QMSMART Terms & Conditions

1.    Acceptance

 

1.1      These Terms and Conditions, and any other terms and policies referred to in these Terms and Conditions, form the agreement between QMSMART Technologies (referred to as “SaaS Provider”, “we” or “us”) and the user (referred to as “Customer” or “you”), collectively referred to as the Parties or each a Party, (Agreement). 

1.2      The SaaS Provider owns, or holds the relevant rights to, the QMSMART Software and will license the use of the Software as a service to the Customer.

1.3      This Agreement sets out the terms upon which the SaaS Provider has agreed to grant a license to the Customer to use the SaaS Services. This Agreement is binding on any use of the Services and applies to the Customer from the time that the SaaS Provider provides the Customer with an account (Customer’s account) to access and use the Services (Effective Date).

1.4      By accessing and/or using the Services you: 

(a)       warrant to us that you have reviewed this Agreement, including our Website Terms of Use (available on the Site) and our Privacy Policy (available on the Site), with your parent or legal guardian (if you are under 18 years of age), and you understand it; 

(b)       warrant to us that you have the legal capacity to enter into a legally binding agreement with us or (if you are under 18 years of age) you have your parent’s or legal guardian’s permission to access and use the Site and they have agreed to the Terms on your behalf; and

(c)       agree to use the Services in accordance with this Agreement.

1.5      By using our Services and subscribing on our Site, you acknowledge that you have read, understood, and accepted this Agreement and you have the authority to act on behalf of any person or entity for whom you are using the Services, and you are deemed to have agreed to this Agreement on behalf of any entity for whom you use the Services. 

 

2.    SAAS SERVICES

 

2.1                        During the Subscription Term, Customer will receive a nonexclusive, non-assignable, royalty free, worldwide right to access and use the SaaS Services solely for your internal business operations subject to the terms of this Agreement and up to the number of Identity Cubes documented in the Schedule.

 

2.2                        Customer acknowledges that this Agreement is a services agreement and QMSmart will not be delivering copies of the Software to Customer as part of the SaaS Services.

 

 

3.    RESTRICTIONS

 

Customer shall not, and shall not permit anyone to: (i) copy or republish the SaaS Services or Software, (ii) make the SaaS Services available to any person other than authorized Identity Cube users, (iii) use or access the SaaS Services to provide service bureau, time-sharing or other computer hosting services to third parties, (iv) modify or create derivative works based upon the SaaS Services or Documentation, (v) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the software used to provide the SaaS Services or in the Documentation, (vi) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software used to provide the SaaS Services, except and only to the extent such activity is expressly permitted by applicable law, or (vii) access the SaaS Services or use the Documentation in order to build a similar product or competitive product. Subject to the limited licenses granted herein, QMSmart shall own all right, title and interest in and to the Software, services, Documentation, and other deliverables provided under this SaaS Agreement, including all modifications, improvements, upgrades, derivative works and feedback related thereto and intellectual property rights therein.

 

4.    CUSTOMER RESPONSIBILITIES

 

Assistance. Customer shall provide commercially reasonable information and assistance to QMSmart to enable QMSmart to deliver the SaaS Services. Upon request from QMSmart, Customer shall promptly deliver Customer Content to QMSmart in an electronic file format specified and accessible by QMSmart. Customer acknowledges that QMSmart’s ability to deliver the SaaS Services in the manner provided in this SaaS Agreement may depend upon the accuracy and timeliness of such information and assistance.

 

4.1                        Compliance with Laws. Customer shall comply with all applicable local, state, national and foreign laws in connection with its use of the SaaS Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. Customer acknowledges that QMSmart exercises no control over the content of the information transmitted by Customer or the Identity Cube users through the SaaS Services. Customer shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.

 

4.2                        Unauthorized Use; False Information. Customer shall: (a) notify QMSmart immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, (b) report to QMSmart immediately and use reasonable efforts to stop any unauthorized use of the SaaS Services that is known or suspected by Customer or any Identity Cube user, and (c) not provide false identity information to gain access to or use the SaaS Services.

 

4.3                        Administrator Access. Customer shall be solely responsible for the acts and omissions of its Administrator Users. QMSmart shall not be liable for any loss of data or functionality caused directly or indirectly by the Administrator Users.

4.4                        Customer Input.  Customer is solely responsible for collecting, inputting and updating all Customer Content stored on the Host, and for ensuring that the Customer Content does not (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or (ii) contain anything that is obscene, defamatory, harassing, offensive or malicious. Customer shall: (i) notify QMSmart immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, (ii) report to QMSmart immediately and use reasonable efforts to stop any unauthorized use of the Service that is known or suspected by Customer or any Identity Cube user, and (iii) not provide false identity information to gain access to or use the Service.

 

4.5                        License from Customer. Subject to the terms and conditions of this SaaS Agreement, Customer shall grant to QMSmart a limited, non-exclusive and non-transferable license, to copy, store, configure, perform, display and transmit Customer Content solely as necessary to provide the SaaS Services to Customer.

 

4.6                        Ownership and Restrictions. Customer retains ownership and intellectual property rights in and to its Customer Content. QMSmart or its licensors retain all ownership and intellectual property rights to the services, Software programs, and anything developed and delivered under the Agreement. Third party technology that may be appropriate or necessary for use with some QMSmart programs is specified in the program Documentation or ordering document as applicable. Customer’s right to use such third party technology is governed by the terms of the third party technology license agreement specified by QMSmart and not under the Agreement. QMSmart agrees to provide Customer with such third party terms for its reference in writing.

 

4.7                        Suggestions. QMSmart shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the SaaS Services any suggestions, enhancement requests, recommendation or other feedback provided by Customer, including Users, relating to the operation of the SaaS Services.

 

 

5.    ORDERS AND PAYMENT

 

5.1                        Orders. Customer shall order SaaS Services pursuant to a Schedule. All services acquired by Customer shall be governed exclusively by this SaaS Agreement and the applicable Schedule. In the event of a conflict between the terms of a Schedule and this SaaS Agreement, the terms of the Schedule shall take precedence.

 

5.2                        Invoicing and Payment. Unless otherwise provided in the Schedule, QMSmart shall invoice Customer for all fees on the Schedule effective date. Customer shall pay all undisputed invoices within 30 days after Customer receives the invoice. Except as expressly provided otherwise, fees are non-refundable. All fees are stated in United States Dollars, and must be paid by Customer to QMSmart in United States Dollars.

 

5.3                        Expenses. Customer will reimburse QMSmart for its reasonable, out-of-pocket travel and related expenses incurred in performing the Other Services. QMSmart shall obtain Customer approval to incurring any such expense. QMSmart shall comply with Customer’s travel and expense policy if made available to QMSmart prior to the required travel.

 

5.4                        Taxes. QMSmart shall bill Customer for applicable taxes as a separate line item on each invoice. Customer shall be responsible for payment of all sales and use taxes, value added taxes (VAT), or similar charges relating to Customer’s purchase and use of the services. Customer shall not be liable for taxes based on QMSmart’s net income, capital or corporate franchise.

 

6.    TERM AND TERMINATION

 

6.1                        Term of SaaS Agreement. The term of this SaaS Agreement shall begin on the Effective Date and shall continue until terminated by either party as outlined in this Section.

 

6.2                        Termination. Either party may terminate this SaaS Agreement immediately upon a material breach by the other party that has not been cured within thirty (30) days after receipt of notice of such breach.

 

6.3                        Suspension for Non-Payment. QMSmart reserves the right to suspend delivery of the SaaS Services if Customer fails to timely pay any undisputed amounts due to QMSmart under this SaaS Agreement, but only after QMSmart notifies Customer in writing of such failure and such failure continues for fifteen (15) days after the written notification. Suspension of the SaaS Services

 payment obligations under this SaaS Agreement. Customer agrees that QMSmart shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to suspension of the SaaS Services resulting from Customer’s nonpayment.

 

6.4                        Suspension for Ongoing Harm. QMSmart reserves the right to suspend delivery of the SaaS Services if QMSmart reasonably concludes that Customer or an Identity Cube user’s use of the SaaS Services is causing immediate and ongoing harm to QMSmart or others. In the extraordinary case that QMSmart must suspend delivery of the SaaS Services, QMSmart shall immediately notify Customer in writing of the suspension and the parties shall diligently attempt to resolve the issue. QMSmart shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the SaaS Services in accordance with this Section 6.4. Nothing in this Section 6.4 will limit QMSmart’s rights under Section 6.5 below.

 

6.5                        Effect of Termination.

 

(a)       Upon termination of this SaaS Agreement, QMSmart shall immediately cease providing the SaaS Services and all usage rights granted under this SaaS Agreement shall terminate.

 

(b)       If QMSmart terminates this SaaS Agreement due to a breach by Customer, then Customer shall immediately pay to QMSmart all amounts then due under this SaaS Agreement and to become due during the remaining term of this SaaS Agreement, but for such termination. If Customer terminates this SaaS Agreement due to a breach by QMSmart, then QMSmart shall immediately repay to Customer all pre-paid amounts for any unperformed SaaS Services scheduled to be delivered after the termination date.

 

(c)       Upon termination of this SaaS Agreement and upon subsequent written request by the disclosing party, the receiving party of tangible Confidential Information shall immediately return such information or destroy such information and provide written certification of such destruction, provided that the receiving party may permit its legal counsel to retain one archival copy of such information in the event of a subsequent dispute between the parties.

 

7.    SERVICE LEVEL AGREEMENT

 

The Service Level SaaS Agreement (“SLA”) is underline as part of SLA agreement signing between QMSMART and customer

 

8.    WARRANTIES

 

8.1                        Warranty. QMSmart represents and warrants that it will provide the SaaS Services in a professional manner consistent with general industry standards and that the SaaS Services will perform substantially in accordance with the Documentation. For any beach of a warranty, Customer’s remedy shall be to terminate the SaaS Agreement, as provided in Section 6, Term and Termination, and recover any and all losses it has incurred as a result of QMSmart’s breach of warranty.

 

8.2                        QMSmart warrants that the SaaS Services will be performed in all material respects in accordance with this Agreement. QMSmart does not guarantee that the SaaS Services will be performed error-free or uninterrupted, or that QMsmart will correct all SaaS Services errors. Customer acknowledges that QMSmart does not control the transfer of data over communications facilities, including the internet, and that the SaaS Services may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. This section sets forth the sole and exclusive warranty given by QMSmart (express or implied) with respect to the subject matter of this Agreement. Neither QMSmart nor any of its licensors or other suppliers warrant or guarantee that the operation of the subscription service will be uninterrupted, virus-free or error-free, nor shall QMSmart or any of its service providers be liable for unauthorized alteration, theft or destruction of customer’s or any user’s data, files, or programs.

9.    LIABILITY

 

Neither party (nor any licensor or other supplier of QMSmart) shall be liable for indirect, incidental, special or consequential damages, including, without limitation, damages for lost business, profits, data or use of any service, incurred by either party or any third party in connection with this SaaS Agreement, regardless of the nature of the claim. The foregoing limitations

shall not apply to the parties’ obligations (or any breach thereof) under Sections entitled “Restriction”, “Indemnification”, or “Confidentiality”.

 

10.      INDEMNIFICATION

 

10.1                   Indemnification by QMSmart. If a third party makes a claim against Customer that the SaaS Services infringes any patent, copyright or trademark, or misappropriates any trade secret, or that QMSmart’s negligence or willful misconduct has caused bodily injury or death, QMSmart shall defend Customer and its directors, officers and employees against the claim at QMSmart’s expense and QMSmart shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by QMSmart, to the extent arising from the claim. QMSmart shall have no liability for any claim based on (a) the Customer Content, (b) modification of the SaaS Services not authorized by QMSmart, or (c) use of the SaaS Services other than in accordance with the Documentation and this SaaS Agreement. QMSmart may, at its sole option and expense, procure for Customer the right to continue use of the SaaS Services, modify the SaaS Services in a manner that does not materially impair the functionality, or terminate the Subscription Term and repay to Customer any amount paid by Customer with respect to the Subscription Term following the termination date.

 

10.2                   Indemnification by Customer. If a third party makes a claim against QMSmart that the Customer Content infringes any patent, copyright or trademark, or misappropriates any trade secret, Customer shall defend QMSmart and its directors, officers and employees against the claim at Customer’s expense and Customer shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Customer, to the extent arising from the claim.

 

10.3                   Conditions for Indemnification. A party seeking indemnification under this section shall (a) promptly notify the other party of the claim, (b) give the other party sole control of the defense and settlement of the claim, and (c) provide, at the other party’s expense for out-of-pocket expenses, the assistance, information and authority reasonably requested by the other party in the defense and settlement of the claim.

 

11.      CONFIDENTIALITY

 

11.1                   Definition. “Confidential Information” means any information disclosed by a party to the other party, directly or indirectly, which, (a) if in written, graphic, machine-readable or other tangible form, is marked as “confidential” or “proprietary,” (b) if disclosed orally or by demonstration, is identified at the time of initial disclosure as confidential and is confirmed in writing to the receiving party to be “confidential” or “proprietary” within 30 days of such disclosure, (c) is specifically deemed to be confidential by the terms of this SaaS Agreement, or (d) reasonably appears to be confidential or proprietary because of the circumstances of disclosure and the nature of the information itself. Confidential Information will also include information disclosed by third parties to a disclosing party under an obligation of confidentiality. Subject to the display of Customer Content as contemplated by this SaaS Agreement, Customer Content is deemed Confidential Information of Customer. QMSmart software and Documentation are deemed Confidential Information of QMSmart.

 

11.2                   Confidentiality. During the term of this SaaS Agreement and for 5 years thereafter (perpetually in the case of software), each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this SaaS Agreement, and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, each party shall use at least the same degree of care, but not less than a reasonable degree of care, it uses to prevent the disclosure of its own confidential information to prevent the disclosure of Confidential Information of the other party. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party’s Confidential Information and which are provided to the party hereunder. Each party may disclose Confidential Information of the other party on a need-to-know basis to its contractors who are subject to confidentiality agreements requiring them to maintain such information in confidence and use it only to facilitate the performance of their services on behalf of the receiving party.

 

11.3                   Exceptions. Confidential Information excludes information that: (a) is known publicly at the time of the disclosure or becomes known publicly after disclosure through no fault of the receiving party, (b) is known to the receiving party, without restriction, at the time of disclosure or becomes known to the receiving party, without restriction, from a source other than the disclosing party not bound by confidentiality obligations to the disclosing party, or (c) is independently developed by the receiving party without use of the Confidential Information as demonstrated by the written records of the receiving party. The receiving party may disclose Confidential Information of the other party to the extent such disclosure is required by law or order of a court or other governmental authority, provided that the receiving party shall use reasonable efforts to promptly notify the other party prior to such disclosure to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Each party may disclose the existence of this SaaS Agreement and the relationship of the parties, but agrees that the specific terms of this SaaS Agreement will be treated as Confidential Information; provided, however, that each party may disclose the terms of this SaaS Agreement to those with a need to know and under a duty of confidentiality such as accountants, lawyers, bankers and investors.

 

12.      GENERAL PROVISIONS

 

12.1                   Non-Exclusive Service. Customer acknowledges that SaaS Services is provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict QMSmart’s ability to provide the SaaS Services or other technology, including any features or functionality first developed for Customer, to other parties.

 

12.2                   Personal Data. Customer hereby acknowledges and agrees that QMSmart’s performance of this SaaS Agreement may require QMSmart to process, transmit and/or store Customer personal data or the personal data of Customer employees. By submitting personal data to QMSmart, Customer agrees that QMSmart may process, transmit and/or store personal data only to the extent necessary for, and for the sole purpose of, enabling QMSmart to perform its obligations to under this SaaS Agreement and in accordance with applicable laws. In relation to all Personal Data provided by or through Customer to QMSmart, both parties will be responsible for complying with all applicable data protection or similar laws that regulate the processing of Personal Data in India. Customer agrees to obtain all necessary consents from its employees and make all necessary disclosures before including Personal Data in Customer Content and using the enabling software and QMSmart SaaS. Customer confirms that Customer is solely responsible for any Personal Data that may be contained in Customer Content. Customer is solely responsible for determining the purposes and means of processing Customer Personal Data by QMSmart under this Agreement, including that such processing according to Customer’s instructions will not place QMSmart in breach of applicable data protection laws. Prior to processing, Customer will inform QMSmart about any special categories of data contained within Customer Personal Data and any restrictions or special requirements in the processing of such special categories of data, including any cross border transfer restrictions, and QMSmart agrees to comply with Customer’s instructions in this regard. QMSmart is responsible for ensuring that itmeets such restrictions or special requirements. QMSmart will process any Personal Data that meets the requirements set forth in this Section according to this Agreement and applicable data protection laws of India.

 

 

12.3                   Assignment. Neither party may assign this SaaS Agreement or any right under this SaaS Agreement, without the consent of the other party, which consent shall not be unreasonably withheld or delayed. This SaaS Agreement shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns. Either party may employ subcontractors in performing part, and not all, of its duties under this SaaS Agreement, provided, however, that such party shall obtain the other party’s consent on the identity of such subcontractors and, in any event, shall not be relieved of any obligation under this SaaS Agreement.

 

12.4                   Notices. Except as otherwise permitted in this SaaS Agreement, notices under this SaaS Agreement shall be in writing and shall be deemed to have been given (a) one (1) business day after sending it if sent by email, (b) when transmitted if sent by facsimile, provided that a copy of the notice is promptly sent by another means specified in this section, or (c) when signed as an acknowledgement of receipt if delivered personally or sent by recognised express courier service.

 

 

12.5                   Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, communication line failures, and power failures.

 

12.6                   Waiver. No waiver shall be effective unless it is in writing and signed by the waiving party. The waiver by either party of any breach of this SaaS Agreement shall not constitute a waiver of any other or subsequent breach.

 

12.7                   Severability. If any term of this SaaS Agreement is held to be invalid or unenforceable, that term shall be reformed to achieve as nearly as possible the same effect as the original term, and the remainder of this SaaS Agreement shall remain in full force.

 

12.8                   Entire SaaS Agreement. This SaaS Agreement (including all Schedules and exhibits) contains the entire agreement of the parties and supersedes all previous oral and written communications by the parties, concerning the subject matter of this SaaS Agreement. This SaaS Agreement may be amended solely in a writing signed by both parties. Standard or printed terms contained in any purchase order or sales confirmation are deemed rejected and shall be void unless specifically accepted in writing by the party against whom their enforcement is sought; mere commencement of work or payment against such forms shall not be deemed acceptance of the terms.

 

12.9                   Survival. Sections 3, 6, and 8 through 12 of this SaaS Agreement shall survive the expiration or termination of this SaaS Agreement for any reason.

 

12.10              Publicity. QMSmart may include Customer’s name and logo in its customer lists and on its website after obtaining Customer’s prior written consent before doing so. Upon signing, QMSmart may issue a high-level press release announcing the relationship and the manner in which Customer will use the QMSmart solution. QMSmart shall coordinate its efforts with appropriate communications personnel in Customer’s organization to obtain a written approval on any and all press releases involving Customer.

 

 

12.11              No Third Party Beneficiaries. This SaaS Agreement is an agreement between the parties, and confers no rights upon either party’s employees, agents, contractors, partners of customers or upon any other person or entity.

 

12.12              Independent Contractor. The parties have the status of independent contractors, and nothing in this SaaS Agreement nor the conduct of the parties will be deemed to place the parties in any other relationship. Except as provided in this SaaS Agreement, neither party shall be responsible for the acts or omissions of the other party or the other party’s personnel.

 

12.13              Statistical Information. QMSmart may anonymously compile statistical information related to the performance of the Services for purposes of improving the SaaS service, provided that such information does not identify Customer’s data or include Customer’s name.

 

12.14              Governing Law. This SaaS Agreement shall be governed by the laws of the laws of the Sultanate of India.

 

12.15              Compliance with Laws. QMSmart shall comply with all applicable local, state, national and foreign laws in connection with its delivery of the SaaS Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data

 

12.16              Dispute Resolution. Customer’s satisfaction is an important objective to QMSmart in performing its obligations under this SaaS Agreement. If a dispute arises between the parties relating to the interpretation or performance of this SaaS Agreement or the grounds for the termination hereof, the parties agree to hold a meeting within fifteen (15) days of written request by either party, attended by individuals with decision-making authority, regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute prior to pursuing other available remedies. If, within 15 days after such meeting, the parties have not succeeded in resolving the dispute, either party may refer the dispute to arbitration to finally be settled by the Singapore International Arbitration Centre (“SIAC”)  in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this clauseThe arbitration shall be held in Singapore.  The language of arbitration shall be English. The decision of this arbitration shall be final and binding on the concerned parties and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction over the party(ies) against whom judgment is sought..

 

For any questions, please contact us at:

QMSMART Technologies

No.571/630/6/4, Sy.N 6/4

Ambalipura Village, Marthahalli

Bangalore, Karnataka- 560102, India

E: info@qmsmart.net | M: +91-95 67 19 0555