Master Software As a Services (SaaS) Agreement
MASTER SOFTWARE AS A SERVICES (SaaS) AGREEMENT
Last updated on January 12, 2023 – 12:42:00 PM THIS SOFTWARE AS A SERVICES AGREEMENT GOVERNS THE CUSTOMER’S USE AND AVAILMENT OF SERVICES PROVIDED BY DEFMACRO SOFTWARE PRIVATE LIMITED (HEREINAFTER INNOVATE.SA). IT CONSTITUTES A BINDING AGREEMENT BETWEEN INNOVATE.SA AND THE CUSTOMER.
BY (1) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT OR (2) CLICKING A BOX INDICATING ACCEPTANCE OF THIS AGREEMENT OR (3) USING THE SERVICES, THE CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND SHALL NOT USE THE SERVICES.
1. DEFINITIONS
1.1 “Affiliate” shall mean, in relation to any person:
i. if that person is an individual, any person who is a relative of such person; and
ii. if that person (the “Subject Person”) is other than a natural person, any other person that, either directly or indirectly through one or more intermediate persons, controls, is controlled by or is under common control with the Subject Person. “Control” means the power to direct the management or policies of a person directly or indirectly, whether through the ownership of over fifty percent (50%) of the voting power of such person, or through the power to appoint over half of the members of the board of directors or similar governing body of such person or through any other arrangements.
And the words “Controls” or “Controlled by” or “Controlling” shall be construed accordingly.
1.2 “Agreement” means this Master Software as a Services Agreement, any Order Form, addenda, exhibits and supplements thereto.
1.3 “Applicable Law” means any law, statute, rule, regulation, order, circular, decree, directive, judgement, decision or other similar mandate of any applicable central, national, state or local governmental authority having competent jurisdiction over, or application to a party or subject matter in question.
1.4 “Customer Data” means any content, materials, documents, data and information submitted by or for the Customer including any data generated, derived, processed, stored or transmitted thereof.
1.5 “Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates). It includes users of the Services.
1.6 “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
1.7 “Non-Innovate.sa Application” means a web-based, mobile, offline or other software application functionality that interoperates with a Service, that is provided by the Customer or a third party.
1.8 “Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between the Customer and Innovate.sa, including any addenda, exhibits and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. For the instances where the Customer avails the Services of Innovate.sa through a Reseller, Order form shall deem to mean a document entered into between a Reseller and Innovate.sa specifying the Services to be provided by Innovate.sa and the charges payable by the Reseller.
1.9 “Technical Services” means migration, implementation, integration, training, or consulting services made available by Innovate.sa under applicable Order Form
1.10 “Reseller/Distributor” means a third party authorised by Innovate.sa in writing to sell Services.
1.11 “Services” means software services and Technical Services and exclude any Non-Innovate.sa Applications.
1.12 “Software” means Innovate.sa’s proprietary software including but not limited to Innovate.sa E-Invoicing software, as provided by Innovate.sa to the Customer pursuant to the Order Form.
1.13 “Software as a Services” or “SaaS Services” means any software services provided by Innovate.sa to the Customer including the access rights and rights to use and access the Software and related support made available by Innovate.sa to the Customer under applicable Order Form.
2. INNOVATE.SA’S RESPONSIBILITIES
2.1. Provision of Subscription Services. Subject to terms of this Agreement and payment of the charges, Innovate.sa will (a) make the Software as a Services available to the Customer pursuant to the applicable Order Form (b) provide applicable Innovate.sa standard support for the Software as a Services to the Customer.
2.2. Protection of Customer Data. Innovate.sa will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data to prevent unauthorized access to Customer Data.
3. USE OF SOFTWARE SERVICES
3.1. Subject to the terms of this Agreement and payment of charges, Innovate.sa grants the Customer, a limited, non-exclusive, non-transferable right to access the Software of Innovate.sa. Software Services and access to use the Innovate.sa software are granted for the term stated in the applicable Order Form.
3.2. Usage Limits. Software Services are subject to usage limits specified in Order Forms. If the Customer exceeds a contractual usage limit or if the Customer uses the Software Services beyond the term of the Order Form and, or this Agreement, the Customer will execute an Order Form for additional quantities of the applicable Software Services promptly upon Innovate.sa’s request, and/or pay additional amounts for excess usage in accordance with the “Invoicing and Payment” section below, regardless of whether such excess usage is beyond the term of the Order Form and/or this Agreement. For instances where the Customer has availed the Services through a Reseller, Reseller shall request for additional usage rights for use of the Software Services and pay applicable charges as agreed between Reseller and Innovate.sa.
3.3. Customer Responsibilities. The Customer shall (a) be responsible for compliance with this Agreement and Order Forms, (b) be responsible for the accuracy, quality and legality of the Customer Data, the means by which the Customer acquired the Customer Data, the Customer’s use of the Customer Data with the Services, and the interoperation of any Non-Innovate.sa Applications with which the Customer uses Software Services, (c) prevent unauthorized access to or use of Software Services and notify Innovate.sa promptly of any such unauthorized access or use and (d) be responsible for all activities that occur under its usernames, passwords or accounts or as a result of the Customer’s access to the Services and agrees that Innovate.sa is not responsible for any harm caused by users, including individuals who were not authorized to have access to the Services but who were able to gain access from the Customer’s user credentials.
3.4. Customer’s Responsibility Towards Zakat, Tax and Customs Authority (ZATCA) Compliance: The Customer shall (a) be solely responsible and liable for all statutory, regulatory and tax compliances in relation to its entity and business. Innovate.sa and its affiliates do not provide tax, legal, compliance or accounting advice. Innovate.sa is a technology service provider, and its services are not intended to provide, and should not be relied on for, tax, legal, compliance or accounting advice or compliances, (b) The Customer must ensure that all the invoices and their associated notes are shared with Innovate.sa for e-invoice generation. In case Customer fails to share any invoice or its associated notes with Innovate.sa for E-Invoice generation then Innovate.sa will not be responsible for compliance requirements of such documents. The Customer will be solely responsible to provide appropriate clarification to ZATCA or any other relevant authority for such missing documents, (c) In case the Customer is maintaining separate Books of Accounts or any other ERP/ Point of Sale (PoS) system which is not connected with Innovate.sa then the Customer must be solely responsible for generating E-invoices for documents generated from such systems, (d) The Customer will be solely responsible to ensure that Customer’s ERP/ PoS system is in compliance with all the necessary prohibitory condition(s) as mentioned and updated from time to time, in the E-Invoice Guidelines, VAT Law or any other Statute or law under the Kingdom of Saudi Arabia (KSA). Any changes required in Customer’s internal ERP/ PoS systems to comply with such guidelines will be out of scope for Innovate.sa,(e) from Phase II of KSA E-invoicing, the Customer shall share details of each e-invoice generation device (EGS) with Innovate.sa and ZATCA. The Customer shall ensure that each device should use its own unique Device ID and no two devices are sharing the same Device ID, (f) Customer shall provide invoice data as per Innovate.sa’s defined format (in alignment with ZATCA guidelines). Innovate.sa will not be responsible for issues related to input data shared by Customer’s ERP or PoS system with Innovate.sa.
3.5. Usage Restrictions. The Customer shall not (a) make the SaaS Services available to anyone other than the Customer or users, or use any of the SaaS provided by Innovate.sa for the benefit of anyone other than the Customer or its Affiliates, unless expressly stated otherwise in an Order Form, (b) sell, resell, rent, license, sublicense, distribute, make available, any SaaS Service, or include any SaaS Service provided by Innovate.sa in a service bureau or outsourcing offering, (e) interfere with or disrupt the integrity or performance of any of the SaaS or third-party data contained therein, (f) attempt to gain unauthorized access to any SaaS or its related systems or networks, (g) permit direct or indirect access to or use of any SaaS Services in a way that circumvents a contractual usage limit, or use the SaaS to access or use any of Innovate.sa intellectual property except as permitted under this Agreement, or Order Form, (h) modify, copy, or create derivative works based on the SaaS or any part, feature, function or user interface thereof, (i) disassemble, reverse engineer, reproduce, distribute, republish or decompile the SaaS, (j) remove or modify any program markings or any notice of Innovate.sa’s or its licensors’ proprietary rights, (k) perform or disclose any benchmark or performance tests of the Services, (l) access the SaaS to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) assist a third party in building or supporting, products or Services competitive to Innovate.sa or (4) copy any ideas, features, functions or graphics of the Service.
3.6. The Customer’s use of Services shall be subject to terms and conditions of use and privacy policy as updated from time to time by Innovate.sa.
4. NON-INNOVATE.SA APPLICATIONS
Any acquisition or use by the Customer of Non-Innovate.sa Application, and any exchange of data between the Customer and any Non-Innovate.sa Application is solely between the Customer and the applicable Non-Innovate.sa Application provider. Innovate.sa does not warrant or support Non-Innovate.sa Applications or other Non-Innovate.sa products or services, whether or not they are designated by Innovate.sa as “certified” or otherwise. Innovate.sa is not responsible for any disclosure, modification or deletion of the Customer Data resulting from access by such Non-Innovate.sa Application or its provider. Innovate.sa assumes no responsibility in relation to any services availed by the Customer from a Non-Innovate.sa Application and the Customer agrees and undertakes to indemnify and hold Innovate.sa harmless from any claim, loss, liability arising out of, or in connection with, or in relation to any such services being availed by the Customer.
5. TECHNICAL SERVICES
Subject to payment of applicable charges, Innovate.sa may make available for Customer, Technical Services as set forth in the applicable Order Form. Customer shall render necessary assistance to Innovate.sa in order for Innovate.sa to fulfil its responsibilities as set forth in this Agreement and the applicable Order Form. Unless otherwise stated in the applicable Order Form, all Technical Services under this Agreement are deemed accepted by Customer upon delivery.
6. CHARGES AND PAYMENT
6.1. Charges. The Customer shall pay the charges specified in Order Forms and all payments shall be made in the currency specified in the Order Form. Except as otherwise specified herein or in an Order Form, (a) charges are based on the Services purchased as a software package and not on actual usage and (b) payment obligations are non- cancellable, and charges paid are non-refundable.
6.2. Invoicing and Payment. Unless otherwise stated in the Order Form, all charges will be invoiced in advance and are payable within seven (7) days from the invoice date. The Customer shall be responsible for providing complete and accurate billing and contact information to Innovate.sa and notifying Innovate.sa of any changes to such information.
6.3. Unless otherwise stated in the Order Form, all invoices will be sent via email to the Customer’s email address registered with Innovate.sa.
6.4. If any invoiced amount is not received by Innovate.sa within the due date, then without limiting Innovate.sa’s rights or remedies, Innovate.sa may levy interest at the rate of 2% of the outstanding balance per month.
6.5. Suspension of Service. If any invoiced amount owed by the Customer under this or any other agreement for Services is thirty (30) days or more overdue, Innovate.sa may, suspend Services until such amounts are paid in full, provided that, Innovate.sa will give the Customer at least ten (10) days prior notice that its account is overdue before suspending services to the Customer.
6.6. Taxes. Innovate.sa’ s charges do not include any taxes. The Customer shall be responsible for paying all taxes associated with its purchases hereunder as per Applicable Law and the Customer shall furnish all documents to Innovate.sa upon request in relation to its tax compliance.
6.7. If a Customer avails or purchases any Services through a Reseller, then such Customer shall be liable to pay for such Services to the Reseller. However, the Customer shall continue to be liable to pay for Services purchased directly from Innovate.sa.
6.8. If a Customer avails or purchases any Services through a Reseller and (a) such Reseller notifies Innovate.sa of such Customer’s failure to pay amounts due to Reseller with respect to a Service; or (b) such Reseller fails to pay any amounts due to Innovate.sa; then Innovate.sa at its sole and absolute discretion may suspend or terminate the Services or terminate the Services being provided to the Customer. Customer consents to these suspension and termination rights and acknowledge and agrees that Innovate.sa shall not be liable to Customer to provide any Services to the Customer. Customer’s sole recourse with respect to any such suspension or termination shall be against the Reseller.
7. PROPRIETARY RIGHTS
7.1. As between Innovate.sa and the Customer, the Customer owns all of Customer’s Data and all intellectual property related to Customer’s Data. Notwithstanding anything to the contrary contained herein, the Customer hereby agrees, covenants, consents and grants Innovate.sa, its Affiliates, and its third-party service providers, all the rights to host, use, process, analyse, derive, store, display and transmit Customer Data including for providing the Services in accordance with this Agreement. Customer represents that it has, and warrants that it shall maintain, all rights as required to allow Innovate.sa, its Affiliates and its third-party service providers to compile, use, store, process, analyse, derive and retain Customer Data, including without limitation in combination with other Innovate.sa customers’ data.
7.2. Subject to the limited rights expressly granted hereunder, Innovate.sa shall retain all right, title and interest in and to the Services and all technology utilized by Innovate.sa to provide the Services, including any and all patents, copyrights, trademarks, trade names, trade secrets and other intellectual property rights relating to, embodied by, or incorporated in any of the foregoing including any updates, upgrades, enhancements, modifications or improvements made to, or derivatives of, the Services. If the Customer provides Innovate.sa with any feedback regarding any Services, Innovate.sa may use all such feedback without restriction. No rights are granted to the Customer hereunder other than as expressly set forth herein.
8. CONFIDENTIALITY
The Parties shall endeavour to protect Confidential Information. In the context of the relationship under this Agreement, each party (“Disclosing Party”) may disclose to the other party (“Receiving Party”) certain confidential information that has been marked “confidential” or with words of similar meaning, at the time of disclosure by such party (“Confidential Information”). Innovate.sa’s Confidential Information shall deem to include, without limitation, the pricing of Services, business proposals, technical documentation, integration methodologies, technical data, methods, processes, know-how and inventions. Confidential Information shall not include information that Receiving Party can show: (a) was already lawfully known to, or independently developed by, Receiving Party without access to, or use of, Confidential Information, (b) was received by Receiving Party from any third party without restrictions, (c) is publicly and generally available, free of confidentiality restrictions; or (d) is required to be disclosed by law, regulation or is requested by a government authority or agency for any purpose determined by it or in the context of a any law enforcement investigation or government sponsored projects.
9. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
9.1. Each party represents and warrants that: (a) it is duly organized under Applicable Law and has sufficient authority to enter into this Agreement, (b) the person entering into this Agreement is authorized to sign this Agreement on behalf of such party and (c) the execution and performance under this Agreement does not conflict with any contractual obligations such party has to any third party.
9.2. The Customer represents and warrants that : (a) all information which has been given by the Customer or on behalf of the Customer by the Reseller to Innovate.sa with respect to the Customer is true, accurate and complete in all respects, (b) it shall maintain, all rights, privileges and licenses as required to allow Innovate.sa, its Affiliates and its third-party service providers to compile, use, store, process, analyse, derive and retain the Customer Data, (c) that its data as shared with Innovate.sa is not Saudi “Governmental Data”, and approves the export of Customer Data from the Kingdom of Saudi Arabia (d) it has obtained all governmental authorizations, consents and approvals and corporate approval, and other consents as required under Applicable Law for the execution and performance of this Agreement have been obtained, and continue in force, (e) it shall pay the charges set out under applicable Order Form in a timely manner and in accordance with the terms of this Agreement, (f) it has reviewed the Services of Innovate.sa and that it’s purchase and use of the Services shall not be in breach of Applicable Laws, (g) it is duly authorised to conduct its business under Applicable Laws, (h) the execution, delivery and performance of this Agreement by the Customer shall not (i) violate or conflict with its organizational or constitutional documents, and (ii) constitute a violation of Applicable Law, (i) there are no legal, quasi-legal, administrative or other proceedings, claims, actions or governmental investigations of any nature pending against the Customer, or to which the Customer’s assets or properties are subject, and the Customer has not received any notice or intimation of any such proceeding, claim, action or governmental investigation against it, in each case, which relates in any manner to this Agreement or which could otherwise adversely impact its ability to undertake its obligations under this Agreement, and (j) the Customer has not and nor any Associated Persons or former Associated Persons has, directly or indirectly:i. violated or is in violation of Money Laundering Laws, Anti-Bribery Laws, or rules, regulations, guidelines of the OFAC (“OFAC Regulations”) and other applicable anti-corruption Laws; orii. made, offered or promised to make, or authorized the payment or giving of money, or anything else of value, to any (i) executive, official, employee or person acting in an official capacity for or on behalf of a government department, government agency or a government-controlled entity or a public international organization (e.g., the International Monetary Fund or the World Bank), or (ii) political party or official thereof, or candidate for political office (each of the foregoing a “Government Official”), or (iii) any other person, while knowing that all or some portion of the money or value will be offered, given or promised to a government official for the purposes of obtaining or retaining business or securing any improper advantage or in other circumstances when such offer, payment or promise would be unlawful; or been subject to any investigation by any Governmental Authorities or regulators with regard to any actual or alleged breach of any relevant anti-corruption law.Provided that in the case of former Associated Persons such action took place whilst the former Associated Person was an Associated Person.
9.3. Neither the Customer nor any of its current or former Associated Persons is or has been the subject of any investigation, inquiry or litigation, administrative or enforcement proceedings by any Governmental Authority or any customer regarding any offence or alleged offence under Anti-Bribery Laws or Money Laundering Laws, and no notice has been received that such investigation, inquiry or proceedings have been threatened or are pending, and there are no circumstances likely to give rise to any such investigation, inquiry or proceedings.
9.4. The Customer is not (i) currently identified on the Specially Designated Nationals and Blocked Persons List maintained by the OFAC and/or on any other similar list maintained by OFAC or any other U.S. governmental agency pursuant to any authorising statute, executive order or regulation; and (ii) a Person with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or executive order of the President of the United States. For the purposes of this Agreementa. “Anti-Bribery Law” means the Indian Prevention of Corruption Act 1988, the US Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010, and shall include any Applicable Laws that relate to the bribery or corruption, in each case as amended, re-enacted or replaced from time to time;b. “Associated Person” means a Person (including any director, officer, employee, agent or other intermediary) who performs services for or on behalf of that Person or who holds shares of capital stock, partnership interests, limited liability company membership interests and units, shares, interest and other participations in that Person (in each case when performing such services or acting in such capacity);c. “Money Laundering Law” means the Indian Prevention of Money Laundering Act, 2002 and all applicable anti-money laundering statutes of all jurisdictions, including, without limitation, Indian and U.S. anti-money laundering laws, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental or regulatory agency; andd. “OFAC” means the Office of Foreign Assets Control of the Department of the Treasury of the United States of America.
9.5. The Customer has not nor had any affiliate or their respective directors, officers, managers, employees, its independent contractors, representatives or agents violated the provisions of the Foreign Corrupt Practices Act, 1977 (“FCPA”), the U.K. Bribery Act or Prevention of Corruption Act, 1988 (“PCA”) or any other applicable anti-bribery or anti-corruption law. None of the any of their directors, officers, employees and its agents or representative has, in any way in relation to the Customer or any of the Customer’s subsidiaries or controlled affiliates, (a) have offered, promised, made, paid or received or will offer, promise, make, pay or receive any bribe, kickback or other similar payment or transfer of value for the benefit of any person in connection with obtaining or retaining business or to secure an improper advantage (including, but not limited to, with respect to its respective capital contributions, including additional contributions and funding and in-kind capital contributions) or any other party hereto; (b) have authorized, induced, or caused or will authorize, induce, or cause any person to offer, promise, make, pay or receive any such payment or transfer of value in connection with obtaining or retaining business or to secure an improper advantage (including, but not limited to, with respect to its respective capital contributions, including additional contributions and funding and in-kind capital contributions) or any other party hereto; or (c) possess knowledge or reason to know that any such payment or transfer of value has occurred or will occur in connection with obtaining or retaining business or to secure an improper advantage (including, but not limited to, with respect to its respective capital contributions, including additional contributions and funding and in-kind capital contributions).
9.6. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE CUSTOMER ACCEPTS THE SERVICES “AS IS” AND ACKNOWLEDGES THAT INNOVATE.SA MAKES NO OTHER WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. INNOVATE.SA FURTHER DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL MEET THE CUSTOMER’S NEEDS OR EXPECTATION, BE ERROR FREE, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED, OR THE SERVICE ERRORS BE CORRECTED.
9.7. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT INNOVATE.SA DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. INNOVATE.SA SHALL NOT BE RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
9.8. THE PARTIES AGREE THAT INNOVATE.SA SHALL NOT BE RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM CUSTOMER’S APPLICATIONS OR THIRD-PARTY APPLICATIONS. NOTWITHSTANDING ANYTHING CONTAINED HEREIN, PARTIES AGREE THAT THE SERVICES MAY CONTAIN INFORMATION AND DATA SOURCED FROM THIRD-PARTY SERVICE PROVIDERS AND SUCH INFORMATION AND DATA IS THE SOLE RESPONSIBILITY OF THE PERSON THAT MAKES IT AVAILABLE. INNOVATE.SA DOES NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE RELIABILITY, ACCURACY, COMPLETENESS, AUTHENTICITY, MERCHANTABILITY, NON-INFRINGEMENT, CORRECTNESS, OR USEFULNESS OF THE INFORMATION AND DATA, THIRD-PARTY APPLICATIONS OR SERVICES, AND DISCLAIMS ALL LIABILITIES ARISING FROM OR RELATED TO THE INFORMATION AND DATA, THIRD PARTY APPLICATIONS OR SERVICES.
9.9. FOR ANY BREACH OF THE SERVICES WARRANTY, THE CUSTOMER’S EXCLUSIVE REMEDY AND INNOVATE.SA’S ENTIRE LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY, OR, IF INNOVATE.SA CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, CUSTOMER MAY CHOOSE TO END THE DEFICIENT SERVICES.
10. INDEMNIFICATION
10.1. Notwithstanding anything contained in this Agreement, the Customer shall defend, indemnify and hold harmless Innovate.sa (and its affiliates, officers, directors and employees) upon demand from and against any and all damages, actions, proceedings, claims, demands, costs, losses, liabilities, diminution in value, loss of earnings, profits and revenue, opportunity costs, expenses (including court costs and reasonable attorneys’ legal fees) in connection with, arising out of, or in relation to (i) breach or non-compliance of its obligations, consents, grants, undertakings, representations or warranties, (ii) any claims made by Saudi Authority for Data and Artificial Intelligence or other government authority in connection with Customer Data and (iii) misrepresentation, negligence, fraud, wilful concealment and misconduct (iv) misuse of the Services and products of Innovate.sa for any illegal or unauthorised purposes; (v) any injuries to persons or damage to property, body, business character, reputation including theft, resulting from the acts or omissions of the Customer; (vi) any claims by a third party on Innovate.sa for the acts committed or omitted by the Customer; (vii) any violation of municipal, state or central laws governing the Services and products or their sale, that may result from such act or omission by the Customer.
10.2. The Customer shall defend, indemnify and hold harmless Innovate.sa (and its affiliates, officers, directors and employees) upon demand from and against any and all damages, actions, proceedings, claims, demands, costs, losses, liabilities, diminution in value, loss of earnings, profits and revenue, opportunity costs, expenses (including court costs and reasonable attorneys’ legal fees) in connection with, arising out of, or in relation to non compliance by the Customer with prohibitory condition(s) as mentioned and updated from time to time, in the E-Invoice Guidelines, VAT Law or any other Statute or law made applicable in the Kingdom of Saudi Arabia.
11. LIMITATION OF LIABILITY
IN NO EVENT, INNOVATE.SA, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES OR AGENTS, SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, DATA, OR DATA USE, ARISING OUT OF, OR RELATING TO, THE SERVICES OR THE ARRANGEMENTS BETWEEN THE PARTIES. NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT, THE CUMULATIVE MAXIMUM LIABILITY OF INNOVATE.SA, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES OR AGENTS , WHETHER IN CONTRACT OR TORT OR DAMAGES OR INDEMNIFICATION CLAIMS OR NEGLIGENCE, BY STATUTE OR OTHERWISE, INCLUDING ARISING OUT OF THE WORK OR DELIVERABLES OR SERVICES COVERED BY THIS AGREEMENT, AND REGARDLESS OF THE THEORY OF LIABILITY, SHALL BE LIMITED TO PAYMENT OF INCURRED AND SUFFERED DIRECT DAMAGES ONLY AND SHALL IN NO EVENT EXCEED TWENTY FIVE PERCENT OF THE CHARGES RECEIVED BY INNOVATE.SA, FROM THE CUSTOMER.
12. TERM AND TERMINATION
12.1. Term. This Agreement commences on the date the Customer first accepts it and, unless terminated earlier in accordance with the terms of this Agreement, shall continue until all the SaaS Services hereunder have expired or the Services have been rendered.
12.2. Term of SaaS Services. The term of each SaaS Service shall be as specified in the applicable Order Form (“Initial Term”). The Order Form tenure will automatically renew for additional periods equal to the expiring Term (“Renewal Term”), unless (a) a renewed Order Form is executed with revised terms and charges, or (b) either party notifies the other party, no less than thirty (30) days prior to the end of, the Initial Term or any Renewal Term, that it has elected not to renew the Order Form or the Agreement, or (c) Innovate.sa intimates revision in the terms and charges post the Initial Term. Unless otherwise stated in an Order Form, the renewal charge shall increase by ten (10) percent of the applicable charges in the immediately preceding Order Form.
12.3. Termination. Innovate.sa may terminate this Agreement (a) if the Customer commits a breach of any of the terms and conditions of this Agreement, which if capable of cure or remedy, is not cured or remedied by the Customer, within a period of thirty (30) days from the date of issue of notice by Innovate.sa informing the Customer of such breach or (b) by providing thirty (30) days prior written notice to the Customer Non-payment of invoiced amount within the applicable due date shall constitute material breach of this Agreement. Innovate.sa may terminate this Agreement forthwith in the event (a) Innovate.sa or the Customer is restricted, prohibited or constrained under Applicable Law from continuing to provide or avail Services respectively, under this Agreement, (b) the Customer acts in violation of Applicable Law, (c) the Customer is adjudicated bankrupt, or if a receiver or a trustee is appointed for it or for a substantial portion of its assets, or if any assignment for the benefit of its creditors is made and such adjudication appointment or assignment is not set aside within 90 (ninety) days, or (d) liquidation proceedings are initiated either voluntarily or compulsorily against the Customer.
12.4. Effects of Termination. Upon any termination or expiration of this Agreement, Innovate.sa will cease to provide the Services and all outstanding charges due under an Order Form shall be required to be paid immediately. All charges due under an Order Form are non-cancellable and non-refundable.
12.5. Notwithstanding anything contained in Clauses 12.1 to 12.4, the term of Services purchased and, or availed by a Customer through a Reseller shall be as specified in the document executed between Reseller and Innovate.sa.
12.6. Publicity. Customer agrees and consents that Innovate.sa may refer to it as a customer of Innovate.sa in its communications and marketing materials, including by displaying the Customer’s name and logo on Innovate.sa’s website and other marketing materials.
13. GENERAL PROVISIONS
13.1. Third Party Service Providers. Innovate.sa may use third-party service providers, including application service providers, hosting service providers and system integrators for rendering Services.
13.2. Innovate.sa shall be excused from performance hereunder, without any liability, to the extent that performance is prevented, delayed or obstructed by circumstances beyond its reasonable control. Such circumstances may be including but not limited to an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labour problem, Internet service provider failure delay, Non-Innovate.sa Application, denial of service attack, a virus attack on the Customer’s system leading to disruption, issues with FTP access from the Customer’s system, emergency maintenance upgrades or government restrictions (including the denial or cancellation of any licenses).
13.3. Innovate.sa shall have no responsibility or liability in relation to failure of any activity, if such activity may have been initiated by a third party or by the Customer itself, and that has failed or delayed on account of the process of authentication and acceptance of taxpayer’s data by appropriate authority or otherwise, including but not limited to, failure or delay as a result of, network or connectivity failure, device or application failure, failure, possible down time at government authority’s infrastructure or any other technical or non-technical error of any nature, whether foreseen or unforeseen at the time of entering into this Agreement.
13.4. The Customer agrees and undertakes that, during the Term and for a period of one year thereafter, it shall not, directly or indirectly, either individually or otherwise, solicit or induce, attempt to solicit or induce, divert, hire, retain (including as a consultant) any employee, officer, agent, director, contractor, business partner or such other persons of Innovate.sa (“Innovate.sa Personnel”) or any former Innovate.sa Personnel engaged with Innovate.sa in the preceding twelve months
13.5. The Customer agrees and undertakes that, during the Term and for a period of one year thereafter, it shall not, directly or indirectly, either individually or otherwise, solicit or induce, attempt to solicit or induce, divert any customer of Innovate.sa, for provision of services which are same, similar or competes with (whole or in part), the Services.
13.6. Planned Downtime: Innovate.sa may shut down the Services to perform planned maintenance or to upgrade the Services. To the extent possible and reasonable, Innovate.sa may provide at least 48 hours of notice for such downtime. For the avoidance of doubt, planned downtime will exclude any emergency maintenance undertaken by Innovate.sa which shall be endeavoured to be undertaken during the non-business hours during weekends.
13.7. Anti-Corruption. The Customer agrees and confirms that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of Innovate.sa in connection with this Agreement.
13.8. Entire Agreement and Order of Precedence: This Agreement along with the Order Forms represents the entire agreement between the Parties regarding the subject matter hereof and supersedes and prevails over any and all other agreements between the Parties including any Customer’s vendor registration form, policies, code of conducts, guidelines, whether written or oral, whether executed prior to or subsequent to this Agreement and/or Order Form, whether or not contrary to this Agreement and/or Order Form, regarding the subject matter hereof. For clarity, the provisions of this Agreement supersedes and prevails over any earlier or incidental or any subsequent non-disclosure or confidentiality agreements, purchase orders, Customer’s vendor registration form, policies, code of conducts, guidelines or any other Customer documentation (excluding Order Forms). In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement and (3) Terms of Use and Privacy Policy.
13.9. Relationship. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
13.10. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
13.11. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
13.12 Assignment. The Customer shall not assign any of its rights and obligations under this Agreement without the prior written consent of Innovate.sa. Innovate.sa may, in its sole and absolute discretion, assign, novate, transfer or otherwise dispose of any or all of its rights and obligations under this Agreement or any part thereof including but not limited to the right to payments, to any of its Affiliates, successors, associates or any other third parties or Persons in order to exercise any of the rights or perform any of the obligations under this Agreement, and the Customer shall, at Innovate.sa’s intimation, enter into an appropriate agreement with such Affiliates, successors, associates or any other third parties or Persons in such form as Innovate.sa may specify in order to enable Innovate.sa to exercise its rights pursuant to this Clause. A change in the legal status of Innovate.sa shall not affect the validity of this Agreement and this Agreement shall be binding on any successor to Innovate.sa.
13.13. Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of India, without regard to conflict of law principles. The courts, tribunals, councils, forums and other dispute resolution bodies at New Delhi, India shall have the exclusive jurisdiction to adjudicate upon any or all disputes arising out of or in connection with this Agreement.
13.14. Notice. Customer shall direct notices under this Agreement to the following address.
Attn: Legal Department, Innovate.sa,
Registered office: 2541 Prince Saad Bin Abdul Rahman
Al Awal Road, 8243, Al Fayhaa District, Riyadh 14253,
Saudi Arabia
Email: legal@Innovate.sa
13.15 Survival. Clause 1 (Definitions), Clause 6 (Charges and Payment), Clause 7 (Proprietary Rights), Clause 9 (Representations, Warranties and Disclaimers), Clause 10 (Indemnification), Clause 11 (Limitation of Liability), Clause 12 (Term and Termination) and 13 (General Provisions) shall survive termination or expiration of this Agreement.