The parties are corporations incorporated and existing under the laws of the jurisdictions of their respective incorporationii. Authority and Capacity
The parties have the authority and capacity to enter into this agreementiii. Execution and Delivery
The parties have duly executed and delivered this agreement.iv. Enforceability
This agreement constitutes a legal, valid, and binding obligation, enforceable against the parties according to its termsv. No Conflicts
Neither party is under any restriction or obligation that might affect the party’s performance of its obligations under this agreementvi. No Breach
Neither party’s execution, delivery, nor performance of its obligations under this agreement will breach or result in a default unde
a) its articles, bylaws, or any unanimous shareholders agreement,
b) any Law to which it is subject,
c) any judgment, Order, or decree of any Governmental Authority to which it is subject, or
d) any agreement to which it is a party or by which it is bound.vii. Permits, Consents, and Other Authorizations any agreement to which it is a party or by which it is bound
a) own, lease, and operate its properties, and
b) conduct its business as it is now carried onviii. No Disputes or Proceedings. There are no Legal Proceedings pending, threatened, or foreseeable against either party, which would affect that party’s ability to complete its obligations under this agreement.ix. No Bankruptcy
Neither party has taken or authorized any proceedings related to that party’s bankruptcy, insolvency, liquidation, dissolution, or winding up.2. MyWays’ Representationi. Ownership
MyWays is the exclusive legal owner of the Service, including all Intellectual Property included in the Service and granted under the Service.ii. Status of Licensed Intellectual Property
MyWays has properly registered and maintained all Intellectual Property included in the Service and paid all applicable maintenance and renewal fees.iii. No Conflicting Grant MyWays has not granted and is not obligated to grant any license to a third party that would conflict with the Service.iv. No Infringement
The Service does not infringe the Intellectual Property rights or other proprietary rights of any third partyv. No Third Party Infringement.
To MyWays’ Knowledge, no third party is infringing on the ServiceRESTRICTED USES 1. you will noti. modify, disassemble, decompile or reverse engineer the Serviceii. probe, scan, test the vulnerability of, or circumvent any security mechanisms used by, the sites, servers, or networks connected to the Service, iii. take any action that imposes an unreasonable or disproportionately large load on the sites, servers, or networks connected to the Service,iv. copy or reproduce the Service,v. access or use any other clients’ or their users’ data through the Service,vi. maliciously reduce or impair the accessibility of the Service,vii. use the service to post, promote, or transmit any unlawful, harassing, libelous, abusive, threatening, harmful, hateful, or otherwise objectionable material, orviii. transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liabilityCONFIDENTIALITY1. Each Party acknowledges that any information relating to the business, products, practices, customers and such other information identified by the other party as confidential at or prior to such disclosure (“Confidential Information”) disclosed to it by the other party (unless pursuant to another written Agreement signed by the authorized representatives of the parties) is for the purpose set forth in this Agreement and agrees to maintain such material, information, or disclosures in confidence. This provision shall not apply to any material, information or other disclosure.
i. that can be demonstrated to have been in the public domain prior to its disclosure, or
ii. that can be demonstrated to have been in the other party’s possession prior to its disclosure; or
iii. to the extent supplied, without restrictions on use, by a third party who is lawfully in possession of such material, information or other disclosure and is entitled to supply it.
iv. that is shared with the Candidates provide by or through MyWays2. Each Party shall maintain the Confidential Information as strictly confidential and shall use the Confidential Information only in connection with the proper discharge and performance of its obligations to the other partyINTELLECTUAL PROPERTY RIGHTS 1. Each Party shall retain all right, title and interest in its patents, copyrights, trademarks, trade name, trade dress, service marks and trade secrets and/or creation, model, data, flowchart, drawing, design, diagram, table, artwork, innovation or any other information or material (“Intellectual Property Rights”). No interest whatsoever in the other Party’s Intellectual Property Rights is granted by this Agreement and the use of any Intellectual Property Right permitted to one Party by the other Party shall be strict as mutually agreed by the Parties.2. Neither Party shall use the Intellectual Property of the other Party in any manner whatsoever without the prior written consent of the other Party or as provided hereunder.SERVICE TERMThis Agreement shall commence on the Effective Date and shall remain in effect for the Service Period unless terminated earlier by either party pursuant to this Agreement. TERMINATION1. Termination on Notice
You may terminate this agreement for any reason on 7 business days’ notice to the other party.2. Termination for Material Breach
If either party materially breaches any of its duties or obligations under this Agreement, and such breach is not cured within thirty (30) calendar days of the non-breaching party providing the breaching party of written notice of the breach, the non-breaching party may terminate this Agreement.3. Termination for Failure to Pay
MyWays may terminate this agreement with immediate effect by delivering notice of termination to you if you fail to pay the Service Fee within 7 business days after written noticeEFFECT OF TERMINATION1. Pay Outstanding Amounts
You shall immediately pay to MyWays all amounts outstanding as of the date of, and any amounts outstanding as a result of, termination.2. Discontinuance of Use
You shall cease all use of the Service upon the effective date of the termination.3. Recovery of Data
You will have 30 calendar days from the date of termination to retrieve any of the data that you wish to keep.LIMITED WARRANTY1. Limited Warranty
MyWays warrants, for your benefit only, that each Service will operate in substantial conformity with the applicable documentation. MyWays’ sole liability (and your sole and exclusive remedy) for any breach of this warranty will be, at no charge to you, for MyWays to use commercially reasonable efforts to correct the reported non-conformity, or if MyWays determines such remedy to be impracticable, either party may terminate the applicable Subscription Term and you will receive as its sole remedy a refund of any fees you have pre-paid for use of such Service for the terminated portion of the applicable Term. The limited warranty set forth in this section will not apply:
i. unless you make a claim within thirty (30) days of the date on which you first noticed the non-conformity,
ii. if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or
iii. to use provided on a no-charge, trial or evaluation basis.2. Warranty Disclaimer
Except for the limited warranty, all services and professional services are provided “as is”. Neither MyWays nor its suppliers make any other warranties, express or implied, statutory or otherwise, including but not limited to the warranties of merchantability, title, fitness for a particular purpose or non-infringement. MyWays does not warrant that your use of the service will be uninterrupted or error-free, nor does MyWays warrant that it will review your data for accuracy or that it will preserve or maintain your data without loss or corruption. MyWays shall not be liable for the results of any communications sent or any communications that were failed to be sent using the services. MyWays shall not be liable for delays, interruptions, service failures or other problems inherent in the use of the internet and electronic communications, third-party platforms or other systems outside the reasonable control of MyWays. You may have other statutory rights, but the duration of statutorily required warranties, if any, shall be limited to the shortest period permitted by law.INDEMNIFICATION 1. Indemnification by MyWays.
i. Indemnification for Infringement Claims MyWays (as an indemnifying party) shall indemnify you (as an indemnified party) against all losses and expenses arising out of any proceeding
a) brought by a third party, and
b) arising out of a claim that the Service infringes the third party’s Intellectual Property rightsii. Qualifications for Indemnification MyWays will be required to indemnify you only if
a) your use of the Service complies with this agreement and all documentation related to the Service,
b) the infringement was not caused by you modifying or altering the Service or documentation related to the Service unless MyWays consented to the modification or alteration in writing, and
c) the infringement was not caused by you combining the Service with products not supplied by MyWays unless MyWays consented to the combination in writing.2. Mutual Indemnification
Each party (as an indemnifying party) shall indemnify the other (as an indemnified party) against all losses arising out of any proceeding
i. brought by either a third party or an indemnified party, and
ii. arising out of the indemnifying party’s willful misconduct or gross negligence.3. Notice and Failure to Notify
i. Notice and Failure to Notify
Before bringing a claim for indemnification, the indemnified party shall
a) notify the indemnifying party of the indemnifiable proceeding, and
b) deliver to the indemnifying party all legal pleadings and other documents reasonably necessary to indemnify or defend the indemnifiable proceeding.
ii. Failure to Notify
If the indemnified party fails to notify the indemnifying party of the indemnifiable proceeding, the indemnifying party will be relieved of its indemnification obligations to the extent it was prejudiced by the indemnified party’s failure.EXCLUSIVE REMEDYThe parties’ right to indemnification is the exclusive remedy available in connection with the indemnifiable proceedings described in this sectionLIMITATION ON LIABILITY1. Mutual Limit on Liability Neither party will be liable for breach-of-contract damages suffered by the other party that are remote or speculative, or that could not have reasonably been foreseen on entry into this agreement.
2. Maximum Liability MyWays’ liability under this agreement will not exceed the fees paid by you under this agreement during the 12 months preceding the date upon which the related claim arose.DEFINITIONS “Authorized Users” means the list of Persons authorized to use the Services under this agreement. “Business Day” means a day other than a Saturday, Sunday, or any other day on which the principal banks located in New Delhi, India is not open for business. “Data” means all of the data you create with or uses with the Service, or otherwise related to your use of the Services.
“Effective Date” means the date which You commence using the Services. “Governmental Authority” means
a. any federal, central, state, local, or foreign government, and any political subdivision of any of them,
b.any agency or instrumentality of any such government or politic
c.any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that its rules, regulations or orders have the force of law), and
d.any arbitrator, court or tribunal of competent jurisdiction“Intellectual Property” means any and all of the following in any jurisdiction throughout the world
a. trademarks and service marks, including all applications and registrations, and the goodwill connected with the use of and symbolized by the foregoing,
b. copyrights, including all applications and registrations related to the foregoing,
c. trade secrets and confidential know-how,
d. patents and patent applications,
f. other intellectual property and related proprietary rights, interests and protections (including all rights to sue and recover and retain damages, costs and attorneys’ fees for past, present, and future infringement, and any other rights relating to any of the foregoing).“Law” means
a. any law (including the common law), statute, bylaw, rule, regulation, order, ordinance, treaty, decree, judgment, and
b. any official directive, protocol, code, guideline, notice, approval, order, policy, or other requirements of any Governmental Authority having the force of law.Legal Proceeding” means any claim, investigation, hearing, legal action, or other legal, administrative, arbitral, or similar proceeding, whether civil or criminal (including any appeal or review of any of the foregoing). “Service Plan” means the MyWays-approved service usage plan that You have agreed to. “Permits” means all material licenses, franchises, permits, certificates, approvals, and authorizations, from Governmental Authorities necessary for the ownership and operation of the party’s business.“Person” includes
a. any corporation, company, limited liability company, partnership, Governmental Authority, joint venture, fund, trust, association, syndicate, organization, or other entity or group of persons, whether incorporated or not, and
b. any individual. “Taxes” includes all taxes, assessments, charges, duties, fees, levies, and other charges of a Governmental Authority, including income, franchise, capital stock, real property, personal property, tangible, withholding, employment, payroll, social security, social contribution, unemployment compensation, disability, transfer, sales, use, excise, gross receipts, value-added and all other taxes of any kind for which a party may have any liability imposed by any Governmental Authority, whether disputed or not, any related charges, interest or penalties imposed by any Governmental Authority, and any liability for any other person as a transferee or successor by Law, contract or otherwise.GENERAL PROVISIONS1. Entire Agreement
The parties intend that this agreement, together with all attachments, schedules, exhibits, and other documents that both are referenced in this agreement and refer to this agreement,
i. represent the final expression of the parties’ intent relating to the subject matter of this agreement,
ii. contain all the terms the parties agreed to relate to the subject matter, and
iii. replace all of the parties’ previous discussions, understandings, and agreements relating to the subject matter of this agreementASSIGNMENTNeither party may assign this agreement or any of their rights or obligations under this agreement without the other party’s written consent.NOTICES The parties’ right to indemnification is the exclusive remedy available in connection with the indemnifiable proceedings described in this section.
1. Method of Notice
The parties shall give all notices and communications between the parties in writing by
(i) personal delivery,
(ii) a nationally-recognized, next-day courier service,
(iii) first-class registered or certified mail, postage prepaid, or
(iv) electronic mail to the party’s address specified in this agreement, or to the address that a party has notified to be that party’s address for the purposes of this section.
2. Receipt of Notice
A notice given under this agreement will be effective on
i. the other party’s receipt of it, or
ii. if mailed, the earlier of the other party’s receipt of it and the fifth business day after mailing it. GOVERNING LAW This agreement shall be governed, construed, and enforced in accordance with the laws of India, without regard to its conflict of laws rulesSEVERABILITYIf any part of this agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.WAIVER1. Affirmative Waivers
Neither party’s failure or neglect to enforce any rights under this agreement will be deemed to be a waiver of that party’s rights.
2. Written Waivers
A waiver or extension is only effective if it is in writing and signed by the party granting it.
3. No General Waivers
A party’s failure or neglect to enforce any of its rights under this agreement will not be deemed to be a waiver of that or any other of its rights.
4. No Course of Dealing