Terms & Conditions

Definition

• Affiliate means any entity, directly or indirectly, controlling, controlled by, or under common control with any other entity
• Software means the latest version of eRetail Express software product.
• Software License means eRetail Express software product that is licensed to the Licensee, in accordance with the terms of this agreement
• SaaS Model (Software as a Service) means the Licensee is licensing a centrally hosted software on a subscription model for which a fee is payable in advance.
• Source Code means a set of instructions and statements written using computer programming language.
• Confidential Information means non-public Information of an affiliate or a party to this Agreement that is identified as or would be reasonably understood to be confidential and/or proprietary. Confidential Information does not include information that:
  1. is or becomes known to the public without fault or breach of the Recipient;
  2. the Discloser discloses to a third party without restriction on disclosure;
  3. the Recipient obtains from a third party without restriction on disclosure and without breach of a non-disclosure obligation; or
  4. is independently developed by the Recipient without using the Confidential Information of the Discloser.
• Effective Date means the date of the execution of this agreement.

1. Intellectual Property Rights
   1. All intellectual property related to the trademark, source code, logo of eRetail Express is the exclusive property of Vinculum.
   2. Content and data provided by the Licensee for using the software will remain the property of the Licensee.
   3. Both Parties hereby acknowledge that each Party is the legal and beneficial owner of and has exclusive right, title and interest over its own Intellectual Property and all other proprietary information in relation to its business. Subject to the terms of this Agreement, nothing in this Agreement shall be deemed in any way to constitute a transfer or assignment of any Intellectual Property by either Party to the other Party.
2. Grant of Liscense
   1. Vinculum hereby grants the Licensee, a license to use eRetail Express software for the term of this Agreement.
   2. Subject to payment of the monthly fees, applicable license fees, customization fees or applicable support fees, the license thus granted is a non-exclusive, non-transferable license to use eRetail Express software for its business
   3. In order to access and use the software, licensee shall be required to register and maintain an account (“Account”) which will require the licensee to furnish to Vinculum certain information and details, including name, e-mail id, and any other information deemed necessary by Vinculum (“Account Information”). The licensee agree to keep this information updated at all times.
   4. The licensee shall be responsible for maintaining the confidentiality and security of the password and for all activities that occur in and through the Account. Vinculum and its affiliates / partners are not liable for any harm caused by, or related to the theft of licensee’s ID, licensee’s disclosure of Account Information, or authorization to allow another person to access and use the Service using the Account. However, the licensee may be liable to Vinculum and its affiliates / partners for the losses caused to them due to such unauthorized use.
3. Product Warranties
   1. Ownership: Vinculum warrants that it has title to the software and documentation, and that it is the sole owner of the software system and documentation.
   2. Legal Compliance: Vinculum warrants that the software and documentation licensed hereunder shall have been produced, licensed, delivered and furnished in strict compliance with prevalent legal requirements.
   3. Warranty: Vinculum warrants that each software licensed to Licensee will operate without a documented defect for the term of this agreement.
   4. Abrogation of Warranty: Vinculum will have no obligation if any alleged breach of warranty is caused by: (i) any unauthorised modification of the software by the Licensee; or (ii) the use or combination of the software with any computer, computer platform, operating system and/or data base management system other than the recommended equipment.
4. Use Restriction
   1. Except as expressly permitted in this Agreement, Customer shall not directly or indirectly (a) use any of Vinculum’s Confidential Information (defined below) to create any service, software, documentation or data that is similar or competitive to any aspect of the Services, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Services, or the underlying ideas, algorithms or trade secrets therein, (c) encumber, sublicense, transfer, rent, lease, time-share or use the Services in any service bureau arrangement or otherwise for the benefit of any third party, (d) copy, harvest, scrape, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Services, (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the India or any other relevant jurisdiction, (f) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services, (g) remove any copyright patent, trademark, or other intellectual property notices, information, and restrictions contained in any Content accessed through the Services, or (h) permit any third party to engage in any of the foregoing proscribed acts.
5. Confidentiality
   1. Except as otherwise permitted under this Agreement, the Recipient will not disclose to any third party, or make any use of the Discloser’s Confidential Information. The Recipient will use at least the same standard of care to maintain the confidentiality of the Discloser’s Confidential Information that it uses to maintain the confidentiality of its own Confidential Information, but in no event less than reasonable care. The non-disclosure and non-use obligations of this Agreement will remain in full force with respect to each item of Confidential Information for a period of three (3) years after the termination of this agreement.
6. Assignment
   1. Licensee may assign or otherwise transfer any of its rights or obligations under this Agreement, whether by law or otherwise. For purposes of this Agreement, “assignment” shall include use of the Software for benefit of any third party to a merger, acquisition and/or other consolidation by, with or of Licensee, including any new or surviving entity that results from such merger, acquisition and/or other consolidation.
   2. Vinculum may assign or otherwise transfer any of its rights or obligations under this Agreement, in the event of a merger, acquisition. A notice of 60 days will be provided to the Licensee if such a scenario occurs. In all other circumstances, Vinculum may not assign or otherwise transfer any of its rights or obligations under this Agreement without the express approval in writing from the licensee.
7. Publicity
   1. Licensee hereby consents to inclusion of its name and logo in client lists and marketing materials that may be published as part of Vinculum’s marketing and promotional efforts. From time to time upon Vinculum’s request, Licensee agrees it will provide reasonable cooperation and assistance in connection with such efforts (by acting as a reference, issuing press releases, testimonials and case studies).
8. Limitation of Liability
   1. Except for any breach of section 5 ( confidentiality) or liabilities to third parties pursuant to section 3.3 (product warranties for indemnification), in no event shall either party be liable concerning the subject matter of this agreement, regardless of the form of any claim or action (whether in contract, negligence, strict liability or otherwise), for any (a) indirect, punitive, incidental, reliance, special, exemplary or consequential damages including, but not limited to, loss of business, revenues, profits and goodwill or (c) damages, in the aggregate, in excess of the monthly subscription fees paid to it (in the case of Vinculum) or paid and payable by it (in the case of licensee) hereunder during the six (6) months preceding such claim, even if it has been advised of the possibility of such damages or US$100 whichever is lesser. These limitations are independent from all other provisions of this agreement and shall apply notwithstanding the failure of any remedy provided herein.
9. Term and Termination of the Agreement
   1. This agreement will remain valid for 1 year from the date of signing with an option to renew subject to mutual agreement between the parties.
   2. Either Party may terminate this Agreement by giving to the other Party 30 (Thirty) days’ written notice if the other Party becomes or is declared bankrupt, insolvent or goes into voluntary or compulsory liquidation; any distress or attachment is levied, or any receiver is appointed in respect of the business or a substantial part of the property or assets of the other Party, or if it takes any similar action in consequences of debt.
   3. The licensee’s right to access and use the software ends upon expiry or termination of this agreement.
   4. The account of the licensee shall remain valid for a period of one months post after the balance in the account is exhausted and no recharge is done in that time period. In such a case, this agreement shall be terminated on the date of the account expiry.
10. Indemnification

    Vinculum hereby undertakes to indemnify and keep indemnified the Partner, including its affiliates, directors, officers, employees, representatives and agents, against any liabilities, costs, claims, expenses, loss or damage or third party claims (including reasonable legal costs) arising from or in connection with (i) its obligations under this Agreement or (ii) breach of the representations and warranties made under this Agreement on the part of Vinculum or (iii) any act, omission or negligence on part of any of the Vinculum’s representatives, employees and/or agents or (iv) any third party claim made against the Partner in relation to the usage of Vinculum’s software for infringement of intellectual property rights only.

    The obligations of the parties under this Section 9 are contingent on the following actions: the non-indemnifying party, if legally permitted to do so, must notify the other party promptly in writing of a claim or action and provide the indemnifying party with authority to solely defend the claim or action, as well as information and assistance at its expense for the defence of the claim or action; and the sole liability of the indemnifying party, with respect to such indemnification will be limited to the defences and/or settlement of the claim to the third party.

11. Notices
    1. All notices and other communications required or permitted under this Agreement or required by law must be sent in writing and via mail, sent at the registered office of Vinculum, and will be deemed given when: delivered personally; sent by registered or certified mail, return receipt requested; transmitted by facsimile confirmed by first class mail; or sent by overnight courier.
12. No Waiver
    1. A party’s failure to enforce its rights with respect to any single or continuing breach of this Agreement will not act as a waiver of the right of that party to later enforce any such rights or to enforce any other or any subsequent breach.
13. Governing Law
    1. This Agreement will be governed by and construed under the laws of India. If any provision of this Agreement is illegal or unenforceable, it will be deemed stricken from the Agreement and the remaining provisions of the Agreement will remain in full force and effect. If any of the provisions of the agreement is or becomes invalid, illegal or is unenforceable, the validity and enforceability of the remaining provisions shall not in any way be impaired or affected.
14. Dispute Resolution
    1. The parties agree that they shall, at all times, act in good faith, and make all attempts to resolve all differences whatsoever arising out of or in connection with this Agreement by discussion failing which, such dispute shall be referred to and finally resolved in the courts of New Delhi and the language to be used in the arbitral proceedings shall be English.
15. Jurisdiction
    1. Subject to clause 14 (Dispute Resolution), the courts at New Delhi, India shall have exclusive jurisdiction over this Agreement.