Karminn EzyPro Terms of Service

Last Modified: May 23, 2018

1.Purpose

1.1   Karminn Consultancy Network Pvt. Ltd (hereinafter known as ‘The Company’ or ‘We’, Karminn EzyPro) is the owner of The Service - ‘Karminn EzyPro - Management System Solution” which includes a mobile app and a Customer portal, which are all part of the IT platform infrastructure related to delivery of Karminn EzyPro - Management System Solution provided primarily under a ‘Software as a Service’ (SaaS) agreement (hereinafter known as ‘The Service’) to you, the ‘Subscriber’. The words ‘Subscriber’ and ‘You’ are consequently used interchangeably in this agreement.

1.2   SUBSCRIBER SHOULD REVIEW THIS AGREEMENT CAREFULLY AND INDICATE SUBSCRIBER'S ACCEPTANCE BY CLICKING ON THE "I AGREE" CHECKBOX ("CHECKBOX"). BY CLICKING THE CHECKBOX, SUBSCRIBER AGREES TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. Violation of any of the terms below may result in the termination of your account.

2.Account Terms

2.1   You are responsible for maintaining the security of your account and password. The Company cannot and will not be liable for any loss or damage from your failure to comply with this security obligation. You are responsible for all content posted and activity that occurs under your account (even when content is posted by others who have their own logins under your account). You may not use the Service for any illegal purpose or to violate any laws in your jurisdiction (including but not limited to copyright laws). You must provide your legal full name, a valid email address, and any other information requested in order to complete the signup process. Your login may only be used by one person - a single login shared by multiple people is not permitted. You may create separate logins for as many people as you'd like. The Subscriber must be human. Accounts registered by ‘bots’ or other automated methods are not permitted and will be deleted immediately on detection.

3. Web-Based License.

3.1   We grant You and You accept, a limited, non-transferable, nonexclusive and revocable subscription license and right to access The Service via the Internet and use The Service only as authorized in these Terms and Conditions, for its own purpose and operations, during the term of The Service. You acknowledge that its access and use of The Service will be web-based only. And through the use of the computer software and/or tablet devices accepted by us.

4. PAYMENT, UPGRADING AND DOWNGRADING TERMS

4.1  PAYMENT: The Service requires payment at the time of sign up unless a free trial period has been authorized. Every month, we will bill your credit card the fee stated at the time of registration or renewal plus applicable taxes or, if agreed, raise an invoice and receive payment though our bank. As soon as you have successfully completed the sign-up process and your payment is confirmed, your subscription will begin.

4.2  RENEWAL: Subsequent to signing up, we will renew your monthly subscription automatically, unless you cancel. The price is subject to change, but we will always notify you of changes beforehand. Late Fees. Invoices that are unpaid within 10 days will incur a 2% of the outstanding amount chargeable monthly. If the entire balance is not paid within 30 days the account may be suspended. In order to lift the suspension (locked and inaccessible), any outstanding balances must be paid in full along with late fees, and a reactivation fee of INR 1000 / USD 20. After six months of non-payment the Company reserves the right to delete your account along with all the data contained therein.

4.3  UPGRADING AND DOWNGRADING: Adding additional users will result in a new rate being charged at the next billing cycle. There will be no pro-rata charges for users downgraded or removed in-between billing cycles. In all cases of such plan changes you will receive due notice in line with next monthly billing cycle. Additional fees for data usage and storage are chargeable if the limits for your plan are exceeded. To avoid additional charges, you may delete data and store it locally. Please note that deleted data cannot be recovered and will not figure in reporting or data analytics.

5 CANCELLATION AND REFUNDS

5.1  We look forward to a long relationship. All subscriptions are based on a monthly or 4-week cycle, you cancel only future charges associated with your subscription. You may notify us of your intent to cancel at any time, but the cancellation will become effective at the end of your current billing period. Cancellations are effective the following billing cycle. You will not receive a refund for the current billing cycle. You will continue to have the same access and benefits of your product for the remainder of the current billing period. We reserve the right to issue refunds or credits at our sole discretion. If we issue a refund or credit, we are under no obligation to issue the same or similar refund in the future.

5.2  Upfront paid discounted subscription - If you cancel an upfront paid subscription within the first 11 months of your subscription year, your access and other benefits will be limited immediately, and you will receive a refund prorated to the remaining months. If you cancel in the final 30 days of your subscription year, the cancellation will not take effect until the end of your current billing period. Your access and privileges will continue to the end of the current billing period, and you will not receive any refund. We reserve the right to issue refunds or credits at our sole discretion. If we issue a refund or credit, we are under no obligation to issue the same or similar refund in the future.

5.3  In the event of violation of the terms and conditions of The Service by the Subscriber or under instructions by statutory institutions, the Company, at its sole discretion, has the right to suspend or terminate your account and refuse any and all current or future use of the Service for any reason at any time. Such termination of the Service will result in the deactivation or deletion of your Account, or your access to your Account, and the forfeiture and relinquishment of all content in your account. The Company reserves the right to refuse service to anyone for any reason breach of terms and conditions at any time. In such cases no refund will be considered for the remaining subscription period.

6. MODIFICATIONS TO THE SERVICE AND PRICES

6.1  The Company reserves the right to modify or discontinue, temporarily or permanently, any part of the Service with or without notice at any time. Prices of all Services are subject to change upon 30 days notice from us. Such notice may be provided at any time by posting the changes to the Karminn EzyPro-Management system site or the home page of the Service itself.

6.2  The Service serves solely as an auxiliary tool for the management of your Internal auditing and corrective action for the improvement of the Subscriber’s Management systems and its content and to help optimize the continuous improvement of the Management system. The Company exercises no control and does not guarantee any consequence, result or achievement deriving from usage of the Service, Software, and/or any feature thereof, and any and all data, tool and/or information provided through or embedded in the Services and/or The Service shall be construed solely as a non-binding recommendation made for the Subscriber’s benefit. The final decision whether or not to use such recommendation shall be made by the Subscriber. You are aware that some of The Service modules are based on statistical analysis. Therefore, The Service cannot guarantee any definitive results or consequences, but solely provide non-binding recommendations to You.

7. USER SUBSCRIPTIONS

7.1  The maximum number of Authorized Users accessing the Services cannot exceed the number of User Subscriptions detailed in the Subscriber’s current plan and displayed in the portal.

8. THIRD PARTY PRODUCTS

8.1  This Software service may contain software services which originated with third-party vendors. Without limiting the general applicability of the other Provisions of this Agreement, you agree that (a) the title to any third-party software service incorporated in this Software service shall remain with the third-party which supplied the same; and (b) you will not distribute any such third-party software available with The Service in any manner.

9. RESTRICTION ON USE

The Subscriber is not permitted to do the following:

9.1  Use The Service for the provision of any service for the benefit of third-parties unless you first acquire a consultancy service provider status from the Company or be part of a bundled service that the Company offers to Subscribers as part of our consultant network.

9.2  Modify or translate any part of the Service except (i) as necessary to configure the Service using the menus, options and tools provided for such purposes and contained in The Service ; and (ii) in relation to the Documentation, as necessary to produce and adapt manuals and/or other documentation for the Subscriber’s internal operational requirements.

9.3  Reverse engineer, disassemble or decompile The Service or any part of it, or otherwise attempt to derive or determine the source code or the logic in The Service, except to the extent and for the express purposes authorised by applicable law;

9.4  Sub-license, rent, sell, lease, distribute or otherwise transfer the Service (in whole or in part) except as permitted under this Agreement unless you obtain a separate authorization from the Company for such purpose (for example, embed the Service (in whole or in part) into another application and then distribute such application to third-parties unless you first acquire authorization from the Company;

9.5  Use the Service for the purposes of competing with us, including without limitation competitive intelligence. 9.6 access, store, distribute or transmit any Viruses, or any other material during the course of using the Service that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images promotes unlawful violence; is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or causes damage or injury to any person or property;

10. TECHNICAL SUPPORT

10.1  We will ensure support online chat from Monday to Friday from 9:00 a.m. to 5:00 p.m. India Standard Time (IST). Support service will only be made through specific methods such as email, live chat or (if permitted by the Subscriber) screen sharing sessions.

10.2  We shall use commercially reasonable endeavors to make the Service available 24 hours a day, seven days a week, except for:
(a) planned maintenance carried out after due notice to Subscribers and
(b) unscheduled maintenance performed outside Normal Business Hours, where we shall make reasonable endeavors to give Subscribers at least six hours notice in advance.

11. SUBSCRIBER DATA

11.1  You shall own all rights, title and interest in and to your Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the your Data.

11.2  The Company shall follow archiving procedures for your Data as set out in [Back-Up Policy]], which may be amended by the Company at our sole discretion from time to time. In the event of any loss or damage to your Data, your sole and exclusive remedy shall be for the Company to use reasonable commercial endeavors to restore the lost or damaged Data from the latest back-up of such Data maintained in accordance with the archiving procedure described in [Back-Up Policy]. The Company shall not be responsible for any loss, destruction, alteration or disclosure of the Subscriber’s Data caused by any third party (except those third parties subcontracted by the Company to perform activities related to your Data maintenance and back-up).

11.3  The Subscriber acknowledges that the Services may facilitate access to the website content of third-parties and permit correspondence with them. All such interactions are at the Subscriber’s own risk and the Company makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by You, The Subscriber, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the You and the relevant third party and has no bearing on the Company. The Subscriber should refer to the third party’s website terms and conditions and privacy policy prior to giving access to third parties.

12. OWNERSHIP AND INTELLECTUAL PROPERTY

12.1  We own all rights, title and interest in and to The Service as a service. We expressly reserve all rights not granted to you herein, Including the right to discontinue The Service or not to release any Software as a service and to alter prices, features, specifications, capabilities, functions, subscription terms, release dates, general availability or characteristics of The Service.

13. CONFIDENTIALITY

13.1  Definition of Confidential Information. “Confidential Information” means all information disclosed by either party (“Disclosing Party”) to the other party (“Receiving Party”), 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. Your Confidential Information includes Your Data; The Company’s Confidential Information includes the Services; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

13.2  Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, disclose Confidential Information of the Disclosing Party only to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any commercial transaction or financial terms to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 13.2.

13.3  Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law Or by the order of a court or similar judicial or administrative body to do so, provided the Receiving Party gives the Disclosing Party prior Notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

14. WARRANTY DISCLAIMER

14.1  We do not warrant that The Service will be error-free. Except as provided herein, The Service is furnished "as is" without warranty of any kind, including the warranties of merchantability and fitness for a particular purpose and without warranty as to the performance or results you may obtain by using The Service. You are solely responsible for determining the appropriateness of using The Service and assume all risks associated with the use of it, including but not limited to the risks of program errors, damage to or loss of data, programs or equipment, and unavailability or interruption of operations.

15. LIMITATIONS AND LIABILITY

15.1  In no event will The Company be liable to you or any third party for any special, incidental, indirect, punitive or exemplary or consequential damages, or damages for loss of business, loss of profits, business interruption, or loss of business information arising out of the use or inability to use the program or for any claim by any other party even if The Company has been advised of the possibility of such damages.

15.2  Our entire liability with respect to its obligations under this agreement or otherwise with respect to The Service shall not exceed the amount of the subscription fee paid by you for The Service in the current period.

15.3  Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHERPARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVEDAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF APARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THEEXTENT PROHIBITED BY LAW.

15.4  Collective Liability. The provisions and limitations of this Section 15 will apply to The Subscriber and all of its Affiliates purchasing Services hereunder in the aggregate, meaning the Company’s liability to the Subscriber and/or one or more of its Affiliates for an incident or series of related incidents, collectively, will be limited to the aggregate amount paid by the Subscriber and the Subscriber’s Affiliates as set forth in this Section 15.

16. MUTUAL INDEMNIFICATION

16.1.  The Company will defend the Subscriber against any claim, demand, suit or proceeding made or brought against the Subscriber by a third party alleging that the use of a Purchased Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights, and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a court-approved settlement of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You modify the Service so that it no longer infringes or misappropriates, without breaching Our warranties under Section 14 (Our Warranties), ● ● obtain a license for Your continued use of that Service in accordance with this Agreement, or terminate Your subscriptions for that Service upon thirty (30) days written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim against You arises from a Non-Karminn EzyPro Application or Your breach of this Agreement.

16.2  Indemnification by The Subscriber. The Subscriber will defend the Company against any claim, demand, suit or proceeding made or brought against the Company by a third party alleging that the Subscriber’s Data, or Your use of any Service in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Us”), and will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us, provided We (a) promptly give.

16.3  Exclusive Remedy. This Section 16 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 16.

17. PRIVACY AND SECURITY

(Note: The new GDPR aligned Privacy Policy is applicable to support the key aspects covered in this section 17.)

17.1  The Subscriber acknowledges and agrees that the Company may directly and remotely communicate with the Subscriber’s hardware for the purposes of, without limitation, (i) verifying your credentials; (ii) issuing reports and alerts such as automated support requests and alert messages; (iii) providing Maintenance; (iv) applying policy and configuration changes to the Devices; and (v) extracting usage information, service performance information, and infection logs. Such communications may include but not be limited to SMS text messages and other push notifications.

17.2  The Subscriber acknowledges and agrees that it may be necessary for us to collect and process certain information relating to you and the individual Users in order to perform the Service, and that such information may include proprietary, confidential and/or personal data, including without limitation (i) names, email addresses, telephone numbers and other contact details; (ii) account usernames;(iii) IP addresses; (iv) usage information; (v) lists of all software service, files, paths and applications installed on the Device, (vi) details of changes or attempted changes to executable files, pathnames and scripts,(vii) logs of websites visited; (viii) infection logs; and (ix) files suspected of being infected with malware. Certain Services may also (at your sole option) enable you to configure the Service to ● track and log the geographic location of Devices; ● block access to Devices; ● delete the content of Devices; store text and email messages that were sent and/or received by Devices. Such information may also be stored on the Device itself and accordingly it is recommended that the Subscriber encrypts their hardware as appropriate.

17.3  The Subscriber acknowledges and agrees that the Company, its subcontractors and third-party licensors, may also use certain Information collected from you for our business purposes. Business purposes may include but shall not be limited to, product support, product development and enhancement, statistical analysis, billing and reporting.

17.4  In the case of The Subscriber’s personal data processed for the performance of the Service, The Company acts as a Data Processor. In the case of personal data used for our business purposes under Clause 17, The Company is the Data Controller. The terms “Data Processor” and “Data Controller” shall have the meanings defined in the EU Directive 95/46 EC. In each case, We will process the Subscriber’s personal data in accordance with the terms of this Agreement, the provisions of the EU Directive 95/46 EC, and our data protection and Privacy policy.

17.5  The Subscriber warrants that You have obtained all necessary permissions and provided the necessary notifications to share the information described in this Clause 17 with Us for the purposes described. You also acknowledge and agree that it may be necessary under applicable law to inform and/or obtain consent from individuals before you intercept, access, monitor, log, store, transfer, export, block access to, and/or delete their communications. The Subscriber is solely responsible for compliance with such laws.

17.6  Each party shall take appropriate technical and organizational measures against unauthorized or unlawful processing of personal data or its accidental loss, destruction or damage.

17.7  The Subscriber agrees to indemnify and hold the Company harmless from and against any liability that arises in relation to your failure to comply with this Clause 17.

18. GENERAL

18.1  The Subscriber agrees that We may, at our sole discretion, assign, transfer or subcontract any of our rights or obligations under this Agreement to any of Our subsidiaries and other group companies, resellers, distributors or dealers.

18.2  We may amend the terms and conditions of this Agreement at any time by reasonable notice, including without limitation by posting revised terms and conditions on our website. You agree that the amended terms and conditions shall be binding upon you.

18.3  Our failure to enforce any particular term of this Agreement shall not be deemed a waiver of any of our rights under it.

18.4  The illegality, invalidity or unenforceability of any part of this Agreement will not affect the legality, validity or enforceability of the remainder of the Agreement.

18.5  If the Subscriber has signed a separate written agreement with The Company covering the use of the Service, the terms and conditions of such signed agreement shall take precedence over any conflicting terms and conditions of this Agreement. Otherwise, this Agreement constitutes the entire agreement between You the Subscriber and We the Company in relation to the Service and supersedes any other oral or written communications, agreements or representations with respect to the Service, save for any oral or written communications, agreements or representations made fraudulently.

18.6  If there are any inconsistencies between the English language version of this Agreement and any translated version, then the English language version shall prevail.

18.7  A person who is not a party to this Agreement has no right to enforce any term of this Agreement under applicable legislation, and the parties to this Agreement do not intend that any third-party rights are created by this Agreement.

18.8  FORCE MAJEURE – The Company shall have no liability to the Subscriber under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving Our workforce or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.

18.9  LAW - This Agreement shall be governed and construed in accordance with the laws of the The Republic of India. Any dispute arising in relation to or as a consequence of this Agreement, which cannot be settled amicably through negotiations between the parties, shall be subject to the courts of Chennai, India.