Terms of Use of Netcore Services provided to the customer

The Terms of Use (“Terms”) set out herein shall apply to the services (“Services”) being procured by the Customer under an order form/ purchase order (“Order Form”) executed between the Customer and Netcore. It is understood that Netcore is authorised to provide the Services. It is further understood that for RCS services, if being procured, Netcore is authorised by Google, under a partner agreement to provide the RCS services. It is further understood that the Customer has subscribed to the Services, the pricing, payment terms and duration of such service subscription as detailed in the Order Form (“Subscription”). If there is any inconsistency between these Terms and the Order Form, as to the provisioning of the Services, these Terms shall prevail.

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

1.1 Definitions

“Business Day” shall mean a day from Monday to Friday (both days inclusive) which is not a public holiday in the Country where Netcore the contracting party conducts and operates its business from and as detailed in the Order Form.

“Customer” shall mean the entity or person procuring the Services under an Order Form 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 Order Form.

“End User” shall mean such person or entity to whom the Emails, SMS, RCS, web and app messages 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, and individually as “Party” where the context so requires.

“RCS” means Rich Communication Messaging Services provided by Google.

“Recipient” means the Party, which receives confidential information from the Disclosing Party.

“SMS” shall mean short message service;

“Software Solution” shall mean a cloud-based solution, an access of which is given to the Customer through a software panel, to enable it for a cross channel communication systems and the other service features;

“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:

i. reference to one gender includes a reference to the other gender,

ii. reference to the singular includes the plural and vice versa,

iii.reference to a clause is a reference to a, clause of these Terms and shall form an integral part of these Terms,

iv. 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,

v. reference to a document is a reference to that document as from time to time supplemented or varied,

vi. 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;

vii. 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

viii. the terms “herein”, “hereof”, “hereunder” and words of similar purport refer to these Terms as a whole.
 
2. COVENANTS OF THE CUSTOMER

2.1 For India SMS Services:

a) Customer availing the SMS 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 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.

b) 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 Netcore 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.

c) 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.

d) Customer agrees upon availing A2P SMS service, authorizes Netcore to route the services through either PSTN or IP Networks basis feasibility for ensuring smooth and efficient delivery of SMS.

e) Customer will, no later than 24 hours upon being notified by Netcore, 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 as the case may be.

f) Customer will maintain valid opt-in proof/ consent from the End Users, prior to sending any SMSs through the Subscription provided under the Order Form and record such consents as per the TRAI laws.
 
2.2 For International SMS Services:

a) Customer availing the international SMS Service from 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 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.

b) The SMS Services hereunder is provided by obtaining from integrators who have tie ups with international telecom operators. International operators offer their services country specific operators specific pricing and revisions to such pricing are affected with immediate effect upon notification from time to time by international telecom operators. Netcore will revise such pricing changes to the Customer with 7 (seven) days prior written notice/intimation via email communication.

c) If International service is availed by customer, it will be enabled for all country destinations across the globe and any trigger from the client, client system is construed as initiated by the client and consented for availing such service and grants right to Netcore to bill the client at existing country, operator specific price offering.
 
2.3 For RCS services:

a) The RCS contents may include but is not be limited to text messages, messages on WAP sites websites, RSS feeds, texts, metadata, images, photos, videos, audios, and audio-visuals.

b) Customer will ensure that it does not use the RCS services
(a) to send unsolicited communications; and/or
(b) send such RCS content where the End User might think the sender is actually not the Customer.

c) Customer will, no later than 2 (two) days upon being notified by Netcore of any complaint, provide such evidence, including opt-in proof of the End User, as the case may be, to close any complaint in Netcore’s favour. The Customer shall be liable for all penalties that may be imposed, arising from the RCS content shared by the Customer or sharing of RCS content without receipt of opt-in consent.

2.4 The Customer shall not:

a) license, sub-license, rent, loan, sell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Software Solution, platform (where applicable) or the Services, except as necessary to give effect to the Order Form and these Terms.

b) remove or modify any trademarks, trade names, service marks, service names, logos or brands, or copyright or other proprietary notices on the platform or the Software Solution, or add any other markings or notices to the platform or Software Solution.

c) attempt to gain unauthorized access to any of Netcore’s data centres, systems or networks.

d) interfere with or disrupt the integrity or performance of the Services or any third-party technology contained therein
 
2.5 Customer shall at all times be responsible for creation of the content and creatives of the Email, SMS, RCS, web and app messages it proposes to send as part of the Services (“Content”). Customer will at all times be liable for the consequences arising from the Content.

2.6 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.

2.7 Customer shall: (a) notify Netcore immediately of any unauthorized use of any password or user id or any other known or suspected breach of security of the software panel provided under these Terms, and (b) report to Netcore immediately and use reasonable efforts to stop any unauthorized use of the Services that is known or suspected by Customer or its authorised users.

2.8 Customer shall ensure that its collection, access, use and disclosure of End-User information complies with the applicable law(s). Customer shall at all times perform its obligations in accordance with applicable laws and not cause Netcore to be in material violation of any applicable laws including but not limited to data protection laws, while providing its Services to the Customer.

2.9 The Client represents that it has obtained consent of the intended recipients to send then RCS messages.

2.10 The Customer shall obtain and maintain any required consents necessary to permit the processing of data by Netcore under these Terms.

2.11 The Customer shall take all reasonable measures to avoid any unauthorized or fraudulent use of the Services and will ensure that all its users adhere to the terms of this Agreement

2.12 Customer shall be liable to pay such taxes as is applicable for availing the Services under the Subscription.
Customer shall be liable to pay such taxes as is applicable for availing the Services under the Subscription.
 
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 Emails, SMSs or RCS messages for any 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. CONFIDENTIALITY

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.

5.4 If the Customer uses any third- party technology along with the Software Solution provided by Netcore, then Netcore will not be responsible for the integration of such third-party technology and neither will it be responsible for the performance of such third-party technology. It is abundantly clarified that if the Services are interrupted or becomes faulty due to the third-party technology, Netcore will not be held responsible for the same. Customer will be held responsible for any security breach to Netcore’s software solution, due to any third-party technology that the Customer may integrate.

5.5 The Software Solution along with its variations, modifications, customizations (including their inherent intellectual property rights) provided to the Customer for the purpose of providing the Services will at all times be the property of Netcore, and the Customer is not entitled to at any time to claim ownership of the same. Further, the Software Solution provided is only for the purpose of the Services to be provided and is a limited, non-exclusive, non-transferable, royalty free, license given to the Customer for utilising the features of the Services, the use of which shall immediately cease upon expiry or termination of these Terms.

5.6 The Customer will not in any manner try and make any alterations and changes to the Software Solution or introduce any virus, malware, trojan horse, etc.

5.7 The Customer hereby consents that, upon signing the sales order form/agreement for availing Netcore services, Netcore may use the Customer’s logos and brand name to publish WIN PR on its website and marketing tools and platforms, such as LinkedIn account, etc., as Netcore’s customer, for marketing and PR exercise. Additionally, Netcore and the Customer agree to jointly work in creating and publishing success stories, case-studies, interviews, testimonials, reviews, referrals which Netcore after obtaining mutual consent for such publication for its PR.

 
6. INDEMNITY

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 indemnification right shall be subject the Indemnifying Party being notified promptly of any indemnification eventuality, no later than 15 (fifteen) days from the date from when indemnification liability arose and such notification has been received by the Indemnifying Party (“Indemnification Notice”). The Indemnification Notice shall lay out the details of the claim and the eventualities leading to the claim, and the basis for deriving at the quantum of indemnification, along with supporting documents. The Indemnifying Party shall have the right to assume any defence of such indemnification claim. Any indemnification pay-out shall be subject to clause 7 of these Terms.

6.3 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 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 Email, SMS or RCS messages) and throughput (pertaining to volumes of SMS, Email, and RCS messages 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.

7.4 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, Customer’s internet providers, and/or messaging application partners, providing the RCS platform, or the Customers internal IT systems and processes (“External Service Providers”). Accordingly, Netcore 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.

7.5 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.

7.6 Netcore shall not be held in breach of the Subscription and these Terms if a Email, SMS, RCS, web or app message  is not sent due to (a) incorrect Content provided by the Customer; (b) the End User’s handset is switched off, (c) the email, SMS or RCS inbox is full, (d) mobile number or email id provided is incorrect, (e) the handset of the End User is out of coverage area, (f) the recipient does not have internet connectivity to receive Email, RCS, web or app messages, or (g) mobile number or email id has been deactivated; or (h) the End User has opted out of receiving emails, SMS, RCS, web or app messages.

7.7 Netcore’s total liability to the Customer or any person or party bringing a claim based on the Services under these Terms, will be equivalent to the fixed platform fees (excluding consumable charges for email, SMS, RCS messages, etc, as applicable) paid by the Customer to Netcore during the 03 (three) months immediately preceding the action giving rise to the liability and shall not exceed INR 500,000 or equivalent amount as per billing currency.

7.8 With respect to liability arising from Netcore’s data security and confidentiality obligations (whether under this Agreement or pursuant to law), only when personal data as defined under applicable law is being stored or accessed by Netcore, shall be limited to the fixed committed fees paid by the Customer for the 3 months immediately prior to the event, giving rise to the claim, provided however, such liability will be payable against the insurance claim(s) made by Netcore and where such claims is/are (i) honoured by the insurer(s), (ii) results in an immediate payout, and (iii) such payout is actually received by Netcore. If the conditions of the claims are not being honoured, or immediate payout is not being met by the insurer(s), or actual receipt of the payout are not met, in such cases, the maximum liability shall be equal to the fixed committed fees paid or payable by the Customer in the three months immediately preceding the incident and shall not exceed Rs. 5,00,000/- or equivalent amount as per billing currency. For any and all insurance claims, the Customer shall cooperate fully with Netcore in the processing and resolution of any such insurance claims and shall provide to Netcore all information as may be reasonably requested by Netcore’s insurance provider for the speedy resolution of such insurance claims.
 
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; (ii) 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 (iii) 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 Netcore further represents and warrants that it either owns fully and outright its intellectual property for performing the Services, and/or possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to perform its obligations hereunder and to grant the licenses granted by it under this Agreement.

8.3 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 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 reserves the right to terminate the SMS 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.

8.3 The RCS services provided are contingent upon the facilities and business rules of RCS Messaging Application Partner. In the event of any change in the terms and conditions or business rules that impacts the ability to provide the Services herein covered under the Subscription, Netcore shall 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 RCS 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 reserves the right to terminate the Services forthwith, without liability and any damages or penalty arising on Netcore due to non-compliance by the Customer, will be made good by the Customer.
 
9. TENURE

9.1 The Services will be provided for such tenure as detailed in the Order Form.
 
10. TERMINATION

Unless otherwise specified under the Order Form, the following termination provisions shall apply to the Services:

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 Thirty (30) 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 under the Order Form.

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 Netcore can terminate the RCS messaging service forthwith, without liability, if the agreement with the Messaging Application Partner terminates or the application partners ceases to provide the RCS services, for any reason.

10.5 Post termination obligations:

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.
iii. 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 13.10.
 
11. SUSPENSION OF SERVICES

11.1 Netcore may suspend the Services for the following:

a) Suspension for non-payment by due date; 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 to suspend the SMS services; or
c) One or more of the telecom operators upon which the provision of Netcore SMS services hereunder is dependent, suspends its provision of those SMS services to Netcore; or
d) Netcore has been advised or instructed to comply with an order, directive or request of a governmental or other relevant state authority or the RCS messaging application partner; or
e) The RCS messaging application partner, upon which the provision of RCS services hereunder is dependent, suspends its provision of the RCS services to Netcore.
 

11.2 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.

11.3 Netcore shall reinstate the suspended Services as soon as the cause for such suspension has been remedied.
 
12. FORCE MAJEURE

12.1 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.

12.2 In the event the Parties are unable to find an equitable alternate solution to continue the Services under the Subscription, or if Netcore cannot make available the Services, or the Customer is unable to use 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 of the Services therein

12.3 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.
 
13. GENERAL PROVISIONS

13.1 Change in SMS pricing: The SMS pricing may be revised from time to time subject to change in pricing / tariffs/ plans by mobile operators including interconnect charges and/or change in Government/ DoT/ TRAI regulations or any other applicable laws. Netcore will notify Customer in writing and will send intimation 7 (seven) days prior to giving effect to such change.

13.2 Change in RCS pricing: RCS pricing is subject to revision as a consequence of changes by the Messaging Application Partner, including interconnect charges. Netcore will notify Customer in writing and will send intimation 7 (seven) days prior to giving effect to such change.

13.3 Netcore will be entitled to start billing the Customer from the Billing start date as recorded in the Order Form. The Billing start date will apply even if the services have not commenced or the implementation of the services are still under process, and where the delay in service activation is not attributable to any action or omission on the part of Netcore or the same is beyond the control of Netcore and dependent on actions from the customer.

13.4 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.

13.5 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.

13.6 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/terms-of-service/. 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.

13.7 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.

13.8 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.

13.9 Dispute Raising Period: It is agreed between the Parties that, pursuant to Netcore raising its monthly invoice, if the Client has any concerns on the invoice raised and the services rendered during the billing period of the said invoice, the Client shall intimate the same to Netcore within 10 (ten) days from the date of the invoice (“Dispute Raising Period”), post which the invoice shall deemed to have been accepted in full and payable by the Due Date. Where any dispute is raised during the Dispute Raising Period, the Parties will take all necessary actions to discuss and resolve the same within 10 (ten) days from the date of the issue being raised (“Resolution Period”). Upon expiry of the Resolution Period, if the dispute is resolved, the Client will clear outstanding amounts by the Due Date, but where the Parties were unable to resolve the dispute, the Customer must pay the bill value post which has the rights to take the dispute to the courts as per clause 13.10.

13.10 Dispute resolution: Any dispute, other than count differences in consumables billing or claim between the Parties hereto, arising out of or in any way relating to these Terms and/or the Order Form, or any breach or alleged breach thereof, shall be settled between the Parties by mutual discussion, negotiation and amicable solution, within 45 (forty-five) Business Days (“Dispute Resolution Period”) of such dispute being brought to the notice of the Parties. Failure to resolve the dispute within the Dispute Resolution Period, either Party may refer the matter to the competent courts. Invoice related disputes shall be resolved as per Order Form.

13.11 Governing Law and Jurisdiction: The validity, construction and enforceability of these Terms shall be governed in all respects by the laws as mentioned in the Order Form. The Parties hereto agree that in respect of any dispute arising upon, over or in respect of any of these Terms, the courts as defined in the Order Form shall have exclusive jurisdiction.

13.12 Survival: Clause 2-if applicable (to the extent of any penalty imposed by TRAI, operator or the RCS messaging application partner, post expiry or termination of the Subscription, for any default or breach by the Customer of the terms at clause 2 prior to the cessation of the Subscription ), Clause 4 (Confidentiality- 1 year), Clause 5 (Intellectual Property Rights), Clause 6 (Indemnity- 3 years), Clause 7 (Limitation to Liabilities) Clause 8 (Representations of the Parties), Clause 10.5 (post termination obligations),  Clause 13.3 (Compliance with law), Clause 13.5 (Amendment), Clause 13.8 (Dispute Resolution), Clause 13.9 (Governing law and Jurisdiction), Clause 13.10 (Survival), and Clause 13.12 (Notices), shall survive the Tenure and termination or expiration of the Subscription.

13.13 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.

13.14 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.