Background
BetterPlace Safety Solutions Private Limited (“BetterPlace”) has developed the goBetter Platform that provides an end-to-end frontline workforce management platform.
Customer shall seek to purchase from BetterPlace subscription(s) to the goBetter Platform, as a hosted software-as-a-service product, and also obtain Support Services in relation thereto, and BetterPlace has agreed to sell the same to Customer, upon the terms set out herein and as per the applicable Order Form (“Customer”).
These Terms and Conditions are hereby incorporated by reference into each Order Form that references these Terms and Conditions to create a separate agreement between BetterPlace and the applicable Customer or its Affiliate (such agreement shall be referred to as the “Agreement”).
BetterPlace and Customer shall be individually referred to as a “Party” and collectively as the “Parties”.
1. DEFINITIONS
“Affiliate” means, (i) with respect to any Party other than a natural person, any other Person who holds or in which such Party holds fifty percent (50%) or more of the paid-up share capital, directly or indirectly, or is controlling, controlled by or under common control with such Party; (ii) in the case of any Party that is a natural person, any other Person who is a relative of such Party as per the provisions of the Act. For the purposes of this definition, the term “control” (including with correlative meaning, the terms “controlled by” and “under common control” with) as applied to any Party, (i) means the (a) ownership or possession, directly or indirectly, of more than one half of the voting power of an enterprise, or (b) control of the composition of the board of directors in the case of a company or of the composition of the corresponding governing body in case of any other enterprise, or (c) a substantial interest in voting power and the power to direct, by statute or agreement, the financial and/or operating policies of the Person; and (ii) shall include the ownership or possession, directly or indirectly, of the power to direct or cause the direction of the management of that Person whether through ownership of voting securities or otherwise.
“goBetter Platform” shall mean the suite of applications available at https://go-better.com/ or any of its sub-domains or any other URL/location made available by BetterPlace including but not limited to audio and visual information, documents, software and other works of authorship; and other proprietary technology, hardware, products, processes, algorithms, user interfaces, know-how, trade secrets and other Confidential Information, techniques, designs, inventions and other tangible or intangible technical material or information.
“Customer Data” shall mean any information uploaded by Customer on the goBetter Platform, including personal data and personally identifiable information such as phone number, e-mail address, government ID proofs, criminal history, biometric information, facial recognitions.
“Order Form” shall mean the document executed between the Parties substantially, with details of the Services opted for by Customer.
“Subscription Fees” shall mean the fees payable by Customer for the Subscription Services.
“Subscription Services” shall mean the provision of access to the goBetter Platform as per the scope, limits and features that Customer has subscribed to, as captured in the relevant Order Form.
“Subscription Term” shall mean the initial term of the Subscription Services commencing from the Subscription Initiation Date, as specified in the relevant Order Form, and each subsequent renewal term (if any) where Subscription Initiation Date shall mean the date of commencement of Subscription Services as set out in the Order Form.
“Support Services” means the services referred to at Section 3.2 and relevant Order Form, and shall include training services, installation and integration services, (subject to payment of fees by Customer as set out in the relevant Order Form).
“Users” mean individuals authorized by Customer to access Subscription Services solely for Customer’s internal use for its business purposes.
2. SUBSCRIPTION TO THE GOBETTER PLATFORM
2.1 During the Subscription Term BetterPlace grants the Customer a limited, non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable, fee-bearing worldwide subscription to the goBetter Platform on an as-is basis, for access and use by its authorized Users, for its internal business purposes in accordance with this Agreement, the relevant Order Form and all laws and regulations applicable to Customer. Customer shall not use the limited subscription granted hereunder or permit the same to be used for the purpose of conducting any activities similar to BetterPlace’s business.
2.2 The subscription availed hereunder is subject to the usage limits set out in the Order Form executed between the parties pursuant to this Agreement. If the Customer exceeds the usage limits as set out in the relevant Order Form, the excess usage shall be governed as per Section 5.1 hereunder.
2.3 The Services offered by BetterPlace to its Customers and the scope of Services subscribed to by the Customer shall be as set out in the relevant Order Form.
3. SCOPE OF SERVICES
3.1 SUBSCRIPTION SERVICES.
3.1.1 The scope of the Subscription Services shall be set out in the relevant Order Form.
3.1.2 Customer may, at any time, subscribe to additional features of the Subscription Services (existing features or new features that may be made available by BetterPlace from time to time) by executing an additional Order Form. Further, if Customer intends to increase the number of Users of the goBetter Platform, the terms of such increase and the additional costs thereof shall be recorded in writing in an Order Form
3.1.3 BetterPlace may update the goBetter Platform from time to time, without adversely affecting the Subscription Services. BetterPlace, however, is under no binding obligation to release new features or updates to the goBetter Platform. BetterPlace makes no representations as to future features and functionalities, irrespective of any public announcements or comments in this regard.
3.1.4 Subscription Services will not be made available during Planned Downtime or Force Majeure. “Planned Downtime” here shall mean the period during which the Services may be shut down for planned maintenance of the goBetter Platform. To the extent possible and reasonable, such downtime will be scheduled during non-business hours for a majority of BetterPlace’s customers such as weekends and public holidays and at least twenty-four (24) hours’ prior notice will be provided.
3.1.5 BetterPlace reserves the right to monitor usage of the Subscription Services by Customer to determine if the use is within relevant Service usage limitations. Any overuse, if technically permitted, will be brought to the notice of Customer and will lead to pro-rated additional billing as per Section 5.1.
3.2 SUPPORT SERVICES. In consideration of the Subscription Fees (and any additional fees as mutually agreed) paid by Customer, BetterPlace shall render Support Services and Service Level Agreement (“SLA”) as described in relevant Order Form. The SLA contains Customer’s sole remedy for availability of Services pursuant to this Agreement. “Services” shall collectively mean the Subscription Services and Support Services provided by BetterPlace to Customer.
3.3 THIRD PARTY SERVICE PROVIDERS OR THIRD-PARTY SOFTWARE. BetterPlace may use third-party service providers, including application service providers and hosting service providers, for rendering any of the Services hereunder without seeking further consent from Customer, but BetterPlace will continue to be responsible for such Services. BetterPlace will however, not be responsible for any third-party service providers engaged by Customer or any third-party software that may be procured by Customer, whether with or without BetterPlace’s consent and notwithstanding that the same may be integrated with the Services.
4. USE OF SUBSCRIPTION SERVICES
4.1 Customer will comply with the acceptable use policy set out in https://go-better.com/usage-policy and shall ensure that the Users do not reverse engineer, modify, decompile or reproduce the goBetter Platform.
4.2 Customer is responsible to ensure that the Subscription Services are used in accordance with this Agreement and will notify BetterPlace immediately of any unauthorized use of Customer’s account or Users’ identifications and passwords by sending an email to [email protected]..
4.3 Customer shall be solely responsible for the acts and omissions of any of its Users. BetterPlace shall not be liable for any loss of data or functionality caused directly or indirectly by the Customer.
4.4 Notwithstanding anything stated to the contrary, BetterPlace shall not be responsible for compliance with laws applicable to the Customer and/or Customer’s industry, that are not expressly applicable to information technology service providers.
4.5 Customer agrees to access and use the goBetter Platform, reports generated via the goBetter Platform and any information therein solely during the Subscription Term in accordance with the terms and conditions of this Agreement and in compliance with all laws and regulations that may be applicable.
4.6 Customer shall submit to BetterPlace, in writing, the names, work email addresses and telephone numbers of its personnel before such personnel access the goBetter Platform.
5. FEES AND PAYMENT TERMS
5.1 Unless otherwise agreed in the relevant Order Form, Customer shall pay BetterPlace the amounts set out below as fees for the Services:
5.1.1 Fees.
(i) Towards Subscription Services, Customer will pay the Subscription Fees set out in the relevant Order Form. The Subscription Fees will remain fixed during the Subscription Term unless:
- There is an overuse of the Subscription Services, whereby Customer exceeds the maximum Users as set out in the relevant Order Form; or
- Customer upgrades or subscribes to additional or new features or new packages or products.
5.1.2 Invoicing
(i) BetterPlace shall invoice the Customer for the Subscription Term availed by the Customer as per the Subscription Fee as specified in the Order Form or as per the modification or upgradation or à-la-carte subscribed package. Unless otherwise stated in the Order Form, Customer shall pay all undisputed invoices within thirty (30) days from the date of invoice.
(ii) All late payments including non-receipt of additional payment due to upgraded package shall attract interest at the highest rate allowed by law per annum or may reduce the tenure of the Subscription Term.
(iii) BetterPlace represents that it is registered as a Medium entity under the Micro, Small and Medium Enterprises Development Act, 2006 and all late payments by Customer will attract interest as provided for thereunder.
(iv) All email communication with respect to billing and finance needs to be marked to [email protected] by the User.
5.1.3 Taxes. All Subscription Fees and any other fees payable under an Order Form are exclusive of applicable taxes, levies, cesses and other charges applicable thereon, which shall be borne by Customer.
6. OWNERSHIP AND PROPRIETARY RIGHTS
6.1. BETTERPLACE RIGHTS. BetterPlace owns and has rights to all worldwide intellectual property rights in and to the goBetter Platform and the Services (including all customizations, derivatives, adaptations or improvements thereof), and all copyrights, patents, trademarks, service marks and trade secrets in relation thereto, whether registered or not. No content created or reports or any other information generated by Customer via the goBetter Platform will be considered “work for hire” rendered by BetterPlace to Customer. BetterPlace shall have the sole ownership of any reports, content or information generated via the goBetter Platform. Other than as expressly set out in this Agreement, no rights in or to the goBetter Platform and the related services are granted to Customer, and all rights are hereby expressly reserved. Further, Customer agrees to assign all rights, title and interest it may have in the foregoing to BetterPlace.
6.2. CUSTOMER RIGHTS. Customer shall have ownership rights over all Customer Data and grants BetterPlace a worldwide, limited, non-exclusive right to access and use the same for the purpose of rendering the Services. Customer shall be solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, intellectual property ownership, and the right to collect and use the Customer Data.
7.USING CUSTOMER’S NAME AND LOGO
Customer hereby permits BetterPlace to use Customer’s name, website address and logo in its marketing material including website, email campaigns, brochures etc. during and after active engagement.
8. CONFIDENTIALITY
8.1 CONFIDENTIAL INFORMATION. As used herein, “Confidential Information” means all confidential information disclosed by a Party and/or its Affiliates (“Disclosing Party”) to the other Party and/or its Affiliates (“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. Customer’s Confidential Information shall include Customer Data; BetterPlace’s Confidential Information shall include the goBetter Platform and Services; and Confidential Information of each Party shall include the terms and conditions of this Agreement and all Orders Forms, 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 shall 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.
8.2 PROTECTION OF CONFIDENTIAL INFORMATION. The Receiving Party shall use the same degree of care to protect Confidential Information that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care). It shall not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its service providers’ employees, consultants, contractors and agents who need such access for purposes consistent with this Agreement and who are bound by confidentiality obligations that are no less stringent than those herein.
8.3 The provisions of this Section 8 (Confidentiality) shall survive the expiry or termination of this Agreement.
9. CUSTOMER DATA PROTECTION
9.1 BetterPlace shall adopt and maintain industry standard organizational and technical safeguards for the protection of the security, confidentiality and integrity of Customer Data. BetterPlace shall process the Customer Data only for the purpose of rendering the Services, as per the extant privacy policy of BetterPlace.
9.2 As Customer collects the Customer Data and determines the mode of processing the same using the Services, Customer shall be the controller, and BetterPlace the processor, for the purpose of applicable data privacy laws. Customer shall be solely responsible for ensuring that it complies with applicable data protection laws pertaining to collection and transfer of personal data as the controller of the Customer Data. BetterPlace shall not be held liable or responsible in any way for any proprietary right or other rights’ infringement or violation or the violation of any applicable laws, arising or relating to such Customer Data and/or communications.
9.3 BetterPlace may monitor use of the Subscription Services by all its Customers and use such data in an aggregate and anonymous manner, without publishing any personally identifiable information.
10. TERM, RENEWAL, SUSPENSION AND TERMINATION
10.1 This Agreement shall become effective as of the Effective Date mentioned in the first Order Form and shall remain in effect until terminated as per the provisions of this Section 10 (“Agreement Term”). Notwithstanding anything mentioned above, each Order Form may have separate Subscription Term.
10.2 If either Party defaults in the performance of any material provisions (“Material Breach”) of this Agreement, then the other Party may give written notice to the defaulting Party that this Agreement shall stand terminated unless such default is remedied by the defaulting Party within fifteen (15) days from the date of notice; provided that, if the breach is incurable in nature, then the non-defaulting Party may terminate this Agreement with immediate effect by giving written notice to the defaulting Party.
10.2.1. This Agreement shall stand non-cancellable as per the Subscription Term mentioned in the Order Form and neither Party shall terminate this Agreement or an Order Form, without cause, or for convenience, prior to the expiry of the relevant Subscription Term.
10.2.2. Upon termination of this Agreement for any reason or expiry of the Subscription Term:
(i) Customer shall pay all outstanding payments immediately, irrespective of the Billing Cycle.
(ii) For a period of thirty (30) days following expiry or termination, BetterPlace will retain the Customer Data on the goBetter Platform. Upon completion of the aforementioned period of thirty (30) days or such extended period as mutually agreed, whichever is later, BetterPlace will permanently delete all Customer Data in Customer’s account, without retaining any copy thereof. Customer agrees that BetterPlace is not liable for any such deletion of Customer Data.
11. SUSPENSION OF SERVICES.
11.1 BetterPlace may suspend access to Customer’s account in case any amounts remain due and payable upon completion of the period of forty (40) days from the date of the relevant invoice as set out in this Agreement or as per the relevant Order Form.
11.2 BetterPlace may also suspend access to Customer’s account with immediate effect if (i) there is unauthorized access to Customer’s account; (ii) there is a violation of Acceptable Use Policy; (iii) Customer’s use of the Services is in violation of applicable laws or regulations; or (iv) Customer’s use of the Services poses a risk to the goBetter Platform or other users of the Services.
11.3 If the reason for the suspension continues for a period of five (5) more days from the 40th day, then BetterPlace may proceed to terminate this Agreement or the relevant Order Form, without prejudice to other remedies that may be available under this Agreement or applicable laws.
12. REPRESENTATIONS AND WARRANTIES
12.1 Each Party hereby represents and warrants to the other that:
11.1.1 it is duly constituted, validly existing and in good standing under the laws of the country of its incorporation;
12.1.2 upon execution of this Agreement, it will be bound by its obligations herein and shall perform the same without any impediment;
12.1.3 the execution and performance of this Agreement is not in violation of its charter documents or any applicable law, statute, rule, regulation, judgement, decree, order, license, consent, permit or any agreement by which it is bound; and
12.1.4 Each Party shall, at its own expense, comply with all the applicable laws and make, obtain, or maintain in force at all times during the Agreement Term, all filings, registrations, reports, licenses, permits and authorizations required under applicable law, regulation or order required for such Party to perform its obligations under this Agreement including those laws related to data privacy, international communications, and the transmission of technical or personal data.
13. INDEMNITY
13.1 Each Party shall defend, indemnify and hold the other Party harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings made or brought against the other Party: (i) due to breach of the representation and warranties set out in Section 10 (Representations and Warranties) above; (ii) by a third party alleging that the use of the Services as contemplated hereunder infringes the intellectual property rights or data privacy rights of such third party; provided that the indemnified Party (i) promptly gives written notice of the claim to the indemnifying Party; (ii) gives the indemnifying Party control of the defense and settlement of the claim (provided that the indemnifying Party may not settle any claim unless it unconditionally releases the indemnified Party of all liability); and (c) provides to the indemnifying Party, at the indemnifying Party’s cost, all reasonable assistance.
14. DISCLAIMERS & LIMITATIONS OF LIABILITY
14.1 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY UNDERTAKEN HEREIN, THE SERVICES ARE PROVIDED “AS IS†AND BETTERPLACE, TO THE EXTENT PERMITTED BY LAW, MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SERVICES OR DATA MADE AVAILABLE FROM THE SERVICES.
14.2 LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY, ITS DIRECTORS, OFFICERS OR ANY OF ITS AFFILIATES, BE LIABLE FOR: (I) LOSS OF PROFIT, LOSS OF BUSINESS, LOSS OF BUSINESS OPPORTUNITY, LOSS OF REVENUE, LOSS OF REPUTATION OR GOODWILL, IN EACH CASE WHETHER ACTUAL OR ANTICIPATED; (II) LOSS, THEFT OR CORRUPTION OF DATA; AND (III) ANY SPECIAL, PUNITIVE, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING SUBSTITUTION OF SERVICES) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY THIRD PARTY SERVICES DELIVERED IN CONNECTION HEREWITH EVEN IF PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH LIABILITY ARISES OUT OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LEGAL LIABILITY; AND IN NO EVENT SHALL EITHER PARTY’S CUMULATIVE LIABILITY HEREUNDER (OTHER THAN FOR PAYMENT OF FEES DUE) EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER (DETERMINED ON A PRO-RATED BASIS) TO BETTERPLACE IN THE (3) THREE MONTH PERIOD IMMEDIATELY PRECEDING ANY SUCH CLAIM.
15. GENERAL PROVISIONS
15.1 FORCE MAJEURE. Neither Party shall be responsible for failure or delay in performance if caused by Force Majeure, except in respect of payment obligations hereunder. Each Party will use reasonable efforts to mitigate the effect of a Force Majeure event. For the purpose of understanding, “Force Majeure” shall mean any event beyond the reasonable control of BetterPlace that adversely affects the provision of Services, including an act of war, hostility, sabotage, act of God, civil commotion, epidemic, pandemic, electrical, internet or telecommunication outage, cyber-attacks, government or regulatory order, rule, regulation, direction or restriction, change in law applicable to the Services.
15.2 SEVERABILITY. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, or for any reason invalid, void or unenforceable, the remainder of the provisions shall, to the extent practicable, remain in full force and effect and Parties will negotiate in good faith to amend such invalid, void or unenforceable provision to give effect to the intended purpose of such provision in accordance with applicable laws.
15.3 RELATIONSHIP BETWEEN THE PARTIES. No joint venture, partnership, employment, or agency relationship is created between BetterPlace and Customer as a result of this Agreement or use of the Services.
15.4 ASSIGNMENT. Either Party may assign its rights hereunder in the event of a merger, reorganisation or acquisition of all or substantially all of its assets; in all other cases, the other Party’s prior written approval shall be required for assignment and the same shall not be unreasonably withheld.
15.5 NO WAIVER. Any waiver by a Party of a breach of this Agreement by the other Party shall be specific and in writing, and shall not operate as a waiver of any other or future breach under this Agreement.
15.6 NOTICE. Any notice or other communication required or permitted under this Agreement shall be given in writing to the other Party at the addresses as set out in the most recent Order Form..
15.7 GOVERNING LAW AND DISPUTE RESOLUTION. This Agreement shall be governed by and construed in accordance with the laws of India. The courts at Bangalore, India shall have exclusive jurisdiction with respect to disputes arising out of or in connection with this Agreement.
15.8 ENTIRE AGREEMENT & MODIFICATION. This Agreement, including any Order Form(s), modifications or addenda that may be entered into from time to time constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Any additional or different terms set out in an Order Form or any future correspondence shall not be binding on BetterPlace. Any modification to this Agreement or an Order Form shall be in writing and mutually agreed to by the Parties.
15.9 EXECUTION. This Agreement may be executed in counterparts, including counterparts transmitted by electronic transmission in “portable document format” (i.e., “.pdf”), each of which will be deemed an original, but all of which together will constitute one and the same instrument. Electronically scanned and transmitted signatures shall be deemed originals and the delivery of signed counterparts by email shall constitute valid execution and acceptance of this Agreement by the signing/transmitting Party.
15.10 ORDER OF PRECEDENCE. In the event of any conflict between this Agreement and the terms of an Order Form, this Agreement shall prevail, unless otherwise specifically set out in the Order Form.