1. Services Agreement
This is a Services Agreement made between BizBites Technologies Private Limited, Plot No.1, Survey No. 105/C, 4th Floor, E. Malla Reddy Complex, Kompally, Hyderabad - 500 014, A.P, India. (“the Provider” and/or “Kolmè”) and you under the terms of which the Provider will make its Kolmè software application and related Services available to you as Customer.
You must read and accept all the terms and conditions set out below before you are entitled to subscribe to this service. By clicking on the “I accept” button at the end of this Services Agreement you agree to become (and be deemed to have become) the Customer under this Services Agreement and consent to be bound by all of its terms.
The Provider is a services provider that delivers and manages computer applications and technology services from data centres to multiple users via the Internet and has agreed to provide the Services to the Customer in accordance with the terms and subject to the conditions set out below.
2.1 The Customer engages the Provider and the Provider agrees to providing access to the Services in accordance with the terms of this Agreement.
2.2 The Provider agrees to providing access to the Services throughout the Term.
2.3 The provision of the Services will continue until such times as either party gives written notice of termination or if the Customer fails to make the payment for the next term in advance. In the event that the provider chooses to change any terms, conditions, charges or other material item they will notify the Customer four weeks in advance except where the agreement specifies otherwise.
2.4 The Provider shall be the Customer’s exclusive provider of the Services,
2.5 The Provider warrants that by providing access to the Services it will not knowingly infringe the rights of any third party (including but not limited to Intellectual Property Rights) in any jurisdiction or be in breach of any obligations it may have to a third party. The Provider further warrants that it is not prohibited from providing the Services by any statutory or other rules or regulations in any relevant jurisdiction.
3.1 Subject to the Customer’s payment of the Fees], the Customer is granted a [non-exclusive and non-transferable] access to use the Services (including any associated software, Intellectual Property Rights and Confidential Information) during the Term
3.2 All Intellectual Property Rights and title to the Services (save to the extent incorporating any Customer or third party owned materials, services or products) shall remain with the Provider and/or its licensors and no interest in, or ownership of, the Services, the Intellectual Property Rights or otherwise is conveyed to the Customer under this Agreement. No right to modify, adapt, or translate the Services or create derivative works from the Services is granted to the Customer. Nothing in this Agreement shall be construed to mean, by inference or otherwise, that the Customer has any right to obtain source code for the software comprised within the Services.
3.3 Disassembly, decompilation or reverse engineering and other source code derivation of the software comprised within the Services is prohibited. To the extent that the Customer is granted the right by law to decompile such software in order to obtain information necessary to render the Services interoperable with other software (and upon written request by the Customer identifying relevant details of the services(s) with which interoperability is sought and the nature of the information needed), the Provider will provide integration to the third part software. The Provider has the right to impose reasonable conditions including but not limited to the imposition of a reasonable fee for providing such access and information.
3.4 The Provider agrees to supply the Customer with the appropriate URL (Uniform Resource Locator). The Customer is responsible for appointing a Service Administrator and for the set up of Users within the Kolmè Service by supplying further passwords to those within the Customer’s organisation who are permitted to be Users (determining for that purpose what areas of the Kolmè Service are accessible to each such User).
3.5 Unless otherwise specified in this Agreement, the Services are provided and may be used solely by the Customer for the purpose of managing the Customer’s business and HR function through access to, and use of, the Kolmè Service. The Customer may not (i) lease, loan, resell or otherwise distribute the Kolmè Service save as permitted in writing by the Provider; (ii) use the Kolmè Service to provide ancillary services related to the Kolmè Service; or (iii) except as permitted in this Agreement, permit access to or use of the Kolmè Service by or on behalf of any third party.
3.6 The Customer warrants and represents that it shall maintain reasonable security measures (as may change over time) covering, without limitation, confidentiality, authenticity and integrity to ensure that the access to the Services granted under this Agreement is limited as set out under this Agreement.
4. Charges and Payments
4.1 All fees payable by Customer for the Services shall be in accordance with the Fees scales and rates [listed on the website] and shall be due and payable in advance of provision of the Services. The Provider reserves the right to alter pricing (including offering elements of the service free of charge) at any time. The Provider will, four weeks in advance, inform by e-mail if the fees for the Kolmè Service (or any part thereof) are to be altered. The Customer’s continued use of the Kolmè Service after the proposed Fees modification has been notified will be considered acceptance of the proposed Fees modification.
4.2 Payment is due on the anniversary month following the date on which the Customer completes the registration process and becomes a User of the Kolmè Service and every month thereafter. The customer needs to set up an automatic payment, the method to be approved by the Provider and in which the Customer authorises the Provider to debit Kolmè Service renewal fees from the Customers funds.
4.3 Should the Customer decide to terminate and discontinue the use of the Kolmè Service no refunds will be given.
4.4 If the Customer’s right to use the Kolmè Service is terminated pursuant to Condition 9.2 (Provider’s right to terminate) the Customer will be entitled to a pro rata refund based upon the remaining period of pre-payment. No refunds will be due under any other circumstances.
4.5 Where payment for the provision of the Services is late, the Provider reserves the right to suspend the provision of the Services on the elapsed renewal date.
4.6 For the purposes of this Agreement, ‘Business Day’ shall mean any day (other than Saturday or Sunday) which the clearing banks are open for normal banking business in the city of London.
4.7 The rights granted by the Provider to the Customer to use the Kolmè Service (including all relevant software and/or database licences and permissions) shall only become, and remain, valid provided payments of Fees are made timeously and kept up to date throughout the Term and provided that the Customer continues to observe all of the terms and conditions set out in this Agreement throughout the Term.
5.1 The Provider warrants to the Customer that it has the right to sell the Services and that the Services will operate to provide the facilities and functions implemented by the Provider. The foregoing warranties shall not cover (i) deficiencies or damages relating to any third party materials, services or products not furnished by the Provider; or (ii) any third party provided connectivity or data storage facilities necessary for the provision or use of the Services. In the event of a breach of the warranties under this clause 5, the Provider shall have no liability or obligations to the Customer other than to reimburse the Fees for the Services for the last payment period.
5.2 Except as expressly stated in this Agreement, all warranties and conditions, whether express or implied by statute, common law or otherwise (including but not limited to satisfactory quality and fitness for purpose), are hereby excluded to the fullest extent permitted by law. No warranty is made regarding the results of usage of the Services or that the functionality of the Services will meet the requirements of the Customer or that the Services will operate uninterrupted or error free. This clause shall survive the termination of this Agreement.
6. Limitation of liability
6.1 The Provider does not exclude or limit its liability to the Customer for fraud, death or personal injury caused by any negligent act or omission or wilful misconduct of the Provider in connection with the provision of the Services.
6.2 In no event shall the Provider be liable to the Customer whether arising under this Agreement or in delict, tort (including negligence or breach of statutory duty), misrepresentation or however arising, for any Consequential Loss. ‘Consequential Loss’ shall for the purposes of this clause mean (i) pure economic loss; (ii) losses incurred by any User or any client of the Customer or other third party; (iii) loss of profits (whether categorised as direct or indirect loss); (iv) losses arising from business interruption; (v) loss of business revenue, goodwill or anticipated savings; (vi) losses, whether or not occurring in the normal course of business attributed to wasted management or staff time and; (vii) loss or corruption of data.
6.3 Subject to clauses 6.1 and 6.2, the total liability of the Provider (whether in contract, delict, tort or otherwise) under or in connection with this Agreement or based on any claim for indemnity or contribution shall not exceed one hundred (100) per cent of the total Fees (excluding any VAT, duty, sales or similar taxes) paid or payable by the Customer to the Provider during the term of the contract.
6.4 In no event shall the Customer raise any claim under this Agreement more than [two (2)] weeks after (i) the discovery of the circumstances giving rise to such claim; or (ii) the effective date of the termination of this Agreement. This clause shall survive the termination of this Agreement.
6.5 The Customer acknowledges and agrees that in entering into this Agreement, the Customer had recourse to its own skill and judgement and has not relied on any representations made by the Provider, any employees or agents of the Provider.
7. Intellectual property indemnification
7.1 The Provider, at its own expense, shall (i) defend, or at its option, settle any claim or suit brought against the Customer by a third party on the basis of infringement of any Intellectual Property Rights by the Services (excluding any claim or suit deriving from any Customer provided item); and (ii) pay any final judgement entered against the Customer on such issue or any settlement thereof, provided that: (i) the Customer notifies the Provider promptly of each such claim or suit; (ii) the Provider is given sole control of the defence and/or settlement; and the (iii) Customer fully co-operates and provides all reasonable assistance to the Provider in the defence or settlement.
7.2 If all or any part of the Services becomes, or in the opinion of the Provider may become, the subject of a claim or suit of infringement, the Provider at its own expense and sole discretion may: (a)procure for the Customer the right to continue to use the Services or the affected part thereof; or (b)replace the Services or affected part with other suitable non-infringing service(s); or (c)modify the Services or affected part to make the same non-infringing.
7.3 The Provider shall have no obligations under this clause 7 to the extent that a claim is based on: (a)the combination, operation or use of the Services with other services or software not provided by the Provider, if such infringement would have been avoided in the absence of such combination, operation or use; or (b)use of the Services in any manner inconsistent with this Agreement; or (c)the negligence or wilful misconduct of the Customer.
7.4 The Customer acknowledges and agrees that in entering into this Agreement, the Customer had recourse to its own skill and judgement and has not relied on any representations made by the Provider, any employees or agents of the Provider.
8.1 Subject to clause 7, each party (“the Indemnifying Party”) indemnifies and undertakes to keep indemnified the other party, its officers, servants and agents (“the Party Indemnified”) against any costs or expenses (including the cost of any settlement) arising out of any claim, action, proceeding or demand that may be brought, made or prosecuted against the Party Indemnified by any person arising out of or as a consequence of an unlawful or negligent act or omission of the Indemnifying Party, its officers, servants or agents in any way connected with this Agreement whether arising from any failure by the Indemnifying Party to comply with the terms of this Agreement or otherwise.
8.2 The indemnity contained in clause 8.1 above extends to and includes all costs, damages and expenses (including legal fees and expenses) reasonably incurred by the Party Indemnified in defending any such action, proceeding claim or demands.
9.1 The Provider may immediately terminate this Agreement or the provision of any Services provided pursuant to this Agreement if the Customer has used or permitted the use of the Services otherwise than in accordance with this Agreement.
9.2 The Provider shall be entitled to terminate this Agreement at any time without notice if the Provider is prohibited, under the applicable law of any jurisdiction, or otherwise, from providing, or continuing to provide, the Services (including where to do so would infringe any third party Intellectual Property Rights in a way which cannot be remedied by the Provider under clause 7.2 (Services infringing).
9.3 Either party shall be entitled to terminate this Agreement at any time without notice if: (a)the other party ceases or threatens to cease to carry on business; or (b)the other party is unable to pay its debts or enters into compulsory or voluntary liquidation (other than for the purpose of effecting a reconstruction or amalgamation in such manner that the company resulting from such reconstruction or amalgamation shall be bound by and assume the Provider’s obligations hereunder); (c)the other party compounds with or convenes a meeting of its creditors or has a receiver, manager or similar official appointed in respect of its assets; or (d)the other party has an administrator appointed or documents are filed with the court for the appointment of an administrator or notice is given of an intention to appoint an administrator by such party or its directors or by a qualifying floating charge holder (as defined in the Insolvency Act 1986, paragraph 14 schedule B1); or
(e)any similar event occurs under the law of any other jurisdiction in respect of that party.
9.4 Either party shall be entitled to terminate this Agreement on written notice to the other party if the other party commits a material breach of any term of this Agreement which, in the case of a breach capable of remedy, shall not have been remedied within five (5) business days of receipt by the other party of a notice from the non-defaulting party specifying the breach and requiring it to be remedied.
9.5 On request and in any event on termination of this Agreement for whatever reason, Provider shall allow a grace period of fourteen (14) days for the data to be downloaded from the Kolmè Service. Following termination and after expiry of the grace period, failing any request from the Customer to reinstate the contract within the 14 days, the database will be completely deleted and made inaccessible for future use.
9.6 Termination of this Agreement for whatever reason shall not affect the accrued rights of the parties arising in any way out of this Agreement as at the date of termination and, in particular but without limitation, the right to recover damages against the other. Clauses 4, 7, 8, 9, 10, 11 and 12 shall, for the avoidance of doubt, survive the expiration or sooner termination of this Agreement and shall remain in force and effect.
10. Confidential Information
10.1 Each party may use the Confidential Information of a disclosing party only for the purposes of this Agreement and must keep confidential all Confidential Information of each disclosing party except to the extent (if any) the recipient of any Confidential Information is required by law to disclose the Confidential Information.
10.2 Either party may disclose the Confidential Information of the other party to those of its employees and agents who have a need to know the Confidential Information for the purposes of this Agreement but only if the employee or agent executes a confidentiality undertaking in a form approved by the other party.
10.3 Both parties agree to destroy all documents and other materials containing Confidential Information immediately upon termination of the Services subject to clause 10.1.
10.4 The obligations of confidentiality under this Agreement do not extend to information that: (a)was rightfully in the possession of the receiving party before the negotiations leading to this Agreement; (b)is, or after the day this Agreement is signed, becomes public knowledge (otherwise than as a result of a breach of this Agreement); or (c)is required by law to be disclosed.
(d)the other party has an administrator appointed or documents are filed with the court for the appointment of an administrator or notice is given of an intention to appoint an administrator by such party or its directors or by a qualifying floating charge holder (as defined in the Insolvency Act 1986, paragraph 14 schedule B1); or
(e)any similar event occurs under the law of any other jurisdiction in respect of that party.
11.2 The Provider shall carry out processing of personal data supplied by the Customer (“Personal Data”) only in order to perform the Provider’s obligations under this Agreement. The Customer warrants that all Personal Data will be owned by the Customer and the Provider acknowledges that the Provider shall have no rights to such Personal Data.
12. Force Majeure
12.1 Except with respect to obligations to pay the Fees or other charges, “Force Majeure” means anything outside the reasonable control of a party, including but not limited to, acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, labour dispute, labour shortage, power shortage, (including, without limitation, where Provider ceases to be entitled to access the Internet for whatever reason, server crashes, deletion, corruption, loss or removal of data and/or any act, omission, failure, breach or default of any third party provider of services, licences or other functions or facilities to the Provider), transportation embargo, failure or delay in transportation, any act or omission (including laws, regulations, disapprovals or failures to approve) of any government or government agency.
12.2 If the Provider is wholly or partially precluded from complying with its obligations under this Agreement by Force Majeure, then its obligations perform in accordance with this Agreement will be suspended for the duration of the Force Majeure.
12.3 As soon as practicable after an event of Force Majeure arises, the party affected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under this Agreement.
13. Miscellaneous and General
13.1 This Agreement and the terms and conditions set out herein contain the entire understanding between the Provider and the Customer with respect to the Kolmè Service and no statements of intention, indications of likely or future performance as regards the Services (oral or written) shall bind the Provider. The Customer acknowledges that it does not rely on any such statement or representation in subscribing to, and making use of, the Kolmè Service.
13.2 If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason the remainder of the provisions hereof shall continue in full force and effect as if this Agreement had been entered into with the invalid portion eliminated.
14. Governing law and jurisdiction
This Agreement shall be governed by the laws of India and the parties hereby prorogate the non-exclusive jurisdiction of the Courts of that country.
Terms and Conditions of Agreement
In this Agreement, the following words shall have the following meanings:
any and all information in whatsoever form relating to the Provider or the Customer, or the business, prospective business, finances, technical processes, computer software (both source code and object code), Intellectual Property Rights or finances of the Provider or the Customer (as the case may be), or compilations of two or more items of such information, whether or not each individual item is in itself confidential, which comes into a Customer’s or Provider’s possession as a result of, or otherwise in connection with, the provision and/or receipt of the Services, and which such party regards, or could reasonably be expected to regard, as confidential and any and all information which has been or may be derived or obtained from any such information;
fees and charges as set out on the site www.kolme.in
“Intellectual Property Rights”
all copyrights, patents, utility models, trade marks, service marks, registered designs, moral rights, design rights (whether registered or unregistered), technical information, know-how, database rights, semiconductor topography rights, business names and logos, computer data, generic rights, proprietary information rights and all other similar proprietary rights (and all applications and rights to apply for registration or protection of any of the foregoing) as may exist anywhere in the world;
any Provider rules or protocols, in whatever form recorded or set, that affect the Customer’s access to, or use of, the Services, and made available by the Provider from time to time to the Customer (and, when so made available, shall form part of this Agreement);
“Services” and/or “Kolmè Service”
the software applications and hosting services of the Provider, which are made available to the Customer (together with any Operating Rules) and including any computer software programs and, if appropriate, Updates thereto;
means the individual for the time being nominated by the Customer to administer dealings with the Kolmè Service
the period of One 1 month from date on which the Customer completes the registration process and becomes a user of the Kolmè Service [unless earlier terminated pursuant to the provisions hereof
means any new or updated applications services or tools (including any computer software programs) made available by the Provider as part of the Services;
means any individual employee authorised by the Customer to have access to the Kolmè Service.