Terms of Service
Thank you for deciding to choose Numadic as your logistics and fleet management platform. By agreeing to use the Services, you hereby agree to all the terms and conditions of this Agreement (as defined under the relevant Order Form). You hereby represent and warrant that you have the necessary authority to enter into this Agreement and that, if the Customer is an entity, you have the necessary authority to bind that entity to this Agreement, the relevant Order Form and the relevant Statement of Work. Please note that we may modify this Agreement as further described in the amendments section below from time to time. This Agreement includes any Order Forms and Statement of Work or other Service-Specific Terms (as defined below) as well as any policies, annexures or exhibits linked to or referenced herein.
- “Order Form” shall mean the relevant Service Order Information.
- “Customer” or “you” shall mean the entity as identified under the relevant Order Form.
- “Territory” shall mean the country of India.
- “Statement of Work” or “SOW” shall mean the relevant Statement of Work
- “Service-Specific Terms” means the additional or different terms and conditions (if any) to the Service. These Service-Specific Terms shall be made available to you through the relevant Order Form and Statement of Work.
- The Effective Date shall be the date on which the Services (as defined below) are made available to the Customer (“Effective Date”).
- SERVICES LEVELS AND SUPPORT
- The term Services shall include the software and services that Numadic shall make available to the Customer as provided under the Statement of Work to this Agreement (the “Services”).
- Subject to the payment of the Fees and the Customer not breaching any of the terms of this Agreement, Numadic hereby grants to the Customer a limited, non-exclusive, non-transferable right to use the Services from the Effective Date.
- The Customer hereby acknowledges that the Service may be unavailable to up to 8 hours in a week for routine maintenance. Such unavailability shall not trigger a breach of this Agreement on part of Numadic. Numadic shall use commercially reasonable efforts to reduce downtime of the Software to minimize the impact it can have on the Customer. The Customer agrees to follow instructions given by Numadic to implement or assist in reducing downtime or workarounds as necessary.
- Numadic will provide Technical Support to the Customer via both telephone and Email on weekdays during the hours of 9:00 am through 6:00 pm IST, with the exclusion of National Holidays (“Support Hours”). The Customer may initiate a helpdesk ticket during Support Hours by calling 7776005544 or any time by emailing firstname.lastname@example.org.
- RESTRICTIONS AND RESPONSIBILITIES
- Customer will not, directly or indirectly: modify, copy, reproduce, reverse engineer, decompile, decrypt, disassemble or otherwise attempt to discover or recreate the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software included in the Service (the “Software”), documentation or data related to the Services; modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Numadic or authorized within the Services); use the Services or any Software for time-sharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. The Customer shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Service and, in the event of any such unauthorized access or use, promptly notify Numadic. The Customer may not disclose any information of the performance or functional evaluation of the Software and such information shall be treated as Confidential Information.
- Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Numadic’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Numadic against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorney's’ 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.
- The Customer agrees that during the Term and for a period of two (2) years after (the “Restricted Period”), the Customer shall not engage, actively prospect or solicit Numadic’s other customers or clients without Numadic’s prior written approval.
- Numadic may, on its own cost and upon no less than a 24 hour notice to the Customer audit the Customer’s books, records and facilities with respect to the terms of this Agreement. In the event a discrepancy or breach of this Agreement is discovered by Numadic, the Customer hereby agrees to bear and/or promptly repay Numadic all costs, fees and expenses incurred for the performance of such audit or investigation (“Audit”).
- CONFIDENTIALITY AND 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 Numadic includes but not limited to non-public information regarding features, functionality and performance of the Service, whether tangible or intangible including without limitation drawings, schematics, written or printed documents, computer disks, tapes, and compact disks (CD), whether machine or user readable containing any information that Numadic discloses specifically marked and designated, either orally or in writing, as confidential or which, under the circumstances surrounding the disclosure, ought to be treated as confidential or which is created during the course of the performance of the Service in accordance with the terms of this Agreement, which includes, but is not limited to, product schematics or drawings, descriptive material, specifications, software (source code or object code),and third party information, information related to personnel, employee and/or consultant compensation data, Numadic’s intellectual property including proprietary methodologies, processes, tools, techniques, templates, methods, trade secrets, know-how, Numadic’s strategy, information received from other individuals and entities that Numadic is obligated to treat as confidential, and other materials and information of a confidential nature. Proprietary Information of Customer includes non-public data provided by Customer to Numadic to enable the provision of the Services (“Customer Data”). The Receiving Party agrees and shall ensure that its directors, officers, managers, partners, members, employees, legal, financial and professional advisors and bankers (collectively, “Representatives”) shall: (i) take reasonable precautions to protect such Proprietary Information, and (ii) not 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 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.
- Numadic 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 services, and (c) all intellectual property rights related to any of the foregoing.
- Notwithstanding anything to the contrary, Numadic shall have the right to collect and analyze 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 derived data therefrom, and all such data shall be the property of Numadic. Numadic will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Numadic offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
- The Customer agrees that this Agreement does not transfer, convey or grant any ownership or proprietary interest, whether express or implied, in Numadic’s intellectual property and acknowledges that the Customer shall not (a) register or attempt to register Numadic’s intellectual property or any part thereof in any jurisdiction; (b) claim to have right, legal title or interest in any aspect of the Service or Software and other Numadic’s intellectual property, either under this Agreement or otherwise; (c) shall not license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party Numadic’s intellectual property in any way; (d) access Numadic’s intellectual property for any purpose whatsoever, including without limitation, to(i) build a competitive product or Service; or(ii) build a product using similar ideas, features, functions or graphics of Numadic’s intellectual property; or(iii) copy any ideas, features, functions or graphics of Numadic’s intellectual property.Notwithstanding anything contained herein, the Customer may use such intellectual property of Numadic as has been expressly authorized.
- WARRANTY AND DISCLAIMER
- Numadic shall use reasonable efforts consistent with prevailing industry
standards to maintain the Services in a manner which minimizes errors and
interruptions in the Services and shall perform the implementation of the
Service in a professional and workmanlike manner. Services may be temporarily
unavailable for scheduled maintenance or for unscheduled emergency
maintenance, either by Numadic or by third-party providers, or because of
other causes beyond Numadic’s reasonable control, but Numadic shall use
reasonable efforts to provide advance notice in writing or by e-mail of any
scheduled service disruption.
HOWEVER, Numadic 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 NUMADIC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- Numadic and its representatives disclaim all liabilities arising due to:a. modifications of the Service by anyone other than Numadic; orb. the Customer's use of the Service in a manner contrary to the instructions given to the Customer by Numadic; orc. the Customer's use of the Service after notice of the alleged or actual infringement from Numadic or any appropriate authority.
- Numadic shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the implementation of the Service in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Numadic or by third-party providers, or because of other causes beyond Numadic’s reasonable control, but Numadic shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
Without prejudice to any other right available to the Parties in law or under equity , both parties irrevocably agree to indemnify and hold harmless the other Party and its Representatives from and against any and all losses arising out of or in connection with any claim demands, suits, proceedings, damages, costs, expenses, liabilities (including but without limitation, reasonable legal fees) or causes of action arising out of or relating to any of the Indemnified Parties for the infringement or misappropriation of any rights (including Intellectual Property Rights), where such claim arises in relation to, or as a result of:1. a breach of the warranties/representations or undertakings by the either party2. any breach by either party of its obligations under this Agreement;3. the provision of false, incomplete or inaccurate information by or on behalf of the either party;4. violation of applicable laws in relation to performance of the terms of this Agreement; or5. any fraud, negligent or other act or omission by a Party or its Representatives in the performance of this Agreement; provided that the indemnifying Party is given prompt notice of any such claim and the sole control of the defense or settlement of such claim, and further provided that the indemnified Party shall cooperate with the indemnifying Party in connection with the foregoing.
- LIMITATION OF LIABILITY
Notwithstanding anything to the contrary contained herein, Numadic or its affiliates shall not be liable for indirect, incidental, special or consequential damages, including, without limitation, damages for lost business, profits, data or use of any service, incurred by the Customer or any third party in connection with this Agreement, regardless of the nature of the claim (including negligence), even if foreseeable, or the other Party has been advised of the possibility of such damages.The cumulative maximum liability of Numadic to the Customer, under this Agreement, regardless of the nature of the claim (including negligence), shall be limited in the aggregate to the total value of the Fees paid to Numadic in terms of this Agreement in the first 12 months of the Initial Service Term.
- FORCE MAJEURE
Numadic shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Numadic or any other party), failure of a utility service or transport or telecommunications network, act of god, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm,pandemic or default of suppliers or subcontractors, provided that the Customer is notified of such an event and its expected duration.
- GOVERNING LAW AND JURISDICTION
This Agreement is governed by the laws of India. The parties agree that any action or proceeding to enforce or arising out of this Agreement shall be brought exclusively at the courts of Mumbai, Maharashtra. If any dispute, controversy, claims or disagreement of any kind whatsoever arises between the Parties in connection with or arising out of this Agreement (“Dispute”), then the Parties shall, at the first instance, through their respective authorized representative, use reasonable endeavors to settle the Dispute amicably. In the event that the Parties are unable to amicably settle the Dispute within 15 (fifteen) days of the Dispute having arisen, the Dispute shall be referred to arbitration to be conducted by a sole arbitrator. The appointment of the sole arbitrator and conduct of the proceedings of the arbitration shall be in accordance with the Arbitration and Conciliation Act, 1996, along with any statutory modifications or amendments thereto. The seat of such arbitration shall be Mumbai, Maharashtra. All proceedings of such arbitration, including, without limitation, any awards, shall be in the English language.
- This Agreement may be amended, modified or waived by the Parties, only in writing. All notices shall be given in writing at the addresses hereinabove mentioned, facsimile numbers provided or digitally to the Parties’ email ids. Any notice sent in accordance with this Clause shall be effective: (i) if by courier of repute or SpeedPost or Registered Post, five (5) business days after delivery to the courier service with due proof of such delivery and the contents thereof: and (ii) if sent by messenger, upon delivery with receipt acknowledged. This Agreement shall constitute the entire agreement between the Parties with respect to the subject matter and supersedes all discussions held between the Parties to date. The Customer shall not assign its obligations or interests under this Agreement except with Numadic’s prior written consent. Numadic may assign or novate this Agreement, at any time, without the Customer’s written consent. The invalidity or unenforceability of any particular provision shall not affect the other provisions and the other provisions shall remain in full force and effect and enforceable. The Parties are contracting on a principal to principal basis and this Agreement does not create any agency, partnership, joint venture, employment or franchise relationship.
- The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect that party’s right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.