SERVICES AND SUPPORT
Subject to the terms of this Agreement, Qdonow. will use commercially reasonable efforts to provide Customer the agreed upon services. Subject to the terms here of, Qdonow. will provide Customer with reasonable technical support services in accordance with Qdonow’s standard practice.
RESTRICTIONS AND RESPONSIBILITIES
Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Qdonow. or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Qdonow’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. [Customer hereby agrees to indemnify and hold harmless Qdonow. against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services.] Although Qdonow. has no obligation to monitor Customer’s use of the Services, Qdonow. may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
PAYMENT OF FEES
Customer will pay Qdonow. the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Qdonow, reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term. If Customer believes that Qdonow. has billed Customer incorrectly, Customer must contact Qdonow. no later than 30 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Qdonow’s customer support department. Qdonow may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Qdonow. fourteen (14) days after the mailing date of the invoice. Customer shall be responsible for all taxes associated with Services other than INDIA taxes based on Qdonow’s net income. Qdonow will use commercially reasonable efforts to provide the Client the services described in the Statement of Work (“SOW”) and the Client shall pay Qdonow the Implementation Fee in accordance with the terms herein. The client will not be charged until they deem the services to be completed to their satisfaction in full. Client hereby authorizes Qdonow to run, or have run, credit card authorizations on all credit cards provided by Client, to store credit card details as Clients method of payment for Services, and to charge Clientʼs credit card (or any other form of payment authorized by Qdonow or mutually agreed to between Client and Qdonow). Client will not be charged for services until client has expressed satisfaction with product.
TERM AND TERMINATION
Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
WARRANTY AND DISCLAIMER
Qdonow. shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Qdonow. or by third-party providers, or because of other causes beyond Qdonow’s reasonable control, but Qdonow shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Qdonow, does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND QDONOW. DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
You will not violate any laws or third party rights on or related to Qdonow. Without limiting the generality of the foregoing, you agree to comply with all applicable import and export control laws and third partiesʼ Proprietary Rights. You consent to the use of (a) electronic means to complete this Agreement and to deliver any notices pursuant to this Agreement; and (b) electronic records to store information related to this Agreement or your use of Qdonow. Notices hereunder will be invalid unless made in writing and given (a) by Qdonow via email (in each case to the email address that you provide), (b) a posting on the Qdonow Site or (c) by you via Qdonow. The date of receipt will be deemed the date on which such notice is transmitted. No modification or amendment to this Agreement will be binding upon Qdonow unless in a written instrument signed by a duly authorized representative of Qdonow. For the purposes of this Section (b), a written instrument will expressly exclude electronic communications such as email and electronic notices but will include facsimiles. The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and will in no way affect that partyʼs right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of each party. You may not assign this Agreement, or any of its rights or obligations hereunder, without Qdonowʼ prior written consent in the form of a written instrument signed by a duly authorized representative of Qdonow (and, for the purposes of this Section (a), a written instrument will expressly exclude electronic communications such as email and electronic notices but will include facsimiles). Qdonow may freely assign this Agreement without your consent. Any attempted assignment or transfer in violation of this Section will be null and void. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties. Agreement will inure to the benefit of the successors and permitted assigns of the parties. If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction. This Agreement and any controversy, dispute or claim arising out of or relating to this Agreement, including but not limited to a Service Contract, will be governed by and construed in accordance with the laws of the ministry of commerce and ministry of communications and information technology , Govt. of India. The English language version of this Agreement will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sub licensable by Customer except with Qdonow’s prior written consent. Qdonow. may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Qdonow. in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. [The parties shall work together in good faith to issue at least one mutually agreed upon press release within 60 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Qdonow. to serve as a reference account upon request.] This Agreement sets forth the entire agreement and understanding of the parties relating to its subject matter and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between them.