Schedule C – Standard Terms & Conditions
1. DEFINITIONS:
“Agreement” means this customer agreement, including sales order form, all statements of work, Service Plan SLA, Addendums and any other agreement relating to the Services entered into by SAASTIFY SYSTEMS PRIVATE LIMITED and the Customer; “Customer” means the Party subscribing to the Service Plan; “Contract Date” means the date on which the Parties duly execute this Agreement; “Fees” means the fees payable by the Customer to SAASTIFY SYSTEMS PRIVATE LIMITED; “Parties” shall mean SAASTIFY SYSTEMS PRIVATE LIMITED and the Customer together (each, individually, a “Party”); “Platform” means the SAASTIFY SYSTEMS PRIVATE LIMITED Platform; “Service Plan” means the package of services provided by SAASTIFY SYSTEMS PRIVATE LIMITED as set in the sales order form and Service Plan SLA and as may otherwise be agreed by SAASTIFY SYSTEMS PRIVATE LIMITED and the Customer from time to time; “Services” means the services offered by SAASTIFY SYSTEMS PRIVATE LIMITED to the Customer pursuant to the subscribed Service Plan, including the access to and use of the Platform; “Intellectual Property Rights” means all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any source code, software, patent, copyright, trademark, trade secret, database protection, know-how, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
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2. ROLE AND RESPONSIBILITIES OF THE PARTIES:
· 2.1. SAASTIFY SYSTEMS PRIVATE LIMITED has and will retain sole control over the operation, provision, maintenance and management of the Platform and the Services. SAASTIFY SYSTEMS PRIVATE LIMITED will determine in good faith the selection, deployment, modification, support, maintenance, repair upgrades, updates, corrections, repairs, and replacement of the Platform and Services. SAASTIFY SYSTEMS PRIVATE LIMITED will have the right to (a) review and monitor the use of the Platform and Services by Customer and its users to ensure compliance with the terms of this Agreement and any applicable Service Plan; and (b) in its sole discretion, make any changes to the Platform and Services that it deems necessary or useful or requested by the Customer.
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· 2.2. Subject to and conditioned on Customer’s payment of the Fees and Customer’s and users’ compliance with the terms and conditions of this Agreement, on subscription to a Service Plan and creation of account by the Customer, SAASTIFY SYSTEMS PRIVATE LIMITED shall provide the Customer a limited, non-exclusive, non-transferable, non-sublicensable, worldwide, revocable license to use and access the Platform, and shall provide Services as per the Service Plan subscribed to by the Customer;
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· 2.3. The Customer shall upload the catalog data from the Customer’s website (as set out in the Sales Order Form) onto the Platform. Such data shall be non-infringing, authorized, categorized, indexed, and optimized by SAASTIFY SYSTEMS PRIVATE LIMITED;
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· 2.4. The Customer may change the subscription to another Service Plan, subject to the change of SOW or additional requirements (as set out in the Sales Order Form) in accordance with the Sales Order Form and execution of an addendum to this Agreement reflecting the change to subscription by the Customer (“Addendum”);
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· 2.5. The Customer is responsible for updating and installing maintenance updates, if any, to its environment. SAASTIFY SYSTEMS PRIVATE LIMITED shall not cover any expenses related to Customer’s maintenance updates or be liable for any interruptions or issues with regards to the Services due to non-updation or non-installation of maintenance updates by the Customer.
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· 2.6. The Services are intended to be used by the Customer for its internal business purposes only and the Customer shall be liable for any contravention of the terms of this Agreement, and any inappropriate, illegal, fraudulent, or misleading use of the Services;
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· 2.7. The Customer shall obtain and maintain any required consents necessary to permit the processing of data by SAASTIFY SYSTEMS PRIVATE LIMITED under the Agreement;
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· 2.8. The Customer shall take all reasonable measures to avoid any unauthorized or fraudulent use of the Services and will ensure that all its users adhere to the terms of this Agreement;
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· 2.9. The Customer or its users shall not use the Platform for the following acts:
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o a. to transmit, distribute or store any material, including any material that may be harmful to computer systems (such as viruses, worms, Trojans, or password-cracking programs), that may adversely affect the Services or other customers;
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o b. in any manner that would violate the Intellectual Property Rights of SAASTIFY SYSTEMS PRIVATE LIMITED or any third party;
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o c. to transmit any unsolicited email messages host inappropriate content or use any other service to send such unsolicited email messages (i) to promote the customer’s website (as set out in the Sales Order Form); (ii) to harass or annoy; (iii) containing malicious data or software, (iv) containing forged TCP/IP packet header information, or (v) addressed to people who have clearly indicated that they do not wish to receive any emails.
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o d. shall not attempt to gain unauthorized access to any of SAASTIFY SYSTEMS PRIVATE LIMITED’s data centres, systems or networks;
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o e. shall not interfere with or disrupt the integrity or performance of the Services or any third-party technology contained therein;
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· 2.10. The Customer hereby grants SAASTIFY SYSTEMS PRIVATE LIMITED the right to access, collect, track and use user-behaviour data through the Platform, Services and customer’s websites (as set out in the Sales Order Form) for (i) performing the Services pursuant to this Agreement, and (ii) developing and providing SAASTIFY SYSTEMS PRIVATE LIMITED’s products and services, and conducting analytics with respect to the Platform and represents and warrants that it has the relevant permits, consents and authorizations to grant SAASTIFY SYSTEMS PRIVATE LIMITED this right, provided that for the purposes of this clause (ii), SAASTIFY SYSTEMS PRIVATE LIMITED will ensure that such data is used on an aggregated and anonymized basis, and shall not identify the Customer or its actual or prospective customers, or disclose any Customer Confidential Information in violation of its obligations hereunder.
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· 2.11. The Customer shall not:
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o a. license, sub-license, rent, loan, sell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Platform or Services, except as necessary to use the Platform and Services as permitted under this Agreement;
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o b. modify, reverse engineer, decompile, disassemble, copy, make derivative works based on the Platform or any part thereof (including the Platform’s software), or otherwise derive or attempt to derive the source code of the Platform’s software, or access the Platform for any such purposes, use the Platform and Services in contravention of the terms of this Agreement; or
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o c. remove or modify any trademarks, trade names, service marks, service names, logos or brands, or copyright or other proprietary notices on the Platform or Platform’s software or add any other markings or notices to the Platform or Platform’s software.
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3. PAYMENT OF FEES:
· 3.1. The Customer shall pay Fees, upon receipt of invoice or notification from SAASTIFY SYSTEMS PRIVATE LIMITED, through an agreed mode of payment within the timelines set out in the Sales Order Form. In case of delay or non-payment of Fees, the Customer shall be liable to pay interest at the rate of 2% (two per cent) per month on the unpaid amounts from the due date till the date on which the entire amount is paid. Additionally, SAASTIFY SYSTEMS PRIVATE LIMITED may suspend its obligations under this Agreement till all undisputed amounts due from the Customer are paid. Any additional payment terms between SAASTIFY SYSTEMS PRIVATE LIMITED and Customer shall be agreed to in writing and set forth in an invoice, notification, or any other applicable document.
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· 3.2. Fees for Services are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use, or withholding taxes assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its sales orders and other applicable documents. If SAASTIFY SYSTEMS PRIVATE LIMITED is obligated by law to pay or collect Taxes for which Customer is responsible, SAASTIFY SYSTEMS PRIVATE LIMITED will invoice Customer and Customer will pay the entire amount set out in such invoice within the applicable timelines unless the Customer can provide a valid tax exemption certificate authorized by the appropriate taxing authority. Customer will provide SAASTIFY SYSTEMS PRIVATE LIMITED any information SAASTIFY SYSTEMS PRIVATE LIMITED reasonably requests to determine whether SAASTIFY SYSTEMS PRIVATE LIMITED is obligated to collect Taxes. SAASTIFY SYSTEMS PRIVATE LIMITED is solely responsible for taxes assessable against its income, property, and employees.
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4. INTELLECTUAL PROPERTY, CONFIDENTIALITY AND WARRANTIES:
· 4.1. All Intellectual Property Rights in and title to the Platform, logo and any other software used in the provision of the Services by SAASTIFY SYSTEMS PRIVATE LIMITED, shall remain with and owned by SAASTIFY SYSTEMS PRIVATE LIMITED. All Intellectual Property Rights in and title to the customer’s website (as set out in the Sales Order Form) and data contained therein shall remain with and owned by the Customer. It is expressly understood by the Parties that this Agreement does not transfer any ownership or proprietary interest in any portion of the Platform or Services provided pursuant to this Agreement or to the customer’s website (as set out in the Sales Order Form) or data contained therein.
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· 4.2. Any information including but not limited to proprietary or internal information related to the current, future and proposed products or services of the Parties, financial information, process/flow charts, business models, information related to customers, investors, employees, business and contractual relationships, business forecasts, sales and merchandising, marketing plans, information the Parties provide regarding third parties, that a receiving Party knows or has reason to know is confidential or proprietary (due to the nature of disclosure) is “Confidential Information”. The Parties understand that all Confidential Information exchanged between the Parties in connection with the Services, after the Contract Date, shall be received in strict confidence and will be used only for purposes of this Agreement. Any disclosure of Confidential Information to any other persons shall be subject to the condition that (i) such persons are bound by similar obligations of use and confidentiality as under this Agreement, and (ii) the disclosure is necessary for the exercise of its rights and performance of its obligations under this Agreement.
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· 4.3. The restrictions on disclosure shall not apply to information which was: (i) generally available to the public at the time of disclosure, or later available to the public other than through fault of the Customer or SAASTIFY SYSTEMS PRIVATE LIMITED; (ii) already known to the Customer or SAASTIFY SYSTEMS PRIVATE LIMITED prior to disclosure pursuant to this Agreement; (iii) obtained at any time lawfully from a third-party under circumstances permitting its use or disclosure to others; or (iv) required by law or court order to be disclosed;
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· 4.4. The terms of confidentiality and non-disclosure contained herein shall expire two (2) years from the date of the termination of this Agreement.
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· 4.5. The Parties represent and warrant that they have the authority to enter into this Agreement.
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· 4.6. SAASTIFY SYSTEMS PRIVATE LIMITED represents and warrants that (i) it either owns fully and outright its intellectual property for performing the Services, and/or possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to perform its obligations hereunder and to grant the licenses granted by it under this Agreement; and (ii) the Services, as used by the Customer in accordance with this Agreement, do not, and shall not, infringe, violate or misappropriate any third party’s rights.
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5. TERM AND TERMINATION:
· 5.1. This Agreement shall commence on the Contract Date and shall continue to remain in full force and effect unless terminated by the Parties in accordance with this Agreement, or on the end date of the Agreement as per the Sales Order Form, as applicable ("Term”). This Agreement may be terminated (i) by the mutual consent of both Parties in writing; (ii) by the Customer by providing SAASTIFY SYSTEMS PRIVATE LIMITED at least ninety (90) days’ advance written notice of its intent not to renew the Contract prior to the expiration of the then-current Term; or (iii) by a non-breaching Party for breach of the provisions of this Agreement by the other Party, which breach is not rectified by the breaching Party within 30 (thirty) days of being notified of such breach; (iv) by the Customer due to SAASTIFY SYSTEMS PRIVATE LIMITED’s failure to meet the Service Level Agreement for Services Availability for 3 (three) consecutive months, notwithstanding anything in this Agreement, or (v) by SAASTIFY SYSTEMS PRIVATE LIMITED if the Customer (a) becomes the subject of a proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors to the extent permitted by applicable laws or governmental regulations, (b) goes out of business or (c) ceases its operations.
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· 5.2. A Party will not be liable to the other Party for any delay or failure to perform any of its obligations under this Agreement due to any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, failures in telecommunications, internet, internet service provider or hosting facilities, power shortages and denial of service attacks (each, a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the Party claiming the Force Majeure Event will promptly give notice to the other Party and use its commercially reasonable efforts to perform its obligations under this Agreement despite the Force Majeure Event. The foregoing notwithstanding, if the Party claiming the Force Majeure Event is unable to deliver its obligations for 30 (thirty) consecutive days, the other Party shall have the right, at its sole option, to terminate this Agreement.
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· 5.3. Upon termination of this Agreement based on Customer’s uncured breach (following any applicable cure period), Customer will pay SAASTIFY SYSTEMS PRIVATE LIMITED any unpaid amounts that would have been owed to SAASTIFY SYSTEMS PRIVATE LIMITED for the remainder of the then-current Term, without limiting SAASTIFY SYSTEMS PRIVATE LIMITED’s other rights and remedies. Upon termination of this Agreement based on SAASTIFY SYSTEMS PRIVATE LIMITED’s uncured breach (following any applicable cure period), SAASTIFY SYSTEMS PRIVATE LIMITED will refund Customer any amounts pre-paid pursuant to this Agreement on a pro rata basis for the remainder of the then-current Term for Services that have not been provided by SAASTIFY SYSTEMS PRIVATE LIMITED.
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· 5.4. On expiration or termination of this Agreement, the licenses granted by SAASTIFY SYSTEMS PRIVATE LIMITED to Customer pursuant to this Agreement will cease immediately, Customer will immediately cease all use of the Platform and Services, and each Party shall delete or destroy (or, at the disclosing Party’s request, return) all Confidential Information in its possession or control.
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6. DISCLAIMER:
· THE ACCESS TO AND USE OF THE PLATFORM AND SERVICES IS PROVIDED ON AN “AS IS” BASIS, AND ANY IMPLIED WARRANTY, INCLUDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW BY SAASTIFY SYSTEMS PRIVATE LIMITED. SAASTIFY SYSTEMS PRIVATE LIMITED DOES NOT WARRANT OR GUARANTEE THAT THE PLATFORM OR THE SERVICES WILL MEET CUSTOMER’S PERFORMANCE REQUIREMENTS, INCLUDING ANY OUTCOMES OR RESULTS.
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7. INDEMNITY AND LIMITATION OF LIABILITY:
· 7.1. Notwithstanding Clause 7.4, Customer shall defend SAASTIFY SYSTEMS PRIVATE LIMITED and its officers, directors, employees, agents, successors, and assigns (each, a "SAASTIFY SYSTEMS PRIVATE LIMITED Indemnitee") from and against any and all allegations, action, suit or proceeding (“Claim”), and shall indemnify and hold harmless SAASTIFY SYSTEMS PRIVATE LIMITED Indemnitees from and against any loss, damages, costs, charges, expenses, and other liabilities incurred or awarded in such Claim, that are caused by, arise out of or relate to any: (i) allegation that data provided by Customer to SAASTIFY SYSTEMS PRIVATE LIMITED or any other materials, information documents, software, content, or technology provided by or on behalf of Customer infringe a third party’s Intellectual Property Rights; (ii) allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants, or obligations under this Agreement; or (iii) gross negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, or any third party on behalf of Customer in connection with this Agreement.
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· 7.2. SAASTIFY SYSTEMS PRIVATE LIMITED shall defend Customer from and against any and all Claims and shall indemnify and hold harmless the Customer from and against any loss, damages, costs, charges, expenses, and other liabilities incurred or awarded in such Claim, that are caused by any breach or default by SAASTIFY SYSTEMS PRIVATE LIMITED under this Agreement; provided, however, that this Clause 7.2 shall not cover intellectual property infringement, violation, or misappropriation, which is governed by Clause 7.3.
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· 7.3. SAASTIFY SYSTEMS PRIVATE LIMITED shall defend Customer from and against any proven third-party Claim brought against Customer so far as it is based on a claim that the Platform or Services directly infringe any patent or other third-party intellectual property right. Customer shall promptly notify SAASTIFY SYSTEMS PRIVATE LIMITED of such Claim in writing and shall give SAASTIFY SYSTEMS PRIVATE LIMITED authority, sole control, and assistance at SAASTIFY SYSTEMS PRIVATE LIMITED’s expense for defense and settlement of same. If SAASTIFY SYSTEMS PRIVATE LIMITED reasonably believes that Customer’s use of the Platform is likely to be enjoined, or if the Platform is held to infringe such patent or other intellectual property right and all use of the Platform by Customer is thereby enjoined, SAASTIFY SYSTEMS PRIVATE LIMITED shall, at its expense and at its sole option, (i) procure for Customer the right to continue using the Platform, (ii) replace the Platform with other non-infringing services or software of substantially equivalent functionality or (iii) modify the Platform so that there is no infringement, provided that such modified services or software provides substantially equivalent functionality. If, in SAASTIFY SYSTEMS PRIVATE LIMITED’s reasonable opinion, the remedies above are infeasible or commercially impracticable, SAASTIFY SYSTEMS PRIVATE LIMITED may, in its sole discretion, terminate this Agreement and SAASTIFY SYSTEMS PRIVATE LIMITED shall refund Customer a pro-rated amount of the applicable Fees pre-paid by Customer under this Agreement. Customer shall not settle any matter without the prior written approval of SAASTIFY SYSTEMS PRIVATE LIMITED. The indemnification obligation in this Clause 7.3 will not apply to the extent the infringement is caused by any of the following: (i) the Platform is modified in an unauthorized manner by Customer or its users and such infringement would not have occurred but for such modification, or (ii) the Platform is combined by Customer or its users with other software, hardware, application (including customer applications or systems), data or process not authorized by SAASTIFY SYSTEMS PRIVATE LIMITED and such infringement would not have occurred but for such combination. THIS CLAUSE 7.3 SETS FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND SAASTIFY SYSTEMS PRIVATE LIMITED’S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT, VIOLATION OR MISAPPROPRIATION.
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· 7.4. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR CUSTOMER’S MISAPPROPRIATION OF SAASTIFY SYSTEMS PRIVATE LIMITED’S INTELLECTUAL PROPERTY RIGHTS, EACH PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID AND PAYABLE BY CUSTOMER FOR THE PLATFORM FOR THE 12 MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. FOR CLARITY, THE ABOVE LIMITATIONS SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER CLAUSE 3. The limitations of liability and exclusions of damages in this Clause 7.4 form an essential basis of the bargain between the Parties and shall survive and apply even if any remedy specified in this Agreement is found to have failed its essential purpose.
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· 7.5. The Customer represents that it accepts sole and complete responsibility for: (a) the selection of the Services to achieve Customer’s intended results; (b) use of the Services; (c) the results obtained from Services; and (d) the terms of any contracts between Customer and authorized representative. SAASTIFY SYSTEMS PRIVATE LIMITED does not warrant that the Customer’s use of the Services will be uninterrupted or error-free.
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8. Covenant of Direct Engagement:
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· Customer covenants and represents that it has approached Saastify Systems Private Limited directly for the purpose of entering into this Agreement and obtaining the services mentioned in this agreement. Customer further affirms that no third party, intermediary, or agent has been involved in the negotiation, facilitation, or arrangement of this Agreement.
Customer acknowledges that the terms, conditions, and pricing agreed upon in this Agreement are a result of direct negotiations between Customer and Saastify Systems Private Limited. Any representations made by Customer to the contrary shall be deemed null and void.
Customer agrees to promptly notify Saastify Systems Private Limited in writing of any third-party involvement or representation related to this Agreement, and understands that such involvement may result in the termination or modification of this Agreement at the sole discretion of Saastify Systems Private Limited. This covenant is an integral part of the Agreement and is binding upon Customer, its successors, and assigns.
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9. MISCELLANEOUS:
·The headings provided for the clauses herein are included solely for convenience and are not to be considered part of this Agreement or as a restriction of the scope of the specific clause to which the title refers. Clauses 2.9, 2.11, 3, 4, 5, 6, 7, and this Clause 8 shall remain effective after termination. This Agreement shall be governed by and interpreted and enforced in accordance with the laws of India, with judicial jurisdiction in Bangalore, Karnataka. The Parties shall make every effort to settle any dispute regarding this Agreement in good faith within thirty (30) days of one Party raising a controversy or claim (the “Dispute”) with the other Party. The Parties agree that any unresolved Dispute shall be resolved through mandatory and binding arbitration administered by an arbitration institution agreed upon by both Parties in accordance with Indian arbitration laws, and the arbitrator's decision may be enforced in any court with jurisdiction. The Parties hereby waive any right to have the Dispute decided by a jury or judge. The arbitration shall take place in Bangalore, Karnataka, and shall be conducted in English. SAASTIFY SYSTEMS PRIVATE LIMITED may recover its expenses (including reasonable attorneys’ fees) incurred in connection with the dispute and any appeal from the Customer. This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements. This Agreement will be executed in two counterparts, each of which shall be considered one and the same instrument. SAASTIFY SYSTEMS PRIVATE LIMITED reserves the right to modify the terms of this Agreement at any time and at its sole discretion, provided that SAASTIFY SYSTEMS PRIVATE LIMITED notifies such modifications on its Platform or through any other means it deems appropriate (“Notice”). The Customer's continued use of SAASTIFY SYSTEMS PRIVATE LIMITED’s Platform constitutes acceptance of such changes. The changes shall be effective from the date they are posted. If any provision of this Agreement is deemed unenforceable, the remainder of the Agreement shall be enforced to the fullest extent permissible. This Agreement shall bind each Party’s successors and assigns. In the event of any conflict or inconsistency between the sales order form, all statements of work, Service Plans, SLA, and any other agreement related to the Services entered into by SAASTIFY SYSTEMS PRIVATE LIMITED and the Customer and the terms of this Agreement, the terms provided herein shall prevail. Notwithstanding anything in this Agreement, the Customer shall not transfer or assign any of its rights or obligations under this Agreement without the prior written consent of SAASTIFY SYSTEMS PRIVATE LIMITED. SAASTIFY SYSTEMS PRIVATE LIMITED may freely transfer or assign any of its rights or obligations under this Agreement without the prior written consent of the Customer. Failure or delay by either Party to exercise or enforce any right under this Agreement does not constitute a waiver of such right. Neither Party is the partner, agent, or representative of the other Party under this Agreement. All notices and communications under this Agreement shall be in writing and in English and shall be deemed given if personally delivered or mailed by prepaid courier with electronic copies to the addresses set forth in this Agreement.