Wattmonk online subscription agreement
This Wattmonk Online Subscription Agreement (hereinafter referred to as “Agreement”), effective as of the date acceptance of this agreement, is entered between the entity you represent, or, if you do not designate an entity in connection with the Subscription purchase or renewal, you individually (“Customer”, “you” or “your”) and Wattmonk Technologies Private Ltd, a company incorporated in India under the Companies Act 1956, bearing CIN U74999DL2019PTC351453 , having its principal place of business at PLOT NO. 103, 2ND FLOOR KEHAR SINGH ESTATE, WEST END MARG SAIDULAJAB South Delhi DL 110030 IN, hereinafter referred to as “Wattmonk”, “us”, “we” or “our” (which expression shall, unless repugnant to the context or meaning thereof, be deemed to mean and include its successors and assigns).
Wattmonk and the Customer are hereinafter individually referred to as a “Party” and collectively as the “Parties”.
Whereas, Wattmonk provides a subscription to it’s Service, Customer desires to subscribe to the Service, and this business relationship and the allocation of responsibilities regarding such Service are set forth in this Agreement. Therefore, the parties agree as follows:
A. Affiliates – This refers to individuals, organizations related to the organization in context (either Wattmonk or the Customer) by a relationship of agency, consultant, parent entity, subsidiary, sister concern (defined as an entity having the same parent entity as itself), partner, or any other strategic business relationship.
B. Authorized Party (Parties) – This refers to the person(s) authorized by the Customer to manage, oversee, administrate HR operations using Wattmonk’s Service. Such persons’ details must be captured in Wattmonk’s software.
C. Confidential Information – This refers to Customer Data, Customer Transaction Data, and any other information identified as Confidential and disclosed by Customer in tangible (written, reports) or intangible form (verbally or visually).
D. Customer Data – This refers to all the data uploaded by the Customer into Wattmonk’s Service.
E. Customer Success Team – This refers to the team from Wattmonk responsible for advising, assisting Customer’s usage of Wattmonk’s Service and resolving any queries they may have during such usage.
F. Customer Transaction Data – This refers to the transactions conducted by the Customer using Wattmonk’s
G. Documentation – This refers to the documentation provided by Wattmonk for the specific purpose of learning to use Wattmonk’s Service.
H. Intellectual Property Rights – This refers to trademarks, trade secrets, patents, copyrights on copyrightable works including code, logos, designs, ideas, content among others.
I. Malicious Code – This refers to any code that attempts to or does cause undesired effects, security breaches or damage to the system/Service,
J. Service or Wattmonk’s Service – This refers to the software as a service (SaaS) offered by Wattmonk to the Customer as per the Order Form and any additional support provided by the Customer Success Team at Wattmonk.
K. SLA – This refers to the Service Level Agreement as defined in the Exhibit: Service Level Agreement.
1. Customer’s Use of the Service.
1.1. Provision of the Service: Wattmonk shall: (i) make the Service available in accordance with the Documentation and the SLA to Customer during the term pursuant to this Agreement; (ii) not use Customer Data except to provide the Service, or to prevent or address service or technical problems, in accordance with this Agreement and the Documentation, or in accordance with Customer’s instructions; and (iii) not disclose Customer Data to anyone other than Authorized Parties. In case of any deficiency, Wattmonk will provide service credits to Customer according to the Wattmonk SLA Service Credit Exhibit attached
2. Proprietary Rights
2.1. Ownership and Reservation of Rights to Wattmonk Intellectual Property. Wattmonk and its licensors own all right, title and interest in and to the Service, Documentation, and other Wattmonk Intellectual Property Rights. Subject to the limited rights expressly granted hereunder, Wattmonk reserves all rights, title and interest in and to the Service, and Documentation, including all related Intellectual Property Rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
2.2. License Grant: Wattmonk hereby grants Customer a non-exclusive, non-transferable, right to use the Service and Documentation, solely for the internal business purposes of Customer and Affiliates and solely during the Term, subject to the terms and conditions of this Agreement within scope of use defined in the relevant Order Merger, Demerger, Amalgamation, Acquisition: Where the Customer is merged or amalgamated or demerged under Companies Act, 2013 the license shall be transferred to the other entities as per order of National Company Law Tribunal or Courts, having jurisdiction without any transfer fee. In such a case, a one-time migration charge would be applicable for migrating all the relevant data into the new entity at a maximum charge equivalent to one month’s subscription cost plus applicable taxes. For any international license or rights transfers, the pricing is subject to change as per the norms of Wattmonk.
2.3. License Restrictions: Customer shall not (i) modify, copy or create any derivative works based on the Service or Documentation; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Service or Documentation available to any third party, other than to Authorized Parties as permitted herein; (iii) reverse engineer or decompile any portion of the Service or Documentation, including but not limited to, any software utilized by Wattmonk in the provision of the Service and Documentation, except to the extent required by Law; (iv) access the Service or Documentation in order to build any commercially available product or service; or (v) copy any features, functions, integrations, interfaces or graphics of the Service or Documentation.
2.4. Ownership of Customer Data: As between Wattmonk and Customer, Customer owns its Customer
2.5. Customer Input: Customer Input is defined as any information customer may have provided Wattmonk as an idea, feature request, enhancement or bug-fix on Wattmonk product offerings to Wattmonk. Wattmonk shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Service any Customer Input. Wattmonk shall have no obligation to make Customer Input an Customer shall have no obligation to provide Customer Input.
2.6. Statistical Data Use: Wattmonk has exclusive rights to use the statistical data derived from the operation of the Service, including, without limitation, the number of records in the Service, the number and types of transactions, configurations, and reports processed in the Service and the performance results for the Service (the “Aggregated Data”). Nothing herein shall be construed as prohibiting Wattmonk from utilizing the Aggregated Data for purposes of operating Wattmonk’s business, provided that Wattmonk’s use of Aggregated Data will not reveal the identity, whether directly or indirectly, of any individual or specific data entered by any individual into the Service. In no event does the Aggregated Data include any personally identifiable information or corporate identifiable information
3.1. Confidentiality: A party shall not disclose or use any Confidential Information of the other party except as reasonably necessary to perform its obligations or exercise its rights pursuant to this Agreement except with the other party’s prior written permission.
3.2. Protection: Each party agrees to protect the Confidential Information of the other party in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a reasonable standard of care.
3.3. Compelled Disclosure: A disclosure by one party of Confidential Information of the other party to the extent required by Law shall not be considered a breach of this Agreement, provided the party so compelled promptly provides the other party with prior notice of such compelled disclosure (to the extent legally permitted) and provides reasonable assistance, at the other party’s cost, if the other party wishes to contest the
3.4 Remedies: If a party discloses or uses (or threatens to disclose or use) any Confidential Information of the other party in breach of confidentiality protections hereunder, the other party shall have the right, in addition to any other remedies available, to injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies are inadequate.
3.5 Exclusions: 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 other party; (ii) was known to a party prior to its disclosure by the other party without breach of any obligation owed to the other party; (iii) was independently developed by a party without breach of any obligation owed to the other party; or (iv) is received from a third party without breach of any obligation owed to the other party (v) Information that disclosing party agrees in writing to be free of such restriction. Customer Data shall not be subject to the exclusions set forth in this Section.
4. Customer Data
4.1. Protection and Security: During the term of this Agreement, Wattmonk shall maintain a formal security program materially in accordance with industry standards that is designed to: (i) ensure the security and integrity of Customer Data; (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data. Such security program will conform to the Wattmonk Security Policy attached hereto. Wattmonk designs its Service to allow Customers to achieve differentiated configurations, enforce user access controls, and manage data categories that may be populated and/or made accessible on a country-by-country basis. Customer understands that its use of the Service and compliance with any terms hereunder does not constitute compliance with any Law. Customer understands that it has an independent duty to comply with any and all Laws applicable to it. Wattmonk shall obligate its personnel and any Affiliates entrusted with processing Customer Data to data protection, confidentiality and secrecy.
4.2 Unauthorized Disclosure: If either party believes that there has been a disclosure of Customer Data to anyone other than an Authorized Party or Wattmonk, such party must promptly notify the other party. Additionally, each party will reasonably assist the other party in remediating or mitigating any potential damage, including any notification which should be sent to individuals impacted or potentially impacted, or the provision of credit reporting services to such individuals. Each party shall bear the costs of such remediation or mitigation to the extent the breach or security incident was caused by it.
4.3 Damages: Wattmonk shall be liable for damages due to Unauthorized Disclosure or Customer Data breach only to the extent that it can be irrefutably proved to have been caused by Wattmonk or its Affiliates due to commission or omission of acts in handling such Customer Data. Wattmonk is not liable for any damages in case where the Customer Data breach occurred due to commission or omission of acts by the Customer, its employees, Affiliates or other individuals/entities with which it has business relationships. The maximum liability for such Customer Data breach is limited as per Section 8.1.
5.1. Invoices & Payment: Fees for the Service will be invoiced in accordance with the relevant Order Except as otherwise set forth in an Order Form, all fees due hereunder (except fees subject to good faith dispute) shall be due and payable within Thirty (30) days of invoice date. Except as otherwise stated in an Order Form, all fees are quoted and payable in Indian Rupees and are based on Service rights acquired and not actual usage. Customer shall provide Wattmonk with complete and accurate billing and contact information including a valid email address for receipt of invoices. Customer will make payments via Online Bank Transfer or Bank deposit or through payment gateway URL in the invoice. Wattmonk is not responsible and will not entertain physical collection of bank cheques or other financial payment instruments.
5.2. Non-cancelable & non-refundable: Except as specifically set forth to the contrary under Section 6.2 “Warranty Remedies”, Section 7.1 “Indemnification by Wattmonk”, Section 9.2 “Termination”, and under the SLA, all payment obligations under any and all Order Forms are non-cancelable, and all payments made are non-refundable. The license rights for the number of Employees set forth on any respective Order Form cannot be decreased during the Term.
5.3. Overdue Payments: Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at Wattmonk’s discretion, late charges at the rate of 1.5% of the outstanding balance per month compounded monthly, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date
5.4. Non-Payment and Suspension of Service: If Customer’s account is more than Sixty (60) days past due (except with respect to charges subject to a reasonable and good faith dispute), in addition to any other rights or remedies it may have under this Agreement or by law, Wattmonk reserves the right to suspend the Service upon thirty (30) days written notice, without liability to Customer, until such amounts are paid in
5.5. Taxes: Except as otherwise stated in an Order Form, with exception of Income Tax, Wattmonk’s fees do not include any direct or indirect local, state, central or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, excise, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its acquisitions hereunder, this Agreement, and the Service. For any tax exemptions that Customer enjoys as allowed by the prevailing local and central laws, Customer provides Wattmonk with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer has an obligation to withhold any amounts under any law, Customer shall provide a proof of payment of such amount within 30 days from the day of such
5.6. Employee Count Verification: Wattmonk’s Services may periodically confirm the number of Employee records on its hosted servers. Unless the applicable Order Form states a different schedule, Customer will annually report to Wattmonk and pay subscription fees for additional Employees pursuant to the terms of the applicable Order
6. Warranties & Disclaimers
6.1. Warranties: Each party warrants that it has the authority to enter into this Agreement and, in connection with its performance of this Agreement, shall comply with all Laws applicable to it related to data privacy, international communications and the transmission of technical or personal data. Wattmonk warrants that during the Term (i) the Service shall perform materially in accordance with the Documentation; and (ii) the functionality of the Service will not be materially decreased during the Term.(iii) the Services to be provided do not violate or infringe any Intellectual Property Rights of any person or entity; (iv) Wattmonk will provide the Services in accordance with all applicable laws, rules and regulations (v) in the event of interruption or technical issues with the Services to be provided hereunder this Agreement by Wattmonk, Wattmonk undertakes to use all reasonable endeavors to resolve such issues as per the timelines stipulated in Exhibit: Wattmonk Production Support Policy; (v) ensure that the Service does not contain any virus, spyware, phishing program, malware or similar malicious program (vi) ensure that any scheduled maintenance or other cause that renders the Services inoperative or inaccessible (within the limits set out herein under this Agreement) shall be notified to Customer according to the Exhibit: Service Level Agreement.
6.2. Warranty Remedies: As Customer’s exclusive remedy and Wattmonk’s sole liability for breach of the warranty set forth in Section 6.1, (a) Wattmonk shall correct the non-conforming Service at no additional charge to Customer, or (b) in the event Wattmonk is unable to correct such deficiencies after good-faith efforts, Wattmonk shall refund Customer amounts paid that are attributable to the defective Service from the date Wattmonk received such notice. To receive warranty remedies, Customer must promptly report deficiencies in writing to Wattmonk, but no later than thirty (30) days of the first date the deficiency is identified by Customer.
6.3. DISCLAIMER: EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Wattmonk MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE AND/OR RELATED DOCUMENTATION. Wattmonk DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED. THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CUSTOMER IN CONNECTION WITH THE PROVISION OF THE SERVICE
7. Mutual Indemnification
7.1 Indemnification by Wattmonk: Wattmonk shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable attorneys’ fees) in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Customer by a third party alleging that the use of the Service as contemplated hereunder infringes a copyright, a patent issued as of the Effective Date, or a trademark of a third party; provided, however, that Customer: (a) promptly gives written notice of the Claim to Wattmonk; (b) gives Wattmonk sole control of the defense and settlement of the Claim (provided that Wattmonk may not settle any Claim unless it unconditionally releases Customer of all liability); and (c) provides to Wattmonk, at Wattmonk’s cost, all reasonable assistance. Wattmonk shall not be required to indemnify Customer in the event of: (i) modification of the Service by Customer, its Employees, or Authorized Parties in conflict with Customer’s obligations or as a result of any prohibited activity as set forth herein; (ii) use of the Service in a manner inconsistent with the Documentation; (iii) use of the Service in combination with any other product or service not provided by Wattmonk; or (iv) use of the Service in a manner not otherwise contemplated by this Agreement. If Customer is enjoined from using the Service or Wattmonk reasonably believes it will be enjoined, Wattmonk shall have the right, at its sole option, to obtain for Customer the right to continue use of the Service or to replace or modify the Service so that it is no longer infringing. If neither of the foregoing options is reasonably available to Wattmonk, then use of the Service may be terminated at the option of Wattmonk and Wattmonk’s sole obligation shall be to refund any prepaid fees for the Service that were to be provided after the effective date of termination.
7.2 Indemnification by Customer: To the extent permitted by law, Customer shall defend, indemnify and hold Wattmonk harmless from any Claims made or brought by a third party alleging that the Customer Data infringes the rights of, or has caused harm to, a third party or violates any Law; provided, however, that Wattmonk: (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless it unconditionally releases Wattmonk of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable
8. Limitation of Liability
8.1 Limitation of Liability: TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT WITH RESPECT TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS AND/OR CUSTOMER’S PAYMENT OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY’S (OR Wattmonk’S THIRD PARTY LICENSORS’) AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID BY CUSTOMER IN CONSIDERATION FOR Wattmonk’S SERVICE DELIVERY DURING THE MONTH FROM WHICH THE CLAIM AROSE.
8.2 Exclusion of Damages: EXCEPT WITH RESPECT TO CUSTOMER’S PAYMENT OBLIGATIONS, STATUTORY DAMAGES FOR A PARTY’S MISUSE OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, AND/OR IN CONNECTION WITH A PARTY’S OBLIGATION TO INDEMNIFY AS SET FORTH IN SECTION 7, ABOVE, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
9. Term & Termination
9.1 Term of Agreement: The term of this Agreement commences on the Effective Date and continues until the stated term in all Order Forms has expired or has otherwise been terminated, unless otherwise extended pursuant to the written agreement of the parties. Subscriptions to the Service commence on the date, and are for a period, as set forth in the applicable Order Form.
9.2 Either party may terminate this Agreement: (i) upon thirty (30) days prior written notice to the other party of a material breach by the other party if such breach remains uncured at the expiration of such notice period; (ii) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In the event the Agreement is terminated, all Order Forms are simultaneously terminated. (iii) for convenience upon sixty (60) days notice to the other party. Upon any termination by Customer pursuant to this section, Wattmonk shall refund Customer any prepaid fees for the affected Service that were to be provided after the effective date of termination.
9.3 Effect of Termination: Upon any termination of this Agreement, Customer shall, as of the date of such termination, immediately cease accessing and otherwise utilizing the applicable Service (except as permitted under the section entitled “Retrieval of Customer Data”) and Wattmonk Confidential Information. Termination for any reason shall not relieve Customer of the obligation to pay any fees accrued or due and payable to Wattmonk prior to the effective date of termination and termination for any reason other than for uncured material breach by Wattmonk shall not relieve Customer of the obligation to pay all future amounts due under all order forms. Upon termination for cause by Wattmonk, all future amounts due under all Order Forms shall be accelerated and become due and payable
9.4 Retrieval of Customer Data: Upon request by Customer made within thirty (30) days after any expiration or termination of this Agreement, Wattmonk will make Customer Data available to Customer through the Service on a limited basis solely for purposes of Customer retrieving Customer Data for a period of up to thirty (30) day after such request is received by Wattmonk. After such thirty (30) day period, Wattmonk will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data. Additionally, during the Term of the Agreement, Customers can extract data using Wattmonk’s standard web services. If Customer requires Wattmonk’s assistance, Customer may acquire Wattmonk professional services at Wattmonk’s then-current billing rates pursuant to a separately executed Statement of Work and Professional Services Agreement. Customer will determine the scope of the professional services engaged to extract data from the Wattmonk system and as such may increase or decrease Wattmonk’s professional services involvement in order to control costs.
9.5 Transition Period before Final Termination: Upon any termination of the Agreement, Wattmonk shall, upon Customer’s request, continue to provide the Service to Customer (except where Wattmonk is enjoined) pursuant to the terms of this Agreement for a transitional period of up to three (3) months (the “Transition Period”). Access to the Service during the Transition Period will be subject to the fees set out in the applicable Order Form, prorated on a monthly basis and payable in advance, based on the annual fees charged to Customer for the Service during the twelve-month period immediately preceding the termination date. During the Transition Period, Wattmonk will provide cooperation and assistance as Customer may reasonably request to support an orderly transition to another provider of similar software, services, or to Customer’s internal operations. Such cooperation and assistance will be limited to consulting regarding the Wattmonk Service and will be subject to a fee based on Wattmonk’s then-current rates for consulting services and such services will be set out in a statement of work to a professional services agreement between the parties. Notwithstanding the foregoing, in the event of termination of this Agreement by Wattmonk for breach by Customer, Wattmonk may withhold the provision of transition Services and condition further performance upon (i) payment of undisputed fees then owed, (ii) prepayment of fees for further services, and (iii) receipt by Wattmonk of an officer’s certificate from Customer certifying ongoing compliance with the terms of this Agreement during the Transition Period. If the Transition period is utilized, the data retrieval period in Section 9.5 begins after the end of the Transition Period.
9.6 Surviving Provisions: The following provisions of this Agreement shall not survive and will have no further force or effect following any termination or expiration of this Agreement: (i) subsection (i) of Section 1.1 “Provision of the Service”; (ii) Section 2.2 “License Grant”; and (iii) any Order Form(s). All other provisions of this Agreement shall survive any termination or expiration of this
EXHIBIT: SERVICE LEVEL
Wattmonk’s Software as a Service is based on a multi-tenanted operating model that applies common, consistent management practices for all customers using the service. This common operating model allows Wattmonk to provide the high level of service reflected in our business agreement. The terms defined under refects the Service Level Agreement(SLA) for Wattmonk's Software as a Service
Wattmonk provides a 24 x 7 service to its Customers, which is about 720 hours of service per month on average (assuming 30 days in a month). Wattmonk commits to provide Service Availability defined as the Software as a Service being available for 99.5% of the time during each calendar month, excluding regularly scheduled maintenance times. Any unavailability of Service beyond this is referred to as Unplanned Outage. This means that Allowable Limit on Unplanned Outage (defined below) shall be than 3 hours 36 minutes per month.
Currently, planned Maintenance is two (2) hours for weekly maintenance, four (4) hours for monthly maintenance, six (6) hours for quarterly maintenance.
a) Wattmonk’s current weekly maintenance begins at 10pm (IST) on Saturdays where there is potential for any disruption of services or on Thursday at 10:00 PM (IST) when there is no disruption of service
b) Monthly maintenance begins at 2:00 am (IST) on Saturday;
c) Quarterly maintenance begins at 6:00am (IST) on
10. General Provisions
10.1. Relationship of the Parties: The parties are independent contractors. This Agreement does not create nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to this
10.2. Notices: All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) registered post. Notices to Wattmonk shall be addressed to the attention of its Vice President, Legal. Notices to Customer shall be addressed to Customer’s signatory of this Agreement. Each party may modify its recipient of notices by providing notice pursuant to this
10.3. Waiver and Cumulative Remedies: No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right or any other right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in
10.4. Force Majeure. Neither party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that party’s reasonable control (including Wattmonk’s compliance with its obligations pursuant to Section 4.1) and occurring without that party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving Wattmonk or Customer employees, respectively), or, where Wattmonk is in compliance with its obligations under this Agreement, computer attacks or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
10.5. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms) without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets provided the assignee has agreed to be bound by all of the terms of this Agreement and all past due fees are paid in full, except that Customer shall have no right to assign this Agreement to a direct Competitor of Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.6. Governing Law. This Agreement shall be exclusively governed and construed in accordance with the laws of The courts at Hyderabad shall have exclusive jurisdiction over any of the disputes arising out of or in connection with this Agreement.
10.7. Dispute Resolution: Prior to initiation of any legal proceeding other than one for equitable relief as described in subsection
(d) below, the parties shall first attempt to resolve their dispute informally, as follows:
(a) Within ten (10) days following the written request of a party, designated individual(s) from Wattmonk and Customer shall meet to resolve such
(b) The representatives referred to in paragraph (a) shall meet as often as the parties reasonably deem necessary in order to gather and furnish to the other all information with respect to the matter in issue which the parties believe to be appropriate and germane in connection with its resolution. The representatives shall discuss the problem and negotiate in good faith in an effort to resolve the dispute without the necessity of formal legal proceedings. The specified format for the discussions will be left to the discretion of the designated representatives, but may include the preparation of agreed upon statements of fact or written statements of
(c) If the representatives referred to in paragraph (a) above are unable to resolve the dispute within thirty (30) days after the dispute is escalated to them, then either Party may escalate the dispute to the CEO of Wattmonk and CEO of the customer, for their review and
(d) The provisions of this Section 10.7 shall not be construed to prevent a party from instituting, and a party is authorized to institute, judicial or other proceedings either to (i) seek injunctive relief or (ii) avoid the expiration of any applicable legal or contractual limitations
(e) Each of the parties agrees to continue performing its obligations under this Agreement and all related agreements while any dispute is being resolved except to the extent that the issue in dispute precludes performance (a dispute over payment shall not be deemed to preclude performance). Failure to pay undisputed invoices is not a dispute and Wattmonk is entitled to exercise its contractual remedies in the event of such failures.
(f) Where parties fail to resolve this disputes as per aforesaid clauses, the dispute shall be settled through arbitration under Arbitration and Conciliation Act, 1996 (as amended from time to time). The place of arbitration shall be Hyderabad and arbitration shall be in English. The Arbitral Award shall be final and binding on both parties
10.8. Miscellaneous. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties with respect to the subject matter hereof. In the event of a conflict, the provisions of an Order Form shall take precedence over provisions of the body of this Agreement and over any other Exhibit or Attachment. This Agreement supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. Wattmonk may use Customer’s name and logo in lists of customers, on marketing materials and on its website. The parties hereby consent that the mutual acceptance of this agreement shall be legally binding.