End User License

1. Definitions

1.1 Account means an account enabling a person to access and use the MERCIGLOBAL CLOUD ERP, including both administrator accounts and user accounts.

Business Day means any weekday other than a bank or public holiday in India.

Business Hours means the hours of 09:30 to 19:00 IST on a Business Day.

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Customer Confidential Information means:

(a) any information disclosed by or on behalf of the Customer to the MERCIGLOBAL Team during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure:

(i) was marked or described as “confidential” or

(ii) should have been reasonably understood by the Merciglobal team to be confidential and

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(b) The Customer Data.

Customer Data means all data, works and materials: uploaded to or stored on the Platform by the Customer, transmitted by the Platform at the instigation of the Customer, supplied by the Customer to the Merciglobal Team for uploading to, transmission by or storage on the Platform, or generated by the Platform as a result of the use of the Hosted Services by the Customer (but excluding analytics data relating to the use of the Platform and server log files).

Customer Personal Data means any Personal Data that is processed by the Merci Team on behalf of the Customer in relation to this document, but excluding data with respect to which the Merci Team is a data controller.

Data Protection Laws means all applicable laws relating to the processing of Personal Data including, while it is in force and applicable to Customer Personal Data.

Documentation means the documentation for the Hosted Services produced by the Merci Team and delivered or made available by the Merci Team to the Customer.

Effective Date means the date of start date upon which Customer logs in to the software and agrees to these terms and conditions.

Force Majeure Event means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars.

Hosted Services means MERCI ERP, as specified in the Hosted Services Specification, which will be made available by the Merci Team to the Customer as a service via the internet in accordance with this document.

Hosted Services Defect means a defect, error or bug in the Platform having an adverse effect OR a material adverse effect on the appearance, operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:

(a)    any act or omission of the Customer or any person authorised by the Customer to use the Platform or Hosted Services.

(b)    any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer.

(c)    a failure of the Customer to perform or observe any of its obligations in this Document and/or

(d)    an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software not specified as compatible in the Hosted Services Specification.

Hosted Services Specification means the specification for the Platform and Hosted Services set out in Part 1 of Schedule 1 (Hosted Services particulars) and in the Documentation.

Intellectual Property Rights means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs).

Maintenance Services means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades.

Mobile App means the mobile applications made available by the Merci Team through the Google Play Store and the Apple App Store or URL.

Personal Data has the meaning given to it in the Data Protection Laws applicable in India from time to time.

Platform means the platform managed by the Merci Team and used by the Merci Team to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed.

“Schedule” means any schedule attached to the main body of this Document.

“Services” means any services that the Merci Team provides to the Customer, or has an obligation to provide to the Customer, under this Document.

“Support Services” means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services.

“Supported Web Browser” means the current release from time to time of Google Chrome or Apple Safari, or any other web browser that the Merci Team agrees in writing shall be supported.

“Term” means the term of this Document, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2.

“Update” means a hotfix, patch or minor version update to any Platform software. and

“Upgrade” means a major version upgrade of any Platform software.

3.       Term

3.1    This Document shall come into force upon the Effective Date.

3.2    This Document shall continue in force indefinitely, subject to termination in accordance with Clause 18 or any other provision of this Document.

4.       Hosted Services

4.1    The Merci Team shall ensure that the Platform will, on the Effective Date, automatically generate an Account for the Customer and provide to the Customer login details for that Account. OR The Merci Team shall create an Account for the Customer and shall provide to the Customer login details for that Account on or promptly following the Effective Date.

4.2    The Merci Team hereby grants to the Customer a worldwide, non-exclusive licence to use the Hosted Services by means of a Supported Web Browser for the internal business purposes of the Customer in accordance with the Documentation during the Term.

4.3    The licence granted by the Merci Team to the Customer under Clause 4.2 is subject to the following limitations:

(a)    the Hosted Services may only be used by the officers, employees, agents and subcontractors of the Customer.

(b)    the Hosted Services may only be used by the named users identified in Schedule 1 (Hosted Services particulars) OR identify document, providing that the Customer may change, add or remove a designated named user in accordance with the procedure set out therein. and

(c)    the Hosted Services must not be used at any point in time by more than the number of concurrent users specified in Schedule 1 (Hosted Services particulars) OR identify document, providing that the Customer may add or remove concurrent user licences in accordance with the procedure set out therein.

4.4    Except to the extent expressly permitted in this Document or required by law on a non-excludable basis, the licence granted by the Merci Team to the Customer under Clause 4.2 is subject to the following prohibitions:

(a)    the Customer must not sub-license its right to access and use the Hosted Services.

(b)    the Customer must not permit any unauthorised person to access or use the Hosted Services.

(c)    the Customer must not use the Hosted Services to provide services to third parties.

(d)    the Customer must not republish or redistribute any content or material from the Hosted Services.

(e)    the Customer must not make any alteration to the Platform, except as permitted by the Documentation. and

(f)    the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Hosted Services without the prior written consent of the Merci Team.

4.5    The Customer shall use reasonable endeavours, including reasonable security measures relating to administrator Account access details, to ensure that no unauthorised person may gain access to the Hosted Services using an administrator Account.

4.6    The Merci Team shall use all reasonable endeavours to maintain the availability of the Hosted Services to the Customer at the gateway between the public internet and the network of the hosting services Merci Team for the Hosted Services, but does not guarantee 100% availability.

4.7    For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Document:

(a)    a Force Majeure Event;

(b)    a fault or failure of the internet or any public telecommunications network;

(c)    a fault or failure of the Customer’s computer systems or networks;

(d)    any breach by the Customer of this Document; or

(e)    scheduled maintenance carried out in accordance with this Document.

4.8    The Customer must comply with Schedule 2 (Acceptable Use Policy), and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of an administrator Account comply with Schedule 2 (Acceptable Use Policy).

4.9    The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.

4.10  The Customer must not use the Hosted Services:

(a)    in any way that is unlawful, illegal, fraudulent or harmful; or

(b)    in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

4.11  For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.

4.12  The Merci Team may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Merci Team under this Document is overdue, and the Merci Team has given to the Customer at least 30 days’ online notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.

5.       Maintenance Services

5.1    The Merci Team shall provide the Maintenance Services to the Customer during the Term.

5.2    The Merci Team shall provide the Maintenance Services with reasonable skill and care OR in accordance with the standards of skill and care reasonably expected from a leading service Merci Team in the Merci Team’s industry OR specify standard(s).

5.3    The Merci Team may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to the Merci Team under this Document is overdue, and the Merci Team has given to the Customer at least 30 days’ online notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.

6.       Support Services

6.1    The Merci Team shall provide the Support Services to the Customer during the Term.

6.2    The Merci Team shall make available to the Customer a helpdesk in accordance with the provisions of this main body of this Document.

6.3    The Merci Team shall provide the Support Services with reasonable skill and care OR in accordance with the standards of skill and care reasonably expected from a leading service Merci Team in the Merci Team’s industry OR specify standard(s).

6.4    The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services. and the Customer must not use the helpdesk for any other purpose.

6.5    The Merci Team shall respond promptly to all requests for Support Services made by the Customer through the helpdesk.

6.6    The Merci Team may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Merci Team under this Document is overdue, and the Merci Team has given to the Customer at least 30 days’ online notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.

7.       Customer Data

7.1    The Customer hereby grants to the Merci Team a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Merci Team’s obligations and the exercise of the Merci Team’s rights under this Document. The Customer also grants to the Merci Team the right to sub-license these rights to its hosting, connectivity and telecommunications service Merci Teams, subject to any express restrictions elsewhere in this Document.

7.2    The Customer warrants to the Merci Team that the Customer Data OR the Customer Data when used by the Merci Team in accordance with this Document will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.

7.3    The Merci Team shall create a back-up copy of the Customer Data at least daily, shall ensure that each such copy is sufficient to enable the Merci Team to restore the Hosted Services to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 30 days.

7.4    Within the period of 1 Business Day following receipt of a written request from the Customer, the Merci Team shall use all reasonable endeavours to restore to the Platform the Customer Data stored in any back-up copy created and stored by the Merci Team in accordance with Clause 7.3. The Customer acknowledges that this process will overwrite the Customer Data stored on the Platform prior to the restoration.

8.       Mobile App

8.1    The parties acknowledge and agree that the use of the Mobile App, the parties’ respective rights and obligations in relation to the Mobile App and any liabilities of either party arising out of the use of the Mobile App shall be subject to separate terms and conditions, and accordingly this Document shall not govern any such use, rights, obligations or liabilities.

9.       No assignment of Intellectual Property Rights

9.1    Nothing in this Document shall operate to assign or transfer any Intellectual Property Rights from the Merci Team to the Customer, or from the Customer to the Merci Team.

10.    Charges

10.1  The Customer shall pay the Charges to the Merci Team in accordance with this Document.

10.2  If the Charges are based in whole or part upon the time spent by the Merci Team performing the Services, the Merci Team must obtain the Customer’s online consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing/online, the Customer shall not be liable to pay to the Merci Team any Charges in respect of Services performed in breach of this Clause 10.2.

10.3  All amounts stated in or in relation to this Document are, unless the context requires otherwise, stated exclusive of any applicable GST OR exclusive of any applicable taxes, which will be added to those amounts and payable by the Customer to the Merci Team.

10.4  The Merci Team may elect to vary any element of the Charges by giving to the Customer not less than 30 days’ online notice of the variation expiring on any anniversary of the date of execution of this Document, providing that no such variation shall result in an aggregate percentage increase in the relevant element of the Charges during the Term that exceeds 2% per annum over the percentage increase, during the same period, in the Retail Prices Index (all items) published by the Indian Office for National Statistics.

10.5  The Customer may raise certain changes / ammendments / points to be newly done in the project or Merci Cloud ERP System, which may not be available in the system at the time of placing the order, or effects the whole Merci Cloud ERP system in general. The Merci Team may consider these points to be placed under wish list. These points normally pertain to enhancement of the system but does not become an essential part of the system or project nor does stops or prevent the day to day task or working of the customer. The Merci Team does not provided any commitment towards completion timeline of these wish list tickets nor does provide any commitment to complete the same. It solely depends upon the discretion of the Merci management to decide upon the working or rejection of such tickets. At times, it may also be decided by the Merci team, that certain charges in relation to the development of any such ticket be levied upon the customer.

10.6  The Merci Team may elect to not entertain any further changes from the customer until the submission of project to the customer. As the continuous changes in the system prevent the timely delivery of the project to the customer, these unwarranted changes (not discussed at the time of finalising the blueprint of the project by the customer), may or may not be taken up in the project delivery. It may also be noted that extra charges may be provisioned at the discretion of The Merci team to incorporate such changes as these may demand reworking in the project design, reports and module layouts.

11.    Payments

11.1  The Merci Team shall issue invoices for the Charges to the Customer in advance of the period to which they relate OR from time to time during the Term OR on or after the invoicing dates set out in Part 2 of Schedule 1 (Hosted Services particulars).

11.2  The Customer must pay the Charges to the Merci Team within the period of 30 days following the issue of an invoice in accordance with this Clause 11 OR the receipt of an invoice issued in accordance with this Clause 11, providing that the Charges must in all cases be paid before the commencement of the period to which they relate.

11.3  The Customer must pay the Charges by debit card, credit card, direct debit, bank transfer or cheque (using such payment details as are notified by the Merci Team to the Customer from time to time).

11.4  If the Customer does not pay any amount properly due to the Merci Team under this Document, the Merci Team may:

(a)    charge the Customer interest on the overdue amount at the rate of 24% per annum (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or

12.    Merci Team’s confidentiality obligations

12.1  The Merci Team must:

(a)    keep the Customer Confidential Information strictly confidential.

(b)    not disclose the Customer Confidential Information to any person without the Customer’s prior written consent, and then only under conditions of confidentiality approved in writing by the Customer OR no less onerous than those contained in this Document.

(c)    use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Merci Team uses to protect the Merci Team’s own confidential information of a similar nature, being at least a reasonable degree of care.

(d)    act in good faith at all times in relation to the Customer Confidential Information. and

(e)    not use any of the Customer Confidential Information for any purpose other than specify purposes.

12.2  Notwithstanding Clause 12.1, the Merci Team may disclose the Customer Confidential Information to the Merci Team’s officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to this Document and who are bound by a written Document or professional obligation to protect the confidentiality of the Customer Confidential Information.

12.3  This Clause 12 imposes no obligations upon the Merci Team with respect to Customer Confidential Information that:

(a)    is known to the Merci Team before disclosure under this Document and is not subject to any other obligation of confidentiality.

(b)    is or becomes publicly known through no act or default of the Merci Team. or

(c)    is obtained by the Merci Team from a third party in circumstances where the Merci Team has no reason to believe that there has been a breach of an obligation of confidentiality.

12.4  The restrictions in this Clause 12 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Merci Team on any recognised stock exchange.

12.5  The provisions of this Clause 12 shall continue in force indefinitely following the termination of this Document OR for a period of 5 years following the termination of this Document, at the end of which period they will cease to have effect.

13.    Data protection

13.1  The Merci Team OR Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.

13.2  The Customer warrants to the Merci Team that it has the legal right to disclose all Personal Data that it does in fact disclose to the Merci Team under or in connection with this Document.

13.3  The Customer shall only supply to the Merci Team, and the Merci Team shall only process, in each case under or in relation to this Document, the Personal Data of data subjects falling within the categories specified in Part 1 of Schedule 3 (Data processing information) and of the types specified in Part 2 of Schedule 3 (Data processing information). and the Merci Team shall only process the Customer Personal Data for the purposes specified in Part 3 of Schedule 3 (Data processing information).

13.4  The Merci Team shall only process the Customer Personal Data during the Term and for not more than 30 days following the end of the Term, subject to the other provisions of this Clause 13.

13.5  The Merci Team shall only process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer Personal Data to any place outside the European Economic Area), as set out in this Document or any other document agreed by the parties in writing.

13.6  The Merci Team shall promptly inform the Customer if, in the opinion of the Merci Team, an instruction of the Customer relating to the processing of the Customer Personal Data infringes the Data Protection Laws.

13.7  Notwithstanding any other provision of this Document, the Merci Team may process the Customer Personal Data if and to the extent that the Merci Team is required to do so by applicable law. In such a case, the Merci Team shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.

13.8  The Merci Team shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

13.9  The Merci Team and the Customer shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data, including those measures specified in Part 4 of Schedule 3 (Data processing information).

13.10 The Merci Team must not engage any third party to process the Customer Personal Data without the prior specific or general written authorisation of the Customer. In the case of a general written authorisation, the Merci Team shall inform the Customer at least 14 days in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Customer objects to any such changes before their implementation, then the Merci Team must not implement the changes OR the Customer may terminate this Document on 7 days’ written notice to the Merci Team, providing that such notice must be given within the period of 7 days following the date that the Merci Team informed the Customer of the intended changes OR specify consequences of objection. The Merci Team shall ensure that each third party processor is subject to the same OR equivalent legal obligations as those imposed on the Merci Team by this Clause 13.

13.11 As at the Effective Date, the Merci Team is hereby authorised by the Customer to engage, as sub-processors with respect to Customer Personal Data, the third parties identified in OR third parties within the categories identified in OR the third parties, and third parties within the categories, identified in Part 5 of Schedule 3 (Data processing information).

13.12 The Merci Team shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer’s obligation to respond to requests exercising a data subject’s rights under the Data Protection Laws.

13.13 The Merci Team shall assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws. The Merci Team shall report any Personal Data breach relating to the Customer Personal Data to the Customer within 24 hours following the Merci Team becoming aware of the breach.  The Merci Team may charge the Customer at its standard time-based charging rates for any work performed by the Merci Team at the request of the Customer pursuant to this Clause 13.13.

13.14 The Merci Team shall make available to the Customer all information necessary to demonstrate the compliance of the Merci Team with its obligations under this Clause 13 and the Data Protection Laws.

13.15 The Merci Team shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.

13.16 The Merci Team shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of the compliance of the Merci Team’s processing of Customer Personal Data with the Data Protection Laws and this Clause 13. The Merci Team may charge the Customer at its standard time-based charging rates for any work performed by the Merci Team at the request of the Customer pursuant to this Clause 13.16.

13.17 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under this Document, then the parties shall use their best endeavours promptly to agree such variations to this Document as may be necessary to remedy such non-compliance.

14.    Warranties

14.1  The Merci Team warrants to the Customer that:

(a)    the Merci Team has the legal right and authority to enter into this Document and to perform its obligations under this Document.

(b)    the Merci Team will comply with all applicable legal and regulatory requirements applying to the exercise of the Merci Team’s rights and the fulfilment of the Merci Team’s obligations under this Document. and

(c)    the Merci Team has or has access to all necessary know-how, expertise and experience to perform its obligations under this Document.

14.2  The Merci Team warrants to the Customer that:

(a)    the Platform and Hosted Services will conform in all material respects with the Hosted Services Specification.

(b)    the Hosted Services will be free from Hosted Services Defects.

(c)    the application of Updates and Upgrades to the Platform by the Merci Team will not introduce any Hosted Services Defects into the Hosted Services.

(d)    the Platform will be free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs. and

(e)    the Platform will incorporate security features reflecting the requirements of good industry practice.

14.3  The Merci Team warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Document, will not breach any laws, statutes or regulations applicable under English law.

14.4  The Merci Team warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Document, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.

14.5  If the Merci Team reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with this Document infringes any person’s Intellectual Property Rights, the Merci Team may at its own cost and expense:

(a)    modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights. or

(b)    procure for the Customer the right to use the Hosted Services in accordance with this Document.

14.6  The Customer warrants to the Merci Team that it has the legal right and authority to enter into this Document and to perform its obligations under this Document.

14.7  All of the parties’ warranties and representations in respect of the subject matter of this Document are expressly set out in this Document. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Document will be implied into this Document or any related contract.

15.    Acknowledgements and warranty limitations

15.1  The Customer acknowledges that complex software is never wholly free from defects, errors and bugs. and subject to the other provisions of this Document, the Merci Team gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.

15.2  The Customer acknowledges that complex software is never entirely free from security vulnerabilities. and subject to the other provisions of this Document, the Merci Team gives no warranty or representation that the Hosted Services will be entirely secure.

15.3  The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Hosted Services Specification. and the Merci Team does not warrant or represent that the Hosted Services will be compatible with any other software or systems.

15.4  The Customer acknowledges that the Merci Team will not provide any legal, financial, accountancy or taxation advice under this Document or in relation to the Hosted Services. and, except to the extent expressly provided otherwise in this Document, the Merci Team does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.

16.    Limitations and exclusions of liability

16.1  Nothing in this Document will:

(a)    limit or exclude any liability for death or personal injury resulting from negligence.

(b)    limit or exclude any liability for fraud or fraudulent misrepresentation.

(c)    limit any liabilities in any way that is not permitted under applicable law. or

(d)    exclude any liabilities that may not be excluded under applicable law.

16.2  The limitations and exclusions of liability set out in this Clause 16 and elsewhere in this Document:

(a)    are subject to Clause 16.1. and

(b)    govern all liabilities arising under this Document or relating to the subject matter of this Document, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Document.

16.3  Neither party shall be liable to the other party OR The Merci Team shall not be liable to the Customer OR The Customer shall not be liable to the Merci Team in respect of any losses arising out of a Force Majeure Event.

16.4  Neither party shall be liable to the other party OR The Merci Team shall not be liable to the Customer OR The Customer shall not be liable to the Merci Team in respect of any loss of profits or anticipated savings.

16.5  Neither party shall be liable to the other party OR The Merci Team shall not be liable to the Customer OR The Customer shall not be liable to the Merci Team in respect of any loss of revenue or income.

16.6  Neither party shall be liable to the other party OR The Merci Team shall not be liable to the Customer OR The Customer shall not be liable to the Merci Team in respect of any loss of use or production.

16.7  Neither party shall be liable to the other party OR The Merci Team shall not be liable to the Customer OR The Customer shall not be liable to the Merci Team in respect of any loss of business, contracts or opportunities.

16.8  Neither party shall be liable to the other party OR The Merci Team shall not be liable to the Customer OR The Customer shall not be liable to the Merci Team in respect of any loss or corruption of any data, database or software. providing that this Clause 16.8 shall not protect the Merci Team unless the Merci Team has fully complied with its obligations under Clause 7.3 and Clause 7.4.

16.9  Neither party shall be liable to the other party OR The Merci Team shall not be liable to the Customer OR The Customer shall not be liable to the Merci Team in respect of any special, indirect or consequential loss or damage.

16.10 The liability of each party to the other party OR the Merci Team to the Customer OR the Customer to the Merci Team under this Document in respect of any event or series of related events shall not exceed the greater of:

(a)    amount. and

(b)    the total amount paid and payable by the Customer to the Merci Team under this Document in the 12 month period preceding the commencement of the event or events.

16.11 The aggregate liability of each party to the other party OR the Merci Team to the Customer OR the Customer to the Merci Team under this Document shall not exceed the greater of:

(a)    amount. and

(b)    the total amount paid and payable by the Customer to the Merci Team under this Document.

17.    Force Majeure Event

17.1  If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Document (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

17.2  A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Document, must:

(a)    promptly notify the other. and

(b)    inform the other of the period for which it is estimated that such failure or delay will continue.

17.3  A party whose performance of its obligations under this Document is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

18.    Termination

18.1  Either party may terminate this Document by giving to the other party at least 30 days’ written notice of termination.

18.2  Either party may terminate this Document immediately by giving written notice of termination to the other party if the other party commits a material breach of this Document.

18.3  Either party may terminate this Document immediately by giving written notice of termination to the other party if:

(a)    the other party:

(i)     is dissolved.

(ii)    ceases to conduct all (or substantially all) of its business.

(iii)    is or becomes unable to pay its debts as they fall due.

(iv)   is or becomes insolvent or is declared insolvent. or

(v)    convenes a meeting or makes or proposes to make any arrangement or composition with its creditors.

(b)    an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party.

(c)    an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Document). or

(d)    if that other party is an individual:

(i)     that other party dies.

(ii)    as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs. or

(iii)    that other party is the subject of a bankruptcy petition or order.

19.    Effects of termination

19.1  Upon the termination of this Document, all of the provisions of this Document shall cease to have effect, save that the following provisions of this Document shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 4.11, 8, 11.2, 11.4, 12, 13.1, 13.3, 13.4, 13.5, 13.6, 13.7, 13.8, 13.9, 13.10, 13.11, 13.12, 13.13, 13.14, 13.15, 13.16, 13.17, 16, 19, 22 and 23.

19.2  Except to the extent that this Document expressly provides otherwise, the termination of this Document shall not affect the accrued rights of either party.

19.3  Within 30 days following the termination of this Document for any reason:

(a)    the Customer must pay to the Merci Team any Charges in respect of Services provided to the Customer before the termination of this Document. and

(b)    the Merci Team must refund to the Customer any Charges paid by the Customer to the Merci Team in respect of Services that were to be provided to the Customer after the termination of this Document,

without prejudice to the parties’ other legal rights.

20.    Notices

20.1  Any notice from one party to the other party under this Document must be given by one of the following methods (using the relevant contact details set out in Clause 20.2 and Part 3 of Schedule 1 (Hosted Services particulars)):

(a)    delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery. or

(b)    sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting,

providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.

20.2  The Merci Team’s contact details for notices under this Clause 20 are as follows: contact details.

20.3  The addressee and contact details set out in Clause 20.2 and Part 3 of Schedule 1 (Hosted Services particulars) may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 20.

21.    Subcontracting

21.1  The Merci Team must not subcontract any of its obligations under this Document without the prior written consent of the Customer, providing that the Customer must not unreasonably withhold or delay the giving of such consent.

OR

21.1  Subject to any express restrictions elsewhere in this Document, the Merci Team may subcontract any of its obligations under this Document, providing that the Merci Team must give to the Customer, promptly following the appointment of a subcontractor, a written notice specifying the subcontracted obligations and identifying the subcontractor in question.

21.2  The Merci Team shall remain responsible to the Customer for the performance of any subcontracted obligations.

21.3  Notwithstanding the provisions of this Clause 21 but subject to any other provision of this Document, the Customer acknowledges and agrees that the Merci Team may subcontract to any reputable third party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform.

22.    General

22.1  No breach of any provision of this Document shall be waived except with the express written consent of the party not in breach.

22.2  If any provision of this Document is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Document will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).

22.3  This Document may not be varied except by a written document signed by or on behalf of each of the parties.

22.4  Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Document.

22.5  This Document is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Document are not subject to the consent of any third party.

22.6  Subject to Clause 16.1, this Document shall constitute the entire Document between the parties in relation to the subject matter of this Document, and shall supersede all previous Documents, arrangements and understandings between the parties in respect of that subject matter.

22.7  This Document shall be governed by and construed in accordance with English law.

22.8  The courts of Surat shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Document.

23.    Interpretation

23.1  In this Document, a reference to a statute or statutory provision includes a reference to:

(a)    that statute or statutory provision as modified, consolidated and/or re-enacted from time to time. and

(b)    any subordinate legislation made under that statute or statutory provision.

23.2  The Clause headings do not affect the interpretation of this Document.

23.3  References in this Document to “calendar months” are to the 12 named periods (January, February and so on) into which a year is divided.

23.4  In this Document, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

24.    CRM – Call Handling (Incoming & Outgoing) for Customer Support

24.1  Call handling is a reference to:

(a)    any outgoing calls made to our customers for support or any other communication purposes

(b)    any incoming calls received from our customers for support or any other communication purposes.

24.2  The customer number is strictly confidential and shall not be used nor shared for any purpose of advertising or any sort.

24.3  The calls generated will be via IVR system, wherein voice recording of each call and track of each call w.r.t. support agent name will be stored on the IVR company server. This can be used for further training or other processing purposes.

24.4  Company standard number for customer support shall be +91 76220 14301. Customer shall dial or call on this number only to obtain any technical support or query.

24.5 MERCI team will use a standard IVR company number for making calls to its customers for technical support or discussion purposes only.

​

Schedule 1 (Hosted Services particulars)

1.       Specification of Hosted Services

Linux OS, MySql Database Server, PHP, JQuery, JS, SSL & HTTPS for security.

Schedule 2 (Acceptable Use Policy)

1.       Introduction

1.1    This acceptable use policy (the “Policy“) sets out the rules governing:

(a)    the use of the website at URL, any successor website, and the services available on that website or any successor website (the “Services“). and

(b)    the transmission, storage and processing of content by you, or by any person on your behalf, using the Services (“Content“).

1.2    References in this Policy to “you” are to any customer for the Services and any individual user of the Services (and “your” should be construed accordingly). and references in this Policy to “us” are to identify Merci Team (and “we” and “our” should be construed accordingly).

1.3    By using the Services, you agree to the rules set out in this Policy.

1.4    We will ask for your express Document to the terms of this Policy before you upload or submit any Content or otherwise use the Services.

1.5    You must be at least 18 years of age to use the Services. and by using the Services, you warrant and represent to us that you are at least 18 years of age.

2.       General usage rules

2.1    You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.

2.2    You must not use the Services:

(a)    in any way that is unlawful, illegal, fraudulent, deceptive or harmful. or

(b)    in connection with any unlawful, illegal, fraudulent, deceptive or harmful purpose or activity.

2.3    You must ensure that all Content complies with the provisions of this Policy.

3.       Unlawful Content

3.1    Content must not be illegal or unlawful, must not infringe any person’s legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).

3.2    Content, and the use of Content by us in any manner licensed or otherwise authorised by you, must not:

(a)    be libellous or maliciously false.

(b)    be obscene or indecent.

(c)    infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right.

(d)    infringe any right of confidence, right of privacy or right under data protection legislation.

(e)    constitute negligent advice or contain any negligent statement.

(f)    constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity.

(g)    be in contempt of any court, or in breach of any court order.

(h)    constitute a breach of racial or religious hatred or discrimination legislation.

(i)     be blasphemous.

(j)     constitute a breach of official secrets legislation. or

(k)    constitute a breach of any contractual obligation owed to any person.

3.3    You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.

4.       Graphic material

4.1    Content must be appropriate for all persons who have access to or are likely to access the Content in question, and in particular for children over 12 years of age.

4.2    Content must not depict violence in an explicit, graphic or gratuitous manner.

4.3    Content must not be pornographic or sexually explicit.

5.       Factual accuracy

5.1    Content must not be untrue, false, inaccurate or misleading.

5.2    Statements of fact contained in Content and relating to persons (legal or natural) must be true. and statements of opinion contained in Content and relating to persons (legal or natural) must be reasonable, be honestly held and indicate the basis of the opinion.

6.       Negligent advice

6.1    Content must not consist of or contain any legal, financial, investment, taxation, accountancy, medical or other professional advice, and you must not use the Services to provide any legal, financial, investment, taxation, accountancy, medical or other professional advisory services.

6.2    Content must not consist of or contain any advice, instructions or other information that may be acted upon and could, if acted upon, cause death, illness or personal injury, damage to property, or any other loss or damage.

7.       Etiquette

7.1    Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behaviour on the internet.

7.2    Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.

7.3    Content must not be liable to cause annoyance, inconvenience or needless anxiety.

7.4    You must not use the Services to send any hostile communication or any communication intended to insult, including such communications directed at a particular person or group of people.

7.5    You must not use the Services for the purpose of deliberately upsetting or offending others.

7.6    You must not unnecessarily flood the Services with material relating to a particular subject or subject area, whether alone or in conjunction with others.

7.7    You must ensure that Content does not duplicate other content available through the Services.

7.8    You must ensure that Content is appropriately categorised.

7.9    You should use appropriate and informative titles for all Content.

7.10  You must at all times be courteous and polite to other users of the Services.

8.       Marketing and spam

8.1    You must not without our written permission use the Services for any purpose relating to the marketing, advertising, promotion, sale or supply of any product, service or commercial offering.

8.2    Content must not constitute or contain spam, and you must not use the Services to store or transmit spam – which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.

8.3    You must not send any spam or other marketing communications to any person using any email address or other contact details made available through the Services or that you find using the Services.

8.4    You must not use the Services to promote, host or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, multi-level marketing schemes, “get rich quick” schemes or similar letters, schemes or programs.

8.5    You must not use the Services in any way which is liable to result in the blacklisting of any of our IP addresses.

9.       Regulated businesses

9.1    You must not use the Services for any purpose relating to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity.

9.2    You must not use the Services for any purpose relating to the offering for sale, sale or distribution of drugs or pharmaceuticals.

9.3    You must not use the Services for any purpose relating to the offering for sale, sale or distribution of knives, guns or other weapons.

10.    Monitoring

10.1  You acknowledge that we may actively monitor the Content and the use of the Services OR we do not actively monitor the Content or the use of the Services.

11.    Data mining

11.1  You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Services.

12.    Hyperlinks

12.1  You must not link to any material using or by means of the Services that would, if it were made available through the Services, breach the provisions of this Policy.

13.    Harmful software

13.1  The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.

13.2  The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.

Schedule 3 (Data processing information)

1.       Categories of data subject

All fields / properties provided in the company master or personal or demographic information of the customer.

2.       Sub-processors of Personal Data

 

Merci Team.