LAST UPDATED: [17 May 2022]
1. Party; Parties.
Means Istar SkillDevelopment Private Limited(“Salesken”)or a Customer named in a Order Form(“OF”) and the term “Parties” shall be construed accordingly.
2. Entire Agreement.
a) These terms of license (“License Terms”) form part of, and have to be read along with, a OF. Defined terms used in these License Terms but not defined herein have the meaning ascribed to them in the OF. Accordingly,“Agreement” means and includes the provisions of these License Terms and the OF.
b) The Agreement constitutes the entire agreement and understanding between the Parties in respect of the matters dealt with in it and supersedes all previous agreements, negotiations and understandings between them.
c) Each Party acknowledges and agrees that in entering into the Agreement it does not rely upon and shall have no remedy in respect of any statement, representation, warranty or understanding of any person other than as expressly set forth within this Agreement.d) The Customer’s general terms and conditions or other deviating terms are not applicable unless Salesken has explicitly accepted them in writing.
3. Introduction
This document contains the terms on which a Product (or Products) of Salesken is licenced to the Customer for Use by Salesken.
4. Accepting the License Terms
a) By indicating its acceptance, the Customer agrees to be bound by these License Terms.
b) The individual accepting the License Terms must be duly authorized to bind the Customer to these License Terms.
c) If the individual accepting the License Terms is not legally capable of accepting these License Terms, then the Customer should not use the Product.
5. Definitions.
In this Agreement, unless the context otherwise requires, the following words and expressions shall have the following meanings:
a) “Abuse” means, in the Customer’s access and use of the Product (i) permitting Users to share passwords and other authentication credentials; (ii) permitting Users to initiate denial of service (including DoS attack) or attempt to introduce malicious code, (iii) introduce applications that interact with, or combine applications with, the Product which applications negatively affect the speed and performance of the Product, (iv) the Customer or its Users tampering with or attempting to tamper with security features of the Product;
b) “Confidential Information” means any confidential information which is disclosed by either Party to the other Party pursuant to or in connection with this Agreement (whether orally or in writing and whether or not such information is expressly stated to be confidential or marked as such) including, but not limited to, the Proprietary Information of Salesken, any technical, financial or any other information that is related to the business of either Party;
c) “Documentation” means Salesken’s product manuals or other standard software documentation, as amended and updated from time to time;
d) “Hosting Servers” means those servers and other hardware and software that shall be used to host the Product and other related information;
e) “Intellectual Property Right” means and includes, without limitation, any patents, copyrights, trademarks, trade secrets, service marks (in each case, whether registered or not), registered designs, database right, design right, moral right or any other property rights that grant similar rights as the foregoing, whether registered or not;
f) “Personal Information” means any personally identifiable data of an individual;
g) “Product” means the Salesken’s proprietary software identified in a OF that is hosted on the Hosting Servers and which the Customer is permitted to Use and any accompanying Documentation and any other documentation provided from time to time in conjunction with Product;
h) “Proprietary Information” means (i) the Product and Documentation and any complete or partial copies thereof, (ii) the concepts, techniques, ideas, and know-how embodied and expressed in any computer programs or modules included in the Product, including their scripts, structure, sequence, and organization, and (iii) any inventions, drawings, performances, software, databases, meta-data and methodologies in any manner related to the Product, Services and the Documentation;
i) “Services” means the services set forth in OF;
j) “Support Services” means the technical support services set forth in OF;
k) “Transaction Taxes” include but are not limited to goods and services tax (GST), sales tax, use tax, excise tax, value added tax (VAT), service tax, software sales tax and similar taxes.
l) “Use” or “Used” or “Using” means to directly or indirectly activate the processing capabilities of the Product, and/or execute, access, utilize, the Product, or display information resulting from such capabilities for the internal business purposes of the Customer;
m) “User” means an individual who is authorized by the Customer to Use the Product and who has been supplied user identification and passwords by the Customer (in compliance with the requirements specified in this regard by the Salesken) including but not limited to the Customer’s employees, advisors, contractors and agents.
6. License Grant.
a) Salesken grants the Customer for the Term a revocable, royalty free, non-exclusive, non-transferable, limited license to Use a Product. Except for the limited license set out herein, Salesken grants no other license or right in the Product.
b) A Product may be Used only if the Customer has access to internet to connect to the Hosting Servers.
c) All of the Products and Services are standardised and offered to the Customer using Salesken’s hosted model. Except as set forth in a OF, Salesken shall not offer any customisation capability with respect to any Product or Services.
7.Prohibited Uses.
a) The Customer shall not: (i) use the Product and/or Services except as provided in this Agreement; (ii) provide anyone other than the Users with access to the Product; (iii) “unlock” or in any manner decode Product for any reason; (iv) re-sell, grant any rights to third parties to the Product, lease, time-share, lend or rent Product or Services; (v) copy any features, functions or user interfaces / graphics of the Product or Services; or (vi) commit or permit the commission of any Abuse.
b) Further, Customer shall not use the Products and/or Services to host, display, upload, modify, publish, transmit, update or share any information that: (i) belongs to a person and to which the Customer and/or its User do not have any rights; (ii) is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever; (iii) harms minors in any manner; (iv) infringes any patent, trademark, copyright or other proprietary rights; (v) violates any law which is in force (vi) deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature (vii) impersonates another person (viii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource (ix) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation.
c) In addition to all other rights set forth in this Agreement, Salesken may, after providing the Customer a prior notice (either orally or in writing), suspend Customer’s Use of the Product and Services in the event that Salesken determines any noncompliance with this Agreement by Customer.
d) Customer will be responsible for obtaining and maintaining all equipment and ancillary services needed to connect to, access or otherwise use the Product and Services including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like. Customer will also be responsible for maintaining the security of the equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all acts and omission of the Users.
8. Intellectual Property Rights.
a) Subject always to the provisions of clause 12 (Confidential Information), Salesken shall not be restricted from, on an anonymised basis, collecting, storing, analysing and using the data related to the Use of the Product and the Services by the Customer, and any metadata relating thereto, for any purpose Salesken deems appropriate including but not limited to enhancing the capabilities of the Product and Services, tracking Customer usage of the Product and Services, invoicing the Customer in accordance with this Agreement, tracking Product performance, determining maintenance schedules, marketing and sales materials, benchmarking studies and Product development. Salesken may also disclose such data solely in aggregate or other de-identified form in connection with its business. Such data shall be Salesken’s Proprietary Information.
b) Salesken shall adhere to reasonable security measures deemed by Salesken to be appropriate for the commercial deployment of the Product and the provision of the Services. The Customer will not take any action that will cause a breach of the security measures used by Salesken.
c) The Customer acknowledges and agrees that ownership of and title in and to all Intellectual Property Rights in the Proprietary Information and the Services are and shall remain with Salesken. The Customer acquires only the right to Use the Product, the Documentation and the Services on a non-exclusive basis and does not acquire any ownership rights or title thereto. Save for the limited right to the Use of the Product, Salesken owns all rights and title, including all Intellectual Property Rights, in and to the Product and Services made available by Salesken to the Customer.
d) The Customer hereby consents to Salesken’s collection and use of Customer’s and Customer’s customers’ Personal Information for the purposes stated under this Agreement, specifically the Customer hereby permits Salesken to (i) record and/or monitor the calls between the customer and its end-customers, and (ii) capture personally identifiable information of Customer’s and/or its end-customer as necessary, solely for the purpose of providing the Services. Salesken shall abide by data minimisation policy and/or any other applicable policies located at https://www.salesken.ai/privacy-policy
e) The Parties agree that Salesken will store the recorded calls of the Customer only for the period specified in the OF.
9. Limited Warranties.
a) Each Party warrants that it will comply with all applicable laws, rules and regulations, including any applicable data protection laws, with respect to its obligations under this Agreement.
b) Subject to the Customer being in compliance with this Agreement, Salesken warrants to the Customer that the Services and the Support Services will be provided in a professional and workmanlike manner. Notwithstanding the foregoing, Customer understands and acknowledges that the Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Salesken or by third-party providers, or because of other causes beyond Salesken’s reasonable control, in which case Salesken shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. Any such disruption as set forth above will not be considered non-performance by Salesken of its obligations under this Agreement or constitute a breach of this Agreement by Salesken.
10. Disclaimers.
a) CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT CERTAIN RISKS ARE INHERENT IN THE TRANSMISSION OF INFORMATION OVER THE INTERNET. SALESKEN MAKES NO REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT THAT ITS SECURITY MEASURES WILL BE EFFECTIVE AND SALESKEN SHALL HAVE NO LIABILITY FOR THE BREACH OF ITS SECURITY MEASURES, OR THE INTEGRITY OF THE SYSTEMS OR SALESKEN’S COMPUTER SERVERS, UNLESS CAUSED BY THE WILFUL MISCONDUCT OR GROSS NEGLIGENCE OF SALESKEN OR ITS EMPLOYEES.
b) THE PRODUCT AND SERVICES ARE PROVIDED TO THE CUSTOMER ON AN “AS-IS” AND AS AVAILABLE BASIS. SALESKEN IS NOT RESPONSIBLE FOR ANY FAILURE OF THE TELECOMMUNICATIONS NETWORK OR OTHER COMMUNICATIONS LINKS UTILISED TO GAIN ACCESS TO AND USE THE PRODUCT AND SERVICES. SALESKEN DOES NOT REPRESENT THAT THE PRODUCT AND/OR THE SERVICES MEET THE CUSTOMER’S REQUIREMENTS OR THAT OPERATION OF THE PRODUCT AND/OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. THE CUSTOMER HAS INDEPENDENTLY EVALUATED THE PRODUCT AND SERVICES AND DETERMINED THEIR SUITABILITY FOR THE CUSTOMER’S NEEDS.
c) EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, SALESKEN HEREBY DISCLAIMS AND EXPRESSLY WAIVES ALL OTHER, CONDITIONS, REPRESENTATIONS AND GUARANTEES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, ORAL OR WRITTEN STATEMENTS OF SALESKEN INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANT ABILITY OR FITNESS FOR PARTICULAR PURPOSE OR OF ERROR-FREE AND UNINTERRUPTED USE OR OF NON-INFRINGEMENT.
11. Price; Payment.
a) The fees shall be paid in advance by the Customer to Salesken, and all invoices submitted by Salesken shall be paid by the Customer, as set forth in the OF. Any late payments shall bear interest at a rate of one and a half percent (1.5%) per month or the highest amount allowed by law whichever is higher, from the due date for payment until the date full payment is made. The Customer shall neither make nor assert any right of deduction or set-off from amounts invoiced.
b) If Customer’s use of the Product exceeds User license details set forth under the applicable OF or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer will be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein.
c) Salesken reserves the right to change the fees or applicable charges and to institute new charges and fees at the end of the then current term, upon thirty (30) days prior notice to Customer (which may be sent by email).
d) Notwithstanding anything contained in this Agreement, the fee payable by the Customer to Salesken are exclusive of all taxes except taxes on a Party’s income.
e) The Customer shall be liable for all Transaction Taxes in connection with this Agreement
12. Confidential Information.
a) Each Party may exchange and/or provide the other Party with access to its Confidential Information. Confidential Information may be disclosed to the receiving Party either orally, visually, in writing (including graphic material) or by way of consigned items.
b) Confidential Information means any confidential information which is disclosed by either Party to the other Party pursuant to or in connection with this Agreement (whether orally or in writing and whether or not such information is expressly stated to be confidential or marked as such) including, but not limited to, the Proprietary Information of Salesken, any technical, financial or any other information that is related to the business of either Party;
c) The receiving Party shall take all reasonable security precautions, including precautions at least equal to the precautions that it takes to protect its own confidential information, to protect the secrecy of the Confidential Information.
d) The receiving Party may disclose Confidential Information only to its employees or consultants on a need-to-know basis and if the employees and consultants are bound by confidentiality obligations that are as strict as contained here. Except as provided herein, the receiving Party agrees to treat the same as confidential and shall not divulge, directly or indirectly, to any other person, firm, corporation, association or entity, for any purpose whatsoever, such information, and shall not make use of such information, without the prior written consent of the disclosing Party.
e) The restrictions here shall not apply to the extent that the Confidential Information in question: (i) is public knowledge through no fault of the recipient Party; (ii) can be shown by the recipient Party to the reasonable satisfaction of the other Party to have been known to the recipient Party prior to its being disclosed by the other Party; (iii) becomes available to the recipient Party on a non-confidential basis from a source other than the disclosing Party; (iv) is independently developed by the recipient Party without use of, or reference to, Confidential Information provided by the disclosing Party, as demonstrated by tangible evidence; or (v) is furnished to the recipient Party with written confirmation that such information is not Confidential Information and may be disclosed to third parties.
f) The receiving Party may disclose Confidential Information to the extent required by law or court order, provided that the receiving Party provides the disclosing Party reasonable advance notice of its intended disclosure, and the receiving Party continues to protect the information in its possession after the required disclosure.
g) Salesken represents to the Customer that it has in place an enterprise-wide information security policy, a copy of which will be provided to the Customer up on request. Further, Salesken covenants to the Customer that Salesken will continue to adhere to such information security policy as it is amended from time-to-time.
13. Term
a) The Initial Term of the Agreement is set forth in a OF.
b) The Agreement shall be automatically renewed for additional periods of the duration of the Initial Term unless either Party provides a written notice to the other Party notifying its decision to not extend the term at least thirty (30) days prior to the end of the then-current term.
14. Termination.
a) Salesken may terminate this Agreement: (i) thirty (30) days after Salesken provides the Customer notice of Customer’s breach of any provision of the Agreement and which the Customer does not cure within the 30 day notice period, or without notice in case of non-payment by Customer; and (ii) immediately by notice to the Customer if Customer files for bankruptcy, becomes insolvent, a petition is admitted for bankruptcy or insolvency against the Customer which is not set aside in sixty (60) days or makes an assignment for the benefit of creditors.
b) The Customer may terminate this Agreement: (i) thirty (30) days after the Customer provides Salesken notice of Salesken’s breach of any provision of the Agreement and which Salesken does not cure within the 30 day notice period; and (ii) immediately by notice to Salesken if Salesken files for bankruptcy, becomes insolvent, a petition is admitted for bankruptcy or insolvency against Salesken which is not set aside in sixty (60) days or makes an assignment for the benefit of creditors.
c) Rights of termination under this clause shall be without prejudice to any other rights of termination or otherwise whether subsisting by virtue of this Agreement or otherwise (including rights of termination arising under common law) and such termination shall not be taken to waive the right to assert or exercise any such rights.
15. Consequences of Termination.
On the expiry or termination of this Agreement for any reason:
a) all rights and permissions granted by Salesken to the Customer under this Agreement shall automatically cease;
b) Customer will pay in full the fee to Salesken;
c) each Party shall within thirty (30) days send to the other Party, or otherwise dispose of in accordance with the directions of the other Party, any Confidential Information provided to it by the other Party;
d) the provisions of clauses that are intended to survive termination or expiry shall continue in full force and effect in accordance with their respective terms.
16. Indemnity.
a) Salesken shall indemnify the Customer against all claims, liabilities, and costs (including reasonable attorneys’ fees), brought against the Customer by third parties: (i) alleging that the Customer’s Use of the Product and Services infringes or misappropriates a copyright; or trade secret rights, provided that such indemnity shall not apply to the extent the alleged infringement results from (A) a combination of Product and Services with any program, equipment or device not supplied or recommended by Salesken; (B) the use of the Product and the Services other than as described in the Documentation; (C) component of Services made in whole or in part in accordance with Customer specifications, (D) modifications made after delivery by Salesken; or (E) any unlicensed or unauthorised activity; (ii) arising out of or in relation to unauthorised access to any Personal Information hosted on Hosting Servers caused by the wilful misconduct or gross negligence of Salesken or its employees.
b) In the event of a claim under this clause,provided that the Customer has immediately notified Salesken, Salesken shall have full control of the defence and any settlement of such claim. The Customer shall cooperate fully in the defence of such claim. The Customer shall not undertake any action in response to any infringement or alleged infringement by third parties of the Product or the Services. Salesken shall,at its sole discretion (i) procure for the Customer the right to use the infringing Product or Service, (ii) replace the Product or Service with a non-infringing one, or (iii) modify the infringing Product or Service so that it is non-infringing. If none of the foregoing is commercially reasonable Salesken may terminate this Agreement. Salesken’s sole and exclusive responsibility with respect any allegation that the Customer’s Use of the Product and/or Services infringes third party Intellectual Property Rights are limited to those setforth above in this clause.
c) The Customer shall indemnify Salesken againstall claims, loss, liabilities, and costs (including reasonable attorneys’fees), related to a breach by the Customer of its confidentiality obligationsunder this Agreement; breach of clause 7 (Prohibited Use); or arising out of orin relation to any data privacy claims with respect to any Personal Informationcollected by Customer through the Use of the Products and Services.
17. Limitation of Liability.
a) Salesken shall not be responsible under this Agreement if (i) the Product is not used in accordance with the Documentation; (ii) a defect is caused by the Customer’s computing environment, (iii) a defect is caused by interfacing third-party software not authorized by Salesken, (iv) degradation in the Services due to integration with services or products provided by third parties.
b) Except for the obligation to pay the fee, in no event shall either Party be liable to the other, whether in contract, tort (including negligence) or otherwise for (i)any loss of profits, loss of business, loss of contracts, loss of revenues,loss of operation time, loss of data, corruption of data, cost of procurement of substitute services or technology, increased costs or wasted expenditure, loss of goodwill or reputation of the other, special, indirect, incidental, punitive or consequential damage of any nature whatsoever or howsoever arising out of this Agreement; and (ii) the maximum aggregate amount that the Customer can recover from Salesken for all claims arising from, under or relating to this Agreement (whether in contract, tort including negligence or otherwise), will in no event exceed the total fee paid by the Customer (excluding pass through expenses) to Salesken under the applicable OF in the twelve (12)month period preceding the date the latest claim accrued.
18. Other terms.
a) Waiver. Any failure to exercise or any delay in exercising a right or remedy provided by orunder this Agreement will not constitute a waiver of the remedy or a waiver ofother rights or remedies.
b) Force Majeure. Neither Party shall be liable for any delay or failure in performing any of its obligations here under if such delay or failure is caused by circumstances outside the reasonable control of the Party concerned.
c) Assignment. The Customer may not assign the benefit of the Agreement or any rights hereunder to any third party
d) Nature of this Agreement. The Customer and Salesken are entering into the Agreement on a principal-to-principal basis.
e) Costs. Each Party will, unless otherwise agreed, pay its own costs and expenses relating to the negotiation, preparation, execution and implementation of this Agreement.
f) Amendment. No variation or modification of this Agreement shall be valid unless it is in writing and signed by and on behalf of a duly authorised representative of each of the Parties.
g) Validity. If any provision of this Agreement is held to be void, voidable or unenforceable for any reason, this shall not affect the validity or enforceability of any other provision of this Agreement or the remainder of this Agreement as a whole.
h) Dispute Resolution. In the event of a dispute between the Parties arising out of this Agreement, and as a condition precedent to any right of action, representatives of each Party shall meet (either in person or by telephone), within ten (10) days after receipt of a notice from either Party specifying the nature of the dispute, to review a Party’s claims for the basis of such dispute and attempt to resolve in good faith all such claims. Thereafter, if the dispute remains unresolved then the Parties shall submit the dispute to be exclusively adjudicated by a single arbitrator in accordance with the Arbitration and Conciliation Act, 1996. The venue and seat of arbitration shall be Bangalore. Notwithstanding the foregoing, in the event of any alleged Prohibited Use or any threatened, actual or claimed breach of the Confidential Information or intellectual property provisions hereunder, either Party may immediately seek relief in a court of competent jurisdiction to stay any threatened or continued breach of the foregoing.
i) Governing law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the Republic of India (without regard to its conflict of laws principles) and, the competent courts at Bengaluru will have exclusive jurisdiction over any disputes that arise out of this Agreement. Further, notwithstanding this clause the Salesken may seek equitable remedies before a competent court to safeguard the Product or its Confidential Information.
j) Publicity. Customer grants Salesken the right to use Customer’s name and logo in case studies or marketing or publicity materials and on Salesken’s website to identify Customer as a client.