SOFTWARE SERVICE AGREEMENT - 2022
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE AGREEING TO ENTER INTO THIS SOFTWARE SERVICE AGREEMENT. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS SOFTWARE SERVICE AGREEMENT, THAT YOU UNDERSTAND IT, AND AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU WILL NOT BE ALLOWED TO ENTER INTO THIS SOFTWARE SERVICE AGREEMENT.
This Software Services Agreement (“Agreement”) is entered into between: (a) Teachmint Technologies Private Limited, a private limited company incorporated in India under the provisions of the Companies Act, 2013, having its registered office at 5 th Floor, North Wing, SJR “The HUB”. Survey Number 8/2 and 9, Sarjapur Road, Bengaluru, Karnataka – 560 103 India (hereinafter referred to as the “Company”, which expression shall, unless it be repugnant to the context or meaning thereof, be deemed to mean and include its successors-in-interest and assigns), and (b) the Customer specified in the relevant Order Form (defined below). The Company and the Customer shall be individually referred to as the “Party” and collectively as the “Parties”.
This Agreement, including its schedules and annexure governs your availing the software services for, including but not limited to, student engagement, content delivery, administration tools, digital learning solutions through video conferencing, collaboration, or otherwise and related services, support and professional services, on the Company’s websites including but not limited to the website hosted at https://www.teachmint.com/, as well as other mobile applications owned/controlled/operated by the Company from time to time (hereinafter collectively referred to as “Teachmint Platform”).
This Agreement is an electronic record in the form of an electronic contract formed under the Information Technology Act, 2000, rules made thereunder, and any other applicable statutes, as amended from time to time. This Agreement does not require any physical, electronic or digital signature.
1. DEFINITIONS AND INTERPRETATION
1.1. In this Agreement, unless the context otherwise requires, the following capitalized words and expressions shall bear the meaning ascribed to them hereinbelow:
- “Confidential Information” shall have the same meaning as ascribed in Clause 10.1 ;
- “Effective Date” shall have the meaning set out in the Order Form;
- “Intellectual Property Rights” shall mean any patents, trademarks, service marks, design right (whether registerable or otherwise), domain names, applications for any of the foregoing, trade secrets, copyright, know-how, trade or business names and other similar rights or obligations whether registerable or not in any country in the world, including, but not limited to, India;
- “License” shall have the meaning set out in Clause 2.1 of this Agreement;
- “Customer Data” shall have the meaning as set out in Clause 4.1(b) of this Agreement;
- “Order Form” shall mean each of the Order Form(s) executed between the Company and the Customer from time to time;
- “Services” means software subscription services, and value added support services including but limited to student engagement, content delivery, administration tools, digital learning solutions through video conferencing, collaboration, or otherwise and related services, support, professional services.
- “Service Fees” shall have the meaning as set out in Clause 5.1(b) of this Agreement; and
- “Subscription Fees” shall have the meaning as set out in Clause 5.1(a) of this Agreement.
- In this Agreement, the headings are for convenience only and shall not in any way define or limit the scope of this Agreement and shall not affect the construction or interpretation of this Agreement.
- Unless the context of this Agreement otherwise requires, the term “Recital” “Clause”, “Schedule” or “Annexure” refers to the specified Recital, Clause or Schedule or Annexure respectively of this Agreement;
- Unless the context of this Agreement otherwise requires, reference to the word “include” shall be construed without limitation;
- Any Schedule or Annexure to this Agreement shall take effect as if set out in this Agreement and references to this Agreement shall include its Schedules and Annexure;
- No rule of construction applies to the disadvantage of a Party because that Party was responsible for the preparation of this Agreement or any part of it.
2.1 Grant of license to use Teachmint Platform – Subject to the Customer’s continuous compliance with this Agreement and payment of the Subscription Fees, the Company grants to the Customer, and its authorised users, a non-exclusive, non-transferable, non- sublicensable, revocable, limited license to access and use the Teachmint Platform and to use the Services, in object code form and in the manner agreed from time to time as set out in the Order Form (“License”).
Notwithstanding anything contained in the Clause 2.1 above, the License granted by
the Company to the Customer under this Agreement does not include the right to:
- sub-license or otherwise permit access or use of the Teachmint Platform or Services or any portion thereof on a commercial time-sharing, lease, or rental, basis to any third party;
- modify, alter, disassemble, reverse assemble, reverse compile, reverse engineer, decompile, disassemble, or otherwise attempt to reconstruct the source code of the Teachmint Platform or Services or any portion thereof;
- create any derivative works based on the Teachmint Platform or Services;
- copy, reproduce or duplicate the Teachmint Platform or Services or any part thereof, except to the extent reasonably necessary for backup purposes;
- use any reverse compilation, recompilation or disassembly techniques or similar methods to determine any design, concepts, construction method, source code or other aspects of the Teachmint Platform or Services or any part thereof for any purpose;
- transfer, assign, distribute, sale or otherwise (including by way of merger and acquisition) the rights in Teachmint Platform or Services or any portion thereof to any persons without prior written permission of the Company;
- make for any purpose including for error correction, any alterations, modification, additions or enhancements to the Teachmint Platform and/or the Services, nor permit the whole or any portion of the Teachmint Platform and/or the Services to be combined with or become incorporated in any other program;
- Nothing in this Agreement shall confer on the Customer any rights in any trade name, business name, trademark, patent, copyright, trade secret or other proprietary name or mark of the Company.
2.3 The Company shall create and provide one user with full access and admin rights to the Customer (“Admin User”). Subject to the Order Form executed by the Customer, the Customer will be entitled to create more user accounts for its students, teachers and other employees (“User”) and give access and right of Admin User to more Users. The Customer shall be responsible for any action or omission of the Admin Users. The Admin Users will have the right to configure the Services based on the requirements and manage Users and assign user rights/ privileges to each User of the Customer.
3. CHANGE IN SCOPE OF SERVICES
3.1 Either Party may propose changes to the scope of the Services or any other terms and conditions under any Order Form, which shall come into effect only upon execution of change order by both Parties (“Change Order”). The Change Order shall set out the proposed changes in the Services, the revised timelines and Service Fees etc.
3.2 Any Party wishing to make change in the Order Form shall prepare and provide the draft of Change Order to the other Party.
3.3 If the Parties agree to a draft Change Order, they shall sign and execute such Change Order and the relevant Order Form shall stand amended/ modified to such extent.
4. ROLES AND RESPONSIBILITIES
4.1 The roles and responsibilities of the Customer and its authorised users are set out below:
- It is hereby clarified that the Services provided on the Teachmint Platform are not being offered to or intended to be used by the residents of European Union, United Kingdom and United States of America. The Customer shall not authorise any person residents of European Union, United Kingdom and United States of America, to use the Services on the Teachmint Platform.
- The Customer and its authorised users shall be responsible for obtaining requisite infrastructure including recommended equipment, devices with specific configuration and internet connection as intimated by Company from time to time, for use of the Services, at its own expenses. Company shall not be responsible for any malfunction or non-performance of the Services due to any incorrect data entry or lack of requisite infrastructure including recommended equipment and internet connection for using the Services.
- The Customer and/or its authorised users shall upload and input the required data and information but not limited to specifications and details of its students, teachers, classes, courses, reading material, tax and compliance related inputs, and other similar or related data (“Customer Data”) on Teachmint Platform or the Services.
- The Customer shall be responsible for uploading, inputting and ensuring the accuracy, validity, and completeness of all Customer Data on the Services.
- The Customer shall not and shall ensure that its authorised users does not upload or input any Customer Data on the Teachmint Platform or the Services in violation of any of its obligations under any contract, or that infringe or violate any proprietary rights or Intellectual Property Rights of any third party.
- The Customer shall ensure that the Customer Data does not contain any tortious or illegal information or data;
- The Customer acknowledges that the Teachmint Platform and the Services have been made to meet broad requirements of the market and have not been specifically made to meet the Customer’s or its authorised users’ individual requirements. The Customer also acknowledges that it is the Customer’s responsibility to ensure and use the functions of the Teachmint Platform or the Services to meet its specific and/or individual requirements to the greatest possible extent.
- The Customer agrees to use its best efforts and to cooperate with Company to complete the implementation of the Services. The Customer agrees to provide personnel with appropriate knowledge and skill to accomplish the implementation.
- The Customer shall through the Admin User add and/or update and/or manage the account credential of the Customer. The Customer may add or change the Admin Users from the admin panel. The Customer or its authorised users may change the profile details of its institution, pursuant to any corporate actions or otherwise, after following the process prescribed by the Company.
- The Customer and its authorised users are responsible for (i) ensuring confidentiality of the Admin User accounts and/or password, and (ii) appointing / registering competent individuals as administrators for managing the Admin User accounts. The Customer understand that the Company is not responsible for account administration and internal management of the Services managed by the Customer.
5.1 Payment of Fees
- In consideration of the License granted herein to the Customer, the Customer shall pay to Company, the Subscription Fees as set out in the Order Form (“Subscription Fees”). The Subscription Fees is subject to change at the time of renewal of Order Form.
- The Company offer various other products and services and provide other facilities which are ancillary to the Services, at additional charges and fees (“Service Fees”). The Customer and/or its authorised users may avail any such products, services and facilities by paying relevant Services Fees for the same along with any and all applicable statutory taxes. The Customer acknowledges that the Subscription Fees set out in the Order Form are only applicable to the capabilities and specific modules identified in such Order Form, and that the Customer’s access to any additional or advance features shall be subject to payment of such additional fees payable for such additional or advance features, as may be conveyed by way of a Change Order between the Parties.
- Each Party shall be responsible for complying with the respective tax liabilities and other statutes as may be applicable to it individually.
- Invoicing and Payment
- Subscription Fees as set out in Order Form shall be payable in the manner and mode set out in the Order Form.
- Service Fees for all products, services and facilities ancillary to the Services availed by the Customer shall be invoiced by the Company to the Customer and/or its authorised users at the rate prevailing on the day the placing the relevant service order and as specified in the separate Order Form for such services. Unless agreed otherwise in the relevant Order Form, the Customer and/or authorised user shall pay the Service Fees for such product, services or facilities to the Company, as specified in the relevant Order Form(s), in advance.
- Any delay in payment of invoice shall attract interest at the rate of [18% (eighteen percent) per annum] from the due date of payment for such invoice up to the date of actual payment being made.
6. NON-EXCLUSIVE AGREEMENT
6.1 The Parties expressly acknowledge that this Agreement does not create an exclusive relationship between the Parties. It is hereby clarified that Company shall be entitled to solicit, offer and provide the Teachmint Platform and the Services to any third party including without limitation, other institutions, stakeholders and competitors of the Customer and/or authorized users.
7. REPRESENTATIONS AND WARRANTIES
7.1 Each Party hereby represents and warrants to the other Party that:
- It has not taken any corporate or other action, as may be applicable, nor have any steps been taken or legal proceedings of any manner been initiated or threatened against it for its winding-up, dissolution, administration, re-organization, insolvency, bankruptcy, or for appointment of receiver, administrator or other court officer or all of any of its assets, businesses or undertakings;
- As of the date of this Agreement, there is no litigation, proceeding or dispute of action pending against it, the adverse determination of which has a materially adverse effect on this Agreement; and
- The execution and delivery of this Agreement and documents to be executed in pursuance hereof, and the performance of its obligations hereunder and thereunder does not: (i) contravene any applicable law to which it and/or its assets, businesses and/or undertakings is subject to; (ii) conflict with or result in any breach of, any of the terms of or constitute default of any covenants, conditions and stipulations under any existing agreement or contract or binding on it; or (iii) conflict or contravene any provision of its memorandum of association and the articles of association or such other constituent documents, as may be applicable.
7.2 The Customer represents, warrants and covenants that:
- (i) all the Customer’s employees, and its authorised users will abide by the terms of this Agreement; (ii) It has obtained all necessary corporate and statutory approvals / sanctions / permissions, as may be required for the performance of its obligations hereunder; (iii) the Customer will comply with all applicable laws, regulations, rules, orders and other requirements, now or hereafter in effect, of any applicable governmental authority, in its performance of this Agreement; and (iv) each license shall only be used against a single authorised user and no license can be clubbed and/or shared among multiple authorised users of the Customer. Notwithstanding any terms to the contrary in this Agreement, the Customer will remain responsible for acts or omissions of all its employees, teachers, authorised representatives, officers or consultants of to the same extent as if such acts or omissions were undertaken by the Customer. The Customer assumes responsibility for the selection of the Services to achieve its intended results, and for the installation, use, and results obtained from the Services.
- The Customer grants Company right to use the data and information generated by usage of the Services by the Customer for the enhancement of services provided by Company. The Customer provides an exclusive license to Company in respect of the feedback provided in relation to Teachmint Platform and the Services, and the Company may use such feedback to improve the Services and Teachmint Platform.
- Company shall be entitled to monitor the usage of the Services and Teachmint Platform, on a periodic basis, for compliance with the terms and conditions contained in this Agreement or inter-alia with standards, directions and specifications issued and communicated by Company in this regard from time to time, or as may be required under the applicable laws.
7.3 Company does not warrant that:
- the Teachmint Platform or the Services or any update and enhancement of the Teachmint Platform or the Services, and any portion of thereof is error free; or
- the Customer will be able to operate the Teachmint Platform and/or the Services without problems or interruptions, or the Teachmint Platform and/or the Services and its update are not susceptible to intrusion, attack or computer virus infection; or
- the Customer’s data or any other data uploaded or feed into the Services and/or Teachmint Platform is fully secured and free from any harm, damage or loss even if security measures are taken and arranged by Company.