Thank You for using Wybrid. Please read this Agreement of Service carefully as it contains important information about your legal rights, remedies and obligations. By accessing or using the Wybrid Platform, you agree to comply with and be bound by this Agreement of Service.
Last Updated on 21.12.2022
- Wybrid is a technology company engaged in working with enterprises and workspaces to activate hybrid work environments;
- Wybrid has developed a Platform for providing Services.
- The Workspace Partner is the owner/ operator of Workspaces, and is desirous of accessing the Platform as a SAAS service.
- Wybrid and the Workspace Partner are accordingly executing this Agreement recording the terms and conditions on which Workspace Partner will access and use the Platform.
NOW THIS AGREEMENT WITNESSETH AND IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES AS FOLLOWS:
1.1 Capitalised terms and expressions as used in this Agreement shall have the meanings (a) as indicated below, (b) if not defined in this clause below, as assigned to such terms in the other parts of this Agreement where indicated:
- 1.1.1 “Access Credentials” means the usernames, passwords and other credentials enabling access to the Services on the Platform;
- 1.1.2 “Agreement” means this agreement including any Schedules, and any amendments to this Agreement from time to time;
- 1.1.3 “Business Day” means any weekday other than a bank or public holiday in India;
- 1.1.4 “Business Hours” means the hours of 09:00 to 17:00 IST on a Business Day;
- 1.1.5 Commencement Date” shall have the meaning ascribed to it in clause 4 of this Agreement.
- 1.1.6 “Collective Content” shall mean Wybrid Content and User Content collectively.
- 1.1.7 “Data Protection Laws” means all applicable laws, rules and regulations relating to the processing of data;
- 1.1.8 “Expiry Date” shall have the meaning ascribed to it in clause 4 of this Agreement.
- 1.1.9 “Fees” shall have the meaning ascribed to it in clause 5.1 of this Agreement;
- 1.1.10 “Force Majeure Event” shall have the meaning ascribed to it in clause 23.1 of this Agreement;
- 1.1.11 “Hosted Services” means and includes the services hosted and provided by Wybrid on the Platform to User(s).
- 1.1.12 “Hosted Services Specification” means the technical specification for the Platform and the Services as set out in Schedule “III” of this Agreement;
- 1.1.13 “Hosted Services Subscription Model” shall mean the subscription models set out in Schedule “II” of this Agreement;
- 1.1.14 “Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
- 1.1.15 “Law(s)” means and includes laws of India, including all rules, regulations, notifications, orders and other subordinate legislation issued thereunder (including but not limited to the Information Technology Act, 2000) (each such law, regulation, rule, circular by whatever name called as amended or supplemented or re-enacted from time to time);
- 1.1.16 “Master Agreement” shall the master agreement executed between Wybrid and the Workspace Partner simultaneously with the execution hereof.
- 1.1.17 “Mobile Application/Mobile App” means the mobile application known as [Wybrid] that is made available by Wybrid Technology Private Limited through the Google Play Store and the Apple App Store.
- 1.1.18 “Order Schedule” means a document signed by and between Wybrid and the Workspace Partner in the format provided by the Workspace Partner that references this Agreement, and details the Services which have been availed of by the Workspace Partner per the Service Subscription Model selected by the Workspace Partner, the Fees payable, and any other transaction-specific provisions, a form whereof is annexed hereto and forms Schedule “I”. Such Order Schedule shall be deemed to constitute and form an integral part of this Agreement.
- 1.1.19 “Person” shall mean a natural or legal person, public authority, agency or body.
- 1.1.20 “Platform” means the online platform operated and managed by Wybrid used by it to provide the Services (including the web application, mobile application and the website).
- 1.1.21 “Personal Data” shall mean personal data as defined under applicable Law.
- 1.1.22 “Services” means the Hosted Services being provided by Wybrid to the Workspace Partner on the Platform, and availed of by the Workspace Partner, in accordance with the terms of this Agreement, the Order Schedule, and the Master Agreement, and as per the Hosted Services Subscription Model selected by the Workspace Partner as specified in Schedule “II” of this Agreement;
- 1.1.23 “Schedule” means any schedule attached to the main body of this Agreement;
- 1.1.24 “Support Services” means support in relation to the use of, and the identification and resolution of errors in, the Services, but shall not include the provision of training services;
- 1.1.25 “Supported Web Browser” means the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari, or any other web browser that Wybrid agrees in writing shall be supported;
- 1.1.26 “Term” shall have the meaning ascribed to it in terms of clause 4 of this Agreement;
- 1.1.27 “User(s)” shall mean any natural or legal person who is registered on the Platform through Wybrid (including the Workspace Partner and/or the Client);
- 1.1.28 “Client” shall mean any Person which is not a Workspace Partner but an occupant/lessee of the Workspaces provided by the Workspace Partner on long term or short term basis;
- 1.1.29 “User Interface” means the interface for the Hosted Services designed to allow Users to access and use the Hosted Services;
- 1.1.30 “User Content” shall mean and include data and content (including but not limited to text, photos, audio, video, or other materials and information, Wybrid may, in its sole discretion enable Users to submit, create, upload, post, send, receive and store on or through the Platform (“User Content”);
- 1.1.31 “Workspaces” shall be deemed to mean and include physical spaces of any nature whatsoever (including but not limited to desks, meeting rooms, individual offices and partial, full or multiple floors) for use by Users, listed on the Platform;
- 1.1.32 “Workspace Partner Data” means any electronic data or materials uploaded to or stored on the Platform by the Workspace Partner, provided or submitted by the Workspace Partner to or through the Service for processing and/or for the purpose of listing the Workspace of the Workspace Partner on the Platform and/or for uploading to, transmission by or storage on the Platform and/or in connection with/ for the purpose of availing the Services, and the outputs and modifications to that data obtained from such processing and/or generated by the Platform as a result of the use of the Services by the Workspace Partner (but excluding analytics data relating to the use of the Platform and server log files)
- 1.1.33 “Wybrid Content” means and includes any content that Wybrid itself makes available on or through the Service on the Platform, including proprietary Wybrid content and any content licensed or authorized for use by or through Wybrid from a third party (“Wybrid Content”).
- 1.1.34 “Web Application/Web App” means the web application known as [Wybrid] that is made available by Wybrid through its website which can be accessed through any web browser.
2. SCOPE OF SERVICES
- 2.1 Subject to the terms and conditions of this Agreement [and the Master Agreement], Wybrid grants the Workspace Partner during the term of this Agreement a personal, non-exclusive, non-transferable, non-sublicensable, and terminable right and license to access and use the Services, solely for the Workspace Partner’s internal business operations (and not in any resale or outsourcing capacity), based on the subscription model selected by the Workspace Partner from amongst the models enumerated in Schedule – I of this Agreement (the “License”)
2.2 The License granted to the Workspace Partner in clause 2.1 above is subject to the condition that the Workspace Partner does not in any manner whatsoever (and does not allow any affiliate or third party to):
- 2.2.1 copy, modify, adapt, tamper with, or otherwise make any changes to the Platform and/or the Services or any part thereof;
- 2.2.2 exceed any usage limitations identified by Wybrid;
- 2.2.3 write or develop any derivative works based upon the Services or create internet “links” to/from the Service(s) (other than on the Workspace Partner’s intranet or otherwise for its internal business purposes as permitted by this Agreement);
- 2.2.4 reverse engineer, disassemble, decompile, translate, or otherwise attempt to discover any source code, algorithms, tags, specifications, architecture, structure, or other elements of the Services, in whole or in part, for competitive purposes or otherwise;
- 2.2.5 use unauthorized versions of the Services including, without limitation, for the purpose of building a similar or competitive product or service or for obtaining unauthorized access to the Services;
- 2.2.6 sell, resell, distribute, host, lease, rent, license, or sublicense, in whole or in part, the Services or use the Services to provide processing services to third parties, or otherwise use the same on a ‘service bureau’ basis;
- 2.2.7 allow access to, provide, divulge, or make available Wybrid’s intellectual property to any user other than authorized Users,
- 2.2.8 obliterate, alter, or remove any proprietary or intellectual property notices from the Hosted Services;
- 2.2.9 disclose or publish, without Wybrid’s prior written consent, performance or capacity statistics or the results of any benchmark test performed on the Hosted Services; or
- 2.2.10 otherwise use or copy the same except as expressly permitted in this Agreement.
- 2.3 In addition to the Services, Wybrid [shall] also provide to the Workspace Partner technical support and assistance by way of support services mentioned in Schedule “IV” of this Agreement, on chargeable basis.
- 2.4 Wybrid shall make commercially reasonable efforts to make the Services available for access by the Workspace Partner 24 hours a day, 7 days a week.
- 2.5 Wybrid may, at its sole discretion, make any changes in the Hosted Services that Wybrid determines to be necessary and/or desirable including, without limitation, changes in computer hardware, systems, and/or applications software, programming languages, data communications and customer identification procedures. In the event of any such changes that, in Wybrid’s reasonable determination, shall materially alter the ability of Workspace Partner to use the Services, Wybrid will notify the Workspace Partner of such changes. Wybrid reserves the right to charge the Workspace Partner for any reintegration work required to make customizations compatible with future versions/releases of the Services.
3. ACCESS AND USE
- 3.1 The Workspace Partner shall upon execution of this Agreement [and the Master Agreement], and signing of the Order Schedule, subject to the terms of the Master Agreement, and payment of the Fees in the manner set out in this Agreement, the Order Schedule and the Master Agreement, be registered on the Platform.
- 3.2 Upon the registration of the Workspace Partner and activation of the workspace partner account, in terms of Clause 3.1 above, Wybrid shall provide, or shall ensure that the Platform provides, to the Workspace Partner the Access Credentials necessary to enable the Workspace Partner to access its workspace partner account and use the Services.
3.3 The License granted by Wybrid to the Workspace Partner is subject to the following conditions:
- 3.3.1 The User Interface shall only be used through a Supported Web Browser or the Mobile App or the Web App;
- 3.3.2 the User Interface must not be used at any point in time by more than a number of concurrent users mentioned in the Order Schedule;
- 3.3.3 The Workspace Partner shall implement and maintain reasonable security measures relating to the Access Credentials to ensure that no unauthorised person or application may gain access to the Services through or under the Workspace Partner.
4. TERM This Agreement shall commence from the Commencement Date and expire on the Expiry Date (the “Term”).
- 5.1 In consideration of Wybrid granting the Workspace Partner the License, the Workspace Partner shall pay to Wybrid, the fees as set out in the Order Schedule, based on the Hosted Services Subscription Model opted for by the Workspace Partner (the “Fees”).
- 5.2 The Fees are payable by the Workspace Partner to Wybrid on the [●]th day of every month, irrespective of whether the Services are availed of by the Workspace Partner or not.
- 5.3 Except as otherwise specified in an Order Schedule, (a) fees are quoted in US Dollars and payable in Indian Rupees, (b) fees are based on the Services purchased as indicated in an Order Schedule whether used or not, (c) payment obligations are non-cancellable and fees paid are non-refundable unless otherwise provided in this Agreement, and (d) the number of subscriptions rights purchased cannot be decreased during the relevant subscription term. Where the Workspace Partner designates use of a third-party payment processor network (such as a payment agent), the Workspace Partner is responsible for payment of all fees and charges associated with use of such network (including registration, participation, and payment processing fees) and Wybrid may invoice those fees with other fees due under this clause or on a separate invoice.
- 5.4 The Fees do not include taxes (including but not limited to GST, withholding taxes, duties, changes, assessments, or fees (collectively “Taxes”). If Wybrid is required to pay any Taxes then such Taxes shall be billed to and paid directly by the Workspace Partner.
- 5.5 GST shall be payable by the Workspace Partner, in addition.
- 5.6 The License may be suspended or terminated if the Workspace Partner fails to make timely payment of the Fees on the due date. Any delayed payment of Fees or any other amounts due and payable by the Workspace Partner under this Agreement is subject to interest @ 18% p.a. from the date such payment is due until the date of payment.
- 5.7 Without prejudice to any other rights and remedies available to Wybrid under this Agreement, [the Master Agreement], applicable law, equity, any other document/ writing executed between the Parties or otherwise, non-payment of the Fees and other amounts payable by Wybrid under this Agreement and/or the Master Agreement will entitle Wybrid to suspend the License/ access of the Workspace Partner to the Services/ the Services.
- 5.8 Suspension of the Services and access to the Platform by the Workspace Partner on account of non-payment by the Workspace Partner will not relieve the Workspace Partner of its payment obligations under this Agreement.
- 5.9 Without prejudice to any other rights and remedies available to Wybrid against the Workspace Partner under this Agreement, [the Master Agreement], law, equity or otherwise, the Workspace Partner shall be solely liable and responsible to pay all charges, fees, costs and expenses, in connection with resumption of suspended Services (including but not limited to applicable Fees and interest payable during the for the period of suspension and any reconnection fees or other costs or charges in this regard).
6. RESPONSIBILITIES OF THE WORKSPACE PARTNER
- 6.1 The Workspace Partner shall not copy of attempt to copy, nor permit or require any third-party to copy, the proprietary software of Wybrid OR publicize, utilize or pass-off as its own any of the Intellectual Property Rights which belong to, and remain vested with Wybrid;
- 6.2 The Workspace Partner shall not republish or redistribute any content or material from the Services;
- 6.3 The Workspace Partner shall not make any alteration to the Platform;
- 6.4 The Workspace Partner shall not conduct or request that any other person conduct any loading testing or penetration testing on the Platform or the Services without prior written consent of Wybrid;
- 6.5 The Workspace Partner shall not sub-license its License/ its rights of access or usage of the Services/ benefits under this Agreement to any other person/ third party;
- 6.6 The Workspace Partner shall not permit any unauthorised person or application to access or use the Services;
- 6.7 The Workspace Partner shall not allow any unauthorised or improper use of the Platform or the Services OR access or utilize the same for objects or purposes contrary to this Agreement.
- 6.9 The Workspace Partner shall not use the Services in any way that causes, or may cause, damage to the Hosted Services or the Platform or impairment of the availability or accessibility of the Hosted Services.
- 6.10 The Workspace Partner shall not use the Services:
- 6.10.1 in any way that is unlawful, illegal, fraudulent or harmful; or
- 6.10.2 in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
- 6.11 For avoidance of doubt, the Workspace Partner has no right to access the software code (including the object code, intermediate code and source code) of the Platform, either during or after the Term.
- 6.12 Wybrid may suspend the provision of the Services if any amount due to be paid by the Workspace Partner to Wybrid under this Agreement is overdue, and Wybrid has given to the Workspace Partner at least 15 (fifteen) days’ written notice, following the amount becoming overdue, of its intention to suspend the Services on this basis.
- 6.13 Wybrid shall be entitled to suspend the provision of the Services, at its sole discretion and without providing any notice to the Workspace Partner, if Wybrid finds or has reasons to believe that the Workspace Partner is or may be using the Platform and/or the Services for any improper, illegal, fraudulent, or harmful purposes or is otherwise in breach of the terms of this Agreement.
- 6.14 The Workspace Partner shall provide assistance as requested by Wybrid in connection with the installation/ implementation and configuration of the Services including, if requested, timely providing Wybrid with access to its facilities, network, hardware and software, reasonably requested by Wybrid in order to provide the Services.
- 6.15 The Workspace Partner shall maintain control of, administer, and accept responsibility for all use of Access Credentials and/or access of the Platform by the Workspace Partner and/or its employees.
- 6.16 The Workspace Partner shall take reasonable precautions to protect against the theft, loss, or fraudulent use of the Access Credentials
- 6.17 The Workspace Partner shall promptly (within one business day) notify Wybrid of any unauthorized use of its Access Credentials, breach of security, and/or suspected theft, loss, or fraudulent use of such assigned Access Credentials.
- 6.18 In order to enable the Workspace Partner to access the Services, and for setting up the Services by Wybrid, the Workspace Partner shall provide Wybrid with all data required for the provision of the Services (including set up and configuration) in a timely manner.
- 6.19 The Workspace Partner acknowledges that the ability of Wybrid to provide the Services requires the Workspace Partner’s co-operation in providing Wybrid with timely, adequate, and accurate responses to requests for data, documents, information, materials, decisions, or approvals. Wybrid may be excused from performing the Services to the extent that the Workspace Partner delays or refuses to provide Wybrid with such co-operation. The Workspace Partner shall be responsible for the accuracy, quality, integrity, legality, adequacy, and reliability of all Workspace Partner Data that Workspace Partner furnishes to Wybrid and any results obtained therefrom.
- 6.20 The Workspace Partner shall use the Services only for proper business purposes in accordance with and as contemplated by this Agreement and applicable legislation including, without limitation, laws and regulations respecting data privacy, international communications, and the exporting and importing of data.
- 6.21 The Workspace Partner agrees to use its best efforts to ensure that no SaaS Component is displayed outside or copied outside of the Platform or distributed in any way to any third party except as may be permitted under the Agreement.
- 6.22 The Workspace Partner shall comply with all technical specifications and with all security and operating guidelines, procedures, and protocols provided to the Workspace Partner by Wybrid including, without limitation, pertaining to use of passwords including any document referenced therein.
- 6.23 The Workspace Partner agrees that it will not, and its employees will not, attempt to gain or allow access to any data, files, or programs to which they are not entitled under this Agreement, and that if such access is obtained, and Confidential Information has been compromised, the Workspace Partner will immediately return such materials to Wybrid.
7. MOBILE APPLICATION AND WEB APPLICATION
8. CONFIDENTIAL INFORMATION
- 8.1 Each Party shall observe, during the subsistence of the Term and thereafter, complete secrecy regarding any and all information which is now or hereafter in the possession of the other Party and which is disclosed whether orally or in any tangible or intangible form by either Party to the other Party and/or of which the other Party becomes aware of (including but not limited to this Agreement, [the Master Agreement], the Services, the pricing information, information and data related to the access and use of the Services hereunder, including all information related to Users (including User Content), all data related, connected with, in relation to the provision of Services, information relating to the general business or financial affairs or intellectual property of Wybrid, data, databases, knowhow, formulae, processes, strategies, designs, photographs, drawings, specifications, prices, sales information, software programs and samples, and any other material bearing or incorporating any information relating to the Wybrid’s business, business affairs, products, employees, other workspace partners, contractors, customers and marketing information, information on the Platform, Wybrid Content, User Content, any data and information in relation to the Users, and their agents, representatives and employees, (hereinafter called the “Confidential Information”).
8.2 Each Party acknowledges and agrees that:
- (a) all Confidential Information shall remain the exclusive property of the disclosing party;
- (b) it shall not use Confidential Information of the other Party for any purpose except in furtherance of this Agreement;
- (c) it shall not disclose Confidential Information of the other party to any third party, except to its employees, officers, contractors, agents and service providers (“Permitted Persons”) as necessary to perform under this Agreement, provided Permitted Persons are bound in writing to obligations of confidentiality and non-use of Confidential Information in less protective than the terms hereof; and
- (d) it shall return or destroy all Confidential Information of the disclosing party upon the termination of this Agreement or at the request of the other party (subject to applicable law and, and its internal record-keeping requirements)
- 8.3 Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (a) is or becomes part of the public domain through no act or omission on the part of the receiving party; (b) was possessed by the receiving party prior to the date of this Agreement without an obligation of confidentiality; (c) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto; (d) is required to be disclosed for the purpose of rendering Services under this Agreement or performance of this Agreement or the provisions of the Master Agreement, or (d) is required to be disclosed pursuant to law, court order, subpoena or governmental authority, provided the receiving party notifies the disclosing party thereof and provides the disclosing party a reasonable opportunity to contest or limit such required disclosure.
9. SECURITY AND INTEGRITY OF WORKSPACE PARTNER DATA
The Workspace Partner acknowledges that it retains administrative control over and to whom it grants access to the Workspace Partner Data hosted/ uploaded on the Platform. Nonetheless, during the subscription term, the Workspace Partner shall maintain reasonable administrative and technical safeguards designed for the physical protection, confidentiality, and integrity of the Workspace Partner Data at least as rigorous as the measures described in the Workspace Partner’s Data and Security Policy. Wybrid will not use the Workspace Partner Data except in the manner as provided in this Agreement and the Master Agreement, or to prevent or address service or technical problems.
10. DATA PROTECTION
- 10.1 Each Party shall comply with applicable data protection laws with respect to the processing of Personal Data.
- 10.2 The Workspace Partner warrants to Wybrid that it has the legal right to disclose all data that it does in fact disclose to the Wybrid under or in connection with this Agreement
- 10.3 The Workspace Partner shall only supply to Wybrid, and Wybrid shall only process, in each case under or in relation to this Agreement as is necessary for the effective provision and utilization of the Hosted Services and for the purposes of discharge of Wybrid’s obligations under this Agreement and the Master Agreement.
11. SUPPORT SERVICES
- 11.1 Wybrid shall provide the Support Services to the Workspace Partner during the Term of this Agreement on chargeable basis and as required.
- 11.2 Without prejudice to any other rights and remedies available to Wybrid under this Agreement, the Master Agreement, law, equity or otherwise, Wybrid may suspend the provision of the Support Services if any amount due to be paid by the Workspace Partner to Wybrid under this Agreement or under the Master Agreement is overdue, and the Workspace Partner fails to make such payment after notice in this regard, if any, as prescribed either by this Agreement or under the Master Agreement is due.
12. SCHEDULED MAINTENANCE
- 12.1 Wybrid may from time to time suspend the Services for the purposes of scheduled maintenance to the Platform, providing that such scheduled maintenance must be carried out in accordance with this Clause.
- 12.2 Wybrid shall, to the extent possible, ensure that all scheduled maintenance is carried out outside Business Hours.
13. LINKS FROM THIRD PARTY WEBSITES
- 13.1 The Platform or the Hosted Services may contain links to third-party websites or services (“Third-Party Services”). Such Third-Party Services are not under the control of Wybrid, and Wybrid is / will not be responsible for any Third-Party Services. Wybrid provides access to these Third-Party Services only as a convenience to the Workspace Partner, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services.
14. SERVICE AVAILABILITY AND GUARANTEE
- 14.1 Wybrid does not under any circumstances guarantee the availability, accessibility or the uptime of the Hosted Services / Services. The Workspace Partner agrees and acknowledges that the Platform may be unavailable at any time and for any reason (including but not limited to due to scheduled maintenance or network failure). Wybrid may restrict the availability of the Hosted Services / Services or certain areas or features of the Hosted Services / Services to ensure the security or integrity of its servers or to carry out maintenance measures that ensure the proper or improved functioning of the Hosted Services / Services. Wybrid may improve, enhance and modify the Hosted Services / Services and introduce new services from time to time. The Hosted Services / Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications, and Wybrid is not responsible for any delays, delivery failures, or other damages, liabilities or losses resulting from such problems.
14.2 For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a default or deficiency by Wybrid in provision of the Services under this Agreement:
- 1.1.1 A Force Majeure Event;
- 1.1.2 A fault or failure on the Workspace Partner’s computer systems of networks;
- 1.1.3 Any breach by the Workspace Partner of this Agreement; or
- 1.1.4 Scheduled or Unscheduled maintenance carried out in accordance with this Agreement.
- 15.1 Wybrid provides and the Workspace Partner acknowledges, accepts and agrees that the Hosted Services/ Services (including User Content) are provided on an “as is” and “as available” basis, and Wybrid expressly disclaims any and all warranties and conditions of any kind, whether express, implied, or statutory, including all warranties or conditions of merchantability, fitness for a particular purpose, title, quiet enjoyment, accuracy, or non-infringement. Wybrid makes no warranty that the Hosted Services/ Services and/or the Platform will meet the Workspace Partner requirements, will be available on an uninterrupted, timely, secure, or error-free basis, or will be accurate, reliable, free of viruses or other harmful code, complete, legal, or safe.
- 15.2 Wybrid makes no representations, warranties or guarantees as to the actions or inactions of the Users who may avail of the Workspaces, and Wybrid does not screen or otherwise evaluate the Users and/or its employees.
- 15.3 By using the Platform and availing of the Services, the Workspace Partner acknowledges and agrees that the Workspace Partner may come into contact with Users that may pose harm or risk to the Workspace Partner. Wybrid expressly disclaims all liability for any act or omission of User, its employees or any other third party.
- 15.4 Wybrid has made no representations, and have expressly disclaimed, to the maximum extent permitted by applicable law, all warranties or representations of every kind or nature, either express, implied, or statutory, as to the Services and any ancillary or related products or services including, without limitation, any warranties of merchantability, fitness for a particular purpose, title, usage or non-infringement of third-party rights.
- 15.5 Wybrid does not warrant that the Hosted Services / Services will meet the Workspace Partner requirements, and the software or third-party software or any open source software used in or with the software, will operate in combination with other hardware, software, systems, or data not provided by Wybrid (except as may expressly be specified in writing by Wybrid in this Agreement and the Master Agreement).
- 15.6 The use of the Services is entirely at Workspace Partner’s own risk, and that Wybrid has made no representations or warranties regarding (a) any data that may be provided to the Workspace Partner via the Services or the accuracy or quality of any information in such data, or (b) the quality of the Workspaces, (c) the ability of the User to pay for any product or service of the Workspace Partner.
16. RESPRESENTATIONS AND WARRANTIES OF WYBRID
Wybrid warrants to the Workspace Partner that:
- 16.1 Wybrid has the legal right and authority to enter this Agreement and to perform its obligations under this Agreement
- 16.2 Wybrid will comply with all applicable legal and regulatory requirements applying to the exercise of Wybrid’s rights and fulfilment of Wybrid’s obligations under this Agreement.
- 16.3 Wybrid has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.
17 REPRESENTATION AND WARRANTIES OF THE WORKSPACE PARTNER
The Workspace Partner hereby represents and warrants as follows:
- 17.1 The Workspace Partner has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
- 17.2 The Workspace Partner operates and conducts its business operations in compliance with applicable law and conforms in all respect to the applicable Law.
- 17.3 The information provided by the Workspace Partner to Wybrid, is correct and accurate as on date.
- 17.4 All of the parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
18. CONFIRMATIONS OF THE WORKSPACE PARTNER
The Workspace Partner hereby confirms, acknowledges and understands as follows:
- 18.1 The availing of the Services requires the Workspace Partner to submit to Wybrid certain information, and the Workspace Partner shall maintain accurate, complete and up to date information at all times.
- 18.2 The Workspace Partner is responsible for all activity that occurs under its account and shall maintain the security and secrecy of the Access Credentials, the account username and password at all times.
- 18.3 Notwithstanding anything to the contrary contained herein, Wybrid is not responsible or liable in any manner whatsoever for the actions or inactions of the Workspace Partner.
- 18.4 Wybrid is not in control or and does not direct or control, direct or control any User of the Platform.
- 18.5 Wybrid is a mere service provider to the Workspace Partner, offering or rendering the Services and / or Support Services by way of a Software-as-a-Service or cloud service arrangement.
- 18.6 The Workspace Partner acknowledges that software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, Wybrid gives no warranty or representation that the Services will be wholly free from defects, errors and bugs.
- 18.7 The Workspace Partner acknowledges that software is never wholly free from security vulnerabilities; and subject to the other provisions of this Agreement, Wybrid gives no warranty or representation that the Services will be entirely secure.
- 18.8 The Workspace Partner acknowledges that the Services are designed to be compatible only with that software and those systems specified as compatible in the Hosted Services Specifications; and Wybrid does not warrant or represent that the Services will be compatible with any other software or systems.
- 18.9 The Workspace Partner acknowledges that Wybrid will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Services; and, except to the extent expressly provided otherwise in this Agreement, Wybrid does not warrant or represent that the Services or the use of the Services by the Workspace Partner will not give rise to any legal liability on the part of the Workspace Partner or any other person.
19. INTELLECTUAL PROPERTY
- 19.1 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from Wybrid to the Workspace Partner, or from the Workspace Partner to Wybrid.
- 19.2 The name, the logo, and all related names, logos, product and service names, designs, and slogans of each of the Parties are solely their trademarks. Neither Party shall use such marks without the prior written permission of the other Party.
- 19.3 Without prejudice to the generality of the provisions of this clause, it is hereby clarified that the Services, the Platform, the Wybrid Content, Intellectual Property Rights therein are and shall remain the property of Wybrid, its affiliates or their respective licensors. Neither this Agreement nor use of the Platform conveys or grants to the Workspace Partner any rights: (a) in or related to the Services, Mobile App, Web App, Website or Wybrid Content, except for the limited license granted above; or (b) to use or reference in any manner Wybrid, its Affiliates’, or their respective licensors’ company names, logos, product and service names, trademarks, service marks or other indicia of ownership.
- 19.4 The Services and the Wybrid Content may in its entirety or in part be protected by copyright, trademark, and/or other applicable laws of India. The Workspace Partner acknowledges and agrees that the Platform, Wybrid Content and the Services, including all associated intellectual property rights, are the exclusive property of Wybrid and/or its licensors or authorizing third parties. The Workspace Partner will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Platform, Wybrid Content and the Services.
- 19.5 Trademarks, service marks, logos, trade names and any other proprietary designations of third parties used on or in connection with the Services are used for identification purposes only and may be the property of their respective owners.
- 19.6 The Workspace Partner shall not use, copy, adapt, modify, prepare derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Platform or the Services or any Collective Content, except to the extent such the Workspace Partner is the legal owner of such User Content or as expressly permitted in this Agreement. No licenses or rights are granted to any party by implication or otherwise under any intellectual property rights owned or controlled by either party or its licensors, except for the licenses and rights expressly granted in this Agreement.
- 19.7 By creating, uploading, posting, sending, receiving, storing, or otherwise making available any User Content on or through the Platform, the Workspace Partner grants to Wybrid a non-exclusive, worldwide, royalty-free, revocable and non-transferable license to Wybrid to access, use, store, copy, modify, prepare derivative works of, distribute, publish, transmit, broadcast, and otherwise exploit in any manner such User Content to provide and/or promote the Hosted Service / Services and/or the Platform, in any media or platform.
20. TERMINATION AND SUSPENSION
20.1 Without prejudice to any other provisions of this Agreement and the rights and remedies available to Wybrid under law, equity or otherwise, Wybrid shall have the right to recourse to the measures referred to in clause 20.2 of this Agreement and/or terminate this Agreement in any of the following circumstances:
- 20.1.1 Breach of the provisions or the terms and conditions or failure by the Workspace Partner to perform its obligations under this Agreement and failure by the Workspace Partner to remedy the same/ perform its obligations within 15 (fifteen) days of receipt of a written notice from Wybrid requiring the Workspace Partner to remedy the same/ perform its obligations; and/or
- 20.1.2 If the Workspace Partner becomes bankrupt or insolvent, a petition for winding up of the Workspace Partner has been admitted and a liquidator or provisional liquidator has been appointed or an order for the winding up or dissolution of the Workspace Partner has been made by a court of competent jurisdiction; and/or
- 20.1.3 Failure by the Workspace Party to comply with applicable law, rules, and regulations, order or request of a court, law enforcement or other administrative agency or governmental body; and/or
- 20.1.4 If the Workspace Partner has provided Wybrid with inaccurate, fraudulent, outdated or incomplete information; and/or
- 20.1.5 if the Workspace Partner at any time fails to meet any applicable quality or eligibility criteria as may be prescribed by Wybrid from time to time; and/or
- 20.1.6 if Wybrid believes in good faith that termination of this Agreement/ the remedies set out in clause 20.2 below are reasonably necessary to protect the personal safety or property of Wybrid, its Users, or third parties, or to prevent fraud or other illegal activity; and
- 20.1.7 Termination of the Master Agreement.
20.2 Without prejudice to the right of Wybrid to terminate this Agreement, on the occurrence of any of the events set out in clause 20.1 above, and/or in addition to termination of this Agreement, Wybrid shall be entitled to do all/ any of the following:
- (a) limit the Workspace Partner’s access to or use of the Services, Platform, Website. Web App and/or Mobile Appl;
- (b) temporarily or permanently suspend the Wybrid account of the Workspace Partner, and cease providing the Workspace Partner access to the Hosted Services or the Platform.
- 20.3 In addition, and without prejudice to the provisions of clause 20.1 and clause 20.2 of this Agreement, each party shall be entitled to terminate this Agreement without assigning any reason whatsoever, by issuing a written notice of 30 (thirty) days to the other party in this regard. Upon the expiry of the 30 (thirty) day period, this Agreement shall stand terminated.
- 20.4 Upon suspension or termination of the account of the Workspace Partner, the Workspace Partner shall not be entitled to/ shall not register a new Wybrid Account either directly or indirectly and/or through any other third-party or itself and/or or access and use the Hosted Services/ Services or the Platform through an Wybrid Account of another Workspace Partner;
- 20.5 Upon expiry or termination of this Agreement or termination or expiry of the Order Schedule, upon termination or expiration of this Agreement, the Workspace Partner shall be entitled to immediately deactivate the Workspace Partner’s account(s) associated with the Agreement or applicable Order Schedule(s).
- 20.6 Upon the termination of the Agreement, any unpaid Fees or dues of the Workspace Partner shall continue to become due and payable. Any provision or covenant of this Agreement, which expressly, or by its nature, imposes obligations beyond the expiration, or termination of this Agreement, shall survive such expiration or termination (including but not limited to the following clauses – Intellectual Property Rights (Clause 19), Representations and Warranties (Clause17), Indemnification (Clause 24), Limitation of Liability (Clause 22), Confidential Information (Clause 8).
21. DATA PRIVACY AND RETENTION
- 21.1 The Workspace Partner acknowledges that personal information of the Users and its employees will be collected by Wybrid and may be shared with the Workspace Partner only for the purposes of this Agreement. The Workspace Partner will also collect personal information of the Users upon the Users using a Workspace, and shall not utilise the personal information of the Users for any other purpose other than maintenance of records.
- 21.2 The Workspace Partner acknowledges and expressly consents that all data and content provided by the Workspace Partner to Wybrid and uploaded on Platform (whether or not in aggregated, pseudonymised and/or anonymised form) related to the Workspace Partner, the Workspace and other parameters collected under this Agreement may be used, transmitted, processed, shared and transferred by the Workspace Partner (i) for performance evaluation, optimization and improvement (ii) benchmarking (iii) for marketing and advertising ; (iv) where Wybrid has a duty to or is required to disclose such data or under a court/ Government order; (v) in connection with any merger, sale of company assets, consolidation or restructuring, financing, liquidity event or acquisition or (vi) any other lawful purpose.
22. LIMITATION OF LIABILITY
- 22.1 To the maximum extent permitted by law, neither Wybrid nor any other party involved in creating, producing, or delivering the Collective Content will be liable to the Workspace Partner and/or its affiliates or any third-party for any lost profits, lost data, loss of goodwill, costs of procurement of substitute products or services, any indirect, consequential, exemplary, incidental, special, or punitive damages, or for any damages for personal or bodily injury or emotional distress arising from or relating to (a) this agreement, (b) Master Agreement, (c) the use or inability to avail of/ use the Services, the Platform, the Mobile App, the Web App, the Website or the Collective Content, (d) any inaccuracy or error in the Collective Content (or any part thereof), and/or (e) any communications, interactions, or meetings with Users with whom the Workspace Partner, its representatives, employees, and agents communicate, interact, or meet as a result of availing of the Services or use of the Platform.
- 22.2 Without prejudice to the provisions of clause 22.1 above, under no circumstances, shall Wybrid be liable for any special, indirect or consequential damages, including, but not limited to, loss of profit, loss of use, loss of revenues or damages to business or reputation of the Workspace Partner or of any third party caused by any act of omission/commission of Wybrid, the Users and/or the representatives and employees of the Users. Without prejudice to what is set out in this clause and the provisions of clause 22.1 above, Wybrid shall not be liable for any death, damage, injury or loss (whether to person or property) resulting from any event, and/or act or omission of the User, or for any actions, claims, damages, destruction, injury litigation, loss theft, etc., malicious software or malware to any of the software or hardware of the Workspace Partner, arising out of or in connection with the use of the Workspaces by the Users and/or the representatives and employees of the Users.
23. FORCE MAJEURE
23.1 Neither party to this Agreement shall be liable for any failure or delay on its part in performing any of its obligations under this Agreement or for any loss, damage, costs, charges and expenses incurred or suffered by the other party by reason thereof, if such failure or delay shall be as a result of or arising out of Force Majeure Event.
“Force Majeure Event” shall mean any event beyond the control of the Party on account of which a Party is preventing from performing its obligations and/or exercising its rights under this Agreement including, any act of war, external aggression, terrorism, vandalism, riot, civil commotion, sabotage, fire, flood, explosion, epidemic, quarantine restriction, state, nation-, or industry-wide strike or lock-out, and act of God, malicious software or malware to any of the software or hardware of Wybrid/ used in connection with the Services/ used on/ in connection with the Platform.
- 23.2 The Party affected by the Force Majeure event shall forthwith inform the other Party if it is prevented from performing its obligations or exercising its rights under this Agreement on account of a Force Majeure event. The obligations of the party(ies) so affected by the Force Majeure event shall stand suspended until the date of termination of this Agreement in accordance with the provisions of clause 20 of this Agreement, or the date of the cessation of the Force Majeure event/ the impact of the Force Majeure event ceases.
- 23.3 If the Force Majeure event/ impact of the Force Majeure event continues beyond a period of 180 (one hundred and eighty) days, either Party shall be entitled to terminate this Agreement.
- 24.1 [Wybrid shall defend, indemnify and hold the Workspace Partner from and against any damages and costs (including reasonable attorneys’ fees and costs incurred by the Workspace Partner) finally awarded against the Workspace Partner directly resulting from any claim, demand, suit or proceeding from an unaffiliated third party (“Claim”) specifically alleging that the Service directly infringes or misappropriates a valid copyright, trademark, or trade secret of a third party. Wybrid shall have no indemnification obligation for Claims to the extent arising from: (a) the use by the Workspace Partner or by any person claiming by, through or under the Workspace Partner, of the Services other than as permitted under this Agreement; (b) the combination of the Services developed by Wybrid with any data provided by the Workspace Partner with any User or third party products, services, hardware, data, content, or business processes; or (c) from the modification of the Services by any party other than Wybrid or Wybrid’s agents, or modification by Wybrid or Wybrid’s agents based on the instructions of Workspace Partner. The foregoing is Wybrid’s exclusive obligation for infringement claims. If Wybrid becomes aware of a Claim alleging infringement or misappropriation, or Wybrid reasonably believes such a Claim will occur, the Workspace Partner may, at its sole option: (i) obtain for Workspace Partner the right to continue use of the Services availed of by the Workspace Partner under this Agreement; (ii) replace or modify the Services availed of by the Workspace Partner so that it is no longer infringing; or, (iii) if neither (i) nor (ii) is reasonably available to Wybrid, terminate the Services, in which case Workspace Partner’s sole liability (in addition to the indemnification obligations set out in this clause is to refund to Client a prorated amount of prepaid fees for the Services applicable to the remaining period (from the date Wybrid is notified of the infringement claim by the Workspace Partner) based on the Hosted Services Model Subscription.
- 24.2 Wybrid hereby defends, indemnifies, and hold harmless the other party, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any actions, suits, claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees, damages, judgements, amounts paid in settlement and expenses (including, without limitation, attorneys’ fees and disbursements) arising out of, in relation to and/or in connection with any of the following: Breach of the provisions of this Agreement [and/or the Master Agreement] by the Workspace Partner; and If any of the representations made by the Workspace Partner in this Agreement [and/or the Master Agreement] are found to be false, true and/or incorrect Use/ Misuse by the Workspace Partner of the Platform, Services and/or any information on the Platform.
- 25.1 Any dispute arising out of or in connection with or pursuant to this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in accordance with the Arbitration Rules of the Mumbai Centre for International Arbitration (MCIA Rules), which rules are deemed to be incorporated by reference in this clause.
- 25.2 The seat of the arbitration shall be Mumbai.
- 25.3 The arbitral tribunal shall consist of 3 (three) arbitrators.
- 25.4 The language of the arbitration shall be English.
26. APPLICABLE LAW AND JURISDICTIONThis Agreement will be interpreted in accordance with the laws of India, and all disputes and claims shall be subject to the exclusive jurisdiction of the courts of Mumbai at Maharashtra.
- 27.1 All notices, requests, demands and other communications given by any of the parties hereunder shall be in writing in the English language and shall be given only by (i) e-mail, and (ii) personal delivery or courier service or registered mail to the registered business address or to such other address or e-mail addressed as the parties may designate by written notice. Any such communication shall be deemed duly given in the case of personal delivery and courier service upon delivery and receipt of written acknowledgment thereof, in the case of registered mail 14 (fourteen) days after posting, provided that if such day is not a business day or such time not a normal business hour then delivery shall be deemed to have occurred on the following business day, in the case of electronic mail, upon a confirmation of transmission being recorded on the server of the Party sending the communication, unless such Party receives a message indicating failed delivery.
- 27.2 Either of the Parties may from time to time change its address or other information for the purpose of notices to the other Party by giving notice specifying such change to the other Party hereto.
- 28.1 No waiver by either Party of any breach of this Agreement shall be a waiver of any preceding or succeeding breach.
- 28.2 No waiver by either Party of any right under this Agreement shall be construed as a waiver of any other right.
- 28.3 Either Party shall not be required to give notice to enforce strict adherence to all terms of this Agreement.
29. MISCELLANEOUS RIGHTS AND OBLIGATIONS
- 29.1 Entire Agreement: The terms of this Agreement are the entire agreement and understanding with respect to the subject matter hereof and supersedes all prior discussions or representations or any other agreement executed between Wybrid and the Workspace Partner.
- 29.2 Amendments: No change, modification, or termination of any of the terms, provisions, or conditions of this Agreement shall be effective unless made in writing and signed by authorized signatories to this Agreement.
- 29.3 Binding Nature: This Agreement shall be binding upon the Workspace Partner and its successors, and the Wybrid and its respective successors.
- 29.4 Assignment: The Workspace Partner acknowledges and agrees that Workspace Partner shall not assign or sub-contract any of its rights or obligations under this Agreement to any person or entity under any circumstances whatsoever. Any attempted assignment or sub-contracting in violation hereof shall be null and void. Provided however that the Wybrid shall be entitled to assign its rights and remedies or transfer its obligations under this Agreement.
- 29.5 Severability: If any clause, sub-clause, or provision of this Agreement, or the application of such clause, sub-clause, or provision, is held invalid by a court of competent jurisdiction, the remainder of this Agreement, and the application of such clause, sub-clause, or provision to the Parties, or circumstances other than those with respect to which it is held invalid shall not be affected.
- 29.6 Counterparts: This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
- 29.7 Schedules and Conflict: The schedules to this Agreement form an integral part of this Agreement and shall not be construed in isolation. Notwithstanding the aforesaid or anything else to the contrary, it is the understanding of the Parties that if there is a conflict between the terms of this Agreement and any schedule hereto, the terms of the Schedules shall prevail.
- 29.8 Survival: Termination of this Agreement shall not affect those provisions hereof that by their nature are intended to survive such termination.
SCHEDULE – II
HOSTED SERVICES SUBSCRIPTION MODEL
|Hosted Services featured in the Model
(a) Public Inventory Listing – Enables listing of Workspace Partner’s Workspace on Wybrid’s platform for facilitating a marketplace for Users and Workspace Partner;
(b) Lead generation for Workspace Partner in respect of identifying and on-boarding potential Users;
(c)Inventory Management and Customer Profile Management (Both Dedicated or Flexible, at the option of the Client) by Wybrid; (d)Ticketing system provided by Wybrid for tracking all tickets raised by [Clients/ Users];
(e)Staff Management by Wybrid;
(f)Events management and broadcast facilities provided by Wybrid for promotional activities;
(g)CRM (Sales & Profits) tracked by Wybrid;
(h)Inventory Invoicing by Wybrid based on booking history of both the Dedicated as well as Flexible customer-base;
(i)Clients may access the Platform and use the same for booking the Workspace listed by the Workspace Partner and utilizing the services of the Workspace Partner.
|At the discretion of Wybrid Technology Private Limited