Terms and Conditions

SOFTWARE AS A SERVICE AGREEMENT

THIS SOFTWARE AS A SERVICE AGREEMENT (“AGREEMENT”) IS A LEGAL, BINDING AGREEMENT BETWEEN FOURTH DIMENSION SOFTWARE SYSTEMS (INDIA) PVT. LTD(HEREINAFTER REFERRED TO AS “ FDSS” COMPANY” “WE”, “US” OR “OUR”)  AND ANY PERSON, COMPANY OR BUSINESS ENTITY  EXPRESSLY ACCEPTING AND AGREEING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND AVAILING THE SERVICES (As defined hereinbelow) OF FDSS VIDE THIS AGREEMENT (HEREINAFTER REFERRED TO AS THE “CUSTOMER” “YOU” OR “YOUR”)

FDSS is engaged in the business of product development and research and has developed a proprietary software product designed to provide information technology solutions and business management services (“Software”) morefully described in the Documentation (As defined hereinafter). The Customer having assessed and satisfied is of the opinion that the Software will suit its business requirements. The Customer is desirous of obtaining a license of the Software and subscribing to the Services (As defined hereunder) provided by FDSS.

This Agreement governs access and/or Your use of:

  1. [●].com
  2. our mobile and desktop apps;
  3. all related widgets, tools, applications, data, software, APIs ; and
  4. Services (As defined hereinbelow)

IN ORDER TO USE THE SOFTWARE AND/OR AVAIL OF THE SERVICES, YOU MUST AGREE TO THESE TERMS AND CONDITIONS.  IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS IN THEIR ENTIRETY, YOU ARE NOT ENTITLED TO USE THE SOFTWARE OR AVAIL THE SERVICES PROVIDED BY US

ACCEPTANCE AND GOVERNANCE OF TERMS OF THE AGREEMENT

You hereby expressly acknowledge and agree to be bound by the terms, conditions and documents incorporated by reference in this Agreement, as may be amended from time to time in the manner as set forth herein below. By using the Software and Services, You represent and warrant that:

  1. You are at least 18 years old;
  2. You have the lawful authority and capacity to contract and be bound by this Agreement;
  3. If You are accepting this Agreement on behalf of a company, limited liability partnership or other legal entity, You have the authority to bind such entity to this Agreement and, in such event, “You” and “Your” as used in this Agreement shall refer to such entity; and
  4. You will comply with all applicable laws and regulations.

This Agreement is subject to change at any time without notice. To make sure You are aware of any changes, please review this Agreement periodically. Continued use of the Software or Services after any such changes shall constitute Your consent to such changes. FDSS and You shall for the purpose of this Agreement be individually referred to as “Party” and collectively as “Parties.

This Agreement published in compliance of, and is governed by the provisions of Indian law, including but limited to:

  1. the Indian Contract Act, 1872;
  2. the (Indian) Information Technology Act, 2000 and the rules, regulations, guidelines and clarifications framed thereunder, including the (Indian) Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Information) Rules, 2011 and
  3. The (Indian) Information Technology (Intermediaries Guidelines) Rules, 2011.
     
  4. DEFINITIONS
    1.  “Additional Subscription Term” shall refer to the additional terms after the Initial Subscription Term as set out in any additional Order Forms;
    2.  “Agreement” means this Agreement, the Order Forms, and includes the preamble, recitals, annexures,  schedules and exhibits referenced in it, and any amendments made hereto and thereto in accordance with the provisions hereof;
    3.  “Applicable Law” means any applicable national, state, local or other law, statute, regulations, rules, by laws, ordinances, constitution, principles of common law and includes notifications, guidelines, policies, directions, directives, judgment, decree and orders of any statutory authority, court, tribunal or recognized stock exchange, and having the force of law;
    4. Billing Period” shall refer to the computation of the period for the payment of Fees by the Customer calculated on a (a) quarterly  (b) half yearly or (c) yearly basis as set out in the Order Form;
    5.  “Confidential Information” means confidential and proprietary information concerning any documentation, trade secrets, processes, data and know how, software, records, drawings, graphs, formulae, program files, flowcharts, samples, techniques, source and object code, standards, specifications, improvements, inventions, techniques, customer information, accounting data, statistical data, research projects, development and marketing plans, strategies, forecasts, programs, and customer lists, electronic data and any other means by which the confidential and proprietary information may be stored or reproduced. Confidential Information of FDSS includes the Documentation and the Software;
    6.  “Copyrights” means: (a) all copyrights whether they are registered, unregistered or pending registration, in India and/ or the rest of the world, that are owned by, used by or applied for, (b) all common law rights in the words and names in India or anywhere else in the world; and (c) all rights to bring an action for passing off, infringement or any other action in respect thereto;
    7.   “Customer Data” shall mean the data inputed/provided by the Customer and/or Users to FDSS for the purpose of using the Services or facilitating the Customer’s use of the Services;
    8. Device” means a device, usually electronic, that processes data according to a set of instructions, which shall include but not be limited to smartphones and tablets.
    9.  “Documentationshall mean the documents made available to the Customer by FDSS which sets out a description of the Services and the user instructions including training, help and explanatory materials that assist Customers in using the Services vide the Software as provided in [●];
    10.   “Fees” shall mean the amounts payable by the Customer to as set out in the Order Forms, being the services fees, the customization fees and/or any other fees determined from time to time;
    11.  “Initial Subscription Term” shall mean the initial term of this Agreement as set out in an Order Form;
    12.  “Intellectual Property” means all rights, title and interest in, under or in respect of the following arising under Applicable Law, whether or not filed, perfected, registered or recorded:
      1. all Copyrights, designs, and copyrightable works;
      2. all Trademarks, service mark, trade name, service name, trade dress, brand names, business and product names, logos, slogans;
      3. all patents and inventions;
      4. domain names;
      5. all know-how, Confidential Information, database including customer and supplier database, data collections, technology, technical data, trade secrets, manufacturing and service processes, systems and techniques, protocols, research and development information (including all research and development data, experimental and project plans and pipeline product information), formulas, business and marketing plans, sales network, service network, industrial models, technical drawings, statistical models, programs including all source code, object code, firmware, development tools, files, and other documentation, and other proprietary documentation and information of every kind;
      6. all documents of any of the foregoing (in whatever form or medium);
      7. all upgrades, adaptations (in any languages) and development of the foregoing;
      8. all applications made for registration of any of the above; and
      9. all common law rights relating to the above;
         
    13.  “Order Form” means the document executed by the Customer in favour of FDSS for placing orders for Services from time to time pursuant to this Agreement setting forth the details of subscription to the Services, [as set out in  [●] ] including any addenda and supplements thereto;
    14.  “Services” shall mean the services provided by FDSS to the Customer as described in the Documentation and specifically subscribed by the Customer as set out in an Order Form;
    15.   "Software" shall mean the proprietary software, provided by FDSS to the Customer as part of the Services pursuant to and subject to the terms of this Agreement accessed by the Customer through a server, as specifically mentioned in the Order Form;
    16.   “Subscription Date” shall refer to the commencement date of the Services as set out in each applicable Order Form;
    17. “Subscription Term” shall refer to the aggregate of the Initial Subscription Term and the Additional Subscription Terms;
    18. Trade Marks” shall mean (a) all trademarks and service marks, whether they are registered, unregistered or pending registration, in India and/ or the rest of the world, that are owned by, used by or applied for, and includes the trademark and service marks in the representation, form and manner therein, (b) all common law rights in the words and names in India or anywhere else in the world; and (c) all rights to bring an action for passing off, infringement or any other action in respect thereto;
    19. Users” shall mean individuals who are authorized by the Customer to use the Services and Documentation. Users shall include but are not limited to Customer’s employees, consultants, contractors and agents, and any third parties having access to the Services; and
    20. “Upgrades” means new versions of, and updates to, the Software and/or the Services, whether for the purpose of fixing an error, bug or other issue in the Software and/or Services or enhancing the functionality of the Software and/or Services.

 

  1. SERVICES
    1.   Based on the representations, warranties and indemnities provided by the Customer, FDSS has agreed to undertake this engagement and provide the Services on the terms and conditions and in the manner as set forth in this Agreement.
    2.   Grant of Licence: For and in consideration of the Fees and subject to the terms and conditions as set out herein, FDSS grants to the Customer a limited, non-exclusive and non-transferrable right to permit the Customer and/ or Users to use the Software (including Services and the Documentation) during the Subscription Term solely for the Customer's internal business operations (“Licence”). Customer shall ensure that the Users shall not violate the terms of the Licence granted herein.
    3.   The term of the License granted herein shall be co-terminus with the Subscription Term and shall automatically be revoked upon termination of this Agreement in the manner as set forth in Clause 4.2 of this Agreement.
    4.   It is acknowledged that all rights, title and interest in the Software will remain the sole property of FDSS and that the Software is licensed to the Customer and not "sold" to the Customer.
    5.   During the Subscription Term and for a period of [●] ([●]) months thereafter, FDSS shall be entitled to display the name of the Customer as part of its clientele online or in promotional materials and mention Customer’s subscription to the Services under this Agreement including any feedback provided by the Customer on any medium (print, television, radio, video, terrestrial, website internet and such media which is in existence today or may be available in the future for advertising, display, exhibition, relay, broadcast, transmission, communication). For this limited purpose, the Customer hereby grants to FDSS a licence to use its Intellectual Property.
       
    6.    Provision of Services
      1. Subject to the terms and conditions of this Agreement, the Services shall be available to the Customer in accordance with the applicable Order Form(s) for the Subscription Term. Unless otherwise specified in the applicable Order Form: (i) Services are purchased as subscriptions and may be accessed only in accordance with the applicable Order Form(s); (ii) the Services may be mutually modified by the Parties through execution of applicable additional Order Form(s) during the Subscription Term.
         
      2. Modifications:
        1. Customer may request that changes be made to the Services (“Change Order”).
           
        2. If Customer requests a Change Order, FDSS will assess the modifications or changes proposed in respect of the Services. FDSS may in its sole discretion either accept or reject the Change Order.
           
        3. In the event FDSS can undertake such modifications or changes to the Services, it shall confirm the same in writing to the Customer alongwith the additional fees payable pursuant to the Change Order. The Customer upon acceptance of such additional fees shall execute an additional Order Form.
           
        4. Any modifications to the Services shall be subject to and governed by the terms and conditions as set out in this Agreement. Modifications to the Services will take effect only upon execution of the additional Order Form and from the ensuing month of receipt of request for such modification by FDSS. FDSS may accept and give effect to the modifications earlier, at its own discretion.
           
  2. Acceptance:  The features of the Software and Services shall be deemed to be accepted by the Customer unless the Customer notifies FDSS in writing of a material defect in the Software and/or Services within ten (10) business days from the Subscription Date (as set out in each Order Form). If material defects are identified in the Software and/or Services, FDSS shall have a reasonable opportunity to correct them, or provide a functional work around in accordance with the Agreement.
     
  3. The Customer shall maintain records in compliance with its obligations under this Agreement. FDSS shall have the right to appoint an auditor to inspect, audit and analyse such records with reasonable notice of at least 7 days to Customer during the Customer’s regular business hours to verify Customer’s compliance with the obligations under this Agreement.
     
  4. FDSS shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
    1. planned maintenance carried out during the maintenance schedule as carried out from time to time ; and
    2. unscheduled maintenance performed outside normal business hours, and FDSS shall undertake reasonable endeavours to give the Customer notice in advance
       
  5. Upgrades
    1. The Customer acknowledges that from time to time during the Subscription Term of this Agreement, FDSS may apply Upgrades to the Software and/or the Services and that such Upgrades may result in changes in the appearance and/or functionality of the Software and/or the Services.
       
    2. The Customer shall not be subject to any additional Subscription Fees arising out of the application of the Upgrades, save where:
      1. the Upgrade introduces new functionality to the Software and/or Services of which prior intimation will be provided to the Customer; and
      2. access to or use of the new functionality is generally chargeable to the Customer using the Software and/or Services.
         
  6. FEES & PAYMENT
    1. Subscription Fees:
      1. Based on the Services chosen by the Customer, FDSS shall charge Fees as set out in the Order Form which shall be paid upfront on the start date of the applicable Billing Period. Any additional fees leviable pursuant to a Change Order or otherwise shall be payable upfront by the Customer.
      2. FDSS may review the Fees anytime during the Subscription Term and may, within its sole discretion, increase the Fees or any component of the Fees by providing 10 days written notice of the same. In the event the Customer is not agreeable to the increase in the Fees after receiving such notice, either Party may terminate this Agreement on 10 days' written notice.
      3. The Fees are expressed in the currency set out in the Order Form and notwithstanding anything contained herein, the Fees payable by the Customer shall be exclusive of all applicable taxes. The Customer shall be required to make requisite tax deductions at source, if any, which will be paid directly to the appropriate statutory authorities by the Customer. The Customer shall promptly provide FDSS with the applicable certificates evidencing its payments of taxes deducted at source to the appropriate statutory authorities.
         
    2. Invoicing and Payment
      1. Initial Subscription Term: In respect of the Initial Subscription Term, the Customer shall pay the Fees simultaneous with the execution of the initial Order Form. 
      2. Additional Subscription Terms: The Fees for the Additional Subscription Terms, as and when due, will be notified vide the Software to the Customer (“Due Date”). The invoice will be mailed to the e-mail address provided by the Customer.
      3. Notwithstanding the right of FDSS to terminate this Agreement in the manner as set forth in Clause 4.2, in the event that the Customer delays in making payments due to FDSS beyond a period of 7 (Seven) days from the Due Date, the Customer agrees and acknowledges that FDSS shall be entitled to:
        1. levy a penal interest for such delayed payment at the rate of 18% p.a  for any period during which such default subsists; and/or
        2. suspend provision of the Services without any liability whatsoever for any period during which such default subsists.
           
  7. All payments to be made to FDSS shall be made in the name and manner as set out in the Order Form unless otherwise specifically authorized in writing by FDSS.
     
  8. TERM AND TERMINATION
    1. Term: This Agreement is effective from the Effective Date and shall remain in force until terminated in accordance with Clause 4.2 of this Agreement.
    2. Termination:
      1. By FDSS: FDSS shall be entitled to terminate this Agreement:
        1. by providing 30 (Thirty) days prior written notice of such termination; or
        2. at any time with immediate effect by notice in writing to the Customer, in the event that the Customer is in breach of any of the terms of this Agreement, and has failed to rectify such breach, within [●] days of notice of such breach by FDSS to the Customer; or
        3. with immediate effect by notice in writing to the Customer, in the event the Customer ceases to do business as a going concern without an assignment of its rights and obligations to a successor-in-interest; applies for or consents to the appointment of a trustee, receiver or other custodian, or makes an assignment for the benefit of creditors; becomes insolvent or generally fails to pay, or admits in writing its inability to pay, its debts as they become due; or, subject to Applicable Law, commences or has commenced against it any bankruptcy, reorganization, debt arrangement, or other case or proceeding under any bankruptcy or insolvency law, or any dissolution or liquidation proceedings and, if such case or proceeding is commenced against it, such case or proceeding is not dismissed within thirty (30) days thereafter.
           
  9. By Customer: The Customer shall be entitled to terminate this Agreement by providing 30 (Thirty) days prior written notice of such termination.
  10. FDSS shall be entitled to terminate this Agreement upon the occurrence of a Force Majeure Event (as defined hereinafter) by providing notice as set forth in Clause 10.2 of this Agreement.
     
  11. Consequences of Termination
    1. In the event that the Agreement is terminated in the manner as set forth hereinabove, FDSS shall not be liable or be required to perform any obligation in any manner whatsoever from the effective date of such termination and the Licence granted under this Agreement shall stand terminated effective immediately. In the event this Agreement is terminated without cause by FDSS pursuant to Clause 4.2.1 (a), FDSS may in its sole discretion refund the pro-rata Fees for the period for which Services have not been rendered.
    2. Notwithstanding the termination of this Agreement, the Customer shall be liable to make all payments due to FDSS (including any penalties for default) which have accrued prior to the effective date of termination of this Agreement.
    3. Upon termination or expiration of the Agreement, FDSS shall make a final backup of Customer Data and provide the backup media to Customer at actual costs of duplication.
       
  12. REPRESENTATIONS AND WARRANTIES
  1.  
    1. Each of the Parties hereby represent and warrant that:
      1. It has lawful authority and capacity to enter into this Agreement and is a company validly existing and in good standing under the laws of the country of its registration;
      2. It is duly authorized to enter into and perform this Agreement and is not barred by any contractual obligations to any third party from entering into and fulfilling its obligations hereunder;
      3. It holds all licenses, approvals and permits required by law to conduct its business;
      4. There is no contract of any nature, operative and in force, to which  it  is a party or under which it may be otherwise bound or subject, which contain any terms or provisions that in any manner restrict, limit, prevent, prohibit or make unlawful the execution of this Agreement.
         
    2. Customer’s Representations and Warranties
      1. The Customer agrees to follow and be bound by the terms and conditions of this Agreement;
      2. The Customer has assessed and satisfied itself that the Software and the Services will assist with its business requirements
      3. All information provided by the Customer to FDSS is and shall be true, correct and accurate in all respects;
      4. The Customer will not use the Services in a manner that:
        1. is prohibited by any Applicable Laws, or to facilitate the violation of any Applicable Laws;
        2. will disrupt a third parties’ similar use; or
        3. violate the Intellectual Property rights of any third party.
           
  2. The Customer will not violate or tamper with the security of the Software. Customer acknowledged and agrees that if FDSS has reasonable grounds to believe that Customer is utilizing the Services for any such illegal or disruptive purposes, FDSS shall be entitled to suspend the Services immediately with or without notice to the Customer. FDSS may terminate the Agreement as contemplated in Clause 4.2.1(b) if the Customer fails to adhere to the foregoing acceptable use standards.
     
  3. Customer shall procure the respective approvals from requisite persons and/or authorities including but not limited to its employees and customers from whom some of the data may be obtained to give effect to all the terms and conditions contained in this Agreement. Furthermore, Customer shall ensure that all such data are legitimate, valid and not unlawful, restrained under any jurisdiction.
     
  4. The Customer acknowledges that:
    1. Complex software is never wholly free from defects, errors and bugs, and FDSS gives no warranty or representation that the Software will be wholly free from such defects, errors and bugs;
    2. FDSS shall not be liable for any failure or default to provide Services on account of any failure or delay by the FDSS to configure its Devices for access to the Services. Any configuration or set up of the Devices for access to the Software and the Services shall be the sole responsibility of the Customer.
       
  5. FDSS Limited Performance Warranty: FDSS represents and warrants during the Subscription Period that the Service operates substantially in accordance with the applicable Documentation; provided, that (i) the Service is implemented and operated in accordance with all instructions supplied by FDSS under this Agreement, the Documentation or otherwise as intimated by FDSS; (ii) Customer notifies FDSS of any such defect within ten (10) calendar days after the appearance thereof; (iii) Customer has properly used all Upgrades made available with respect to the Service, and updates recommended by FDSS with respect to any third party software products that materially affect the performance of the Service; (iv) Customer has properly maintained all Devices, associated equipment, software and environmental conditions in accordance with applicable specifications and industry standards; (v) Customer has not introduced other equipment or software creating an adverse impact on the Service; and (vi) Customer has paid all amounts due hereunder and is not in default of any provision of this Agreement.
     
  6. CUSTOMER OBLIGATIONS
    1.   The Customer shall not, nor permit any Users or third party to: (a) copy the Software; (b) modify, translate or otherwise create derivative works of the Software; (c) disassemble, decompile or reverse engineer the object code or source code of the Software; (d) reproduce or copy in whole or part the Software; or (e) publish, or otherwise make available to any third party, any benchmark testing information or results.
       
    2.   Usage Rights: Customer is responsible for all activity occurring under its or its User’s accounts and in no event shall FDSS be liable for any liabilities arising therefrom.
       
    3. The Customer shall be solely responsible for:
      1. providing FDSS with all necessary co-operation in relation to this Agreement;
      2. providing FDSS with all necessary access to such information/data as may be required by FDSS for the purpose of rendering Services under this Agreement;
      3. intimating FDSS immediately when any of its Users cease to have the right/prohibited to access the Software and/or Services;
      4. procuring and maintaining its network connections and telecommunications links from its Devices to FDSS’ s data centres;
      5. all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
    4. The Customer shall not access, store, distribute or transmit any viruses, or any material during the course of its use of the Services that:
      1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
      2. facilitates illegal activity;
      3. depicts sexually explicit images;
      4. promotes unlawful violence;
      5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
      6. causes damage or injury to any person or property;

and FDSS reserves the right, with or without  notice to the Customer, to disable the Customer’s access to the Services.

  1. Customer is responsible for establishing designated points of contact to interface with FDSS.
     
  2. Data Preparation & Configuration: Customer will ensure that: (i) Customer Data is in proper format as specified by the Documentation; and (ii) the Users are familiar with the use and operation of the Services.
     
  3. The Customer shall be solely responsible for the content of communications transmitted by the Customer and/ or Users using the Services, and shall defend, indemnify and hold harmless FDSS from and against all liabilities and costs (including reasonable attorneys’ fees) arising from any and all third-party claims by any person based upon the content of any such communications.
     
  4. Customer shall use the Services only for lawful purposes. To the extent deemed necessary by Customer, Customer shall implement security procedures necessary to limit access to the Services to Customer’s authorized Users and shall maintain a procedure external to the Services for reconstruction of lost or altered files, data or programs.
  1. DISCLAIMER OF WARRANTIES
    1. FDSS hereby explicitly and specifically disclaims any and all warranties, whether written, oral, expressed or implied including, without limiting the generality of the foregoing, any warranty of merchantability or fitness for a particular purpose. Notwithstanding anything contained in this Agreement, FDSS does not warrant that the Software and/or Services:
      1. will be performed error-free or uninterrupted, or that FDSS will correct all Services errors;
      2. will operate in combination with the Customer’s Devices, or with any other hardware, software, systems or data not provided by FDSS;
      3. will meet the Customer’s requirements, specifications or expectations. Customer further acknowledges that FDSS does not control the transfer of data over communications facilities, including the internet, and that the Software and/or Services may be subject to limitations, delays, and other problems inherent in the use of such communications facilities;
         
    2.  FDSS is not responsible for any:
      1. delays, delivery failures, or other damage resulting from such problems;
      2. issues related to the performance, operation or security of the Software and/or Services that arise from the Customer’s Data, content, applications or third party content.
         
    3. FDSS does not make any representation or warranty regarding the reliability, accuracy, completeness, correctness, or usefulness of (i) information contained in the Software including, but not limited to any errors or omissions in Software, or for any loss or damage of any kind incurred as a result of the use of the Software posted, transmitted, linked from, or otherwise accessible through or made available via the Service; or (ii) third party content, and disclaims all liabilities arising from or related to the Software content and third party content.
       
  2. INDEMNITY       
    1. The Customer (“Indemnifying Party”) hereby agrees to, indemnify and keep indemnified, save, defend and hold harmless FDSS and its directors, shareholders, officers, representatives, employees, agents and lawful successors and assigns (each an “Indemnified Party”), from and against, any and all losses, liabilities, claims, damages, actions, costs and expenses (including reasonable legal fees) (collectively “Loss”) incurred or suffered by any Indemnified Party, which arise directly out of, result directly from or may be directly payable by virtue of: (a) a breach of any representation, warranty, covenant, obligation or undertaking of the Customer and/or User contained in this Agreement; and/or (b) any fraud, negligence or willful misconduct by any Indemnifying Party or User under this Agreement; and/or (c) breach of any Applicable Laws and/or (d) infringement of a third party’s Intellectual Property rights or Intellectual Property rights of FDSS.
       
    2. If an Indemnified Party becomes aware of any matter which gives rise to a Loss, the Indemnified Party shall promptly notify the Indemnifying Party of such Loss and require the Indemnifying Party to remedy the breach. Such notice shall specify, the relevant breach and the amount of Loss suffered by the Indemnified Party (to the extent known). The Indemnifying Party shall, within 30 (thirty) days from the receipt of such notice, remedy the breach. If the Indemnifying Party fails to remedy the breach within the aforesaid period, then the Indemnified Party shall be entitled to raise a claim for the Loss. It is hereby clarified that the obligation of the Indemnifying Parties to indemnify the Indemnified Parties pursuant to this Clause 8 shall arise immediately upon any Indemnified Party incurring any Loss.
       
    3. The payment of a claim for Loss made by an Indemnified Party shall be made in each case, within 30 (thirty) days from the date the claim for the Loss is made by the Indemnified Party under this Clause.
       
    4. The Indemnified Party shall be entitled, in its absolute discretion, to take such action as it may deem necessary to avoid, dispute, deny, resist, appeal, settle or contest any claim or proceeding (including without limitation, making claims, proceedings or counterclaims against Persons).
       
    5. The right of indemnity for Loss shall survive indefinitely and without limitation.
       
    6. The indemnification rights of the Indemnified Party shall be without prejudice to other rights and remedies that the Indemnified Party may have at law or in equity including without limitation to seek specific performance, rescission, restitution or other injunctive relief, none of which rights or remedies shall be affected or diminished thereby. 
       
  3. LIMITATION OF LIABILITY
    1. Notwithstanding anything contained elsewhere in this Agreement:
      1. In no event shall either Party be liable to the other for the cost of procurement of substitute product or services, loss of profits, or for any special, consequential, incidental, punitive or indirect damages on any theory of liability, whether in contract, tort (including without limitation negligence), strict liability or otherwise.
      2. Under no event, FDSS’s total liability arising out of or under this Agreement or for breach of this Agreement or in connection with the provision of access to the Software and/or any Services hereunder, whether in contract, tort (including without limitation negligence), strict liability or any other legal theory, shall exceed the total Subscription Fees received by FDSS from the Customer in the calendar month immediately preceding the date of Dispute or INR/USD [●] whichever is lesser. The limitations set forth in this section shall apply even the Parties have been advised of the possibility of such damage.
      3. FDSS or anyone else involved in administering, distributing or providing the Services further explicitly disclaims any and all liability for any mistakes, omissions, interruptions, deletion of files or email, errors, defects, viruses or other harmful, disabling code, circuitry or other technological means whose purpose is to disrupt, damage or interfere with any communications facilities or equipment ("Harmful Code") that may be transferred to Customer’s Devices when downloading or otherwise accessing the Software and Services. By way of clarification, Harmful Code shall include, without limitation, any code containing viruses, Trojan horses, worms or like destructive code or code that was intentionally written to self-replicate. Customer is advised to obtain and use appropriate anti-virus and security software and to take all other appropriate measures to safeguard the integrity of their Devices.
         
  4. MISCELLANEOUS PROVISIONS
    1. Intellectual Property: The Customer hereby acknowledges that any and all Intellectual Property rights and other proprietary rights in and in relation to the Software including without limitation any derivatives, improvements or modifications which ownership is directly or indirectly attributable to FDSS (expressly excluding any Customer Data or information belonging to any other third party) and shall vest wholly completely and fully with FDSS throughout the territory of the world and the Customer shall have no right or claim to such Intellectual Property in any manner whatsoever.
       
    2. Force Majeure: If either Party is unable to perform any of its obligations under this Agreement because of circumstances beyond the reasonable control of such Party, such as an act of God, fire, casualty, flood, war, terrorist act, failure of public utilities, injunction or any act, exercise, labor or civic unrest, assertion or requirement of any governmental Authority, epidemic, or destruction of production facilities (a “Force Majeure Event”), the Party who has been so affected shall immediately give notice to the other Party and shall do everything reasonably practicable to resume performance, except that the Customer shall not be excused in any event from timely meeting its payment obligations. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended for the period of such Force Majeure Event.  If the period of nonperformance exceeds sixty (60) days from the receipt of notice of the Force Majeure Event, FDSS may give written notice to terminate this Agreement.
       
    3. Confidentiality: Save as otherwise provided under this Agreement, all Confidential Information including the terms and conditions described in this Agreement shall be kept confidential and shall not be disclosed to any third party other than to each Party’s respective professional advisors, Users on a need basis and provided that in each case the person to whom such Confidential Information is disclosed undertakes to keep it confidential. Each Party shall on written demand by the other Party immediately return Confidential Information together with any copies in its possession, if such information and copies thereof have not already been destroyed.
       
    4. Survival: Any clause that by its nature should survive termination of this Agreement shall continue to remain in effect even after the termination of this Agreement including but not limited to Clause 4.3 (Consequences of Termination), Clause 7 (Disclaimer of Warranties,) Clause 8 (Indemnification), and Clause10 (Miscellaneous Provisions).
       
    5. Governing Law and Dispute Resolution: This Agreement shall be governed by the laws of India and the courts at Chennai shall have the exclusive jurisdiction. Any claim, controversy or dispute (collectively referred to asDisputes”) arising out of or under this Agreement, if not settled by mutual agreement between the Parties shall be (i) referred to arbitration in accordance with the Indian Arbitration and Conciliation Act, 1996; or (ii) referred to courts for adjudication at the sole discretion of FDSS . In the event the Dispute is referred to arbitration, the arbitration proceedings shall be conducted by the arbitral tribunal which shall be constituted and comprise of 3 (Three) arbitrators of which 2 (Two) are jointly selected by the Parties and the third shall be appointed by the 2 (Two) arbitrators so selected, failing which the arbitrators shall be appointed forthwith by the chief justice of India or person designated by him. The results of such arbitration (including apportionment as to cost) shall be conclusive and binding upon the Parties, and shall be enforceable in any court having jurisdiction over the Party against whom the award was rendered.
       
    6. Further Assurances: Each Party shall, at its own cost and expense from time to time, on being required to do so by any other Party to this Agreement now or at any time in the future, execute and do (or procure to be executed and done by any other necessary party) all such deeds, documents, acts and things as any other Party may from time to time require whether on or after the execution of this Agreement may be necessary to give full effect to this Agreement.
       
    7. Severability: If any provision of this Agreement is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision or part of such provision and the remaining part of such provision and all other provisions of this Agreement shall continue to remain in full force and effect.
       
    8. Assignment, resell, sub-license, transfer, etc: No right or obligation under this Agreement may be assigned, resold, sub-licensed, and/or transferred by the Customer without the prior written consent of FDSS. Further, it is hereby explicitly stated that FDSS shall be entitled to assign, resell and/or transfer (in part or in full) the Licence, the rights under this Agreement to any other person or entity without the consent of the Customer.
       
    9. Waiver: The failure of any Party to insist, in one or more instances, upon strict performance of the obligations of this Agreement, or to exercise any rights contained herein, shall not be construed as waiver, or relinquishment for the future, of such obligation or right, which shall remain and continue in full force and effect. Any waiver can only be made by a written instrument.
       
    10. Nature of Agreement:  Nothing in this Agreement is to be construed to make either Party a partner, an agent or legal representative of the other Party for any purpose. Neither Party shall have any right or authority to accept any service of process or to receive any notices on behalf of the other Party or to enter into any commitments, undertakings, or agreements purporting to obligate the other Party in any way, or to amend, modify or vary any existing agreements to which the other Party may be a party. 
       
    11. Notices: Any notice to any Party shall be in writing and posted, delivered personally or sent by courier, registered or certified mail or facsimile transmission to the address as specified hereinbelow and for proving service by such Party it shall be sufficient to show that the envelope containing the notice was properly addressed and posted/delivered/sent to the said address/facsimile number. Additionally, FDSS shall be entitled to send Notices by e-mail.

To the Customer:

[●]

To FDSS:

  1. Entire Agreement: This Agreement, including any hyperlinks and documents referenced herein, the Order Form all of which are hereby incorporated by reference, shall be deemed to form a part of this Agreement and constitutes the complete and exclusive statement of agreement between the Parties and supersedes all prior agreements, understandings and communication of any kind by and between the Parties, whether written or oral, with respect to the subject matter hereof. 
     
  2. Exclusivity: This Agreement shall be deemed to create an exclusive relationship between the Parties. Provided however that FDSS shall be entitled to enter into similar arrangements with any other entity without any restriction whatsoever.