These Terms of Service (“Terms” or “Agreement”) set forth the legally binding terms and conditions your access to and use of products and professional services (defined below) offered by Indiqus Technologies Private Limited and/or its Subsidiaries or Affiliates (“Indiqus”, “us”, “our”, and “we”). The “Customer”, “Company”, “you”, “your” shall refer to any natural person or any legal entity and its authorized users that subscribes or uses products and professional services (defined below) via execution of the work order (“Work Order”) and/or Master Service Agreement.

The terms and conditions set out in this document may be supplemented or amended by special conditions set out in an agreed Work Order and/or Master Service Agreements and/or additional guidelines or terms or rules issued by Indiqus in relation to certain products or professional services. All such additional terms, guidelines, and rules are incorporated by reference into these Terms.

Modifications to this Agreement: From time to time, Indiqus may modify this Agreement. Your use of the products and professional services following any such modification constitutes your agreement to follow and be bound by the Terms so modified. Indiqus will use reasonable efforts to notify Customer of the changes through communications via Customer’s Account, email or other means.

The “Effective Date” of this Terms of is the date which is the earlier of (a) Customer’s initial access to products and professional services through any online provisioning, registration or order process or (b) the effective date of any Work Order/and or Master Services Agreement signed between the parties as applicable, referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer.

In consideration of the terms and conditions set forth below, the Parties agree as follows:

SERVICES

1. If Customer procures any services from Indiqus, Indiqus will provide the same as per the scope of work determined with the Customer on non-exclusive basis (“Services“) as the Parties may, from time to time, agreed and specified in work orders (“Work Orders“). This Agreement governs each Work Order, except that any conflict between the terms of this Agreement and a Work Order will be resolved in favour of the Work Order, if the Work Order explicitly states that it is intended to modify the conflicting terms of these Terms.
2. A Work Order may be amended from time to time upon agreement of the Parties and execution of a modification to the applicable Work Order (each, a “Change Order”). Either Party may request a Change Order to effect a change to the Services performed.

USE OF PLATFORM

1. Customer also procures the right to use the Platform from Indiqus apart from the Services, then Parties will provide the details of the licenses procured for the Platform in the Work Orders. The usage of Platform may be covered in the consolidated Work Order created for the Services or separate Work Orders.
2. “Platform” for the purpose of this clause and Agreement shall collectively refer to the Software, i.e. Apiculus which contains the central intelligence, the configuration manager and web console and is owned and controlled by INDIQUS which acts as the API broker with external systems, and the Support Services defined as the support-operations provided by Indiqus for management of the Software provided by Indiqus for optimal operation of the Software by Indiqus from time to time.
3. During the Term of this Agreement, Customer will receive a non-exclusive, non-sub licensable, non-assignable, non-transferable right to access and use the Platform solely for their internal business operations subject to the terms of this Agreement.
4. Use of the Platform may require Customer to use and download Software provided by or operated by Indiqus. To the extent Customer uses such software or download such Software from the Platform, the Software, including all files and images contained in or generated by the Software, and accompanying data will be deemed to be licensed (on a limited, non-exclusive, non-sub-licensable, non-transferable basis) to Customer by Indiqus, for enabling optimal usage of the Platform as per the terms of this Agreement.

OWNERSHIP AND RESTRICTIONS OVER THE PLATFORM

1. Customer acknowledge and agrees that no right, title or interest in the Platform or derivative work thereof is transferred or deemed to be transferred to the Customer by virtue of this Agreement. Nothing in this Agreement shall constitute an express or implied grant to the Customer of any rights to or under the Platform or derivative works thereof.
2. Customer shall not, directly or indirectly (through other third parties or competitors of Indiqus): (a) sublicense, resell, rent, lease, distribute, market, commercialize or otherwise transfer rights or usage of Platform created by or for Indiqus or any or any modified version or derivative work thereof (b) provide the Platform or any modified version or derivative work of the same created by or for Indiqus, on a timesharing, service bureau or other similar basis, (c) remove or alter any copyright, trademark or proprietary notice in the Platform (d) copy any features, functions or graphics of the Platform for any purpose other than what is expressly authorized in this Agreement, (e) send, store, or authorize a third party to send or store spam, unlawful, infringing, obscene or libelous material, or malicious code, (f) attempt to gain unauthorized access to, or disrupt the integrity or performance of Platform (g) use any intellectual property rights protected by applicable laws and contained in or accessible through the Platform for the purpose of building a competitive product or service or copying its features or user interface, (h) use Platform or permit it to be used, for purposes of product benchmarking or other comparative analysis intended for publication without Indiqus’s prior written consent.
3. Any modifications and enhancements to the Platform or derivative works thereof are also to be treated as Indiqus’ property, unless specifically assigned to Customer.
4. The Platform is provided by Indiqus on an “as-is” basis without any representations, warranties, covenants or obligations of any kind and use of the Software by the Customer is at Customer’s own risk.

PAYMENTS AND TAXES

1. Customer will pay Indiqus as provided in the Work Order and/or through online provisioning or through the invoices generated by Indiqus for the use of the Services and/or Platform (as applicable).
2. Fees payable under this Agreement will be exclusive of applicable national, state or local sales or use taxes or Value Added Tax, Service Tax or Goods and Services Tax (collectively, “Taxes“) that Indiqus is legally obligated to charge under the applicable laws. Indiqus may charge and Customer will pay any applicable Taxes, provided that such Taxes are stated on the original invoice that Indiqus provides to Customer.
3. All payments due from Customer to Indiqus shall be remitted to Indiqus in defined currency within 30 (thirty) days of the any invoice being raised by Indiqus. If the Customer is unable to make the payment as per the payment terms mentioned here or a maximum of 45 days, the Customer is liable to pay mandatory interests to Indiqus as per the terms of Micro, Small and Medium Enterprises Development (MSMED), Act 2006.

WORK ORDERS AND SERVICE LEVEL AGREEMENTS

1. All Work Orders or a Change Orders executed will be binding on both Parties if it is signed between the Parties (either manually or digitally signed), or it is acknowledged and accepted between the Parties in writing via email.
2. Any service level agreements attached to the Services provided by Indiqus under this Agreement as well as Support Services for the usage of the Platform (if applicable) will be shared by Indiqus with the Customer. Indiqus may share modified versions of such service level agreements as per changes determined by it in the course of its business with the Customer from time to time, which will be binding on the Customer if it is signed between the Parties (either manually or digitally signed), or if the Customer continues use of the Services and Platform provided by Indiqus and is governed by the Support Services provided.
3. Third Party Services (If applicable): The Platform facilitates usage of other third party services for the Customer. If the Customer decides to use any such third party services through the Platform, then the payment obligations as well as details of such services shall be provided in the Work Order(s). Indiqus will not be responsible or liable for the availability, security, functionality or reliability of the information or results which are to be achieved by means of such third party services including for any damage and/or loss caused by them.

INTELLECTUAL PROPERTY

1. Except as expressly provided, nothing herein will deem to imply or mean to transfer the Intellectual Property of either Party to the other Party and neither Party will raise any adverse claims in and to the same. Neither Party will acquire any right, title or interest in any Intellectual Property belonging to the other Party.
2. “Intellectual Property” shall mean and include all trademarks, service marks, logos, word marks, getup, trade names, internet domain names, patent rights, rights in designs, copyright(including rights in computer software) and moral rights, database rights, utility models, rights in know-how, technology, trade secrets and other intellectual property rights and proprietary data, in each case whether registered or unregistered and including applications for registration, and all rights or forms of protection having equivalent or similar effect anywhere in the world which are held or beneficially owned by each Party.
3. Customer Data is Customer’s Confidential Information under this Agreement.  Customer and its licensors retain all right, title and interest in and to the Customer Data and all of Customer’s Confidential Information provided under this Agreement, and Indiqus obtains no rights in the foregoing except for the express rights granted in this Agreement and the Privacy Policy.
4. Usage Data includes but is not limited to query logs, and any data (other than Customer Data) relating to the operation, support, and/or about Customer’s use of the Platform. Notwithstanding anything to the contrary in this Agreement, Indiqus may collect and use Usage Data to develop, improve, support, and operate its products and services.  Indiqus may share Usage Data that includes Customer’s Confidential Information with third parties to the extent necessary to provide the services and in accordance with Section 7 (Confidentiality) of this Agreement. Indiqus may also utilize Customer Data for its internal business purposes only to the extent such Customer Data has been aggregated and anonymized such that Customer and Customer’s Users and End Users cannot be identified.
5. Updates. Indiqus may update the Platform from time to time and Customer may receive notifications of Updates. Any Updates to the Platform are subject to this Agreement. Customer agrees that its purchase of the Services and Software is neither contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written public comments made by Indiqus with respect to future functionality or features.
6. Customer hereby grants to Indiqus, during the Term of this Agreement, a non-exclusive license to display and/or use it’s or its affiliates s trade name, trademark, service name and similar proprietary marks (collectively, “Marks”), in connection with certain promotional materials that Indiqus may disseminate to the public within the context of this Agreement. The promotional materials may include, but are not limited to, brochures, video tape, website, press releases, social media collaterals, advertising in newspaper and/or other periodicals or magazines, and any other materials relating to marketing and promotional efforts, specific to the subject matter of this Agreement.
7. If Indiqus delivers or is required to deliver to Company any work product in connection with the Services under any Work Order, including but not limited to concepts, works, inventions, information, drawings, designs, programs (collectively, “Work Product“), then Indiqus owns, or upon assignment by the creator will own, all right, title and interest (including but not limited to all trademarks, trade secrets, copyrights, patents and any other intellectual property or proprietary rights) in such Work Product.

CONFIDENTIALITY

Each party will protect the other’s Confidential Information from unauthorized use, access, or disclosure in the same manner as it protects its own Confidential Information of similar nature or importance, and in any event, using no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, the receiving party may use the disclosing party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement, and will disclose such Confidential Information solely to those of its respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound by obligations to maintain the confidentiality of, and not misuse, such Confidential Information.  The provisions of this section will supersede any non-disclosure agreement by and between the parties entered into prior to this Agreement that would purport to address the confidentiality of any information shared by the parties, including Customer Data, and such agreement will have no further force or effect with respect to the foregoing.  If the receiving party is required by law or court order to disclose Confidential Information of the disclosing party, then the receiving party will, to the extent legally permitted, provide the disclosing party with advance written notification and cooperate in any effort to obtain confidential treatment of the Confidential Information.  The receiving party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the receiving party, the disclosing party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

TERM AND TERMINATION

1. This Agreement is effective as of the Effective Date and will continue through the then-current Term as provided in the Work Order(s) and/or Master Service Agreement and/or through invoices generated through Indiqus.
2. Indiqus may suspend Customer’s access to the Platform and/or Customer’s Account, on the following grounds: (i) late payment/non-payment of undisputed Fees, (ii) non-renewal of the Platform services by Customer; (iii) Customer’s or its Users’ breach of user restrictions or (iv) in the event suspension is deemed necessary by Indiqus to prevent or address a security incident, or other harm to Customer, Indiqus, or Indiqus’s other customers.  Indiqus will notify Customer of any such suspension and will use diligent efforts to attempt to limit, where commercially feasible, the suspension to affected Customers in case of any incident occurring as described in Point (iv)  and will immediately restore the availability of the same as soon as the issues leading to the suspension are resolved.  Such suspension will in no way affect Customer’s other obligations under this Agreement.
3. Termination (General). Either Party can terminate this Agreement at any time upon giving 180 days of prior written notice
4. Termination for Cause. Either party may terminate this Agreement by written notice to the other party in the event that (i) such other party materially breaches this Agreement and does not cure such breach within thirty (30) days of such notice, or (ii) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

DISCLAIMERS

THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND INDIQUS (AND OUR SUPPLIERS) EXPRESSLY DISCLAIMs ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT.  WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE services WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE.  IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE. Indiqus DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO ANY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES. Indiqus IS NOT RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY THIRD-PARTY SERVICES ASSOCIATED WITH OR UTILIZED IN CONNECTION WITH THE SERVICES, INCLUDING THE FAILURE OF ANY SUCH THIRD-PARTY SERVICES OR SUPPORTED PLATFORMS.

LIMITATION OF LIABILITY

1. SUBJECT TO APPLICABLE LAW AND NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DOWNTIME COSTS, LOSS OF DATA, RESTORATION COSTS, LOST PROFITS, OR COST OF COVER) REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED ON CONTRACT, TORT, WARRANTY OR ANY OTHER LEGAL THEORY
2. EXCEPT FOR AN ACTION BROUGHT FOR DATA CLAIMS OR IP CLAIMS, LIABILITY OF INDIQUS AND THAT OF ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES RECEIVED OR PAYABLE TO INDIQUS IN THE THREE MONTHS PRECEDING THE CLAIM (“THE GENERAL LIABILITY CAP”)
3. IN THE CASE OF IP CLAIMS AND DATA CLAIMS, INDIQUS AND ITS AFFILIATES’ TOTAL LIABILITY TO THE CUSTOMER AND ITS AFFILIATES FOR ALL SUCH CLAIMS IN THE AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY TYPE) WILL NOT EXCEED TWO TIMES (2X) THE GENERAL LIABILITY CAP (“SUPERCAP”).
4. IN NO EVENT WILL EITHER PARTY (OR ITS RESPECTIVE AFFILIATES) BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL LIABILITY CAP AND THE SUPERCAP.  SIMILARLY, THE FOREGOING CAPS WILL NOT BE CUMULATIVE; IF A PARTY (AND/OR ITS AFFILIATES) HAS ONE OR MORE CLAIMS SUBJECT TO EACH OF THOSE CAPS, THE MAXIMUM TOTAL LIABILITY FOR ALL CLAIMS IN THE AGGREGATE WILL NOT EXCEED THE APPLICABLE CAP.
5. THE PARTIES AGREE THAT THIS SECTION WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE APPLICABLE MONETARY CAPS SET FORTH IN THIS SECTION WILL APPLY ACROSS THIS AGREEMENT AND ANY AND ALL SEPARATE AGREEMENT(S) ON AN AGGREGATED BASIS, WITHOUT REGARD TO WHETHER ANY INDIVIDUAL CUSTOMER AFFILIATES HAVE EXECUTED A SEPARATE WORK ORDER.

INDEMNIFICATION

1. Indemnification by Indiqus. Indiqus will defend Customer and  its Affiliates, from any third party claim alleging that Customer’s use of the Indiqus Platform as contemplated hereunder infringes such third party’s patent, copyright and/or trademark intellectual property rights (an “IP Claim”), and will indemnify and hold harmless Customer and its Affiliates from and against any damages and costs awarded against Customer or its Affiliates, or agreed in settlement by Indiqus (including reasonable attorneys’ fees) resulting from such IP Claim. Indiqus will have no liability or obligation with respect to any IP Claim if such claim is caused in whole or in part by (i) unauthorized use of the Indiqus Platform by Customer, its Affiliates or Users; (ii) modification of the Platform by anyone other than Indiqus or its representatives; or (iii) the combination, operation or use of the Platform with other data, hardware or software not provided by Indiqus. If Customer’s use of the Platform results (or in Indiqus’ opinion is likely to result) in an IP Claim Indiqus may at its own option and expense (a) procure for Customer the right to continue using the foregoing items as set forth hereunder; (b) replace or modify them to make them non-infringing; or (c) if options (a) or (b) are not commercially reasonably as determined by Indiqus, then either Customer or Indiqus may terminate Customer’s subscription to the Platform, whereupon Indiqus will refund Customer, on a pro-rated basis, any Fees Customer has previously paid Indiqus for the corresponding unused portion of the services through the Platform. This section state Indiqus’ entire liability and Customer’s exclusive remedy with respect to an IP Claim.
2. Indemnification by Customer. Customer will defend Indiqus from any third party claim (“Claim”), and will indemnify and hold harmless  Indiqus from and against any damages and costs awarded against Indiqus, or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim, to the extent caused by: (i) Customer’s or its Affiliate’s unauthorized supply, disclosure, or processing of Customer Data, including Personal Data therein, or (ii) Customer’s or its Affiliate’s violation of laws applicable to Customer’s or its Affiliate’s business.
3. Indemnification Procedures. In the event of a potential indemnity obligation under this Section 10, the indemnified party will: (i) promptly notify the indemnifying party in writing of the claim, (ii) allow the indemnifying party the right to control the investigation, defense and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense, and (iii) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. Failure by the indemnified party to notify the indemnifying party of a claim under this Section will not relieve the indemnifying party of its obligations under this Section, however, the indemnifying party will not be liable for any litigation expenses that the indemnified party incurred prior to the time when notice is given or for any damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to the indemnifying party in accordance with this Section. The indemnifying party may not settle any claim that would bind the indemnified party to any obligation (other than payment covered by the indemnifying party or ceasing to use infringing materials) or require any admission of fault by the indemnified party, without the indemnified party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Any indemnification obligation under this Section will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party’s prior written consent.

MISCELLANEOUS

1. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, Indiqus may assign this Agreement in its entirety without the Customer’s consent to its Affiliate or Subsidiary or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment in violation of this section will be null and void.
2. Entire Agreement. This Agreement, together with any Work Order, and/or Master Service Agreement, Privacy Policy and any supplemental Terms constitutes the entire agreement and supersedes any and all prior agreements or communications between Customer and Indiqus regarding the subject matter hereof. If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the original provision, and the remaining provisions of this Agreement will remain in effect. If there is a dispute in the terms of the various documents, then Master Services Agreement shall prevail first, then the Work Order and these Terms.
3. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
4. The sections on Use Restrictions, Intellectual Property, Fees and Payment, Term, Termination and Suspension, Confidentiality, Warranty Disclaimer, Limitation of Liability, Indemnification, Entire Agreement, Survival, Notices, Governing Law, Dispute Resolution and Definitions will survive any termination of termination of the Agreement. Termination of this Agreement will not limit either party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.
5. All notices to be provided by one party to the other under this Agreement may be delivered in writing by (i) nationally recognized overnight delivery service or to the mailing address provided on the Order Form; or (ii) electronic mail to the e-mail address provided for Customer’s Account. The address for a notice to Indiqus is: Indiqus Technologies Private Limited, A24/9, 2^nd Floor, Mohan Cooperative Industrial Estate, New Delhi – 110044 with a copy to [email protected]  by electronic mail. All notices will be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, five (5) business days after being deposited in the mail or with a courier as permitted above.
6. Force Majeure.  Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure results from any cause beyond such party’s reasonable control, including but not limited to but not limited to, acts of God, acts of government, acts of terror or civil unrest, pandemics, shutdowns or lockdowns through government orders, Internet failures, or acts undertaken by third parties not under the performing party’s control, including, without limitation, denial of service attacks (“Force Majeure Event”). In the event that a Force Majeure Event continues for a period of thirty (30) consecutive days, the other party may terminate this Agreement written notice to the non-performing party.
7. Governing Law and Dispute Resolution. The Parties to this Agreement intend to discharge their obligations in utmost good faith. The Parties therefore agree that they will, at all times, act in good faith, and make all attempts to resolve all differences howsoever arising out of or in connection with this Agreement through mutual discussion. Any dispute arising out of or in connection with this Agreement (“Dispute”) shall first be referred to the respective senior management of the Parties for discussion and resolution no later than 30 (thirty) working days from the date on which either Party gives written notice to the other Party that such a Dispute exists. Such discussion may be held telephonically if travel is impractical for either Party. If the Dispute does not get resolved by mutual discussion, Parties may refer the Dispute to appropriate courts for resolution.
8. This Agreement shall be governed by the laws of India (both substantive and procedural) and the courts at Delhi shall have the exclusive jurisdiction in respect of any matter or dispute connected with this Agreement.

You can contact Indiqus at [email protected] or [email protected] to clarify any points as mentioned in this Agreement.