Master Cloud Service Agreement

eduZilla Master Cloud Services Agreement

Last Updated Date: 1 January 2018

This Master Agreement (“Agreement”) is between Venturezilla Private Limited, a Company Based in Thane, Maharashtra, India (“VZPL”), and Customer (“Customer”).

This agreement should be read together with Pro-forma Invoice.

  1. Access to the Subscription Services. VZPL grants Customer a right to receive the Subscription Services.
    1. The Software is located on servers that are controlled by VZPL. Customer may access the Software, but has no right to receive a copy of the object code or source code to the Software. For the purpose of accessing the Subscription Services, Customer should use a Web Browser Software (Recommended Mozilla Firefox or Google Chrome). VZPL grants Customer a nonexclusive, non-assignable, royalty free, limited right during the term of this agreement to use the software through subscription service.
    2. Customer must have a high speed Internet connection, and hardware and software that is compatible with the Subscription Services, as set out in the eduZilla Documentation. None of these things are VZPL’ responsibility.
    3. VZPL regularly upgrades and updates the Subscription Services. This means that the Subscription Services are continually evolving. Some of these changes will occur automatically, while others may require Customer to schedule and implement the changes. The changes may also mean that Customer needs to upgrade its equipment in order to make efficient use of the Subscription Services. VZPL will provide Customer with advance notification in this case. Customer is required to accept all patches, hot-fixes and services packs (collectively, “patches”) necessary for the proper function and security of the Subscription Services, including for the Software.
    4. VZPL solely owns the intellectual property in the Subscription Services including the Software and the eduZilla Documentation. 
     
  2. Conditions of Use. The Subscription Services provided to Customer are non-exclusive, non-transferable (except as provided in Section 17.4), and are for Customer’s internal business use only. Customer’s right to use the Subscription Services is conditional upon the following. Customer may not:
    1. transfer to any other person any of its rights to use the Subscription Services;
    2. sell, rent or lease the Subscription Services;
    3. make the Subscription Services available to anyone who is not an “Authorized User”. An Authorized User is an employee of Customer, or of a person to whom Customer has outsourced services, who is authorized to access the Software in accordance with the appropriate Usage Metric and service description;
    4. create any derivative works based upon the Subscription Services. Software or eduZilla Documentation;
    5. copy any feature, design or graphic in, or reverse engineer the Software;
    6. access the Subscription Services in order to build a competitive solution or to assist someone else to build a competitive solution;
    7. use the Subscription Services in a way that violates any criminal or civil law;
    8. load test the Subscription Services in order to test scalability;
    9. disclose results of any benchmark tests of the Subscription Services, including the Software, without VZPL’ prior written consent; or,
    10. exceed the usage limits listed in the Pro-forma Invoice.
     
  3. Customer Data.
    1. Customer must provide all data for use in the Subscription Services, and VZPL is not obliged to modify or add to the Customer Data. Customer is solely responsible for the content and accuracy of the Customer Data.
    2. The Customer Data belongs to Customer, and VZPL makes no claim to any right of ownership in it.
    3. Customer must provide any notices and obtain any consent related to use of the Subscription Services and VZPL’ provision of such services, including those related to the collection, use, processing, transfer and disclosure of personal information, VZPL reserves the right to provide the Subscription Services from locations, and/or through use of subcontractors, worldwide.
    4. VZPL must keep the Customer Data confidential in accordance with Section 13 of this Agreement.
    5. VZPL must use the Customer Data strictly as necessary to carry out its obligations under this Agreement, and for no other purpose; and will comply with the VZPL Services Privacy Policy, which is available at http://eduzilla.in/legal/services-privacy-policy/ and incorporated herein by reference. However, VZPL:
      1. may observe and report back to Customer on Customer’s usage of the Subscription Services, and make recommendations for improved usage of the Subscription Services;
      2. may identify trends and publish reports on its findings provided the reports include data aggregated from more than one customer site and do not identify Customer; and,
      3. must ensure that the data center containing the Customer Data meets the following physical and electronic security requirements: (i) single point of entry; (ii) main access monitored with additional access for emergency purposes only; (iii) surveillance cameras in facility; (iv) access validation with identity check; (v) access only to persons on VZPL approved access list; (vi) log-in validation; (vii) creation of accounts only as verified by VZPL or sub-contracted hosting provider; (viii) access to servers via encrypted means; and, (ix) servers running behind firewall(s).
    6. VZPL must comply with the Information Technology Act 2000 and the Data Protection Directive by Telecom Regulatory Authority of India as amended (“the Directives”) and any successor legislation, in relation to any “personal data” received by or originating from Customer and Customer clients, to the extent that the Directives apply to “data processors”.
    7. VZPL must take the reasonable technical and organizational measures designed to keep Customer Data secure and to protect it against accidental loss or unlawful destruction, alteration, disclosure or access as described in Section 3.5.3 above; and, must deal with Customer’s personal information only in accordance with Customer’s written electronically sent instructions, provided they are reasonable and lawful.
    8. VZPL does not offer backup service though the data is stored on NAS a storage system which has integral failover system, but it does not act as an alternative to data backup. Customer must back up Own Data periodically at their discretion using the tools provided by VZPL as part of the Subscription Service.
    9. VZPL reserves the right to remove or disable access to any Customer Data that violate any criminal or civil law, including data that violate privacy rights or constitute an infringement of intellectual property or other proprietary rights. VZPL shall have no liability to Customer in the event that VZPL takes such action.
  4. Subscription Services Warranties. VZPL warrants that: (i) the Subscription Services will function substantially as described in the eduZilla Documentation; and (ii) VZPL owns or otherwise has the right to provide the Subscription Services to Customer under this Agreement. The remedies set out in this Section 4 are Customer’s exclusive remedies for breach of the above warranties.
    1. If the Subscription Services do not function substantially in accordance with the eduZilla Documentation, VZPL must, at its option, either (i) modify the Subscription Services to conform to the eduZilla Documentation; or (ii) provide a workaround correction to the Software consistent with the design and functionality of the Software as set forth in the eduZilla Documentation. If neither of these options is commercially feasible, either party may terminate the relevant Pro-forma Invoice under this Agreement, in which case VZPL shall refund to Customer all fees pre-paid to VZPL under the relevant Pro-forma Invoice for unused Subscription Services.
    2. If the normal operation, possession or use of the Subscription Services by Customer results in a Legal Action (defined below) or is otherwise found to infringe any third party intellectual property right or VZPL believes that this is likely, VZPL must, at its option, either (i) obtain a license from such third party for the benefit of Customer; (ii) modify the Subscription Services so that they no longer infringe; or (iii) if neither of these options is commercially feasible, terminate the relevant Pro-forma Invoice under this Agreement, in which case VZPL shall refund to Customer all fees pre-paid to VZPL under the relevant Pro-forma Invoice for unused Subscription Services.
    3. However, VZPL has no warranty obligations for:
      1. Software that has been modified by Customer or any third party, unless the modification has been approved in writing by VZPL;
      2. problems in the Subscription Services caused by any third party software or hardware, by accidental damage or by other matters beyond VZPL’s reasonable control. 
  5. Professional Services Warranties. VZPL warrants that (i) the Deliverables will substantially conform to the Statement of Work; and (ii) the Professional Services will be performed with reasonable skill, care and diligence consistent with industry standards. The remedies set out in this Section 5 are Customer’s exclusive remedies for breach of either warranty.
    1. If the Professional Services do not conform to the Statement of Work or are not performed with reasonable skill, care and diligence consistent with industry standards, VZPL shall re-perform the Professional Services to the extent necessary to correct the deficient services. If VZPL cannot substantially correct a breach in a commercially reasonable manner, Customer may end the relevant services and recover the fees Customer paid to VZPL for the deficient services.
  6. Customer’s Responsibilities. Customer must provide VZPL with all information, access, and full good faith cooperation reasonably necessary to enable VZPL to deliver the Professional Services, and must do anything that is identified in the Statement of Work as Customer’s responsibility. If Customer fails to do this, VZPL will be relieved of its obligations to the extent that the obligations are dependent upon Customer’s performance. 
  7. Intellectual Property Rights. VZPL solely owns the intellectual property in the Deliverables. Upon payment in full of any amounts due for Professional Services, Customer shall have a non-exclusive, non-transferable (except as provided in Section 17.4) right to use the Deliverables for Customer’s internal business purposes. This right shall continue for so long as, and be subject to the same terms and conditions as the right to use the Subscription Services.
    1. If the normal operation, possession or use of the Deliverables by Customer results in a Legal Claim or is otherwise found to infringe any third party intellectual property right or VZPL believes that this is likely, VZPL must, at its option, either (i) obtain a license from such third party for the benefit of Customer; (ii) modify the Deliverables so that they no longer infringe; or (iii) if neither of these options is commercially feasible, terminate the relevant Pro-forma Invoice under this Agreement, in which case VZPL shall refund to Customer all unused fees pre-paid to VZPL under the relevant Pro-forma Invoice for the infringing portion of the Deliverables.
    2. However, VZPL has no warranty obligations for:
      1. Deliverables that have been modified by Customer or any third party, unless the modification has been approved in writing by VZPL; or,
      2. Problems in the Deliverables caused by any third party software or hardware, by accidental damage or by other matters beyond VZPL’s reasonable control. 
  8. Term of Agreement. This Agreement starts on the date that Customer signs a Pro-forma Invoice subject to this Agreement and ends at the expiration of the Subscription Term of that Pro-forma Invoice or when VZPL no longer is obliged to provide Customer with Subscription Services or Professional Services under that Pro-forma Invoice.
  9. Payments. Customer must pay the fees listed in the relevant Pro-forma Invoice.
    1. The subscription fees do not include any taxes, and Customer shall pay any sales, use, value added or other taxes or import duties (other than corporate income taxes payable by VZPL) due as a result of any amounts paid to VZPL. Customer shall bear all of VZPL’ costs of collection of overdue fees, including reasonable attorneys’ fees.
    2. If during the Subscription Term Customer orders additional product/feature to be added to the initial or a subsequent purchase of Subscription Services, the purchase price for the additional product shall be pro-rated so that the added subscriptions terminate on the same day as the then current subscription at the end of the Subscription Term.
    3. All fees due under the Agreement are non-cancelable and the sums paid nonrefundable.
    4. You agree that you have not relied on the future availability of any Subscription Services, Software or updates in entering into the payment obligations in the Pro-forma Invoice; however, the preceding sentence does not relieve VZPL of its obligations to deliver Subscription Services that you have ordered per the terms of the Agreement.
  10. Termination and Suspension.
    1. Either party may terminate rights granted under a particular Pro-forma Invoice if the other breaches any material term of the Pro-forma Invoice (including a material term of this Agreement insofar as it applies to the Pro-forma Invoice) and the breach is not cured within 30 days of written notice. Customer’s breach of Section 2.9 of this Agreement shall be considered a material breach, if not cured within 30 days of VZPL’s notification of such excess usage (e.g. by payment of additional fees). 
    2. In the circumstance that Customer has breached a material term of the agreement, instead of terminating rights granted to a Customer under an Pro-forma Invoice pursuant to section 10.1 above, VZPL may suspend the provision of Subscription Services to Customer for a period of up to 45 days. At any time during that period, VZPL may terminate the rights granted to Customer.
    3. Sections 2.4, 2.5, 3.3, 7, 9, 11, 12, 13, 14, 15 and 17 continue after this Agreement ends.
    4. If VZPL terminates a Pro-forma Invoice under this Agreement because of non-payment by Customer, all unpaid fees for the remainder of the Subscription Term immediately fall due for payment.
    5. Upon termination of Subscription Services, VZPL must promptly and without unreasonable delay provide Customer with all Customer Data in comma separated value (CSV) format. The list of Customer Data is described in the eduZilla Documentation. However, VZPL may, but is not obligated to unless otherwise required by law, retain Customer Data in backup media for an additional period of up to 12 months.
  11. Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SUBSCRIPTION SERVICES (INCLUDING SOFTWARE AND eduZilla DOCUMENTATION) AND PROFESSIONAL SERVICES (INCLUDING DELIVERABLES) ARE PROVIDED WITH NO OTHER WARRANTIES OF ANY KIND, AND VZPL DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. VZPL DOES NOT WARRANT THAT THE USE OF THE SUBSCRIPTION SERVICES OR PROFESSIONAL SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
  12. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR CORRUPTED DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY, OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF THE OTHER PARTY HAS BEEN INFORMED OF THIS POSSIBILITY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR THE SELECTION OF THE SUBSCRIPTION SERVICES, SOFTWARE AND eduZilla DOCUMENTATION NECESSARY TO ACHIEVE CUSTOMER’S INTENDED RESULTS, AND FOR THE USE AND RESULTS OF THE SUBSCRIPTION SERVICES OR DELIVERABLES. NEITHER PARTY’S TOTAL LIABILITY FOR ANY DIRECT LOSS, COST, CLAIM OR DAMAGES OF ANY KIND RELATED TO THE RELEVANT PRO-FORMA INVOICE SHALL EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER TO VZPL UNDER SUCH RELEVANT PRO-FORMA INVOICE DURING THE 12 MONTHS BEFORE THE EVENT GIVING RISE TO SUCH LOSS, COST, CLAIM OR DAMAGES. THIS LIMITATION ON LIABILITY WAS AND IS AN EXPRESS PART OF THE BARGAIN BETWEEN VZPL AND CUSTOMER AND WAS A CONTROLLING FACTOR IN THE SETTING OF THE FEES PAYABLE TO VZPL. HOWEVER, THERE IS NO LIMITATION ON DIRECT LOSS, CLAIM OR DAMAGES ARISING AS A RESULT OF CUSTOMER’S INFRINGEMENT OF VZPL’ INTELLECTUAL PROPERTY RIGHTS, IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS FOR THIRD PARTY CLAIMS, OR IN CONNECTION WITH CUSTOMER’S BREACH OF ANY PAYMENT OBLIGATION UNDER THIS AGREEMENT.
  13. Confidentiality.
    1. The Subscription Services (including the Software and eduZilla Documentation) and Professional Services (including Deliverables) contain valuable trade secrets and other proprietary or protected information that are the sole property of VZPL (“VZPL Confidential Information”), and Customer agrees to use reasonable care to prevent other parties from learning of VZPL Confidential Information. Customer must take reasonable care to prevent unauthorized access to or duplication of the Subscription Services, Software, eduZilla Documentation, Professional Services and Deliverables. 
    2. The Customer Data may include valuable trade secrets or other proprietary or protected information that are the sole property of Customer (“Customer Confidential Information”). VZPL must take reasonable care to prevent other parties from learning of Customer Confidential Information.
    3. Sections 13.1 and 13.2 do not apply to any information that (i) is now, or subsequently becomes, through no act or failure to act on the part of receiving party (the “Receiver”), generally known or available to the public; (ii) is known by the Receiver at the time of receiving such information, as evidenced by the Receiver’s records; (iii) is subsequently provided to the Receiver by a third party, as a matter of right and without restriction on disclosure; (iv) independently developed by the Receiver; or (iv) is required to be disclosed by law, provided that the party to whom the information belongs is given prior written notice of any such proposed disclosure.
  14. Indemnification by VZPL. VZPL must indemnify Customer, its affiliates, directors and employees from any damages finally awarded or agreed to in settlement against Customer (including, without limitation, reasonable costs and legal fees incurred by Customer) arising out of any third party suit, claim or other legal action alleging that the use of the Subscription Services, eduZilla Documentation or Deliverables by Customer infringes any copyright, trade secret or United States patent, (“Legal Action”). VZPL must also assume the defense of the Legal Action.
    1. However, VZPL shall have no indemnification obligations for any Legal Action arising out of: (i) a combination of the Subscription Services, Software or Deliverable with software or products not supplied, or approved in writing by VZPL; (ii) any repair, adjustment, modification or alteration to the Subscription Services by Customer or any third party, unless approved in writing by VZPL; or (iii) any refusal by Customer to use the Subscription Services against the process mentioned in eduZilla Documentation, or Deliverable offered by VZPL under Section 4.2(ii). Section 4.2(ii) and this Section 14 state the entire liability of VZPL with respect to any intellectual property infringement by the Subscription Services, Software or Deliverable. 
    2. Customer must give written notice to VZPL of any Legal Action no later than 30 days after first receiving notice of a Legal Action, and must give copies to VZPL of all communications, notices and/or other actions relating to the Legal Action. Customer must give VZPL the sole control of the defense of any Legal Action, must act in accordance with the reasonable instructions of VZPL and must give VZPL such assistance as VZPL reasonably requests to defend or settle such claim. Customer may employ its own counsel to assist it with respect to any such claim. Customer must bear all costs of engaging its own counsel, unless engagement of counsel is necessary because of a conflict of interest with VZPL or its counsel. VZPL shall be relieved of its indemnification obligation under Section 14 if Customer materially fails to comply with Section 14.2.
  15. Indemnification by Customer. Customer must indemnify VZPL, its affiliates, directors, and employees from any damages finally awarded against VZPL (including, without limitation, reasonable costs and legal fees incurred by VZPL) arising out of any third party suit, claim or other legal action (including but not limited to any governmental investigations, complaints and actions) in connection with the Customer Data, including, without limitation, any action for infringement of any trademark, copyright, trade secret, right of publicity or privacy (including defamation), patent or other proprietary right with respect to the Customer Data (“Legal Claim”).
    1. VZPL must give written notice to Customer of any Legal Claim no later than 30 days after first receiving notice of a Legal Claim, and must give copies to Customer of all communications, notices and/or other actions relating to the Legal Claim. VZPL must give Customer the sole control of the defense of any Legal Claim, must act in accordance with the reasonable instructions of Customer and must give Customer such assistance as Customer reasonably requests to defend or settle such claim. Customer must conduct its defense at all times in a manner which is not adverse to VZPL’ interests. VZPL may employ its own counsel to assist it with respect to any such claim. VZPL must bear all costs of engaging its own counsel, unless engagement of counsel is necessary because of a conflict of interest with Customer or its counsel. Customer shall be relieved of its indemnification obligation under Section 15 if VZPL materially fails to comply with Section 15.1. 
  16. Publicity.
    1. VZPL may list Customer as a customer and use Customer’s logo on VZPL website, on publicly available customer lists, and in media releases. 
  17. Miscellaneous.
    1. This Agreement together with any Pro-forma Invoice or Statement of Work hereunder, represent the entire agreement of the parties, and supersede any prior or current understandings, whether written or oral. If there is a conflict between the Agreement and an Pro-forma Invoice, the Pro-forma Invoice will prevail. If there is a conflict between the Agreement and a Statement of Work, the Agreement will prevail. 
    2. This Agreement may not be changed or any part waived except in writing by the parties.
    3. This Agreement will be governed by the substantive and procedural laws of Republic of India and Customer and VZPL agree to submit to the exclusive jurisdiction of, and venue in, the courts in Thane City in Maharashtra State of India in any dispute arising out of or relating to the Agreement.
    4. Customer must not assign or otherwise transfer any of its rights or obligations under this Agreement or any Pro-forma Invoice or Statement of Work hereunder without the prior written consent of VZPL. VZPL may not withhold such consent in the case of an assignment by Customer of its rights and obligations to an entity that has acquired all, or substantially all of Customer’s assets, or to an assignment that is part of a genuine corporate restructure. Any assignment in breach of this Section is void.
    5. Customer must not export or re-export, directly or indirectly, any Subscription Services, eduZilla Documentation or VZPL Confidential Information to any countries outside India except as permitted under the Indian Commerce Department’s Export Administration Regulations.
    6. VZPL is an independent contractor and both VZPL and Customer agree that no partnership, joint venture, or agency relationship exists between us. Each party will be responsible for paying our own employees, including employment related taxes and insurance.
    7. VZPL may audit Customer’s use of the Subscription Services. Customer agrees to cooperate with VZPL’ audit and provide reasonable assistance and access to information. Any such audit will not unreasonably interfere with Customer’s normal business operations. Customer agrees to pay within 30 days of written notification any fees applicable to Customer’s use of the Subscription Services in excess of its rights. If Customer does not pay, VZPL can end Customer’s Subscription Services and the Agreement. Customer agrees that VZPL will not be responsible for any of its costs incurred in cooperating with the audit.
    8. Customer understands that VZPL’ business partners, including any third party firms retained by you to provide computer consulting services, are independent of VZPL and are not VZPL’ agents. VZPL is not liable for nor bound by any acts of such business partner, unless the business partner is providing services as an VZPL subcontractor on an engagement ordered under this Agreement.
    9. If Customer has a dispute with VZPL or if Customer wishes to provide a notice under the Indemnification by VZPL, Subscription Services Warranties and/or Professional Services Warranties sections of this agreement, or if Customer becomes subject to insolvency or other similar legal proceedings, Customer will promptly send written notice to: Attention Legal Associate, Legal Department, G4, Lake City Towers, Teen Hath Naka, Thane, Maharashtra, India - 400604.
  18. Force Majeure. Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of us may cancel unperformed services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the services. 
  19. Glossary.
    1. “Customer Data” means any electronic information stored in the Software database.
    2. “Deliverables” means object code, source code, flow charts, documentation, information, reports, test results, findings, and any works and other materials developed by VZPL for Customer as identified “deliverables” under the scope of Professional Services defined in a Statement of Work.
    3. “eduZilla Documentation” means user documentation provided electronically by VZPL for use with the Subscription Services, as periodically updated.
    4. “Pro-forma Invoice” means a document provided by VZPL and signed by Customer that describes VZPL’s service offering being ordered by Customer.
    5. “Professional Services” means the consulting, development and other professional services identified on an Statement of Work, but does not include the Subscription Services.
    6. “Statement of Work” means a document provided by VZPL and signed by Customer that describes the Professional Services to be provided by VZPL to Customer.
    7. “Software” means the software to which VZPL permits access to authorized users as part of the Subscription Services. The functionality of the Software is described in the eduZilla Documentation provided by VZPL as part of the Subscription Services under an Pro-forma Invoice..
    8. “Subscription Services” means VZPL’ remote hosted services identified in an Pro-forma Invoice, including access to related Software and eduZilla Documentation, and any modifications periodically made by VZPL, but does not include the Professional Services.
    9. “Subscription Term” means the period identified in the Pro-forma Invoice during which VZPL is required to provide Customer with the Subscription Services.
    10. “Usage metric” means the service metric definitions and rules defined in the Pro-forma Invoice
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