Master Subscription Agreement - India

1. SOFTWARE SERVICES

This Agreement provides Customer access to and usage of an Internet-based software service as specified on an Order Form.  Subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form), CEIPAL grants Customer the right to access and use the services on our website or through the CEIPAL application (the “Application”) as specified in each Order Form (collectively, the “Service,” or “Services”) during the applicable Order Form Term (as defined below) for the internal business purposes of Customer.

2. USE OF SERVICES

a) Customer Data: For purposes of this Agreement, “Customer Data” shall mean any data, information, or material, uploaded or submitted by Customer to the Service in the course of using the Service. Customer shall retain all rights, titles, and interests in and to the Customer Data, including all intellectual property rights therein. Customer, not CEIPAL, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Customer represents and warrants that it owns or has secured all licenses or permissions necessary to grant the rights and licenses under this Agreement. For clarity, CEIPAL does not assume any responsibility for the accuracy or completeness of any Customer Data, and will not undertake to verify its accuracy or completeness. Customer grants CEIPAL the right to use the Customer Data solely for purposes of performing under this Agreement.  During the term of this Agreement and within thirty (30) days of termination or expiration of this Agreement, Customer may provide a written request for a copy of the Customer Data provided to CEIPAL hereunder in substantially the same format as provided CEIPAL under this Agreement.  For clarity, to the extent that CEIPAL has performed any processing on the Customer Data, the Customer Data shall be returned in an unprocessed format.

b) Access and Usage: Customer may allow its contractors or employees to access the Service in accordance with the terms of this Agreement (each an “Authorized User”). Access must be for the sole benefit of Customer and Customer is responsible for the compliance with this Agreement by its Authorized Users. Customers shall be responsible and liable for any use of the Services by any Authorized Users.

c) Service Availability: CEIPAL will make reasonable efforts to make the Services available 24 hours a day, 7 days a week, and 365 days a year except for the days that require maintenance, and upgrades, and for emergency events which may include fire, floods, war, terrorist attacks, and all other emergency events. CEIPAL will make reasonable efforts to pre-schedule dates and times for maintenance activities and to communicate such dates and times to Customers using standard email communication channels. At times, for any emergency maintenance situations, CEIPAL will not be able to provide the advanced notification.

d) Disaster Recovery: CEIPAL will make reasonable efforts to maintain all the transactional data in the storage which is replicated across multiple regions. If there is any event of loss, all the applications will be pointed to the failover data center for accessing the data. In the event of a disaster, CEIPAL will try to restore the services at the earliest possible time.

e) Customer Responsibilities: 

(i) must keep its passwords secure and confidential;

(ii) is solely responsible for Customer Data and all activity in its account in the Service;

(iii) must use commercially reasonable efforts to prevent unauthorized access to its account and notify CEIPAL promptly of any such unauthorized access; and

(iv) may use the Service only in accordance with the Service’s online help documents and applicable law.

f) CEIPAL Support: CEIPAL agrees to make reasonable efforts to provide customer support for the Service under the terms of CEIPAL’s Customer Support Policy (Support) 

g) Bulk Email Service: Bulk email capability provides a customer to send out to solicited job seekers for job opportunities, promoting customer business with relevant and appropriate content and other email communication purposes. Customer shall use the Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws). CEIPAL continues its efforts to educate customers in compliance with anti-Spam regulations. CEIPAL will monitor violations by the customer for compliance with anti-Spam policies. With failure to comply with anti-Spam usage, CEIPAL reserves the right to cancel the service without a notice. Customers are fully responsible for any legal, compliance, and all damages in failure to adhere with anti-Spam policies. CEIPAL at its own discretion can cancel this service without notice if such an act is required to maintain compliance with the law.

3. DATA SECURITY MEASURES

a) Reasonable Security Measures: CEIPAL will undertake reasonable efforts to

(i) implement and maintain reasonable security measures appropriate to the nature of the Confidential Information including without limitation, technical, physical, administrative and organizational controls, and will use reasonable efforts to maintain the confidentiality, security and integrity of such Confidential Information;

(ii) implement and maintain industry-standard systems and procedures for detecting, preventing and responding to attacks, intrusions, or other systems failures and regularly test or otherwise monitor the effectiveness of the safeguards’ key controls, systems, and procedures; designate an employee or employees to coordinate implementation and maintenance of its Reasonable Security Measures; and

(iii) identify reasonably foreseeable internal and external risks to the security, confidentiality and integrity of Customer Data that could result in the unauthorized disclosure, misuse, alteration, destruction or other compromise of such information, and assess the sufficiency of any safeguards in place to control these risks (collectively, “Reasonable Security Measures”).

b) Notice of Data Breach: If CEIPAL knows that Customer Confidential Information or Customer Data may have been accessed, disclosed, or acquired without proper authorization and contrary to the terms of this Agreement, CEIPAL will alert Customer of any data breach within 24 hours, and immediately take such actions as may be necessary to preserve forensic evidence and eliminate the cause of the data breach. CEIPAL will give the highest priority to immediately correcting any data breach and devote such resources as may be reasonably required to accomplish that goal. CEIPAL will provide Customer with all information reasonably necessary to enable Customer to fully understand the nature and scope of the data breach. To the extent that Customer, in its sole reasonable discretion, deems warranted Customer may provide notice to any or all parties affected by any data breach. In such a case, CEIPAL will consult with the Customer in a timely fashion regarding appropriate steps required to notify third parties. CEIPAL will provide Customer information about what CEIPAL has done or plans to do to minimize any harmful effect or the unauthorized use or disclosure of, or access to, Confidential Information.

4. WARRANTY AND DISCLAIMER

a) Warranty: CEIPAL warrants to Customer:

(i) the functionality or features of the Service may change but will not materially decrease during any paid term; and

(ii) that the Support may change but will not materially degrade during any paid term. In the event the Services do not substantially conform to the foregoing warranty, Customer shall provide written notice of non-conformance to CEIPAL and CEIPAL shall, at its option and as its sole obligation and as CEIPAL’s sole liability and Customer’s exclusive remedy, repair the affected portion of the Services at no additional charge, or, if it determines that the foregoing option is not commercially practical, terminate this Agreement with respect to the Services and issue a refund for any prepaid amounts for unused portions of the term.

b) Disclaimer: Except as expressly set forth herein, the services are provided “as is” and “as available” and are without warranty of any kind, express or implied. CEIPAL disclaims all warranties, including, without limitation, the implied warranties of merchantability, title and fitness for a particular purpose. While CEIPAL takes reasonable physical, technical and administrative measures to secure the service, CEIPAL does not guarantee that the service cannot be compromised. The customer understands that the service may not be error free, and use may be interrupted. The customer understands that its use of the service does not constitute compliance with any law. The customer understands that it has an independent obligation to comply with any laws applicable to it.

5. PAYMENT

Customer shall pay CEIPAL fees for the Service as set forth in each Order Form (“Fees”). Unless otherwise specified in an Order Form, all Fees shall be invoiced [annually in advance-edit as per Client] and all invoices issued under this Agreement are payable in Indian Rupees within thirty (30) days from date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 0.5% per month or the maximum amount permitted by law. The customer shall be responsible for all taxes associated with Service other than taxes based on CEIPAL’s net income. Unless otherwise specified herein, all Fees paid are non-refundable and are not subject to set-off. CEIPAL reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of each pre-paid term or at the end of the then-current prepaid renewal term, as applicable, upon thirty (30) days prior notice to Customer (which may be sent by email), unless otherwise provided for in the Order Form. Customers are responsible for the payment of all sales, use, withholding, VAT, and other similar taxes. This Agreement contemplates one or more Order Forms for the Service, which Order Forms are governed by the terms of this Agreement.

6. MUTUAL CONFIDENTIALITY

a) Definition of Confidential Information: Confidential Information means all non-public information disclosed by a party (“Discloser”) to the other party (“Recipient”), 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 (“Confidential Information”). CEIPAL’s Confidential Information includes without limitation the Service, its user interface design and layout, and any non-public pricing information.

b) Protection of Confidential Information: The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosure for any purpose outside the scope of this Agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Disclosure to those of its employees and contractors who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this Agreement.

c) Exclusions: Confidential Information excludes information that:

(i) is or becomes generally known to the public without breach of any obligation owed to Disclosure,

(ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Disclosure,

(iii) is received from a third party without breach of any obligation owed to Disclosure, or

(iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order but will provide Disclosure with advance notice to seek a protective order.

7. CEIPAL PROPERTY

a) Ownership; Reservation of Rights; Feedback: The software, workflow processes, user interface, designs, and other technologies provided by CEIPAL as part of the Service are the proprietary property of CEIPAL and its licensors, and all rights, title, and interest in and to such items, including all associated intellectual property rights, including rights to any copies and derivative works of the foregoing, remain only with CEIPAL. The customer may not remove or modify any proprietary marking or restrictive legends in the Service. Any software which is distributed or otherwise provided to Customer hereunder shall be deemed a part of the “Services”.  CEIPAL reserves all rights unless expressly granted in this Agreement. Customers may from time to time provide suggestions, comments, or other feedback to CEIPAL with respect to the Service (“Feedback”). Customer shall, and hereby does, grant to CEIPAL a nonexclusive, worldwide, perpetual, irrevocable, transferable, sub-licensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose; provided that such license grant shall not be construed to relieve CEIPAL of any confidentiality obligations it may have hereunder with respect to Customer Data. Nothing in this Agreement will impair CEIPAL’s right to develop, acquire, license, market, promote or distribute products, software, or technologies that perform the same or similar functions as, or otherwise compete with any products, software, or technologies that Customer may develop, produce, market, or distribute.

b) Restrictions: Customer may not directly or indirectly

(i) Sell, resell, rent or lease the Service or use it in a service provider capacity for third parties;

(ii) Use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights;

(iii) Interfere with or disrupt the integrity or performance of the Service;

(iv) Bypass any measures CEIPAL may use to prevent or restrict access to the Service or otherwise attempt to gain unauthorized access to the Service or its related systems or networks;

(v) Reverse engineer, decompile, dissemble or otherwise attempt to discover the source code, object code, or underlying structure, ideas or algorithms of the Service (except to the extent applicable laws specifically prohibit such restriction); or

(vi) Access the Service to build a competitive service or product, or copy any feature, function or graphic for competitive purposes;

(vii) “Crawl,” “scrape,” or “spider” any page, data, or portion of or relating to the Service (or any information, data or content made available through the Service), whether through use of manual or automated means, or

(viii) Use the Service in a manner that violates applicable laws or regulations.  The customer is responsible for all of the Customer’s activity in connection with the Service, including but not limited to uploading Customer Data onto the Service. Customer (A) shall use the Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (B) shall not use the Service in a manner that violates any third party intellectual property, contractual or other proprietary rights.

8. THIRD PARTY SERVICES

Customer acknowledges and agrees that the Products may operate on, with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”), including without limitation through integrations or connectors to such Third Party Services that are provided by CEIPAL. CEIPAL is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services (including any Customer Data or other information relating thereto) and for complying with any applicable terms or conditions thereof. CEIPAL does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.

9. TERM AND TERMINATION

a) Term: Subject to earlier termination as provided below, this Agreement shall commence on the Effective Date identified in the Order Form and shall end after the completion of the contract length specified in the Order Form (such period the “Initial Term”). After the Initial Term, the Agreement shall automatically renew for one (1) year renewal terms (each, a “Renewal Term”) unless either party gives prior written notice of its intent not to renew the Agreement at least thirty (30) days before the end of the then-current Initial Term or Renewal Term, as applicable. The Initial Term and any Renewal Terms are referred to collectively as the “Term.” If no contract length is specified, or if the Specification is for a month-to-month or open-ended subscription, either party may terminate this Agreement upon at least sixty (60) days’ prior written notice to the other party.

b) Termination: Each party can terminate service with CEIPAL with or without cause at any time of service provided however, that

(i) CEIPAL is required to be notified in writing 30 days in advance by the Customer for notice of termination, and CEIPAL will continue to bill the Customer until the last day of the notice period.

(ii) CEIPAL can terminate this Agreement or Order Form without cause upon written notice of 180 days.  Either party may terminate this Agreement in the event of a material breach by providing written notice to the non-breaching party, provided that the breaching party does not cure such breach within 30 days of such notice.

c) Effects of Termination:

(i) Return of Customer Data: Within 30-days after termination, upon request, CEIPAL will make the Service available for Customer to export Customer Data as provided in Section 2(a). After such a 30-day period, CEIPAL has no obligation to maintain the Customer Data and may destroy it.

(ii) Return of CEIPAL Property Upon Termination: Upon termination of this Agreement for any reason, Customer must pay CEIPAL for any unpaid amounts, and destroy or return all property of CEIPAL, including any CEIPAL Confidential Information. Upon CEIPAL’s request, Customer will confirm in writing its compliance with this destruction or return requirement.  CEIPAL does not provide refunds if the subscription is canceled during the subscription term.

(iii) Survival: The provisions of Sections 4 (Warranty and Disclaimers), 5 (Payments), 6 (Mutual Confidentiality), 7 (CEIPAL Property), 10 (Limitation of Liability), 11 (Indemnity), 12 (Governing Law and Forum), 14 (General Provisions) and this Section 9 shall survive any termination.

d) Suspension of Services: Without limiting CEIPAL’s termination rights set forth above, CEIPAL may temporarily suspend or limit Customer’s access to or use of the Service if

(i) Customer is more than 30 days late on any payment due pursuant to an Order Form; or

(ii) Customer’s use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with CEIPAL’s ability to provide access to the Service to other customers; provided that in the case of subsection

(ii): (A) CEIPAL shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (B) prior to any such suspension or limitation, CEIPAL shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (C) CEIPAL shall reinstate Customer’s use of or access to the Service, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice.  CEIPAL may temporarily suspend the Service or remove the applicable Customer Data, or both, if it in good faith believes that, as part of using the Service, Customer has violated a law. CEIPAL will attempt to contact Customer in advance.

10. LIMITATION OF LIABILITY

a) Exclusion of indirect damages: Ceipal is not liable for any indirect, special, incidental or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of or unauthorized access to data or information; and lost profits, revenue or anticipated cost savings), even if it knows of the possibility of such damage or loss.

b) Total limit on liability: Except for a breach of section 3 (data security), Ceipal’s total liability arising out of or related to this agreement (whether in contract, tort or otherwise) does not exceed the lesser of ₹ 40,0000 (INR) and the amount paid by customer within the 12 month period prior to the event that gave rise to the liability.

c) Data Security: notwithstanding anything contained herein to the contrary, ceipal’s total liability arising under or related a breach of section 3 (data security) is limited to the lesser of

• (i) 5 times the amount paid to ceipal’s by customer within the 12 months prior to the event that gave rise to the claim 

11. INDEMNITY

Customer shall defend, indemnify, and hold harmless CEIPAL, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses (including reasonable attorneys’ fees) that arise from or relate to the Customer Data or Customer’s use of the Services.

12. GOVERNING LAW AND FORUM

This Agreement is governed by the laws of India (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this Agreement. Any suit or legal proceeding must be exclusively brought in the state or session courts for Hyderabad,Telangana, India, and Customer submits to this personal jurisdiction and venue unless the Customer has exclusively signed the contract with one of CEIPAL’s wholly-owned subsidiaries, then the governing law and forum are mentioned in the section: “Jurisdiction Specific Terms”. Nothing in this Agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.

13. MOBILE APPLICATION TERMS

a) General: Customer acknowledges and agrees that the availability of the CEIPAL mobile application is dependent on the third party stores from which the application was downloaded, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). Each App Store may have its own terms and conditions to which Customer must agree before downloading mobile applications from such store, including the specific terms relating to Apple App Store set forth below. Customer agrees to comply with, and Customer’s license to use the CEIPAL application is conditioned upon Customer’s compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of this Agreement, the more restrictive or conflicting terms and conditions in this Agreement apply.

b) Apple, Inc. Device and Application Terms: If you are accessing the Services via the Application on an Apple, Inc. (“Apple”) device or otherwise access the Services through the Apple App Store, all the terms of this Agreement apply, but the following additional terms also apply:

(i) Both you and CEIPAL acknowledge that the Terms are concluded between you and CEIPAL only, and not with Apple, and that Apple is not responsible for the Application or the Content;

(ii) The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;

(iii) You will only use the Application in connection with an Apple device that you own or control;

(iv) You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;

(v) In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;

(vi) You acknowledge and agree that CEIPAL, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;

(vii) You acknowledge and agree that, in the event of any third-party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, CEIPAL, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;

(viii) Both you and CEIPAL acknowledge and agree that, in your use of the Application, you will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and

(ix) Both you and CEIPAL acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as the third party beneficiary hereof.

14. GENERAL PROVISIONS

a)Entire Agreement and Changes: This Agreement and the Order Form constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this Agreement. No representation, promise or inducement not included in this Agreement is binding. No modification of this Agreement is effective unless both parties sign it, however this Agreement may be modified through an on-line process provided by CEIPAL. No waiver is effective unless the party waiving the right signs a waiver in writing. If there is a conflict between this Agreement and CEIPAL-provided Order Form, the Order Form prevails.

b) Notice: All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the most recent Order Form. Either party may update its address set forth above by giving notice in accordance with this section.

c) Assignment: Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that

(i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and

(ii) CEIPAL may utilize subcontractors in the performance of its obligations hereunder.

d) Independent Contractors: The parties are independent contractors with respect to each other. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.

e) Enforceability and Force Majeure: If any term of this Agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party shall be liable for any delay or failure in performing its obligations hereunder that arises out of any cause, condition or circumstance beyond its reasonable control, including, without limitation force majeure events.

f) Remedy: Each party agrees that, in the event of any breach or threatened breach of Section 6 (Mutual Confidentiality) or Section 7 (CEIPAL Property), the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law.  Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain, temporarily or permanently, such breach or threatened breach, without the necessity of posting any bond or surety.  Such remedies shall be in addition to any other remedy that the non-breaching party may have at law or in equity.

g) Publicity: CEIPAL is permitted to disclose that Customer is one of its customers to any third party at its sole discretion. Usage of the Customer Logo will be on a case-by-case basis, details of which will be provided by CEIPAL for approval. Customers agree to participate in press announcements, case studies, trade shows, or other forms reasonably requested by CEIPAL.

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