SaaS AGREEMENT
TERMS & CONDITIONS:
The Provider and the Subscriber shall hereinafter be individually referred to as a “Party” and collectively as the “Parties”.
1. DEFINITIONS:
1.1. "Account"- refers to any accounts or instances created by the Subscriber and/ or on behalf of the Subscriber or hereafter acquired by Subscriber or in which Subscriber now holds or hereafter acquires any interest and, in any event, shall include, without limitation, all accounts receivable, book debts and other forms of obligations and include its Affiliates, Associates, Agents etc. within the Getchy.
1.2. "Affiliates"- in relation to a Party, an entity, individual, firm, or corporation, directly or indirectly, that directly or indirectly controls or is controlled by or is under common control with such Party. Including the power to direct, cause direction whether through the ownership of voting securities, by contract, or otherwise.
1.3. "Agents"- means an individual authorized to use the Service through Subscriber's Account as an Agent, Account Provider, and/or an administrator.
1.4. "Agreement"- refers to this Software as a Service Agreement, including all its annexes, schedules, and amendments.
1.5. "Associated Services"- refers to products, services, features and functionality designed to be used in conjunction with the Services that are not included in the subscribed services.
1.6. “Confidential Information”- shall mean any and all information disclosed to or otherwise acquired by either of the Parties to this Agreement from and/or on behalf of each other including their respective affiliates, directors, officers, consultants, sub-contractors, employees, Agents, End-Users and representatives etc. whether communicated in writing, orally, electronically, photographically, or in recorded or in any other form, including, but not limited to operating information and strategies, data, media, client list, target clients, know-how, designs, drawings, specifications, source codes, technical information, concepts, reports, methods, processes, techniques, clients, operations, devices, and the like, whether or not the foregoing information is patented, tested, reduced to practice, or subject to copyright.
1.7 "Effective Date"- the date on which this Agreement comes into effect and binds both the Parties.
1.8. "End-User"- refers to any person or entity including the Subscriber or its Agents with whom the Subscriber or its Affiliates interact using the Service.
1.9. "Provider"- refers to the company or entity that offers the Software and is a Party to this Agreement and may also be referred to as "Us", "We" or "Our".
1.10. "Service"- means the products and services that are used or ordered by the Subscriber via online or through website, whether on a trial or pre-paid basis Including applicable software, updates, documentation, and all Associated Services provided under this Agreement, and more specifically set out in Annexure-I.
1.11. "Service Data"- refers to electronic data, text, messages, communications, or other materials submitted to and stored within a service by the Subscriber, Agents, and End-Subscribers in connection with the use of the service by such Subscribers. This excludes the contact details of the Agent.
1.12. "Service Fee"- refers to the Service Fee paid by the Subscriber to the Provider for the Subscription of the SaaS Service, as specified under this Agreement.
1.13. "Subscriber"- refers to the Party who purchases/ subscribes, directly or indirectly, to the Getchy/ Service as set forth on the service order/ invoice and may also be referred to as "You" or "Your".
1.14. "Website" refers to a website operated by the Getchy: portal.getchy.in subject to change if required by us.
2. ACCOUNT TERMS:
2.1. The Service will be available to the Subscriber and its Associate(s)/ Agent(s) for use and access subject to this Agreement and the applicable order(s). Getchy will make the Service available twenty-four (24) hours a day and seven (7) days a week, except during the planned down-time with advance written notice of two (2) days to the Subscriber or the occurrence of any Force Majeure event(s)/ condition(s) in accordance with the terms and conditions of this Agreement.
2.2. The Provider reserves the right to modify/ improvise the features and functionality of the Service so provided during the term of the Subscription. In case, if there is a deprecation of any material functionality, the Subscriber shall provide an advance written notice of thirty (30) working days to the Provider to amend/ modify/ improvise and if the Provider fails to do so than the Subscriber shall reserve its right of continuing or terminating this Agreement.
2.3. Access to certain Services is restricted and only an authorized number of people with valid credentials access the Account. The Account credentials of Agent-based Accounts shall not be shared, and a single Account shall not be used by multiple people at the same time.
2.4. The Provider might provide some or all elements of the Subscription Service through third-party service providers.
2.5. If the Subscriber purchase/ subscribe any additional services or packages from the Provider than this Agreement will applicable to all additional orders, services, packages and features that the Subscriber activate within its Getchy Account subject to mutual negotiations & considerations.
3. SUBSCRIBER OBLIGATIONS:
3.1. Provide true, complete, and up-to-date contact and billing information to the Provider mandatorily upon any such update and/ or changes.
3.2. The Subscriber must keep all its credentials including username and password highly confidential.
3.3. The Subscriber shall be responsible for maintaining the safety and security of its identifying information as well as keeping the Provider apprised of any changes to its identifying information and in no way or condition shall hold the Provider responsible for loss/ breach of such information and shall not claim any compensation/ damages from the Provider for any such losses, including financial, so suffered by the Subscriber.
3.4. In case the credentials of the Subscriber are compromised/ breached, the Subscriber shall immediately notify the Provider in writing within forty-eight (48) hours of such breach.
3.5. The Subscriber shall provide all billing information to the Provider, including GST number, billing address and other payment information and all related documents (as required), which is subject to the same confidentiality and accuracy requirements as the rest of the Subscriber identifying information. Using the Getchy/ Service for any fraud or unlawful activity is grounds for immediate termination of the subscription and the account of the Subscriber and further the Provider reserves its right to initiate legal action, both civil as well as criminal, against the Subscriber.
3.6. The Subscriber shall be responsible for the compliance with the provisions of this Agreement by Agents and End-Users and for any and all activities that occur under an Account. Without foregoing, Subscriber will ensure that its use of the Service is in compliance with all applicable laws & regulations of the land and this agreement with the Agents and End-Users.
3.7. The Subscriber shall comply with all applicable data protection and privacy laws and regulations when processing and handling any personal data through Getchy/ Service.
3.8. The Subscriber agrees to cooperate with the Provider in resolving any technical issues or addressing any support requests related to Getchy/ Service.
4. PROVIDER OBLIGATIONS:
4.1 The Provider has and shall continue to have, at all times during the Term of this Agreement, all regulatory approvals/ licenses in accordance with the applicable laws and shall maintain, enforce, protect, defend the same, at its own costs and expenses.
4.2 The Provider acknowledges that the Subscriber and its business are substantially dependent on the Software and the services rendered by the Provider and thus the Provider hereby unconditionally agrees and undertakes that during the Term of this Agreement, the Provider shall not have any right to suspend, discontinue, create hindrance, cancel, refuse or freeze the performance of the Service, unless otherwise provided under this Agreement and/ or non-payment of Service Fee and charges by the Subscriber.
4.3 The Provider understands and the Subscriber hereby agrees that the title, ownership and rights of the Service Data and other material provided by the Subscriber or its Agent including any derivative works, modifications or improvements made thereto for the purpose of research & analytics vest solely with the Provider.
5. ACCEPTABLE USE:
5.1. The Subscriber agrees not to use the Getchy/ Service for any unlawful purpose or any purpose prohibited under this clause and/ or against the law of the Land. The Subscriber further agrees not to use the Getchy/ Service in any way that could damage the name of the Provider and/ or Getchy/ Service so provide and any breach to this shall give rise for legal action, both civil as well as criminal, against the Subscriber by the Provider and the Provider shall be at liberty to terminate the Agreement.
5.2. The Subscriber further agrees to the following while in use of Getchy/ Service by the Provider:
5.2.1. The Subscriber shall not engage in any such activity that could result in excessive bandwidth usage, degradation of performance, or disruption of the Getchy/ Service and the data so uploaded/ updated/ processed shall not be stored in Getchy for more than ninety (90) days from the date of such uploading/ updating/ processing by the Subscriber.
5.2.2. The Subscriber agrees & undertakes to always use the Getchy/ Service for competitive benchmarking or for developing a competing product or service.
5.2.3. The Subscriber agrees & undertakes not to use the Getchy/ Service to harass, abuse, or threaten/ pressurize/ intimidate others or otherwise violate any person's legal rights;
5.2.4. The Subscriber agrees & undertakes not to use the Getchy/ Service to violate any intellectual property rights of the Provider or any third party;
5.2.5. The Subscriber agrees & undertakes not to use the Getchy/ Service to upload or otherwise disseminate any computer viruses or other software that may damage the property of another;
5.2.6. The Subscriber agrees & undertakes not to use the Getchy/ Service to perpetrate/ carry out any fraud/ cheating etc;
5.2.7. The Subscriber agrees & undertakes not to use the Getchy/ Service to promote/ engage in or create any unlawful gambling, sweepstakes, or pyramid scheme etc.;
5.2.8. The Subscriber agrees & undertakes not to use the Getchy/ Service to publish or distribute any obscene or defamatory material;
5.2.9. The Subscriber agrees & undertakes not to use the Getchy/ Service to publish or distribute any material that incites violence, hate or discrimination towards any group/ community, religion etc.;
5.2.10.The Subscriber agrees & undertakes not to use the Getchy/ Service to unlawfully gather information about others.
5.3. The Subscriber is prohibited from using the Getchy or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to infringe on any third party's intellectual property or proprietary rights, or rights of publicity or privacy, whether knowingly or unknowingly; (d) to violate any applicable local, federal or international law, statute, ordinance or regulation; ((e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information or any content which is defamatory, libellous, threatening, unlawful, harassing, indecent, abusive, obscene, or lewd and lascivious or pornographic, or exploits minors in any way or assists in human trafficking or content that would violate rights of publicity and/or privacy under applicable law; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Getchy, other Products, or the Internet; (h) to collect or track the personal information of others; (i) to damage, disable, overburden, or impair the Getchy or any other party's use of the Getchy; (j) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Getchy, other Products, or the internet; (l) to personally threaten or has the effect of personally threatening other Subscribers. Provider reserves the right to terminate the Subscriber use of Getchy for violating any of the prohibited uses.
5.4. The Subscriber shall not sub-license, resell or distribute the Service to any third party without prior written consent from the Provider.
5.5. The Subscriber acknowledges that the Getchy is not responsible or liable and does not control the content of any information that may be posted or stored on the Getchy by the Subscriber and/ or by the other users of the Getchy and the Subscriber is/are solely responsible for the same. The Subscriber further agrees that it shall not upload, post, or transmit any content that it does not have a right to make available (such as the intellectual property of another party).
5.6. The Subscriber agrees to comply with all applicable laws, statutes and regulations concerning its use of the Getchy/ Service and further agree that the Subscriber shall not transmit any information, data, text, files, links, software, chats, communication or other materials that are abusive, invasive of another's privacy, harassing, defamatory, vulgar, obscene, unlawful, false, misleading, harmful, threatening, hateful or racially or otherwise objectionable, including without limitation material of any kind or nature that encourages conduct that could constitute a criminal offence, give rise to civil liability or otherwise violate any applicable local, state, provincial, national, or international law or regulation, or encourage the use of controlled substances.
5.7. The Subscriber shall not use the services of the Provider for any illegal or unauthorized purpose nor shall, in the use of the Service, violate any laws in its jurisdiction (including but not limited to copyright laws).
5.8. The Subscriber shall be responsible for the personal data/ details of the individuals being collected or processed through the Getchy and in case of any violation and/ or incorrect data/ details than the sole liability shall be of the Subscriber.
5.9. The Provider reserves its right to monitor the Subscriber's use of Getchy/ Service to ensure compliance with these terms and applicable statutory rules, regulations & laws.
5.10. In the event of suspected violation of these terms, applicable rule, regulations & laws the Provider reserves its right to investigate and take appropriate actions, including but not limited to warning the Subscriber, suspending, or terminating the Subscriber's access to the Getchy/ Service, and reporting any illegal activities to the relevant authorities and further reserves its right to claim damages & losses so incurred by the Provide due to such violation by the Subscriber, either directly or indirectly.
6. PAYMENT & SERVICE FEE:
6.1. The Subscriber agrees to pay all applicable statutory dues including Service Fees and Charges associated with its/ their subscription to the Provider as outlined in Annexure II of this Agreement.
6.2. The Subscriber shall provide valid and up-to-date payment information, or other approved payment methods, to the Provider.
6.3. The Subscriber authorizes the Provider to charge the designated payment method for all applicable Service Fees and charges. Subscriber further authorizes Provider/ Getchy to use a third party to process payments and consent to the disclosure of your payment information to such third party.
6.4. All Service Fees and charges are exclusive of any applicable taxes, including Goods and Services Tax (GST) or other similar taxes, imposed by the concerned government or authorities. The Subscriber shall be responsible for paying any such taxes as required by applicable laws.
6.5. If Subscriber chooses to increase the number of Agents authorized to access and use a Service during the subscription term, any incremental subscription charges associated with such upgrade will be charged automatically in accordance with the remaining subscription term.
6.6. It is agreed upon by both the Parties in writing that all Service Fees and Charges shall be payable in advance on a monthly basis.
6.7. The Subscriber shall make payment in advance after the completion of trial period, if applicable, as decided by the Provider and the resultant tax invoice will be provide via online including mail. Dis-continuation of pre-paid payment/ recharge will result in suspension or termination of the Subscriber's access to the Getchy/ Service.
6.8. All Statutory dues and Service Fees and Charges are non-refundable and valid upto Thirty (30) days of such payment/ recharge.
6.9. Except as expressly stated in this Agreement, there shall be no additional fees, charges or expenses payable by the Subscriber to the Provider.
6.10. The Provider reserves the right to modify the Service Fee and Charges for the Service upon proving the Subscriber with prior notice, which may be in the form of an updated pricing schedule or other communication. The Service Fee adjustments shall become effective after Thirty (30) days of such updated pricing schedule or other communication. In the event of a Service Fee increase, the Subscriber may have the option to terminate their subscription upon written notice to the Provider within the period of thirty (30) days of such updated pricing schedule or other communication. It is further agreed that the Subscriber shall not be entitled to any refund of the Service Fee and Charges, if any, upon such termination but shall be entitled for utilizing the same by availing the Getchy/ Service.
7. TERM, TERMINATION & SUSPENSION:
7.1. This Agreement shall be valid for such period till which the Subscriber pays the agreed Service Fee and Charges to the Provider for the use of Getchy/ Service from the Effective Date (“Term”) unless this Agreement is otherwise terminated in accordance with the terms hereof, whichever occurs first. The term of each of the subscribed Services will be defined for each Service order.
7.2. Either Party may terminate an Account and subscription to a Service at the end of the then-current Subscription term by providing notice of Thirty (30) calendar days to the other Party. To cancel the subscription, the Parties can do the following:
Send an email to Provider on “corporate@getchy.in” AND to Subscriber on its registered mail-id so given in above details with the Subject as “Termination of Agreement”.
7.3. The Parties to this Agreement specifically reserve their respective right to terminate this Agreement if either of the Party violates any of the terms outlined herein, including, but not limited to, violating the intellectual property right of each other or a third party, failing to comply with applicable laws or other legal obligations, and/or publishing or distributing illegal material.
7.4. Either Party can terminate this Agreement if the other Party commits a material breach of these terms, statement of work , or applicable laws not cured for more than Fifteen (15) calendar days, if the other Party becomes subject to a petition in bankruptcy, or any other proceedings relating to insolvency, liquidation, or assignment for the benefit of creditors. In case the Subscriber terminates the subscription of the Services, in accordance with the terms of this Agreement, the Subscriber shall not be entitled to a refund of any prepaid Service Fees covering the remainder of the Subscription term.
7.5 Without prejudice to other rights it may have in this Agreement, the Subscriber shall have the right to terminate this Agreement upon the Provider suspending the work for a continuous period of Fifteen (15) days without prior approval of the Subscriber.
7.6. In case of a paid Subscriber, upon Subscriber's written request, Provider will make Service Data available to Subscriber for export or download for Thirty (30) calendar days after the date of termination, expiration or migration of the Account, except for Service Data deleted in accordance with these terms, or upon violation of applicable laws, or is against the law or legal order. Thereafter, the Provider will have no obligation to retain the Service Data unless otherwise stated under applicable laws or agreed terms.
7.7. Subject to the terms provided under this Agreement, the Subscriber Data will be retained for Thirty (30) business days after the expiry or termination of the Services.
8. REPRESENTATIONS AND WARRANTIES OF THE PROVIDER:
The Provider represents, warrants and covenants to the Subscriber that:
8.1the Provider is duly incorporated, validly existing and in good standing under the applicable laws;
8.2the Provider warrants that during the Term of this Agreement, the Provider will not materially decrease the functionality of the Services;
8.3the Provider is not restrained, prevented or inhibited by any contract or arrangement to which it is a party or any order of the court or the authority from entering into this Agreement or undertaking the obligations herein contained;
8.4this Agreement constitutes valid and legally binding obligation and will be enforceable against it;
8.5the Provider will perform its obligations hereunder in a professional and workmanlike manner within the specified time schedule and in accordance with (i) the highest applicable industry standards; and (ii) any and all applicable laws and ordinances including but not limited to Information Technologies Act, 2000 and rules made there under and regulations of any authority having jurisdiction over such matters;
8.6the Provider owns and possesses all right, free and marketable title and interest in and to all of Getchy/ Service, free and clear from any encumbrances. There are no (i) liens for taxes not yet due, or (ii) imperfections of title that might interfere with the Subscriber’s use of the Getchy/ Service;
8.7the Provider owns all right, title and interest in and to, free and clear of all encumbrances of any kind, all intellectual property rights necessary to own, license and use Getchy;
8.8Getchy/ Service to be rendered do not and will not violate or infringe intellectual property rights of any third party and will not result in the violation of any applicable law or other applicable regulations;
8.9the Provider ensures that Getchy/ Service under this Agreement will be uninterrupted, free from inherent viruses or harmful code, timely, secured and error free;
8.10the Provider shall not without the prior written approval of the Subscriber publish or use any intellectual property rights belonging to the Subscriber and/or its Affiliates.
9. COMMUNICATION:
9.1. In order to serve better and communicate Service updates and security reasons, it is imminent for the Parties to this Agreement to communicate with each other constantly through their authorized representatives/ appointed person in this regard. Therefore, by using the Service, the Subscriber consent to receive communications via phone or electronic records from the Provider including e-mail messages telling it about products and services offered by the Provider (or its affiliates and partners) and understanding the Subscriber’s requirements. Communication can also be by posting any notices on the Getchy/ Service.
9.2. The Subscriber agrees that the communications so sent to it by the Provider shall not be construed as spam or bulk under any law prevailing in any country where such communication is received.
9.3. Each Party shall promptly notify the other party in writing of any change in its contact information to ensure effective communication under this Agreement.
10. PRIVACY INFORMATION:
10.1. The Provider may collect and process personal information and other data from the Subscriber and its Agents, and
End-Users as necessary for the provision of providing the Service.
10.2. The Subscriber retains all rights, titles, and interest in and to any data or information submitted, uploaded, or
transmitted by the Subscriber or its authorized users through Getchy ("End-User Data")
10.3. The Subscriber hereby grants the Provider a limited, non-exclusive, worldwide, royalty-free license to process the End-
User Data solely for the purpose of providing the Getchy/ Service and fulfilling its obligations under this Agreement and applicable laws.
10.4. If the Subscriber is using Getchy/ Service on behalf of another Party, then the Subscriber represent and warrant that it
has all sufficient and necessary rights and permissions to do so.
10.5. The Provider shall comply with (a) all laws relating to the privacy, confidentiality or security of information (collectively,
“Privacy Laws”), and (b) all applicable industry standards concerning privacy, data protection, confidentiality and information security. The Provider shall, in accordance with industry standard practices and all applicable Privacy Laws, establish controls to ensure confidentiality of such information and to ensure that such information is not disclosed or accessed to anyone.
11. CONFIDENTIALITY AND DATA SECURITY:
11.1. Subject to express provisions of this Agreement, the Parties to this Agreement agrees to protect all the Confidential Information from un-authorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care.
(a) solely to the employees and/or non-employee service providers and contractors who have a need to know such Confidential Information in order to carry out the obligation under this Agreement, and who are bound by the written terms of confidentiality intended to prevent the misuse of such Confidential Information;
(b) the Parties to this Agreement hereby agrees to mandatorily incorporate in all such agreements with third parties such terms and conditions to the effect that such third parties will hold all Confidential Information, confidential.
11.3. The Provider has sufficient security provisions and shall maintain appropriate administrative, physical, and technical
safeguards for protection of the security, confidentiality and integrity of the Confidential Information provided by the Subscriber including but not limited to the Subscriber Data and End-User Data.
11.4. The Provider shall not (a) disclose Subscriber Data and End-User Data except as demanded/ called for by law and/ or an Investigating Agency/ Statutory Authority in accordance or as expressly called by the Subscriber in writing, or (b) access Subscriber Data and End-User Data except to the extent required to address or Subscriber’s request in connection with support matters, (c) reverse engineer, disassemble or de-compile the Subscriber Data and End-User Data.
11.5. The Provider acknowledges that in the event of any breach or threatened breach of this Clause by the Provider/ its employees/ agents/ sub-contractors/ third party engaged by itself, monetary damages may not be an adequate remedy, and therefore, the Subscriber shall be entitled to injunctive relief to restrain the Provider/ its employees/ agents/ sub-contractors/ third party engaged from any such breach, actual or threatened.
11.6. The Provider shall be liable for the loss of Subscriber Data and End-User Data when it has failed to maintain or secure the Subscriber Data and End-User Data in a way that it would have secured its own data. For due performance of the Provider’s obligations, it may be provided with or given access to Subscriber Data and End-User Data, confidential, proprietary, personal or otherwise in connection with performance of the Services and further the Provider, in case of any such conditions of loss and/ or liability, shall be liable only to an amount of recharge/ subscription of last thirty (30) days so paid by the Subscriber to the Provider for such service.
12. ASSUMPTION OF RISK:
12.1. The Subscriber acknowledges that the use of Getchy/ Service carries the following inherent risks and uncertainties:
(a) Technical risks such as interruptions, delays, or unavailability of Getchy due to hardware, software, or network failures for reasons not attributable to the acts or omissions of the Provider.
(b) Compatibility risks such as incompatibility between Getchy and the Subscriber's hardware, software, or network environment.
(c) Security risks, such as unauthorized access, data breaches, or loss of data not arising due to the acts or omissions of the Provider.
12.2. By using the Getchy/ Service, the Subscriber voluntarily accepts and assumes all risks associated with its use. The Subscriber acknowledges that the Provider shall not be held liable for any damages, losses, or harm arising from or related to the inherent risks of Getchy.
12.3. The Getchy/Service are provided for communication purposes only. The Subscriber acknowledge and agree that any information posted on Getchy/ Service is not intended to be legal advice, medical advice, or financial advice, and no fiduciary relationship has been created between Subscriber and the Provider.
13. INTELLECTUAL PROPERTY:
13.1. The Subscriber agrees that the Getchy and all Services provided by the Provider are the property of the Provider, including all copyrights, trademarks, trade secrets, patents, and other intellectual property ("Provider IP"). Subscriber agrees that the Provider owns all rights, title, and interest in and to the Provider IP and that the Subscriber shall not use the Provider IP for any unlawful or infringing purpose. The Subscriber agrees not to reproduce or distribute the Provider IP in any way, including electronically or via registration of any new trademarks, trade names, service marks or Uniform Resource Locators (URLs), without express written permission from the Provider.
13.2. The Subscriber agrees not to modify directly or indirectly, copy, reproduce, distribute, display, perform, or create derivative works based on the Provider IP.
13.3. The Subscriber acknowledges and agrees that this Agreement does not give him any right to implement Getchy patents.
13.4. Each Party shall retain all rights, titles and interests in its respective intellectual property rights. The rights granted to the Subscriber, Agents, and End-Users to use the Services under this Agreement do not include any additional rights or intellectual property rights of the Getchy/ Service.
13.5. In the event that the Subscriber becomes aware of any infringement or unauthorized use of the Provider IP, the Subscriber shall promptly notify the Provider and provide all necessary assistance to protect the Provider's rights in the Provider IP.
14. PUBLICITY:
14.1. The Subscriber grants the Provider the right to use the Subscriber's name, logo, and general description of the nature of the service provided in connection with this Agreement for the purpose of identifying the Subscriber as a customer of the Provider. The Provider reserves it right to include the Subscriber's name and logo on its website, marketing and promotional materials.
14.2. Whenever the Subscriber requests to make reasonable changes or restrictions on the use of its name and logo, the Provider shall make a commercially reasonable effort to accommodate such requests. Neither Party shall make any public statement nor press release regarding this Agreement without the prior written consent of the other Party, except as required by applicable law or regulation.
15. INDEMNIFICATION:
15.1. The Provider shall indemnify, defend and hold harmless the Subscriber and its Affiliates and their respective directors, Agents, End-Users officers, employees, consultants and representatives harmless from and against any losses, liabilities, claim, demand, suit, actions, damages or expenses or proceeding, penalties, levies made or brought against the Subscriber (i) due to any claim that the Getchy or the Services is infringing any intellectual property rights of a third party, (ii) The Provider’s breach of terms and condition, representations, warranties, obligations, covenants under this Agreement or (ii) negligence, misconduct or fraud. The Provider shall indemnify the Subscriber for any damages being limited only to an amount of recharge/ subscription of the last thirty (30) days so paid by the Subscriber to the Provider.
15.2. The Subscriber agrees to defend and indemnify the Provider and its Affiliates, if any, and their respective directors, employees, consultants and representatives etc. harmless against any and all legal claims and demands, including reasonable attorney's Fees & other expenses, which may arise from the Subscriber’s breach of this Agreement. The Provider will cooperate with Subscriber in connection with such disputes. The Subscriber agrees that the Provider shall be able to select its own legal counsel and may participate in its own defence if the Provider wishes.
16. SPAM POLICY:
16.1. The Subscriber are strictly prohibited from using the Getchy or any of the Services for illegal spam activities, including gathering email addresses and personal information from others or sending any mass commercial emails.
16.2. The Subscriber is solely responsible for ensuring compliance with all applicable anti-spam laws and related, rules and regulations. The Subscriber agrees to promptly honour opt-out requests and unsubscribe requests from recipients of its email or messages.
17. THIRD-PARTY LINKS & CONTENT:
17.1. The Getchy may contain links to third-party websites, apps, and resources. The Subscriber acknowledges and agrees that the Provider does not endorse or control such third-party websites, or resources, and the Provider shall not be responsible or liable for any content, advertising, products, or other materials available on such websites or resources.
17.2. The Subscriber may choose to integrate third-party applications, plug-ins, or content ("Third-Party Content") with the Getchy. Third-Party Content is subject to the terms and conditions of respective third parties and the Provider shall not be responsible or liable for any issues related to the use of Third-Party Content. Any concerns or disputes regarding the service, payment or any other matter concerning third-party websites or resources should be addressed directly to the applicable third party.
18. MODIFICATION & VARIATION:
18.1. This Agreement may not be altered, modified or amended unless such alteration, modification or amendment is evidenced in writing and approved by the Provider. .
18.2. To the extent any part or sub-part of this Agreement is held ineffective or invalid by any court of law, The Parties to this Agreement agrees that only the invalid part or sub-part shall not be considered enforceable and valid and the rest of the Agreement shall be considered enforceable and valid to the fullest extent.
19. ENTIRE AGREEMENT:
This Agreement constitutes the entire understanding between the Parties with respect to any and all use of this Getchy/Service. This Agreement supersedes and replaces all prior or contemporaneous Agreements or understandings, written or oral, regarding the use of this Getchy.
20. NO WARRANTIES:
20.1. The Subscriber agrees that its use of the Getchy and Services is at its own sole and exclusive risk and that any Services provided by Provider are on an "As Is" basis. The Provider hereby expressly disclaims any and all express or implied warranties of any kind, including, but not limited to the implied warranty of fitness for a particular purpose and the implied warranty of merchantability, unless otherwise provided by the Provider in writing.
20.2. The Provider warrants that it will make all efforts to ensure the reliability or accuracy of the information on the Getchy or obtained through the Services however to accept the same or not shall be the sole exclusive right of the Subscriber and the Provider shall not be held liable for Subscriber’s acting on such information and such information shall be considered as being “as is” and “as available”.
20.3. The Subscriber agrees that any damage that may occur to it, through its computer system, or as a result of the loss of its data from its use of the Getchy or Services is the sole responsibility of the Subscriber and that the Provider is not liable for any such damage or loss.
20.4. The Provider disclaims all warranties, expressed, or implied including, without limitation, all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement or arising from a course of dealing usage, or trade practice, unless otherwise provided under this Agreement.
20.5. All postings, messages, advertisements, photos, sounds, images, text, files, video, or other materials posted on, transmitted through, or linked from the Getchy, are solely the responsibility of the person from whom such Content originated, and the Provider does not control and is not responsible for Content available on the Getchy.
20.6. There may be instances when incorrect information is published inadvertently on Getchy or in the Service such as typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, and availability. Any errors, inaccuracies, or omissions may be corrected at the Provider’s discretion at any time, and the Provider may change or update information or cancel orders if any information in the Service or on any related Getchy is inaccurate at any time without prior notice (including after the Subscriber has submitted its order).
20.7. The Provider and/ or Getchy shall not be responsible for any interaction between the Subscriber and the other Subscribers of the Getchy. Under no circumstances shall the Provider and/ or Getchy be liable for any goods, services, resources, or content available through such third-party dealings or communications, or for any harm related thereto. The Provider and/ or Getchy is under no obligation to become involved in any disputes between the Subscriber and other Subscribers of the Getchy or between the Subscriber and any other third parties. The Subscriber agrees to release the Provider and/ or Getchy from any and all such claims, demands, and damages arising out of or in connection with such dispute.
20.8. The Subscriber agrees and understands that while the Provider has made necessary & reasonable efforts to safeguard the Getchy, it cannot and does not ensure or make any representations that the Getchy or any of the information provided by the Subscriber cannot be hacked by any unauthorized third parties. The Subscriber specifically agrees that the Provider and/ or Getchy shall not be responsible for any such unauthorized access to or alteration of Subscriber’s transmissions or data, any material or data sent or received or not sent or received, or any transactions entered into through the Getchy.
20.9. The Subscriber hereby agree and confirm that the Provider and/ or Getchy shall not be held liable or responsible in any manner whatsoever for such hacking or any loss or damages suffered by you due to unauthorized access of the Getchy by third parties or for any such use of the information provided by the Subscriber or any spam messages or information that the Subscriber may receive from any such unauthorized third party (including those which are although sent representing the name of the Getchy but have not been authorized by the Provider and/ or Getchy) which is in violation or contravention of this Agreement or the Privacy Policy.
20.10.The Subscriber specifically agrees that the Provider and/ or Getchy is not responsible or liable for any threatening, defamatory, obscene, offensive, or illegal content or conduct of any other party or any infringement of another's rights, including intellectual property rights. The Subscriber further specifically agrees that the Provider and/ or Getchy is not responsible for any content sent using and/or included on the Getchy by any third party.
20.11. The Provider and/ or Getchy has no liability and shall make no refund in the event of any delay, cancellation, strike, force majeure, or other causes beyond their direct control, and they have no responsibility for any additional expense omissions delays or acts of any government or authority.
20.12.The Subscriber shall be solely responsible for any damage to its computer system or loss of data that results from the download of any information and/or material. Some jurisdictions do not allow the exclusion of certain warranties, so some of the above exclusions may not apply to the Subscriber.
20.13.The Subscriber accept all responsibility for and hereby agree to indemnify and hold harmless the Provider from and against any loss or expenses suffered by the Provider on account of any actions taken by the Subscriber or by any person authorized to use its Account, including without limitation, disclosure of passwords to third parties. If the Subscriber is/ are dissatisfied with the Getchy, or the Services or any portion thereof, or do not agree with these terms, the only recourse and exclusive remedy shall be to stop using the Getchy/ Service of the Provider.
21. LIMITATION OF LIABILITY:
21.1. In no event shall the Provider and/ or Getchy be liable for any indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the use or performance of the Getchy, with the delay or inability to use the Getchy or related services, the provision of or failure to provide Services, or to deliver the products or for any information, software, products, services and related graphics obtained through the Getchy, or any interaction between you and other participants of the Getchy or otherwise arising out of the use of the Getchy, damages resulting from use of or reliance on the information present, whether based on contract, tort, negligence, strict liability or otherwise, even if the Getchy or any of its affiliates/suppliers has been advised of the possibility of damages. If despite the limitation above, the Provider is found liable for any loss or damage which arises out of or in any way connected with the use of the Getchy and/ or provision of Services, then the liability of the Provider shall in no event exceed recharge/ subscription of last thirty (30) days so paid by the Subscriber to the Provider..
21.2. This aforementioned limitation applies to any and all claims by the Subscriber, including, but not limited to, lost profits or revenues, consequential or punitive damages, negligence, strict liability, fraud, or torts of any kind.
22. GENERAL PROVISIONS:
22.1. AUTHORITY: Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that is binding upon such party and enforceable in accordance with its terms. The Subscriber further warrant and represent that it has the authority to procure its Affiliate's compliance with the terms of this Agreement.
22.2. LANGUAGE: This Agreement and all related communications, notices and documentation shall be conducted in the English language. Any translations provided for convenience or informational purposes are not guaranteed to be accurate or complete, and the English version of this Agreement shall prevail in case of any discrepancies or conflicts.
22.3. JURISDICTION, VENUE & GOVERNING LAW: The Subscribe agrees that the laws of India shall govern any matter or dispute relating to or arising out of this Agreement, as well as any dispute of any kind that may arise between the Subscriber and the Provider, with the exception of its conflict of law provisions. Both the Parties do hereby agree that any dispute arising out of or in relation to this Agreement shall be settled in accordance with the provisions of the Arbitration and Conciliation Act, 1996 and/or any statutory modification or re-enactment thereof for the time being in force. The Parties shall nominate their respective arbitrators and shall communicate the same to the other party. The respective nominated arbitrators will select/ nominate one arbitrator to be the Principal Arbitrator.. Each Party shall pay their own costs and fees of the arbitration and the cost of the arbitrator shall be borne equally, unless otherwise provided by the arbitrator. The seat and place of the arbitration shall be Gurugram, Haryana (India). The Parties shall be entitled to apply to the competent courts for interim or interlocutory relief in respect of such arbitration. Subject to the above, competent courts shall have jurisdiction over any of the disputes arising out of or in connection with this Agreement. The language of the arbitration shall be: English. The Agreement shall be governed in accordance with the laws of India and the courts of Gurugram, Haryana (India) will have the exclusive jurisdiction.
22.4. ASSIGNMENT: The Parties to this Agreement shall not assign, transfer, or delegate any rights or obligations under this Agreement without the prior written consent of each other. Any attempted assignment in violation of this clause shall be null and void. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
22.5. SEVERABILITY: If any part or sub-part of this Agreement is held invalid or unenforceable by a court of law or competent arbitrator, the remaining parts and sub-parts will be enforced to the maximum extent possible. The parties agree to replace the severed provision with a valid and enforceable provision that reflects the original intent of the Agreement to the maximum extent possible.
22.6. NO WAIVER: The failure of either Party to enforce any right or provision of this Agreement shall not be deemed as a waiver of such right or provision. The waiver of any breach of this Agreement shall not constitute a waiver of any subsequent breach. No waiver shall be effective unless it is expressly stated in writing and signed by the waiving party.
22.7. HEADINGS FOR CONVENIENCE ONLY: Headings of parts and sub-parts under this Agreement are for convenience and organization, only. Headings shall not affect the meaning of any provisions of this Agreement.
22.8. NO AGENCY, PARTNERSHIP OR JOINT VENTURE: Nothing in this Agreement shall be construed as creating an agency, partnership, joint venture, and/or any other form of legal association between the Subscriber and the Provider. This Agreement does not authorize either party to act as an Agent or representative of the other party.
22.9. FORCE MAJEURE: Neither Party shall be liable for any failure or delay in the performance of its obligations under this Agreement if such failure or delay is caused by events beyond its reasonable control, including but not limited to acts of God, natural disasters, fires, floods, epidemics, pandemics, war, terrorism, strikes, labour disputes, governmental actions, or any other event that is unforeseeable and beyond the reasonable control of the affected party ("Force Majeure Event"). The Party affected by the Force Majeure Event shall promptly notify the other party in writing of the occurrence and anticipated duration of such event. The affected party's performance under this Agreement shall be suspended during the Force Majeure Event, and the time for performance shall be extended for a period equal to the duration of the Force Majeure Event. If the Force Majeure Event continues for a period of Thirty (30) calendar days, either party may terminate this Agreement by providing written notice to the other party without incurring any liability for such termination.
22.10. ELECTRONIC COMMUNICATIONS PERMITTED: The Parties agree that electronic communications, including but not limited to email, electronic signatures, and online messaging, shall be deemed valid and legally binding for all purposes under this Agreement. Such electronic communication shall have the same force and effect as if they were in writing and signed by the parties. The parties further acknowledge that electronic communications are reliable, confidential, and secure means of communication.
You can contact thePROVIDERthrough the following method:
GETCHY ANALYTICA OPC PRIVATE LIMITED
#8, 21 st Floor, Tower 4, DLF Corporate Greens,
Sector 74A, Gurugram, Haryana-122004.
through its Director Mr Kamal Dhyani,
Mail-id: kamal.dhyani@getchy.in
(Annexure 1)
List of services to be provided through the portal
· admin rights to maintain user count and customisation of your application forms
· CRM for both telecalling and field operations (integration with dialler not included)
(Annexure 2)
Pricing schedule for SaaS on Cloud
· Subscription fee per user per calendar month: Rs 300/-