These Certinal Enterprise Terms and Conditions govern each Order entered by the Certinal entity and the Licensee, both identified in the Order document. By signing the Order Document, each party agrees as follows:
2. GRANT OF LICENSE
Subject to the terms and conditions of this Agreement, Certinal hereby grants Licensee a non-exclusive, non-transferable license to use the Software following the Subscription Plan as set out in the applicable Order Document. Certinal shall provide maintenance and support to the Licensee following the support package that is identified in the Order Document.
Certinal Software enables parties to the e-Document to affix electronic signature for executing such e-Document. Licensee acknowledges that under no circumstances, Certinal shall be construed as a party to any e-Document which is electronically signed by the Authorized Users on Certinal Software. Certinal shall not be liable in any manner whatsoever for the transactions entered by the Licensee and/or its Authorized Users by electronically signing e-Documents. Licensee hereby acknowledges that it shall have full control over the contents of e-Document being electronically signed on Certinal Software.
Before electronically signing any document on Certinal Software, Licensee is required to perform its due diligence to ensure if the document can be signed electronically under applicable laws and government regulations or not. Certinal Software will not block the signing of any such documents nor Certinal is liable in any manner whatsoever if Licensee electronically executes any such documents using Certinal Software.
Licensee shall have no right to resell, or sub-license the Software. Also, the license granted herein shall not constitute a sale, lease, rental, or any other transfer of the Software or part thereof. Licensee agrees that it does not acquire any license to use the Software more than the Subscription Plan and the Term as specified in an Order Document. Upon the end of the Agreement or an Order, Licensee’s right to use such Services shall terminate.
Licensee must refrain from posting any illegal, obscene, indecent, defamatory, content within the Software. Certinal Software is not meant for minors under the age of 16 years; or any other minimum age as specified under applicable laws. Licensee shall ensure that Authorized Users are not minors.
5. FEES; EXPENSES; INVOICES; PAYMENT
6. INTELLECTUAL PROPERTY RIGHTS
All rights to the Software and customization, training material, enhancements, upgrade, updates, its contents and any enhancements provided therewith, including title, ownership rights and intellectual property rights such as copyrights, trademarks, service marks and patents therein shall remain the sole and exclusive property of Certinal and/or its suppliers or its licensors, and Licensee acquires only the limited rights granted in this Agreement. Licensee shall not own any Intellectual Property Rights concerning the Software, customization, training material, and accompanying development under this Agreement. Licensee always retains all ownership and intellectual property rights in and to Licensee’s data, Licensee’s Confidential Information, and any other information provided by Licensee within the Software. Certinal retains all ownership and Intellectual Property rights to Certinal’s Software. Licensee hereby provides a limited license to Certinal to use Licensee’s data and License’s Confidential Information only for the agreed purpose under this Agreement.
Licensee should not: (a) remove or modify any marks, trademarks, or proprietary notices of Certinal, b) develop similar software as that of Certinal by using Confidential Information of Certinal, decompile, disassemble, duplicate, or reverse engineer, create derivative works of or based on the Certinal Software.
7. REPRESENTATIONS AND WARRANTIES
8. DISCLAIMER OF WARRANTIES
Licensee hereby expressly agrees and acknowledges that the software is provided "as is" without any representations, conditions, warranties, or covenants whatsoever concerning the software or any work or services performed by Certinal or its employees, consultants, or agents, including without limitation, any express, statutory or implied representations, warranties or conditions of merchantability, merchantable quality, satisfactory quality or fitness for a particular purpose, or arising otherwise in law or from a course of dealing or usage of trade, all of which are expressly disclaimed and excluded.
Each Party shall use the same effort as it uses with respect to its own information of a like character, but not less than reasonable efforts, to: (a) maintain in confidence all proprietary and Confidential Information ("Proprietary Information") that it receives (the “Receiving Party”) from the other Party (“Disclosing Party”) during the Term, and under the provisions, of this Agreement and that is clearly marked as confidential, or if initially disclosed orally or by demonstration or observation, is summarized in a writing and designated therein as confidential within a reasonable time after being so disclosed or if not marked as confidential, is known or should be known by the Receiving Party to be of a confidential nature; (b) not disclose such Proprietary Information to any third party (except to affiliates or subcontractors of the Receiving Party (other than the Disclosing Party) who have a need to know such information exclusively for the purpose of executing its obligations or exercising its rights under this Agreement and who are bound by comparable confidentiality obligations); and (c) not use Proprietary Information received from the other Party except as specifically authorized in writing. For the avoidance of doubt, any document marked with the words “Confidential”, “Restricted”, “Proprietary”, or “Privileged” shall be treated as Proprietary Information. This obligation of confidence does not apply to information that:
The Licensee hereby agrees that authorized employees of Certinal may use Licensee’s data for research and analysis purposes which primarily includes building and/or revamping Certinal’s software models. All such Licensee’s data collected, used, and disclosed will be in aggregate and statistical form only and will not identify Licensee or its Authorized Users.
Certinal shall always comply with any anti-corruption or anti-bribery laws including, without limitation, the U.S. Foreign Corrupt Practices Act (1977), the U.K. Bribery Act of 2010, plus any other anti-bribery or anti-corruption law or treaty applicable to Certinal. Certinal has and shall maintain in place throughout the term of the Agreement policies and procedures to confirm compliance with applicable laws relating to anti-bribery and anti-corruption. Certinal shall promptly report to the Licensee any request received by any third party for any undue financial or other advantages of any kind in connection with the performance of this Agreement. Certinal shall not accept, offer or make any payment or provide anything else of value, or take or fail to take any other action which is either prohibited or required by applicable laws in connection with this Agreement.
11. DATA PROTECTION:
Certinal warrants that to the extent it processes Personal Data on behalf of Licensee it shall:
Certinal shall be responsible for maintaining data privacy and information security program, which includes physical, technical, administrative, and organizational safeguards, that is reasonably designed to (a) ensure the security and confidentiality of Licensee’s data; (b) protect against any anticipated threats or hazards to the security or integrity of Licensee’s data; (c) protect against unauthorized disclosure, access to, or use of Licensee’s data; (d) ensure proper disposal of Licensee’s data.
Certinal shall maintain a disaster recovery plan. This disaster recovery plan of Certinal will refer to the strategy and plans that Certinal has set in place to respond to incidents and business disruptions to continue Certinal Software. The disaster recovery plan will cover critical activities and resources necessary to provide support. Also, Certinal may update its disaster recovery plan for any improvement.
12. SECURITY INCIDENTS
Certinal shall report to Licensee all known or suspected Security Incidents. “Security Incident” means any unauthorized action by a known or unknown person which, if attempted, threatened, or completed, should reasonably be considered one of the following: an attack, penetration, disclosure of Confidential Information or other sensitive information, misuse of system access, unauthorized access or intrusion (hacking), virus intrusion, or scan of Certinal’s systems or networks, all to the extent they affect the security, confidentiality or integrity of the Licensee’s Confidential Information received, stored, processed, or maintained by Certinal.
If a Security Incident occurs, Certinal shall immediately notify Licensee and provide the following information: nature and impact of the Security Incident; actions already taken by Certinal; Certinal’s assessment of immediate risk; and corrective measures to be taken, evaluation of alternatives, and next steps. Certinal shall continue providing (i) appropriate status reports to Licensee regarding the resolution of the Security Incident and prevention of future such Security Incidents, and (ii) cooperation, as reasonably requested by Licensee, to further investigate and resolve the Security Incident. Certinal shall preserve evidence of all Security Incidents.
Certinal will defend, indemnify, and hold harmless Licensee from and against all liability, suits, claims, actions, proceedings, losses, damages, judgments, and reasonable costs (each, a “Claim”) to the extent that such Claim arises out of or is in relation to any third-party allegation that the Software infringes its intellectual property rights including patent or copyright or other proprietary rights. The aforesaid indemnity shall be applicable provided that Certinal has been given prompt written notice of each such Claim by the Licensee, and the right to control and direct the investigation, defense, and settlement of each such Claim. If the Software, or any part of it, is in Certinal’s opinion, likely to or does become the subject of a Claim for infringement of a third party’s proprietary rights, Certinal, at its sole option, may (i) obtain the right for Licensee to continue to use the Software, (ii) substitute equivalent of Software, or (iii) modify the Software to make it non-infringing. The foregoing states Certinal’s entire liability to Licensee with respect to infringement.
14. LIMITATION OF LIABILITY
Notwithstanding any other term of this Agreement to the contrary, in no event shall Certinal be liable to the Licensee or any third party for any indirect, special, incidental, consequential, punitive, or exemplary damages or loss of any kind (including but not limited to loss of profit, loss of revenues, business interruption, loss of business information, increased costs of operation or other commercial or economic loss, litigation costs and the like) howsoever caused, in connection with the supply, use or performance of the software, whether arising out of contract, tort (including without limitation negligence) or otherwise, even if Certinal has been advised of the possibility of such damages or such damages are foreseeable.
Except for gross negligence, willful misconduct, breach of confidentiality obligations as mentioned under this Agreement, breach of third-party intellectual property rights, death or personal bodily injury caused to any person by acts or omission on part of Certinal, the maximum liability shall be limited to the fees paid by the Licensee to Certinal as mentioned under the applicable Order document of this Agreement.
All notices that either Party hereto is required to or may desire to give the other Party hereunder shall be given by addressing the communication to the address of respective Party set forth in the Order document and shall be given by certified or registered mail or email.
Any change to the address shall be informed within 30 days of such change.
Either Party may not assign and/or subcontract its rights hereunder without written consent from other Party, which shall not be unreasonably withheld.
17. TERM AND TERMINATION
Each Order shall be governed by the terms and conditions of this Agreement. This Agreement is valid for the Term as set out in the applicable Order submitted to Certinal by Licensee.
Each Order can only be terminated in accordance with the termination provision as mentioned under this clause, in addition to the termination provision, if any, mentioned under each Order.
Either Party may terminate this Agreement in the event that (i) the other Party is in default of any of its material obligations hereunder and such default is not remedied within 30 days of receipt of written notice thereof or (ii) the other Party is adjudicated bankrupt or becomes insolvent, makes any assignment for the benefit of creditors, proceedings are instituted by the other Party seeking relief, reorganization or rearrangement under any laws relating to insolvency, bankruptcy or similar laws of any jurisdiction, a receiver, liquidator or trustee is appointed in respect of any property or assets of the other Party or an order is made for the liquidation, dissolution or winding up of the other Party.
During the Term of the Order, Certinal shall store all e-Documents of the Licensee within Certinal Software, accordingly during the Term of the Order, Licensee at any time may download copies of e-Documents.
If before expiry or termination of the Agreement, Licensee has failed to download its e-Documents from Certinal software, then within 90 days upon expiry or termination of the Agreement (Transition Period), Licensee can request Certinal for providing professional services for retrieving e-Document. For this purpose, Certinal reserves to charge mutually agreed fees for such additional professional services. After such Transition Period, the e-Documents may be get deleted from Certinal Software.
18. FORCE MAJEURE
“Force Majeure Event” shall mean either Party’s impossibility or failure to perform its obligations; provided that such impossibility or failure, (i) is not due to its own act, omission, negligence or willful misconduct, (ii) could not have been overcome by the exercise of due diligence by the affected Party, (iii) could not have been prevented by reasonable precautions of the affected Party (whether or not taken), and (iv) is caused by fire, flood, earthquake, elements of nature or acts of God, epidemic or pandemic, public utility or electrical failure, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, government orders or restrictions, imposition of martial law or any similar cause (but excluding labor disputes and strikes) meeting all of the foregoing requirements that are beyond the reasonable control of the affected Party. In the event of Force Majeure, the affected Party shall immediately notify the non-affected Party of the occurrence of Force Majeure Event and describe in reasonable detail the nature of the Force Majeure Event. Subject to the above, if any Force Majeure Event lasts for more than Thirty (30) calendar days, either Party may, upon prior written notice of not less than ten (10) days to the other Party, terminate the affected portion of the Services and/or Agreement without penalty of any kind. In the event of such termination, the Licensee shall be liable to pay fees up to the date of termination.
Publicity rights shall be in accordance with the publicity clause as mutually agreed in the Order Document.
Any dispute arising hereunder, which is not settled through formal or informal negotiation or mediation between the parties, shall be settled through arbitration based on the arbitration norms of the International Chamber of Commerce. The arbitration shall be conducted by a single arbitrator. The language of the arbitration shall be the English language. The seat of arbitration shall be based on the following parameters: (i) if Licensee is based in Australia region, arbitration seat shall be in Melbourne, Australia; (ii) if Licensee is based in EU, arbitration seat shall be in Amsterdam, Netherlands; (iii) if Licensee is based in the UK, arbitration seat shall be in London, England; (iv) if Licensee is based in the United States or Canada, arbitration seat shall be in New Jersey; (v) if Licensee is based in APAC region, arbitration seat can be mutually agreed as Singapore or Mumbai, India; (vi) if Licensee is based in Middle East region, arbitration seat shall be in Dubai; (vi) if Licensee is based in any other regions not covered above, arbitration seat shall be at Singapore.
This Agreement shall be governed in accordance with the laws of the region where the Licensee’s registered place of business is situated and as set out in the Order document.
This Agreement sets forth the entire agreement of the parties with respect to the subject matter contained herein, and no oral or written statement or representations not contained herein shall have any force or effect. In the event of a conflict between the provisions stated in the Agreement and any Order or schedules, the provisions stated in the Agreement shall prevail. The failure of a Party to claim a breach of any term of this Agreement shall not constitute a waiver of such breach or the right of such Party to enforce any subsequent breach of such term. If any provision of this Agreement is held to be unenforceable or illegal, such decision shall not affect the validity or enforceability of such provisions under other circumstances or the remaining provisions of this Agreement and such remaining provisions shall be reformed only to the extent necessary to make them enforceable under such circumstances.