SUBSCRIPTION & PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT GOVERNS YOUR PURCHASE AND RECEIPT OF OUR PROFESSIONAL SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE FROM WEBSITE OR BY EXECUTING A STATEMENT OF WORK (“SOW”) OR ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT RECEIVE THE PROFESSIONAL SERVICES.
You may not receive Professional Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not receive Professional Services for purposes of evaluating or monitoring their quality or performance, or for any other benchmarking or competitive purposes.
This Agreement was last updated on <>. It is effective between You and Us as of the date of Your accepting this Agreement.
Thanks for using our product [THE MARKATI] and services (“Services”). The Services are provided by Trazikas Solutions Private Limited. (“Trazikas”), with corporate headquarters at OLYMPIA PLATINA, 9TH FLOOR, PLOT NO.33-B, SOUTH PHASE, GUINDY INDUSTRIAL ESTATE, GUINDY, CHENNAI, TAMIL NADU, INDIA 600032. Please read this Subscription and Professional Services Agreement (“Agreement”) before using the Services. By using our Services, you (“Customer”) are agreeing to these terms.
The Order Form is an executed under this Agreement and will specify the following: (a) the software-as-a-service product offering ( “Product”) that Customer is licensing, (b) the number of authorized individual non-concurrent users (“Users”), (c) the term Customer is licensed to use and access the Product (“Subscription Term”), (d) any implementation, configuration, training, or consulting services, additional modules, and/or add-on products or services relating to the Product, (e) any Professional Services Credits purchased, and (f) all other necessary information, including whether the Product being licensed is for “internal” usage (licensed for use solely within Customer’s organization for their employees and independent contractors) or “external” usage (licensed for use by Users who are primarily third parties of Customer). Additional terms and conditions on an invoice or purchase order shall not apply and are void.
2.0 LICENSE GRANTS AND RESTRICTIONS.
2.1 License Grants.
Subject to the terms of this Agreement and during the applicable Subscription Term (as provided in the Order Form), TRAZIKAS grants to Customer a limited, worldwide, non-exclusive, non-transferable license, without resale or sublicense rights to access a single instance of the Product in a production environment, and permit Users to use, perform and display the Product in connection with the intended purpose of the Product unless otherwise expressly set forth within the Supscription Form, and (b) for the applicable Term, use and make a reasonable number of copies of any descriptions, instructions, or other documentation made available in connection with the Product, if any (the “Documentation”). Customer acknowledges the phrase “powered by Trazikas” appears on their Product website. The rights granted to Users in this Section 2.1 are limited to the number of Users set forth in the Order Form. The applicable Subscription Term for each website purchased will be as set forth in the applicable Subscription Form.
2.2 License Restrictions.
Except as otherwise expressly permitted under this Agreement, Customer agrees not to: (a) reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the Product, the Services or any portion thereof; (b) distribute, transfer, grant sublicenses to, or otherwise make available the Product or any portion thereof i) to third parties (other than authorized Users), including, but not limited to, making such Product available (ii) through resellers or other distributors, or (iii) as an application service provider, service bureau, or rental source; (c) embed or incorporate in any manner the Product or Services into other applications of Customer or third parties without Trazikas prior written consent (d) create modifications to or derivative works of the Product or Services; (e) reproduce the Product; (f) use or transmit the Product in violation of any applicable law, rule or regulation, including any export/import laws; (g) in any way access, use, or copy any portion of the Product (including the logic and/or architecture thereof and any trade secrets included therein) to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with the Product; (h) use the Product to store or distribute any information, material or data that is harassing, threatening, infringing, libelous, unlawful, obscene, or which violates the privacy or intellectual property rights of any third party; or (i) remove, obscure or alter any copyright notices or any name, trademark, service mark, hyperlink or other designation of Trazikas displayed on any display pages within the Product (“THE MARKATI”). Customer shall not permit any affiliate, subsidiary or other third party to perform any of the foregoing actions and shall be responsible for all damages and liabilities incurred as a result of such actions.
3.0 SUPPORT AND MAINTENANCE.
Trazikas will use its commercially reasonable efforts to make the Product available 24 hours a day, 7 days a week, excluding planned downtime, Force Majeure Events (as defined below), and Internet service interruptions. Trazikas will provide support services in accordance with of the Trazikas Support and Service Level Agreement (“Support Services”).
4.0 PROFESSIONAL SERVICES.
If Customer has purchased Professional Services Credits, Customer will provide all assistance reasonably requested by Trazikas in connection with the Professional Services, including, but not limited to access to information, personnel, resources, facilities, and equipment. Trazikas will retain all right, title and interest in and to all deliverables (including any intellectual, property rights therein) provided in connection with the Product or any Professional Services (“Deliverables”). If travel is requested by Customer, Trazikas will invoice Customer for all reasonable expenses related to such travel, subject to any corporate travel and expense policies provided to Trazikas by Customer.
5.0 PROPRIETARY RIGHTS.
As between the parties, Trazikas will retain all ownership rights in and to the THEMARKATI Marks, the Product (including any optional functionality), the Documentation, Deliverables, all updates and upgrades provided as part of Support Services and other derivative works and enhancements of the Product and/or Documentation that are provided by Trazikas, and all intellectual property rights incorporated into or related to the foregoing. Trazikas periodically installs updates and/or upgrades to its Product without specific notice. Customer acknowledges Product may change from updates and/or upgrades, and agrees to such changes provided that the Product’s performance is not materially decremented. Customer acknowledges that the goodwill associated with the THE MARKATI Marks belongs exclusively to Trazikas, and Customer has a limited right to use THE MARKATI Marks during the Subscription Term Upon request, Customer will cease its use of any THE MARKATI Marks. All rights not expressly licensed by TRAZIKAS under this Agreement are reserved. Customer agrees to provide a limited license to TRAZIKAS to use Customer’s name in the host name of Customer’s site (e.g.,
Trazikas warrants that the Product, as delivered and when used in accordance with the Documentation, (a) will perform in all material respects as specified in such Documentation for the Subscription Term from Customer’s initial receipt of or access to the Product, and (b) will not contain any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus,” “preventative routines” or other computer software routines intentionally designed to permit unauthorized access to or use of either the Product’s or Customer’s computer systems (“Viruses”). In the event of any breach of the warranty in subsection (a) above, Trazikas shall diligently remedy any deficiencies that cause the Product to not conform to the foregoing warranty promptly after its receipt of written notice from Customer. Trazikas will not be liable to the extent that any breach of the foregoing warranties are caused by (i) third-party components (including in combination with the Product) not provided by Trazikas or any open source components included within the Product, (ii) Customer modifications to the Product or the Product’s interoperability with such Customer modifications, (iii) unauthorized use or use of the Product other than in accordance with the Documentation or (iv) Viruses introduced by Customer, its affiliates; subsidiaries, agents, Users or others (collectively, “Exclusions”). Each party warrants that it has the authority and power to enter into and perform, and to make all representations, warranties and grants, under this Agreement. Trazikas hereby warrants, represents and undertakes that the Services and any Deliverables will: (a) comply with the descriptions and representations described in this Agreement, (b) comply with the specifications in the applicable Order Form, and (c) comply with all applicable laws and regulation. In addition to the other warranties given by Trazikas, Trazikas represents and warrants that it will perform the Services: (a) in a good, timely, efficient, professional and workmanlike manner using then-current technology, (b) using Trazikas personnel who are fully familiar with the technology, processes and procedures to be used to deliver the Services, (c) with at least the degrees of accuracy, quality, efficiency, completeness, timeliness and responsiveness as are equal to or higher than the accepted industry standards applicable to the performance of the same or similar services, and (d) in compliance and in accordance with the provisions of this Agreement and the applicable Order Form ). If Trazikas breaches this warranty, Customer will state the deficiencies and corrective action in writing to which Trazikas will promptly correct or cause the correction of the deficiencies giving rise to the breach without charge.
THE EXPRESS WARRANTIES IN SECTION 6 ARE THE EXCLUSIVE WARRANTIES OFFERED BY TRAZIKAS AND ALL OTHER CONDITIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY CONDITIONS OR WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, TITLE, MERCHANTABILITY AND THOSE THAT ARISE FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE ARE HEREBY DISCLAIMED. TRAZIKAS DOES NOT WARRANT THAT CUSTOMER USE OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
Trazikas will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that the Product or Deliverables (or any component thereof owned by Trazikas.) infringes a copyright or misappropriates any trade secret rights, and Trazikas will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on the Customer (a) notifying Trazikas promptly in writing of such action, (b) giving Trazikas sole control of the defense thereof and any related settlement negotiations, and (c) cooperating with and, at Customer’s reasonable request and expense, assisting in such defense. If the Product (or any component thereof owned by Trazikas) becomes, or in Trazikas opinion is likely to become, the subject of an infringement claim, Trazikas may, at its option and expense, either (a) procure for Customer the right to continue exercising the rights licensed to Customer in this Agreement, or (b) replace or modify the Product so that it becomes non-infringing and remains functionally equivalent. If neither of the foregoing options is, in Trazikas reasonable opinion, commercially reasonable, Trazikas may terminate this Agreement and will refund to Customer a pro-rata portion of any applicable prepaid Fees. Notwithstanding the foregoing, Trazikas will have no obligation under this Section 8.0 or otherwise with respect to any infringement claim based upon any Exclusions. This Section 8.0 states Trazikas entire liability and Customer’s sole and exclusive remedy for infringement claims and actions.
9.0 LIMITATIONS ON LIABILITY.
OTHER THAN WITH RESPECT TO CLAIMS FOR INDEMNITY BROUGHT PURSUANT TO SECTION 8.0, ABOVE, TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANY PARTY IN CONNECTION WITH THIS AGREEMENT, INCLUDING THE PRODUCT, SUPPORT SERVICES AND INTELLECTUAL PROPERTY PROVIDED HEREUNDER, WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, FOR (A) ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING ANY DAMAGE TO BUSINESS REPUTATION, LOSS OF GOODWILL, LOST OPPORTUNITY, LOSS OF EARNINGS, LOST REVENUE, LOST PROFITS OR LOST DATA), WHETHER FORESEEABLE OR NOT AND WHETHER A PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) ANY AMOUNTS IN EXCESS OF THE TOTAL OF THE FEES ACTUALLY PAID AND THE FEES PAYABLE TO TRAZIKAS BY CUSTOMER UNDER THIS AGREEMENT DURING THE ONE (1) YEAR PERIOD PRIOR TO THE DATE THAT SUCH LIABILITY FIRST ARISES.
Each party acknowledges that, during the Term, it will receive information from the other party that is highly confidential and proprietary, including but not limited to information concerning such party’s business, marketing, financial and operations, the Documentation, and/or Product (“Confidential Information”). Neither party shall, either directly or indirectly, divulge, disclose or communicate, exploit, duplicate, publish, or otherwise reveal or make available to any third party, the Confidential Information of the other, whether delivered electronically or in writing, or obtained through observation of such other party’s business. Each party agrees to hold Confidential Information of the other in strict confidence, exercising the same standard of care as it uses to protect its own confidential information, but no less than a commercially reasonable standard of care. Each party agrees to the disclosure of their Confidential Information to the other party’s employees and subcontractors solely on a need-to-know basis and only after the employee or subcontractor has executed an agreement that protects the Confidential Information of the other party with confidentiality provisions equivalent to those contained in this Agreement. The recipient of Confidential Information shall continue to maintain its obligation of confidentiality for a period of two (2) years following the expiration or termination of this Agreement. Each party warrants that it has implemented and agrees to maintain administrative, physical and technical safeguards that protect the confidentiality and integrity of all Confidential Information received from the other party. The following shall not be deemed to be Confidential Information for purposes of this Agreement: (a) information already lawfully known to one (1) party at the time of disclosure by the other, (b) information generally known to the public other than as a result of disclosure in violation of this Section, (c) information lawfully obtained from any third party that has no duty or obligation of confidentiality with respect to such information. Confidential Information may be disclosed to the extent required by court order or other legal process, provided that the party directed to disclose shall give the maximum practical advance written notice of same to the other party, and shall use its best commercial efforts to limit the disclosure and maintain the confidentiality of such Confidential Information. In addition, the party directed to disclose shall permit the other party to attempt to limit such disclosure by appropriate legal means. The parties recognize that a breach of this Section will result in irreparable harm for which monetary damages would not be adequate. In the event of such breach, and without limiting the right of a party to seek any other remedy or relief to which it may be entitled under law, each party agrees that the other is entitled to equitable relief, including temporary and permanent injunctive relief and specific performance.
11.0 TERM, TERMINATION AND EFFECT.
The applicable Subscription Term will be as set forth in the applicable Subscription Form. The term of this Agreement (“Term”) shall continue in effect until the end of Subscription Term set forth on an applicable Order Form. This Agreement may be terminated by either party if the other party materially breaches this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching party. Upon any termination of this Agreement, without prejudice to any other rights or remedies which the parties may have, (a) all rights licensed and obligations required hereunder shall immediately cease, provided that Sections 6.0, 7.0, 9.0 through 11.0 and 14.0 shall survive termination; (b) Customer will promptly delete and destroy any and all Trazikas Confidential Information in its possession or control, and upon request by TRAZIKAS shall certify in writing such destruction; (c) Customer shall pay to Trazikas any outstanding fees that have accrued prior to the date of termination. Additionally, a particular Order Form may be terminated by TAZIKAS in the event that Customer fails to pay applicable fees when due.
12.0 FEES AND PAYMENT.
Subject to the terms and conditions herein, all fees for the Product, Professional Services and/or Support Services will be set forth on the applicable Order Form (“Fees”). Unless otherwise agreed to in an Order Form bi-laterally signed by the parties, Customer will pay to Trazikas all undisputed Fees within thirty (30) days after the invoice date. Payments will be sent to the address included on the invoice. All amounts payable shall be in the currency of the India or United States of America and specifically exclude (and Customer is responsible for) any and all applicable sales, use, excise, customs duties, tariffs and other taxes, (other than taxes based on Trazikas income) which if applicable shall be paid by Customer.
13.0 CUSTOMER DATA.
Customer retains all rights in any data, or information that Customer uploads to the Product (“Customer Data”). Customer shall have sole responsibility for the accuracy, reliability, appropriateness, ownership and right to use Customer Data. Trazikas will not engage any third party to process Confidential Information under this Agreement without: (i) a contractual relationship with such third party which includes equivalent information security controls, data privacy and confidentiality requirements as those set forth under this Agreement; (ii) performing and documenting a risk analysis to ensure that the processing of Confidential Information by such third party will not compromise Trazikas obligations under applicable laws; and (iii) performing a privacy and information security due-diligence assessment of such third party’s privacy and security practices to ensure compliance with the requirements set forth under this Agreement. Trazikas obligation to retain Customer Data expires at the end of the Subscription Term. Within 30 days of the end of the Subscription Term and upon written request from Customer, Trazikas will provide Customer Data in a .csv file format or other mutually agreed file format.
Replacement of Trazikas Personnel. If either party determines that the continued assignment of any Trazikas personnel is not in the best interests of the Customer, Customer may request in writing that the individual be replaced. Within ten (10) business days after Trazikas receipt of that request, Trazikas will remove that individual from Customer’s account and replace that individual, using commercially reasonable efforts, with Trazikas personnel of suitable ability and qualifications at no additional cost.
Independent Contractors. The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the parties.
Force Majeure. Each party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, labor disputes and strikes, riots, war and governmental requirements (each a “Force Majeure Event”). The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
Acceptance. The Product is deemed accepted upon receipt of appropriate log in credentials.
Assignment. Customer will not assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part) without Trazikas prior written consent.
Governing Law. The exclusive venue and jurisdiction for any and all disputes, claims and controversies arising from or relating to this Agreement shall be shall be referred to & finally resolved by arbitration in accordance with the Indian Arbitration & Conciliation Act, 1996. The arbitration shall be a "documents only", evidence through affidavits "fast track" arbitration. The Tribunal shall consist of one (1) arbitrator to be appointed by Traziks Solutions Private Limited. The exclusive seats of arbitration shall be Chennai, India & the language of the arbitration shall be English.
Waiver. All modifications to or waivers of any terms of this Agreement must be in a writing that is signed by the parties hereto and expressly references this Agreement. In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
Entire Agreement. This Agreement includes any applicable Order Form(s) and any Service Descriptions attached thereto. Collectively, the foregoing constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals submitted by Trazikas. In the event of a conflict between this Agreement and any other terms and conditions, to the extent that they are inconsistent, the following order of precedence shall apply: the Order Form, this Agreement, and attachments to an Order Form (including Service Descriptions). The terms on any purchase order or similar document submitted by Customer to Trazikas will have no effect and are hereby rejected.
Notices. All notices, consents and approvals under this Agreement must be delivered in writing by courier, or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at its main corporate headquarters.
The product-specific details sections provide additional information relevant to particular Trazikas products. This statement applies to the Trazikas products listed below, as well as other Traziaks products that display this statement. References to Trazikas products in this statement include Trazikas services, websites, apps, software and devices.
16.0 INDEPENDENT SERVICES
Your use of each Service confers upon you only the rights and obligations relating to such Service, and not to any other service that may be provided by THEMARKATI.
17.0 THEMARKATI REACH RIGHTS
THEMARKATI reserves the rights to display sponsored ads on the Web site. These ads would be marked as “Sponsored ads”. Without prejudice to the status of other content, THEMARKATI will not be liable for the accuracy of information or the claims made in the Sponsored ads. THEMARKATI does not encourage the Customer to visit the Sponsored ads page or to avail any services from them. THEMARKATI will not be liable for the services of the providers of the Sponsored ads.
You represent and warrant that you will use these Services in accordance with applicable law. Any contravention of applicable law as a result of your use of these Services is your sole responsibility, and THEMARKATI accepts no liability for the same.
18.0 CHANGES TO THIS MASTER SUBSCRIPTION AGREEMENT
We reserve the right to make change(s) to this Master Subscription Agreement from time to time, which shall be notified to you by posting a notice on the website or posting a notice in your account when you first login after we have made changes or send to your registered EMail. If you receive notification of changes in our Master Subscription Agreement, you must review the agreement carefully to make sure you understand and accept our practices and procedures to continue using our services.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the Customer entity signing this Agreement. "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.
“Customer Data” means all electronic data submitted by or on behalf of Customer to the Service.
“Documentation” means Trazikas user guides and other end user documentation for the Service available on the online help feature of the Service, as updated by Trazikas from time to time.
“Order Form” means an ordering document that specifies the Service, Training Services, Support Services, and/or Professional Services purchased by Customer under this Agreement. Each Order Form shall include the Service ordered, appointments, pricing, bill to, sold to, and the Term. Order Forms shall be subject solely to and incorporate by reference the terms of this Agreement.
“Professional Services” means implementation services provided by Trazikas in connection with the Service, as described more fully in a Statement of Work. Professional Services shall not include the Service.
“Service” means the on-line, web-based identity and access management services provided by Trazikas, as specified on an Order Form. The Service shall not include the Professional Services.
“Statement of Work” means a document that describes certain Professional Services purchased by Customer under this Agreement. Each Statement of Work shall incorporate this Agreement by reference.
“Support Services” means the support services provided by Trazikas in accordance with Trazikas then-current support policy and as identified on an Order Form. In the event that the level of support is not identified on the Order Form, Customer shall receive a “basic” level of support that is included in the Service.
“Training Services” means the education and training services provided by Trazikas as described more fully in an applicable Order Form.
“Term” means the period identified on an Order Form, or of a renewal document, during which Customer’s Users are authorized to use or access the Service pursuant to the terms set forth in this Agreement, unless earlier terminated pursuant to Section 11.
“Users” means individuals who are authorized by Customer to use the Service, for whom a subscription to the Service has been procured. Users may include, but are not limited to, Customer’s and Customer’s Affiliates’ employees, consultants, clients, external user, contractors and agents.