Terms of Use

In these Terms of Use, unless the context otherwise requires, the following terms / expressions shall have the following meaning respectively:

• "Administrator" shall mean an authorized managerial personnel of the Customer who is designated with all responsibilities of managing the Administrator Account (as defined below) subject to the terms of the applicable Service Order(s) and as mentioned hereunder;
• "Administrator Account" shall mean a primary account created for and managed by the Administrator, which enables such Administrator to access, configure, and administer the Subscribed Software Services, including the authority to create User Accounts (as defined below) and to generate and assign user IDs and passwords for each User as per these Terms of Use and the applicable Service Order(s);
• "Affiliate" or “Affiliates of a Person other than a natural Person, shall mean any other Person, which, directly or indirectly, controls, is controlled by or is under the common control of such first Person. For the purpose of this definition of ‘Affiliates’, the words “control” (including the terms “controlling”, “controlled by” and “under the common control with”), shall mean: (i) direct or indirect ownership of 50% (Fifty Percent) or more of the voting securities of such Party or Person, as applicable; or (ii) the power to direct or cause the direction of the management and policies of a Party or Person, as applicable, whether through the ownership, by contract or otherwise;
• "Applicable Laws" shall mean any statute, law, regulation, ordinance, rule, judgment, notification, rule of common law, order, injunction, judgment, decree, bye-law, government approval, directive, guideline, requirement, or other governmental restriction, or any similar form of a decision of, or determination by, or any interpretation, policy or administration, having the force of the law of any of the foregoing, by any national, international, state, provincial, local or similar government, governmental, regulatory or administrative authority, branch, agency, any statutory body or commission or any non-governmental regulatory or administrative authority having jurisdiction over the matter in question, whether in effect as of the date of these Terms of Use or thereafter and governed by the laws of India and international laws, as may be applicable;
• "Cloud Infrastructure" shall have the meaning as ascribed to it in Clause 15.1 below;
• "Confidential Information" shall have the meaning as ascribed to it in Clause 20.1 below;
• "Contract Period" shall have the meaning as ascribed to it in Clause 22.1 below;
• "Customer" / "Customer(s)" / "You" / "Your" shall mean in case of an individual accepting the Service Order on his or her behalf, such individual, or in case of an individual accepting the Service Order on behalf of a company or other legal entity, the company or the legal entity for which such individual is accepting the Service Order;
• "Default Interest" shall have the meaning as ascribed to it in Clause 9.4 below;
• "DIAC" shall have the meaning as ascribed to it in Clause 23.2 below;
• "DIAC Rules" shall have the meaning as ascribed to it in Clause 23.2 below;
• "Disclosing Party" shall indistinctly refer to a Party who is disclosing or has disclosed its Confidential Information to the Receiving Party (as defined below);
• "Disputes" shall have the meaning as ascribed to it in Clause 23.2 below;
• "Force Majeure Condition(s)" shall have the meaning as ascribed to it in Clause 25.8 (a) below;
• “Legally Compelled Disclosure” shall have the meaning as ascribed to it in Clause 20.10 below;
• “Ideas and Features” shall have the meaning as ascribed to it in Clause 21.1 below;
• “Implementation Services” shall have the meaning as ascribed to it in Clause 4.1 below;
• “Integrated Application(s)” shall have the meaning as ascribed to it in Clause 11.1 below;
• “Integrated Application Terms” shall have the meaning as ascribed to it in Clause 11.1 below;
• “Intellectual Property Rights” shall mean and include all the rights relating to intangible property whether or not filed, perfected, registered or recorded and whether now or hereafter existing, filed, issued or acquired the technical know-how, process know how, copyright, patent, trademark, service mark, design, logo, brand names, rights in computer software, databases, machine learning models and any other intellectual property rights permissible under law. It shall also include internet domain names, internet and world wide web (www) URLs or addresses, website addresses all other intellectual, information or proprietary rights anywhere in the world including rights of privacy and publicity, rights to publish information and content in any media used or for use in the business;
• “Maintenance and Support Services” shall have the meaning as ascribed to it in Clause 5 below;
• “Permitted Representative” shall have the meaning as ascribed to it in Clause 20.2 below;
• “Person” shall include an individual, an association, a corporation, a partnership, a joint venture, a trust, an unincorporated organization, a joint stock company or other entity or organization, including a government or political subdivision, or an agency or instrumentality thereof and / or any other legal entity;
• “Personal Data” shall mean any data about an individual who is identifiable by or in relation to such data;
• “Professional Service” / “Professional Services” shall mean Implementation Services, Maintenance and Support Services and any other related services that may be provided by the Company to the Customer hereunder and that may involve analysis, technical support, integration, training, etc. and / or may also include consulting or other specialized services that may be provided by the Company, as set forth in detail in the Service Order(s);
• “Receiving Party” shall indistinctly refer to a Party who is receiving or has received Confidential Information of the Disclosing Party;
• “Service Order” / “Service Order(s)” / “Service Orders” shall mean the order document(s), in the format(s) as prescribed by the Company, executed between the Company and the Customer(s), defining the scope of the Customer’s subscription plan for use and access of the Software and Professional Services as mentioned thereto;

• “Software” or “Softwares” shall mean any and all cloud-based software(s) developed by the Company and / or for the Company, including any updates or new versions thereof, which may include the following:

  1. Browntape, as more specifically mentioned / detailed in Schedule I of these Terms of Use (“Browntape”);
  2. Ginesys BI, as more specifically mentioned / detailed in Schedule I of these Terms of Use (“Ginesys BI”);
  3. EaseMyGST, as more specifically mentioned / detailed in Schedule I of these Terms of Use (“EaseMyGST”);
  4. Ginesys ERP, as more specifically mentioned / described in Schedule I of these Terms of Use (“Ginesys ERP”);
  5. Ginesys POS, as more specifically mentioned / described in Schedule I of these Terms of Use (“Ginesys POS”);
  6. Zwing mPOS & Web POS, as more specifically mentioned / described in Schedule I of these Terms of Use (“Zwing mPOS & Web POS”); and
  7. any other software that may be developed by the Company and / or for the Company, from time to time;

  However, the term ‘Software’ shall exclude any third-party database(s) or services(s) including any maintenance release(s), update(s) and the applicable documentation(s) thereto;

• “Subscribed Service” / “Subscribed Services” / “Subscribed Service(s)” shall have the meaning as ascribed to it in Clause 3.1 below;
• “Subscribed Software” / “Subscribed Softwares” / “Subscribed Software(s)” shall have the meaning as ascribed to it in Clause 3.1 below;
• “Subscribed Software Services” shall have the meaning as ascribed to it in Clause 3.1 below;
• “Subscription Fee(s)” shall have the meaning as ascribed to it in Clause 9.1 below;
• “Terms of Use” shall mean these Terms of Use – Ginesys including its schedules, exhibits and annexures attached herein and any or all the amendment(s) / modification(s) to these Terms of Use – Ginesys, from time to time;
• “Third Party Claim” shall have the meaning as ascribed to it in Clause 19.2 (a) below;
• “Third Party Claim Notice” shall have the meaning as ascribed to it in Clause 19.2 (a) below;
• “Third Party Content” means all software, data, text, images, audio, video, photographs and other content and material, in any format, that You may access through, within, or in conjunction with Your use of the Subscribed Software Services which derives from third party sources, Integrated Application(s) and is not owned by the Company;
• “Third Party Vendors” shall mean and include all the vendors (except the Company or its Affiliates or its authorized agents) who are providing third party applications to You through the Company;
• “Thresholds” shall have the meaning as ascribed to it in Clause 9.2 below;
• “Transferee” shall have the meaning as ascribed to it in Clause 25.2 (a) below;
• “Tribunal” shall have the meaning as ascribed to it in Clause 23.4 below;
• “UPSI” means any information, relating to a company or its securities, directly or indirectly, that is not generally available to the public, which upon becoming generally available, is likely to materially affect the price of securities of a company in accordance with the applicable SEBI regulations, as amended from time to time;
• “User” or “Users” shall mean authorized individual(s) (which may be the Customer’s employee(s), contractor(s), consultant(s) or agent(s)) given / granted access to the Subscribed Software(s) and has been supplied a user identification and password by Your Administrator;
• “User Accounts” shall mean an account within the Subscribed Software Services that is created, managed, and maintained by the Administrator through the Administrator Account for an authorized User, in order to enable such User to access and use the Subscribed Software Services in terms of these Terms of Use. Each User Account shall have a unique ID and password as may be assigned by the Administrator and is clearly identifiable;
• “WoS” shall have the meaning as ascribed to it in Clause 25.4 (b) below; and
• “Your Content” / “Customer’s Content” shall mean all data including Personal Data, text, images, audio, video, photographs and other content and material, in any format, provided by You or Your Administrator or any of Your Users that is stored in, made visible on or ran through the Subscribed Software Services. For the purpose of clarity, Your Content specifically excludes content provided by the Company, Softwares, Professional Services, Confidential Information and Intellectual Property Rights of the Company, its Affiliates and / or the Company’s authorized agents.

• In these Terms of Use, unless the context otherwise requires:
  1. Reference to singular includes a reference to the plural and vice-versa;
  2. Reference to any gender includes a reference to all other genders;
  3. Reference to statutory provisions shall be construed as meaning and including references to any amendment, rules, regulation, modification, replacement or re-enactment (whether before or after the date of these Terms of Use) for the time being in force and to all statutory instruments or orders made pursuant to statutory being in force and to all statutory instruments or orders made pursuant to statutory provisions;
  4. References to an agreement or document will be construed as references to the terms thereof;
  5. References to the words “include” or “including” shall be construed without limitation; and
  6. References to any recital(s) or clause(s) or section(s) or schedule(s) or annexure(s), if any, shall be deemed to be a reference to any recital(s) or clause(s) or schedule(s) or annexure(s) of / or to these Terms of Use.
• The terms “herein”, “thereof”, “therein”, “hereby”, “hereto” and other derivatives or similar words, refer to these Terms of Use in its entire or specified clauses / sections of these Terms of Use, as the case may be.
• All headings and sub-headings in these Terms of Use, and / or the use of bold typeface are for convenience only and shall not affect the construction or interpretation of any provision of these Terms of Use.
• The schedules, annexures and exhibits hereto shall constitute an integral part of these Terms of Use. However, in the event of any inconsistency or conflict among the provisions of these Terms of Use, the schedules, and the Service Orders, the order of precedence shall be: (i) these Terms of Use; (ii) the schedules; and (iii) the Service Orders. Notwithstanding the foregoing, any terms expressly set out under the head ‘Special Terms’ in a Service Order, such terms shall prevail over the conflicting terms as mentioned in the Terms of Use and the schedules but only to the extent and in respect of the subject matter of such Service Order.
• All reference to these Terms of Use shall be deemed to include any amendments or modifications to these Terms of Use, from time to time.
• Any word or phrase defined in these Terms of Use including the schedules as opposed to being defined under definitions shall have meaning so assigned to it unless the contrary is expressly stated or contrary clearly appears from the context.
• The rule of construction, if any, that a contract / agreement / Terms of Use shall be interpreted against a Party responsible for the drafting and preparation thereof shall not apply.

• The Company shall make:

  1. the Softwares listed and agreed in the Service Order(s) (“Subscribed Software” / “Subscribed Softwares” / “Subscribed Software(s)”);
  2. the Professional Services listed and agreed in the Service Order(s) (“Subscribed Service” / “Subscribed Services” / “Subscribed Service(s)”);

  available to You pursuant to / in accordance with these Terms of Use and the Service Order(s) (collectively referred to as “Subscribed Software Services”). For the purpose of these Terms of Use, the term ‘Subscribed Software Services’ shall also include any other Softwares and / or Services that are subscribed by You through a Service Order(s), from time to time.

• During the Contract Period, You shall receive a non-exclusive, non-assignable, royalty-free, worldwide right to access and use the Subscribed Software Services (as the case may be) solely for Your internal business operations subject to the terms and conditions mentioned in these Terms of Use and the relevant Service Order(s). You may access the relevant Subscribed Software Services using any internet connection with contemporary speed supported by such services, as may be applicable. Further, certain Subscribed Software Services may require intermittent access to the internet, and some require active internet connection. You are responsible for obtaining such access to the internet and the equipment(s) necessary to use the Subscribed Software Services. You acknowledge and understand that these Terms of Use is a service arrangement and the Company shall not be delivering copies of the applicable Software to You as part of the Subscribed Software Services.
• The Customer(s) understands and acknowledges that the Softwares / Subscribed Softwares are a set of standard applications, and no customization is / shall be provided by the Company in such Softwares / Subscribed Softwares apart from the configurations available in the Softwares / Subscribed Softwares itself, as the case may be.

• 4.1. The Company shall provide implementation and training services to the Customer(s) through its designated personnel at the Customer’s site (onsite) or offsite, as the case may be, which include configuration of the Subscribed Softwares in the Customer’s computer systems and training of the Customer’s authorized personnel to ensure operational readiness of the Subscribed Softwares, as more specifically set out in Schedule II and the relevant Service Order for such services (“Implementation Services”).
• 4.2. Where the Customer(s) avails the Implementation Services prior to the commencement of the relevant Subscribed Software, the training of the Customer’s authorized personnel shall be conducted using a dummy account provided by the Company. Where the Implementation Services are availed after the commencement of the relevant Subscribed Software, the training of the Customer’s authorized personnel and / or Your Administrator and / or Your Users may be conducted either on a dummy account or on the Customer’s live Administrator Account / User Accounts, as the case may be.

During the Contract Period, the Company shall provide maintenance and support services to ensure the continued functionality and usability of the Subscribed Softwares, which services shall include software service level commitments in relation to software uptime, connectivity and bug fixes, resolution of incidents, updates, schedule maintenance and general assistance with standard features of the Subscribed Softwares, as are more specifically set out in Schedule III – Part A below (“Maintenance and Support Services”).

• 6.1. You need to appoint an Administrator, who has to sign up for an Administrator Account by providing all required information in order to access, manage and / or use the Subscribed Software Services. For the said purpose, You agree to:

  1. provide true, accurate, current and complete information about yourself and / or the Administrator as prompted / required by the sign up process; and
  2. maintain and promptly update the information provided during sign up to keep it true, accurate, current, and complete.

  If You and / or Your Administrator provide any information that is untrue, inaccurate, outdated, or incomplete, or if the Company has reasonable grounds to suspect that such information is untrue, inaccurate, outdated, or incomplete, the Company may suspend Your Administrator Account and / or User Accounts and refuse current or future use of any or all of the Subscribed Software Service.

• 7.1. You hereby represents, warrants, covenants and undertakes that, in relation to the Subscribed Software Services, You shall not, directly, indirectly, alone, or with another party or permit others, as the case may be, to:
  1. use Subscribed Software Services, for any unlawful or illegal purposes and / or for posting, storing, distribution, transmission, display or presentation of Your Content and / or Personal Data including any other information that is unlawful, defamatory, insulting, harassing, libelous, invasive of another's privacy (including bodily privacy), abusive, threatening, harmful, vulgar, pornographic, pedophilic, harmful to children, obscene, offends religious sentiments, promotes racism, racially or ethnically objectionable, or is otherwise objectionable;
  2. provide any false, misleading or inaccurate information;
  3. indulge in impersonation, identity theft, and unauthorized advertising using Your account or giving access to the Subscribed Software Services including but not limited for creating a false identity to mislead any Person as to the identity or origin of any communication(s);
  4. upload or transmit any malicious applications including viruses, worms or other malicious code or programs that could damage, disable, overburden, impair, or harm any server, network, computer system, resource of the Company or interfere with or attempt to evade or disable the Subscribed Software Services, proper working of the equipment connected to such Subscribed Software Services or disrupts the integrity, security or performance of such services, its components and the data contained therein;
  5. infringe or may infringe anyone’s Intellectual Property Rights, including copyrights, trademarks, patents and trade secrets, privacy or publicity rights;
  6. engage in activities that include but are not limited to hacking other computers or servers, including the Company’s and / or violating any requirements, procedures, policies or rules of networks related to the system and / or engaging in any unlawful activity using credit cards;
  7. entail an excessively large load on the infrastructure of the Company system or network or cloud and / or the Subscribed Software Services;
  8. restrict or restrain any other Person from using the Software and / or Professional Services including any part thereof, as the case may be;
  9. violate the terms and conditions of these Terms of Use or encourage or assist anyone else to violate the terms and conditions of these Terms of Use;
  10. post links to third party sites or use their logo, company name, etc. without their prior written permission;
  11. use the third party links to sites without agreeing to their website’s terms and conditions;
  12. attempt to gain unauthorized access to the Subscribed Software Services or its related systems or network or cloud;
  13. host, display, upload, modify, publish, transmit, store, update or share any information that belongs to another Person or entity and to which You do not have any right, including personal or confidential information of any Person or entity with respect to which You do not have consent or permission from such Person or entity;
  14. remove or obscure any proprietary or other notices contained in the Subscribed Software Services;
  15. use the Subscribed Software Services in a manner that relates to or encourages any activity prohibited by law in India and / or other applicable territories;
  16. use the Subscribed Software Services for the transmission of “junk mail”, “spam”, “chain letters”, “phishing” or unsolicited mass distribution of email(s);
  17. use, duplicate, republish, upload, dispense, gather, revise, transmit, or post elsewhere, any content of the Subscribed Software Services for any commercial purposes;
  18. modify, make derivative works of, disassemble, decompile, reverse engineer, reproduce, republish or copy any part of the Subscribed Software Services (including data structures or similar materials produced by programs);
  19. license, sell, transfer, assign, distribute, outsource, commercially exploit, or make available the Subscribed Software Services to any third party, except to the extent permitted in accordance with Clause 25.2 (Transfer of Subscribed Software Services); and
  20. access or use the Subscribed Software Services to build or support, directly or indirectly, products or services competitive to the Company.
• 7.2. You further represent, warrants, covenants and undertakes that, unless express written consent is provided by the Company, You shall not:
  1. use of any registered or unregistered trademark, logo, brand name and similar Intellectual Property Rights of the Company;
  2. alter, eliminate, remove, supplement, add to, publish, transmit, participate in the transfer, rental or sale of, create derivative works from, or in any way exploit any of the content of the Subscribed Software Services, in whole or in part; and
  3. access or attempt to access the Subscribed Software Services or collect or index information provided on the Subscribed Software Services using any automated means, such as robots, spiders, scrapers, scripts, or similar means or equivalent manual processes.

• 8.1. You acknowledge and understand the following:
  1. You shall be solely responsible for the contents of Your transmissions through the Subscribed Software Services;
  2. You are responsible for managing Your Administrator Account and User Accounts, change / alteration / modification of security settings available within the Subscribed Software Services and for maintaining confidentiality of Your username(s), password(s) and other sensitive information available on the Subscribed Software. You are responsible for all activities that occur in Your Administrator Account and / or User Accounts, You are responsible for any security vulnerabilities, and the consequences of such vulnerabilities, arising from Your Content, including any viruses, trojan horses, worms or other harmful programming routines contained in Your Content, or from Your use of the Subscribed Software Services in a manner that is inconsistent with the terms of these Terms of Use. The Company shall not be responsible for any loss or damage to You or to any third party incurred as a result of any unauthorized access and / or use of Your Administrator Account and / or User Accounts, or otherwise;
  3. Your access and use and continuous access and use of the Subscribed Software Services require Your compliance with the Applicable Laws, the terms of these Terms of Use and the Service Order(s), including payment of all applicable fees to the Company;
  4. all Intellectual Property Rights related to all the applications under Softwares / Subscribed Software Services rightfully belong to the Company and / or its Affiliates and / or its licensor(s) for providing various services under these Terms of Use. The Company doesn’t transfer or assign any of its Intellectual Property Rights to you, partially or fully;
  5. the Company shall not be held liable for Your lack of knowledge of any terms within these Terms of Use and amendments thereof. Further, You confirm that You have relied solely on Your judgment in deciding to avail the Subscribed Software Services and are not influenced by any brochures, advertisement, representations, statements, covenants or warranties of any nature whatsoever, whether written or oral, made by any Person including the Company;
  6. the Company shall not be held liable or responsible for the accuracy, completeness, or content of any sites linked through hyperlinks, banner advertising or otherwise and the content therein;
  7. Your Content or any other information uploaded by You may be subject to investigation / verification by the Company or any agency appointed by the Company or the relevant Government authority. Furthermore, if You are found to be in non-compliance with the Applicable Laws and / or these Terms of Use and / or if the Company receives complaints concerning any illegality or infringement of third party rights in Your Content / information, we may terminate Your account and / or block Your access to the Subscribed Software Services and we reserve the right to remove any non-compliant content including Your Content uploaded by You and / or Your Users and shall further have the right to take recourse to such remedies as would be available to the Company under the Applicable Laws;
  8. the Subscribed Software Services are provided over the Internet, data, and cellular networks, the quality, and availability of the same may be affected by factors outside the Company’s control, therefore, the Company shall not be liable for the non-availability of the Subscribed Software Services beyond the levels as mentioned under these Terms of Use and for factors outside of the Company’s control;
  9. the Company may collect and use certain statistical and usage information relating to the Subscribed Software Services and may share such information with authorized Third Party Vendors. This information may include, but is not limited to, size and number of applications, login statistics, session information (e.g., number, duration, error messages, types/number of users, applications and/or charts used and API usage), browser configurations and so on; and
  10. the Company shall have the right to suspend the Subscribed Software Services, either wholly or in part, at its sole discretion, in case of any violation or breach of the Terms of Use and / or applicable Service Order(s) by You.

• 9.1. You shall be charged fee(s) for subscribing to the Subscribed Software Services as specified within the agreed Service Order(s) (“Subscription Fee(s)”). Unless otherwise agreed in the relevant Service Order(s) for the relevant Subscribed Software Services, the Subscription Fee(s) shall be paid in advance to ensure uninterrupted Subscribed Software Services. The subscription of the first software in the Subscribed Software Services may determine the renewal date of the overall Subscribed Software Services under the relevant Service Order(s) unless otherwise specified in writing by the Company. The applicable fee types, their basis of computation and frequency of payment is as follows:

*Note: Unless otherwise mentioned in the relevant Service Order(s), the basis of computation of fess shall be as per criteria / metrics mentioned in this Clause 9.1.

• 9.2. If You exceed the quantity of the Subscribed Software Services and / or certain metrics are crossed / met (e.g., no. of units / User Accounts purchased, no. of hours consumed, API limits crossed, usage limits has been crossed) that are accepted by You under the applicable Service Order(s) (“Thresholds”), then You shall be automatically billed through supplementary invoices for the aggregate quantity, usage etc as mentioned above, of the Subscribed Software Services exceeding the Thresholds. You shall be liable to pay such supplementary invoices raised along with immediately subsequent invoice raised / billed to You within the agreed Subscribed Software Services (i.e., such Subscribed Software Services of which Threshold(s) have exceeded). The Customer hereby irrevocably acknowledges and agrees that, if required by the Company, it shall execute the necessary Service Order(s) covering such over-usage.
• 9.3. Each Subscribed Software has a list of standard incident support described in Schedule III – Part A below. You may be charged extra for support services that are not covered in the standard support services of the Subscribed Software Services. This is usually done by deducting hours consumed for the task from the support hours pack You have purchased for these kinds of activities.
• 9.4. If any amount(s) due and payable by the Customer under these Terms of Use and / or the applicable Service Order(s), whether or not invoiced, remains unpaid after the relevant due date, then without prejudice to all the rights and remedies available to the Company under these Terms of Use and / or the Applicable Laws, You shall be liable to make payment of interest at the rate of 1.5% (One Point Five Percent) per month on such delayed amounts, for the period of delay (i.e. from the due date till such amounts are paid to the Company) (“Default Interest”) in addition to the said delayed amount. Without limiting the foregoing or any other rights or remedies available to the Company, if any such amount remains unpaid for more than 15 (Fifteen) days after the due date, the Company may, without notice and in its sole discretion:
  1. suspend the Subscribed Software Services, until the Company has received payment in full of all overdue amounts together with the applicable Default Interest; or
  2. terminate the applicable Service Order(s) and / or these Terms of Use.
• 9.5. Statutory taxes shall be applicable on all the invoices raised by the Company, from time to time.
• 9.6. Notwithstanding anything to the contrary contained in these Terms of Use, in the event Your license / scope of the Subscribed Software Services is downgraded, due to any reason whatsoever, no refund shall be made by the Company for the remaining Contract Period. However, in the event Your license / scope of the Subscribed Software Services is upgraded or enhancement, due to any reason whatsoever, You shall be immediately liable to pay such additional Subscription Fee(s), on pro-rata basis, as may be notified by the Company for the remaining Contract Period for such upgradation or enhancement.
• 9.7. The Subscription Fee(s) shall be subject to escalation / increment in such percentage and after such period as more specifically mentioned in the relevant Service Order(s).

10.1. The Company’s name(s) and logo(s) including the names and logos of the Subscribed Software Services, as the case may be, are trademarks of the Company and / or its Affiliates. You agree not to display or use, in any manner, such trademarks, without the Company’s prior written consent (which consent may be withheld by the Company at its sole discretion).

• 11.1. Upon Your request, the Company may provide You access to the third-party applications (“Integrated Application(s)”), provided that such Integrated Application(s) is included in a duly signed Service Order. Access to and use of such application(s) may require Your acceptance of terms of service and privacy policies applicable to such Integrated Application(s) (“Integrated Application Terms”) over and above these Terms of Use. You understand that such Integrated Application(s) are the sole responsibility of the Third Party Vendor that created or provided such Integrated Applications. You are responsible for reading and understanding the Integrated Application Terms before accessing or using any Integrated Application(s) and shall abide by such Integrated Application Terms solely at Your own risk.
• 11.2. All third party Intellectual Property Rights shall be provided on as is basis and shall always be governed by Third Party’s respective licensing term. The Company makes no representations and hereby expressly disclaims all warranties and liabilities arising out of or pertaining to such Integrated Application(s). You understand that the relevant Third Party Vendor shall solely be responsible to resolve and rectify the same as per the Integrated Application Terms. In the event, it is determined through mutual discussions among the Company, You and the relevant Third Party Vendor that the bugs, issues, failure, service delays etc., in the Integrated Application(s) is caused due to reasons solely attributable to the Company, then commencing from the date of such determination, the Company shall endeavor to resolve the same in the manner and within the timelines as mentioned under these Terms of Use.

• 12.1. Your Content and Personal Data that You may provide or make available to the Company by using the Subscribed Software Services may be processed by the Company provided, such processing shall be for the purpose of rendering the Subscribed Software Services and / or as required in terms of the relevant Service Order(s) and / or these Terms of Use. Such processing shall be subject to and in accordance with the applicable data protection laws. You hereby give your consent in relation to the same and You shall be solely responsible for obtaining all consents and authorizations from Your Administrator, Users and your own customers, as may be required for the aforesaid purpose and as required by the Applicable Laws for such collection, storage and processing of Your Content, Personal Data and / or other sensitive information by the Company. For more information about the Company’s policies and practices regarding collection and use of Personal Data. Please read the privacy policy as available at https://www.ginesys.in/privacy-policy.
• 12.2. If You are uploading Your Content and Personal Data as mentioned above, it shall be deemed to be construed that all the relevant consents and authorizations have been obtained by You. Prior to uploading, You are required to inform the Company about any special categories of data (any restrictions or special requirements in the processing of such special categories of data, including any cross-border transfer restrictions) contained within Your Content, Personal Data and / or other sensitive information.
• 12.3. The Company has in place and complies with internal policies and procedures which are periodically reviewed, covering the administrative, physical and technical safeguards relevant to access, use, loss, alteration, storage, destruction and control of information, as may be applicable. In addition, the Company endeavors to obtain and maintain recognized security certifications including SOC 2 Type 2 or such other equivalent certification as may be required by the Company from time to time. Such policies, procedures and certifications may be accessed by You by clicking on the following URL: https://www.ginesys.in/.
• 12.4. You understand that the Company shall, at its sole discretion, have the right to modify the terms and conditions of the privacy policy mentioned in Clause 12.2 and policies and procedures as mentioned in Clause 12.3 above.

• 13.1. You shall retain all ownership and intellectual property rights in and to Your Content. We, our licensors and / or our Affiliates, as the case may be, shall retain all ownership and Intellectual Property Rights in and to the Subscribed Software Services, derivative works thereof, and anything developed or delivered by or on behalf of the Company.
• 13.2. You unconditionally grant the Company the right to host, use, process, reproduce, adapt, modify, publish, display, distribute and transmit Your Content created by You or stored in Your Administrator Account and / or User Accounts to provide the Subscribed Software Services pursuant to and in accordance with these Terms of Use and / or the Service Order(s) and also for the Company’s commercial, marketing or any similar purpose. You are solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of Your Content, and for obtaining all rights related to Your Content required by the Company for the aforesaid purpose.

• If the Company receives any complaint from a Person with respect to Your activities in relation to the use of the Subscribed Software Services, we may forward such complaint to Your email address set out in the applicable Service Order or such other email address as provided by You in this regard. You must respond to the complainant directly within 5 (Five) days of receiving the complaint forwarded by us or within such other period as mentioned in such complaint, whichever is earlier and mark the Company in the communication(s). If You do not respond to the complainant within the period as mentioned above, we may, at Your risk, cost or expenses, disclose Your name and contact information to the complainant for enabling the complainant to proceed with such complaint against You. You hereby acknowledge and undertakes that Your failure to respond to the complaint within the abovementioned period will be construed as Your consent for disclosure of Your name and contact information by the Company to the complainant and such disclosure by the Company shall not, in any way, constitute a breach of these Terms of Use on part of the Company.

• 15.1. You understand that the Subscribed Softwares or Subscribed Software Services, as the case may be, are hosted on third-party cloud infrastructure such as Microsoft Azure, Amazon Aws and Qlik Cloud etc (“Cloud Infrastructure”) and therefore the service provider for such Cloud Infrastructure shall be solely responsible for the security, availability, and maintenance of its Cloud Infrastructure including data center facilities, hardware and software systems. You further understand that under no circumstances / events shall the Company be responsible for any issues in using the Subscribed Software Services that are pertaining to or arising out of failures, breakdowns, or deficiencies of the Cloud Infrastructure including but not limited to outrages, security breaches, maintenance problems, etc.

• The Company may migrate Your account(s) or require You to migrate Your account(s) from one Cloud Infrastructure to a different Cloud Infrastructure or may migrate Your stored data from one datacenter to a different datacenter of the same Cloud Infrastructure at its sole discretion including without limitation in the event of any updates to the another region / country in relation to Cloud Infrastructure mapping at any point of time. You understand that for the said purpose, You shall render any or all the necessary assistance as may be required by the Company for the purpose of successfully undertaking or completion of such migration. Further, You must not mask Your internet protocol (IP) address at the time of sign-up for the Subscribed Software Services, since Your region / country maybe determined basis on Your internet protocol address. If, at any time, Your actual region / country is found to be different from the region / country in our records, we may take appropriate action such as migration of Your account(s) or require You to migrate Your account(s) to the Cloud Infrastructure corresponding to Your region / country as may be notified by the Company, or close Your account(s) and deny access to the Subscribed Software Services to You without any liability towards You.

• 17.1. The Company reserves the right to monitor the use / usage of the Subscribed Software and Subscribed Services to ensure compliance with the provisions of these Terms of Use, facilitate support and related services where appropriate, and collect as well as aggregate certain data regarding usage which the Company expects will help it to improve its Software / Professional Services / Subscribed Software Services. The Customer acknowledges and consents to the Company's right to monitor the use / usage as mentioned in this Clause. If at anything the tracking reveals that You are in violation of any of the terms and conditions mentioned in these Terms of Use then without prejudice to any rights or remedies available to the Company under these Terms of Use and / or the Applicable Laws, You shall be liable to indemnify the Company in terms of Clause 19 (Indemnification and Limitation of Liability) below.
• 17.2. Further, You understand and acknowledge that in the event if any Government department, authority or any regulators conducts audit of the Subscribed Software Services for any reason whatsoever that is attributable to You, then You shall be liable to pay charge(s) / cost(s) / expense(s) at actuals incurred / to be incurred by the Company arising out of or pursuant to such audit.

18.7. The foregoing disclaimer(s) shall survive any termination or expiration of these Terms of Use and / or Service Order(s) and / or Your use of the Subscribed Software Services.

• 19.1. You agree and undertake to keep, defend and hold the Company, its Affiliates, its respective members, officers, directors, employees, agents, and licensors indemnified harmless from and against any and all legal proceedings, claims, damages, obligations, losses, liabilities, costs and expenses including but without limitation to, reasonable attorneys’ fees, arising out of or related in any way to:
  1. Your and / or Administrator’s and / or Users’ use of the Subscribed Software Services or any other services offered by the Company;
  2. Your and / or Administrator’s and / or Users’ submission, posting, transmittal or any other use of any information, content and / or any other materials or content;
  3. Your and / or Administrator’s and / or Users’ violation of any terms in these Terms of Use including breach of Clause 12 (Privacy and Data Security) and / or intellectual property and / or confidentiality related obligations as mentioned under these Terms of Use and / or the Applicable Laws;
  4. Your and / or Administrator’s and / or Users’ misrepresented information provided to us;
  5. Any negligence, wilful misconduct, wrongful act, fraud, act of omission or commission by You and / or Administrator and / or Users in connection with use of Subscribed Software Services;
  6. Your and / or Administrator’s and / or Users’ violation of any third-party Intellectual Property Rights or any claim that arises out of Your submission of any third-party information or content that has resulted in intellectual property infringement; and / or
  7. Any third-party complaint and legal claims arising either directly or indirectly, out of Your and / or Administrator’s and / or User’s activity that is in violation or breach of these Terms of Use and / or the Applicable Laws or otherwise.
• 19.2. The Company agree and undertake to keep, defend and hold You indemnified against any and all legal proceedings, actions, damages, losses, liabilities, costs and expenses suffered by You, arising out of any claim that the Subscribed Software violates or infringes any valid intellectual property rights of any third party subject to and in accordance with the procedure as mentioned in this clause below:
  1. In case of any claim made or commencement of any proceeding against You brought by any third party for such violation or infringement which is reasonably expected to result in an indemnifiable claim hereunder (“Third Party Claim”), You shall within a period of 07 (Seven) days from the date of receipt of the Third Party Claim, notify, in writing to the Company of such Third Party Claim (“Third Party Claim Notice”), and shall provide the Company all the information / documents that it has received from such third party in relation to the Third Party Claim;
  2. Within a period of 30 (Thirty) days from the date of receipt of Third Party Claim Notice or such time period as may be mentioned under the Third Party Claim, whichever is later, the Company shall either:
     1. accept the Third Party Claim and make payment to the third party subject to the limitation as mentioned in Clause 19.4 below; or
     2. dispute the Third Party Claim and follow the procedure as specified in Clause 19.2 (c) below.
  3. In the event the Company disputes the Third Party Claim, the Company shall carry out the control, defense and disposition of such Third Party Claim and decide, negotiate, direct, settle, make payments (including final payments, settlement amounts, settlement payments (by whatever name called) and / or interim payments) and / or compromise with the relevant third party in relation to such Third Party Claim.
• 19.3. Notwithstanding anything to the contrary contained in these Terms of Use, the Company shall have no indemnity obligation(s) for claims of infringement to the extent resulting or alleged to result from or arising out of:
  1. any combination, operation, or use of the Subscribed Software Services with any programs or equipment not supplied by the Company and / or not compatible with the Subscribed Software Services;
  2. any modification in the Subscribed Software Services by a party other than the Company;
  3. use of the Subscribed Software Services outside the scope of use as mentioned in these Terms of Use and / or relevant Service Order(s);
  4. Your failure, within a reasonable time frame, to implement any or all modification(s) in the Subscribed Software Services recommended by the Company or You uses a version of the Subscribed Software Services which has been superseded and if the infringement claim could have been avoided by using an unaltered current / latest version of the Subscribed Software Services which was made available to You / Your User(s);
  5. an infringement claim based on any software(s) not furnished by the Company; and / or
  6. an infringement claim arising from any third party application(s) or based on Third Party Content or any software from a third party portal or other external source that is accessible or made available to You within or by the Subscribed Software Services (e.g., a social media post from a third party blog or forum, a third party web page accessed via a hyperlink, marketing data from third party data providers, etc.).
• 19.4. Notwithstanding anything to the contrary mentioned in these Terms of Use and / or the relevant Service Order(s) or elsewhere, in no event will the Company be held liable to You, Your Administrator, Your Users including Your respective officers, directors, employees and agents and / or any third party, as the case may be, for any special, incidental, indirect, punitive or exemplary or consequential damages, or damages for loss of business, loss of profits or revenue, business interruption, or loss of business information arising out of these Terms of Use and / or the relevant Service Order(s) and / or use or inability to use the Subscribed Software Services or for any claim by any other party even if You have been advised of the possibility of such damages or breach of the Terms of Use and / or the Service Order(s) on the part of the Company. Without limiting the effect of the foregoing, the Company’s aggregate and cumulative liability with respect to its obligations and for any and all losses and damages incurred or suffered by You under these Terms of Use and / or the relevant Service Order(s) and / or otherwise that are solely attributable to the Company, shall not exceed the aggregate payment(s) received by the Company immediately for the preceding 6 (Six) months from the date such losses and damages incurred or suffered by You, notwithstanding anything to the contrary contained in any provisions of these Terms of Use and / or the Service Order(s). For avoidance of doubt, it is hereby clarified that the aforesaid limitation shall not be applicable for the Claims as mentioned in Clause 18.1 read with Schedule III – Part C below, as the maximum aggregate Service Credits, payable in terms of Schedule III – Part C, for any calendar quarter shall not exceed 100% (Hundred Percent) of the quarterly recurring Subscription Fee(s) (which shall not be inclusive of Implementation Fee) of the affected Subscribed Software.
• 19.5. You irrevocably and unconditionally acknowledge and agree that any cause of action arising out of or related to Subscribed Software Services must be commenced within 1 (One) year after the cause of action is accrued, otherwise such cause of action shall be permanently barred. The foregoing limitation of liability shall apply to the fullest extent permitted by Applicable Laws and shall survive any termination or expiration of these Terms of Use.

• 20.1. Confidential Information means all information disclosed by the Disclosing Party to the Receiving Party, whether written, visual, machine-readable or in any other medium, that is designated as confidential or that reasonably should be understood to be proprietary given the nature of the information (“Confidential Information”). For the purpose of these Terms of Use, Confidential Information of the Customer shall also mean Customer’s Content which is non-public and proprietary in nature. Similarly, for the purpose of these Terms of Use, Confidential Information of the Company shall also mean any tangible or intangible information, any and all proprietary information, terms and conditions of the relevant Service Order(s), ideas or techniques, including but not limited to the Company’s customer information, employee information, procedures, policy information, product information, business plans, intellectual property rights, UPSI, trade secrets, financial information, pricing and commercial terms, documents, data, metadata, research data, technological data (including source code, object code, algorithms and architecture of the Softwares) and / or any other non-public information in connection with the business of the Company including that of the Softwares and Professional Services and also the following information:
  1. The Company’s data pertaining to its past, present or prospective customers / representatives / licensees (whether in India or aboard) including their names, addresses, sales figures and sales conditions;
  2. Business data / information, particularly data / information relating to new products, projects, services, promotion campaigns, plans for future development, pricing agreements and joint ventures in which the Company is involved;
  3. Such information of the Company, the nature of which is unique or not generic and which is not known to the competitors of the Company;
  4. Any information disclosed to You which was originally received by the Company from third parties under obligations of confidentiality;
  5. The existence and subject matter of the relevant Service Order(s);
  6. Information derived from any of the above; and
  7. Any copies of the abovementioned information.
• 20.2. The Receiving Party shall not disclose any Confidential Information to any Person except to the directors, officers, key managerial personnels, consultants or employees of the Receiving Party or Receiving Party’s Affiliate (“Permitted Representatives”). The Receiving Party shall make sure that each Permitted Representatives to whom such Confidential Information is disclosed shall assume the same responsibility as that of the Receiving Party under these Terms of Use and / or relevant Service Order(s).
• 20.3. The Receiving Party shall not use Confidential Information of the Disclosing Party for any purpose other than pursuant to or for the purpose of these Terms of Use and shall take due care as would normally be exercised with its own proprietary material and ensure that the Confidential Information of the Disclosing Party shall not be shared, leaked, disclosed or disseminated in any other manner to any third party.
• 20.4. The Receiving Party shall not reverse engineer, decompile, disassemble, copy and modify Confidential Information of the Disclosing Party without obtaining prior written consent of the Disclosing Party.
• 20.5. Notwithstanding anything to the contrary contained herein, upon expiry or termination of these Terms of Use, all the obligation(s) of confidentiality as contained herein including the non-use of Confidential Information by the Receiving Party and / or by Permitted Representative shall continue to be applicable to such Receiving Party and / or to Permitted Representative for a period of 2 (Two) years from the date of expiry or early termination of these Terms of Use.
• 20.6. You shall ensure and cause to ensure that neither You nor any of Your Permitted Representatives shall enter into the same domain of business or any other similar business as the Company either alone or along with any of the Company’ competitors, or their Affiliates or their directors, employees, etc. by using any Confidential Information of the Company.
• 20.7. The Receiving Party shall take full responsibility for breach of confidentiality obligations by its Permitted Representatives.
• 20.8. In the event of a breach or threatened breach of the terms of this Clause by the Receiving Party, the Disclosing Party shall be entitled to seek an injunction in addition to and not in lieu of any other legal or equitable relief including monetary damages, which we may be legitimately entitled to receive.
• 20.9. Confidential Information does not include any such information which the Receiving Party can demonstrate that: (a) it forms a part of the public domain, except by breach of the provisions of these Terms of Use; (b) it was known to the Receiving Party on a non-confidential basis prior to its disclosure by the Disclosing Party; or (c) the information was lawfully obtained by the Receiving Party on a non-confidential basis from a source other than the Disclosing Party without any obligation of confidentiality to the Disclosing Party; or (d) was independently developed by the Receiving Party without any direct or indirect reference to Confidential Information of the Disclosing Party.
• 20.10. In case the Receiving Party is required to disclose Confidential Information of the Disclosing Party under any Applicable Law and have received notice for disclosing the same, the Receiving Party shall bring the receipt of any such notice to the Disclosing Party’s knowledge in a reasonable time period (except where such notice expressly prohibits the Receiving Party to do so) in order to enable the Disclosing Party to seek appropriate protective measures or other remedies. In the event that no protective order or other remedy is obtained by the Disclosing Party before the date of the required disclosure, or in the event where the receipt of such notice was not brought to the knowledge of the Disclosing Party as such notice expressly prohibited the Receiving Party to do so, in either case, notwithstanding anything to the contrary contained herein, the Receiving Party shall be permitted to furnish only that portion of the Confidential Information that is required to furnish in accordance with applicable legal requirements (“Legally Compelled Disclosure”). The Receiving Party shall not, in any case whatsoever, be held liable for any Legally Compelled Disclosure made in terms of this Clause and the Disclosing Party shall reimburse any and all expenses incurred by the Receiving Party in relation to such Legally Compelled Disclosure made by the Receiving Party.
• 20.11. Upon expiry or termination of these Terms of Use, You shall, at your own expense(s), deliver, transfer and return the Confidential Information of the Company (including any and all the copies, analyses, notes, memoranda, diagrams, compilations or other documents that contains or reflects any of our Confidential Information) in Your and / or Your Permitted Representative’s possession or within its / their control, or destroy the same, within 30 (Thirty) days of such expiry or termination and You shall within such period certify in writing for such performance.

• 21.1. Any feature requests made by You, Administrator or Users for enhancing the Subscribed Software Services (“Ideas and Features”) will automatically become the sole property of the Company without any compensation or credit to You and / or Your User whatsoever.
• 21.2. You understand that implementation of Your Ideas and Features shall be at the sole discretion of the Company. Further, You unconditionally and irrevocably agree that the Company and its Affiliates may use the Ideas and Features contained in such submissions or posts for any purpose in any medium, which includes but is not limited to developing, manufacturing and marketing products / software and services using such Ideas and Features.

• 22.1. These Terms of Use for the applicable Subscribed Software(s) and / or Subscribed Service(s) shall be effective and shall remain in full force during the term such Subscribed Software(s) and / or Subscribed Service(s), as the case may be, is in full force and effect as more specifically mentioned in the relevant Service Order(s) (“Contract Period”), unless otherwise terminated by either Party in terms as mentioned in the relevant Service Order(s) and / or these Terms of Use. For avoidance of doubt it is hereby clarified that if a Service Order(s) expires or terminated or renewed, these Terms of Use shall also expire or terminate or renewed with respect to the affected / relevant Subscribed Software(s) and / or Subscribed Service(s).
• 22.2. A Party may terminate this Agreement: (a) upon 30 days written notice to the other Party of a material breach like data security, confidentiality if such breach remains uncured at the expiration of such period, or (b) forthwith, if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
• 22.3. If this Agreement and/or any applicable Service Order(s) is terminated due to the Company’s breach (including termination under Clause 22.2), the Company will
  1. Refund all prepaid fees for the unused portion of the billing term/subscription period from the later of (i) the date mentioned in the termination notice or (ii) the actual date of termination, up to the end of the paid term, on a pro-rata basis, after adjusting for any undisputed amounts payable by the Customer up to that later date; and
  2. Promptly provide knowledge transfer and/or data transfer in a commonly used industry format to the Customer or its nominated entity, at the Company’s cost.
• 22.4. In the event of expiry or termination of these Terms of Use and / or the applicable Service Order(s), You shall clear all outstanding payments due to the Company prior to the effective date of such expiry or termination.
• 22.5. The termination or expiry of these Terms of Use and / or the applicable Service Order(s) for any reason shall not release either Party from any liability which at such time has already accrued or which thereafter accrues from a breach or default prior to such expiration or termination.
• 22.6. Upon any expiry or termination of these Terms of Use, You shall not be entitled to any compensation or indemnification from the Company for any damage(s), loss(es) or expense(s) other than to the extent as stated in these Terms of Use.
• 22.7. Upon expiry or termination of these Terms of Use and / or the applicable Service Order(s), the Customer’s right to access or extract its data available in the Subscribed Software shall be in accordance with the terms and subject to the conditions as set forth in Schedule IV below.

• 23.1. These Terms of Use and / or relevant Service Order(s) and any non-contractual obligations arising out of or in connection with them shall be governed by the laws of India.
• 23.2. If any difference, dispute, controversy, or claim arising out of or relating to these Terms of Use and / or relevant Service Order(s), including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it arises between the Parties during the subsistence of these Terms of Use and / or relevant Service Order(s) or thereafter (“Disputes”), the Parties shall endeavor to settle the Disputes amicably, within 30 (Thirty) days of the first notification of the Disputes by any Party. If no amicable settlement is reached within 30 (Thirty) days of the first notification of the Disputes by any Party, such Disputes shall be referred to and finally resolved by arbitration administered by the Delhi International Arbitration Centre (“DIAC”) in accordance with the Arbitration Rules of the Delhi International Arbitration Centre (“DIAC Rules”), which rules are deemed to be incorporated by reference in this clause read with the (Indian) Arbitration and Conciliation Act, 1996 for the time being in force.
• 23.3. The seat of the arbitration shall be in Delhi and the language of the arbitration shall be English.
• 23.4. The arbitral tribunal (“Tribunal”) shall be constituted in accordance with the DIAC Rules and the Tribunal shall consist of a sole arbitrator to be appointed jointly by the Parties, failing which, a sole arbitrator shall be appointed in accordance with the provisions of DIAC Rules. The award rendered by the Tribunal shall be final, conclusive and binding on the Parties to these Terms of Use and / or relevant Service Order(s) and shall be subject to a forced execution in any court of competent jurisdiction.

The Company’s disaster recovery and data backup obligations during the Contract Period, including Recovery Point Objective (RPO), Recovery Time Objective (RTO) etc. are set out in detail in Schedule III – Part B below.

• 25.1. Notices
  1. Except as otherwise permitted hereunder, all notices, approvals, instructions, reports and other communications which may be given pursuant to these Terms of Use and / or the Service Order(s) shall be in English and in writing and shall be given by email to the relevant Party at its email address(es) set out in the Service Order(s).
  2. Any written communication or notice given in accordance with Clause 25.1 (a) above shall be deemed to have been received by the addressee at the time and date when actually sent.
  3. Any Party may, from time to time, change its office address and / or email address(es) (as may be mentioned in the relevant Service Order) for receipt of notices provided for in these Terms of Use and / or Service Order(s) by giving to the other Party not less than 3 (Three) working days prior written notice.
• 25.2. Transfer of Subscribed Software Services
  1. In the event of a merger, demerger or amalgamation concerning You, You may request the Company to provide access transfer of the Subscribed Software Services in the name of the surviving / resulting entity pursuant to such merger, demerger or amalgamation, as may be applicable (“Transferee”). Upon receipt of such access transfer request, the Company may, at its sole discretion, either accept or reject such request for access transfer to the Transferee. Notwithstanding anything to the contrary contained herein, in case the access transfer request is accepted by the Company, such acceptance shall at all times be subject to the following conditions and / or such other conditions as may be stipulated by the Company at its sole discretion, as the case may be:
     1. the Transferee shall execute, acknowledge and deliver to the Company an instrument acceding to the relevant Service Order(s) and / or these Terms of Use in the manner and form as acceptable to the Company and upon such execution as mentioned in this Clause, the Transferee without any further act(s) or deed(s) become vested with all the rights, powers, duties and obligations of the transferor, as if it was originally named in the relevant Service Order(s) and / or these Terms of Use;
     2. All the outstanding dues till the date of the aforesaid execution has been paid or discharged by You to the satisfaction of the Company; and / or
     3. All costs and fees in relation to any access transfer to the Transferee, including accession to the relevant Service Order(s) and / or these Terms of Use shall be borne either by You or by the Transferee.
  2. It is understood that in case of certain Subscribed Software Services, some of the Users may not ultimately belong to You. They may be from a franchisee or a distributor of Your organization. The compliance of these Terms of Use is with You and You must ensure that the Users use the system in accordance with these Terms of Use. The Company shall not be liable for any loss, damage, expense including any other liability which may arise due to non-compliance of these Terms of Use by any Users (whether such Users belong to You or not).
• 25.3. No Soliciting or Hiring During the Contract Period and for a period of 1 (One) year thereafter, the Customer(s) shall not, either on its own account or for any other Person, firm or company:
  1. solicit, or encourage any organization or Person directly or indirectly, to solicit any employee of the Company or any of its Affiliates (whether such employee is engaged in performing the Subscribed Software Services or not) to leave the employment of the Company or such Affiliates; and
  2. solicit / divert or attempt to solicit / divert business or induce or attempt to induce any customer, supplier, licensee or business relation of the Company or any of its Affiliates to cease doing business with the Company or any of its Affiliates, or in any way interfere with the relationship between any such customer, supplier, licensee or business relation of the Company or any of its Affiliates (including without limitation making any negative statements or communications about Confidential Information, the Company or any of its Affiliates).
• 25.4. Assignment
  1. Save and except transfer of access to Subscribed Software Services in terms of Clause 25.2 (Transfer of Subscribed Software Services), the Customer(s) shall not assign, delegate or otherwise transfer, either all or any part of its rights and obligations under these Terms of Use to any third party without express written consent from the Company. In the event You are found to have acted in breach of this Clause, the Company shall have the right to suspend the Subscribed Software Services and / or terminate these Terms of Use and Service Order(s), as the case may be, without prior notice.
  2. The Company may assign its right under these Terms of Use or novate these Terms of Use in favour of its wholly owned subsidiary (“WoS”) and / or its Affiliates and / or group company(ies), as the case may be, without Your consent. Upon such assignment or novation:
     1. such WoS and / or such Affiliates and / or group company(ies), as the case may be, shall be deemed to be a party to these Terms of Use in substitution of the Company and the reference of the Company wherever appearing in these Terms of Use shall be deemed to be modified and substituted with the reference of such WoS and / or such Affiliates and / or group company, as the case may be, without any further action or compliance on the part of the Parties notwithstanding anything contained in these Terms of Use; and
     2. the Company shall intimate to the Customer(s), the name, address of its WoS and / or such Affiliate and / or group company(ies), in whose favor assignment or novation is made. Upon receipt of such intimation, all the communications to be made by the Customer(s) in terms hereof shall only be made in favor of such WoS and / or its Affiliates and / or group company, as the case may be.
• 25.5. Publicity You grant Us a non-transferable, non-exclusive, royalty-free, worldwide license to reproduce and display Your name, logos, and trademarks, solely for the purpose of referring to You as a customer or supplier, as the case may be, on websites, press releases, and other marketing materials within the scope of these Terms of Use.
• 25.6. Surviving Provisions The termination or expiry of these Terms of Use for any reason whatsoever shall not affect those provisions of these Terms of Use, which are intended, whether expressly or otherwise, to survive such expiry or termination including Clause 9 (Fees and Payments), Clause 10 (Trademarks), Clause 13 (Ownership Rights and Use of Content), Clause 14 (Third Party Complaints), Clause 19 (Indemnification and Limitation of Liability), Clause 20 (Confidential Information), Clause 22 (Term and Termination), Clause 23 (Governing Law and Dispute Resolution) and Clause 25 (Miscellaneous Provisions).
• 25.7. Severability If any clause of these Terms of Use or any other agreement or document appended hereto as a schedule / annexure or made a part hereof by reference is rendered invalid, ruled illegal by any court of competent jurisdiction, or unenforceable, either in whole or in part, under present or future laws effective during the term of these Terms of Use, then it is the intention of the Parties that the remainder of these Terms of Use, or document appended hereto or made a part hereof by reference, shall not be affected thereby unless the deletion of such provision shall cause these Terms of Use to become materially adverse to any Party in which case the Parties shall negotiate in good faith such changes to these Terms of Use, or enter into suitable amendment or supplementary agreements, as will best preserve for the Parties the benefits and obligations under such provision.
• 25.8. Force Majeure
  1. Neither Party shall be liable for any failure or delay in the performance of any of its obligations under the relevant Service Order(s) and / or these Terms of Use (other than for the payment of Subscription Fee(s) and any other payments due and payable hereunder) where such performance is delayed or affected by any contingency beyond its control including but not limited to earthquake, floods, lightening, land-slides, or such other acts of God, cyber-attacks (including phishing, hacking ransomware attacks and denial of service attacks etc.), failure, break down, outage or any other Cloud Infrastructure related deficiencies or otherwise, war, civil commotion, fire, sabotage, blockages, insurrections, vandalism, riots, epidemics, pandemics, terrorist attack, general strikes or lockouts, general shortage of materials, orders, injunctions or directions of government, policy adjustment, competent courts, or other statutory authorities of general application, any general requirement of any international authority, civil disorder, accidents, theft, international restrictions or absence of normal means of communications or transportation, both exportation and importation controls (collectively referred to as “Force Majeure Condition(s)”).
  2. If the Force Majeure Condition(s) in question prevails for a continuous period in excess of 90 (Ninety) days, the Parties shall enter into bona fide discussions with a view to alleviating its effects or to agree upon such alternative arrangements as may be fair and reasonable. In case no such arrangement is agreed upon, either Party may terminate the relevant Service Order(s) and / or these Terms of Use by giving 60 (Sixty) days' written notice to the other Party.
• 25.9. Modification and Amendments The Company reserves the right to modify the terms of these Terms of Use including the Subscribed Software Services at any time through a service announcement or by sending You an email at Your email address mentioned in the Service Order(s). If the Company make significant modifications to the Terms of Use and / or the Subscribed Software Services, You will be provided with at least 30 (Thirty) days advance notice of such modifications. If such modifications substantially affect Your rights in connection with the use of the Subscribed Software Services, You may elect to cancel the relevant Subscribed Software Services for the remaining Contract Period by providing the Company notice via email within 30 (Thirty) days of the aforesaid notification in relation to the modifications. If no cancellation request is received before the effective date of modifications or You continue to use the Subscribed Software Services after the effective date of any modifications to these Terms of Use and / or the Subscribed Software Services, then it shall be deemed to be construed that such modifications have been accepted by You.
• 25.10. Communications / Announcements The Subscribed Software Services may include certain communications from the Company, such as service announcements, administrative messages and newsletters. You understand that these communications shall be considered part of using the Subscribed Software Services. As part of our policy, we also provide You the option of opting out from receiving newsletters from us. However, You will not be able to opt-out from receiving service announcements and administrative messages.
• 25.11. No Waiver No failure by the Company to take any action with respect to a breach of these Terms of Use or a default by You and / or Administrator and / or the Users shall constitute waiver of the Company’s right to enforce any provision of these Terms of Use or to take action with respect to such breach or default or any subsequent breach or default. Waiver by the Company of any breach or failure to comply with any provision of these Terms of Use by You and / or Administrator and / or the User shall not be construed as, or constitute, a continuing waiver of such provision, or a waiver of any other breach of or failure to comply with any other provision of these Terms of Use.
• 25.12. Feedback and Queries
  1. For any queries or feedback with regard to Our Subscribed Software Services provided therein, please get in touch with Your Administrator or mail to care@ginesys.in.
  2. You assign all rights, titles, and interest in regard to any and all feedback to the Company. You agree to grant the Company a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sub-license, distribute and modify such feedback without restriction.

Ginesys One is an end-to-end, cloud-first omnichannel retail management suite designed to unify and streamline both online and offline operations. It integrates key functions—ERP, order management, POS, inventory, finance, GST compliance and e-commerce-in a single offering, providing retailers with a seamlessly integrated system for their business activities across stores, warehouses and marketplaces.

Softwares and their Pricing Models:

• 1. Ginesys ERP: A cloud-native ERP built specifically for the retail value chain, covering procurement, production, distribution and accounting. Charged on the basis of the number of users and data volume.
• 2. Point-of-Sale (POS):
  1. Zwing mPOS & Web POS: Mobile billing on Android and browser-based checkout for dynamic store environments. Charged on the basis of the number of users.
  2. Ginesys POS (available with Ginesys ERP): Robust billing, inventory and reporting tools for high-volume brick-and-mortar outlets. This software is locally installed on Windows PCs. Charged on the basis of the number of users.
• 3. Browntape OMS / Ginesys OMS: Ecommerce multichannel inventory management and order fulfilment. Centralized processing of website and ecommerce marketplace orders (Flipkart, Amazon, Myntra, etc.), with store-level fulfillment, split shipments and nearest-location dispatch. Charged on the basis of the number of users and invoice line items.
• 4. EaseMyGST: GST filing and E-doc generation app to ensure compliance and automate invoicing. Charged per GSTIN basis and number of invoices.

Add-on Products / Services:

• 1. Ginesys BI: This is a productized app for retail and in-store data analytics that uses Qlik engine and visualization and hosting to provide an easy to use, analytical dashboard with multiple views. Charged on the basis of the number of users and data volume.
• 2. InsightX: Business-intelligence dashboards for sales, inventory turnover, and financial performance with options for agentic workflows. Add-ons skills can be purchased. Charged differently for each skill.
• 3. EaseMyRetail Integration Service: A managed middleware to support various point of sales related integrations with Ginesys One - like loyalty, CRM, GV and E-receipts. Charged on the basis of the number of POS users.
• 4. Ginesys Integration Platform: A managed middleware solution for supporting integrations with Ginesys ERP, Zwing POS and Browntape OMS. Usually charged on the basis of the number of APIs and API hits.
• 5. Ecommerce marketplace marketing: This is a pure service where we use our internal tools and the Browntape OMS to enhance sales and visibility of your products on various ecommerce marketplaces. Charged on a monthly retainer basis.

What we Provide You:

• 1. Once subscription of any of the Softwares, products and / or services is taken,You the brand shall be provided with an Administrator Account.
  1. The Administrator can create more Users of the organization.
  2. They can allocate Users to the Subscribed Softwares as per the license granting them access to the respective Subscribed Softwares.
• 2. The users can login and access the Subscribed Softwares as allowed by the Administrator.

Note: This is not applicable for Ginesys POS which has a local user management.

Implementor is a person or group of persons assigned by the Company to help configure and set up the Subscribed Software with specific rules, information and workflows so that it is usable to You. They may also provide training to end users.

The Scope of Work shall be communicated and agreed with You in accordance with these Terms of Use. The Company shall provide Implementation Services in accordance with system requirements and architecture to meet the requirements mentioned in the Service Order.

The Implementor is responsible to provide the Subscribed Software in a usable and business-ready condition with specific configurations and user training. The implementor shall counsel You regarding the manner in which the Company's similarly situated clientele have implemented the software, and Your decisions will decide the ultimate configurations of the Subscribed Software.

The Implementor shall provide timely status and progress reports. Any changes to the project execution plan will be notified to You. It is requested that once an Implementor shares a daily execution plan, You work accordingly and ensure the required team member and data availability; otherwise, hours billed may not be utilized.

Deliverables shall be reviewed and accepted by You within 2 (Two) days of delivery. Unless specifically rejected in writing within the acceptance period, all deliverables will be considered accepted.

The Implementor may be changed if a project gets delayed beyond a reasonable time. You may ask for up to 1 (One) change in the Implementor if You are not satisfied with their performance or communication.

GSL shall provide Maintenance and Support Services to ensure that the Subscribed Software remain functional and useful to users by fixing Bugs (as defined below), providing explanations of features, and helping identify problem areas. This support will be provided as long as the Subscription Fee(s) for the Subscribed Services for the Contract Period are paid in full.

During the Contract Period, You may raise support tickets for questions regarding defects or for quick guidance on the use of Subscribed Software. This service covers the diagnosis and resolution of specific symptoms the Subscribed Software are currently facing.

Definitions:

• "Bug” / “Bugs" shall mean an unexpected problem with the Subscribed Software affecting the production environment, possibly caused by design flaws or external dependencies.
• "Fix" shall mean a request for modification or addition to the Subscribed Software that resolves a Bug. The Company may, at its discretion, provide a Workaround instead of a fix.
• "Incident" shall mean an incident which is unplanned event that interrupts or reduces the quality of a Subscribed Software, like a system outage, requiring immediate restoration. Incident tickets can be due to Bugs and / or performance issues or other problems related to specific configuration of the Subscribed Softwares. The Incident tickets may be resolved with either a Fix or a Workaround.
• "Response Time" shall mean the time between the Company’s receipt of a Bug notification and confirmation that an agent is working on it
• "Service Request" shall mean a service request is a formal user request for something new or standard, such as requesting access to a Software or a new account, which is a normal part of service delivery and can incur additional charges.
• "Workaround" shall mean the procedures provided by the Company to mitigate the impact of a Bug without resolving it permanently.

Ticket Priority and Service Levels:

In case of any ticket related to 3rd party integrations, our support services (SLA) as per type of ticket and priority shall be applicable only after identification of any action to be done by the Company related to the ticket.

Response and Resolution Times (during business hours):

The target turnaround time (TAT) for any ticket is based on its priority level and is applicable during business hours.

Response commitments exclude public holidays or weekends, except for P0 and P1 issues.

Access to Support Services and Support Hours

All tickets must be logged through the proper channels to be attended by a customer care agent. Support will be provided remotely during working hours.

• Support Portal: All tickets should be logged in the care portal with reasonable detail which can be accessed at https://care.ginesys.in
• Email: care@ginesys.in Support requests can also be logged by sending an email at care@ginesys.in. Emails must be sent from your registered email address as provided in the relevant Service Order by You, for a request to be converted into a valid support ticket.
• Standard Support Hours (IST): Monday to Friday – 10:30 AM to 6:30 PM

Exclusions:

Any support request not falling within the criteria of standard Incident support mentioned above will be considered an exclusion. These are treated as billable service requests or totally unserviceable requests, and resolution times for such requests will depend on the scope of work.

Examples of unserviceable requests:

• (i) Diagnosis and or fixing of Customer hardware issues
• (ii) Diagnosis and or fixing of operating systems issues on computer systems
• (iii) Diagnosis and or fixing of non-integrated third party software

Examples of billable service requests:

• (i) Any work related to custom reports creation or detailed training.

Escalations

If an issue is not being addressed within the time frame mentioned above, it can be escalated to the following levels:

1. Level 1: Support portal on the ticket itself.
2. Level 2: escalation@ginesys.in (Only for P0, P1 and P2 issues)

Your Responsibilities

To ensure we can provide the best possible support, you are requested to:

1. Nominate one primary contact person who has a sound knowledge of the Subscribed Software and related services for coordinating incident resolutions.
2. Provide stable internet connection to allow our team to provide remote support assistance when required.
3. Keep your access device softwares (PCs, workstations, Android devices, MPOS devices, handheld devices etc) updated to the latest released OS version to ensure that bug fixes and enhancements can be deployed effectively.

Part B - Subscribed Softwares Availability and Data Backup SLA

The Company endeavours to maintain robust backup systems during the Contract Period. In the unlikely event of a complete disaster which includes without limitation to outage or extended outage of an entire data center (on which Your Content and / or Personal Data is uploaded by You) that prevents failover to the local hot-standby (secondary server), we maintain the infrastructure standards including the following:

How the aforesaid is accomplished: Daily backups are actively monitored and replicated across multiple availability zones. Restoration from daily backups can typically be completed within a few hours for large clusters, with priority given to paid subscriptions. Both daily backups and provisioning scripts are tested routinely as part of standard operations, ensuring ongoing readiness for disaster recovery.

Following completion of the recovery and restoration of data as per the aforesaid procedure, if the Customer requires restoration or re-injection of data beyond the standard means of recovery and restoration (including, without limitation, manual data imports, reconstruction of data environments, custom database recovery, or other extraordinary technical measures) to bring the Customer’s account to its original or specific state, such services shall be performed on a commercially reasonable efforts basis and will be chargeable separately at the Company’s then-current professional service rates. The Customer shall provide written request for such requirements. Upon receipt of such request, the services related to recovery and restoration of data shall be performed by the Company on a commercially reasonable efforts basis provided the Parties have mutually agreed the charges payable to the Company for such services.

Note: The provisions contained in this Schedule III – Part B shall not be applicable to Ginesys POS.

Part C – Claim and Service Credits

In the event if the Subscribed Software Services are not provided to You in terms of these Terms of Use and / or the relevant Service Order(s), then the Company shall be liable to provide You Service Credit in accordance with the following terms and conditions:

1. Claim and Service CreditsFor the purpose of consideration of a Claim (as defined below) by the Company, You must submit such Claim to the Company at accounts@gsl.in within 30 (Thirty) days from the date of our failure to render the Subscribed Software Services in terms of the Terms of Use and / or the relevant Service Order(s). Such Claim must contain all the information necessary for the Company to validate / verify it, including but not limited to: (i) a detailed description of the Claim and a description of the incident which has occurred substantiating that the Subscribed Software Services are not provided to You in terms of these Terms of Use and / or the relevant Service Order(s); (ii) information regarding the time and duration of downtime of the Subscribed Software; (iii) affected resource names; (iv) the number and location(s) of affected Users; (v) a description of errors that occurred during such incident; and (vi) description of any attempts the Customer, the Administrator or a User has made to resolve the same. Failure to provide the required information within the aforesaid time period shall result in the relevant Claim being rejected. 
   We will evaluate all information reasonably available to us and make a good faith determination of whether a Service Credit is owed to You or not. We will use commercially reasonable efforts to process the relevant Claim promptly following an investigation, typically within 45 (Forty-Five) days of receipt of such Claim. Subject to the terms of Clause 2 and Clause 3 of this Schedule III – Part C, if we determine that a Service Credit is owed to You, we may apply the Service Credit to your subsequent Subscription Fee(s) or may provide you credit note equivalent to the applicable Service Credit.
2. Applicability of Service Credits You understand that a Service Credit shall be applicable solely in cases where the Subscribed Software Services are disrupted due to Incidents categorized as ‘P0’ or ‘P1’ level issue
3. Exclusions and Limitations The Service Credit does not apply in case of occurrence of any of the following events:
   1. You were / are not in compliance with the Terms of Use and / or the relevant Service Order(s);
   2. Use of services, hardware, or software not provided by us, including, but not limited to, issues resulting from inadequate bandwidth or related to third-party software or services;
   3. Interruption in and / or outage of Subscribed Software Services due to emergency maintenance of such Subscribed Software Services;
   4. Outage of Cloud Infrastructure (due to any reason whatsoever), on which the Subscribed Software Services are hosted;
   5. Due to any Force Majeure Condition(s), including at your site or between your site and our data center;
   6. Caused by your use of a Subscribed Software Services after we advised You to modify Your use of the same and / or You did not modify your use as advised;
   7. During or with respect to preview, pre-release, beta or trial versions of a Subscribed Software Services, feature or software (as determined by us), as the case may be;
   8. That result from your unauthorized action or lack of action when required, or from your employees, agents, contractors, or vendors, or anyone gaining access to the Subscribed Software Services by means of your passwords or equipment, or otherwise resulting from your failure to follow appropriate security practices;
   9. That result from your failure to adhere to any required configurations, use supported configurations or platforms, follow any policies for acceptable use, or your use of the Subscribed Software Services in a manner inconsistent with the features and functionality of the Subscribed Software Services (for example, attempts to perform operations that are not supported) or inconsistent with our published guidance;
   10. That result from faulty input, instructions, or arguments (for example, requests to access files that do not exist);
   11. That result from your attempts to perform operations that exceed prescribed quotas or that resulted from our throttling of suspected abusive behavior or hacked accounts; or
   12. For licenses reserved, but not paid for, at the time of the incident.

For the purpose of this Schedule III – Part C, the following terms shall have the meaning set out hereinbelow:

“Claim” means a claim submitted in writing by the Customer that a Subscribed Software Services are not provided to You in terms of these Terms of Use and / or the Service Order(s) and that a Service Credit may be due to the Customer;

“Downtime” shall mean a period / duration in which the Customer / User is unable to access Subscribed Software during the Uptime Guarantee period provided in this Schedule III – Part A (Maintenance and Support Services) above. For the purposes of the aforesaid Claim for availing the Service Credit, the term ‘Downtime’ does neither include Scheduled Downtime nor does it include Downtime due to exclusions and limitations described in this Schedule and / or in the Terms of Use;

“Scheduled Downtime” shall mean Downtime related to service maintenance or upgrades, which downtime shall be / has been notified to You prior to the commencement of such downtime; and

“Service Credit” shall mean a fixed amount calculated at 2 (Two) times the pro-rated hourly Subscription Fee(s) of the affected Subscribed Software (excluding the fees for Implementation Services) which shall be payable for every hour of Downtime basis the Claim submitted by the Customer and accepted by the Company.

Note: The provisions contained in this Schedule III – Part C shall not be applicable to Ginesys POS.

1. Upon expiry or termination of the relevant Service Order and / or the Terms of Use, the Company shall retain the Customer’s data for a period of 30 (Thirty) days from the effective date of expiry / termination thereof (“Data Retention Period”). During the Data R etention Period, the Customer shall undertake the following:
   • (i) view and / or export its data in CSV format or in any other format as may be available at the data export option; or
   • (ii) request the Company in writing, which shall be atleast 15 (Fifteen) days prior to the expiry of the Data Retention Period, to retain its data beyond the Data Retention Period for such duration as to be mentioned in such request (“Extension Request”).
2. Upon receipt of the Extension Request from the Customer, the Company shall retain the Customer’s data provided the terms of retention including the payments terms have been mutually agreed between the Parties in writing (“Data Retention Terms”). However, upon expiry of the Data Retention Period or failure to receive the Extension Request in the manner as mentioned above or the Parties fails to agree to the Data Retention Terms, the Company shall have no further obligation to retain, grant access to, or deliver any of the Customer’s data and shall, without notice to the Customer, have the right to permanently delete any and all such data from its database without any liability whatsoever.

Note: The provisions contained in this Schedule IV shall not be applicable to Ginesys POS.