Updated version – September 2022
PLEASE READ THESE TERMS OF SERVICE CAREFULLY.
THESE TERMS OF SERVICE CONSTITUTE AN AGREEMENT (THIS “AGREEMENT”) BY AND BETWEEN DISTA TECHNOLOGY PVT. LTD., A COMPANY REGISTERED UNDER THE INDIAN COMPANIES ACT, 2013, WHOSE PRINCIPAL PLACE OF BUSINESS IS #601, GLOBAL PORT, HISSA NO. 1A/1, SURVEY NO. 45, BANER, PUNE 411045, MAHARASHTRA, INDIA (“DISTA”) AND THE CORPORATION, LLC, PARTNERSHIP, SOLE PROPRIETORSHIP, OR ANY OTHER BUSINESS ENTITY EXECUTING THIS AGREEMENT OR ANY ORDER (“CUSTOMER”). THIS AGREEMENT IS EFFECTIVE AS OF THE DATE CUSTOMER STARTS USING THE SYSTEM (THE “EFFECTIVE DATE”). CUSTOMER’S USE OF AND DISTA’S PROVISION OF DISTA’S SYSTEM AND DISTA SOFTWARE (AS DEFINED BELOW) ARE GOVERNED BY THIS AGREEMENT.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON CUSTOMER’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS.
i) “AUP” means Dista’s acceptable use policy as specified in Section 5 (i) of this Agreement.
ii) “Cloud Hosting” means the provision of products and services by a third party, in a hosted, virtualized environment, accessible via the internet, utilized by Dista to provide Customer access to the System.
iii) “Custom Component(s)” means the customization made to the Dista Software, either subject to payment of one-time Customization Fees by the Customer or offered as part of a subscription to the System, without payment of any additional charge.
iv) “Customer Data” means data in electronic form input or collected through the System by or from Customer, including without limitation by Customer’s Users but does not include Content.
v) “Customization Fees” shall mean the one-time customization fees, for creating of Custom Component, paid by the Customer to Dista and as more particularly specified under the Order.
vi) “Documentation” means the written materials relating to the operation and use of Dista Software, user manuals, user guides, technical manuals, release notes, and online help files regarding use of Dista Software provided as part of the System, and any other materials prepared in connection with any Dista Software modification, correction, or enhancement, and shall include any updated versions of Documentation as may be provided by Dista from time to time.
vii) “Electronic Communications” shall mean any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically to or from the System.
viii) “Order” means an order or SOW for subscription to the System, executed between the Customer and Dista or a Reseller of Dista.
ix) “Reseller” shall mean an authorised reseller of the System.
x) “Subscription Fees” means the fees payable by the Customer to Dista or the applicable Reseller, as the case may be, for a subscription to the System, as further described under the Order.
xi) “System” means Dista Software and Custom Component , along with support and maintenance services thereto, provided by Dista, by way of Cloud Hosting and subscribed by the Customer, upon payment of Subscription Fees.
xii) “SLA” means Dista’s service level agreement, if specified in the Order.
xiii) “User” means any individual who is authorized to use the System and has been supplied user identifications and passwords by Customer or on Customer’s behalf.
2. THE SYSTEM
i) Use of the System. During the Term, Customer may access and use the System pursuant to the terms of any outstanding Order.
ii) Service Levels. The System shall function in accordance with the SLA, if provided in the Order.
iii) System Extensions or Updates. Customer agrees that, unless explicitly stated otherwise, any new features that augment or enhance the System, and or any new service subsequently purchased by Customer pursuant to an amendment accepted by Dista referencing this Agreement will be subject to this Agreement.
3. TERM, SUBSCRIPTION FEE, PAYMENT
i) Term. The term of this Agreement (the “Term”) will commence on the Effective Date and continue for the period set forth in the Order.
ii) Subscription Fees. The Customer shall pay, the Subscription Fees and applicable Customization Fees (hereinafter, collectively referred to as the “Fees”) set forth in each Order for each Term as per the payment terms mentioned in the Order, for the use of the System.
4. LICENSE, RESTRICTIONS
i) License. Subject to the terms and conditions of this Agreement, Dista grants to Customer, during the Term, a non-transferable, non-exclusive, non-sublicensable license (“License”) to and permit Users to (i) use the System thereof as well as any Custom Component, (ii) display and print Customer Data, and (iii) use the Documentation solely in connection with the System, for Customer’s own internal business operations.
ii) Restrictions. Customer acknowledges and agrees that the License is granted subject to the following:
a) Customer shall not license, sub-license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make the System or the Documentation available to any third party (except as otherwise authorized) and not create Internet “links” to the System or “frame” or “mirror” any part of the System, including any content contained in the System, on any other server or device;
b) Customer shall not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the System, including without limitation, the Dista Software or Custom Components and or Documentation that are provided as a part thereof, or access the System or Documentation in order to build a similar or competitive product or service; and
c) This Agreement is not a sale and does not convey any rights of ownership in or related to the System, any base component or Custom Component, or Documentation to Customer.
5. CUSTOMER’S RESPONSIBILITIES
i) Acceptable Use Policy (“AUP”). The Customer shall comply with the AUP. Customer shall not:
a) use the System for time-sharing purposes or in any other way allow third parties to exploit the System;
b) share System passwords or other log-in information;
c) share nonpublic System features or content with any third party;
d) access the System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System; or
e) engage in web scraping or data scraping on or related to the System, including without limitation collection of information through any software that simulates human activity or any bot or web crawler.
ii) Neither this Agreement nor the AUP requires that Dista take any action against Customer or any User or other third party for violating the AUP, Section 5 (i), or this Agreement, but Dista is free to take any such action it sees fit.
iii) Unauthorized Access. The Customer shall take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. Customer acknowledges and agrees that Customer is prohibited from sharing passwords and or user names with unauthorized users. Customers will be responsible for the confidentiality and use of Customer’s (including its Users’) passwords and usernames. Customers will also be responsible for all Electronic Communications, including those containing Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the System or under Customer’s administrative account. Customer agrees to notify Dista if Customer becomes aware of any loss or theft or unauthorized use of any of Customer’s passwords, user names, and/or account number. In the event that it suspects any breach of the requirements of this Section 5 (ii), including without limitation by Users, Dista may suspend Customer’s access to the System without prior notice, in addition to such other remedies at law or equity, as Dista may have.
iv) Compliance with Laws. In its use of the System, Customer shall comply with all applicable laws, including, without limitation, those related to data privacy, international communications, and the exportation of technical or personal data and other laws applicable to the protection of Customer Data.
v) Users & System Access. Customer will ensure that the use of the System by Users is in accordance with the terms of this Agreement
vi) Transmission of Data. Customer acknowledges and understands that Customer’s Electronic Communications will involve transmission over the internet, including by Cloud Hosting and over various networks, only part of which may be owned and/or operated by Dista.
6. CUSTOMER DATA & PRIVACY
iii) Content. Dista does not acquire any right, title and/or interest in the content material (including but not limited to text, Customer-provided software, scripts, trademarks, logos, HTML coding, domain names, links, graphics, audio, video, and any data) that Customer makes available for use by Users by means of the System (collectively “Content”). Customers are solely responsible for all Content . Customer authorizes Dista to publish Content to provide services under this Agreement. Dista shall not, intentionally (i) access Content or (ii) disclose Content to any third party, except to the extent as necessary for Dista to provide, or obtain third-party supplier (e.g. Google Cloud Platform) support for the Systems or to provide information requested by Customer subject that no personal information would be shared by Dista.
iv) Cloud Hosting Terms. Dista uses Google Cloud Platform to provide Cloud Hosting services and to that extent the services are subject to the Google Cloud Hosting terms and conditions provided at https://cloud.google.com/terms. In case of any unauthorized exposure or disclosure of Customer Data due to errors or actions of third parties or Cloud Hosting, Dista will provide commercially reasonable cooperation and assistance to Customer for seeking relevant remedies against such third parties or Cloud Hosting.
v) Data Accuracy. Dista will have no responsibility or liability for the accuracy of Content or Customer Data uploaded to the System by Customer, and Users provided by the Customer to Dista.
vi) Aggregate & Anonymized Data. Notwithstanding anything contained herein above Dista may use Customer Data on an aggregated or de-identified basis and any data pertaining to location tracking, for research, analysis, profiling, and similar purposes in its sole discretion, including for the development of the System.
7. PROPRIETARY RIGHTS
i) IP Rights to the System. Dista retains all right, title, and interest in and to the Systems and Custom Component, including without limitation all software used to provide the Systems and Custom Component and all graphics, user interfaces, logos, and trademarks reproduced through the Systems. The Customer recognizes that the System and Custom Component are protected by copyright and other laws, and except where expressly provided otherwise by Dista, nothing in the System, the Custom Component, the Documentation, or the Agreement shall be construed to confer any license or rights to any of Dista’s intellectual property rights, whether by estoppel, implication, or otherwise.
ii) Customer acknowledges and agrees that Dista shall own all right, title and interest in and to all intellectual property rights in the System and the Documentation and any suggestions, enhancement requests, feedback, or recommendations provided by Customer or its Users relating to the System or the Documentation (“Feedback”), including all unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, know-how and other trade secret rights, and all other intellectual property rights, derivatives or improvements thereof.
iii) Customer acknowledges and agrees that it does not acquire any rights in the System or Documentation, express or implied, other than those expressly granted in this Agreement and all rights not expressly granted to Customer are reserved by Dista.
iv) Customer shall own all rights, title and interest in and to all intellectual property rights in the Content. Where necessary, for the purposes of providing subscription to the System or creation of Custom Component, as the case may be, Customer grants Dista a license to use such Content.
8. SUSPENSION, TERMINATION
i) Suspension for Delinquent Account. Dista reserves the right to suspend Customer’s access and/or use of the System for any Customer account for which any payment of Subscription Fees or Customization Cost is due but remains unpaid after fifteen (15) day’s written notice of such delinquency. Customer agrees that Dista shall not be liable to Customer, or to any third party, for any suspension of the System resulting from Customer’s non-payment of the Fees as described in Section 3.
ii) Termination by the Parties. Either Party may terminate this Agreement, without cause, by giving the other Party, thirty (30) days’ advance written notice of such termination;
iii) Termination by either Party for Cause. Either Party may terminate this Agreement, for the other Party’s material breach by: (a) giving the other Party thirty (30) days’ written notice, specifying in detail the nature of the breach, if the breach is capable of being cured; or (b) effective immediately if the breach is not capable of being cured.
iv) Effects of Termination.
a) Upon termination of this Agreement, the Customer shall cease use of the System and delete, destroy, or return all copies of the Documentation in its possession or control.
b) The Parties agree that in the event the Agreement is terminated by the Customer under Section 8 (ii) or by Dista under Section 8 (iii), the Customer shall be liable to pay the entire Fees under the Agreement.
c) In the event the Agreement is terminated by Dista under Section 8 (ii) or by the Customer under Section 8 (iii), the Customer shall be liable to pay the Fees, until the effective date of termination of the Agreement.
9. CONFIDENTIAL INFORMATION
i) Confidential Information. Each Party may have access to information that is confidential to the other Party (“Confidential Information”). For purposes of this Agreement, Confidential Information shall include any information that is clearly identified in writing at the time of disclosure as confidential as well as any information that, based on the circumstances under which it was disclosed, a reasonable person would believe it to be confidential. Customer’s Confidential Information shall include Customer Data, Content. A Party’s Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the other Party; (ii) was in the other Party’s lawful possession prior to the disclosure without any obligation of confidentiality and had not been obtained by the other Party either directly or indirectly from the disclosing Party; (iii) is lawfully disclosed to the other Party by a third party without restriction on disclosure; (iv) is independently developed by the other Party without use of or reference to the other Party’s Confidential Information, as established by written records.
ii) Nondisclosure. The parties agree to use commercially reasonable efforts not to make each other’s Confidential Information available in any form to any third party. Notwithstanding the foregoing, Customer acknowledges and agrees that Dista may disclose Customer’s Confidential Information to its third-party service providers solely to the extent necessary to provide the System. This Section 9 will not be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required by law or valid order of a court or other governmental authority; provided, however, that a Party who has been subpoenaed or otherwise compelled by a valid law or court order to disclose Confidential Information (the “Responding Party”) shall first have given sufficient and prompt written notice to the other Party of the receipt of any subpoena or other request for such disclosure, so as to permit such Party an opportunity to obtain a protective order or take other appropriate action. The Responding Party will cooperate in the other Party’s efforts to obtain a protective order or other reasonable assurance that confidential treatment will be afforded the Confidential Information. If the Responding Party is compelled as a matter of law to disclose the Confidential Information, it may disclose to the Party compelling the disclosure only that part of the Confidential Information as is required by law to be disclosed.
iii) Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Dista will retain all right, title, and interest in and to all Confidential Information which is owned by Dista.
10. REPRESENTATIONS & WARRANTIES
Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; and (c) it is either a corporation or the sole proprietorship of an individual of 18 years or older, or another entity authorized to do business pursuant to applicable law; and (iv) the Customer holds all rights, title and interest, including intellectual property rights, in and to the Content and any use or incorporation by Dista of such Content shall not infringe the rights of any third parties.
11. WARRANTY DISCLAIMERS
EXCEPT AS OTHERWISE PROVIDED EXPRESSLY UNDER THIS AGREEMENT, CUSTOMER ACCEPTS THE SYSTEM AND CUSTOM COMPONENT “AS IS” AND AS AVAILABLE, WITHOUT, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (i) DISTA DOES NOT REPRESENT OR WARRANT THAT: (i) THE SYSTEM OR CUSTOM COMPONENT WILL PERFORM WITHOUT INTERRUPTION OR ERROR; (ii) THE SYSTEM OR CUSTOM COMPONENT IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE; (iii) THE CLOUD HOSTING THAT MAKES THE SYSTEM AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR NON-INFRINGING OR WILL FUNCTION IN ACCORDANCE WITH ANY SLAs OR UPTIMES OF DISTA, SET OUT UNDER THE ORDER.
i) Each Party shall defend, indemnify, and hold harmless, the other Party, its officers, directors and employees, (collectively, the “Indemnified Parties”), from and against any direct claim, suit, or proceeding, by a third party, arising out of:
a) unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data, by the Party;
b) gross negligence or wilful misconduct of the Party, resulting in bodily injury (including death) and damage to tangible property;
ii) Dista shall defend, indemnify, and hold harmless, the Customer, its officers, directors and employees, from and against any direct claim, suit, or proceeding, by a third party, arising out of infringement or misappropriation or violation of any patent, copyright, trade secret, or other intellectual property right by the System, or Custom Component provided that, Dista shall not be liable for any such claim of infringement of intellectual property right where the claim of infringement arises out of: (a) revisions to the System made without Dista’s written consent; (b) Customer’s failure to incorporate updates or upgrades that would have avoided the alleged infringement; (c) Dista’s design or modification to the System is in compliance with specifications, or arises out of any Content, provided by Customer; or (d) use of the System in combination with hardware or software not provided by Dista.
iii) In addition to the foregoing, the Customer shall defend, indemnify, and hold harmless, Dista, its officers, directors and employees, from and against any claim, suit, or proceeding, arising out of (i) breach of applicable laws; (ii) breach of any third party intellectual property rights; (iii) any gross negligence or willful misconduct of the Customer or its Users that would violate the AUP or the requirements of this Agreement applicable to Customer; and (iv) any use of the System through Customer’s account, whether authorized or unauthorized:
iv) The Party being indemnified (“Indemnified Party”) shall: (a) give the party indemnifying the Indemnified Party (“Indemnifying Party”) prompt written notice of the relevant claim; (b) provide the Indemnifying Party, at the Indemnifying Party’s expense, with reasonable information, assistance and cooperation in the defense of such claim; and (c) give the Indemnifying Party the right to control the defense and settlement of any such claim, except that the Indemnifying Party will not enter into any settlement that affects the Indemnified Party’s rights or interest without the indemnified Party’s prior written approval, which shall not be unreasonably withheld or delayed, and provided further that the Indemnified Party shall not be required to allow the Indemnifying Party to assume the control of the defense of a Claim to the extent that the Indemnified Party determines (i) any relief other than monetary damages is sought against Indemnifying Party.
13. LIMITATION OF LIABILITY
i) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF DISTA ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING ANY LICENSE, USE, OR OTHER EMPLOYMENT OF THE SYSTEM, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, TORT, OR OTHERWISE, EXCEED THE TOTAL SUBSCRIPTION FEES ACTUALLY PAID BY CUSTOMER IN THE THREE (3) MONTHS PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THERE SHALL BE ONLY ONE AGGREGATE LIABILITY CAP UNDER THIS AGREEMENT EVEN IF THERE ARE MULTIPLE CLAIMS; EACH CLAIM SHALL REDUCE THE AMOUNT AVAILABLE IN THE AGGREGATE LIABILITY CAP.
ii) Excluded Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING WITHOUT LIMITATION, INTERRUPTION OF BUSINESS, LOST PROFITS, LOST OR CORRUPTED DATA OR CONTENT, LOST REVENUE ARISING OUT OF THIS AGREEMENT (INCLUDING WITHOUT LIMITATION THE SERVICE, THE USE OF THE SERVICE OR THE INABILITY TO USE SERVICE), EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
i) Independent Contractors. The Parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
ii) Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be (i) delivered in person, (ii) sent by registered or certified mail return receipt requested, (iii) sent by overnight courier, or (iv) by email whose receipt is acknowledged by an officer of the receiving Party. Notices shall be considered to have been given at the time of actual delivery in person, five business days after posting if by mail, one business day if by overnight courier service, or upon receipt of machine confirmation of successful delivery by email as described herein. Any notice required to be sent to the Parties shall be addressed to the addresses mentioned in the Order.
iii) Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by hurricanes, earthquakes, epidemics, acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, acts of war, terrorism, acts of governments, changes in laws or other causes beyond the performing party’s reasonable control. The affected party shall provide prompt notice if a Force Majeure event causes it to be unable to perform any obligation. Performance shall be promptly resumed after the Force Majeure event has been remedied; otherwise, this Agreement may be terminated in accordance with provisions set forth herein.
iv) Assignment & Successors. The Customer may not assign this Agreement or any of its rights or obligations hereunder without Dista’s express written consent. Except to the extent forbidden in this Section 14 (iv), this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
v) Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any Section of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
vi) No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
vii) Publicity. On signing this Agreement, the Customer agrees to; (i) be included in the list of customers on Dista’s digital and physical media including website, social media posts, brochures by using Customer’s name, logo etc. (ii) allow a mutually agreed press release, and (iii) participate in a case-study or participate in public and speaking engagements in webinars and industry events at Customer’s discretion upon request provided, any publicity or marketing material to be used in the press release or the speaking engagements must be pre- approved by the Customer.
viii) Survival. The following provisions will survive termination or expiration of this Agreement Sections 7 (Proprietary Rights), 9 (Confidential Information), 11 (Warranty Disclaimers), 12 (Indemnification), and 13 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
ix) Choice of Law. This Agreement, and all disputes and claims arising under this Agreement, will be interpreted and governed by the laws of India, without regard to its conflict of laws principles, and the parties hereby consent to venue and to the exclusive jurisdiction of the courts at Mumbai.
x) Dispute Resolution. Any dispute arising out of or relating to this Agreement shall be referred to arbitration of a sole arbitrator, to be appointed by Dista. In the event that Dista fails to appoint an arbitrator through the mechanism stated herein above, then the Parties agree that the dispute shall be referred to and finally resolved by arbitration in accordance with the Arbitration Rules of the Mumbai Centre for International Arbitration (“MCIA”), which rules are deemed to be incorporated by reference in this Section. The Authority to appoint the arbitrator/(s) shall be the MCIA. The decision of the arbitral tribunal arbitrator shall be final, conclusive and binding on the Parties. The arbitration proceedings shall be conducted in the English language and shall take place at Mumbai, (India) in accordance with the Arbitration and Conciliation Act, 1996.
xii) Technology Export. The Customer shall not: (a) permit any third party to access or use the System in violation of any applicable U.S. law or regulation; or (b) export any software provided by Dista or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, the Customer shall not permit any third party to access or use the System in, or export such software to, a country subject to a United States embargo.
xiii) Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
xiv) Amendment. This Agreement may not be amended except through a written agreement by authorized representatives of each party.