Master Service Agreement

This Master Service Agreement (“Agreement”) is entered into by and between Visdum Tech, Inc. (together with its affiliates, “Visdum”) and the entity identified as Customer on the Order Form (“Customer”). 

This Agreement is effective upon the earliest of Customer’s acceptance of this Agreement, the creation of an account, or Customer’s access or use of the Services.

1.  DEFINITIONS:

“Account” means the accounts created by or on behalf of the Customer or its Agents on Visdum’s portal for using the Services.

“Agent” means an individual/entity or organization (including those of a Customer Affiliate) authorized to use the Service(s) on  behalf of the Customer through Customer’s Account as identified through a unique login.

“Agreement” means this Service Agreement along with its annexures, schedules, exhibits, Order Forms and any other  documents referencing the terms and conditions of this Service Agreement.

“Confidential Information” means all information disclosed by either Party to the other which is in (i) tangible form and labeled  “confidential”; or is (ii) information, regardless of form, which a reasonable person would understand to be confidential given the  nature of the information and circumstances of disclosure. Notwithstanding the foregoing, Confidential Information shall not  include information that (i) was already known to the Party receiving it at the time of disclosure by the Party disclosing it; (ii) was,  or is, obtained by the Party receiving it from a third party not known by the receiving Party to be under an obligation of  confidentiality with respect to such information; (iii) is or becomes generally available to the public other than by violation of this  Agreement or another valid agreement between the Parties; or (iv) was or is independently developed by the receiving party  without the use of the disclosing Party’s Confidential Information.

“Customer” shall have the meaning ascribed to it in the Preamble hereto, along with its Affiliates or Agents authorized to use the  Services on its behalf.

“Customer Data” means electronic data and information submitted by or for the Customer to use the Services.

“Duration” means the period commencing on the start date mentioned in Order Form and ending on the end date mentioned in  Order Form. Duration will include one or more Terms as per the Order Form.

“Order Form” means an ordering document or online order specifying the Services along with their features to be provided  hereunder that is entered into between Customer and Visdum or any of their Affiliates, including any addendum thereto. By  entering into the Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original  party hereto.

“Property” shall mean a webpage, portal, or platform owned or managed by the Customer on which the Services will be deployed.

“Service” means the products and services that are selected by Customer under the Order Form and are agreed to be made  available by Visdum hereby.

“Term” means the initial term as well as subsequent renewal term/s as per the Order Form for the subscription of the applicable  Services.

“User” means an end-user of Customer’s Properties or platform.

“Visdum Proprietary Material” means and includes software, algorithms, documentation, tools, techniques, methodologies or  other material arising out of, or related to this Agreement, which is not Work Product. All such material is proprietary to Visdum.

2.  SCOPE OF SERVICE: All Services are hosted on infrastructure managed by Visdum. Subject to the terms hereof, Visdum will make available, from time to  time, to the Customer the Services mentioned in the Order Form mutually agreed between the Visdum and Customer. The Order Form  will have details of the then-current subscription. Visdum offers technical support for the Term and the Customer may avail of the same.

3.  RIGHT TO USE SERVICES: Subject to the terms and conditions of this Agreement for the Term, Visdum grants Customer a worldwide, limited, royalty free, non exclusive and non-transferable right to access and use the Services as mentioned in Order Form, solely for Customer’s internal business  purposes and only as expressly defined in this Agreement. Visdum may immediately suspend or terminate Customer’s access to the Services in the event of use that threatens service integrity, violates applicable laws, or constitutes material misuse.

4. RESPONSIBILITIES, REPRESENTATIONS, AND WARRANTIES: In providing support to the Customer for Services, Visdum agrees to: (i)  liaise with Customer on matters related to the use of, and the identification and resolution of errors in the Service,  provided, however, that this shall not extend to the provision of training services. (ii)  Utilize commercially reasonable efforts to provide the Services and rectify any reproducible errors for which Visdum is  directly and solely responsible, and which have the data necessary to correct such errors is available to Visdum.  

Customer agrees to: (i)  provide all necessary data or other required materials or information to Visdum on schedule or in a timely manner to  enable Visdum to provide it with access to the Services. (ii)  ensure accuracy, legibility, and completeness of all data supplied to Visdum and be solely responsible for the results  obtained from Customer’s use of any of the Services. (iii)  control, and be responsible for the use of, Account information, user ids, and passwords related to the Services and,  where required.

Except as expressly provided in this Services Agreement, and to the maximum extent permitted by law, neither Party makes any  warranties to the other Party, and each Party disclaims all warranties, oral or written, express, implied or statutory, with respect  to its performance under this Agreement, fitness for a particular purpose, non-infringement and implied warranties arising from  any course of dealing, course of performance or usage in trade.

5. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP: All intellectual property rights, including any software, any kind of data, owned by a Party, as on the effective date of this  Agreement shall continue to be owned by such Party, its licensors or subcontractors and, except as expressly provided in this Agreement, the other Party shall not acquire any right, title, or interest in or to such intellectual property rights.

6. FEES, BILLING, TAXES, AND CHARGES
Fees: The fees set forth in the Order Form shall be effective for the Term. Customer agrees that:
(i) Fees are based on Services subscriptions purchased and not actual usage;
(ii) All payment obligations are binding and fees are non-refundable.

Billing and Payment: Visdum shall provide an electronic invoice. Payment is due within thirty (30) days of the invoice date. Visdum may suspend access to the Services if any undisputed invoice remains unpaid more than fifteen (15) days after the due date, provided Customer has been notified in writing and has failed to cure such non-payment.

Late Payment Interest: Any undisputed amount not paid when due shall accrue interest at the rate of 1.5% per month (18% per annum) or the maximum rate permitted by applicable law, whichever is lower, from the due date until paid in full.

Taxes: Customer acknowledges that all applicable taxes, duties, or government levies are not included in the fees and expenses charged under this Agreement. Customer will make timely payment of all such taxes, duties, or government levies related to this Agreement.

‍7. CONFIDENTIALITY: Visdum will not use any of Customer’s Confidential Information except in connection with the performance of the Services or the  exercise of its rights under this Agreement and will take all reasonable precautions to maintain the confidentiality of Customer’s  Confidential Information and to prevent the unauthorized disclosure to others of the Confidential Information.

Visdum will only disclose the Confidential Information to those of its employees and permitted agents and subcontractors who  have a need to know and require access to the Confidential Information as may be reasonably necessary for the exercise of  Visdum’s rights and performance of the Services under this Agreement.

Notwithstanding anything to the contrary in this  Agreement, Visdum will not be required to keep confidential and may use or license without restriction, any ideas, concepts,  know-how, or techniques related to information processing which are developed by Visdum in the performance of Services,  independent of Customer’s Confidential Information.

8. SECURITY: Visdum shall comply, at all times during the Term of this Agreement, with the Information Security Measures in order to: (i) ensure the security and confidentiality of Confidential Information (including, personal information and other sensitive  information) provided to Visdum hereunder; (ii) protect against anticipated threats or hazards to the security or integrity of such Confidential Information; (iii) protect against unauthorized access or use of such Confidential Information; and (iv) ensure the proper disposal of Confidential Information.

Visdum will ensure that all Visdum personnel handling such Confidential Information have been appropriately trained in the  implementation of Visdum’s information security policies and procedures. Visdum regularly audits and reviews its information  security policies and procedures to ensure their continued effectiveness and determine whether adjustments are necessary in  light of circumstances including, without limitation, changes in technology, customer information systems or threats or hazards  to Confidential Information. 

8. PRIVACY:  Any personally identifiable information provided to Visdum by Customer will only be used by Visdum as reasonably required for providing  Services as contemplated hereunder and otherwise in accordance with all applicable data protection laws and regulations and Data  Protection Agreement ("DPA") (collectively,  “Data Protection Laws and Regulations”). Visdum will comply in all respects with the Data Protection Laws and Regulations and will  provide such help and cooperation as is reasonably necessary or requested to the other to comply with the same. The DPA available at www.visdum.com/data-processing-agreement (or other designated replacement), is incorporated herein by reference.

9. SERVICE LEVELS AND SUPPORT:
Visdum shall use commercially reasonable efforts to maintain at least 99.5% monthly uptime (the “Uptime Commitment”), excluding Scheduled Maintenance and force majeure events. “Uptime” means the production environment is available for Customer use. Scheduled Maintenance will be communicated at least 5 business days in advance.

Visdum will provide support in accordance with the following service levels:
- Severity 1 issues: initial response within 1 hour, with continuous work until resolution or workaround
- Severity 2 issues: initial response within 4 hours
- Severity 3 issues: initial response within 1 business day

10. INDEMNIFICATION: Each Party agrees to defend, at its own expense, and hold harmless the other Party from and against all Claims to the extent resulting from or arising out of any third-party claim alleging any (a) gross negligence, willful misconduct, breach of confidentiality, and data protection violations in connection with the performance of its obligations under this Agreement, or (b) any violation of the representations and warranties herein. ‍Customer shall indemnify and hold harmless Visdum from any claims arising from Customer’s use of the Services in violation of third-party intellectual property rights.

11. LIMITATION OF LIABILITY: Customer and its subsidiaries, affiliates, officers, employees, agents, partners, vendors, and licensors shall not be liable for any  indirect, incidental, special, punitive, or consequential damages, including but not limited to damages for lost profits, business  interruption, loss of programs or information, loss of data, violation of data protection law and the like, that result from the use or  inability to use the Service or from mistakes, omissions, interruptions, deletion of files or directories, errors, defects, delays in  operation, or transmission, regardless of whether Visdum has been advised of such damages or their possibility.

Notwithstanding anything to the contrary in this Agreement, Customer’s aggregate liability under or in connection with the  Agreement, whether arising from contract, negligence, tort, data protection law or otherwise, shall in any event not exceed the  unpaid amount payable by Customer under the Agreement in preceding 12 calendar months.

Notwithstanding anything to the contrary in this Agreement and except for Visdum’s indemnity obligations under this Agreement,  Visdum’s aggregate liability under or in connection with the Agreement, whether arising from contract, negligence, tort, data  protection law or otherwise, shall in any event not exceed the amount paid by Customer under the Agreement in preceding 12  calendar months.

12. GOVERNING LAW: This Agreement shall be governed by and construed in accordance with the laws of State of Delaware, USA. Customer agrees, in the event,  any claim or suit is brought in connection with this Agreement, it shall be brought to the exclusive jurisdiction and venue of the courts of Delaware. In any action to enforce this Agreement, including, without limitation, any action by Visdum for the recovery of fees due  hereunder, Customer shall pay reasonable attorneys' fees and costs in connection with such action.

13. MISCELLANEOUS 

13.1 SEVERABILITY: In the event that any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal, or unenforceable  in any respect, such invalidity, illegality, or unenforceability shall not affect any of the other provisions of this Agreement; and this  Agreement shall be construed as if such provision(s) had never been contained herein, provided that such provision(s) shall be curtailed,  limited, or eliminated only to the extent necessary to remove the invalidity, illegality, or unenforceability.

13.2 WAIVER:No waiver by Visdum of any breach by Customer of any of the provisions of this Agreement shall be deemed a waiver of any preceding  or succeeding breach of this Agreement. No such waiver shall be effective unless it is in writing signed by the parties hereto, and then  only to the extent expressly set forth in such writing.

13.3 ASSIGNMENT: Neither party may assign or transfer this Agreement or any rights or obligations hereunder, in whole or in part, except with the prior  written consent of the other party, which shall not be unreasonably withheld.

13.4 ENTIRE AGREEMENT: This Agreement, which includes the Order Form(s) and Service Descriptions, constitutes the entire agreement between Visdum and Client for the Services and supersedes all prior and contemporaneous agreements and understandings, both written and oral. Order Form(s) may be executed electronically and delivered in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. The terms of any purchase order, acknowledgement or other business form that Client may use will not affect or modify this Agreement or any rights, duties or obligations of the parties hereunder. In the event of a conflict between this Agreement and the Order Form(s), the Order Form will take precedence. This Agreement may only be modified in a written agreement signed by both parties. Any standard terms or conditions included in a Customer-issued purchase order or similar document that conflict with this Agreement or the applicable Service Order shall be void and have no force or effect, even if acknowledged or signed by Visdum.

13.5 COMPLIANCE WITH LAWS: Each party will comply with all applicable foreign, federal, state, and local laws, rules, and regulations, including without limitation U.S. export laws and the import and use laws of the country where the Services are delivered or used, and all applicable laws relating to bribery or corruption.
Under these laws, the Services may not be sold, leased, downloaded, moved, exported, re-exported, or transferred across borders without a license or approval from the relevant government authority, to any country, including countries embargoed by the U.S. Government (currently Cuba, Iran, North Korea, Northern Sudan, and Syria); or to any restricted or denied end-user including, but not limited to, any person or entity prohibited by the U.S. Office of Foreign Assets Control (OFAC); or for any restricted end-use. Customer will maintain throughout its use of the Services all rights and licenses that are required with respect to such use, including without limitation U.S. export control laws, OFAC regulations, the Foreign Corrupt Practices Act (FCPA), anti-bribery and anti-corruption laws, and all applicable data protection and privacy laws.

13.6 REFERENCE USE: Customer grants Visdum the right to list Customer’s name and logo on its website, marketing materials, and presentations as a customer, provided that no Confidential Information is disclosed.

13.7 AUTO-RENEWAL AND TERMINATION: If the Service Order Form specifies auto-renewal, the Subscription will automatically renew for successive 12-month period at the end of each term unless either party provides written notice of non-renewal at least 30 days prior to the Term End date. Continued use of the Service after the Term End date constitutes acceptance of the renewed term. Non-payment of any undisputed amounts more than forty-five (45) days from the invoice due date shall constitute a material breach under this Agreement.

Either party may terminate this Subscription:
- If the other party materially breaches this Agreement and fails to cure the breach within 30 days of written notice.
- Immediately if either party ceases operations, becomes insolvent, or enters bankruptcy proceedings.
Written notice of termination or non-renewal must be sent via email to legal@visdum.com.

Upon termination, Visdum shall make Customer Data available for export for a period of thirty (30) days. Thereafter, Visdum may delete all such data unless legally required to retain it.