SOFTWARE AS A SERVICE AGREEMENT
Important-read this software as a service agreement (this “agreement”) carefully before continuing registration. By clicking the "i accept" button or otherwise accepting this agreement through an ordering document that incorporates this agreement (the “ordering document”), you agree to follow and be bound by the terms and conditions of this agreement and terms of service. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to the terms and conditions of this agreement and, in such event, “you” and “your” as used in this agreement shall refer to such entity, if you do not have such authority, or if you do not agree to all the terms and conditions in this agreement, you must select the "i decline" button and may not use the services.
"You" and "your" refers to the individual or entity that has ordered software as a service from Waffor Retail Solutions Private Limited("Waffor") by executing this software as a service agreement (collectively, the "agreement"). Software as a service consists of system administration, system management, and system monitoring activities that Waffor performs for Customer Management System (CMS), and includes the right to use the CMS and avail support services for CMS (collectively, the "services"). The term "program documentation" refers to the program user manual as well as any other materials provided byWaffor as part of the services. The term "CMS" refers to the software products owned or distributed by Waffor to which Waffor grants you access as part of the services, including program documentation, and any program updates provided as part of the services. The term "users" shall mean those individuals authorized by you or on your behalf to use the services, as defined in the ordering document. The term "your data" refers to the data provided by you that resides in your services environment. The term "ordering document" refers to the ordering document signed by the parties that accompanies and incorporates this software as a service agreement, including the services policies and any other document referenced or incorporated into the ordering document.
Applicability of Agreement
This software as a service agreement is valid for the ordering document which this agreement accompanies.
Upon Waffor's acceptance of your order and for the duration of the services term defined in the ordering document, you have the nonexclusive, non -assignable, royalty free, worldwide limited right to use the services solely for your internal business operations and subject to the terms of the agreement. You may allow your users to use the services for this purpose and you are responsible for your users' compliance with the agreement. The services are provided as described in, and subject to, the services policies referenced in the ordering document.
You acknowledge that Waffor has no delivery obligation and will not ship copies of the Waffor programs to you as part of the services. You agree that you do not acquire under the agreement any license to use the Waffor programs specified in the ordering document in excess of the scope and/or duration of the services. Upon the end of the agreement or the services thereunder, your right to access or use the Waffor programs specified in the ordering document and the services shall terminate.
Ownership and Restrictions
You retain all ownership and intellectual property rights in and to your data. Waffor or its licensors retain all ownership and intellectual property rights to the services and CMS. Waffor retains all ownership and intellectual property rights to anything developed and delivered under the agreement.
You may not:
- Make the programs or materials resulting from the services available in any manner to any third party for use in the third party's business operations (unless such access is expressly permitted for the specific program license or materials from the services you have acquired);
- Modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to Waffor;
- Disclose results of any services or program benchmark tests without Waffor's prior written consent;
- License, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, or otherwise commercially exploit or make the services, CMS or materials available, to any third party other than, as expressly permitted under the terms of the agreement.
The rights granted to you under the agreement are also conditioned on the following:
- Except as expressly provided herein, no part of the services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means;
- You agree to make every reasonable effort to prevent unauthorized third parties from accessing the services.
Warranties, Disclaimers and Exclusive Remedies
Waffor does not guarantee that the services will be performed error-free or uninterrupted, or that waffor will correct all services errors. You acknowledge that waffor does not control the transfer of data over communications facilities, including the internet, and that the service may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. Waffor is not responsible for any delays, delivery failures, or other damage resulting from such problems to the extent not prohibited by law, there are no other express or implied warranties or conditions including for hardware, systems, networks or environments or for merchantability, satisfactory quality and fitness for a particular purpose.
If a third party makes a claim against Waffor ("Recipient"), that any information, design, specification, instruction, software, service, data, or material ("Material") furnished by you ("Provider") and used by the Recipient infringes its intellectual property rights, the Provider, at its sole cost and expense, willdefend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following:
If Waffor believes or it is determined that any of the Services may have violated a third party's intellectual property rights, Waffor may choose to either modify the Services to be non -infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, Waffor may end the license for, and require return of, the applicable Services and refund any unused, prepaid fees for such Services. If such return materially affects Waffor's ability to meet its obligations under the relevant order, then Waffor may, at its option and upon 30 days prior written notice, terminate the order. Waffor will not indemnify you if you alter the Services or uses it outside the scope of use identified in Waffor's user documentation or services policies or if you use a version of the Services which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Services which was provided to you. Waffor will not indemnify you to the extent that an infringement claim is based upon any information, design, specification, instruction, software, data, or services not furnished by WafforWaffor will not indemnify you to the extent that an infringement claim is based upon the combination of any Services with any products or services not provided by Waffor. Waffor will not indemnify you for infringement caused by your actions against any third party if the services as delivered to you and used in accordance with the terms of the agreement would not otherwise infringe any third party intellectual property rights. Waffor will not indemnify you for any infringement claim that is based on: (1) a patent that you were made aware of prior to the effective date of the agreement (pursuant to a claim, demand, or notice); or (2) your actions prior to the effective date of the agreement. This section provides the parties' exclusive remedy for any infringement claims or damages.
Support services provided under the agreement are specified in the services policies of Waffor which may be revised on Waffor’s sole discretion.
End of Agreement
Services provided under this software as a service agreement shall be provided for the period defined in the ordering document unless earlier terminated in accordance with the agreement. The term of the services and any renewal years are collectively defined as the "services term." At the end of the services term, all rights to access or use the services, including the Waffor programs listed in the ordering document, shall end.
If either of us breaches a material term of the agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the applicable ordering document under which the breach occurred. If Waffor ends the ordering document as specified in the preceding sentence, you must pay within 30 days all amounts which have accrued prior to such end, as well as all sums remaining unpaid for the services ordered under the agreement plus related taxes and expenses. If Waffor ends the services under the Indemnification section, you must pay within 30 days all amounts remaining unpaid for services plus related taxes and expenses. The nonbreaching party may agree in its sole discretion to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if you are in default under the agreement, you may not use the services ordered. You further agree that if you have used anWaffor Financing Division contract to pay for the fees due under an order and you are in default under that contract, you may not use the services that are subject to such contract.
In addition, Waffor may immediately suspend your password, account, and access to or use of the services (i) if you fail to pay Waffor as required under the agreement and do not cure within the first ten days of the 30 day cure period, or (ii) if you violate any provision within sections C, D, N or R of this software as a service agreement. Waffor may terminate the services hereunder if any of the foregoing is not cured within 30 days after Waffor's initial notice thereof. Any suspension by Waffor of the services under this paragraph shall not excuse you from your obligation to make payment(s) under the agreement.
At your request, and for a period of up to 30 days after the termination of the applicable ordering document, Waffor may permit you to access the services solely to the extent necessary for you to retrieve a file of your data then in the services environment.
You agree and acknowledge that Waffor has no obligation to retain your data and that your data may be irretrievably deleted after 60 days following the termination of the ordering document.
Provisions that survive termination or expiration of the agreement are those relating to limitation of liability, infringement indemnity, payment, and others which by their nature are intended to survive.
Fees and Taxes
You agree to pay for all services ordered as set forth in the applicable ordering document. All fees due under the agreement are non-cancelable and the sums paid nonrefundable. You agree to pay any sales, value-added or other similar taxes imposed by applicable law that Waffor must pay based on the services you ordered, except for taxes based on Waffor's income. You will reimburse Waffor for reasonable expenses related to providing any on -site portion of the services. Fees for services listed in an ordering document are exclusive of taxes and expenses. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice.
By virtue of the agreement, the parties may have access to information that is confidential to one another ("confidential information"). We each agree to disclose only information that is required for the performance of obligations under the agreement. Confidential information shall be limited to the terms and pricing under the agreement, your data residing in the services environment, and all information clearly identified as confidential at the time of disclosure.
A party's confidential information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
We each agree to hold each other's confidential information in confidence for a period of three years from the date of disclosure. Also, we each agree to disclose confidential information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under the agreement. Waffor will protect the confidentiality of your data residing in the services environment in accordance with the Waffor security practices specified in the services policies referenced in the ordering document. Nothing shall prevent either party from disclosing the terms or pricing under the agreement in any legal proceeding arising from or in connection with the agreement or from disclosing the confidential information to a governmental entity as required by law.
You agree that the agreement (including the information which is incorporated into the agreement by written reference (including reference to information contained in a URL or referenced policy and terms of service), is the complete agreement for the services ordered by you, and that the agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such services. If any term of the agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of the agreement. It is expressly agreed that the terms of the agreement, including any Waffor ordering document, shall supersede the terms in any purchase order or other non-Waffor document and no terms included in any such purchase order or other non-Waffor document shall apply to the services ordered.
Limitation of Liability
Neither party shall be liable for any indirect, incidental, special, punitive, or consequential damages, or any loss of revenue or profits (excluding fees under the agreement), data, or data use. Waffor’s maximum liability for any damages arising out of or related to this software as a service agreement or your order, whether in contract or tort, or otherwise, shall in no event exceed, in the aggregate, the total amounts actually paid to waffor for the services under the order that is the subject of the claim in the six (6) month period immediately preceding the event giving rise to such claim. Any damage in your favor against waffor shall be reduced by any refund or credit received by you under the agreement and any such refund and credit shall apply towards the limitation of liability.
- Waffor is an independent contractor and we agree that no partnership, joint venture, or agency relationship exists between us. We each will be responsible for paying our own employees, including employment related taxes and insurance.
- You shall obtain at your sole expense any rights and consents from third parties necessary for Waffor and its subcontractors to perform the services under the agreement.
- The agreement is governed by the substantive and procedural laws of India and you and Waffor agree to submit to the exclusive jurisdiction of, and venue in, the courts in Chennai in any dispute arising out of or relating to the agreement.
- Waffor may audit your use of the services. You agree to cooperate with Waffor's audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with your normal business operations. You agree to pay within 30 days of written notification any fees applicable to your use of the services in excess of your rights. If you do not pay, Waffor can end your services and/or the agreement. You agree that Waffor shall not be responsible for any of your costs incurred in cooperating with the audit.
Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of us may cancel unperformed services upon written notice. This section does not excuse either party's obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the services.
Restrictions on Use of the Services
You agree not to use or permit use of the services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, "junk mail", "spam" or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to Waffor under the agreement, Waffor reserves the right to remove or disable access to any material that violates the foregoing restrictions. Waffor shall have no liability to you in the event that Waffor takes such action. You agree to defend and indemnify Waffor against any claim arising out of a violation of your obligations under this section.