2.1 Provision of Services by Arcler Desk. Subject to the terms and conditions of this Agreement, Arcler Desk shall use commercially reasonable efforts to provide you with the Services during the Term provided that you have not exceeded (a) the number of Incidents set forth by the Support Pricing Agreement; or (b) a commercially reasonable number of incidents as determined by Arcler Desk if the Support Pricing Agreement does not specify the maximum number of Incidents. Notwithstanding the foregoing, Arcler Desk may in its sole discretion elect to provide, to not provide or to provide on a limited basis (a) the Services for Complimentary Support;
2.2 Normal Business Hours. Arcler Desk shall use commercially reasonable efforts to provide the Services during Normal Business Hours, except in the event of a Scheduled Service Outage or an Unscheduled Service Outage.
2.3 Scope of Services. Arcler Desk will provide the Services only in connection with Incidents that it determines are related to the Software or any third-party applications included with the Software. Arcler Desk will not provide the Services for Incidents that it determines are related to third-party software not included with the Software, operating systems, hardware or networks unless Arcler Desk determines, on a case-by-case basis and in its sole discretion, that such issues are reasonably related to the Software or any third-party applications included with the Software.
2.4 Web, Email and Telephone Support. Arcler Desk shall use commercially reasonable efforts to provide the Services via its website using the Arcler Desk Customer Portal, or via email communications. One Incident of Telephone Support can involve multiple telephone communications until Arcler Desk closes the Incident. Arcler Desk may on a case-by-case basis and in its sole discretion elect to provide support via telephone free of charge if it deems it necessary to do so in the event of a complicated or time-consuming Incident. Arcler Desk shall provide the Services, and all Incidents shall be submitted, in the English language only.
2.5 Location of Services. Arcler Desk shall use commercially reasonable efforts to provide the Services at any facility it designates for the provision of such Services. The Licensed Server for which a particular Incident is submitted may be located in anywhere in the Territory. Arcler Desk shall not provide the Services “on site.”
2.6 Submission of Incidents.
2.6.1 Arcler Desk Customer Portal. Except for Telephone Support Incidents which must be purchased via the Arcler Desk website, all Incidents must be submitted via the Arcler Desk Customer Portal.
2.6.2 Submission Details. In order for Arcler Desk to provide the Services to you, you must provide all information requested by Arcler Desk with respect to each Incident. If you fail to provide sufficient detail regarding the Incident, Arcler Desk shall not be obligated to provide the Services to you and the limited warranty shall not apply to the Incident.
2.7 Service Levels.
2.7.1 Priority of Support. Arcler Desk will use commercially reasonable efforts prioritize its response to Incidents depending upon the level of support applicable to such Incidents in the following order: Telephone Support, Enterprise Support, Priority Support, Standard Support and Complimentary Support. Notwithstanding the foregoing sentence, Arcler Desk may elect to prioritize its response to a given Incident depending upon the relative severity of the support issues reported in other Incidents pending in the Arcler Desk Customer Portal regardless of the level of support applicable to such Incidents.
2.7.2 Escalation of Incidents. Arcler Desk maintains internal escalation procedures with respect to Incidents. In the event that a Arcler Desk representative is unable to find a resolution to the Incident (assuming a resolution is commercially feasible), Arcler Desk will escalate the Incident in accordance with its internal escalation procedures. Arcler Desk may change its internal escalation system from time to time within its sole discretion.
2.7.3 Support Levels. (Subject to Priority of Support), Arcler Desk will use commercially reasonable efforts to resolve all Incidents as soon as reasonably possible, but does not make any representations or warranties as to the timeliness of the resolution of any Incident. Arcler Desk shall resolve all Incidents subject to resolution of incidents.
2.8 Resolution of Incidents. In the event that Arcler Desk resolves your Incident, or makes a determination that no resolution is commercially feasible, Arcler Desk will provide you notice through the Arcler Desk Customer Portal and close the Incident on such system. Alternatively, Arcler Desk may determine whether a support issue raised in an Incident constitutes a bug in the Software (“Software Bug”) or a request for a new feature (“Feature Request”). If Arcler Desk determines that a support issue raised in an Incident constitutes a Software Bug or a Feature Request, Arcler Desk will close the Incident and determine whether such Software Bug or Feature Request should be forwarded to Arcler Desk’s development team for further consideration and possible correction or inclusion into the Software. Any information, feedback, ideas or suggestions you provide to Arcler Desk with respect to a Software Bug or Feature Request shall be deemed a Submission. Arcler Desk shall in its sole discretion determine: (a) whether an Incident has been resolved; (b) whether a resolution is commercially feasible; (c) whether a support issue raised in an Incident constitutes a Software Bug or Feature Request; and (d) whether or not and when to close an Incident. Arcler Desk keeps the ticket open for 21 days and close the same. Arcler Desk will not provide the Services for closed Incidents. Resolution process of Arcler Desk varies from week to ten days depending on the nature of the issues and the escalation may take a longer time to resolve in exceptional and uncalled issues.
2.9 Support Data. In order to provide the Services to you, Arcler Desk may collect information from you including but not limited to: (a) IP addresses, usernames and passwords necessary to login (b) the usernames and passwords necessary to login into any affected accounts including email accounts, Arcler Desk accounts, and other accounts; and (c) other information that you voluntarily supply or that Arcler Desk requests in order to resolve your Incident ((a) through (c) collectively, “Support Data”). Arcler Desk will use commercially reasonable efforts to preserve the security of the Support Data by using reasonable physical and electronic security measures (except to the extent Arcler Desk is required or permitted to disclose, access or use such information by Applicable Law), but Arcler Desk cannot guarantee the security of such data. To the extent that Applicable Law requires that you obtain any consents, permissions or licenses from third parties (including Third Party Users) or to give any notices or disclaimers to third parties (including Third Party Users) prior your disclosure of Support Data to Arcler Desk, you agree to comply with such Applicable Laws prior your disclosure of Support Data to Arcler Desk.
3. Submissions. With respect to any feedback, suggestions or ideas (“Submissions”) that you submit to Arcler Desk concerning the Software Services, or any of Arcler Desk’s services, you agree that: (a) your Submissions will automatically become the property of Arcler Desk, without any compensation to you; (b) Arcler Desk may use or redistribute the Submissions for any purpose and in any way; (c) Arcler Desk is not obligated to review any Submissions; and (d) Arcler Desk is not obligated to keep any Submissions confidential.
4. Support Fees. As a condition of the provision of the Services by Arcler Desk under this Agreement, you shall pay Arcler Desk the amounts set forth in your Support Pricing Agreement (“Support Fees”) in accordance with the payment terms contained therein. All Support Fees are subject to change at any time.
5. Term and Termination.
5.1 Term. This Agreement shall commence on the Effective Date and shall automatically expire at the end of the Term.
5.2 Termination. Arcler Desk may terminate this Agreement (a) in the event of your breach of this Agreement upon 30 days notice to you if such breach remains uncured after the expiration of the 30 day notice period; (b) immediately without notice in the event of your material breach of this Agreement, in case of any illegal activity undertaken. (i) any breach of Payment; and (ii) any breach of your representations and warranties. and shall give rise to Arcler Desk’s right to terminate as set forth. The foregoing list of material breaches is a nonexclusive list.
6. Representations; Warranties; Disclaimer.
6.1 Mutual Representations. Each party hereto represents and warrants to the other party that: (a) such party has the full right, power and authority to enter into this Agreement on behalf of itself and to undertake to perform the acts required of it hereunder; (b) the execution of this Agreement by such party, and the performance by such party of its obligations and duties to the extent set forth hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; (c) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its representations, warranties, terms and conditions; and (d) such party will comply with all Applicable Laws related to the Services and the performance of its obligations under this Agreement.
6.2 Limited Warranty/Refund. Arcler Desk will use commercially reasonable efforts to resolve any Incident for which you have purchased Telephone Support. If Arcler Desk determines, that it is us unable to resolve the Incident in a commercially feasible manner, Arcler Desk will refund any Support Fees associated solely with the telephone support. Arcler Desk offers 15 days complete money back policies in case of failure to resolve the issue. No refund request will be entertained after the expiry of 30 days of the services.
In cases of subscriptions availed by You, the Arcler Desk shall be refunding the payment within thirty days after subscribing to the subscription and shall in no event release the refund thereafter.
6.3 Disclaimer. EXCEPT AS SET FORTH IN THE LIMITED WARRANTY OF SECTION 6.2, THE SERVICES ARE PROVIDED “AS IS” AND ARCLER DESK HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICES, OR THE ACCURACY, TIMELINESS, COMPLETENESS, OR ADEQUACY OF THE SERVICES AND ANY DATA ACCESSED THEREFROM, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANT-ABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ARCLER DESK DOES NOT WARRANT THAT THE SERVICES ARE OR SHALL BE ERROR-FREE OR WILL BE PROVIDED WITHOUT INTERRUPTION. IF THE SERVICES ARE DEFECTIVE, YOU ASSUME THE SOLE RESPONSIBILITY FOR THE ENTIRE COST OF ALL REPAIR OR INJURY OF ANY KIND, EVEN IF ARCLER DESK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH A DEFECT OR DAMAGES.
6.3.1 NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ARCLER DESK, ITS AFFILIATES OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY.
6.3.2 ARCLER DESK ENSURES THAT THE SERVICES GIVEN THROUGH REMOTE SUPPORT ARE ONLY WITH THE PERMISSION OF THE USER GRANTED FOR A LIMITED TIME AND THE REMOTE SERVICES ARE IN NO MANNER MONITORED OR CONTROLLED BY ARCLER DESK 24/7.
6.3.3 SOME JURISDICTIONS DO NOT ALLOW RESTRICTIONS ON IMPLIED WARRANTIES SO SOME OF THESE LIMITATIONS MAY NOT APPLY TO YOU.
7. Limitation of Liability.
7.1 Lost Profits; Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ARCLER DESK WILL NOT BE LIABLE FOR ANY LOST PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, BUSINESS INTERRUPTION, OR FOR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING, WITHOUT LIMITATION, UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY) EVEN IF ARCLER DESK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2 Total Cumulative Liability; Exclusive Remedy. EXCEPT FOR AMOUNTS OWED BY YOU TO ARCLER DESK, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ARCLER DESK’S AGGREGATE LIABILITY FOR DIRECT DAMAGES, UNDER THIS AGREEMENT (CUMULATIVELY) SHALL BE LIMITED TO THE TOTAL FEES COLLECTED BY ARCLER DESK FOR AN INDIVIDUAL PIECE OF SOFTWARE THAT IS THE SUBJECT OF AN INCIDENT UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT FOR ANY BREACH OF THE LIMITED WARRANTY IN SECTION 6.2 YOUR SOLE AND EXCLUSIVE REMEDY AND ARCLER DESK’S ENTIRE LIABILITY SHALL BE FOR ARCLER DESK TO REFUND THE SUPPORT FEES AS SET FORTH IN THAT SECTION. THE REMEDIES IN THE FOREGOING SENTENCE ARE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE TO YOU FOR BREACH OF EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES.
7.3 ARCLER DESK IS AGAINST ANY ILLEGAL ACTIVITIES AND ANY ILLEGAL ACTIVITY BY ANY CUSTOMER REGARDING IDENTITY THEFT, THREATS TO ARCLER DESK REGARDING ACQISATION OF RUNNING A SCAM OR OF CHARGEBACK INCASE THE REFUND ARE NOT INTIATED ILLEGALLY ETC OR ANY OTHER ACT WHICH VIOLATES THE PROVISIONS OF LAW OR SECURITY OF ARCLER DESK SHALL BE ESCLATED TO THE CONCERNED AUTHORITY AND LEGAL ACTION FOR THE SAME SHALL BE INTIATED BY THE ARCLER DESK.
8. Indemnification. You shall indemnify, defend and hold harmless Arcler Desk and its directors, officers, staff, employees and agents and their respective successors, heirs and assigns and Arcler Desk affiliates (and their its directors, officers, staff, employees and agents and their respective successors, heirs and assigns) (collectively, the “Arcler Desk Parties”) from and against any liability, damage, loss or expense (including reasonable attorneys’ fees and expenses of litigation) incurred by or imposed upon the Arcler Desk Parties or any one of them in connection with any claims, suits, actions, demands or judgments (“Claims”) related directly or indirectly to or arising out of (a) a breach of your representations, warranties or obligations under this Agreement; (x) provide you with prompt notice of any such claim; (y) permit you to assume and control the defense of such action upon your written notice to Arcler Desk of your intention to indemnify; and (z) upon your written request, and at no expense to Arcler Desk or its affiliates, provide to you all available information and assistance reasonably necessary for you to defend such claim. You will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to the Arcler Desk Parties, without Arcler Desk’s prior written consent, which will not unreasonably be withheld. You will pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys’ fees and costs awarded against or otherwise incurred by Arcler Desk or its affiliates in connection with or arising from any such claim.
9.1 Force Majeure. No party will be liable for any failure or delay in performance of any of its obligations hereunder if such delay is due to acts of God, fires, flood, storm, explosions, earthquakes, general Internet outages, acts of war or terrorism, riots, insurrection or intervention of any government or authority; provided, however, that any such delay or failure will be remedied by such party as soon as reasonably possible. Upon the occurrence of a force majeure event, the party unable to perform will, if and as soon as possible, provide written notice to the other parties indicating that a force majeure event occurred and detailing how such force majeure event impacts the performance of its obligations.
9.2 Independent Contractors. It is the intention of the parties that Arcler Desk and you are, and will be deemed to be, independent contractors with respect to the subject matter of this Agreement, and nothing contained in this Agreement will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary or other similar relationship between Arcler Desk and you.
9.3 Choice of Law; Venue; Jurisdiction. This Agreement will be governed by and interpreted in accordance with the laws of the State of Haryana, India without regard to the conflicts of laws principles thereof. Any dispute or claim arising out of or in connection with the Agreement shall be finally settled and exclusively by the state of Haryana, India.
Negotiation/Mediation: In the event of a dispute, the Parties agree to work towards a resolution through good faith negotiation.
Arbitration:- In case of a dispute between the Parties relating to or arising out of this Agreement, the Parties shall first attempt to resolve the dispute personally and in good faith. If these personal resolution attempts fail, the Parties shall then submit the dispute to binding arbitration. The arbitration shall be conducted in Haryana, India. The arbitration shall be conducted by a single arbitrator mutually appointed by the parties or as per the prevailing law and such arbitrator shall have no authority to add Parties, vary the provisions of this Agreement, or award punitive damages. The arbitrator shall be bound by applicable and governing laws as well as the law of state of Haryana. Each Party shall pay their own costs and fees, the language of the arbitration shall be English. The Parties, in agreement with this sub-part of this Agreement, waive any rights they may have to a jury trial in regard to arbitral claims.
Litigation: The parties have cordial relations but if litigation arises after making attempts for mediation, negotiation, arbitration then it will be interpreted based on the laws of the State of Haryana, India. Regardless of any conflict of law issues that may arises. The Parties agree that the dispute will be resolved at a court of competent jurisdiction in the State of State of Haryana, India.
Attorney’s Fees: The prevailing party, also known as the “winner”, will be able to recover its attorney’s fees and other reasonable costs for a dispute resolved by binding litigation.
9.4 Entire Agreement. This Agreement, together with all Exhibits hereto, represents the entire agreement between the parties with respect to the subject matter hereof and thereof and will supersede all prior agreements and communications of the parties, oral or written.
9.5 Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
9.7 Amendment or Modification. This Agreement may not be amended, modified or supplemented by the parties in any manner, except by an instrument in writing signed by Arcler Desk and you.
9.8 Assignment. This Agreement may not be assigned, transferred, delegated, sold or otherwise disposed of, including without limitation by operation of law, other than as expressly set forth in this Section 9.8. This Agreement may be assigned, transferred, delegated, sold or otherwise disposed of in its entirety: by Arcler Desk in its sole discretion. In addition, Arcler Desk may delegate its performance under this Agreement in whole or in part to one or more affiliates, provided that Arcler Desk will remain liable and responsible for any performance or obligation so delegated. A party’s permitted successors or assignees must agree as a condition precedent to any assignment, transfer or delegation to fully perform all applicable terms and conditions of this Agreement. No party may assign this Agreement to any entity that lacks sufficient assets and resources to continue to perform, to contractually required standards, all assigned obligations for the remainder of the Term. This Agreement will be binding upon and will inure to the benefit of a party’s permitted successors and assigns. Any purported assignment, transfer, delegation, sale or other disposition in contravention of this Section 9.8, including without limitation by operation of law, is null and void.
9.10 Remedies Cumulative. Except as expressly set forth herein, no remedy conferred upon the parties by this Agreement is intended to be exclusive of any other remedy, and each and every such remedy will be cumulative and will be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
9.11 No Third Party Beneficiaries. This Agreement is made for the benefit of the parties only, and this Agreement is not for the benefit of, and was not created for the benefit of, any third parties including, without limitation, any Third Party Users.
9.12 Notices. All notices or questions relating to this Agreement shall be directed to: Team IHA LLP, Level 18 DLF Centre Building No. 5, Tower A, Phase 3 Gurgaon – 122002. Any notice required to be given under this Agreement shall be deemed given by Arcler Desk when sent to you by email, telephone, fax or mail to the contact information supplied by you to Arcler Desk in the Support Pricing Agreement or the Partner NOC Agreement. You may update such information from time to time upon written notice to Arcler Desk at the address in this Section 9.12. Any failure by you to provide Arcler Desk with updated contact information will not invalidate the effectiveness of any notice sent by Arcler Desk to the contact information previously supplied by you.