Seldesk Enterprise Subscription Agreement (Terms and conditions)

1. Definitions

• User: Any active user account with access to the Software in creation / edit mode. Deactivated user accounts and accounts used by external people who has limited access to the Software through the portal facilities (known as "portal Users") are not counted as Users.

  Customer using the website who are Minor /under the age of 18 shall not register as the User of the website.

• App: An “App” is a specialized group of features available for installation in the Software.

• Subscription Plan: A Subscription Plan defines a set of Apps, features and hosting solutions covered by this Agreement, and is defined in writing at the conclusion of this Agreement.

• SELDESK Partner: An SELDESK Partner is a third-party company or individual listed in our partners lists, chosen by the You, and working with You for SELDESK related services. You can decide at any time to work with a different SELDESK Partner, or to work with SELDESK directly (subject to prior notice).

• Extra Module: An extra module may have been developed by ZELENIUM / by an SELDESK Partner on behalf of the you, or by third parties.

• Bug: Bug Is considered as any failure of the Software or of a Covered Extra Module that results in a complete stop, error traceback or security breach, and is not directly caused by a defective installation or configuration. Non-compliance with specifications or requirements will be considered as Bugs at the discretion of SELDESK (typically, when the Software does not produce the results or performance it was designed to produce, or when a country-specific feature does not meet legal accounting requirements anymore).

• Covered Versions: Unless specified otherwise, the Services/ subscriptions provided under this Agreement are applicable only to the Covered Versions of the Software, which include the 2 most recently released major versions with its built updates.

• Term of the Agreement: The duration of this Agreement (the “Term”) shall be selected on start of SELDESK Service. It is automatically renewed for an equal Term, unless either party provides a written notice of termination minimum 30 days before the end of the Term to the other party.

• Acceptance of the Agreement: If you are accepting this Agreement on behalf of a company or a legal entity, you represent that you have the legal authority to bind the company or the legal entity to this Agreement. You must be of legal age to enter into a binding agreement in order to accept the Agreement. You can accept the Agreement by checking a checkbox or clicking on a button indicating your acceptance of the Agreement or by actually availing SELDESK Services.

• Acceptance of the Agreement: Upon expiration or termination of this Agreement, this license is cancelled immediately and the Customer agrees to stop using the Seldesk Enterprise Edition software and the Cloud Platform.

2. SERVICES

2.1. Free Trial

When you select to register for a free trial of one or more Services, SELDESK will make the applicable Services available to you on a trial basis free of charge. The following any of the actions will terminate the service (i) termination by SELDESK in its sole discretion (ii) the start date of the paid subscription period for the applicable Services, or (iii). the end of the free trial period of the applicable Services (unless terminated earlier by you). Upon termination any data that you enter into the Services, and any customizations made to the Services during the free trial will be permanently lost. Notwithstanding anything contained in this Section, Services are offered as-is during the free trial, without any warranty, covenant, support or liability whatsoever, to the extent permitted by law.

2.2 Security Updates Service

Cloud Platform

Seldesk commits to apply the security remedies for any security Bug discovered in a version of the Software hosted on the Cloud Platform, on all systems under its control.

2.3 Upgrade Services

Upgrade requests can be submitted directly from the control panel of the Cloud Platform and does not require any data upload.

2.4 Cloud Hosting Services

For the duration of this Agreement, when the Customer chooses to use the Cloud Platform, Seldesk commits to provide at least the following services:

• Choice of multiple hosting regions (minimum 3: India, Singapore and UK)

• Hosting in Tier-III data centers or equivalent with 99.9% network uptime

• Grade A SSL (HTTPS) Encryption

• Fully automated verified backups replicated in multiple regions

• Disaster Recovery Plan tested regularly

2.5 Support Services

For the duration of this Agreement, the Customer may open support tickets depending on the selected Support plan exclusively for questions regarding guidance with respect to the use of the standard features of the Software and Services (functionalities, intended use, configuration, troubleshooting).
https://www.seldesk.com/customer-support.html.

2.6. Subscription to Beta Service

We may offer certain Services as closed or open beta services ("Beta Service" or “Beta Services”) for the purpose of testing and evaluation. You agree that we have the sole authority and discretion to determine the period of time for testing and evaluation of Beta Services. You will be under no obligation to acquire a subscription to use any paid Service as a result of your subscription to any Beta Service. We reserve the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently any of the Beta Services with or without notice to you. You agree that Seldesk will not be liable to you or to any third party for any harm related to, arising out of, or caused by the modification, suspension or discontinuance of any of the Beta Services for any reason.

2.7. Delivery Policy

• Software is on subscription basis and delivery is online

• We will not trade with or provide any services to OFAC and sanctioned countries

3. Sign up Conditions of Services

3.1 Your Relationship with SELDESK

By Registering / login SELDESK, you understand that, (i) SELDESK does not engage in the practice of offering legal, financial, accounting or any other professional advice; (ii) services offered through SELDESK can neither constitute nor be treated as a substitute for any professional advice; and (iii) your use of SELDESK Services does not exempt you from your independent obligation to comply with applicable laws and regulations. By offering SELDESK Services, (i) no professional relationship is created with SELDESK; (ii) no representations or warranties, express or implied, are given regarding the legal or other consequences resulting from your use of SELDESK Services; and (iii) SELDESK does not provide any legal advice, explanation, opinion or recommendation about your possible legal rights, remedies, defences, options, selection of forums or strategies.

Independent Contractors. The relationship between You and SELDESK is that of independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, employment or any such similar relationship between You and SELDESK.

3.2. User Sign up Obligations

To start SELDESK You need to sign up for a user account by providing all required information in order to access or use the Services. If you represent an organization and wish to use the Services for corporate internal use, we recommend that you, and all other users from your organization, sign up for user accounts by providing your corporate contact information. In particular, we recommend that you use your corporate email address.

3.3. You agree to:

• Provide true, accurate, current and complete information about yourself as prompted by the sign-up process

• maintain and promptly update the information provided during sign up to keep it true, accurate, current, and complete. If you provide any information that is untrue, inaccurate, outdated, or incomplete, or if SELDESK has reasonable grounds to suspect that such information is untrue, inaccurate, outdated, or incomplete, SELDESK may terminate your user account and refuse current or future use of any or all of the Services.

• appoint 1 dedicated contact person for the entire duration of the Agreement;

• provide written notice to SELDESK 30 days before changing their main point of contact to work with another SELDESK Partner, or to work with SELDESK directly.

• pay SELDESK any applicable charges for the Services of the present Agreement, in accordance with the payment conditions specified in this contract

• immediately notify SELDESK when their actual number of Users exceeds the number specified at the conclusion of the Agreement, and in this event, pay the applicable additional fee as described in section Standard charges

• take all measures necessary to guarantee the unmodified execution of the part of the Software that verifies the validity of the SELDESK Edition usage, as described in Access to the Software

• You agree that when you choose the Cloud Platform from SELDESK: i) take all reasonable measures to keep your user accounts secure, including by choosing a strong password and not sharing it with anyone else; ii) make a reasonable use of the Hosting Services, to the exclusion of any illegal or abusive activities, and strictly observe the rules outlined in the Acceptable Use Policy published at
  https://www.seldesk.com/policy-acceptable-use.html.

• When you select to choose your own Self-Hosting option, you further agree to: i) You agree that you will Take all reasonable measures to protect your files and databases and to ensure your data is safe and secure, acknowledging that SELDESK cannot be held liable for any data loss; ii) grant SELDESK the necessary access to verify the validity of the SELDESK Enterprise Edition usage upon request (e.g., if the automatic validation is found to be inoperant from you).

4 Charges and Fees

4.1. Fees and Payments

• (a) We will invoice the Subscription Fees annually / monthly in advance; and (b) unless otherwise agreed upon in the Order, all payments are due in full without deduction or set-off within 30 (thirty) days of the date of Our invoice.

• The Subscription Fees are non-refundable and do not include Taxes and You are responsible for all Taxes.

• Without prejudice to any other rights We may have, if We have not received payment for any overdue invoice, We shall be entitled to (a) by giving You thirty (30) days’ prior written notice and without liability to You, disable Your password, Cloud Services Agreement and account and access to all or part of the SELDESK Service and We shall be under no obligation to provide any or all of the SELDESK Service while any such invoice remains unpaid; and/or (b) suspend Professional Services until all payments due have been made in full.

• Without prejudice to any other rights We may have, if We have not received payment for any overdue invoices, we may charge You interest at the rate of 1% per month or lesser if such amount is required by applicable law on any overdue sums from the due date until the date of receipt of payment by Us (inclusive).

• We shall be entitled to adjust the Subscription Fees with effect from Your next Renewal Term. Where We increase the Subscription Fees, such increase shall not exceed 7%. Unless otherwise agreed between You and Us, if You are renewing directly with SELDESK. If a Subscription originally purchased through an Authorized Reseller, then the Subscription Fees for Your initial Renewal Term will be informed by an Authorized Reseller.

• If Your Subscription is purchased through an Authorized Reseller, we may, upon written notice, suspend Your right to use the Subscription in the event We fail to receive payment for such Subscription or We confirm that You have not paid the Authorized Reseller for such Subscription.

Payment for SELDESK Services can be made through Credit Card, Bank Transfer or other online payment methods supported by SELDESK. Certain payment methods may require additional authentication such as one time password (OTP) and you will be required to provide such authentication for successful completion of the payment transaction. For those SELDESK Start Services for which payment is recurrent in nature, the services will be automatically renewed at the end of the applicable payment cycle unless you inform us that you do not wish to continue using our services. At the time of automatic renewal, the service fee will be charged to the payment method last used by you. If there is a failure of renewal transaction due to any reason whatsoever, SELDESK will promptly notify you and will subsequently send a few reminders to remind you about your payment obligation. You will not be entitled for refund of fees that has already been used up in connection with provisioning of SELDESK Start Services.

4.2. Taxes

In the event any tax such as GST, VAT, sales tax or the like is chargeable by SELDESK in accordance with any local, state, provincial or foreign laws with respect to the SELDESK Start Services that you avail ("Taxes"), SELDESK will invoice you for such Taxes. You agree to pay SELDESK such Taxes in addition to the subscription fees. SELDESK shall provide you with an invoice in the format prescribed by the applicable local, state, provincial or foreign laws which may be used by you to avail the applicable input tax credit for the Taxes so paid.

4.3. Renewal charges

When you selected to renewal as covered in section Term of the Agreement, if the charges applied during the previous Term are lower than the most current applicable list price, these charges will increase by up to 7 %. Unless otherwise agreed between You and Us, if You are renewing directly with SELDESK. A Subscription originally purchased through an Authorized Reseller, then the Subscription Fees for Your initial Renewal Term will inform by our Authorised Resellers.

5 Data and applications

5.1.Third Party Applications

SELDESK Services integrate with many third-party applications (hereinafter "Third Party Application(s)"). You are responsible for reading and understanding the Third-Party Terms before accessing or using any Third-Party Application. You acknowledge and agree that SELDESK is not liable for any Third-Party Applications. Access and use of the Third-Party Applications may require acceptance of terms of service and privacy policies applicable to such Third-Party Applications (hereinafter "Third Party Terms"). You acknowledge and agree that SELDESK may, at any time and in our sole discretion, and without any notice to you, suspend, restrict or disable access to or remove from SELDESK Services, any Third-Party Application, without any liability to you, including without limitation for any loss of profits, revenue, data, goodwill or other intangible losses.

5.2 Data Ownership

As SELDESK SERVICES we respect your right to ownership of content created or stored by you. You own the content created or stored by you. Unless specifically permitted by you, your use of the Services does not grant SELDESK the license to use, reproduce, adapt, modify, publish or distribute the content created by you or stored in your user account for SELDESK commercial, marketing or any similar purpose. But you grant to SELDESK permission to access, copy, distribute, store, transmit, reformat, publicly display and publicly perform the content of your user account solely as required for the purpose of providing the Services to you.

6 Property Rights

6.1. Intellectual Property Rights.

In case of Downloading any Installations computer codes / SELDESK START Services is licensed not sold. The Software, all copies of the Software, related contents, and all rights therein, are owned by ZELENIUM or its suppliers and are protected by applicable copyright laws of INDIA and international treaty or provisions. Rights to access or use Software on a device do not give Licensee any right to implement ZELENIUM patents or other ZELENIUM intellectual property in the device itself or in any other software or devices.

ZELENIUM owns the copyright or an equivalent on 100% of the code of the Software, and confirms that all the software libraries required to use the Software are available under a licence compatible with the licence of the Software.

All intellectual property rights in, title to or ownership of the Licensed Software and the services delivered by shall at all times remain with ZELENIUM The licensee cannot claim any of the Intellectual property rights.

6.2. Trade Mark.

'SELDESK', SELDESK logo, the names of individual Services and their logos are trademarks of ZELENIUM . You agree not to display or use, in any manner, the SELDESK trademarks, without prior permission.

7 Suspension and Termination

You understand and agree that, we may suspend your user account or temporarily disable access to whole or part of any Service as follows:

• In the event of any suspected illegal activity, extended periods of inactivity or requests by law enforcement or other government agencies. Objections to suspension or disabling of user accounts should be made to legal@zeleniumglobal.com within thirty days of being notified about the suspension. We may terminate a suspended or disabled user account after thirty days. We will also terminate your user account on your request.

• In addition, we reserve the right to terminate your user account and deny the Services upon reasonable belief that you have violated the Agreement and to terminate your access to any Beta Service in case of unexpected technical issues or discontinuation of the Beta Service. You have the right to terminate your user account if SELDESK breaches its obligations under this Agreement and in such event, you will be entitled to prorated refund of any prepaid fees. Termination of user account will include denial of access to all Services, deletion of information in your user account such as your email address and password and deletion of all data in your user account.

• In the event that either Party fails to fulfil any of its obligations arising herein, and if such breach has not been remedied within 30 calendar days from the written notice of such breach, this Agreement may be terminated immediately by any Party.

• Further, SELDESK may terminate the Agreement immediately in the event the Customer fails to pay the applicable fees for the Services within 21 days following the due date specified on the corresponding invoice, and after minimum 3 reminders.

• This Licensed program may be terminated automatically any party: Becomes insolvent, files a petition in bankruptcy, and makes an assignment for the benefit of its creditors.

• Upon termination or expiration of an Order / Subscription, you shall immediately cease any and all use of and access to the applicable Service and any Non-SELDESK Application, and destroy (or at Our request return) any of Our Confidential Information related thereto. Except where an exclusive remedy is specified in the Agreement, the exercise by either party of any remedy under the Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.

• Surviving Provisions: The sections “Confidentiality”, “Section 18 of This agreement: (Disclaimers)” , “Section 19 of This agreement:(Limitation of Liability)” , “Section 10 of This agreement: (General)” will survive any termination or expiration of this Agreement.

8 Communications /Complaints

8.1.Communications from SELDESK

SELDESK Services may include certain communications from SELDESK, such as service announcements, administrative messages and newsletters. You understand that these communications shall be considered part of using SELDESK Services. As part of our policy to provide you total privacy, we also provide you the option of opting out from receiving newsletters from us. However, you will not be able to opt-out from receiving service announcements and administrative messages.

8.2. Complaints

If we receive a complaint from any person, or any government or regulatory authorities with respect to your activities as part of use of SELDESK Services, we will Inform you the complaint to the primary email address of your user account. You must respond to the complainant or the concerned authorities directly within the required days mentioned in the email /notice or within such other time period stipulated in the notice tendered by the concerned authorities, and copy SELDESK in the communication. If you do not respond to the complainant or the concerned authority within the required days mentioned in the notice from the date of our email to you or within time period stipulated in the complaint notice, we may disclose your name and contact information to the complainant or the concerned authority for enabling the complainant or the concerned authority to take legal action against you.

9.Warranties/ Disclaimers/ Liability

9.1 Warranty

SELDESK does not warrant that the functions contained In SELDESK START Services / downloaded / using a licence will you’re your complete requirements or that the operation of the SELDESK START Services will be uninterrupted or error free.

We do not warrant:

• Against problems caused by Your use of the SELDESK Service with any third-party software, misuse, improper testing, unauthorized attempts to repair, modifications or customizations to the SELDESK Service by You or any other cause beyond the range of the intended use of the SELDESK Service.

• Against any Malware, data breaches and data losses which could not have been avoided by adequate, state-of-the art security in accordance with Our then-current security infrastructure.

• That the SELDESK Service will achieve Your intended results, nor that the SELDESK Service has been developed to meet Your individual requirements.

Warranty Disclaimers: Except as expressly provided herein, neither party makes any warranty of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement, to the maximum extent permitted by applicable law. SELDESK Services does not warrant that the Software complies with any local or international law or regulations.

9.2. Disclaimer

YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE USE OF SELDESK SERVICES IS AT YOUR SOLE RISK. SELDESK SERVICES ARE PROVIDED ON AN AS-IS-AND-AS-AVAILABLE BASIS. SELDESK EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SELDESK MAKES NO WARRANTY THAT SELDESK SERVICES WILL MEET YOUR REQUIREMENTS AND WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. USE OF ANY MATERIAL DOWNLOADED OR OBTAINED THROUGH THE USE OF SELDESK START SERVICES SHALL BE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE TELEPHONE, WIRELESS DEVICE OR DATA THAT RESULTS FROM THE USE OF SELDESK START SERVICES OR THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED BY YOU FROM SELDESK, ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.

9.3. Limitation of Liability

YOU AGREE THAT ZELENIUM AND ITS AFFILIATES SHALL, IN NO EVENT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER LOSS OR DAMAGE WHATSOEVER OR FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOST OR CORRUPTED DATA OR OTHER LOSS ARISING OUT OF OR CAUSED BY YOUR USE OF OR INABILITY TO USE SELDESK SERVICES, EVEN IF SELDESK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL SELDESK’S ENTIRE LIABILITY TO YOU IN RESPECT OF ANY SELDESK SERVICE, WHETHER DIRECT OR INDIRECT, EXCEED ONE HUNDRED DOLLARS ($100) OR THE FEES PAID BY YOU DURING THE TWELVE (12) MONTHS TOWARDS THAT PARTICULAR SELDESK START SERVICE IN CONNECTION WITH WHICH A CLAIM HAS ARISEN, WHICHEVER IS HIGHER.

9.4. Indemnification

You agree to indemnify and hold harmless SELDESK, its officers, directors, employees, suppliers, and affiliates, from and against any losses, damages, fines and expenses (including attorney's fees and costs) arising out of or relating to any claims that you have used SELDESK Services in violation of another party's rights, in violation of any law, in violations of any provisions of the Agreement, or any other claim related to your use of SELDESK Services, except where such use is authorized by SELDESK.

9.5. Force Majeure

SELDESK will not be liable to you or any third party for any delay or failure to perform any obligations under this Agreement, when and to the extent such delay or failure is caused by or results from acts beyond SELDESK's reasonable control, including but not limited to acts of God; acts of war, hostility or sabotage; pandemic; strikes, lock-outs or other industrial disputes; acts of government; electrical, internet, or telecommunication outage that is not caused by SELDESK; and natural disasters or extreme weather conditions (each a "Force Majeure Event"). SELDESK shall use reasonable efforts to mitigate against the effects of such Force Majeure Event. SELDESK shall notify you as soon as reasonably practicable about the Force Majeure Event and shall provide you with a good faith estimate of time to restore SELDESK Start Services. If the effects of the Force Majeure Event continue for more than 30 days, you may terminate this Agreement upon prior written notice to SELDESK.

10 General Provisions

10.1. Governing Law and Jurisdiction

This Agreement shall be governed by and construed strictly in accordance with the laws of the State of India (excluding the rules governing conflict of laws). Any dispute arising out of or resulting from this Agreement shall be subject to the exclusive jurisdiction of courts in Bengaluru, India to the exclusion of all other courts.

10.2. Modification of Terms of Service

We may modify this Agreement upon notice to you at any time through a service announcement or by sending email to your primary email address. If we make significant changes to the Agreement that affect your rights, you will be provided with at least 30 days advance notice of the changes by email to your primary email address. You may terminate your use of SELDESK Services by providing SELDESK notice by email within 30 days of being notified of the availability of the modified Agreement if the Agreement is modified in a manner that substantially affects your rights in connection with use of SELDESK Start Services. Your continued use of SELDESK Services after the effective date of any change to the Agreement will be deemed to be your agreement to the modified Agreement.