Ginni Systems Ltd is the owner of the intellectual property of Ginesys ERP and Ginesys POS and through its affiliate Roxfortech Pvt Ltd, of Zwing POS software.

Definitions:

Platform:   Ginesys ERP software and/or Zwing POS software as subscribed by the Customer on cloud infrastructure (“  SaaSApp  ”) managed by us (Ginni Systems Ltd and its affiliates). This SaaSApp may be combined with Ginesys POS software (  “Ginesys POS”  ) that works on your premises/ infrastructure and is licensed by us as well  .  This SLA     does not cover the performance of Ginesys POS but governs the licensing of Ginesys POS. Together SaaSApp and Ginesys POS are referred to as “  Platform  ”.

Services:  Subscription provides access to deployed and usable Platform, Application Support of the Platform (described in Schedule 2 ) and the Hosted Services( described in Schedule 1 ) to run the SaaSApp and Ginesys POS 

The SaaSApp provided hereunder does not obviate the need for appropriate and customary services for application installation, configuration, and implementation (such as installing technology at your business premises, converting your business data to a format that can be processed by the Platform, and training). All of these services are part of the “ Implementation   services ” and if opted from us, these will be billed at agreed rates on a time and material basis as specified in a separate proposal and covered under a separate agreement specified in Schedule 3.

Subscription:   A renting of the Services by paying a fixed fee every Subscription period

Subscription Period:   The period mentioned in the proposal after which the subscription is automatically renewed.

Start of SLA

By subscribing to the Ginesys services (the “Platform”), provided by Ginni Systems Ltd, CIN [U74140WB1993PLC057480] , and its affiliates (collectively, “We/Us/Provider”), the Customer (“you/ Customer”) are agreeing to be bound by the following terms and conditions of this service level agreement (the “SLA”) and any of its amendments:

1.   Effective Date of Agreement:   The date on which the first subscription period is started. This will be communicated to you in writing at the time of invoicing.

2.   Term of the SLA

The duration of this SLA (the “Term”) shall be either specified in writing or assumed to be 3 (three) years, beginning on the effective date.

a. It is renewed for an equal Term, unless either party provides a written notice of termination minimum 30 days before the end of the Term to the other party. The rates are agreed mutually for a period of the Term of the SLA. After the Term expires charges can be enhanced by a minimum of 10% as per mutually agreed terms and market conditions.

b. Access and use of the Platform     depends on Customer’s compliance with the terms of the SLA, including payment of all applicable fees.

3.   Access to the Software

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 SaaSApp to you as part of the SaaS Services.

The access is governed by license control where a license is a discrete unit of the software defined in terms of user access license, device access, API access or module access license.

The type and count of licenses offered in the subscription are mentioned in the proposals and addendums signed by you.

License is being counted for the access of the Platform via any mode including but not limited to the front-end user interface, mobile applications, API access and others.

Licenses issued in terms of “named user”, should be used only by the given specific user account (an account created at the time of user creation in Ginesys or Zwing) in upto 2 (two) simultaneous software usage sessions. You may change, add or remove a designated named user in accordance with procedures given by us.

The Platform must not be used at any point in time by more than the number of licenses subscribed in the current subscription period.

Further the Platform may automatically connect via Internet to check the validity, users and/or scope of the license and providing a working Internet connection for this purpose is mandatory. This is also carried out before and after any reinstallation / update/ upgrade of Ginesys POS.

Except to the extent expressly permitted in this SLA or required by law on a non-excludable basis, the license granted is subject to the following prohibitions:

(a) you must not sub-license your right to access the Services;

(b) you must not permit any unauthorised person to access or use any of the Services;

(c) you must not use any of the Services to provide services to third parties unless agreed to prior to subscribing;

(d) you must not make any alteration to the Service, except as permitted by the Documentation;

(e) you must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Hosted Services [without our prior written consent];

(f) you must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services; and

(g) you must not use the Hosted Service in any way that is unlawful, illegal, fraudulent or harmful or to help such activities.

Any breach of this section could cause all licenses to be immediately withdrawn and a penalty determined by the impact and severity of the breach shall be levied on you.

4.   Third Party Software

In conjunction with SaaSApp, you may request and Provider may agree to provide other services (“Other Cloud Services”), which are features and applications licensed to us by third party providers (sometimes referred to as “Third Party Providers”, “Third Party Software”, and/or “Third Party Applications”). Any such Other Cloud Services must be included in a properly signed Order and may involve additional fees. Where we agree to provide Other Cloud Services, our responsibility is limited to enabling access to the specified Third Party Application, providing and maintaining the server on which the Third Party Application resides, and backing-up the business data you enter into such an application if we host it. Our responsibility for Other Cloud Services is subject to this SLA. Because we are not the developers of the Third Party Applications, we are limited in our ability to support them.

5.   Application Support Services

This covers Application Operational Support, Bug Fixing, Version Update services. This is described in detail in Schedule 2  and that document is to be considered part of this SLA.

6.   Hosted Services

This is the infrastructure and software required and support required to keep the SaaSApp accessible and usable by general users at a reasonable performance level. This is covered in detail in Schedule 1 and that document is to be considered a part of this SLA

7.   Charges and Fees

The charges and fees for the subscription to the Platform and associated Services are mentioned in a proposal signed by you. It can be enhanced or reduced from time to time by change in subscription of licenses or other means. It is to be paid in advance at the beginning of each subscription period to ensure uninterrupted Services.

8.   No Soliciting or Hiring

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 SLA, for the duration of the SLA and for a period of 12 months from the date of termination or expiration of this SLA.

9.   Publicity

Except where notified otherwise in writing, each party grants the other a non-transferable, nonexclusive, 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.

10.   Confidentiality

Definition of  “Confidential Information”  : All information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. In particular any information related to the business, affairs, products, developments, trade secrets, know-how, personnel, customers and suppliers of either party should be regarded as confidential.

For all Confidential Information received during the Term of this SLA and for 12 months thereafter, the Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own similar 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 notice of the compelled disclosure, to the extent permitted by law.

11.   Data Protection

The parties acknowledge that the Customer’s database may contain Personal Data, for which the Customer is the Controller. This data will be processed by us when the Customer instructs so, by using any of the Services that require a database (e.g. the Hosted Services), or if the Customer transfers their database or a part of their database to us for any reason pertaining to this SLA. This processing will be performed in conformance with existing data protection legislation in India or wherever the Customer’s Personal data is hosted. In particular, we commit to:

(a) only process the Personal Data when and as instructed by the Customer, and for the purpose of performing one of the Services under this Agreement, unless required by law to do so, in which case we will provide prior notice to the Customer, unless the law forbids it ;

(b) ensure that all persons within the Provider authorised 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 the Customer any Data Protection request that was submitted to Provider with regard to the Customer’s database ;

(e) notify the Customer promptly upon becoming aware of and confirming any accidental, unauthorized, or unlawful processing of, disclosure of, or access to the Personal Data ;

(f ) notify the Customer if the processing instructions infringe applicable Data Protection Legislation, in the opinion of Provider;

(g) make available to the Customer 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 Customer;

(h) permanently delete all copies of the Customer’s database in possession of Provider, or return such data, at the Customer’s choice, upon termination of this Agreement, subject to reasonable delays;

With regard to points (d) to (f ), the Customer agrees to provide the Provider with accurate contact information at all times, as necessary to notify the Customer’s Data Protection responsible.

Subprocessors: The Customer acknowledges and agrees that in order to provide the Services, the Provider may use third-party service providers (Subprocessors) to process Personal Data. We commit to only use Subprocessors in compliance with Data Protection Legislation in India or wherever the customer Personal Data is hosted. This use will be covered by a contract between the Provider and the Subprocessor that provides guarantees to that effect.

12.   Termination

In the event that either Party fails to fulfill any of its obligations arising herein, and if such breach has not been remedied within 30 calendar days from the written notice of such breach, this SLA may be terminated immediately by the non-breaching Party. Further, the Provider may terminate the SLA immediately in the event the Customer fails to pay the applicable fees for the Services within 21 days following the due date specified on the corresponding invoice, and after minimum 3 reminders.

13.   Indemnity

We agree to indemnify and defend you from and against any and all claims, actions or proceedings, arising out of any claim that the Platform infringes or violates any valid Indian patent, copyright or trade secret right of any third party; so long as you provide; (i) prompt written notice to us of such claim; (ii) cooperate with us in the defense and/or settlement thereof, at the our expense; and, (iii) allow us to control the defense and all related settlement negotiations. The above is the our sole obligation to you and shall be your sole and exclusive remedy pursuant to this SLA  for intellectual property infringement. We shall have no indemnity obligation for claims of infringement to the extent resulting or alleged to result from (i) any combination, operation, or use of the software with any programs or equipment not supplied by us; (ii) any modification of the Platform  by a party other than us; and (iii) your failure, within a reasonable time frame, to implement any or modification of the Platform recommended by us

14.   Limitation of Warranty

We do 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.

  15.   Limitation of Liability

Notwithstanding anything to the contrary mentioned in this SLA or elsewhere, in no event will the Provider be liable to you 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 the Provider has been advised of the possibility of such damages. Provider’s aggregate and cumulative  liability with respect to its obligations and for any and all claims under this SLA (including but not limiting to all the Parts of this SLA) or otherwise with respect to the Software shall not exceed the payment made to Provider in the immediately preceding twelve (12) months from the date such claim arises.

16.   Jurisdiction

This SLA 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 SLA will be subject to the jurisdiction of Gurugram (Haryana, India) courts.

17.   Severability
   It is the intent of the parties that in case any one or more of the provisions contained in this Agreement shall be held to be invalid or unenforceable in any respect, such invalidity or unenforceability shall not affect the other provisions of this SLA, and this SLA shall be construed as if such invalid or unenforceable provision had never been contained herein.

18.   Notices

All notices or reports which are required or may be given pursuant to this SLA shall be in writing and shall be deemed duly given when delivered to the respective executive offices of the parties.

19.   Force Majeure

"Force Majeure Event" means [an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars]);

Any delay or non-performance of any provision of this SLA (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, and 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.

 
20.   Data Export

If assistance is needed for data export from the Platform  on termination, this will be provided at the rate determined by the Provider at that time based on the work involved. The data export will be in a commonly used format decided by the Provider.

21.   Export Control Notice

The Platform, Documentation and Services are being released or transferred to you in India and are compliant for export from India. The Platform, Documentation and Proprietary Information are subject to applicable local and foreign export control laws.  Customer  acknowledges its obligation to ensure that its exports of the Proprietary Information from India are in compliance with the Indian export control laws as well as other applicable export control laws.  Customer shall also be responsible for complying with all applicable governmental regulations of India as well as foreign countries with respect to the use of the Proprietary Information by Customer and/or its affiliates within or outside of India. Customer agrees that it will not submit the Platform to any government agency for licensing consideration or other regulatory approval without the prior written consent of the Provider.

22.   Modification

We reserve the right to modify this SLA at any time with 60 days notice, and if such modification substantially impairs your rights or the Platform, you may elect to cancel the remaining contract term.

END of SL