These are the terms, relevant for those wishing to create an account and utilise the services provided by Subtlelabs Software Solutions Pvt. Ltd.
Effective starting April 1, 2019
Please read this Agreement carefully and immediately cease using the Services if you do not agree to it.
- These Terms and Conditions, and any other terms and policies referred to in these Terms and Conditions, form the agreement between Subtlelabs Software Solutions Pvt. Ltd. (referred to as “SaaS Provider”, “we” or “us”) and the user (referred to as “Customer” or “you”), collectively referred to as the Parties or each a Party, (Agreement).
- The SaaS Provider owns, or holds the relevant rights to, the Subtlelabs and will license the use of the Software as a service to the Customer.
- The Customer wishes to license the SaaS Services available at https://timbba.com (Site) from the SaaS Provider.
- This Agreement sets out the terms upon which the SaaS Provider has agreed to grant a license to the Customer to use the SaaS Services. This Agreement is binding on any use of the Services and applies to the Customer from the time that the SaaS Provider provides the Customer with an account (Customer’s account) to access and use the Services (Effective Date).
- By accessing and/or using the Services you:
- Agree to use the Services in accordance with this Agreement.
- By using our Services and subscribing on our Site, you acknowledge that you have read, understood, and accepted this Agreement and you have the authority to act on behalf of any person or entity for whom you are using the Services, and you are deemed to have agreed to this Agreement on behalf of any entity for whom you use the Services.
- On or from the Effective Date and during the Term, the SaaS Provider agrees to provide the Services in accordance with the terms of this Agreement.
- The Customer agrees the SaaS Provider owns or holds the applicable licences to all Intellectual Property Rights including but not limited to copyright in the Software and SaaS Services and any documentation provided with the Services by the SaaS Provider to the Customer including any Customer configuration documentation.
- The SaaS Provider reserves the right to change or remove features of the SaaS Services from time to time. Where there is any material alteration to the SaaS Services in accordance with this clause, the SaaS Provider will provide the Customer with 30 Business Days’ notice and the Customer agrees that any material alteration is at the SaaS Provider’s discretion.
- The Parties agree that the SaaS Provider:
- will supply the Services on a non-exclusive basis;
- does not make any warranty or representation as to the ability of the facilities or services of any third-party suppliers; and
- is not liable for any failure in, fault with or degradation of the Services if that failure, fault or degradation is attributable to or caused by any failure of the Customer Environment or the facilities or services of any third party.
- The SaaS Provider reserves the right to refuse any request in relation to the Services that it deems inappropriate, unreasonable or illegal.
3. SaaS Service Licence
- In consideration for payment of the Fees, the SaaS Provider grants to the Customer a non-exclusive, non-transferable (except as otherwise permitted under this Agreement), personal, revocable, licence to access and use the SaaS Services in accordance with the Service Provider’s intended purpose for the SaaS Services (SaaS Licence).
- The Customer agrees that the SaaS Licence:
- commences from the Effective Date or the day the Customer is granted access to the SaaS Services by the SaaS Provider, whichever occurs first;
- permits the Customer to use the SaaS Services in accordance with the SaaS Services’ normal operating procedures; and
- permits the Customer to provide access and use of the SaaS Services to Authorised Users by embedding the SaaS Services into Customer’s services to its customers, as applicable.
4. Licence Restrictions
- The Customer must not access or use the SaaS Services except as permitted by the SaaS Licence and may not do or authorise the commission of any act that would or might invalidate or be inconsistent with the SaaS Provider’s Intellectual Property Rights in the SaaS Services or Software. Without limiting the foregoing provisions, the Customer agrees and acknowledges that it must not and will not permit any person to:
- resell, assign, transfer, distribute or provide others with access to the SaaS Services;
- “frame”, “mirror” or serve any of the SaaS Services on any web server or other computer server over the Internet or any other network;
- copy, alter, modify, create derivative works from, reproduce, resell, transfer to a third party, reverse assemble, reverse engineer, reverse compile or enhance the SaaS Services or Software (except as expressly permitted by the Copyright Act ; or
- alter, remove or tamper with any trademarks, any patent or copyright notices, or any confidentiality legend or notice, or any numbers, or other means of identification used on or in relation to the SaaS Services or Software.
- The Customer must not use the SaaS Services in any way which is in breach of any statute, regulation, law or legal right of any person within India or the jurisdiction in which the Customer or its Personnel are located.
- The Customer grants to the SaaS Provider a limited licence to copy, transmit, store and back-up or otherwise access, use or make reference to any Intellectual Property Rights in the Data:
- to supply the Services including to enable the Customer, its Personnel and any Authorised Users to access and use the Services;
- to do analysis for the purposes of predictive safety analytics, industry guideline production and other construction safety-related uses, provide such Data is re-identified;
- for diagnostic purposes;
- to test, enhance and otherwise modify the Services whether requested by the Customer or not;
- to develop other Services; and
- as reasonably required for the performance of the SaaS Provider’s obligations under this Agreement.
- The Customer represents and warrants that:
- any and all Data supplied by the Customer or otherwise accessed by the SaaS Provider through the provision of the Services is the sole and exclusive property of the Customer or the Customer has secured any and all authorisations and rights to use the Data as applicable;
- its Data does not breach any relevant laws, regulations or codes;
- its Data does not infringe the Intellectual Property Rights of any third party;
- it will comply with all applicable laws and regulations in the jurisdiction where the Customer accesses and publishes content using the SaaS Services; and
- to the extent that the Data contains personal data, it has obtained the necessary consents in order to transfer or permit access to this Data in accordance with applicable privacy and data protection laws.
- The Customer acknowledges and agrees that:
- any collation, conversion and analysis of Data performed as part of the Services whether by the Services or otherwise is likely to be subject to human input and machine errors, omissions, delays and losses including but not limited to any loss of Data. The SaaS Provider is not liable for any such errors, omissions, delays or losses. The Customer acknowledges and agrees it is responsible for adopting reasonable measures to limit the impact of such loss or error;
- The SaaS Provider is not responsible for any corruption or loss of any Data if such corruption or loss is due to an act or omission by the Customer, its Personnel, its Related Bodies Corporate or any Authorised Users; and
- The SaaS Provider is not responsible for the integrity or existence of any Data on the Customer’s Environment, network or any device controlled by the Customer or its Personnel.
- The Customer agrees to indemnify and hold the SaaS Provider harmless for the corruption or loss of any Data controlled or stored by the Customer or any Related Bodies Corporate, to extent the corruption or loss is not caused by the negligent act or omission of the SaaS Provider or its Personnel.
6. Support and Service Levels
- During the Term, the SaaS Provider will provide the Support Services in accordance with the Service Levels during the Support Hours provided that:
- the Customer provides the SaaS Provider with notice for applicable Services in accordance with any applicable system and processes as set out on the Site, as applicable; and
- where required, the Customer assists with investigating and ascertaining the cause of the fault and provides to the SaaS Provider all necessary information relevant to the fault (including but not limited to what the Customer or their Personnel has done in relation to the fault).
7. SaaS Provider Additional Responsibilities and Obligations
- The SaaS Provider must maintain commercially reasonable security measures to protect all Confidential Information in its possession or control, or in the possession or control of its Personnel, from unauthorised access, use, copying or disclosure.
8. Customer Responsibilities and Obligations
- The Customer will provide all required materials as required by the SaaS Provider from time to time for the SaaS Provider to perform the Services.
- The Customer must, at the Customer’s own expense:
- provide all reasonable assistance and cooperation to the SaaS Provider in order to enable the SaaS Provider to supply the Services in an efficient and timely manner including but not limited to obtaining from Authorised Users any consents necessary to allow the Customer and its Personnel to engage in the activities described in this Agreement and to allow the SaaS Provider to provide the Services;
- use reasonable endeavours to ensure the integrity of the Data;
- permit the SaaS Provider and its Personnel to have reasonable access to the Customer Environment for the purposes of supplying the Services;
- ensure that only Customer Personnel and Authorised Users will access and use the SaaS Services and such use and access will be in accordance with the terms and conditions of the SaaS Licence; and
- make any changes to its Customer Environment that may be required to support the delivery and operation of any Services.
- The Customer is responsible for its use of the Services and must ensure that no person uses the Services:
- to break any law or infringe any person’s rights including but not limited to Intellectual Property Rights;
- to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or
- in any way that damages, interferes with or interrupts the supply of the Services.
- The Customer acknowledges and agrees that:
- it is responsible for all users using the Services including its Personnel and any Authorised Users;
- its use of the Services will be at its own risk;
- it is responsible for maintaining the security of its account and password. The SaaS Provider cannot and will not be liable for any loss or damage from the Customer’s failure to comply with this security obligation;
- the SaaS Provider may alter or update the Customer’s account logins and passwords and the logins and passwords of any Authorised Users at any time throughout the Term;
- the Customer is responsible for all content posted and activity that occurs under their account. This includes content posted by others who have logins or accounts associated with the Customer’s account;
- if the SaaS Provider wishes to alter the delivery of the SaaS Services which requires a change to the Customer Environment (including reconfigurations or interface customisations the extent necessary to access or use the SaaS Services) the Customer will give any assistance to the SaaS Provider or make any such changes to the Customer Environment, that the SaaS Provider reasonably requires; and
- the SaaS Provider may pursue any available equitable or other remedy against the Customer as a result of a breach by the Customer of any provision of this Agreement.
9. Prohibited Use
- The Customer acknowledges and agrees that this Agreement incorporates by reference the terms of any acceptable use policy as set out on the SaaS Provider’s website or as provided to the Customer from time to time.
- The Customer acknowledges and agrees that it must not, and will ensure each Authorised User does not:
- use the SaaS Services to violate any legal rights of any person, the Customer or other entity in any jurisdiction;
- use the SaaS Services in relation to crimes such as theft and fraud;
- use the Services in breach of laws relating to the protection of copyright, trade secrets, patents or other intellectual property and laws relating to spam or privacy;
- make any unauthorised copy of any copyrighted material owned or licensed by the SaaS Provider;
- introduce malicious programs into the SaaS Provider System (e.g. viruses, worms, Trojan horses, e-mail bombs);
- reveal the Customer’s account password to others or allow use of the Customer’s account the to those who are not the Customer’s Personnel or Authorised Users;
- use the SaaS Services to make fraudulent offers of goods or services;
- use the SaaS Services to carry out security breaches or disruptions of a network. Security breaches include, but are not limited to, accessing data of which the Customer is not an intended recipient or logging into a server or account that the Customer is not expressly authorised to access or corrupting any data. For the purposes of this paragraph, “security breaches” includes, but is not limited to, network sniffing/monitoring, pinged floods, packet spoofing, denial of service, and forged routing information for malicious purposes;
- use any program/script/command, or sending messages of any kind, with the intent to interfere with, or disable, any persons’ use of the SaaS Services;
- use the SaaS Services to circumvent user authentication or security of any of the Customer’s hosts, networks or accounts or those of the Customer’s customers or suppliers.
- Each Party will appoint and maintain at all times a relationship manager who will be responsible for the management of this Agreement.
- The Customer must pay the SaaS Provider:
- the Fee; and
- any other amount payable to the Provider under this Agreement,
without set off or delay using the Payment Method in accordance with the Payment Terms. All Fees are in INR (Indian Rupees), and are payable in advance.
- If the Customer requires the use of a purchase order, the Customer is responsible for providing the applicable purchase order at the time of purchase. The Customer acknowledges and agrees to the extent of any inconsistency between this Agreement and any terms and conditions attached to the Customer’s purchase order, the terms of this Agreement will prevail. The Parties acknowledge and agree that any pre-printed standard terms and conditions attached to or on the back of any purchase order will not apply to this Agreement.
- If there is a Variation, the SaaS Provider will include the Variation Fees due and payable for the Variation performed in invoice(s) subsequent to the performance of any Variation.
- If any payment has not been made in accordance with the Payment Terms, the SaaS Provider may (at its absolute discretion):
- immediately cease providing the Services, and recover as a debt due and immediately payable from the Customer its Additional Costs of doing so;
- engage debt collection services and/or commence legal proceedings in relation to any such amounts; and/or
- report the Customer to any independent credit data agencies.
- Subject to clause 12.2, each Party must (and must ensure that its Personnel do):
- keep confidential; and
- not use or permit any unauthorised use of,
all Confidential Information.
- Clause 12.1 does not apply where:
- the information is in, or comes into, the public domain (other than by a breach of this clause 12 by the relevant Party);
- the relevant Party has the prior written consent of the Party that disclosed the Confidential Information;
- the disclosure is required by law;
- the disclosure is required in order to comply with this Agreement, provided that the Party disclosing the Confidential Information ensures the recipient complies with the terms of this clause 12; and
- the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that the Party disclosing the Confidential Information ensures the adviser complies with the terms of this clause 12.
- Each Party acknowledges and agrees that monetary damages may not be an adequate remedy for a breach of this clause 12. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 12.
- This clause 12 will survive the termination or expiry of this Agreement.
13. Intellectual Property Rights
- A Party’s ownership of, or any right, title or interest in, any Intellectual Property Rights in an item which exists prior to the Effective Date (Pre-Existing Material) will not be altered, transferred or assigned by virtue of this Agreement.
- The Customer grants to the SaaS Provider a non-exclusive, royalty free, non-transferable and revocable licence to use any of the Customer’s Intellectual Property Rights including any Pre-Existing Material as reasonably required for the SaaS Provider to provide the Services to the Customer.
- We do not screen content uploaded onto the SaaS Service, but we have the right (but not the obligation) in our sole discretion to refuse or remove any content that is available via the Service that we deem inappropriate, illegal, offensive, threatening, libellous, defamatory, pornographic, obscene, or otherwise objectionable or violate any party’s Intellectual Property Rights or this Agreement.
- We have the discretion (but not obligation) to terminate a Customer’s access to and use of the Services if, we determine that Customer or its Authorised Users are repeat infringer of the Intellectual Property Rights of us or third parties.
- This clause 13 will survive the termination or expiry of this Agreement.
14. Representations and Warranties
Each Party represents and warrants to each other Party:
- it has full legal capacity and power to enter into this Agreement, to perform its obligations under this Agreement to carry out the transactions contemplated by this Agreement, to own its property and assets and to carry on its business;
- no Insolvency Event has occurred in respect of it;
- this Agreement constitutes legal, valid and binding obligations, enforceable in accordance with its terms; and
- the execution and performance by it of this Agreement and each transaction contemplated by it does not conflict with any law, order, judgment, rule or regulation applicable to it or any document binding on it.
- SaaS Provider
- The SaaS Provider warrants that to the best of its knowledge the Services do not infringe the Intellectual Property Rights of any third party and there are no actual or threatened proceedings for any intellectual property infringements in relation to the SaaS Services.
- The SaaS Provider does not warrant that the Services will be error-free or will operate without interruption or that, except as set out in this Agreement, the Services will be performed in the manner intended by the Customer or the Services will meet the requirements of the Customer.
Each Party makes the representations and warranties in clause 14.1 on each day on which it is a Party.
15. Indemnity and liability
- The SaaS Provider is liable for the acts and omissions of all its Personnel as if they were done by the SaaS Provider.
- Despite anything to the contrary (but subject to clause 15.3), to the maximum extent permitted by the law:
- the SaaS Provider’s maximum aggregate Liability arising from or in connection with this Agreement (including the Services or the subject matter of this Agreement) will be limited to, and must not exceed, in any Contract Year, the total amount of Fees paid to SaaS Provider in the prior Contract Year; and
- the SaaS Provider will not be liable to the Customer for: (i) any loss of profit (including anticipated profit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data ); (ii) lack of access to or use of or inability to access or use the Service; (iii) any conduct or content of any third party on the Services; (iv) any content obtained from the Services; nor (v) unauthorised access, use or alteration of your transmissions or content,
whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
- Clause 15.2 will not apply to the SaaS Provider’s Liability to the Customer under this Agreement for any liability which cannot be excluded or limited by applicable law, including:
- fraud or criminal conduct; or
- death or personal injury.
- Despite anything to the contrary, to the maximum extent permitted by the law, the SaaS Provider will have no Liability, and the Customer releases and discharges the SaaS Provider from all Liability, arising from or in connection with any:
- failure or delay in providing the Services;
- breach of this Agreement; or
- misuse of the Services,
- where caused or contributed to by any:
- Force Majeure Event;
- a fault or defect in any item of the Customer Environment; or
- act or omission of the Customer or its Personnel.
- The SaaS Provider uses third-party Service Providers to host the Services. The SaaS Provider will not be liable for any interruption to the Services, unavailability or outage, or any interruption, unavailability or outage of the Customer’s Systems, caused by any such third-party service provider.
- The Customer agrees that, to the maximum extent permitted by the law, this Agreement excludes all terms, conditions and warranties implied by statute, in fact or on any other basis, except to the extent such terms, conditions and warranties are fully expressed in this Agreement.
- The Customer agrees to indemnify, and hold harmless, the Service Provider against all Liabilities and Claims arising out of or in connection with:
- any and all unauthorised use of the SaaS Service;
- Authorised Users access or use of the Services;
- injury to or death of any person caused by any act or omission by or on behalf of the Customer or its Personnel; and
- damage to any real or tangible property caused by any act or omission by or on behalf of the Customer or its personnel.
- This Clause 16 will survive the termination or expiry of this Agreement.
- The Term of this Agreement takes effect on and from the Effective Date and continues for the Initial Term, if specified, and any Renewal Term, or otherwise indefinitely, unless this Agreement is terminated earlier in accordance with the terms of this Agreement.
- Applicable to Initial Terms and any Renewal Term: At least 30 Business Days prior to the expiry of the current Contract Year, either Party may notify the other that it does not wish for the Term to be renewed and in such event, this Agreement will expire at the end of the then current Contract Year. If a Party has not given notice pursuant to this clause, this Agreement is automatically renewed for another 12-month period (Renewal Term).
- Applicable to Initial Terms and any Renewal Term: If a Party wishes to vary any of the Terms of this Agreement, it must give at least 30 Business Days’ notice prior to the expiry of the current Contract Year to enable the Parties to meet to discuss any proposed variation.
- Where there is no Initial Term or Renewal Term, Customer may terminate this Agreement by giving SaaS Provider at least 30 days prior written notice, such termination will take effect with at the expiry of the then current billing cycle.
- The Customer may terminate this Agreement by giving at least 30 Business Days’ notice to the SaaS Provider, or if the SaaS Provider is in breach (other than a trivial breach causing no material harm) of any provision of this Agreement and, where the breach is capable of remedy, the SaaS Provider has failed to remedy the breach within 30 Business Days’ of receipt of written notice from the Customer describing the breach and calling for it to be remedied.
- The SaaS Provider may terminate this Agreement by giving at least 30 Business Days’ notice to the Customer if the Customer is in breach (other than a trivial breach causing no material harm) of any provision of this Agreement and, where the breach is capable of remedy, the Customer has failed to remedy the breach within 30 Business Days of receipt of written notice from the SaaS Provider describing the breach and calling for it to be remedied.
- The SaaS Provider may terminate this Agreement immediately by giving written notice to the Customer where:
- the Customer undergoes a Change of Control to a competitor of the SaaS Provider as determined by the SaaS Provider;
- an Insolvency Event occurs in relation to the Customer;
- the Customer commits a breach of this Agreement not capable of remedy; or
- breaches clause 4 (Licence Restrictions) or clause 9 (Prohibited Use).
- The SaaS Provider may suspend overdue accounts without notice to the Customer. A $300 reinstatement charge applies to reactivate any suspended account once full payment has been received.
18. Events Following Termination
- Upon termination of this Agreement, the SaaS Provider will:
- immediately stop performing the Services;
- immediately stop placing orders for supplies or services required in connection with the performance of the Services; and
- Promptly return to the Customer or destroy all property, including Confidential Information, Intellectual Property and Data in its possession that belongs to the Customer.
- Upon termination of this Agreement, the Customer will immediately:
- cease and desist from any use of the Services;
- return to the SaaS Provider all property, including Confidential Information and Intellectual Property, in its possession that belongs to the SaaS Provider;
- pay the Fees for all Services completed; and
- Where Customer has terminated due to a major failure of the Services as such term is defined under the Indian Consumer Law, the Service Provider will refund the Customer that portion of the Service Fee directly relating to the period of the major failure.
- The expiry or termination of this Agreement for any reason will be without prejudice to any rights or liabilities which have accrued prior to the date of expiry or termination of this Agreement.
- This clause 18 will survive the termination or expiry of this Agreement.
If you have any questions about Term of Use, please contact us at:
Subtlelabs Software Solutions Pvt. Ltd
Second Floor, G-65, Sector 63
Noida UP, 201301
Phone: (0120)- 4182922