dMACQ SaaS Contract/SLA terms

 

This is to confirm the arrangement between Customer (“Customer”) and Dmacq Software Pvt. Ltd. (“dMACQ”) in accordance with Dmacq’s proposal and subsequent invoice raised by dMACQ and purchase order raised by Customer, for providing software as a service (“SaaS” or “Services”) for dMACQ DMS (“Software”).

 

1. Scope of Services:

 

1. Dmacq shall provide dMACQ DMS Services to customer, for the period of 3 (three) years commencing from date of invoice (service commencement date) (“Term”), unless agreed otherwise. The Term of the contract can be extended by mutual written consent. The standard functionalities of the DMS provided as a services is appended.

2. The specific services including that of the infrastructure is described in the invoice as attached to this Agreement or referred to herein.

 

3. The general terms, service level agreement and other terms are provided in Annexure A.

 

4. On call support will be provided by Dmacq to Customer from 10 AM to 6 PM on all business days.

 

5. It shall be the responsibility and obligation of Dmacq to provide sufficient industry grade security to ensure that, all the data and/or information that’s been uploaded by Customer on the server of Dmacq does not get leaked and is kept in strict confidence.

 

2. Tenure of Service:

 

From date of commencement of service as mentioned in the invoice.

 

3. Service Charges:

 

The terms of service charges are included in the invoice and also confirmed in the purchase order raised by the Customer, where available. The service charges provided are firm for the 1^st year of contract. If Customer issues a purchase order in respect of this Agreement, Customer acknowledges that any such purchase order(s) is solely for the convenience of Customer’s purchasing system and does not in any way modify or add to this Agreement or the rights or obligations of dMACQ or Customer.

 

Customer agrees to pay dMACQ fees and other charges according to the agreed terms, as applicable. dMACQ may charge Customer separately for services not specifically purchased by the Customer (including without limitation new service features, consulting, programming, and integration services), provided that Customer has approved any such additional services and related charges in advance in writing.

 

 

1. Termination:

 

Customer will be entitled (though not obliged) to terminate this arrangement, if Customer is dissatisfied with the quality of the services of Dmacq by giving 2 (two) calendar months written notice to Dmacq or breach of any terms of this arrangement and such breach not being rectified by Dmacq within the period of 30 (thirty) days (hereinafter referred to as the “Cure Period”), this arrangement will stand terminated without any further notice. Either party shall be entitled to terminate the aforesaid arrangement, without cause, by giving 2 (two) calendar months notice to Dmacq. Such termination cannot be made in the 1^st three months of the contract. Customer agrees that amounts once paid shall not be refunded in any event.

 

Notwithstanding the foregoing, either party may terminate this Agreement immediately upon written notice if the other party: (i) becomes insolvent; (ii) becomes the subject of a petition in bankruptcy which is not withdrawn or dismissed within 60 days thereafter; (iii) makes an assignment for the benefit of creditors; or (iv) breaches any material obligation under this Agreement (including but not limited to payment obligations) and fails to cure such breach within 30 days after delivery of notice thereof by the non-breaching party. Either party also may terminate or suspend this Agreement immediately upon notice if such party determines in its reasonable judgment that continuing to provide or use the Services pursuant to this Agreement would infringe upon the intellectual property rights of any third party, or that the Services have been or may be used by the other party for any illegal transaction or unlawful purpose. Without limiting the generality of any other provision of this Agreement, DMACQ may suspend access to services by Customer and its users upon 30 days prior written notice to Customer in the event any dMACQ invoice that is not then subject to a timely asserted bona fide dispute has not been paid within 45 days after issuance and remains unpaid as of the end of such notice period.

 

5. Ownership of Services, Acceptable Use:

(a) As between the parties, dMACQ owns and shall retain all right, title, and interest in and to the Services, all components thereof, including without limitation all related applications, user interface designs, processes, software and source code, and any and all future enhancements or modifications thereto howsoever made, and all intellectual property rights therein.  Customer and its users may use the Services for the intended business purposes only.  Customer shall not (i) reverse engineer, disassemble, transfer, distribute, make available or otherwise exploit the Services; (ii) modify or make derivative works based upon the Services; (iii) access the Services in order to build, operate or otherwise make available a competitive product or service; or (iv) use the Services in any manner inconsistent with the terms and conditions of this Agreement.  Customer hereby agrees, on behalf of itself and its Users, that to the extent that any applicable mandatory laws provide the right to perform any of the aforementioned activities without the consent of dMACQ to gain certain information about the Services, before it exercises any such rights, Customer shall first request such information from dMACQ in a written notice delivered hereunder detailing the purpose for which the information is needed. Only if and to the extent dMACQ, at its sole discretion, denies such request, shall Customer or its Users exercise such statutory rights.  All information derived from the exercise of such statutory rights shall be and remain the Confidential Information of dMACQ. 

(b) Additionally, Customer shall not use or permit use of the Services to do, or attempt to do any of the following: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful material giving rise to tortious liability, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (v) attempt to gain unauthorized access to the Services or its related systems or networks.

6. Confidentiality:

Dmacq its employees and officers and other employed by it shall hold in strict confidence all data that’s been uploaded by Customer on Dmacq server and/or that’s been received by them from Customer during the Term of this arrangement. The information uploaded and/or obtained from Customer will not be disclosed to others or use it except in connection with the performance of the services as described in this agreement. Dmacq agrees that breach of this clause by Dmacq or its Representatives and / or any other person acting on and / or on behalf of Dmacq may cause irreparable injury to Customer, and that Customer shall therefore be entitled, in addition to any other rights it may have at law or in equity, to seek an injunction against Dmacq from any such breach.

 

The above shall also not prohibit the disclosure of any information which is now within the public domain, or which is obtained from a third party who is entitled to disclose it publicly, and shall cease to apply to any information which subsequently enters the public domain except as a result of a disclosure which is contrary to these provisions.

The provisions of this section shall continue in full force and effect notwithstanding the termination of this arrangement.

7. User Files: 

User Files shall remain the property of Customer (or their respective third party owners if any) and shall not be considered part of the Services.  Customer acknowledges that the Services are intended to hold digital copies of User Files.  Customer acknowledges and agrees that dMACQ shall not be responsible for the content of User Files or the modification, use or publication of User Files by any User or third party.  dMACQ shall not be responsible for the content, accuracy or completeness of Customer’s User Files.  

8. Warranties:

DMACQ warrants the Services will be provided in a manner (i) that meets or exceeds prevailing industry standards and (ii) is reasonably designed for the secure maintenance and distribution of User Files.  DMACQ warrants, to the best of its knowledge after implementing reasonable measures, that the Services do not contain any third party computer code intentionally designed to disrupt, disable, or harm in any manner the operation of the Services (e.g., "viruses" or "worms").   DMACQ further warrants, to the best of its knowledge, that the Services do not infringe any third party trade secret, copyright, India issued patent or registered trademark. Other than the foregoing and the 99.99% uptime provided by hosting service provider webwerks, the services are provided on an "as is" and "as available" basis without warranty of any kind.  Dmacq makes no warranty that the services will be uninterrupted, error free or available at all times, nor does dmacq warrant the compatibility or operation of the services with all hardware and software configurations. Without limiting the foregoing, customer acknowledges that features of the dmacq service designed to restrict access to or use of end user files cannot prevent manual copying of displayed information and may not prevent electronic or digital capture of document contents by end users using third party software designed to circumvent such system features.  Except as set forth in this section, dmacq makes and customer receives no warranties, express or implied, regarding or relating to the subject matter hereof. Dmacq disclaims, to the fullest extent permitted by law, all implied warranties of merchantability, fitness for a particular purpose and noninfringement with respect to the subject matter hereof. Customer hereby acknowledges that it has not relied on any warranty, condition, guaranty or representation by dmacq other than those contained in this agreement.

9. Representations:

Customer represents and warrants to DMACQ that the disclosure of End User Files to DMACQ and to end Users by or at the direction of Customer or its end Users shall not violate any applicable law, regulation or third party rights in any material respect. Each party executing this Agreement represents to the other that it is authorized and has all rights necessary to enter into and be bound under this Agreement, and no law, regulation, court order or third party agreement prohibits its performance of this Agreement.

10. Indemnification:

(a) DMACQ will indemnify, defend and hold harmless Customer from and against any and all damages, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys' fees) (collectively, “Losses”) resulting from any third-party claim, suit, action, investigation or proceeding (each, an “Action”) brought against Customer based on: (i) the infringement by DMACQ of any third-party trade secret, copyright, India-issued patent or registered trademark (an “Infringement Claim”); or (ii) the breach by DMACQ of any obligations, representations or warranties in this Agreement, including without limitation with respect to Confidential Information, except, in any case, to the extent such Action is based on Customer's willful misconduct, negligence, or Force Majeure Event. In the event of an Infringement Claim, DMACQ may mitigate any Losses indemnified hereunder by any of the following actions: (A) procure for Customer the necessary right to continue using the Services; (B) replace or modify any infringing portion of the Services with a functionally equivalent non-infringing substitute thereof; (C) modify the Services so as to be non-infringing; or (D) if none of the foregoing are commercially reasonable, terminate this Agreement (and in the event of such termination, Customer shall be entitled to a refund of any prepaid fees for the unexpired portion of any term of a Work Order).  DMACQ’ obligations in this agreement shall not apply to any Infringement Claim that arises as a result of (1) breach of this Agreement or the applicable end User License Agreement; (2) use of the Services other than in accordance with DMACQ’ documentation; (3) modification of the Services; (4) use of the Services in connection with any services, hardware, software, interfaces or other components not provided by DMACQ; or (5) end User Files.

(b) Customer will indemnify, defend and hold harmless DMACQ from and against any and all Losses arising from or relating to any Action brought against DMACQ based on: (i) the material breach by Customer of any of its representations in this Agreement; or (ii) the use of the Services or any end User Files by Customer or any end Users acting for Customer or its Affiliates, in violation of this Agreement, any applicable law, regulation or third party rights, except, in any case, to the extent such Action is based on DMACQ' willful misconduct, negligence or Force Majeure Event.

(c) Indemnification under subsections (a) and (b) hereof will be provided only on the conditions that: (i) the indemnifying party is given written notice within 15 calendar days after the indemnified party receives notice of the subject action; provided, however, that late notice shall only excuse the indemnifying party from its obligations hereunder if such late notice materially prejudices the indemnifying party; (ii) the indemnifying party has sole control of the defense and all related settlement negotiations, provided any settlement that would impose any monetary or injunctive obligation upon the indemnified party shall be subject to such party's prior written approval; and (iii) the indemnified party provides cooperation and information in furtherance of such defense, as reasonably required by the indemnifying party.  This Section shall survive termination or expiration of this Agreement. 

11. Limitation of Liability:

Except for claims for (i) personal injury due to gross negligence, (ii) wrongful death, (iii) willful misconduct or (iv) fraud, in no event shall dmacq be liable to customer for any loss of profit, loss of business, loss of data, or for any indirect, incidental, consequential, special or exemplary damages arising in connection with the services provided to customer or any agreement between the parties relating thereto (whether based on breach of contract, breach of warranty, negligence or any other legal theory), even if dmacq has been advised of the possibility of such damages.   Except for claims for (i) personal injury due to gross negligence, (ii) wrongful death, (iii) willful misconduct, (iv) fraud or (v) indemnification for infringement under aforementioned indemnification section (a), the entire liability of dmacq to customer in connection with services provided to customer and any agreement between the parties relating thereto (whether based on breach of contract, breach of warranty, negligence or any other legal theory) shall not exceed, in the aggregate, the total amount of service charges paid under this agreement in the twelve (12) month period immediately preceding the event giving rise to such liability.    No action, regardless of form, arising out of or related to this agreement may be brought by customer more than twelve (12) months after the cause of action first arose.  This section shall survive termination or expiration of this agreement.

 

12. Governing Law and Jurisdiction:

 

This arrangement shall be governed by and construed/enforced under the laws of India and for the purpose of enforcement of any of the rights under this arrangement, the Courts in Mumbai alone shall have exclusive jurisdiction.

 

 

 

The terms of this agreement is embedded in the application accessible through dedicated url provided to the customer.

 

 

Annexure A: Terms of SaaS Contract, Maintenance and Support

 

These terms are part of the Agreement between DMACQ and CUSTOMER.

 

 

1. SCOPE OF THE TERMS

 

1. The maintenance services under the maintenance contract shall comprise of preventive and corrective maintenance of the application.

 

2. The relationship between CUSTOMER and Dmacq shall be that of the ‘Principals’ to Principal basis .

 

 

3. The maintenance services will consist of

 

1. Attending to application related complaints raised by CUSTOMER

2. Remote preventive and corrective maintenance of Application (and if remote resolution is not possible, on-premise support).

3. The maintenance contract will comprise of bug fixing in the application and software support /troubleshooting to keep the application fully operational. This will include providing appropriate up-gradation to keep the application functional within the prescribed architecture/platform.

4. The maintenance will also include necessary security patches/upgrades as applicable

 

4. If CUSTOMER discovers a fault in the Application and reports it to Dmacq email id helpdesk@dmacq.com (this email-id is monitored up to 12 hours on a business day), together with any further information such as error messages, circumstances and data being processed, which Dmacq may request, Dmacq will promptly investigate and advise CUSTOMER of a means of successfully undertaking the required operation to fix the fault.

 

5. SLAs associated with maintenance are further described below.

 

2. Service Level Agreements (SLA):

 

1. Service Level Reporting

 

Dmacq will supply CUSTOMER with following incidence processing reports on the intervals indicated:

 

Report Name	Interval	Recipient	Responsible
Bug reporting and resolution report	Weekly	Customer Representative	Dmacq
Application Incident Report	Monthly	Customer Representative	Dmacq

 

If no bugs/incidence are reported –reports will not be issued.

 

2. Issue-resolution - SLA:

 

In support of services outlined in this agreement and issues submitted to support email id during working hours, Dmacq will respond to service related incidents and/or requests submitted by CUSTOMER within one working day. Issues, if any, classified, as “Critical” shall be responded immediately within 4 working hours. The response shall include a determination if the problem is related to Dmacq DMS or any 3^rd Party application. If the issue is outside the control of dMACQ, the response will include suggestion on appropriate resolution mechanism and best efforts shall be made to notify such 3^rd party to resolve the issue(s). The issues, which are within the control of Dmacq, shall be resolved as follows:

 

Critical Level: Dmacq shall intimate CUSTOMER within 4 working hours of determination of severity and shall continue best efforts until the issue has been resolved or remediated. The issue resolution target is 2 working days.

 

Other Issues: Dmacq shall intimate CUSTOMER within 1 working day of determination of severity and shall continue best efforts until the issue has been resolved or remediated. The issue resolution target is 3 working days.

 

 

 

3. Service Level to be met for Response Time:-

 

100 % of Critical incidents will be responded in stipulated time.

95 % of other incidents will be responded in stipulated time.

 

Escalation Matrix:

 

Primary Contact: Rakhi Mishra +91 22 65019888 / + 91 22 65012200;rakhi.mishra@dmacq.com

Escalation Contact: Kapil Yadav +91 22 65019888 / +91 22 65012200; Kapil.yadav@dmacq.com

Helpdesk email: helpdesk@dmacq.com

 

 

Severity Level	Description
Critical	Total system or application failure or loss of availability of critical data/functionality. Affecting all users. Example: Total system or application is down
Others	All other issues not Critical

 

 

 

 

 

 

 

 

 

 

 

4. Service Maintenance

 

All services and/or related components require regularly scheduled maintenance (“Maintenance Window”) in order to meet established service levels. Such activities will be informed in advance, should the same cause any service level interruptions.

 

3. GENERAL CONDITIONS

 

 

1. For cloud hosted solutions dMACQ uses datacenter and services of Web Werks India Pvt Ltd. (Webwerks). Webwerks assures a 99.995%uptime guarantee Service Level Agreement which will serve as an agreement between Web Werks and the Customer. For Webwerks related SLAs and other terms – Customer should refer to terms provided in their web-site (see url’s below):

 

1. Webwerks SLA: https://www.webwerks.in/service-level-agreement;

2. Webwerks AUP: https://www.webwerks.in/acceptable-use-policy

3. Webwers Privacy Policie: https://www.webwerks.in/privacy-policy

 

 

2. It shall be the responsibility of CUSTOMER to ensure that the server, internet and IT Infrastructure has functional capabilities to meet the stipulated response time including arrangements for remote resolution.

 

3. Dmacq or its designated representatives shall not be liable to CUSTOMER for any delay or failure by Dmacq to perform its obligations under this AGREEMENT or otherwise if such delay or failure arises from any unforeseeable cause or causes beyond the reasonable control of Dmacq, including, but not limited to, labour disputes, strikes, other labour or industrial disturbances, acts of God, floods, lightning, shortages of materials, rationing, utility or communications failures, earthquakes, casualty, war, acts of the public enemy, riots, , or orders of any government on Dmacq thereof.

 

4. Any versions older than the current version and prior version are not covered under the AGREEMENT. CUSTOMER are strongly encouraged to keep up-to-date with software product releases in order to help prevent extended downtimes. 


 

5. Software Releases: Dmacq will make available to CUSTOMER with, current support and maintenance agreements, such point releases/updates/upgrades/Service Packs (minor patch releases resolving critical bugs) and/or enhancements to the software that Dmacq makes generally available to its maintenance customers at no additional charge when available. CUSTOMER shall be responsible for the installation and/or upgrade of the software. Some upgrades may not be “customer installable” and may require Dmacq to perform the update. Such events may be considered a scheduled event. 


 

6. Excluded from the coverage of this AGREEMENT are services resulting from misuse or modification of the software or hardware by CUSTOMER, failure or interruption of any electrical power, or any accident or other cause external to the Software, including, but not limited to problems or malfunctions related to CUSTOMER’s network, database, third-party software products, and/or workstation configurations or CUSTOMER’s hardware. Such excluded services, and additional consulting services such as training, setup and technical integration may be contracted separately to Dmacq at the then current labor rates, subject to Dmacq’s agreement.