BLISS SOFTWARE SUBSCRIPTION AND SERVICES AGREEMENT
Last updated on 25 April, 2024 –2:30PM
THIS BLISS SOFTWARE SUBSCRIPTION AND SERVICES AGREEMENT GOVERNS THE SUBSCRIBER’S USE AND AVAILMENT OF SERVICES PROVIDED BY CIMPLYFIVE CORPORATE SECRETARIAL SERVICES PRIVATE LIMITED (HEREINAFTER CIMPLYFIVE). IT CONSTITUTES A BINDING AGREEMENT BETWEEN CIMPLYFIVE AND THE SUBSCRIBER.
BY (1) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT OR (2) CLICKING A BOX INDICATING ACCEPTANCE OF THIS AGREEMENT OR (3) USING THE SERVICES, THE SUBSCRIBER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “SUBSCRIBER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND SHALL NOT AVAIL THE SERVICES.
1. DEFINITIONS
1.1. “Act” shall mean the (Indian) Companies Act, 2013 read with the rules framed thereunder, or any statutory modification or re-enactment thereof.
1.2. “Agreement” means this BLISS Software Subscription and Services Agreement, any Order Form, addenda, exhibits and supplements thereto.
1.3. “Applicable Law” means any law, statute, rule, regulation, order, circular, decree, directive, judgement, decision or other similar mandate of any applicable central, national, state or local governmental authority having competent jurisdiction over, or application to a party or subject matter in question.
1.4. “Subscriber Data” means any content, materials, documents, data and information submitted by or for the Subscriber including any data generated, derived, processed, stored or transmitted thereof.
1.5. “Subscriber” means the company for which the services contained in this Agreement is availed for, and affiliates of that company (for so long as they remain affiliates).
1.6. “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
1.7. “Non-CimplyFive Application” means a web-based, mobile, offline or other software application functionality that interoperates with a Service, that is provided by the Subscriber or a third party
1.8. “Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between the Subscriber and CimplyFive, including any addenda, exhibits and supplements thereto which is annexed to this Agreement at Annexure 1. By entering into an Order Form hereunder, an affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
1.9. “SEBI Listing Regulations” mean the Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015 or any statutory modification or re-enactment thereof.
1.10. “Services” means Subscription Services, and exclude any service or utility provided by any Non-CimplyFive Applications.
1.11. “Software” means CimplyFive’s proprietary software including but not limited to Board Leaders Integrated Software Solution (“BLISS”) software and its variants, CimplyFive Best Board Evaluation software, as provided by CimplyFive to the Subscriber pursuant to the Order Form.
1.12. “Subscription Services” means any services provided by CimplyFive to the Subscriber including the subscription to Software and related support made available by CimplyFive to the Subscriber under applicable Order Form.
1.13. “User” means an individual who is authorized by the subscriber to access BLISS, for whom the service was ordered, and to whom at the Subscriber’s request, the registration of the email ID in BLISS is initiated and includes any other users in the software added by the first registered user. User may include, for example, the subscriber’s employees, contractors, agents and third party.
2. CIMPLYFIVE’S RESPONSIBILITIES
2.1. Provision of Subscription Services: Subject to terms of this Agreement and payment of the charges, CimplyFive will (a) make the Subscription Services available to the Subscriber pursuant to the applicable Order Form (b) provide applicable CimplyFive standard support for the Subscription Services to the Subscriber.
2.2. Protection of Subscriber Data: CimplyFive will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Subscriber Data to prevent unauthorized access to Subscriber Data.
3. USE OF SUBSCRIPTION SERVICES
3.1. Subscriptions: Subject to the terms of this Agreement and payment of charges, CimplyFive grants the Subscriber, a limited, non-exclusive, non-transferable right to access the Subscription Services. Subscription Services are purchased as subscriptions for the term stated in the applicable Order Form.
3.2. Subscriber Responsibilities: The Subscriber shall (a) be responsible for compliance with this Agreement and Order Forms, (b) be responsible for the accuracy, quality and legality of the Subscriber Data, the means by which the Subscriber acquired the Subscriber Data, the Subscriber’s use of the Subscriber Data with the Services, and the interoperation of any Non-CimplyFive Applications with which the Subscriber uses Subscription Services, (c) prevent unauthorized access to or use of Subscription Services and notify CimplyFive promptly of any such unauthorized access or use and (d) be responsible for all activities that occur under its usernames, passwords or accounts or as a result of the Subscriber’s access to the Services and agrees that CimplyFive is not responsible for any harm caused by users, including individuals who were not authorized to have access to the Services but who were able to gain access from the Subscriber’s user credentials.
3.3. Usage Restrictions: The Subscriber shall not (a) make any Subscription Service available to anyone other than the Subscriber or users, or use any Subscription Service for the benefit of anyone other than the Subscriber or its affiliates, unless expressly stated otherwise in an Order Form, (b) sell, resell, rent, license, sublicense, distribute, make available, any Subscription Service, or include any Subscription Service in a service bureau or outsourcing offering (e) interfere with or disrupt the integrity or performance of any Subscription Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Subscription Service or its related systems or networks, (g) permit direct or indirect access to or use of any Subscription Services in a way that circumvents a contractual usage limit, or use any Subscription Services to access or use any of CimplyFive intellectual property except as permitted under this Agreement, or Order Form, (h) modify, copy, or create derivative works based on a Subscription Service or any part, feature, function or user interface thereof, (i) disassemble, reverse engineer, reproduce, distribute, republish or decompile a Subscription Service, (j) remove or modify any program markings or any notice of CimplyFive’s or its licensors’ proprietary rights, (k) perform or disclose any benchmark or performance tests of the Services, (l) access Subscription Services to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) assist a third party in building or supporting, products or Services competitive to CimplyFive or (4) copy any ideas, features, functions or graphics of the Service.
3.4. The Subscriber’s use of Services shall be subject to terms and conditions of use and privacy policy as updated from time to time by CimplyFive.
4. NON-CIMPLYFIVE APPLICATIONS
Any acquisition or use by the Subscriber of Non-CimplyFive Application, and any exchange of data between the Subscriber and any Non-CimplyFive Application is solely between the Subscriber and the applicable Non-CimplyFive Application provider. CimplyFive does not warrant or support Non-CimplyFive Applications or other Non-CimplyFive products or services, whether or not they are designated by CimplyFive as “certified” or otherwise. CimplyFive is not responsible for any disclosure, modification or deletion of the Subscriber Data resulting from access by such Non-CimplyFive Application or its provider. CimplyFive assumes no responsibility in relation to any services availed by the Subscriber from a Non-CimplyFive Application and the Subscriber agrees and undertakes to indemnify and hold CimplyFive harmless from any claim, loss, liability arising out of, or in connection with, or in relation to any such services being availed by the Subscriber.
5. CHARGES AND PAYMENT
5.1. Charges: The Subscriber shall pay the annual subscription charges in advance as specified in Order Forms. All charges due under an Order Form are non-refundable. Further, in the event the Subscriber cancels the Services at anytime, the charges paid shall not be refunded.
5.2. Unless otherwise stated in the Order Form, all invoices will be sent via email to the Subscriber’s email address registered with CimplyFive.
5.3. If any invoiced amount is not received by CimplyFive within the due date, then without limiting CimplyFive’s rights or remedies, CimplyFive may levy interest at the rate of 2% of the outstanding balance per month.
5.4. Suspension of Service: In the event a subscription term has expired and the Subscriber continues to use the Services without paying any invoiced amount owed by the Subscriber in respect of the Services being availed by it for a period of fifteen (15) days or more, CimplyFive may, suspend Services until such amounts are paid in full, provided that, CimplyFive will give the Subscriber at least five (5) days prior notice that its account is overdue before suspending services to the Subscriber.
5.5. Taxes: CimplyFive’ s charges do not include any taxes. The Subscriber shall be responsible for paying all taxes associated with its purchases hereunder.
6. PROPRIETARY RIGHTS
6.1. As between CimplyFive and the Subscriber, the Subscriber owns all of Subscriber’s Data and all intellectual property related to Subscriber’s Data. Notwithstanding anything to the contrary contained herein, the Subscriber hereby agrees, covenants, consents and grants CimplyFive, its aAffiliates, and its third-party service providers, all the rights to host, use, process, analyse, derive, store, display and transmit Subscriber Data including for providing the Services in accordance with this Agreement. Subscriber represents that it has, and warrants that it shall maintain, all rights as required to allow CimplyFive, its aAffiliates and its third-party service providers to compile, use, store, process, analyse, derive and retain Subscriber Data, including without limitation in combination with other CimplyFive customers’ data.
6.2. Subject to the limited rights expressly granted hereunder, CimplyFive shall retain all right, title and interest in and to the Services and all technology utilized by CimplyFive to provide the Services, including any and all patents, copyrights, trademarks, trade names, trade secrets and other intellectual property rights relating to, embodied by, or incorporated in any of the foregoing including any updates, upgrades, enhancements, modifications or improvements made to, or derivatives of, the Services. If the Subscriber provides CimplyFive with any feedback regarding any Services, CimplyFive may use all such feedback without restriction. No rights are granted to the Subscriber hereunder other than as expressly set forth herein.
7. CONFIDENTIALITY
7.1. The Parties shall endeavour to protect Confidential Information. In the context of the relationship under this Agreement, each party (“Disclosing Party”) may disclose to the other party (“Receiving Party”) certain confidential information that has been marked “confidential” or with words of similar meaning, at the time of disclosure by such party (“Confidential Information”). CimplyFive’s Confidential Information shall deem to include, without limitation, the pricing of Services, business proposals, technical documentation, integration methodologies, technical data, methods, processes, know-how and inventions. Confidential Information shall not include information that Receiving Party can show: (a) was already lawfully known to, or independently developed by, Receiving Party without access to, or use of, Confidential Information, (b) was received by Receiving Party from any third party without restrictions, (c) is publicly and generally available, free of confidentiality restrictions; or (d) is required to comply with an order of a judicial body, a court of competent jurisdiction or the rules of the stock exchange on which shares of the relevant Party are traded or other governmental or regulatory authority.
7.2. The Users and on their part, the Subscriber accepts and agrees that:
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- The registered User is free to choose a password of adequate strength as per the indicators reflected in the site. The user recognizes the need to maintain secrecy of the password. To enable this, the user is advised to avoid choosing a password that is a dictionary word or is guessable /inferable from his/her personal data such as name, date of birth, address, telephone number, driving license or vehicle number.
- CimplyFive pre-supposes and the same is acknowledged by the User that log-in using appropriate user-id and password is a valid session initiated by none other than the User to whom the said Username and password belongs. CimplyFive shall rely upon all electronic communication or messages received by CimplyFive through the internet and take it for granted that the originator of the communication is the user to whom the username and password is assigned.
- The User can access the software from anywhere, anytime. However, as a matter of precaution and safety, users should avoid using devices with public access.
- In the interest of data security, User is not permitted to retrieve a lost or forgotten password. In case the User forgets his/her password, they will have to reset their password in BLISS.
8. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
8.1. Each party represents and warrants that: (a) it is duly organized under Applicable Law and has sufficient authority to enter into this Agreement, (b) the person entering into this Agreement is authorized to sign this Agreement on behalf of such party and (c) the execution and performance under this Agreement does not conflict with any contractual obligations such party has to any third party.
8.2. The Subscriber represents and warrants that : (a) all information which has been given by the Subscriber or on behalf of the Subscriber to CimplyFive with respect to the Subscriber is true, accurate and complete in all respects, (b) it shall maintain, all rights, privileges and licenses as required to allow CimplyFive, its affiliates and its third-party service providers to compile, use, store, process, analyse, derive and retain the Subscriber Data, (c) it has obtained all governmental authorizations, consents and approvals and corporate approval, and other consents as required under Applicable Law for the execution and performance of this Agreement have been obtained, and continue in force, (d) it shall pay the charges set out under applicable Order Form in a timely manner and in accordance with the terms of this Agreement, (e) it has reviewed the Services of CimplyFive and that it’s purchase and use of the Services shall not be in breach of Applicable Laws, (f) it is duly authorised to conduct its business under Applicable Laws, (g) the execution, delivery and performance of this Agreement by the Subscriber shall not (i) violate or conflict with its organizational or constitutional documents, and (ii) constitute a violation of Applicable Law, (h) there are no legal, quasi-legal, administrative or other proceedings, claims, actions or governmental investigations of any nature pending against the Subscriber, or to which the Subscriber’s assets or properties are subject, and the Subscriber has not received any notice or intimation of any such proceeding, claim, action or governmental investigation against it, in each case, which relates in any manner to this Agreement or which could otherwise adversely impact its ability to undertake its obligations under this Agreement, and (i) the Subscriber has not and nor any Associated Persons or former Associated Persons has, directly or indirectly:
- violated or is in violation of Money Laundering Laws, Anti-Bribery Laws, or rules, regulations, guidelines of the OFAC (“OFAC Regulations”) and other applicable anti-corruption Laws; or
- made, offered or promised to make, or authorized the payment or giving of money, or anything else of value, to any (i) executive, official, employee or person acting in an official capacity for or on behalf of a government department, government agency or a government-controlled entity or a public international organization (e.g., the International Monetary Fund or the World Bank), or (ii) political party or official thereof, or candidate for political office (each of the foregoing a “Government Official”), or (iii) any other person, while knowing that all or some portion of the money or value will be offered, given or promised to a government official for the purposes of obtaining or retaining business or securing any improper advantage or in other circumstances when such offer, payment or promise would be unlawful; or been subject to any investigation by any Governmental Authorities or regulators with regard to any actual or alleged breach of any relevant anti-corruption law.
Provided that in the case of former Associated Persons such action took place whilst the former Associated Person was an Associated Person.
8.3. Neither the Subscriber nor any of its current or former Associated Persons is or has been the subject of any investigation, inquiry or litigation, administrative or enforcement proceedings by any Governmental Authority or any customer regarding any offence or alleged offence under Anti-Bribery Laws or Money Laundering Laws, and no notice has been received that such investigation, inquiry or proceedings have been threatened or are pending, and there are no circumstances likely to give rise to any such investigation, inquiry or proceedings.
8.4. The Subscriber is not (i) currently identified on the Specially Designated Nationals and Blocked Persons List maintained by the OFAC and/or on any other similar list maintained by OFAC or any other U.S. governmental agency pursuant to any authorising statute, executive order or regulation; and (ii) a Person with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or executive order of the President of the United States.
For the purposes of this Agreement.
a. “Anti-Bribery Law” means the Indian Prevention of Corruption Act 1988, the US Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010, and shall include any Applicable Laws that relate to the bribery or corruption, in each case as amended, re-enacted or replaced from time to time;
b. “Associated Person” means a Person (including any director, officer, employee, agent or other intermediary) who performs services for or on behalf of that Person or who holds shares of capital stock, partnership interests, limited liability company membership interests and units, shares, interest and other participations in that Person (in each case when performing such services or acting in such capacity);
c. “Money Laundering Law” means the Indian Prevention of Money Laundering Act, 2002 and all applicable anti-money laundering statutes of all jurisdictions, including, without limitation, Indian and U.S. anti-money laundering laws, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental or regulatory agency; and
d. “OFAC” means the Office of Foreign Assets Control of the Department of the Treasury of the United States of America.
8.5. The Subscriber has not nor had any affiliate or their respective directors, officers, managers, employees, its independent contractors, representatives or agents violated the provisions of the Foreign Corrupt Practices Act, 1977 (“FCPA”), the U.K. Bribery Act or Prevention of Corruption Act, 1988 (“PCA”) or any other applicable anti-bribery or anti-corruption law. None of the any of their directors, officers, employees and its agents or representative has, in any way in relation to the Subscriber or any of the Subscriber’s subsidiaries or controlled affiliates, (a) have offered, promised, made, paid or received or will offer, promise, make, pay or receive any bribe, kickback or other similar payment or transfer of value for the benefit of any person in connection with obtaining or retaining business or to secure an improper advantage (including, but not limited to, with respect to its respective capital contributions, including additional contributions and funding and in-kind capital contributions) or any other party hereto; (b) have authorized, induced, or caused or will authorize, induce, or cause any person to offer, promise, make, pay or receive any such payment or transfer of value in connection with obtaining or retaining business or to secure an improper advantage (including, but not limited to, with respect to its respective capital contributions, including additional contributions and funding and in-kind capital contributions) or any other party hereto; or (c) possess knowledge or reason to know that any such payment or transfer of value has occurred or will occur in connection with obtaining or retaining business or to secure an improper advantage (including, but not limited to, with respect to its respective capital contributions, including additional contributions and funding and in-kind capital contributions).
8.6. Except as expressly provided herein, the Subscriber accepts the Services “as is” and acknowledges that CimplyFive makes no other warranty of any kind whether express, implied, statutory or otherwise, and disclaims all implied and statutory warranties, including, but not limited to, any implied warranty of merchantability, fitness for a particular purpose or non-infringement. CimplyFive further disclaims any warranty that the Services will meet the Subscriber’s needs or expectation, be error free, or that the operation of the Service will be uninterrupted, or the Service errors be corrected.
8.7. The Subscriber acknowledges and agrees that CimplyFive does not control the transfer of data over communications facilities, including the internet, and that the Services may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. CimplyFive shall not be responsible for any delays, delivery failures, or other damage resulting from such problems.
8.8. The parties agree that CimplyFive shall not be responsible for any issues related to the performance, operation or security of the Services that arise from Subscriber’s applications or third-party applications. Notwithstanding anything contained herein, parties agree that the Services may contain information and data sourced from third-party service providers and such information and data is the sole responsibility of the Person that makes it available. CimplyFive does not make any representation or warranty regarding the reliability, accuracy, completeness, authenticity, merchantability, non-infringement, correctness, or usefulness of the information and data, third-party applications or services, and disclaims all liabilities arising from or related to the information and data, third party applications or services.
8.9. For any breach of the services warranty, the Subscriber’s exclusive remedy and CimplyFive’s entire liability shall be the correction of the deficient services that caused the breach of warranty, or, if CimplyFive cannot substantially correct the deficiency in a commercially reasonable manner, customer may choose to end the deficient services.
9. INDEMNIFICATION
Notwithstanding anything contained in this Agreement, the Subscriber shall defend, indemnify and hold harmless CimplyFive (and its affiliates, officers, directors and employees) upon demand from and against any and all damages, actions, proceedings, claims, demands, costs, losses, liabilities, diminution in value, loss of earnings, profits and revenue, opportunity costs, expenses (including court costs and reasonable attorneys’ legal fees) in connection with, arising out of, or in relation to (i) breach or non-compliance of its obligations, consents, grants, undertakings, representations or warranties, and (ii) misrepresentation, negligence, fraud, wilful concealment and misconduct (iii) misuse of the Services and products of CimplyFive for any illegal or unauthorised purposes; (iv) any injuries to persons or damage to property, body, business character, reputation including theft, resulting from the acts or omissions of the Subscriber; (v) any claims by a third party on CimplyFive for the acts committed or omitted by the Subscriber; (vi) any violation of municipal, state or central laws governing the Services and products or their sale, that may result from such act or omission by the Subscriber.
10. LIMITATION OF LIABILITY
IN NO EVENT, CIMPLYFIVE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES OR AGENTS, SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, DATA, OR DATA USE, ARISING OUT OF, OR RELATING TO, THE SERVICES OR THE ARRANGEMENTS BETWEEN THE PARTIES. NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT, THE CUMULATIVE MAXIMUM LIABILITY OF CIMPLYFIVE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES OR AGENTS , WHETHER IN CONTRACT OR TORT OR DAMAGES OR INDEMNIFICATION CLAIMS OR NEGLIGENCE, BY STATUTE OR OTHERWISE, INCLUDING ARISING OUT OF THE WORK OR DELIVERABLES OR SERVICES COVERED BY THIS AGREEMENT, AND REGARDLESS OF THE THEORY OF LIABILITY, SHALL BE LIMITED TO PAYMENT OF INCURRED AND SUFFERED DIRECT DAMAGES ONLY AND SHALL IN NO EVENT EXCEED ONE YEAR’S ANNUAL SUBSCRIPTION CHARGES RECEIVED BY CIMPLYFIVE, FROM THE CUSTOMER.
11. TERM AND TERMINATION
11.1. Term: This Agreement commences on the date the Subscriber first accepts it and, unless terminated earlier in accordance with the terms of this Agreement, shall continue until all the Subscription Services hereunder have expired or the Services have been rendered.
11.2. Term of Subscriptions: The term of each subscription shall be as specified in the applicable Order Form (“Initial Term”). The subscriptions will automatically renew for additional periods equal to the expiring subscription term (“Renewal Term”), unless (a) a renewed Order Form is executed with revised terms and charges, or (b) either party notifies the other party, no less than thirty (30) days prior to the end of, the Initial Term or any Renewal Term, that it has elected not to renew the Order Form or the Agreement, or (c) CimplyFive intimates revision in the terms and charges post the Initial Term.
11.3. Termination: CimplyFive may terminate this Agreement (a) if the Subscriber commits a breach of any of the terms and conditions of this Agreement, which if capable of cure or remedy, is not cured or remedied by the Subscriber, within a period of thirty (30) days from the date of issue of notice by CimplyFive informing the Subscriber of such breach or (b) by providing thirty (30) days prior written notice to the Subscriber Non-payment of invoiced amount within the applicable due date shall constitute material breach of this Agreement. CimplyFive may terminate this Agreement forthwith in the event (a) CimplyFive or the Subscriber is restricted, prohibited or constrained under Applicable Law from continuing to provide or avail Services respectively, under this Agreement, (b) the Subscriber acts in violation of Applicable Law, (c) the Subscriber is adjudicated bankrupt, or if a receiver or a trustee is appointed for it or for a substantial portion of its assets, or if any assignment for the benefit of its creditors is made and such adjudication appointment or assignment is not set aside within 90 (ninety) days, or (d) liquidation proceedings are initiated either voluntarily or compulsorily against the Subscriber.
11.4. Effects of Termination: Upon any termination or expiration of this Agreement, CimplyFive will cease to provide the Services and all outstanding charges due under an Order Form shall be required to be paid immediately.
11.5. Subscriber agrees and consents that CimplyFive may refer to it as a customer of CimplyFive in its communications and marketing materials, including by displaying the Subscriber’s name and logo on CimplyFive’s website and other marketing materials.
12. GENERAL PROVISIONS
12.1. CimplyFive may use third-party service providers, including application service providers, hosting service providers and system integrators for rendering Services.
12.2. CimplyFive shall be excused from performance hereunder, without any liability, to the extent that performance is prevented, delayed or obstructed by circumstances beyond its reasonable control. Such circumstances may be including but not limited to an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure delay, Non-CimplyFive Application, denial of service attack, a virus attack on the Subscriber’s system leading to disruption, issues with File Transfer Protocol (FTP) access from the Subscriber’s system, emergency maintenance upgrades or government restrictions (including the denial or cancellation of any licenses).
12.3. CimplyFive shall have no responsibility or liability in relation to failure of any activity, if such activity may have been initiated by a third party or by the Subscriber itself, and that has failed or delayed on account of the process of authentication and acceptance of data by regulator’s system or otherwise, including but not limited to, failure or delay as a result of, network or connectivity failure, device or application failure, regulator’s system’s failure, possible down time at regulator’s system’s end or any other technical or non-technical error of any nature, whether foreseen or unforeseen at the time of entering into this Agreement.
12.4. The Subscriber agrees and undertakes that, during the Term and for a period of one year thereafter, it shall not, directly or indirectly, either individually or otherwise, solicit or induce, attempt to solicit or induce, divert, hire, retain (including as a consultant) any employee, officer, agent, director, contractor, business partner or such other persons of CimplyFive (“CimplyFive Personnel”) or any former CimplyFive Personnel engaged with CimplyFive in the preceding twelve months.
12.5. The Subscriber agrees and undertakes that, during the Term and for a period of one year thereafter, it shall not, directly or indirectly, either individually or otherwise, solicit or induce, attempt to solicit or induce, divert any customer of CimplyFive, for provision of services which are same, similar or competes with (whole or in part), the Services.
12.6. Modification/Deletion: CimplyFive shall have the right to use hardware, software and/ or such other equipment and modify the same as necessary or appropriate for the provision of services. The user may also be required to change/ upgrade their system to get the optimum performance and utilize all the features of the product subscribed.
CimplyFive reserves the right to modify, change and/or add any feature of the software and any of its services offered in line with changing regulations and/or technological developments and/or to improve user experience.
12.7. Planned Downtime: CimplyFive may shut down the Services to perform planned maintenance or to upgrade the Services. To the extent possible and reasonable, CimplyFive may provide at least 8 hours of notice for such downtime. For the avoidance of doubt, planned downtime will exclude any emergency maintenance undertaken by CimplyFive which shall be endeavoured to be undertaken during the non-business hours on weekdays or during weekends.
12.8. Anti-Corruption: The Subscriber agrees and confirms that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of CimplyFive in connection with this Agreement.
12.9. Entire Agreement and Order of Precedence: This Agreement along with the Order Forms represents the entire agreement between the parties regarding the subject matter hereof and supersedes any and all other agreements between the parties, whether written or oral, regarding the subject matter hereof. For clarity, the provisions of this Agreement supersede any earlier non-disclosure or confidentiality agreements, purchase orders or in any other Subscriber documentation (excluding Order Forms). In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement and (3) Terms of Use and Privacy Policy.
12.10. Relationship: The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.11. Waiver: No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
12.12. Severability: If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
12.13. Assignment: The Subscriber shall not assign any of its rights and obligations under this Agreement without the prior written consent of CimplyFive. CimplyFive may, in its sole and absolute discretion, assign, novate, transfer or otherwise dispose of any or all of its rights and obligations under this Agreement or any part thereof including but not limited to the right to payments, to any of its affiliates, successors, associates or any other third parties or Persons in order to exercise any of the rights or perform any of the obligations under this Agreement, and the Subscriber shall, at CimplyFive’s intimation, enter into an appropriate agreement with such affiliates, successors, associates or any other third parties or Persons in such form as CimplyFive may specify in order to enable CimplyFive to exercise its rights pursuant to this Clause. A change in the legal status of CimplyFive shall not affect the validity of this Agreement and this Agreement shall be binding on any successor to CimplyFive.
12.14. Governing Law and Jurisdiction: This Agreement shall be governed by and construed in accordance with the laws of India, without regard to conflict of law principles. The courts, tribunals, councils, forums and other dispute resolution bodies at New Delhi, India shall have the exclusive jurisdiction to adjudicate upon any or all disputes arising out of or in connection with this Agreement.
Notice: The Subscriber shall direct notices under this Agreement to the following address.
Attn: Legal Department, CimplyFive Corporate Secretarial Services Private Limited,
Registered office: First Floor, 23, 24 AMR Tech Park, Block 1, Hosur Main Road, Bengaluru (Bangalore) Urban Bengaluru – 560068, Karnataka
Corporate Office: First Floor, 23, 24 AMR Tech Park, Block 1, Hosur Main Road, Bengaluru (Bangalore) Urban Bengaluru – 560068, Karnataka
12.15. Survival: Clause 1 (Definitions), Clause 5 (Charges and Payment), Clause 6 (Proprietary Rights), Clause 8 (Representations, Warranties and Disclaimers), Clause 9 (Indemnification), Clause 10 (Limitation of Liability), Clause 11 (Term and Termination) and 12 (General Provisions) shall survive termination or expiration of this Agreement.