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Master Services Agreement

This Master Services Agreement (“Agreement”) is entered into by and between Progressive Infotech Private Limited , A Company incorporated under the Companies Act, 1956 in India with its Regd. Office at Flat No. 6317, Sector C, Pocket 6&7, Vasant Kunj, New Delhi-110070 and Head Quarters at A26, Sector 83, NOIDA 201305, India Progressive Infotech Pvt Ltd and (“Customer”) shall individually be referred to as a “Party” and collectively as the “Parties.”

In consideration of the mutual representations, warranties, and covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

1. Definitions. The following terms shall be capitalized throughout this Agreement and shall be defined as follows:

  • a) Documentation. The term “Documentation” means any written or electronic materials and documents relating to the specifications, use, and/or operation of the Software that Company generally makes available to its customers.

  • b) Order Form. The term “Order Form” refers to the template identified as “Exhibit A” to this Agreement that shall be mutually agreed to by the Parties and contains additional terms that are incorporated by reference into this Agreement.

  • c) Seat. The term “Seat” means a unique login identification and password combination for accessing the Software and services. An individual Seat must be uniquely assigned to no more than one (1) Licensed User.

  • d) Software. The term “Software” refers to the software solutions licensed by Customer through Company as selected through an applicable Order Form to enable Customer to integrate artificial intelligence to address various task- automation requirements.

  • e )Third Party Applications. The term “Third Party Applications” refers to third party tools and SaaS services independently and separately purchased or licensed by Customer.

  • f) Updates. The term “Update” means bug fixes, patches, and maintenance releases.

2. Scope. Pursuant to this Agreement, Company shall license to Customer the Software and services pursuant to the terms of any mutually executed Order Form. The terms of any Order Form shall be incorporated by reference as though fully set forth herein. To the extent the Order Form provides conflicting terms to this Agreement, the terms of the Order Form shall prevail.

3. EULA. Company grants to Customer a non-transferable, non-assignable (except as otherwise stated in Section 19(d)), non- sublicensable, non-exclusive license to download, install and use the Software solely for Company’s internal business purposes on a per-Seat basis (“Licensed User”) per the quantities specified in the applicable Order Form. If Customer is an organization, company, entity, partnership or other non-natural person, Licensed Users are limited to employees of Customer. Company grants to Customer a non-transferable, non-assignable (except as otherwise stated in Section 19(d)), non-sublicensable, non-exclusive license to use any Documentation provided by or on behalf Company to facilitate the use of the Software for the purposes for which it is being provided. Customer acknowledges that it is obtaining only a limited right to access the Software and services and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to Customer under this Agreement or otherwise. Any and all rights not expressly granted herein by Company are reserved by Company.

4. Utilization. Unless otherwise specified in the Order Form, a separate Seat license must be purchased for each individual utilizing the Software. Seats are restricted for use by designated Licensed Users only and cannot be shared or used by more than one Licensed User. Company may reassign a Seat to a new Licensed User only in the event an assigned Licensed User is terminated or otherwise transferred and no longer requires access to a user account. If the number of Licensed Users that can access and use an individual Seat exceeds a one-to-one ratio or has the potential to exceed the one-to-one ratio, Customer shall be in breach of this Agreement and shall immediately cease such actions and/or license additional Seats of the Software to maintain the one-to-one ratio.

5. Right to Audit. Company reserves the right to periodically conduct audits of Customer’s use and installation records related to the Software to verify compliance with the terms of this Agreement. Company shall be given no less than thirty (30) days prior written notice of Company’s intent to conduct an audit. Audits will be conducted during Customer’s normal business hours and will occur no more than once in any twelve (12) month period. In the event an audit shows that Customer is using or accessing Software that is not licensed or is beyond the terms of this Agreement, Company shall have the right to immediately invoice Customer for the unauthorized use, including interest at the legally allowable rate, and the reasonable costs of the audit. If Customer fails to pay such invoice within 30 days of invoice, Company may terminate this Agreement in addition to all other remedies that may be available to it in law or in equity.

6. Third Party Applications. The Software enables Company to manage, communicate and automate processes in connection with Third Party Applications. Customer’s access to, and use of, the Software in connection with such Third Party Applications is contingent and dependent upon Customer having existing active accounts and/or licenses with applicable Third Party Applications. Company is not a party to such Third Party Application license terms and conditions and shall have no obligation or liability with respect to Customer’s access and use of such Third Party Applications’ services. Company shall not be liable for any losses or damages incurred as a result of Customer’s inability to access or use the Software due to the expiration or termination of, such Third Party Applications accounts and/or licenses.

7. Updates. Company may, in its sole discretion, make Updates to the Software at any time.

8. License Restrictions. Customer may not:

  • a) Use hardware or software to multiplex or pool connections, or otherwise allow multiple users or multiple devices to access or use the Software indirectly through a device.

  • b) Modify or create any derivative works based on the Software, including customization, translation, or localization; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code of the Software, or in any way ascertain, decipher, or obtain the communications protocols for accessing the Software, or the underlying ideas or algorithms of the Software (e.g., in an effort to develop other applications or services that provide similar or substitute or complimentary functionality to the Software), except where such activity is permitted by applicable law.

  • c) Redistribute, encumber, sell, rent, lease, sublicense, loan, assign, commercialize or otherwise transfer rights to the Software or make any similar commercial use of the Software, except where such activity is permitted by applicable law.

  • d) Use the Software on devices that are not under Customer’s exclusive control.

  • e) Remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Software.

  • f) Reproduce, republish, display, frame, download (except as expressly authorized herein), distribute, or transmit the Software.

  • g) copy, reproduce, reuse in another product or service, modify, alter, or display in any manner any Software or files, or parts thereof, included as part of the Software; or

  • h) Use the Software in an attempt to, or in conjunction with, any device, program or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction.

9. Company’ Intellectual Property. All right, title, and interest in the Software (and its component parts) and in any ideas, know-how, code, derivative works or intellectual property rights (i) associated therewith or (ii) which result from the provision of the Software and services, including without limitation any Updates, enhancements or modifications made to the Software shall at all times remain solely and exclusively the property of Company.

10. Promotion. Customer grants to Company a limited permission to use Customer’s name and logo and/or relevant trademarks to market and promote the Software and services. This includes the worldwide right to copy, translate, broadcast, transmit, distribute, exhibit, perform, publish and display the Customer’s name and logo as incorporated into Company’s marketing and promotional materials. Company is granted no other rights to the, and acknowledges that it shall not gain any proprietary interest in the, Company’s name and logo. Company shall be the exclusive owner of all right, title, and interest, including copyrights, in Company’s marketing and promotional materials. This permission may be terminated at any time by emailing Company at support@workelevate.com

11. Subscription Fees

  • a) Payment. Customer shall pay to Company the Subscription Fees pursuant to the payment terms set forth in the applicable Order Form.

  • b) Late Payments. Company may suspend or terminate services for payments that are more than fifteen (15) days past due.

  • c) Taxes. Except for taxes based on Company’ income, Customer shall pay any federal, state, local and foreign taxes, fees or duties imposed on the sale, export, use or possession of the Software or services, including penalties and interest.

  • d) No Refunds. Customer shall be responsible for all Subscription Fees for the entire Subscription Term. Subscription Fees will not be prorated upon cancellation and/or termination and all fees paid till the date of termination are nonrefundable.

12. Subscription Term and Automatic Renewal. This Agreement shall commence on the Effective Date and the licensed Software subscription shall continue for the initial term specified in the Order Form (“Initial Term”). Company shall automatically renew Customer’s subscription and invoice the Customer’s account on the last day of the applicable Subscription Term (the “Renewal Date”), unless Company and/or Customer provides written notice of cancellation at least fifteen (15) days prior to the Renewal Date at support@workelevate.com. The renewal fees will be the current rate then in effect at the time of renewal.

13. Termination.

  • a) Automatic Termination. This Agreement shall automatically terminate upon the bankruptcy or insolvency of either Party.

  • b) Breach. Either party may terminate this Agreement if the other party breaches (a) any material provisions of this Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice of such breach.

  • c) Survival. The following Sections survive termination of this Agreement: Individual Binding Arbitration, Disclaimer of Warranties, Third Party Disclaimer, Indemnity, Limitation of Liability, and Governing Law.

14. Individual Binding Arbitration. Any claim or controversy with Company arising out of or relating to the Software, services and/or this Agreement (including its formation, interpretation, performance and breach) shall be settled by binding arbitration administered:

  • a) Within India: Under the provisions of Arbitration and Conciliation Act, 1996 (as may be amended from time to time) by referring such claim or controversy to a sole Arbitrator appointed by mutual consent of the Parties. The venue for such Arbitration shall be in India at Delhi. The language to be used in the arbitral proceedings shall be English. The award rendered by the arbitrator shall be final and binding upon both Parties and may be entered by any court of competent jurisdiction for execution forthwith. Each Party shall bear its own expenses and attorneys’ fees in connection with the arbitration.

  • b) Outside of India: By the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. The rules, as well as forms for initiating arbitration proceedings, are available at www.icdr.org

  • c) Individual Basis; Waiver of Jury Trial: Any arbitration under this agreement will be on an individual basis only. each party expressly waive their right to file or join a class action or private attorney general action, or to consolidate their arbitration with other arbitrations. each party hereby waivesits rights to have its se decided by a judge or jury

  • d) Severability: If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed and the remaining provisions shall remain enforceable.

15. DISCLAIMER OF WARRANTIES. TO THE EXTENT PERMITTED BY APPLICABLE LAW The services included on or otherwise made available to customer through this agreement, including any “beta” releases, are provided on an “as is” and “as available” basis. company does not represent or warrant that the software or services (i) will be uninterrupted, timely or secure, (ii) will be free of defects, inaccuracies or errors, (iii) will meet your requirements, or (iv) will operate in the configuration or with other hardware or software you use. except where prohibited by applicable law, company expressly disclaims any and all representations, warranties or conditions of any kind, express or implied, including, but not limited to, implied warranties of fitness for a particular purpose, merchantability and non-infringement and will not be liable for your use of or reliance on the software and services.

16. DISCLAIMER OF THIRD PARTY CONDUCT Company disclaims any and all liability for the acts, omissions and conduct of any third party applications in connection with or related to your use of the services. to the extent permitted by applicable law, company makes no warranties regarding such third party applications n including, without limitation, warranties of fitness for a particular purpose, merchantability and non-infringement and will not be liable for your use of or reliance on such third party services, goods, resources or information.

17. LIMITATION OF LIABILITY. You expressly agree that your use of the software and services is at your sole risk. to the extent permitted by applicable law, neither company nor any other party involved in creating, producing, or delivering the software or services will be liable to you or any third party for any consequential, incidental, indirect, exemplary, punitive or special damages (including damages for lost profits, security breach, lost data or loss of goodwill) arising out of, relating to or connected with the use of the software and services, even if company has been advised of the possibility of such damages. to the extent permitted by applicable law, in no event will company’s aggregate liability, or that of its officers, directors, employees and agents, arising out of or in connection with your use of, or of the inability to use, the platform or services, exceed the fees charged by company for the software and services in the three (3) months period prior to the event giving rise to customer’s claim.

18. INDEMNITY.

  • a) By Company. Company agrees to indemnify, defend and hold harmless Customer for (i) any damages award issued by a court of competent jurisdiction against Customer, and (ii) direct expenses, including reasonable attorneys' fees (but excluding any lost revenues, lost profits or other consequential economic damages of Customer) as a result of any action brought by a third party against Customer, if and to the extent the action is based on a valid claim that the Software infringes another person's patent, copyright, trade secret or trademark.

  • b) By Customer. To the maximum extent permitted by law, Customer agrees to indemnify, defend and hold harmless Company, and its subsidiaries, affiliates, officers, directors, shareholders, employees, representatives, agents, volunteers, attorneys, managers, business partners and each of their respective successors and assigns (the “Company Indemnified Parties”) from and against all damages, losses, liabilities, claims, expenses, fees or costs (including, without limitation, reasonable attorneys’ fees and costs) incurred in connection with any third party claim, demand or action brought or asserted against any of the Company Indemnified Parties arising out of or relating to Customer’s (i) use of the Software and/or services (ii) breach of this Agreement, (iii) violation of any third party right, including without limitation any intellectual property right, publicity, property or privacy right, and/or (iv) a breach of Customer’s representation or warranties under this Agreement.

  • c) Notice. The Parties’ obligations under this Section will be conditioned upon the affected Party promptly notifying the other (“Indemnifying Party”) in writing of the existence of any such claim, giving the Indemnifying Party full authority to conduct the defense and settlement of the claim, at the Indemnifying Party’s expense and with counsel of the Indemnifying Party’s selection, and cooperating fully with such counsel.

  • d) Severability: If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed and the remaining provisions shall remain enforceable.

19. Miscellaneous Provisions.

  • a) Severability. The validity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.

  • b) Modifications. No modification of this Agreement shall be effective unless it is in writing and signed by an authorized representative of the Parties herein.

  • c) Governing Law. This agreement shall be construed in accordance with applicable laws of India. Any or all disputes arising out of this Agreement shall be subject to the exclusive jurisdiction of the court of New Delhi.

  • d) Assignment. Neither Party shall assign any of the rights or obligations under this Agreement without the prior written consent of the other Party. However, consent is not required for an assignment of this Agreement in connection with a change of control, merger, stock transfer, sale or other disposition of substantially all the assets of the assigning Party’s business.

  • e) Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties and their respective successors and permitted assigns.

  • f) No Waiver. No failure or delay by a Party exercising any right, power or privilege under this Agreement will operate as a waiver thereof.

  • g) No Agency. No agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement.

  • h) Interpretation. Headings are for reference purposes only and do not limit the scope or extent of such section.

  • i) Notices. All notices required or permitted to be given under this Agreement will be in writing and delivered to the Parties at the addresses identified herein.

  • j) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute an original and all of which shall be deemed a single agreement.

  • k) Force Majeure. Company will not be liable or responsible for any delays in providing the Software or services, or for failing to provide the Software or services, as a result of any event beyond its reasonable control, including, without limitation, adverse weather conditions, internet outage or interruption of service, telecommunications or power outage, denial of service attacks, fire, flood, civil disobedience, labor disruptions, strikes, lockouts, freight, embargoes, pandemic, government-ordered closures, terrorism, natural disaster, war or acts of God

20. Execution. Either Party may execute this Agreement with either a manual or digital signature. “Digital signature" means an electronic identifier that is intended by the Party using it to have the same force and effect as the use of a manual signature. A signed copy of this Agreement delivered via facsimile or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original executed copy of this Agreement.

21. Entire Agreement. This Agreement comprises the entire agreement between the Parties and supersedes all prior or contemporaneous agreements, written or oral, between the parties regarding the subject matter contained herein.

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