PHRAZOR | SUBSCRIPTION AGREEMENT
This subscription agreement is executed on [●]:
vPhrase Analytics Solutions Pvt. Ltd., a company incorporated under the provisions of the Companies Act, 2013, having its registered office at 301, T-Square, Saki Vihar Road, Andheri (E), Mumbai - 400072, Maharashtra, India (hereinafter referred to as “Company”, which expression shall, unless repugnant to the context or meaning hereof, be deemed to mean and include its successors and assigns) of the One Part;
[●], a company incorporated under the provisions of the Companies Act, 1956/2013 and having its registered office at [●] (hereinafter referred to as the "Subscriber”, which expression shall, unless it be repugnant to the subject or context thereof, be deemed to mean and include its successors and permitted assigns), of the Other Part.
[●], a sole proprietorship with its office at [●] and represented by its sole proprietor [●] residing at [●] (hereinafter referred to as the “Subscriber”, which expression shall, unless it be repugnant to the subject or context thereof, be deemed to mean and include the said proprietor’s legal heirs, administrators and permitted assigns), of the Other Part.
[●], a registered partnership/limited liability partnership having its office at [●]and represented by its partner [●](hereinafter referred to as the “Subscriber”, which expression shall, unless it be repugnant to the subject or context thereof, be deemed to mean and include its successors and permitted assigns), of the Other Part.
A. The Company is engaged, inter alia, in the business of providing information technology related services.
B. The Subscriber is engaged, inter alia, in the business of [●].
C. Pursuant to the discussions had between the Parties, the Subscriber is desirous of entering into an arrangement with the Company to avail the Subscription Services (hereinafter defined) and accordingly Parties are executing this Agreement to record the terms and conditions agreed in relation thereto.
IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES AS FOLLOWS:
1.1. “Authorized User” means those uniquely identified individuals who are authorized by the Subscriber to access and use the Subscription Service;
1.2. “Affiliate” means, in relation to: (a) a natural Person, the relatives of such natural Person and/or a Person controlled by such natural Person; and (b) a Person other than a natural Person: (i) any other Person controlled by such Person (directly or indirectly); (ii) any other Person controlling such Person (directly or indirectly); or (iii) any other Person controlled (directly or indirectly) by any other Person controlling such Person;
1.3. “Agreement” shall mean this subscription agreement, together with the recitals, annexes, schedules and exhibits attached hereto and any amendments thereto;
1.4. “Confidential Information” means: (a) the Subscription Service (which is solely Company’s confidential information); (b) any information of a party that is disclosed in writing or orally and designated confidential at time of disclosure (and, for oral disclosures, summarized in writing within 30 (thirty) days of initial disclosure and delivered in written summary form to receiving party), or that, due to the nature of the information or circumstances of disclosure, receiving party should reasonably understand to be disclosing party’s confidential information; and (c) the terms of this Agreement, any Subscription Documents, and any amendment or attachment to any of these (which will be deemed Confidential Information of both parties);
1.5. “Documentation’ shall mean and include all operator and user manuals, training materials, guides, listings, specifications, and other materials for use in conjunction with the Subscription Service;
1.6. “Effective Date”shall mean the date of relevant subscription to the Subscription Service (as stated in the concerned Subscription Document, as applicable) or the initial delivery date of credentials to access the Subscription Service (whichever is earlier);
1.7. “Intellectual Property Rights” shall mean all intellectual property or other proprietary rights worldwide, including patent, trademark, service mark, copyright, trade secret, know-how, moral right, and any other intellectual and intangible property rights, including all continuations, continuations in part, applications, renewals, and extensions of any of the foregoing, whether registered or unregistered;
1.8. "Party" shall mean either the Company or the Subscriber. "Parties" shall mean a collective reference to the Company and the Subscriber;
1.9. “Person” shall mean any individual, firm, company, government, state or agency of a state, local or municipal authority or government body or any joint venture, a Hindu undivided family (whether or not registered), an estate, a trust, a limited or unlimited liability company, a company limited by guarantee, a body corporate, a limited liability partnership, association or partnership (whether or not having separate legal personality) or any other legal entity;
1.10. “Phrazor System” shall mean the technology developed by the Company and an online hosted service which can be accessed at www.phrazor.ai and/or https://app.phrazor.ai.The illustrative details of functionality of Phrazor System are stated in Annexure A.
1.11. “Subscription Service” shall mean a subscription based software-as-a-service provided by the Company to the Subscriber to use Phrazor System;
1.12. “Subscriber Data” means the data, information, material uploaded/provided by or for the Subscriber or its agents, employees, or contractors, and processed using the Subscription Service;
1.13. “Subscription Fee” shall mean any fee paid by the Subscriber to avail the Subscription Services of the Company;
1.14. “Subscription Term” means the period of authorized access to and use of the Subscription Service, or any such specific date as set forth in the relevant Subscription Document, as the case may be; and
1.15. “Subscription Document(s)” means any documents executed between the Company and the Subscriber which references this Agreement. Each Subscription Document which references this Agreement shall be deemed a part of this Agreement, including not limited to (a) any work order (solely with respect to that work order); and (b) any other document incorporated by reference herein.
2. SOFTWARE AS A SERVICE SUBSCRIPTION
2.1. Subscription: Subject to the terms of this Agreement, the Company hereby grants to the Subscriber a non-sub licensable, non-transferable, non-exclusive subscription to access and use the Service, solely for Subscriber’s internal business purposes. The Subscriber agrees to comply with the terms and conditions set out in this Agreement. The Subscriber also agrees to refrain from taking any steps, such as reverse assembly or reverse compilation, to derive a source code equivalent to the Company’s Intellectual Property Rights. All Company’s Intellectual Property Rights licensed to Subscriber under this Agreement shall be used for Subscriber’s internal business purposes, shall not be reproduced, distributed or copied in whole or in part. The Subscriber shall be provided with the necessary trouble shooting support services to use the Subscription Service in relation to periodical maintenance and updation of Phrazor System from time to time. If is clarified that, if requested by the Subscriber, any specific support over and above periodical maintenance and updation of Phrazor System shall be over and above the Subscription Fee payable by the Subscriber.
2.2. Authorized User: In order to use the Subscription Service, the Subscriber can access the Subscription Services on the Company’s website (as stated above). To access the Subscription Services, the Subscriber will need to register on the Company’s website and create a username and password. If required, and upon request from the Subscriber, the Company shall assign a unique combination of a username and password to the Subscriber to access the Subscription Services, provided that, the organisation provides the Company with a list of Authorized Users (along with the email addresses) which will be provided access to Phrazor System and the Company shall generate the usernames and one-time passwords for the relevant Authorized Users. It is the Subscriber’s sole responsibility to (a) keep the username and password secure and confidential; and (b) provide the username(s) and password(s) to its employee / Authorized Users for accessing Phrazor System. The Subscriber may allow its contractors and Affiliates to access Subscription Service as Authorized Users in accordance with this Agreement, provided the Subscriber remains liable for all acts and omissions of the Subscriber’s Affiliates and Contractors as if their breach were breach committed by the Subscriber.
3. REPRESENTATIONS AND WARRANTIES
3.1. Each Party represents and warrants that:
(a) It has the power and requisite authority, permission, approval and sanction to enter into and to exercise its rights and to perform its obligations hereunder;
(b) It has taken all necessary action to authorize the execution of and the performance of its obligations hereunder;
(c) The obligations expressed to be assumed by it hereunder are legal, valid, binding and enforceable; and
(d) Neither execution nor performance of this Agreement will contravene any provision of any Applicable Laws; or any contract, agreement or document by which it is/may be bound.
4. SUBSCRIBER DATA
4.1. The Subscriber is solely and absolutely responsible for the Subscriber Data uploaded/provided through the Subscription Service. Subscriber shall ensure that the Subscriber Data does not: (a) infringe or violate any intellectual property rights, publicity/privacy rights, law or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information. The Subscriber shall fully indemnify the Company should damage be caused to the Company due to any such actions. The Company is not and shall not be obliged to review the Subscriber Data for accuracy or potential liability. The Company shall not have any obligation to moderate any Subscriber Data provided.
4.2. The Subscriber represents and warrants that: (a) it will not use the Services in a manner that: (i) is prohibited by any law or regulation; (ii) will disrupt a third parties’ similar use of the Subscripting Service; (b) it will be responsible for any acts or omissions on the part of the User who uses the Services and any content/data posted by such User; (c) it will not violate or tamper with the security of any the Company’s Intellectual Property; and (d) it has sufficient rights in the Subscriber Data to authorize the Company to process, distribute and display the Subscriber Data as contemplated by this Agreement.
4.3. As between the Parties, the Subscriber shall retain all right, title and interest (including any and all intellectual property rights) in and to Subscriber Data as published using Subscription Service. Subject to the terms of this Agreement, the Subscriber hereby grant to the Company a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, and distribute, perform and display (including publicly), modify and create derivative works of the Subscriber Data solely to the extent necessary to provide the Subscription Service in accordance with this Agreement.
4.4. The Company does not provide an archiving service. The Company agrees it shall not intentionally delete any Subscriber Data prior to termination or expiration of the applicable subscription. Except as otherwise set forth herein, the Company expressly disclaims all other obligations with respect to storage of Subscriber Data.
5. SUBSCRIPTION FEE
5.1. The detailed structure of the Subscription Fee for the Subscription Services is detailed in Annexure B of this Agreement, which is exclusive of all applicable taxes. Except as expressly set forth herein, all fees are non-refundable once paid.
5.2. Payments shall be due in advance and should be made within 15 (fifteen) days from the date of receipt of invoice.
5.3. The Subscription Service will only be rendered upon receipt of the said payments. In any event, where the payment is not received, Company at its sole discretion, shall suspend or terminate the Subscription Services by providing 7 (seven) days prior notice via email or fax.
5.4. If any withholding tax is required by applicable law to be paid by the Subscriber in relation to payments due to the Company hereunder, the Subscriber will provide the Company with official receipts and/or certificates from the appropriate taxing authorities to establish that any applicable taxes have been paid.
6. TERM AND TERMINATION
6.1. This Agreement shall be effective from the Effective Date till the elapse of [●] ([●]) years from the Effective Date, unless terminated earlier in accordance with the terms of this Agreement.
6.2. Without prejudice to any other rights or remedies which it may have, either Party shall be entitled to terminate this Agreement forthwith by notice:
(a) if the other Party shall have committed a breach of this Agreement and either such breach is incapable of remedy or shall have continued unremedied for 30 (thirty) days after a notice specifying the breach and requiring the same to be remedied has been given to the defaulting Party; or
(b) if (save in relation to a re-organisation, re-construction or amalgamation not affecting the credit-worthiness of the other Party):
(i) an order is made or resolution is passed for the winding-up of the other Party or if a provisional liquidator is appointed in respect of the other Party; or
(ii) a receiver (which expression shall include administrative receiver) is appointed in respect of the other Party or all or any of its assets.
6.3. Notwithstanding anything to the contrary contained in this Agreement, the Company may terminate this Agreement at any time on giving the Subscriber 7 (seven) days' written notice.
6.4. Consequences of Termination
(A) Following service of a notice pursuant to Clause 6.3 above, in relation to termination of this Agreement, but prior to the effective date of such termination, each Party shall continue to abide by the terms and conditions of this Agreement in effect at such time and comply fully with its obligations hereunder during any period between the date of service of a termination notice and the date of actual termination.
(B) Upon termination of this Agreement for whatsoever reason and in addition to termination obligations specified elsewhere in this Agreement, the Subscriber shall ensure that all amount(s) payable for usage of the Subscription Services are paid to the Company.
(C) Upon termination of this Agreement for whatsoever reason and in addition to termination obligations specified elsewhere in this Agreement, the Subscriber shall ensure that all amount(s) payable for usage of the Subscription Services are paid to the Company.
6.5. Survival: The following Clauses shall survive any expiration or termination of this Agreement: 5 (Subscription Fee), 6 (Term and Termination), 7 (Intellectual Property), 8 (Confidentiality), 10.1 (Indemnity), 11 (Limitation of Liability), 12 (Limited Warranty and Disclaimer) and 13 (Miscellaneous).
7. INTELLECTUAL PROPERTY
The Subscriber agrees that the Subscription Service and the authorship, systems, ideas, methods of operation and other information contained in Phrazor System and the Subscription Service are proprietary information and intellectual property and/or the valuable trade secrets of the Company and that the Company is protected by civil and criminal law, and by the law of copyright, trade secret, trademark and patent in India, other countries and international treaties. This Agreement does not grant the Subscriber any rights to the intellectual property, including any trademarks or service marks of the Company. The Company owns and retains all right, title, and interest in and to the Subscription Service, including without limitation any error corrections, enhancements, updates or other modifications to the Subscription Service, whether made by the Company or any third party, and all copyrights, patents, trade secret rights, trademarks, and other intellectual property rights therein. The Subscriber’s possession, installation or use of the Subscription Service does not transfer to the Subscriber any title to the intellectual property in the Subscription Service, and the Subscriber will not acquire any rights to the Subscription Service except as expressly set forth in this Agreement. Except as stated herein, this Agreement does not grant the Subscriber any intellectual property rights in the Subscription Service and the Subscriber acknowledges that the subscription, as granted under this Agreement only provides the Subscriber with a right of limited use under the terms of this Agreement. The Company reserves all rights not expressly granted to the Subscriber in this Agreement.
8.1. Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party, provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any software, pricing, documentation or technical information provided by the Company (or its agents), performance information relating to Subscription Service, and the terms and conditions of this Agreement shall be deemed Confidential Information of the Company without any marking or further designation.
8.2. The Subscriber Data shall be deemed to be Subscriber’s Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information to anyone other than its affiliates, employees and consultants (“Representatives”) who have a need to know and who agree in writing to keep the information confidential on terms no less restrictive than those contained in this Agreement. The Parties will ensure that their respective Representatives comply with this Agreement and will be responsible for any unauthorized use or disclosure of Confidential Information by such Representatives.
8.3. Exceptions: The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the Receiving Party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party).
8.4. The Receiving Party acknowledges that disclosure of Confidential Information could cause substantial harm for which damages alone would not be a sufficient remedy, and therefore upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
8.6. Export Control laws: The Subscriber agree that (a) all use, exports, and imports related to this Agreement will be in compliance with the export control laws and regulations and (b) it shall not allow any third party to export, re-export, or transfer any part of Subscription Service in violation of any such laws and regulations. The foregoing obligations include but are not limited to the Subscriber or a third party accessing, exporting, transferring, or importing any Subscriber Data or the Subscription Service: (i) to any country subject to export control embargo or economic sanctions implemented by any agency of the respective country or foreign governments; or (ii) otherwise in violation of any export or import laws, regulations or requirements of any such country or foreign agency or authority.
9. OBLIGATIONS OF THE SUBSCRIBER
9.1. The Subscriber covenants to the Company that it shall not:
(A) emulate, clone, rent, lend, lease, sell, modify, decompile, or reverse-engineer the Subscription Service or create derivative works based on the Subscription Service or any portion thereof. All rights not expressly granted herein are reserved by the Company. Any such unauthorized use of the Subscription Service shall result in immediate and automatic termination of this Agreement and the subscription granted hereunder and will result in criminal and/or civil prosecution against the Subscriber;
(B) make any efforts to reverse engineer, decompile, or disassemble the Subscription Service or Phrazor System, or make any modifications or enhancements without the Company's express written consent;
(C) use the Subscription Service in hazardous environments requiring fail-safe performance where the failure of Subscription Service could lead directly or indirectly to death, personal injury, or severe property or environmental damage;
(D) give any competitor of Company direct or indirect access to the Subscription Service;
(E) permit any third parties or non-licensed entities, including contractors, to use the Subscription Service;
(F) use the Subscription Service for other than the use permitted hereunder;
(G) create derivative or merged works of the Subscription Service;
(H) use or allow use of Subscription Service for processing data of any person or entity other than the Subscriber;
(I) perform, publish or release any benchmarks or other comparisons regarding Subscription Service;
(J) alter or remove any proprietary rights notices or legends on or in Subscription Service;
(K) upload or publish any payment card information on Phrazor System or using Subscription Service. The Subscriber acknowledge that Subscription Service is not compliant with the Payment Card Industry Data Security Standards;
(L) enable access to the Subscription Service for a greater number of Authorized Users than the sum quantity of subscriptions or credentials purchased in the applicable Subscription Document; and
(M) upload to the Subscription Service or publish thereon any patient, medical or other protected health information regulated by the such laws of the concerned country from where the Subscriber accesses the Subscription Service, and acknowledges that the Company is not associated with any medical association. The Company will have no liability under this Agreement for health information, notwithstanding anything to the contrary herein.
10.1. The Subscriber hereby agrees to defend, indemnify and hold the Company harmless from and against all claims or demands made against the Company (and any related losses, expenses or attorneys’ fees) arising out of or relating to the Subscriber’s breach of the terms of the agreement, negligent use or wilful misuse of or negligent conduct or wilful misconduct regarding the use of the Service or derivatives, including but not limited to, any claims of personal injury, death, damage to property or violation of any laws or regulations.
10.2. The Company agrees to indemnify and hold harmless the Subscriber, against any and all losses, liabilities, judgments, awards and costs (including legal fees and expenses) arising out of or related to any third party claim that Subscriber's use or possession of the Subscription Service or Documentation, or the license granted hereunder, infringes or violates the copyright, trade secret or other proprietary right of any third party. The Company shall defend and settle at its sole expense all suits or proceedings arising out of the foregoing, provided that Subscriber gives the Company prompt notice of any such claim of which it learns.
11. LIMITATION OF LIABILITY
In no event shall either Party be liable for any special, incidental, punitive, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits or confidential or other information, for business interruption, for loss of privacy, for corruption, damage and loss of data or programs, for failure to meet any duty including any statutory duty, duty of good faith or duty of reasonable care, for negligence, for economic loss, and for any other pecuniary or other loss whatsoever) arising out of or in any way related to the use of or inability to use the Service, the provision of or failure to provide support or other services, information, software, and related content through the software or otherwise arising out of the use of the Subscription Service, or otherwise under or in connection with any provision of this Agreement, or arising out of any breach of contract or any tort (including negligence, misrepresentation, any strict liability obligation or duty), or any breach of statutory duty, or any breach of warranty of the Company. The Company’s entire liability and obligation to the Subscriber shall not exceed the fees paid or owed by the Subscriber to the Company under this Agreement during the 6 (six) months preceding the claim.
12. LIMITED WARRANTY AND DISCLAIMER
12.1. The Company warrants to the Subscriber that Subscription Service will operate in substantial conformity with the applicable Documentation. The Company does not warrant that the Subscriber’s use of Subscription Service will be uninterrupted or error-free, nor does the Company warrant that it will review the Subscriber Data for accuracy or that it will preserve or maintain the Subscriber Data without loss. The Company’s sole liability (and the Subscriber’s sole and exclusive remedy) for any breach of this warranty shall be, in the Company’s sole discretion and at no charge to the Subscriber, to use commercially reasonable efforts to correct the reported non-conformity, or if the Company determines such remedy to be impracticable, to allow the Subscriber to terminate the applicable Subscription Service and receive as its sole remedy a refund of: (a) the monthly subscription fees (on pro-rata basis) paid by the Subscriber or as may be specified in the applicable Subscription Documents and (b) any fees the Subscriber have pre-paid for use of Subscription Service or related services that the Subscriber have not received as of the date of the warranty claim.
12.2. Exclusions. The above warranty shall not apply: (i) unless the Subscriber make a claim within 30 (thirty) days of the date on which the condition giving rise to the claim first appeared; (ii) if Subscription Service is used with hardware or software not authorized in the Documentation; (iii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services; (iv) to any Trail Access or other use provided on a no charge or evaluation basis; or (v) to any such material using such functionality that is provided purely for reference purposes.
12.3. Warranty Disclaimer. This Clause 12 is a limited warranty clause and, except as expressly set forth in this Clause 12, Subscription Service, including without limitation the third-party codes are provided “as is”. Neither the Company nor its licensors makes any other warranties, conditions or undertakings, express or implied, statutory or otherwise, including but not limited to warranties of title, merchantability, fitness for a particular purpose, or non-infringement. the Subscriber may have other statutory rights. however, to the full extent permitted by law, the duration of statutorily required warranties shall be limited as provided herein. the Company shall not be liable for delays, interruptions, service failures and other problems inherent in use of the internet and electronic communications or other systems outside the reasonable control of the Company.
(a) Any notice and other communication provided for in this Agreement, including but not limited to a notice of waiver of any term, breach of any term of this Agreement and termination of this Agreement, shall be in writing and shall be first transmitted by facsimile/electronic transmission and then confirmed by internationally recognised courier service or registered mail, in the manner as elected by the Party giving such notice to the following addresses:
(b) In the case of notices to the Company:
Address : 301, T-Square, Saki Vihar Road, Andheri (E), Mumbai - 400072, Maharashtra, India
Attention : Mr. Neerav Parekh
Telephone : +91 99208 23666
Email : firstname.lastname@example.org
(c) In case of notices to the Subscriber:
Address : [●]
Attention : [●]
Telephone : [●]
Email : [●]
(d) All notices shall be deemed to have been validly given on (i) the business day immediately after the date of transmission with confirmed answer back, if transmitted by facsimile/electronic transmission, or (ii) the business day immediately after date of delivery, if transmitted by courier or registered airmail.
(e) Any Party may, from time to time, change its address or representative for receipt of notices provided for in this Agreement by giving to the other Parties not less than prior written notice of 10 (ten) business days.
13.2. Reservation of rights. Failure by either Party to insist upon strict performance of any of the provisions contained in this Agreement shall in no way constitute a waiver of its rights as set forth in this Agreement, at law or in equity, or a waiver of any other provisions or subsequent default by the other Party in the performance of or compliance with any of the terms and conditions set forth in this Agreement. No forbearance, indulgence or relaxation or inaction by a Party at any time to require performance of any of the provisions of this Agreement shall in any way affect, diminish or prejudice the right of such Party to require performance of that provision. Any waiver or acquiescence by a Party of any breach of any of the provisions of this Agreement shall not be construed as a waiver or acquiescence of any right under or arising out of this Agreement or of the subsequent breach, or acquiescence to or recognition of rights other than as expressly stipulated in this Agreement.
13.3. Severability. If any part or all of any provision of this Agreement is illegal or unenforceable, it may be severed from this Agreement and the remaining provisions of this Agreement shall continue to remain in force. Any invalid or unenforceable provision of this Agreement shall be replaced with a provision that is valid and enforceable and most nearly reflects the original intent of the unenforceable provision.
13.4. Entirety. This Agreement (including each Subscription Document, as applicable, and any other mutually agreed exhibits or attachments) constitutes the entire agreement between the Parties with respect to the subject matter hereof to the exclusion of all other understandings and assurances, relating to such subject matter either written or oral and supersedes all prior agreements and understandings between the parties relating to the subject matter hereof. In the event of any conflict between terms and conditions in this Agreement and any such Subscription Documents, the following order of precedence will apply: (a) any work order (solely with respect to that work order); (b) this Agreement; and (c) any such other document incorporated by reference herein.
13.5. Amendment. No amendment or modification of any provision of this Agreement shall be effective unless the same shall be in writing and signed by each of the Parties hereto.
13.6. Assignment and Sub-contracting. No Party shall be entitled to assign or sub-contract its rights and/or obligations under this Agreement without the prior written consent of the other Party provided that the Company shall be entitled to assign any or all of its rights and obligations under this Agreement to any of its Affiliates (current or future) without the prior consent of the Subscriber.
13.7. Counterparts. This Agreement may be executed in any number of counterparts and all of which taken together shall constitute one and the same instrument. The Parties may enter into this Agreement by signing any such counterpart. Delivery of an executed counterpart signature page of this Agreement by email (PDF) shall be as effective as delivery of a manually executed counterpart of this Agreement.
13.8. Force Majeure
(a) “Force Majeure Event” shall mean any of the following events or combination of such events or circumstances as are beyond the control of a Party and which cannot: (i) by the exercise of reasonable diligence; or (ii) despite the adoption of reasonable precautions and / or alternative measures, be prevented, or caused to be prevented, or which materially and adversely affects the party’s ability to perform its obligations under this Agreement, including: (a) acts of God, comprising fire, drought, flood, earthquake, pandemic (including without limitation Covid-19), epidemics and other natural disasters; (b) explosions or accidents, and terrorist attacks; (c) strikes, labour unrest or lock-outs; (e) any order, directive, regulation or law imposing any quarantine, social distancing and restrictions on the opening and functioning of any businesses, Government offices or any other body, regulatory authority or bank in India; (d) any event or circumstance analogous to the foregoing; and/or (e) other circumstances beyond the control of either Party.
(b) In the event that either party is unable to perform its obligations under this Agreement, or if the performance of its obligations under this Agreement would be hindered or delayed by, the occurrence of a Force Majeure Event or the subsistence of a Force Majeure Event that has occurred prior to or during the Subscription Term, then the party so affected in the discharge of its obligation shall promptly, but not later than 5 (five) days give written notice of such Force Majeure Event to the other party. The affected party shall make every reasonable effort to remove or remedy the cause of such Force Majeure Event or mitigate its effect as quickly as possible.
(c) In the circumstances set out in sub-clause (b) above and subject to the satisfaction of its terms (and subject also to sub-clause (c) below):
(i) the obligation of the Party affected by such Force Majeure Event shall be suspended for the period during which such Force Majeure Event subsists (subject to sub-paragraphs (ii) and (iii) below);
(ii) the Party affected by such Force Majeure Event shall have no liability under this Agreement of any nature relating to the suspension of performance of the obligation for such period to the other Party and any suspension performance by either Party hereto shall not give rise to any claim for damages or loss of anticipated profits to the extent such delay or failure is caused by a Force Majeure Event, in all such cases (subject to sub-paragraph (iii) below); and
(iii) nothing in this Clause 13.8 shall excuse the payment of any money due or which becomes due under this Agreement, where the obligations to pay arose before the occurrence of the Force Majeure Event.
(d) If such occurrence of a Force Majeure Event results in the suspension of all or part of this Agreement or the obligations or performance by any Party for a continuous period of more than 30 (thirty) days (having followed the procedure and satisfied the provisions of Clause 13.8(b) above), the Parties shall meet and determine the measures to be taken, including termination of the Agreement.
13.9. Relationship.Nothing contained in this Agreement shall be construed a joint venture, partnership or agency between the Parties. The relationship between the Parties shall be on a principal to principal basis. The Subscriber shall not be entitled to, by act, word, deed or otherwise, make any statement on behalf of the Company or in any manner bind the Company.
13.10. Dispute Resolution
(A) If any dispute arises between the Parties during the subsistence of this Agreement or thereafter, in connection with the validity, interpretation, implementation or alleged material breach of any provision of this Agreement or regarding a question, including the questions as to whether the termination of this Agreement has been legitimate, the Parties shall endeavor to settle such dispute amicably.
(B) In the case of failure by the Parties to resolve the dispute in the manner set out above within 30 (thirty) days from the date when the dispute arose, the dispute shall be referred to a sole arbitrator, appointed jointly by the Parties. If the Parties fail to appoint a sole arbitrator mutually within 15 (fifteen) days of the dispute, an arbitral panel consisting of three arbitrators shall be appointed, with the Parties nominating one arbitrator each and the arbitrators so appointed nominating the third presiding arbitrator. The seat of arbitration shall be Mumbai, India. The arbitration proceedings shall be governed by the Arbitration and Conciliation Act, 1996 and the rules framed there under. The language of arbitration shall be English.
(C) The arbitrator's award shall be substantiated in writing and the Parties shall submit to the arbitrator's/arbitral panel's award which shall be enforceable in any competent court of law.
(D) The provisions of this Clause 13.10 shall survive termination of this Agreement.
13.11. Governing law and jurisdiction. The provisions of this Agreement shall, in all respects, be governed by, and construed in accordance with the laws of India. Subject to Clause 13.10 above the courts at Mumbai, India shall have exclusive supervisory jurisdiction to settle any claim or matter arising under this Agreement.
13.12. Costs. Save as otherwise provided in this Agreement, each Party shall bear its own costs (including taxes) and expenses incurred in connection with the execution of this Agreement and all transactions herein envisaged. The Stamp duty payable on this Agreement shall be borne by the Subscriber.
13.13. Specific performance. In the event that the Subscriber commits a default of the terms of this Agreement then, the Company shall be entitled to specific performance, as may be permitted under Applicable Laws, in addition to its rights and remedies under this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
For and on behalf of the Company
For and on behalf of the Subscriber
SPECIFICATIONS OF PHRAZOR SYSTEM
[To be inserted]
One-time set-up fee:
- The Subscriber shall pay a one-time set-up fee for availing the Subscription Services amounting to: INR. [●] (Rupees [●]).
Annual Subscription fee:
- Minimum Annual Subscription fee payable by the Subscriber shall amount to INR [●] (Rupees [●]).