Omnirio - Terms and Conditions

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:

Company is in the business of providing platform to make businesses Omni-Channel;
Customer is a company engaged in eCommerce and wants to use Company’s Software and Services in its business;
Customer desires to and has approached Company to access and use Company’s Software on subscription basis as per terms of this Agreement and Services and Company has agreed to grant certain rights with respect to the its Software and Services to Customer, on the terms and conditions set forth below.

NOW IT IS HEREBY AGREED BY AND BETWEEN PARTIES AS UNDER –

DEFINITIONS

Agreement shall mean this Agreement in addition to any and all schedules, attachments, exhibits, amendments to this Agreement;
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Software and Services for the Purpose agreed in Annexure 1. Customer will ensure that any person having access to or use of the Software is subject to an obligation of confidentiality with respect thereto at least as restrictive as the confidentiality obligations set forth in this Agreement. For purpose of clarity, Authorised User shall not include Customer affiliates or subsidiaries. Customer will ensure that any user having access to or use of the Software is subject to an obligation of confidentiality with respect thereto at least as restrictive as the confidentiality obligations set forth in this Agreement;
Documentation shall mean the document made available to the Customer by the Company online as may be notified by the Company to the Customer from time to time which sets out a description of the user instructions for the Software and Services;
Initial Subscription Term means a period of Twelve (12) months from the Effective Date of this Agreement;
Managed Infrastructure means the infrastructure set-up hosted by Company to use the Software for and on behalf of the Company subject to the terms as set out in this Agreement or any Schedules or Annexures to this Agreement;
Service(s) shall mean services pertaining to the Software provided by Company including implementation, support and training Services and such other services additionally outlined in mutual agreement between the parties;
Software shall mean Omnirio more appropriately described under Annexure A, an online software application and platform provided by the Company as part of the Services and any accompanying Documentation permitted to be used by the Company under this Agreement;
Subscription Fees: the subscription fees payable by the Customer to the Company as set out in Section 5;
Subscription Term: shall have the meaning as set out under Section 11;
Territory shall mean the territories and geographical limits of where the Customer is operating

ENGAGEMENT

Subject to receipt of payment by Company and Customer’s compliance with the terms of this Agreement, Company hereby grants Customer, for the Term of this Agreement, non-transferable, revocable, non-sub licensable limited right to use the Software within the Territory for the Term of this Agreement, solely for the “Purpose” set forth in Annexure 1 to this Agreement in a Managed Infrastructure. Customer shall not, directly or indirectly or through any unrelated party, (i) copy, modify, adapt, translate, reverse engineer, decompile, disassemble, alter, reproduce or otherwise make any changes to the Software; or (ii) use the Software for any purpose other than the Purpose; or (iii) allow use of the Software by any third party. Customer shall have no rights over the Software other than as specifically provided herein. The Software will be electronically transmitted by Licensor via internet
Company grants to the Customer a non-exclusive right and license for the Territory to use its trademarks solely for the purpose of marketing as described under Section 3. Company shall have the right, upon reasonable notice, to audit and inspect the Customer’s use of its trademarks and the Customer shall facilitate such auditing or inspection.
Company shall provide to Customer implementation, integration, configuration and customization service pursuant to the Software as set forth in Annexure 1. Company reserve the right to introduce changes in the scope of Services impacting the efforts to be provided by the Company and thereby the costs. Any additional feature requirement that is not covered in the current scope of Services will be treated as change request and will be agreed upon in writing by the parties by an amendment to Annexure 1

CUSTOMER OBLIGATIONS

The Customer shall:

Provide the Company with:
1. all necessary co-operation in relation to this agreement; and
2. all necessary access to such information as may be required by the Company;

in order to render the Services, including but not limited to Customer Data, security access information and configuration services;

Comply with all applicable laws and regulations with respect to its activities under this Agreement;
Carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Company may adjust any agreed timetable or delivery schedule as reasonably necessary;
Ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement;
Obtain and shall maintain all necessary licenses, consents, and permissions necessary for the Company, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;
Ensure that its network and systems comply with the relevant specifications provided by the Company from time to time; and
Be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Company’s data centers, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet

COMPANY OBLIGATIONS

May sell, sign partnership with other company
Shall integrate with major International / Domestic webstore builders and Retail POS systems.

FEES

Customer agrees to pay Company as compensation for the Services, and the Company agrees to accept as compensation, amounts as per the rates and schedule agreed under Annexure 2.
With respect to orders processed by Customer through Company Software in accordance terms set forth under Section 2(a) of this Agreement, Customer agrees to pay Company, on an Annual basis, Subscription Fees based on calculation for every order or parcel processed in the Managed Infrastructure of the Company. Such calculation is set out under Annexure 2.
All fees and charges as agreed in Annexure 2 shall be exclusive of taxes including withholding taxes and shall be paid by the Customer within seven (7) days from the receipt of invoice. In the event an invoice is not disputed by the Customer within 30 days of its receipt, such invoice shall be deemed undisputed by the Customer.
If the Company has not received payment within fifty (50) days after the due date, and without prejudice to any other rights and remedies of the Company:
The Company may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Company shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
Customer agrees to pay interest at the rate of eleven (11%) per annum, on any invoice remaining unpaid for more than thirty (30) days from the payment due date. Company shall also have a right to suspend the services under this Agreement till the payment is received.
Subject to clause (i) and (ii) above, in the event Customer fails to make payment for more than 90 days after expiry of due date, Company shall be released from all its obligations without any liability to the Customer, and Customer acknowledges that the non-exclusivity provision shall become void. Company may, in its sole discretion, terminate the Agreement without any liability to Customer including losses incurred due to nonperformance of Services, lost data, non-adherence to service levels, if such failure to make payment continues for more than 90 days after the due date. Company will maintain the data security even after the contract expire and any violation to that will be consider as data mischief

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

“Confidential Information” shall mean information disclosed by one party to the other and which includes, without limitation the all software, documentation, financial, business, technical and marketing information, business plans, methods, processes, inventions, techniques, designs, data, know-how, ideas, concepts, strategies, trade secrets, software product and services and such other information. Confidential Information does not include information which: a) is in the public domain; (b) was known to the party of such disclosure or becomes known to the party without breach of any confidentiality agreement; (c) is independently developed by either party without violating any confidentiality obligations stated herein; (d) is disclosed pursuant to judicial order or requirement of the governmental agency or by operation of law.
The receiving party shall keep Confidential Information and proprietary information and data received from the disclosing party in strict confidence and shall not disclose it to any third parties except to a limited group of receiving party’s directors, officers, agents, authorized representatives on a need-to-know basis.
Upon request by the disclosing party, the receiving party shall immediately return to the disclosing party, all Confidential Information disclosed by the disclosing party and all copies thereof. All such information shall be and shall remain the sole property of the disclosing party.
The confidentiality obligations stated herein shall survive during the tenure of this Agreement and further for a period of five (5) years from the date of termination or expiration of this Agreement.
The receiving party agrees that any violation of the confidentiality obligations will cause irreparable injury to the disclosing party, entitling disclosing party to obtain injunctive relief in addition to all legal remedies.

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

Term. This Agreement shall, unless otherwise terminated as provided in this Section 11 commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
1. either party notifies the other party of termination, in writing, at least ninety (90) days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
2. otherwise terminated in accordance with the provisions of this Agreement;
Termination for Material Breach. Either party may terminate this Agreement in the event that (i) the other party is in default of any of its material obligations hereunder and such default is not remedied within 30 days of receipt of written notice thereof or (ii) the other party is adjudicated bankrupt or becomes insolvent, makes any assignment for the benefit of creditors, proceedings are instituted by the other party seeking relief, reorganization or rearrangement under any laws relating to insolvency, bankruptcy or similar laws of any jurisdiction, a receiver, liquidator or trustee is appointed in respect of any property or assets of the other party or an order is made for the liquidation, dissolution or winding up of the other party.
Effect of Termination. Upon termination of this Agreement, and except as otherwise provided in this Agreement all rights of the Customer to further use the Software shall cease with an immediate effect and Customer shall return and make no further use of any Software, property, Documentation and other items (and all copies of them) belonging to the Company. Subject to the terms stated above, if the Agreement is terminated for convenience by Customer or breach by Customer before expiry of Initial Subscription Term, Customer shall forthwith pay the implementation fees in full and other fees due and payable as mentioned in Annexure 2 subject to condition that company hand over all biz data to Customer.

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

Software and Service Description:

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.

Purpose of Software use:
1. Module : Omnirio that includes:
  1. Customer Relationship Management
  2. Loyalty Platform
  3. POS Plugin
  4. Website Plugin
  5. SMS and Email Messaging Platform

Annexure 2

Pricing and Commercials

Fees Details:

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 will be pre-paid annually and customer will be invoiced at the start of the go-live.

Payment Terms:

All Invoicing will be done by Omnirio Pte. Ltd. (Singapore-based entity) in USD
Taxes / withholding taxes to be added on top as per local regulations
Payment shall be made in accordance with the terms of the Agreement

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

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Omnirio - Terms and Conditions - Omnirio