Napier’s Standard Terms and Conditions (myNapier HIS Community version)
1. Definitions:
a. "Affiliate" shall mean, with respect to any entity, (i) any other entity Controlled, directly or indirectly, by such entity, (ii) any entity that Controls, directly or indirectly, such entity; or (iii) any entity, directly or indirectly, under common Control with such entity. For the purpose of this definition, “Control” means the power to direct or cause the direction of (whether directly or indirectly) the management or policies of any entity, through the ownership of voting securities, through contract or through any other means.
b. "Agreement"shall mean this Napier’s Standard Terms and Conditions and any other notification issued by Napier from time to time as an addendum to this Agreement;
c. "Business Day" shall mean any day other than a Saturday, and Sunday or a public/statutory holiday in the Territory.
d. "Business Hours" shall mean the hours from 9:00 AM to 6:00 PM on Business Days in the Territory.
e. "Customer Data" shall mean data populated by the Customer pursuant to the usage of the Software which may or may not include Customer’s own data or that of medical patient data
f. "Confidential Information" means any oral, written, graphic or machine and eye readable information, disclosed or provided by the Discloser relating to the Discloser’s business or Discloser’s Affiliates or any of their third party suppliers, partners or customers, including, without limitation, information relating to patents, patent applications, research, product plans, proposals, specifications, training videos, price lists, drawings, customer information, procedures, proposed products, products, developments, inventions, processes, designs, software requirements specification, drawings, engineering, formulae, markets, software (including source and object code), trade secrets, processes, internal structure, user interfaces, hardware configuration, computer programs, algorithms, business plans, business opportunities, agreements with third parties, services, customers, marketing or finance information, techniques, services and like information of,. Confidential Information includes this Agreement, the Software and all Enhancements, modifications, Fixes and updates. Notwithstanding the forgoing, any other information which is reasonably understood to be confidential or proprietary based on the circumstances of disclosure or the nature of the information itself or any information pertaining to the Customer, such information shall be treated as Confidential Information at all times. Confidential Information shall not include any information that:
I. is lawfully known by the Recipient at the time of disclosure without any obligation to keep the same confidential,
II. is or becomes through no fault of the Recipient available to the public,
III. is independently developed by the Recipient without use or reference to such Confidential Information,
IV. is authorized to be disclosed in writing by the Discloser
g. "Customer" shall mean the entity that has entered into this Agreement with Napier for the use of the Software.
h. "Discloser" shall mean the Party disclosing Confidential Information under this Agreement.
i. "Enhancements" shall mean any modification, update, upgrade or addition to the Software that, when made or added to the solution or modules currently being used by the Customer, provides minor functionality enhancements but does not change overall utility, functional capability, or application, where such modifications or additions are generally made available by Napier to all its customers as part of support and maintenance service. Enhancements shall also include changes, if any made to the Software in order to address specific requirements set out by the Customer pursuant to the grant of license. Enhancements are generally denoted by minor version level (such as, version 1.1, version 1.2 and so on) changes as determined by Napier. Enhancements do not include New Versions, add-ons, or further customization of the Software that Napier may provide at its standard scale of charges from time to time in force. An enhancement, feature, functionality or update requested by the Customer based on the specific needs or requirements of the Customer shall not form part of the Enhancements that may be made available under this Agreement.k. “Error” shall mean any verifiable and reproducible failure or inability of the Software to perform any material functions set forth in the documentation due to any programming defect in the Software, when the Software is used. The term “Error” shall not include any failure or inability of the Software that:
I. results from the misuse or improper use of the Software;
II. does not materially affect the operation and use of the Software;
III. results from any modification to the Software that is not a Napier authorized change;
IV. results from any cause beyond reasonable control of Napier including third party hardware, software, firmware or malware.
j. "Fix" shall mean any modification or addition to the Software that, when made or added to the solution or modules currently being used by the Customer, corrects Errors but does not change overall utility, functional capability, or application, where such modifications or additions are generally made available by Napier to all its customers under this Agreement.
k. "Implementation Services" shall mean the implementation services usually undertaken by Napier insofar as to operationalize the Software.
l. "Insolvency Event" means (i) the filing of bankruptcy petition against either Party, (ii) the appointment of receiver, trustee or liquidator for any of the assets of such Party, (iii) filing of a petition for re-organization under any bankruptcy or other similar laws by either Party, (iv) making of an assignment for the benefit of such Party’s creditors, or (v) being adjudged bankrupt or insolvent by any court of competent jurisdiction.
m. "Intellectual Property Rights" shall mean any patents, copyrights, trademarks, service marks (whether registered or not), registered designs, database right, design right, moral right or any other property rights that grant similar rights as the foregoing, anywhere in the world, including those subsisting in the Software and its associated documentation, or any inventions, drawings, performances, software, databases, ideas, methodologies in any manner related to the Software.
n. "License Term" shall mean the time period for which the Customer shall be authorized to use the Software which shall be from the first day of subscribing to the Software unless otherwise terminated as per the provisions of this Agreement.
o. "Location" means as mentioned in the Agreement.
p. "Technical Support" shall mean the technical support agreed to be provided by Napier under this Agreement, as further detailed in clause 4 below.
q. "Metadata" is a set of anonymized data that forms the underlying basis for the definition or description for the data.
r. "Napier" shall mean Napier Healthcare Solutions (India) Private Limited.
s. "New Version" shall mean any modification, update, upgrade or addition that, when made or added to solution, provides major functionality enhancements or changes the overall utility, functional capability, or application. New Versions are generally denoted by major version level (such as, version 1.0, version 2.0 and so on) changes, as determined by Napier.
t. "Party" means either Napier or the Customer individually, and “Parties” means Napier and the Customer collectively, and in each case, their Affiliates, successors and permitted assigns.
u. "Recipient" shall mean the Party receiving Confidential Information under this Agreement.
v. "Software" shall mean the Software specified by Napier to the Customer. The Software is made available by Napier to the Customer and the User(s) as a service through the internet in accordance with this Agreement.
w. "Territory" means the country in which the Software is accessed and/or utilized by the Customer
x. "User(s)" shall mean the Customer’s personnel authorized by the Customer to access the Software, by allocation of a unique username and password.
y. "User(s) Data" shall mean all information and data entered by the User(s) by using the Software, including (i) any personal health information related to the Care Recipient(s), and (ii) any information relating to the medical health practitioners and the Customer.
2. Grant of License
2.1 Subject to the Customer’s compliance with the terms of this Agreement, Napier grants the Customer a limited, non-exclusive, non-transferable and revocable right to use the Software in accordance with the terms of this Agreement.
2.2 The Customer shall have the right to use the Software for the License Term as specified by Napier to the Customer, subject to the right of Napier to suspend or terminate this right to use in accordance with the terms of this Agreement. The Customer shall be responsible for the use of the Software by the User(s) and shall ensure that the User(s) comply with the terms of this Agreement while using the Software.
2.3 The Customer acknowledges that it acquires only a limited right to use the Software, in accordance with the terms of this Agreement. All intellectual property right in and to the Software, (including but not limited to the user interface, algorithms, formulae, scripts, graphics, work flows, processes, software, methodologies, and databases), shall continue to vest solely and exclusively with Napier, and any of Napier’s licensors.
2.4 The Customer further acknowledges that the Software contains Napier’s proprietary information and trade secrets and is protected by applicable laws.
2.5 The Customer shall not have the right to use Napier’s domain name, business name or trade mark, except as may be authorized by Napier in writing under this Agreement for using the Software.
2.6 The Customer shall use the Software only for its internal purposes. The Customer shall not do or permit anything to be done in respect of the Software, other than as expressly permitted by this Agreement. Without prejudice to the generality of the immediately preceding sentence, the Customer shall not (a) commercially exploit the Software (including by making it available to any third party) without the prior written consent of Napier; (b) distribute or transmit any part of the Software by any means without the prior written consent of Napier; (c) copy any features, functions or user interfaces/graphics from the Software; (d) remove or modify any markings or any notice of Napier’s rights from the Software; or (e) commit or permit or otherwise cause the commission of any breach of the right to use, such as (i) sharing passwords and other authentication or login credentials; or (ii) permitting the use of the Software by any third party in a manner that subverts the need of such third party to purchase rights of use for the Software; or (iii) deconstruct or reverse engineer the Software; or (iv) access, store, distribute or transmit any viruses, worms, time bombs, or similar programs.
2.7 The Customer shall not,and shall ensure that its Users shall not indulge in any illegal activities while using the Software. The Customer shall not, and shall ensure that its User(s) shall not host, display, upload, modify, publish, transmit, update or share any information while using the Software, that:
a. belongs to another person and with respect to which the Customer does not have any right to host, display, upload, modify, publish, transmit, update or share while using the Software;
b. is grossly harmful, harassing, blasphemous, defamatory, fraudulent, obscene, pornographic, pedophilic, libelous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;
c. harms minors in any way;
d. infringes any patent, trademark, copyright or other proprietary rights;
e. involves the sale or promotion of any illegal business activities or prohibited products or services;
f. violates any law for the time being in force;
g. deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;
h. impersonates another person; or
i. contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource.
2.8 Further, the Customer agrees that it shall ensure that its User(s) shall:
a. not copy, distribute or disclose any part of the Software in any medium, including without limitation by any automated or non-automated “Scripting”;
b. not use any automated system, such as “robots”, “spiders” and “offline readers” to access the Software in a manner that sends more request messages to Napier servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Napier grants the operators of public search engines revocable permission to use spiders to copy materials from the publicly available searchable indices of the materials, not caches or archives of such materials);
c. not attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Software;
d. not access the Software through any technology or means other than those provided or authorized by Napier;
e. not violate any requirements, procedures, policies or regulations of any networks connected to the Software;
f. not hack, spam or phish Napier or other users;
g. ensure truthful and accurate User(s) Data is entered into the Software through the Software;
h. not cause, or aid in, the destruction, manipulation, removal, disabling, or impairment of any portion of the Software, including the de-indexing or de-caching of any portion of the Software from a thirty-party’s website, such as by requesting its removal from a search engine; and
i. ensure immediate updating of the data as provided by the respective stakeholder.
2.9 The Customer shall not make any copies of the Software, without the prior written consent of Napier.
2.10 This license does not grant the Customer any right to enhancements, fixes, updates or customizations that Napier releases post the grant of the license.
2.11 Open Source and Third-Party Software: The Software licensed hereunder may include open source and third-party software. To the extent the Software contains any open source and third-party software, the Customer hereby agrees to adhere to the license terms applicable to such open source and third-party software. Notwithstanding anything stated elsewhere in this Agreement or in any Schedules, all open source and third-party software are provided on an “as-is” basis and Napier hereby disclaims all liabilities, damages (even if advised of the possibility of damages), warranties, indemnities and all other obligations (implied or explicit) with respect to such components.
2.12 Content: Any content uploaded by the Customer, or its User(s) shall be subject to the applicable laws and shall be the sole and absolute responsibility of the Customer. Napier may also, at any time, suspend or terminate the Customer’s or its User(s)’ access to the Software, if such suspension or termination is required for (i) safety purposes, (ii) to prevent a security breach, or (iii) to prevent any irreparable damages or losses to Napier or any other third party.
2.13 Third Party Hardware, Third Party Software and Internet Connection: Napier shall not be responsible for the provision of and any concerns relating to (a) any computer systems and mobiles and tablets, (b) any third-party software on the computer systems, mobiles and tablets, or (c) internet connection. Use of the mobiles and tablets shall be governed by the terms and conditions and the user guides of the mobiles and tablets. Support for the mobiles and tablets shall be provided by the third-party manufacturers of these mobiles and tablets. The Customer shall also arrange for internet connection on its own and Napier shall not be responsible for any lack of internet connectivity that affects the performance of the Software.
2.14 Audit: Napier shall be entitled to audit the Customer’s use of the Software and other records necessary to verify the Customer’s compliance with the terms of this Agreement, in such periodicity as Napier may deem necessary. Should the audit findings reveals a breach of any of the terms of this Agreement, Napier reserves the right to immediately terminate the Customer’s license to the Software without liability.
2.15 Napier acquires no right, title, or interest from the Customer under this Agreement in or to the User Data, including any intellectual property rights therein. While Napier shall not have any intellectual property rights over the User Data, Napier shall retain all intellectual property rights of the Metadata. By accepting this Agreement, the Customer grants to Napier a license to create, host, store, and distribute such Metadata with Napier’s partners or other entities and use it for the purpose of operating and improving the Software. The Customer shall ensure that it procures the consent of all persons, including patients, whose data will be uploaded in the Software.
3. The Software
3.1 Commencement: The license subscription of the Software by the Customer shall start and end as per the the License Term.
3.2 Suspension for non-compliance : Napier may elect at it’s own discretion to suspend Customer’s access to the Software pending an enhanced audit in the event Napier has reason to suspect that the Customer has not been in compliance with any of the terms of this Agreement.
4. Implementation Services and Technical Support
4.1 Implementation Services: Napier shall provide Implementation Services insofar as to operationalize the Software for the Customer.
4.2 Technical Support: Napier shall not provide the Technical Support to the Customer with respect of the Softwarewith the exception of software bug-fixes which shall be remedied on a “best endeavour” basis. In the event Customer requires technical support, Napier may provide such support in batches of 10 (ten) support tickets for a fee to be determined by Napier.
4.3 Cloud-hosting service provider: Napier may use third party cloud hosting service providers to facilitate the hosting of the Software, and for storing the User(s) Data. User data shall be stored and will reside in the Territory unless otherwise specified by Napier. The Customer understands and agrees that it shall abide by, and shall ensure that the User(s) shall abide by, the terms of use of such third-party cloud-hosting service providers while using the Software. In the event Customer data exceeds 1 (one) Gigabyte, Napier may elect to charge the Customer a fee for hosting purposes. In the event Customer requires a “data pull” from the hosting service, Napier may elect to charge the Customer a fee for such activity.
5. Fee: The Software is provided without any applicable fee save those stated in this Agreement.
6. Confidentiality
6.1. Non-Disclosure Obligations
(a) The Recipient shall, and shall procure that its employees shall:
(i) maintain confidentiality of the Confidential Information;
(ii) not disclose the Confidential Information to any person [except as provided in clauses 6.1. (c) and 6.1. (d)], unless it first obtains the written consent of the Discloser; and
(iii) not use the Confidential Information for any purpose not permitted under this Agreement.
(b) Without limiting the foregoing, the Recipient agrees that it will exercise the highest standard of care in protecting the Discloser’s Confidential Information and such standard shall not be lower than the standards used by the Recipient in protecting its own Confidential Information of a similar nature.
(c) The Recipient may disclose the Confidential Information to its Affiliates and the employees or third-party contractors of the Recipient or its Affiliates strictly on a need to know basis, provided that the Recipient shall ensure that its Affiliates and the employees or third-party contractors of the Recipient or its Affiliates shall be bound to maintain confidentiality of the Confidential Information in the same manner as is mandated under this Agreement.
(d) The Recipient may disclose the Confidential Information if required to do so by law or order of any court or government authority, provided that the Recipient shall provide prior notice to the Discloser to the extent allowed by law so that the Discloser may approach courts to seek injunctive relief against such disclosure. The Recipient shall cooperate fully (at the Discloser’s expense) in all efforts to prevent or minimize the disclosure of the Discloser’s Confidential Information.
(e) Upon request by the Discloser, the Recipient will return and/or destroy all documents or media containing any such Confidential Information provided that the Recipient may retain copies of Confidential Information to the extent necessary to meet any statutory requirements.
6.2. Survival of Confidentiality Obligations
(a) Confidentiality obligations under this Agreement shall remain in effect during the term of this Agreement and shall survive for a period of five (5) years after the expiry of this Agreement.
(b) Confidentiality obligations with respect to source code(s) and trade secrets shall be perpetual.
7. Warranties and Disclaimers
7.1. Each Party warrants that: (a) it has the full rights, power and authority to enter into the Agreement and to perform its obligations as stated in the Agreement; (b) its execution of the Agreement and performance of its obligations as stated in the Agreement do not and will not violate any other agreement to which it is a party; (c) this Agreement will constitute a legal, valid and binding obligation of such Party when executed and delivered; and (d) it shall comply with all laws applicable to such Party.
7.2. Subject to clause 2.8 of this Agreement, Napier hereby warrants that it shall not willfully breach the Intellectual Property Rights of any third parties. Napier’s sole obligation in respect of a breach of this warranty shall be, at its sole discretion, to (a) exercise all reasonable efforts, consistent with the industry standards, to modify or rectify the Software to correct the defective performance; or (b) deliver at no additional cost a new copy of the Software if the Customer gives Napier prompt written notice of any claims under the foregoing warranty.
7.3. Subject to the foregoing, the Software is provided to the Customer on an “as-is” and “as available basis”. Napier is not responsible for any failure of the telecommunications network or other communications links utilized to gain access to the Software. Napier is not responsible for any loss or damage resulting from the transfer of data over communication networks and facilities, including the internet.
7.4. The Customer shall indemnify, defend and hold Napier harmless against any claim and/or and any costs, liabilities, damages, awards, losses and expenses (including reasonable legal fees and disbursements) that Napier may incur or suffer due to the breach of the obligation stated in the immediately preceding sentence by the Customer.
7.5. Napier does not represent, warrant or guarantee that the Software shall be free from loss, corruption, attack, virus, interference, hacking, or other security intrusion.
7.6. Napier shall not be liable under this Agreement: (a) if the Software is not used in accordance with this Agreement; or (b) if any defect in or deficiency in the Software is caused (i) due to the computing environment of the Customer or the User(s), (ii) due to the communication network or internet connection being used by the Customer or the User(s), (iii) due to use of any third party hardware or software that is not recommended by Napier, or (iv) due to any action not directly and solely attributable to Napier. Napier disclaims any warranty or representation to the User(s) or to any third parties under this Agreement.
7.7. Napier disclaims any warranty that (a) the Software will meet the Customer’s requirements; (b) the Customer’s use of the Software will be timely, uninterrupted, secure or error-free; (c) any information obtained by the Customer by using the Software will be accurate or reliable; and (d) any defects or errors in the Software provided to the Customer will be corrected.
7.8. Except to the extent expressly provided otherwise in this Agreement; Napier expressly disclaim all other warranties, conditions, representations and guarantees; whether express or implied and whether arising by law, custom or statements of Napier or third parties, including but not limited to any warranty of merchantability, fitness for purpose or non-infringement. Napier makes no endorsements of and provides no warranties or support with respect to any open source software, third party software and third-party hardware. The Customer assumes all risks as well as all responsibilities related to the use of the third-party hardware, open source or third-party software. Napier further expressly disclaims any warranty or representation to authorized User(s), or to any third party.
7.9. The customer acknowledges that the software is not intended or suitable for use in environments where 1) the failure or 2) time delays of, or 3) errors or 4) inaccuracies in, the content, data or information provided by the software could lead to death, personal injury, or severe physical or environmental damage.
7.10. The customer understands and agrees that the software is not intended to be substitute for medical advice and napier shall not be responsible for any defect in the medical treatment by the healthcare professionals and any consequences thereof.
8. Legal and Regulatory Compliance
8.1. The Customer covenants that the Customer shall, obtain, maintain and file, at its own cost, all regulatory authorizations, clearances, approvals, reports, permits, registrations and licenses necessary for the Customer to use the Software within the Territory, including those related to the collection, use, processing, transfer and disclosure of personally identifiable health information of residents/ patients. The Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of residents’/ patients’ data which is entered by its authorized User(s). In the event the residents’/ patients’ data contains any personally identifiable information, the Customer shall ensure that it has all the permissions, approvals and licenses required under applicable law, including the consent of the residents/ patients, to collect, upload, post, email, transmit, store, receive or share such personally identifiable information in the use of the Software.
8.2. The Customer acknowledges, provides its consent and shall procure the residents’/ patients’ consent for the storage of the User(s) Data within or outside the Territory. The Customer further acknowledges, provides its consent and shall procure the residents’/ patients’ consent for the implementation and support teams of Napier or its subcontractor, which may be located within or outside the Territory, to have limited access to the User(s) Data (including personally identifiable information of residents/ patients) on a need to know basis.
8.3. The obligation of Napier to provide the Software is conditional upon the procurement of consent of the residents/ patients by the Customer. Upon Napier’s request, the Customer shall provide confirmation and evidence of procurement of residents’/ patients’ consent by the Customer.
8.4. The Customer shall take full responsibility for monitoring the vitals’ readings of the residents/ patients by appropriately qualified medical professionals. The Customer shall indemnify, defend and hold Napier harmless against any claim and/or and any costs, liabilities, damages, awards, losses and expenses (including reasonable legal fees and disbursements) that Napier may get exposed to due to the breach of the obligation stated in the immediately preceding sentence by the Customer.
8.5. The Customer hereby represents and warrants that the Customer will use the Software in accordance with applicable law. Any contravention of applicable law as a result of the Customer’s use of the Software is the Customer’s sole responsibility, and Napier shall have no liability for any such violation of applicable law.
8.6. Without prejudice to clause 8.4, the Customer shall comply with and shall ensure, in the use of Software, the compliance of the data protection laws in the Territory and any requirements of license or registration by any other relevant authorities in the Territory for use of the Software. The Customer shall indemnify, defend and hold Napier harmless from any loss or liability that may be caused to Napier due to the breach by the Customer of its obligation in the immediately preceding sentence.
8.7. In the event of non-compliance with applicable data protection laws by the Customer, Napier shall have the right to suspend or terminate this Agreement with 24 (twenty four) hour notice to the Customer.
8.8. The Customer acknowledges that to the extent necessary for the use of the Software, Napier may be required to process User(s) Data. Napier may process this for the purposes of performing its obligation under this Agreement. Napier may transfer it to a third party located outside the Territory. The Customer shall be responsible for providing any necessary legal notices to its personnel and/or end users and obtaining any legally required consents related to the Customer’s use, collection, disclosure, sharing, cross border data transfer, and processing of User(s) Data
9. Indemnification
9.1, Napier provides no indemnity outside of those specifically mentioned in this Agreement.
9.2 The Customer shall indemnify, defend and hold Napier harmless from any claims, loss, damages and liabilities (including reasonable legal costs) arising from the use of the Software in contravention with the terms of this Agreement, including without limitation, any breach of the Customer’s obligations under clauses 2 and 6 of this Agreement.
9.3 The Customer shall take full responsibility to ensure that only appropriately qualified professionals shall be authorized as User(s) and shall indemnify, defend and hold Napier harmless against any action and/claim in this regard and any costs, liabilities, damages, awards, losses and expenses (including reasonable legal fees and disbursements) that Napier may get exposed to as a result of the Customer’s failure to authorize only appropriately qualifies professionals as User(s).
9.4 The indemnifying Party shall have control over the defense of any indemnified claim, provided that the indemnified Party may participate in such defense, at the indemnifying Party’s cost.
10. Limitation of Liability
10.1 Notwithstanding anything stated elsewhere in this Agreement, in no event shall Napier be liable under this Agreement for any (a) indirect, consequential, incidental, punitive, exemplary or special losses arising under or in connection with this Agreement, whether arising in contract, tort (including negligence), equity, misrepresentation or otherwise; (b) for any: (i) loss of profits, (ii) loss of business, (iii) loss of contracts, (iv) loss of revenues, (v) loss of operation time, (vi) loss of anticipated savings, (vii) increased costs, (viii) wasted expenditure, (ix) loss of goodwill, (x) loss of reputation, (xi) loss or inaccuracy or corruption of data, (xii) loss of programs, whatsoever or howsoever arising out of this Agreement or the use of the Software, even if the loss or damages was reasonably foreseeable or Napier had been advised of the possibility of such damages.
10.2 Notwithstanding anything stated elsewhere in this Agreement, in no event shall the maximum aggregate liability of Napier, its group companies, directors, employees and agents to the Customer, arising under or in connection with this Agreement (whether in contract, tort or otherwise) exceed US$100/- (United States Dollars One Hundred) ONLY.
10.3 Nothing in this Agreement shall exclude or limit the Customer’s liability to Napier for (a) any illegal content uploaded by the Customer or its User(s) using the Software, (b) any liability relating to residents’/ patients’ data as a result of breach of the terms of the Agreement by the Customer or its User(s), (c) fraud, (d) death or personal injury caused by the Customer’s negligence or intentional misconduct, and € any liability which cannot be excluded or limited as a matter of law.
10.4 The Customer shall always use all reasonable endeavors to avoid or mitigate any losses which may arise under or in connection with this Agreement, regardless of its form
11. Term and Termination
11.1 Term: This Agreement shall continue to be in force for the periods notified by Napier, unless the Agreement is terminated earlier in accordance with the terms and conditions set forth in this Agreement.
11.2 Termination:
(a) Napier may terminate this Agreement forthwith:
I. in case the Customer has committed a material breach of the terms of this Agreement;
II. in case the Customer commits a breach that is incapable of remedy;
III. in case an Insolvency Event occurs for the Customer; or
iv. after providing 30 (thirty) days’ notice to Customer for termination of convenience.
11.3 Effect of Termination or Expiry:
(a) In the event of termination or expiry of this Agreement:
I. The Customer shall immediately cease all use of the Software;
II. The Customer shall certify to Napier that it has destroyed or returned all copies of the Software and associated documentation, in accordance with Napier’s instructions, and has ceased all use of the Software;
(b) The expiry or termination of this Agreement shall be without prejudice to any other rights or remedies which either Party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either Party nor the coming into or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such expiry or termination, including without limitation, provisions relating to content, audit , confidentiality , warranties and disclaimers , legal and regulatory compliance , indemnification , limitation of liability , governing law and dispute resolution and general provisions .
12. Dispute Resolution and Governing Law
12.1 The Agreement shall be construed, interpreted and applied in accordance with, and shall be governed by the laws of the executing Napier entity.
12.2 Any dispute or claim arising out of or in relation to this Agreement shall be submitted for arbitration in accordance with the laws of the executing Napier entity with the arbitration center of the territory of such Napier entity.
12.3 The language of arbitration shall be English. The prevailing Party in any dispute shall be entitled to reasonable attorney’s fees and expenses.
12.4 Notwithstanding anything stated above in this clause, each Party shall have the right to seek any injunctive or equitable relief, at any time, from a competent court in the applicable jurisdiction of the executing Napier entity.
13. General Provisions
13.1 Publicity: The Customer hereby permits Napier to include its name and logos and grants Napier the right to identify the Customer as a customer in its listings, websites and collateral marketing materials in line with the Customer’s marketing guidelines. The Customer hereby agrees to provide a good report of reference and an opportunity for a visit on prior intimation, for Napier’s existing and prospective customers on request.
13.2 Non-Solicitation: Each Party agrees that during the term of this Agreement and for a period of twelve (12) calendar months after the termination or expiry of this Agreement, it will not, directly or indirectly, induce, solicit or entice any employee or contractor of the other Party or its Affiliates to leave its employment or contract with the other Party or its Affiliates, without the prior written consent of the other Party.
13.3 Force Majeure: Napier shall not be liable for any failure or delay in the provision of the Software or non-functionality of the Software caused by any event beyond Napier’s reasonable control, including without limitation, i) act of God, fire, lightning, explosion, war, civil disorder, flood, industrial dispute, (ii) plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine or other employee restrictions (iii) act of central or local government or other authorities, or (iv) failure, malfunction, or error due to denial-of-service (DoS) and distributed denial-of-service (DDoS) attacks, malware and ransomware attacks including computer viruses, Trojan horses, worms, spyware, unauthorized hacking etc.
13.4 No Third-Party Rights: A person who is not a Party to this Agreement shall have no right to enforce any of its terms, regardless of whether such person or entity has been identified by name, as a member of a class or as answering a particular description. For the avoidance of any doubt, nothing in this clause shall affect the rights of any permitted assignee or transferee of this Agreement.
13.5 Assignment: The Customer shall not have the right to assign, transfer or offer as security any right nor interest or delegate any obligation arising under this Agreement without Napier’s express written approval and in accordance with the transfer process set out by Napier. However, Napier may assign this Agreement to an affiliate or an acquiring party or the merged entity in the event of a merger or a sale of all or a substantial portion of Napier’s assets or stock and to that effect this Agreement shall inure to the benefit of successors and assigns.
13.6 Independent Contractors: It is expressly understood that the Parties are independent contractors, and that neither has the authority to bind the other to any third person or otherwise to act in any way as the representative of the other, unless otherwise expressly agreed to in writing signed by both Parties hereto.
13.7 Entire Agreement: This Agreement, , sets forth the entire agreement and understanding of the Parties with respect to the subject matter hereof, and supersedes all prior oral and written agreements, understandings, representations, conditions and all other communications relating thereto, albeit Napier may revise, modify and/or amend the terms of this Agreement at its sole discretion giving Customer notice thereof no less than 30 (thirty) days of such revision, modification, and/or amendments.
13.8 Severability: The invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
13.9 Non-Waiver and Amendment: No waiver, alteration, modification, or cancellation of any of the provisions of this Agreement shall be binding unless made in writing and signed by both the Parties. The failure of either Party at any time or times to require performance of any provision hereof shall in no manner affect the right at a later time to enforce such provision. No remedy referred to in this Agreement is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to herein or otherwise available at law, in equity or otherwise.
13.10 Notices:
(a) All notices required to be sent under this Agreement shall be effective upon receipt, shall be made in writing and shall be sufficiently given when mailed by registered mail, courier or other express mail service, postage prepaid or personal delivery (including overnight mail by private carrier) to the address listed in the opening paragraph of this Agreement, provided that any notice to Napier shall be marked to the attention of “Legal Department”.
(b) Either Party may change the afore-mentioned address by notice to the other Party.
