MASTER SAAS SUBSCRIPTION AGREEMENT
This Master SaaS Subscription Agreement (“Agreement”) is made on DATE at Bangalore BETWEEN BITLA SOFTWARE PVT LTD, a company incorporated under the Companies Act, 1956 and having its registered office at No. 18, MP Krishna Mansion, 2nd Floor Koramangala, 5th Block Bangalore – 560 095, duly represented by its authorized signatory (hereinafter referred to as the “Company” which term shall mean and include successors-in-interest and permitted assigns) and Subscribing Organisation , an entity registered under A license under Shops & Establishments Act and having its registered office at City Name represented by its authorised signatory Owner (hereinafter referred to as the “Subscribing Organisation” which expression shall include its successors-in-interest) of the Other Part.
The Company and Subscribing Organisation are hereinafter individually referred to as “Party” and collectively referred to as “Parties
TERMS OF AGREEMENT
Upon acceptance of this Agreement, the Subscribing Organisation shall be bound by the terms and conditions set forth herein (Part A and Part B) and by such amendments or additional terms and conditions which may be established by the Company.
PART- A: COMMERCIAL TERMS
Description of the Services
Products & Services Offered
1. HotelSimply Booking Engine
A cloud based booking engine to manage all direct e-bookings on the Subscribing Organisation’s own website using all modes of online payments with multiple payment gateways and wallets.
The booking engine comes with a Centralized Reservation System(CRS) – for managing & driving the bookings across all the channels of bookings such as walk-ins, through the booking engine, group bookings, corporate bookings, booking through the B2B Agents, phone bookings, blocking, OTA bookings and more.
The HotelSimply software will also offer a front desk management tool which will have a single page easy to use hotel dashboard and a calendar to run the complete front desk operations such as check-ins, check-outs, stay extensions, room swaps, deposits, refunds, cancellations, no shows, payments, bookings, collections, invoices, pay collect using PGs, room service requests, house Keeping requests and other associated functions.
2. Property Management System (PMS)
A cloud based system to enable the Subscribing Organisation to manage all its hotel operations.
3. Channel Manager Services
The Company will act as the Subscribing Organisations “Channel Manager” for the hotel rooms inventory distribution to several channels of bookings such as Online Travel Agent’s, Meta Search Engines and more. This function is fully integrated with the PMS for the full live inventory at all times.
4. Social Media bookings
To facilitate and drive hotel bookings through social media.
5. Website CMS
The Company shall develop, host and manage the hotel website with built-in CMS, SEO, blogs, promotions, other attractive offers, local things to do details and the like. Fully integrated with the PMS for the full live inventory.
6. Sales and Marketing Services
The Company shall develop, host and manage the hotel website with built-in CMS, SEO, blogs, promotions, other attractive offers, local things to do details and the like. Fully integrated with the PMS for the full live inventory.
7. Business Intelligence
The Company shall develop, host and manage the hotel website with built in CMS, SEO, blogs, promotions, other attractive offers, local things to do details and the like. Fully integrated with the PMS for the full live inventory.
8. Revenue Management Services
Providing assistance in driving the end-2-end service in driving the multi-channel bookings, brand identity, reputation management, guest engagement Online & Offline. Dealing with OTAs, Payments etc are all handled seamlessly for you in getting more guests than what you do today.
9. Reputation Management Services
Rate & Brand Watch – monitor the Subscribing Organisations and the competitor’s tariffs, ratings and reviews and recommend strategies to maximise bookings.
Reputation Management: The Company will monitor the Subscribing Organisations market reputation. Help in further enhancing reputation with continuous engagement on all the portals by responding to all the feedbacks and pro-actively build the identity and the reputation.
10. Material Control
Manage the complete materials/inventory needed to run your entire Hotel and F&B operations, working with suppliers, stores, stock management, cost control, multi-level approval workflows and more.
11. Point of Sale services
Point of Sale services: unlimited POSs to manage restaurants, bars, pubs, bakeries, banquets, bookstores and more with bill to room options and with deeper integration with the PMS.
PART – B: GENERAL TERMS AND CONDITIONS
Capitalized terms as used in this Agreement, shall have the respective meanings set forth in this Clause 1 and any other capitalized terms used in the body of this Agreement and not defined in Clause 1 shall have such meaning as defined or intended in the body of the agreement:
“Account(s)” means the account(s) created by the Company on behalf of the Subscribing Organisation, pursuant to subscribing to the SaaS Service, which enables the Subscribing Organisation to authorise the B2B Users to access the SaaS Service through the B2B User Interface. Each ‘Account’ comprises of a unique user identification and password.
1.1 “API Access” means the application programming interface access provided by the Company to third party business partner websites of the Subscribing Organisation as well as the third party business partner websites of the Company, in the manner detailed in Clause 9.2 (d) below in order to allow such websites and their underlying servers to connect with the SaaS Services, the related Content and the underlying servers.
1.2 “B2B Users” means the Subscribing Organisation’s employees, travel agents (“B2B Agent Users”), and partners or any other person(s) (and their respective employees) who are authorised by the Subscribing Organisation to use the SaaS Service through the B2B User Interface, and who are provided Accounts in order to do so. For the purpose of this definition and this Agreement, the term “B2B Agent Users” means the third party travel agents/ booking agents (and their employees) appointed by the Subscribing Organisation who are permitted to access the B2B User Interface to use the SaaS Service to make hotel bookings.
1.3 “B2B User Interface” means the web-based user interface that B2B Users will access through their Accounts in order to use the SaaS Services and which enables the B2B Agent Users to make hotel bookings.
1.4 “B2C Customers” means the customers of the Subscribing Organisation who access the B2C Website to make hotel bookings and other permitted activities related to the Subscribing Organisation’s boarding and lodging services.
1.5 “B2C Website” means the website of the Subscribing Organisation accessible by computing or mobile devices and which enables B2C Customers to make bookings related to the Subscribing Organisation’s boarding and lodging facility, using HotelSimply framework, and which is designed, developed, hosted and maintained by the Company on behalf of the Subscribing Organisation for the fees in this regard prescribed in Part A of this Agreement.
1.6 “Business Purpose” means the boarding and lodging services provided by the Subscribing Organisation in its hotel.
1.7 “Content” means any information, data, files, database, diagrams, pictures, charts, analyses, text, numbers, corporate information, financial information, personally identifiable information of B2B Users or B2C Customers or any other information or data, owned or controlled by the Subscribing Organisation or by the B2B Users or B2C Customers, as the case may be, and uploaded and/or stored on the B2C Website, B2B User Interface or any related servers.
1.8 “Effective Date” means the date of commencement of the Services as specified in Part A to this Agreement or any such the date communicated as the effective start date for the Services by the Company in an acceptable form of communication agreed by the Parties, such as email, whereby the Subscribing Organisation placed an order for the SaaS Services.
1.9 “Fees” means the fee(s) payable by the Subscribing Organisation for each of the Services it avails, as more fully described in Part Aand which may be based on fixed amounts or amounts linked to the sales and/or other bookings made using the SaaS Service, including through the B2B User Interface, the B2C Website and API access. In this context, “Subscription Fee” means the fee set out in Part A, payable by the Subscribing Organisation for using the subscribed modules of the SaaS Service.
1.10 “Intellectual Property Rights” means all unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how, trade secret and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world, whether registered or unregistered.
1.11 “Payment Gateway” means the third party payment gateway made available on the B2C Website or the B2B Interface, as the case may be, either by the Subscribing Organisation directly and managed by the Company or by the Company at the behest of the Subscribing Organisation. [In all cases the payment gateway would be a third party payment gateway. The difference would be in the management of it, where either the Subscribing Organisation will manage it or Bitlasoft will manage it. The commissions can be mentioned in the Fees portion in Part A.]
1.12 “Services” means the array of services described in Part A, being provided by the Company to the Subscribing Organisation, pursuant to this Agreement and includes the SaaS Services and “Service” means any of such services individually.
1.13 ”Service Period(s)” means the period of provision of each Service which may be one time, monthly or annual, as set out in Part A.
1.14 “SMS Gateway” means the third party gateway made available by the Company as part of the Services for the related fee as set out in Part A, through which B2C Customers or B2B User Agents, as the case may be, will be provided SMS updates on the status of the hotel bookings.
1.15 “Subscription” means availing the SaaS Service on payment of the Subscription Fee detailed in Part A by the Subscribing Organisation for the duration of the Subscription Period.
1.16 “Subscription Period” means such period that the Subscribing Organisation and the B2B Users are eligible to use the SaaS Service set out in Part A of the Agreement.
1.17 “Use” and all its cognate expressions including “Used”, “Using” means creation, storing, retrieving, uploading, deleting, organizing, managing, sharing and tracking Content on the B2B Interface or the B2C Website(s), as the case may be, by the Subscribing Organisation or any of its B2B Users or B2C Customers, or using the features or functionality of the SaaS Service or any other Services(s), in any other manner.
1.18 “Users” means any user of any of the Services, and includes the B2B Users and B2C Customers.
1.19 “B2B User Subscription Agreement” means the agreement set out in Annex 1 which all B2B Users will sign or authenticate (through click-through acceptance or other form of authentication), either electronically or handwritten, in order to use the SaaS Services.
2. SCOPE OF SERVICES, FEES AND CANCELLATION
2.1 The Services ordered by the Subscribing Organisation pursuant to this Agreement are set out in Part A along with the corresponding Fees and Service Period for each type of Service. The Subscription Fees are payable on a recurring basis, which may be monthly or annually, as set out in Part A. Fees for other Services may be one time payments or recurring ones, as set out in Part A.
2.2 All Fees are payable before the 10thof the succeeding monthin advance as set out in Part A above (“Due Date”) by the Subscribing Organisation. Any delay in payment beyond the Due Date will entitle the Company to levy penal interest of 18% per annum until the date of actual payment.
2.3 The Company shall be entitled to withhold an amount equivalent to the pending Fees, from the booking payments received by the Company, with prior intimation to the Subscribing Organisation. Further, any delay that extends beyond 30 (thirty days) days from the Due Date will also entitle the Company to cease providing access to the SaaS Service or any of the other Services, and/or terminate this Agreement forthwith. The rights of the Company set out in this Clause 2.2 are without prejudice to and are not in derogation of any other rights or remedies that the Company may have under law or equity. The Subscribing Organisation will continue to be charged Fees for any Services provided during any period of delay in payment of any Fees. The Company shall offer no refunds of any Fees already paid irrespective of the termination of the Agreement or discontinuance of the SaaS Service for any reason whatsoever.
2.4 The Subscribing Organisation may increase its Subscription package and/ or modules of the SaaS Service or any other Service at any time during the Term, subject to mutual agreement of the Parties on the corresponding increase in Fees. Such mutual agreement shall be thereafter duly embodied in a signed document or in an email issued by the Subscribing Organisation and annexed to this Agreement. All such changes in Services shall also be updated in Part A, duly signed by both Parties.
2.5 Fees will be exclusive of all taxes and levies, and will be charged separately to and borne by the Subscribing Organisation.
2.6 All recurring Services purchased by the Subscribing Organisation will commence on the start date specified the Agreement or any other communication on the subject matter made by the Company to the Subscribing Organisation and will continue for the corresponding Service Period specified therein unless this Agreement is terminated in accordance with Clause 14 below. All recurring Services purchased will automatically renew for additional periods equal to the expiring Service Period or one year (whichever is shorter), unless either Party gives notice of cancellation at least thirty (30) days before the end of the relevant Service Period. The pricing during any such renewal period will be the same as that during the prior term unless the Company gives the Subscribing Organisation written notice of a pricing increase, in which case the pricing increase will be effective upon renewal and thereafter. In no event will any cancellation relieve the Subscribing Organisation of the obligation to pay any fees payable to the Company for the period prior to the effective date of cancellation. The Company at its discretion may impose additional renewal charges.
3. RIGHT TO USE THE SAAS SERVICE
3.1 Subject to the Subscribing Organisation fulfilling all its payment obligations set out in Part A above and otherwise complying with this Agreement, the Company grants the Subscribing Organisation (and through it, each of the B2B Users) a limited, non-exclusive, non-transferable right to Use the SaaS Service that is valid only for the Subscription Period. All rights not expressly granted herein are reserved by the Company.
3.3 The Subscribing Organisation will not and will ensure that any of the B2B Users do not (i) license, sublicense, sell, resell, reproduce, duplicate, copy, deconstruct, transfer, assign, distribute or otherwise commercially exploit any part of the SaaS Service ; (ii) modify or make derivative works based upon the SaaS Service; (iii) create Internet “links” to the SaaS Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device, unless expressly permitted in writing by the Company; or (iv) reverse engineer the underlying software in the SaaS Service or access the SaaS Service in order to (a) build a competitive product or service, or (b) build a product using similar ideas, features, functions or graphics as the underlying software in the SaaS Service or the SaaS Service, or (c) copy, distribute, publish any ideas, features, functions or graphics of the SaaS Service; (v) Use the SaaS Service for any purpose apart from the Business Purpose; (vi) modify, disrupt or interfere with the SaaS Service, supporting servers, or networks either manually or through the use of scripts, viruses, or worms, trojan horses or any other malicious code; and (vii) excessively overload the servers provided by the Company or systems used to provide the SaaS Service.
4. THIRD PARTY SERVERS AND SERVICES
5. USAGE POLICIES
In addition to this Agreement, the Company may from time to time frame policies regarding usage of the Service(s). All such policies and any modifications, amendments, revisions to such usage policies are incorporated into this Agreement by reference. In the event of any conflict between the usage policies and this Agreement, the most recent usage policy will prevail.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 All Intellectual Property Rights in (i) the technology, software applications and tools used in providing the SaaS Service, (ii) the B2C Website, designed and developed by the Company, including its layout and architecture, but excluding Content, (iii) any of the other Services and (iv) any know-how, specifications, inventions, processes, data or information supplied by the Company under or in connection with this Agreement (collectively “Company Intellectual Property”) belong to and are the sole property of the Company. The Subscribing Organisation hereby acknowledges and agrees that all Intellectual Property Rights existing or arising in any Company Intellectual Property will at all times belong to and remain vested in the Company and save as expressly provided hereunder, no proprietary rights or any other rights whatsoever are assigned, granted or otherwise passed to the Subscribing Organisation or any of its B2B Users or B2C Customers.
6.2 The Company Intellectual Property is provided “AS IS” only for the Use contemplated hereunder and may not be otherwise used, or copied, sold, modified, reproduced, distributed, transmitted, broadcast, displayed, performed, licensed, or otherwise exploited for any other purposes whatsoever without Company’s prior written consent.
7.1 The Subscribing Organisation hereby warrants that: (i) it is the owner of such Content, or has been granted all the rights necessary from the owner of such Content to submit such Content to the Company; (ii) the Use of such Content will not infringe or misappropriate the intellectual property rights of or otherwise violate the rights of any third party or the provisions of applicable law; (iii) in the case of Content that constitutes personal information of any person, including B2C Customers, it has obtained requisite consent for Use of such content and is otherwise in compliance with all data privacy and protection law applicable to the collection, storage, processing or transfer of such Content; and (iv) the Company, its officers, directors, employees are not responsible for any Content submitted in the course of using the SaaS Services or any other Service, including the procurement of any consent from any person, for the collection, storage, processing or transfer of such Content, in the course of providing the SaaS Services or any other Service.
7.2 The Company acknowledges that any and all Content, including copyrights, trademarks, database rights and other Intellectual Property Rights contained in such Content are owned by the Subscribing Organisation or the person submitting such Content. The Subscribing Organisation hereby grants the Company the right to Use such Content (where owned by the Subscribing Organisation) or agrees to procure such right (where not owned by the Subscribing Organisation), only for the purpose of providing the SaaS Service or any other Service. The Company does not obtain any right, title or interest in the Content, except as specifically granted herein in order to provide the Services to the Subscribing Organisation.
7.3 The Company agrees to (a) hold all Content in strict trust and confidence, (b) refrain from using or permitting any third parties to use the Content in any manner or for any purpose not expressly permitted or required by this Agreement; provided that the Company will not have any liability hereunder for any use of the Content that it does not expressly permit, (c) refrain from disclosing or permitting others to disclose any Content to any third party, apart from its business partners and vendors, without obtaining the Subscribing Organisation’s express prior written consent on a case-by-case basis, and (d) limit access to the Content to its employees, agents, business partners or vendors, who have a reasonable need to have such access in order to provide the Service(s) or any related service offerings, such as the Payment Gateway or SMS Gateway. The Company will ensure that each of its employees who will have access to any Content in the course of performing any Services has entered into a binding written agreement to safeguard the Content at least to the same degree as specified in this Clause 7.3. Provided however that the Company’s obligations under this Clause 7.3 will not extend to any particular Content that the Company can prove, by clear and convincing evidence that, (a) the Company lawfully knew prior to its first disclosure to the Company, (b) a third party rightfully disclosed to the Company free of any confidentiality duties or obligations, (c) is, or through no fault of the Company has become, generally available to the public, or (d) is required to be disclosed in accordance with applicable laws, regulations, court, judicial or other government order, provided that reasonable notice prior to such disclosure is given by the Company.
7.4 The Subscribing Organisation acknowledges that the Company does not pre-screen Content. However, the Company and its designees, contractors or subsidiaries will have the right (but not the obligation) in their sole discretion to refuse or to remove any Content that is available via the Services. The Subscribing Organisation agrees that it is responsible for the accuracy, completeness, quality, integrity, legality, reliability, appropriateness and intellectual property ownership of the Content.
7.5 The Subscribing Organisation agrees that the Company has no responsibility or liability for the unauthorised, wilful or negligent access or use of, deletion, corruption, or alteration of, or the failure to upload, store or retrieve any Content maintained or transmitted by the SaaS Service.
7.6 The Subscribing Organisation agrees that it will not and will ensure that the B2B Users do not Use the Service(s) to share, store, or in any way distribute financial data that is not in accordance with law. Any person suspected of using the Service for fraud, embezzlement, money laundering, insider trading, support for terrorism, or any other activity prescribed by law or in violation of this Agreement may have their Accounts terminated, their financial data may be erased, and they also may be reported to law enforcement officials in the appropriate jurisdictions.
7.7 Within seven (7) days of termination of this Agreement for any reason, the Subscribing Organisation will send a notice to the Company seeking either (i) deletion of all Content in the possession of the Company, and the Company proof of such deletion or (ii) return of all Content in the form as available on the database of the Company at that time. If the Subscribing Organisation fails to send the notice seeking deletion or return of Content within the said seven (7) days, the Company may, at its discretion, either return or permanently delete from its servers, all of the Subscribing Organization’s Content and all backup copies thereof, without further notice and without any liability of the Company to the Subscribing Organization, its Users or any third party.
Upon deletion or return of Content, as the case may be, the Company will cease to have any obligation under this Agreement or law, in relation to the Content.
8. LIABILITY FOR USERS OF SERVICES
In relation to B2B Users and B2C Customers (to the extent applicable), the Subscribing Organisation hereby agrees that it will be solely responsible for (i) their acts and/or omissions in connection with their access and/or Use of the SaaS Service or any other Service and (ii) ensuring that their access and/or Use of the SaaS Service or any other Service is in compliance with this Agreement and any and all applicable local laws, rules and regulations (iii) any Content uploaded by them, including its appropriateness, confidentiality, accuracy, completeness, quality, integrity, legality, reliability, intellectual property ownership and legality. The Subscribing Organisation agrees to fully indemnify the Company and its affiliates, subsidiaries, licensors (collectively, “Representatives”) for any liability, fines, penalties, costs, claims and/or damages incurred by the Company and/or the Representatives in connection with any claim related to the access and/or Use of the SaaS Service or any other Service by B2B Users and B2C Customers, as the case may be.
9.1 Subscribing Organisation
The Subscribing Organisation willUse the Service(s) subject to ensuring the following:
(a) that it will:
i. comply with any and all instructions provided toby the Company relating to Use of the Service(s) and use the Services legally and in compliance with applicable laws;
ii. make available to the Company such accurate information, documentation, data including but not limited to data on the latest room rates, discounts etc and such other assistance as the Company may reasonably require to provide the Service(s), including information required for creating Accounts, information on the rooms available for booking and billing;
iii. comply with this Agreement in Using the Service(s) and ensure that each B2B User executes the B2B User Subscription Agreement prior to Using the SaaS Services;
iv. grant to the Company a revocable, royalty free, worldwide license to use the Subscribing Organisation’s trade name and corporate logo in connection with the Company promotional materials, to identify the Subscribing Organisation as a customer of the Company. The Subscribing Organisation may terminate this license by notifying the Company in writing, and agreeing to allow the Company a commercially reasonable period of time to remove such references, which in no event shall be less than ninety (90) days from the date of the notice issued by the Subscribing Organisation;
v. Honour all the bookings received by the Subscribing Organisation via all the sales channels serviced by the Company. In the event any booking cannot be honoured, the Subscribing Organisation shall indemnify the Company against any loss, damages or claims that the Company may incur on account of such unfulfilled/ cancelled bookings[Please confirm if this clause is sufficient.].
vi. In the event a particular booking made with the Subscribing Organisation cannot be honoured, provide alternate and commensurate accommodation to the guest for the dates for which the bookings were confirmed.
vii. Give a general permission to the Company to share all non-personal data generated in the course of use of the Services via the GDS “Global Distribution System” with third parties such as makemytrip, trivago and other online travel forums to enable the Company to grow the Subscribing Organisations business and increase its bookings. The Subscribing Organisation shall ensure that any bookings received through such channels are honoured.
viii. Enter into a separate “Revenue Management Agreement” on the Company’s appointment as the Subscribing Organisations revenue manager for managing all the sales channels and to grant the Company such permissions as may be necessary to enable the Company to enter into business arrangements with third parties to proliferate and grow the Subscribing Organisations business.
(b) that it will NOT:
i. circumvent, disable, modify, disrupt or interfere with the Service(s), supporting servers, or networks either manually or through the Use of scripts, viruses, or worms or other malicious codes;
ii. reproduce, duplicate, copy, reverse engineer, deconstruct, sell, trade the Service(s) or the underlying technology;
iii. excessively overload the Company’s systems Used to provide the Service(s) and will adhere to the storage limits set by the Company;
iv. copy or distribute or publish any part of the Service(s) in any medium;
v. Use the Service(s) for any immoral or illegal purpose;
vi. Use the Service(s) to send unsolicited messages, email or other communications; and
vii. Use the Service(s) or Content in a manner that violates any applicable law, regulation, this Agreement and usage policies of the Company.
viii. Disparate the Company’s reputation or the Services provided by the Company in any manner and in any media.
9.2 The Company
The Company will ensure the following while providing the Services:
(a) that all Services are provided in a workmanlike manner commensurate with applicable industry standards;
(b) that such part of the SaaS Services that are not dependant on the Subscribing Organisation’s or third party systems, servers or services, are provided in accordance with stated functionality, service levels relating to service availability, issue resolution and troubleshooting;
(c) that B2B Users identified by the Subscribing Organisation are given valid Accounts and permitted unlimited access to the B2B Interface for the duration of the Subscription Period; and
(d) that business partner websites of the Subscribing Organisation are furnished API Access to the SaaS Service and platform, to the extent required by such websites’ customers to query the database and make bookings related to the Subscribing Organisation’s travel and bus management services.
10. DISCLAIMER OF WARRANTIES
THE SUBSCRIBING ORGANISATION EXPRESSLY UNDERSTANDS AND AGREES THAT:
10.1 ITS USE OF THE SERVICE(S) IS AT ITS SOLE RISK. THE SERVICE(S) IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE COMPANY AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE(S) INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GUARANTTED OCCUPANCY INCREASE, GUARANTEED INCREASE IN BUSINESS PROSPECTS[Added these given the nature of services. Please confirm.], NON-INFRINGEMENT, DATA LOSS, NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY THIRD PARTY RIGHTS, OR THE ACCURACY, RELIABILITY OR QUALITY OF THE SERVICE(S).
10.2 THE COMPANY AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND LICENSORS (IF ANY) MAKE NO WARRANTY THAT (i) THE SERVICE(S) WILL MEET THE SUBSCRIBING ORGANISATION’S REQUIREMENTS OR RESULT IN REVENUES OR PROFITS, (ii) THE SERVICE(S) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE(S), INCLUDING BUT NOT LIMITED TO REPORTS, FINANCIAL STATEMENTS, ETC, WILL BE ACCURATE OR RELIABLE, (AND (iv) THAT THE SERVICE(S) WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE OR SYSTEM. WHILE THE COMPANY WILL USE COMMERCIALLY REASONABLE EFFORTS TO PREVENT UNAUTHORIZED ACCESS TO CONTENT, THE COMPANY AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND LICENSORS MAKE NO WARRANTY THAT SUCH CONTENT WILL BE SECURE AGAINST SUCH UNAUTHORIZED ACCESS OR OTHER SECURITY BREACHES. THE COMPANY EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT THE SUBSCRIBING ORGANISATION’S USE OF THE SERVICE(S) WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS IN INDIA OR ACROSS THE WORLD. THE SUBSCRIBING ORGANISATION IS SOLELY RESPONSIBLE FOR ENSURING THAT ITS USE OF THE SERVICE(S), RELATED SERVICES OR CONTENT IS IN ACCORDANCE WITH APPLICABLE LAW. USE OF THE SERVICE(S) AND THE ACCOUNT ARE AT THE SUBSCRIBING ORGANIZATION’S AND USER’S SOLE RISK. THE SUBSCRIBING ORGANIZATION AND ITS USERS WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO THE SUBSCRIBING ORGANIZATION, ANY USER, THE ACCOUNT RESULTING FROM THE USE OF THE SERVICE OR B2B INTERFACE OR B2C WEBSITE.
10.3 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE(S) IS DOWNLOADED OR OBTAINED AT THE SUBSCRIBING ORGANIZATION’S AND USER’S OWN DISCRETION AND RISK AND THE SUBSCRIBING ORGANIZATION’S AND USER’S WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO THEIR COMPUTER SYSTEMS OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
10.4 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY THE SUBSCRIBING ORGANIZATION FROM THE COMPANY OR THROUGH OR FROM THE SERVICE(S) WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
10.5 In jurisdictions that do not allow limitations on implied warranties, the above limitation may not apply to either the Subscribing Organization or the User. In that event, such warranties will be limited to the minimum warranty scope and period allowed by applicable law.
11.1 The Subscribing Organisation agrees to indemnify and hold harmless the Company, its subsidiaries and affiliates, and its and their directors, officers, agents and employees (“Indemnitees”), from any and all claims, damages, liabilities, costs, and expenses (including reasonable legal fees and expenses) arising out of, or related to, (i) any Content, (ii) the Use of the Service(s), (iii) the Subscribing Organisation’s violation of the Agreement, or any proprietary or other rights of another; (iv) the placement or transmission of any message, information, software or other materials through the Service by the Subscribing Organisation or any User; or (v) the Subscribing Organisation’s breach of any confidentiality obligations owed to another or (vi) in connection with any claims made by guests whose bookings, after confirmation have not been honoured by the Subscribing Organisation. The Subscribing Organisation further agrees and acknowledges that the Indemnitees are not liable or responsible in any way for any errors, omissions or any other actions arising out of or related to the Use of the Service(s).
11.2 The Company will at its own cost and expense, indemnify, defend and hold harmless the Subscribing Organisation against any claim and the losses arising out of or related to any such claim that the SaaS Service or any Company Intellectual Property infringes the intellectual property rights of a third party. If any SaaS Service or any Company Intellectual Property are held to infringe any intellectual property right, the Company will, at its expense, (a) obtain the right for the Subscribing Organisation to continue to Use the SaaS Service or the infringing Company Intellectual Property for the duration of the Subscription Period or Service Period, as the case may be; (b) modify the relevant portion of the SaaS Service or the Company Intellectual Property so that they are non-infringing; (c) replace the SaaS Service or the Company Intellectual Property with non-infringing substitutes; or (d) terminate this Agreement and refund any Subscription Fees or B2C Website design Fees paid by the Subscribing Organisation. It is agreed that the Company will control and defend any suit filed against the Subscribing Organisation by any third party for intellectual property rights infringement in the SaaS Service or the Company Intellectual Property.
12. LIMITATION OF LIABILITY
12.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY, ITS PARENTS, SUBSIDIARIES, OFFICERS, EMPLOYEES, SPONSORS, PARTNERS, SUPPLIERS, LICENSORS OR AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL LOSS (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, PROCUREMENT OF SUBSTITUTE SERVICES, OR ANY OTHER PECUNIARY LOSS) LOSS OF GOODWILL OR OTHER INTANGIBLE LOSSES OR EXEMPLARY DAMAGES, RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE(S); (ii) UNAUTHORIZED ACCESS TO OR ALTERATION OF THE SUBSCRIBING ORGANISATION’S OR ANY USER’S TRANSMISSIONS OR CONTENT; (iii) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE(S); OR (v) ANY OTHER MATTER RELATING TO THE SERVICE(S).
12.2 THE SUBSCRIBING ORGANISATION ALSO AGREES THAT THE COMPANY WILL NOT BE LIABLE FOR ANY (a) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE SERVICE(S); (b) CONTENT NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; (c) UNAUTHORIZED ACCESS TO CONTENT ENTERED IN, OR BREACH OF ANY SECURITY MECHANISMS UTILIZED IN, THE SERVICE(S); OR (d) EVENTS BEYOND THE COMPANY’S REASONABLE CONTROL.
12.3 IN NO EVENT WILL THE COMPANY’S MAXIMUM AGGREGATE LIABILITY EXCEED ONE MONTHS SUBSCRIPTION FEES OR INR 50,000, WHICHEVER IS LESSER.
13. TERM OF THE AGREEMENT
This Agreement will commence from the Effective Date and will subsist until such time that:
a.The Subscribing Organisation communicates its intention to cancel its Subscription to the SaaS Service in accordance with Clause 2.5 above; or
b.This Agreement is terminated in accordance with the provisions of Clause 14 below.
14.1 Apart from its rights of termination set out in Clause 2.5 above and Clause 18.1 below, the Company may terminate this Agreement at any time, if:
a.the Company believes that the Subscribing Organisation has violated or is threatening to violate the Agreement or other policies of the Company, its third party providers or applicable law, or has misused or is threatening to misuse the Service(s), or has Used the Service(s) to conduct any fraudulent, abusive, or illegal activity after providing the Subscribing Organisation thirty (30) days prior written notice of the intention to terminate;
b.the Subscribing Organisation has assigned its rights to Use any part of the Service;
c.the Company cancels or discontinues the SaaS Service or any part thereof for any reason, after providing the Subscribing Organisation thirty (30) days prior written notice of the intention to discontinue or cancel the SaaS Service;
d.the Subscribing Organization or a User makes excessive Use of bandwidth, transmits excessive numbers of e-mails, notices or other transmissions inconsistent with the usage policies, in the sole discretion of the Company;
e.the Subscribing Organisation fails to pay Fees for Service(s) by the Due Date for three (3) or more consecutive billing months
f.the Subscribing Organisation is in process of dissolution or liquidation or winding up according to the laws of India or a petition under any bankruptcy law is filed by or against the Subscribing Organisation; or
g.By providing the Subscribing Organisation thirty (30) days written notice.
14.2 Apart from its rights of termination set out in Clause 18.1 below, the Subscribing Organisation may terminate this Agreement at any time, if:
a.the Company breaches any of its obligations under this Agreement and has not rectified such breach within thirty (30) days of written notice in this regard provided by the Subscribing Organisation;
b.the Company is in process of dissolution or liquidation or winding up according to the laws of India or a petition under any bankruptcy law is filed by or against the Company; or
c. By providing the Company thirty (30) days written notice.
14.3 In the event the Company terminates this Agreement for convenience during the pendency of any Subscription Period or Service Period, then at its sole option, the Company may either refund the Subscription Fees or other Fees after deducting therefrom such amounts as are commensurate with the Services already rendered, or continue providing the relevant Services till the expiry of the relevant Service Period.
14.4 Notwithstanding anything in this Agreement to the contrary, if the Company reasonably believes that the Subscribing Organization or any of its Users or third party permitted to Use the Service has violated or is threatening to violate applicable law or the provisions of this Agreement or has conducted or is threatening to conduct any fraudulent, abusive, or illegal activity, the Company may, without any notice, refer the Subscribing Organization or its Users or third parties permitted to Use the Service to appropriate law enforcement agencies, or immediately remove and permanently delete all Content and Accounts provided herein.
14.5 The provisions of Clauses 1, 7, 8, 10, 11, 12 and 18 will survive the termination of this Agreement.
15. AUDIT AND INVESTIGATIONS
The Company reserves the right to audit the books of the Subscribing Organisation (and make copies of relevant portions thereof) at anytime during the term of this Agreement and for twenty (24) months thereafter, in relation to such of the Fees that are based on the sales and/or other bookings made using the SaaS Service, including through the B2B User Interface, the B2C Website and API access. The Company will provide twenty four (24) hours notice of its intention to audit the books of the Subscribing Organisation. The Company also reserves the right to investigate the validity of any complaint presented to it that alleges that the Service has been Used to conduct fraudulent, abusive or illegal activity, or has been Used in any way which violates the Agreement. Such investigations may include logging in to any Account and reviewing any Content or information contained in the Website(s). The Company will not, however, provide any such Content or information to any third party unless required by law or court order. [Please confirm if this clause will be relevant for HotelSimply. Not sure if the hoteliers will agree]
The B2C Website(s) designed, developed, hosted and maintained by the Company may contain links to third party websites including to the Payment Gateway that are not owned or controlled by the Company. The Company has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. By using such B2C Website(s), the Subscribing Organisation expressly relieves the Company from any and all liability arising from its use of any third-party websites as aforesaid.
This Agreement and any rights and permissions granted hereunder, may not be transferred or assigned by the Subscribing Organisation, but may be assigned by the Company without restriction.
18.1 Force Majeure
Apart from any monetary obligations of either Party under this Agreement, neither Party shall be liable for failure to perform any of its obligations hereunder if such performance is prevented, restricted or interfered with by reason of war or other violence; any law, or regulation of any government; fire, or other causality or accident; strike or labour disputes; or any act or condition whatsoever beyond the reasonable control of such Party (each such occurrence being hereinafter referred to as a “Force Majeure Event”). If a Force Majeure Event does occur, the Party whose ability to perform is affected shall be excused from performance, to the extent of the restriction or interference. The Party being affected shall give prompt notice within a period of five days from the date of the Force Majeure Event, providing a description to the other Party of such Force Majeure Event, the cause of the Force Majeure Event and the nature and extent of performance impacted thereby. Provided however that such Party shall use all commercially reasonable efforts to, as soon as possible, avoid or remove such cause of non-performance and shall continue performance hereunder whenever such causes are removed. Provided further, that if any such delay continues for a period of more than 60 days from the date on which notice of the Force Majeure Event is served, the Party not claiming excusable delay shall have the option of terminating this Agreement upon the expiry of such 60-day period without prejudice to the rights and contentions as may be admissible under this Agreement.
18.2 Relationship Between the Parties
Nothing in this Agreement will be deemed to constitute a partnership or a joint venture between the Subscribing Organisation and the Company. Further, nothing contained in this Agreement will constitute the Subscribing Organisation as the agent of the Company or otherwise entitle the Subscribing Organisation to have authority to bind the Company for any purpose.
18.3 Dispute Resolution
All disputes between the Subscribing Organisation and the Company arising out of or in connection with this Agreement or the Subscribing Organisation’s Use of the Service(s) will first be settled by mutual negotiations and agreement. If, for any reason, such dispute cannot be resolved amicably within 60 calendar days of the dispute being notified by either the Subscribing Organisation or the Company to the other, the same shall be subject to arbitration as per the Arbitration and Conciliation Act, 1996 or any subsequent enactment or amendment thereto and the place of arbitration will be Bangalore; provided however that either Party shall be entitled to seek specific performance or injunctive relief by a court having jurisdiction, with respect to any claims which the Party claiming relief can prove are by their very nature, claims that necessitate the reliefs of specific performance or injunction. The arbitration will be conducted in English. The award of the arbitration proceedings will be final and binding on both the Subscribing Organisation and the Company.
18.4 Governing Law and Jurisdiction
Subject to the Clause 18.2 above, all disputes between the Subscribing Organisation and the Company that arises in whole or in part from the Use of the Service(s) or otherwise under this Agreement will be decided exclusively by a court of competent jurisdiction located in Bangalore. This Agreement will be governed by the laws of India.
18.5 Entire Agreement
The Subscribing Organisation and the Company acknowledge that they have read this Agreement, and understand it, and agree to be bound by its terms, and further agree that this along with (a) Annexes and (b) terms of usage of the Services made available by the Company from time to time, are the complete and exclusive statement of the understanding between the Parties, which supersede and merge all prior proposals, understandings and all other agreements and all other communications, oral and written, between the Parties with respect to the subject matter hereof.
If any provision(s) of this Agreement are deemed invalid by a court of competent jurisdiction, the invalidity of such provision(s) will not affect the validity of the remaining provisions of this Agreement which will remain in full force and effect.
No waiver of any obligation of this Agreement will be deemed a further or continuing waiver of such term or any other term, and either Party’s failure to assert any right or provision under this Agreement will not constitute a waiver of such right or provision.
Notices, demands or other communication required or permitted to be given or made under this Agreement shall be in writing and delivered personally or sent by pre-paid post with recorded delivery, or by email to the intended recipient at its address set forth below, or to such other address or email address as a Party may from time to time duly notify to the others:
(a)If to the Company:
Address: 3rd floor,No.18, Mp Krishna Mansion, 1st A Cross Rd, 5th Block, Koramangala, Bengaluru, Karnataka 560095
(b)If to the Subscribing Organisation:
Address: Hotel Address
Email id: Email ID