Ginesys One Master Service Agreement
Last Updated on - 23-09-2022
Ginni Systems Ltd. CIN [ U74140WB1993PLC057480 ], and its subsidiaries, (hereinafter, unless repugnant to the context thereof, referred to as GSL) provide complete technology-based solutions and provide a variety of software as services (apps), individually and/or collectively under the broad umbrella term “Ginesys One”. The Services offered include Ginesys Cloud Enterprise Resource Planning (“Ginesys ERP”), Ginesys Cloud Business Intelligence (“Ginesys BI”), Zwing Cloud Point of Sale (“Zwing POS”), EaseMyGST(“EMG”) , and Browntape (“Browntape”). Ginesys Desktop POS (“Desktop POS”) is also provided under Ginesys One, as a subscription but it is an on-premise, Windows-based application. Hereafter, all of the apps individually / collectively will be referred to as “Platform”. In case of any specific terms applying only to a single application, the respective name shall be used.
The following terms apply to the purchase of the above applications where the invoicing and commercial agreement is being entered by You (i.e the Customer, the legal entity who has entered the commercial agreement through an authorized representative), by accepting/ signing a commercial quote provided by GSL or its subsidiaries, for any of the above apps.
1. Definitions
Wherever used in this Agreement, the following terms shall have the following meaning respectively unless otherwise specified:
1.1.“Agreement” shall mean this Master Service Agreement, and Annexures attached herein.
1.2. “Applicable laws” shall mean any statute, law, regulation, ordinance, rule, judgment, notification, rule of common law, order, injunction, judgment, decree, bye-law, government approval, directive, guideline, requirement, or other governmental restriction, or any similar form of a decision of, or determination by, or any interpretation, policy or administration, having the force of the law of any of the foregoing, by any national, state, provincial, local or similar government, governmental, regulatory or administrative authority, branch, agency, any statutory body or commission or any non-governmental regulatory or administrative authority having jurisdiction over the matter in question, whether in effect as of the date of this Agreement or thereafter and governed by the Laws of India.
1.3. “Confidential Information”, “Proprietary Information” or “Sensitive Information” shall mean all sensitive or proprietary information of the Disclosing Party which is disclosed or made available to the Receiving either in writing or orally within the scope of this Agreement. This information includes but is not limited to business plans, objectives, business ideas, business projections, proposed methodology of execution, trade secrets, drawings, works of authorship, inventions, know-how, techniques, design details and specifications, information regarding research, development, new service offerings, licensing and distribution arrangements, prices and costs and suppliers and customers, any information regarding the names, designations, skills and compensation of the Parties.
1.4.“Documentation” shall mean any user guide, manuals, technical or functional specifications, and other similar materials provided by the GSL or its Affiliates to the User through any electronic media.
1.5. “Force Majeure Event” shall mean any event which arises either directly or indirectly from an act of God, local government or governments, war, fire, explosion, cyclone, flood, earthquake or storm, pandemic, epidemic, acts of terrorism, civil commotion or industrial dispute or any event beyond Party’s reasonable control, which could not reasonably be planned for or avoided.
1.6.“GSL”, “Our” or “Us” shall mean Ginni Systems Ltd. its successors, affiliates, and permitted assigns.
1.7.“You” shall mean any individual or business entity/organization that legally operates in India or in other countries, and uses and has the right to use the Platform by entering into this commercial agreement.
1.8.“User”, ‘’Users’’: any individual person or electronic form is given access to the Platform by You by creating a username for the user (s) or sharing a username for the user (s).
1.9. “License” shall mean any license (access to a particular user ID or set of users, human or electronic) as granted by GSL for using the Platform.
1.10. “Licensee” shall mean any legal entity as agreed by GSL that uses the Product and is granted various rights under this Agreement by GSL.
1.11. “Licensor” shall mean any party that has the right to provide the Users with a non-exclusive, non-transferable, non-assignable, and limited license to use the Product.
1.12. “Party” and/or “Parties” shall mean GSL, you, and the user, in whatever capacity they are referred to, individually or collectively as the context requires
1.13. Platform” shall mean any and all computer programs developed by GSL and provided to User by GSL other than any third party databases or services, any maintenance releases or updates thereto, and the applicable Documentation. This Platform includes “ Ginesys ERP”, “Ginesys BI”, “Ginesys POS”, “Zwing POS”, “EMG”, and “Browntape”, [collectively as “Ginesys One”]
1.14. “Product” shall mean any software and/or Services either provided and owned by GSL or its affiliates and made available through the Platforms.
1.15. “Service” shall mean various services offered by GSL through its Platforms. It includes the app software itself. It includes the infrastructure and hosting of the software (excluding Ginesys Desktop POS). It includes implementation services and support services. It may also include consulting or other specialized services offered on a retainer basis if specified in the order.
1.16. “Third Party Products” shall mean software products including but not limited to the third-party proprietary database, middleware, application, server, and operating system software licensed by a Third Party Vendor directly to You. It includes but is not limited to various pre-integrated applications such as Shopify, Woocommerce, Ezetap, Supplymint, and others. These products are chosen and installed/ subscribed by you and if required enabled by us to perform some business operations.
1.17. “Third Party Vendors”- shall mean and include all such vendors which are providing Third Party Products to the You/ Licensee except GSL or its Affiliates/agents.
1.18. “Intellectual Property” means such proprietary rights that include but are not limited to the copyright, right to copyright, patent rights to inventions, patent and related rights, trademarks, trade names and domain names, rights in computer software and in databases, content, machine learning models or similar, know-how, look and feel, and any other intellectual property rights or rights of a similar nature, in each case whether registered or unregistered, and including all applications and rights to apply for and be granted renewals or extensions of such rights, as well as the rights to claim priority therefrom, and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
1.19. “Partner” shall mean the external agent of GSL, who is authorized to sub-license the software owned and distributed by GSL to the User. Partners shall not be considered employees of GSL. They are independent entities who engage in selling GSL’s products and Services and could be considered as distributors, resellers, or partners within this Agreement.
1.20. “Personal Data” shall mean any and all personal data/ sensitive data of the User/ Your company that has been revealed in accordance with the terms of this Agreement.
1.21. Subscription: A renting of the Platform and/ or services by paying a fixed fee every Subscription period.
1.22. Subscription Period: The period mentioned in the proposal/ order after which the subscription is automatically renewed unless explicitly terminated.
2. Interpretation
2.1 Words importing the singular shall include the plural and vice versa, where the context so requires.
2.2 The terms “herein”, “hereof”, “therein”, “hereby”, “hereto” and other derivatives or similar words, refer to this entire Agreement or specified Sections of this Agreement, as the case may be.
2.3 Reference to the term “Schedule”/ “Section”/ “Annexure” shall be a reference to the specified schedule, section, or annexure of this Agreement.
2.4 All headings and sub-headings of Sections and Schedules, and the use of bold typeface are for convenience only and shall not affect the construction or interpretation of any provision of this Agreement.
2.5 Reference to the word “include” or “including” shall be construed without limitation.
2.6 The schedules hereto shall constitute an integral part of this Agreement.
2.7 All reference to this Agreement or any other Documentation shall be deemed to include any amendments or modifications to this Agreement or the relevant Documentation, as the case may be, from time to time.
2.8 Any word or phrase defined in the body of this Agreement as opposed to being defined under Definitions shall have meaning so assigned to it, unless the contrary is expressly stated or the contrary clearly appears from the context.
2.9 Reference to Law or Legislation or any provision thereof shall include references to any such Law as it may, after the Effective Date, as applicable and followed within the territory of India, from time to time, be amended, supplemented, or re-enacted.
3. Offering
3.1 GSL Platform shall provide Services in the manner as stated and described within the commercial order/proposal/ schedule.
3.2 The cloud infrastructure used by the apps is managed and run by GS (except for Ginesys Cloud BI). The hosting services are an integral part of the platform and are described in Schedule 4 specifically for Ginesys ERP. Hosted services shall include the infrastructure and software required and support required to keep Ginesys One accessible and usable by general Users at a reasonable performance level.
3.3 Platform Support Services covers the Operational Support, Bug Fixing, and Version Update services and are described in further detail in Schedule 1.
3.4 Implementation services may be rendered by GSL and/or its affiliates and are covered in Schedule 2.
3.5 The Platform is a set of standard applications. We do not provide any customization in the platform apart from the configurations available in the platform itself.
3.6 Data security is a paramount concern and GSL shall strive to implement the latest technology and protocols to ensure that your data is safe in the Platform. However, we cannot guarantee data security in any case and there may be data loss due to cyber-attacks. Data loss could be a data leak of personal data or data lost from the system that is not recoverable. GSL shall try to recover the data with its best efforts in a commercially reasonable and viable way but you are requested to understand that data loss may happen.
4. Term of the Agreement
4.1 The duration of this Agreement (the “Term”) shall be either specified in writing (in the order) or assumed to be two (2) years, beginning on the effective date.
4.2 It is renewed for an equal Term unless either party provides a written notice of termination minimum of 30 days before the end of the Term to the other party.
4.3 In the event that either Party fails to fulfill any of its obligations arising herein, and if such breach has not been remedied within thirty (30) calendar days from the date of receiving the written notice stating such breach, this Agreement may be terminated immediately by the non-breaching Party.
4.4 Upon any termination hereunder, the User shall immediately cease Use of all Proprietary Information within the Platform/Services/Product. Within thirty (30) days after any termination, the User shall deliver or destroy all copies of the Proprietary Information in every form. The User agrees to certify in writing such performance. In the event of any termination hereunder, you shall clear all outstanding payments due to GSL prior to termination of this Agreement and you shall not be entitled to any refund of any payments made.
4.5 If assistance is needed for data export from GSL Platform upon surrender or discontinuation, this will be provided at the rate determined by GSL at that time based on the work involved. The data export will be in a commonly used format decided by GSL.
5. Access to the Platform
5.1 You will receive a nonexclusive, non-assignable, royalty-free, worldwide right to access and use the Platform solely for your internal business operations. We will not be delivering copies of the Platform to you.
5.2 Internet connection with contemporary speed is required to access the Platform except in the case of Ginesys POS. In the case of Ginesys POS, intermittent access to the Internet is required and some features require an active Internet connection.
5.3 GSL does not guarantee the availability of the platform. GSL shall use reasonable efforts to make the Services available to You, at all times through the Platform.
However, as the Services are provided over the Internet, data and cellular networks, the quality, and availability of the same may be affected by factors outside GSL’s control. Therefore, GSL shall not be liable for the non-availability of the Services at any time. GSL shall try and restore access to the Platform and the Services on a ‘best efforts, reasonable and commercially viable basis.
5.4 For Apps that are not controlled by license, access outside of given usernames is not allowed, and using the app beyond specified base usage limits is chargeable unless explicitly permitted in writing.
5.5 Further details controlling access and licensing and commercials of specific apps will be found in Schedule 3
5.6 You shall not sublicense, reproduce, distribute, copy, modify, adapt, translate, or prepare derivative works from, the services of GSL or any of its affiliates.
5.7 The Users, while accessing or using the Platform shall follow/abide by the applicable laws. You shall not use the service of GSL or the Platform, outside of the scope of the app and permissions granted therein, including but not limited to use for the sole purpose of obtaining a competitive advantage against GSL. GSL expressly states that You should NOT commit any illegal or prohibited acts as specified within this Agreement under “Prohibited Uses” in Section 10 of this Agreement.
5.8 GSL reserves the right to disconnect a user’s account and ban a user from further use of our services if found to be abusing our Services for any illegal purposes. You shall further not try and access your disconnected account through any unethical means including hacking and/or creating another account or any other related methods.
5.9 The Services offered shall be availed only by those individuals or entities who can execute legally binding contracts under Indian law. Therefore, a User must be at least 18 years of age or above to be eligible to use the Services.
5.10 In the event that a User below the age of 18 years wishes to use the Services, he/she can do so through a parent or legal guardian who has attained the age of majority.
5.11 You are required to provide accurate and correct personal information while registering to use the Services. GSL shall not be held liable for any misrepresentations or misinformation provided by You and You shall be responsible for providing accurate contact information to GSL at all times. This is especially important for receiving updates on the agreement, commercials, renewals, support tickets, and software changes.
5.12 GSL shall have the right to verify the information provided by You under reasonable circumstances. If the information provided by You is found to be untrue or misrepresented, GSL shall have the right to terminate Your access to Services immediately and without written notice.
6. Transfer of Access and Delegated Access to Related Third Party
6.1 The right to use the Platform may be transferred by GSL to a new firm, assigned by You for example in the event that a new company is created by You, either jointly or severally while keeping majority ownership with it. This Transfer of right to use the Platform can only be permitted at the sole discretion of GSL and only once during the term of this Agreement by providing a Non-Objection Certificate from the previous entity and after clearing any dues and once the new entity accepts this agreement.
6.2 In the case of Ginesys Desktop POS, or Ginesys ERP as Distribution Management System or Zwing, it is understood that the Users may ultimately not belong to You. They may be from a franchisee or a distributor of your company. The licensing compliance and agreement compliance are with you and you must ensure that the Users use the system in accordance with this agreement.
6.3 Further, in the case of a managed service relationship with GSL or with a Third party, GSL or the Third Party shall access the system through delegated user access but the licensing compliance and agreement compliance are still required by you.
7. Charges and Fees
7.1 You shall be charged (Subscription Fee) for subscribing to the Platform as specified within the Order / Proposal/ Schedule.
7.2 Subscription Fee is required to be paid in advance, at the beginning of each subscription period to ensure uninterrupted services. There will be no credits for partial months of service, or refunds made should you not use the Service during a period of time when your account is active. No exceptions will be made.
7.3 Fees may be charged for the implementation (i.e., setup and deployment of the apps for you. This is Implementation or project fees
7.4 You may be charged a fee based on certain metrics being crossed/ met (e.g., excess orders/ API limits being crossed) in the subscription period as specified in the order. This is the usage fee and is equivalent in nature to subscription fees.
7.5 You may be charged a retainer for certain fixed services (e.g. managed services) provided by GSL in the period of the agreement. This is equivalent to subscription fees for the platform in nature.
7.6 You may be charged extra for support services that are not covered in the standard support services of the app. Each app has a list of standard support services described in Schedule 1. This is usually done by deducting hours consumed for the task from the support hours pack you have purchased for these kinds of activities.
7.7 A downgrade of licenses/ scope of the app will only impact the subscription fees in the next subscription period. Enhancement of licenses/ scope/ subscription volume will be done immediately with a pro-rata invoice for the remaining subscription period for the enhancement. The subscription of the first app subscribed will determine the renewal date of the overall subscription unless otherwise specified.
7.8 Statutory taxes shall be applicable on all the invoices raised by GSL.
7.9 The rates are agreed mutually for a period of the Term of the Agreement. After the Term expires charges can be enhanced by a maximum of 10% or as per the then prevailing list price (whichever is lower).
7.10 Implementation fees for subsequent implementation/ support work (i.e., beyond the initial project estimate, given to you at the time of the order) are dependent on market rates and cannot be fixed in advance.
7.11 Access and use of the Platform require your compliance with the terms of the Agreement, including payment of all applicable fees.
8. Statistical Usage Collection
8.1 GSL may collect and use certain statistical and usage information relating to the Products and Services and may share such information with authorized Third-Party Vendors. This information may include, but is not limited to, size and number of applications, login statistics, session information (e.g., number, duration, error messages, types/number of users, applications and/or charts used, and API usage), browser configurations and so on. No confidential data, user data, or personal data will be collected by this mechanism.
9. Third Party Products
9.1 If any issue arises with regard to Third Party Products whether taken through GSL or directly, GSL shall not be held legally liable for any or all such acts or omissions, issues with regard to software, delay in services, and so on by such Third-Party Vendors.
9.2 In conjunction with Platform, you may request GSL to agree to provide other software (beyond the scope of Ginesys One) by Third Party Vendors licensed to GSL. Any such GSL-provided Third Party Products must be included in a properly signed order and you may have to pay additional fees to avail of such services.
9.3 In the event, GSL agrees to provide Third Party Products, its responsibility is limited to enabling access to the specified Third-Party Products, optionally providing and maintaining the server on which, the Third-Party Products reside, and backing up the business data you enter into such product if GSL hosts it.
10. Ideas and Features
10.1 Any feature requests made by you or your users for enhancing the Platform will automatically be treated as non-confidential and non-proprietary and will become the sole property of GSL without any compensation or credit to the User whatsoever.
10.2 GSL and its affiliates may use the ideas contained in such submissions or posts for any purpose in any medium, which includes but is not limited to, developing manufacturing, and marketing products and services using such ideas.
10.3 No fixed time limit is given by GSL to implement these ideas in the platform.
10.4 No guarantee is given by GSL that all future features added to the platform will be free from extra charges or fees.
11. Audit Rights
11.1 The Platform that is owned and licensed by GSL shall be audited from time to time by GSL. GSL shall have the right, at any time, to audit your use of the license granted in this Agreement upon providing fifteen (15) days advance written notice to the Licensee stating its intention to conduct such an audit at your facilities during normal business hours. Any violation of the license grant or the terms of this Agreement identified as the result of any such audit shall entitle GSL to the recovery of its auditing costs in addition to any other monetary or non-monetary legal or equitable remedy available under this Agreement or under the operation of law.
11.2 GSL shall charge at actual all the cost or effort in case of an audit being conducted by any Government department or authority or any regulators for any reasons attributable to you. Further, if any investor or any third-party, desires to conduct an audit on GSL’s software, then it shall only be done at the sole discretion of GSL with the following terms and conditions:
a) No commercial or sensitive information including but not limited to any source code of GSL shall be subject to any audit;
b) All the costs shall be borne by you.
12. Export Control
12.1 You acknowledge that the Platform may be subject to export controls or restrictions by the Government of India and hereby certify that you are not located in a restricted country. Additionally, you affirm that, to the best of your knowledge, you are not included on any list that would cause GSL’s export of the Platform to you to be prohibited by the applicable laws. You agree to indemnify, to the fullest extent permitted by law, GSL or its Affiliates from and against any fines or penalties that may arise as a result of any breach of this provision.
12.2 You agree that you will not submit the GSL Platform to any government agency or organization for licensing consideration or other regulatory approval, without the prior written consent of GSL.
13. Prohibited Use
13.1 The Services are to be used only for lawful purposes. Services/Platform must not be used to post, store, distribute, display or present any information, software, data, file, or material in violation of any applicable law or regulation.
13.2 You are not to use the Platform or the Services in any Platform for any of the following purposes:
a) Promote or convey provocative or prohibited contents, which is illegal and harmful and that induces conduct that is unlawful, defamatory, obscene, racial, offensive, pornographic or culturally offensive or otherwise reasonably and is likely to generate such conduct;
b) Posting any pornographic content or pictures engaging in transmitting child pornographic materials or activities harmful to children;
c) Provide any false, misleading, or inaccurate information;
d) Indulge in identity theft, and unauthorized advertising using your Platform account;
e) Upload or transmit any similar applications including viruses, worms, or other malicious code or programs designed to harm other computers or telecommunication devices;
f) Infringe anyone’s intellectual property rights, including copyrights, trademarks, patents, and trade secrets. Infringe anyone’s privacy or publicity rights, which include but are not limited to impersonating another person or entity or posting images of someone without their permission;
g) Engage in activities that include but are not limited to hacking other computers or servers, including GSL’s; or violate any requirements, procedures, policies, or rules of networks related to the system; Engage in any unlawful activity using credit cards;
h) Falsely express or imply that the Platform sponsors, endorses, or is otherwise associated with You or Your content;
i) Interfere or attempt to evade or disable the Platform or Services, the proper working, the security features, or the equipment connected to the Platform or the Services;
j) Entail an excessively large load on the infrastructure of the GSL system or network or Platform.
k) Restrict or restrain any other person from using the Platform or the Services;
l) Indulge in criminal or terrorist activity against any nation or society, or cause any threat or harassment to any person or the public as a whole;
m) Engage in any activity that restricts or inhibits any other Platform Account Holder from using or enjoying the Service;
n) Violate this Agreement or encourage or assist anyone else to violate this Agreement.
o) Unless express written consent is provided by GSL, you shall not:
i. Use, duplicate, republish, upload, dispense, gather, revise, transmit, or post elsewhere, any Content of the Platform for any commercial purposes;
ii. Use of any registered or unregistered trademark, Logo, brand name, and similar intellectual property, of GSL;
iii. Alter, eliminate, remove, supplement, add to, publish, transmit, participate in the transfer, rental or sale of, create derivative works from, or in any way exploit any of the Content, in whole or in part;
iv. Access or attempt to access the Platform or collect or index information provided on the Platform using any automated means, such as robots, spiders, scrapers, scripts, or similar means or equivalent manual processes.
14. Limitation of Warranties
14.1 GSL does not warrant that the Platform will be error-free. Except as provided herein, the Platform is furnished "AS IS" without warranty of any kind, including the warranties of merchantability and fitness for a particular purpose, and without warranty as to the performance or results you may obtain by using the Platform. You will solely be responsible for determining the appropriateness of using the Platform and assume all risks associated with the use of it, including but not limited to the risks of program errors, damage to or loss of data, programs, or equipment, and unavailability or interruption of operations.
14.2 Nothing stipulated in the Agreement shall be deemed to provide a warranty or representation either express or implied from GSL to the control or use of any of Your data outside the scope of this Agreement. GSL represents that it does not have any obligation to control the access of any information, sites, or domains in order to safeguard the interests of the public or the account holder.
14.3 You expressly agree and understand that Your activities through Your account, including but not limited to downloading, uploading, transmitting, and distributing any material, shall be at your sole discretion and at your sole risk. The services are provided “AS IS” and “AS AVAILABLE” basis without a warranty of any kind from GSL.
14.4 GSL does not edit, censor or take responsibility for any information that You, or other Users, may create, transmit, post, store, distribute, display or present using the Platform.
14.5 In addition, you specifically acknowledge and agree that no oral or written information or advice provided by GSL, or its officers, directors, employees, or agents will:
a Constitute legal or financial advice or,
b Create a warranty of any kind with respect to the Platform/Services, and users should not rely on any such information or advice.
14.6 The foregoing disclaimer of representations and warranties shall apply to the fullest extent permitted by law and shall survive any termination or expiration of this agreement or Your use of this Platform.
In addition, you specifically acknowledge and agree that any cause of action arising out of or related to this Platform or the Services must be commenced within one (1) year after the cause of action accrues, otherwise such cause of action shall be permanently barred. The foregoing limitation of liability shall apply to the fullest extent permitted by law, and shall survive any termination or expiration of this Agreement.
15. Limitation of Indemnity and Liability
15.1 You agree to indemnify and hold GSL, its Affiliates, members, officers, directors, employees, agents, and licensors harmless from and against any and all claims, damages, obligations, losses, liabilities, costs, and expenses including but without limitation to, reasonable attorneys’ fees, arising out of or related in any way to:
a) Your use of the Platform, Services offered by GSL;
b) Your submission, posting, transmittal, or any other use of any Information, Content, and/or any other materials or content;
c) Your violation of any terms in this Agreement;
d) Your violation of any applicable law or regulation, or violation of any proprietary or privacy right;
e) You have misrepresented any information provided to us;
f) Your violation of any third-party intellectual property right or any claim that arises out of your submission of any third-party information or content that has resulted in intellectual property infringement.
15.2 GSL agrees to indemnify and defend you against any and all claims, actions, or proceedings, arising out of any claim that the Platform violates or infringes any valid Indian Intellectual Property right of any third party; so long as you provide:
a) prompt written notice to GSL of such claim;
b) cooperate with GSL in the defense and/or settlement thereof, at our expense;
c) allow GSL to control the defense and all related settlement negotiations.
15.3 The above is our sole obligation to you and shall be your sole and exclusive remedy pursuant to this Agreement for intellectual property infringement.
15.4 GSL shall have no indemnity obligation for claims of infringement to the extent resulting or alleged to result from:
a) any combination, operation, or use of the software with any programs or equipment not supplied by GSL;
b) any modification of the Platform by a party other than GSL;
c) your failure, within a reasonable time frame, to implement any modification of the Platform recommended by GSL.
15.5 GSL shall not be held liable for your lack of knowledge of any terms within this Agreement and amendments thereof.
15.6 GSL will take reasonable precautions to protect the information obtained from you from any loss, misuse, unauthorized access, disclosure, or alteration or destruction, of such information.
15.7 You shall indemnify and hold GSL harmless against any third-party complaints and legal claims arising either directly or indirectly, out of Your activity that is in violation or breach of this Agreement.
15.8 GSL shall not be held liable or responsible for the accuracy, completeness, or content of any sites linked through hyperlinks, banner advertising, or otherwise and the content therein.
15.9 Whether Third Party Products are purchased from GSL, GSL partner, or any other software vendor, the Licensee / End User is solely responsible for complying with OEM licensing conditions and frees GSL from any liability resulting from the use of such programs. Such Third-Party Products shall only be provided on an “AS IS” basis.
15.10 Notwithstanding anything to the contrary mentioned in this Agreement or elsewhere, in no event will GSL be held liable to Licensee or any third party for any special, incidental, indirect, punitive or exemplary, or consequential damages, or damages for loss of business, loss of profits, business interruption, or loss of business information arising out of the use or inability to use the program or for any claim by any other party even if You have been advised of the possibility of such damages. GSL’s aggregate and cumulative liability with respect to the obligations and for any and all claims under this Agreement and/or otherwise with respect to the Products shall not exceed the payment made to us immediately for the preceding twelve (12) months from the date a such claim arises.
15.11 GSL assumes no responsibility with respect to the user’s or end user’s use of the services and shall not be liable for consequential, incidental, or special damages, including but not limited to loss of use, business interruptions, and loss of profits lost revenue or punitive or exemplary damages resulting from the same.
15.12 You understand and agree that you are solely responsible in case of any damages or loss of data that may occur to your computer or system or any other equipment which resulted from using the services provided by GSL.
16 Confidential Information
16.1 The Parties acknowledge that the Product database may contain Personal Data, for which you/ user are the Controller. This data will be processed by GSL when You/ User instructs so, by using any of the services that require a database (e.g. the Hosted Services), or if you / User transfers their database or a part of their database to us for any reason.
16.2 This processing will be performed in accordance with existing data protection legislation in India or wherever you/the user’s personal data is hosted. In particular, GSL commits to:
a) only process the personal data as and when instructed by you / user, unless required by law to do so, in which case GSL will provide prior written notice to you;
b) ensure that all persons are authorized to process the personal data have committed themselves to confidentiality;
c) implement and maintain appropriate technical and organizational measures to protect the personal data against unauthorized or unlawful processing and against accidental loss, destruction, damage, theft, alteration, or disclosure;
d) forward promptly to you any data protection request that was submitted to us with regard to the user database;
e) notify you promptly upon becoming aware of and confirming any accidental, unauthorized, or unlawful processing of, disclosure of, or access to personal data;
f) notify you if the processing instructions infringe applicable Data Protection legislation, in the opinion of GSL;
g) make available to you/ user all information necessary to demonstrate compliance with the data protection legislation, allow for and contribute reasonably to audits, including inspections, conducted or mandated by the user;
h) permanently delete all copies of the User’s database in possession of GSL, or return such data, at the User’s choice, upon the termination of this Agreement, subject to reasonable delays;
16.3 With regard to points (d), (e) to (f), you agree to provide GSL with accurate contact information at all times, as necessary to notify of any breach.
16.4 You and the User acknowledge and agree that in order to provide the Services, GSL may use third-party service providers (subprocessors) to process Personal Data. GSL commits to only use subprocessors in compliance with data protection legislation in India or wherever your/ user’s personal data is hosted. This use will be covered by a contract between GSL and the subprocessor that provides guarantees to that effect.
16.5 For all Confidential Information received during the Term of this Agreement and for a period of twelve (12) months thereafter, the Receiving Party will use the same degree of care that it uses to protect its own Confidential Information, but not less than reasonable care. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior written notice of such compelled disclosure.
16.6 You shall not disclose the terms and conditions of this Agreement or the pricing contained therein to any third party.
16.7 To abide by the terms of use and data privacy policies of third parties, such as the marketplaces, which are connected to the platform, and thus become a source and consumer of information to and from the platform.
16.8 In addition to any remedies that GSL may have under any law, at the time being in force or in equity, if GSL reasonably determines that you have violated or are likely to violate the foregoing prohibitions, GSL may take any action it reasonably deems necessary to cure or prevent the violation, including, without limitation, the immediate removal of materials that violate the foregoing prohibitions from the Platform.
17 Intellectual Property
17.1 All Intellectual Property Rights (IPR) related to all the applications under Ginesys One rightfully belong to GSL and its affiliates for providing various services under this Agreement. GSL doesn’t transfer or assign any IPR to you, partially or fully. You shall not use or misuse either directly or indirectly, recreate, reverse engineer, reproduce, issue copies, translate, adapt, republish, or otherwise infringe, any intellectual property belonging to GSL, the licensor, or any third party associated with GSL under this Agreement. Notwithstanding anything to the contrary, all third-party IPR shall be provided on an is basis and shall always be governed by its own respective licensing term.
18. No Soliciting or Hiring
18.1 Except where the other party gives its consent in writing, each party, its affiliates, and representatives agree not to solicit or offer employment to any employee of the other party who is involved in performing or using the services under this Agreement, for the duration of the Agreement and for a period of twelve (12) months from the date of expiration or termination of this Agreement.
19. Assignment
19.1 You may not assign, delegate or otherwise transfer, either all or any part, of the services provided by GSL to any third party without express written consent from GSL. In the event you are found to have acted in breach of this Section, GSL shall have the right to terminate this Agreement without prior notice.
20. PUBLICITY
20.1 Except where notified otherwise in writing, each party grants the other a non-transferable, non-exclusive, royalty-free, worldwide license to reproduce and display the other party’s name, logos, and trademarks, solely for the purpose of referring to the other party as a customer or supplier, on websites, press releases, and other marketing materials within the scope of this Agreement.
21. GOVERNING LAW & JURISDICTION
21.1 This Agreement shall be governed by and construed in accordance with Indian law without reference to its conflicts of law principles. All disputes arising out of this Agreement shall be subject to the jurisdiction of Indian courts.
22. SEVERABILITY
22.1 Should any provision of this Agreement be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provision may be modified by such court in compliance with the law giving effect to the intent of the Parties and enforced as modified. All other terms and conditions of this Agreement shall remain in full force and effect and shall be construed in accordance with the modified provision.
23. FORCE MAJEURE
23.1 Any delay or non-performance of any provision of this Agreement other than for the payment of amounts due hereunder, caused by a Force Majeure event beyond the reasonable control of the performing party shall not constitute a breach of this Agreement. At the time for performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance.
24. MODIFICATION AND AMENDMENTS
24.1 GSL reserves the right to modify this Agreement by providing a notice of 60 days. If such modification substantially impairs your rights or the Platform, you may elect to cancel the remaining term. If no cancellation request is received by the renewal date, then it is assumed that the agreement modifications are accepted by you.
25. FEEDBACK AND QUERIES
25.1 For any queries or feedback with regard to our Products and Services provided therein, please get in touch with your account manager or mail care@ginesys.in.
25.2 You assign all rights, title, and interest in regard to any and all Feedback to GSL. You agree to grant GSL a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sub-license, distribute and modify such Feedback without restriction.
26. NOTICES
26.1 All notices or reports which are required or may be given pursuant to this Agreement shall be in writing over email and shall be deemed duly given when delivered to the respective executive offices of the parties on the registered email addresses.