These Certinal Enterprise Terms and Conditions govern each Order entered by the Certinal entity and the Licensee, both identified in the Order By signing the Order, each party agrees as follows:

1. DEFINITIONS

  1. “Agreement” shall include this Enterprise Terms and Conditions and any Orders document, through or by which the Licensee gets license for the Software.
  2. “Affiliate” shall mean, with respect to a party, any corporation, association, or other entity that directly or indirectly controls, is controlled by, or is under common control with such party, either currently or during the term of this Agreement. As used in this definition, the term “control” and its corollary forms shall mean the direct or indirect possession of more than 50% of the voting securities, or equity in such entity.
  3. “Confidential Information” shall mean any non-public information or data that is designated “confidential” by a Party or that a reasonable person should understand is confidential, including product, technical, business, strategic, legal, or financial information or data, which is received by the other Party as part of the negotiation and/or the performance of this Agreement. In particular, Licensee’s Data and the terms of this Agreement are Confidential Information.
  4. Data Protection Legislation” means the General Data Protection Regulation (EU 2016/679) (“GDPR”); and any other implementing laws, regulations and secondary legislation and/or successor legislation relating to data protection and privacy in force in the EU, or as amended or updated from time to time;
  5. “Documentation” shall mean the instructions and/or user manuals that describe the installation, use, and/or operation of the Software.
  6. “e-Document” shall mean electronic document as provided and/or uploaded by the Licensee within the Software.
  7. “Intellectual Property Rights” shall mean copyright, patents, designs, trademarks, trade names, goodwill rights, trade secrets, any other intellectual property right.
  8. “Licensee” shall mean to include that entity that is mentioned in the Order document as licensee or customer.
  9. Personal Data: shall mean to include any information that relates to an identified or identifiable living individual.
  10. “SaaS” means Software as a Service.
  11. “Term” shall be for a limited period specified in the applicable Order.
  12. “Order” refers to the ordering document, which may be styled as an order, or statement of work, that is signed by the Parties and shall reference this Agreement.
  13. “Software” means the generally available commercial release of Certinal software application and its services as set out in the applicable Order.
  14. “Subscription Plan” means software subscription plans and their details related to fees, term, and the number of user licenses as set out in Certinal’s Order document.
  15. “Authorized User” shall mean any Licensee’s employees or agent of Licensee. Licensee will ensure that any person having access to or using the Software licensed to Licensee under this Agreement is subject to an obligation of confidentiality with respect thereto at least as restrictive as the confidentiality obligations set forth in this Agreement and shall use the Software only for the business purpose of Licensee. No two persons may register or use the Software as the same Authorized User.

2. GRANT OF LICENSE

Subject to the terms and conditions of this Agreement, Certinal hereby grants Licensee a non-exclusive, non-transferable license to use the Software following the Subscription Plan as set out in the applicable Order document. Certinal shall provide maintenance and support to the Licensee following the support package that is identified in the Order document.

Certinal Software enables parties to the e-Document to affix electronic signature for executing such e-Document. Licensee acknowledges that under no circumstances Certinal shall be construed as a party to any e-Document which is electronically signed by the Authorized Users on Certinal Software. Certinal shall not be liable in any manner whatsoever for the transactions entered by the Licensee and/or its Authorized Users by electronically signing e-Documents. Licensee hereby acknowledges that it shall have full control over the contents of e-Document being electronically signed on Certinal Software.

Before electronically signing any document on Certinal Software, Licensee is required to perform its due diligence to ensure if the document can be signed electronically under applicable laws and government regulations or not. Certinal Software will not block the signing of any such documents nor Certinal is liable in any manner whatsoever if Licensee electronically executes any such documents using Certinal Software.

3. RESTRICTIONS

Licensee shall have no right to resell, or sub-license the Software. Also, the license granted herein shall not constitute a sale, lease, rental, or any other transfer of the Software or part thereof. Licensee agrees that it does not acquire any license to use the Software more than the Subscription Plan and the Term as specified in an Order document. Upon the end of the Agreement or an Order, Licensee’s right to use such Software shall terminate.
Licensee must refrain from posting any illegal, obscene, indecent, defamatory, content within the Software. Certinal Software is not meant for minors under the age of 16 years; or any other minimum age as specified under applicable laws. Licensee shall ensure that Authorized Users are not minors.

4. PRIVACY POLICY

Certinal shall provide Software to the Licensee by adhering to Certinal’s privacy policy available on following link https://www.certinal.com/privacy-policy.

5. FEES; EXPENSES; INVOICES; PAYMENT

  1. Subscription Plan: Software Subscription Plans and their details shall be set out in the Certinal Order as executed between Licensee and Certinal. If, before the end of the Initial Term as set out in the Order document, Licensee does not terminate the Subscription Plan by providing 30 days written notice to Certinal, then the subscribed Subscription Plan shall renew automatically for a successive term of one year at Certinal’s then prevailing fees. The Licensee by paying applicable additional charges may decide to upgrade the current Subscription Plan. However, Licensee cannot downgrade from the existing Subscription Plan, nor Licensee can downsize its scope in its existing Subscription Plan during the Term. Licensee by paying additional charges may true-up in its existing Subscription Plan.
  2. Fees: Licensee shall pay to Certinal the fees as specified in the applicable Order, following the Subscription Plan as accepted by the Licensee in the Order document. In no event shall Licensee be obligated to pay Certinal any fees, expenses, or costs other than those set forth in the applicable Order. Certinal shall prepare and submit invoices to the Licensee in accordance with the invoicing schedule as set out in the applicable Order.
  3. Payment: Payment of amounts set forth in each invoice is due within thirty (30) days after the receipt of Certinal’s invoice. Except as expressly stated otherwise in the applicable Order, all Fees are exclusive of taxes (if any). Licensee agrees to pay any itemized sales, value-added, or other similar taxes imposed under applicable law that Certinal must pass through based on the Software provided by Certinal. Licensee shall not be responsible for any taxes based on Licensee’s income or the value of its property. Payment made by the Licensee is non-refundable except as provided in this Agreement.
  4. If Licensee fails to make timely payment of the invoice amount as submitted by Certinal, then Certinal reserves the right to impose late payment charges equal to a lesser of 1.5% of the unpaid balance amount per month or highest interest rate permitted by applicable law until the payment of the invoice amount with late payment charges is paid in full. Further Licensee shall reimburse all costs and expenses including attorney fees and other legal costs if any incurred by Certinal to recover unpaid amount from the Licensee.

6. INTELLECTUAL PROPERTY RIGHTS

All rights to the Software and its training material, enhancements, upgrade, updates, its contents and any customizationprovided therewith, including title, ownership rights and Intellectual Property Rights therein shall remain the sole and exclusive property of Certinal and/or its suppliers or its licensors, and Licensee acquires only the limited rights granted in this Agreement. Licensee shall not own any Intellectual Property Rights concerning the Software, customization, training material, and accompanying development under this Agreement. Licensee always retains all ownership and intellectual property rights in and to Licensee’s Data, Licensee’s Confidential Information, and any other information provided by Licensee within the Software. Certinal retains all ownership and Intellectual Property rights to Certinal’s Software. Licensee hereby provides a limited license to Certinal to use Licensee’s Data and License’s Confidential Information only for the agreed purpose under this Agreement.
Licensee should not: (a) remove or modify any marks, trademarks, or proprietary notices of Certinal, b) develop similar software as that of Certinal by using Confidential Information of Certinal, decompile, disassemble, duplicate, or reverse engineer, create derivative works of or based on the Certinal Software.

7. REPRESENTATIONS AND WARRANTIES

  1. Each Party hereby represents and warrants to the other that (I) it has all requisite corporate power and authority (or if a Party is not a corporation, such Party represents and warrants that it has sufficient power and authority under its organizational documents or agreements) to enter into this Agreement and to carry out the transactions contemplated hereby, (II) its entry into this Agreement does not violate or constitute a breach of any agreement to which it is a Party or otherwise bound.

For providing the Software, Certinal represents and warrants that Certinal shall provide the Software:

  1. Properly and carefully, in a business-like and professional manner according to the service levels set out under any applicable Order.
  2. Promptly and in accordance with applicable professional standards and principles; and it shall ensure it has obtained all necessary approvals needed to provide the Software which includes all regulatory, legal, and statutory clearances and permits.
  3. it shall act lawfully.
  4. Software shall be free of all known harmful or illicit code, trapdoors, malware or viruses.
  5. Software shall perform in accordance with the Subscription Plans mentioned in the applicable Order document.

8. DISCLAIMER OF WARRANTIES

Licensee hereby expressly agrees and acknowledges that the Software is provided “as is” without any representations, conditions, warranties, or covenants whatsoever concerning the Software performed by Certinal or its employees, consultants, or agents, including without limitation, any express, statutory or implied representations, warranties or conditions of merchantability, merchantable quality, satisfactory quality or fitness for a particular purpose, or arising otherwise in law or from a course of dealing or usage of trade, all of which are expressly disclaimed and excluded.

9. CONFIDENTIALITY

Confidential Information is, and shall remain, the exclusive property of the Disclosing Party. The Receiving Party shall treat and maintain all such Confidential Information received from the Disclosing Party as confidential, whether or not it has been physically marked as confidential or proprietary. The Confidential Information may be used by the Receiving Party only to the extent reasonably required in the performance of its obligations under this Agreement and may only be distributed to those employees, agents or contractors of the Receiving Party who have a need to know in order to perform pursuant to this Agreement, and who are bound to maintain confidentiality. The Confidential Information may not be released to any other person, entity, or the public without the prior written consent of the Disclosing Party. The Receiving Party shall protect all such Confidential Information of the Disclosing Party with no less than the care and diligence with which it protects its own Confidential Information and also with no less care and diligence than would generally be expected of a responsible party similarly situated. Each party shall only use the Confidential Information of the other party for the purpose set forth in this Agreement and shall not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any such Confidential Information. Either party shall not use the Confidential Information in any way to create a derivative work out of it or reverse engineer or for any other purpose detrimental to other party.


The foregoing obligations shall not apply to any Confidential Information (i) lawfully in the Receiving Party’s possession prior to its acquisition from the Disclosing Party; (ii) received in good faith from a third party not subject to any confidentiality obligation to the Disclosing Party; (iii) which now is or later becomes publicly known through no breach of confidentiality obligation by the Receiving Party; or (iv) is independently developed by the Receiving Party without the use or benefit of the Disclosing Party’s Confidential Information.


If the Receiving Party receives a request to disclose any Confidential Information to comply with any law, rule, regulation or order of a court or governmental agency, Receiving Party agrees that, prior to disclosing any Confidential Information, it shall (i) notify the Disclosing Party of the existence and terms of such request; (ii) cooperate with the Disclosing Party in taking legally available steps to resist or narrow any such request; and (iii) if disclosure is required, use its best efforts to obtain a protective order or other reliable assurance that confidential treatment will be afforded to the Confidential Information disclosed.

 

The parties acknowledge that any breach of this Section may cause immediate and irreparable injury to the non-breaching Party and that monetary damages will be inadequate to compensate the non-breaching Party for such breach. Having acknowledged the foregoing, the parties agree that, in the event of such breach, the non-breaching Party will be entitled to seek injunctive relief, in addition to all other remedies available to it at law or in equity. This Section in no way limits the liability or damages that may be assessed against the breaching Party in the event of a breach of any of the provisions of these confidentiality obligation.

The Licensee hereby agrees that authorized employees of Certinal may use Licensee’s data for research and analysis purposes which primarily includes building and/or revamping Certinal’s Software models. All such Licensee’s data collected, used, and disclosed will be in aggregate and statistical form only and will not identify Licensee or its Authorized Users.

10. ANTI-BRIBERY

Certinal shall always comply with any anti-corruption or anti-bribery laws including, without limitation, the U.S. Foreign Corrupt Practices Act (1977), the U.K. Bribery Act of 2010, plus any other anti-bribery or anti-corruption law or treaty applicable to Certinal. Certinal has and shall maintain in place throughout the term of the Agreement policies and procedures to confirm compliance with applicable laws relating to anti-bribery and anti-corruption. Certinal shall promptly report to the Licensee any request received by any third party for any undue financial or other advantages of any kind in connection with the performance of this Agreement. Certinal shall not accept, offer or make any payment or provide anything else of value, or take or fail to take any other action which is either prohibited or required by applicable laws in connection with this Agreement.

11. DATA PROTECTION:

With respect to the Processing of all Personnel Data, each Party shall comply at all times with all relevant requirements of the Data Protection Legislation. Each Party confirms that it is lawful to share the Personnel Data and shall only share such Personnel Data as it is lawful to so share. Each Party shall treat the Personnel Data shared by the other Party in accordance with the Data Protection Legislation.
In respect of Personal Data processed by Certinal, to the extent that Certinal processes Personal Data on behalf of Licensee, the Licensee hereby appoints the Certinal as its processor and Certinal shall:
  1. act only on reasonable and lawful instructions of Licensee.
  2. have in place appropriate technical and organizational security measures against unauthorized or unlawful processing of Personal Data and accidental loss or destruction of, or damage to, Personal Data.
  3. take all reasonable steps to ensure the reliability of any of its staff who have access to Personal Data processed in connection with their use of Certinal’s Software.
  4. perform its obligations in compliance with the Data Protection Legislation.
Certinal shall be responsible for maintaining data privacy and information security program, which includes physical, technical, administrative, and organizational safeguards, that is reasonably designed to (a) ensure the security and confidentiality of Licensee’s data; (b) protect against any anticipated threats or hazards to the security or integrity of Licensee’s data; (c) protect against unauthorized disclosure, access to, or use of Licensee’s data; (d) ensure proper disposal of Licensee’s data.
Certinal shall maintain a disaster recovery plan. This disaster recovery plan of Certinal will refer to the strategy and plans that Certinal has set in place to respond to incidents and business disruptions to continue Certinal Software. The disaster recovery plan will cover critical activities and resources necessary to provide support. Also, Certinal may update its disaster recovery plan for any improvement.

12. SECURITY INCIDENTS

Certinal shall report to Licensee all known or suspected Security Incidents. “Security Incident” means any unauthorized action by a known or unknown person which, if attempted, threatened, or completed, should reasonably be considered one of the following: an attack, penetration, disclosure of Confidential Information or other sensitive information, misuse of system access, unauthorized access or intrusion (hacking), virus intrusion, or scan of Certinal’s systems or networks, all to the extent they affect the security, confidentiality or integrity of the Licensee’s Confidential Information received, stored, processed, or maintained by Certinal.
If a Security Incident occurs, Certinal shall immediately notify Licensee and provide the following information: nature and impact of the Security Incident; actions already taken by Certinal; Certinal’s assessment of immediate risk; and corrective measures to be taken, evaluation of alternatives, and next steps. Certinal shall continue providing (i) appropriate status reports to Licensee regarding the resolution of the Security Incident and prevention of future such Security Incidents, and (ii) cooperation, as reasonably requested by Licensee, to further investigate and resolve the Security Incident. Certinal shall preserve evidence of all Security Incidents.

13. INDEMNIFICATION

Certinal will defend, indemnify, and hold harmless Licensee from and against all liability, suits, claims, actions, proceedings, losses, damages, judgments, and reasonable costs (each, a “Claim”) to the extent that such Claim arises out of or is in relation to any allegation that the Software infringes any third party Intellectual Property Rights. The aforesaid indemnity shall be applicable provided that Certinal has been given prompt written notice of each such Claim by the Licensee, and the right to control and direct the investigation, defense, and settlement of each such Claim. If the Software, or any part of it, is in Certinal’s opinion, likely to or does become the subject of a Claim for infringement of a third party’s Intellectual PropertyRights, Certinal, may (i) obtain the right for Licensee to continue to use the Software, (ii) substitute equivalent of Software, or (iii) modify the Software to make it non-infringing. The foregoing states Certinal’s entire liability to Licensee with respect to infringement.

14. LIMITATION OF LIABILITY

Notwithstanding any other term of this Agreement to the contrary, in no event shall Certinal be liable to the Licensee or any third party for any indirect, special, incidental, consequential, punitive, or exemplary damages or loss of any kind (including but not limited to loss of profit, loss of revenues, business interruption, loss of business information, increased costs of operation or other commercial or economic loss, litigation costs and the like) howsoever caused, in connection with the supply, use or performance of the Software, whether arising out of contract, tort (including without limitation negligence) or otherwise, even if Certinal has been advised of the possibility of such damages or such damages are foreseeable.
Except for gross negligence, willful misconduct, breach of confidentiality obligations as mentioned under this Agreement, breach of third-party Intellectual Property Rights, death or personal bodily injury caused to any person by acts or omission on part of Certinal, the maximum liability of either party shall be limited to the fees paid by the Licensee to Certinal as mentioned under the applicable Order of this Agreement.

15. NOTICE

All notices that either Party hereto is required to or may desire to give the other Party hereunder shall be given by addressing the communication to the address of respective Party set forth in the Order document and shall be given by certified or registered mail or email.
Any change to the address shall be informed within 30 days of such change.

16. ASSIGNMENT

Either Party may not assign and/or subcontract its rights hereunder without written consent from the other Party, which shall not be unreasonably withheld.

17. TERM AND TERMINATION

Each Order shall be governed by the terms and conditions of this Agreement. This Agreement is valid for the Term as set out in the applicable Order submitted to Certinal by Licensee.
Each Order can only be terminated in accordance with the termination provision as mentioned under this clause.
Either Party may terminate this Agreement in the event that (i) the other Party is in default of any of its material obligations hereunder and such default is not remedied within 30 days of receipt of written notice thereof or (ii) the other Party is adjudicated bankrupt or becomes insolvent, makes any assignment for the benefit of creditors, proceedings are instituted by the other Party seeking relief, reorganization or rearrangement under any laws relating to insolvency, bankruptcy or similar laws of any jurisdiction, a receiver, liquidator or trustee is appointed in respect of any property or assets of the other Party or an order is made for the liquidation, dissolution or winding up of the other Party.
During the Term of the Order, Certinal shall store all e-Documents of the Licensee within Certinal Software, accordingly during the Term of the Order, Licensee at any time may download copies of e-Documents.
If before expiry or termination of the Agreement, Licensee has failed to download its e-Documents from Certinal software, then within 90 days upon expiry or termination of the Agreement (Transition Period), Licensee can request Certinal for providing professional services for retrieving e-Document. For this purpose, Certinal reserves to charge mutually agreed fees for such additional professional services. After such Transition Period, the e-Documents may be get deleted from Certinal Software.

18. FORCE MAJEURE

“Force Majeure Event” shall mean either Party’s impossibility or failure to perform its obligations; provided that such impossibility or failure, (i) is not due to its own act, omission, negligence or willful misconduct, (ii) could not have been overcome by the exercise of due diligence by the affected Party, (iii) could not have been prevented by reasonable precautions of the affected Party (whether or not taken), and (iv) is caused by fire, flood, earthquake, elements of nature or acts of God, epidemic or pandemic, public utility or electrical failure, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, government orders or restrictions, imposition of martial law or any similar cause (but excluding labor disputes and strikes) meeting all of the foregoing requirements that are beyond the reasonable control of the affected Party. In the event of Force Majeure, the affected Party shall immediately notify the non-affected Party of the occurrence of Force Majeure Event and describe in reasonable detail the nature of the Force Majeure Event. Subject to the above, if any Force Majeure Event lasts for more than Thirty (30) calendar days, either Party may, upon prior written notice of not less than ten (10) days to the other Party, terminate the affected portion of the Software and/or Agreement without penalty of any kind. In the event of such termination, the Licensee shall be liable to pay fees up to the date of termination.

19. GENERAL:

Publicity rights shall be in accordance with the publicity clause as mutually agreed in the Order document.

For providing the Software or any add on services, Certinal may use third party platforms or may direct the Licensee to third party platforms, in such circumstances, Certinal shall not be responsible for the performance and/or results provided by such third party platforms.

 

Certinal may use artificial intelligence(AI) capabilities in its Software features, in such circumstances operational results of such AI enabled features are also dependent on the quality of inputs provided by the Licensee, hence considering such general inherent aspects of AI, Certinal does not represent or warrant that the operation, use or results of AI enabled features of the Software will be uninterrupted or error-free; or accurately extract and or display information as per Licensee’ expectations.

Any dispute arising hereunder, which is not settled through formal or informal negotiation or mediation between the parties, shall be settled through arbitration based on the arbitration norms of the International Chamber of Commerce. The arbitration shall be conducted by a single arbitrator. The language of the arbitration shall be the English language. The seat of arbitration shall be based on the following parameters: (i) if Licensee is based in Australia region, arbitration seat shall be in Melbourne, Australia; (ii) if Licensee is based in EU, arbitration seat shall be in Amsterdam, Netherlands; (iii) if Licensee is based in the UK, arbitration seat shall be in London, England; (iv) if Licensee is based in the United States or Canada, arbitration seat shall be in New Jersey; (v) if Licensee is based in APAC region, arbitration seat can be mutually agreed as Singapore or Mumbai, India; (vi) if Licensee is based in Middle East region, arbitration seat shall be in Dubai; (vi) if Licensee is based in any other regions not covered above, arbitration seat shall be at Singapore.
This Agreement shall be governed in accordance with the laws of the region where the Licensee’s registered place of business is situated and as set out in the Order document.
This Agreement sets forth the entire agreement of the parties with respect to the subject matter contained herein, and no oral or written statement or representations not contained herein shall have any force or effect. In the event of a conflict between the provisions stated in the Agreement and any Order or schedules, the provisions stated in the Agreement shall prevail. The failure of a Party to claim a breach of any term of this Agreement shall not constitute a waiver of such breach or the right of such Party to enforce any subsequent breach of such term. If any provision of this Agreement is held to be unenforceable or illegal, such decision shall not affect the validity or enforceability of such provisions under other circumstances or the remaining provisions of this Agreement and such remaining provisions shall be reformed only to the extent necessary to make them enforceable under such circumstances.