End User License Agreement
By clicking on "I AGREE" at the time of registration you accept & acknowledge that you have read and understood the BART License Agreement and that you have had opportunity to seek independent legal advice on the same and consequently agree to abide by all its terms and conditions. If you are entering into this agreement on behalf of a company or other legal entity then you acknowledge and affirm that you have the authority to enter into such agreement and bind your company or other legal entity, and all persons who use this service under such authority.
If you do not agree to the terms and conditions of the BART License Agreement then you must uncheck "I AGREE" in the registration form.
Subject to the terms and conditions provided in this License Agreement ("Agreement") BART SOLUTIONS (the "Company") will provide you ("You") with access to a Cloud based application infrastructure (“Technology”) to develop and deliver rich enterprise class business applications ("Application").
1. License and Ownership
1.1 The Company grants You a personal, revocable and worldwide license to use the Technology, subject to the terms and conditions in this Agreement, on a non-exclusive, non sub-licensable and non-transferable basis for your own business or personal purposes, as set forth in this Agreement.
1.2 You acknowledge that the Company is and shall remain the owner of all the rights, title and interest in the Technology and the license granted under this Agreement is only in respect of use of the Technology to the extent and in the manner expressly provided herein. You shall not allow third parties to reproduce, copy, market, sell, distribute, lease, transfer, translate, modify, adapt, disassemble, decompile or reverse engineer (except as allowed by law) the Technology. All services provided to You under this Agreement, including XML Schema, methods, processes, notes, designs, code, documentation, memoranda, and other data or materials that are prepared in the performance of such services hereunder, and all right, title and interest in the foregoing, will belong to the Company.
2. Rights, Responsibilities and Warranties
2.1 You are responsible for all activities that take place under Your account and will abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Technology, including those related to data privacy, international communications and the transmission of technical or personal data. You will:
(a) notify the Company immediately of any unauthorized use of any password or membership ID or any other known or suspected breach of security;
(b) report to the Company immediately and use reasonable efforts to immediately stop any copying or distribution of Technology that you become aware of or suspect; and
(c) not impersonate another user or provide false identity information to gain access to or use the Technology.
2.2 You are solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or the right to use any of the data, information or material that You incorporate into your Applications. You must exercise due care and ensure that in customizing your applications, third party intellectual property rights are not infringed.
2.3 You represent and affirm that You have the legal power and authority to enter into this Agreement and that You have not previously entered into any agreement or understanding which conflicts with any rights or obligations set forth in this Agreement.
2.4 You represent and warrant that all information provided by You in connection with your registration, is accurate and reliable, that You have not falsely identified yourself nor provided any false information to gain access to the Technology and that the use of the Technology and your Applications do not directly or indirectly infringe the legal rights of any third party.
2.5 You warrant that you will not:
(a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party, the Technology or the user account in any way;
(b) create Internet "links" to the Technology or "frame" or "mirror" any content on any other server or wireless or Internet-based device except as permitted by the Company;
(c) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
(d) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violate of third party privacy rights;
(e) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
(f) interfere with or disrupt the integrity or performance of the Technology or the data contained therein; and
(g) Attempt to gain unauthorized access to the Technology or its related systems or networks.
You will be charged a monthly fee based on the plan You select & all services shall be billed as per the schedule defined for the plan. If for any reason, the pricing of the Company is subject to any modification; such modification shall be effective three month after its intimation. The fees for the plans are not dependant on the number of applications that You use, except if You are on the starter plan, but on the storage of space and the number of users. The details of the payment plans shall be published on the website of the Company at http://www.bartsuite.com from time to time.
4. Company's Rights and Representations
4.1 The Company represents that it has the legal power and authority to enter into this Agreement and that it has not previously entered into any agreement or understanding which conflicts with any right or obligation set forth in this Agreement.
4.2 The Company represents that it owns the Technology, that there is no claim pending or, to the Company's knowledge, threatened against the Company regarding ownership of the Company's Technology or infringement by the Technology of any copyright, patent, trade secret or other intellectual property rights of any third party.
The Company makes no representations, warranties, or guaranties as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of its Technology. The services offered by the Company are provided on an 'as is' and 'as available' basis. The Company reserves the right to withdraw the provision of these services or revise or modify the manner in which they are provided. The Company does not represent or warrant the following:
(a) that the use of the Technology will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data;
(b) that the Technology will meet your requirements or expectations or result in revenues or profits;
(c) that any stored data will be accurate or reliable;
(d) that the quality of any products, services, information, or other material purchased or obtained by you through the Technology will meet your requirements or expectations
(e) that errors or defects will be corrected; or
(f) that the Technology or the servers that make the Technology available are free of viruses or other harmful components. All conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third party rights, are hereby disclaimed. No advice or information, whether oral or written, obtained by You from the Company shall create any warranty not expressly made herein.
You agree to defend, indemnify and hold harmless the Company, its affiliates, directors, officers, employees, and agents from and against any and all losses, liabilities, damages and claims, and all related costs and expenses (including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties) incurred or asserted by any third party arising out of the following:
(a) Your use of the Technology otherwise than in accordance with this Agreement;
(b) a claim alleging that your Application infringes the rights of, or has caused harm to, a third party;
(c) a claim, which if true, would constitute a violation by You of your representations and warranties; and
(d) a claim arising from a breach by You.
7. Limitations of Liability
7.1 The liability of the Company shall be restricted to the refund of fees paid in advance to the Company in respect of the given month of service in which the liability arose.
7.2 The Company shall not be held liable for interruption of their services on account of technical problems relating to the internet. The Company's services are subject to limitations, delays and other inherent problems in the use of electronic communications and the internet. The Company is not and shall not be responsible for any delays, delivery failures, or other damage resulting from such problems.
7.3 You expressly understand and agree that You will not hold the Company, its affiliates and employees liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if the Company has been advised of the possibility of such damages), resulting from the following:
(b) the cost of procurement of substitute goods and service resulting from any goods, data, information or service purchased or obtained or messages received or transactions entered into through or from the Technology;
(c) unauthorized access to or alteration of Your transmissions or data;
(d) statements or conduct of any third party on the Technology; and
(e) any other matter relating to the Technology.
(b) access delays or access interruptions to the web site that hamper your access to the Technology;
(c) data non-delivery, mis-delivery, corruption, destruction or other modification;
(d) unauthorized access to data entered in, or breach of any security mechanisms utilized in, the Technology or in any restricted field; and
(e) events beyond the Company's reasonable control.
7.4 You agree that the Company is not liable to You or to any third party for any modification, suspension or discontinuance of the Technology, or for any resulting loss or destruction of your Applications that You place on the Technology.
8. Modifications of the Technology
8.1 The Company reserves the right at any time and from time to time to modify the Technology (or any part thereof) with or without notice. Should the Company choose to permanently discontinue the Technology, the Company:
(b) will post notification of this decision on the Company's web site at least 30 days prior to such discontinuance. In such instance, You will be responsible for retrieving your data from the Technology during that 30 day period. You will also have the option to avail of the business data storage plan under which the Company will permit you to host your data in your local database server at a cost set out in your pricing plan.
9. Modification of the Agreement
9.1 The Company reserves the right to periodically change the terms of this Agreement with or without any prior notice. Without prejudice to this right, when the Company modifies this Agreement, the Company will post it on the following website. www.bartsuite.com Further, You will be notified by an email that such posting has been made. If You continue to use any Technology after such modification, such continued use will constitute your acceptance of the modified version of the Agreement. If You do not agree to any of the modifications, You may terminate the Agreement and immediately cease all access and use of the Technology. If You do not exercise your rights to terminate the Agreement, after modifications have been made, then You will be deemed to have accepted the modified version of the Agreement within 72 hours from the post of the email.
9.2 You agree that such termination will be your exclusive remedy if you do not wish to abide by any changes to this Agreement. In addition, the Company may at any time introduce separate agreements for users in certain jurisdictions and require those users to agree to such separate agreements.
10. Term and Termination of the Agreement
10.1 The term of this Agreement begins upon registration. The Company or You may terminate this Agreement by notice to either party.
10.2 You acknowledge and agree that the Company may, in its sole discretion, suspend or terminate your account and/or deny You access to, use of, or submission of, all or part of the Technology, without prior notice if You engage in any conduct that the Company believes:
(b) violates the rights of the Company or third parties;
(c) is otherwise inappropriate for continued access and use of the Technology; or
(d) any of your permitted business associates have violated their license agreements with the Company.
10.4 The Company reserves the right to suspend or terminate this Agreement and your access to the Technology if You have fallen into arrears. All arrears are subject to interest at the rate of 12% per annum, on the outstanding balance, including all expenses of collection. You will continue to be charged fees, during any period of suspension. On termination of this Agreement You forfeit all amounts already paid, except advance payments. You agree that the Company may charge any unpaid fees to your credit card or otherwise bill You for such unpaid fees. The Company reserves the right to impose a reconnection fee in the event You have been suspended and thereafter request access to the Technology.
10.5 The Company provides a system where you can export or save your business application data, provided you have opted for this service explicitly and have already configured. This is facilitated by the storage of these application data on your local database server. The provision of this storage facility is optional and is chargeable at separate rates, as mentioned earlier. Thus if You wish to terminate the Agreement, You may first opt for this business data storage service, so that all the data gets automatically stored on your local database server, providing easy retrieval of data, post termination.
10.6 The following clauses will survive the termination of this Agreement.
- Limitation of liability
- General Terms
11. Malfunction of Applications
In the unlikely event that an Application does not function to your satisfaction, You may intimate the Company of the details of such errors or bugs, and every effort will be made to eliminate them in a timely manner. However You agree not to hold the Company liable for any loss that may arise, immediate or otherwise, on account of the malfunction of the applications. You agree that the Company shall not be liable if, for whatever reasons, it is unable to remedy defunct applications.
12. Partnership Programs
The Company has a unique partnership program, where a user can become a partner of the Company. A user may become a partner by any of the following ways.
- the user can apply to the Company for partnership; or
- the Company can identify users with whom it wants to enter into partnerships.
13. Confidential Information
13.1 The term "Confidential Information" will include any business, operational or technical information provided to You by the Company, that is marked or otherwise identified as confidential or proprietary, or that You know or should know is confidential or proprietary.
13.2 Confidential Information will not include any material or information that:
(a) is or becomes a part of the public domain through no act or omission by the receiving party; and
(b) is demanded by a lawful order from any court or anybody empowered to issue such an order. Each party agrees to notify the other promptly of the receipt of any such order, and to provide the other with a copy of such order and a reasonable opportunity to seek protective measures for the information demanded.
13.3 In respect of the information that You provide the Company with, at the time of registration or otherwise, You agree that such information may be used to better understand your requirement of the Company's services and will not be shared with any third party.
14. General Terms
14.1 Local Laws
You agree to commit no act which, directly or indirectly, would violate any Indian law and the local law applicable to You, including without limitation export and import regulations of other countries. The Company makes no representation that the Technology is appropriate or available for use in locations outside of India.
The Company may give notice by means of a general notice on its website, email to your email address on record in your account information, or by written communication sent by registered post if your address is an address in India. Such notice will be deemed to have been given upon the expiration of 48 hours after mailing or posting on the website. If notice is sent by post then after the expiration of 7 days since the posting, You will be deemed to have notice.
You may give notice to the Company at any time by either posting a letter through courier or registered post or sending an email to the Company's address on its web site.
This Agreement will not be assigned by You without the prior written approval of the Company but may be assigned without your consent by the Company to an acquirer of assets or a successor by merger or any other person. Any purported assignment in violation of this section will be void.
14.4 Governing Law and Venue
This Agreement will be governed by and construed in accordance with the laws of INDIA, with Bangalore City Jurisdiction and without regard to any contrary conflict of law principles. All legal actions, controversies or disputes, that may arise either directly or indirectly under this Agreement shall be subject to arbitration and shall be governed by the Arbitration and Conciliation Act, 1996 of India. The seat of such Arbitration shall be at Bangalore, India. You irrevocably consent to such jurisdiction and venue.
In the event that any provision of this Agreement is found invalid or unenforceable, it will be enforced to the extent permissible and the remainder of this Agreement will remain in full force and effect
This Agreement read along with the MSA constitutes the complete agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous discussions, representations, and proposals, written or oral, with respect to the subject matters discussed herein.
The failure of a party to prosecute its rights with respect to a breach hereunder will not constitute a waiver of the right to enforce its rights with respect to the same or any other breach.