This Agreement is entered into as of the earliest of the date that Customer accepts the terms and conditions herein, the date set forth on an Order, or the date on which Customer downloads, installs, activates or uses the Software.
1. Rights of Access and Use.
- Access and Use subject to the terms and conditions of this Agreement, during the applicable License Term, Turbo Care hereby grants to Customer (i) a non-exclusive, non-transferable and non-sublicensable license for Customer to access and use the SaaS Product solely for Customer’s internal use with Customer’s ordinary business operations and in accordance with the applicable Documentation. Customer may provide access to the SaaS Product to its and its Affiliates’ employees, contractors, and other individual users to access and use the SaaS Products on its behalf and for its internal business purposes in compliance with this Agreement, provided Customer is responsible for all such users’ actions that violate the terms of this Agreement, any breach by any such user is a breach by Customer, and no such user is an employee or contractor of a Turbo Care Competitor. Customer agrees that its purchase of the Software is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Turbo Care with respect to future functionality or features.
- Trial License. This Agreement applies to trial copies of the SaaS Product (“Trial Product”), except for the following different or additional terms: (i) the License Term for Trial Product is thirty (30) days, which Turbo Care may extend upon written consent; (ii) the trial period shall commence on the date that Turbo Care first provides Customer credentials to access the the Trial Product; (iii) Trial Product is provided “AS IS” without warranty of any kind, and Turbo Care disclaims all warranties, indemnities, and all other liabilities for Trial Product; (iv) Customer is not entitled to any support and maintenance services or any Updates for Trial Product.
Use Restrictions; Customer Obligations. As a condition of the license granted in Section 1, Customer shall not itself and shall not authorize or permit any third party to: (a) reverse engineer, decompile, decode, decrypt, disassemble, or attempt to derive any source code from the SaaS Product (except and only to the extent any foregoing restriction is prohibited by applicable law); (b) modify, adapt, or create any derivative works based on the SaaS Product; (c) distribute, sell, license, lease, transfer, or otherwise provide any SaaS Product to third parties except as expressly provided in this Agreement; (d) provide the SaaS Product as a service to unaffiliated third parties, including but not limited to on a service bureau, SaaS, or time-sharing basis; (e) unbundle any component of any SaaS Product; or (f) use the Documentation except for supporting Customer’s authorized use of the SaaS Product; or (g) violate the Acceptable Use Policy; or (h) employ or authorize a Turbo Care Competitor to use or view the SaaS Product or Documentation, or to provide management, hosting, support or similar services with regard to the SaaS Product without the prior written consent of Turbo Care.
Payment ; Additional Licenses; Reporting. Customer shall pay the fees for Turbo Care products and/or services as set forth in the applicable Order. If Customer is purchasing through a reseller, payment terms will be determined by Customer and the reseller. If Customer is purchasing directly from Turbo Care, all fees are due within thirty (30) days of the invoice. Customer shall pay all applicable fees including applicable taxes.
- Definition. “Confidential Information” means non-public information provided by one party (“Discloser”) to the other (“Recipient”) that is designated as confidential or reasonably should be considered as such, excluding information that (i) is or becomes public through no fault of the Recipient, (ii) was known to Recipient before the disclosure, (iii) is disclosed to Recipient by a third party without violation of any confidentiality restrictions, or (iv) is independently developed by the Recipient without access to or use of the Discloser’s information. Turbo Care Confidential Information includes but is not limited to all SaaS Products (and any derivatives, performance data, benchmark results, security assessments, product roadmaps and any other technical information relating to the SaaS Products), Documentation and its derivatives, and Turbo Care’s pricing. The terms and conditions of this Agreement are the Confidential Information of both parties.
- Non-disclosure and Non-Use. The Recipient shall (i) only use the Confidential Information of the Discloser to exercise its rights and/or to perform under this Agreement, (ii) use the same degree of care to prevent unauthorized use and disclosure of Discloser’s Confidential Information as it does for its own confidential information, but in no event less than reasonable care, and (iii) with respect to employees, contractors, or agents of Recipient, limit access to the Discloser’s Confidential Information only to those employees, contractors, or agents who have a need to access such Confidential Information and who are subject to confidentiality obligations at least as restrictive as those specified in this Section 5. The Recipient may disclose the Discloser’s Confidential Information to the extent required by any court, governmental body, or law or regulation, provided that, if legally permissible, Recipient shall provide prompt written notice to the Discloser of such disclosure. Upon written request of the Discloser, the Recipient shall return or destroy, at Discloser’s option, the Discloser’s Confidential Information.
Ownership. Turbo Care and its suppliers own and retain all right, title, and (except as expressly licensed in this Agreement) interest in and to the SaaS Product and its derivative works. Customer is not obligated to provide Turbo Care with any suggestions or feedback about the products or services (“Feedback”). To the extent Customer does provide Feedback to Turbo Care, Customer assigns ownership of such Feedback to Turbo Care and Turbo Care may use and modify such Feedback without any restriction or payment.
- Indemnification by Turbo Care. Turbo Care shall at its cost and expense (i) defend or settle any claim brought against Customer and its directors, officers and employees (“Customer Indemnitee(s)”) by an unaffiliated third party alleging that Customer’s use of the SaaS Product infringes or violates that third party’s intellectual property right(s), and (ii) pay, indemnify and hold Customer Indemnitees harmless from any settlement of such claim or any damages finally awarded to such third party by a court of competent jurisdiction as a result of such claim.
- Remedies. If a claim under Section 7.a occurs or in Turbo Care’s opinion is reasonably likely to occur, Turbo Care may at its expense and sole discretion: (i) procure the right to allow Customer to continue using the applicable SaaS Product, (ii) modify or replace the applicable SaaS Product to become non-infringing, or (iii) if neither (i) nor (ii) is commercially practicable, terminate Customer’s license to the affected portion of applicable SaaS Product and refund a portion of the pre-paid, unused license fees paid by Customer corresponding to such SaaS Product.
- Exclusions. Turbo Care shall have no obligations under this Section 7 if the claim is based upon or arises out of: (i) any modification to the applicable SaaS Product not made by or at the direction of Turbo Care, (ii) any combination or use of the applicable SaaS Product with any third party equipment, products or systems, to the extent that such claim is based on such combination or use, (iii) Customer’s continued use of the allegedly infringing technology after being notified of the infringement claim, (iv) Customer’s failure to use Updates made available by Turbo Care, (v) Customer’s failure to use the SaaS Product in accordance with the applicable Documentation, and/or (vi) use of the SaaS Product outside the scope of the license granted under this Agreement. This Section 7 constitutes Customer’s sole and exclusive remedies, and Turbo Care’s entire liability, with respect to infringement of third party intellectual property rights.
- Indemnification by Customer. Customer shall at its cost and expense (i) defend or settle any claim brought against Turbo Care and its directors, officers and employees (“Turbo Care Indemnitee(s)”) by an unaffiliated third party alleging that the Customer Data infringes or violates a third party’s intellectual property or privacy right(s), and (ii) pay, indemnify and hold Turbo Care Indemnitees harmless from any settlement of such claim or any damages finally awarded to such third party by a court of competent jurisdiction as a result of such claim. “Customer Data” means any data originated by Customer or Customer Representatives that Customer or Customer Representatives submit to the SaaS Product.
- Procedures. Each indemnitor’s indemnification obligation is conditioned on the indemnitee: (i) giving the indemnitor prompt written notice of such claim, (ii) permitting the indemnitor to solely control and direct the defense or settlement of such claim, provided the indemnitor shall not settle any claim in a manner that requires the indemnitee to admit liability or pay money without the indemnitee’s prior written consent, and (iii) providing the indemnitor all reasonable assistance in connection with the defense or settlement of such claim, at the indemnitor’s cost and expense.
Turbo Care represents and warrants to Customer that the SaaS Product materially conforms to the specifications specified in the relevant Documentation. Customer must notify Turbo Care of any warranty deficiencies within thirty (30) days from the provision of the deficient SaaS Product. Customer’s sole and exclusive remedy and the entire liability of Turbo Care for Turbo Care’s breach of this warranty will be for Turbo Care, at its option, to (i) repair such SaaS Product (and/or deliver new applicable Software) or (ii) terminate the applicable License Term and refund any prepaid, unused subscription fees paid to Turbo Care for the unused period of any such terminated License Term.
The warranties do not apply if the applicable SaaS Product (i) has been modified, except by or at the direction of Turbo Care, (ii) has not been installed, used, or maintained in accordance with this Agreement and Documentation, (iii) has been subjected to conditions including weak or broken network, insufficient disk storage, memory and CPU, misuse, negligence or accident, and/or (iv) is used with devices not compatible with the versions. Additionally, these warranties only apply if notice of a warranty claim is provided within the applicable warranty period.
Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS SECTION 9, THE SAAS PRODUCT IS PROVIDED “AS IS,” AND TURBO CARE PROVIDES NO OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND TURBO CARE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
Term and Termination. The access rights granted herein with respect to the SaaS Product shall remain effective until the License Term for the relevant SaaS Product expires or the license for the relevant SaaS Product is terminated. This Agreement shall remain effective until the earliest of termination in accordance with this Section 10, or expiration of the applicable License Term. If Turbo Care agrees to reinstate a lapsed subscription license, then the terms of this Agreement shall apply. Either party may terminate this Agreement: (a) upon thirty (30) days’ written notice of a material breach by the other party (or three (3) business days in the case of a failure to pay), unless the breach is cured within the notice period, or (b) immediately, if the other party ceases to do business, becomes insolvent, or seeks protection under any bankruptcy or comparable proceedings. In addition, the parties may terminate this Agreement by mutual written consent. All other licenses terminate upon expiration or termination of this Agreement. In addition, Sections 1, 3-7, and 9-12, and all liabilities that accrue prior to termination shall survive expiration or termination of this Agreement for any reason. For ninety (90) days after the expiration or termination of this Agreement, upon Customer’s request, Turbo Care shall permit Customer to access the SaaS Product solely to the extent necessary for Customer to retrieve applications uploaded to such SaaS Product by Customer. After such 90-day period, Turbo Care may delete all Customer Data in Turbo Care’s possession or control.
Limitation of Liabilities. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR ANY BREACHES OF OR FOR LIABILITY ARISING OUT OF SECTION 3 (RESTRICTIONS), 5 (CONFIDENTIALITY) OR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, OR CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STATUTE, TORT OR OTHERWISE) FOR: (a) ANY LOST PROFITS, LOST BUSINESS OPPORTUNITIES, LOST DATA, OR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR SUCH DAMAGES OR LOSSES WERE REASONABLY FORESEEABLE, OR (b) AN AMOUNT THAT EXCEEDS THE TOTAL FEES PAYABLE TO TURBO CARE FOR THE RELEVANT SAAS PRODUCT, HARDWARE, OR SERVICE DURING THE TWELVE-MONTH PERIOD BEFORE THE EVENT GIVING RISE TO SUCH LIABILITY. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SPECIFIED IN THIS AGREEMENT. MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SPECIFIED IN THIS SECTION 11.
- In-Licensed Materials and Open Source. The SaaS Product may contain or may operate with software services or other technology that is not owned by Turbo Care but has been licensed to Turbo Care by a third party and is necessary for the normal operation of the Software (“In-Licensed Materials”) or that is available under open source or free software licenses. The In-Licensed Materials may be subject to additional terms and conditions, as identified on http://turbo.care/legal/en/thirdpartyterms or as otherwise made available to Customer. Such terms and conditions are incorporated by reference herein. To the extent Turbo Care uses open source software in the Software, the terms and restrictions set forth herein shall not prevent or restrict Customer from exercising additional or different rights to such open source software in accordance with the applicable open source licenses.
- Governing Law and Jurisdiction. Except as otherwise provided in Schedule A (if applicable), this Agreement, and the rights and duties of the parties arising from this Agreement, shall be governed by, construed, and enforced in accordance with the laws of the Republic of India, excluding its conflicts-of-law principles. Courts in Pune should shall have jurisdiction over all claims, legal proceedings or litigation arising in connection with the Services.
- Assignment. Neither party may assign this Agreement without prior written consent of the other party, provided however either party may do so to a successor-in-interest pursuant to a merger, acquisition, or sale of all or substantially all of its business and/or assets. Any assignment in violation of this Section 12.e shall be void. Subject to the foregoing, all rights and obligations of the parties under this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns.
- Data Communications. Turbo Care shall only collect, access, use, store, safeguard, disclose and transfer (“Process”) Personal Information (i) for the purposes of this Agreement, including without limitation, to implement and deliver the SaaS Product and its features and associated services, provide Customer support, and help Customer prevent or address service or technical problems, (ii) as otherwise expressly permitted by Customer in writing, or (iii) as compelled by law. Customer shall make such disclosures, obtain such consents, and provide such access, choices and other applicable rights to individual users with regard to the Processing of Personal Information as are required under applicable law, rules or regulations. “Personal Information” means any information relating to an identified or identifiable individual user that is obtained by or communicated to Turbo Care by Customer in performance by Turbo Care of its obligations under this Agreement. Turbo Care collects, analyzes, and uses aggregated, de-identified technical data and related information (such as product or feature usage, device metrics/metadata and/or mobile application usage) to facilitate market research, product development/improvement and to provide support and maintenance services. Turbo Care may use, store, or disclose such information or material derived from such information, as long as it is in a form that does not identify or is not attributable to any individual.
- Equitable Relief. The parties agree that a material breach of this Agreement adversely affecting Turbo Care’s or its suppliers’ intellectual property rights in the SaaS Product or either party’s Confidential Information may cause irreparable injury to such party for which monetary damages would be an inadequate remedy and the non-breaching party shall be entitled to equitable relief (without a requirement to post a bond) in addition to any remedies it may have under this Agreement or at law.
- Publicity. Turbo Care may publicly disclose that Customer is a customer of Turbo Care and a licensee of the SaaS Product, including in a list of Turbo Care customers and other promotional materials.
- Independent Contractor. The parties are independent contractors. This Agreement shall not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties.
- Customer Affiliates. An Affiliate may purchase Turbo Care products and/or services either by executing a participation agreement with Turbo Care or through Turbo Care’s acceptance of an Order issued by such Affiliate or Authorized Reseller (as applicable). Upon execution of a participation agreement by Affiliate or, if the Affiliate issues a purchase order referring to this Section 12.j, that is accepted by Turbo Care, such Affiliate shall be deemed to have purchased such products and/or services hereunder, and such Affiliate shall be bound by and shall comply with the terms and conditions of this Agreement as a “Customer” under the Agreement.
- Waiver & Severability; Amendments. The failure of either party to enforce any provision of this Agreement shall not constitute a waiver of any other provision or any subsequent breach. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect. This Agreement may only be amended, or any term or condition set forth herein waived, by written consent of both parties.
- Notices. Except as otherwise provided in this Agreement, all legal notices to Customer will be given in writing to any Customer address listed on the applicable Order. All legal notices to Turbo Care will be given in writing to: Bizlers Technologies Private Limited, Cowork18, Saikrupa, Opposite Sane Dairy, Bhandarkar road, Deccan Gymkhana, Pune 004. Attention: General Counsel. Such notices will be effective (a) when personally delivered, (b) on the reported delivery date if sent by a recognized international or overnight courier or by fax, or (c) five business days after being sent by registered or certified mail (or ten days for international mail). For clarity, purchase orders, invoices, and other documents relating to order processing and payment are not legal notices and may be delivered electronically in accordance with Turbo Care and Customer’s standard ordering procedures.
- Entire Agreement. This Agreement consists of these terms and conditions, and the attached schedule(s), which are incorporated by reference. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes and cancels all prior agreements, representations, communications, and understandings of the parties, written or oral, relating to such subject matter, and is not intended to confer upon any person other than the signatories below any rights or remedies. This Agreement prevails over any conflicting, or additional terms of any ordering document, acknowledgment, confirmation or other document issued by Customer before or after the execution of this Agreement unless such conflicting or additional terms have been introduced via an amendment and accepted in writing by both parties. The headings of sections of this Agreement are for convenience and are not for use in interpreting this Agreement.
Service Level Agreement
- “Designated Support Contact” means any Customer employee appointed by Customer who has been trained and certified by Turbo Care to be a primary Customer contact with Turbo Care for support services.
- “Direct Support Case Pack” means a direct support package that limits the number of Incidents for which the Customer is able to obtain direct support from Turbo Care.
- “Incident” means when the SaaS Product does not seem to materially perform in accordance with the specifications specified in the relevant Documentation.
- “Response” means when Turbo Care support personnel have (i) triaged the Incident, (ii) contacted Customer, and (iii) begun initial troubleshooting on the Incident.
Support Services .
- Support and Trouble Tickets. During the License Term, Turbo Care shall use commercially reasonable efforts to provide support services to Customer, as described below. The Designated Support Contact may report Incidents to Turbo Care through Turbo Care’s support email and support phone number. Turbo Care shall provide Customer with a trouble ticket number that Customer can use to track the status of Incidents. Turbo Care may close the trouble ticket without further responsibility if Customer fails to respond to a request for additional information or to confirm that the trouble ticket is resolved within seven (7) days of Turbo Care’s request or receipt of a patch or workaround (as applicable). Support services for the SaaS Product are available during business hours, which are 9 am-9 pm IST, Monday through Friday (excluding holidays).
- Initial Response Times for Technical Support Issues. Turbo Care shall provide Responses for Incidents that have been properly reported through the Support Portal in accordance with the table below.
Initial Response Time for Standard SaaS Subscription
Initial Response Time for Premium Plus Support
- A severity one (1) issue is a catastrophic production problem which may severely impact Customer’s production systems or that causes Customer’s production systems to go down or not function. There may be a loss of production data and no procedural work around exists.
Initial Response Time: 1 hour
- A severity two (2) issue is an issue where Customer’s production systems are functioning but does so in a severely reduced capacity. The situation causes significant impact to portions of Customer’s business operations and productivity. The systems are exposed to potential loss or interruption of service, including disruption of Customer’s High Availability Configuration.
Initial Response Time: 4 hours
- A severity three (3) issue is a medium-to-low impact problem which involves partial non-critical functionality loss. This issue impairs some operations but allows Customer to continue to function. This may be a minor issue with limited/no loss of functionality or impact to Customer’s operation and there is an easy circumvention or avoidance by the end user. This includes errors in Documentation.
Initial Response Time: 1 business day
- A severity four (4) issue is for a general usage question or recommendation for a future product enhancement or modification. There is no impact on the quality, performance or functionality of the product.
Initial Response Time: 5 business days
b. Limitations. Turbo Care shall have no obligations under this Section 2: (i) if the Incident cannot be reproduced by Turbo Care, (ii) if the SaaS Product has been modified or repaired, except by or at the direction of Turbo Care, (iii) if the SaaS Product has not been installed, used or maintained in accordance with the Documentation, (iv) the SaaS Product is used on hardware, software or other equipment that deviates from Turbo Care’s recommendations made in the then current Documentation, (v) Customer does not permit Turbo Care timely access to the logs or to perform remote troubleshooting sessions on the affected server or component, as reasonably requested by Turbo Care, and/or (vi) for information or data contained in, stored on or integrated, with any SaaS Product. Turbo Care’s obligations to provide maintenance for software installed on Customer’s premise (e.g., Sentry or Connector) shall apply only to the current shipping release of the Software and any prior release for one (1) year after such prior release has been superseded by a subsequent shipping release. (For example, if Sentry shipping version 5.0 is released in January 2016, version 5.1 is released in June 2016, and version 5.2 is released in December 2016, Turbo Care shall support version 5.0 until June 2017, version 5.1 until December 2017, and version 5.2, assuming version 5.2 has not been superseded yet.)
Maintenance Services. During the License Term, Turbo Care (or authorized reseller, if applicable) shall make available to Customer all Updates to the extent generally released to other Turbo Care customers that purchased the same maintenance services. Such maintenance services shall apply only to the current shipping release of the SaaS Product and, for security fixes only, the immediately prior release.
General . Turbo Care may revise the terms of this SLA, provided that: (a) such revision is made to its standard SLA terms made generally available to other customers, (b) Turbo Care provides written/email notice of such revision at least sixty (60) days prior to the expiration of the then-current Support & Maintenance Term, (c) such revisions only apply to renewal terms, and (d) renewal is subject to mutual agreement. Any delay or failure in the performance by Turbo Care (including in SaaS Product availability) shall be excused if and to the extent caused by a cause or event that is not reasonably foreseeable or otherwise caused by or under the control of Turbo Care, including but not limited to acts of God (including but not limited to fire, flood, earthquake, storm, hurricane or other natural disaster), war, hostilities (whether war be declared or not), invasion, act of foreign enemies, mobilization, requisition or embargo, rebellion, revolution, insurrection, military or usurped power, civil war, acts or threats of terrorism, riots, strikes or labor disputes (excluding by Turbo Care employees) (“Force Majeure”).
BIZLER TECHNOLOGIES PRIVATE LIMITED.