Master Service Agreement1. Terms of Acceptance
IF USERS ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, USERS REPRESENT THAT USERS HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "USERS" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF USERS DO NOT HAVE SUCH AUTHORITY, OR IF USERS DO NOT AGREE WITH THESE TERMS AND CONDITIONS, USERS MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
YOUR ACCEPTANCE OF THIS AGREEMENT IS IMPLICIT EITHER WHEN YOU ACCESS OUR SOLUTIONS OR BY EXPLICITLY CONFIRMING ITS ACCEPTANCE AS PART OF REGISTRATION OR ONBOARDING PROCESS OR BY EXECUTING ANY ORDER FORM RELEVANT TO OUR SOLUTIONS AND SERVICES.
- "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
- “Agreement” means this Master Subscription Agreement.
- “Beta Services” means our solutions or services delivered in a controlled manner to select customers prior to public availability.
- “Content” means information delivered to you by us as part of our services and solutions, in any form and governed by this agreement
- “Order Form” means an ordering document detailing any service or solutions to be provided by us to you & governed by this agreement.
- “User” means any individual, who is authorized by you to use our solutions and service
- “COMPANY”, "We," "Us" or "Our" means the company BART Solutions
- "You" or "Your" means the company or other legal entity for which you are accepting this agreement and Affiliates of that company or entity.
- “Your Data” means electronic data and information pertaining to you and your business and managed by you using our solutions or services.
If you opt to evaluate our solutions and services, this agreement would be binding beyond the completion of the evaluation period. Additional trial terms and conditions might be applicable and made available to you on an as need basis. Any such additional terms and conditions are legally binding.
Any activity performed during this evaluation period involving our solutions or services either by you or for you might not be accessed by you post the evaluation unless you purchase the relevant solutions and services from us before the end of such evaluation period.
4. OUR RESPONSIBILITIES
Provision of purchased solutions & services. We will make the Services and Solutions available to You pursuant to this Agreement and the applicable Order Forms, Provide Our standard support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased, and Use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for:
a) Planned downtime with at least 8 hours electronic notice,
b) Any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, or denial of service attack.
5. LICENSE GRANT
a. COMPANY will set up Azure account on behalf of the customer as a part of the Company-AppPoint-Microsoft test drive and customer is in consent with this license grant.
b. COMPANY grants Customer a License to the Online Services and Client Software ordered by USERS subject to USERS’ obligation to pay and any rights and limitations described in this agreement. This License is non-exclusive, non-perpetual, and is not transferable. The ability to use services may be affected by minimum system requirements or other factors. COMPANY reserves all rights not expressly granted.
c. USERS shall not reverse engineer, decompile or disassemble TECHNOLOGY, except where applicable law permits it despite this limitation. USERS shall not rent, lease, lend, resell, or host to or for third parties any Service based on the TECHNOLOGY.
d. All services provided to USERS 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.
6. RIGHTS AND RESPONSIBILITIES
a. USERS are responsible for all activities that take place under USERS account and will abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with use of the TECHNOLOGY, including those related to data privacy, international communications and the transmission of technical or personal data. USERS will notify the COMPANY immediately of any unauthorized use of any password or membership ID or any other known or suspected breach of security. USERS will report to the COMPANY immediately and use reasonable efforts to immediately stop any copying or distribution of TECHNOLOGY that USERS become aware of or suspect and USERS will not impersonate another user or provide false identity information to gain access to or use the TECHNOLOGY.
b. USERS 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 USERS incorporate into USERS Applications. USERS must exercise due care and ensure that in customizing USERS applications, third party intellectual property rights are not infringed.
c. USERS represent and affirm that USERS have the legal power and authority to enter into this AGREEMENT and that USERS have not previously entered into any AGREEMENT or understanding which conflicts with any rights or obligations set forth in this AGREEMENT.
i. this limited warranty applies only during the Term, including any renewals ("Warranty Period");
ii. any implied warranties, guarantees or conditions not able to be disclaimed as a matter of law will last only during the Warranty Period;
iii. this limited warranty does not cover problems caused by accident, abuse or use of the Online Services in a manner inconsistent with this agreement or the Online Services Use Rights, or resulting from events beyond Bart Solutions’ reasonable control;
iv. this limited warranty does not apply to problems caused by the failure to meet minimum system requirements; and
v. this limited warranty does not apply to downtime or other interruption in access to the TECHNOLOGY, or any other performance metrics that are addressed in an applicable SLA.
DISCLAIMER OF OTHER WARRANTIES. OTHER THAN THIS LIMITED WARRANTY, COMPANT PROVIDES NO OTHER EXPRESS OR IMPLIED WARRANTIES. COMPANY DISCLAIMS ANY IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE OR NON-INFRINGEMENT. THESE DISCLAIMERS WILL APPLY UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW.
a. You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and Solutions purchased as per selected plan and not on actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
b. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to us. If YOU provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in the selected service or solution plan. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
c. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
d. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue or 2 weeks overdue in the case you have authorized Us to charge to Your credit card, We may suspend Our services to you until such amounts are paid in full. We will give you at least 2 weeks of grace period is such cases before suspending the services to you.
e. Payment Disputes. We will not exercise our rights as indicated above if YOU are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
f. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature. You are responsible for paying all such amount invoiced to you by us, unless YOU provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
g. EVALAUTION SERVICE - USERS will not be charged any fee during the evaluation or test drive
9. REPRESTATIONS RIGHTS
a. 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.
b. 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.
a. You agree to indemnify and hold harmless COMPANY, its officers, directors, employees, suppliers, and affiliates, from and against any losses, damages, fines and expenses (including attorney's fees and costs) arising out of or relating to any claims that you have used the Services in violation of another party's rights, in violation of any law, in violations of any provisions of the Terms, or any other claim related to your use of the Services, except where such use is authorized by the COMPANY.
11. COMPELLED DISCLOSURE
We may disclose Confidential Information belonging to You to the extent compelled by law to do so, notifying You to the extent legally permitted & do so at our own cost.
12. LIMITATIONS OF LIABILITY
a. 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.
b. 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.
c. USERS expressly understand and agree that USERS 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:
i. the use or the inability to use the service or the TECHNOLOGY or any Application;
ii. 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;
iii. unauthorized access to or alteration of USERS transmissions or data;
iv. statements or conduct of any third party on the TECHNOLOGY; and
v. Any other matter relating to the TECHNOLOGY.
USERS further agree that USERS will not hold the COMPANY liable for any of the following:
i. interruption of business;
ii. access delays or access interruptions to the web site that hamper USERS access to the TECHNOLOGY;
iii. data non-delivery, mis-delivery, corruption, destruction or other modification;
iv. unauthorized access to data entered in, or breach of any security mechanisms utilized in, the TECHNOLOGY or in any restricted field; and
v. Events beyond the COMPANY's reasonable control.
d. USERS agree not to hold the COMPANY liable for any loss, direct or indirect, arising out of the malfunction of the applications introduced by any other user of the TECHNOLOGY. The COMPANY is not liable for any third party intellectual property infringement actions, relating to applications introduced by any other user of the TECHNOLOGY.
e. USERS agree that the COMPANY is not liable to USERS or to any third party for any modification, suspension or discontinuance of the TECHNOLOGY, or for any resulting loss or destruction of USERS Applications that USERS place on the TECHNOLOGY.
13. MODIFICATIONS OF THE TECHNOLOGY
a. 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:
i. Will send notification to USERS account via e-mail at least 30 days prior to such discontinuance; and
ii. Will post notification of this decision on the COMPANY's web site at least 30 days prior to such discontinuance. In such instance, USERS will be responsible for retrieving USERS data from the TECHNOLOGY during that 30 day period. USERS will also have the option to avail of the business data storage plan under which the COMPANY will permit USERS to host USERS data in USERS local database server at a cost set out in USERS pricing plan.
b. The COMPANY may specify from time to time the versions of related products/ software required in order to use the TECHNOLOGY.
14. MODIFICATION OF THE AGREEMENT
a. 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, USERS will be notified by an email that such posting has been made. If USERS continue to use any TECHNOLOGY after such modification, such continued use will constitute USERS acceptance of the modified version of the AGREEMENT. If USERS do not agree to any of the modifications, USERS may terminate the AGREEMENT and immediately cease all access and use of the TECHNOLOGY. If USERS do not exercise USERS rights to terminate the AGREEMENT, after modifications have been made, then USERS will be deemed to have accepted the modified version of the AGREEMENT within 72 hours from the post of the email.
b. USERS agree that such termination will be USERS exclusive remedy if USERS do not wish to abide by any changes to this AGREEMENT. In addition, the COMPANY may at any time introduce separate AGREEMENTs for COMPANY in certain jurisdictions and require those COMPANY to agree to such separate AGREEMENTs.
15. AGREEMENT TERM AND TERMINATION
a. The term of this AGREEMENT begins upon registration. The COMPANY or USERS may terminate this AGREEMENT by notice to either party.
b. USERS acknowledge and agree that the COMPANY may, in its sole discretion, suspend or terminate USERS account and/or deny USERS access to, use of, or submission of, all or part of the TECHNOLOGY, without prior notice if USERS engage in any conduct that the COMPANY believes:
i. violates the letter or spirit of any term or provision of this AGREEMENT;
ii. violates the rights of the COMPANY or third parties;
iii. is otherwise inappropriate for continued access and use of the TECHNOLOGY; or
iv. Any of USERS permitted business associates have violated their license AGREEMENTs with the COMPANY.
c. USERS agree that the COMPANY is not liable to USERS or any third party for any losses, damages or claims that arise out of such termination.
d. The COMPANY reserves the right to suspend or terminate this AGREEMENT and USERS access to the TECHNOLOGY if USERS have fallen into arrears. In case of paid engagements, all arrears are subject to interest at the rate of 12% per annum, on the outstanding balance, including all expenses of collection. USERS will continue to be charged fees, during any period of suspension. USERS agree that the COMPANY may charge any unpaid fees to USERS credit card or otherwise bill USERS for such unpaid fees. The COMPANY reserves the right to impose a reconnection fee in the event USERS have been suspended and thereafter request access to the TECHNOLOGY.
e. The COMPANY provides a system where USERS can export or save USERS business application data, provided USERS have opted for this service explicitly and have already configured. This is facilitated by the storage of these application data on USERS local database server. The provision of this storage facility is optional and is chargeable at separate rates, as mentioned earlier.
f. The following clauses will survive the termination of this AGREEMENT.
i. Limitation of liability
iv. General Terms
16. MALFUNCTION OF APPLICATIONS
In the unlikely event that an Application does not function to USERS satisfaction, USERS 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 USERS agree not to hold the COMPANY liable for any loss that may arise, immediate or otherwise, on account of the malfunction of the applications. USERS agree that the COMPANY shall not be liable if, for whatever reasons, it is unable to remedy defunct applications.
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.
i. the user can apply to the COMPANY for partnership; or
ii. The COMPANY can identify COMPANY with whom it wants to enter into partnerships.
Any such partnership AGREEMENT will be governed by and subject to the terms of a separate partnership AGREEMENT.
a. The term "Confidential Information" will include any business, operational or technical information provided to USERS by the COMPANY, that is marked or otherwise identified as confidential or proprietary, or that USERS know or should know is confidential or proprietary.
b. Confidential Information will not include any material or information that:
i. is or becomes a part of the public domain through no act or omission by the receiving party; and
ii. 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.
c. In respect of the information that USERS provide the COMPANY with, at the time of registration or otherwise, USERS agree that such information may be used to better understand USERS requirement of the COMPANY's services and will not be shared with any third party.
19. GENERAL PROVISIONS
a. Local Laws
USERS agree to commit no act which, directly or indirectly, would violate any local law and the local law applicable to the COMPANY, including without limitation export and import regulations of other countries.
The COMPANY may give notice by means of a general notice on its website, email to USERS email address on record in USERS account information, or by written communication sent by registered post if USERS 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, USERS will be deemed to have notice.
USERS 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 may not be assigned by USERS without the prior written approval of the COMPANY but may be assigned without USERS 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.
e. Governing Law and Venue
This AGREEMENT will be governed by and construed in accordance with the laws of India, within the 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, Karnataka, India. USERS 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.
g. Entire AGREEMENT
This AGREEMENT 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.