CUSTOMER TERMS OF SERVICE

These Customer Terms of Service (the “Terms”) govern the relationship between the person who engages the Company to provide the Services in relation to their factory or other establishment (“Customer” or “you”) and Think7 Business Systems Private Limited (“Company”). Please read through the Terms. You may choose to accept or not to accept these Terms. The Company may suspend or stop providing our Services (defined below) to you if you do not comply with our terms or policies. By your registration and usage of the Services or other actions, you acknowledge that you have read and understood, and agree to accept and be bound by the terms and conditions of these Terms.

If you do not agree to these Terms, you will not be able to register on, access or use the Services. By selecting the “I Accept” option, you signify your acceptance of these Terms (as amended from time to time) and agree to be bound by them for as long as you are using or accessing the Services. IF YOU DO NOT SELECT THE “I ACCEPT” OPTION YOU WILL NOT BE PERMITTED TO REGISTER ON, ACCESS OR USE THE SERVICES.

In the event we update or otherwise change these Terms, we shall notify you of such updates which shall become effective from the date of notification. You can log in on our portal at any time to check the latest version of the Terms. If you cannot accept any content that we have changed, you may withdraw your consent and cease to avail of the Services.

The website: www.think7.in (“Website”) is owned and operated by the Company. Through the Website or via an on-site installation of its Products(s)/Additional Product(s), the Company provides access, to its users and customers to a Factory Management Suite product in order to manage factory shop floors effectively.

The Company and the Customer are each individually referred to as a “Party” and together as the “Parties”.

These Terms are applicable to and incorporated by reference into the quotation shared by the Company and the purchase order submitted by the Customer (together referred to as the “Service Order”). The Parties agree as follow:

1. DEFINITIONS & INTERPRETATION

1.1. In the Service Order and the Terms, unless the context otherwise requires, the following expressions shall have the following meanings:

“Account” shall have the meaning ascribed to the term in Clause 2(d) of these Terms. “Affiliate”, with respect to a person or entity (“Person”), shall mean any other Person/ directly or indirectly Controlling, Controlled by, or under direct, indirect or common Control with, such Person. “Control”, “Controlled” or “Controlling” shall mean, with respect to any Person, any circumstance in which such Person is controlled by any person by virtue of the latter Person controlling the composition of the board of directors or managers or owning a controlling percentage of the voting securities or interests of such Person or otherwise.

“Applicable Law” shall mean the governing law of the Service Order and the Terms, as agreed to by and between the Parties to the Service Order and the Terms and shall include any and all laws, statutes, regulations, decisions, rulings, government policies, enactments or instruments (including national, regional, local or municipal laws, regulations or by-laws of any kind whatsoever). “Confidential Information” shall mean the non-public, confidential or proprietary technical or business information of a Party, including without limitation (a) proposals or research related to possible new products or services; (b) financial statements and other financial information; (c) reporting information; (d) the material terms of the Service Order, Terms and the relationship between the parties; and (e) concept papers, information, data, software programs, applications, designs, drawings, animations, modules and any such information which is solely within the domain of the Company; provided, however, that save and except those that are set out hereinabove, all other information will be considered confidential only if it is conspicuously designated as “Confidential,” or if provided orally, identified at the time of disclosure as confidential, or is provided under circumstances in which the receiving Party should reasonably understand that such information is confidential.

“Effective Date” shall mean the date of execution of the Service Order as specified in the Service Order.

“Intellectual Property Rights” or “IPR” shall mean and include all existing and future copyright rights, trademark rights (including, without limitation trade names, trademarks, service marks, and trade dress), patent rights, trade secrets and all other intellectual property rights, vested or registered, and all renewals and extensions thereof, regardless of whether such rights arise under the laws of any state, country or jurisdiction.

“Product/s” shall be as specified in the Service Order.

“Service Fee” shall have the meaning ascribed to the term in Clause 4.1 of these Terms.

“Services” shall mean the right and obligations granted by the Company to the Customer as more fully set out in Clause 2 hereof.

“Term” shall mean the period during which the Service Order and the Terms are in full force and effect and includes any extensions or renewals thereof.

“Territory” shall mean the entire world.

“User” shall mean any personnel of the Customer who has access to and is entitled to use the Products.

1.2. Reference to Clauses and Schedules are to the clauses and schedules of the Terms and references to Paragraphs are references to paragraphs in the relevant Annexure.

1.3. The Recitals and Schedules attached to the Service Order and the Terms form an integral part of the Service Order.

1.4. Unless the context otherwise requires, words importing the singular include the plural and vice versa, references to any gender include every gender and references to persons include an individual, company, corporation, firm, partnership, unincorporated association or body of persons.

1.5. The headings to Clauses, Annexures and Paragraphs are inserted for convenience only, have no legal effect and shall not affect the interpretation of the Service Order or the Terms.

1.6. Any phrase introduced by the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

1.7. In the Service Order and the Terms, a reference to a statutory provision includes a reference to the statutory provision as replaced, modified or re-enacted from time to time before or after the date of the Service Order and any subordinate legislation made under the statutory provision before or after the date of the Service Order and the Terms.

2. SERVICES

During the Term, and in consideration of the completion of the Customer’s obligations to the Company, the Company shall:

a. Provide the Customer with access to the Product and assist the Customer in utilizing the Product in accordance with the Service Level Terms agreed between the Parties.

b. Assist installation of the Product at the Customer’s premises through online remote access, or provide on-site one-time installation of the Product on the Customer’s servers, on the Customer’s request and payment of additional charges. However, it is clarified that while the Company shall endeavour to render the Product in a compatible format, it cannot guarantee and shall not be responsible for any incompatibility of the Product with the Customer’s system or equipment.

c. At the Company’s sole discretion, either provide standard remote training or enable self-learning mechanisms, details of which shall be provided to the Customer at the time of such access. The Customer acknowledges that the Company has authorised trainers, who the Customer can appoint at currently prevailing prices for any further training required for its employees in respect of usage of the Product.

d. Assist the Customer in the registration of such Customer’s employees with the Product and the creation of the account for such Customer with the Product (“Account”).

e. Collect and compile data concerning the Customer’s use of the Product in the Company’s server. It is agreed that this shall not be feasible in cases where the Product is hosted on the Customer’s server directly.

f. Update/ upgrade / revise / modify the Product from time to time as and when necessary (“Maintenance Services”) during the Term. All such updates/ upgrades / new versions shall be made available by the Company to the Customer on payment of additional charges as applicable to each update/upgrade/new version.

g. Provide the Customer with services including technical advisory information on the usage of the Product and customer support (“Support Services”) during the Term.

h. The Maintenance Services and Support Services shall be provided to the Customer on payment of additional fees as specified in the Service Order, and, in accordance with the Company’s standard rate card, which the Company may revise from time to time.

i. The Customer hereby agrees and understands that if the Customer elects not to avail of the Maintenance Services for any duration, and in future is desirous of availing the Maintenance Services, the Customer shall be entitled to avail such Maintenance Services only on payment of the fees for the entire duration of time for which Maintenance Services had not been availed by the Customer at the standard rates prescribed by the Company as applicable on the date such Maintenance Services are sought to be availed. It is agreed that payment of the requisite fees shall entitle the Customer to avail of all updates/upgrades/new versions that have been released by the Company in relation to the Product as the case may be.

j. Any other Company obligations or terms as specified in relation to any Products as specified in the Service Order.

3. LICENSE

3.1. Customer hereby grants the Company a limited, non-transferable right and license to use the name, logo and Intellectual Property Rights in any materials of the Customer provided to the Company on a royalty-free basis for use in the operation and promotion of the Product and for use on business presentations and corporate profiles of the Company to portray the Customer as a customer of the Company. The Customer further grants the Company the right to use certain pre-approved images from the Customer’s worksite for the Company’s promotions, business presentations and other similar uses.

3.2. Company hereby grants the Customer a limited, non-transferable right and license during the Term in the territory of India (unless specified otherwise in the Service Order) in respect of the Intellectual Property Rights embedded in and to the Product for the limited purpose of implementation and usage of the Product in accordance with these Terms and the Service Order.

4. PAYMENTS

4.1 Customer shall pay the Company the service fee as specified in the Service Order (“Service Fee”).

4.2 The Service Fee shall be due and payable as specified in the Service Order. The Service Fee shall be subject to fluctuations in exchange rate of currencies as billed, and the actual amount of the Service Fee shall vary in accordance with the then current exchange rate on the date of acceptance of the Service Order. Once the Service Order has been accepted, the Service Fee shall not be revised including but not limited to any refunds or reductions, regardless of fluctuations or variations in the exchange rate of the relevant currencies, until the next payment due from the Customer to the Company.

4.3 Service Fee is exclusive of all applicable taxes and payments may be subject to tax deduction at source in compliance with Applicable Laws.

4.4 The failure of the Customer to effect any payment due under the Service Order within the time specified will incur a penalty interest of 18% per year on the outstanding amount for the period of delay, commencing from the date that the payment became due under the Service Order.

4.5 The Company reserves the right to change the pricing of the Products at any time, with intimation to the Customer. The Customer agrees that any updates/upgrades/new versions of the Product may be charged separately in accordance with the Company’s standard rates, as revised by the Company from time to time.

4.6 In the event the Products are hosted on the Customer’s servers directly, the Company reserves the right to inspect the Customer’s premises and conduct an audit of the Customer’s usage of the Company’s Products during reasonable business hours without notice. In the event the audit reveals a discrepancy in the usage of the Products in excess of the subscription terms in accordance with the Service Order, the Customer shall be required to pay the Company such amounts from the date of the subscription, in accordance with the Company’s standard rates applicable on the date such discrepancy was identified, along with the penalty as stated in Clause 4.4 hereinabove. It is clarified that this clause 4.6 shall survive the termination of the relationship between the Parties and/or the Service Order.

5. CUSTOMER DUTIES AND OBLIGATIONS

5.1 The Customer shall use the Product solely through the Account, and shall not access the Product from any other account belonging to another customer of the Company.

5.2 The Customer shall keep the username and password of the Account confidential and secure and shall use the Account for the sole purpose of accessing the Product. Passwords to the Account may be distributed to authorized employees only, for their individual use of the Product. The passwords may not be used to access the Account via a script, macro, program or other automated scheme. The Company reserves the right to require that Customer change the password for the Account at any time, for security or related reasons, with 24-hour notice to Customer. The Customer shall be responsible for all activities undertaken on the Account.

5.3 In the course of availing of the Services, the Customer agrees that it shall be solely responsible for the content of any material uploaded in the course of using the Product and shall not post or upload any content that (i) contains nude, semi-nude, sexually suggestive photos, (ii) tends or is likely to abuse, harass, threaten, impersonate or intimidate any person, (iii) is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely to use or have access to the Product, or (iv) otherwise violates, is prohibited or restricted by applicable law, rule or regulation, is offensive or illegal or violates the rights of, harms or threatens the safety, or (v) brings disrepute to the Product or is of a disruptive, degrading, immoral or abusive nature (collectively “Prohibited Content”). The Company reserves the right to cease to provide the Services, to prevent the Customer from accessing the Product and to remove any content from the Product, with immediate effect and without notice and liability, in the case the Customer uploads any content which violates the terms of these Terms, Applicable Law, or otherwise constituted Prohibited Content. The determination of whether any content constitutes or contains Prohibited Content, violates the Terms, or Applicable Law, is subject to the sole determination of the Company.

5.4 Any other Customer obligations or terms as specified in relation to any Products as specified in the Service Order.

6. INTELLECTUAL PROPERTY RIGHTS

6.1 Each Party acknowledges that the other Party owns all right, title and interest in and to certain Intellectual Property Rights of such other Party whether presently existing or later developed by such other Party.

6.2 Nothing herein shall give either Party any right, title or interest in any of the other Party’s Intellectual Property Rights, or except as provided herein, any right to use any of the other Party’s Intellectual Property Rights in any way, including, without limitation, in any advertising, publicity or marketing materials.

6.3 Each Party covenants not to prejudice or impair the interest of the other Party in such other Party’s Intellectual Property Rights. At no time shall either Party challenge or assist others to challenge any of the other Party’s Intellectual Property Rights or the registration thereof or attempt to register any trade mark, trade name or any other mark confusingly similar to any of such other Party’s Intellectual Property Rights.

6.4 Notwithstanding anything to the contrary contained herein, throughout the Term and after the expiry thereof, the Company shall retain full and exclusive ownership of the Products and all information, reports, analytics, user data, etc. that originates through the operation or use of the Products. Furthermore, it is agreed that throughout the Term and after the expiry thereof, the Customer shall retain full and exclusive ownership of any content uploaded into the Products by the Customer.

6.5 In the event the Company customises certain Products for the Customer, the Customer agrees and acknowledges that the Company shall retain full and exclusive ownership of the customised elements in such Products and further shall be entitled to offer such customised versions of the Products to the Company’s other customers, with or without a fee, at the Company’s sole discretion.

7. RELATIONSHIP

The Parties hereby declare and confirm that the Parties are independent contractors, that the relationship between the Parties shall be on a principal-to-principal basis and that no agency, joint venture, partnership, association of persons, trusteeship or similar relationship of any kind shall be deemed to be created between the Parties merely on entering into the Service Order.

8. TERM AND TERMINATION

8.1 Unless otherwise specified in the Service Order, the Term shall be valid for a period of 12 (Twelve) months from the Effective Date and shall continue for the said period of unless
terminated in accordance with these Terms (“Initial Term”). At the end of the Initial Term, the term of the Service Order will be automatically renewed for additional successive periods of 12 (Twelve) months each (each a “Renewal Term”, and, together with the Initial Term, the “Term”) unless otherwise terminated by either Party.

8.2 Either Party may terminate the Service Order by issuance of a written notice in the event of a material breach of the Service Order or these Terms by the other Party, which remains uncured as set forth herein. The Party seeking termination will provide the other Party with a written notice of such material breach and the opportunity to cure the same as follows:

  • a. At least 15 days, in the event of a failure to pay any amount due and payable under the Service Order, unless such deficiency is cured within the notice period.
  • b. At least 30 days, in the event of any other material breach, provided that if such breach has not been remedied within 15 days from the defaulting party receiving written notice of such breach.
  • c. Without further delay, in the event of the other Party undergoing a “bankruptcy event”.

8.3 Either Party may terminate the Service Order, without assigning any reason, at the expiration of the Initial Term or any Renewal Term by giving 60 (Sixty) days’ advance notice in writing to the other of its intention to do so. It is clarified that neither Party may terminate the Service Order at any time prior to the expiration of the Initial Term or Renewal Term, as the case may be.

8.4 Upon termination of the Service Order, all payments/obligations that have accrued prior to the termination of the Service Order shall be payable and the said right shall survive any
termination or expiration of the Service Order and the accounts shall be closed within 30 days from the date of termination of the Service Order and each Party shall effect all pending payments to the other Party within the said period.

8.5 Upon termination or expiration of the Service Order, the Customer shall cease to use the Product and the Parties shall cease the use of and return any Intellectual Property owned by the other Party. It is clarified that in the event the Product is installed on the Customer’s servers, the Customer shall permit the Company’s representatives to access the Customer’s server and uninstall the Product and delete all relevant data within five (5) days of the date of termination.

8.6 This clause shall survive the termination or expiration of the Service Order.

9. INDEMNIFICATION AND LIMITATION OF LIABILITY

9.1 The Customer shall, at its own expense, indemnify, defend and hold harmless the Company and its officers, directors, employees, representatives, agents, respective directors, and assigns from and against any and all liability (including but not limited to liabilities, judgments, damages, losses, claims, costs and expenses, including advocate’s fees and expenses) any other loss that may occur, arising from or relating to:

a. a breach, non-performance or inadequate performance by the Customer of any of its undertakings, obligations or warranties under the Service Order and/or Terms;

b. the acts, errors, misrepresentations, wilful misconduct or negligence of the Customer, its employees, subcontractors and agents in performance of its obligations under the Service Order and/or Terms.

9.2 Notwithstanding anything to the contrary contained herein, no Party shall be liable under the Service Order for any loss, damage, costs, expenses or other claims for compensation arising as a direct or indirect result of breach or non-performance of the Service Order due to a Force Majeure Event.

9.3 Neither the Company nor any of its Affiliates nor its and their respective directors, officers, employees, agents or suppliers shall be liable to the Customer or any third party for special, consequential, incidental, indirect, tort or cover damages, including, without limitation, damages resulting from the use or inability to use the Product, delay of delivery and/or implementation of any Services related to the Product, or loss of profits, data, business or goodwill, whether or not such Party has been advised or is aware of the possibility of such damages. The Company’s liability for all claims of any kind under contract, tort, or otherwise (including any liability for any negligent act or omission) arising out of or relating to the Service Order during its term shall be limited solely to the quantum of the Service Fee already paid by the Customer in the 12 months prior to the act or omission that is the basis of the claim.

9.4 Except as expressly permitted otherwise in the Service Order or Terms, neither Party shall have the right to recover damages or to indemnification of any nature, whether by way of lost profits, expenditures for promotion, payment for good will or otherwise made in connection with the business contemplated by the Service Order, solely as a result of the expiration or permitted or lawful termination of the Service Order. Each Party waives and releases the other from any claim to compensation or indemnity solely as a result of the termination of the
business relationship set forth hereunder, unless such termination is in material breach of the Service Order or Terms.

10. CONFIDENTIAL INFORMATION

10.1 All Confidential Information of a Party shall be deemed to be confidential to such Party and shall remain the exclusive property of such Party during and after the Term.

10.2 Each Party shall keep in strict secrecy and confidence all Confidential Information of the other Party and shall not during the Term or thereafter use the other Party’s Confidential Information for its own benefit or disclose or permit any of its employees or agents to disclose, through any medium, the other Party’s Confidential Information to any other person.

10.3 For purposes of the Service Order, Confidential Information shall not include information: (i) that is now or subsequently becomes publicly available without breach of the Service Order by the receiving party; (ii) that is available to the receiving party from other sources without any obligation of confidentiality to the disclosing party; (iii) that is already in the receiving party’s possession not subject to an obligation of confidentiality; (iv) that is independently developed by the receiving party without reference to the disclosing party’s Confidential Information; or (v) that is required to be disclosed pursuant to any law, rule or regulation or any order of a court or governmental agency. In the event of (v), such disclosure shall be preceded by written notice from the receiving party to the disclosing party about the law, rule or regulation, or order requiring the disclosure with enough time to allow the disclosing party to seek appropriate injunctive relief, and shall be limited to the specific request made in such law, rule or regulation or any order.

10.4Upon termination or expiration of the Service Order or upon request, each Party shall return all of the other Party’s Confidential Information and certify in writing that it has returned all such information and has not kept copies thereof in any medium.

11. REPRESENTATIONS, WARRANTIES AND DISCLAIMER OF WARRANTIES

11.1 Each Party represents and warrants to the other Party that the execution and delivery of the Service Order has been properly authorised by all necessary corporate action required to undertake such acts. Each Party has full corporate power, financial capability and lawful authority to execute and deliver the Service Order and consummate and perform or cause to be performed all of its obligations under the Service Order and the Terms. The Service Order constitutes a legal, valid and binding obligation and is enforceable in accordance with its terms
and does not conflict with or result in the breach of or default under any provision of its constitution or any material terms or provision of any agreement or deed to which it is a Party or by which it is bound.

11.2 Each Party represents and warrants that none of the execution and delivery of the Service Order, the consummation of the transactions contemplated hereby, or the fulfilment of or compliance with the terms and conditions of the Service Order and Terms, conflict with or result in a breach of or a default under any of the terms, conditions or provisions of any legal restriction (including, without limitation, any judgment, order, injunction, decree or ruling of any court or governmental authority, or any state, local or other law, statute, rule or regulation or the Customer’s constitution) or any covenant or agreement or instrument to which it is a Party or infringe the rights (including rights of privacy, personality or IPR) of any third party, and further represents and warrants that such execution, delivery, consummation or compliance does not violate or result in the violation of its constitutional documents.

11.3 Each Party shall abide by all relevant rules and regulations whether imposed by respective Applicable Laws or any competent authority.

11.4 The Company shall take all reasonable precautions to preserve the integrity and prevent any corruption or loss, damage or destruction of the Customer’s data and information. In the event of termination of the relationship between the Customer and the Company, the Company shall when directed to do so by the Customer, and instruct all its agents and sub-contractors to, erase all information and data provided by the Customer and all copies of any part of the information and data provided by the Customer from the Company’s systems and magnetic
data. The Company agrees to comply and have adequate measures in place to ensure that its personnel comply at all times with the regulations in accordance with Applicable Law in relation to the use and storage of data.

11.5 The Customer shall not and shall procure that no person having access to the Product through the Customer shall not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, edit, modify, or create derivative works of the Product, any updates or upgrades, or any part thereof.

11.6 The Company disclaims all responsibility and liability if the Product is used in combination with other products or software services or has been altered (other than by the Company or under its instructions) or has not been installed, operated or maintained in accordance with the specifications and all applicable instructions and requirements of the Company.

11.7 The Company does not warrant that the Product is error free, that the Customer will be able to operate without problems or interruptions, or that the Product and the Services are not susceptible to intrusion, attack or computer virus infection. Neither the Company nor its Affiliates make any warranties or representations about any content or information made accessible by or through them that they will issue updates or enhancements to the Product. The Company does not warrant the security of any data residing on the Company’s server(s) or equipment or premises. The Customer shall use commercially reasonable efforts to insure and safeguard the security of data on the Product. THE PRODUCT AND ANY SERVICES ARE PROVIDED “AS IS” AND EXCEPT FOR THE LIMITED WARRANTY STATED IN THIS SECTION AND AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, THE COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS, IMPLIED OR STATUTORY, AND THE CUSTOMER EXPRESSLY WAIVES AND DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF OR AGAINST INTERFERENCE WITH THE ENJOYMENT, INTERRUPTION OF SERVICE, INFRINGEMENT, ACCURACY, COMPATIBILITY, INTEGRATION, TITLE, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, SATISFACTORY QUALITY, ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.

11.8 Third Party Infrastructure / Software / Services: The Parties acknowledge that although the Product and the Services are proprietary property of the Company, the same may be hosted on cloud maintained by third party infrastructure. Third party infrastructure / software / services forming part of the Product / Services provided with the Product shall be subject to additional terms and conditions of such third-party provider. The Company hereby extends only such warranties / guarantees to the Customer in respect of any third-party software / services as are made available to the Company from the third-party provider from time to time. The Company shall not be responsible to the Licensee for any actions / omissions of the third-party service providers / authorised support personnel resulting in interruption of usage of the Product or the Services by the Customer at any point of time.

12. Force Majeure

Neither Party shall be liable for damages for any delay or failure to perform its obligations hereunder, if such delay or failure is due to causes beyond its control or without its fault or negligence, including, without limitation, strikes, riots, hardware malfunction, wars, fires, epidemics, quarantine restrictions, unusually severe weather, earthquakes, explosions, acts of god or state or any public enemy, or acts mandated by any applicable laws, regulation or order (whether valid or invalid) of any governmental, local or judicial body or change in Applicable Laws (“Force Majeure Event”). Force Majeure shall exclude situations and circumstances, which can be foreseen or planned or managed by use of prudent care and caution.

13. MISCELLANEOUS

13.1 Amendment and Waiver: Any provision of the Service Order or Terms may be amended or waived if, and only if such amendment or waiver is in writing and signed, in the case of an amendment, by each Party, or in the case of a waiver, by the Party against whom the waiver is to be effective.

13.2 Effect of Failure to Exercise of Rights: No failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.

13.3 Binding Nature: The provisions of the Service Order and these Terms shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

13.4 Entire Agreement: The Service Order and Terms constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior written agreements, understandings and negotiations, both written and oral, between the parties with respect to the subject matter of the Service Order.

13.5 No Third-Party Beneficiaries: Neither the Service Order nor any provision hereof is intended to confer upon any Person other than the parties to the Service Order any rights or remedies hereunder.

13.6 Severability: The invalidity or unenforceability of any provisions of the Service Order in any jurisdiction shall not affect the validity, legality or enforceability of the remainder of the Service Order in such jurisdiction or the validity, legality or enforceability of the Service Order, including any such provision, in any other jurisdiction, it being intended that all rights and obligations of the parties hereunder shall be enforceable to the fullest extent permitted by law.

13.7 Legal Fees: Each Party is to pay its own legal costs and disbursements incidental to the preparation, completion and signing of the Service Order.

13.8 Stamp Duty: Each Party shall equally pay the stamp duty (including any penalties or fines) which is payable on this document or in respect of any transaction referred to in this document and any documents which are executed in accordance with the provisions of this document to effect those transactions.

13.9 Assignment: Neither Party may assign, in whole or in part, the benefits or obligations of the Service Order to any person other than an Affiliate without the prior written consent of the other Party, such consent not to be unreasonably withheld.

13.10 Counterparts: The Service Order may be executed in counterparts, each of which when executed shall constitute an original, but both of which when taken together shall constitute one and the same Service Order.

13.11 Dispute Resolution: The parties shall first attempt to resolve any dispute in connection with the Service Order by negotiation between the senior management personnel of the parties, as designated by the parties at the relevant time. If the parties are unable to resolve the dispute within thirty (30) days through negotiation, then either Party may refer such dispute to arbitration, to be conducted by a sole arbitrator, to be appointed by mutual consent of parties. In case of failure of the parties to agree upon a sole arbitrator, within a period of 10 (ten) days, each Party shall appoint one arbitrator each and the two appointed arbitrators shall appoint a third arbitrator who shall act as the sole arbitrator. The arbitration shall be held at Bangalore, India under the provisions of Arbitration and Conciliation Act, 1996. The language of the arbitration proceedings shall be English.

13.12 Governing Law and Jurisdiction: The Service Order and the Terms shall be governed and construed in accordance with the laws of the Republic of India. Subject to clause 13.11, jurisdiction for all disputes arising out of and in relation to the Service Order shall vest exclusively of the Courts in Bangalore, India.

13.13 No Partnership: The Service Order does not constitute or create a master-servant relationship, employer- employee relationship and/ or any partnership, agency or joint venture between the parties.

13.14 Notices: For the purposes of the Service Order, notices and all other communications provided for in the Service Order shall be in writing and shall be deemed to have been duly given when delivered or mailed by registered mail, return receipt requested, postage prepaid, addressed to the respective addresses set forth on the execution page of the Service Order. Either Party may change the addresses for giving notice from time to time by issuing written instructions to the other Party of such change of address by certified mail, return receipt requested, postage prepaid, by courier, by facsimile or email and shall be effective upon delivery.

13.15 Single Service Order: The Service Order, the Annexures and the Terms, together, form a single agreement between the parties hereto.

ANNEXURE 1

THINK7 PISTON + / PISTON PRO RENTAL TERMS

  • 1. These rental terms (“Rental Terms”) are in relation to the Think7 Piston + / Piston Pro (“Device”) being provided by the Company to the Customer. The Device shall be used exclusively for the purpose of enabling the usage of the Product and the provision of Services.
  • 2. The Customer shall not remove the Device from the address of use specified in the Service Order without prior written approval of the Company. The Customer shall inform the Company upon demand of the exact location of the Device while it is in the Customer’s possession, and shall permit the Company to inspect the location of the Device at all reasonable times.
  • 3. The Customer shall not remove, alter, disfigure or cover up any numbering, lettering, or insignia displayed upon the Device or dismantle, repair or service the components of the Device, and shall see that the Device is not subjected to careless, unusually or needlessly rough usage; and the Customer shall at its own expense maintain the equipment and its appurtenances in good and operative condition.
  • 4. The Customer shall not pledge or encumber the Device in any way, or claim any rights or interest in the Device other than as provided herein. The Customer shall not exercise any lien or similar right over the Device and the Customer agrees, and undertakes to procure, that Device shall not form part or be construed to be a part of the assets of the Customer for any purpose whatsoever, including in any liquidation / winding-up proceedings.
  • 5. In case the Customer fails to return the Device at the end of the Term, or pay the Company any amount due under clause 6 hereof, the Customer shall be required to pay the Company the following amount, as applicable:
    • Think7 Piston + : As per prices quoted in Service Order
    • Think7 Piston Pro : As per prices quoted in Service Order
  • The Customer shall pay the Company full compensation for replacement and/or repair of the Device in case such Device is lost, stolen, or damaged and in need of repair to put it into the same condition as it was in at the time of rental. The amount payable for replacement or repair shall be as provided in clause 5 above.
  • 6. The Company, may at its discretion, provide additional Devices to the Customer for business continuity purposes. Such additional Devices are to be maintained and stored properly by the Customer and are subject to all relevant terms and conditions contained in these Rental Terms. The commercial details of these additional Devices will be as detailed in the Service Order.
  • 7. The Customer agrees that the Device is provided on an “as-is” basis, without any express or implied warranties, including warranties of fitness for purpose, non-infringement or merchantability, and in case of malfunction of the Device (not attributable to the Customer) the Customer’s sole remedy will be to have the Device replaced at no cost to the Customer. Such replacement shall be made as soon as practicable after Customer returns the non-conforming Device. The Company shall not be responsible or liable for any losses, damages, costs or expenses arising out of the inability of the Customer to use the Device at any time. It is clarified that the Company shall not replace the Device if there is any physical damage to the components or housing of the Device.
  • 8. The Company shall not be responsible for any damage caused to the Device due to internet or other connectivity issues, or incompatibility with the Customer’s equipment. Further, the Company will not be responsible for any damage caused to the Device in case the Customer does not follow the written wiring installation instructions provided to the Customer by the Company. In the event of incorrect wiring, any damage caused to the Device will be the responsibility of the Customer and the Customer is liable to pay the Company repair or replacement fee as provided in clause 5 above.
  • 9. These Rental Terms shall remain valid and enforceable during the Term of the Service Order, and shall terminate automatically on the termination or expiry of the Service Order. On termination, the Customer shall forthwith return the Device and any other equipment provided along with the Device to the Company.
  • 10. All terms that are not defined herein shall take their meaning from the Service Order, and these Rental Terms shall be deemed to be, and shall be construed as, a part of the Customer Terms of Service to which it is attached. All other terms of the Service Order and the Customer Terms of Service shall be applicable to these Rental Terms.

ANNEXURE 2

SERVICE LEVEL TERMS & CONDITIONS

  • 1. The subscription price includes unlimited online (phone / email) support provided during working hours of the Company during the Term. In case the Company is unable to resolve any issue remotely, the Company will depute an engineer on-site for the resolution. If such issue is found to be the fault of the Company then such on-site support will be carried out Free of Charge. However, if such issue is found to be the fault of Customer or their personnel, then such support will be charged as per additional on-site support rates specified in the Service Order.
  • 2. The Customer should schedule maintenance downtime, as required, for deployment of the solution as well on regular basis (on request by the Company) to carry out updates and apply patches / fixes. Remote access to the servers, if hosted on-premise, should be given to the Company.
  • 3. Target first response time will be within one (1) business day for support tickets. Tickets will be classified as follows:
    • a. L1: Customer is unable to use the product across all plants, cells, lines and machines where it is installed due to the issue. Company will provide immediate support to resolve the ticket. The Company shall make best efforts to resolve the issue within two [2] business days.
    • b. L2: Customer is able to use the product but with limited functionality. Company will work on the resolution and schedule a product release specifically to address this issue. The Company shall make best efforts to resolve the issue within seven [7] business days.
    • c. L3: Customer is able to use the product with no noticeable loss of functionality. Company will include the fix in future upcoming releases of the product. The Company shall make best efforts to resolve the issue within forty-five [45] business days.
  • 4. The Customer agrees and acknowledges that the response and resolution times specified in clause 3 above are indicative only, and the resolution time shall be based on the Company’s estimate on a case-to-case basis, which shall be communicated to the Customer.
  • 5. On-site support will be provided at an additional charge based on the details in the Service Order as well as the Company’s standard rate card.
  • 6. The hosting of the solution (cloud or on-premise) will be as per details contained in the Service Order.
  • 7. Unless otherwise specified in the Service Order, the subscription price does not cover:
    • a. On-site cabling, PCs, Servers, and any other additional on-site infrastructure that is needed
    • b. PLC programming required for any specific use-case
    • c. Access to PLC data, if required. Any licenses required for such access should be
      procured by the Customer.
    • d. Barcode scanners and barcode printers needed at specified work centres.
    • Backups of the database / application in case solution is hosted on-premise