“You” and “your” refers to the individual or entity who is using this software as a service from www.https://kartoffel.in (“Kartoffel”) by executing this software as a service agreement (collectively, the “agreement”). Software as a service includes the right to use Kartoffel and avail support services with respect to the same (collectively, the “services”). The term “program documentation” refers to the program user manual as well as any other materials provided by Kartoffel as part of the services. The term “services” refers to the software products owned or distributed by Kartoffel to which Kartoffel grants you access as part of the services, including program documentation, and any program updates provided as part of the services. The term “users” shall mean those individuals authorized to use the services. The term “your data” refers to the data provided by you that resides in services environment.
This software as a service agreement is applicable for the services received from www.https://kartoffel.in
Upon the end of the agreement or the services thereunder, your right to access or use the Kartoffel programs specified in the ordering document and the services shall terminate.
You retain all ownership and intellectual property rights in and to your data. Kartoffel or its licensors retain all ownership and intellectual property rights to the services. Kartoffel retains all ownership and intellectual property rights to anything developed and delivered under the agreement.
make the programs or materials resulting from the services available in any manner to any third party for use in the third party’s business operations modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to Kartoffel and license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, or otherwise commercially exploit or make the services, materials available, to any third party.
Except as expressly provided herein, no part of the services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means and you agree to make every reasonable effort to prevent unauthorized third parties from accessing the services.
Kartoffel DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT Kartoffel WILL CORRECT ALL SERVICES ERRORS. YOU ACKNOWLEDGE THAT Kartoffel DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. Kartoffel IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.TO THE EXTENT NOT PROHIBITED BY LAW, THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
If a third party makes a claim against Kartoffel (“Recipient” ), that any information, design, specification, instruction, software, service, data, or material (“Material”) furnished by you (“Provider”) and used by the Recipient infringes its intellectual property rights, the Provider, at its sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following:
If Kartoffel believes or it is determined that any of the Services may have violated a third party’s intellectual property rights, Kartoffel may choose to either modify the Services to be non -infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, Kartoffel may end the license for the applicable Services. Kartoffel will not indemnify you if you alter the Services or uses it outside the scope of use identified in Kartoffel’s user documentation or services policies or if you use a version of the Services which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Services which was provided to you. Kartoffel will not indemnify you to the extent that an infringement claim is based upon any information, design, specification, instruction, software, data, or services not furnished by Kartoffel. Kartoffel will not indemnify you to the extent that an infringement claim is based upon the combination of any Services with any products or services not provided by Kartoffel. Kartoffel will not indemnify you for infringement caused by your actions against any third party if the services as delivered to you and used in accordance with the terms of the agreement would not otherwise infringe any third-party intellectual property rights. Kartoffel will not indemnify you for any infringement claim that is based on: (1) a patent that you were made aware of prior to the effective date of the agreement (pursuant to a claim, demand, or notice); or (2) your actions prior to the effective date of the agreement. This section provides the parties’ exclusive remedy for any infringement claims or damages.
Support services provided under the agreement may be revised on Kartoffel’s sole discretion.
Services provided under this software as a service agreement shall be provided until (i) the user opts to cancel the services or (ii) Kartoffel terminates the Services, at its discretion. At the end of the services term, all rights to access or use the services, including the Kartoffel shall end.
If either of us breaches a material term of the agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate this Agreement. If Kartoffel terminates the Agreement as specified in the preceding sentence, you must pay within 30 days all amounts which have accrued prior to such end, as well as all sums remaining unpaid for the services ordered under the agreement plus related taxes and expenses. If Kartoffel ends the services under the Indemnification section, you must pay within 30 days all amounts remaining unpaid for services plus related taxes and expenses. The non-breaching party may agree in its sole discretion to extend the 30-day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if you are in default under the agreement, you may not use the services ordered.
In addition, Kartoffel may immediately suspend your password, account, and access to or use of the services (i) if you fail to pay Kartoffel as required under the agreement and do not cure within the first ten days of the 30 day cure period, or (ii) if you violate any provision of this software as a service agreement. Kartoffel may terminate the services hereunder if any of the foregoing is not cured within 10 days after Kartoffel’s initial notice thereof. Any suspension by Kartoffel of the services under this paragraph shall not excuse you from your obligation to make payment(s) as may be applicable under the agreement.
At your request, and for a period of up to 2 days after the termination of this Agreement, Kartoffel may permit you to access the services solely to the extent necessary for you to retrieve a file of your data then in the services environment.
You agree and acknowledge that Kartoffel has no obligation to retain your data and that your data may be irretrievably deleted after 10 days following the termination of this Agreement.
Provisions that survive termination or expiration of the agreement are those relating to limitation of liability, infringement indemnity, payment, and others which by their nature are intended to survive.
You agree to pay for all services ordered as per the existing rates of Kartoffel. All fees due under the agreement are non-cancelable and the sums paid nonrefundable. You agree to pay any sales, value-added or other similar taxes imposed by applicable law that Kartoffel must pay based on the services you ordered, except for taxes based on Kartoffel’s income. You will reimburse Kartoffel for reasonable expenses related to providing any on -site portion of the services. Fees for services listed in an ordering document are exclusive of taxes and expenses. All amounts invoiced hereunder are due and payable within 10 days of the date of the invoice.
By virtue of the agreement, the parties may have access to information that is confidential to one another (“confidential information”). We each agree to disclose only information that is required for the performance of obligations under the agreement. Confidential information shall be limited to the terms and pricing under the agreement, your data residing in the services environment, and all information clearly identified as confidential at the time of disclosure.
A party’s confidential information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
We each agree to hold each other’s confidential information in confidence for a period of three years from the date of disclosure. Also, we each agree to disclose confidential information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under the agreement. Kartoffel will protect the confidentiality of your data residing in the services environment in accordance with the Kartoffel security practices. Nothing shall prevent either party from disclosing the terms or pricing under the agreement in any legal proceeding arising from or in connection with the agreement or from disclosing the confidential information to a governmental entity as required by law.
You agree that the agreement (including the information which is incorporated into the agreement by written reference (including reference to information contained in a URL or referenced policy and terms of service), is the complete agreement for the services ordered by you, and that the agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such services. If any term of the agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of the agreement. It is expressly agreed that the terms of the agreement shall supersede the terms in any purchase order or other non-Kartoffel document and no terms included in any such purchase order or other non-Kartoffel document shall apply to the services ordered.
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, OR DATA USE. Kartoffel’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS SOFTWARE AS A SERVICE AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO Kartoffel FOR THE SERVICES UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY DAMAGE IN YOUR FAVOR AGAINST Kartoffel SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY YOU UNDER THE AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY.
Kartoffel is an independent contractor and we agree that no partnership, joint venture, or agency relationship exists between us. We each will be responsible for paying our own employees, including employment related taxes and insurance.
You shall obtain at your sole expense any rights and consents from third parties necessary for Kartoffel and its subcontractors to perform the services under the agreement.
Kartoffel may audit your use of the services. You agree to cooperate with Kartoffel’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with your normal business operations. You agree to pay within 10 days of written notification any fees applicable to your use of the services in excess of your rights. If you do not pay, Kartoffel can end your services and/or the agreement. You agree that Kartoffel shall not be responsible for any of your costs incurred in cooperating with the audit.
Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of us may cancel unperformed services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the services.
You agree not to use or permit use of the services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to Kartoffel under the agreement, Kartoffel reserves the right to remove or disable access to any material that violates the foregoing restrictions. Kartoffel shall have no liability to you in the event that Kartoffel takes such action. You agree to defend and indemnify Kartoffel against any claim arising out of a violation of your obligations under this section.
This Agreement is governed by the substantive and procedural laws of India and you and Kartoffel agree to submit to the exclusive jurisdiction of, and venue in, the courts in Chennai in case of any dispute arising out of or relating to this Agreement.