the expenses would be kept at minimum and prior approval from YOU should be obtained.
g. Any payments by one Party to the other would be made after deducting taxes if applicable as per prevalent statutory provisions, for which the Party making the deduction would issue the requisite certificate within the prescribed period.
h. Company reserves the right, in its sole discretion, to change prices or discounts applicable to the Products. Company shall give notice to YOU of any price change prior to the effective date thereof.
DISCOUNT/COMMISSION FOR CHANNEL PARTNER
Silver/Gold/Platinum/Special Package enables YOU to become eligible for the above Discount/Commission only. The discount structure for YOU for YOUR scope of work is listed below:
Table 3: Discount/Commission Structure for Facilities*
S.No Service Provider Your Margin Percentage
1 Reliance GSM 2.6
2 Reliance CDMA 2.7
3 Airtel 1.4
4 Idea 2.1
5 Vodafone 1.6
6 LOOP 3.2
7 Aircel 3.0
8 Tata Docomo 2.2
9 Virgin Mobile-CDMA 3.3
10 Virgin Mobile-GSM 2.1
11 MTS 4.3
12 BSNL 3.0
13 Big TV 3.0
14 Dish TV 2.4
15 Sun Direct 3.4
16 Videocon d2h 3.4
17 Airtel DTH 2.4
18 Uninor 3.6
19 Tata Sky 2.5
Table 4 : Discount/Commission Structure for Products*
Package Minimum Order Quantity Discount/ Commission
Silver 5 Rs 500
Gold 5 Rs 500
Platinum 5 Rs 250
Special 5 Rs 100
1. E Top-up shall mean pin less recharge.
2. Availability of the facilities from the different Service Providers listed in Table 3 and the corresponding margin percentages may be changed from time to time subject to market/operator conditions.
3. Discounts/Commissions on Products are applicable on orders which meet the minimum order quantity benchmark as depicted in the above Table and are also subject to change without prior notice.