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THIS SERVICES AGREEMENT (the "Agreement") is entered into and effective from the “Effective Date” by and between Eloit Innovations Pvt. Ltd. (“Eloit” or "Service Provider") and ("Client" or “You”) for the purposes of providing Edisapp ERP service for the school.
1.0. The service provider owns all right, title, and interest in and to that certain service and documentation identified as Edisapp ("Service"), the functional specifications for which are set forth in Annexure 1 hereto;
1.1. The service provider desires to sell, assign, grant, convey, and transfer the service to the client, and the client desires to buy and acquire the service, in accordance with the subscription plans and terms and conditions of this agreement.
2.1 EDISAPP is an ERP solution for educational institution designed, developed and owned by Eloit Innovations Pvt. Ltd.
2.2 Service means, collectively, the version of the Edisapp, as specified in Section 18 - Edisapp Subscription Details, and detailed in Annexure 1, delivered to client with any and all improvements, corrections, modifications, updates, enhancements or other changes included in the current version.
2.3 User Documentation means the end-user instruction manual that usually accompanies the service instructing end users in the use of the service in both printed and electronic form.
2.4 Confidential information means any scientific or technical information, design, process, procedure, formula, or improvement included in the service that is valuable, not generally known in the industry, and gives the service provider of a competitive advantage over those competitors who do not know or use such information and also includes client data saved in the system.
2.5 ERP Coordinator is an Eloit trained staff present at the client space to administer the implementation and functioning of Edisapp ERP.
3. PROVISION OF SERVICES
Subject to the terms and conditions of this Agreement, Eloit shall provide certain services and user documentation, if any, provided by Eloit on the use of service (“Documentation” to the Client and certain individuals or entities that are authorized to use the service (“Authorized Users”). For clarification, Documentation means the official user documentation provided by Eloit to Client on the use of the Services. Any installation guide or end user documentation not prepared or provided by Eloit; any online community site; unofficial documentation, videos, white papers, or related media; or feedback does not constitute Documentation.
Eloit hereby grants Client a limited, non-exclusive, non-transferable permission to access and use the Services and Documentation during the Term (defined below) provided Client complies with the terms and conditions of this Agreement.
If the Services and Documentation are provided to Client for evaluation purposes, Eloit grants to Client a limited, non-exclusive, non-transferable and royalty-free evaluation access to use the Services solely for evaluation prior to subscription (“Evaluation Access”). The Evaluation Access shall terminate on the end date of the pre-determined evaluation period or immediately upon notice from Eloit, at its sole discretion. Notwithstanding any other provision contained herein, Services provided pursuant to an Evaluation Access are proved to Client “AS IS” without indemnification, support, or warranty of any kind, express or implied.
4. CLIENT DATA
Eloit agrees that the data and information uploaded by Client (or Authorized Users of Client) that is stored or processed via Edisapp (the “Client Data”) shall be treated as confidential pursuant to Section 10 by Eloit and shall remain Client’s sole property. Eloit is not responsible for the failure to store, the loss, or the corruption of Client Data. Client agrees that Eloit and its affiliated entities will collect and track technical and related information about Client and Client’s use of the Edisapp ERP, including Client’s internet protocol address, the hardware and software that Client utilizes, and various usage statistics to assist with the necessary operation and function of the Edisapp and for internal purposes only, including without limitation to facilitate in the provision of updates, support, invoicing, marketing by Eloit, its affiliated entities, or its agents, and research and development. In the event that Eloit is required or ordered to disclose Client Data to a third party pursuant to judicial order or other compulsion of law, if legally permitted, Eloit shall take all commercially reasonable steps to provide the Client with prompt notice of any relevant order or basis for disclosure so as to allow Client to take whatever steps it can to object to such compulsory disclosure if Client so chooses.
As used in this Agreement, "Confidential Information" means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally, or by inspection of tangible objects (i) that the disclosing party identifies as confidential or proprietary or (ii) Services. Confidential Information may also include confidential or proprietary information disclosed to a disclosing party by a third party. The receiving party will: (i) hold the disclosing party’s Confidential Information in confidence; (ii) restrict disclosure of such Confidential Information to those of its employees or agents with a need to know such information and who are bound (i.e., as a condition to their employment or agency) by obligations respecting the protection of confidential information, which are substantially similar to those of this Agreement and which would extend to the disclosing party's Confidential Information; (iii) use such Confidential Information only for the purposes for which it was disclosed, unless otherwise set forth herein; and (iv) to the extent applicable, not modify, reverse engineer, decompile, create other works from, or disassemble any such Confidential Information, unless expressly permitted by applicable law without the possibility of contractual waiver or otherwise specified in writing by the disclosing party.
The restrictions will not apply to Confidential Information to the extent it (i) was in the public domain at the time of disclosure; (ii) became publicly available after disclosure to the receiving party without breach of this Agreement; (iii) was lawfully received by the receiving party from a third party without such restrictions; (iv) was known to the receiving party, its employees or agents without such restrictions prior to its receipt from the disclosing party; (v) was independently developed by the receiving party without breach of this Agreement; (vi) was generally made available to third parties by the disclosing party without such restriction; or (vii) is required to be disclosed by the receiving party pursuant to judicial order or other compulsion of law, provided that the receiving party will provide to the disclosing party prompt notice of such order and comply with any protective order imposed on such disclosure. The parties agree that any material breach of this Section will cause irreparable injury and that injunctive relief in a court of competent jurisdiction will be appropriate to prevent an initial or continuing breach of these Sections in addition to any other relief to the applicable party may be entitled.
6. PROPRIETARY RIGHTS
Edisapp ERP is subscribed to the client, not sold. Use herein of the word “purchase” in conjunction with subscription of the Edisapp shall not imply a transfer of ownership. Except for the limited rights expressly granted by Eloit to Client in Section 4, Client acknowledges and agrees that, as between Client and Eloit, all right, title and interest, including all copyright, trademark, patent, trade secret, intellectual property (including but not limited to algorithms and business processes) and other proprietary rights, arising out of or relating to the provision of the Edisapp belong exclusively to Eloit, other than the Client Data.
Eloit Innovations Pvt. Ltd does not warrant that Edisapp will work in combination with any hardware or software applications provided by third parties except those expressly certified by Eloit Innovations Pvt. Ltd. All warranties will be VOID if product has been abused, altered, or has been altered without authority.
The Company does not warrant, guarantee, or make any representations regarding the use, or the results of the use, of Edisapp in terms of correctness, accuracy, reliability, or otherwise, and does not warrant that the operation of Edisapp will be uninterrupted or error free. Company expressly disclaims any warranties not stated herein.
All coding errors that are discovered within the first three months from the date of deployment of Edisapp will be fixed at no additional cost. Service after expired warranties of first three months are invoiced at the current service fee scheduled rates (See Section 18 - Edisapp Subscription Details).
The ERP services, the documentation and all other products and services, including third party hosting services, provided hereunder are provided “as is” with all faults and without representation or warranty of any kind, express or implied. Except as expressly set forth in section 12, Eloit hereby disclaims, all representations and warranties of any kind, whether express, implied, or statutory, relating to this agreement, including without limitation any implied warranties of merchantability or fitness for a particular purpose. Eloit specifically disclaims any representations or warranties as to the condition, value or qualities of any services, information or materials provided hereunder, including, but not limited to, whether any such services, information or materials will be accurate, complete, secure, continuous, uninterrupted, non-infringing or error-free, and specifically disclaims any representation or warranty as to the workmanship thereof, or the absence of any defects therein, whether latent or patent, including any warranties arising from a course of dealing, usage or trade practice. Eloit also specifically disclaims responsibility of third party products and services with which client may utilize the ERP services, and client specifically disclaims and waives any rights and claims client may have against Eloit with respect to such third party products and services, to the maximum extent permitted by law.
9. LIMIT OF LIABILITY
To the maximum extent permitted by applicable law, (i) in no event will Eloit or its affiliated entities have any liability, contingent or otherwise, for any indirect, special, incidental, consequential, punitive, statutory or exemplary damages in any way arising out of or relating to this agreement, the ERP services or any products or services provided hereunder, including, but not limited to lost profits, lost or corrupted data, loss of goodwill, work stoppage, equipment failure or malfunction, personal injury, property damage or any other damages or losses, even if a party has been advised of the possibility thereof, and regardless of the legal or equitable theory (contract, tort, statute, indemnity or otherwise) upon which any such liability is based; and (ii) the entire aggregate liability of Eloit and its affiliated entities and the sole remedy available to the client in any case in any way arising out of or relating to this agreement, the ERP services or any products or services provided hereunder shall be limited to termination of this agreement and monetary damages that in the aggregate may not exceed the total amount actually payable or paid to Eloit by client under this agreement during the three (3) months prior to its termination.
10. INTELLECTUAL PROPERTY INDEMNIFICATION
Eloit will indemnify and hold Client harmless from any third party claim brought against the Client that the ERP Services, as provided by Eloit to Client under this Agreement and used or distributed within the scope of this Agreement, infringes or misappropriates any Indian patent, copyright, trademark, trade secret, or other intellectual property rights of a third party, provided (i) use of the Service by Client is in conformity with the Agreement and Documentation; (ii) the infringement is not caused by modification or alteration of the Service or Documentation; and/or (iii) the infringement was not caused by a combination or use of the Service with products not supplied by Eloit. Eloit indemnification obligations are contingent upon Client: (i) promptly notifying Eloit in writing of the claim; (ii) granting Eloit sole control of the selection of counsel, defense, and settlement of the claim; and (iii) providing Eloit with reasonable assistance, information and authority required for the defense and settlement of the claim. This Section states Eloit’s entire liability (and shall be Client’s sole and exclusive remedy) with respect to indemnification to Client.
Eloit will provide to client the following support with Edisapp:
Technical Support is available via
- Email: firstname.lastname@example.org
- Contact Number: 9072 588 003 / 004 / 009
- Ticketing system available on our website: www.eloit.com/support
- WhatsApp Group Technical Support: + 91 9072 588 003 / 004 / 009
Client assumes the entire risk and performance of the ERP service and integrity of any data therein. Client agree to indemnify and hold harmless Eloit, its successors, officers, directors, employees, suppliers, affiliates and assigns from any claim, action, liability, loss, damage, expenses or suit arising from the client’s violation of this agreement or use or inability to use the ERP service.