Terms of Service
Software As A Service (SAAS) SERVICES AND SUPPORT
Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide to the Customer on ‘best-efforts’ basis, the Services [in accordance with the Service Level Terms attached hereto as Exhibit A]. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
Subject to the terms hereof, Company will provide on ‘best-efforts’ basis to the Customer, the technical support services in accordance with the terms set forth in Exhibit B.
RESTRICTIONS AND RESPONSIBILITIES
Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. With respect to any Software and hardware that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, limited and restricted permission to use such Software and hardware during the Term only in connection with the Services. Further, Customer may not remove or export from the country of its usage or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof.
Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. [Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit (or require the Customer to so prohibit) any use of the Services it believes may be (or alleged to be) in violation of this Agreement.
Customer shall be responsible for obtaining and maintaining (whether under specific request by the Company or otherwise) any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
CONFIDENTIALITY; PROPRIETARY RIGHTS
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
Any data that is based on or derived from the Customer Data (whether or not provided to Customer as part of the Services) shall be owned by the Company . Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
Notwithstanding anything to the contrary, Company shall have the right collect and analyse data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company may in its sole discretion (during and after the term hereof) (i) use such information and data to improve and enhance the Services and or for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified or identified form in connection with its business. No rights or licenses are granted by the Company to the Customer, except as expressly set forth herein.
For the delivery of the Services, the Company may install items of hardware (such as GPS, Sensors, or any other electronic devices, sourced from third-party vendors) upon, into or along with certain movable property owned by the Customer. Ownership of the same shall remain with the Company. Unless otherwise specifically agreed by and between the Parties, the Company assumes or undertakes no performance warranties or standards in relation to such items of hardware. Any software embellished in such items of hardware by the Company shall be and belong to the Company in entirety and without exception. Customer agrees and undertakes to follow the warranty and performance prescriptions of such third-party vendors and not to pilfer or reverse engineer the same.
PAYMENT OF FEES
Customer will pay Company the then applicable fees described in the Services Agreement for the Services and Implementation Services in accordance with the terms herein recorded (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 30 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit, failing which the billed amount shall be deemed as accepted by the Customer. Inquiries should be directed to Company’s customer support department.
All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement.
Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month shall be settled by the Customer before the expiry of thirty (20) days after the date of receipt of the invoice. Unpaid amounts shall be subject to late payment interest @ 1.5% per month on any outstanding balance, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with the rendering of Services by the Company to the Customer, other than taxes specifically required by law to be suffered by the Company on its net income.
Company may charge and recover a one-time refundable deposit for permitting the Customer to use the items of hardware by the Customer. Such a ‘security deposit’ shall not carry any interest and the same shall be refundable subject to the relevant items of hardware not suffering, in the reasonable opinion of the Company, any abuse or breakages or deterioration (usage in the ordinary course of business, wear and tear excepted).
TRIAL PERIOD POLICY
If you purchase our services, and if you return the hardware within the agreed trial period (the “Trial Period”) from the date of your receipt of the hardware, then, subject to your compliance with the terms and conditions of this Section, you will receive 100% of your original deposit for the Device. During the Trial Period, your return may be for any reason. To be eligible for a refund, a Device must be in substantially new condition, and the return must be post-marked (or otherwise delivered to the relevant carrier or received by us) by the agreed trial period end day after the date of your receipt of the Device. Refunds will not be issued for Devices that have been damaged or altered in any way, including by affixing adhesive or other items to the Device. For all returns, including returns within the Trial Period, you will be responsible for the shipping costs back to our office. Refunds will be issued for the purchase price of the Device only; refunds will not be issued for activation fees, subscription payments, original shipping fees, or any other fees or costs whatsoever. The “trial period” will be automatically extended to “paid service agreement” and will be governed by terms of this agreement and the “Service Order Form” signed by the customer unless the customer informs the company of discontinuing the services within the trial period and returns the hardware as per the “Trial Period Policy”
TERM AND TERMINATION
Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be deemed automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
In addition to any other remedies it may have, Company may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the Customer materially breaches any of the terms or conditions of this Agreement. In such an event, Customer will be obliged to forthwith pay in full for the Services up to and including the last day on which the Services are provided. [Upon termination for any reason whatsoever, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, in its sole discretion, delete all stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
WARRANTY AND DISCLAIMER
Company shall use best efforts to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Company provides data of an asset's (truck, trailer, scooter, forklift etc..) based on its operational performance and technical performance, that helps the service subscriber enhance his business. Company is not responsible for any legal due diligence of the asset.
Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defence and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED 30% OF THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT OR EVENT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Company shall not be liable or responsible for any service deficiencies if the same are brought about by any factor which is beyond the reasonable control of the Company, including but not limited to events of ‘Force Majeure’ such as war, civil unrest, natural calamities, satellite breakdowns, third-party software/hardware errors, statutory or regulatory requirements/orders/notifications etc.
Without prejudice to the generality of the foregoing, Company may, at any time, without notice and without incurring any liability whatsoever, suspend the service either in whole or in part in the event of any one or more or all of the following occurring:
Technical failure of the GSM network and/or its reporting structures, modifications/maintenance to the GSM network by the GSM service provider.
The GSM provider ceasing to make the network available to Company or if it stops trading for any reason whatsoever.
Any cancellation by either party after the initial period of the contact.
Automatically and without prior notice and without liability on the part of Company, in the event of the Customer utilising the service in any manner deemed by Company in its sole and absolute discretion to be inappropriate (and the Customer hereby indemnifies and holds Company harmless against any claim that may arise against Company as a result of such improper use of the service). Automatically, further, if the Customer or authorised user misuses the system.
The Customer, failing to inform Company in writing within 7 (SEVEN) days after the change of any Director, Member, Shareholder, Owner or Partner or address or the alienation by the Customer of its business, and failure to give such notice shall constitute a material breach of this Agreement by the Customer to which Company shall have the right at its sole discretion to terminate this Agreement.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any/all of its rights and obligations under this Agreement and intimate the same to the Customer. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of [Goa, India] without regard to its conflict of laws provisions.
The Parties hereto agree that they shall not during the subsistence hereof and for a period of 12 (twelve) months thereafter, publish, state, record or convey in any form, manner or medium, any statement, opinion, assessment or comment about each other or the Services or any issue connected herewith or arising herefrom, which has or is reasonably likely to have a disparaging, adverse or negative (whether or not capable of being held as defamatory) interpretation. Breach of the said undertaking shall entitle the suffering Party to claim pre-estimated liquidated damages of and in an amount of INR100,000 (INR One Lakh Only) which is a reasonable estimate of the loss of goodwill likely to be suffered by the non-breaching Party.
Service Level Terms
The Services shall be available 99.5%, measured monthly, excluding holidays and weekends and scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation. Customer's sole and exclusive remedy, and Company's entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than [one hour], Company will credit Customer 5% of Service fees for each period of 30 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to Company) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify Company in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. Company will only apply a credit to the month in which the incident occurred. Company’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement.
Company will provide Technical Support to Customer via both telephone and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm IST, with the exclusion of National Holidays (“Support Hours”).
Customer may initiate a helpdesk ticket during Support Hours by calling [777-600-5544] or any time by emailing [firstname.lastname@example.org].
Company will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.