End User License Agreement for
Acceptance of these Terms:
Customer will not use the Services if it does not accept these Terms or are unable to be bound by these Terms. As a condition of the Customer using the Services, it is deemed that the Customer is agreeable to these Terms.
1. DEFINITIONS AND INTERPRETATIONS
“Business Day” shall mean a day from Monday to Friday (both days inclusive) which is not a public holiday in India.
“Customer” shall mean the entity or person procuring the Services through the Marketplace and the Subscription thereunder.
“Confidential Information” means non-public information provided by the Disclosing Party, in any form or media, that may/may not be marked or designated by the Disclosing Party as being proprietary or confidential and may include, without limitation, information (including information transmitted in written, electronic, magnetic or other form and also information transmitted orally or visually), regarding the Disclosing Party’s financial statements, agreements, documents, products, software’s, sources codes, customers/investors, employees, policies and practices, marketing plans, financial status and tangible expressions and reproductions thereof.
“Disclosing Party” means the Party, which discloses confidential information under the Subscription and these Terms.
“Effective Date” means the start date of the Services as stated in the Subscription.
“End User” shall mean such person or entity to whom the SMSes will be sent by the Customer while using the Services.
“Intellectual Property Rights” shall mean to include patents, trademarks, trade names, design rights, copyright (including rights in computer software, source code, and moral rights), database rights, rights in know-how and other intellectual property rights, in each case whether registered or unregistered and including applications for the grant of any of the foregoing and all rights or forms of protection having equivalent or similar effect to any of the foregoing which may subsist anywhere in the world.
“Parties” shall mean the Customer and Netcore (as the license holder), and individually as “Party” where the context so requires.
“Recipient” means the Party, which receives confidential information from the Disclosing Party.
“Services” shall mean the SMS services to be provided more particularly detailed in the Subscription.
“SMS” shall mean short message service;
“Terms” shall mean the terms and conditions set out herein;
“Tenure” shall have the meaning ascribed to it under Clause 9 of these Terms;
“TRAI” shall mean the Telecom Regulatory Authority of India.
1.2 The clause headings under these in these Terms are for convenience only and shall not affect its interpretation or construction.
1.3 Under these Terms, the words ‘include’, ‘includes’, ‘including’ and ‘such as’ are to be construed as if they were immediately followed by the words ‘without limitation’.
1.4 As per these Terms, unless the context clearly indicates another intention:
(a) reference to one gender includes a reference to the other gender,
(b) reference to the singular includes the plural and vice versa,
(c ) reference to a clause is a reference to a, clause of these Terms and shall form an integral part of these Terms,
(d) reference to a statutory provision shall be construed as meaning and including a reference to that provision as amended or re-enacted or both from time to time and to any subordinate legislation made under the statutory provision,
(e) reference to a document is a reference to that document as from time to time supplemented or varied,
(f) unless otherwise specified, time periods within or following which any payment is to be made or act is to be done shall be calculated by excluding the day on which the period commences and including the day on which the period ends and by extending the period to the following Business Day if the last day of such period is not a Business Day;
(g) any reference to a “person” includes any natural person, partnership, firm, company, governmental authority, joint venture, association or other entity (whether or not having separate legal personality); and
(h) the terms “herein”, “hereof”, “hereunder” and words of similar purport refer to these Terms as a whole.
2. COVENANTS OF THE CUSTOMER
2.1 Customer availing the Service in India will comply with the TRAI Telecom Commercial Communications Customer Preference Regulations 2018 (“TCCCP Regulations”) and the registration requirements therein. Failing to conform to the TCCCP Regulations and the requirements therein, no SMS will be sent and Netcore or the Marketplace will not be held responsible for the same. Customer will be liable to pay all penalties that may be imposed by TRAI or the telecom operators, due to any act of the Customer which is in contravention of the TCCCP Regulations and the registration submissions.
2.2 The SMS Services hereunder is for bulk SMS service within India and if the Customer uses any IP for the SMS Services, which is outside of India, such will be considered as an International SMS and the Customer shall place a request with the Marketplace to contract separately with Netcore for the usage of the international SMS’s and SMSs already sent from such IP will be charged as an international SMS as per operator rules.
2.3 Customer agrees that the use of the Services pertaining to the SMSes shall be subject to the applicable TRAI directions, rules and TCCCP Regulations (“TRAI laws”) and will at all times comply with the applicable TRAI laws.
2.4 Customer shall at all times be responsible for creation of the content and creatives of the SMSs it proposes to send as part of the Services (“Content”). Customer will at all times be liable for the consequences arising from the Content.
2.5 Customer shall ensure that the Content is not infringing, libellous, defamatory, obscene, pornographic, abusive, harmful, threatening, harassing, stalking, embarrassing tortuous, offensive, hateful, or racially, ethnically or otherwise objectionable, misleading or violating any law or rules laid down by statute or any right of any individual or third party.
2.6 Customer will, no later than 24 hours upon being notified by Netcore or the Marketplace, of any TRAI or telecom operator complaint, provide such evidence, including opt-in proof of the End User, as the case may be, to close any complaint in favour of Netcore or the Marketplace as the case may be.
2.7 The Customer shall make timely payments for the Services to the Marketplace as per the Subscription, failing which, Netcore reserves the right to suspend the license towards the Services.
2.8 Customer shall be liable to pay such taxes to the Marketplace as is applicable for availing the Services under the Subscription and the liability for collection and discharge of the applicable tax liabilities rest with the Marketplace and Netcore shall not be held liable for any issues / liability towards the same, including, eligibility of input credit to the Customer. If any liability arises on Netcore under this clause, the Customer shall indemnify Netcore for the same.
3. COVENANTS OF NETCORE
3.1 Netcore shall from time-to-time upgrade, modify, alter or perform maintenance services on its licensed products at its sole discretion.
3.2 If due to the regulation of traffic of SMSs or for any other reason whatsoever, the Services are affected, then the Customer shall be notified of the same within 72 hours.
3.3 Upon receipt of notification from Customer of any communication problems faced by the Customer as a result of the application, Netcore shall remedy the same as per its service levels.
3.4 Netcore shall be responsible for the license and communication gateway pertaining to the Services and shall bear their operating costs.
3.5 Netcore will permanently purge all Customer data (including any Content or personal data), transaction data and reports every 3 months, post which the same will not be available in Netcore’s records.
4.1 The Parties will maintain utmost confidentiality regarding the contents of the Subscription and these Terms and none of the Parties will make any announcement to the public or to any third party regarding the arrangements contemplated by the Subscription and these Terms without the consent of the other in writing which shall not be unreasonably withheld.
4.2 The Parties acknowledge that it or its employees may be exposed to or acquire information which is proprietary to or confidential to the other Party or its Customers or to third parties to whom the Party owes a duty of confidentiality. The Recipient agrees to hold such information in strict confidence and not to copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give or disclose such information to third parties or to use such information for any purposes whatsoever other than the provision of Services as contemplated by the Subscription and these Terms and to advise each of its employees who may be exposed to such proprietary and confidential information of their obligations to keep such information confidential.
4.3 The Recipient shall not be liable for the disclosure or use of Confidential Information if the same is:
a. In or enters the public domain, other than by breach of the Subscription and these Terms; or
b. Known to the Recipient on a non-confidential basis prior to disclosure pursuant to the Subscription and these Terms; or
c. Is or has been lawfully disclosed to the Recipient by a third party without any obligation of confidentiality; or
d. Is required to be disclosed by law or order of a court of competent jurisdiction or otherwise pursuant to a legal proceeding or action or regulatory authority, provided that any such disclosure is limited to the extent required by applicable law, or order, subpoena, regulatory requirement, or litigation disclosure, and the Recipient shall, to the extent possible under the circumstances, furnish prompt written notice of such required disclosure and reasonably cooperate with the Disclosing Party, at the expense of the Disclosing Party, in any effort made by the Disclosing Party to seek a protective order or other appropriate protection of its confidential information.
4.4 Personal Data: Each Party will comply with applicable data protection laws when holding, storing, processing or sharing personal data for the purposes of the Subscription, or otherwise.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 Each Party acknowledges that any Intellectual Property Rights used or adopted by a Party in the conduct of its business is the sole property of the respective owners.
5.2 The Intellectual Property Rights of a Party used under these Terms shall solely be for the purpose of the Services only and is not a license given to the other Party.
5.3 Any use of a Party’s Intellectual Property Rights shall cease immediately upon termination or expiration of the Subscription.
6.1 Each Party (“Indemnifying Party”) shall indemnify and hold harmless the other Party, its affiliates, and respective directors, officers, employees, agents, and representatives (“Indemnified Party”) from and against any and all costs, losses, claims, damages and liabilities, including reasonable attorneys’ fees, incurred by the Indemnified Party, arising out of the fraud, gross negligence, or wilful misconduct of, or breach of its obligations and representations and warranties under the Subscription and these Terms; or breach of third party intellectual property rights by the Indemnifying Party, its affiliates, or any of their respective directors, officers, employees, agents, or representatives.
6.2 The indemnities under this Clause are in addition to and without prejudice to the indemnities given elsewhere in these Terms and all the indemnities provided herein shall survive the expiration and / or termination of the Subscription.
7. LIMITATION TO LIABILITIES
7.1 Netcore and the Marketplace cannot guarantee that the Services will never be faulty but will use their reasonable commercial efforts to correct reported faults for which it is responsible as per its service levels.
7.2 Except as expressly stated under the Subscription and these Terms, all representations and warranties, as to latency (pertaining to nature of SMS) and throughput (pertaining to volumes of SMS being sent beyond permissible limits) are hereby excluded to the fullest extent permitted by law, save in the case of fraud.
7.3 The Customer acknowledges that the Services are provided on an “as is” basis. Netcore is not responsible in any way for any mobile telecommunications systems or networks, which it does not operate, such as the networks of the telecom operators and internet providers (“External Service Providers”). Accordingly, Netcore or the Marketplace is not liable for the acts or omissions of the External Service Providers, including, without limitation, faults in or failures of the External Service Provider’s apparatus, IT infrastructure, or network, nor in general for any other technical reason attributable to their faulty communication systems.
7.4 Without prejudice to any other provisions of the Subscription and these Terms, neither Party shall be liable to the other Party for any indirect, consequential loss or damage or loss of profit, business, revenue, goodwill or anticipated savings arising under the Subscription and these Terms.
7.5 The Marketplace and Netcore shall not be held in breach of the Subscription and these Terms if a SMS is not sent due to (a) incorrect Content provided by the Customer; (b) the End User’s handset is switched off, (c ) the SMS inbox is full, (d) mobile number provided is incorrect, (e) the handset of the End User is out of coverage area to receive the SMS, or (f) mobile number has been deactivated; or (g) the End User has opted out of receiving SMS.
7.6 Netcore’s total liability to the Customer or any Party under the Subscription, shall not exceed one month’s fees paid or payable by the Customer to the Marketplace for the Subscription.
8.REPRESENTATIONS OF THE PARTIES
8.1 The Parties hereby represent and warrant to each other that; (i) they have all requisite power and authority, and does not require the consent of any third party to enter into the Subscription and these Terms and grant the rights provided herein; (iii) the execution, delivery, and performance of the Subscription and these Terms does not and will not conflict with, breach, violate or cause a default under any agreement, contract or instrument to which they are a party to, or any judgment, arbitration award, order or decree to which they may be subject to; and (iv) the purpose for which the Services are being used or the obligations to perform the Services shall not infringe upon or violate the personal, civil or property rights, or the rights of privacy of, or constitute a libel, slander or unfair competition against or violate or infringe upon any common law right, copyright, trademark, trade name or patent or any other right of any person or entity.
8.2 The SMS services provided are contingent upon the facilities and business rules of the telecom operators and TRAI. In the event of any change in the terms and conditions or business rules of any of the operators or TRAI that impacts the ability to provide the Services herein covered under the Subscription, Netcore shall or through the Marketplace, notify the Customer of such change in the terms and conditions and such revised terms will apply to the Customer forthwith. Continuance of the usage of the SMS Services by the Customer shall deem to mean acceptance by the Customer of the revised rules and terms. If the Customer fails to comply with the revised rules, Netcore and/or the Marketplace reserves the right to terminate the services forthwith, without liability and any damages or penalty arsing on Netcore due to non-compliance by the Customer, will be made good by the Customer.
9.1 The Services will be provided for such tenure as detailed in the Subscription. Upon expiry of the Tenure, all Services will be discontinued and the license to the Services shall cease to operate. The Customer may renew the Services and the corresponding license, by re-subscribing to them on the Marketplace and making payments towards the same.
10.1 Either Party may terminate the Subscription, if the other Party is in breach of its obligations or representations and warranties, or the terms of the Subscription and these Terms, which is not curable, and where such breach can be cured, has not been cured within fifteen (15) Business Days of written notice specifying such breach.
10.2 Netcore reserves the right to terminate the license to the Services, where the Customer fails to make timely payment for the Services on the Marketplace.
10.3 Either Party shall have the right to forthwith terminate the Subscription under certain circumstances, and shall include:
a) any acts or omissions on the part of the other Party, which shall adversely impact the quality of Services, intellectual property rights and Confidential Information of the non-defaulting Party.
b) any acts or omissions on the part of the defaulting Party, which are unethical, fraudulent, unlawful and/ or corrupt.
c) if a petition for insolvency is filed against the other Party and such petition is not dismissed within ninety (90) Business Days after filing and/or if any Party makes an arrangement for the benefit of its creditors or, if the court receiver is appointed as receiver of all/any of any Party’s properties.
10.4 Upon expiry or termination of the Subscription for any reason:
i. All Services and the license to the same will be discontinued.
ii. All outstanding fees and charges shall become payable by the Customer within 15 (fifteen) Business Days from the expiry or termination date and payable to the Marketplace.
10.5 It is clarified that where the Subscription expires or is terminated in full, these Terms also terminate alongside, except for the terms which survive as per clause 12.8.
11. FORCE MAJEURE
11.1 If the whole or any part of the performance by either party, of its obligations under the Subscription and these Terms is prevented, hindered, delayed or otherwise made impracticable by reason of any event, beyond the reasonable control of the parties including but not limited to strikes, labour disputes, floods, fire, earthquakes, pandemics, epidemics, accidents, riots, explosions, wars, terrorism, hostilities, political unrest, orders and/ or restrictions imposed by Government and/ or courts and/ or any other public authority such that it is impossible to perform the obligations under the Subscription and these Terms, prolonged failure of energy, software glitches, viruses, hacking, major breakdown and/or destruction of servers, breakdown of hardware and software system, breakdown of communication facilities, breakdown of web host, breakdown of internet service provider or any other cause or circumstances beyond the control of the Parties hereto which prevents timely fulfilment of obligation of any Party hereunder (“Event of Force Majeure”), whose performance is thus prevented, hindered or delayed shall be excused from such performance during the continuance of such Event of Force Majeure. On the happening of such Event of Force Majeure, the parties shall immediately consult each other in order to find an equitable solution and shall use all reasonable effort to minimize the consequences of Event of Force Majeure.
11.2 In the event the Parties are unable to find an equitable alternate solution to continue the Services under the Subscription, or if Netcore cannot provide the licence or Marketplace cannot make available the Services, or the Customer is unable to avail the Services made available, due to the Event of Force Majeure, for a period of 60 days, then the Parties can mutually agree to terminate the Subscription and the Services therein.
11.3 Where the Parties continue to engage in business during an Event of Force Majeure, then the Customer shall continue to be bound by its payment terms under the Subscription and use of the Services as per these Terms.
12. GENERAL PROVISIONS
12.1 Suspension of service: Netcore may suspend the license to the Services for the following:
(a) Suspension for non-payment of Subscription fees to the Marketplace; or
(b) Netcore has been advised or instructed to comply with an order, directive or request of a governmental or other relevant state authority or the telecom operators;
(c ) One or more of the telecom operators upon which the provision of Netcore Services hereunder is dependent, suspends its provision of those services to Netcore.
Netcore shall notify the Client of any suspension of the Services affected under this Agreement, providing the Client with details of the nature and cause of such suspension.
Netcore shall reinstate the suspended Services as soon as the cause for such suspension has been remedied.
12.2 Change in SMS pricing: SMS pricing is subject to revision as a consequence of changes in TRAI / Government regulations, including interconnect charges. Netcore will notify Customer in writing and will send intimation via the Marketplace prior to taking effect of such change.
12.3 Compliance with Law: Each Party shall at all times comply with all applicable laws, governing them and those that may be applicable to them under the Subscription and these Terms, including but not limited to data protection laws.
12.4 Anti-corruption and bribery: Each Party agrees that they are and they will continue to comply with all applicable anti-corruption and bribery laws, as may become applicable from time-to-time post commencement of this Subscription and these Terms (“Anti-corruption Laws”) and ensure that its employees, officer, directors and affiliates also conform to the same. Neither Party will do any act in contravention of the Anti-corruption Laws which would in any manner be detrimental to the interest of the other Party under the Subscription and these Terms. In the event of any breach by a Party of any Anti-corruption Laws, the other Party shall have the right to immediately terminate the Subscription, without notice and take such action as is available under law.
12.5 Amendment: Netcore reserves the right, to change, modify, add or remove portions of these Terms at any time. Such changes shall be posted on the link https://netcorecloud.com/gcp-marketplace-eula-sms-service-terms-policies/ .Customer is responsible for regularly reviewing the Terms, including amendments thereto as may be posted and shall deem to have accepted the amended Terms by continuing to use the Services.
12.6 Relationship: The Parties acknowledge that they are independent contractors and are not entitled to and shall not, without the approval of the other Party, incur any liability on behalf of the other Party or in any way pledge the credit of the other Party, or enter into or accept any contract binding upon the other Party. Nothing in the Subscription and these Terms shall constitute a partnership, or joint venture, or employer-employee relationship, or principal-agent relationship between the Parties.
The Parties agree at all times to uphold the good name and reputation of the other Party and not to do or permit or attempt to do any act or thing likely to cause any damage to or bring discredit upon the other Party.
12.7 Assignment: Customer will not assign or transfer any of their rights or interest or benefits under the Subscription and these Terms to any third party, without the prior written consent of Netcore.
12.8 Governing Law and Jurisdiction: The validity, construction and enforceability of these Terms shall be governed in all respects by the laws of India. The Parties hereto agree that in respect of any dispute arising upon, over or in respect of any of these Terms, the courts in Mumbai shall have exclusive jurisdiction.
12.9 Survival: Clause 2.1-if applicable (to the extent of any penalty imposed by TRAI or the operator, post expiry or termination of the Subscription, for any default or breach by the Customer of its TRAI obligations prior to the cessation of the Subscription ), Clause 4 (Confidentiality- 1 year), Clause 5 (Intellectual Property Rights), Clause 6 (Indemnification- 3 years), Clause 7 (Limitation to Liabilities) Clause 8 (Representations of the Parties), Clause 10.5 (post termination obligations), Clause 12 (General Provisions) shall survive the Tenure and termination or expiration of the Subscription.
12.10 Severability: If any provision of the Subscription or these Terms shall become invalid or unenforceable to any extent, the remainder of the terms and the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each provision of the Subscription and these Terms shall be valid and enforceable to the fullest extent permitted by law. Any invalid or unenforceable provision shall be replaced with a provision, which is valid and enforceable and most nearly reflects the original intent of the unenforceable provision.
12.11 Notices: All notices or other communications under or in connection with the Subscription and these Terms shall be given via email. Any such notice or other communication will be deemed to be effective when sent by email, a day after the sending of such an email.
If email to Netcore: at [email protected]
If email to Customer: at the email id shared at the time of Subscription, and if no email shared, then written notice to the communication address shared during the Subscription. In case of written communication to the address of the Customer, effective the date of dispatch of the notice.
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