SOFTWARE SERVICE AGREEMENT
This Software Service Agreement including any and all schedules, attachments (hereinafter “Agreement”) is made on this August 19, 2019 (“Effective Date”) made by and between:
Omniro Pte Ltd (company registration number: 201114476D), a company incorporated under Singapore law and having its office at 68 Circular Road #02-01 Singapore 049422 (the “Company”)
AND
the “Customer”
Company and Customer are individually referred to as “party” and collectively as “parties.”
WHEREAS:
NOW IT IS HEREBY AGREED BY AND BETWEEN PARTIES AS UNDER –
DEFINITIONS
ENGAGEMENT
CUSTOMER OBLIGATIONS
The Customer shall:
in order to render the Services, including but not limited to Customer Data, security access information and configuration services;
COMPANY OBLIGATIONS
FEES
DISCLAIMER OF WARRANTY
THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS” WITHOUT ANY REPRESENTATIONS, CONDITIONS, WARRANTIES OR COVENANTS WHATSOEVER, INCLUDING WITHOUT LIMITATION, ANY EXPRESS, STATUTORY OR IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PUPROSE, OR ARISING OTHERWISE IN LAW OR EQUITY OR FROM A COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED AND EXCLUDED. COMPANY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN ANY OF THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE OPERATION OF ANY OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN ANY OF THE SOFTWARE WILL BE CORRECTED. HOWEVER, COMPANY WARRANTS TO RESPECT SERVICE LEVEL AGREEMENT AS PER THE DETAILS IN ANNEXURE 3, SUBJECT TO TIMELY INPUTS FROM THE CUSTOMER.
Not withstanding anything stated elsewhere, the Company shall not be responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
INTELLECTUAL PROPERTY RIGHTS
The Software, documentation, its contents, ideas, roadmaps, plans and branding thereof constitute the intellectual property of Company and are protected by various intellectual property laws. This Agreement does not grant Customer any rights, title and interest in and to the Software, Documentation, its contents, and branding thereof including Company’s intellectual property rights except where expressly and unequivocally permitted herein. Any rights not expressly and unequivocally granted are reserved. If there are any customizations, modifications or configurations to the Software or any deliverables, artifacts or developments resulting from the Services (together “Service Deliverables”), Company owns all right, title and interest including the intellectual property rights in such Service Deliverables and Customer will have the right to use such Service Deliverables as per Section 2 of this Agreement.
Company shall not include New projects / Major Changes proposed by Licensee in their standard saleable product
From time to time, Customer may provide feedback, suggestions, requirements or recommendations (“Feedback”) regarding the Software or the Services. Customer assigns to the Company all right, title and interest to such Feedback and an exclusive right to create any developments based on such Feedback.
CONFIDENTIALITY
INDEMNITY
Customer shall indemnify, hold harmless and defend Company against any costs or damages arising out of or in connection with any claim relating to i) use of the Software other than as permitted under this Agreement, or ii) negligence or misconduct of the Company; provided that, Company promptly notifies Customer in writing no later than thirty (30) days after Company’s receipt of notice of any potential claim or (iii) Customer or Authorised User’s use of Software in any illegal or unlawful or unauthorized manner.
LIMITATION OF LIABILITY
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR SPECIAL DAMAGES, HOWSOEVER CAUSE IN CONNECTION WITH THIS AGREEMENT EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE MAXIMUM AGGREGATE LIABLITY OF COMPANY SHALL BE LIMITED TO THE VALUE OF THE CONTRACT FOR 1 YEAR.
TERM AND TERMINATION
THIRD PARTY PROVIDERS
The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. The Company makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not the Company. The Company recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. The Company does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
NON SOLICITATION
During the term of this Agreement and for one (1) year thereafter, neither Party will nor will attempt, directly or indirectly recruit, cause to be recruited, solicit or induce any resources, current or former, of the other Party to terminate his or her relationship with such other Party. For purpose of this Agreement, former resources shall mean a person who ceases to work for the other Party and a period less than one year has since elapsed.
INTERPRETATION
This Agreement will in all events be construed as a whole, according to its fair meaning, and not strictly for or against a party merely because that party (or the party’s legal representative) drafted the Agreement. The headings, titles, and captions contained in this Agreement are merely for reference and do not define, limit, extend, or describe the scope of this Agreement or any provision herein. Unless the context requires otherwise, (a) the gender (or lack of gender) of all words used in this Agreement includes the masculine, feminine, and neuter, and (b) the word “including” means “including, without limitation”.
FORCE MAJEURE
Neither party will be in default or liable for any delay or failure to comply with this Agreement due to any act beyond the control of the affected party, excluding labour disputes, provided such party immediately notifies the other. For avoidance of doubt force majeure event shall include without limitation instances such as: (i) any regulatory/legal action preventing the Service Provider from carrying out the activity contemplated under this Agreement; or (ii) any event/events which may have potential risk to life of its employees or its agents and its equipment, premise, infrastructure etc; or (iii) equipment/hardware/software/telecommunication failure or breakdown or lack of availability of the same due to any reasons or (iv) natural calamities like flood, earthquake, tsunami, epidemic, volcanic eruptions. The Parties agree that, should the Force Majeure Event continue for more than 60 (sixty) days, either Party may terminate this Agreement, by giving 15 (fifteen) days’ written notice to the other Party. This provision shall not be construed as relieving either party from its obligation to pay any sum due to the other party.
ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties and supersedes any prior understanding or representation of any kind preceding the date of this Agreement, and may not be amended, supplemented, varied or otherwise changes except in writing. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement. Each party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty other than as expressly set out in this Agreement. This Agreement may be modified in writing specifically referencing this Agreement and any such modifications must be signed by both the parties. Standard terms and conditions of a purchase order or an invoice or any similar document whether hosted on party’s website or otherwise shall be ineffective.
SEVERABILITY
If any provision of this Agreement is determined to be invalid, illegal or unenforceable in any respect, including because of the duration thereof, the area covered thereby, or the types of activities restricted thereby, by a court of competent jurisdiction (i) the validity, legality or enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby, and (ii) the court of competent jurisdiction making such determination shall have the power to reduce the duration and/or area of such provisions or types of activities restricted and/or to delete specific words or phrases and in its reduced form such provision shall then be enforceable. The parties may, acting in good faith adopt any and all actions required to cause such invalid, illegal and unenforceable provision to be valid and enforceable, or, alternatively, to reach an agreement in relation to said null provision whereby each of the party receives, as far as possible, substantially the same benefits and obligations based on valid provisions, provided that the Agreement is not enforced in a form that materially affects the commercial agreement between the parties.
ASSIGNMENT AND DELEGATION
The Customer and Company may assign this Agreement in conjunction with the sale of substantial assets, divestiture, merger or amalgamation, or to its affiliate, and may delegate or subcontract its duties. Any unauthorized assignment of this Agreement is void.
WAIVER
Failure to exercise, or any delay in exercising, any right or remedy provided under this Agreement shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall preclude or restrict the further exercise of that or any other right or remedy.
GOVERNING LAWS
This Agreement shall be construed and governed by the laws of Singapore, and the parties consent to the jurisdiction of the competent courts in Singapore with respect to any matters arising under or with regard to this Agreement. Unless otherwise provided by local law without the possibility of contractual waiver or limitation, any legal or other action related to a breach of this Agreement must be commenced no later than two (2) years from the date on which the cause of action arose.
DISPUTE RESOLUTION (ADR)
The Parties agree to negotiate in good faith to resolve any dispute between them regarding this Agreement. If the negotiations do not resolve the dispute to the reasonable satisfaction of parties, then each party’s DIRECTOR or their designee (“Representatives”) shall, within thirty (30) days of a written request by either party to call such a meeting, meet either in person or through any other media and alone (except for one assistant for each party) and shall attempt in good faith to resolve the dispute.
If the disputes (except in case of dispute related to any non-payment of fees due) cannot be resolved by such Representatives in such meeting, the parties shall conduct arbitration in India in English language, in accordance with the rules of the Indian Penal Code (“Rules”). The parties agree that the dispute shall be settled by a sole arbitrator appointed in accordance with the said Rules, and the sole arbitrator so appointed shall be referred to herein as an “Arbitrator.” Following the appointment of the Arbitrator, the Arbitrator shall set forth the schedule and timing of the arbitration proceedings in accordance with the applicable provisions of the Rules. The Arbitrator shall be empowered to issue injunctive or other equitable relief. Nothing in this Section shall prevent, or be construed as preventing, a party from seeking injunctive or other equitable relief in a court of appropriate jurisdiction.
Annexure 1
Omnirio is a Software developed and managed by Omnirio connecting online platforms with retail outlets. Omnirio connects online webstores with retail stores at real time and push orders to the relevant stores chosen by customers. Omnirio also provides business owners with a complete overview of the entire business with real time access to all the information across all retail and online stores. In Addition to that Omnirio provides real time inventory access across stores and also real time order managements to the retailers. Omnirio also enables retailers to process return and exchange orders at the stores using its software for a completely automated omni-channel experience. Retailers are also able to provide their customers with features like Store Pickups and drop shipping from stores itself to optimize operations.
Annexure 2
Pricing and Commercials
CRM
No. of Customers Price per Month
1. 0 – 10,000 50 USD
2. 10,000 – 25,000 100 USD
3. 25,000 – 50,000 200 USD
4. 50,000 – 100,000 500 USD
Loyalty Platform
No. of Locations Price per Month per Location
1. 0-20 30 USD
2. 21-50 25 USD
3. 51-100 20 USD
4. 100 and more Enterprise pricing
SMS Blocks
Blocks Price per Blocks
1. 50,000 500 USD
2. 100,000 800 USD
3. 500,000 3500 USD
4. 1,000,000 6500 USD
Emails Per Month |
|||
Blocks |
Price per Blocks |
||
1 |
1,00,000 |
150 USD |
|
2 |
3,00,000 |
300 USD |
|
3 |
5,00,000 |
400 USD |
|
4 |
10,00,000 |
800 USD |
Billing :
Payment Terms:
Annexure 3
Service Level Agreement are defined as per the below table, and as per Philippines official working days:
# |
Parameter |
SLA |
1 |
Application up-time |
99% |
2 |
Application show-stopper / blocking issue (unable to use Web for normal operations) issues resolution |
Within 3 working days |
3 |
Application Major issue (Impacts work but there is alternative way to achieve functionality) issues resolution |
Within 1 working week |
4 |
Acknowledgement of show-stopper / blocking and major issues |
Within 1 working day |