Client Service Agreement
(DD/MM/YY to DD/MM/YY )
Client Service Agreement
This SaaS (Software as a Service) Agreement is made and entered on Wednesday date 08th April 2020.
(“Milearth Softech” or “Party” or “Provider” or “Developer” or “Service Provider” or “Vendor”) offering Software as a Service (“MilGrasp” or “Software as a Service” or “Product” or “Service”) with its principal office at B/10, 3rd Floor, Ratandeep Cosmopolitan Society, SV Rd, opp. HDFC Bank, Before Shoppers Stop, Andheri West, Mumbai, Maharashtra 400058.
(“Customer” or “Client” or “Subscriber” or “Party”), with
The Parties hereto agree as follows:
This Agreement is effective when signed by Customer and Milearth Softech representatives Mr. Piyush Kamdar (Founder & CEO) Initial Term of this Agreement is 3 Years from the Effective Date. Milearth Softech terminates this Agreement or elects to reduce the number of Customer’s authorized end users (“Users”) of the Licensed Material, then, in addition to amounts due for use of the Licensed Material and Support Services actually rendered prior to the termination of this Agreement or reduction of Users, there shall be immediately due and payable by Customer an amount equal to the 50% of the fees that would have been paid the remainder of the term but for the termination or reduction of Users, as the case may be.
The Client hereby authorizes Milearth Softech to access this account and authorizes the web hosting service to provide Milearth Softech with “write permission” for the Client’s information wherever needed.
Milearth Softech hereby grants to customer a personal, non-exclusive, non-transferable license during the term of this Agreement to use, in object code form, all software and related documentation provided by Milearth Softech (“Licensed Material”), which may be furnished to Customer under this Agreement. Customer agrees to use commercially reasonable efforts to ensure that its employees and users of all Licensed Material hereunder comply with the terms and conditions set out in this Agreement. Customers also agree to refrain from taking any steps, such as reverse assembly or reverse compilation, to derive a source code equivalent to the Licensed Material. All Licensed Material furnished to Customer under this Agreement shall be used by Customer only for Customer’s internal business purposes, shall not be reproduced or copied in whole or in part.
BILLING & PAYMENT:
Client is responsible for paying all applicable taxes, including 18% GST, and any other tax that may be applicable in future. Service will not start until the payment is received. By signing this agreement, the Client acknowledges that this is the ONLY specification for the “MilGrasp” Software as a Service (Saas). Any subsequent modifications to this specification together with any cost adjustment have to be agreed by both parties by signing a new agreement.
Billing for all features will be done on an annual basis and depending upon the number of maximum Students in the academic year. All Billing cycles will be effective immediately as soon as super admin credentials are shared over email. Initial Bill may be raised on Pro Rata basis. Data Migration / Deployment will be client’s responsibility and Milearth Softech shall provide necessary guidance and support as and when needed in an appropriate manner. However, a client’s responsibility will be to maintain the data in a specific structure defined by the Milearth Softech. In case if clients desire Milearth Softech to take care of Data Migration, it will be billed additionally upon the number of students / year.
Once the billing cycle has started, reducing, revoking or replacing of any features will not be entertained. Additionally, added features will be billed on the number of student / from the ongoing quarter.
Client hereby understands and agrees that Pricing changes are subject to Inflation rate, ongoing forex currency rate (for Server charges) or any hike in any of the service that Milearth Softech uses on behalf of the client, Milearth Softech reserves the rights to change the pricing with 1-week prior notice. In case of hike in between a billing cycle, client agrees to pay the difference cost. However, Milearth Softech will ensure at its best to not have frequent changes in the pricing.
Milearth Softech may impose different charges for the same feature as per the city (Tier wise population), Type of student strength, Server Configuration, Storage space and Bandwidth utilization estimation of the client. We ensure and aim to provide minimum charges without any type of differentiation. However Small and Big Volumes both make huge differences in the per-user pricing.
A test link will be given to the Client to monitor the project progress. The Client agrees to pay Milearth Softech the balance payment at this moment before the live site is launched. Overdue balances may be charged a monthly service fee of 1.5% (or the greatest amount allowed by law). Services will be terminated if payments are not received within the terms of due date, after serving a seven days’ notice via “Phone” or “E-mail” or “SMS” or “WhatsApp”. If needed White labelling for subdomain & Mobile Application will be done at additional cost.
Some examples of severe significant page modification at the request of the Client include:
Developing a new table or layer structure to accommodate a substantial redesign at the Client’s request.
Clients who desire to be intricately involved in the design of each page are encouraged to negotiate an additional agreement.
CONFIDENTIAL INFORMATION DEFINITION:
Purpose of this Agreement “Confidential Information” shall mean information including, without limitation, all Customer data, computer programs, code, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial and product development plans, forecasts, strategies and information marked “Confidential”, or if disclosed verbally, is identified as confidential at the time of disclosure. In addition to the foregoing, Confidential Information shall include third party software, if any, that may be provided to Customer under this Agreement, including any related source or object codes, technical data, data output of such software, documentation, or correspondence owned by the applicable licensor. Confidential Information excludes information that:
was or becomes publicly known through no fault of the receiving Party;
(was rightfully known or becomes rightfully known to the receiving Party without confidential or proprietary restriction from a source other than the disclosing Party;
is independently developed by the receiving party without the participation of individuals who have had access to the Confidential Information;
is approved by the disclosing Party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing Party; and
the receiving Party is legally compelled to disclose; provided, however, that prior to any such compelled disclosure, the receiving Party will
assert the privileged and confidential nature of the Confidential Information against the third-party seeking disclosure and
cooperate fully with the disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information.
In the event that such protection against disclosure is not obtained, the receiving Party will be entitled to disclose the Confidential Information, but only as, and to the extent, necessary to legally comply with such compelled disclosure. Nondisclosure During this the term of this Agreement and for a period of 2 years thereafter, each Party agrees to maintain all Confidential Information in confidence to the same extent that it protects its own similar Confidential Information, but in no event using less than reasonable care, and to use such Confidential Information only as permitted under this Agreement; Each Party agrees to only disclose the other Party’s Confidential Information to its employees:
(a) with a need to know to further permitted uses of such information; and
(b) who are informed of the nondisclosure/ non-use obligations imposed by this. Both parties shall take steps each determines appropriate to implement and enforce such non-disclosure/non-use obligations.
Milearth Softech, and its employees agree that, except as directed by the Client, it will not at any time during or after the term of this Agreement disclose any confidential information to any person whatsoever. Likewise, the Client agrees that it will not convey any confidential information obtained about Milearth Softech or “MilGrasp” to another party in any manner where it discloses any proprietary information like app screenshot, design idea, mock-up, login credentials, screen recorded video to any potential competitor of MilGrasp which may directly or in-directly harm the potential business secrets of Milearth Softech & “MilGrasp”.
All data is owned by Customer and is to be strictly held as confidential. In no circumstances Milearth Softech will taking direct or indirect benefits from customers data on the server. Client hereby agrees to be responsible for any data that is modified or deleted by any user at client’s end. We recommend assigning user rights sensibly to appropriate users only. Client agrees to be responsible and inform all users to maintain a password as a confidential thing and not to share with anyone in any circumstances. In any circumstances, Milearth Softech or any of its representatives will not be held responsible for any data loss due to poor Internet connectivity, Hardware Failure or in scenarios which point towards a human error. When any tickets are raised Milearth Softech and it’s representative will be checking, monitoring & updating the database for monitoring & testing purposes as and when needed. Milearth Softech or any of its representatives has no Interest in Selling, manipulating or misusing client’s data. Milearth Softech will delete and destroy all copies of data once the Agreement is terminated with or without default. Customer has the option to receive a backup of data prior to deletion. All right, title and interest in and to the Licensed Material, and all copyrights, patents, trademarks, service marks or other intellectual property or proprietary rights relating thereto, belong exclusively to Milearth Softech. Any written or verbal suggestion and modification to the Software performed by Customer directly or indirectly extending the current capabilities shall be the property of Milearth Softech and all copyrights and other rights are hereby assigned to Milearth Softech.
On-site support can be provided with an additional cost. In case of permanent on-site support, clients will take care of the accommodation, traveling and food expenses of Milearth Softech representatives at their own cost, if not it may be additionally billed as “On-Site Support Charges”. In case of permanent on-site support, we recommend clients to accommodate and provide an in-house food facility to the Milearth Softech representative in the organization premises to save the cost.
Any electric hardware that may be needed with any of the features may be billed additionally and, in any circumstances, Milearth Softech will not be held responsible for warranty claims or any type of failure of the hardware device or non-connectivity with the application. Client hereby agrees with all the terms and conditions and any other agreement that hardware manufacture may provide for product warranty and support ticket raising system. However, Milearth Softech and its representative will provide necessary assistance as and when needed in appropriate situations.
BACKUP OF DATA:
Milearth Softech recommends clients to take a periodic backup of data at their end. It can also be stored on a cloud server automatically at a defined interval for a specific period of time. This service will be available at free of cost and will be applicable for upcoming database entries since customer start availing the facility.
If the Client’s web site requires the ability to accept credit cards and/or other forms of online payment, the Client will need a Merchant Account capable of receiving secure internet money transactions. The Client understands that this is their sole responsibility to set up an account with a service. However, the Client may request Milearth Softech to assist in such a setup. The Client may be billed additionally.
Server Infrastructure is responsibility of the Milearth Softech and User level Application maintenance will be the responsibility of the Client. If an onsite maintenance service agreement is entered into between Milearth Softech and the Client, it will be contained within its own document and not connected to this agreement. If the Client or an agent other than Milearth Softech representative attempts to update the Client’s pages during this time, time and charges to repair the application will be decided upon the seriousness of the situation. However, Milearth Softech reserves the right to downgrade the server for system maintenance and upgradation with and without any prior notice.
MULTIMEDIA & CROSS BROWSER COMPATIBILITY
All the pages and its design layout will work smoothly under certain screen resolutions. However, we ensure to support maximum variations. In case if any page’s layout is disturbed client is requested to immediately report the same to Milearth Softech.
Client agrees that Milearth Softech may put a by line on the bottom of all pages and screens for giving credits to Milearth Softech to establish design and development credit. With consent of client the certain information about the institute may be included in the Milearth Softech’s Client portfolio & Case Study Showcase.
ASSIGNMENT OF PROJECT
Milearth Softech reserves the right to assign certain subcontractors to this project to ensure the right fit for the job, as well as on-time completion. Milearth Softech warrants all work completed by independent subcontractors who are secured by Milearth Softech for this project. With consent of client when subcontracting is required, Milearth Softech may hire any independent professionals or agencies.
Client agrees that any material submitted for publication will not contain anything leading to an abusive or unethical use of the Web Hosting Service, the Host Server, Milearth Softech, independent subcontractors, or third-party subcontractors. Abusive and unethical materials and uses include, but are not limited to, pornography, obscenity, nudity, violations of privacy, computer viruses, harassment, any illegal activity, spamming, advocacy of illegal activity, and any infringement of privacy. Client hereby agrees to indemnify and hold harmless Milearth Softech from any claim resulting from the Client’s publication of material or use of those materials. It is also understood that Milearth Softech will not publish information over the Internet which may be used by another party to harm another. Milearth Softech will also not develop pornography or malware for the Client. Milearth Softech reserves the right to determine what is and is not pornography.
COPYRIGHTS AND TRADEMARKS
The Client represents to Milearth Softech and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Milearth Softech or uploaded in “MilGrasp” for inclusion in the Client’s web site are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Milearth Softech and its representative or subcontractors from any claim or suit arising from the use of such elements furnished by the Client.
REPRESENTATION & WARRANTIES:
Each Party represents and warrants that it has the right and authority to enter into this Agreement and that by entering into this Agreement, it will not violate, conflict with or cause a material default under any other contract, agreement, indenture, decree, judgment, undertaking, conveyance, lien or encumbrance to which it is a party or by which it or any of its property is or may become subject or bound.
Compliance with the Laws.
Each Party represents and warrants that no consent, approval or authorization of or designation, declaration or filing with any governmental authority is required in connection with the valid execution, delivery, and performance of this Agreement. Each Party shall, at its own expense, comply with all laws, regulations and other legal requirements that apply to it and this Agreement, including copyright, privacy, and communications decency laws.
Customer is solely responsible for the content of any postings, data, or transmissions using the Services, or any other use of the Services by Customer or by any person or entity Customer permits to access the Services. Customer represents and warrants that it will:
(a) not use the Services in a manner that:
(i) is prohibited by any law or regulation, or
(ii) will disrupt a third parties’ similar use of Licensed Materials;
(b) not violate or tamper with the security of any Milearth Softech computer equipment, program, Database or server infrastructure. If Milearth Softech has reasonable grounds to believe that Customer is utilizing the Services for any such illegal or disruptive purpose Milearth Softech may suspend the Services immediately with or without notice to Customer. Milearth Softech may terminate the Agreement, if Customer, in fact, fails to adhere to the foregoing acceptable use standards.
The warranties set above are the only warranties made by milearth softech. Milearth softech makes no other warranties of any kind, express or implied, with respect to the services, any related service or software. Milearth softech hereby expressly disclaims any implied warranty of merchantability, fitness for a particular purpose, or implied warranties arising from a course of dealing or course of performance. No oral or written information given by milearth softech, its employees, licensors, or the like will create a warranty.
LIMITATION OF LIABILITY:
Excluding the liability under the section entitled “NO INFRINGEMENT” below, under no circumstances will Milearth Softech or anyone else involved in administering, distributing or providing the services, be liable for any indirect, incidental, special or consequential damages that result from the use of or inability to use the services, including but not limited to loss of revenue or lost profits, or damages that result from mistakes, omissions, interruptions, deletion of files or email, errors, defects, viruses, delays in operation or transmission, failure of performance, theft, destruction or unauthorized access to Milearth Softech’s records, programs or services, even if such party has been advised of the possibility of such damages.
Cases like ransomware or cyber-attack are not under our control. Even after top-notched security if it may get affected to a level where it isn’t fixable Milearth Softech shall not be held responsible.
Milearth Softech warrants the Licensed Material will not infringe any patent, trademarks, copyright or any proprietary rights of a third party or constitute a misuse or misappropriation of a trade secret. Customer shall notify Milearth Softech promptly in writing of any known action brought against Customer based on an allegation that Customer’s use of any materials infringes any patent, trademark, copyright, or infringes any right of a third party, or constitutes misuse or misappropriation of a trade secret (“Infringement”). Milearth Softech will defend, indemnify and hold Customer harmless from any such action at Milearth Softech’s sole expense, provided that Milearth Softech shall have the sole control of the defense of any such action, all negotiations and/or its settlement, and Customer reasonably cooperates with Milearth Softech in such defense. In the event that a final injunction is obtained against Customer’s use of the Services by reason of an Infringement or Customer is otherwise prohibited from using same, Milearth Softech shall to the extent possible and at its expense, within sixty (60) days, either (a) procure for Customer the right to continue to use the Services that are infringing, or (b) replace or modify the Services to make its use non-infringing while being capable of performing the same function. If neither option is available to Milearth Softech, then Customer, at Customer’s option, terminate this Agreement without penalty or further payment other than payment of fees for use of the Services prior to said termination.
TERMS OF AGREEMENT:
Customer is solely responsible for the content of communications transmitted by Customer using the Services and shall defend, indemnify and hold harmless Milearth Softech from and against all liabilities and costs (including reasonable attorneys’ fees) arising from any and all third-party claims by any person based upon the content of any such communications. Customers are not permitted to resell the Services. Customers shall use the Services only for lawful purposes. To the extent deemed necessary by Customer, Customer shall implement security procedures necessary to limit access to the Services to Customer’s authorized users and shall maintain a procedure external to the Services for the reconstruction of lost or altered files, data or programs. Customer is responsible for establishing designated points of contact to interface with Milearth Softech.
In any case, if clients violates any of the policies mentioned above which leads to any legal dispute by any government authority, education content publisher, religious figure, students, parents, alumni or staff Client agrees that it shall defend, indemnify, save and hold Milearth Softech, harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorney’s fees associated with the Milearth Softech’s development & Services. This includes liabilities asserted against the Milearth Softech, its subcontractors, its agents, its clients, servants, officers, and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by the Client, its agents, employees or assigns.
The client also agrees to defend, indemnify and hold harmless Milearth Softech against liabilities arising out of any injury to person or property caused by any products or services sold or otherwise distributed over the Client’s availed services from Milearth Softech. This includes infringing upon the proprietary rights of a third party, copyright infringement, and delivering any defective product or misinformation which is detrimental to another person, organization, or business.
CANCELLATION AND REFUND
Cancellation of the project at the request of the Client must be made by a certified letter. In the event that work is postponed or canceled at the request of the Client by registered letter, Milearth Softech shall have the right to retain the original deposit. In the event this amount is not sufficient to cover the expense already invested in the project, additional payment will be due. If additional payment is due, this will be billed to the Client within 10 days of notification via “Email”, “Phone”, ”SMS” or “WhatsApp” to stop work.
If final payment is not made within fourteen (14) days of invoice, simple interest will accrue on the balance owed at a rate of 10% from the date the payment was due. If an amount remains delinquent 30 days after its due date, an additional 5% penalty will be added for each month of delinquency.
Discretionary Termination, Upon Notice
Either party may terminate this agreement in its business discretion upon sufficient advance notice. The amount of notice required is 1/4 of the estimated project duration. For example, if the Statement of Work estimates the services will take 80 days from kick-off to final delivery, advance notice of at least 20 days will be sufficient for discretionary termination.
Discretionary Termination by Client
IF: Client uses this discretionary termination provision, THEN: Milearth Softech will retain all payments already made as of the notification date, and Client shall pay Milearth Softech
(1) for all expenses incurred as of the date of notification of termination,
(2) an early termination fee equal to 25% of the total project fee, and
(3) No IP, domain rights will be transferred.
Discretionary Termination by Milearth Softech
IF: Milearth Softech uses this discretionary termination provision, THEN:
(1) Designer will retain (or, if not paid in advance, will be due) all costs already incurred and a prorated portion of the fees for services performed up to the termination date,
(2) Milearth Softech will assist Client in transferring the project to a new designer, and
(3) Designer will assign sufficient IP rights to Client to allow Client to continue the project.
Termination for Bankruptcy
Subject to any restrictions imposed by law, either party may immediately terminate this Agreement, if the other party either:
(1) ceases to do business in the normal course;
(2) Becomes insolvent;
(3) Admits in writing its inability to meet its debts or other obligations as they become due;
(4) Makes a general assignment for the benefit of creditors;
(5) Has a receiver appointed for its business or assets;
(6) Files a voluntary petition for protection under the bankruptcy laws;
(7) It becomes the subject of an involuntary petition under the bankruptcy laws that is not dismissed within 60 days.
Termination for Breach
If a material breach of this Agreement is not cured within 10 business days after a party’s receiving notice of the breach, then the non-breaching party may terminate this Agreement immediately upon notice.
Upon expiration or termination of this Agreement:
(1) Each party shall return (or, at the disclosing party’s request, destroy) the Confidential Information of the other party, and
(2) Other than as expressly provided in this Agreement, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
The functional modules will be implemented within 8 weeks of once complete data/structure is provided on email.
Onsite training will be done by MilGrasp representatives, Institute has to take care of all the expenses for travel, accommodation, and food. Our representatives may choose to have food off campus as per their regular food habits.
AGREEMENT TERMS CHANGES:
Milearth Softech reserves the right to change, modify or discontinue any foregoing terms of the agreement with or without any prior notice.
Milearth Softech may use your basic information, LOGO, Reviews for MilGrasp promotion on social media platforms, brochures, websites, emailers etc.
This Agreement will be governed by and construed in accordance with the laws of Mumbai Jurisdiction only.
This contract and the Appendices attached thereto constitute the sole agreement between Milearth Softech and the Client regarding this project. It becomes effective only when signed by both parties. It is the spirit of this agreement that this will be a mutually beneficial arrangement for the Client and Milearth Softech. Specific details of our agreement will be attached as Annexure A.