SUBSCRIPTION/CONTRACT AGREEMENT
Each of the Company (momentPay) and the Customer (Client - which would include their successors or permitted assignees) shall be hereinafter collectively referred to as “Parties” and individually as “Party”.
WHEREAS the Company is the owner of “momentPay" a product which is a Payment Orchestration automation application sold to customer “Subscription Model” (hereinafter referred to as “Service”) through an online proprietary technology platform;
AND WHEREAS the Customer has reviewed the services offered by the Company and has expressed its desire and interest in availing the same;
AND WHEREAS the Parties have discussed the terms and conditions and have thought it expedient to set out the same in writing as hereinafter appearing.
NOW IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:
1. Definitions. For purposes of this Agreement:
1.1. Affiliate means an entity controlling, controlled by or under common control with a Party;
1.2. Agreement means this agreement, the Annexures attached herewith, the Terms of Use and any other documents included by reference, as may be amended from time to time in accordance with the terms of this Agreement;
1.3. Customer Data or Client Data means any data that Customer loads or enters into the Website and all results from processing such data, including compilations;
1.4. Documentation shall mean the user's guide, compilation instructions, and requirements including documents, manuals and computer-readable files, regarding the installation, use, operation, functionality, troubleshooting, specifications and other technical information, being hosted online, sufficient for the purpose of usage of the Services;
1.5. End-User means an individual who uses the Services for immediate or near-immediate consumption, and not for resale or redistribution to others;
1.6. Excluded Events means Scheduled Downtime and Force Majeure Events;
1.7. Force Majeure Event means any and all events beyond Company's direct fault and control including, without limitation, acts of God, strikes, lockouts, riots, war, terrorism or other civil disturbance, earthquakes, weather, fires, explosions, disruptions of communications and other essential services, labor stoppages, computer viruses and malicious attacks;
1.8. Generally Available means the service that is released generally to un-Affiliated commercial customers. Limited beta and pre-release versions are not Generally Available; For the sake of clarity, it means the Services shall be substantially available for use by the Customer;
1.9. Intellectual Property Rights mean any copyright, trademark, patent, trade secret or data privacy right of any person valid under any national law or in any applicable local jurisdiction;
1.10. Order Form/Sales proposal/contract agreement means the Order Form/Sales proposal/contract agreement for Customer's initial subscription to the Services substantially in the format set out in Annexure A and shall also include any further Order Form/Sales proposal/contract agreements that may be executed by the Customer for additional and/or revised Services;
1.11. Personnel mean employees of the Customer;
1.12. Response Time means the time it takes the Company's server to transmit the first data packet in response to a query received from the Customer's computer, as measured in milliseconds by Company's systems;
1.13. Scheduled Downtime means downtime that is scheduled by the Company with at least twelve (12) hours notice to Customer, not to exceed six (6) Scheduled Downtime events per month. Company will try to avoid scheduling downtime during normal work hours or peak usage hours for the Service;
1.14. Service Availability is calculated as follows:
(Total Minutes - Unscheduled Downtime - Excluded Events) / (Total Minutes - Excluded Events) x 100;
1.15. Services means the defined in Annexure -B and associated Documentation specified in the Order Form/Sales proposal/contract agreement and The Services would be provided through a web-based platform enabling the individual Users to complete the integrated payment.
1.16. Software means the “momentPay” software and associated Documentation specified in and accessed at the Website;
1.17. Subscription or contract Period means the period during which Customer may use particular features of the Service, commencing with the Start Date and expiring on the End Date specified in the applicable Order Form/Sales proposal/contract agreement;
1.18. Terms of Use shall mean the General Terms and Conditions provided on the Website momentpay.in;
1.19. Total Minutes means the total minutes in each full calendar month of operation by the Company. A partial month at the beginning or end of a Subscription Period shall not be counted or subject to the Service Level Commitment as set out in Clause2.1.6;
1.20. User means Personnel who use the Service through User IDs issued under this Agreement;
1.21. “User Account” or “User Id” shall mean the online account maintained by the User at the Website to avail of the Services;
1.22. Virus shall mean anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices;
1.23. Website shall mean deployed application URL or such other URL as the Company may specify from time to time; and
1.24. Website Disclaimer Policy shall mean the policy of the Website annexed https://momentpay.in/legals/.
2. Services.
2.1. The Company shall, during the Term (as defined in Clause 7), provide the Services to the Customer on and subject to the terms of this Agreement.
2.1.1. Subscribing to the Service. Customer will subscribe to the Services under one or more Order Form/Sales proposal/contract agreements specifying the Services it wishes to avail and the Subscription Period. Order Form/Sales proposal/contract agreements may be executed manually by the Parties or submitted electronically through Website. In the event of any conflict between this Agreement and an Order Form/Sales proposal/contract agreement, the Order Form/Sales proposal/contract agreement shall control the terms related to features and rates and this Agreement shall govern all other issues.
2.1.2. Initial Service. The customer is entering into an initial Order Form/Sales proposal/contract agreement upon execution of this Agreement. Company will provide the Service described in the initial Order Form/Sales proposal/contract agreement to Customer for the Subscription Period specified therein according to such Order Form/Sales proposal/contract agreement and this Agreement.
2.1.3. Additional Service. Additional Order Form/Sales proposal/contract agreements may be entered into by the Parties to subscribe to additional or different features of the Service. Unless designated as replacing a specific outstanding Order Form/Sales proposal/contract agreement, a new Order Form/Sales proposal/contract agreement will be considered in addition to currently outstanding Order Form/Sales proposal/contract agreements.
2.1.4. Access to Service. The Customer can gain access to the Services using a standard Web Browser like Internet Explorer, Mozilla Firefox, Google Chrome, Safari etc. over the internet. Access can be gained by visiting the Website. The Company will make available the Services to the Customer by setting up an account for the Customer on the Website, and providing to the Customer, User Ids following the execution of the Order Form/Sales proposal/contract agreement by the Customer for the purpose of enabling the Customer to avail the Services on the Website.
2.1.5. Hardware. The hardware required to provide the Services will be located in a data center which have facilities like Multiple Carrier’ link to the Internet, Backup Power Supplies, Climate Controlled Air Conditioning, Raised Floors for Cabling and Electronic Security Systems.
2.1.6. Service Level Commitment. Company promises Customer that the Service will be generally available at least 98.0% of the time during each calendar month, except for Excluded Events ("Commitment").
2.2. The Company shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
2.2.1. planned maintenance carried out during the maintenance schedule from time to time ; and
2.2.2. Unscheduled maintenance performed outside normal business hours, provided that the Company has used reasonable endeavours to give the Customer notice in advance.
3. Grant of License.
3.1. Subject to the limitations set out in this Agreement and the obligations set out in Clauses 4 and 6 of this Agreement, the Company hereby grants to the Customer a non-exclusive non-transferable, revocable licence to use the Software for the permitted purpose of accessing the Services on the Website in accordance with this Agreement and the Order Form/Sales proposal/contract agreement(s) during the Term.
